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````6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 51

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

RIN 2060-AH37

Review of New Sources and Modifications in Indian Country

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

SUMMARY: The EPA is finalizing a Federal Implementation Plan 

(FIP) under the Clean Air Act (CAA or Act) for tribes in Indian 

country. The FIP includes two New Source Review (NSR) 

regulations for the protection of air resources in Indian 

country. The first rule applies to new and modified minor

stationary sources (minor sources) and to minor modifications at 

existing major stationary sources (major sources) throughout 

Indian country. The second rule (nonattainment major NSR rule)

applies to new and modified major sources in areas of Indian 

country that are designated as not attaining the National 

Ambient Air Quality Standards (NAAQS). These rules will be 

implemented by EPA, or a delegate tribal agency assisting EPA 

with administration of the rules, until replaced by an EPAapproved Tribal Implementation Plan (TIP). 

DATES: This final rule is effective on [INSERT DATE 60 DAYS 
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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 Web site. Although 

listed in the index, some information is not publicly available, 

e.g., CBI or other information whose disclosure is restricted by 

statute. Certain other material, such as copyrighted material, 

is not placed on the Internet and will be publicly available 

only in hard copy form. Publicly available docket materials are 

available either electronically through www.regulations.gov or 

in hard copy at the Air and Radiation Docket and Information 

Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, 

Washington, DC. The Public Reading Room is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, excluding legal holidays. 

The telephone number for the Public Reading Room is (202) 566-

1744, and the telephone number for the Air and Radiation Docket 

and Information Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Jessica Montañez, Air 

Quality Policy Division, Office of Air Quality Planning and 

Standards (C504-03), U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 27711, telephone number 

(919) 541-3407, facsimile number (919) 541-5509, e-mail address: 

montanez.jessica@epa.gov.
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SUPPLEMENTARY INFORMATION:

The information in this preamble is organized as follows:

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other 

related information?

II. Overview of the Final Rules

III. Background

A. What is the New Source Review (NSR) program?

1. What are the general requirements of the major 

NSR program?

2. What are the general requirements of the minor 

NSR program? 

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

programs in Indian country? 

C. What is the status of the NSR air quality programs in 

Indian country?

D. What consultation and outreach has been done with 

tribal leaders and representatives?

IV. Final Minor NSR Program for Indian Country

A. General Provisions under the Minor NSR Program

1. What is a minor source and which minor sources 

are subject to this rule?

a. Minor 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 Review

b. Air Quality Impacts Analysis (AQIA)

3. What are the permit content requirements?

a. Emissions Limitations

b. Monitoring, Recordkeeping and Reporting
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c. Other Permit Content Requirements

4. What are the permit issuance procedures, permit 

term and public participation requirements?

a. Permit Issuance Process

b. Permit Term

c. Public Participation Requirements

5. What are the provisions for final action on a 

permit, permit reopenings, administrative permit 

revisions, and administrative and judicial review 

procedures?

a. Final Action on a Permit

b. Permit Reopenings

c. Administrative Permit Revisions

d. Administrative and Judicial Review 

Procedures

C. General Permits

1. What is a “General Permit”?

2. What is the process for issuing general permits?

3. For what categories will general permits be

issued?

4. What are the permit content requirements for 

general permits?

5. What is the process that you may use for 

obtaining coverage under a general permit?

D. Synthetic minor source permits

E. Case-By-Case MACT Determinations under Section 112(g) 

of the Act

F. Treatment of Existing Minor Sources under the Final 

Minor NSR Program

V. Final Major NSR Program for Nonattainment Areas in Indian 

Country

A. What are the requirements for major source permitting 

under Appendix S?

B. How is EPA addressing the lack of available offsets in 

Indian country?

1. Economic Development Zone Option

2. Appendix S, Paragraph VI Option

C. How do I meet the statewide compliance certification 

requirement of the Act and Appendix S?

D. What are the public participation requirements of this 

program?

E. What are the provisions for final action on a permit, 

permit reopenings, and administrative and judicial 

review procedures?

F. How is EPA revising Appendix S?
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VI. Legal Basis, Statutory Authority and Jurisdictional Issues

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

these NSR programs in Indian country?

B. How does a tribe receive delegation to assist EPA with 

administration of the federal minor and major NSR 

rules?

C. What happens to permits previously issued by states to 

sources in Indian country?

VII. Implementation Issues

A. Are tribes allowed to collect fees for NSR permitting?

B. Who retains enforcement authority in Indian country?

C. What is the implementation schedule for the final 

rules?

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination 

with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from 

Environmental Health & Safety Risks

H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Population

K. Congressional Review Act

IX. Statutory Authority

I. General Information

A. Does this action apply to me?

Entities potentially affected by this final rule include 

owners and operators of emission sources in all industry groups 

located in Indian country, EPA, and tribal governments that are 

delegated administrative authority to assist EPA with the 

implementation of these federal regulations. Categories and 
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entities potentially affected by this action are expected to 

include:

Category NAICSa Examples of regulated 

entities

Industry.......... 21111 Oil and gas 

production/operations 

211111 Crude Petroleum and Natural 

Gas Extraction

211112 Natural Gas Liquid Extraction

212321 Sand and Gravel Mining

22111 Electric power generation

221210 Natural Gas Distribution

22132 Sewage treatment facilities

23899 Sand and shot blasting 

operations

311119 Animal food manufacturing

3116 Beef Cattle Complex,

Slaughter House and Meat 

Packing Plant

321113 Sawmills 

321212 Softwood Veneer and Plywood 

Manufacturing

32191 Millwork (wood products mfg)

323110 Printing operations 

(lithographic)

324121 Asphalt hot mix

3251 Chemical preparation

32711 Clay and ceramics operations 

(kilns)

32732 Concrete batching plant

3279 Fiber glass operations

331511 Casting Foundry (Iron)

3323 Fabricated structural metal

332812 Surface coating operations
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3329 Fabricated metal products

33311 Machinery manufacturing

33711 Wood kitchen cabinet 

manufacturing

42451 Grain Elevator

42471 Gasoline bulk plant

4471 Gasoline station 

54171 Professional, Scientific, and 

Technical Services

562212 Solid Waste Landfill

72112 Other (natural gas-fired 

boilers)b

811121 Auto body refinishing

Federal government 924110

Administration of Air and 

Water Resources and Solid 

Waste Management Programs

State/local/tribal

government........ 924110

Administration of Air and 

Water Resources and Solid 

Waste Management Programs a North American Industry Classification System.

b Used NAICS 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 facility is 

regulated by this action, you should examine the applicability 

criteria in the final minor and major NSR programs for Indian 

country, 40 CFR 49.153 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 preceding 
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FOR FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document and other related 

information?

In addition to being available in the docket, an electronic 

copy of this final rule will also be available on the World Wide 

Web. Following signature by the EPA Administrator, a copy of 

this final rule will be posted in the regulations and standards 

section of our NSR home page located at http://www.epa.gov/nsr

and on the tribal air home page at 

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

II. Overview of the Final Rules

The EPA is ensuring that air resources in Indian country 

will be protected in the manner intended by the Act by 

establishing a preconstruction permitting program for new or 

modified minor sources; minor modifications at major sources; 

and new major sources or major modifications in nonattainment 

areas. In addition, we are establishing a minor source 

permitting mechanism for major sources that wish to voluntarily 
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limit emissions to become synthetic minor sources1 and for 

approving case-by-case maximum 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. These final rules will fill this regulatory 

gap. In addition, these rules will provide regulatory certainty 

to allow for environmentally sound economic growth in Indian 

country. 

The minor NSR rule applies to new and modified minor 

sources and to minor modifications at major sources. New minor 

 

1 Sources located within the exterior boundaries of Indian 

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

non-title V operating permit to establish synthetic minor status 

under the FIPs applicable to those reservations until this rule 

becomes effective. See 40 CFR 49.139 and 40 CFR part 49, 

subpart M. However, after the effective date of this rule, 

sources seeking synthetic minor status within the exterior 

boundaries of Indian reservations in these three states as well 

as in Indian country in all other states must apply for 

synthetic minor source permits under the provisions of this 

rule. 

2 As described in section IV.E of this preamble, if the 

Administrator has not established 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 reconstruction 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.
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sources with a potential to emit (PTE) equal to or greater than

the minor NSR thresholds or modifications at minor sources with 

allowable emissions increases equal to or greater than the minor 

NSR thresholds must apply for and obtain a minor NSR permit 

prior to commencing construction of the new source or 

modification. At an existing major source, if a proposed 

modification does not qualify as a major modification (which 

would be subject to major NSR) based on the actual-to-projectedactual 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 determined by the reviewing authority on a caseby-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 permit, some sources can apply 
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for a general permit.3 

This rule will also allow otherwise major sources in Indian 

country to voluntarily accept emission limitations on their PTE 

to become “synthetic minor sources.” Synthetic minor sources 

may include sources that emit regulated NSR pollutants and/or 

hazardous air pollutants (HAPs)4 and any limitations on PTE must 

be enforceable as a practical matter (that is, both legally and 

practically enforceable). The practice of creating synthetic 

minor sources to avoid major NSR and title V is common under 

most state and local minor NSR permitting programs. However, 

outside of Idaho, Oregon, and Washington, no such minor source 

permitting mechanism has been available in federal regulations 

for Indian country, which discouraged sources that could qualify 

 

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 limited resources need not be expended 

for site-specific permit development for such facilities.

4 In such cases, these sources will be subject to the minor 

NSR regulations under 40 CFR 49.151-49.165 and 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. 
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as synthetic minors from locating in areas of Indian country 

outside these three states. We therefore believe that inclusion 

of this provision in the final rules will significantly benefit 

tribes by encouraging larger sources that can qualify as 

synthetic minors to locate in Indian country, thereby promoting 

environmentally sound economic growth. 

Synthetic minor sources will undergo site-specific 

permitting; that is, general permits will not be issued to 

synthetic minor sources. However, we intend to develop general 

permits for some common types of emissions units and minor 

sources to streamline the permitting process. The initial 

establishment of the general permit will include control 

technology review and associated emission limits. Thus, sources 

will not be required to conduct a case-by-case control 

technology review when they apply for coverage under a general 

permit.

Under the nonattainment major NSR rule, affected sources 

are required to comply with the provisions of 40 CFR part 51, 

Appendix S, a transitional rule which generally applies to areas 

that do not have an approved nonattainment major NSR program for 

a particular pollutant in their State Implementation Plan (SIP). 

Sources subject to this rule must meet requirements for Lowest 

Achievable Emission Rate (LAER) control technology, emissions 
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offsets, and compliance certification. 

We are adopting these final rules after further evaluation 

of the proposed provisions and consideration of the public 

comments. On August 21, 2006 (71 FR 48696), EPA proposed the 

Review of New Sources and Modifications in Indian Country (i.e., 

Tribal NSR rules). The EPA held an extensive outreach and 

consultation period (described in section III.D of this 

preamble), along with an extensive public comment period that 

ended on March 20, 2007. The comments provided detailed 

information specific to Indian country, and the final rules

incorporate many of the suggestions we received. We respond to 

many of these comments in explaining our rationale for the final 

rules, which is described in sections IV through VI. 

The final rules adopt many elements of the proposal, but 

differ from the proposal in several important respects. For the 

minor NSR rule, we had proposed a 30-day public comment period 

for the initial establishment of the general permit and also 

proposed that coverage of individual sources under general 

permits would not undergo a public comment period. 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 general 
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permit. 

For the minor NSR rule, we had also proposed Plantwide 

Applicability Limitations (PALs) and project netting. A minor 

source PAL would have been a source-wide limitation on allowable 

emissions of a regulated NSR pollutant expressed in tons per 

year (tpy) that was enforceable as a practical matter. However, 

we are not finalizing minor source PALs after consideration of 

the comments we received. 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 summing both the increases and decreases resulting 

from the modification. We 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 Significant Deterioration (PSD) and Nonattainment 

New Source Review (NSR): Aggregation and Project Netting; 74 FR 

2376.) 

Regarding the proposed list of emissions units and 

activities that will be exempted from the minor NSR program, we 

are finalizing an amended list. This list takes into 

consideration the comments received and the recent developments 

in greenhouse gas regulations. We are also committing to the 

development of a supplemental rule to determine if additional 
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exempted units/activities 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 until they propose a modification. Existing 

true minor sources will, however, be required to register within 

18 months from the effective date of this rule, that is, by 

[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. 

For the major NSR rule, we are not finalizing the proposed 

Appendix S, paragraph VI as an option for offset5 waivers due to 

certain comments raising concerns with implementation of this 

waiver. Relative to the compliance certification area,6 we are 

finalizing a state-wide compliance requirement consistent with

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

We are finalizing the minor NSR and the nonattainment major 

 

5 Under the CAA, emissions reductions (offsets) from 

existing sources in the area of the proposed source (whether or 

not under the same ownership) are obtained such that there will 

be reasonable progress towards attainment of the applicable 

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

6 Also under the CAA, a permit applicant must certify that 

all existing major sources owned or operated by the applicant 

(or any entity controlling, controlled by, or under common 

control with the applicant) in the same state as the proposed 

source are in compliance with (or under a federally-enforceable 

compliance schedule for) all applicable emission limitations and 

standards under the Act. See section 173(a)(3) of the Act. 
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NSR permit programs pursuant to section 110(a)(2)(C), part D of 

title I, and section 301(d) of the Act. 

III. Background

A. What is the New Source Review (NSR) program?

1. What are the general requirements of the major NSR program?

The major NSR program contained in parts C and D of title I 

of the Act is a preconstruction review and permitting program 

applicable to new major sources and major modifications at such 

sources. In areas not meeting health-based NAAQS and in ozone 

transport regions (OTR), the program is implemented under the 

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

program the "nonattainment" major NSR program. In areas meeting 

the NAAQS ("attainment" areas) or for which there is 

insufficient information to determine whether they meet the 

NAAQS ("unclassifiable" areas), the NSR requirements under 

part C of title I of the Act apply. We call this program the 

Prevention of Significant Deterioration (PSD) program. 

Collectively, we also commonly refer to these programs as the 

major NSR program. These rules are contained in title 40 of the 

Code of Federal Regulations (CFR), §§51.165, 51.166, 52.21, and 

52.24 (40 CFR 51.165, 51.166, 52.21, and 52.24), and 40 CFR part 

51, Appendices S and W.

For newly constructed, "greenfield" sources, the 
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determination of whether a source is subject to the major NSR 

program is based on the source’s PTE. The Act, as implemented 

by our rules, sets applicability thresholds for major sources in 

both attainment and nonattainment areas. For nonattainment 

areas, these thresholds are 100 tpy of any pollutant subject to 

regulation under the Act, or smaller amounts, depending on the 

nonattainment classification. For attainment areas the 

thresholds are 100 or 250 tpy, depending on the source type.7

 A 

new source with a PTE at or above the applicable threshold 

amount "triggers," or is subject to, major NSR.

For existing major sources, major NSR applies to a major 

modification. For a modification to be major, the following 

three criteria have to be met:

(1) A physical change in or change in the method of 

operation of a major 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 (see 40 CFR 52.21(b)(1)(i)(a)). All 

other sources are subject to a 250 tpy threshold. (See 40 CFR 

52.21(b)(1)(i)(b).) In addition, under the recently finalized 

“Greenhouse Gas Tailoring Rule,” greenhouse gases will be phased 

into the PSD program with higher applicability thresholds (75 FR 

31514). 
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Appendix S, paragraph II.A.10 for nonattainment major NSR); and

(3) The increase in emissions resulting from the change 

must result in a significant net emissions increase. In other 

words, when the increase from the project is added to other 

contemporaneous increases and decreases in actual emissions8 at 

the source, the net emissions increase must be significant 

(equal to or above the significance levels defined in 40 CFR 

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

II.A.10 for nonattainment major NSR).

Major sources and major modifications subject to 

nonattainment major NSR must apply state-of-the-art emissions 

control technologies, including any pollution prevention 

measures, to achieve the lowest achievable emission rate. The 

lowest achievable emission rate is 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, "contemporaneous" emissions 

increases or decreases are those that have occurred between the 

date 5 years immediately preceding the proposed physical or 

operational change and the date that the increase from the 

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

nonattainment major NSR, see, 40 CFR part 51, Appendix S, 

paragraph II.A.6(ii).
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reductions from other sources in the area, or in an area of 

equal or higher nonattainment classification that contributes to 

nonattainment in the proposed major source’s area. The ratio of 

the offset relative to the proposed increase must be at least 

one-to-one and is based on the severity of the area’s 

nonattainment classification. For ozone and particulate matter 

less than or equal to 10 microns in aerodynamic diameter (PM10), 

the more polluted the air is where the source is locating or 

expanding, the greater the required offset ratio is. The 

emissions reductions to be used as offsets must be surplus (not

otherwise required by the Act), quantifiable, federally 

enforceable, and permanent. See sections 173(a) and (c) of the 

Act and 40 CFR 51.165(a)(3).

Additionally, each nonattainment major NSR permit applicant 

must also conduct an analysis of alternative sites, sizes, 

production processes, and environmental control techniques 

demonstrating that the benefits of the proposed emissions source 

significantly outweigh the environmental and social costs of its 

location, construction, or modification. Moreover, each

nonattainment major NSR permit applicant must demonstrate that 

all other major sources under her/his control in the same state 

are in compliance or on a schedule of compliance with all 

emission limitations and standards of the Act.
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Under the PSD program for attainment areas, a major source 

or modification must apply Best Available Control Technology 

(BACT), which may be based on pollution prevention techniques. 

In addition, the source must analyze the impact of the project 

on ambient air quality to assure that no violation of the NAAQS 

or PSD increments will result, and must analyze impacts on soil, 

vegetation, and visibility. Sources or modifications that would 

impact Class I areas (e.g., national parks) may be subject to 

additional requirements to protect air quality related values 

(AQRVs) that have been identified for such areas.

2. What are the general requirements of the minor NSR program?

Section 110(a)(2)(C) of the Act requires that every SIP 

include a program to regulate the construction and modification 

of stationary sources, including a permit program as required by 

parts C and D of title I of the Act, to ensure attainment and 

maintenance of NAAQS. Parts C and D address the major NSR 

program for major sources, and the permitting program for minor 

sources is addressed by section 110(a)(2)(C) of the Act. We 

commonly refer to the latter program as the minor NSR program. 

A minor source means a source whose PTE is lower than the major 

NSR applicability threshold for a particular pollutant as 

defined in the applicable nonattainment major NSR program or PSD 

program.
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States must develop minor NSR programs to attain and 

maintain the NAAQS and the federal requirements for state minor 

NSR programs are outlined in 40 CFR 51.160 through 51.164. 

These federal requirements for minor NSR programs are 

considerably less prescribed than those for major sources and as 

a result there is a larger variation of requirements in the

state minor NSR programs. 

Furthermore, Section 110(a)(2)(C) of the Act provides us 

with a broad degree of discretion in developing a program to 

regulate new and modified minor source construction activities 

in Indian country. 

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

programs in Indian country?

The Tribal Authority Rule (TAR) authorizes eligible Indian 

tribes to implement EPA-approved nonattainment major NSR (part D 

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

other programs under the Act in the same manner as states. This 

is accomplished when Indian tribes develop 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 implementing that particular 

program. However, if Indian tribes are unable, or choose not, 
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to include a CAA program such as NSR in a TIP, we will implement 

the program. 

The Act provides us with broad authority to protect air 

resources throughout the Nation, including air resources in 

Indian country. See, for example, the preamble discussion for 

the proposed and final TAR (59 FR 43956, 43958-61, August 25, 

1994; 63 FR 7254, 7262-64, February 12, 1998) and the preamble 

discussion for the proposed revisions to the part 71 federal 

operating permits program for Indian country (62 FR 13748, 

13750, March 21, 1997). In the preambles to the proposed and 

final TAR, we discussed generally the legal basis under the Act 

for EPA and tribal regulation of sources of air pollution in 

Indian country. We concluded that the Act constitutes a 

statutory delegation of federal authority to eligible tribes 

over all sources of air pollution within the exterior boundaries 

of their reservations. 

Further, under the Act, tribes may also apply to administer 

tribal air quality programs for non-reservation areas over which 
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they can show jurisdiction.9 See 63 FR 7254-7259; 59 FR 43958-

43960; Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. 

Cir. 2000), cert. den., 532 U.S. 970 (2001).

In the preamble to the TAR, we also concluded that the Act 

 

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 (10th

Cir. 2000); see also discussion in EPA’s final rule for the 

federal operating permits program (64 FR 8251-8255, February 19, 

1999). To provide additional certainty to regulated entities, 

we believe it is helpful to clarify the extent to which state 

NSR programs have force in Indian country. We interpret past 

approvals and delegations of NSR programs as not extending to 

Indian country unless the state has made an explicit 

demonstration of jurisdiction over Indian country, and we have 

explicitly approved or delegated the state's program for such 

area. This is consistent with Congress’ requirement that we 

approve state and tribal programs only where there is a 

demonstration of adequate authority. See sections 110(a)(2)(E), 

110(o), and 301(d) of the Act and 40 CFR part 49. Since states 

generally lack the authority to regulate air resources in Indian 

country, we do not believe it would be appropriate for us to 

approve state programs under the Act as covering Indian country 

where there has not been an explicit demonstration of adequate 

jurisdiction and where we have not explicitly indicated our 

intent to approve the state program for an area of Indian 

country. In state NSR program approvals and delegations, we 

generally were not faced with state assertions of authority to 

regulate sources in Indian country. However, to the extent 

states or others may have interpreted our past approvals or 

delegations that were not based on explicit demonstrations of 

adequate authority and did not explicitly grant approval in 

Indian country, as approvals to operate NSR programs in Indian 

country, we wish to clarify any such misunderstanding.
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authorizes us to protect air quality throughout Indian country. 

See 63 FR 7262, 59 FR 43960-43961 citing sections 101(b)(1), 

301(a), and 301(d) of the Act.

In addition, section 301(a) of the Act provides us broad 

authority to issue such regulations as are necessary to carry 

out the mandates of the Act. Several provisions of the Act call 

for federal implementation of a program where, for example, a 

state, or in this case a tribe, fails to adopt a program or 

adopts an inadequate program. See, for example, sections 

110(c)(1), 502(d)(3), and 502(i)(4) of the Act. These 

provisions exist in part to ensure that the benefits of the Act 

are realized throughout the United States, whether or not local 

governments choose to participate in implementing the Act. 

Especially in light of the problems associated with transport of 

air pollution across state and tribal boundaries, it follows 

that Congress intended that we have the authority to operate a 

federal program in the absence of an adequately implemented EPAapproved program. See, for example, 59 FR 43958-61, August 25, 

1994; 62 FR 13750, March 21, 1997; and 63 FR 7262-64, February 

12, 1998.

This interpretation is most evident from Congress’ grant of 

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

Section 301(d)(4) authorizes the Administrator to directly 
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administer provisions of the Act so as to achieve the 

appropriate purpose where tribal implementation of those 

provisions is inappropriate or administratively infeasible. We 

determined that it is inappropriate to subject tribes, among 

other things, to the mandatory submittal deadlines and to the 

related federal oversight mechanisms in section 110(c)(1) of the 

Act, which are triggered when we make a finding that states have 

failed to meet required deadlines or disapprove a plan 

submittal. See 40 CFR 49.4(d).

By determining that tribes should not be treated similarly 

to states for purposes of the specific FIP obligation under 

section 110(c)(1) of the Act, we are not relieved of the general 

obligation under the Act to ensure the protection of air quality 

throughout the Nation, including throughout Indian country. 

Rather, consistent with the provisions of sections 301(a) and 

301(d)(4) of the Act, we expressed our intent to promulgate 

without unreasonable delay 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. We 
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believe that Congress authorized us, consistent with our Indian 

policy, to avoid the 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, 101st Cong., 1st Sess. 79 (1989) 

(implementation of the Act to be in a manner consistent with 

EPA’s Indian policy). In addition, section 301(d)(4) authorized 

us to implement the Act in non-reservation areas of Indian 

country in order to fill any gap in program coverage and to 

ensure an efficient and effective transition to EPA-approved 

programs.

Our interpretation of section 301(d) of the Act as 

authorizing our implementation throughout Indian country is also 

supported by the legislative history. See S. Rep. No. 228, 101st

Cong., 1st Sess. 80 (1989) (noting that section 301(d) of the Act 

authorizes the EPA to implement provisions of the Act throughout 

“Indian country” when there is no approved tribal program); Id. 

at 80 (noting that criminal sanctions are to be levied by the 

EPA, “consistent with the Federal government’s general authority 

in Indian country”); Id. at 79 (the purpose of section 301(d) of 

the Act is to “improve the environmental quality of the air 

within Indian country in a manner consistent with the EPA Indian 

Policy”).
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Therefore with these final rules, we will exercise our 

authority to administer the minor NSR permitting program and the 

nonattainment major NSR program in Indian country, which is 

generally the area over which a tribe may potentially receive 

approval of programs under the Act. As noted in the final TAR, 

we interpret the Act as establishing a territorial approach to 

implementation of the Act within Indian country by delegating to 

eligible tribes authority over all reservation sources without 

differentiating among the various categories of on-reservation 

lands (63 FR 7254-7258). In addition, the Act authorizes 

eligible tribes to implement tribal programs under the Act in 

non-reservation areas over which a tribe has jurisdiction, 

generally including all areas of Indian country (63 FR 7258-

7259).

In order to further our commitment to use our authority 

under the Act to protect air quality throughout Indian country 

by directly implementing the Act’s requirements, we are now 

exercising the rulemaking authority entrusted to us by Congress 

to directly implement the minor NSR permitting program and 

nonattainment major NSR permitting program throughout all areas 

of Indian country. See generally, Chevron USA, Inc. v. NRDC, 

467 U.S. 837, 842-45 (1984).

C. What is the status of the NSR air quality programs in 
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Indian country?

No tribe is currently administering an EPA-approved PSD 

program. Therefore, EPA has been implementing a FIP for major 

sources in attainment areas and has been issuing PSD permits in 

Indian country. See 40 CFR 52.21. For the nonattainment major 

NSR program or the minor NSR program 10in 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 country. This 

final rule will allow us to address that gap, and more fully 

implement the NSR program in Indian country. We are finalizing 

the minor NSR program at 40 CFR 49.151 through 49.165 and the 

nonattainment major NSR program at 40 CFR 49.166 through 49.175

and these programs will continue to apply except where we 

explicitly approve an implementation plan for such programs for 

a specific area in Indian country.11 The requirements finalized 

under these rules do not apply to State permitting programs. 

As we stated previously, sections 301(d) and 110(o) of the 

 

10 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).

11 Although many states have developed regulatory programs 

for minor sources, those programs do not apply in Indian country 

unless explicitly approved by EPA for such areas. 
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Act give the tribes the authority to develop their own tribal 

programs and we encourage eligible tribes to develop their own 

minor and nonattainment major NSR programs for incorporation 

into TIPs. However, we understand that not all tribes have the 

resources to design and implement NSR programs; therefore, in 

the absence of an EPA-approved program, this final rulemaking 

provides a federal program for implementing the minor NSR and 

the major NSR program in nonattainment areas of Indian country. 

Tribes may use this program as a model if they choose to develop 

their own tribal implementation plans and obtain our approval.

Since, in most cases and in the absence of an EPA-approved 

program, it would be neither practical nor administratively 

feasible for us to develop and implement a separate program for 

each area of Indian country; these final rules will implement a 

flexible FIP for Indian country that provides new and modified 

minor sources and major sources in nonattainment areas with 

procedures to demonstrate that they will be operating in a 

manner that is protective of air resources and the NAAQS. In 

addition, these rules will ensure that any economic growth 

occurring in Indian country will be in harmony with the 

preservation of Clean Air Act resources. 

D. What consultation and outreach has been done with tribal 

leaders and representatives?
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Prior to undertaking this rulemaking, we sought to include 

tribes early in the rulemaking process. On June 24, 2002, we 

sent approximately 500 letters to tribal leaders seeking their 

recommendations for effective consultation and their involvement 

in developing these rules. 

We received responses from 75 tribes. Of these 75 tribes, 

69 designated an environmental staff member to work with us on 

developing the rules. Aside from the designated staff, many 

tribal leaders asked that we keep them informed of our progress 

through e-mail, meetings with the EPA Regional Offices, 

newsletters, and Web sites. In addition, 53 percent of the 

tribal leaders also requested direct phone calls or conference 

calls to discuss the subject and only 16 percent of the 

respondents requested face-to-face consultation. Of these, only 

six tribes requested senior EPA staff to meet with tribal 

leaders.

As a result of this feedback, we developed a consultation 

plan that included three meetings held at the reservations of 

the Menominee Tribe in Wisconsin, the Mohegan Tribe in 

Connecticut, and the Chehalis Tribe in Washington. A fourth 

meeting was held in conjunction with the Institute of Tribal 

Environmental Professionals’ (ITEP) 10th anniversary meeting in 

Flagstaff, Arizona. In addition to conducting these meetings, 
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we also visited tribal environmental staff in Indian country. 

Over 30 tribes attended these meetings. We also participated in 

numerous national and regional forums including the National 

Tribal Forums sponsored by the ITEP, two National Tribal Air 

Association meetings, and meetings with tribal consortia, such 

as the National Tribal Environmental Council, United Southern 

and Eastern Tribes, Inter-Tribal Environmental Council, Inter 

Tribal Council of Arizona, and others.

Although much of our effort focused on outreach to the

tribes, we also interacted with state and local air pollution 

control agencies during development of these rules. We had two 

meetings with the State and Territorial Air Pollution Program 

Administrators and the Association of Local Air Pollution 

Control Officers (STAPPA/ALAPCO) to present the draft rules.12 

We considered feedback from all stakeholders and proposed 

the “Review of New Sources and Modifications in Indian Country” 

rules on August 21, 2006 (71 FR 48696). However, tribal 

government representatives expressed concerns that the long gap 

between consultation/outreach and action by the Agency 

undermined the effectiveness of these interactions. Thus, after 

proposal of the rule, we started an extensive outreach program

 

12 This organization has since changed its name to the 

National Association of Clean Air Agencies (NACAA).
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in the years 2006 and 2007 to inform and seek comments from the 

public, especially tribes. 

We again sent over 500 letters to tribal leaders to inform 

them about the proposal. We did not receive any formal 

responses to these letters and did not receive any request for 

formal consultation from the tribes, but they contacted us 

either through e-mail or phone calls and asked to keep them 

informed of our progress through e-mail, meetings, training

sessions, newsletters, and/or Web sites. To enhance 

understanding of the proposal, and what it would mean for Indian 

country, we supplemented the 2006 outreach efforts by holding 

four training sessions using web conferencing not only for 

tribes, but also for EPA Regional Offices, air program managers, 

and tribal organizations. We also held training sessions in 

2006 and at the request of the tribes for interested tribal and 

other environmental professionals at the Pechanga Band of 

Luiseño Indians in California and Salt River Pima-Maricopa 

Indian Community in Arizona. In addition, we held training

sessions for all interested parties at EPA Region V’s Tribal Air 

Meeting in Illinois (2006) and EPA's Region X’s office in 

Washington (2007). 

We participated in numerous national and regional forums 

including the forums sponsored by the Institute of Tribal 
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Environmental Professionals, the National Tribal Air 

Association, and at meetings with tribal consortia, such as the 

United Southern and Eastern Tribes. We also interacted with 

state and local air pollution agencies during this outreach 

period and had meetings with the NACAA.

Furthermore, we extended and reopened the comment period 

for the proposed rules twice (from November 20, 2006 to January 

19, 2007 and from January 19, 2007 to March 20, 2007) at the 

request of the tribes. During this time, we also recorded and 

presented a webcast video for all interested stakeholders to 

train more environmental professionals about the NSR program and 

the rules themselves. 

In addition, to address the concern about the long gap

between the proposal and finalization of the rules, 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 

rules to ensure that the tribes are aware of the rules 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 

rules. 
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IV. Final Minor NSR Program for Indian Country

This rulemaking finalizes provisions for a minor NSR 

program in Indian country, codified at 40 CFR 49.151 through 

49.165. The program includes requirements for preconstruction 

review for minor sources and minor modifications, general 

permits, and synthetic minor source permits. The minor NSR 

program also serves as a mechanism for case-by-case MACT 

determinations and establishes a registration system for 

existing minor sources to improve the tribal source emission 

inventory. 

Our primary goal in developing this program is to ensure 

that air resources in Indian country will be protected in the 

manner intended by the Act. In addition, we seek to establish a 

flexible preconstruction permitting program for minor sources in 

Indian country that is comparable to similar programs in 

neighboring states in order to create a more level regulatory 

playing field for owners and operators within and outside of 

Indian country. 

This final rulemaking is not intended to establish a new 

set of minimum criteria that a tribe, or a state, would need to 

follow in developing its own minor source permitting program. 

Rather, these rules simply represent how we will implement the 

program in Indian country in the absence of an EPA-approved TIP. 
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However, if a tribe is developing its own program, this can 

serve as one example of a program that meets the objectives and 

requirements of the Act. This final minor source permitting 

program addresses, on a national level, many environmental and 

regulatory issues that are specific to Indian country. We 

understand that different tribes may face different issues, and 

may therefore, like states developing SIPs, choose to develop 

TIPs tailored to their individual tribal circumstances and 

needs. This rule will allow tribes to develop their own TIPs, 

consistent with the overarching requirement that the tribe 

ensure that the TIP will not interfere with any applicable 

requirement of the CAA. 

A. General Provisions under the Minor NSR Program

1. What is a minor source and which minor sources are subject 

to this rule?

a. Minor 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” means a source that emits or has the potential to emit 

regulated NSR pollutants in amounts that are less than the major 

stationary source thresholds in 40 CFR section 49.167 or 52.21, 

as applicable. We also proposed that the term “minor stationary 
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source” applies 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 insignificant source 

categories or activities being finalized under this rule. After 

considering these comments, we believe it is appropriate to do 

so. Accordingly, we have amended the final minor source

definition to specifically refer to the minor NSR thresholds and 

the exempted emissions units and activities. In addition, since

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 deleted from the 

definition the statement that read: “the term “minor stationary 

source” applies independently to each regulated NSR pollutant 

that the source has the potential to emit.” 

Furthermore, we have amended the minor stationary source

definition to specify that the PTE of a source includes fugitive 

emissions, to the extent that they are quantifiable, only if the 

source belongs to one of the source categories listed in 40 CFR 

52.21(b)(1)(iii) (for PSD) and 40 CFR part 51, Appendix S, 

paragraph II.A.4(iii) (for nonattainment major NSR) of the major 

NSR rules pursuant to section 302(j) of the Act.
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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. The potential to emit 

includes fugitive emissions, to the extent that they are 

quantifiable, only if the source belongs to one of the source 

categories listed in 40 CFR part 51, Appendix S, paragraph 

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

A source’s PTE for a pollutant is expressed in tpy and 

generally is calculated by multiplying the maximum hourly 

emissions rate in pounds per hour (lbs/hr) times 8,760 hours 

(which is the number of hours in a year) and dividing by 2,000 

(which is the number of pounds in a ton). If a source is 

restricted by permit conditions that limit its emissions and are 

enforceable as a practical matter, its PTE (and allowable 

emissions) are calculated based on the permit restrictions.

For the NSR program in Indian country, the major source 

thresholds are defined in the PSD program (see 40 CFR 52.21) and 

in the nonattainment major NSR program being finalized in this 

action (see 40 CFR 49.167), as applicable. These thresholds may 
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differ in attainment areas and nonattainment areas for the same 

pollutant. For example, in attainment areas the major source 

threshold for nitrogen oxides (NOx) is 250 tpy, unless the source 

belongs to a source category that is listed in the major NSR 

rules (see 40 CFR 52.21(b)(1)(i)(a)), in which case the major 

source threshold is 100 tpy. In contrast, the major source 

threshold for NOx in ozone nonattainment areas can vary from 10 

tpy in an extreme ozone nonattainment area to 100 tpy in a 

marginal ozone nonattainment area (see 40 CFR part 51, Appendix 

S, paragraph II.A.4(i)). 

The final rule establishes minor NSR thresholds as 

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

b. Determining Applicability for New Minor Sources

As stated in the proposal, in all NSR applicability 

determinations, you must evaluate each regulated NSR pollutant 

individually because the area where your source is located may 

be attainment for some pollutants and nonattainment for others. 

For a given new source or modification, a particular pollutant 

may be subject to review under PSD, nonattainment major NSR, or 

minor NSR, or may not be subject to any of these programs. 

For proposed new sources, the first step is to calculate 

the potential to emit of each regulated NSR pollutant. The 

second step is to determine whether the source is subject to the 
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applicable major NSR program (i.e., 40 CFR 49.166 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 that 

regulated NSR pollutant. Under the nonattainment major NSR 

program, this step is repeated for each regulated NSR pollutant 

the source has the potential to emit. Under the PSD program, if 

the source’s potential to emit is greater than the major source 

threshold for one pollutant, then PSD applies to any other 

pollutants for which the potential to emit is above the level 

defined as “significant” in the PSD regulations.13 The 

significance level is typically lower than the major source 

threshold; for example, the significance level for PM10 is 15 tpy

while the major source threshold is 100 or 250 tpy.

If your proposed new source is not subject to major NSR for 

a particular regulated NSR pollutant, the next step is to 

determine whether the source is subject to the requirements of 

this minor NSR rule for that pollutant, i.e., if the source’s 

potential to emit of the pollutant is equal to or greater than 

 

13 The significance levels are defined in 40 CFR 

52.21(b)(23).
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the applicable minor NSR threshold listed in Table 1 of this 

final rule. These steps are repeated for every regulated NSR 

pollutant the source has the potential to emit. However, for a 

source to be considered a minor source, the PTE of each NSR 

pollutant for that source must be less than the corresponding

major source threshold. 

We sought comment in the proposal as to whether in 

calculating these emission levels for applicability purposes, 

you should include fugitive emissions, to the extent they are 

quantifiable, for all sources, or include them only for source 

categories listed pursuant to section 302(j) of the Act, or

exclude them for all sources. 

Several of the commenters supported the approach of 

including fugitive emissions for all sources. They stated 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 believed that the 

costs for complying with minor NSR for fugitive emissions could 
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potentially be substantial and that fugitive emissions are 

inherently difficult to quantify. In addition, one commenter 

added that fugitive emissions should only be included for source 

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

extensive analysis of the history of regulating fugitive 

emissions under NSR. 

Based on the comments received, we are finalizing 

provisions that require including fugitive emissions in the 

minor NSR applicability determination, to the extent that they 

are quantifiable, only if the 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)). We 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 

applicability determinations would be small compared to the 

regulatory and economic burden that we would impose on minor 

sources in Indian country if we were to require the estimation

of fugitive emissions for all minor sources. See final 40 CFR 

49.153(a).

2. What is a modification and which modifications are subject 

to this rule?
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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 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 any 

permit condition that is enforceable as a practical

matter.

• A change in ownership at a stationary source is not 

considered a modification.

Several commenters supported our proposal to adopt a

definition for the term “modification” for the minor NSR program 

in Indian country based on an increase in allowable emissions 

(allowable-to-allowable test). These commenters believed that 

an allowable-to-allowable test would be a simpler test than the 

actual-to-projected-actual test that applies to the major NSR 

Comment [E1]: “practical” should be “legal”. 

This is a paraphrase; 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.
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program; it will be less costly, less time consuming, and less

complicated for tribal minor sources; and it is legal under the 

CAA and consistent with some state and local minor NSR programs 

that we have approved in SIPs pursuant to section 110 of the 

Act. 

On the other hand, other commenters opposed the allowable 

emissions test because they believed that it is less stringent 

than the alternative tests and/or it is contrary to the Act and 

recent court decisions. They also believed that the allowableto-allowable test will be inconsistent with the major NSR 

program, and it does not ensure that the NAAQS are achieved 

(i.e., it could lead to unreviewed increases in emissions that 

would be detrimental to air quality). Furthermore, some of 

these commenters believed that an allowable-to-allowable test 

will not capture those sources that escape major NSR review. 

For these reasons, opposing commenters suggested the use of an 

actual-emissions-based test which could include an actual-topotential, actual-to-projected-actual, or an actual-to-futureactual test. 

For the most part, we agree with those commenters that 

endorsed the concept of defining the term modification for the 

minor NSR program as a change in allowable emissions. As we 

stated in the proposal (71 FR 48696), we evaluated the three 
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basic types of applicability tests (actual-to-potential, actualto-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 implementation of the program for the minor 

sources in Indian country that, to date, have little experience 

with any air regulations. Since minor sources in Indian country 

have been unregulated until now, many of these sources have not 

kept track of actual emissions data, making the initial 

application of any test based on actual emissions virtually 

impossible. In addition, we understand that some state minor 

NSR programs use an allowable-to-allowable test which would make 

this program for Indian country consistent with the programs in 

these states. 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 increases 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-toallowable test, avoiding any permitting requirements at all.

In addition, we disagree with those commenters that 

believed that using an allowable-to-allowable test is contrary 
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to the Act and recent court decisions and therefore will be tied 

up in litigation. As we discussed in the proposal preamble, we 

believe that we have the discretion to use an allowable-toallowable test for this minor NSR program because the statutory 

basis for minor NSR is section 110(a)(2)(C) of the Act. By 

contrast, parts C and D of title I of the Act provide the 

statutory basis for the major NSR program and refer to section 

111(a)(4) of the Act (the definition of “modification” for 

purposes of the new source performance standards (NSPS)) in 

defining “modification” for purposes of the major NSR program. 

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

wording of the definition of “modification” in section 111(a)(4) 

of the Act, the applicability of major NSR to modifications must 

be based on changes in actual emissions (State of New York v. 

U.S. EPA, 413 F. 3d 3 (D.C. Cir. 2005). However, that reasoning 

based on the definition in section 111 of the Act does not apply 

to minor source permitting because the statutory basis for the 

minor NSR program is section 110(a)(2)(C) of the Act, which does 

not define or refer to a definition of “modification.” Thus, we 

believe that we have discretion in defining the term for the 

minor NSR program in Indian country, and we do not believe that 

the decision of the D.C. Circuit Court of Appeals applies to the 

minor NSR program. 
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Therefore, to address the concerns of those commenters who 

expressed that the allowable-to-allowable test is less stringent 

than an actual-emissions-based test or that this test is at odds 

with section 110(a)(2)(C) of the Act, we commit to conducting a 

study to collect actual emissions data for a period of 5 years

from the minor source registration program14 we are finalizing 

with this rule to assess the feasibility of implementing an 

actual-emissions-based test. If our study concludes that 

adequate actual emissions data are available for minor sources, 

we will 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, because of our concern that some minor 

modifications at major sources might 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 based on the actual-toprojected-actual test used in the applicable major NSR program. 

Thus, in the final rule, if a proposed modification at 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. 
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existing major source does not qualify as a major modification 

(which would be subject to major NSR) based on the actual-toprojected-actual test, it is considered a minor modification and 

is subject to the minor NSR program if the emissions increase 

from the actual-to-projected-actual test is equal to or exceeds 

the minor NSR thresholds listed in Table 1 in section IV.A.3 of 

this preamble. The rationale for using an allowable-toallowable test for 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. Major 

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 more

efficient to use the 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 extending 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 of 
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modification related to the treatment of fugitive emissions. 

Now this definition includes provisions to account for fugitive 

emissions, to the extent they are quantifiable, only if the 

stationary source belongs to one of the source categories listed 

pursuant to section 302(j) of the Act (see previous section for 

more information). Therefore, under 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 or an increase in the actual 

emissions (based on the applicable test under the major NSR 

program) of a major source for any regulated NSR pollutant, or 

that would cause the emission of any regulated NSR pollutant not 

previously emitted. Allowable emissions of a minor source 

include fugitive emissions, to the extent that they are 

quantifiable, only if the source belongs to one of the source 

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

part 51, Appendix S, paragraph II.A.4(iii) for nonattainment 

major NSR. The following exemptions apply:

• A physical or operational change does not include 

routine maintenance, repair, or replacement.

• 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 
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permit condition that is enforceable as a practical

matter.

• A change in ownership at a stationary source.

b. Determining Applicability for Modifications

In our proposal we stated that this rule applies to certain 

modifications 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 to be a modification, the 

change must cause an increase in allowable emissions at your 

source. At proposal, we also asked for comments as to whether 

minor sources in Indian country should be allowed to take credit 

for concurrent emissions reductions that would result from a 

proposed modification under the concept commonly known as 

“project netting.”15 

Several commenters supported our proposal to allow “project 

netting” in the minor NSR program for determining whether a 

proposed project qualifies as a modification. However, we are 

not finalizing the “project netting” concept at this time to be 

consistent with our position in the major NSR program. 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 total emission increase that would result from a proposed 

modification.

Comment [E2]: Same comment; “legal” not 

“practical.”
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Significant Deterioration (PSD) and Nonattainment New Source 

Review (NSR): Aggregation and Project Netting,” we stated that 

we were not taking action at that time on the September 14, 

2006, proposed rule that would have allowed project netting for 

major sources. Until we decide on whether and how to proceed 

with project netting, nothing in the September 14, 2006,

proposed amendments on project netting 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.

To 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 program (i.e., the actual-to–projected-actual applicability 

test). As discussed in the previous section, under this final 

rule, if the change does not qualify as a major modification 

under that test, it is considered a minor modification if the 
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emissions increase from the actual-to-projected-actual 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 modification. 

For a physical or operational change at your existing minor 

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 emissions units to his minor source) 

using the provisions of the applicable major NSR program (see, 

e.g., 40 CFR 52.21(b)(1)(i)(c)). If it is, then the change is 

subject to the applicable major NSR program. 

For modifications at existing minor sources that do not 

qualify as major sources by themselves, the total increase in 

allowable emissions resulting from the proposed change at your 

source, including fugitive emissions to the extent they are 

quantifiable, only if the 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 unit. 

• For each emissions unit with an allowable emissions 
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limit that is to be changed or replaced, the emissions 

increase would be the allowable emissions of the 

emissions unit after the change or replacement minus 

the allowable emissions prior to the change or 

replacement. However, this may not be a negative 

value. If the allowable emissions of an emissions 

unit would be reduced as a result of the change or 

replacement, use zero in the calculation.

• For each unpermitted emissions unit (i.e., a unit 

without any enforceable permit conditions) that is to 

be changed or replaced, the emissions increase would 

be the allowable emissions of the unit after the 

change or replacement16 minus the potential to emit 

prior to the change or 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). The post-change allowable 

emissions limit can be the uncontrolled potential to emit or can 

be lower depending on the outcome of the reviewing authority’s 

control technology review as well as any other restrictions that 

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

applicability).

17 It is necessary to use potential to emit since these 

emissions units will not have an allowable emissions limit prior 

to the change. 
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result of the change or replacement, use zero in the 

calculation.

If the total increase in allowable emissions resulting from 

your proposed modification at your minor source causes an 

increase in allowable emissions for one or more regulated NSR 

pollutants above the applicable minor NSR threshold (see Table 1

in section IV.A.3 of this preamble), the modification is subject 

to this program. See final 40 CFR 49.153(b). 

If the total allowable emissions increase from your 

modification is less than the corresponding minor NSR threshold 

listed in Table 1, the modification is not subject to 

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 are the minor NSR thresholds?

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 

(see Table 1). We believe that this approach is appropriate in 
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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 surrounding 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 cost-effective program by reducing the burden 

on sources 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.
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Table 1. Minor NSR Thresholdsa

Regulated NSR pollutant 

Minor NSR 

thresholds for 

nonattainment 

areas (tpy)

Minor NSR 

thresholds for 

attainment 

areas (tpy)

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

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

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

Volatile Organic Compounds (VOC). 2b 5

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

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

PM2.5............................. 0.6 3

Lead............................. 0.1 0.1

Fluorides........................ NA 1

Sulfuric acid mist............... NA 2

Hydrogen sulfide (H2S) ........... NA 2

Total reduced sulfur (including 

H2S) ........................... NA 2

Reduced sulfur compounds 

(including H2S) ................ NA 2

Municipal waste combustor 

emissions...................... NA 2

Municipal solid waste landfill 

emissions (measured as 

nonmethane organic compounds).. NA 10

a If part of a tribe's area of Indian country is designated as 

attainment and another part as nonattainment, the applicable 

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, 
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these numbers were changed from the proposal. 

Various commenters supported the development 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 distribution 

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. 

After consideration of comments and further evaluation, we 

are finalizing the minor NSR thresholds as proposed, except for 

the NOx and VOC thresholds in extreme ozone nonattainment areas. 

We are amending the proposed “0” tpy NOx and VOC thresholds for

the minor NSR program in extreme ozone nonattainment areas 

because we believe that these thresholds, while required under 

section 182(e)(2) of the Act and appropriate as significance 

levels for major sources located in extreme ozone nonattainment 

areas, are not appropriate for minor sources. Therefore, we are 

finalizing minor NSR thresholds for NOx and VOC in extreme 

nonattainment areas as 5 and 2 tpy respectively. We also want 

to clarify, as one commenter suggested, that the PM2.5 threshold 

applies to direct PM2.5 emissions, and does not represent the 
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contribution of its precursors (e.g., SO2 or NOx).

Furthermore, we continue to believe that the sources with 

emissions below the thresholds will be inconsequential to 

attainment or maintenance of the NAAQS because the national 

source distribution analysis in the proposal (71 FR 48702) 

applied to the national source distribution at the time (sources 

inside and outside of Indian country) and not only to estimates 

of the possible number of existing sources in Indian country. 

For each pollutant, we found that only around 1 percent (or 

less) of total emissions would be exempt from review under the 

minor NSR program. At the same time, the thresholds would 

promote an effective balance between environmental protection 

and source burden because anywhere from 42 percent to 76 percent 

of sources (depending on the pollutant) would be too small to be 

subject to preconstruction review. 

Therefore, we 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 environmentally protective or so low 

that they ensured environmental protection at the cost of 

discouraging economic growth. Nevertheless, to address any 
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concerns about the stringency of the thresholds, we will 

evaluate the information we collect as part of the registration 

provisions for minor sources we are finalizing under this rule

(see section IV.F of this preamble for more information) and 

will consider changing the minor NSR thresholds as appropriate18.

4. What emissions units and activities at stationary sources 

are exempt from this rule?

Certain 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, this list included:

1. Air-conditioning units used for comfort that are not 

subject to applicable requirements under 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 under the 

rule titled: “Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule” (75 FR 31514).
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air pollutants into the ambient air from any 

manufacturing or other industrial 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.

We received numerous comments on the proposed list of 

exempted emissions units and activities. These commenters noted

that state and local agencies often exempt many more types of 

emissions units and activities, and suggested that we should 

expand the exemptions included in the final minor NSR rule. 
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Some of these commenters also argued that failure to expand the 

list of exemptions will significantly burden operators of minor 

sources wishing to locate in Indian country, especially the oil 

and gas industry, and will thereby disadvantage tribes. 

In light of the comments received, we agree that the list 

of exempted units and activities might need to be expanded. 

Therefore, we intend to propose and finalize a separate rule to 

seek public comment on the issue of whether additional units or 

activities should be exempted from the minor NSR program. 

Furthermore, we are finalizing an amended list of exempted 

units and activities by not exempting air-conditioning units for 

comfort and heating units for comfort until we can study the 

implications of the new rules for greenhouse gases (see

Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule, 75 FR 31514) on these units. In addition, 

and also in light of a comment received, we are deleting the 

last exemption in the proposed list of exemptions (any emissions 

unit or activity that does not have the potential to emit a 

regulated NSR pollutant or HAP, so long as that emissions unit 

or activity is not part of a process unit that emits or has the 

potential to emit a regulated NSR pollutant or HAP) because we 

agree with the commenter that argued that this exemption can be 

confusing and redundant. 
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Finally, we would like to clarify that the list of 

exemptions included in the proposal’s regulatory text included 

mobile sources, although mobile sources were inadvertently left 

out of the exempted units and activities discussion in the 

proposal’s preamble. We have decided to keep mobile sources in 

the list of exempted units and activities in this final rule

because we continue to believe that it is not appropriate to 

include mobile sources in a stationary source permitting 

program, and we did not receive any comments suggesting that 

mobile sources should be removed from the list of exemptions. 

Therefore, the units and activities at stationary sources that 

are exempt from this rule are being finalized under 40 CFR 

49.153(c) and are 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.
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7. Bench scale laboratory activities, except for 

laboratory fume hoods and vents.

B. Site-Specific Permits

1. What are the requirements for permit applications?

We proposed that as the owner or operator of a proposed new 

minor source or a proposed modification that is subject to the 

rule, you must submit a complete application to the reviewing 

authority requesting a minor NSR permit specific to your source 

(unless you are seeking a “general permit”). In addition to 

basic information identifying and describing your source, your 

application must include a list of all affected emissions units. 

“Affected emissions units” are defined as all the emissions 

units at your proposed new minor source or all the new, 

modified, and replacement emissions units that comprise your 

proposed modification (excluding the exempt emissions units and 

activities listed in proposed 40 CFR 49.153(c)). 

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 so that the 

reviewing authority can verify that you are subject to this 

minor NSR program, rather than to major NSR. For each new 

emissions unit that you list, you must provide the PTE in tpy 

for each regulated NSR pollutant, along with supporting 
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documentation. For any modified or replacement unit that you 

list, you must provide the allowable emissions of each regulated 

NSR pollutant in tpy before and after the modification or 

replacement, along with supporting documentation. For emissions 

units that do not have an established allowable emissions level 

prior to the modification, you must 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 allowable emissions. The allowable emissions for any 

emissions unit are calculated considering any emissions 

limitations that are enforceable as a practical matter on the 

unit’s PTE. In calculating these emissions levels for 

applicability purposes, 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 proposed that you may include in your 

application proposed emission limitations for the listed 

emissions units. If you do, you must account for these 

limitations in your calculations for post-construction PTE 

and/or allowable emissions. The application also must identify 

and describe any existing air pollution control equipment and 
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compliance monitoring devices or activities relevant to the 

affected emissions units, as well as any existing emissions 

limitations or work practice requirements to which any affected 

emissions units are subject. 

We also proposed that you 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 expressed concern with the proposed permit 

applications requirements described above except for the concept 

of plantwide applicability limitations. One commenter believed

such provisions will not ensure compliance with the statutory 

mandates applicable to minor NSR programs under section 

110(a)(2)(C) of the Act to ensure that NAAQS are attained and 

maintained. Further, the commenter maintained that such limits 

would likely be unenforceable as a practical matter at most 

sources and offered extensive arguments for his position. On 

the other hand, a couple of commenters expressed support for 

minor source PALs, with one of these commenters believing that 

it is very important that aspects of permitting programs at the 
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federal and state level outside of Indian country that provide 

operator flexibility, including the creation of PALs, should 

also be afforded to operators currently in or wishing to locate 

in Indian country.

Based on the comments received, we are finalizing the 

permit application requirements mainly as proposed, with only

two exceptions. See final 40 CFR 49.154. First, we are not 

finalizing the minor source PAL provisions at this time because 

we agree with the opposing commenter that stated, for example,

that finalizing the PAL provisions without more specific 

criteria, including provisions for 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 emissions in the minor NSR 

applicability determinations, to the extent they are 

quantifiable, only for those source categories listed pursuant 

to section 302(j) of the Act. 

In addition, we would like to clarify that if your source 

is in a source category covered by a general permit issued under 

proposed 40 CFR 49.156, you may apply for the general permit for 

that source category instead of a site-specific permit. The 

permit application requirements for a particular general permit 
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will be specified in that general permit. General permits,

including the comments we received about them, are discussed 

further in section IV.C of this preamble.

2. What technical reviews must the reviewing authority 

conduct?

After determining that your application is complete (see

section IV.B.4 for more information about this process), 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 

country is primarily designed to assure that the NAAQS 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, with this single program applicable to all areas of 

Indian country, we are trying to ensure the NAAQS protection 

required by the CAA, while still allowing sufficient flexibility 

in control technology requirements for minor sources located in 
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Indian country. In addition, we proposed that by control 

technology, we mean pollution prevention techniques; add-on 

pollution control equipment; design and equipment 

specifications; work practices; and operational restrictions. 

For this review, the reviewing authority will consider local air 

quality needs, typical control technology used by similar 

sources in surrounding areas, anticipated economic growth in the 

area, and cost-effective control alternatives. At a minimum, 

the reviewing authority must require control technology that 

assures that the NAAQS are achieved and that each affected 

emissions unit will comply with all requirements of 40 CFR parts 

60, 61, and 63 that apply. The required control technology 

resulting from such a review may range from no control 

technology, to control technology that is less stringent than 

the reasonably available control technology (RACT) level of 

control (which is typically required for existing major sources 

in nonattainment areas), to technology that is the BACT level of 

control (which is the level required for new major sources and 

major modifications in attainment areas). The control 

technology chosen would depend on the air quality needs of the 

area, other applicable regulatory programs of the Act, and 

technical and economic feasibility.

Furthermore, we proposed that based on the results of the 
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control technology review, the emission limitations required by 

the reviewing authority may consist of numerical limits on the 

quantity, rate, or concentration of emissions; pollution 

prevention techniques; design standards; equipment standards; 

work practice standards; operational standards; or any 

combination thereof. If it is technically and economically 

feasible, the reviewing authority must require a numerical limit 

on the quantity, rate, or concentration of emissions for each 

affected emissions unit at your source.

For a new minor source that is subject to this rule, 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 your 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 technology 

requirement at all because section 110(a)(2)(C) of the Act 
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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 

whether a control technology requirement is necessary to achieve 

the purposes of the Act, or whether other approaches can achieve 

these purposes just as well with less cost and administrative 

burden.

Several commenters supported the case-by-case control 

technology review. These commenters believed that a case-bycase control technology review would allow and promote economic 

growth and development that is tailored to the needs in Indian 

country, while one of these commenters added that having no 

capacity to impose controls on minor sources would seem to 

defeat the purpose of a permitting process for such facilities 

because a paper permit that could not impose any controls adds 

nothing to existing regulation or protection of public health 

and the environment. Furthermore, several commenters supported

a clearly defined, standardized method for determining the 

required level of control, while one commenter stated that a 

system that requires a single set of controls for all minor 

sources across Indian country does not provide the needed 

flexibility to adapt regulation to the needs of individual 

reservations or to take into account the benefit of a level 
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playing field with the surrounding jurisdictions. 

On the other hand, other commenters opposed any control 

technology requirement. These commenters believed that a 

federal program is likely to be applied inconsistently, 

resulting in a competitive disadvantage for sources located in 

certain areas; EPA has no authority to impose a control 

technology requirement under section 110(A)(2)(C) of the Act; 

and a separate control technology review process under minor NSR 

is unnecessary when the threat of PSD review will otherwise 

accomplish the ultimate objective – protection of air resources 

(i.e., the PSD review is generally so complex, time-consuming, 

and expensive, that most sources will design their projects to 

remain below the applicable PSD thresholds, even if that means 

installing more efficient controls, switching to cleaner fuel, 

or restricting production or operating hours).

We disagree with commenters that oppose any control 

technology requirement or who suggested that we have no 

authority to require such controls. Section 110(a)(2)(c) 

requires us to assure that the NAAQS are achieved, and we 

believe that requiring control technologies when necessary will 

ensure the NAAQS are protected as established in this section. 

Furthermore, section 110(a)(2)(c) does not preclude us from 

requiring additional provisions that will further the goal of 
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NAAQS protection and the fact that the statutory language 

requires a control technology review under some statutory 

provisions does not mean that the statute prohibits EPA from 

requiring it under other provisions. 

We also disagree with those commenters that would like us 

to implement consistent control technologies across the nation. 

As we stated in the proposal, it would be impossible to create a 

single program that creates precisely equivalent regulations 

among all areas of Indian country. We wish to ensure that 

Indian country is not seen as a potential “pollution haven” 

where minor sources can go to escape air pollution control 

requirements, and we also do not want to put tribes or owners 

and operators locating in Indian country at a competitive 

disadvantage by requiring substantially more stringent controls 

in a particular area of Indian country than are required in the 

surrounding areas. Therefore, a case-by-case control technology 

review provides the reviewing authority with the flexibility to 

create requirements that protect public health and environment, 

but also takes into consideration the needs of the area in 

question based on its current air quality situation, the 

potential air quality impacts from the growth associated with 

the source, and the technological and economic feasibility of 

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

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

technology review requirements as proposed. The final rules 

require your reviewing authority to perform a control technology 

review on a case-by-case basis when issuing a site-specific

minor NSR permit. See the final 40 CFR 49.154(c). For general 

permits, the control technology review will be performed at the 

time when the general permit is developed. More details on 

general permits are provided in section IV.C of this preamble. 

b. Air Quality Impacts Analysis (AQIA)

As discussed in the proposal, the primary purpose of a 

minor NSR program under the Act is to assure that the NAAQS are 

achieved. 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 authority will not require an Air Quality Impacts 

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 violation, your reviewing authority may require 

you to conduct an AQIA using dispersion modeling in accordance 

with 40 CFR part 51, Appendix W, to determine the impacts that 
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will result from your new source or modification. If the AQIA 

demonstrates that the construction of your source or 

modification would cause or contribute to a NAAQS or PSD 

increment violation, you would be required to further reduce its 

impact before you could obtain a permit.

Various commenters supported requiring an AQIA and added 

that they would like us to develop guidance on when and how an 

AQIA analysis should be performed. On the other hand, several 

commenters believed that AQIAs would be excessive, very costly, 

and time consuming for small businesses. 

Based on the comments received, we are finalizing the AQIA 

provisions as proposed at 40 CFR 49.154(d). We continue to 

believe that allowing reviewing authority discretion for when an 

AQIA might be required ensures that construction of new minor 

sources or modifications at existing minor sources do not cause 

or contribute to a NAAQS or PSD increment violation when needed, 

but limits overburdening all minor sources in Indian country 

with these types of air quality analysis. Nevertheless, to aid 

the reviewing authorities in the determination of when an AQIA 

might be needed for minor NSR sources in Indian country and to

address the commenters’ suggestions, we intend to develop 

guidance that will consider the suggestions presented by these

commenters. We are also eliminating the language in the 
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proposal preamble that stated (71 FR 48704) that AQIAs will be 

required “[i]n rare instances.” Since the reviewing authority 

has the discretion to require an AQIA, it is difficult to 

predict that such AQIAs will be required only in rare instances.

3. What are the permit content requirements?

The requirements for permits issued pursuant to sitespecific preconstruction review were proposed under 40 CFR 

49.155. The 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 

associated 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 

number of standard permit terms. These include emission 

limitations, monitoring recordkeeping and reporting requirements 

as well as terms such as a severability clause (to ensure the 

continued validity of the other portions of the permit in the 
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event of a challenge to a portion of the permit), a requirement 

to comply with all conditions of the permit, a requirement that 

the permitted source does not cause or contribute to a NAAQS 

violation, and inspection and entry provisions requiring that 

you allow representatives of the reviewing authority to enter 

and inspect your source. 

a. Emissions Limitations

We proposed under 40 CFR 49.155(a)(2) that your permit must 

include 2 types of emission limitations:

• The emissions limitations for each affected emissions 

unit determined by the reviewing authority based on 

the case-by-case technology review discussed 

previously in section IV.B.2 of this preamble.

• Limits on annual allowable emissions in tpy. 

Emission limitation, as proposed under 40 CFR 49.152, means 

a requirement established by the reviewing authority that limits 

the quantity, rate, or concentration of emissions of air 

pollutants on a continuous basis, including any requirement 

relating to the operation or maintenance of a source to assure 

continuous emissions reduction, and any design standard, 

equipment standard, work practice, operational standard or 

pollution prevention technique. Furthermore, we proposed under 

40 CFR 49.152 that allowable emissions means “allowable 
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emissions” as defined in 40 CFR 52.21(b)(16), except that the 

allowable emissions for any emissions unit are calculated 

considering any emissions limitations that are enforceable as a 

practical matter on the emissions units’ potential to emit. 

Once established in the permit, annual allowable emissions 

become the basis for determining whether a later change at your 

source will result in an increase in allowable emissions subject 

to permitting under this program.

We did not specifically receive comments on these two types 

of emissions limitations that must be included in your permit. 

Therefore we are finalizing these emissions limitations at 40 

CFR 49.155(a)(2) as proposed. 

Additionally, we would like to clarify, as some commenters 

requested, a couple of terms or conditions. One commenter 

interpreted the proposal to only require annual emissions limits 

in the minor source permits, while one commenter asked us to 

clarify if the term “on a continuous basis” in the definition of 

emissions limitation implies that every emission limitation must 

be complied with on an instantaneous time period and accompanied 

by a continuous emission monitoring system (CEMS). 

Therefore, we want to clarify that the reviewing authority 

may not only require annual emissions limits in the minor NSR 

permits, but also short-term limits as necessary. Short-term 
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emission limits may also be required as part of any enforceable 

emission limitation and, if applicable, depending on the 

relevant ambient air quality standard associated with the 

regulated pollutant. 

Furthermore, the term “on a continuous basis” in the 

definition of emission limitation does not imply that every 

emission limitation must be complied with on an instantaneous 

time period and accompanied by a CEMS. The term “on a 

continuous basis,” as the commenter suggests, means that the 

limitation applies “at all times”, but not that the emission 

limitation has to be accompanied by a CEMS. There are various 

ways to monitor compliance with limitations that apply on a 

continuous basis as we mention in the next section.

b. Monitoring, Recordkeeping, and Reporting

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 and 
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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, the permit must 

include monitoring requirements sufficient to assure compliance 

with any emissions limitations contained in the permit. 

Monitoring approaches may include CEMS, predictive emissions 

monitoring systems (PEMS), continuous parameter monitoring 

systems (CPMS), periodic manual logging of monitor readings, 

equipment inspections, mass balances, periodic performance 

tests, and/or emission factors, as appropriate for your minor 

source based on the types of emissions units, magnitude of 

emissions, and air quality considerations. Such monitoring 

shall assure use of terms, test methods, units, and averaging 

periods consistent with the control technology and emission 

limitations required for your source. 

Recordkeeping requirements. As proposed, the permit must 

include recordkeeping requirements sufficient to assure 

compliance with the enforceable emission limitations in your 

permit. Records of required monitoring information must include 

all calculations using emissions factors, all stack tests or 

sampling information including date and time of test or 

sampling, the name of the company or entity that performed the 
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analyses, the analytical techniques or methods used, the results 

of such analyses and the operating conditions existing at the 

time of sampling or measurement. All such records including 

support information must be retained for 5 years from the date 

of the record. Support information may include all calibration 

and maintenance records and all original strip-chart recordings 

or electronic records for continuous monitoring instrumentation. 

Reporting requirements. As proposed, you must provide 

annual monitoring reports showing whether you have complied with 

your permit emission limitations. You also must provide prompt 

reports of deviations from permit requirements, including those 

attributable to upset conditions as defined in the permit, the 

probable cause of such deviations, and any corrective actions or 

preventive measures taken. Within a permit, the reviewing 

authority must define “prompt” in relation to the degree and 

type of deviation likely to occur. 

We did not receive any comments regarding the monitoring 

and recordkeeping requirements, but several commenters commented 

on the reporting requirements. Some of these commenters 

specifically asserted that requiring annual monitoring reports 

for minor sources is overly burdensome, while another commenter 

would like us to require monitoring reports to be submitted at 

least annually, to give the reviewing authority flexibility to 
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require semiannual monitoring reports and in accordance with the 

title V reporting schedule. Other commenters recommended that

for reporting deviations the word “prompt” should be defined 

within the regulation. 

We disagree with those commenters that state that the 

reporting 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 “enforceable emission limitations and other control 

measures, means, or techniques * * * as well as schedules and 

time-tables for compliance.” In addition, section 110(a)(2)(F) 

requires that a permitting program may require “the 

installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps by owners and operators 

of stationary sources to monitor emissions from such sources,” 

as well as periodic reports on the nature and amounts of 

emissions and emissions-related data from such sources. 

Therefore, we believe that annual reporting requirements 

will ensure that sources are complying with their annual 

emissions limits as well as any other limits determined by the 

reviewing authority. 

However, we do not believe that requiring monitoring 
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reports more frequently than annually, as one commenter 

suggested, would be appropriate for minor sources. Minor 

sources are typically much smaller than the title V sources the 

commenter is referring to and therefore requiring monitoring 

reports more frequently than annually might be overly burdensome 

for these sources. However, we encourage reviewing authorities 

to develop annual monitoring schedules in accordance with title 

V permit monitoring schedules if that facilitates the reporting 

of emissions to the reviewing authority. 

We also disagree with the commenters that would like us to 

define the word “prompt” for the reporting of deviations. We 

continue to believe that deferring the definition of this term

to the reviewing authority is more appropriate to ensure that 

the respective permits are protective of the NAAQS while also 

ensuring that the particular needs of the area where the source 

is being permitted are considered. For example, if a source is 

locating in a particular area of Indian country, the reviewing 

authority might consider the provisions of the state and/or the 

air quality control districts surrounding the area of Indian 

country where the source is locating as well as technical and 

economical feasibility to define this term.

Therefore, we are finalizing the monitoring, recordkeeping 

and reporting requirements as proposed and these requirements 
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will be included in each permit as necessary to assure 

compliance with the source’s emission limitations. The 

monitoring requirements are 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. Other Permit Content Requirements

As we stated previously, we proposed other permit 

requirements. However, we did not receive 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 required to be kept under the conditions 

of the permit;

• Have access to and copy, at reasonable times, any 

records that are required to be kept under the 

conditions of the permit;

• Inspect, during normal business hours or while the 

source is in operation, any facilities, equipment 
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(including monitoring and air pollution control 

equipment), practices, or operations regulated or 

required under the permit;

• Sample or monitor, at reasonable times, substances or 

parameters for the purpose of assuring compliance with 

the permit or other applicable requirements; and

• Record any inspection by use of written, electronic, 

magnetic and photographic media.

Nevertheless, a few commenters 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 we are 

finalizing with this rule and therefore we are including

inspection 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)(vii).

4. What are the permit issuance procedures, permit term, and 

public participation requirements?

a. Permit Issuance Process

We proposed that within 45 days after receiving your permit 
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application, your reviewing authority must either determine that 

the permit application is complete enough 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 application 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 reviewing authority determines that your new source or 

modification meets all applicable requirements, it will issue 

you a final permit. Otherwise, the reviewing authority will 

send you a letter denying your permit application with reasons 

for the denial. 

We received several comments regarding this issue. These 

commenters believed 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 definite time lines. In addition, a few commenters 

believed that the proposed language could allow a permit 

application to be held without a final decision for an 

unreasonable period, resulting in serious financial burden, lost 
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business opportunities, a delay in the project, and even 

cancellation of the project.

Based 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 certainty for the regulated community and the 

public, as well as time for the regulated community and the 

reviewing authority to plan for the permit issuance process. 

Therefore, we have finalized a permit issuance process timeframe 

that 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 as well as a 

30-day public comment period. Any site-specific permit 

will be granted or denied no later than 135 days after the 

date the application is deemed complete and all additional 

information necessary to make an informed decision has been 

provided. 

• For minor modifications at major sources seeking

coverage under a 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 public 
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comment period. Any site-specific permit will be granted 

or denied no later than 1 year after the date the 

application is deemed complete and all additional 

information necessary to make an informed decision has been 

provided.

• For minor sources seeking coverage under a general 

permit (discussed in section IV.C of this preamble), 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 days 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 issuance 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 

year after the date the application is deemed complete and 

all additional information necessary to make an informed 

decision has been provided as well. 
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In addition, we would like to clarify that we are amending 

our completeness review procedures, as suggested by some 

commenters, and we will no longer require that if the source has 

not received a notice of completeness or a request for 

additional information in 50 days, that the application would be 

deemed complete. We agree that this provision can be confusing. 

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 permits and minor modifications at major sources). If 

you do not receive a request for additional information or a 

notice of complete application postmarked within 45 days of 

receipt of the permit application by the reviewing authority for 

a site-specific or general permit (or 60 days for synthetic 

minor source permits and minor modifications at major sources),

your application would be deemed complete. 

b. Permit Term

We proposed that a preconstruction 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 18 
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months or more, and you complete construction in a reasonable 

time. We also proposed that your reviewing authority may extend 

the 18-month period where justified and that the 18-month limit 

does not apply to the time period between construction of 

approved phases of a phased construction program. In those 

cases, you must commence construction of each such phase within 

18 months of the approved commencement date for that phase. 

We received only one comment about the permit term 

provisions. This commenter had concerns about the proposal 

preamble language that stated that: “a preconstruction permit 

does not expire.” This commenter stated that it may be 

appropriate to specify that the permit does expire after a 

specified period, subject to renewal for a specified period upon 

showing of diligence by the source. If a preconstruction permit 

does not expire, the commenter argues that the permit term 

provisions may be administratively impractical to implement. 

Upon further review of these provisions, we have noticed 

that the language we used in the proposal preamble was not 

consistent with the provisions we proposed under 40 CFR 

49.155(b). Under 40 CFR 49.155(b), we proposed provisions for 

when permits become invalid and did not state that “a 

preconstruction permit does not expire.” Therefore, we have 

eliminated the proposal preamble language that stated that 
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permits do not expire and we are finalizing the proposed 

provisions as stated under 40 CFR 49.155(b). 

In addition, we would like to clarify that permits under 

this program would not be revoked at the source’s request when 

there is a rapid decrease in production, as a few commenters 

recommended. In such a case, the limits of these permits might 

be revised appropriately to account for the reduction, but the 

permit would not be revoked. Permits will be revoked only if 

the source officially shuts down its operation and notifies the 

reviewing authority about the business closure.

c. Public Participation Requirements

Under 40 CFR 49.157 we specifically proposed our public 

participation requirements. 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 public notice must 

provide an opportunity for public comment and a public hearing 

on the draft permit. The appropriate types of notice may vary 
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depending on the proposed project and the area of Indian country 

that would be affected.

We also proposed that in all cases, the reviewing authority 

must mail a copy of the notice to you (the permit applicant); 

the appropriate Indian governing body; and the tribal, state, 

and local air pollution authorities having jurisdiction in areas 

outside of the area of Indian country 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 your source, 

local air quality considerations, and the characteristics of the 

population in the affected area. The optional methods of 

notifying the public included the following:

• Mailing or e-mailing a copy of the notice to persons 

on a mailing list developed by the reviewing authority 

consisting of those persons who have requested to be 

placed on such a mailing list. 

• Posting the notice on its Web site.

• Publishing the notice in a newspaper of general 

circulation in the area affected by the source. Where

possible, the notice may also be published in a tribal 

newspaper or newsletter. We do not believe that such 
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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 environmental offices, community 

centers, and other gathering places in the community.

• Other appropriate means of notification.

Furthermore, we proposed that the reviewing authority must 

provide for a 30-day public comment period on the draft permit. 

After considering all relevant public comments, the reviewing 

authority will make a final decision to issue or deny your 

permit. The public (including you, the permit applicant) will 

have an opportunity to appeal the final decision under 40 CFR 

49.159. Final permit issuance and the opportunity for appeal 

are discussed further in the next section of this preamble.

Several commenters supported the proposed public 

participation requirements stating that they like the proposed 

mix of mandatory and optional approaches to notices, while 

others suggested that the overall permitting process should be 

shortened. 
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On the other hand, other commenters argued that the 

proposed public participation requirements are too burdensome, 

time consuming, and will be open to abuse by persons who oppose 

any sort of development including development from very small 

projects. Therefore, some of these opposing commenters 

suggested adding a de minimis threshold below which sources 

would be exempt from the public notice and participation 

requirements in order to match the level of public participation 

to the environmental significance of the project. In addition, 

one commenter believed that we should strengthen the proposed 

public participation requirements by requiring notices to be 

sent by mail or email to all persons requesting such notice, by 

requiring notices to be published in a tribal newspaper or 

newsletter and by requiring other means of publication customary 

to the tribe, where possible. They also wanted us to hold a 

public hearing whenever one is requested.

After careful consideration of these comments, we are 

finalizing our public participation requirements for sitespecific permits as proposed with the clarification that the 

appropriate types of notice will take into consideration any 

seasonal activities that may conflict with the public 

participation of the local community (e.g., subsistence hunting 

and fishing or other seasonal cultural practices). We believe 
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these requirements are consistent with the current public 

availability of information requirements under our existing 

regulations at 40 CFR 51.161 and they add optional public 

noticing and participation provisions that will enhance the 

permitting process. All the requirements will ensure that the 

public is informed about the permitting actions occurring in 

Indian country and will also ensure that the particular public 

noticing needs of Indian country are considered. 

However, we disagree with those commenters that believe 

that these requirements should be strengthened or matched 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 requirements are more detailed than the 
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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, we are finalizing definite time 

periods 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, we believe that the reviewing authority is in the 

best position to determine whether there is significant interest 

in a hearing on a case-by-case basis, and to decide whether it 

is more administrative and economically prudent to ask a small

number of commenters to submit their comments in writing. 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 are the provisions for final action on a permit, 

permit reopenings, administrative permit revisions, and 

administrative and judicial review procedures?
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a. Final Action on a Permit

We proposed under 40 CFR 49.159(a) that after a decision to 

issue or deny your permit, the reviewing authority must notify 

you, the permit applicant, of the decision in writing and, if 

the permit is denied, provide the reasons for the denial. 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 commented on the draft permit and/or use any of 

the other methods of public notice discussed in the proposal 

preamble. The reviewing authority’s final decision on your 

permit must be based on an administrative record, and we 

proposed requirements 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 applicant and all comments 

received during the public comment period, including any 

extension or reopening. 
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A few commenters supported the proposed provisions for 

providing notice of final permit actions. However, these

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 your 

permit.” 

On the other hand, a few commenters indicated that the 

proposed notification requirements are excessive. They believed

that the proposed requirements are more stringent than the 

requirements for major sources under the PSD program and/or the

part 71 program, which they believed is unwarranted because the 

impact for minor sources on public health and/or the environment 

would be much lower than major sources. Furthermore, some of 

these commenters argued that EPA may find the proposed 

requirements burdensome and expensive unless the method of 

notice is limited to something such as publication on EPA’s 

website. 

Based on the comments received, we agree that, for sitespecific permits and general permits, making a copy of the 

permit available at all of the locations where the draft permit 

was made available might be too burdensome for the reviewing 
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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. 

Regarding the administrative record for a permit decision, 

several commenters commented on our proposed provisions. These 

commenters agreed with the provision of keeping records for not 

less than 5 years, while one commenter specifically asked us to 

require the reviewing authority to retain permit records for the 

life of the source. 

We believe that keeping permit records for the life of the 

source will be too burdensome, especially when we do not require 

permit records for major sources under 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. For 
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example, we proposed that any person (including the permittee) 

may petition the reviewing authority to reopen a permit for 

cause, and the reviewing authority may 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 commenters 

argued that the proposal was more stringent than the reopening 

provisions in the major source permitting programs, which they 

contend is unwarranted for minor sources, and that this 

provision is inconsistent 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 permit 
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for a cause unless it contains a material mistake or fails to 

assure compliance with the applicable requirements. We do agree

that the reasons for reopening the permit should not be limited 

to the permit containing a material mistake or failing to assure 

compliance with applicable requirements. Therefore, we are 

amending the provisions we proposed to 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 increase the 

emissions limitations in the permit, such as permit reopenings 

that correct typographical, calculation and other errors, all 

other permit reopenings shall be carried out after the 

opportunity of public notice and comment and in accordance with 

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 

administrative 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, an 
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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 more 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 the boundaries of your 

source, and if so, the reviewing authority can require measures 

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 believed these provisions will 

allow a source to make minor changes without being subject to 
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the overall permit process. However, one commenter opposed the 

proposed administrative permit revision provisions. 

Specifically, the commenter opposed the provision to allow 

increases in allowable emission limits through an administrative 

permit revision 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 commenters that support the 

administrative permit revision provisions for the situations 

outlined in the proposal and hence we are finalizing these 

provisions as proposed at 40 CFR 49.159(f). We believe that 

permit changes involving typographical errors, more frequent 

monitoring and reporting requirements and/or changes in 

ownership should not go through the overall permitting process. 

We understand, however, that there might be particular concerns 

with the provision at 40 CFR 49.159(f)(v) where an 

administrative permit revision is allowed for an increase in an 

emissions unit’s annual allowable emissions limit for a 

regulated NSR pollutant, when the action that necessitates such 

increase is not otherwise subject to review under major NSR or 

under this program. For example, this case could be one where a 

source introduces a new coating to a process line that will 

increase the emissions of that unit but the emissions increases 
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from the source will not trigger the minor NSR requirements. 

We believe that since this 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 know 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 regulated 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 public 

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 by the EAB 
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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 it is easier for most citizens to write a 

letter to the EAB requesting an appeal than it is to hire an 

attorney to sue a governmental agency. 

Supporting commenters also argued that it makes more sense 

to delay the effective date of the permit while the issues are 

being resolved (rather than allowing the source to begin 

construction), while some of these supporting commenters would 

like us to allow the permit to become effective immediately upon 

issuance unless a later date is specified. These latter 

commenters believe this option will allow for development in 

tribal lands while encouraging participation from environmental 
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experts should an appeal occur. 

Other commenters opposed Option 1. These commenters stated 

that delaying final permit effectiveness for 30 days after 

issuance will compound an already lengthy permitting process. 

They also 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 from 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 allows the source to determine whether to commence 

construction at its own risk. Some of these commenters also 

noted that this option is more consistent with most state minor 

NSR programs and it eliminates an intermediate step, the EAB 

review. These commenters also 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, 

delegation of the NSR program, the rule should allow for tribal 

administrative and tribal court review prior to going to federal 

court.
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Based on the comments received, we agree with those 

commenters that support the option of filing a petition for 

permit review through the Environmental Appeals Board. We 

believe, as some commenters stated, that the EAB has greater 

environmental expertise, is likely to solve issues more quickly, 

and it will be easier for the public to file a petition through 

the EAB than to hire an attorney to go through the appeals 

process.

However, we are not allowing permits to become effective 

immediately upon issuance under the EAB option, as some 

commenters suggested, because the proposed provisions are based 

upon the EAB regulations under 40 CFR 124.15 and we did not 

propose to allow a different approach under this rule. The EAB 

regulations clearly state, under 40 CFR section 124.15(b), that 

a final permit decision shall become effective 30 days after the 

service of notice of the decision unless: (1) a later effective 

date is specified in the decision; (2) a review is requested on 

the permit under 40 CFR 124.19 or (3) no comments requested a 

change in the draft permit, in which case the permit shall 

become effective immediately upon issuance. In other words, EPA 

regulations specify that the only permits that become effective 

upon issuance are those for which no comments were submitted. 

Furthermore, we do not believe we can allow sources to construct 
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while the EAB process is pending, because while a permit is 

being reviewed by the EAB, it is not effective, and thus it does 

not authorize construction. 

Regarding the commenter that stated that delegated programs 

should allow for tribal administrative and tribal court review 

prior to going to federal court, we disagree. This is because 

under a delegated federal program, any federal requirement 

administered by a delegated tribe is subject to EPA enforcement 

and EPA appeal procedures under federal law. Therefore, we are 

finalizing the administrative and judicial review procedures for 

Option 1 as proposed at 40 CFR 49.159(d).

C. General Permits

1. What Is a “General Permit?”

We proposed that a “general permit” is a preconstruction 

permit that may be applied to a number of similar emissions 

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 limited 

resources need not be expended for site-specific permit 

development for such facilities. A general permit may be 

written to address a single emissions unit, a group of the same 

type of emissions units, or an entire minor source. We believe 

that general permits offer a cost-effective means of issuing 
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permits and provide a quicker and simpler alternative mechanism 

for permitting minor sources than the site-specific permitting 

process discussed previously.

We received strong support for the development of general 

permits. These commenters believe the development of general 

permits for sources of similar operation and emissions will 

simplify the permit application and issuance process. On the 

other hand, one commenter urged EPA to issue guidance for 

particular source categories rather than use general permits to 

streamline permitting. The commenter 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 

application and issuance process, avoid the need for case-bycase control technology review for those source categories/units 

for which the general permit was established, and reduce the 

administrative burden of the reviewing authorities. However, we 

disagree with the commenter that preferred guidance rather than 

general permits for the minor NSR program in Indian country. We 

understand that general permits are not appropriate in all 

circumstances, but we believe it is appropriate to develop 

general permits for certain source categories/units, especially 
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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 is the process for issuing general permits?

Under 40 CFR 49.156(b), we proposed that the reviewing 

authority may issue a general permit for a category of emissions 

units or sources that are similar in nature, have substantially

similar emissions, and would be subject to the same or 

substantially similar requirements governing operations, 

emissions, monitoring, reporting, and recordkeeping. “Similar 

in nature” refers to size, processes, and operating conditions. 

We also proposed that a general permit must be issued 

according to the requirements for public participation in 40 CFR 

49.157 and the requirements for final permit issuance and 

administrative and judicial review in 40 CFR 49.159. Issuance 

of a general permit, as proposed, is considered 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 general 
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permit issuance procedures under 49.156(b). Consequently, we 

are finalizing the provision under 49.156(b) as proposed. 

3. For what categories will general permits be issued?

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 also proposed that general permits may be issued to 

cover any category of numerous similar sources, provided that 

such sources meet the appropriate criteria. For example, 

permits can be issued to cover small businesses such as gas 

stations or dry cleaners. General permits may also, in some 

circumstances, be issued to cover discrete emissions units, such 

as individual solvent cleaning machines at industrial complexes. 

In addition, in setting criteria for sources to be covered 

by general permits, we proposed 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 units in the category 

should have essentially similar operations or processes and emit 

pollutants with similar characteristics. Second, the sources or 

emissions units should be expected to warrant the same or 
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substantially similar permit requirements governing operation, 

emissions, monitoring, recordkeeping, and reporting.

A few commenters specifically requested establishing 

general permits for the oil and gas sector. Other commenters 

were more general in their general permits recommendations and 

stated that general permits should be adopted for categories of 

similar sources and emissions units, and developed before the 

minor NSR program is adopted on Indian lands. These commenters 

also added that EPA needs to define further the criteria for 

developing general permits and the categories of emissions 

sources to which the program may apply. For example, some of 

these commenters would like us to develop general permits that 

are consistent across all of Indian country. 

Based on the comments received, we are in the process of 

developing general permits for various source categories under 

the factors mentioned. The permits will be consistent across 

all of Indian country, as some commenters suggested, unless 

there is a need to develop specific provisions, or a specific 

general permit, for a particular 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, we plan 

to update general permits, also after the opportunity of notice 
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and comment under 40 CFR 49.157, as appropriate to account for 

advances in control technology or for other pertinent reasons. 

However, when we update a general permit, sources operating 

under the existing general permit will be able to continue to 

operate under that existing permit until such time when the 

source is modified. We are finalizing these provisions under 40 

CFR 49.156(b)(2) and 49.156(c).

4. What are the permit content requirements for general 

permits?

We proposed that general permits must contain the same 

permit elements required for permits issued under the sitespecific preconstruction review rules. These permit elements 

are described in section IV.B of this preamble and listed in

final 40 CFR 49.155(a). 

In addition, the general permit must identify the specific 

category of emissions units or sources to which the general 

permit applies, including any criteria that your emissions unit 

must meet to be eligible for coverage under the general permit. 

The general permit must also include information required to 

apply for coverage under the general permit, such as the name 

and address of your reviewing authority, how to obtain 

application forms, and the information you must provide to 

demonstrate that you are eligible for coverage. Finally, the 
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reviewing authority may include other general permit terms and 

conditions as it deems necessary. 

We did not receive any comments on the permit content 

requirements for general permits. Therefore, we are finalizing 

the general permit content requirements as proposed under 

49.156(d).

5. What is the process that you may use for obtaining coverage 

under a general permit?

Under 40 CFR 49.156(e), we proposed that once 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 grant 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 

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. This letter is a final permit 

action for purposes of judicial review (see 40 CFR 49.159) only 
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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 addition, 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 preconstruction 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 permit. 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 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, one of these commenters added that projects should 

be automatically approved if the 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 permit applications in less than 
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90 days. In addition, upon further evaluation of these 

provisions, 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 sources 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 be 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 provided19. 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 application 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.
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authority, your application would be deemed complete. This 

permit issuance process timeframe is less than the site-specific 

permits timeframe since the minor 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

received a few comments about the public notice requirements and 

these commenters indicated that the final permit action 

notification requirements for both site-specific permit and 

general permits are excessive. These commenters believe that 

the proposed requirements are more stringent than the 

requirements for major sources under the PSD program and/or the 

part 71 program, which they believe is unwarranted because the 

impact for minor sources on public health and/or the environment 

would be much lower than major sources. Furthermore, some of 

these commenters argued that EPA may find the proposed 

requirements burdensome and expensive unless the method of 

notice is limited to something such as publication on EPA’s Web

site. 

We agree that public noticing the coverage of an individual 
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source under a general permit in the same way as we public 

notice the development of the general permit will be excessive. 

The provisions in the general permit have already been open for 

public notice and comment during the development of that general 

permit and one of the main purposes of the development of 

general permits is to streamline the permitting process. 

However, we continue to believe that providing public noticing 

when a source applies for coverage under a general permit is 

important as well as when the final action on the general permit 

is made. Consequently, we are finalizing provisions 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 purposes. 

Regarding the requirement to post prominent notice of the 

general permit letter of intent, two commenters 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 emission 

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. 
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We 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 will be readily available. The original copy of 

the general permit and its approval letter can be kept in a safe 

place. Therefore, we are finalizing the general permit issuance 

procedures under 40 CFR 49.156(e) mainly as proposed. In 

addition, in the final rule we are including provisions for 

addressing when a general permit becomes invalid that mirror the 

corresponding site-specific permit provisions. 

D. Synthetic minor source permits

Some sources have the potential to emit one or more 

pollutants in major source amounts, but have actual emissions 

that are below the major source thresholds. These sources are 

called “synthetic minor sources” and 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, including a reference to the 

definition, which includes “legally enforceable.
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source” applies independently for each regulated NSR pollutant 

that the source has the potential to emit. 

Furthermore, we proposed that the designation of synthetic 

minor source is allowed for both regulated NSR pollutants 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 necessary to ensure that you are legally 

prohibited from operating as a major source. In addition, if 

you apply for a synthetic minor source or synthetic minor HAP 

source, you must comply with the same public participation 

requirements and the same procedures for final permit issuance 

and administrative and judicial review found at 40 CFR 49.157 

and 40 CFR 49.159 respectively. 

We also explained in our proposal that our 1999 policy memo 

on synthetic minor sources in Indian country currently provides 

guidance on how sources that would otherwise be major sources 

under section 302 or part D of title I of the Act can become 

synthetic minor sources if their actual emissions remain below 

50 percent of the relevant major source PTE threshold and they 
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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 such 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. 

Several commenters supported the proposal to allow 

synthetic minor source permits. These commenters noted that 

this option has been previously available for sources located 

outside of Indian country. On the other hand, two commenters 

opposed the proposal to allow for synthetic minor source permits 

since they believe that synthetic minor source permits are not 

available outside of Indian country and therefore HAP sources 

would rush to Indian country to avoid MACT standards.

Another commenter opined that the proposed synthetic minor 

rule will hinder some tribes’ ability to develop or maintain 

their own sustainable title V major source permitting programs. 

 

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.
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This commenter argued that allowing for synthetic minor source 

permits in Indian country will decrease the number of major 

sources under this program thereby reducing the permitting fees 

collected and used by tribes to run their title V permitting 

programs. One commenter also added that general permits should 

be allowed for synthetic minor sources.

We agree with those commenters that would like us to allow

synthetic minor source permits for both criteria pollutants and 

HAPs because we believe that allowing synthetic minor source 

permits could be beneficial to the environment by reducing the 

amount of pollution that could have been emitted to the air 

otherwise. In addition, this option has been available for 

sources outside of Indian country for both regulated NSR 

pollutants and HAP sources for many years. Thus, we disagree 

with the commenter who believes that we will be 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 anticipate many sources to change their current status to 

synthetic minor status once this rule is final. The PTE 

transition policy had already allowed sources in Indian country,

until this FIP becomes final, to limit their potential to emit 
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to avoid major source status for purposes of the title V

program. However, if a tribe is concerned that existing title V 

programs may be unsustainable after a certain number of sources 

change their existing title V permits to synthetic minor source 

permits, the tribe will have to consider raising their title V

fees as necessary to ensure that, as stated in section 502(b)(3) 

of the Act, the fees collected under the title V program are 

“sufficient to cover all reasonable (direct and indirect) costs 

required to develop and administer the permit program 

requirements.” 

We also disagree with the commenter that would like us to 

allow the use of general permits for synthetic minor sources 

since these sources are major sources until they are approved to 

construct under a synthetic minor source permit. 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 this final rule apart from specifying the circumstances 

under which a new source may obtain a synthetic minor source 

permit, we are also clarifying the possible mechanisms under 

which synthetic minor source permits have been issued to date, 

and the requirements these sources may have to comply with after 
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the effective date of this rule. 

Consequently, we are finalizing provisions under 40 CFR 

49.158 that state that you may obtain a synthetic minor source 

permit under this program to establish a synthetic minor source 

for PSD, nonattainment major NSR, and title V purposes and/or a 

synthetic minor HAP source for MACT standards and title V 

purposes. Any source that becomes a synthetic minor for NSR and 

title V purposes but has other applicable requirements or 

becomes a synthetic minor for NSR but is major for title V 

purposes, must also apply for a part 71 title V permit. 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 apply for sources seeking a synthetic 

minor permit are specified in 40 CR 49.158(b). Therefore, you,

as the permit applicant, will have to submit a permit 

application pursuant to the provisions of 40 CFR 49.158(a) and 

40 CFR 49.154 and you will also be subject to the permit 

requirements at 40 CFR 49.155 and 49.158 which include, among 

other things, case-by-case control technology review as well as 
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monitoring, recordkeeping, and reporting requirements. 

Hence, we are finalizing the synthetic minor source permit

application procedures mainly as proposed, with the exception 

that we are requiring the reviewing authority to notify you of 

the permit application completeness determination in writing and 

thus eliminating the requirement that you, as the permit 

applicant, should contact the reviewing authority to find out 

the date of receipt of the application. The final synthetic 

minor source permit application requirements state that you must 

submit a permit application to the reviewing authority and 

within 60 days after receipt of an application, the reviewing 

authority will determine if it contains the information 

specified in 40 CFR 49.158(a). If the reviewing authority 

determines that the application is not complete, it will request 

additional information from you as necessary to process the 

application. If the reviewing authority determines that the 

application is complete, it will notify you in writing. The 

reviewing authority’s completeness determination or request for 

additional information should be postmarked within 60 days of 

receipt of the permit application by the reviewing authority.

We are also adding a provision, to be consistent with the 

site-specific and general permit provisions, to state that if 

you do not receive a request for additional information or a 
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notice of complete application postmarked within 60 days of 

receipt of the permit application by the reviewing authority,

your application would be deemed complete. The reviewing 

authority must provide an opportunity for public participation 

and public comment on the draft synthetic minor source permit as 

set out in 40 CFR 49.157. The final synthetic minor source 

permit will be issued and will be subject to administrative and 

judicial review as set out in 40 CFR 49.159.

The provisions of the final rule address the various 

possible scenarios for synthetic minor source permits as 

follows:

• If you own or operate an existing major source and you 

wish to obtain a synthetic minor source permit

pursuant 40 CFR 49.158 to establish a synthetic minor 

source and/or a synthetic minor HAP source, you may 

submit a synthetic minor source permit application on 

or after the effective date of the final rule, that 

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

PUBLICATION IN THE FEDERAL REGISTER]. However, if 

your permit application for a synthetic minor source 

and/or synthetic minor HAP source pursuant to the FIPs 

for reservations in Idaho, Oregon, and Washington has 

been determined complete prior to [INSERT DATE 60 DAYS 
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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 source and/or synthetic minor HAP source, on or 

after the effective date of the final rule (that is, 

on or after [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]), you must obtain 

a permit pursuant to 40 CFR §49.158 prior to 

commencing construction.

• If your existing synthetic minor source and/or 

synthetic minor HAP source was established pursuant to 

the FIPs applicable to the Indian reservations in 

Idaho, Oregon, and Washington; or was established 

under an EPA-approved rule or permit program limiting 

potential to emit, you do not need to take any action 

under this program. 

• If your existing synthetic minor source and/or 

synthetic minor HAP source was established under a 

permit with enforceable emissions limitations issued 

pursuant to the part 71 program, the reviewing 
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authority has the discretion to require you to submit 

a permit application pursuant to 40 CFR §49.158 for a 

synthetic minor source permit under this program 

within 1 year after the effective date of the final

rule (that is, by [INSERT DATE 1 YEAR AND 60 DAYS FROM 

PUBLICATION IN THE FEDERAL REGISTER]), or to require 

you to submit a permit application for a synthetic 

minor source permit under this program (pursuant to 40 

CFR §49.158) at the same time that you apply to renew 

your part 71 permit, or to allow you to continue to 

maintain synthetic minor status through your part 71 

permit. If the reviewing authority requires you to 

obtain a synthetic minor source permit and/or a 

synthetic minor HAP source permit under this program

(pursuant to 40 CFR §49.158), it also has the 

discretion to require any additional requirements, 

including control technology requirements, based on 

the specific circumstances of the source.

• If your existing synthetic minor source and/or 

synthetic minor HAP source was established through a 

mechanism other than those described in preceding 

paragraphs, including state-issued permits or 

achieving your existing synthetic minor status by 
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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

pursuant to 40 CFR §49.158 within 1 year of the 

effective date of the final rule, that is, by [INSERT 

DATE 1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN 

THE FEDERAL REGISTER]. The reviewing authority has 

the discretion to require any additional requirements, 

including control technology requirements, based on 

the specific circumstances of the source.

If you submit your application and any requested additional 

information in the 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 application and any requested additional 

information 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 become subject to all 

requirements for major sources.

E. Case-By-Case MACT Determinations under Section 112(g) of 

the Act

We proposed that section 112(g)(2)(B) of the Act provides 
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that you may not construct or reconstruct a major source of HAPs 

unless you install MACT. If the Administrator has not 

established 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 caseby-case MACT determination is performed by EPA, as the reviewing 

authority, where there is no delegated program or an EPAapproved 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 regulations 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 procedures” 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, while we can approve a section 112(g) 
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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 

“other 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 part 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 HAP under the 

MACT program (unless the source becomes a synthetic minor 

source) and thus you ultimately will have to obtain a part 71 

operating permit for your major source of HAPs. 

Several commenters supported the proposal to provide for 

case-by-case MACT determinations in the minor NSR program 

because they stated this will be consistent with the practice of 

most state programs, it would be administratively convenient and 

regulation of HAPs is important to health. On the other hand, 
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one commenter argued that if a source is major for HAPs, the 

source should not apply for a minor source permit because 

applying for a case-by-case MACT determination under the minor 

NSR program would exempt the source from the MACT program. 

We agree with those commenters that supported the use of 

the minor NSR program as one of the mechanisms for obtaining a 

case-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 

under this minor NSR program. If not, the minor NSR source that 

is also major for HAPs would have to apply for a minor NSR 

permit and a separate part 71 permit or Notice of MACT Approval 

for its case-by-case MACT determination of its HAP emissions. 

We want to clarify, however, and as the opposing commenter 

suggested, that using the minor NSR program as the mechanism for 

a section 112(g) case-by-case MACT determination does not mean 

that a major source will escape the major source requirements 

under the MACT program. The source still needs to comply with 

the requirements of 40 CFR 63.43 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 synthetic minor source permit, the source will have 
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to obtain a part 71 permit if it actually emits or has the 

potential 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 case-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 proposal preamble, we raised the question of whether 

it may be appropriate to also regulate existing minor sources in 

Indian country under this minor NSR program to help attain and 

maintain the NAAQS. At proposal, we discussed four options for 

the treatment of existing minor sources, as follows:

• Option 1 – No requirements for existing minor sources 

(until a source wishes to make a modification).

• Option 2 – Require existing synthetic minor sources to 

become subject to the minor NSR program requirements 

(including control technology review and other 
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requirements as provided in section IV.A.5 through 9 

of the proposal preamble) and to submit a permit 

application within 1 year after the effective date of 

the program.

• Option 3 - Require all existing minor sources to 

register within 1 year after the effective date of 

this program, but not be subject to the permitting 

requirements.

• Option 4 – Require all existing minor sources to be 

subject to the minor NSR program requirements (as 

provided in section IV.A.5 through 9 of the proposal

preamble).

Numerous commenters supported Option 1. These commenters 

believed that this option is consistent with state minor NSR 

programs, is the least burdensome on existing sources, and the 

EPA and tribes do not have the resources available to implement 

any of the other options. In addition, these commenters opined

that regulation of existing sources is not needed to maintain 

the NAAQS. On the other hand, a few commenters opposed this 

option, mainly because they believed it would not address any 

air quality impacts resulting from existing sources.

Regarding Option 2, a few commenters supported this option 

if it were to be used in combination with other options such as 
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Option 1 or 3. However, two commenters specifically opposed 

Option 2 because they believe this option represents extremely 

onerous provisions for sources and reviewing authorities.

Several commenters supported Option 3 because they believed

it would only place a small administrative burden on existing 

sources to report their existing emissions while providing 

tribes with important information about the existing emissions 

within their jurisdictions. Nevertheless, one commenter opposed 

this option because the commenter believes Option 3 will be 

unduly burdensome and overbroad and could significantly 

disadvantage minor sources already operating in Indian country.

A few commenters supported Option 4 by noting that states 

have generally regulated minor sources and thus that experience 

could aid the implementation of this option. Another commenter 

added that EPA could meet the requirements under Option 4 if we 

used a “sunset clause.” A “sunset clause” would allow sources 

some time to come into compliance and thereby avoid undue 

economic burden all at once. On the other hand, other 

commenters opposed this option because they generally believe it

is extremely onerous for both sources and reviewing authorities.

After considering the comments, we have decided to finalize 

Option 3 for true minor sources. For synthetic minor sources, we 

are finalizing provisions as stated in section IV.D of this 
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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 option for “true” minor 

sources, Option 1, because even though we agree that this option 

is consistent with state minor NSR programs and it is the least 

burdensome option for existing minor sources, we believe that 

collecting source inventory data for minor sources in Indian 

country is necessary to successfully implement the minor NSR 

program. In addition, these source inventory data are needed to 

assess the feasibility of an actual emissions based 

applicability test and to determine if we need to modify the 

minor NSR thresholds at a later time. We are also not 

finalizing Option 4 at this time because we believe that 

subjecting all minor sources to the minor NSR program is not 

necessary to achieve the NAAQS as demonstrated by the existing 

state minor NSR programs (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 of sources and emissions that would 

trigger our proposed minor NSR thresholds (71 FR 48702). 

Furthermore, we believe that Option 4 would overwhelm limited 
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EPA resources even if we were to use a “sunset clause.”

Thus, under the program we are finalizing, we are creating 

a registration program for minor sources in Indian country. 

Under the minor source registration program, if you own or 

operate an existing minor source in Indian country (excluding

synthetic minor sources), you must register your source with the 

reviewing authority in your area within 18 months after the 

effective date of this program, that is, by [INSERT DATE 20 

MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 

REGISTER]. This date has been modified from the 12 months we 

proposed to align the registration date for minor sources with 

the implementation date for minor sources of this rule as 

discussed in section VII.C of this preamble. In addition, 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, you 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 and 
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allowable emissions as provided in 40 CFR 49.160. For the 

Indian reservations subject to the registration requirements 

under 40 CFR 49.138 (“Rule for the registration of air pollution 

sources and the reporting of emissions”), the data being 

collected under that rule will be used to fulfill the 

requirements of this national registration program. 

V. Final Major NSR Program for Nonattainment Areas in Indian 

Country

In this final action, we are establishing a major NSR 

program for new major sources and major modifications at 

existing major sources in nonattainment areas of Indian country 

at 40 CFR 49.166 through 49.175. This program is designed to 

meet the requirements of part D of title I of the Act, and, as 

proposed, sources subject to this program would be required to 

comply with the requirements of 40 CFR part 51, Appendix S 

(Appendix S).

Appendix S is titled “Emission Offset Interpretative 

Ruling” and sets forth preconstruction review requirements for 

major sources and modifications locating in nonattainment areas 

where the state does not have an EPA-approved nonattainment 

major NSR program. In general, Appendix S is a transitional 

nonattainment major NSR program that covers the period after an 

area has been newly designated as nonattainment, up until the 
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state has amended its SIP’s nonattainment major NSR program, as 

needed, to address the new nonattainment area. The requirements 

under Appendix S are essentially the same as our requirements 

for state nonattainment major NSR programs at 40 CFR 51.165.

We are finalizing our proposal to apply Appendix S to 

nonattainment areas in Indian country for a number of reasons. 

Primarily, we believe it is appropriate to apply Appendix S 

provisions in Indian country for administrative convenience. 

Additionally, since Appendix S generally applies in 

nonattainment areas where there is no approved nonattainment 

major NSR program, and since no tribe currently has such a 

program, we believe that Appendix S should also apply in Indian 

country. Another reason for requiring sources subject to this 

program to comply with Appendix S requirements is that the EPA 

Regional Offices (which will be implementing the program until 

an EPA-approved implementation plan is in place) and 

owners/operators of several major sources in Indian country are 

familiar with the implementation and provisions of Appendix S. 

We considered and rejected the option of amending Appendix 

S to extend its application to Indian country, since we believe 

that sources in Indian country are more likely to look for 

regulations applicable to them under part 49, which is solely 

dedicated to regulations that apply in Indian country. We also 
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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 requirements.

A. What are the requirements for major source permitting under 

Appendix S?

Pursuant to paragraph IV of Appendix S, we proposed that a 

reviewing authority may issue a permit for a new major source or 

a major modification locating in a nonattainment area, if it 

complies with the following conditions:

1. The new major source or a major modification meets the 

LAER for that source using add-on controls or 

pollution prevention measures.

2. The applicant certifies that all existing major 

sources owned or operated by the applicant (or any 

entity controlling, controlled by, or under common 

control with the applicant) in the same state as the 

proposed source are in compliance with (or under a 

federally-enforceable compliance schedule for) all 

applicable emission limitations and standards under 
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the Act.

3. Emission reductions (offsets) from existing sources in 

the area of the proposed source (whether or not under 

the same ownership) are obtained such that there will 

be reasonable progress towards attainment of the 

applicable NAAQS.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 

country, 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 provides for permits in a 

nonattainment area to be issued if “an analysis of alternative 

sites, sizes, production processes, and environmental control 

techniques for such proposed source demonstrates that benefits 

 

21 In general, only intrapollutant offsets are permitted 

(e.g., NOx for NOx). As part of the rulemaking to implement the 

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

to allow interpollutant trading of emissions of PM2.5 and its 

precursors under certain conditions (73 FR 28321, May 16, 2008). 

However, this aspect of the regulations is currently under 

reconsideration by EPA. See letter from Lisa P. Jackson, EPA 

Administrator, to Paul R. Cort, Earthjustice, April 24, 2009. 

http://www.epa.gov/nsr/documents/Earthjustice.pdf.
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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. Therefore, 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 amending 

Appendix S to include the section 173 alternatives site 

provision to ensure that the provisions of the 1990 amendments, 

including the CAA section 173 alternative sites analysis 

provision, is codified in implementing regulations. See section 

V.F. of this preamble for more details on the Appendix S 

amendments.

B. How is EPA addressing the lack of available offsets in 

Indian Country?

Tribal representatives have repeatedly stated that 
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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, administrative barriers may hinder tribal access to 

otherwise available offsets. Therefore, tribal representatives 

have advocated for additional flexibility to address offsets, 

such as the provision of NSR offset set-asides (which we expect 

would come from state offset pools or banks).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 PM2.5 standards, and in comments on the 8-hour ozone 

implementation rule. For example, see the letter from Bill 

Grantham, National Tribal Environmental Council, to docket EPAHQ-OAR-2003-0076, providing comments on the proposed 8-hour 

ozone implementation rule (66 FR 32802). 
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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 example, some 

commenters suggested 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 in 
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the state. The commenter believes that this would be 

fair because most nonattainment problems in Indian 

country are caused by sources that are not under 

tribal control. 

• EPA, the states, the tribe, and sources could 

collaborate to identify acceptable offsets outside of 

Indian country. 

• EPA should launch a concerted effort to improve the 

availability of offsets in all areas that need them 

(not just in Indian country) by encouraging the 

development of protocols to allow the creation of 

offsets from nontraditional sources, especially mobile 

and area/minor sources. 

• Tribes should be afforded the opportunity to request a 

permanent offset waiver based on language in the 

Tribal Authority Rule (TAR). The TAR: “provide[s] an 

opportunity for Indian Tribes to assume responsibility 

for the development and implementation of CAA programs 

on lands within the exterior boundaries of their 

reservations or other areas within their 

jurisdiction.” Thus, the commenter believes that the 

waiver will allow the opportunity for tribes to be 

able to develop and implement the nonattainment major 
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NSR program. 

However, other commenters believe that offsetting of major 

NSR projects should be a requirement of the nonattainment major 

NSR program and no waivers should be given. These commenters 

opined that offset waivers would: (1) likely be illegal under 

the Act, (2) cause air quality concerns, and (3) be unfair for 

sources located or locating outside of Indian country. For 

example, one of the commenters indicated that there is a 

significant shortage of offsets in virtually every 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 tribal 
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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 within the state.

• EPA, state and tribal collaboration should not make it 

necessary for tribes to go to the states to obtain 

offsets for economic development on the reservation 

since it denigrates the government-to-government 

relations.

• Offsets should not be traded between Indian country 

and the states due to tribal sovereignty issues and 

potential for confusion involving monitoring and 

tracking costs, as well as who receives tax revenue 

from the offsets. 

As we stated previously, we recognize the unique 

circumstances that tribes face as well as the difficulty in 

obtaining offsets in certain parts of the country; however, we 

do not have the legal authority to waive the offset requirement 

under section 173 of the Act or under the TAR. 
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Thus and to address the lack of offsets availability, both 

inside and outside of Indian country, we encourage states and 

tribes to work together in the creation and use of offset banks

for their lands. We agree that, where appropriate, the tribe 

can obtain offsets from surrounding 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 allow tribal 

access to offsets in the state offset bank and vice-versa if and 

when tribes develop their own offset banks. This MOU would 

contain provisions establishing the criteria for emissions 

reductions to be used as offsets such as real, quantifiable,

surplus, permanent and enforceable. 

Furthermore, we are addressing the lack of availability of 

offsets in general. For example, in the final rule titled,

“Implementation of the New Source Review (NSR) Program for 

Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 

28340), we finalized provisions that allow for inter-pollutant 

and inter-precursor trading of offsets between direct PM2.5 

emissions and its precursor emissions. We believe this is a 

first step in the process of addressing the shortage of offsets 

in the nation and we will continue to explore and implement, as 
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one commenter suggested, the use of non-traditional sources of 

offsets such as offsets from mobile sources and area or minor 

sources. 

Regarding the offset waivers we proposed, we want to 

clarify that these waivers are currently available under the CAA 

and implementing regulations for both states and tribes. The 

EDZ option is currently available under section 173(a)(1)(B) of 

the Act and the Appendix S paragraph VI option is currently 

available under 40 CFR part 51 Appendix S. Therefore, we 

disagree with those commenters that believe that if the proposed 

offset waivers would only be available for Indian country, then

states would be at an economic disadvantage and/or that we would 

be creating pollution havens in Indian country. 

Nevertheless, based on the opposing comments we received, 

including comments from the tribes, regarding the implementation 

issues under the Appendix S Paragraph VI option, we are only 

allowing the EDZ option that is currently available under the 

statute for both tribes and States as a potential option for 

offset waiver and not finalizing the Appendix S Paragraph VI 

option in this final rule. 

1. Economic Development Zone Option 

For this option we rely on section 173(a)(1)(B) of the Act 

under which the Administrator, in consultation with the 
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Secretary of Housing and Urban Development (HUD), may identify 

zones within nonattainment areas as EDZs. 

To be identified as an EDZ, HUD’s Initiative for Renewal 

Communities, Urban Empowerment Zones, and Urban Enterprise 

Communities generally require that participating communities 

demonstrate pervasive poverty, high unemployment, and general 

distress throughout the designated area. The United States 

Department of Agriculture requires similar eligibility criteria 

for participating communities located in rural areas. We 

believe that many areas of Indian country may meet these 

criteria and hence could qualify for this offset relief 

provision.

As we proposed, the Administrator will consult with HUD 

only once to develop a general set of approval criteria, such 

that a consultation with HUD is not required every time a tribe 

applies for its area of Indian country to be designated as an 

EDZ. Also as proposed, EPA intends to provide assistance as 

needed for a tribe to complete an EDZ designation request. 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 received a few comments on the use of the EDZ option as 

an offset waiver. Supporting commenters believe that this 
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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 contribute to emissions levels “which 

exceed the allowance permitted for such pollutant for such area 

from new or modified stationary sources under section 172(c).” 

The latter section, at section 172(c)(4) of the Act, provides 

that the implementation plan shall identify and quantify the 

emissions, if any, that will be allowed to be used under 

section 173(a)(1)(B) (the EDZ section), and shall “demonstrate 

to the satisfaction of the Administrator that the emissions 

quantified for this purpose will be consistent with the 

achievement of reasonable further progress and will not 

interfere with attainment of the applicable national ambient air 

quality standard by the applicable attainment date.” Thus, the 

commenter 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, by 
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definition, the proposed rule does not apply where there is a 

TIP and thus EPA would need to look at the relevant SIP of the 

surrounding or adjacent state for the applicable “allowance of 

emissions” for EDZ sources. The commenter noted that in many 

cases there may be no such allowance, and that even if the 

relevant State SIP includes an allowance, that allowance would 

almost certainly not have been calculated under the assumption 

that areas in Indian country could access the allowance. Under 

these circumstances, the commenter asserted, the affected state 

would be entitled under the Act to determine in the first 

instance what, if any, access to the allowance it wished to make 

available to sources in Indian country. The commenter concluded 

that as a matter of law the EDZ option is unavailable unless and 

until the relevant state creates and makes available an 

appropriate allowance.

Another commenter also noted that as proposed, EPA would 

consult with the Secretary of Housing and Urban Development only 

once to develop a general set of approval criteria for EDZs. 

The commenter stated that this approach appears to conflict with 

the language of the Act, which requires consultation on each 

individual zone. 

After reviewing all the comments received, we believe that 

the EDZ option as established by statute is available for offset 
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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 states generally lack jurisdiction under the 

Act over facilities in Indian country.

The ability of an area to qualify would be determined on a 

case-by-case basis, but criteria for including tribes in the 

EDZs and for consultation with the tribes will need to be 

developed in advance and in coordination with the Secretary of 

Housing and Urban Development. These criteria will ensure that 

tribal and state input are included and that considerations are 

put in place to avoid industries coming into an area strictly 

for the offset relief. Therefore, we disagree with the 

commenter that believes that a general set of approval criteria 
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will be in conflict with the language of the Act. 

2. Appendix S, Paragraph VI Option 

Paragraph VI of Appendix S notes that in some cases the 

dates for attainment of the primary or secondary NAAQS may not 

have passed. In such cases, Appendix S provides that a new 

source locating in a nonattainment area may be exempt from the 

requirements of paragraph IV.A of Appendix S (discussed in 

section VI.A of this preamble), including the offset 

requirement, if the following conditions are met:

• The new source complies with the applicable 

implementation plan emission limitations;

• The new source will not interfere with the attainment

date for a regulated NSR pollutant; and 

• We have determined that the preceding two conditions 

are satisfied and such determination is published in 

the Federal Register.

It is important to note that this option only provides 

temporary offset relief because it will cease to be available 

once the attainment date for a pollutant has passed. 

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 

commenters stated, this option provides equivalent environmental 
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protection. The reviewing agency has to demonstrate that the 

proposed source will not interfere with the attainment date for 

the regulated NSR pollutant(s) in the area. 

However, a number of commenters had misgivings about the 

paragraph VI option, generally based on legal or environmental 

grounds. Two commenters stated that the paragraph VI option is 

inapplicable and unlawful because: (1) there is no applicable 

implementation plan in Indian country, so no source can “comply 

with applicable implementation plan emissions limitations” (in 

addition, one of these commenters conceded that if we interpret 

this to require the source to meet the SIP limits in the 

surrounding or adjacent state, this requirement could be met), 

(2) if there is no applicable implementation plan, it will be 

impossible to demonstrate that a source will not interfere with 

the attainment date for a nonattainment pollutant, (3) the Act 

requires that for every major source, the source must provide 

sufficient offsetting emissions reductions such that there is a 

reduction in emissions amounting to reasonable further progress, 

when considered together with emissions from other new and 

existing sources (see section 173(a)1)(A) of the Act), and (4) 

the 1990 Amendments to the Act set out specific offset ratios 

which major sources must meet, such as 1.5 to 1 for Extreme 

Areas, 1.3 to 1 for Severe Areas, etc. (section 182 of the Act). 
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These ratios may be met on an aggregate basis (i.e., individual 

sources may be exempt from offsets if the state makes an 

equivalency demonstration showing that the universe of new 

sources as a whole meets the applicable ratios). However, 

nothing in paragraph VI requires that equivalency demonstration 

to be made. Therefore, the commenter noted that paragraph VI on 

its face violates the 1990 Amendments to the Act. 

Other commenters stated that the paragraph VI option is not 

acceptable because it would be difficult for some tribes to meet 

the criteria. They 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 added 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 and it will be 

challenging for EPA or the tribe to demonstrate that the 

proposed source will not interfere with the attainment date. 

C. How do I meet the statewide compliance certification 

requirement of the Act and Appendix S?

Pursuant to the statewide compliance certification 
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requirements of section 173(a)(3) of the Act, as reflected in 

Appendix S at Condition 2 of paragraph IV.A, an owner or 

operator of a proposed new or modified major stationary source 

must demonstrate that all other major sources under his/her 

control in the same state are in compliance or on a schedule for 

compliance with all emission limitations and standards under the 

Act. In the context of Indian country, we sought comment on 

whether this requirement should be expressed as an Indian 

country-wide compliance certification or remain a statewide 

certification. In other words, we requested comment on whether 

you should be required to certify that all your sources in the 

state where your proposed source is locating are in compliance, 

or that all your sources in all of Indian country are in 

compliance.

We received a variety of comments on this issue. Several 

commenters believe that the certification should be on a statewide 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 EPA 
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overreaching authority to facilities that are operating under 

SIP-approved programs within the state since other sources 

within the same state may not be within Indian country and thus 

regulated by the state rather than EPA.

Regarding the Indian country-wide certification, one 

commenter 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 regulatory 

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 

certification across all of Indian country, and (2) this is more 

consistent with treatment of individual tribes as states under 

applicable EPA regulations.

After consideration of comments, we are finalizing a state-
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wide compliance certification requirement consistent with 

section 173(a)(3) of the Act. We believe that a state-wide 

compliance certification: (1) provides a broad enough look at 

the compliance history of the company, without overburdening the 

review process, and (2) reflects a geographic approach to the

certification rather than an approach based on the entity that 

is sovereign. Thus, an Indian country-wide certification would 

not have the proximity and geographic contiguity that a statewide approach would have.

D. What are the public participation requirements for this 

program?

We believe that the public participation requirements of 40 

CFR 51.161 apply to permitting under Appendix S. Additionally, 

for the nonattainment major NSR program in Indian country, we 

are finalizing detailed public participation requirements at 40 

CFR 49.171. As proposed, the final public participation 

requirements for the nonattainment major NSR program are very 

similar to those finalized for the minor NSR program at 40 CFR 

49.157. See section IV.B of this preamble for more information 

on these requirements and the comments we received.

E. What are the provisions for final action on a permit, 

permit reopenings, and administrative and judicial review 

procedures? 
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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 

found 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 after making a decision to issue or deny your 

permit, the reviewing authority must notify you of the decision 

in writing and, if the permit is denied, provide the reasons for 

the denial. If the reviewing authority issues a final permit to 

you, 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 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 permit).

The reviewing authority’s final decision on your permit 
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must be based on an administrative record, and the final rule 

includes requirements on what must be in that record. For 

example, the administrative record must include the application 

and any supporting data furnished by the applicant and all 

comments received during the public comment period, including 

any extension or reopening. See final 40 CFR 49.172(b) and (c) 

for a listing of all the requirements. 

A few commenters largely supported the proposed provisions 

for providing notice of final permit actions. However, the 

commenters recommended that such notice be provided in the same 

manner that it was provided during the public comment on the 

draft permit. The commenters believe that numerous 

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 

nonattainment major NSR program and the minor NSR program. We 

believe that for major sources in nonattainment areas making a 

copy of the permit available at all of the locations where the 

draft permit was made available will not be too burdensome for 

the reviewing authorities and will ensure that the affected 

community and the general public have reasonable access to the 
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applicable information. These provisions are included in 40 CFR 

49.157 of this final rule. However, for minor sources, we 

continue to believe that depending on the circumstances of your 

permit, the reviewing authority may elect to provide notice 

directly to the individuals who commented on the draft permit 

and/or use any of the other methods of public notice discussed 

in section IV.B.4 of this preamble because providing the same 

public noticing procedures as those that were used during the 

comment period for the draft permit might be too burdensome for 

minor sources. These provisions are included in 40 CFR section 

49.157 of this final rule.

Regarding 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 not receive any comments about these 

provisions specifically for the nonattainment major NSR program.

Regarding the permit reopening provisions, the final rule 

requires that a permit may be reopened for cause by the 
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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 of 

this preamble. We did not receive any comments about these 

provisions specifically for the nonattainment major NSR program.

F. How is EPA revising Appendix S?

As we explain in more detail in section V.A. of this 

preamble, we are amending Appendix S to include the alternative 

sites analysis provisions of CAA section 173. Therefore, we are 

finalizing a change to Appendix S that will add a Condition 5 to 

the provisions under 40 CFR Appendix S Paragraph IV.A. This 

condition will state that the permit applicant shall conduct an 

analysis of alternative sites, sizes, production processes, and 

environmental control techniques for such proposed source that 

demonstrates that the benefits of the proposed source 

significantly outweigh the environmental and social costs imposed 

as a result of its location, construction, or modification.

In addition and as proposed, we are finalizing a minor 

change to Appendix S that is related to the “emission 

limitations and standards of the Act.” Existing paragraph II.B 

of Appendix S requires the reviewing authority to review each 
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proposed new major source and major modification to determine 

whether it will meet “any applicable NSPS in 40 CFR part 60, or 

any national emission standard for HAPs in 40 CFR part 61.” 

While we have incorporated this requirement into final 40 CFR 

49.169(a), we believe that it should be expanded to include the 

newer national emission standards for HAPs codified at 40 CFR 

part 63 (commonly referred to as MACT standards). Accordingly, 

we are revising paragraph II.B of Appendix S to add these 

standards under the Act and to match the revised language of 

this paragraph with the final 40 CFR 49.169(a). We did not 

receive any comments for this proposed provision. 

VI. Legal Basis, Statutory Authority, and Jurisdictional Issues

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

NSR programs in Indian country?

As we have described in section III of this preamble, in 

the absence of an EPA-approved program, we are authorized to 

develop a FIP to protect air quality by directly implementing 

provisions of the Act throughout Indian country. See, e.g., 59 

FR 43958-61 (August 25, 1994), 63 FR 7262-64 (February 12, 

1998), and 62 FR 13750 (March 21, 1997). For the PSD program,

no tribe is currently administering an EPA-approved PSD 
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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 nonattainment major NSR program and the minor NSR 

program 24in Indian country, no tribes are currently 

administering 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 the NSR program in 

Indian country. We are finalizing the minor NSR program at 40 

CFR 49.151 through 49.165 and the nonattainment major NSR 

program at 40 CFR 49.166 through 49.175. 

It is important to recognize, however, that even though we 

are adopting this federal program that applies in Indian 

country, the tribes may still develop TIPs, similar to SIPs, to 

implement these programs. If a tribe develops a TIP to 

implement NSR, the TIP, once it is approved, will replace the 

 

23 Under the Act and the TAR (see 40 CFR part 49, subpart 

A), eligible tribes may seek approval of their own PSD programs 

for their reservations and/or for other areas under their 

jurisdiction.

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).
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federal program as the requirement 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 violates the 

CAA because the Administrator has failed to make a finding that 

any specific state or tribe has failed to submit an 

implementation plan, or that any specific implementation plan

either fails to satisfy the minimum criteria under the Act or

has been disapproved in whole or in part. In addition, the 

commenter believes that the Act only authorizes the adoption of 

a FIP on a jurisdiction-by-jurisdiction basis, not nationally. 

Two of these commenters also stated that even if the EPA adopts 

the proposed nationwide FIP, the FIP cannot supersede, and EPA 

must acknowledge, the state of Oklahoma’s right to administer 

its state air quality programs in areas of Indian country within 

Oklahoma under the Federal Safe, Accountable, Flexible, and 

Efficient Transportation Equity Act: A Legacy for Users (2005). 

We disagree with these commenters.
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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 “Tribal Authority 

Rule” or “TAR,” EPA explains that it intends to use its 

authority under the CAA “to protect air quality throughout 

Indian country25” by directly implementing the CAA’s requirements 

where tribes have chosen not to develop or are not implementing

an EPA-approved CAA program. 63 FR 7254, February 12, 1998. 

The final TAR at 40 CFR 49.11 states that EPA would “promulgate 

without unreasonable delay such FIP provisions as are necessary 

or appropriate to protect air quality” for these areas. The EPA

is exercising its authority under sections 301(a) and 301(d)(4) 

of the CAA and 40 CFR 49.11(a) to promulgate FIPs in order to 

remedy an existing regulatory gap under the CAA with respect to 

Indian country. 

 

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 rights-of-way running 

through the reservation, (2) all dependent Indian communities 

within the borders of the United States, whether within the 

original or subsequently acquired territory thereof, and whether 

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

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running through the same. 

Under this definition, EPA treats as reservations trust lands 

validly set aside for the use of a tribe even if the trust lands 

have not been formally designated as a reservation.
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Although many facilities in these areas may have

historically followed state 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 state 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 

state programs that the approved state program does not extend 

into Indian country. It is EPA’s position that, absent an 

explicit demonstration of authority by a state to administer a 

CAA program in Indian country, and absent an explicit finding by 

EPA of such jurisdiction and explicit approval of the state in 

Indian country, state and local governments lack authority under 

the CAA over air pollution sources, and the owners or operators 

of air pollution sources, throughout Indian country.

Because only a few tribes have yet sought eligibility to 

 

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 Claims Settlement Act, 25 U.S.C. 1773, 

gives explicit authority to state and local governments to 

administer their environmental laws on all nontrust lands within 

the 1873 Survey Area of the Puyallup Reservation in Tacoma, 

Washington. 
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administer a minor NSR program, and no tribe has yet sought 

eligibility for the nonattainment major NSR program, a gap for 

implementation of these programs currently exists in Indian 

country. Given the longstanding air quality concerns in some 

areas and the need to establish requirements in all areas to 

maintain CAA standards, EPA believes that these FIP provisions 

are appropriate to protect air quality in Indian country where 

no EPA-approved minor NSR or nonattainment major NSR program is 

in place. 

The rules published are based on the same CAA authority as 

EPA has used elsewhere in rulemaking that have been affirmed by 

the courts. The EPA’s interpretation of its authority has been 

affirmed by the U.S. Court of Appeals for the District of 

Columbia Circuit in Arizona Public Service Co. v. EPA, 211 F.3d 

1280 (D.C. Cir. 2000), cert. denied 121 S. Ct. 1600 (2001). In 

addition, EPA’s authority to issue operating permits to major 

sources located in Indian country under title V of the Act, 

pursuant to nationwide regulations at 40 CFR part 71, was 

affirmed in State of Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 

2001). The EPA has used this same authority to issue a number 

of FIPs to address air pollution concerns on a regional basis 

and at specific facilities located in Indian country. See

Federal Implementation Plans Under the Clean Air Act for Indian 
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Reservation in Idaho, Oregon, Washington, 40 CFR part 49, 

subpart M (70 FR 18074, April 8, 2005) (upheld in Safe Air for 

Everyone v EPA, 2006 WL 3697684 (9th Cir. 2006)); FIP for TriCities landfill, 40 CFR 49.22 (64 FR 65664, November 23, 1999); 

Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (64 FR 

65663, November 23, 1999); FIP for the Astaris-Idaho LLC 

Facility (formerly owned by FMC Corporation) in the Fort Hall 

PM-10 Nonattainment Area, 40 CFR 49.10711 (65 FR 51412, August 

23, 2000); and FIP for Four Corners Power Plant, Navajo Nation, 

40 CFR 49.23 (72 FR 25698, May 7, 2007) (upheld in Arizona 

Public Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). 

Effects of State Law. The rules established by EPA here 

are in effect under the CAA. The EPA recognizes that in a few 

cases, other state or local governmental entities may have 

established air quality requirements that the commenters believe 

apply to activities in Indian country. However, unless those 

rules or requirements have been explicitly approved by EPA under 

the CAA to apply in Indian country, compliance with those other 

requirements does not relieve a source from complying with the 

applicable provision of this FIP. As EPA has stated elsewhere, 

states generally lack the authority to regulate air quality in 

Indian country. See Alaska v. Native Village of Venetie Tribal 

Government, 522 U.S. 520, 527 fn.1 (1998) (“Generally speaking, 
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primary jurisdiction over land that is Indian country rests with 

the Federal Government and the Indian Tribe inhabiting it, and 

not with the States.”), California v. Cabazon Band of Mission

Indians, 480 U.S. 202, 216 and n.18 (1987); see also HRI v. EPA, 

198 F.3d 1224, 1242 (10th Cir. 2000); see also discussion in 

EPA’s final rule for the federal operating permits program, 64 

FR 8251–8255, February 19, 1999. 

Furthermore, with regard to Indian reservations, EPA 

interprets the CAA as establishing unitary management of Indian 

country air resources and as a delegation of federal authority 

to eligible tribes to implement the CAA over all sources within 

reservations, including non-Indian sources on fee lands. 

Accordingly, even if a state could demonstrate authority over 

non-Indian sources on fee lands within an Indian reservation, 

EPA believes that the CAA generally provides the Agency the 

discretion to federally implement the CAA over all Indian 

country sources in order to ensure an efficient and effective 

transition to tribal CAA programs and to avoid the 

administratively undesirable checker-boarding of reservation air 

quality management based on land ownership. The EPA believes 

that Congress intended that EPA take a territorial view of 

implementing air programs within reservations. The EPA also 

believes that air quality planning for a checker-boarded area 
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would be more difficult and that it would be inefficient if a 

state were to exercise regulation over piecemeal tracts of land 

within Indian country, possibly with similar Indian country

sources being subject to different substantive requirements. 

The EPA’s approach provides for coherent and consistent 

environmental regulation within Indian country. 

Although EPA does not recognize state or local air 

regulations as being effective within Indian country for 

purposes of the CAA, absent an express approval by EPA of those 

regulations for an area of Indian country, this rulemaking does 

not address the validity of state and local law and regulations 

with respect to sources in Indian country, or the authority of 

state and local agencies to regulate such sources, for purposes 

other than the federal CAA. We are specifically not making a 

determination that these federal CAA rules override or preempt 

any other laws that have been established outside the scope of 

the federal CAA. The EPA does not, therefore, believe that any 

further preemption analysis suggested by the commenters is 

needed in these circumstances. As described above, EPA believes 

that its authority under the CAA to implement these programs in 

Indian country is clear and well-established and has been upheld 

by reviewing courts in similar circumstances.

With regard to the comments relating to Indian country and
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the State of Oklahoma, EPA recognizes that the Safe, 

Accountable, Flexible, Efficient Transportation Equity Act of 

2005 (SAFETEA) contains a provision (section 10211) relating to 

implementation of environmental regulatory programs under 

federal environmental laws, including the CAA, in Indian country 

in Oklahoma. However, 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 

Indian tribe in Oklahoma. The EPA would address 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 minor and nonattainment major NSR programs 

for Indian country, including Indian country in Oklahoma.

B. How does a tribe receive delegation to assist EPA with 

administration of the federal minor and major NSR rules?

With this action, we are finalizing the provisions on 

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 of 
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tribal programs under the Act, including a tribal NSR program, 

under tribal law27. The TAR allows tribes to seek approval for 

such programs covering their reservations or other areas within 

their jurisdiction. However, we recognize that some tribes may 

choose not to develop tribal NSR programs for submission to EPA 

for approval under the TAR, but that these tribes may still wish 

to assist us in implementing all or some portion of the federal 

NSR program for their area of Indian country. This process is 

known as delegation and by assisting 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. Therefore final 40 CFR 49.161 and 

49.173 of the minor and major NSR rules, respectively, provide 

tribal governments the option of seeking delegation from us of 

the administration of the federal NSR program, or aspects of the 

program, for their area of Indian country. 

We have well-established processes for delegating our 

federal authority to states 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 in a 

similar manner as a state, treatment as state (TAS), for various 

provisions and programs of the Act.
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and issuing federal operating permits under 40 CFR 71.4(j) and 

71.10. The process we will follow to delegate the 

administration of the federal NSR program to a tribal agency is 

similar to the process we follow to delegate the administration 

of federal programs to states.28 Prior to finalizing any 

delegation agreement with a tribal agency, we will 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 TIPs, neither the Act nor the 

regulations provide that approval of tribal programs under 

tribal law is the sole mechanism available for tribal agencies 

to take on permitting responsibilities. Accordingly, we will

exercise our discretion to delegate administration 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 programs 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 not allow 

a tribe to request delegation of the PSD program. However, we 

are aware of this deficiency and we are currently working on a 

rulemaking that will amend this provision.
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administration of aspects of these federal NSR programs. Tribes 

would, however, need to provide the relevant application 

information described in those sections29. In addition, program 

functions delegated under final 40 CFR 49.161 or 49.173 remain 

part of the relevant FIP administered under federal law. The 

delegate tribal agency would simply assist EPA with 

administration of the program to the extent of the functions 

delegated.

As described in the preamble to the TAR30, 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 the area of Indian country for which the 

delegation is requested. In addition, tribal agencies seeking 

delegation must provide a statement by the tribe’s legal counsel 

or equivalent official including a statement that the tribe is 

recognized by the Secretary of the Interior, a descriptive 

statement demonstrating that the tribe is currently carrying out 

substantial governmental duties and powers over a defined area 

(this statement should be consistent with the type of 

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

separate process by which tribes apply to be treated in a 

similar manner as states for various purposes under the Act), a 

description of the laws of the tribe that provide adequate 

authority to administer the federal rules and provisions for 

which the delegation is requested, and a descriptive statement 

demonstrating that the tribal agency has, or will have, the 

technical capability and adequate resources to administer the 

federal rules and provisions for which the delegation is 

requested.

30 See 63 FR 7254-59.
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reservations. As described earlier, the TAR established 

procedures for our approval of tribal eligibility applications 

to operate the programs of the Act under tribal law. Where we 

approve a tribal eligibility application and approve a tribal 

NSR program, the approved tribe will manage the program under 

tribal law, and the tribal program becomes federally 

enforceable. Among the required elements of a tribal 

eligibility application under the TAR is a demonstration of the 

tribe’s authority, including appropriate enforcement authority, 

to regulate air quality for the areas to be covered by the 

program. For air resources within the exterior boundaries of a 

tribe’s reservation, the tribe may rely on the Congressional 

delegation of federal authority to operate approved tribal 

programs. Tribes may also attempt to demonstrate authority to 

operate the programs of the Act over other areas outside of 

their reservations, generally including non-reservation areas of 

Indian country.

In contrast, the delegation approach finalized in these 

rules provides for us to delegate administration of the federal 

program operating under federal law to interested tribes that 

provide the information described in proposed 40 CFR 
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49.161(b)(1) and 49.173(b)(1)31. Since this program operates 

throughout Indian country under federal authority, tribes will

not need to demonstrate either Congressionally-delegated 

authority over air resources within the exterior boundaries of 

their reservations or authority of non-reservation areas of 

Indian country. Instead, tribal agencies will assist us in 

implementing the federal program by taking delegation of the 

administration of particular activities conducted under our 

authority in Indian country. Under final 40 CFR 

49.161(b)(1)(iii)(C) and 49.173(b)(1)(iii)(C), tribes will only 

need to show that their laws provide adequate capacity and 

authority to carry out the delegated activities. For example, 

where a tribe seeks administrative delegation for permit issuing 

activities of the federal program, the tribe may, among other 

things, need to show it has in place an appropriate agency with 

legal authority to review applications and issue permits on 

 

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

Administrator is authorized to prescribe such regulations as are 

necessary to carry out his or her functions under the Act and 

pursuant to this authority, final 40 CFR 49.161 and 49.173 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, nothing in the final rules requires us to 

delegate administration of any aspect of the federal program to 

a tribal agency.
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behalf of the delegate tribal government. For these 

administratively delegated programs, federal program 

requirements will continue to be subject to enforcement by EPA, 

not the delegate tribal agency, under federal law. 

Administrative appeals of permitting decisions will also 

continue to be made directly to the EAB under our administrative 

procedures with any subsequent judicial review to be conducted 

in federal court. In the final rules we make it clear that we 

will not delegate enforcement or appeal components of the 

program to tribal agencies.

In order to be delegated authority to administer the 

proposed rules for a particular area of Indian country, the 

authorized 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 Authority Agreement between the Administrator and 

the tribal agency will set forth the terms and conditions of the 

delegation, and will also specify the rules and provisions that 

the tribal agency is authorized to implement. Once the 

delegation becomes effective, the tribal agency will have the 

authority under the Act, to the extent specified in the 

Agreement, to administer the rules in effect for the particular 
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area of Indian country, and to act on behalf of the 

Administrator. The federal requirements administered by the 

delegate tribal agency will be subject to enforcement by EPA

under federal law. 

When we have delegated administration of the portion of the 

federal minor or major NSR program that includes receipt of 

permit application materials and preparation of draft permits, 

the delegate tribal agency must provide us a copy of each permit 

application (including any application for permit revision) and 

each draft permit.32 In any such delegation, we retain the 

authority to object to the issuance of any permit that we 

determine not to be in compliance with the requirements under 

the program or other requirements pursuant to regulations under 

the Act. For any such objections, we will outline the reasons 

for the objection in writing, and we will provide a copy of the 

written statement to the permit applicant. The delegate tribal 

agency may not issue a permit if we object to its issuance in 

writing. The delegate tribal agency may submit a revised draft 

permit to us in response to the objection. However, if it does 

 

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.
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not do so within 90 days, we will issue or deny the permit in 

accordance with the requirements of the federal minor or major 

NSR program, as applicable.

We did not receive any comments expressly supporting our 

delegation provisions. However, a number of commenters opined 

that when a tribe has administrative delegation of the program, 

enforcement authority should be delegated to the tribes as well. 

These comments are addressed in section VI.B of this preamble. 

Other commenters oppose delegation of 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 upon 

an approved TIP. Another commenter maintained that only the TAS 

process should be used to delegate authority of environmental 

programs to tribes to avoid jurisdictional conflicts between 

EPA, tribes, and the state (especially in Oklahoma because there 

have been significant problems there with tribes providing 

adequate jurisdiction of lands they claim) and to avoid 

confusion for the regulated community. The commenter suggested 

that if the administrative delegation process is included in the 

final NSR program, it should include a Federal Register public 

notice and comment provision. Another commenter believes that 
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because EPA has not made any jurisdictional determinations in 

connection with the proposed FIP, delegation of authority to 

tribes to assist in administering the FIP violates the plain 

requirements of the Act.

As described above, EPA continues to believe that the CAA 

authorizes us to use the administrative delegation approach to 

assist EPA in carrying out implementation of our federal 

program. See CAA section 301(a). 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 tribal 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 for tribal involvement in EPA’s 

federal implementation of CAA requirements. 

Delegation of the authority to assist EPA with 

administration of elements of the federal NSR programs is a 

process that is distinct from approval of tribal eligibility and 

tribal programs under CAA section 301(d) and the TAR. To the 

extent the commenters are concerned that administrative 

delegation acts as an approval of tribal authority, EPA 

reiterates that irrespective of any such delegation, the minor 
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NSR and nonattainment major NSR programs established here will 

continue to operate under federal authority subject to EPA 

appeal procedures before EPA’s Environmental Appeals Board and 

to enforcement solely by EPA. The administrative delegation 

provision simply allows EPA to delegate certain functions to 

qualified Tribes that may then assist EPA with administration of 

the programs. 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 appropriate, in 

administration of the federal programs. 

EPA also notes that because the minor and nonattainment 

major NSR programs will continue to operate under federal 

authority (irrespective of administrative delegation of any 

functions to qualified tribes), none of the jurisdictional 

issues raised in the comments should arise. Indeed, as 

described elsewhere, EPA’s well-established authority to 

implement CAA programs in Indian country in the absence of an 

EPA-approved program should provide jurisdictional certainty to 

all sources covered by these programs. Similarly, issues of 

tribal jurisdiction over covered sources should not arise since 

no showing or finding of such jurisdiction is needed for 

administration of the federal programs and EPA believes that 
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these delegation provisions are consistent with similar wellestablished provisions EPA has used in other contexts (e.g., 

delegation of federal operating permits under 40 CFR 71.4(j) and 

71.10; delegation of PSD permits under 40 CFR 52.21(u); and 

delegation to tribes of elements of the federal air rules for 

Indian country in the Pacific Northwest under 40 CFR 49.122). 

As noted in EPA’s proposal of the minor NSR and 

nonattainment major NSR rules, EPA also intends to consult with 

other federal, state, tribal, or local governmental entities, or 

other governmental agencies in the area, prior to finalizing a 

delegation agreement with a tribal agency. Although the CAA 

does not require such consultations, or any specific process, to 

approve administrative delegations, EPA believes that this 

approach provides an appropriate opportunity for such 

governmental entities to express views regarding the potential 

delegation agreement and will assist EPA in identifying any 

unanticipated issues. 

The EPA also notes that even when we have established 

separate criteria for the delegation provisions of the minor and 

nonattainment major NSR rules for tribes seeking to assist EPA 

with administration of the federal programs, nothing in the 

administrative delegation process changes the criteria EPA would 

evaluate in reviewing and acting upon tribal applications for 
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TAS under CAA section 301(d) and the TAR. CAA section 301(d) 

and the TAR at 40 CFR 49.6 and 49.7 establish the criteria 

tribes must demonstrate, and the types of information to be 

included in tribal applications, to obtain TAS eligibility to 

administer tribal programs under tribal law. 

Although the TAS and delegation criteria overlap in certain 

respects, they also contain significant differences, most 

notably in the required demonstration of authority. Tribes 

seeking TAS eligibility to administer approved tribal regulatory 

programs under tribal law must demonstrate their relevant 

authority, including appropriate enforcement authority, to 

regulate air quality in the areas to be covered by the program. 

See 40 CFR 49.6(c) and 49.7(a)(3). For air resources within the 

exterior boundaries of an Indian reservation, eligible tribes 

may rely on the Congressional delegation of federal 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 minor and nonattainment major NSR programs 

will, in all circumstances, operate under federal authority, 

tribes requesting to assist EPA through administrative 

delegation need not demonstrate Congressionally-delegated 
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authority over air resources within the exterior boundaries of 

their reservations or authority over non-reservations areas of 

Indian country. Instead, such tribes would only need to show 

that their laws 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 

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 happens to permits previously issued by states to 

sources in Indian country?

Historically, sources in some areas of Indian country may 

have received permits from states operating 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, 

this final rulemaking provides a mechanism to change state 

permits issued to major sources of regulated NSR pollutants in 
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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 this 

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 into 

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) seems unnecessarily complex and thus 

these commenters argued that these permits should be transferred 

“en masse” from one agency to the other with a simple 

notification to the operator of the transfer or jurisdiction. 

One of these commenters added that if EPA feels that the “en 

masse” transfer methods are impracticable, then the source 

should be able to transfer the permit by submitting a transfer 

request (not a complete application) with a copy of the permit 
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to both agencies, while the other commenter stressed that 

sources with state minor NSR permits should be grandfathered 

into the Indian country program and not required to conduct 

minor NSR permitting. 

On the other hand, one commenter maintained that while 

previous state permit conditions may be appropriate to be 

included in the new federal permit, this should not be 

automatic. The commenter also stated that government-togovernment consultation between EPA and the affected tribe must 

take place during this process. Furthermore, two commenters 

pointed out that the proposal did not discuss what enforcement 

mechanism would be used if a source failed to convert a state 

permit to a federal permit in the given time frame and thus one 

of these commenters recommended that EPA should consider using

tribal courts for this purpose since the infraction would occur 

on tribal lands and within tribal jurisdiction.

After considering these comments, we believe that 

transforming state nonattainment major NSR permits into federal 

nonattainment major NSR permits in Indian country is appropriate 

to protect air quality in Indian country 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 masse” from one agency to another or be 
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automatically transferred because we need to determine if the 

permit complies with the applicable requirements under the NSR 

program. If it does not, a new permit with additional 

requirements would have to be public noticed and issued. If a 

source fails 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 tribes allowed to collect fees for NSR permitting?

Many tribal commenters suggested that the NSR program 

should include a mechanism that allows tribes or the EPA to 

collect fees to offset the costs of the program, especially when 

a tribe has been given delegation of the program. Two of these 

commenters pointed out that tribes that do accept delegation of 

the program will need resources, such as funds to train and 

support personnel who will be reviewing and commenting on the 
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permitting applications and funds for providing technical 

assistance to businesses regarding compliance issues. Some of 

these commenters also indicated that EPA should provide funding 

for tribal implementation of the NSR program, for example, 

through cooperative agreements and grants. 

The Agency is aware of and concerned about the resource 

needs of the rule, but, unfortunately, the CAA does not give the 

Agency explicit authority to charge permit fees for preconstruction permitting. However, tribes that develop TIPs can 

charge for permits and Tribes with delegation can develop permit 

fee programs under their authority (e.g., Navajo’s permit fee 

program for their delegated title 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 tribe could, as appropriate, establish 

mechanisms to fund the work by tribal staff, that may include 

federal funding assistance through cooperative agreements and 

grants and/or user fees and charges established by the tribe to 

fund its administrative 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 trainings (face-
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to-face training sessions and through ITEP training), (2) using 

model language to request delegation, (3) developing and using 

general permits, and (4) using model codes for tribes 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 tribes should 

include enforcement authority. Where they were specific, most 

of these commenters specified delegation of civil enforcement 

authority (including the ability to collect civil penalties to 

help support the program), but a number of commenters also 

favored delegation of criminal enforcement authority. In 

addition, commenters stated that by declining to 

administratively delegate enforcement (whether civil or 

criminal) of federal permits to tribes, EPA is acting 

inconsistently with other delegations which, in the commenters’ 

view, withhold only criminal enforcement, but include civil 

enforcement. Other commenters also added that tribes should be 

allowed to negotiate the level of enforcement authority on a 

case-by-case basis. We disagree with these commenters. 

The EPA believes that these commenters mistake the 

distinction between approvals of tribal programs under tribal 

law provided for in the TAR and the administrative delegations 
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at issue here. Where EPA approves an eligible tribe for TAS 

under CAA section 301(d) and the TAR, EPA will continue to 

review the applicant tribe’s authority, including its authority 

to enforce, in an appropriate tribal forum, any approved tribal 

program operated under tribal law. In such circumstances, EPA 

has recognized that certain limitations on tribal criminal 

authority should not constitute a bar to tribal program approval 

and has determined to fill any gap in tribal criminal authority 

by retaining primary criminal enforcement at the federal level 

for all circumstances in which a tribe is precluded from 

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

such situations EPA would, however, generally expect the 

applicant tribe to demonstrate authority to pursue appropriate 

civil enforcement under tribal law of any approved tribal 

program. 

By contrast, any permits issued under the federal NSR 

programs (even where issued by a Tribe acting on EPA’s behalf 

pursuant to a delegation agreement) remain federal in character 

and continue to be enforceable (whether civilly or criminally) 

in federal court because EPA does not believe that it would be 

appropriate to delegate enforcement of a federal permit in 

federal court to an Indian tribe assisting EPA with 

administration of the NSR program. Indeed, in similar 
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circumstances EPA has consistently withheld enforcement in 

federal court from any administratively delegated entity, 

whether a state or a tribe. For instance, under certain other 

CAA programs (e.g., EPA’s major source operating permit program 

under 40 CFR part 70 and EPA’s PSD program under 40 CFR 52.21) 

EPA may, in appropriate circumstances, delegate administration 

of elements of the program to non-federal entities. However, 

while such entities may pursue enforcement in their own courts 

of parallel non-federal air quality requirements, enforcement of 

the federal permit in federal court will always be retained and 

conducted by EPA.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 context of FIPs for Indian 

reservations in the Pacific Northwest). 

The EPA’s approach to administrative delegation of the 

federal NSR programs is thus consistent with other 

administrative delegation regulations and with EPA’s approach to 

approval of tribal programs under the TAR. The EPA notes that 

tribes interested in enforcing NSR permits issued in their areas 

 

33 Most states have sought and obtained EPA approval to 

administer their own minor and nonattainment major NSR programs 

administered under state law. To the extent the commenters 

believe that states are pursuing enforcement of NSR programs, 

EPA notes that such enforcement is likely being taken pursuant 

to State law under such approved state programs. 
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may continue to seek TAS eligibility and program approval 

pursuant to established procedures under the TAR. Indeed, EPA 

expects that the approach to administrative delegation of 

elements of the federal NSR program may benefit such Tribes by 

providing opportunities for tribes that are building air quality 

programs to gain experience by assisting EPA with administration 

of the federal rules without needing to first develop tribal air 

programs under tribal law. To the extent such tribes do 

subsequently obtain TAS eligibility and NSR program approval, 

their approved tribal programs under tribal law would replace 

the relevant federal rule. In addition, EPA recognizes that 

some Tribes may choose not to develop air programs under tribal 

law, but may still want to participate in air quality management 

in their areas of Indian country. Administrative delegation of 

elements of the federal rules may provide an appropriate 

opportunity for such tribal involvement.

Consequently, EPA believes the distinction between 

delegation of administration of aspects of the federal NSR rules 

and approval of eligible tribal programs under CAA section 

301(d) and the TAR is significant and warrants EPA’s retention 

of federal enforcement of federal NSR permits in federal court. 

The EPA also believes that this approach does not create any 

inconsistency with its treatment of tribal programs under the 
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TAR or with EPA’s approach to administrative delegations of 

other CAA programs to tribes and states.

C. What is the implementation schedule for the final rules?

We received several comments related to EPA’s ability to 

implement these rules. A few of these commenters believe that 

EPA does not have adequate resources to take on the NSR program 

without significant permitting delays, while one commenter added 

that tribal agencies do not have the resources needed either. 

One commenter in particular was very concerned about the 

workload EPA regions will have, especially those regions that 

oversee a large number of tribal lands, given EPA’s 

presupposition that few, if any, tribes 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 requests delegation or obtains 

approval of a Tribal implementation 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, 

especially for those EPA regions where EPA, as the reviewing 
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authority, oversees a large number of tribes. Consequently, we 

have decided to phase in the rules as follows:

Existing major sources

• If you wish to commence construction of a minor 

modification at an existing major stationary 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 49.154 and 49.155 (or a 

general permit pursuant to 40 CFR 49.156, if 

applicable) prior to commencing construction.

• If you wish to obtain a synthetic minor source permit

pursuant 40 CFR 49.158 to establish a synthetic minor 

source and/or a synthetic minor HAP source at your 

existing major source, you may submit a synthetic 

minor source permit application on or after [INSERT 

DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. However, if your permit application for a 

synthetic minor source and/or synthetic minor HAP 

source pursuant to the FIPs for reservations in Idaho, 

Oregon, and Washington has been determined complete 

prior to [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER], you do not need 
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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 established pursuant to 

the FIPs applicable to the Indian reservations in 

Idaho, Oregon, and Washington; or was established 

under an EPA-approved rule or permit program limiting 

potential to emit, you do not need to take any action 

under this program. 

• If your existing synthetic minor source and/or 

synthetic minor HAP source was established under a 

permit with enforceable emissions limitations issued 

pursuant to the part 71 program, the reviewing 
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authority has the discretion to require you to submit 

a permit application for a synthetic minor source 

permit under this program within 1 year after the 

effective date of the final rule (that is, by [INSERT 

DATE 1 YEAR AND 60 DAYS FROM PUBLICATION IN THE 

FEDERAL REGISTER] and pursuant to 40 CFR §49.158), to 

require you to submit a permit application for a 

synthetic minor source permit under this program 

(pursuant to 40 CFR §49.158) at the same time that you 

apply to renew your part 71 permit, or to allow you to 

continue to maintain synthetic minor status through 

your part 71 permit. If the reviewing authority 

requires you to obtain a synthetic minor source permit 

and/or a synthetic minor HAP source permit under this 

program (pursuant to 40 CFR §49.158), it also has the 

discretion to require any additional requirements, 

including control technology requirements, based on 

the specific circumstances of the source.

• If your existing synthetic minor source and/or 

synthetic minor HAP source was established through a 

mechanism other than those described in the preceding 

paragraphs, including state-issued permits or pursuant

to achieving your existing synthetic minor status by 
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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 

synthetic minor source permit within 1 year after the 

effective date of the final rule, that is, by [INSERT 

DATE 1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN 

THE FEDERAL REGISTER]. The reviewing authority has 

the discretion to require any additional requirements, 

including control technology requirements, based on 

the specific circumstances of the source.

True minor sources 

• If you 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 the registration requirements of 40 CFR 

49.160, you must submit the initial registration for 

the source by [INSERT DATE 20 MONTHS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER] or within 90 days 

after the source begins operation, whichever is later. 

You are exempt from this requirement if your source is 

subject to 40 CFR 49.138 - “Rule for the registration 
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of air pollution sources and the reporting of 

emissions.”

• If you wish to commence construction of a new true 

minor source or a modification at an existing true 

minor source on or after [INSERT DATE 20 MONTHS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER], you must 

obtain a permit pursuant to 40 CFR 49.154 and 49.155 

(or a general permit pursuant to 40 CFR 49.156, if 

applicable) prior to commencing construction. If the 

proposed new source or modification is subject to the 

registration requirements of 40 CFR 49.160, 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 of air 

pollution sources and the reporting of emissions.”)

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is a “significant regulatory action” because it 

raises novel legal or policy issues arising out of legal 

mandates, the President’s priorities, or the principles set 
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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 million. 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 bound total annualized costs of this rule 

are estimated to be approximately $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 not 
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enforceable until OMB approves them. 

The information collection requirements resulting from this 

final rule are associated with certain records and reports that 

are necessary for the tribal agency (or the EPA Administrator in 

non-delegated areas), for example, to: (1) confirm the 

compliance status of stationary sources, (2) identify any 

stationary sources not subject to the standards, and identify 

stationary sources subject to the rules; and (3) ensure that the 

stationary source control requirements are being achieved. The 

information would be used by the EPA or tribal enforcement 

personnel to (1) identify stationary sources subject to the 

rules, (2) ensure that appropriate control technology is being 

properly applied, and (3) ensure that the emission control 

devices are being properly operated and maintained on a 

continuous basis. Based on the reported information, the 

delegate tribes (or the EPA Administrator in non-delegated 

areas) can decide which plants, records, or processes should be 

inspected.

The nonattainment major NSR rule would have little impact 

on existing major sources in Indian country because it would 

only affect such owners and operators if they propose a major 

modification and only one is expected during the first 6 years 

after promulgation. (See the Economic Impact Analysis in the 
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docket for this action for more information.) In addition, the 

final rule would only result in an administrative change for new 

major sources in Indian country because, although the regulatory 

mechanism to issue permits is not yet available in the form of 

either a federal nonattainment major NSR rule or a TIP, we are

already required to implement the program in Indian country, and 

have developed source-specific FIPs to do so. As a result, 

there would be no new or additional burden on industry.

With regard to the minor source permitting rule (including 

new minor sources, minor modifications at minor sources, minor 

modifications at major sources, and new synthetic minor 

sources), it is estimated that 4,326 new or modified facilities 

will be affected for the first 3 years after promulgation of the 

rule. They will incur approximately 1,699,500 hours in 

monitoring, recordkeeping, and reporting burden, 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 at 
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5 CFR 1320.3(b)

An agency may not conduct or sponsor, and a person is not 

required to respond to, a collection of information unless it 

displays a currently valid OMB control number. The OMB control 

numbers for EPA's regulations in 40 CFR are listed in 40 CFR 

part 9. When this ICR is approved by OMB, the Agency will 

publish a technical amendment to 40 CFR part 9 in the Federal 

Register to display the OMB control number for the approved 

information collection requirements contained in this final 

rule.

C. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice 

and comment rulemaking requirements under the Administrative 

Procedure Act or any other statute unless the agency certifies 

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include 

small businesses, small organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts of this final rule on 

small entities, “small entity” is defined as: (1) a small 

business as defined by the Small Business Administration’s 

regulations at 13 CFR 121.201; (2) a small governmental 
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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-forprofit enterprise which is independently owned and operated and 

is not dominant in its field. 

After considering the economic impacts of this final rule 

on small entities, I certify that this action will not have a 

significant economic impact on a substantial number of small 

entities. The small entities potentially regulated by this 

final rule in Indian country are:

• New and modified minor sources of regulated NSR 

pollutants;

• Sources of regulated NSR pollutants choosing to accept 

enforceable emission limitations to avoid major source 

regulations (synthetic minors);

• Sources of HAP choosing to accept enforceable emission 

limitations to avoid major source regulations 

(synthetic minors);

• Minor modifications to major sources of regulated NSR 

pollutants;

• New major sources of regulated NSR pollutants in 

nonattainment areas; and
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• Major modifications to major sources of regulated NSR 

pollutants in nonattainment areas.

We have determined that the new major sources and major

modifications at existing major sources in nonattainment areas

will incur no incremental costs or will experience cost savings 

due to the final rule because the rule only changes the 

regulatory mechanism in which these sources can request a permit 

(it does not change the compliance requirements). The costs of 

the source-specific FIP (the alternative mechanism in the 

absence of this rule) would have been comparable to the 

estimated costs of complying with this rule. In addition, since 

the permitting process may be less uncertain under the final 

rule, new and modifying major sources could potentially 

experience cost savings compared to baseline conditions. 

Therefore, the screening assessment focused on costs for 

new and modified minor sources, minor modifications at major 

sources and synthetic minor sources. To analyze potential 

impacts to small companies owning such sources, we first 

estimated the number of new sources that would be sited in 

Indian country over the period of 2011 through 2016. However, 

since data on minor sources in Indian country are generally very 

limited, we conducted an exhaustive search for information 

currently available from EPA databases, the Small Business 
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Administration, and EPA Regional Offices. We then collected 

data from the Economic Census (2002) on the number of 

establishments of each type in each state, and allocated the 

establishments to Indian country based on tribes’ share of state 

income. Then, we projected the number of new minor sources of 

each type that would be created in Indian country by applying 

the estimated growth rate for American Indian/Alaska Native 

(AI/AN) population in each state to the estimated baseline 

number of sources in Indian country in the state. Over the 6-

year period after the effective date of the rule (2011 through 

2016), we estimate that 7,606 new minor sources will be created 

in Indian country. 

We used data from financial databases to compute the share 

of companies in each sector that are owned by small businesses 

(based on the Small Business Administration small business size 

definitions at 13 CFR 121.201). We also examined the share of 

existing major and synthetic minor sources in Indian Country 

that are owned by small businesses. 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 estimate 

that 1,521 new minor source facilities will be created in Indian 

country by small businesses during the first 6 years after 

promulgation. Additionally, we project that 197 of the total 
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estimated 984 minor modifications to existing minor sources

during the period 2011 through 2016 will occur at facilities

owned by small businesses. Furthermore, we estimate that 10 

synthetic minor sources owned by small businesses will be 

created during the period 2011 through 2016.

Finally, we estimate that 2 of the 12 major sources in 

Indian country that make a minor modification to their

operations between 2011 and 2016 will be owned by small 

businesses. 

Table 3 below summarizes the estimated numbers of affected 

facilities and small businesses.

Table 3. Projected Number of Affected Small Businesses 

(2011 through 2016)

Source type

Projected number of 

new and modified 

sources owned by 

small businesses

New Minor Sources 1,521

Modified Minor Sources 197

Synthetic Minor Sources 10

Minor Modifications to Major 

Sources

2

Total 1,730

a Based on Year 2008 dollars.

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 business 
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sales in each sector.

Our analysis estimates that small businesses investing in 

new minor source facilities, minor modifications to existing 

minor sources, minor modifications to existing major sources, 

and new synthetic minor sources over the period 2011 through 

2016 will incur costs that are less than 1 percent of average 

small company sales revenues for most sectors, but small 

companies choosing to invest in new auto body refinishing 

plants, concrete batching plants, 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

and 3 percent of sales under 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 landfills, 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 few new sources will incur upper 

bound costs, this is considered an over-estimate of the 

potential small business impacts. Thus, EPA does not believe 
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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 FROM 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 million 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 Mandates 
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Reform Act (UMRA).

This rule is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. This rule has no requirements applicable to small 

governments and as such does not impose obligations upon them. 

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on the states, on the 

relationship between the national government and the states, or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132. This rule has no requirements applicable to states. 

Thus, Executive Order 13132 does not apply to this rule. 

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA specifically solicited comment on the 

proposed rule from state and local officials. To that end, we 

had two meetings with the STAPPA/ALAPCO34 to present the draft 

preamble and rule. We also met with the National Federation of 

Independent Business and provided outreach material through the 

 

34 This organization has since changed its name to the 

National Association of Clean Air Agencies (NACAA).
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small business ombudsman’s office to get input from the small 

businesses that might be affected by this rule.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

Subject to the Executive Order 13175 (65 FR 67249, November 

9, 2000) EPA may not issue a regulation that has tribal 

implications, that imposes substantial direct compliance costs, 

and that is not required by statute, unless the federal 

government provides the funds necessary to pay the direct 

compliance costs incurred by tribal governments, or EPA consults 

with tribal officials early in the process of developing the 

proposed regulation and develops a tribal summary impact 

statement.

The EPA has concluded that this action will have tribal 

implications. However, it will neither impose substantial 

direct compliance costs on tribal governments, nor preempt 

tribal law. This action provides two preconstruction air 

permitting rules for stationary sources in Indian Country, but 

these rules will neither impose substantial direct compliance

costs on tribal governments, or preempt Tribal law because these 

rules will be implemented by EPA, or a delegate tribal agency 

assisting EPA with administration of the rules, until replaced 

by an EPA-approved tribal implementation plan. See section 
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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 

Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined 

in Executive Order 13211 (66 FR 28355, May 22, 2001), because it 

is not likely to have a significant adverse effect on the supply, 

distribution, or use of energy. The number of projected new 

sources in the energy sector due to this rule is a small share 

(about 1 percent) of the total number of energy sector facilities 

nationwide. Therefore, EPA does not believe that this action

will have a significant effect on energy production. In 

addition, EPA’s cost analysis, presented in the Economic Impact 
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Analysis (EIA), estimates the total annualized cost of the rule 

will be substantially less than the $100 million cost and/or 

benefits trigger identified in EO 12866 and thus this action is 

not considered an “economically significant regulatory action”. 

With the final rule not being a economically significant 

regulatory action, it is not considered a significant energy 

action.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. The NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This action does not involved technical standards. 

Therefore, EPA did not consider the use of any voluntary 

consensus standards.

J. Executive Order 12898: Federal Actions to Address 
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Environmental Justice in Minority Populations and LowIncome Populations

Executive Order 12898 (59 FR 7629, February 16, 1994)

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in

the United States. 

The EPA has determined that this final rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it increases the level of environmental protection for

all affected populations (which are persons living in Indian 

country) without having any disproportionately high and adverse 

human health or environmental effects on any population, 

including any minority or low-income population. Indeed, EPA 

believes that the two preconstruction air quality regulations in 

this FIP would provide regulatory certainty and fill a 

regulatory gap in Indian country and result in emissions 

reductions from sources complying with these regulations. 
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Consequently, the regulations are expected to result in health 

benefits to persons living in Indian country, many of whom live 

in low-income and minority communities.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, generally provides that before a rule may take effect, 

the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress 

and to the Comptroller General of the United States. The EPA 

will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). This rule will be 

effective 60 days from the date of publication, i.e., on [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 
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60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Any 

such judicial review is limited to only those objections that 

are raised with reasonable specificity in timely comments. 

Filing a petition for reconsideration by the Administrator of 

this final rule does not affect the finality of this rule for 

the purposes of judicial review nor does it extend the time 

within which a petition for judicial review may be filed, and 

shall not postpone the effectiveness of such rule or action. 

Under section 307(b) (2) of the Act, the requirements of this 

final action may not be challenged later in civil or criminal 

proceedings brought by us to enforce these requirements.
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Page 216 of 325 - Review of New Sources and Modifications in 

Indian Country

IX. Statutory Authority

The statutory authority for this proposed action is 

provided by sections 101, 110, 112, 114, 116, and 301 of the Act 

as amended (42. U.S.C. 7401, 7410, 7412, 7414, 7416, and 7601). 

List of Subjects

40 CFR Part 49

Administrative practices and procedures, Air pollution 

control, Environmental protection, Indians, Intergovernmental 

relations, Reporting and recordkeeping requirements.

40 CFR Part 51

Administrative practices and procedures, Air pollution 

control, Environmental protection, Intergovernmental relations.

___________________________ 

Dated:

____________________________

Lisa P. Jackson,

Administrator. 
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For the reasons cited in the preamble, title 40, chapter I of 

the Code of Federal Regulations is amended as follows:

PART 49-[AMENDED]

1. The authority citation for part 49 continues to read as 

follows:

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

Subpart C-[AMENDED]

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

undesignated center heading and §§49.151 through 49.161, and 

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

Federal Minor New Source Review Program in Indian Country

§49.151 Program overview.

(a) What constitutes the federal minor new source review 

(NSR) program in Indian country? As set forth in this Federal 

Implementation Plan (FIP), the federal minor NSR program in 

Indian country (or “program”) consists of §§49.151 through 

49.165.

(b) What is the purpose of this program? This program has 

the following purposes:

(1) It establishes a preconstruction permitting program 

for new and modified minor sources (minor sources) and minor 

modifications at major stationary sources located in Indian 

country to meet the requirements of section 110(a)(2)(C) of the 
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Act. 

(2) It establishes a registration system that will allow 

the reviewing authority to develop and maintain a record of 

minor source emissions in Indian country.

(3) It provides a mechanism for an otherwise major 

stationary source to voluntarily accept restrictions on its 

potential to emit to become a synthetic minor source. This 

mechanism may also be used by an otherwise major source of HAPs

to voluntarily accept restrictions on its potential to emit to 

become a synthetic minor HAP source. Such restrictions must be 

enforceable as a practical matter. 

(4) It provides an additional mechanism for case-by-case 

maximum achievable control technology (MACT) determinations for 

those major sources of HAPs subject to such determinations under 

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

(5) It sets forth the criteria and procedures that the 

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

administer the program.

(c) When and where does this program apply?

(1) The provisions of this program apply in Indian country 

where there is no EPA-approved minor NSR program, according to 

the following implementation schedule:

(i) Existing major sources.
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(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 your permit application for a 

synthetic minor source and/or synthetic minor HAP source 

pursuant to the FIPs for reservations in Idaho, Oregon, and 

Washington has been determined complete prior to [INSERT DATE 60 

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

not need to apply for a synthetic minor source permit under this 

program.

(ii) Synthetic minor sources.

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

synthetic minor source and/or a new synthetic minor HAP source 

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

synthetic minor HAP source on or after [INSERT DATE 60 DAYS 
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AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], you must 

obtain a permit pursuant to §49.158 prior to commencing 

construction.

(B) If your existing synthetic minor source and/or 

synthetic minor HAP source was established pursuant to the FIPs 

applicable to the Indian reservations in Idaho, Oregon, and 

Washington; or was established under an EPA-approved rule or 

permit program limiting potential to emit, you do not need to 

take any action under this program. 

(C) If your existing synthetic minor source and/or 

synthetic minor HAP source was established under a permit with 

enforceable emissions limitations issued pursuant to part 71 of 

this chapter, the reviewing authority has the discretion to 

require you to submit a permit application for a synthetic minor 

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

DAYS FROM PUBLICATION IN THE FEDERAL REGISTER] and pursuant to

§49.158, to require you to submit a permit application for a 

synthetic minor source permit under this program (pursuant to 

§49.158) at the same time that you apply to renew your part 71 

permit, or to allow you to continue to maintain synthetic minor 

status through your part 71 permit. If the reviewing authority 

requires you to obtain a synthetic minor source permit and/or 

synthetic minor HAP source permit under this program (pursuant 
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to §49.158) it also has the discretion to require any additional 

requirements, including control technology requirements, based 

on the specific circumstances of the source. 

(D) If your existing synthetic minor source and/or 

synthetic minor HAP source was established through a mechanism 

other than those described in paragraphs (c)(1)(ii)(B) and (C) 

of this section, 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 requirements, 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 REGISTER] 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] or 
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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 (or a general permit pursuant to §49.156, if 

applicable) prior to commencing construction. The proposed new 

source or modification will also be subject to the registration 

requirements of §49.160, except for sources that are subject to 

§49.138 - “Rule for the registration of air pollution sources 

and the reporting of emissions.”

(2) The provisions of this program or portions of this 

program cease to apply in an area covered by an EPA-approved 

implementation plan on the date that our approval of that 

implementation plan becomes effective, provided that the 

implementation plan includes provisions that comply with the 

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

construction and modification of minor sources and minor 

modifications at major sources. 
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(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 of

this program, you must comply with those requirements. 

(4) Issuance of a permit does not relieve you of the 

responsibility to comply fully with applicable provisions of any 

EPA-approved implementation plan or FIP and any other 

requirements under applicable law.

(5) Nothing in this program prevents a tribe from 

administering a minor NSR permit program with different 

requirements in an approved Tribal Implementation Plan (TIP) as 

long as the TIP does not interfere with any applicable 

requirement of the Act.

(e) What is the process for issuing permits under this 
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program? For the reviewing authority to issue a final permit 

decision under this program (other than a general permit under 

§49.156 or a synthetic minor source permit under §49.158), all 

the actions listed in paragraphs (e)(1) through (8) of this 

section need to be completed. The processes for issuing general 

permits and synthetic minor source permits are set out in 

§49.156 and §49.158, respectively.

(1) You must submit a permit application that meets the 

requirements of §49.154(a).

(2) The reviewing authority determines completeness of the 

permit application as provided in §49.154(b) within 45 days of 

receiving the application (60 days for minor modifications at 

major sources).

(3) The reviewing authority determines the appropriate 

emission limitations and permit conditions for your affected 

emissions units under §49.154(c).

(4) The reviewing authority may require you to submit an 

Air Quality Impact Analysis if it has reason to be concerned 

that the construction of your minor source or modification would 

cause or contribute to a NAAQS or PSD increment violation

(5) If an AQIA is submitted, the reviewing authority 

determines that the new or modified source will not cause or 

contribute to a NAAQS or PSD increment violation.
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(6) The reviewing authority develops a draft permit that 

meets the permit content requirements of §49.155(a). 

(7) The reviewing authority provides for public 

participation, including a 30-day period for public comment, 

according to the requirements of §49.157. 

(8) The reviewing authority either issues a final permit 

that meets the requirements of §49.155(a), or denies the permit 

and provides reasons for the denial, within 135 days (or within 

1 year for minor modifications at major sources) after the date 

the application is deemed complete and all additional 

information necessary to make an informed decision has been 

provided.

§49.152 Definitions.

(a) For sources of regulated NSR pollutants in 

nonattainment areas, the definitions in §49.167 apply to the 

extent that they are used in this program (except for terms 

defined in paragraph (d) of this section).

(b) For sources of regulated NSR pollutants in attainment 

or unclassifiable areas, the definitions in §52.21 of this 

chapter apply to the extent that they are used in this program 

(except for terms defined in paragraph (d) of this section).

(c) For sources of HAP, the definitions in §63.2 of this 

chapter apply to the extent that they are used in this program 
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(except for terms defined in paragraph (d) of this section).

(d) The following definitions also apply to this program:

Affected emissions units means the following emissions 

units, as applicable:

(1) For a proposed new minor source, all the emissions 

units.

(2) For a proposed modification, the new, modified, and 

replacement emissions units involved in the modification.

Allowable emissions means “allowable emissions” as defined 

in §52.21(b)(16) of this chapter, except that the allowable 

emissions for any emissions unit are calculated considering any 

emission limitations that are enforceable as a practical matter 

on the emissions unit's potential to emit.

Emission limitation means a requirement established by the 

reviewing authority that limits the quantity, rate, or 

concentration of emissions of air pollutants on a continuous 

basis, including any requirement relating to the operation or 

maintenance of a source to assure continuous emissions 

reduction, and any design standard, equipment standard, work 

practice, operational standard, or pollution prevention 

technique.

Enforceable as a practical matter means that an emission 

limitation or other standard is both legally and 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.”
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enforceable as follows:

(1) An emission limitation or other standard is legally 

enforceable if the reviewing authority has the right to enforce 

it.

(2) Practical enforceability for an emission limitation or 

for other standards (design standards, equipment standards, work 

practices, operational standards, pollution prevention 

techniques) in a permit for a 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, 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 the 
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reviewing authority of the source's election to be covered by 

the rule or general permit; and 

(iii) Specify the enforcement consequences relevant to the 

rule or general permit.

Environmental Appeals Board means the Board within the EPA 

described in §1.25(e) of this chapter. 

Indian country, as defined in 18 U.S.C. 1151, means the 

following:

(1) All land within the limits of any Indian reservation 

under the jurisdiction of the United States government, 

notwithstanding the issuance of any patent, and including 

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 

 

1 Under this definition, EPA treats as reservations trust 

lands validly set aside for the use of a tribe even if the trust 

lands have not been formally designated as a reservation.
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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 stationary 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. The potential to emit includes fugitive 

emissions, to the extent that they are quantifiable, only if the 

source belongs to one of the source categories listed in part 

51, Appendix S, paragraph II.A.4(iii) or §52.21(b)(1)(iii) of 

this chapter, as applicable.

Modification means any physical or operational change at a 

stationary source that would cause an increase in the allowable 

emissions of a minor source or an increase in the actual 

Comment [E6]: Why has “change in the 

method of operation” changed to “operational 

change”?
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emissions (based on the applicable test under the major NSR 

program) of a major source for any regulated NSR pollutant, or 

that would cause the emission of any regulated NSR pollutant not 

previously emitted. Allowable emissions of a minor source 

include fugitive emissions, to the extent that they are 

quantifiable, only if the source belongs to one of the source 

categories listed in part 51, Appendix S, paragraph II.A.4(iii)

or §52.21(b)(1)(iii) of this chapter, as applicable. The 

following exemptions apply:

(1) A physical or operational change does not include 

routine maintenance, repair, or replacement.

(2) An increase in the hours of operation or in the 

production rate is not considered an operational change unless 

such change is prohibited under any permit condition that is 

enforceable as a practical matter.

(3) A change in ownership at a 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 its 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 

routine 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.”
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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 sources. Such restrictions 

must be enforceable as a practical matter. 

Synthetic minor HAP source means a source that otherwise 

has the potential to emit HAPs in amounts that are at or above 

those for major sources of HAP in §63.2 of this chapter, but 

that has taken a restriction so that its potential to emit is 

less than such amounts for major sources. Such restrictions 

must be enforceable as a practical matter.

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 thresholds in §49.167 or 

§52.21 of this chapter, as applicable, but equal to or greater 

Comment [E9]: See comment 8.
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than the minor NSR thresholds in §49.153, without the need to 

take an enforceable restriction to reduce its potential to emit 

to such levels. That is, a true minor source is a minor source 

that is not a synthetic minor source. 

§49.153 Applicability.

(a) Does this program apply to me? The requirements of 

this program apply to you as set out in paragraphs (a)(1) 

through (4) of this section.

(1) New and modified sources. The applicability of the 

preconstruction review requirements of this program is 

determined individually for each regulated NSR pollutant that 

would be emitted by your new or modified source. For each such 

pollutant, determine applicability as set out in the relevant 

paragraph (a)(1)(i) or (ii) of this section.

(i) New source. Use the following steps to determine 

applicability for each regulated NSR pollutant.

(A) Step 1. Determine whether your proposed source's 

potential to emit the pollutant that you are evaluating is 

subject to review under the applicable major NSR program (that 

is, under §52.21 of this chapter, under the federal major NSR 

program for nonattainment areas in Indian country at §§49.166 

through 49.175, or under a program approved by the Administrator 

pursuant to §51.165 or §51.166 of this chapter). If not, go to 
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Step 2 (paragraph (a)(1)(i)(B) of this section).

(B) Step 2. Determine whether your proposed source's 

potential to emit the pollutant that you are evaluating, 

(including fugitive emissions, to the extent they are 

quantifiable, only if the source belongs to one of the source 

categories listed pursuant to section 302(j) of the Act), is 

equal to or greater than the corresponding minor NSR threshold 

in Table 1 of this section. If it is, you are subject to the 

preconstruction requirements of this program for that pollutant. 

(ii) Modification at an existing source. Use the 

following steps to determine applicability for each regulated 

NSR pollutant.

(A) Step 1. For the pollutant being evaluated, determine 

whether your proposed modification is subject to review under 

the applicable major NSR program. If the modification at your 

existing major source does not qualify as a major modification 

under that program based on the actual-to-projected-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 threshold listed in Table 1 of this section. For a 

modification at your existing minor source go to Step 2 

(paragraph (a)(1)(ii)(B) of this section). 
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(B) Step 2. Determine whether the increase in allowable 

emissions from the proposed modification (calculated using the 

procedures of paragraph (b) of this section) would be equal to 

or greater than the minor NSR threshold in Table 1 of this 

section for the pollutant that you are evaluating. If it is, 

you are subject to the preconstruction requirements of this 

program for that pollutant. If not, go to Step 3 (paragraph 

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

(C) Step 3. If any of the emissions units affected by 

your proposed modification result in an increase in an annual 

allowable emissions limit for the pollutant that you are 

evaluating, the proposed modification is subject to paragraph 

(a)(2) of this section. If not, your proposed modification is 

not subject to this program.

(2) Increase in an emissions unit's annual allowable 

emissions limit. If you propose a physical or operational 

change at your minor or major 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 annual 
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allowable emissions limit may be accomplished through an 

administrative permit revision as provided in §49.159(f).

(3) Synthetic minor source permits. 

(i) If you own or operate an existing major source and you 

wish to obtain a synthetic minor source permit pursuant to 

§49.158 to establish a synthetic minor source and/or a synthetic 

minor HAP source, you may submit a synthetic minor source permit

application on or after [INSERT DATE 60 DAYS AFTER DATE OF 

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

application for a synthetic minor source and/or synthetic minor 

HAP source pursuant to the FIPs for reservations in Idaho, 

Oregon, and Washington has been determined complete prior 

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

REGISTER], you do not need to apply for a synthetic minor source 

permit under this program.

(ii) If you wish to commence construction of a new 

synthetic minor source and/or a new synthetic minor HAP source, 

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

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

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

obtain a permit pursuant to §49.158 prior to commencing 

construction.

(iii) If you own or operate a synthetic minor source or 
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synthetic minor HAP source that was established prior to the 

effective date of this rule (that is, prior to [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER])

pursuant to the FIPs applicable to the Indian reservations in 

Idaho, Oregon, and Washington or under an EPA-approved rule or 

permit program limiting potential to emit, you do not need to 

take any action under this program. 

(iv) If you own or operate a synthetic minor source or 

synthetic minor HAP source that was established prior to the 

effective date of this rule (that is, prior to [INSERT DATE 60 

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

a permit with enforceable emissions limitations issued pursuant 

to the operating permit program in part 71 of this chapter, the 

reviewing authority has the discretion to require you to apply 

for a synthetic minor source permit under §49.158 of this 

program by [INSERT DATE 1 YEAR AND 60 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER] or at the time of part 71 

permit renewal or allow you to maintain synthetic minor status 

through your part 71 permit. 

(v) For all other synthetic minor sources or synthetic 

minor HAP sources that obtained synthetic minor status or 

synthetic minor source permits through a mechanism other than 

those described in paragraphs (iii) and (iv) of this section, 
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including state-issued permits, you must submit an application 

for a synthetic minor source permit under this program by 

[INSERT DATE 1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER] under §49.158.

(4) Case-by-case maximum achievable control technology 

(MACT) determinations. If you propose to construct or 

reconstruct a major source of HAPs such that you are subject to 

a case-by-case MACT determination under section 112(g)(2) of the 

Act, you may elect to have this determination approved under the 

provisions of this program. (Other options for such 

determinations include a title V permit action or a Notice of 

MACT Approval under §63.43 of this chapter.) If you elect this 

option, you still must comply with the requirements of §63.43 of 

this chapter that apply to all case-by-case MACT determinations.

(b) How do I determine the increase in allowable emissions 

from a physical or operational change at my source? Determine 

the resulting increase in allowable emissions in tons per year 

(tpy) of each regulated NSR pollutant after considering all 

increases from the change. A physical or operational change may 

involve one or more emissions units. The total increase in 

allowable emissions resulting from your proposed change, 

including fugitive emissions, to the extent they are 

quantifiable, only if your source belongs to one of the source 
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categories listed pursuant to section 302(j) of the Act, would 

be the sum of the following:

(1) For each new emissions unit that is to be added, the 

emissions increase would be the potential to emit of the 

emissions unit.

(2) For each emissions unit with an allowable emissions 

limit that is to be changed or replaced, the emissions increase 

would be the allowable emissions of the emissions unit after the 

change or replacement minus the allowable emissions prior to the 

change or replacement. However, this may not be a negative 

value. If the allowable emissions of an emissions unit would be 

reduced as a result of the change or replacement, use zero in 

the calculation.

(3) For each unpermitted emissions unit (a unit without 

any enforceable permit conditions) that is to be changed or 

replaced, the emissions increase is the allowable emissions of 

the emissions unit after the change or replacement minus the 

potential to emit prior to the change or replacement. However, 

this may not be a negative value. If an emissions unit’s postchange allowable emissions would less than its pre-change 

potential to emit, use zero in the calculation.

(c) What emissions units and activities are exempt from 

this program?
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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.
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Table 1 to §49.153. Minor NSR thresholds.a

Regulated NSR pollutant 

Minor NSR 

thresholds for 

nonattainment 

areas (tpy)

Minor NSR 

thresholds for 

attainment 

areas (tpy)

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

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

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

Volatile Organic Compounds (VOC). 2b 5

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

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

PM2.5............................. 0.6 3

Lead............................. 0.1 0.1

Fluorides........................ NA 1

Sulfuric acid mist............... NA 2

Hydrogen sulfide (H2S) ........... NA 2

Total reduced sulfur (including 

H2S) ..........................

NA 2

Reduced sulfur compounds 

(including H2S) ...............

NA 2

Municipal waste combustor 

emissions......................

NA 2

Municipal solid waste landfill 

emissions (measured as 

nonmethane organic compounds) .

NA 10

a If part of a tribe's area of Indian country is designated as 

attainment and another part as nonattainment, the applicable 

threshold for a proposed source or modification is determined 

based on the designation where the source would be located. If 

the source straddles the two areas, the more stringent 

thresholds apply. b In extreme ozone nonattainment areas, section 182(e)(2) of the 

Act requires any change at a major source that results in any

increase in emissions to be subject to major NSR permitting. 

In other words, any changes to existing major sources in 

extreme ozone nonattainment areas are subject to a “0” tpy 

threshold, but that threshold does not apply to minor sources.
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§49.154 Permit application requirements.

This section applies to you if you are subject to this 

program under §49.153(a)(1) for the construction 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 section govern the content 

of your application.

(1) General provisions for permit applications. The 

following provisions apply to permit applications under this 

program:

(i) The reviewing authority may develop permit application 

forms for your use.

(ii) The permit application need not contain information 

on the exempt emissions units and activities listed in 

§49.153(c).

(iii) The permit application for a modification need only 

include information on the affected emissions units as defined 

in §49.152(d).
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(2) Required permit application content. Except as 

specified in paragraphs (a)(1)(ii) and (iii) of this section, 

you must include the information listed in paragraphs (a)(2)(i) 

through (ix) of this section in your application for a permit 

under this program. The reviewing authority may require 

additional information as needed to process the permit 

application.

(i) Identifying information, including your name and 

address (and plant name and address if different) and the name 

and telephone number of the plant manager/contact.

(ii) A description of your source's processes and 

products.

(iii) A list of all affected emissions units (with the 

exception of the exempt emissions units and activities listed in 

§49.153(c)).

(iv) For each new emissions unit that is listed, the 

potential to emit of each regulated NSR pollutant in tpy 

(including fugitive emissions, to the extent that they are 

quantifiable, if the emissions unit or source is in one of the 

source categories listed in part 51, Appendix S, paragraph 

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

applicable), with supporting documentation. In your calculation 

of the potential to emit for an emissions unit, you must account 
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for any proposed emission limitations. 

(v) For each modified emissions unit and replacement unit 

that is listed, the allowable emissions of each regulated NSR 

pollutant in tpy both before and after the modification 

(including fugitive emissions, to the extent that they are 

quantifiable, if the emissions unit or source belongs to one of 

the source categories listed in part 51, Appendix S, paragraph

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

applicable), with supporting documentation. For emissions units 

that do not have an allowable emissions limit prior to the 

modification, report the potential to emit. In your calculation 

of annual allowable emissions for an emissions unit after the 

modification, you must account for any proposed emission 

limitations.

(vi) The following information to the extent it is needed 

to determine or regulate emissions: fuels, fuel use, raw 

materials, production rates, and operating schedules.

(vii) Identification and description of any existing air 

pollution control equipment and compliance monitoring devices or 

activities.

(viii) Any existing limitations on source operation 

affecting emissions or any work practice standards, where 

applicable, for all NSR regulated pollutants at the source.
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(ix) For each emission point associated with an affected 

emissions unit, provide stack or vent dimensions and flow 

information.

(3) Optional permit application content. At your option, 

you may propose emission limitations for each affected emissions 

unit, which may include pollution prevention techniques, air 

pollution control devices, design standards, equipment 

standards, work practices, operational standards, or a 

combination thereof. You may include an explanation of why you 

believe the proposed emission limitations to be appropriate.

(b) How is my permit application determined to be 

complete? Paragraphs (b)(1) through (3) of this section govern 

the completeness review of your permit application.

(1) An application for a permit under this program will be 

reviewed by the reviewing authority within 45 days of its 

receipt (60 days for minor modifications at major sources) to 

determine whether the application contains all the information 

necessary for processing the application.

(2) If the reviewing authority determines that the 

application is not complete, it will request additional 

information from you as necessary to process the application. 

If the reviewing authority determines that the application is 

complete, it will notify you in writing. The reviewing 
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authority’s completeness determination or request for additional 

information should be postmarked within 45 days of receipt of 

the permit application by the reviewing authority (60 days for 

minor modifications at major sources). If you do not receive a 

request for additional information or a notice of complete 

application postmarked within 45 days of receipt of the permit 

application by the reviewing authority (60 days for minor 

modifications at major sources), your application will be deemed 

complete.

(3) If, while processing an application that has been 

determined to be complete, the reviewing authority determines 

that additional information is necessary to evaluate or take 

final action on the application, it may request additional 

information from you and require your responses within a 

reasonable time period.

(4) Any permit application will be granted or denied no 

later than 135 days (1 year for minor modifications at major 

sources) after the date the application is deemed complete and 

all additional information necessary to make an informed 

decision has been provided.

(c) How will the reviewing authority determine the 

emission limitations that will be required in my permit? After 

determining that your application is complete, the reviewing 
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authority will conduct a case-by-case control technology review 

to determine the appropriate level of control, if any, necessary 

to assure that NAAQS are achieved, as well as the corresponding 

emission limitations for the affected emissions units at your 

source. 

(1) In carrying out this case-by-case review, the 

reviewing authority will consider the following factors:

(i) Local air quality conditions.

(ii) Typical control technology or other emissions 

reduction measures used by similar sources in surrounding areas.

(iii) Anticipated economic growth in the area.

(iv) Cost-effective emission reduction alternatives.

(2) The reviewing authority must require a numerical limit 

on the quantity, rate, or concentration of emissions for each 

regulated NSR pollutant emitted by each affected emissions unit 

at your source for which such a limit is technically and 

economically feasible.

(3) The emission limitations required by the reviewing 

authority may consist of numerical limits on the quantity, rate, 

or concentration of emissions; pollution prevention techniques; 

design standards; equipment standards; work practices; 

operational standards; requirements relating to the operation or 

maintenance of the source; or any combination thereof.
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(4) The emission limitations required by the reviewing 

authority must assure that each affected emissions unit will 

comply with all requirements of parts 60, 61, and 63 of this 

chapter as well as any FIPs or TIPs that apply to the unit.

(5) The emission limitations required by the reviewing 

authority must not be affected in a manner by so much of a 

stack’s height as exceeds good engineering practice or by any 

other dispersion technique, except as provided in §51.118(b) of 

this chapter. If the reviewing authority proposes to issue a 

permit to a source based on a good engineering practice stack 

height that exceeds the height allowed by §51.100(ii)(1) or (2) 

of this chapter, it must notify the public of the availability 

of the demonstration study and must provide opportunity for a 

public hearing according to the requirements of §49.157 for the 

draft permit.

(d) When may the reviewing authority require an air 

quality impacts analysis (AQIA)? Paragraphs (d)(1) through (3) 

of this section govern AQIA requirements under this program.

(1) If the reviewing authority has reason to be concerned 

that the construction of your minor source or modification would 

cause or contribute to a NAAQS or PSD increment violation, it 

may require you to conduct and submit an AQIA.

(2) If required, you must conduct the AQIA using the 
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dispersion models and procedures of part 51, Appendix W of this 

chapter.

(3) If the AQIA reveals that construction of your source 

or modification would cause or contribute to a NAAQS or PSD 

increment violation, the reviewing authority must require you to 

reduce or mitigate such impacts before it can issue you a 

permit.

§49.155 Permit requirements.

This section applies to your permit if you are subject to 

this program under §49.153(a)(1) for construction of a new minor 

source or a modification at an existing source, unless you 

applied for 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 elements:

(i) The effective date of the permit and the date by which 

you must commence construction in order for your permit to 
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remain valid (i.e., 18 months after the permit effective date).

(ii) The emissions units subject to the permit and their 

associated emission limitations. 

(iii) Monitoring, recordkeeping, reporting, and testing 

requirements to assure compliance with the emission limitations.

(2) Emission limitations. The permit must include the 

emission limitations determined by the reviewing authority under 

§49.154(c) for each affected emissions unit. In addition, the 

permit must include an annual allowable emissions limit for each 

affected emissions unit and for each regulated NSR pollutant 

emitted by the unit if the unit is issued an enforceable 

emission limitation lower than the potential to emit of that 

unit.

(3) Monitoring requirements. The permit must include 

monitoring requirements sufficient to assure compliance with the 

emission limitations and annual allowable emissions limits that 

apply to the affected emissions units at your source. The 

reviewing authority may require, as appropriate, any of the 

requirements in paragraphs (a)(3)(i) and (ii) of this section. 

(i) Any emissions monitoring, including analysis 

procedures, test methods, periodic testing, instrumental 

monitoring, and non-instrumental monitoring. Such monitoring 

requirements shall assure use of test methods, units, averaging 
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periods, and other statistical conventions consistent with the 

required emission limitations.

(ii) As necessary, requirements concerning the use, 

maintenance, and installation of monitoring equipment or 

methods.

(4) Recordkeeping requirements. The permit must include 

recordkeeping requirements sufficient to assure compliance with 

the emission limitations and monitoring requirements, and it 

must require the elements in paragraphs (a)(4)(i) and (ii) of 

this section.

(i) Records of required monitoring information that 

include the information in paragraphs (a)(4)(i)(A) through (F) 

of this section, as appropriate.

(A) The location, date, and time of sampling or 

measurements.

(B) The date(s) analyses were performed.

(C) The company or entity that performed the analyses.

(D) The analytical techniques or methods used.

(E) The results of such analyses.

(F) The operating conditions existing at the time of 

sampling or measurement.

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

monitoring data and support information for the monitoring 
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sample, measurement, report, or application. Support 

information may include all calibration and maintenance records, 

all original strip-chart recordings or digital records for 

continuous monitoring instrumentation, and copies of all reports 

required by the permit.

(5) Reporting requirements. The permit must include the 

reporting requirements in paragraphs (a)(5)(i) and (ii) of this 

section.

(i) Annual submittal of reports of monitoring required 

under paragraph (a)(3) of this section, including the type and 

frequency of monitoring, and a summary of results obtained by 

monitoring.

(ii) Prompt reporting of deviations from permit 

requirements, including those attributable to upset conditions 

as defined in the permit, the probable cause of such deviations, 

and any corrective actions or preventive measures taken. Within 

the permit, the reviewing authority must define “prompt” in 

relation to the degree and type of deviation likely to occur and 

the applicable emission limitations.

(6) Severability clause. The permit must include a 

severability clause to ensure the continued validity of the 

other portions of the permit in the event of a challenge to a 

portion of the permit.
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(7) Additional provisions. The permit must also contain 

provisions stating the requirements in paragraphs (a)(7)(i) 

through (vii) of this section.

(i) You, as the permittee, must comply with all conditions 

of your permit, including emission limitations that apply to the 

affected emissions units at your source. Noncompliance with any 

permit term or condition is a violation of the permit and may 

constitute a violation of the Act and is grounds for enforcement 

action and for a permit termination or revocation.

(ii) Your permitted source must not cause or contribute to 

a NAAQS violation, or in an attainment area, must not cause or 

contribute to a PSD increment violation.

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

enforcement action that it would have been necessary to halt or 

reduce the permitted activity in order to maintain compliance 

with the conditions of this permit.

(iv) The permit may be revised, reopened, revoked and 

reissued, or terminated for cause. The filing of a request by 

you, as the permittee, for a permit revision, revocation and reissuance, or termination, or of a notification of planned 

changes or anticipated noncompliance does not stay any permit 

condition.

(v) The permit does not convey any property rights of any 
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sort or any exclusive privilege.

(vi) You, as the permittee, shall furnish to the reviewing 

authority, within a reasonable time, any information that the 

reviewing authority may request in writing to determine whether 

cause exists for revising, revoking and reissuing, or 

terminating the permit or to determine compliance with the 

permit. For any such information claimed to be confidential, 

you must also submit a claim of confidentiality in accordance 

with part 2, subpart B of this chapter.

(vii) Upon presentation of proper credentials, you, as the 

permittee, must allow a representative of the reviewing 

authority (who must comply with the safety requirements of 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 

records that are required to be kept under the conditions of the 

permit;

(C) Inspect, during normal business hours or while the 

source is in operation, any facilities, equipment (including 

monitoring and air pollution control equipment), practices, or 

operations regulated or required under the permit;
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(D) Sample or monitor, at reasonable times, substances or 

parameters for the purpose of assuring compliance with the 

permit or other applicable requirements; and

(E) Record any inspection by use of written, electronic, 

magnetic, and photographic media.

(b) Can my permit become invalid? Your permit becomes 

invalid if you do not commence construction within 18 months 

after the effective date of your permit, if you discontinue 

construction for a period of 18 months or more, or if you do not 

complete construction within a reasonable time. The reviewing 

authority may extend the 18-month period upon a satisfactory 

showing that an extension is justified. This provision does not 

apply to the time period between construction of the approved 

phases of a phased construction project; you must commence 

construction of each such phase within 18 months of the 

projected and approved commencement date.

§49.156 General permits.

This section applies to general permits for the purposes of 

complying with the preconstruction permitting requirements for 

sources of regulated NSR pollutants under this program.

(a) What is a general permit? A general permit is a 

preconstruction permit issued by a reviewing authority that may 

be applied to a number of similar emissions units or sources. 
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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 case-by-case permit development for such facilities. A 

general permit may be written to address a single emissions 

unit, a group of the same type of emissions units, or an entire 

minor source.

(b) How will the reviewing authority issue general 

permits? The reviewing authority will issue general permits as 

follows:

(1) A general permit may be issued for a category of 

emissions units or sources that are similar in nature, have 

substantially similar emissions, and would be subject to the 

same or substantially similar requirements governing operations, 

emissions, monitoring, reporting, and recordkeeping. “Similar 

in nature” refers to size, processes, and operating conditions.

(2) A general permit must be issued according to the 

requirements for public participation in §49.157 and the 

requirements for final permit issuance and administrative and 

judicial review in §49.159.

(3) Issuance of a general permit is considered final 

agency action with respect to all aspects of the general permit 

except its applicability to an individual source. The sole 
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issue that may be appealed after an individual source is 

approved to construct under a general permit (see paragraph (e) 

of this section) is the applicability of the general permit to 

that particular source.

(c) For what categories will general permits be issued?

(1) The reviewing authority will determine which 

categories of individual emissions units, groups of similar 

emissions units, or sources are appropriate for general permits 

in its area.

(2) General permits will be issued at the discretion of 

the reviewing authority. 

(d) What should the general permit contain? The general 

permit must contain the permit elements listed in §49.155(a). 

In addition, the general permit must contain the information 

listed in paragraphs (d)(1) and (2) of this section. The 

reviewing authority may specify additional general permit terms 

and conditions.

(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:
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(i) The name and mailing address of the reviewing 

authority to whom you must submit your application.

(ii) The procedure to obtain any standard application 

forms that the reviewing authority may have developed.

(iii) The information that you must provide to the 

reviewing authority in your application to demonstrate that you 

are eligible for coverage under the general permit.

(iv) Other application requirements deemed necessary by 

the reviewing authority.

(e) What are the procedures for obtaining coverage for a 

source under a general permit?

(1) If your source qualifies for a general permit, you may 

apply to the reviewing authority for coverage under the general 

permit. 

(2) An application for a permit under this program 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 not 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 reviewing 
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authority’s completeness determination or request for additional 

information should be postmarked within 45 days of receipt of 

the permit application by the reviewing authority. 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 granted or denied no 

later than 90 days after the date the application is deemed 

complete and all additional 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 whether 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 subject 
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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 invalid if you do not commence 

construction within 18 months after the effective date of your 

permit, if you discontinue construction for a period of 18 

months or more, or if you do not complete construction within a 

reasonable time. The reviewing authority may extend the 18-

month period upon a satisfactory showing that an extension is 

justified. This provision does not apply to the time period 

between construction of the approved phases of a phased 

construction project; you must commence construction of each

such phase within 18 months of the projected and approved 

commencement date. 

(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 participation requirements.

This section applies to the issuance of minor source 

permits and synthetic minor source permits, the initial issuance 

of general permits, and coverage of a particular source under a 

general permit.
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(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 (5) of this section. The reviewing 

authority must make such information available for public 

inspection at the appropriate EPA Regional Office and in at 

least one location in the area affected by the source, such as 

the tribal environmental office or a local library.

(1) All information submitted as part of your application 

for a permit.

(2) Any additional information requested by the reviewing 

authority.

(3) The reviewing authority's analysis of the application 

and any additional information you submitted, including (for 

preconstruction permits and the initial issuance of general 

permits) the control technology review.

(4) For minor source permits and the initial issuance of 

general permits, the reviewing authority's analysis of the 

effect of the construction of the minor source or modification 

on ambient air quality.

(5) For coverage of a particular source under a general 

permit, the reviewing authority’s analysis of whether your
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particular emissions unit or source is within the category of 

emissions units or sources to which the general permit applies, 

including whether your emissions unit or source meets any 

criteria to be eligible for coverage under the general permit.

(6) A copy of the draft permit or the decision to deny the 

permit with the justification for denial.

(b) How will the public be notified and participate?

(1) Before issuing a permit under this program, the 

reviewing authority must prepare a draft permit and must provide 

adequate public notice to ensure that the affected community and 

the general public have reasonable access to the application and 

draft permit information, as set out in paragraphs (b)(1)(i) and 

(ii) of this section. The public notice must provide an 

opportunity for public comment and notice of a public hearing, 

if any, on the draft permit.

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

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) Depending on such factors as the nature and size of 

your source, local air quality considerations, and the 

characteristics of the population in the affected area (e.g., 
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subsistence hunting and fishing or other seasonal cultural 

practices), the reviewing authority must use appropriate means 

of notification, such as those listed in paragraphs 

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

(A) The reviewing authority may mail or e-mail a copy of 

the notice to persons on a mailing list developed by the 

reviewing authority consisting of those persons who have 

requested to be placed on such a mailing list.

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

website.

(C) The reviewing authority may publish the notice in a 

newspaper of general circulation in the area affected by the 

source. Where possible, the notice may also be published in a 

tribal newspaper or newsletter.

(D) The reviewing authority may provide copies of the 

notice for posting at one or more locations in the area affected 

by the source, such as post offices, trading posts, libraries,

tribal environmental offices, community centers, or other 

gathering places in the community.

(E) The reviewing authority may employ other means of 

notification as appropriate.

(2) The notice required pursuant to paragraph (b)(1) of 

this section must include the following information at a 
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minimum:

(i) Identifying information, including your name and 

address (and plant name and address if different) and the name 

and telephone number of the plant manager/contact.

(ii) The name and address of the reviewing authority 

processing the permit action;

(iii) For minor source permits, the initial issuance of 

general permits, and coverage of a particular source under a 

general permit, the regulated NSR pollutants to be emitted, the 

affected emissions units, and the emission limitations for each 

affected emissions unit;

(iv) For minor source permits, the initial issuance of 

general permits, and coverage of a particular source under a 

general permit, the emissions change involved in the permit 

action;

(v) For synthetic minor source permits, a description of 

the proposed limitation and its effect on the potential to emit 

of the source;

(vi) Instructions for requesting a public hearing;

(vii) The name, address, and telephone number of a contact 

person in the reviewing authority's office from whom additional 

information may be obtained;

(viii) Locations and times of availability of the 
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information (listed in paragraph (a) of this section) for public 

inspection; and

(ix) A statement that any person may submit written 

comments, a written request for a public hearing, or both, on 

the draft permit action. The reviewing authority must provide a 

period of at least 30 days from the date of the public notice 

for comments, and for requests for a public hearing.

(c) How will the public comment, and will there be a 

public hearing?

(1) Any person may submit written comments on the draft 

permit and may request a public hearing. These comments must 

raise any reasonably ascertainable issue with supporting 

arguments by the close of the public comment period (including 

any public hearing). The reviewing authority must consider all 

comments in making the final decision. The reviewing authority 

must keep a record of the commenters and of the issues raised 

during the public participation process, and such records must 

be available to the public.

(2) The reviewing authority must extend the public comment 

period under paragraph (b) of this section to the close of any 

public hearing under this section. The hearing officer may also 

extend the comment period by so stating at the hearing.

(3) A request for a public hearing must be in writing and 
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must state the nature of the issues proposed to be raised at the 

hearing.

(4) The reviewing authority must hold a hearing whenever 

there is, on the basis of requests, a significant degree of 

public interest in a draft permit. The reviewing authority may 

also hold a public hearing at its discretion, whenever, for 

instance, such a hearing might clarify one or more issues 

involved in the permit decision. The reviewing authority must 

provide notice of any public hearing at least 30 days prior to 

the date of the hearing. Public notice of the hearing may be 

concurrent with that of the draft permit, and the two notices 

may be combined. Reasonable limits may be set upon the time 

allowed for oral statements at the hearing.

(5) The reviewing authority must make a tape recording or 

written transcript of any hearing available to the public. 

§49.158 Synthetic minor source permits.

You may obtain a synthetic minor source permit under this 

program to establish a synthetic minor source for purposes of 

the applicable PSD, nonattainment major NSR, or Clean Air Act

title V program and/or a synthetic minor HAP source for purposes

of part 63 of the Act or the applicable Clean Air Act title V 

program. Any source that becomes a synthetic minor source for 

NSR and title V purposes but has other applicable requirements,
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or becomes a synthetic minor for NSR but is major for title V 

purposes, remains subject to the applicable title V program.

Note that if you propose to construct or modify a synthetic 

minor source, you are also subject to the preconstruction 

permitting requirements in §§49.154 and 49.155, except for the

permit application content and permit application completeness 

provisions included in §49.154(a)(2) and §49.154(b).

(a) What information must my synthetic minor source permit

application contain?

(1) Your application must include the following 

information:

(i) Identifying information, including your name and 

address (and plant name and address if different) and the name 

and telephone number of the plant manager/contact. 

(ii) For each regulated NSR pollutant and/or HAP and for 

all emissions units to be covered by an emissions limitation, 

the following information:

(A) The proposed emission limitation and a description of 

its effect on actual emissions or the potential to emit. 

Proposed emission limitations must have a reasonably short 

averaging period, taking into consideration the operation of the 

source and the methods to be used for demonstrating compliance.

(B) Proposed testing, monitoring, recordkeeping, and 
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reporting requirements to be used to demonstrate and assure 

compliance with the proposed limitation.

(C) A description of the production processes.

(D) Identification of the emissions units.

(E) Type and quantity of fuels and/or raw materials used.

(F) Description and estimated efficiency of air pollution 

control equipment under present or anticipated operating 

conditions.

(G) Estimates of the current actual emissions and current 

potential to emit, including all calculations for the estimates.

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

to emit that would result from compliance with the proposed 

limitation, including all calculations for the estimates.

(iii) Any other information specifically requested by the 

reviewing authority.

(2) Estimates of actual emissions must be based upon 

actual test data, or in the absence of such data, upon 

procedures acceptable to the reviewing authority. Any emission 

estimates submitted to the reviewing authority must be 

verifiable using currently accepted engineering criteria. The 

following procedures are generally acceptable for estimating 

emissions from air pollution sources:

(i) Source-specific emission tests;
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(ii) Mass balance calculations;

(iii) Published, verifiable emission factors that are 

applicable to the source;

(iv) Other engineering calculations; or

(v) Other procedures to estimate emissions specifically 

approved by the reviewing authority.

(b) What are the procedures for obtaining a synthetic 

minor source permit?

(1) If you wish to obtain a synthetic minor source permit

under this program, you must submit a permit application to the 

reviewing authority. The application must contain the 

information specified in paragraph (a) of this section. 

(2) Within 60 days after receipt of an application, the 

reviewing authority will determine if it contains the 

information specified in paragraph (a) of this section.

(3) If the reviewing authority determines that the 

application is not complete, it will request additional 

information from you as necessary to process the application. 

If the reviewing authority determines that the application is 

complete, it will notify you in writing. The reviewing 

authority’s completeness determination or request for additional 

information should be postmarked within 60 days of receipt of 

the permit application by the reviewing authority. If you do 
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not receive a request for additional information or a notice of 

complete application postmarked within 60 days of receipt of the 

permit application by the reviewing authority, your application 

will be deemed complete. 

(4) The reviewing authority will prepare a draft synthetic 

minor source permit that describes the proposed limitation and 

its effect on the potential to emit of the source.

(5) The reviewing authority must provide an opportunity 

for public participation and public comment on the draft 

synthetic minor source permit as set out in §49.157.

(6) After the close of the public comment period, the 

reviewing authority will review all comments received and 

prepare a final synthetic minor source permit.

(7) The final synthetic minor source permit will be 

granted or denied no later than 1 year after the date the 

application is deemed complete and all additional information 

necessary to make an informed decision has been provided. 

(8) The final synthetic minor source permit will be issued

and will be subject to administrative and judicial review as set 

out in §49.159.

(c) What are my responsibilities under this program for my 

source that already has synthetic minor source or synthetic 

minor HAP source status prior to the effective date of this rule
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(that is, prior to [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER])? 

(1) If your existing synthetic minor source and/or

synthetic minor HAP source was established pursuant to the FIPs

applicable to the Indian reservations in Idaho, Oregon, and 

Washington; or was established under an EPA-approved rule or 

permit program limiting potential to emit, you do not need to 

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, the reviewing authority has the discretion to do 

any of the following:

(i) Allow you to maintain the synthetic minor status for 

your source through your permit under part 71 of this chapter, 

including subsequent renewals of that permit.

(ii) Require you to submit an application for a synthetic 

minor source permit under this program by [INSERT DATE 1 YEAR 

AND 60 DAYS FROM PUBLICATION IN THE FEDERAL REGISTER], subject 

to the provisions in paragraphs (a) and (c)(4)(i) through (iii) 

of this section. The reviewing authority also has the 

discretion to require any additional requirements, including 

control technology requirements, based on the specific 
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circumstances of the source.

(iii) Require you to submit an application for a synthetic 

minor source permit under this program at the same time that you 

apply to renew your permit under part 71 of this chapter,

subject to the provisions in paragraphs (a) and (c)(4)(i)

through (iii) of this section. The reviewing authority also has 

the discretion to require any additional requirements, including 

control technology requirements, based on the specific 

circumstances of the source.

(3) If your existing synthetic minor source and/or 

synthetic minor HAP source was established through a mechanism 

other than those described in paragraphs (c)(1) and (c)(2) of 

this section, including state-issued permits or 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 for a synthetic minor 

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

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

to the provisions in paragraphs (a) and (c)(4)(i) through (iii) 

of this section 

(4) If you are required to obtain a synthetic minor source 

permit under this program for your existing synthetic minor 

source and/or synthetic minor HAP source, the following 
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provisions apply:

(i) After submitting your synthetic minor source permit

application, you must respond in a timely manner to any requests 

from the reviewing authority for additional information.

(ii) Provided that you submit your application as required

in paragraph (c)(2)(ii), (c)(2)(iii), or (c)(3) (as applicable)

and any requested additional information as required in 

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

to be considered a synthetic minor source or synthetic minor HAP 

source (as applicable) until your synthetic minor source permit

under this program has been issued. Issuance of your synthetic 

minor source permit under this program will be in accordance

with the requirements in §§49.154 and 49.155 and all other 

provisions under this section.

(iii) Should you fail to submit your application as 

required in paragraph (c)(2)(ii), (c)(2)(iii), or (c)(3) (as 

applicable) or any requested additional information as required

in paragraph (c)(4)(i) of this section, your source will no 

longer be considered a synthetic minor source or synthetic minor 

HAP source (as applicable), and will become subject to all 

requirements for major sources. In the case of sources subject 

to section (c)(2)(iii) of this section, the renewed part 71 

permit will not contain enforceable emissions limitations and 
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instead will include applicable major source requirements.

§49.159 Final permit issuance and administrative and judicial 

review.

(a) How will final action occur, and when will my permit 

become effective? After decision on a permit, the reviewing 

authority must notify you of the decision, in writing, and if 

the permit is denied, of the reasons for such denial. The 

reviewing authority must provide adequate public notice of the 

final permit decision to ensure that the affected community, 

general public, and any individuals who commented on the draft 

permit have reasonable access to the decision and supporting 

materials according to 49.157(b), for synthetic minor sources 

and minor modifications at major sources, and according to one 

or more of the provisions in §49.157(b)(1)(ii) 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 effective 

immediately upon issuance if no comments requested a change in 
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the draft permit or a denial of the permit.

(b) For how long will the reviewing authority retain my 

permit-related records? The records, including any required 

applications for each draft and final permit or application for 

permit revision, must be kept by the reviewing authority for not 

less than 5 years.

(c) What is the administrative record for each final 

permit? 

(1) The reviewing authority must base final permit 

decisions on an administrative record consisting of:

(i) The application and any supporting data furnished by 

you, the permit applicant; 

(ii) The draft permit or notice of intent to deny the 

application; 

(iii) Other documents in the supporting files for the 

draft permit that were relied upon in the decisionmaking;

(iv) All comments received during the public comment 

period, including any extension or reopening; 

(v) The tape or transcript of any hearing(s) held; 

(vi) Any written material submitted at such a hearing;

(vii) Any new materials placed in the record as a result 

of the reviewing authority's evaluation of public comments; 

(viii) The final permit; and
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(ix) Other documents in the supporting files for the final 

permit that were relied upon in the decisionmaking.

(2) The additional documents required under paragraph 

(c)(1) of this section should be added to the record as soon as 

possible after their receipt or preparation by the reviewing 

authority. The record must be complete on the date the final 

permit is issued.

(3) Material readily available or published materials that 

are generally available and that are included in the 

administrative record under the standards of paragraph (c)(1) of 

this section need not be physically included in the same file as 

the rest of the record as long as it is specifically referred to 

in that file.

(d) Can permit decisions be appealed? Permit decisions 

may be appealed according to the following provisions:

(1) The Administrator delegates authority to the 

Environmental Appeals Board (the Board) to issue final decisions 

in permit appeals filed under this program, 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 Board, will be forwarded to the Board for 

consideration. This delegation does not preclude the Board from 
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referring an appeal or a motion under this program to the 

Administrator when the Board, in its discretion, deems it 

appropriate to do so. When an appeal or motion is referred to 

the Administrator by the Board, all parties shall be so notified 

and the provisions of this program referring to the Board shall 

be interpreted as referring to the Administrator.

(2) Within 30 days after a final permit decision has been 

issued, any person who filed comments on the draft permit or 

participated in the public hearing may petition the Board to 

review any condition of the permit decision. Any person who 

failed to file comments 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 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 
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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 

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 §49.157(b). 

Public notice must set forth a briefing schedule for the appeal 

and must state that any interested person may file an amicus 

brief. If the Board denies review, you, the permit applicant 

and the person(s) requesting review must be notified through 

means that are adequate to assure reasonable access to the 
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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 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 

review has been denied; 

(ii) When the Board issues a decision on the merits of the 

appeal and the decision does not include a remand of the 

proceedings; or 

(iii) Upon the completion of remand proceedings if the 

proceedings are remanded, unless the Board's remand order 

specifically provides that appeal of the remand decision will be 

required to exhaust administrative remedies. 

(8) Motions to reconsider a final order must be filed 

within 10 days after service of the final order. Every such 

motion must set forth the matters claimed to have been 

erroneously decided and the nature of the alleged errors. 

Motions for reconsideration under this provision must be 

directed to, and decided by, the Board. Motions for 
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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 date 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 

weekend or legal holiday, the time period must be extended to 

the next working day.

(iv) Whenever a party or interested person has the right 

or is required to act within a prescribed period after the 

service of notice or other paper upon him or her by mail, 3 days 

must be added to the prescribed time.

(e) Can my permit be reopened? The reviewing authority 

may reopen a permit for cause on its own initiative, such as if 
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it contains a material mistake or fails to assure compliance 

with applicable requirements. However, except for those permit 

reopenings that do not increase the emissions limitations in the 

permit, such as permit reopenings that correct typographical, 

calculation and other errors, all other permit reopenings shall 

be carried out after the opportunity of public notice and 

comment and in accordance with one or more of the public 

participation requirements under §49.157(b)(1)(ii). 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 ownership or operational 

control of a source where the reviewing authority determines 

that no other change in the permit is necessary, provided that a 

written agreement containing a specific date for transfer of 

permit responsibility, coverage, and liability between the 
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current and new permittee has been submitted to the reviewing 

authority. 

(v) Establishes an increase in an emissions unit's annual 

allowable emissions limit for a regulated NSR pollutant, when 

the action that necessitates such increase is not otherwise 

subject to review under major NSR or under this program.

(vi) Incorporates any other type of change that the 

reviewing authority has determined to be similar to those in 

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

(2) An administrative permit revision is not subject to 

the permit application, issuance, public participation, or 

administrative and judicial review requirements of this program.

§49.160 Registration program for stationary sources in Indian 

country.

(a) Does this section apply to my source? This section 

applies to you if you are the owner/operator of a 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 
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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 paragraphs applies to your source:

(i) Your source is subject to the registration 

requirements under §49.138 - “Rule for the registration of air 

pollution sources and the reporting of emissions.”

(ii) Your source has a part 71 permit.

(iii) Your source is a synthetic minor source or a 

synthetic minor HAP source.

(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 registrations are as follows:

(1) Due date. The due date of your source registration 

varies according to the following paragraphs:

(i)If construction commenced 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 by 
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[INSERT DATE 20 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER] or within 90 days after 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, you 

must also report your source’s actual emissions (if available) 

as part of your permit application. 

(2) Content. You must submit all registration information 

on forms provided by the reviewing authority. Each registration 

must include the following information, as applicable:

(i) Identifying information, including your name and 

address (and plant name and address if different) and the name 

and telephone number of the plant manager/contact.

(ii) A description of your source's processes and 

products.

(iii) A list of all emissions units (with the exception of 

the exempt emissions units and activities listed in §49.153(c)).

(iv) For each emissions unit that is listed, both the 

allowable and estimated actual annual emissions of each 
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regulated NSR pollutant in tpy (including fugitive emissions, to 

the extent that they are quantifiable, if the emissions unit or 

source is in one of the source categories listed in §51, 

Appendix S, paragraph II.A.4(iii) or §52.21(b)(1)(iii) of this 

chapter), with supporting documentation. 

(v) The following information: fuels, fuel use, raw 

materials, production rates, and operating schedules.

(vi) Identification and description of any existing air 

pollution control equipment and compliance monitoring devices or 

activities.

(vii) Any existing limitations on source operation 

affecting emissions or any work practice standards, where 

applicable, for all NSR regulated pollutants at the source.

(viii) Any other information specifically requested by the 

reviewing authority.

(3) Procedure for estimating emissions. Your registration 

should include potential to emit or estimates of the allowable 

and actual emissions, in tpy, of each regulated NSR pollutant 

for each emissions unit at the source.

(i) Estimates of allowable emissions must be consistent 

with the definition of that term in §49.152(d). Allowable 

emissions must be calculated based on 8,760 operating hours per 

year (i.e., operating 24 hours per day, 365 days per year) 
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unless the reviewing authority approves a different number of 

annual operating hours as the basis for the calculation.

(ii) Estimates of actual emissions must take into account 

equipment, operating conditions, and air pollution control 

measures. For a source that operated during the entire calendar 

year preceding the initial registration submittal, the reported 

actual emissions typically should be the annual emissions for 

the preceding calendar year, calculated using the actual 

operating hours, production rates, in-place control equipment, 

and types of materials processed, stored, or combusted during 

the preceding calendar year. However, if you believe that the 

actual emissions in the preceding calendar year are not 

representative of the emissions that your source will actually 

emit in coming years, you may submit an estimate of projected 

actual emissions along with the actual emissions from the 

preceding calendar year and the rationale for the projected 

actual emissions. For a source that has not operated for an 

entire year, the actual emissions are the estimated annual

emissions for the current calendar year. 

(iii) The allowable and actual emission estimates must be 

based upon actual test data or, in the absence of such data, 

upon procedures acceptable to the reviewing authority. Any 

emission estimates submitted to the reviewing authority must be 
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verifiable using currently accepted engineering criteria. The 

following procedures are generally acceptable for estimating 

emissions from air pollution sources:

(i) Source-specific emission tests;

(ii) Mass balance calculations;

(iii) Published, verifiable emission factors that are 

applicable to the source;

(iv) Other engineering calculations; or

(v) Other procedures to estimate emissions specifically 

approved by the Regional Administrator.

(4) Duty to obtain a permit. Submitting a registration 

does not relieve you of the requirement to obtain any required 

permit, including a preconstruction permit, if your source or 

any physical or operational change at your source would be 

subject to any minor or major NSR rule.

(d) What are the requirements for additional reports? 

After you have registered your source, you must submit the 

following additional reports, when applicable:

(1) Report of relocation. After your source has been 

registered, you must report any relocation of your source to the 

reviewing authority in writing no later than 30 days prior to 

the relocation of the source. However, you need not submit a 

report if you obtained a major or minor NSR permit for the 

Comment [E10]: Suggest adding that a 

GADS-based approach is specifically approved 

for electric utilities perhaps in the preamble.
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relocation. Submitting a report of relocation does not relieve 

you of the requirement to obtain a preconstruction permit if the 

change is subject to any major NSR or minor NSR rule.

(2) Report of change of ownership. After your source has 

been registered, the new owner/operator must report any change 

of ownership of a source to the reviewing authority in writing 

within 90 days after the change in ownership is effective.

(3) Report of closure. Except for regular seasonal 

closures, after your source has been registered, you must submit 

a report of closure to the reviewing authority in writing within 

90 days after the cessation of all operations at your source.

§49.161 Administration and delegation of the minor NSR program 

in Indian country.

(a) Who administers a minor NSR program in Indian country?

(1) If the Administrator has approved a TIP that includes 

a minor NSR program for sources in Indian country that meets the 

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

through 51.164 of this chapter, the tribe is the reviewing 

authority, and it will administer the approved minor NSR program 

under tribal law.

(2) If the Administrator has not approved an 

implementation plan, the Administrator may delegate the 

authority to assist EPA with administration of portions of this 
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federal minor NSR program implemented under federal authority to 

a tribal agency upon request, in accordance with the provisions 

of paragraph (b) of this section. If the tribal agency has been 

granted such delegation, it will have the authority to assist 

EPA according to paragraph (b) of this section, and it will be 

the reviewing authority for purposes of the provisions for which 

it has been granted delegation.

(3) If the Administrator has not approved an 

implementation plan or granted delegation to a tribal agency, 

the Administrator is the reviewing authority and will directly 

administer all aspects of this federal minor NSR program in 

Indian country under federal authority.

(b) Delegation of administration of the federal minor NSR 

program to tribes. This paragraph (b) establishes the process 

by which the Administrator may delegate authority to a tribal 

agency, with or without signature authority, to assist EPA with 

administration of portions of this federal minor NSR program, in 

accordance with the provisions in paragraphs (b)(1) through (8) 

of this section. Any federal requirements under this program 

that are administered by the delegate tribal agency will be 

subject to enforcement by EPA under federal law. This section 

provides for administrative delegation of the federal minor NSR 

program and does not affect the eligibility criteria under §49.6 
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for treatment in the same manner as a state.

(1) Information to be included in the Administrative 

Delegation Request. In order to be delegated authority to 

assist EPA with administration of this FIP permit program for 

sources, the tribal agency must submit a request to the 

Administrator that:

(i) Identifies the specific provisions for which 

delegation is requested; 

(ii) Identifies the Indian Reservation or other areas of 

Indian country for which delegation is requested;

(iii) Includes a statement by the applicant's legal 

counsel (or equivalent official) that includes the following 

information:

(A) A statement that the applicant is a tribe recognized 

by the Secretary of the Interior;

(B) A descriptive statement that is consistent with the 

type of information described in §49.7(a)(2) demonstrating that 

the applicant is currently carrying out substantial governmental 

duties and powers over a defined area; and

(C) A description of the laws of the tribe that provide 

adequate authority to administer the federal rules and 

provisions for which delegation is requested; and

(iv) A demonstration that the tribal agency has the 
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technical capability and adequate resources to administer the 

FIP provisions for which the delegation is requested.

(2) Delegation of Partial Administrative Authority 

Agreement. A Delegation of Partial Administrative Authority 

Agreement (Agreement) will set forth the terms and conditions of 

the delegation, will specify the provisions that the delegate 

tribal agency will be authorized to implement on behalf of EPA, 

and will be entered into by the Administrator and the delegate 

tribal agency. The Agreement will become effective upon the 

date that both the Administrator and the delegate tribal agency 

have signed the Agreement or as otherwise stated in the 

Agreement. Once the delegation becomes effective, the delegate 

tribal agency will be responsible, to the extent specified in 

the Agreement, for assisting EPA with administration of the 

provisions of the federal minor NSR program that are subject to 

the Agreement. 

(3) Publication of notice of the Agreement. The 

Administrator will publish a notice in the Federal Register

informing the public of any Agreement for a particular area of 

Indian country. The Administrator also will publish the notice 

in a newspaper of general circulation in the area affected by 

the delegation. In addition, the Administrator will mail a copy 

of the notice to persons on a mailing list developed by the 
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Administrator consisting of those persons who have requested to 

be placed on such a mailing list.

(4) Revision or revocation of an Agreement. An Agreement 

may be modified, amended, or revoked, in part or in whole, by 

the Administrator after consultation with the delegate tribal 

agency. 

(5) Transmission of information to the Administrator. 

When administration of a portion of the federal minor NSR 

program in Indian country that includes receipt of permit 

application materials and preparation of draft permits has been 

delegated in accordance with the provisions of this section, the 

delegate tribal agency must provide to the Administrator a copy 

of each permit application (including any application for permit 

revision) and each draft permit. You, the permit applicant, may 

be required by the delegate tribal agency to provide a copy of 

the permit application directly to the Administrator. With the 

Administrator's consent, the delegate tribal agency may submit 

to the Administrator a permit application summary form and any 

relevant portion of the permit application, in place of the 

complete permit application. To the extent practicable, the 

preceding information should be provided in electronic format by 

the delegate tribal agency or by you, the permit applicant, as 

applicable, and as requested by the Administrator. The delegate 
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tribal agency must also submit to the Administrator such 

information as the Administrator may reasonably require to 

ascertain whether the delegate tribal agency is implementing and 

administering the delegated program in compliance with the 

requirements of the Act and of this program.

(6) Waiver of information transmission requirements. The 

Administrator may waive the requirements of paragraph (b)(5) of 

this section for any category of sources (including any class, 

type, or size within such category) by transmitting the waiver 

in writing to the delegate tribal agency.

(7) Retention of records. Where a delegate tribal agency 

prepares draft or final permits or receives applications for 

permit revisions on behalf of EPA, the records for each draft 

and final permit or application for permit revision must be kept 

by the delegate tribal agency for a period not less than 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 minor NSR permit be issued after a certain time 

if the delegate tribal agency has failed to take action on the 

application (or includes any other similar provision providing 
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for default issuance of a permit).

(c) Are there any non-delegable elements of the federal 

minor NSR program in Indian country? The following authorities 

cannot be delegated outside of EPA:

(1) The Administrator's authority to object to the 

issuance of a minor NSR permit.

(2) The Administrator's authority to enforce permits 

issued pursuant to this program.

(d) How will EPA transition its authority to an approved 

minor NSR program? 

(1) The Administrator will suspend the issuance of minor 

NSR permits under this program promptly upon publication of 

notice of approval of a tribal implementation plan with a minor 

NSR permit program for that area.

(2) The Administrator may retain jurisdiction over the 

permits for which the administrative or judicial review process 

is not complete and will address this issue in the notice of 

program approval. 

(3) After approval of a program for issuing minor NSR 

permits and the suspension of issuance of minor NSR permits by 

the Administrator, the Administrator will continue to administer 

minor NSR permits until permits are issued under the approved 

tribal implementation plan program.
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§§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) program for nonattainment areas in Indian country? As set 

forth in this Federal Implementation Plan (FIP), the federal 

major NSR program for nonattainment areas in Indian country (or 

“program”) consists of §§49.166 through 49.175. 

(b) What is the purpose of this program? This program has 

the following purposes:

(1) It establishes a preconstruction permitting program 

for new major 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 part 
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51, Appendix S of this chapter (Appendix S). Additionally, it 

sets forth the criteria and procedures in Appendix S that the 

reviewing authority (as defined in §49.167) will use to approve 

permits under this program. Note that for the purposes of this 

program, the term SIP as used in Appendix S means any EPAapproved implementation plan, including a Tribal Implementation 

Plan (TIP). While some of the important provisions of Appendix 

S are paraphrased in various paragraphs of this program to 

highlight them, the provisions of Appendix S govern.

(3) It also sets forth procedures for appealing a permit 

issued under this program as provided in §49.172.

(c) When and where does this program apply?

(1) The provisions of this program apply to new major 

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 date 
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that our approval of that plan becomes effective, provided that 

the plan includes provisions that comply with the requirements 

of part D of title I of the Act and §51.165 of this chapter for 

the construction of new major stationary sources and major 

modifications at existing major stationary sources in 

nonattainment 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 construction. If you commence construction after the 

effective date of this program without applying for and 

receiving a permit pursuant to this program, you will be subject 

to appropriate enforcement action. 

(2) If you do not construct or operate your source or 

modification in accordance with the terms of your major NSR 

permit issued under this program, you will be subject to 

appropriate enforcement action.

(3) Issuance of a permit under this program does not 

relieve you of the responsibility to comply fully with 
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applicable provisions of any EPA-approved implementation plan or 

FIP and any other requirements under applicable law.

(4) Nothing in this program prevents a tribe from 

administering a nonattainment major NSR permit program with 

different requirements in an approved TIP as long as the TIP 

meets the requirements of part D of title I of the Act.

§49.167 Definitions.

For the purposes of this program, the definitions in part 

51, Appendix S, paragraph II.A of this chapter apply, unless 

otherwise stated. The following definitions also apply to this 

program:

Allowable emissions means “allowable emissions” as defined 

in part 51, Appendix S, paragraph II.A.11 of this chapter, 

except that the allowable emissions for any emissions unit are 

calculated considering any emission limitations that are 

enforceable as a practical matter on the emissions unit's 

potential to emit.

Enforceable as a practical matter means that an emission 

limitation or other standard is both legally and 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.”
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(2) Practical enforceability for an emission limitation or 

for other standards (design standards, equipment standards, work 

practices, operational standards, pollution prevention 

techniques) in a permit for a 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, 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 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.
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Environmental Appeals Board means the Board within the EPA 

described in §1.25(e) of this chapter. 

Indian country, as defined in 18 U.S.C. 1151, means the 

following:

(1) All land within the limits of any Indian reservation 

under the jurisdiction of the United States government, 

notwithstanding the issuance of any patent, and including 

rights-of-way running through the reservation;1

(2) All dependent Indian communities within the borders of 

the United States whether within the original or subsequently 

acquired territory thereof, and whether within or without the 

limits of a state; and

(3) All Indian allotments, the Indian titles to which have 

not been extinguished, including rights-of-way running through 

the same.

Indian governing body means the governing body of any 

tribe, band, or group of Indians subject to the jurisdiction of 

the United States and recognized by the United States as 

possessing power of self-government.

 

1 Under this definition, EPA treats as reservations trust 

lands validly set aside for the use of a tribe even if the trust 

lands have not been formally designated as a reservation.
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Reviewing authority means the Administrator or an Indian 

tribe in cases where a tribal agency is assisting EPA with 

administration of the program through a delegation under 

§49.173.

Synthetic minor source means a stationary source that 

otherwise has the potential to emit regulated NSR pollutants in 

amounts that are at or above those for major stationary 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 stationary source that 

otherwise has the potential to emit HAPs in amounts that are at 

or above those for major sources of HAP in §63.2 of this 

chapter, but that has taken a restriction such that its 

potential to emit is less than such amounts for major sources. 

Such restrictions must be enforceable as a practical matter. 

§49.168 Does this program apply to me?.

(a) In a nonattainment area for a pollutant in Indian 

country, the requirements of this program apply to you under 

either of the following circumstances: 

(1) If you propose to construct a new major stationary 

source (as defined in part 51, Appendix S, paragraph II.A.4 of 

Comment [E12]: See comment 8.
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this chapter) of the nonattainment pollutant.

(2) If you propose to construct a major 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 modification 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 synthetic 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 §§49.151 through 49.165 or other EPA-approved 

minor NSR program, as applicable.

§49.169 Permit approval criteria. 

(a) What are the general criteria for permit approval? 

The general review criteria for permits are provided in part 51, 
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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 all applicable emission requirements in 

the EPA-approved implementation plan or FIP, any applicable new 

source performance standard in part 60 of this chapter, and any 

applicable national emission standards for hazardous air 

pollutants in part 61 or part 63 of this chapter, before a 

permit can be issued.

(b) What are the program-specific criteria for permit 

approval? The approval criteria or conditions for obtaining a 

major NSR permit for major stationary sources and major 

modifications locating in nonattainment areas are given in part 

51, Appendix S, paragraph IV.A of this chapter. In summary, 

these are the following:

(1) The lowest achievable emission rate (LAER) requirement 

for any NSR pollutant subject to this program.

(2) Certification that all existing major 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 any 
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source or modification subject to this program.

(4) A demonstration that the emission offsets will provide 

a net air quality benefit in the affected area. 

(5) An analysis of alternative sites, sizes, production 

processes, and environmental control techniques for such proposed 

source that demonstrates that the benefits of the proposed source 

significantly outweigh the environmental and social costs imposed 

as a result of its location, construction, or modification.

§49.170 Emission offset requirement exemption.

An Indian governing body may seek an exemption from the 

emission offset requirement (see §49.169(b)(3)) for major 

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 for 
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an EDZ, and the Administrator has approved a request from a 

tribe and declared the area an EDZ; and 

(b) The state/tribe demonstrates that the new permitted 

emissions are consistent with the achievement of reasonable 

further progress pursuant to section 172(c)(4) of the Act, and 

will not interfere with attainment of the applicable NAAQS by 

the applicable attainment date.

§49.171 Public participation requirements.

(a) What permit information will be publicly available? 

With the exception of any confidential information as defined in 

part 2, subpart B of this chapter, the reviewing authority must 

make available for public inspection the documents listed in 

paragraphs (a)(1) through (4) of this section. The reviewing 

authority must make such information available for public 

inspection at the appropriate EPA Regional Office and in at 

least one location in the area affected by the stationary 

source, such as the tribal environmental office or a local 

library.

(1) All information submitted as part of your application 

for a permit.

(2) Any additional information requested by the reviewing 

authority.

(3) The reviewing authority's analysis of the application 
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and any additional information submitted by you, including the 

LAER analysis and, where applicable, the analysis of your 

emissions reductions (offsets), your demonstration of a net air 

quality benefit in the affected area and your analysis of 

alternative sites, sizes, production processes, and 

environmental control techniques.

(4) A copy of the draft permit or the decision to deny the 

permit with the justification for denial.

(b) How will the public be notified and participate?

(1) Before issuing a permit under this program, the 

reviewing authority must prepare a draft permit and must provide 

adequate public notice to ensure that the affected community and 

the general public have reasonable access to the application and

draft permit information, as set out in paragraphs (b)(1)(i) and 

(ii) of this section. The public notice must provide an 

opportunity for public comment and notice of a public hearing, 

if any, on the draft permit.

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

to you, the appropriate Indian governing body, and the tribal, 

state, and local air pollution authorities having jurisdiction 

in areas outside of the area of Indian country potentially 

impacted by the air pollution source.

(ii) Depending on such factors as the nature and size of 
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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 

reviewing authority consisting of those persons who have 

requested to be placed on such a mailing list.

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

website.

(C) The reviewing authority may publish the notice in a 

newspaper of general circulation in the area affected by the 

source. Where possible, the notice may also be published in a 

tribal newspaper or newsletter.

(D) The reviewing authority may provide copies of the 

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.
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(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 times of availability of the 

information (listed in paragraph (a) of this section) for public 

inspection; and

(viii) A statement that any person may submit written 

comments, a written request for a public hearing, or both, on 

the draft permit action. The reviewing authority must provide a 

period of at least 30 days from the date of the public notice 
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for comments, and for requests for a public hearing.

(c) How will the public comment, and will there be a 

public hearing?

(1) Any person may submit written comments on the draft 

permit and may request a public hearing. These comments must 

raise any reasonably ascertainable issue with supporting 

arguments by the close of the public comment period (including 

any public hearing). The reviewing authority must consider all 

comments in making the final decision. The reviewing authority 

must keep a record of the commenters and of the issues raised 

during the public participation process, and such records must 

be available to the public.

(2) The reviewing authority must extend the public comment 

period under paragraph (b) of this section to the close of any 

public hearing under this section. The hearing officer may also 

extend the comment period by so stating at the hearing.

(3) A request for a public hearing must be in writing and 

must state the nature of the issues proposed to be raised at the 

hearing.

(4) The reviewing authority must hold a hearing whenever 

there is, on the basis of requests, a significant degree of 

public interest in a draft permit. The reviewing authority may 

also hold a public hearing at its discretion, whenever, for 
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instance, such a hearing might clarify one or more issues 

involved in the permit decision. The reviewing authority must 

provide notice of any public hearing at least 30 days prior to 

the date of the hearing. Public notice of the hearing may be 

concurrent with that of the draft permit, and the two notices 

may be combined. Reasonable limits may be set upon the time 

allowed for oral statements at the hearing.

(5) The reviewing authority must make a tape recording or 

written transcript of any hearing available to the public. 

§49.172 Final permit issuance and administrative and judicial 

review.

(a) How will final action occur, and when will my permit 

become effective? After making a decision on a permit, the 

reviewing authority must notify you of the decision, in writing, 

and if the permit is denied, provide the reasons for such 

denial. If the reviewing authority issues a final permit to 

you, it must make a copy of the permit available at any location 

where the draft permit was made available. In addition, the 

reviewing authority must provide adequate public notice of the 

final permit decision to ensure that the affected community, 

general public, and any individuals who commented on the draft 

permit have reasonable access to the decision and supporting 

materials. A final permit becomes effective 30 days after 
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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 the draft permit or 

a denial of the permit, in which case the reviewing authority 

may make the permit effective immediately upon issuance.

(b) For how long will the reviewing authority retain my 

permit-related records? The records, including any required 

applications for each draft and final permit or application for 

permit revision, must be kept by the reviewing authority for not 

less than 5 years.

(c) What is the administrative record for each final 

permit? 

(1) The reviewing authority must base final permit 

decisions on an administrative record consisting of:

(i) All comments received during any public comment 

period, including any extension or reopening; 

(ii) The tape or transcript of any hearing(s) held; 

(iii) Any written material submitted at such a hearing;
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(iv) Any new materials placed in the record as a result of 

the reviewing authority's evaluation of public comments; 

(v) Other documents in the supporting files for the permit 

that were relied upon in the decision-making; 

(vi) The final permit; 

(vii) The application and any supporting data furnished by

you, the permit applicant; 

(viii) The draft permit or notice of intent to deny the 

application or to terminate the permit; and

(ix) Other documents in the supporting files for the draft 

permit that were relied upon in the decision-making. 

(2) The additional documents required under paragraph 

(c)(1) of this section should be added to the record as soon as 

possible after their receipt or publication by the reviewing 

authority. The record must be complete on the date the final 

permit is issued.

(3) Material readily available or published materials that 

are generally available and that are included in the 

administrative record under the standards of paragraph (c)(1) of 

this section need not be physically included in the same file as 

the rest of the record as long as it is specifically referred to 

in that file.

(d) Can permit decisions be appealed? Permit decisions 
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may be appealed according to the following provisions:

(1) The Administrator delegates authority to the 

Environmental Appeals Board (the Board) to issue final decisions 

in permit appeals filed under this program, 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 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 discretion, deems it 

appropriate to do so. When an appeal or motion is referred to 

the Administrator by the Board, all parties shall be so notified 

and the provisions of this program referring to the Board shall 

be interpreted as referring to the Administrator.

(2) Within 30 days after a final permit decision has been 

issued, any person who filed comments on the draft permit or 

participated in the public hearing may petition the Board to 

review any condition of the permit decision. Any person who 

failed to file comments 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 
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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 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 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 
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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 forth a briefing schedule for the appeal 

and must state that any interested person may file an amicus 

brief. If the Board denies review, you, the permit applicant,

and the person(s) requesting review must be notified through 

means that are adequate to assure reasonable access to the 

decision, which may include mailing a notice to each party.

(6) 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 

review has been denied; 

(ii) When the Board issues a decision on the merits of the 

appeal and the decision does not include a remand of the 

proceedings; or 

(iii) Upon the completion of remand proceedings if the 
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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. 

Motions for reconsideration under this provision must be 

directed to, and decided by, the Board. Motions for 

reconsideration directed to the Administrator, rather than to 

the Board, will 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 date of 

the final order unless specifically so ordered by the Board.

(10) For purposes of this section, time periods are 

computed as follows:

(i) Any time period scheduled to begin on the occurrence 

of an act or event must begin on the day after the act or event.

(ii) Any time period scheduled to begin before the 

occurrence of an act or event must be computed so that the 
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period ends on the day before the act or event, except as 

otherwise provided.

(iii) If the final day of any time period falls on a 

weekend or legal holiday, the time period must be extended to 

the next working day.

(iv) Whenever a party or interested person has the right 

or is required to act within a prescribed period after the 

service of notice or other paper upon him or her by mail, 3 days 

must be added to the prescribed time.

(e) Can my permit be reopened? The reviewing authority 

may reopen 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 the emissions limitations in the 

permit, such as permit reopenings that correct typographical, 

calculation and other errors, all other permit reopenings shall 

be carried out after the opportunity of public notice and 

comment and in accordance with one or more of the public 

participation requirements under §49.171(b)(1)(ii).

§49.173 Administration and delegation of the nonattainment 

major NSR program in Indian country.

(a) Who administers a nonattainment major NSR program in 

Indian country?
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(1) If the Administrator has approved a TIP that includes 

a major NSR program for stationary sources in nonattainment 

areas of Indian country that meets the requirements of part D of 

title I of the Act and §51.165 of this chapter, the tribe is the 

reviewing authority and will administer the approved major NSR 

program under tribal law.

(2) If the Administrator has not approved an 

implementation plan, the Administrator may delegate the 

authority to assist EPA with administration of portions of this 

federal nonattainment major NSR program implemented under 

federal authority to a tribal agency upon request, in accordance 

with the provisions of paragraph (b) of this section. If the 

tribal agency has been granted such delegation, it will have the 

authority to assist EPA according to paragraph (b) of this 

section, and it will be the reviewing authority for purposes of 

the provisions for which it has been granted delegation

(3) If the Administrator has not approved an 

implementation plan or granted delegation to a tribal agency, 

the Administrator is the reviewing authority and will directly 

administer all aspects of this federal nonattainment major NSR 

program in Indian country under federal authority.

(b) Delegation of administration of the federal 

nonattainment major NSR program to tribes. This paragraph (b) 
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establishes the process by which the Administrator may delegate 

authority to a tribal agency, with or without signature 

authority, to assist EPA with administration of portions of this 

federal nonattainment major NSR program, in accordance with the 

provisions in paragraphs (b)(1) through (8) of this section. 

Any federal requirements under this program that are 

administered by the delegate tribal agency will be subject to 

enforcement by EPA under federal law. This section provides for 

administrative delegation of the federal nonattainment major NSR 

program and does not affect the eligibility criteria under §49.6 

for treatment in the same manner as a state.

(1) Information to be included in the Administrative 

Delegation Request. In order to be delegated authority to 

assist EPA with administration of this FIP permit program for 

stationary sources, the tribal agency must submit a request to 

the Administrator that:

(i) Identifies the specific provisions for which 

delegation is requested; 

(ii) Identifies the Indian Reservation or other areas of 

Indian country for which delegation is requested;

(iii) Includes a statement by the applicant's legal 

counsel (or equivalent official) that includes the following

information:
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(A) A statement that the applicant is a tribe recognized 

by the Secretary of the Interior;

(B) A descriptive statement that is consistent with the 

type of information described in §49.7(a)(2) demonstrating that 

the applicant is currently carrying out substantial governmental 

duties and powers over a defined area; and

(C) A description of the laws of the tribe that provide 

adequate authority to administer the federal rules and 

provisions for which delegation is requested; and

(iv) A demonstration that the tribal agency has the 

technical capability and adequate resources to administer the 

FIP provisions for which the delegation is requested.

(2) Delegation of Partial Administrative Authority 

Agreement. A Delegation of Partial Administrative Authority 

Agreement (Agreement) will set forth the terms and conditions of 

the delegation, will specify the provisions that the delegate 

tribal agency will be authorized to implement on behalf of EPA, 

and will be entered into by the Administrator and the delegate 

tribal agency. The Agreement will become effective upon the 

date that both the Administrator and the delegate tribal agency 

have signed the Agreement or as otherwise stated in the 

Agreement. Once the delegation becomes effective, the delegate 

tribal agency will be responsible, to the extent specified in 
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the Agreement, for assisting EPA with administration of the 

provisions of the federal nonattainment major NSR program that 

are subject to the Agreement. 

(3) Publication of notice of the Agreement. The 

Administrator will publish a notice in the Federal Register

informing the public of any Agreement for a particular area of 

Indian country. The Administrator also will publish the notice 

in a newspaper of general circulation in the area affected by 

the delegation. In addition, the Administrator will mail a copy 

of the notice to persons on a mailing list developed by the 

Administrator consisting of those persons who have requested to 

be placed on such a mailing list.

(4) Revision or revocation of an Agreement. An Agreement 

may be modified, amended, or revoked, in part or in whole, by 

the Administrator after consultation with the delegate tribal 

agency. 

(5) Transmission of information to the Administrator. 

When administration of a portion of the federal nonattainment 

major NSR program in Indian country that includes receipt of 

permit application materials and preparation of draft permits 

has been delegated in accordance with the provisions of this 

section, the delegate tribal agency must provide to the 

Administrator a copy of each permit application (including any 
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application for permit revision) and each draft permit. You, 

the permit applicant, may be required by the delegate tribal 

agency to provide a copy of the permit application directly to 

the Administrator. With the Administrator's consent, the 

delegate tribal agency may submit to the Administrator a permit 

application summary form and any relevant portion of the permit 

application, in place of the complete permit application. To 

the extent practicable, the preceding information should be 

provided in electronic format by the delegate tribal agency or 

by you, the permit applicant, as applicable, and as requested by 

the Administrator. The delegate tribal agency must also submit 

to the Administrator such information as the Administrator may 

reasonably require to ascertain whether the delegate tribal 

agency is implementing and administering the delegated program 

in compliance with the requirements of the Act and of this 

program.

(6) Waiver of information transmission requirements. The 

Administrator may waive the requirements of paragraph (b)(5) of 

this section for any category of stationary sources (including 

any class, type, or size within such category) by transmitting 

the waiver in writing to the delegate tribal agency.

(7) Retention of records. Where a delegate tribal agency 

prepares draft or final permits or receives applications for 
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permit revisions on behalf of EPA, the records for each draft 

and final permit or application for permit revision must be kept 

by the delegate tribal agency for a period not less than 5 

years. 

(8) Delegation of signature authority. To receive 

delegation of signature authority, the legal statement submitted 

by the tribal agency pursuant to paragraph (b)(1) of this 

section must certify that no applicable provision of tribal law 

requires that a major NSR permit be issued after a certain time 

if the delegate tribal agency has failed to take action on the 

application (or includes any other similar provision providing 

for default issuance of a permit).

(c) Are there any non-delegable elements of the federal 

nonattainment major NSR program in Indian country? The 

following authorities cannot be delegated outside of EPA:

(1) The Administrator's authority to object to the 

issuance of a major NSR permit.

(2) The Administrator's authority to enforce permits 

issued pursuant to this program.

(d) How will EPA transition its authority to an approved 

nonattainment major NSR program? 

(1) The Administrator will suspend the issuance of 

nonattainment major NSR permits under this program promptly upon 
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publication of notice of approval of a TIP with a major NSR 

permit program for nonattainment areas. 

(2) The Administrator may retain jurisdiction over the 

permits for which the administrative or judicial review process 

is not complete and will address this issue in the notice of 

program approval. 

(3) After approval of a program for issuing nonattainment 

major NSR permits and the suspension of issuance of 

nonattainment major NSR permits by the Administrator, the 

Administrator will continue to administer nonattainment major 

NSR permits until permits are issued under the approved tribal 

implementation plan program.

§§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 reads as 

follows:

Appendix S to Part 51-Emission Offset Interpretative Ruling.
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* * * * *

II. * * *

B. Review of all sources for emission limitation 

compliance. The reviewing authority must examine each proposed 

major new source and proposed major modification1 to determine if 

such a source will meet all applicable emission requirements in 

the SIP, any applicable new source performance standard in 40 

CFR part 60, or any national emission standard for hazardous air 

pollutants in 40 CFR part 61 or part 63. If the reviewing 

authority determines that the proposed major new source cannot 

meet the applicable emission requirements, the permit to 

construct must be denied.

IV. * * *

A. Condition 5. The permit applicant shall conduct an 

analysis of alternative sites, sizes, production processes, and 

environmental control techniques for such proposed source that 

demonstrates that the benefits of the proposed source 

significantly outweigh the environmental and social costs imposed 

as a result of its location, construction, or modification.

* * * * *

 

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

source and any modification.
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