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Page 1 of 325 **```` 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.
**SUMM ARY**  : The EPA is finalizing a Federal Implementation Plan (FIP) under the Clean Air Act ( CAA or Act) for tribes in Indian country. The FIP includes two New Source Review (NSR) regulations for the protection of air resources in Indian country. The first r ule 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, unt il rep laced by an EPA

approved Tribal Implementation P lan (TIP)
. **DATES** : This final rule is effective on **[ INSERT DATE 60 DAYS** Draft

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Page 2 of 325 **AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER**  **]**
. **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 W eb site. Although listed in the index, some information is not publicly available,
e.g. , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically throug h 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 INFORMATI ON 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, e

- mail address: montanez.jessica@epa.gov
.Draft

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Page 3 of 325 **SUPPLEMENTARY INFORMATION** : The information in this preamble is organized as follows:
I. General Information A. Does this action apply to m e? B. Where c an I g et a c opy of this d ocument a nd o ther r elated i nformation? II. Overview of the Final Rules III . Background A. What is t he Ne w Source Review (NSR) p rogram ? 1. What are the general requirements of the major NSR program? 2. What are the general requiremen ts of the minor NSR program? B. What is the b asis for EPA’s a uthority t o i mplement CAA p rograms in Indian country? C
. What is the status of the NSR air q uali ty programs in Indian c ount ry ? D . What c onsultation and o utreach has been done with t riba l leaders and r epresentatives ? 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 ru le? a. Minor Stationary Source Definition b. Determining Applicability for New Minor Sources 2. What is a modification and which h 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 stationary 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 Re view b. Air Quality Impacts Analysis (AQIA) 3. What are the permit content requirements ? a. Emissions Limitations b. Monitoring, Recordkeeping and ReportingDraft

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Page 4 of 325 c. Other Permit Content Requirements 4. What are the permit issuance procedures, permit term and public participation requirements? a. Permit Issuance Process b. Permit Term c. Public Participation Requirements 5. What are the provisions for final action on a permit, permit reopenings, administrative permit revisions , and administrative and judicial review procedures? a. Final Action o n 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 ca tegories 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 permit s E. Case

- By

- Case MACT D eterminations under S ection 112(g) of the Act F. T reat ment of Exist ing 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 under Appendix S? B. How is EPA addressing the lack of available offsets in Indian coun try? 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 fi nal action on a permit, permit reopenings, and administrative and judicial review procedures? F. How is EPA revising Appendix S?Draft

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Page 5 of 325 VI . Legal Basis , Statutory Authority and Ju risdictional Issues A. What i s the b asis for EPA’s a uthority t o i mplement t hese NSR p rogra ms in Indian country ? B. How d oes a t ribe r eceive d elegation t o a ssist EPA with a dministration of the f ederal m inor and m ajor NSR r ules? C. What h appens to p ermits p reviously i ssued by s tates to s ources in Indian c ountry ? VII. Implementation Issues A. Are t ribes al lowed 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 Low

Income Population K. Congressional Review Act I X. Statutory Authority
**I. General Information** 
A. Does this a ction a pply to m e? Entities potentially affected by thi s 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. Cat egories andDraft

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Page 6 of 325 entities potentially affected by this action are expected to include: Category NAICS a Examples of regulated entities Industry
.......... 21111 Oil and gas production/operations 211111 Crude Petroleum and Natural Gas Extraction 211112 Natural Gas Li quid 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 operationsDraft

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Page 7 of 325 3329 Fabricated metal products 33311 Machinery manufa cturing
33711 Wood kitchen cabinet manufacturing 42451 Grain Elevator 42471 Gasoline bulk plant 4471 Gasoline station 54171 Professional, Scientific, and Technical Services 562212 Solid Waste Landfill 72112 Other (natural gas

- fired boilers) b 811121 Auto body refinishing
Federal government 924110 Administration of Air and Water Resources and Solid Waste Management Programs State/local/tribal government ........ 924110 Administration of Air and Water Resources and Solid Waste Management Programs
a North American Industry Classification System.

b Used NAICS for casino hotels

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 fac ility is regulated by this action, you should examine the applicability criteria in the final minor and major NSR programs for Indian country, 40 CFR 49.153 and 49.168, respectively. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the precedingDraft

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Page 8 of 325 **FOR FURTHER INFORMATION CONTACT** section.
B. Where c an I g et a c opy of this d ocument and o ther r elated i nformation? 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

se ction 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 s ources; and new major sources or major modifications in nonattainment areas. In addition, we are establishing a min or source
p ermitting mechanism for major sources that wish to voluntarilyDraft

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Page 9 of 325 limit emissions to become synthetic minor sources 1 and for approving case

- by

- case maximu m achievable control technology ( MACT ) determinations
. 2 Prior to this action, there has been no permitting mechanism for stationary sources in Indian country , except for major stationary sources in areas of Indian country meeting the NAAQS . T hese final r ules 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 modificatio ns at major sources. New minor

1 Sources located within the exterior boundaries of Indian rese rvations in Idaho, Oregon, and Washington can apply for a non - title V operating permit to establish synthetic minor status under the FIPs applicable to those reservations u ntil 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 in Indian country in all other states must apply for synthetic minor source permit s under the provisions of this rule. 2 As described in section IV.E of this preamble, i f the Administrator has not est ablished a MACT standard for a source category, the Act requires that MACT must be determined on a case - by

- case basis. The requirement for a case

- by

- case MACT determination prior to construction or reconstr uction of a major source of hazardous air pollutants is found in our regulations at 40 CFR 63.42(c) and under that section, we provide a number of review options for these determinations. This rule will serve as one of the possible review options for case

- by

- case MACT determinations.Draft

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Page 10 of 325 so urces with a potential to emit ( PTE ) equal to or greater than the minor NSR thresholds or modifications at minor sources with allowable emissions **incre** ases equal to or greater than the minor NSR thresholds must apply for and obtain a minor NSR permit prior to commencing construction of the new source or modification. At an existing major source, if a proposed modification does not qualify as a major modification (which would be subject to major NSR) based on the actual

- to

- pro jected

actual test , it is considered a minor modification and is subject to the minor NSR program requirements , if the 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 dete rmined 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. As an alternative to a site

- specific pe rm it, some sources can applyDraft

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Page 11 of 325 for a general permit. 3
T his rule will also allow otherwise major sources in Indian country to voluntarily accept emission limitations on their PTE to become “ synthetic minor sources .” S ynthetic minor sources may include sour ces 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 practically enforceable). The practice of creating synthetic minor sources to av oid 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

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 stationary sources. The purpose of a general permit is to simplify the permit application and issuance process for similar facilities so that a reviewing authority’s limi ted resources need not be expended for site

- specific permit development for such facilities. 4 In such case s, these sources will be subject to the minor NSR regulations under 40 CFR 49.151

- 49.165 and not the major NSR regulations under 40 CFR 52.21 (PSD), 40 CFR 49.167 (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.Draft

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Page 12 of 325 as synthetic minors from locati ng 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 large r sources that can qualify as synthetic minors to locate in Indian country, thereby promoting environmentally sound economic growth. Synthetic minor sources will undergo site

- specific permitting ; that is , general permits will not be issued to synthetic m ino r source s . However, we intend to develop general permits for some common types of em issions units and minor
sources to str eamline the permitting process. The initial establishment of the general permit will include control technology review and associ ated 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 pro visions of 40 CFR part 51,
A ppendix 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, emissionsDraft

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Page 13 of 325 offsets, and compliance certification
. We are adopting these final rules after further evaluation of the proposed provisions and consideration of the public

comme nts . On August 21, 2006 (71 FR 48696), EPA proposed the Review of New Sources and Modifications in Indian Country ( i.e. , Tribal NSR rules )
. The EPA held an extensive outreach and consultation pe riod (described in section III.D of this preamble) , along wi th an extensive public comment period that ended on March 20, 2007. The comments provided detailed information specific to Indian country , and the final rule s i ncorporate many of the suggestions we received. We respond to many of these comments in explai ning our rationale for the final rules, which is described in section s IV through V I . 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 publi c 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. However, upon further evaluation we are retaining the 30

- day public comment period for the initial establishment of the general permit and are finalizing a 30

- day public comment period for when an individual source seeks coverage under the generalDraft

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Page 14 of 325 permit
. For the minor NSR rule, w e had also proposed Plantwide Applicabil ity Limit ation s (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 (t p y) that wa s enforceable as a practical matter. However ,
w e are not f inalizing minor source PALs after consideration of the comments we received
. Under the proposed project netting approach in the minor NSR program , the total emissions increase that would result from a proposed modification would have been calculated by su mming both the increases and decreases resulting from the modification. W e are not finalizing this approach at this time for this program since we decided not to take final action on project netting for the major NSR program
. ( See Prevention of Significa nt Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation and Project Netting; 74 FR 2376
. ) Regarding the proposed list o f emission s units and activities that will be exempted from the minor NSR program, we are finalizing an amended li st. This list takes into consideration the comments received and the recent developments in greenhouse gas regulations. We are also committing to the develo pment of a supplemental rule to determine if additionalDraft

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Page 15 of 325 exempted units/activitie s should be added to the list. Furthermore, under the minor NSR program existing true minor sources will not be subject to the requirements of the minor NSR program u ntil they propose a modification . Existing
true minor sources will, however, be required to register with in
1 8 months from the effective date of this rule , that is , by **[INSERT DATE 20 MONTHS**  **AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]** 
. For the major NSR rule, we are not final izing the proposed Appendix S, p aragraph VI as an option for offset 5 waivers due to certain comments raising concern s with implementation of this waiver
. Relative to the compliance certification area , 6 we are finalizing a state

- wide compliance requirement consistent with section 173(a)(3) of the Act.
W e are finalizing the minor NSR and the nonattainment major

5 Under the CAA, emissions reductions (offsets) from existing sources in the area of the proposed source (whether or n ot 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. 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 e mission limitations and standards under the Act. See section 173(a)(3) of the Act.Draft

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Page 16 of 325 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) p rogram ? 1. What a re the g eneral r equirements of the m ajor NSR p rogram? The major NSR program contained in parts C and D of title I of the Act is a preconstruction review and permitting program
app licable to new major sources and major modifications at suc h 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 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, A ppendices S and W. For newly constructed, "greenfield" sources, theDraft

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Page 17 of 325 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 applicabi lity 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. F or attainment areas the thresholds are 100 or 250 tp y, 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 mod ification. For a modification to be major, the following three criteria have to be met: (1) A physical change in or change in the method of operation of a major stationary 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,

7 Sources listed in section 169(l) of the Act are subject to a threshold of 100 tpy ( s ee 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).Draft

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Page 18 of 325 Appendix S , paragraph II.A.10 for nonattainment major NSR ); and (3) The increase in emissions r esulting from the change must result in a si gnificant net emissions increase. In other words, when the increase from the project is added to other contemporaneous increases and decreases in actual emissions 8 at the source, the net emissions increase must be significant (equal to or above the signif icance 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 techn ologies, including any pollution preventi on measures, to achieve the lowest achievable emission rate . The lowest achievable emission rate is based on the most stringent emission limitation in the implementation plan of any state, or achieved in practice, for the source category under review. Each major source subject to nonattainment major NSR must also offset its emissions increase by obtaining emissions

8 In approximate terms, "contemporaneou s" 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 non attainment major NSR, see , 40 CFR part 51, Appendix S, paragraph II.A.6(ii).Draft

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Page 19 of 325 reductions from other sources in the area, or in an area of equal or higher nonattainment classificati on 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 particu late matter less than or equal to 10 microns in aerodynamic diameter (PM 10 ), 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 alternativ e 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 mod ification. 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.Draft

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Page 20 of 325 Under the PSD prog ram 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 a ssure 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 a re the g eneral r equirements of the m inor NSR p rogram? Section 110(a)(2)(C) of the Act requires that every SIP include a program to regulate the construction and modi fication 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 NAAQS. Parts C and D address the major N SR program for major sources, and the permitting program for min or sources is addressed by section 110(a)(2)(C) of the Act. We commonly refer to the latter program as the minor N SR program. A minor source means a source whose PTE is lower than the major
NSR applicability threshold for a particular pollutant as define d in the applicable nonattainment major NSR program or PSD
program.Draft

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Page 21 of 325 States must develop minor NSR programs to attain and maintain the NAAQS and t he federal requirements for state minor NSR programs are outlined in 40 CFR 51.160 through 51.164
. The se feder al 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 wit h a broad degree of discretion in developing a program to regulate ne w and modified minor source construction activities in Indian country.
B. What is the b asis for EPA’s a uthority t o i mplement CAA
p rograms in Indian country ? The T ribal A uthority R ule (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 A ct in the same manner as states . This is accomplished when Indian tribe s develop TIPs , plans similar to SIPs. If a tribe develops a TIP to implement a CAA program, the TIP, once it is approved, will replace the federal program as the requirement for that area of Indian country and the tribe will become responsible for implem enting that particular
program. However, if Indian tribes are unable, or choose not,Draft

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Page 22 of 325 to include a CAA program such as NSR in a TIP , we will implement the program
. T he Act provides us with broad authority to protect air resources throughout the Nation, i ncluding 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 t he 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 poll ution 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 whichDraft

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Page 23 of 325 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).
I n the preamble to the TAR, we also concluded that the Act

9 We believe that in the context of programs under the Act, 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 (1987), and HRI v. EPA , 198 F.3d 1224 (10 th 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 enti ties, 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 demonstrati on 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 und er 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 approv als 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 demon strations 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.Draft

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Page 24 of 325 authorizes us to protect air quality throughout Indian country.
See 63 FR 7262, 59 FR 43960

- 43961 citing sections 101(b)(1), 301(a), and 301(d) of the Act. In addition, s ection 301(a) of the Act pr ovides us broad authority to issue such regulations as are necessary to carry out the mandates of the Act. S everal 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 pr ogram 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
govern ments 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 progr am 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 authorit y to the EPA under section 301(d)(4) of the Act. Section 301(d)(4) authorizes the Administrator to directlyDraft

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Page 25 of 325 administer provisions of the Act so as to achieve the appropriate purpose where tribal implementation of those provisions is inappropriate or admin istratively 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 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 exp ressed our intent to promulgate without unreasonable delay a FIP (where 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. WeDraft

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Page 26 of 325 believe that Congress authorized us, consistent with our Indian policy, to avoid th e checker

- boarding of Indian country based on land ownership by federally implementing the Act over all reservation sources in the absence of an EPA

- approved tribal
program. See S. Rep. No. 228, 101 st Cong., 1 st Sess. 79 (1989) (implementation of the Act to be in a manner consistent with EPA’s Indian policy). In addition, section 301(d)(4) authorized us to implement the Act in non

- reservation areas of Indian country in order to fill any gap in program coverage and to ensure an efficient and effective tran sition 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, 101 st Cong., 1 st Sess. 80 (1989) (noting that s ection 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 govern ment’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”).Draft

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Page 27 of 325 Therefore w ith these final rule s, we will exercise our authority to administer the minor NSR permitting program and the nonattainment major NSR program in Indian country, which is generally the area over which a tribe may potentially receive approval of programs under the Act. As noted in the final TAR, we interpret the Act as establishing a territorial approach to implementation of the Act within Indian country by delegating to eligible tribes authority over all reservation sources without differentiating among the various categories o f 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 dir ectly 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 progra ms inDraft

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Page 28 of 325 Indian country? No tribe is currently administering an EPA

- approved PSD
program. Therefore, EPA has been implementing a FIP for major sources in attainment areas and has been issuing PSD permits in Indian country. See 40 CFR 52.21. F or the nonatta inment major NSR program or the minor NSR program 10 in Indian country , no tribe has been administering an EPA

- approved program either and there has been no FIP in place to implement these programs until

now. Hence, there was a regulatory gap in Indian coun try. 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 4 9.175 and these progra ms will continue to apply except where we

e xplicitly 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, s ections 301(d) and 110(o) of the

10 EPA recently proposed to approve a TIP for the Gila River India n Community that includes a minor NSR program, as well as other provisions (see 75 FR, August 12, 2010). 11 Although many states have developed regulatory programs for minor sources, those programs do not apply in Indian country unless explicitly approved b y EPA for such areas.Draft

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Page 29 of 325 Act give the tribes the authority to develop thei r own tribal programs and w e encourage eligible tribes to develop their own minor and nonattainment major NSR progr ams for incorporation into TI Ps. However, w e 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.
T ribes 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 majo r 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 A ir A ct resources.
D. What consultation and o utreach has been done with t ribal leaders and r epresentatives ?Draft

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Page 30 of 325 Prior to undertaking this rulemaking, we sought to inclu de tribes early in the rulemaking process. On June 24, 2002, we sent approximately 500 letters to tribal leaders seeking their recommendations for effective consultation and thei r involvement in developing these rule s . We received responses from 75 tr ibes. Of these 75 tribes, 69 designated an environmental staff member to work with us on developing the rules. Aside from the designated staff, many tribal leaders asked that we keep them informed of our progress through e

- mail, meetings with the EPA Reg ional Offices,

new sletters, and W eb sites. In addition , 53 percent of the tribal leaders also requested direct phone calls or conference cal ls to discuss the subject and o nly 16 percent of the respondents requested face

- to

- face c onsultation. Of these, on ly 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) 10 th anniversary meeting in Flagstaff, Arizona. In addition to conducting these meetings,Draft

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Page 31 of 325 we also visited tr ibal environmental staff in Indian country. Over 30 tribes atten ded these meetings. W e also participated in numerous national and regional forums including the National Tribal Forums sponsored by the ITEP, two National Tribal Air Association meetings, an d 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 ag encies during development of the s e rule s . We had two meetings with the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control O fficers (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 , t ribal government representat ives 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 star ted an extensive outreach program

12 This organization has since changed its name to the National Association of Clean Air Agencies (NACAA).Draft

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Page 32 of 325 in the years 2006 and 2007 to i nform and seek comments from the public, especially tribes. We again sent over 500 letters to tribal leaders to inform them about the proposal. We did not receive any formal responses to these letters and did not receive any request for formal consultat ion from the tribes, but they contacted us either through e

- mail or phone calls and asked to keep them informed of our progress through e

- mail, meetings, training sessions, newsletters, and/or W eb sites. To enhance understanding of the proposal, and wha t it would mean for Indian country , we supplemented the 2006 outreach efforts by holding four training session s using web conferencing not only for tribes, but also for EPA Regional O ffices, air program managers , and tribal organizations. We also held train ing session s 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 session s 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 Tri balDraft

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Page 33 of 325 Environmental Professionals, the National Tribal Air Association, and at meetings with tribal consortia, such as the United Southern and Eastern Tr ibes. We also interacted with

s tate and local air pollution agencies during this outreach period and had meetings with the NACAA
. Furthermore, we extended and reopened the comment period for the proposed rules twice (from November 20, 2006 to January 19, 2007 and from January 19, 2007 to March 20, 2007 ) at the request of the tribes. During this time, we als o recorded and presented a webcast video for all interested stakeholders to train more environmental professionals about the NSR program and the rules themselves. In addition , to address the concern about the l ong gap bet ween the proposal and finalization of the rule s , we have held a series of meetings in 2010 with the National Tribal Operations Committee, interested Regional Tribal Operations Committees, and interested tribal environmental staff on implementation of the rule s to ensure that t he tribes are aware of the rule s and their provisions. After these rules are promulgated , we intend to conduct similar outreach efforts with all stakeholders, including extensive training to facilitate easier implementation of the rule s .Draft

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Page 34 of 325 **IV. Final Minor NSR Program for**  **Indian Country** This rulemaking finalizes provisions for a minor NSR program in Indian country, codified at 40 CFR 49.151 through 49.165. The program includes requirements for preconstruction review for minor sources and minor modifications, general permit s, and synthetic minor source permit s. The minor NSR program also serves as a mechanism for case

- by

- case MACT determinations and establishes a registration system for existing minor sources to improve the tribal source emission inventory. Our primary go al 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 i s 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 criter ia 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 TIP.Draft

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Page 35 of 325 However, if a tribe i s developing its own program, this can serve as one example of a program that meets the objectives and requirements of the Act. This final minor source permitting program addresses, on a national level, many environmental and regulatory issues that are sp ecific 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 de velop their own TIPs, consistent with the overarching requirement that the t ribe ensure that the TIP will not interfere with any applicable requirement of the CAA.
A. General Provisions u nder the Minor NSR Program 1. What is a minor source and which minor sourc es are subject to this rule ?

a. Minor Stationary Source Definition We proposed that a minor stationary source means a source whose PTE is lower than an applicable major source threshold,

or , more specifically, a “ minor stationary source ” or “ minor

source ” mea ns a source that emits or has the potential to emit regulated NSR pollutants in amounts that are less than the major stationary source threshold s in 40 CFR section 49.167 or 52.21, as applicable. We also proposed that t he term “minor stationaryDraft

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Page 36 of 325 source” ap plies independently to each regulated NSR pollutant that the source has the potential to emit.
Some commenters asked us to accommodate in the minor stationary source definition references to the de minimis exceptions ( i.e. , minor NSR thresholds) or ins ignificant source categories or activities being finalized under this rule
. A fter considering these comments, we believe it is appropriate to do
so. Acco rdingly, we have amended the final minor source definition to specifically refer to the minor NSR thr esholds and the exempted e missions units and activities
. In addition, s ince the source can only be a minor source if the PTE of each regulated NSR pollutant for that source is less than the corresponding major source thresholds , we delete d from the defini tion 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 stationary source definition to specify that the PTE of a source includes fugitive emissions, to the extent that they are quanti fiable, only if the source belongs to one of the source categories listed in 40 CFR 52.21(b)(1)(iii) (for PSD) and 4 0 CFR part 51 , Appendix S , paragraph II. A.4(iii) (for nonatta inm ent major NSR) of the major NSR rules pursuant to sec tion 302(j) of the Act
.Draft

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Page 37 of 325 Hence, we are finalizing under 40 CFR 49.152 that a minor stationary source 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 stationary 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
. T he potential to emit in cludes fugitive emissions, to the extent that they are quantifiab le, only if the source belongs to one of the so urce categories listed in 40 CFR part 51, Appendix S, 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 s ource is restricted by permit conditions that limit its emissions and are enforceable as a practical matter , its PTE ( and allowable emissions) are calculated based on the permit restrictions
. For the NSR program in Indian country, the major source threshol ds 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 mayDraft

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Page 38 of 325 differ in attainment areas and nonattainment areas for the same polluta nt. For example, in attainment areas the major source threshold for n itrogen o xides (NO x ) 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 thres hold is 100 tpy. In contrast, the major source threshold for NO x in ozone nonattainment areas can vary from 10 tpy in an extreme ozone nonattainment area to 100 tpy in a marginal ozone nonattainment area ( see 40 CFR part 51 , Appendix
S , paragraph II.A.4(i ) )
. The final rule establishes minor NSR thresholds as discussed in section IV.A.3 of this preamble. 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 m ajor 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. T he second step is to determine whether the source is subject to theDraft

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Page 39 of 325 applicable major NSR program ( i.e
. , 40 CFR 49.16 6 through 49.175 or 40 CFR 52.21 for nonattainment and attainment areas, respectively). If your proposed source’s potential to emit for a particular pollutant is equal to or greater than the applicable major source threshold , the source is subject to review under major NSR and not the minor NSR program for tha t regulated NSR pollutant . Under the nonattainment major NSR program, this step is repeated for each regulated NSR pollutant the source has the potenti al to emit. Under the PSD program, if the source’s potential to emit is greater than the major source threshold for one pollutant, then PSD applies to any other 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 PM 10 is 15 tpy while the major source threshold is 100 or 250 tpy
. If your proposed new source is not subject to major NS R for a particular regulated NSR pollutant, the next step is to determine whether the source is subject to the requirements of th is minor NSR rule for that pollutant , i.e. , if the source’s potential to emit of the pollutant is equal to or greater than

13 The significance levels are defined in 40 CFR 52.21(b)(23).Draft

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Page 40 of 325 the applicable minor NSR threshold listed in Table 1 of this final rule . These step s are repeated for every regulated NSR pollutant the source has the potential to emit
. However, for a source to be considere d a minor source, the PTE of each NSR pollutant for that source must be less than the corresponding major sourc e threshold
. W e sought comment in the proposal as to whether in calculating these emission levels for applicability purposes, you should include fugitive emission s, to the extent they are quant ifiable, 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.
Sev eral of the commenters support ed the approach of including fugitive emissions for all sources . They st ate d that fugitive emissions are a large proportion of the air pollutants in Indian country and hence EPA must require fugitive emissions to be included in determining applicability because the mandate of the minor NSR program is based on protection of air quality throughout the nation
. 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 believe d that the costs for complying with minor NSR fo r fugitive emissions couldDraft

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Page 41 of 325 po tentially be substantial and that fugitive emissions are in herently difficult to quantify. In addition, o ne commenter added that fugitive emissions should only be included for source categories listed under section 302(j) of t he Act , citing an extensive analysis of the history of regulating fugitive emissions under NSR. Based on the comments received, w e are finalizing provisions that require including fugitive emissions in the minor NSR applicability determination, to the extent that they are quantifiable, only if the stationary 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) )
. W e believe that the number of sources that would be excluded from the minor source permitting program because their fugitive emissions were not included in their applicabil ity determinations would be small compared to the regulatory and ec onomic burden that we would impose o n minor sources in Indian country if we were to req uire the estimation of fugitive emissions for all minor sources. See final 40 CFR 49 .153(a). 2. What i s a m odification and w hich m odification s a re s ubject
to t his r ule ?Draft

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Page 42 of 3 25 a. Definition of “Modification” For the purposes of the minor NSR program , we proposed ( at 40 CFR 49.152(d) ) that a “ modification ” is defined as any physical or operational change at a stationary source that would cause an increase in the allowable emissions of the affected emissions units for any regulated NSR pollutant or that would cause the emission of any regulated NSR pollutant not previously emitted. The following exemptions apply:

• A physical or operational change does not i nclude routine maintenance, repair, or replacement.

• 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
matt er.

• A change in ownership at a stationary source is not considered a modification
. Several commenters support ed our proposal to adopt a definition for the term “modification” for the minor NSR program in Indian country based on an increase in allowable em issions ( allowable

- to

- allowable test ) . These commenters believe d that an allowable

- to

- allowable test would be a simpler te st than the actual

- to

- projected

- actual test that appli es to the major NSR Comment [E1]: “practical” should be “legal”. This is a p araphrase; it would be better to say that the production rate exclusion does not apply to increases that are prohibited by any legally enforceable permit condition

.Draft

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Page 43 of 325 program; it will be less costly, less time consuming, and l ess 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 pu rsuant to section 110 of the
Act. On the other hand , other commenters opposed the allowab le emissions test because they believe d that it is less stringent than the alternative tests and/or it is contrary to the Act a nd recent court decisions. They also believe d that the allowable

t o - allowable test will be inconsistent with the major NSR
progr am, 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 believe d that an allowable

- to

- allowable test will not capture those sources that escape major NSR review. For these reasons, opposing commenters 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, w e agree with those commenters that endorsed the concept of defining the term modification for the minor NSR program as a change in allowable emissions. As we stated in the proposal (71 FR 48696), w e evaluated the threeDraft

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Page 44 of 325 basic types of applicabi lity tests (actual

- to

- potential, actual

to

- projected

- actual, and allowable

- to

- allowable) and determined that the allowable

- to

- allowable test is the most suitable for Indian country because, apart from being a simple test, it will help with easier implement ation of the program for the minor sources in Indian country that , to date, have little experience with any air regulations. S ince minor sources in Indian country have been unregulated until now , many of these sources have not kept track of actual emissio ns data, making the initial application of any test based on actual emissions virtually impossible. In addition, we understand that so me state minor NSR programs use an allowable

- to

- allowable test which would make th is program for Indian country consisten t with the programs in these states
. However, we share the concerns of commenters who believe that an allowable

- to

- allowable test may not capture some modifications at major sources that escape major NSR review because they will cause actual emissions inc reases that will not be large enough to qualify as major modifications under the actual

- emissions

- based test of the major NSR program , and might not show any increases in emissions under the allowable

- to

allowable test, avoiding any permitting requirements at all
. In addition, w e disagree with those commenters that believe d that using an allowable

- to

- allowable test is contraryDraft

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Page 45 of 325 to the Act and recent court decisions and therefore will be tied up in litigation. As we discussed in the proposal preamble, we b elieve 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 sec t ion 111(a)(4) of the Act (the definition of “modification” for purposes of the new source performance standards (NSPS) ) in defining “modification” for purposes of the major NSR program. The 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 w e do not believe that the decision of the D.C. Circuit Court of Appea ls applies to the minor NSR program
.Draft

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Page 46 of 325 T here fore, t o address the concerns of those commenters who expressed that the allowable

- to

- allowable test i s less stringent than an actual

- emissions

- based test or that this test is at odds with section 110(a)(2)(C) of the Act, we commit to conducting a study to collect actual emissions data for a period of 5 years from the minor source registration program 14 we are finalizing with this rule to a ssess the feasibility of implementing an actual

- emissions

- based test . If our study concludes that adequate actual emiss ions data are available for minor sources , we will undertake a rulemaking to determine whether or not the adoption of an actual

- emissions based test for minor sources is appropriate within 2 years from the end of the 5

- year study period. Furthermore , beca use of our concern that some minor modifications at major sources m ight completely escape review under the minor NSR program as proposed, we have decided that the applicability of the minor NSR program to minor modifications at major sources should be base d on the actual

- to

projected

- actual test used in the applicable major NSR program
. Thus, in the final rule, if a proposed modification a t an

14 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.Draft

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Page 47 of 325 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 emissions increase from the actual

- to

- projected

- actual test is equal to or exceeds the minor NSR thresholds listed in Table 1 in section I V.A.3 of this preamble
. The rationale for using an allowable

- to

allowable test for minor sources in Indian country

– 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 major sources. M ajor sources must first determine whether a proposed modification is subject to major NSR using the actual

- to

- projected

- actual test of the major NSR program. It would be far simpler and mo re efficient to use th e results of the actual

- to

- projected

- actual
test that has already been used to determine whether the proposed modification is subject to major NSR as the basis for permitting the source under the minor source program , rather than complicating and ex tending the process by 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 ofDraft

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Page 48 of 325 modificati on relate d 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 stationary source belongs to one of the source categories listed pursuant to sec tion 302(j) of the Act ( see previous section for more information). Therefore, u nder the final rule, a modification means any physical or operational change at a stationary source that would cause an increase in the allowable emissions of a minor source o r an increase in the actual emissions ( based on the applicab le 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 nonattai nment major NSR
. The following exemptions apply:

• A physical or operational change does not include routine maintenance, repair, or replacement.

• An increase in the hours of operation or in the production rate is not considered an operational change unless such change is prohibited under anyDraft

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Page 49 of 325 permit condition that is enforceable as a practical
matter.

• A change in o wnership at a stationary source
. b. Determining Applicability for Modifications In our proposal we stated that this rule applies to certain modificat ions at minor sources and to minor modifications (not major modifications as defined in 40 CFR 49.167 and in 40 CFR 52.21) at major sources , and that t o be a modification, the change must cause an increase in allowable emissions at your

source. At proposa l, w e also asked for comments as to whether minor sources in Indian country should be allowed to take credit f or concurrent emissions reductions that would result from a proposed modification under the concept commonly known as “project netting .” 15
Severa l commenters support ed our proposal to allow “project netting” in the minor NSR program for determining whether a proposed project qualifies as a modification. However , w e are not finalizing the “project netting” concept at this time to be consistent with our position in the major NSR program
. In a January 15, 2009 (74 FR 2376) final rule titled: “ Prevention of

15 As proposed, “project netting” means that both increases and decreases in allowable emissions are summed when determining the tota l emission increase that would result from a proposed modification. Comment [E2]: Same comment; “legal” not “practical.”Draft

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Page 50 of 325 Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation and Project Netting , ” we stated that we were not taking a ction at that time on the September 14, 2006 , proposed rule that would have allow ed project netting for major sources. U ntil we decide on whether and how to proceed with project netting, nothing in the September 14, 2006 , proposed amendments on project ne tting or the August 21, 2006 , Tribal NSR rules proposal should be taken as establishing any change in the Agency’s interpretation of its current rules nor as establishing any new rules for project netting for either minor or major sources.
T o determine if your proposed physical or operational change is subject to the minor NSR program , you must first determine whether the change is subject to the applicable major NSR program ( i.e
. , 40 CFR part 51 , Appendix S or 40 CFR 52.21 for nonattainment and attainment areas, respectively). For physical or operational changes at your existing major source, you would determine whether the modification qualifies as a major modification using the procedures in the applicable major NSR pr ogram ( i.e. , the actual

- to

– projected

- actual applicability
test )
. As discussed in the previous section, under this final rule, i f the change does not qualify as a major modification under that test, it is considered a minor modification if theDraft

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Page 51 of 325 emissions increase from the actual

- to

- projected

- ac tual test is equal to or greater 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 modi fication.
For a physical or operational change at your existing m inor

source , you will first determine if the change qualifies as a major stationary source by itself ( e. g. , when a source owner adds one or more large e missions units to his minor source )

u sing the provisions of th e 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.
F or modifications at existing minor sources that do not qualify as major sources by themselves , the total increase in allowab le emissions resulting from the proposed change at your

source , including fugitive emissions to the extent they are quantifiable, only if the stationary source belongs to one of source categories listed pursuant to section 302(j) of the Act, would be the sum of the following:

• For each new emissions unit that is to be added, the emissions increase would be the potential to emit of the un it.

• For each emissions unit with an allowable emissionsDraft

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Page 52 of 325 limit that is to be cha nged 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 emiss ions increase would be the allowable emissions of the unit after the change or replacement 16 minus the potential to emit prior to the change or replacement
. 17 However, this may not be a negative value. If the allowable emissions of an emissions unit would be reduced as a

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). T he post

- change allowable emis sion s 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 appli cability ). 17 It is necessary to use potential to emit since these emissions units will not have an allowable emissions limit prior to the change.Draft

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Page 53 of 325 result of the change or replacement, use zero in the calculation. If the total increase in allowable emissions res ulting from your proposed modification at your minor source c ause s an increase in allowable emissions for one or more regulate d 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).
I f the total allowable emissions increase from your modification is less than t he corresponding minor NSR threshold listed in Table 1 , the modification is not subject to preconstruction permitting under the 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
. 3. What a re the m inor NSR t hresholds? As proposed, the “minor NSR thresholds” establish cutoff levels for which sources with emissions lower than the thresholds would typically be exempt from the minor NSR rules ( s ee Table 1). We believe that this approach is appro priate inDraft

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Page 54 of 325 Indian country because new sources and modifications with emissions below the thresholds are usually inconsequential to attainment and maintenance of the NAAQS ; thus they assure that the NAAQS are attained and maintained, and many minor NSR
programs in surround ing states include such thresholds
. Therefore, we believe that the minor source thresholds will allow us to begin leveling the playing field with the surrounding state programs and the minor NSR thresholds will result in a more cos t

- effective program by reducing the burden

on sou rces and reviewing authorities. Comment [E3]: This may not be true where an area is on the cusp between attainment and nonattainment. Suggestion: change “new sources and modifications” to just “sources” which is consistent with language on p. 57.Draft

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Page 55 of 325 Table 1. Minor NSR Thresholds a

Regulated NSR pollutant Minor NSR thresholds for nonattainment

areas (tpy) Minor NSR thresholds for attainment areas (tpy) Car bon monoxide (CO)
............. 5 10 Nitrogen oxides (NO x )
............ 5 b 10 Sulfur dioxide (SO 2 )
............. 5 10 Volatile Organic Compounds (VOC)
. 2 b 5 PM ............................... 5 10 PM 10 ............................. 1 5 PM 2.5 ............................. 0.6 3 Lead
............................. 0.1 0.1 Fluorides
........................ NA 1 Sulfuric acid mist
............... NA 2 Hydrogen sulfide (H 2 S)
........... NA 2 Total redu ced sulfur (including H 2 S)
........................... NA 2 Reduced sulfur compounds (including H 2 S)
................ 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 . Therefore,Draft

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Page 56 of 325 these numbers were changed from the proposal. Various commenters support ed the developme nt of minor NSR thresholds and no comments specifically opposed the minor NSR thresholds
. Nevertheless, some commenters wanted us to finalize less stringent thresholds, especially for VOC and CO , while a few commenters expressed concern that the source di stribution analysis that we used to support the proposed thresholds did not accurately reflect the number of sources currently in existence in Indian country. One commenter also wanted us to finalize more stringent thresholds for minor modifications.
A f ter consideration of comments and further evaluation , we are finalizing the minor NS R thresholds as proposed, except for the NO x and VOC thresholds in extreme ozone nonattainment areas.
W e are amending the proposed “0” tpy NO x and VOC thresholds for the m inor 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 f or NO x and VOC in extreme nonattainment areas as 5 and 2 tpy respectively. We also want to clarify, as one comm enter suggested, that the PM 2.5 th reshold applies to direct PM 2.5 emissions, and does not represent theDraft

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Page 57 of 325 contribution of its precursors ( e.g. , SO 2 or NO x ). Furthermore, we continue to believe that the sources with emissions below the thresholds will be inconsequential to attainment o r maintenance of the NAAQS becaus e the national source distribution analysis in the proposal (71 FR 48702) applied to the national source distribution at the time (sources inside and outside of Indian country) and not only to estimates of the possible number of existing sources in Indian country. For each pollutant, we found that only around 1 percent (or less) of total emissions would be exempt from review under the minor NSR program. At the same time, the thresholds would promote a n effective balance between environmental protection

an d 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. Therefore, w e believe that the thresholds we are finalizing are neither the most stringent nor the least stringent of the levels found in existing state minor NSR rules. These threshold levels represent a reasonable balance between environmental protection and economic growth, since we did not want them to be so high that they were not environm entally protective or so low that they ensured environmental protection at the cost of discouraging economic growth. Nevertheless, to address anyDraft

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Page 58 of 325 concerns about the stringency o f the thresholds, we will evaluate the i nformation we collect as part of the r egistration provisions for minor sources we are finalizing under this rule ( see section IV.F of this preamble for more information) and will consider changing the minor NSR thresholds as appropriate 18

. 4. What e missions u nits and a ctivities at s tationary s ourc es

a re e xempt from this rule ?
C ertain emissions units and activities at stationary sources either do not emit regulated NSR pollutants to the ambient air or emit these pollutants in negligible amounts. Therefore, we proposed a list of emissions units and activities at stationary sources that would be exempt from the requirements of this minor NSR program. As described in the proposal’s preamble, t his list included: 1. Air

- conditioning units used for comfort that are not subject to applicable requirements und er title VI of the Act and do not exhaust air pollutants into the ambient air from any manufacturing or other industrial
processes ; 2. Ventilating units used for comfort that do not exhaust

18 We might also consider proposing thresholds for greenhouse gases and in accordance with the provisions und er the rule titled: “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514).Draft

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Page 59 of 325 air pollutants into the ambient air from any manufacturing or other i ndustrial process ; 3. Heating units used for comfort that do not exhaust air pollutants into the ambient air from any manufacturing or other industrial process ; 4. Noncommercial food preparation ; 5. Consumer use of office equipment and products ; 6. Janitorial services and consumer use of janitorial products ; 7. Internal combustion engines used for landscaping
purposes ; 8. Bench scale laboratory activities, except for laboratory fume hoods and vents ; and 9. Any emissions unit or activity that does not have the potential to emit a regulated NSR pollutant or HAP , so long as that emissions unit or activity is not part of a process unit that emits or has the potential to emit a regulated NSR pollutant or HAP
. W e received numerous comments on the proposed list of exempted emissions u nits and activities. These commenters note d that state and local agencies often exempt many more types of emissions unit s and activities, and suggest ed that we should expand the exemptions included in the final minor NSR rule
.Draft

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Page 60 of 325 Some of these commenters al so argue d 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 an d finalize a separate rule to seek public comment on the issue of whether additional units or activities should be exempted from the min or NSR program
. Furthermore, we are finalizing an amended list of exempted units and activities by not exempting air

- conditioning units for comfort a nd heating units for comfort until we can study the implications of the new rules for greenhouse gases ( s ee 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 t he proposed list of exemptions (a ny emissions

u nit 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 w e
agree w ith the commenter th at argued that this exemption can be confusing and redundant
.Draft

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Page 61 of 325 Finally, we would like to clarify that the list of exemptions included in the proposal ’s regulatory text included mobile s ources , although mobile sources were inadvertently left out of the exempted units and activities discussion in the proposal’s preamble. We have decided to keep mobile sources in the list of exempted units and activities in this final rule because w e continue to believe that it is not appropriate to inclu de 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. Therefore, the units and activities at stationary sources that

are exempt from t his rule are being finalized under 40 CFR 49.153(c) and a re limited to the following: 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.Draft

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Page 62 of 325 7. Bench scale laboratory activities, except for laboratory fume hoods and vents.
B. Site

- Specific Permits 1. What a re the r equirements for p ermit a pplications?
W e proposed that as the owner or operator of a proposed new minor source or a proposed modification that is subj ect to the rule, y ou must submit a complete application to the reviewing authority requesting a minor NSR permit specific to your source (unless you are seek ing a “general permit” ). In addition to basic information identifying and describing your source, your application m ust 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 (exc luding the exempt emissions units and activities listed in proposed 40 CFR 49.153(c)). We also proposed that your application must also document the increase in emissions of regulated NSR pollutants that will result from your new source or modification s o 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 supportingDraft

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Page 63 of 325 document ation. For any modified or replacement unit that you list, you must provide the allowable emissions of each regulated NSR pollutant in tpy before and after the modification or replacement, along with supporting documentation. For emissions units that do not have an established allowable emissions level prior to the modification, you must report the pre - change PTE. For the post

- change allowable emissions for these units, you may report the unrestricted post

- change PTE or may propose a lower level of allow able 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, we sought comment on whether 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. Furthermore, we prop osed that y ou may include in your application proposed emission limitations for the listed emissions units. If you do, you must account for these limitations in your calculations for post

- construction PTE and/or allowable emissions. The application also must identify and describe any existing air pollution control equipment andDraft

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Page 64 of 325 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 affec ted emissions units are subject.
W e also proposed that y ou may request that the reviewing authority establish an annual minor source plantwide applicability limitation (minor source PAL) for one or more of the regulated NSR pollutants emitted by your new or existing minor stationary source. A minor source PAL is a source

- wide limitation on allowable emissions of a regulated NSR pollutant, expressed in tpy, that is enforceable as a practical matter. No commenters express ed concern with the proposed perm it applications requirements described above except for the concept of plantwide applicability limi tations. 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. F urther, 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 express ed support for minor source PALs , with one of these commenters believing that it is very important that aspects of permitting programs at theDraft

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Page 65 of 325 f ederal and s tate level outside of Indian country that provide operator flexibilit y, 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 applicat ion requirements mainly as proposed , with only two exceptions
. See final 40 CFR 49.154. First, w e are not finalizing the minor source PAL provision s at this time because

w e agree with the opposing commenter that stated , f or example, that fi nalizing the PAL provisions without more specific criteria, including provi sions for extensive monitoring, recordkeeping and reporting requirements , 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 emissio ns 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 i f 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 pe rmit for that source category instead of a site

- specific permit
. The permit application requirements for a particular general permitDraft

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Page 66 of 325 will be specified in that genera l permit. General permits , including the comments w e received about them , are discussed further in section IV. C of this preamble. 2. What t echnical r eviews m ust the r eviewing a uthority

c onduct? After determining that your application is complet e ( see secti on IV.B .4 for more information about t his process), we proposed that the reviewing authority must do 2 types of technical reviews

– a control technology review and a review of the probable impact on air quality of the proposed new source or modification. These reviews are discussed further in the following subsections.

a. Control Technology Review As required under section 110(a)(2)(C) of the Act, we proposed that this minor NSR permitting program for Indian
countr y is primarily designed to assure that the NA AQS are achieved, and to prohibit any stationary source from emitting any air pollutant in amounts that would contribute to nonattainment or interfere with maintenance of the NAAQS. Therefore, w ith this single program applicable to all areas of Indian cou ntry, 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 inDraft

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Page 67 of 325 Indian country
. In addition, we proposed that b y control technology, we mea n 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 techn ology used by similar sources in surrounding areas, anticipated economic growth in the area, and cost

- effective control alternatives. At a minimum, the reviewing authority must require control technology that assures that the NAAQS are achieved and that e ach 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
t he 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 mod ifications 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, we proposed that b ased on the resul ts of theDraft

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Page 68 of 325 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 emiss ions unit at your source. For a new minor source that is subject to this rule, we proposed that the case

- by

- case control technology review would be conducted for all emissions units (except the exempt emissions units and activities discussed in section IV. A.4 and listed in the final 40 CFR 49.153(c)) that emit or have the potential to emit the pollutant (s) for which the source is subject to this rule. For a modification, such control technology review would apply only to the affected emissions unit(s) at y our source . At proposal, we specifically sought comment on the proposed

case - by

- case control technology review for all new and modified sources subject to this minor NSR program. We also asked for comments on whether the program should have a control tec hnology requirement at all because sect ion 110(a)(2)(C) of the ActDraft

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Page 69 of 325 requires a minor NSR program that assures that the NAAQS are achieved, but does not mandate that the program include a control technology requirement. Therefore, we sought comment on wheth er 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 support ed the case

- by

- case control technol ogy review . These commenters believe d that a case

- by

case control technology review would allow and promote econo mic growth and development that is tailored to the needs in Indian country , while o ne of these commenter s added that having no capacity to imp ose controls on minor sources would seem to defeat the purpose of a permitting p rocess 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. Fu rthermore, several commenters supp ort ed 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 n ot provide the needed flexibility to adapt regulation to the needs of individual reservations or to take into account the benefit of a levelDraft

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Page 70 of 325 playing field with the surrounding jurisdictions. On the other hand, other commenters oppose d any control tech nology requirement . These commenters believe d that a federal program is likely to be applied inconsistently, resulting in a competitive disadvantage for source s located in certain areas; EPA has no authority to impose a control technology requirement unde r 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 general ly so complex, time

- consuming, and expensive, that most sources will design their projects to remain below the applicable PSD thresholds, even if that means installing more efficient controls, switching to cleaner fuel, or restricting production or operati ng hours).
W e disagree with c ommenters 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 requir ing control technologies when necessary will ensure the NAAQS are protected as established in this section. Furthermore, section 110(a)(2)(c) does not preclude us from requiring additional provisions that will further the goal ofDraft

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Page 71 of 325 NAAQS protection and t he 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 imp lement 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 count ry 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 sub stantially 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 pro tect 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 econ omic feasibility of the control technology as well as the control technologies inDraft

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Page 72 of 325 use in the surrounding states . Therefore, we are finalizing the case

- by

- case control technology r eview requirements as proposed. T he final rules require your reviewing a uthority to perform a control technology review on a case

- by

- case basis when issuing a site

- specific minor NSR perm it
. See the final 40 CFR 49.154(c). For general permits, the control technology review w ill be performed at the time when the general permi t is developed . More details on general permits are provided in section IV.C of this preamble. b. Air Quality Impacts Analysis (AQIA) As discussed in the proposal , the primary purpose of a minor NSR program under the Act is to assure that the NAAQ S are

ac hieved. However, we do not believe that most individual minor sources are likely to be consequential for attainment and maintenance of the NAAQS . Thus, we proposed that typically for a new or modified minor source permit application, your reviewing autho rity will not require an Air Quality I mpa cts Analysis (AQIA) . In rare instances , 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 violat ion, 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 thatDraft

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Page 73 of 325 will result from your new source or modification. If the AQIA demonstrates that the con struction 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 support ed requiring an AQIA and added that th ey would like us to develop guidance on when and how an AQIA analysis should be performed. On the other hand, several commenters believe d that AQIAs would be excessive, very costly, and time consuming for small businesses. Based on the comments received , w e are finalizing the AQIA provisions as proposed at 40 CFR 49
. 154(d). W e 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 min or 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, t o aid the reviewing authorities in the determina tion 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 that will consider the suggestions presented by the se
commenters . W e are also eliminating the language i n theDraft

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Page 74 of 325 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 a re the p ermit c ontent r equirements? The requirements for permits issued pursuant to site

specific preconstruction review were proposed under 40 CFR 49.155. T he typical permit information requirements proposed at 49.155(a)(1) include the following:

• 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

a ssociated emissions limitations.

• Monitoring, recordkeeping, reporting, and testing requirements to assure compliance with the emission limitations. In addition, we proposed that the permit should include a numb er of standard permit terms. These include em ission 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 theDraft

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Page 75 of 325 event of a challenge to a portion of the permit), a requirem ent 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. Emission s Limitations
We proposed under 40 CFR 49.155(a)(2) that your permit must include 2 types of emission limitations:

• The emission s limitations for each affected emissions unit determined by the reviewing authority based on the case - by

- case technology review discussed previously in section IV.B.2 of this preamble.

• Limits on annual allowable emissions in tpy.
E mission limitation , as proposed under 40 CFR 49.152, means a requirement established by the reviewing authority that lim its 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 stand ard, work practice, operational standard or pollution prevention technique. Furthermore, we proposed under 40 CFR 49.152 that allowable emissions means “allowableDraft

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Page 76 of 325 emissions” as defined in 40 CFR 52.21(b)(16), except that the allowable emissions for any em issions 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 l ater change at your source will result in an increase in allowable emissions subject to permitting under this program. We did not specifically receive comments on these two types of emissions limitations that must be included in your permit
. Therefore we are finalizing these emissions limitations at 40 CFR 49.155(a)(2) as proposed. Additionally , we would like to clarify, as some commenters requested, a couple of terms or conditions
. One commenter interpreted the proposal to only require annual emission s limit s 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 acc ompanied 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
p ermits, but also short

- term limits as necessary . Short

- termDraft

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Page 77 of 325 emission l imits 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 o f 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 tim es”, but not that the emission limitation has to be accompanied by a CEMS
. There are various ways to monitor compliance with limitations that apply on a continuous basis as we mention in the next section. b. Monitoring, Recordkeeping, and Reporting As noted in the proposal preamble (71 FR 48715), sections 110(a)(2)(A) and (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 timetables for compliance. ” Section 110(a)(2)(F) additionally requires that a permitting program may require the

“ installation, maintenance, and replacement of equipment, and the implementation of other necessary steps by owners andDraft

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Page 78 of 325 operators of stationary sources to monitor emissions from such

sources , ” as well as “ periodic reports on the nature and amounts of emissions and emission

- related data from such sources. ” Monitoring requirements
. As proposed, t he perm it 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 qua lity 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. Recordkeeping requirements
. As proposed, t he permit mus t include recordkeeping requirements sufficient to assure compliance with the enforceable emission limitations in your permit. Records of required monitoring information must include all calculations using emissions factors, all stack tests or sampling in formation including date and time of test or sampling, the name of the company or entity that performed theDraft

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Page 79 of 325 analyses, the analytical techniques or methods used, the results of such analyses and the operating conditions existing at the time of sampling or m easurement. 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. Reporting requirements
. As proposed, y ou must provide annual monitoring reports showing whether you have complied with your permit emission limitations. You also must provide prompt reports of deviations from per mit 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 r elation to the degree and type of deviation likely to occur. We did not receive any comments regarding the monitoring and recordkee ping requirements, but several commenters commented on the reporting requirements. Some of these commenters specifically a ssert ed 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 toDraft

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Page 80 of 325 require semiannua l monitoring reports and in accordance with the title V reporting schedul e. Other commenters recommend ed that for reporting deviations the word “prompt ” should be defined within the regulation. We disagree with those commenters that state that the
repor ting requirements are too burdensome because, as stated previously and 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 “e nforceable em ission 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 replacemen t 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 s ources. Therefore, we believe that annual reporting requirements will ensure that sources are complying with their annual emissions limits as well as any other limits determined by the reviewing authority
. However , we do not believe that requiring mo nitoringDraft

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Page 81 of 325 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 t o 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 emis sions 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 consider the provisions of t he state and/or the air quality control districts surrounding the area of Indian country where the source is locating as well as t echnic al and economical feasibility to define this term.
T herefore, we are finalizing the monitoring, recordkeeping and reporting requirements as proposed and these requirementsDraft

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Page 82 of 325 will be included in each permit as necessary to assure compliance with the source’s emission limitations. The monitoring requirements a re being finalized in 40 CFR 49.155(a)(3), the recordkeeping requirements under 49.155(a)(4), and the reporting requirements under 40 CFR 49.155(a)(5).

c. Othe r P ermit C ontent R equirements As we stated previously, we proposed other permit requirements . Howev er, we did not re ceive comments about these requirements except for the inspection and entry provisions requiring that you allow representatives of the reviewing authority to enter and inspect your source. Specifically, we proposed under 40 CFR 49.155(a)( 7)(vii) 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 requ ired 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 fa cilities, equipmentDraft

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Page 83 of 325 (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 th e permit or other applicable requirements; and

• Record any inspection by use of written, electronic, magnetic and photographic media. Nevertheless, a few comment er s wanted us to add a provision under to 40 CFR 49.155 (a) (7)(vii) to clarify that the reviewing authority “must comply with the safety requirements of the permittee” as the reviewing authority representative enters the source premises for any inspection. We believe that this language is appropriate for the inspection provisions w e are finalizing wi th this rule and therefore we are including i nspection and entry provisions that require the representative of the reviewing authority to comply with the safety requirements of the permittee
. See final 40 CFR 49.155(a)(7)( v ii)
. 4. What a re the p ermit i ssuan ce p rocedures, p ermit t erm, and
p ublic p articipation r equirements?

a. Permit Issuance Process We proposed that w ithin 45 days after receiving your permitDraft

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Page 84 of 325 application, your reviewing authority must either determine that the permit application is complete enoug h to commence a technical review or request additional information. If you do not receive a request for additional information or a notice of complete application within 50 days of your permitting authority’s receipt of your application, your applica tion would be deemed complete. Once the application is complete, your reviewing authority develops a draft permit and provides a public notice seeking comments on the draft permit for a 30

- day period. After considering all timely, relevant comments, if
your r eviewing authority determines that your new source or modification meet s 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 received several comments regarding this issue. These commenters believe d that the proposed permit issuance process is too lengthy and/or too uncertain for minor sources since they argue that state minor NSR programs are bound by shorter and more def inite time lines. In addition , a few commenters believe d 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, lostDraft

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Page 85 of 325 business opportunities, a dela y in the project, and even cancellation of the project.
B ased on the comments received, we believe that finalizing

a definite timeframe for the overall minor source permit issuance process will be appropriate. This timeframe will provide regulatory certai nty for the regulated communi ty and the public , as well as time for the regulated community and the reviewing authority to plan for the permit issuance process. Therefore, we have finalized a permit issuance process timeframe tha t varies depending on the type of source being regulated under the minor NSR program and that is described as follows:

• For minor sources seeking a site

- specific permit, the permit issuance process timeframe includes a period of 45 days for the application completeness review a s we ll as a 30

- day public comment period
. Any site

- specific permit will be granted or denied no later than 1 35 days after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.

• Fo r minor modifications at major sources seeking coverage under a site

- specific permit, the permit issuance process timeframe includes a period of 60 days for the application completeness review as well as a 30

- day publicDraft

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Page 86 of 325 comment period. Any site

- specific p ermit 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 (disc ussed in section IV.C of this preamble), the permit issuance process timeframe includes a period of 45 days for the application completeness review as well as a 30

- day public comment period. Any general permit will be granted or denied no later than 90 da ys after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided. We believe that since the general permit requirements have been public noticed previously, a shorter permit issua nce process is warranted.

• For synthetic minor sources (discussed in section IV.D of this preamble) , the completeness review period will continue to be, as proposed, 60 days long. For any such
sources, a permit will be granted or denied no later than 1
y ear after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided as well.Draft

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Page 87 of 325 In addition , we would like to clarify that we are amending our completeness review procedures, as sugg ested 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 that this provision can be con fusing
. Therefore, we have amended our regulatory language to state that the completeness determination or request for additional information for site

- specific and general permits should be postmarked within 45 days of receipt of the permit application by the reviewing authority (or 60 days for synthetic minor source permit s and minor modifications at major sources )
. If you do not receive a request for additional information or a notice of complete application postmarked within 45 days of receipt of the p ermit application by the reviewing authority for a site

- specific or general permit (or 60 days for synthetic minor source permit s and minor modifications at major sources) , your application would be deemed complete. b. Permit Term We proposed that a precons truction permit does not expire. Your permit remains valid as long as you commence construction on your project within 18 months after the effective date of the permit, you do not discontinue construction for a period of 18Draft

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Page 88 of 325 months or more, and you complet e construction in a reasonable time. We also proposed that y our reviewing authority may extend the 1 8

- month period where justified and that t he 18

- month limit does not apply to the time period between construction of approved phases of a phased const ructi on 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 . T his c ommenter had concerns about the proposa l preamble language that stated that: “a preconstruction permit does not expire
. ” 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 d iligence by the source . I f 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 t he language we use d 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 .” Theref ore, we have eliminated the proposal preamble language that stated thatDraft

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Page 89 of 325 permits do not expire and we are finalizing the proposed provisions as state d under 40 CFR 49.155(b). In addition, we would like to clarify that permits under th is program would not be revoked at the source’s request when there is a rapid decrease in production, as a few commenters recommend ed
. 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 offic ially shuts down its operation and notifies the reviewing authority about the business closure
.
c. Public Participation Requirements Under 40 CFR 49.157 we s pecifically proposed our public participation requir ements. We proposed that the reviewing authority is required to prepare a draft permit and provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the source, such as the tribal environmental office or a local library. The pub lic notice must provide an opportunity for public comment and a public hearing on the draft permit. The appropriate types of notice may varyDraft

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Page 90 of 325 depending on the proposed project and the area of Indian country that would be affected. We also proposed that i n 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 in areas outside of the area of Indian co untry where the source is located
. In addition, the proposed rule listed optional approaches that the reviewing authority may elect to use to provide public notice as appropriate for a given situation, depending on such factors as the nature and size of y our source, local air quality considerations, and the characteristics of the population in the affected area. The optional methods of notifying the public include d the following:

• Mailing or e

- mailing a copy of the notice to persons on a mailing list devel oped by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.

• Posting the notice on its W eb site.

• Publishing the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a tribal newspaper or newsletter. We do not believe that suchDraft

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Page 91 of 325 a notice is appropriate for every minor source permit application since this would require a heavy resource commitment for the reviewing authority , while not necessarily being as effective as some other measures.

• 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 environmenta l offices, community centers, and other gathering places in the community.

• Other appropriate means of notification. Furthermore, we proposed that t he reviewing authority must provide for a 30

- day public comment period on the draft permit. After considerin g 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 issu ance and the opportunity for appeal are discussed further in the next section of this preamble. Several commenters support ed the proposed public participation requirements stating that they like the proposed mix of mandatory and optional approaches to noti ces, while others suggested that the overall permitting process should be shortened.Draft

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Page 92 of 325 On the other hand, o ther commenters argue d that the proposed public participation requirements are too burdensome, time consuming, and will be open to abuse by persons w ho oppose any sort of development including development from very small projects . Therefore, some of these opposing commenters
sugge st ed adding a de minimis threshold below which sources would be exempt from the public notice and participation requirement s in order to match the level of public participation to the environmenta l significance of the project . In addition, one commenter believe d that we should strengthen the proposed public participation requirements by requiring n otices to be sent by mail or email to all persons requesting such notice, by requiring notices to be published in a t ribal newspaper or newsletter and by requiring other means of publication customa ry to th e tribe, where possible. They also wanted u s to ho ld a public hearing wheneve r one is requested. After careful consideration of these comments, w e are finalizing our public participation requirements for site

specific permits as proposed with the clarification that the appropriate types of notice will take into consideration any

se asonal activities that may conflict with the public participation of the local community ( e.g. , subsistence hunting and fishing or other seasonal cultural practices) . W e believeDraft

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Page 93 of 325 the se requirements are consistent with the current public availability of inf ormation requirements under our existing regulations at 40 CFR 51.161 and they add optional public noticing and p articipation provisions that will enhance the permitting process. All the requirements will ensure that the public is informed about the permi tting actions occurring in Indian country and will also ensure that the particular public noticing needs of Indian country are considered
. However, we disagree with those commenters that believe that these requirements should be strengthened or match ed to the environmental significance of the project
. 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 we continue to believe that a 30

- day public comment period on a permitting action, as in our existing regulations, is an appropriate timeframe for this
purpose . In addition and as we stated previously, 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 requireme nts are more detailed than theDraft

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Page 94 of 325 requirements in our existing regulations under 40 CFR 51.161 and do not need to be strengthened even further at this time. Nevertheless, to address any concerns about the length of the entire permit issuance process, w e are finalizin g definite time period s for the overall permitting process depending on source type . See section IV.B.4.a of this preamble for more details about the permit issuance process timeframe. Furthermore, we disagree with the commenter that would like us to always hold a public hearing if one is requested. Therefore, w e 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 adm inistrative and economically prudent to ask a small number of commenters to submit the ir comments in writing. We also continue to believe that the reviewing authority should be able to hold a public hearing at its own discretion, as proposed. Hence, after consideration of all comments, we are finalizing the public noticing provisions for site

- specific permits as proposed at 40 CFR 49.157
. 5. What a re the p rovisions for f inal a ction on a p ermit,
p ermit r eopenings, a dministrative p ermit r evisions, and

a dminist rative and j udicial r eview p rocedures?Draft

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Page 95 of 325 a. Final Action on a Permit We proposed under 40 CFR 49.159(a) that a fter 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 per mit is denied, provide the reasons for the denial. 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. Depending on the circumstances of your permit, the reviewing authority may elect to provide notice directly to the individuals who commente d on the draft permit and/or use any of the other methods of public no tice discussed in the proposal preamble
. The reviewing authority’s final decision on your permit must be based on an administrative record, and we proposed r equirements on what must be in that record under 40 CFR 49.159(b) and (c)
. For example, the records must be kept by the reviewing authority for not less than 5 years. In addition, the administrative record must include the application and any supporting data furnished by the applic ant and all comments received during the public comment period, including any extension or reopening.Draft

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Page 96 of 325 A few commenters supported the proposed provisions for providing notice of final permit actions. However, the se 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 believe that numerous inconsistencies will occur if the agency uses subjective discretion based upon “depending upon the circumstances of yo ur permit.” On the other hand, a few commenters indicated that the proposed notification requirements are excessive . They believe d that t he proposed requirements are more stringent than the requirements for major sources under the PSD program and/or the part 71 program, which they believe d is unwarranted because the impact for minor sources on public health and/or the environment would b e much lower than major sources. Furthermore, some of these commenters argued that EPA may find the proposed requireme nts burdensome and expensive unless the method of notice is limited to something such as publication on EPA’s website. Based on the comments received, we agree that , for site

specific permits and general permits, making a copy of the permit available at all of the locations where the draf t permit was made available might be too burdensome for the reviewi ngDraft

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Page 97 of 325 authorities. Accordingly , we are amending 40 CFR 49.159 (a) to require a copy of the final letter of approval or denial to be made available at all of the locations where the draft permit was made available for synthetic minor sources and minor modifications at major sources , but we are requiring the reviewing authority to only elect one or more of the methods for public noticing under 40 CFR 49.157(b)(1 )(ii) for site

- specific permits and general permits.
R egard ing the administrative record for a permit decisi on, several commenters commented on our proposed provisions
. These commenters agree d with the provision of keeping records for not less than 5 yea rs, while one commenter specifically asked us to require the reviewing authority to retain permit records for the life of the sour ce . W e believe that keeping permit records for the life of the source will be too burdensome, especially when we do not requ ire permit records for major sources under the NSR program to be kept for more than 5 years either. Therefore, we are finalizing these provisions as proposed under 40 CFR 49.159 (b) and (c). b. Permit Reopenings We proposed provisions under 40 CFR 49.159(e) to address reopening of a permit if it contains a material mistake or fails to assure compliance with the applicable requirements. ForDraft

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Page 98 of 325 example, we proposed that any person (including the permittee) may petition the reviewing authority to reopen a permit for cause, and the reviewing authority ma y commence a permit reopening on its own initiative. The reviewing authority may not reopen a permit for cause unless it contains a material mistake or fails to assure compliance with applicable requirements.
A few commenters addressed this issue. These c omm enters argued that the proposal was more stringent than the reopening provisions in the major source permitt ing programs, which they contend i s unwarranted for minor sources , and that this provision is incons isten t with state minor NSR programs. In addition, these commenters believe that allowing anyone

– regardless of motive or lack of factual support

– to petition to reopen permits issued to sources of insignificant emissions is a

concern. We agree, as some commenters suggested, that the provisions we proposed might open potential avenues for any person, even if uninformed or maliciously intentioned, to harass and disrupt permitting operations. In addition, we did not intend to excessively restrict the reasons for why a permit should be reopened by us, as the reviewing authority , by stating in the proposal that the reviewing authority may not reopen a permitDraft

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Page 99 of 325 for a cause unless it contains a material mistake or fails to assure compliance with the applicab le requirements. We do agree that the reasons for reopening the permit should not be limited to the permit containing a material mistake or failing to assure compliance with applicable requirements
. Therefore, we are amending the provision s we proposed t o allow the reviewing authority to reopen a permit for cause, including situations such as if it contains a material mistake or if it fails to assure compliance with the applicable requirements. However, except for those permit reopenings that do not incr ease 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 the public participation requirements at 40 CFR 49.157(b)(1)(ii)
. These provisions are being finalized under 40 CFR 49.159(e).

c. Administrative Permit Revisions Under 40 CFR 49.159(f), we proposed provisions for adminis trative permit revisions to allow minor changes in the permit without being subject to the permit application, issuance, public participation, or administrative and judicial review requirements of the program. For example , anDraft

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Page 100 of 325 administrative permit revision is a permit revision that could make a change such as: (1) correcting a typographical error, (2) requiring more frequent monitoring or reporting by the permittee, or (3) identifying a change in the name, address, or phone number of any person identified in the permit
. ( See 71 FR 48743 for mor e information on the proposed list of administrative permit revisions
. ) In addition, 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. We believe that this fact will serve to ensure that the types of changes that could significantly alter the dispersion characteristics of air pollutants emitted by your source will be brought to the attention of your reviewing authority. Thus, the reviewing authority will be in the position to evaluate whether the change has the potential to increase ambient concentrations outside t he boundaries of your source, and i f so, the reviewing authority can require me asures to mitigate any unacceptable air quality impacts ( i.e. , to protect the NAAQS) as part of the permit review process. A few commenters supported our proposed administrative permit revision provisions . They believe d these provisions will allow a s ource to make minor changes without being subject toDraft

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Page 101 of 325 the overall permit process. However, o ne commenter opposed the proposed administ rative permit revision provisions.
S pecifically, the commenter opposed the provision to allow increases in allowable emiss ion limits through an administrative permit revisi on because, 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 commen ters 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 f requent monitoring and reporting requirements and/or changes in ownership should not go through the overall permitting process. We understand, however, that there might be particular concerns with the provision at 40 CFR 49.159(f)(v) where an administrati ve 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 increasesDraft

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Page 102 of 325 from the source will not trigger the minor NSR requirements. We believe that since thi s type of change does not trigger the major or the minor NSR thresholds we do not need to subject the source owner to the normal public notice and comment process, but we do believe that we need to account for these changes in emissions in the permit to kn ow the source’s current allowable emissions and to ensure that the source is complying with the applicable requirements . In other words, an administrative permit revision can be used when the increase in an unit’s annual allowable emissions limit for a re gulated NSR pollutant is not subject to major or minor NSR and the increase in emissions is not part of an enforceable permit condition
. If the limit is enforceable as a practical matter , these permit revisions shall be carried out in accordance to the pu blic participation requirements of 40 CFR 49.157. d. Administrative and Judicial Review Procedures We proposed and took comment on two options for reviewing final permit decisions by reviewing authorities under 40 CFR 49.159(d) . In proposed Option 1, review of minor NSR permits would be similar to review of major PSD permits issued under 40 CFR 52.21. To challenge the terms of your permit, you or another party would have to file a petition for review with EPA’s Environmental Appeals Board (EAB). Decisions b y the EABDraft

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Page 103 of 325 could be appealed to the Federal Court of Appeals for the tribal area. Alternatively, in proposed Option 2, the reviewing authority’s initial permit could be appealed directly to the appropriate Federal Court of Appeals without a requirement to appeal to the EAB first. Several commenters supported Option 1, filing a petition for review with our Environmental Appeals Board. These commenters generally preferred this option because they believe that the EAB has greater environmental expertise and is likely to resolve issues more quickly. These commenters also argue that citizen appeals to the EAB represent an easier threshold to meet for the layperson that is aggrieved by a final agency action. They believe i t 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 a llowing 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. The se latter
commenters believe this option will allow f or development in tribal lands while encouraging participation from environmentalDraft

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Page 104 of 325 experts should an appeal occur.
O ther commenters opposed Option 1. These commenters stated that delaying final permit effectiveness for 30 days after issuance will compoun d an already lengthy permitting process. They also argue 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 fro m anti

- development stakeholders
. On the other hand, several commenters specifically endorsed Option 2, permit decisions may be appealed directly to the appropriate Federal Court of Appeals without a requirement to appeal to the EAB first . These commenters favor this option because it allow s the source to determine whether to commence construction at its own risk. Some of these commenters al so noted that this option is more consistent with most state minor NSR p rograms and it eliminates an intermedi ate step, the EAB review. These commen ters also argue 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, deleg ation of the NSR program, the rule should allow for tribal administrative and tribal court review prior to going to federal
court.Draft

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Page 105 of 325 Based on the comments received, we agree with those commenters that support the option of filing a petition for permit revie w through the Environmental Appeals Board . We believe, as some commenters stated, that the EAB has greater envi ronmental 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 hir e an attorney to go through the appeals
process. However, we are not allowing permits to become effective immediately upon issuance under the EAB option, as some commenters suggested, because the proposed provisions are based upon the EAB regulations unde r 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 decisio n 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 issua nce. 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 constructDraft

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Page 106 of 325 while the EAB process is pending, beca use w hile a permit is being reviewed by the EAB, it is not effective, and thus it does not authorize construction
. R egard ing the commenter that stated that deleg ated programs should allow for tribal administrative and t ribal court review prior to going t o federal court, we disagree. Th is is because under a delegated federal program , any federal requirement administered by a delegated t ribe is subject to EPA enforcement and EPA appeal procedures under federal law. Therefore , we are finalizing the adminis trative and judicial review procedure s for Option 1 as proposed at 40 CFR 49.159(d).
C. General Permits 1. What Is a “General Permit ? ” We proposed that a “general permit” is a preconstruction permit that may be applied to a number of similar emissions units or s tationary sources. The purpose of a general permit is to simplify the permit application and issuance process for similar facilities so that a reviewing authority’s limited resources need not be expended for site

- specific permit development for such facil ities. 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 issuingDraft

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Page 107 of 325 permits and provide a quicker and s impler alternativ e mechanism for permitting minor sources than the site

- specific permitting process discussed previously. We received strong support for the development of general permits. These commenters believe the development of general permits for so urces of similar operation and emissions will simplify the permit application and issuance process. On the other hand, o ne commenter u rged EPA to issue guidance for particular source categories rather tha n use general permits to streamline permitting . T h e commenter believes that developing guidance documents is a better method. We agree with those commenters that support the development of general permits because we believe, as some commenters suggested, that general permits will simplify the permit appli cation and 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 disagre e with the commenter that preferred guidance rather than general permits for the minor N SR 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 f or certain source categories/units, especiallyDraft

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Page 108 of 325 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
. 2. What i s the p rocess for i ssuing g eneral p ermits? Under 40 CFR 49.156(b) , we proposed that the revi ewing authority may issue a general permit for a category of emissions units or sources that are similar in nature, have substantial ly similar emissi ons, 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. We also proposed that a gener al 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 CF R 49.159. Issuance of a general permit, as proposed, is consider ed final permit 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 generalDraft

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Page 109 of 325 permit issua nce procedures under 49.156(b). Consequently, we are finalizing the provision under 49.156(b) as proposed. 3. For w hat c ategories w ill g e neral permits b e i ssued? We proposed, under 40 CFR 49.156(c) , that 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. We al so proposed that g eneral 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, i n setting criteria for sources to be covered by general permits, we propose d that 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 un its 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 orDraft

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Page 110 of 325 substantially similar permit requirements govern ing 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 th at general permits should be adopted for categories of similar s ources and emissions units, and developed before the minor NSR program is adopted on Indian lands. These commenters also added that EPA needs to define further the criteria for developing gen eral 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, w e 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 jurisdiction in Indian country. We also plan to finalize these general permits, after the opportunity for public notice and comment, using the public noticing procedures under 40 CFR 49.157. Furthermore , w e plan
to update general permits, also after the opportunity of noticeDraft

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Page 111 of 325 and comment under 40 CFR 49.157 , as appropriate to account for advances in control technology or for other pertinent reasons
. However, when we update a general permit, sources operating under the existing general permit will be able to continue to operate under that existing permit until such t ime when the source is modified. We are finalizing these provisions under 40 CFR 49.156(b)(2) and 49.156(c). 4. What a re the p ermit c ontent r equirements f or g eneral
p ermits? We proposed that g eneral 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 th e 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, theDraft

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Page 112 of 325 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. There fore , we are finalizing the general permit content requirements as proposed under 49.156(d). 5. What i s the p rocess that you may use for o btaining c overage under a g eneral p ermit? Under 40 CFR 49.156(e), we proposed that o nce a general permit has been issued for a source category or category of emissions units, you may submit an application to be covered under the general permit if your proposed new minor source or modification qualifies for coverage under that general permit. Your reviewing authority may gra nt or deny your request to construct under a general permit as expeditiously as possible, but it must notify you of this decision within 90 days
. We also proposed that without repeating the public participation procedures required in 40 CFR 49.157, the

re viewing authority may grant or deny your request for approval to construct under a general permit. The reviewing authority must send you a letter approving or disapproving the request to
constr uct under a general permit. This letter is a final permit
act ion for purposes of judicial review ( s ee 40 CFR 49.159) onlyDraft

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Page 113 of 325 for the issue of whether your source qualifies for the general permit. You must post a prominent notice at your source of the letter of approval to construct under the general permit. In addit ion, we proposed that if the reviewing authority has sent a letter approving the general permit for your source, you must comply with all conditions and terms of the general permit. You will be subject to enforcement action for failure to obtain a precons truction permit if you construct the emission 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 perm it. A ny source covered under a letter approving the general per mit may request to be excluded from the general permit by applying for a permit under 40 CFR 49.154. We received a few comments regarding the timeframe in which the reviewing authority must notify you of the final decision on

a general permit application
. These commenters argued that the 90

- day period for the reviewing authority to approve the general permit should be eliminated, or at least reduced to 30 days. Furthermore, o ne of these commenters added that projects should be automatically approved if th e reviewing authority has not responded to the applicant within 30 days. We disagree with those commenters that would like us to make final decisions on general pe rmit applications in less thanDraft

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Page 114 of 325 90 days . In addition, upon further evaluation of these
prov isions , we believe that it will also be appropriate to allow for a 30

- day public comment period when you apply for coverage under a general permit to ensure that the affected community is aware of s ources locating in their area. Therefore, to ensure that your permit applications for general permits are subject to a comprehensive review including a 30

- day public comment period , we have amended the length of the permitting process to a total of 135 days. In other words, any general permit application will b e granted or denied no later than 90 days after the date the application is deemed complete (a 45 day period) and all additional information necessary to make an informed decision has been provided 19

. The completeness review period will be 45 days long and the completeness determination or request for additional information should be postmarked within 45 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 a pplication postmarked within 45 days of receipt of the general permit application by the reviewing

19 While we are providing up to 135 days to enable the issuance of general permits, we encourage the reviewing authorities to expedite the issuance of these permits.Draft

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Page 115 of 325 authority , your application would be deemed complete. This permit issuance process timeframe is less than the site

- specific permits timeframe since the mino r NSR program requirements, including control technology, if any, have already been established during the development of the general permit. Furthermore, we would like to clarify that the public noticing requirements under 49.157 will continue to apply for the development and issuance of a general permit, but not for a minor source applying for coverage under a general permit
. We receive d a few comme nts about the publi c notice requirements and
t hese comment ers indicated that the final permit action noti fication requirements for both site

- specific permit and general permits are excessive. T hese commenters believe that
t he proposed requirements are more stringent than the requirements for major sources under the PSD program and/or the part 71 program, whi ch they believe is unwarranted because the impact for minor sources on public health and/or the environment would b e much lower than major sources. Furthermore, some of these commenters argued that EPA may find the proposed requirements burdensome and exp ensive unless the method of notice is limited to somethin g such as publication on EPA’s W eb site. We agree that public noticing the coverage of an individualDraft

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Page 116 of 325 source under a general permit in the same way as we public notice the development of the general permit will be excessive.
T he provisions in the general permit ha ve already been open for public notice and comment during the development of that gen eral permit and one of the main purposes of the development of general permits is to streamline the perm itting process. However, we continue to believe that provi ding public noticing when a source applies for coverage under a general permit i s important as well as when the final action on the general permit is made. Consequently, we are finalizing provisio ns that will require the reviewing authority to elect one or more of the methods for public noticing under 40 CFR 49.157(b)(1)(ii) for these purpose s . R egard ing the requirement to post prominent notice of the general permit letter of intent, two commente rs believe this requirement should be removed. One of these commenters added that we should allow the general permit and letter to be maintained at the operator’s closest office to the emis sion source since specifically many oil and gas sites are unmanned
. Another commenter believes 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.Draft

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Page 117 of 325 W e continue to believe that , whenever possible, posting a copy of the general permit and its approval letter at the source is appropriate . This will facilitate the inspection process by the reviewing authority, since a copy of the general permit and approval letter wil l be readily available. The original copy of the general permit and its approval letter can be kept in a safe place. Therefore, w e are finalizing the general permit issuance
pr ocedure s under 40 CFR 49.156(e) mainly as proposed . In addition, in the final rule we are including provisions for addressing when a general permit becomes invalid that mirror the corresponding site

- specific permit provisions.
D. Synthetic minor source permit s S ome sources have the potential to emit one or more pollutants in major s ource amounts, but have actual emissions that are below the major source thresholds. These sources are called “synthetic minor sources” and we proposed under 40 CFR 49.158 that a “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 40 CFR 49.167 or 40 CFR 52.21, 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 and the term “synthetic minor Comment [E4]: This is a defined term but it’s not clear in this context that it includes “legally enforceable.” It should be noted that this is a defined term, i nclud ing a reference to the definition, which includes “legally enforceable.Draft

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Page 118 of 325 source” applies independently for each regulated NSR pollutant that the source has the potential to emit. Furthermore, we proposed that the designat ion of synthetic minor source is allowed for both regulated NSR pollutan ts and HAPs and that 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 nec essary to ensure that you are legally prohibited f rom 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 procedure s for final permit issuance and administrative a nd judicial review found at 40 CFR 49.157 and 40 CFR 49.159 respectively. We also explained in our pr oposal that o ur 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 theyDraft

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Page 119 of 325 comply with all other requirements of the policy memo. 20 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 tribe's program providing su ch a mechanism. Additionally, we proposed that for your existing synthetic minor sources under the current policy, you will have 1 year from the effective date of the final rules to apply for a permit under the proposed minor NSR program.
S everal commen ters support ed the proposal to allow synthetic minor source permit s. T hese commenters noted that this option has been previously available for sources located outside of Indian country. On the other hand, two commenters
oppose d the proposal to al low for synthetic minor source permit s since they believe that synthetic minor source permit s are not available outside of Indian country and therefore HAP sources would rush to Indian country to avoid MACT standards
. Another commenter opined that the proposed syn thetic minor rule will hinder some tribes’ ability to develop or maintain their own sustainable title V major source permitting program s.

20 John S. Seitz and Eric V. Schaeffer. Policy memo. “Potential to Emit Transition Policy for Part 71 Implementation in Indian Country.” March 7, 1999.Draft

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Page 120 of 325 This commenter argued that allowing for synthetic minor source permit s in Indian country will decrease the number of major sources under this program thereby reducing the permit ting fees collected and used by tribes to run their title V permitting
programs. One commenter also added that general pe rmits should be allowed for s ynthetic minor sources.
W e agree with those commenters that would like us to allow synthetic minor source permits for both criteria pollutants and HAPs because we believe that allowing synthetic minor source permits could be beneficial to the environment by reducing the amount of pollution that coul d 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 commenter who believes that we will b e creating pollution havens in Indian country for HAP sources. 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 an ticipate many sources to change their current status to synthetic minor statu s once this rule is final. The PTE transition policy had already allowed sources in Indian country , until this FI P become s final, to limit their potential to emitDraft

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Page 121 of 325 to avoid major source status for purposes of the title V
program . However, if a tribe is concern ed that existing title V
programs may be unsu stainable after a certain number of sources change their existing title V permits to synthetic minor source permit s, the tribe wi ll have to consider r aising their title V fees as necessary to ensure that, as stated in se ction 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 synth et ic minor source permit. Large emissions from these sources warrants a case

- by

- case review of the source and their proposed emission limitations. Therefore , in the final rule, we are not allowing general permits for synthetic minor sources.
In t his fina l 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 the se sources may have to comply with afterDraft

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Page 122 of 325 th e effective date of this rule
. Consequently, we are finalizing provisions under 40 CFR 49.158 that state that y ou may obtain a synthetic minor source permit under this program to establish a synthetic minor sour ce for PSD , n onattainment major NSR , and t itle V purposes and/or a synthetic minor HAP so urce for MACT standards and title V
purposes . Any source that becomes a synthetic minor for NSR and
t itle V purposes but has other applicable requirements or becomes a synthetic minor for NSR but is major for t itle V
purposes, must also apply for a part 71 t itle V permit. Note that if you propose to construct or modify a synthetic minor source, you are also subject to the preconstruction permitting requirements in 40 CFR 49.154 and 49.155 , except for the completeness review and permit issuance timeframe provisions
. The permit application requirements are specified in 40 CFR 49.158(a) and the permit completeness review and permit issuance timeframe provisions that appl y for sources seeking a synthetic minor permit are specified in 40 CR 49.158(b). Therefore, y ou , 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 subjec t 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 asDraft

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Page 123 of 325 monitoring, recordkeeping , and reporting requirements
. Hence, we are finalizing the synthetic minor source permit application procedures mainly a s 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 applican t, 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

w ithin 60 days af ter receipt of an application, the reviewing authority will determine if it contains the information specified in 40 CFR 49.158(a)
. If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority’s completeness determination or request for additional information should be postmark ed within 60 days of receipt of the permit application by the reviewing authority. We are also adding a provision, to be consistent with the site

- specific and general permit provisions , to state that i f you do not receive a request for additional informat ion or aDraft

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Page 124 of 325 notice of complete application postmarked within 60 days of receipt of the permit application by the reviewing authority , your applica tion 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 fina l rule address the various possible s cenarios fo r synthetic minor source permit s as follows:

• If you own or operate an existing major source and you wish to obtain a synthetic minor source permit pursuant 40 CFR 49.158 to establish a synthetic minor

source and/or a synthetic minor HAP source, 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
yo u r 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** Draft

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Page 125 of 325 **AFTER DATE OF PUBLICATION IN THE FEDERAL**  **REGISTER]** , you do not need to apply for a synthetic minor source permit under this program.

• If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor
HAP source , or a modification at an existing synthetic minor sourc e 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 co nstruction.

• 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 progr am limiting potential to emit, you do not need to take any action under this program.

• I f your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to the p art 71 program , the reviewingDraft

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Page 126 of 325 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 th e 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 ( pu rsuant 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 s ource was established through a mechanism other than those described in preceding paragraphs , including state

- issued permits or achieving your existing synthetic minor status byDraft

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Page 127 of 325 maintaining your actual emissions at less than 50% of the relevant major sourc e threshold , 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 y ou submit your application and any req uested additional information in the timeframes 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 a pplication and any requested additional informatio n in the timeframes indicated above , your source will no longer be considered a synthetic minor source or synthetic minor HAP source (as applicable), and will b ecome subject to all requirements for major so urces.
E. Case

- By

- Case MACT Determinations under Section 112(g) of the Act We proposed that s ection 112(g)(2)(B) of the Act providesDraft

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Page 128 of 325 that you may not construct or reconstruct a major source of HAPs unless you install MACT. If the Administrator has not establ ished a MACT standard for the source category, the Act requires that MACT must be determined on a case

- by

- case basis. As explained under section 112(g) (2)(B) of the Act, this case

by

- case MACT determination is performed by EPA, as the reviewing authority, where there is no delegated program or an EPA

approved TIP for this kind of determination in Indian country. The requirement for a case

- by

- case MACT determination prior to construction or reconstruction of a major source of HAPs is found in our regulatio ns at 40 CFR 63.42(c) and under that section, we provide a number of review options for these determinations. These options include using a title V permit, applying for and obtaining a Notice of MACT Approval, and “any other administrative procedures for preconstruction review and approval established by the reviewing authority for a state or local jurisdiction which provide for public participation...” Currently, no tribes have an EPA

- approved title V permitting program or the “other administrative proce dures” for this purpose, 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) . Furthermore, w hile we can approve a section 112(g)Draft

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Page 129 of 325 case - by

- case MACT determination through a part 71 permit 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 can be used as one of the
“o ther administrative procedures” 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 HAPs under the final minor NSR program, rather than to address regulated NSR pollutants under the minor NSR program and also go through the par t 71 permit or Notice of MACT Approval process to address HAPs. Note that even with this approach to preconstruction review, the source is still a major source for H AP under the MACT program (unless the source becomes a synthetic minor source) and thus yo u ultimately will have to obtain a part 71 operating permit for your major source of HAPs. Several commenters supported the proposal to provide for

case - by

- case MACT determinations in the minor NSR program because they state d 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,Draft

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Page 130 of 325 o ne 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

cas e - by

- case MACT determination. As we stated previously, it is administratively convenient for us, as the reviewing authority, and for you as the source owner to combine the preconstruction permit review process for both regulated NSR pollutants and HAPs

un der 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 pa rt 71 permit or Notice of MACT A pproval 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 63.43 that apply to all case

- by

- case MACT determinations. In addition, if the source is a major source for HAPs for the case

- by

- case MACT determination and does not obtain a synth etic minor source permit , the source will haveDraft

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Page 131 of 325 to obtain a part 71 permit if it actually em its or has the
p otential to emit 10 tons/year or more of one HAP or 25 tons/year or more of a combination of HAPs
. In addition, we would like to clarify that for c ase - by

- case MACT determinations, we will apply the public noticing requirements under 40 CFR 49.157 and the administrative and judicial review procedures under 40 CFR 49.159. Therefore, as proposed, the final rule allows for review of section 112(g)

case - by

- case MACT determinations through this minor NSR program.
See final 40 CFR 49.153(a)(5) for the provisions related to section 112(g) case

- by

- case MACT determinations.
F. Treatment of Existing Minor Sources under the Minor NSR Program In the proposa l pre amble , 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 existi ng 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 contr ol technology review and otherDraft

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Page 132 of 325 requirements as provided in section I V.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 registe r 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 p roposal preamble).
Numerou s commenters support ed Option 1. These commenters believe d that this option is consistent wit h state minor NSR
programs, is the least burdensome on existing sources, and the EPA and t ribes do not have the resources available to implement any of the other options. In addition, these commenters opine d that regulation of existing sources is not needed to maintain the NAAQS
. On the other hand, a few commente rs oppose d this option, mainly because they believe d it would not address a ny air quality impacts resulting from existing sources.
R egard ing Option 2, a few commenters support ed this option if it were to be used in combination with other options such asDraft

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Page 133 of 325 Option 1 or 3. However, t wo commenters specifically opposed Option 2 becaus e they believe this option represents extremely onerous provisions for sources and reviewing authorities. Several commenters support ed Option 3 because they believe d it would only place a small administrative burden on existing sources to report their exi sting emissions while providing tribes with important information about the existing emissions within their jurisdictions. Nevertheless, o ne commenter opposed this option because t he commenter believes O ption 3 will be unduly burdensome and overbroad and could significantly disadvantage minor sources already operating in Indian country.
A few commenters support ed O ption 4 by noting that states have generally regulated minor sources and thus that experience could aid the implementation of this option . A no ther c ommenter add ed that EPA could m eet the requirements under O ption 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, o ther

c ommenters oppose d th is option beca use they generally believe it is extremely onerous for both sources and reviewing authorities. After considering the comments, we have decided to finalize Option 3 for true minor sources
. For synthetic minor sources, we

a re finalizing provisions as stated in section IV.D of thisDraft

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Page 134 of 325 proposal preamble, which include provisions that require certain sources to obtain permits under this program 1 year after the effective that of this rule. We are not finalizing our preferred o ption 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 so urces in Indian country is necessary to successfully implement the minor NSR program. In additio n, 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 th e minor NSR thresholds at a later time. We are also not finalizing Option 4 at this time because we believe that subjecting all minor sources to the minor NSR program is not necessary to achieve the NAAQS as demonstrated by the existing state minor NSR pr ograms ( i.e. , state programs do not require all of their minor sources to be subject to their respective minor NSR programs in order to achieve the NAAQS in their state) and by the National Emissions Inventory analysis we did to estimate the distribution o f sources and emissions that would trigger o ur proposed minor NSR thresholds (71 FR 48702). Furthermore, we believe that Option 4 would overwhelm limitedDraft

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Page 135 of 325 EPA resources even if we were to use a “sunset clause.” Thus, under the program we are finalizing, w e are creating a registration program for minor sources in Indian country. Under the minor source registration program, if you own or operate an existing minor source in Indian country (excluding synthetic minor sources), you must register your source wit h the reviewing authority in your area within 1 8 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 t o align the registration date for minor sources with the implementation date for minor sources of this rule as discussed in section VII.C of t his preamble. In addition, i f construction or modification of your source commenced any time on or after **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN**  **THE FEDERAL REGISTER]** and your source is subject to this rule, your permit application information will be used to fulfill the registration requirements described in 40 CFR 49.160 (c)(2 )
. Additionally, for regist ration purposes, y ou must also report your source’s actual emissions (if available) as part of your permit application. This registration will be a one

- time registration (not an annual registration) of your source’s estimated actual andDraft

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Page 136 of 325 allowable emissio ns as provided in 40 CFR 49.160. For the Indian reservations subject to the registration re quirements 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

ex isting 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 theDraft

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Page 13 7 of 325 state has amended its SIP’s nonattainment major NSR program, as needed, to address the new nonattainment area. The requirements under Appendix S are essentially the same as our requirements for state nonattainment major NSR programs at 40 CFR 51.165. We are finalizing our proposal to apply Appendix S to nonattainment areas in Indian country for a number of reasons. Primarily, we believe it is appropriate to apply Appendix S provisions in Indian country for administrative convenience. Additionally, since Appendix S general ly 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 appl icable to them under part 49, which is solely dedicated to regulations that apply in Indian country. We alsoDraft

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Page 138 of 325 considered drafting a parallel major NSR regulation to apply to sources in Indian country, but rejected this option since it would essentially re

- propose 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 require ments.
A. What a re the r equirements for m ajor s ource p ermitting under Appendix S? Pursuant to paragraph IV of Appendix S, we proposed that a reviewing authority may issue a pe rmit 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 th e LAER for that source using add

- on controls or pollution prevention me asures. 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 un der a federally

- enforceable compliance schedule for) all applicable emission limitations and standards underDraft

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Page 139 of 325 the Act. 3. Emission reductions (offsets) from existing sources in the area of the proposed source (whether or not under the same ownership) are obtai ned such that there will be reasonable progress towards attainment of the applicable NAAQS. 21
4. The emission offsets provide a net air quality benefit in the affected area. 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
count ry, while one commenter suggested that Appendix S fails to address provisions under the CAA. The commenter pointed out that section 173(a)(5) of the Act prov ides 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

21 In general, only intrapollutant offsets are permitted ( e.g. , NO x for NO x ). As part of the rulemaking to implement the NSR program for PM 2.5 , Appendix S and 40 CFR 51.165 were revised to allow interpollutant trading of emissions of PM 2.5 and its precursors under certain conditions (73 FR 28321, May 16, 2008). However, this a spect 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
.Draft

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Page 140 of 325 of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.” The commenter stated that this requirement is included in every approved SIP in the country, but is not present in 40 CFR Part 51, Appendix S. Therefo re, by requiring only the provisions of Appendix S, the commenter believes that the proposed nonattainment major NSR program fails 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 is inadvertently missing from Appendix S regulations. Therefore, we are a mending 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. o f this preamble for more details on the Appendix S amendments.
B. How i s EPA a ddressing the l ack of a vailable o ffsets in Indian Country? Tribal representatives have repeatedly stated thatDraft

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Page 141 of 325 requirements for emission offsets are problematic in Indian country for the following reasons. Many tribes believe that transport is a major cause of pollution in Indian country. Tribes generally do not have many existing sources within their area of Indian country from which offsets can be obtained. In addition, administr ative 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 o ffset pools or banks). 22 We recognize the unique circumstances that tribes face. Unlike states that have a SIP, a huge industrial base with several hundred existing sources, and a broad range of measures to attain and maintain NAAQS, a tribe generally has neither a TIP nor many existing sources from which to generate offsets. Because of these circumstances, we proposed two options to address the lack of availability of offsets for tribes: (1) the Economic Development Zone (EDZ) option and (2) the Appendix S,

22 Tribal representatives have raised these and other concerns in discussions on implementation of the 8

- hour ozone and PM 2.5 standards, and in comments on the 8

- hour ozone implementation rule. For example, see the letter fro m 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).Draft

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Page 142 of 325 paragraph VI option. 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 exampl e, some commenters suggest ed that:

• EPA should allow sources in Indian country to obtain offsets not just from the Indian 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 inDraft

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Page 143 of 325 the state. The commenter believes that this would be fair because most nonattainment problems in Indian country are caused by sourc es 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 Tribal Authority Rule (TAR). The TAR: “provide[s] an opportunity for Indian T ri bes to assume responsibility for the development and implementation of CAA programs

on lands within the exterior boundaries of their reservation s or other areas within their jurisdiction.” Thus, the commenter believes that the waiver will allow the opportunity for tribes to be able to develop and implement the nonattainment majorDraft

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Page 144 of 325 NSR program. However, other commenters believe that offsetting o f major NSR projects should be a requirement of the nonattainment major
NSR program and no waivers should be given. These commenters opine d that offset waivers would: (1) likely be illegal under the Act, (2) cause air quality concerns , and (3) be unfair f or 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 believes 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 tribalDraft

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Page 145 of 325 lands.

• There would be problems in allowing sources on tribal lands access to the State offset banks. The commenter believes that states will be apprehensive to allow sources on tribal lands access to state

- established offset banks because states will not receive the tax revenue from offsets purchased by sources on tribal lands as they do with sources wi thin 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. As we stated previously, we recognize the unique ci rcumstances 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
.Draft

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Page 146 of 325 Thus and to address t he 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. We agree that, where appropriate, the tribe can obtain offsets from surrou nding areas, but that in many areas it will be difficult politically and practically for Tribes to obtain these offsets. Therefore to address this issue , we encourage Tribes to enter into a Memorandum of Understanding (MOU) with its neighboring State to a llow tribal access to offsets in the state offset bank and vice

- versa if and when tribes develop their own offset banks. This MOU w ould contain provis ions establishing the criteria for emissions reductions to be used as offsets such as real, quantifiable, surplus, permanent and enforceable. Furthermore, we are addressing the lack of availability of offsets in general . For example, in the final rule titled ,

“ Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micro meters (PM 2.5 )” (73 FR 28340) , we finalized provisions that allow for inter

- pollutant and inter

- precursor trading of offsets between direct PM2.5 emissions and its precursor emissions. We believe this is a first step in the process of addressing the short age of offsets in the nation and we will continue to explore and implement, asDraft

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Page 147 of 325 one commenter suggested , the use of non

- traditional sources of offsets such as offsets from mobile sources and area or minor

sources.
R egard ing the offset waivers we proposed , we want to clarify that these waivers ar e 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 cu rrently available under 40 CFR part 51 Appendix S. Therefore, we disagree with those commenters that believe that if the proposed offset waivers would only be available for Indian country, th en states would be at an economic disadvantage and/or that we wo uld 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 o nly allow ing the EDZ option that is currently available under the
statute for both tribes and States as a potential option for offset waiver and not finalizing the Appendix S Paragraph VI option in this final rule
. 1. Economic Development Zone Option For this option we rely o n section 173(a)(1)(B) of the Act under which the Administrator, in consultation with theDraft

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Page 148 of 325 Secretary of Housing and Urban Development (HUD), may identify zones within nonattainment areas as E DZs. To be identified as an EDZ , HUD’s Initiative for Renewal
Com munities, 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 Agr iculture requires similar eligibility criteria for participating communities located in rural areas. We believe that many areas of Indian country may meet these criteria and hence could qualify for this offset relief provision. As we proposed, the Adminis trator will consult with HUD only once to develop a general set of approval criteria, such that a consultation with HUD is not required every time a tribe applies for its area of Indian country to be designated as an EDZ. Also as proposed, EPA intends to provide assistance as needed for a tribe to complete an EDZ designation request. Once 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.
We re ceived a few comments on the use of the EDZ option as an offset waiver. Supporting commenters believe that thisDraft

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Page 149 of 325 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 believe 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 contrib ute to emissions levels “which exceed the allowance permitted for such pollutant for such area from new or modified stationary sources under section 172(c).” The latter section, at section 172(c)(4) of the Act, provides that the implementation plan shall identify and quantify the emissions, if any, that will be allowed to be used under section 173(a)(1)(B) (the EDZ section), and shall “demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent wit h 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 believes 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 believes that, byDraft

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Page 150 of 325 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 relevan t State SIP includes an allowance, that allowance would almost certainly not have been calculated under the assumption that areas in Indian country could access the allowance. Under these circumstances, the commenter asserted, the affected state would be entitled under the Act to determine in the first instance what, if any, access to the allowance it wished to make available to sources in Indian country. The commenter concluded that as a matter of law the EDZ option is unavailable unless and until the re levant 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. After reviewing all the comments received, we believe that the EDZ option as established by statute is available for offsetDraft

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Page 151 of 325 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 believes 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 believes 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 s tates generally lack jurisdiction under the Act over facilities in Indian country. The ability of an area to qualify would be determined on a

case - by

- case basis, but criteria for including tribes in the EDZs and for consultation with the t ribes will need to be developed in advance and in coordination with the Secretary of
Hous ing 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 int o an area strictly for the offset relief. Therefore, we disagree with the commenter that believes that a general set of approval criteriaDraft

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Page 152 of 325 will be in conflict with the language of the Act. 2. Appendix S, Paragraph VI Option Paragraph VI of Appendix S note s 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. We received many comments on the use of Appendix S provisions to provide offset waivers to the tribes. Several commenters support this option because, as one of these

co mmenters stated, this option provides equivalent environmentalDraft

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Page 153 of 325 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 c ountry, 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 req uirement could be met), (2) if there is no applicable implementation plan, it will be impossible to demonstrate that a source will not interfere with the attainment date for a nonattainment pollutant, (3) the Act requires that for every major source, the s ource 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 ( s ee 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).Draft

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Page 154 of 325 These ratios may be met on an aggregate basis ( i.e. , i ndividual 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 m ade. 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 state that such a waiver does not balance legitimate development needs with environmental protection or that a major source could not interfere with attainment. One of these commenters also noted that these waivers would expire at attainment dates, and ad ded that these “expiration dates” established by states should not be imposed on tribes. Upon review of comments and further consideration, we are not finalizing the Appendix S provision as proposed, since the provision is only available temporarily an d it will be challenging for EPA or the tribe to demonstrate that the proposed source will not interfere with the attainment date.
C. How d o I m eet the s tatewide c ompliance c ertification

r equirement of the Act and Appendix S? Pursuant to the statewide compliance certificationDraft

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Page 155 of 325 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. I n the context of India n country, we sought comment on whether this requirement should be expressed as an Indian country

- wide compliance certification or remain a statewide certification. In other words, we requested comment on whether you should be required to certify that all your sources in the state where your proposed source is locating are in compliance, or that all your sources in all of Indian country are in compliance. We received a variety of comments on this issue. Several commenters believe that the certification s hould be on a state

wide basis because: (1) it will not provide sources in Indian lands with a competitive advantage over sources in non

- Indian lands, 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 believes that state

- wide compliance certification would give EPADraft

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Page 156 of 325 overreaching authority to facilities that are opera ting 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.
R egard ing the Indian country

- wide certification, one commenter supports it. The commenter believes 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 believe that expanding the requirement will ensure that the sources attempting to locate in Indian country will operate within regulator y parameters and several reservations exist in more than one state; while other commenters support a certification for each applicable area of tribal jurisdiction since these commenters believe that: (1) it would be too burdensome to require such certifica tion 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 comm e nts, we are finalizing a state

-Draft

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Page 157 of 325 wide compliance certification requirement consiste nt with section 173(a )(3) of the Act. W e 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. Thus, an Indian country

- wide certification would not have the proximity and geographic contiguity that a state

wide approach would have.
D. What a re the p ublic p articipation r equir ements for this
p rogram? 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 nonattainment major NSR program are very similar to those finalized for t he 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. W hat are the provisions for final action on a permit, permit reopenings, and administrative and judicial revi ew procedures?Draft

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Page 158 of 325 The proposed provisions governing final action on a permit, including related notice requirements, as well as permit reopening and administrative and judicial review are very similar to the ones that govern the minor NSR program and are fou nd in final 40 CFR 49.172. For more information about the comments we received related to these provisions , see section
IV.B of this preamble. Regarding the final action on a permit , the final rule requires that a fter making a decision to issue or de ny 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, the reviewing authority must provide adequate pub lic 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. Depending on the circumstances of your
pe rmit, 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 of this preamble (related to public notice of the draft p ermit). The reviewing authority’s final decision on your permitDraft

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Page 159 of 325 must be based on an administrative record, and the final rule includes requirements on what must be in that record. For example, the administrative record must include the application and any supporting data furnished by the applicant and all comments received during the public comment period, including any extension or reopening. See final 40 CFR 49 .172(b) and (c) for a listing of all the requirements. A few commenters largely supported th e 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 believe that numero us inconsistencies will occur if the agency uses subjective discretion based upon “depending upon the circumstances of your permit.” Based on the comments received, we are finalizing slightly different final permit public notice requirements for the

non attainment 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 rev iewing authorities and will ensure that the affected community and the general public have reasonable access to theDraft

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Page 160 of 325 applicable information. These provisions are included in 40 CFR 49.157 of this final rule. However, for minor sources, we continue to beli eve 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 noti ce discussed in section IV.B.4 of th is 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 section 49.157 of this final rule.
R egard ing the administrative record for a permit decision, we are finalizing these provisions as proposed. 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. 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 no t receive any comments about these provisions specifically for the nonattainment major NSR program. Regarding th e permit reopening provisions, the final rule requires that a permit may be reopened for cause by theDraft

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Page 161 of 325 reviewing authority on its own initiative , such as if it contains a material mistake or fails to assure compliance with permit requirements. See final 40 CFR section 49.172(e). Details of the comments received and the rationale behind finalizing these provisions are included in section IV.B .5 o f this preamble. We did not receive any comments about these provisions specifically for the nonattainment major NSR program.
F. How i s EPA r evising A ppendix S ? As we explain in more detail in section V.A. of this preamble, we are amending Appendix S to incl ude 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 applican t 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 cost s imposed as a result of its location, construction, or modification. In addition and a s proposed, we ar e finalizing a minor change to A ppendix 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 eachDraft

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Page 162 of 325 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 incorp orated 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 paragrap h 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 Jurisdict**  **ional Issues**
A. What i s the b asis for EPA’s a uthority t o i mplement t hese
NSR p rograms in Indian country ? As we have described in section III of this preamble, in the 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 administerin g an EPA

- a pproved PSDDraft

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Page 163 of 325 program . 23 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 n onattainment major NSR program and the minor NSR
program 24 in Indian country , no tribe s are currently administerin g EPA

- approved programs and there has been no FIP 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 th e NSR program in Indian country. We are finalizing the minor NSR program at 40 CFR 49.151 through 49.165 and the nonattainment major NSR program at 40 CFR 49.166 through 49.175. It is important to recognize, however, that even though we are adopting thi s 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, will replace the

23 Under the Act and the TAR ( see 40 CFR part 49, subpart A), e ligible tribes may se ek approval of their own PSD programs for their reservations and/or for other areas under their jurisdiction
.

24 EPA recently proposed to approve a TIP for the Gila River Indian Community that includes a minor NSR program, as well as other provisions (see 75 FR, August 12, 2010).Draft

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Page 164 of 325 federal program as the requiremen t for that area of Indian country and the tribe will become the reviewing authority. 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 believe 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 violat es 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 unde r the Act or has been disapproved in whole or in part . In addition, the commenter believes that the Act only authorizes the adoption of a FIP on a jurisdiction

- by

- jurisdiction basis, not nationally. Two of these commenters also state d that even if the EPA adopts the proposed nationwide FIP, the FIP cannot supersede, and EPA must acknowledge, the s tate of Okla homa’s right to administer its s tate air quality programs in areas of Indian country within Oklahoma under the Federal Safe, Accountable, Flexible, and Efficient Transport ation Equity Act: A Legacy for Users (2005). We disagree with these commenters.Draft

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Page 165 of 325 EPA’s Authority to Implement the CAA in Indian Country
. In the final rule entitled “ Indian Tribes: Air Quality Planning and Management,” generally referred to as the “ Trib al Authority Rule” or “TAR,” EPA explains that it intends to use its authority under the CAA “ to protect air quality throughout Indian country 25 ” by directly implementing the CAA’s requirements where t ribes have chosen not to develop or are not implementing
an EPA

- approved CAA program. 63 FR 7254, February 12, 1998. The final TAR at 40 CFR 49.11 states that EPA would “ promulgate without unreasonable delay such FIP provisions as are necessary or appropriate to protect air qua lity” 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.

25 “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 right s - 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 wit hin or without the limits of a s tate, 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 vali dly set aside for the use of a t ribe even if the trust lands have not been formally designated as a reservation.Draft

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Page 166 of 325 Although many facilities in these areas may have historically followed s tate and local government air quality programs, with only one 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 s tate or local government to implement a minor NSR or nonattainment major NSR program in Indian country
. 26 Since the CAA was amended in 1990, EPA has been clear in its approvals of

s tate programs that the approved s tate program does not extend into Indian c ountry. It is EPA’s position that, absent an explicit d emonstration of authority by a s tate to administer a CAA program in Indian country, and absent an explicit finding by EPA of such jurisdiction and explicit approval of the s tate in Indian country, s ta te 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

26 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 C laims Settlement Act, 25 U.S.C. 1773, gives explicit authority to s tate and local governments to administer their environmental laws on all nontrust lands within the 1873 Survey Area of the Puyallup Reservation in Tacoma, Washington.Draft

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Page 167 of 325 administer a minor NSR program, an d 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 are based on the s ame 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 l ocated in Indian country under t itle V of the Act, pursuant to nationwide regulations at 40 CFR part 71, w as 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 Federa l Implementation Plans Under the Clean Air Act for IndianDraft

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Page 168 of 325 Reservation in Idaho, Oreg on, Washington, 40 CFR part 49, subpart M (70 FR 18074, April 8, 2005) (upheld in Safe Air for Everyone v EPA , 2006 WL 3697684 (9 th Cir. 200 6)); 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 (10 th Cir. 2009). Effects of State Law
. The rules es tablished by EPA here are in effect under the CAA. The EPA recognizes that in a few cases, other s tate or local governmental entities may have established air quality requirements that the commenters believe apply to activities in Indian country. However , unless those rules or requirements have been explicitly approved by EPA under the CAA to apply in Indian country, compliance with those other requirements does not relieve a source from complying with the applicable provision of this FIP. As EPA has sta ted elsewhere,

s tates 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,Draft

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Page 169 of 325 primary jurisdiction over land that is Indian coun try 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 disc ussion in EPA’s final rule for the f ederal 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 Indian country air resources and as a delegation of f ederal authority
to eligible t ribes to implement the CAA over all sources within reservations, including non

- Indian sources on fee lands. Accordingly, even if a s tate could demonstrate authority over

non - Indian sources on fee lands within a n Indian reservation, EPA believes that the CAA generally provides the Agency the discretion to f ederally implement the CAA over all Indian country sources in order to ensure an efficient and effective transition to t ribal CAA programs and to avoid the adm inistratively undesirable checker

- boarding of reservation air quality management based on land ownership. The EPA believes that Congress intended that EPA take a territorial view of implementing air programs within reservations. The EPA also believes tha t air quality planning for a checker

- boarded areaDraft

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Page 170 of 325 would be more difficult and that it would be inefficient if a

s tate were to exercise regulation over pi ecemeal tracts of land within Indian country , possibly with similar Indian country sources being subjec t to different substantive requirements. The EPA ’s approach provides for coherent and consistent environmental regulation within Indian country
. Although EPA does not recognize s tate or local air regulations as being effective within Indian country for
p urposes 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 s tate and local law and regulations with respect to sources in Indian cou ntry, or the authority of

s t ate and local agencies to regulate such sources, for purposes other than the f ederal CAA. We are specifically not making a determination that these f ederal CAA rules override or preempt any other laws that have been established outside the scope of the fe deral 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 cou ntry is clear and well

- established and has been upheld by reviewing courts in similar circumstances. With regard to the comments relating to Indian country andDraft

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Page 171 of 325 the S tate of Oklahoma, EPA recognizes that the Safe, Accountable, Flexible, Efficient Transport ation 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, in promulgating these FIPs , EPA is not acting on any request by the State of Oklahoma to administer any CAA or other regulatory program in Indian country, nor is EPA acting on any treatment

- in

- the

- same - manner - as - a - state application for an environmental regulatory program by any Ind ian tribe in Oklahoma. The EPA would add ress any such applications when necessary and on a case

- by

- case basis
. Section 10211 of the SAFETEA is thus not implicated in this rulemaking and is not a relevant consideration in EPA’s promulgation of the m inor a nd nonattainment major NSR programs for Indian country, including Indian country in Oklahoma.
B. How d oes a t ribe r eceive d elegation t o a ssist EPA with

a dministration of the f ederal m inor and m ajor NSR r ules? With this action, we are finalizing the provisions on delegation to tribes as proposed. Our authority for such delegations is discussed in the following paragraphs. Under the procedures set forth in the Tribal Air Rule , tribes may seek to demonstrate eligibility for approval ofDraft

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Page 172 of 325 tribal programs under the Act, including a tribal NSR program, under tribal law 27 . The TAR allows tribes to seek approval for such programs covering their reservations or other areas within their jurisdiction. However, w e 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 . This process is known as delegation and b y a ssisting us with administration of the federal program, tribes 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. Theref ore f inal 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 cou ntry. We have well

- established processes for delegating our federal authority to states for administering federal rules under the Act, including conducting NSR under 40 CFR 52.21(u),

27 As noted elsewhere , the TAR contains a process, pursuant to section 301(d) of the Act , for tribes to seek treatment i n a similar manner as a state, treatment as state (T AS) , for various provisions and programs of the Act
.Draft

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Page 173 of 325 and issuing federal operating permits under 40 CFR 71.4(j) and 71.10. The process we w ill 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 to states
. 28 Prior to finalizing any delegation agreement with a tribal agency, we w ill consult with other federal, state, tribal, and local governmental entities, or other governmental agencies in the area, as appropriate. Although sections 110(o) and 301(d) of the Act and the TAR authorize us to review and approve TI Ps, neither the Act nor the regulations provide that approval of tribal programs under tribal law is the sole mechanism available for tribal agencies to take on permitting responsibilities. Accordingly, we will exercise our discretion to delegate administ ration of the federal NSR program to interested tribal agencies satisfying the requirements of final 40 CFR 49.161 and 49.173
. This administrative delegation is to be distinguished from the TAS process under the TAR whereby tribes seek approval to
run prog rams under tribal law. Tribes would not need to seek TAS under the TAR in order to request delegation of

28 The current provisions under 40 CFR 52.21(u) do no t 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.Draft

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Page 174 of 325 administration of aspects of these federal NSR programs. Tribes would, however, need to provide the relevant application information described in tho se sections 29 . In addition, program functions delegated under final 40 CFR 49.161 or 49.17 3 remain part of the relevant FIP administered under federal law. The delegate tribal agency would simply assist EPA with administration of the program to the extent of the functions delegated. As described in the preamble to the TAR 30 , it is our position that the TAS provision of the Act constitutes a statutory delegation of authority to eligible tribes over their

29 This information includes identifying the specific rules and provisions and t he 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 Secreta ry 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 prov isions 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 req uested. 30 See 63 FR 7254

- 59.Draft

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Page 175 of 325 reservations. As described earlier, the TAR establish ed 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 tri bal 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. In contrast, the delegation approach finaliz ed in these rules provides for us to delegate administration of the federal program operating under federal law to interested tribes that provide the information des cribed in proposed 40 CFRDraft

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Page 176 of 325 49.161 (b)(1) and 49.173 (b)(1) 31 . Since this program operates throughout Indian country under federal authority , tribes w ill not need to demonstrate either Congressionally

- delegated authority over air resources within the exterior boundaries of their reservations or authority of non

- reservation areas of Indian country. Instead, tribal agencies w ill assist us in im plementing 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 49.17 3 (b)(1)(iii)(C), tribes w ill 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

31 S ection 301(a)(1) of the Act provides that the Administrator is authorized to prescribe such regulations as are necessary to carry out his o r her functions under the Act and p ursuant to this authority, final 40 CFR 49.161 and 49.17 3 of the minor and major NSR rules, respectively, provide that partial administration of the federal NSR programs may be delegated to a tribal agency that submits a request for delegation . However, n othing in the final rules requires us to delegate administration of any aspect of the federal program to a tribal agency.Draft

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Page 177 of 325 behalf of the delegate tribal government. For these administratively delegated programs, federal program requirements will continue to be subject to enforcement b y EPA , not the delegate tribal agency, under federal law. Administrative appeals of permitting decisions w ill also continue to be made directly to the EAB under our administrative procedures with any subsequent judicial review to be conducted in federal c ourt. In the final rules we make it clear that we will not delegate enforcement or appeal components of the program to tribal agencies. In order to be delegated authority to administer the proposed rules for a particular area of Indian country, the author ized representative of a tribal agency must demonstrate that it has the authority and technical capability to carry out the provisions of the rules for which delegation is requested. When delegation is approved, a Partial Delegation of Administrative Auth ority 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 effect ive, 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 particularDraft

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Page 178 of 325 area of Indian country, and to act on behalf of the Administrator. The federal requirements admini stered 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 prepara tion of draft permits, the delegate tribal agency must provide us a copy of each permit application (including any application for permit revision) and each draft permit. 32 In any such delegation, we retain the authority to object to the issuance of any pe rmit 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 co py 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

32 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.Draft

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Page 179 of 325 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 num ber of comment er s 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 VI .B of this preamble. Other commenters oppose delegati on o f the program to the tribes. One of these commenters believes that delegation demonstrations will be approved by EPA based on their administrative completeness, rather than on their technical merit and thus recommends that any delegation be contingent upo n an approved TIP. Another commenter maintained that only the TAS process should be used to delegate authorit y of environmental programs to t ribes to avoid j urisdi ctional conflicts between EPA, tribes, and the s tate (especially in Oklahoma because there h ave been significant proble ms there with t ribes 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 pro gram, it should include a Federal Register public notice and comment provision. A nother commenter believes thatDraft

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Page 180 of 325 b ecause EPA has not made any jurisdictional determinations in connection with the proposed F IP, delegation of authority to
t ribes to assist in administering the FIP violates the plain requirements of the Act. As described above, EPA continues to believe that the CAA authorizes us to use the administrative delegation approach to assist EPA in carr ying out implementation of our f ederal
program. Se e CAA section 301(a). In addition, although the CAA and the TAR also provide a means for tribal involvement in implementing CAA programs through the TAS process, neither the statute nor EPA’s regulations provide that approval of tribal programs under trib al law is the sole mechanism available for tribal agencies to take on permitting or other responsibilities. The EPA believes that the administrative delegation provisions establish an appropriate means f or tribal involvement in EPA’s f ederal implementatio n of CAA requirements.
D elegation 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 t he extent the commenters are concerned that administrative delegation acts as an approval of tribal authority, EPA reiterates that irrespective of any such delegation, the minorDraft

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Page 181 of 325 NSR and nonattainment major NSR programs established here will continue to ope rate under f ederal 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 t hen assist EPA with administration of the programs. This approach provides EPA with additional flexibility for implementing the federal programs where EPA believes that delegation is appropriate. It also allows qualified Tribes to participate, as appropr iate, in administration of the federal programs. EPA als o notes that because the m inor and nonattainment major NSR programs will continue to operate under f ederal authority (irrespective of administrative delegation of any functions to qualified t ribes), none of the jurisdictional issues raised in the comments should arise. Indeed, as described elsewhere, EPA’s well

- established authority to implement CAA programs in Indian country in the absence of an
EPA

- approved program should provide jurisdictional ce rtainty 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 ne eded for administration of the f ederal programs and EPA believes thatDraft

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Page 182 of 325 th ese delegation provisions are consistent with similar well

established provisions EPA has used in other contexts ( e.g . , delegation of f ederal operating permits under 40 CFR 71.4(j) and 71.10; delegation of PSD permits under 40 C FR 52.21(u); and delegation to tribes of elements of the f ederal a ir rules for Indian country in the Pacific Northwest under 40 CFR 49.122 )
. As noted in EPA’s proposal of the m inor NSR and nonattainment major NSR rules, EPA also intends to consult with other federal, s tate, 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 delegati ons, 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 even when we have established separate criteria for the delegation provisions of the m inor and nonattainment major NSR rules for tribes seeking to assist EPA with adminis tration of the federal programs, nothing in the administrative delegation process changes the criteria EPA would evaluate in reviewing and acting upon tribal applications forDraft

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Page 183 of 325 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 informat ion 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 requ ired 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). For air resources within the exterior boundaries of an Indian reservation, eligible t ribes may rely on t he Congressional delegation of f ederal authority to operate approved tribal programs . Tribes may also attempt to demonstrate authority to operate approved tribal programs under tribal law over other areas outside of their reservations, generally including non

- reservation areas of Indian country. By contrast, because the m inor and nonatt ainment major NSR programs will, in al l circumstances, operate under federal authority,
t ribes requesting to assist EPA through administrative delegation need not demonstrate Congressionally

- delegatedDraft

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Page 184 of 325 authority over air resources within the exterior bounda ries of their reservations or authority over non

- reservations areas of Indian country. Instead, such t ribes would only need to show that their laws provide adequate capacity and authority to carry out the delegated act ivities. For example, where a t ribe seeks administrative delegation for pe rmit issuing activities of the federal program, the t ribe may, among other things, need to show that it has in place an appropriate agency with legal authority to review applications and issue permits on behalf of the delegate tribal government. 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 h appens to p ermits p reviously i ssued by s tates to

s ources in Indian c ountry? Historically, sources in some areas of Indian country may have received permits from states opera ting EPA

- approved programs. 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 section VI.A. of this preamble for more information. Therefore,
t hi s final rulemaking provide s a mechanism to change state permits issued to major sources of regulated NSR pollutants inDraft

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Page 185 of 325 nonattainment areas of Indian country to federal major NSR permits. If you own or operate a major stationary 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. In this case, you would not be subject to any additional requirements under thi s
program as long as the new permit complies with the requirements under the Act as described in this action
. See final 40 CFR 49.168(b). We believe that transforming the state permits in to federal major NSR permits for major sources in Indian country is appropriate to protect air quality in Indian country, as the tribes take on the effort to develop and/or run their own
programs . A couple of commenters believe that the permit reapplication process set out in the proposed 40 CFR 49.158(c)(1) and 49.168(b) seem s unnecessarily complex and thus these commenters argue d that these permits should be transferred
“en mass e ” from one agency to the other with a simple notification to the operator of the transfer or jurisdiction. One of these commenters added that i f EPA feels that the “en

mass e ” 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 permitDraft

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Page 186 of 325 to both agencies, while the other commenter st ressed that

sources with s tate 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 s tate permit conditions may be appr opriate to be in cluded in the new f ederal 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 point ed out that the proposal did not discuss what enforcement mechanism would be used i f a source failed to convert a state permit to a f ederal permit in the given time frame and thus one of these commenters recommended that EPA should consider using
t ribal co urts for this purpose since the infraction would occur on tribal lands and within t ribal jurisdiction. After considering these comment s, w e believe that transforming s tate nonattainment major NSR permits into f ederal nonattainment major NSR permits in Ind ian country is appropriate to protec t air quality in Indian country and as the tribes take on the effort to develop and/or run their own programs. However, we do not believe that these permits should be transferred “en mass e ” from one agency to another or beDraft

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Page 187 of 325 automatically transferred because we need to determine if the permit complies with the applicabl e requirements under the NSR
program . If it does not, a new permit with additional requirements would have to be public noticed and issued . If a source fa ils to obtain a required federal permit by the established timeframe 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 t ribes allowed to collect fees for NSR permitting? Many tribal commenters suggested that the NSR program should include a mechanism that allows tribes or the EPA to collect fees to offset the costs of the program , especially when a tribe has been given delegation of the program
. Two of these commenters poin ted out that t ribes that do accept deleg ation of the program will need resources, such as funds to train and support personnel who will be reviewing and commenting on theDraft

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Page 188 of 325 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 t ribal 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 , u nfortunately, the CAA does not give the Agency explicit authority to charg e permit fees for pre

construction permitting. However, t ribes that develop TIPs can charge for permits and Tribes with delegation can develop permit fee programs under their authority ( e.g. , Navajo’s permit f ee program for their delegated t itle V permit program). In addition and as stated in the final rule titled: “ Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington,” (70 FR 18080) , EPA and the delegated t ribe could, as appropriate, establish mecha nisms to fund the work by tribal staff, that may include f ederal funding assistance through cooperative agreements and grants and/or user fees and charges established by the t ribe to fund its administrativ e activities on behalf of EPA. Furthermore , in the final rule, there are a number of mechanisms to address concerns regarding the resource burden : (1) encouraging delegation of the program through t rainings (face

-Draft

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Page 189 of 325 to

- face training sessions and through ITEP training), (2 ) using model language to request de legation, (3) developing and using general permits, and (4) using model codes for t ribes that want to do TIPs.
B. Who retains enforcement authority in Indian country? Numerous tribal commenters recommended that the administrative delegation of the program to t ribes 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 favor ed delegation of c riminal enforcement authority. In addition, c omment ers state d that by declining to administratively delegate enforcement (whether civil or criminal) of federal permits to tribes, EPA is acting inconsistently with other delegati ons 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 the se commenters. The EPA believes that these comment er s mistake the distinction between approvals of tribal programs under tribal law provided for in the TAR and the administrative delegationsDraft

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Page 190 of 325 at issue here
. Where EPA approves an eligible t ribe for TAS

u nder CAA section 301(d) and the TAR, EPA will co ntinue to review the applicant t ribe’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 rec ognized 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 prima ry criminal enforcement at the f ederal level fo r all circ umstances in which a t ribe is precluded from exercising such authority. See 40 CFR 49.7(a)(6), 49.8. In such situations EPA would, however, generally expect the appli cant t ribe to demonstrate authority to pursue appropriate civil enforcement under tribal law of any approved tribal
program. By contrast, any permits issued under the f ederal NSR programs (even where issued by a Tribe acting on EPA’s behalf pursuant to a delegation agreement) remain f ederal in character and continue to be enforceable (whe th er civilly or criminally) in federal court because EPA does not believe that it would be appropriat e to delegate enforcement of a federal permit in federal court to an Indian t ribe assisting EPA with administration of the NSR program. Indeed, in similarDraft

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Page 191 of 325 c ircumstances EPA has consis tently withheld enforcement in f ederal court from any administrative ly delegated entity, whether a state or a t ribe. 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 th eir own courts of parallel non

- f e deral air quality re quirements, enforcement of the federal permit in f ederal court will always be retained and conducted by EPA. 33 See also 40 CFR 49.122; 70 FR 18074, 18080

- 81, April 8, 2005 (discussing EPA’s similar approach to administrative delegation in the contex t of FIP s for Indian reservations in the Pacific Northwest). The EPA’s approach to ad ministrative delegation of the f ederal 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
t ribes interested in enforcing NSR permits issued in their areas

33 Most states have sought and obtained EPA approval to administer their own minor and nonattainment major N SR 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.Draft

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Page 192 of 325 may continue to seek TAS eligibility and program approval pursuant to established procedures under the TAR. Indeed, EPA expects that the approach to administrative delegation of elements of the f ederal NSR program may benefit such Tribes by providing opportunities for t ribes that are building air quality programs to gain experience by assisting EPA with administration of the f ederal rules without needing to first develop tribal air programs under t ribal law. To the extent such t ribes do subsequently obtain TAS eligibility and NSR program approval, their approved tribal programs under tribal law would replace the relevant f ederal 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 f ederal 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 T AR 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 theDraft

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Page 193 of 325 TAR or with EPA’s app roach to administrative delegations of other CAA programs to tribes and states.
C. What is the implementation schedule for the final rules? We received several comments related to EPA’s ability to implement these rules. A few of these commenters believe tha t EPA does not have adequate resources to take on the NSR program without significant permitting delays, while one commenter added that t ribal agencies do not have the resources needed either. One commenter in particular was very concerned about the workl oad EPA regions will have, especially those regions that oversee a large number of tribal lands, given EPA’s
pr esupposition that few, if any, t ribes will be prepared to pursue delegation of the responsibility to implement these requirements. The commenter is very concerned that this new workload will create significant delays in already

- impacted
program areas . We agree that it would be very challenging for us , as the reviewing authority until a tribe re quest s delegation or obtains approval of a Tribal impl ementation plan, to implement all elements of the final rules simultaneously beginning on the effective date of the rules due to the resource constraints we currently experience and the new workload this rule will create , espe cially for those EPA regions w here EPA , as the reviewingDraft

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Page 194 of 325 authority, oversees a large number of tribes. Consequently, we have decided to phase in the rules as follows:
E xisting major sources

• If you wish to commence construction of a minor modification at an existing major stationary so urce 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 49.154 and 49.155 (or a general permit pursuant to 40 CFR 49.1 56, 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 synt hetic minor source permit application on or after **[ INSERT**  **DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL**  **REGISTER]** . However, if you r permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservat ions 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 needDraft

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Page 195 of 325 to apply for a synthetic minor source permit under this program
. Synthetic minor sources

• If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source 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 establ ished 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.

• 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 reviewingDraft

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Page 196 of 325 authority has the discretion to require you to submit a permit app lication 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 par t 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, i ncluding 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 paragraph s , including state

- issued permits or pursuant
to achieving your existing synthetic minor status byDraft

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Page 197 of 325 maintaining your actual emissions at less than 50% of the relevant major source threshold , you must submit an application pursuant to 40 CFR §49.158 for a
sy nthetic 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 requ irements, including control technology requirements, based on the specific circumstances of the source. True minor sources

• If you have an existing true minor source on which construction commenced any time prior to the date 18 months after the effective date of the final rule (that is, before **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  ) and that is subject to th e registration requirements of 40 CFR 49.160, you must submit the initial registration for the source by **[INSERT DAT E 20 MONTHS AFTER DATE OF**  **PUBLICATION IN THE FEDERAL REGISTER]** or within 90 days after the source begins operation, whichever is later. You are exempt from this requirement if your source is subject to 40 CFR 49.138

- “Rule for the registrationDraft

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Page 198 of 325 of air pol lution 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 on or after **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  , you mu st 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 the proposed new source or modification is subject to the registration requirements of 40 CFR 49.16 0, your permit application information will be used to fulfill the registration requirements under this program. (Your source is not subject to the registration requirements of 40 CFR 49.160 if it is subject to 40
CFR 49.138

- “Rule for the registration o f 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 setDraft

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Page 199 of 325 forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 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 mil lion. The EPA estimates lower bound total annualized costs of the rule to be $19.4 million, including $13.7 million for industry and $5.7 million for the Agency ($2008) while upper bou nd total annualized costs of this rule are estimated to be approximatel y $20.1 million per year, including $14.4 million for industry and $5.7 million for the Agency ($2008). This analysis is contained in the EIA for this final rule. A copy of the analysis is available in the docket for this action.
B. Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act , 44 U.S.C. 3501
et seq . The information collection requirements are notDraft

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Page 200 of 325 enforceable until OMB approves them. The information collection requirements resulting from this final rule are associated with certain records and reports that are necessary for the tribal agency (or the EPA Administrator in

non - delegated areas), for example, to: (1) con firm 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. Th e 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 b eing 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 maj or 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
. ( S ee the Eco nomic Impact Analysis in theDraft

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Page 20 1 of 325 docket for this action for more information
. ) In addition, the final rule would only result in an administrative change for new major sources in Indian country because, although the regulatory mechanism to issue permits is not yet available in the form of either a federal nonattainment major NSR rule or a TIP, we are already required to implement the program in Indian country, and have developed source

- specific FIPs to do so. As a result, there would be no new or additional bu rden 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 facilit ies will be affected for the first 3 years after promulgation of the rule . They will incur approximately 1,699,500 hours in monitoring, recordkeeping, and reporting burd en, incurring an estimated $20.7 million ($2008) in burden during this 36 month period
. In addition, 32,970 existing true and synthetic minor sources will incur a one

- time burden of 169,590 hours, incurring an estimated $2.1 million, to complete registration for existing minor sources and new permits for existing synthetic minor

sources. The Agency is estimated to incur 162,470 hours or $17.1 million ($2008) in burden to administer the program during the first 3 years after rule promulgation
. Burden is defined atDraft

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Page 202 of 325 5 CFR 1320.3(b) An agency may not conduct or sponsor, and a person is not

r equired 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 t echnical 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 pr epare 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 sm all business as defined by the Small Business Administration’s regulations at 13 CFR 121.201; (2) a small governmentalDraft

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Page 203 of 325 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 h ave 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; andDraft

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Page 204 of 325 • 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 doe s not change the compliance requirements) . T he costs of the source

- specific FIP (the alternative mechanism in the absence of this rule) would have been comparable to the estimated costs of comply ing with this rule. In addition, since the permitting proce ss 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 modif ications 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 201 1 through 2016. However, since data on mi nor sources in Indian country are generally very limited, we conducted an exhaustive search for information currently available from EPA databases, the Small BusinessDraft

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Page 205 of 325 Administration, and EPA Regional Offices. We then collected data from th e 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 c reated 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 o f the rule (2011 through 2016), we estimate that 7,606 new minor sources will be created in Indian country. 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 Busi ness 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. Based on our analysis, EPA estimates that the fewer than 20% of new minor sources in Indian Country will be owned by small businesses
. Thus, we es timate 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 pr oject that 197 of the totalDraft

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Page 206 of 325 estimated 984 minor modifications to existing minor sources during the period 201 1 through 2016 will occur at facilities owned by small businesses . Furthermore, we estimate that 10 synthetic minor sources owned by small busines ses will be created during the period 2011 through 2016. Finally, we estimate that 2 of the 12 major source s in Indian country that make a minor modification to their operations between 2011 and 2016 will be owned by small businesses. Table 3 below summa rizes the estimated numbers of affected facilities and small businesses. Table 3. Projected Number of Affected Small Businesses (201 1 through 2016)
Source type Projected number of new and modified sources owned by small businesses New Minor Sources 1,52 1 Modified Minor Sources 197 Synthetic Minor Sources 10 Minor Modifications to Major Sources 2
Total 1,730

a Based on Year 2008 dollars. To conduct our screening analysis of impacts on small businesses, we compared the estimated costs of compliance for each type of source in each sector with typical small businessDraft

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Page 207 of 325 sales in each sector. Our analysis estimates tha t small businesses investing in new minor source facilities, minor modifications to existing minor sources, minor modification s to existing major sources , and new synthetic minor sources over the period 2011 through 2016 will incur costs that are less than 1 percent of average small company sales revenues for most sectors, but small companies choosing to invest in new auto body r efinishing plants, concrete batching plants, millwork plants, sawmills, solid waste landfills, sand and gravel mines, sand and shot blasting operations, and wood kitchen cabinet manufacturing facilities have the potential to incur costs between 1 percent

a nd 3 percent of sales un der upper bound cost estimates. The
EPA estimates that at most 11 new sources would be owned by small businesses in these sectors ( new auto body refinishing plants, concrete batching plants, millwork plants, sawmills, solid waste l andfills, sand and gravel mines, sand and shot blasting operations, and wood kitchen cabinet manufacturing facilities) during the first 6 years following rule promulgation. Because this is a small number of facilities, and because EPA believes that very f ew new sources will incur upper bound costs, this is considered an over

- estimate of the potential small business impacts. Thus, EPA does not believeDraft

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Page 208 of 325 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. In addition, we are delaying the implementation of the rule for new and modified minor sources until **[INSERT 20 MONTHS F**  **ROM RULE PUBLICATION IN THE FEDERAL REGISTER]**  to give the regulated entities and us, the reviewing authority, time 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 estimates the upper bound total annualized costs of this rule are approximately $20.1 million, including $14.4 mi llion for industry and $5.7 million for the Agency ($2008). Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded MandatesDraft

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Page 209 of 325 Reform Act ( UMRA )
. This rule is also not subject to the requirements of section 203 of UMRA bec ause 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: Federalis m 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 p ower and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule has no requirements applicable to states. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132 , and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicited comment on the proposed rule from state and local officials. To that end, we had two meetings with the STAPPA/ALAPCO 34 to pre sent the draft preamble and rule. We also met with the National Federation of Independent Business and provided outreach material through the

34 This o rganization has since changed its name to the National Association of Clean Air Agencies (NACAA).Draft

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Page 210 of 325 small business ombudsman’s office to get input from the small businesses that might be affected by this rule.
F. Exe cutive 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 statu t e, unless the f ederal government provides the funds necessary to pay the direct compliance costs in curred by tribal gov ernments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact
statement. The EPA has concluded that this action will have tribal implications. However, it will neither impo se substantial direct compliance costs on t ribal governments, nor preempt
t ribal 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 t hese rules will be implemented by EPA, or a delegate tribal agency assisting EPA with administration of the rules, until replaced by an EPA

- approved tribal implementation plan. See sectionDraft

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Page 211 of 325 III.D of this final rule preamble for more details on our outreach and consultation efforts.
G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5

- 501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions that Significantly Affect
Ene rgy Supply, Distribution, or Use This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), be cause it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The number of projec ted new sources in the energy sector due to this rule is a small share (about 1 percent ) of the total number of energy sector fa cilities 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 ImpactDraft

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Page 212 of 325 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 t his action is not considered an “economically significant regulatory action”. With the final rule not being a economically significant regulator y action, it is not considered a significant energy action.
I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104

- 113, 12(d) (15 U.S.C. 272 note) direct s 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 voluntar y consensus standards. This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to AddressDraft

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Page 213 of 325 Environmental Justice in Minority Populations and L ow 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 enviro nmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

- income populations in the United States. The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations because it increases the level of environmental protection for all affected populations (which are persons living in Indian country) without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low

- income population **.** Indeed, EPA believes th at 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.Draft

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Page 214 of 325 Consequently, the regulations a re expected to result in health benefits to persons living in Indian country, many of whom live in low

- income and minority communities.
K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the Uni ted 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**Draft

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Page 215 of 325 **60 DAYS AFTE R 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 doe s not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Under section 307(b) (2) of t he Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.Draft

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Page 216 of 325 **P age**  **2 1**  **6 of**  **3 25**  **- Review of New Sources and Modifications in**  **Indian Country**

**IX. Statutory Authority**  The s tatutory 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). **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 relatio ns.

_ __________________________ Dated:

____________________________ Lisa P. Jackson, Administrator.Draft

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Page 217 of 325 For the reasons cited in the preamble, title 40, chapter I of the Code of Federal Regu lations 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 49.16 1, 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 s ource review (NSR) program in Indian country? As set forth in this Federal Implementation Plan (FIP), the federal minor NSR program in Indian country (or “ progr am ” ) 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 ne w and modified minor sources (minor sources) and minor

mo difications at major stationary sources located in Indian country to meet the requirements of section 110(a)(2)(C) of theDraft

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Page 218 of 325 Act. (2) It establi shes a registration system that will allow the reviewing authority to develop and maintain a record of minor source emissions i n Indian country. (3) It provides a mechanism for an otherwise major stationary source to voluntarily accept restr ictions on its potential to emit to become a synthetic min or source. This mechanism may al so be used by an otherwise major sour ce of HAP s 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 fo r 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 de fined 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 prog ram, according to the following implementation schedule: (i) Existing major sources.Draft

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Page 219 of 325 (A) If you wish to commence construction of a minor modification at an existing major stationary 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 you r p ermit 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 REGI**  **STER]** , you do not need to apply for a synthetic minor source permit under this
program . (ii) Synthetic minor sources. (A) If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source or a modification at an existing synthetic minor source and/or synthetic minor HAP source on or after **[INSERT DATE 60 DAYS**Draft

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Page 220 of 325 **AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]** , you must obtain a permit pu rsuant to § 49.158 prior to commencing construction. (B) If your existing syn thetic 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, y ou do not need to take any action under this program. (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 revi ewing authority has the discretion to require you to submit a permit application for a synthetic minor 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 permi t. If the reviewing authority requires you to obtain a synthetic minor source permit and/or synthetic minor HAP source permit under this program (pursuantDraft

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Page 221 of 325 to §49.158 ) it also has the discretion to require any additional requirements, including control tec hnology 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 t his section, including state

- issued permits or pursuant to achieving your existing synthetic minor status by maintaining your actual emissions at less than 50% of the relevant major source threshold , 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 requir ements, based on the specific circumstances of the source. (iii) True minor sources. (A) If you have an existing true minor source on which construction commenced any time prior to **[INSERT DATE 20 MONTHS**
**AFTER DATE OF PUBLICATION IN THE FEDERAL REGIS TER]**  and that is subject to the registration requirements of §49.160, you must submit the initial registration for the source by **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  orDraft

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Page 222 of 325 within 90 days after the source begins operation, whichever is later. You are exempt from this 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 on or after **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  and the construction or modification is subject to this program , you must obtain a permit pursuant to §§49.154 and 49.155 (o r a general permit pursuant to §49.156, if applicable) prior t o commencing construction. T he 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 t he 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 implementation plan on the date that our approval of that impleme ntation 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

mo difications at major sources.Draft

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Page 223 of 325 (d) What general provisions apply under this program? The following general provisions apply to you as an owner/operator of a stationary source: (1) If you commence construction of a new source or modification that is subject to this program after the applicable date specified in paragraph (c) of this section without applying for and receiving a permit pursuant to this program, you will be subject to appropriate enforcement action. (2) If you do not construct or operate your source or modification in accordance with the terms of your minor NSR permit, you will be subject to appropriate enforcement action. (3) If you are subject to the registration requirements o f 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 p rogram 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 fo r issuing permits under thisDraft

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Page 224 of 325 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 sour ce permit under §49.158), all the actions listed in paragraphs (e)(1) through (8) of this section need to be completed. The processes for issuing general permits and synthetic minor source permit s 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 modificatio ns 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 Analys is if it has reason to be concerned that the construction of your minor source or modification would cause or contrib ute to a NAAQS or PSD increment violation (5) If an AQIA is submitted, t he reviewing authority determines that the new or modified source will not caus e or contribute to a NAAQS or PSD increment violation.Draft

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Page 225 of 325 (6) The reviewing authority develops a draft permit that meets the permit content requirements of § 49.155(a). (7) The reviewing authority provides for public participation, including a 30

- day period for public comment, according to the requirements of § 49.157. (8) The reviewing authority either issues a final permit that meets the requirements of § 49.155(a), or denies the permit and provides re asons for the denial, within 1 35 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 attai nment 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 a pply to the extent that they are used in this programDraft

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Page 226 of 325 (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 establish ed 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, an d 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 practically Comment [E5]: See comment 4

. This definition should be referenced when using the term in the preamble to make it clear that it includes “legally enforceable.”Draft

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Page 227 of 325 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
prac tices, operational standards, pollution prevention techniques) in a permit for a stationary source is achieved if the permit ' s provisions specify: (i) A limitation or standard and the emissions units or activities at the stationary source subject to the l imitation 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 stationary 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 theDraft

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Page 228 of 325 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 perm it. 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 th e United States government, notwithstanding the issuance of any patent, and including rights

- of

- way running through the reservation; 1 (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights

- of

- way running through the same. Indian governing body means the govern ing body of any

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 design ated as a reservation.Draft

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Page 229 of 325 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 stationary source means a modification at a major st ationary 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 stationary source or minor source 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 stationary

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
. T he potential to emit includes fugitive emissions, to the extent that they are quantifiab le, only if the source belongs to one of the so urce categories listed in par t 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 stationary source that would cause an increase in the allowable emissions of a minor source or an incr ease in the actual Comment [E6]: Why has “change in the method of operation” changed to “operational change”?Draft

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Page 230 of 325 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 min or source include fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of t he 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 follow ing 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 pr ohibited under any permit condition that is enforceable as a practical matter
. (3) A change in own ership at a source. Potential to emit means the maximum capacity of a source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of it s design if the limitation or the effect it would have Comment [E7]: Recommend clarifying in the preamble that , consistent with EPA’s historic interpretation, routine maintenance is to be construed narrowly and focuses on what is ro utine for a particular unit, not what is common in the industry.

Comment [E8]: See comment 4. This term should be in all caps or quotations marks to indicate that it includes “legally enforceable.”Draft

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Page 231 of 325 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 with an approved TIP or a tribal agency 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 stationary 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 stationary source s. 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 ha s taken a restriction so that its potential to emit is less than such amounts for major sources. Such restrictions must be enforceable as a practical matter. True minor source means a source that emits or has the potential to emit regulated NSR pollutants in amounts that are less than the major stationary source threshold s in § 49.167 or § 52.21 of this chapter, as applicable, but equal to or greater Comment [E9]: See comment 8.Draft

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Page 232 of 325 than the minor NSR thresholds in § 49.153, without the need to take an enforceable restriction to reduce its p otential to emit to such levels. That is, a true minor source is a minor source that is not a synthetic minor source.
§ 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 regulat ed NSR pollutant that would be emitted by your new or modified source. For each such pollutant, determine applicability as set out in the relevant paragraph (a)(1)(i) or (ii) of this section. (i) New source . Use the following steps to determine applicab ility for each regulated NSR pollutant. (A) Step 1
. Determine whether your proposed source ' s potential to emit the pollutant that you ar e 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. 1 75, or under a program approved by the Administrator pursuant to § 51.165 or § 51.166 of this chapter). If not, go toDraft

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Page 233 of 325 Step 2 (paragraph (a)(1)(i)(B) of this sec tion). (B) Step 2 . Determine whether your proposed source ' s potential to emit the pollutant that you ar e evaluating, ( including fugitive emissions, to the extent they are quantifiable, only if the source belongs to one of the source categories listed pur suant to section 302(j) of the Act ) , is equal to or greater than the corresponding minor NSR threshold in Table 1 of this section. If it is, you are subject to the preconstruction requirements of this program for that pollutant. (ii) Modification at an existing source
. Use the following steps to determine applicability for each regulated NSR pollutant. (A) Step 1 . For the pollutant being evaluated, determine whether your proposed modification is subject to review under the applicable major NSR program
. If the modification at your existing major source does not qualify as a ma jor 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 t he 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 m inor source go to S tep 2 (p aragraph (a)(1)(ii)(B) of this section).Draft

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Page 234 of 325 (B) Step 2
. D etermine whether the increase in allowable emissions from the proposed modification (calculated using the procedures of paragraph (b) of this se ction) 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
y our proposed modification result in an increase in an annual allowable emissions limit for the pollutant that you are evaluating, the proposed modification is subject to paragraph (a)(2) of this section. If not, your proposed modification is not subject t o 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 stationary 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 annu alDraft

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Page 235 of 325 allowable emissions limit may be accomplished through an administrative permit revision as provided in § 4 9.159(f). (3) Synthetic minor source permit s . (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 you r 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 DA**  **TE 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 sour ce,

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 constructio n. (iii ) If you own or operate a synthetic minor source orDraft

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Page 236 of 325 synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to **[INSER T DATE 60** 
**DAYS AFTER DATE OF PU BLICATION 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. ( i v) If you own or operate a synthetic minor so urce or synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to **[INSER T DATE 60** 
**DAYS AFTER DATE OF PU BLICATION IN THE FEDERAL REGISTER])**  through a permit with enforceable emissions limitations issued purs uant to the operating permit program in part 71 of this chapter , the reviewing authority ha s 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** 
**PUBLICATI ON IN THE FEDERAL REGISTER]**  or at the time of p art 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 statu s or synthetic minor source permit s through a mechanism other than those described in paragraphs (iii) and (iv) of this section,Draft

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Page 237 of 325 including s tate

- issued permits, you must submit an application for a synthetic minor source permit under this program by **[INSER T DATE 1 YEAR AND 60 DAYS 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 fr om a physical or operational change at my source? Determine the resulting increase in allowable emissions in tons per year (tpy) of each re gulated 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 sourceDraft

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Page 238 of 325 categories listed pursuant to section 302(j) of the Act, would be the sum of the following: (1) For each new emissions unit that is to be added, the emissions increase w ould 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 replace ment 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 p rior to the change or replacement. However, this may not be a negative value. If an emissions unit’s post

change allowable emissions would less than its pre

- change potential to emit, use zero in the calculation. (c) What emissions units and activities a re exempt from this program?Draft

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Page 239 of 325 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.Draft

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Page 240 of 325 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 (NO x )
............ 5 b 10 Sulfur dioxide (SO 2 )
............. 5 10 Volatile Organic Compounds (VOC)
. 2 b 5 PM ............................... 5 10 PM 10 ............................. 1 5 PM 2.5 ............................. 0.6 3 Lead
............................. 0.1 0.1 Fluorides
........................ NA 1 Sulfuric acid mist
............... NA 2 Hydrogen sulfide (H 2 S)
........... NA 2 Total reduced sulfur (including H 2 S)
.......................... NA 2 Reduced sulfur compounds (including H 2 S)
............... 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, sectio n 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” t py threshold, but that threshold does not apply to minor sources.Draft

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Page 241 of 325 § 49.154 Permit application requirements
. This section applies to you if you are subject to this program under § 49.153(a)(1) for the constru ction of a new minor source or a modification at an existing source. (As an alternative, you may apply for a general permit under § 49.156 if an applicable general permit is available for your source type.) In addition, this section applies to you if you wish to establish a synthetic minor source or a synthetic minor HAP source ( see § 49.158 )
. (a) What information must my permit application contain? Paragraphs (a)(1) through (3) of this sectio n 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).Draft

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Page 242 of 325 (2) Required permit application content . Except as specified in paragraphs (a)(1)(ii) and (iii) of this section, you must include the information listed in paragraphs (a)(2)(i) through (ix) of this section in your application for a permit under this program. The reviewing authority may require additional information as needed to process the permit application. (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact. (ii) A description of your source's processes and products. (iii) A list of all affected emissions units (with the exception of the exempt emissions units and activities listed in
§ 49.153(c)). (iv) For each new emissions unit that is l isted, 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 accountDraft

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Page 243 of 325 for any proposed emission limitations. (v) For each modified emissions unit an d replacement unit that is listed, the allowable emissions of each regulated NSR pollutant in tpy both before and after the modification (including fugitive emissions, to the extent that they are quantifiable , if th e emissions unit or source belongs to one of the sou rce 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 l imitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.Draft

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Page 244 of 325 (ix) For each emission point associated with an affected emissions unit, provide stack or vent dimensions and flow information. (3) Optional permit application content . At your option, you may propose emission limitations for each affected emissions unit, which may include pollution prevention techniques, air pollution control devices, design standards, equi pment 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 authorit y 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 app lication
. (2) If the reviewing authority determines that the application i s 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 reviewingDraft

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Page 245 of 325 authority’s completeness determi nation 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 applic ation 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 gra nted or denied no later than 1 35 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 i nformed decision has been provided
. (c) How will the reviewing authority determine the emission limitations that will be required in my permit? After determining that your application is complete, the reviewingDraft

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Page 246 of 325 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 corres ponding emission limitations for the affected emissions units at your

source. (1) In carrying out this case

- by

- case review, the reviewing authority will consider the following factors: (i) Local air quality conditions. (ii) Typical control technology o r 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 quan tity, 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 autho rity may consist of numerical limits on the quantity, rate, or concentration of emission s; pollution prevention techniques; design standards; equipment standards; work practices ; operational standards; requirements relating to the operati on or maintenance of the source; or any combination thereof.Draft

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Page 247 of 325 (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 availabi lity of the demonstration study and must provide opportunity for a public hearing according to the requirements of § 49.157 for the draft permit. (d) When may the reviewing authority require an air quality impacts analysis (AQIA)? Paragraphs (d)(1) through (3) of this section govern AQIA requirements under this program. (1) If the reviewing authority has reason to be concerned that the construction of your minor sour ce or modification would
cause or cont ribute 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 theDraft

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Page 248 of 325 dispersion models and procedures of part 51, Appendix W of this chap ter. (3) If the AQIA reveals that construction of your source or modification would cause or contrib ute 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.
§ 4 9.155 Permit requirements
. This section applies to your permit if you are subject to this program under § 49.153(a)(1) for construction of a new minor source or a modification at an existing source, unless you applied f or a general permit under § 49.156 (where an applicable general permit is available for your source type). In addition, this section applies to your permit if you wish to establish a synthetic minor source or a synthetic minor HAP source ( see § 49.158). (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 elem ents: (i) The effective date of the permit and the date by which you must commence construction in order for your permit toDraft

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Page 249 of 325 remain valid ( i.e. , 18 months after the permit effective date). (ii) The emissions units subject to the permit and their associate d 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 auth ority under
§ 49.154(c) for each affected emissions unit. In addition, the permit must include an annual allowable emissions limit f or each affected emissions unit and for each regulated NSR pollutant emitted by the unit if the unit is issued an enforceabl e 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
app ly to the affected emissions units at your source. The reviewing authority may require, as appropriate, any of the requirements in paragraphs (a)(3)(i) and (ii) of this section. (i) Any emissions monitoring, including analysis procedures, test methods, periodic testing, instrumental monitoring, and non

- instrumental monitoring. Such monitoring requirements shall assure use of test methods, units, averagingDraft

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Page 250 of 325 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 limitat ions 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 app ropriate. (A) The location, date, and time of sampling or
measurements. (B) The date(s) analyses were performed. (C) The company or entity that performed the analyses. (D) The analytical techniques or methods used. (E) The results of such analyses. (F ) The operating conditions existing at the time of sampling or measurement. (ii) Retention for 5 years of records of all required monitoring data and support information for the monitoringDraft

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Page 251 of 325 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 b y monitoring. (ii) Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. Within the permit, the reviewing authority must define “ prompt ” in relation to the degree and type of deviation likely to occur and the applicable emission limitations. (6) Severability clause . The permit must include a severability clause to ensure the continu ed validity of the other portions of the permit in the event of a challenge to a portion of the permit.Draft

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Page 252 of 325 (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 constit ute 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 incr ement 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

issuance, or termination, or of a notification of planned changes or anticipated noncomplia nce does not stay any permit condition. (v) The permit does not convey any property rights of anyDraft

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Page 253 of 325 sort or any exclusive privilege. (vi) You, as the permittee, shall furnish to the reviewing authority, within a reasonable time, any information that the

re viewing 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 submi t a claim of confidentiality in accordance with part 2, subpart B of this chapter. (vii) U pon presentation of proper credentials, you, as the permittee, must allow a representative of the reviewing authority (who must comply with the safety requirements o f the permittee) 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

rec ords that are required to be kept under the conditions of the permit; (C) Inspect, during normal business hours or while the source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices, or operat ions regulated or required under the permit;Draft

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Page 254 of 325 (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, el ectronic, 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 disconti nue 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 no t apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.
§ 49.156 General permits
. This section applies to general permits for the purposes of complying with the preconstruction permitting requirements for sources of regulated NSR pollutants under this program. (a) What is a general permit? A general permit is a preconstruction permit issued by a reviewing authority that may be applied to a number of similar emissions units or sources.Draft

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Page 255 of 325 The purpose of a general permit is to simplify the permit application and issuance process fo r similar facilities so that a reviewing authority ' s limited resources need not be expended for case

- by

- case permit development for such facilities. A general permit may be written to address a single emissions unit, a group of the same type of emissions units, or an entire minor source. (b) How will the reviewing authority issue general permits? The reviewing authority will issue general permits as follows: (1) A general permit may be iss ued 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 recordkeep ing. “ Similar in nature ” refers to size, processes, and operating conditions. (2) A general permit must be issued according to the requirements for public participation in § 49.157 and the requirements for final permit issuance and administrative and judi cial 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 soleDraft

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Page 256 of 325 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 inform ation listed in paragraphs (d)(1) and (2) of this section. The reviewing authority may specify additional general permit terms and conditions. (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 apply for coverage under a general permit including, but not limited to, the following:Draft

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Page 257 of 325 (i) The name an d 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 reviewi ng 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 apply to the reviewing authority for coverage under the general permit. (2) An application for a permit under this progr am will be reviewed by the reviewing authority within 45 days of its receipt to determine whether the application contains all the information necessary for processing the application. (3) If the reviewing authority determines that your application is no t complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that your application is complete, it may notify you in writing. The reviewingDraft

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Page 258 of 325 authority’s completeness determinati on or request for additional information should be postmarked within 45 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 45 days of receipt of the permit application by the reviewing authority , your application will be deemed complete. (4) Any permit application will be gra nted or denied no later than 90 days after the date the application is deemed complete and all additi onal information necessary to make an informed decision has been provided. (5 ) Following one or more the public participation procedures required in § 49.157 (b)(1)(ii ) , the reviewing authority may grant or deny your request for approval to construct under a general permit. The reviewing authority must send you a letter approving or disapproving the request to construct under a general permit. Such a letter is a final permit action for purposes of judicial review ( see § 49.159) only for the issue of whethe r your source qualifies for the general permit. (6 ) If the reviewing authority has sent a letter approving the general permit for your source, you must comply with all conditions and terms of the general permit
. You will be subjectDraft

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Page 259 of 325 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. (7 ) Your permit becomes inva lid 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 m ay 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. (8) Any source covered under a letter approving the general permit may request to be excluded from the general permit by applying for a permit under § 49.154. § 49.157 Public pa rticipation requirements
. This section applies to the issuance of minor source permits and synthetic minor source permit s, the initial issuance of general permits, and coverage of a particular source under a general permit.Draft

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Page 260 of 325 (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 auth ority must make available for public inspection the documents listed in paragraphs (a)(1) through (5) of this section. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at leas t one location in the area affected by the source, such as the tribal environmental office or a local library. (1) All inf ormation 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 inf ormation you submitted , including (for preconstruction permits and the initial issuance of general permits) the control technology review. (4) For minor source permits and the initial issuance of general permits, the reviewing authority ' s analysis of the effect of the construction of the minor source or modification on ambient air quality. (5) For coverage of a particular source under a general permit, the reviewing aut hority’s analysis of whether yourDraft

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Page 261 of 325 particular emissions unit or source is within the category of emissions units or sources to which the general permi t 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 pe rmit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs (b)(1)(i) and (ii) of this section
. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit. (i) The reviewing authority must mail a copy of the notice to you, the ap propriate Indian governing body, and the tribal, state, and local air pollution authorities having jurisdiction in areas outside of the area of Indian country potentially impacted by the air pollution source. (ii) Depending on such factors as the nature a nd size of your source, local air quality considerations, and the characteristics of the population in the affected area ( e.g. ,Draft

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Page 262 of 325 subsistence hunting and fishing or other seasonal cultural practices) , the reviewing authority must use appropriate means of not ification, such as those listed in paragraphs (b)(1)(ii)(A) through (E) of this section. (A) The reviewing authority may mail or e

- mail a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list. (B) The reviewing authority may post the notice on its website. (C) The reviewing authority may publish the notice in a newspaper of general circulation in the area affected by the source. Where possib le, 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 inc lude the following information at aDraft

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Page 263 of 325 minimum: (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact. (ii) The name and address of the reviewing authority processing the permit action; (iii) For minor source permits, the initial issuance of general permits, and coverage of a particular source under a general permit, the regulated NSR pollutants to be emitted, the affected emissions units, and the emission limitations for each affected emissions unit; (iv) For minor source permits, the initial issuance of general permits, and coverage of a particular source under a general permit, the emissions change involved in the permit action; (v) For synthe tic minor source permit s, 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 reviewin g authority ' s office from whom additional information may be obtained; (viii) Locations and times of availability of theDraft

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Page 264 of 325 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 a ny reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a rec ord 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 andDraft

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Page 26 5 of 325 must state the nature of the issues proposed to be raised at the hearin g. (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, s uch a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit, and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing. (5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.
§ 49.158 Synthetic minor source permit s . You may obtain a synthetic minor source permit under this program to establish a synthetic minor source for purposes of the applicable PSD, n onattainment major NSR , o r Clean Air Act
t itle 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 t itle V purposes but has other applicable requirements ,Draft

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Page 266 of 325 or becomes a synthetic minor for NSR but is major for t itle V
purposes, remains subject to the applicable t itle 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 conta in? (1) Your application must include the following information: (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact. (ii) For each regulated NSR pollutant and/or HAP and for all emissions units to be covered by an emissions limitation, the following information: (A) The proposed emission limitation and a descript ion 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, andDraft

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Page 267 of 325 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 an d 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, inc luding all calculations for the estimates. (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 specifi cally 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 au thority 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;Draft

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Page 268 of 325 (ii) Mass balance calculations; (iii) Publ ished, 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 synthet ic minor source permit ? (1) If you wish to obtain a synthetic minor source permit under this program, you must submit a permit application to the reviewing authority. The applicatio n 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 wri ting. 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 doDraft

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Page 269 of 325 not receive a request for additional informati on 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 th at describes the proposed limitation and its effect on the potential to emit of the source. (5) The reviewing authority must provide an opportunity for public participation and public comment on the draft synthetic minor source permit as set out in § 49.15 7. (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 a fter the date the application is deemed complete and all additional information necessary to make an informed de cision 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 ruleDraft

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Page 270 of 325 (that is, prior to **[INSERT DATE 60 DAYS AFTER D ATE OF**  **PUBLICATION IN THE FEDERAL REGISTER] )**  ? (1) If your existing synthetic minor source and /or synthetic minor HAP source wa s established pursuant to the FIP s applicable to the Indian reservations in Idaho, Oregon , and Washington; or was established under an EPA

- approved rule or permit program limit ing potential to emit , you do not need to take any action under this program
. (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 , th e reviewing authority has the discretion to do any of the fol lowing: (i) Allow you to m aintain the synthetic minor status for
your source through your permit under part 71 of this chapter , including subsequent renewals of that permit
. (ii) R equire you to submit an application for a synthetic minor source permit un der 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 al so has the discretion to require any addition al requirements , including control technology requirements , based on the specificDraft

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Page 271 of 325 circumstances of the source. (iii) Require you to submit an application for a synthetic minor source permit under this program at the same time that you apply to renew your permit under part 71 of this chapter , subject to the provisions in paragraphs (a) and (c)(4)(i) through (ii i ) of this section
. The reviewing authority also has the discretion to require any additional requirements, including control technology requirement s, 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, including s tate

- issued permits or achi eving your existing synthetic minor status by maintaining your actual emissions at less than 50% of the relevant major source threshold , you must submit an application for a synthetic minor source permit under this program by **[IN SERT DATE 1 YEAR AND 60**  **DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]** , subject
to t he 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 followingDraft

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Page 272 of 325 provisions apply: ( i ) After submitting your synthetic minor source permit application , you must respond in a timely manner to any requests from the reviewing authori ty 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 sou rce 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 b e in accordance with the 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 additio nal 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 andDraft

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Page 273 of 325 instead will include applicable major source requirements.
§ 49.159 Final permit issuance and administrative and j udicial 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. The reviewing authority must provide adequate public notice of the final permit decision to ensure tha t 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), for synthetic minor sources and minor modifications at major sources, an d according to one or more of the provisions in §49.157(b)(1)(ii) for site

- specific permits and general permits . A final permit becomes effective 30 days after permit issuance, 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 may be the subject of the request for review must be stayed); or (3) The reviewing authority may make the permit effe ctive immediately upon issuance if no comments requested a change inDraft

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Page 274 of 325 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 pe rmit applicant; (ii) The draft permit or notice of intent to deny the application; (iii) Other documents in the supporting files for the draft permit that were relied upon in the decisionmaking; (iv) All comments received during the public comment
per iod, including any extension or reopening; (v) The tape or transcript of any hearing(s) held; (vi) Any written material submitted at such a hearing; (vii) Any new materials placed in the record as a result of the reviewing authority ' s evaluation of pu blic comments; (viii) The final permit; andDraft

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Page 275 of 325 (ix) Other documents in the supporting files for the final permit that were relied upon in the decisionmaking. (2) The additional documents required under paragraph (c)(1) of this section should be added to t he 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 a re 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 appe als filed under this program, including informal appeals of denials of requests for modification, revocation and

re - issuance, or termination of permits under paragraph (e)(2) of this section. An appeal directed to the Administrator, rather than to the Boa rd, will be forwarded to the Board for consideration. This delegation does not preclude the Board fromDraft

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Page 276 of 325 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 appea l 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 and 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 foreseeable during the public comment period on the draft permit. The 30

- day period within which a person may request review under this section begins when the reviewing authority has fulfilled the notice requirements for the final permit decision, unless a later date is specified in that notice. (3) The petition must include a s tatement of the reasons supporting the review, including a demonstration that any issues identified were raised during the public comment period (including any public hearing) to the extent required by theseDraft

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Page 277 of 325 regulations, unless the petitioner demonstrates that it was impracticable to raise such objections 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 must issue an order either granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision be come final agency action. If the Board grants review in response to requests under paragraph (d)(2) 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 st ate 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 theDraft

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Page 278 of 325 decision, which may incl ude mailing a notice to each party . (6) 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. (7) 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 must be issued by the reviewing authority: (i) When the Board issues notice to the parties that

re view 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. (8) Motions to reconsider a final order must be filed within 10 days after service of the final order. Every such motion must se t 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 forDraft

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Page 279 of 325 reconsideration directed to the Administrator, rather than to the Board, will be forwarded to the Board for consideration, except in cases in which the Board has deferred to the Administrator and the Administrator has issued the final order. A motion for reconsideration must not stay the effective da te of the final order unless specifically so ordered by the Board. (9) 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 weeken d 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 d ays must be added to the prescribed time. (e) Can my permit be reopened? The reviewing authority may reopen a permit for cause on its own initiative, such as ifDraft

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Page 280 of 325 it contains a material mistake or fails to assure complia nce 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 sha ll 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 )
. carol (f) What is an administrative permit revision? The following provisions govern administrative permit revisions. (1) An administrative permit revision is a permit revision that makes any of the following changes: (i) Corrects typographical errors. (ii) Identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar minor administrative change at the source. (iii) Requires more frequent monitoring or reporting by the permittee. (iv) Allows for a change in own ership 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 theDraft

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Page 281 of 325 current and new permittee has been submitted to the reviewing authority. (v) Establishes an increase in an emissions unit ' s annual allowable emissions limit for a regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject to review under major NSR or under this program. (vi) Incorporates any other type of change that the reviewing authority has determined to be similar to those in paragraphs (f)(1)(i) through (v) of this section. (2) An administrative p ermit 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 stationary sources in Indian country. (a) Does this section app ly to my source? This section applies to you if you are the owner/ operato r of a stationary source with any of the following characteristics: (1) Your source is a true minor source on which construction commenced any time prior to **[ INSERT DATE**  **20 MONTHS**  **AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**
. (2) Your source is a true minor source , subject to this rule, on which construction or modification of this source commenced any time on or after **[INSERT DATE 20 MONTHS**  **AFTER DATE**Draft

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Page 282 of 325 **OF PUBLICATION IN THE FEDERAL REGISTER]**  **.** (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 p aragraphs applies to your source: (i) Your source is subject to the registration requirement s under § 49.138

- “Rule for the registration of air pollution sources and the reporting of emissions.” (ii) Yo ur source has a part 71 permit
. (iii) Your source is a synthetic minor source or a synthetic minor HAP source
. (2) For purposes of determining the potential to emit, allowable or actual emissions of your source, you are not required to include emissions from the emissions units and activities listed in §49.153(c). (c ) What are the requirements for registering your minor

source ? The requirements for r egistrations are as follows: (1) Due date. The due date of your source registration varies according to the follow ing paragraphs : (i) If construction c ommenced on your source any time prior
to **[INSERT DATE 20**  **MONTHS AFTER DATE OF PUBLICATION IN THE**  **FEDERAL REGISTER]** , you must submit your source registration byDraft

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Page 283 of 325 **[INSERT DATE 20**  **MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL**  **REGISTER]** or within 90 days aft er the source begins operation, whichever is later. (ii) If construction or modification of your source commenced any time on or after **[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]**  and your source is subject to this rule, your permit application information will be used to fulfill the registration requirements described in 40 CFR 49.160 (c)(2 )
. Additionally, for registration purposes, y ou
must also report your source’s actual emissions (if available) as part of your permit appli cation. (2) Content . You must submit all registration information on forms provided by the reviewing authority. Each r egistration must include the following information, as applicable: (i) Identifying information, including your name and address (an d 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 a ctivities listed in § 49.153(c)). (iv) For each emissions unit that is listed, both the allowable and estimated actual annual emissions of eachDraft

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Page 284 of 325 regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the e missions 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 ra tes, and operating schedules. (vi) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities. (vii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source. (viii) Any other information specifically requested by the reviewing authority. (3) Procedure for estimating emissions
. Your registration should include potential to emit or estimates of the allowable and actual emissions, in tpy, of each regulated NSR pollutant for each emissions unit at the source. (i) Estimates of allowable emissions must be consistent with the definition of that term in §49.152(d). Allowable emissions must be calculated based on 8,760 operating hours per year ( i.e. , operating 24 hours per day, 365 days per year)Draft

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Page 285 of 325 unless the reviewing authority approves a different number of annual operating hours as the basis for the calculation. (ii) Estimates of actu al 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 typica lly shoul d be the annual emissions for 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 yo u 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 th e 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 actua l 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 beDraft

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Page 286 of 325 verifiable using currently accepted engine ering 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 applicab le 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 you r source has been registered , you must report any relocation of your source to the reviewing authority in writing no later tha n 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 Comment [E10]: Suggest add ing that a GADS

- based approach is specific ally approved for electric utilities perhaps in the preamble.Draft

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Page 287 of 325 relocation. Submitting a report of relocation does not relieve you of the requirement to obtain a preconstruction p ermit if the change is subject to any major NSR or minor NSR rule. (2 ) Report of change of ownership
. After your source has been registered , the new owner/operator must report any change of ownership of a source to the reviewing authority in writing wit hin 90 days after the change in ownership is effective. (3 ) Report of closure
. Except for regular seasonal clos ures, after your source has been registered , you must submit a report of closure to the reviewing authority in writing within 90 days after th e 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 prog ram 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 A ct 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 thisDraft

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Page 288 of 325 federal minor NSR program implemented under federal authority to a tribal agency upon request, in accordance with the provisions of paragraph (b) of this section. If the tribal agency has been granted such delegation, it will have the authority to assist EPA according to paragraph (b) of this section , and it will be the reviewing authority for purposes of the provisions for which it has been granted delegation
. (3) If the Administrator ha s 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) Delegati on 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
agen cy, 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 § 49.6Draft

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Page 289 of 325 for treat ment in the same manner as a state. (1) Information to be included in the Administrative Delegation Request . In order to be delegated authority to assist EPA with administration of this FIP permit program for sources, the tribal agency must submit a requ est 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 applic ant ' 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 d escribed 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 rul es and provisions for which delegation is requested; and (iv) A demonstration that the tribal agency has theDraft

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Page 290 of 325 technical capability and adequate resources to administer the FIP provisions for which the delegation is requested. (2) Delegation of Partial Admi nistrative 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 o n 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
t he 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 theDraft

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Page 291 of 325 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 th e 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 sectio n, 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, t he 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 th e 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 delegateDraft

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Page 292 of 325 tribal agency must also submit to the Administrator such information as the Administ rator 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 tr ansmitting 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 ag ency pursuant to paragraph (b)(1) of this section must certify that no applicable provision of tribal law requires that a minor NSR permit be issued after a certain time if the delegate tribal agency has failed to take action on the application (or include s any other similar provision providingDraft

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Page 293 of 325 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 wi ll 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 publ ica tion 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 ad dress this issue in the notice of program approval. (3) After approval of a program for issuing minor NSR permits and the suspension of issuance of minor NSR permits by the Administrator, the Administrator will continue to administer minor NSR permits u ntil permits are issued under the approved tribal implementation plan program.Draft

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Page 294 of 325 §§ 49.162

- 49.165 [Reserved]

3. Subpart C of Part 49 is amended by adding an undesignated center heading and §§ 49.166 through 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) p rogram 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 preconstr uction permitting program for new major stationary sources and major modifications at existing major stationary 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 stationary sources subject to this program comply with the provisions and requirements of partDraft

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Page 295 of 325 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 stationary sources and major modifications at existing major stationary 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 REGISTER]**  . The provisions of this program apply only to stationary 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 dateDraft

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Page 296 of 325 that our approval of that plan becomes effective, pr ovided 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 stationary sources and major modifications at existing major stationary sources in

nona ttainment areas. (d) What general provisions apply under this program? The following general provisions apply to you as an owner/operator of a stationary source: (1) If you propose to construct a new major stationary source or a major modification at an existing major stationary source in a nonattainment area in Indian country, you must obtain a major NSR permit under this program before beginning actual constructio n. If you commence constructi on after the effective date of this program without applying for and receiving a permit pursuant to this program, you will be subject to appropriate enforcement action. (2) If you do not construct or operate your source or modification in accordance with the terms of your major NSR permit issued under this program, you will be subject to appropriate enforcement action. (3) Issuance of a permit under this program does not relieve you of the responsibility to comply fully withDraft

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Page 297 of 325 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 maj or NSR permit program with different requirements in an approved TIP as long as the TIP
meet s 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 fol lowing definitions also apply to this program: Allowable emissions means “ allowable emissions ” as defined in part 51, Appendix S, paragraph II.A .11 of this chapter , except that the allowable emissions for any emissions unit are calculated considering any e mission 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 practically enforceable as follows: (1) An emission limitation or other standard is legally enforceable if the reviewing authority has the right to enforce it. Comment [E11]: See comment 8. Make sure that this term includes “legally enforceable.”Draft

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Page 298 of 325 (2) Practical enforceability for an emission limitation or for other standards (design standards, equipment standards, work practices, op erational standards, pollution prevention techniques) in a permit for a stationary source is achieved if the permit ' s provisions specify: (i) A limitation or standard and the emissions units or activities at the stationary 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, reporti ng, and testing. (3) For rules and general permits that apply to categories of stationary sources, practical enforceability additionally requires that the provisions: (i) Identify the types or categories of sources that are covered by the rule or gener al 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.Draft

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Page 299 of 325 Envir onmental Appeals Board means the Board within the EPA described in § 1.25(e) of this chapter. Indian country , as defined in 18 U.S.C. 1151, means the following: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights

- of

- way running through the reservation; 1 (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights

- of

- way running through the same. Indian governing body means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self

- government.

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.Draft

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Page 300 of 325 Reviewing authority means the Administrator or an Indian tribe in cases where a tribal agen cy is assisting EPA with administration of the program through a delegation under
§ 49.173. Synthetic minor source means a stationary source that otherwise has the potential to emit regulated NSR pollutants in amounts that are at or above those for major st ationary sources in Appendix S, but that has taken a restriction such that its potential to emit is less than such amounts for major stationary sources. Such restrictions must be enforceable as a practical
matter . Synthetic minor HAP source means a sta tionary source that otherwise has the potential to emit HAPs in amounts that are at or above those for major sources of HAP in § 63.2 of this chapter, but that has taken a restriction such that its potential to emit is less than such amounts for major sourc es. 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 appl y to you under either of the following circumstances: (1) If you propose to construct a new major stationary source (as defined in part 51, Appendix S, paragraph II.A .4 of Comment [E12]: See comment 8.Draft

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Page 301 of 325 this chapter ) of the nonattainment pollutant. (2) If you propose to construct a m ajor modification at your existing major stationary source (as defined in part 51, Appendix S, paragraph II.A .5 of this chapter ), where your source is a major stationary source of the nonattainment pollutant and the proposed modification is a major modific ation for the nonattainment pollutant. (b) If you own or operate a major stationary source with a
state

- issued 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 REGISTER]** . In this case, you would not be subject to any additional requirements under this program as long as the
state

- issued permit complies with the requirements of the Act. (c) If you propose to establish a s ynthetic minor source or synthetic minor HAP source, or to construct a minor modification at your major stationary source, you will have to comply with the requirements of the federal minor NSR program in Indian country at §§ 49. 1 51 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 re view criteria for permits are provided in part 51,Draft

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Page 302 of 325 Appendix S, paragraph II. B of this chapter . In summary, that paragraph basically requires the reviewing authority to ensure that the proposed new major stationary source or major modification would meet a ll 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 stationary sources and major modifications locating in nonattainment areas are given in part 51, Appendix S, paragraph I V .A of this chapter . In summary, these are the following: (1) The lowest achievable emission rate (LAER) requirement for any NS R pollutant subject to this program. (2) Certification that all existing major stationary 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 anyDraft

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Page 303 of 325 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) A n analys is 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 m ajor stationary 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 stationary 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 stationary source or major modification is located in a geographical area which meets the criteria forDraft

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Page 304 of 325 an EDZ, and the Administrato r 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 wil l not interfere with attainment of the applicable NAAQS by the applicable attainment date.
§ 49.171 Public participation requirements
. (a) What permit information will be publicly available? With the exception of any confidential information as defined in part 2, subpart B of this chapter, the reviewing authority must make available for public inspection the documents listed in paragraphs (a)(1) through (4) of this section. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the stationary source, such as the tribal environme ntal office or a local library. (1) All inf ormation 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 applicationDraft

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Page 305 of 325 and any additional inf ormation submitted by you, including the LAER analysis and, where applicable, the analysis of your emi ssions reductions (offsets), your demonstration of a net air quality benefit in the affected area and your analysis of alternative sites, sizes, productio n processes, and environmental control techniques
. (4) A copy of the draft permit or the decision to deny the permit with the justification for denial. (b) How will the public be notified and participate? (1) Before issuing a permit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs (b)(1)(i) and (ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit. (i) The reviewing authority must mail a copy of the notice to you, the appropriate Indian governing body, and the tribal, state, and local air pollution authorities having jurisdiction in areas outside of the area of Indian country potentially impacted by the air pollution source. (ii) Dependin g on such factors as the nature and size ofDraft

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Page 306 of 325 your stationary source, local air quality considerations, and the characteristics of the population in the affected area ( e.g. , subsistence hunting and fishing or other seasonal cultural practices) , the reviewing authority must use appropriate means of notification, such as those listed in paragraphs (b)(1)(ii)(A) through (E) of this section. (A) The reviewing authority may mail or e

- mail a copy of the notice to persons on a mailing list developed by the reviewin g 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 th e 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, suc h 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.Draft

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Page 307 of 325 (2) The notice required pursuant to paragraph (b)(1) of this section must include the following information at a minimum: (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact. (ii) The name and address of the reviewing authority processing the permit action; (iii) The regulated NSR pollutants to be emitted, the affected emissions units, and the emission limitations for each affected emissions unit; (iv) The emissions change involved in the permit action; (v) Instructions for requesting a public hearing; (vi) The name, address, and telephone number of a contact person in the reviewing authority ' s office from whom additional information may be obtained; (vii) Locations and t imes 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 noticeDraft

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Page 308 of 325 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 comme nt period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process, and such records must be available to the public. (2) The reviewing authority must extend the public comment period under paragraph (b) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment per iod 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 reque sts, a significant degree of public interest in a draft permit. The reviewing authority may also hold a public hearing at its discretion, whenever, forDraft

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Page 309 of 325 instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewi ng authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit, and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing. (5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.
§ 49.172 Final permit issuance and administrative and judicial review
. (a) How will final action occur, and when will my permit become effective? After making a decision on a permi t, the reviewing authority must notify you of the decision, in writing, and if the permit is denied, provide the reasons for such 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 h ave reasonable access to the decision and supporting materials. A final permit becomes effective 30 days afterDraft

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Page 310 of 325 permit issuance, 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 may be 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 t he 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 admini strative 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;Draft

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Page 311 of 325 (iv) Any new materials placed in the record as a result of the reviewing authority ' s eval uation of public comments; (v) Other documents in the supporting files for the permit that were relied upon in the decision

- making; (vi) The final permit; (vii) The application and any supporting data furnished by you, the permit applicant; (viii) The draft permit or notice of intent to deny the application or to terminate the permit; and (ix) Other documents in the supporting files for the draft permit that were relied upon in the decision

- making. (2) The additional documents required under para graph (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 refer red to in that file. (d) Can permit decisions be appealed? Permit decisionsDraft

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Page 312 of 325 may be appealed according to the following provisions: (1) The Administrator delegates authority to the Environmental Appeals Board (t he Board) to issue final decisions in permit appeals filed under this program, including informal appeals of denials of requests for modification, revocation and

re - issuance, or termination of permits under paragraph (e)(2) of this section. An appeal dire cted to the Administrator, rather than to the Board, will be forwarded to the Board for consideration. 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 discreti on, 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 and 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 reasonablyDraft

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Page 313 of 325 foreseeable during the publi c comment period on the draft permit. The 30

- day period within which a person may request review under this section begins when the reviewing authority has fulfilled the notice requirements for the final permit decision, unless a later date is specified i n that notice. (3) The petition must include a statement of the reasons supporting the review, including a demonstration that any issues identified 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 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 base d 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 must issue an order either granting or denying the petition for review. To the extentDraft

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Page 314 of 325 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) or (4) of this section, public notice must be given as provided in § 49.171(b). Public notice must set fort h 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) 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 acti on. (7) 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 must be issued by the reviewing authority: (i) Wh en 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 i f theDraft

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Page 315 of 325 proceedings are remanded, unless the Board ' s remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies. (8) Notice of any final agency action on a permit shall promptly be published in the Federal Register
. (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.
Mot ions 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 be forwarded to the Board for consideration, except in cases in which t he Board has deferred to the Administrator and the Administrator has issued the final order. A motion for reconsideration must not stay the effective date of the final order unless specifically so ordered by the Board. (10) For purposes of this section, time periods are computed as follows: (i) Any time period scheduled to begin on the occurrence of an act or event must begin on the day after the act or event. (ii) Any time period scheduled to begin before the occurrence of an act or event must be compu ted so that theDraft

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Page 316 of 325 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 o r 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 a 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 th e 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 mor e 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?Draft

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Page 317 of 325 (1) If the Administrator has approved a TIP that includes a major NSR program for station ary 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 upo n request, in accordance with the provisions of paragraph (b) of this section. If the tribal agency has been granted such delegation, it will have the authority to assist EPA according to paragraph (b) of this section , and it will be the reviewing authori ty 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)Draft

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Page 318 of 325 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 nonattai nment 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 federa l law. This section provides for administrative delegation of the federal nonattainment major NSR program and does not affect the eligibility criteria under § 49.6 for treatment in the same manner as a state. (1) Information to be included in the Administ rative Delegation Request . In order to be delegated authority to assist EPA with administration of this FIP permit program for stationary sources, the tribal agency must submit a request to the Administrator that: (i) Identifies the specific provisions f or 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:Draft

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Page 319 of 325 (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 ca rrying 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 d emonstr at ion that the tribal agency has the technical capability and adequate resources to administer the FIP provisions for which the delegation is requested. (2) Delegation of Partial Administrative Authority Agreement . A Delegation of Partial Administrative Authority Agreement (Agreement) will set forth the terms and conditions of the delegation, will specify the provisions that the delegate tribal agency will be authorized to implement on behalf of EPA, and will be entered into by the Administrator and the d elegate 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 tri bal agency will be responsible, to the extent specified inDraft

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Page 320 of 325 the Agreement, for assisting EPA with administration of the provisions of the federal nonattainment major NSR program that are subject to the Agreement. (3) Publication of notice of the Agreement . The Administrator will publish a notice in the Federal Register informing the public of any Agreement for a particular area of Indian country. The Administrator also will publish the notice in a newspaper of general circulation in the area affected by the delegation. In addition, the Administrator will mail a copy of the notice to persons on a mailing list developed by the Administrator consisting of those persons who have requested to be placed on such a mailing list. (4) Revision or revocation of an Agreement . An Agreement may be modified, amended, or revoked, in part or in whole, by the Administrator after consultation with the delegate tribal
agency. (5) Transmission of information to the Administrator
. When administration of a portion of the f ederal 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 anyDraft

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Page 321 of 325 application for permit revision) and each draft permit. You,
t he permit applicant , may be required by the delegate tribal agency to provide a copy of the permit application directly to th e Administrator. With the Administrator ' s consent, the delegate tribal agency may submit to the Administrator a permit application summary form and any relevant portion of the permit application, in place of the complete permit application. To the extent practicable, the preceding information should be provided in electronic format by the delegate tribal agency or by you, the permit applicant, as applicable, and as requested by the Administrator. The delegate tribal agency must also submit to the Adminis trator 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 i nformation transmission requirements . The Administrator may waive the requirements of paragraph (b)(5) of this section for any category of stationary sources (including any class, type, or size within such category) by transmitting the waiver in writing t o the delegate tribal agency. (7) Retention of records . Where a delegate tribal agency prepares draft or final permits or receives applications forDraft

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Page 322 of 325 permit revisions on behalf of EPA, the records for each draft and final permit or application for permit r evision must be kept by the delegate tribal agency for a period not less than 5
years. (8) Delegation of signature authority . To receive delegation of signature authority, the legal statement submitted by the tribal agency pursuant to paragraph (b)(1) of this section must certify that no applicable provision of tribal law requires that a major NSR permit be issued after a certain time if the delegate tribal agency has failed to take action on the application (or includes any other similar provision pro viding 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 EP A 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 uponDraft

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Page 323 of 325 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 i s not complete and will address this issue in the notice of program approval. (3) After approval of a program for issuing nonattainment major NSR permits and the suspension of issuance of nonattainment major NSR permits by the Administrator, the Adminis trator will continue to administer nonattainment major NSR permits until permits are issued under the approved tribal implementation plan program.
§§ 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 a condition to paragraph IV .A to read s as follows : **Appendix S to Part 51 -**  **Emission Offset Interpretative Ruling**
.Draft

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Page 324 of 325 * * * * * II. * * *
B. Review of all sources for emission limitation compliance . The reviewing authority must examine each proposed major new source and proposed major modification 1 to deter mine if such a source will meet all applicable emission requirements in the SIP, any applicable new source performance standard in 40 CFR part 60, or any national emission standard for hazardous air pollutants in 40 CFR part 61 or part 63. If the reviewin g 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. T he permit applicant shall conduct an analysis of alternative sites, sizes, pro duction 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 modi fication.
* * * * *

1 Hereafter the term source will be used to denote both any source and any modification.Draft

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