Review of New Sources and Modifications in 

Indian Country

Response to Comments 
(This page intentionally left blank.)
 

Review of New Sources and Modifications in 

Indian Country

Response to Comments

New Source Review Group

Air Quality Policy Division

Office of Air Quality Policy and Standards

U. S. Environmental Protection Agency

Research Triangle Park, NC 27711

June 2011
(This page intentionally left blank.)
Review of New Sources and Modifications in Indian Country 

Response to Comments 

i

TABLE OF CONTENTS

LIST OF ACRONYMS AND ABBREVIATIONS ...................................................................... iv

LIST OF UNITS ............................................................................................................................. v

1 INTRODUCTION ................................................................................................................... 1

1.1 Background .................................................................................................................... 1

1.2 The Commenters ............................................................................................................ 2

1.3 Organization of This Document..................................................................................... 2

2 MINOR NSR PROGRAM ...................................................................................................... 9

2.1 Proposed Approach to Minor NSR ................................................................................ 9

2.1.1 Minor NSR Program for Indian Country ........................................................... 9

2.1.2 Minor NSR Should Be Based on Surrounding State Programs....................... 13

2.1.3 Proposed Approach Is Not Appropriate for the Oil and Gas Sector................ 16

2.1.4 Other Comments on the Proposed Approach to Minor NSR........................... 17

2.2 Definition of “Minor Source”....................................................................................... 21

2.3 Definition of “Modification”........................................................................................ 22

2.3.1 Allowable Emissions Basis.............................................................................. 22

2.3.2 Exemptions from the Definition of “Modification”......................................... 26

2.3.3 Other Comments on the Definition of “Modification” .................................... 29

2.4 Process for Determining Whether a Proposed Change Is a Modification.................... 30

2.4.1 Project Netting ................................................................................................. 30

2.4.2 Other Comments on the Modification Applicability Test................................ 32

2.5 Minor NSR Thresholds ................................................................................................ 34

2.5.1 General Comments on Thresholds................................................................... 34

2.5.2 Level of the Proposed Thresholds.................................................................... 35

2.5.3 Methodology Used To Develop the Proposed Thresholds .............................. 40

2.5.4 Other Comments on the Proposed Thresholds................................................. 42

2.6 Proposed List of Insignificant Units and Activities ..................................................... 44

2.6.1 Expanding the List of Exemptions................................................................... 45

2.6.2 Sources Exempted from the Minor NSR Program........................................... 46

2.7 Permitting Process........................................................................................................ 47

2.7.1 Permit Application Requirements.................................................................... 47

2.7.1.1 Timing of Applications....................................................................... 48

2.7.1.2 Fugitive Emissions.............................................................................. 48

2.7.1.3 Minor Source Plantwide Applicability Limitations (PALs)............... 52

2.7.2 Control Technology Review ............................................................................ 54

2.7.3 Air Quality Impact Analysis ............................................................................ 61
Review of New Sources and Modifications in Indian Country

Response to Comments

ii

2.7.4 Permit Issuance Process................................................................................... 63

2.7.4.1 General Comments on the Permit Issuance Process........................... 64

2.7.4.2 Completeness Review Period ............................................................. 65

2.7.4.3 Technical Review Period .................................................................... 67

2.7.4.4 Public Comment Period ...................................................................... 68

2.7.5 Permit Term ..................................................................................................... 69

2.7.6 Other Comments on the Permit Issuance Provisions....................................... 70

2.8 Applicability of the Minor NSR Program to Existing Sources.................................... 75

2.8.1 Comments on Option 1 .................................................................................... 75

2.8.2 Comments on Option 2 .................................................................................... 76

2.8.3 Comments on Option 3 .................................................................................... 77

2.8.4 Comments on Option 4 .................................................................................... 78

2.8.5 Other Suggestions for Addressing Existing Sources ....................................... 79

2.9 Synthetic Minor Sources.............................................................................................. 80

2.10 Case-by-Case MACT Determinations under Section 112(g) of the Act...................... 82

2.11 Public Participation Requirements............................................................................... 84

2.12 Monitoring, Recordkeeping, and Reporting................................................................. 87

2.12.1 General Comments on Monitoring, Recordkeeping, and Reporting................ 87

2.12.2 Monitoring Requirements................................................................................ 87

2.12.3 Recordkeeping Requirements.......................................................................... 88

2.12.4 Reporting Requirements................................................................................... 88

2.13 General Permits............................................................................................................ 89

2.14 Final Permit Issuance and Administrative and Judicial Review .................................. 94

2.14.1 Notice of Final Permit Action.......................................................................... 94

2.14.2 Administrative Record for a Permit Decision.................................................. 95

2.14.3 Procedures for Appealing a Permit Decision................................................... 96

2.14.4 Procedures for Reopening a Permit................................................................ 101

2.14.5 Administrative Permit Revisions................................................................... 102

3 MAJOR NSR PROGRAM IN NONATTAINMENT AREAS OF INDIAN COUNTRY . 105

3.1 Requirements for Major Source Permitting under Appendix S ................................. 105

3.2 Options for Addressing the Lack of Available Offsets in Indian Country................. 106

3.2.1 General Comments on Waiving Offset Requirements in Indian Country ..... 107

3.2.2 Economic Development Zone Option............................................................ 110

3.2.3 Appendix S, Paragraph VI Option ................................................................. 113

3.3 Public Participation Requirements for the Nonattainment Major NSR Program ...... 115

3.4 Compliance Certification Requirements of the Act ................................................... 115

4 LEGAL BASIS, STATUTORY AUTHORITY, AND JURISDICTIONAL ISSUES ....... 119

4.1 Jurisdiction in Indian Country.................................................................................... 119

4.1.1 EPA’s Authority in Indian Country ............................................................... 119

4.1.2 Definition of “Indian Country” ...................................................................... 124
Review of New Sources and Modifications in Indian Country 

Response to Comments 

iii

4.1.3 Establishing the Borders of Indian Country................................................... 127

4.2 Delegation of the NSR Programs to Tribes................................................................ 129

4.3 Permits Previously Issued by States to Sources in Indian Country............................ 132

5 OTHER COMMENTS ON THE PROPOSED RULEMAKING ....................................... 135

5.1 Implementation of the NSR Program......................................................................... 135

5.1.1 Resources for Implementation ....................................................................... 135

5.1.2 Implementation Timeline............................................................................... 138

5.1.3 Other Comments on Implementation............................................................. 139

5.2 Consultation with Tribes During the Rulemaking Process........................................ 141

5.3 Use of FIPs for the NSR Program.............................................................................. 143

5.4 Regulatory Needs in Nonattainment Areas................................................................ 144

5.5 Statutory and Executive Order Reviews .................................................................... 146

5.5.1 Regulatory Flexibility Act (RFA) Review..................................................... 146

5.5.2 Executive Order 12866 and 13211 Review ................................................... 147

5.6 Miscellaneous Comments on the Proposal................................................................. 148
Review of New Sources and Modifications in Indian Country

Response to Comments

iv

LIST OF ACRONYMS AND ABBREVIATIONS

Act Clean Air Act (42 U.S.C. 7401 - 7671q)

AQIA Air quality impact analysis

BACT Best available control technology 

BARCT Best available retrofit control technology

CAA Clean Air Act (42 U.S.C. 7401 - 7671q)

CEMS Continuous emission monitoring systems

CFR Code of Federal Regulations

CO Carbon monoxide

EAB Environmental Appeals Board

EDZ Economic Development Zone

EPA U. S. Environmental Protection Agency

ERP Equipment Replacement Provisions

FIP Federal Implementation Plan 

FR Federal Register

HAP Hazardous air pollutant

LAER Lowest achievable emission rate

MACT Maximum achievable control technology

MOU Memorandum of Understanding

NESHAP National Emission Standards for Hazardous Air Pollutants

NOx Nitrogen oxides

NSPS New Source Performance Standard

NSR New Source Review

PAL Plantwide applicability limitation

PM Particulate matter measured as “total suspended particulate matter”

PM10 Particulate matter less than 10 μm

PM2.5 Particulate matter less than 2.5 μm

PSD Prevention of Significant Deterioration

PTE Potential to emit

RACT Reasonably available control technology

RFP Reasonable further progress
Review of New Sources and Modifications in Indian Country 

Response to Comments 

v

LIST OF ACRONYMS AND ABBREVIATIONS

RMRR Routine maintenance, repair, or replacement

SAFETEA Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005

SIP State Implementation Plan

SO2 Sulfur dioxide

TAR Tribal Authority Rule

TAS Treatment as a state

TIP Tribal Implementation Plan

U.S.C. United States Code

VOC Volatile organic compound

LIST OF UNITS

tpy Tons per year

μm Micrometer (One-millionth of a meter)
Review of New Sources and Modifications in Indian Country

Response to Comments

vi

(This page intentionally left blank.)
Review of New Sources and Modifications in Indian Country 

Response to Comments 

1

1 INTRODUCTION

1.1 Background 

On August 21, 2006, the U. S. Environmental Protection Agency (EPA or we) proposed a 

rulemaking titled Review of New Sources and Modifications in Indian Country, which would 

create a Federal Implementation Plan (FIP) for Indian country.1 The FIP would include two 

basic air quality regulations for the protection of communities in Indian country. The two rules 

are elements of the New Source Review (NSR) program. The first rule would apply to minor 

stationary sources (minor sources) and minor modifications at major stationary sources (major 

sources) in Indian country (minor NSR rule). The second rule would apply to all new major 

sources and major modifications located in areas of Indian country that are designated as not 

attaining the National Ambient Air Quality Standards (NAAQS) (nonattainment major NSR 

rule). These rules would be implemented by EPA, or a delegate tribal agency assisting EPA with 

administration of the rules, until replaced by an EPA-approved implementation plan for an area 

of Indian country.

The purpose of this rulemaking is to ensure that air resources in Indian country will be 

protected in the manner intended by the Clean Air Act (the Act or CAA) by establishing a 

permitting program for stationary sources in Indian country. Currently no tribe is administering 

an EPA-approved Prevention of Significant Deterioration (PSD) program.

2

 For the 

nonattainment major NSR program or the minor NSR program in Indian country, no tribes have 

been administering an EPA-approved nonattainment major NSR program and only a few tribes 

have been administering EPA-approved minor NSR programs.

3

 In addition, there has been no 

FIP in place to implement these programs until now. Hence, there was a regulatory gap in Indian 

country. This final rule will allow us to address that gap and provide regulatory certainty to 

allow for environmentally sound economic growth in Indian country. By establishing this FIP 

for Indian country, we will provide more consistency with the requirements and programs of the 

states and thus create a more level regulatory playing field for owners and operators within and 

outside of Indian country.

This document presents a summary of the public comments on the proposed rule, along 

with our responses to those comments. The document supports the final rule for Review of New 

Sources and Modifications in Indian Country. 

 1 The FIP was proposed in the Federal Register, Volume 71, beginning on page 48,696 (71 FR 48696).

2 However, 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. 3 For example, the St. Regis Mohawk Tribe has in place an EPA-approved TIP that includes provisions for 

minor NSR and synthetic minor permitting (see http://www.srmtenv.org/pdf_files/airtip.pdf). In addition, the Gila 

River Indian Community has developed a TIP that includes a minor NSR program (see

http://www.epa.gov/region9/air/actions/gila-river.html). 
Review of New Sources and Modifications in Indian Country

Response to Comments

2

1.2 The Commenters 

The public comment period was originally scheduled to end on November 26, 2006 but 

was extended to January 19, 2007 and then reopened until March 20, 2007 as a result of a 

number of timely extension requests (0040, 0049.1, 0055, 0057, 0090, 0107.1, 0108.1, 0109.2), 

although one commenter (0110.1) preferred that the comment period not be extended.

4

 We 

received a total of 58 sets of written comments on the proposed rules (excluding duplicates, 

supplemental comments from a previous commenter, and requests related solely to extending the 

public comment period). The commenters can be broken down by general type as follows: 

27 tribal and tribal association commenters, 7 state/local air agencies and agency associations, 

15 industry and industry association commenters, 1 environmental group commenter, and 

8 private citizens. The comments are listed in Table 1, which appears at the end of this section. 

1.3 Organization of This Document

After this introductory section, this document is divided into four additional sections. 

The sections are as follows: 

• Section 2 – MINOR NSR PROGRAM IN INDIAN COUNTRY

• Section 3 – MAJOR NSR PROGRAM IN NONATTAINMENT AREAS OF 

INDIAN COUNTRY

• Section 4 – LEGAL BASIS, STATUTORY AUTHORITY, AND 

JURISDICTIONAL ISSUES

• Section 5 – OTHER COMMENTS ON THE PROPOSED RULEMAKING

 4 The comment period was extended from November 26, 2006 to January 19, 2007 at 71 FR 62227 

(October 24, 2006) and reopened from January 19 to March 20, 2007 at 72 FR 5944 (February 8, 2007).
Review of New Sources and Modifications in Indian Country 

Response to Comments 

3

Table 1. List of Commenters

DOCKET ID a b COMMENT DESCRIPTIONTYPE OF 

COMMENTER

0015 Comment submitted by D. Terrell Private Citizen 

0016 Comment and attachment submitted by Angela Saad et 

al., University of Houston Law Center

Private Citizen 

0018 Comment and attachment submitted by Barry R. 

Wallerstein, Executive Officer, South Coast Air Quality 

Management District

State/Local Air 

Agency

0019 Comment submitted by F. Taubert Private Citizen 

0020 Comment submitted by V. R. "Butch" Martineau, ViceChairman, Fond du Lac Band of Lake Superior 

Chippewa

Tribe

0021 Comment and attachment submitted by Michael A. 

Golas, General Manager, Environment, Health and 

Safety, Questar Market Resources (Questar's)

Industry

0022 Comment and attachment submitted by Angie 

Burckhalter, V.P. Regulatory Affairs, Oklahoma 

Independent Petroleum Association (OIPA)

Industry 

Association

0023 Comment and attachment submitted by Kevin Kessler, 

Acting Director, Bureau of Air Management, Wisconsin 

Department of Natural Resources 

State/Local Air 

Agency

0024 Comment and attachment submitted by Anne R. Gobin, 

Chief, Bureau of Air Management, Connecticut 

Department of Environmental Protection

State/Local Air 

Agency

0025 Comment and attachment submitted by the Interstate 

Natural Gas Association of America (INGAA)

Industry 

Association

0026 Comment and attachment submitted by Luke Johnson, 

Environmental Protection Officer, Fort Mojave Indian 

Tribe

Tribe

0027 Comment and attachment submitted by Stephanie R. 

Meadows, Upstream Environmental Coordinator, 

American Petroleum Institute (API)

Industry 

Association

0028 Comment and attachment submitted by Greg 

Cooperrider, St. Maries Complex Manager, Potlatch 

Forest Products Corporation (PFPC)

Industry

0029 Comment and attachment submitted by Wanda Burget, 

Sr. Manager, Regulatory Services - West, Peabody 

Energy Company

Industry

0030 Comment submitted by Patrick E. Flynn, Environmental 

Health & Safety Manager, Resolute Natural Resources 

Company

Industry 

0031 Comment submitted by Waldo Walker, Chairman, the 

Washoe Tribe of Nevada and California

Tribe 
Review of New Sources and Modifications in Indian Country

Response to Comments

4

Table 1. List of Commenters

DOCKET ID a b COMMENT DESCRIPTIONTYPE OF 

COMMENTER

0032 Comment submitted by Ann C. Becker, Attorney, 

Arizona Public Service Company

Industry 

0033 Comment submitted by Jay Littlewolf, Air Quality 

Administrator, Northern Cheyenne Tribe

Tribe

0034 Comment and attachment submitted by Steven E. 

Chester, Director, Michigan Department of 

Environmental Quality (MDEQ)

State/Local Air 

Agency

0035 Comment and attachment submitted by Dan Anderson, 

Vice President of Production, Berry Petroleum Company

Industry

0036 Comment and attachment submitted by Scot Anderson, 

Attorney on behalf of the Ute Indian Tribe of the Uintah 

and Ouray 

Tribe

0037 Comment and attachment submitted by Jana Milford, 

Senior Scientist and Attorney, Vickie Patton, Senior 

Attorney, Environmental Defense

Environmental 

Group

0038 Comment and attachment submitted by Brandy Toft, Air 

Quality Specialist, Leech Lake Band of Ojibwe

Tribe

0039 Comment submitted by Duane Zavadil, Vice President, 

Government and Regulatory Affairs, Bill Barrett 

Corporation (BBC)

Industry

0040

Extension 

request

Comment submitted by Stephen V. Quesenberry, 

Attorney, Karshmer & Associates on behalf of Morongo 

Band of Mission Indians

Tribe

0041 Comment submitted by Clement J. Frost, Chairman, 

Southern Ute Indian Tribe

Tribe

0042 Comment submitted by Kevin Wanttaja, Manager, 

Environmental Services Department, Salt River Project 

(SRP)

Industry

0043 Comment and attachment submitted by Wilfred J. 

Nabahe, Tribal C-Chair, Region 9 Tribal Operations 

Committee 

Tribal 

Association

0044 Comment submitted by Brian Patterson, President, 

United South and Eastern Tribes, Inc. (USET)

Tribal

Association

0045 Comment and attachment submitted by William 

O'Sullivan, New Jersey Co-Chair, John Paul, Dayton, 

OH Co-Chair, National Association of Clean Air 

Agencies (NACAA)

State/Local

Agency 

Association

0046 Comment and attachment submitted by the Oklahoma 

Department of Environmental Quality (ODEQ)

State/Local Air 

Agency

0047 Comment and attachment submitted by Diane Enos, 

President, Salt River Pima-Maricopa Indian Community 

(SRPMIC)

Tribe
Review of New Sources and Modifications in Indian Country 

Response to Comments 

5

Table 1. List of Commenters

DOCKET ID a b COMMENT DESCRIPTIONTYPE OF 

COMMENTER

0048 Comment and attachment submitted by Deborah 

Seligman, Director of Government Affairs, New Mexico 

Oil and Gas Association

Industry

Association

0049 Comment and attachment submitted by Ian Kanair, 

Environmental and Natural Resources Department, 

Snoqualmie Tribe

Tribe

0050 Comment and attachment submitted by Jill Elise Grant, 

Nordhaus Law Firm, LLP on behalf of Eugenia 

Quintana, Environmental Department Manager, and 

Charlene Nelson, Environmental Program Supervisor, 

The Navajo Nation EPA Air Quality Program

Tribe

0051 Comment submitted by Larry R. Allen, President, 

California Air Pollution Control Officers Association 

(CAPCOA) 

State/Local

Agency 

Association

0052 Comment submitted by Paul E. Frye, Frye Law Firm on 

behalf of the Navajo Nation Oil and Gas Company 

(NNOGC)

Industry

(Tribally 

Owned)

0053 Comment submitted by Norman Harry, Pyramid Lake 

Tribal Chairman, Pyramid Lake Paiute Tribe

Tribe

0054 Comment submitted by Marjianne Yonge, Tribal 

Chairwoman, Lone Pine Paiute-Shoshone Reservation

Tribe

0055

Extension 

request

Comment submitted by Wilfred J. Nabahe, Tribal CoChair, Region 9 Tribal Operations CommitteeTribal

Association

0056 Comment submitted by Joseph Brings Plenty, Chairman 

and Carlyle Ducheneaux, CWA 106/Air Quality 

Coordinator, CRST Environmental Protection 

Department, Cheyenne River Sioux Tribe

Tribe

0057

Extension 

request

Mark Macarro, Tribal Chairman, Pechanga Band of 

Luiseno Mission Indians

Tribe

0061 Comment and attachment submitted by Brian Cladoosby, 

Chairman, Swinomish Tribe 

Tribe

0071 Comment submitted by Tony Basabe, Tribal Air 

Monitoring Support (TAMS) Steering Committee 

Chairman

Tribal

Association

0072 Comment submitted by Sandra Miller, Manager, 

Environmental Department, El Paso Corporation 

Western Pipelines on behalf of El Paso Natural Gas 

Company and Colorado Interstate Gas

Industry

Association

0076 Comment submitted by the Makah Tribe Tribe
Review of New Sources and Modifications in Indian Country

Response to Comments

6

Table 1. List of Commenters

DOCKET ID a b COMMENT DESCRIPTIONTYPE OF 

COMMENTER

0081 Comment and attachment submitted by Kathleen 

Sgamma, Manager, Government Affairs, Independent 

Petroleum Association of Mountain States (IPAMS)

Industry

Association

0090

Extension 

request

Comment submitted by Marjianne Yonge, Tribal 

Chairwoman, Lone Pine Paiute-Shoshone Reservation

Tribe

0091 Comment submitted by Ryan Callison, National Tribal 

Air Association (NTAA)

Tribal

Association

0092 Comment and attachment submitted by Chunyan Chai, 

Bard Center for Environmental Policy

Private Citizen 

0093 Comment and attachment submitted by Altje Marie 

Hoekstra, Center for Environmental Policy, Bard College

Private Citizen 

0094 Comment submitted by C. Ferguson Private Citizen

0095 Comment submitted by K. MacManus Private Citizen

0096 Comment submitted by M. Williams Private Citizen

0097 Comment and attachment submitted by Robert Martin, 

Chairman, Morongo Band of Mission Indians

Tribe

0098 Comment and attachment submitted by Gwen Carter, 

RTOC Co-Chair, Region 10 Tribal Caucus (RTC)

Tribal

Association

0099 Comment and attachment submitted by Terry O. Enos, 

Vice-Chairman, Ak-Chin Indian Community

Tribe 

0100

Supplements 

0046

Comment and attachment submitted by William C. Scott, 

Modrall, Sperling, Roehl, Harris & Sisk, PA on behalf of 

Oklahoma Department of Environmental Quality

State/Local Air 

Agency

0101 Comment and attachment submitted by Samuel N. 

Penney on behalf of Rebecca A. Miles, Chairman, Tribal 

Executive Committee, Nez Perce Tribe

Tribe

0103

Duplicate of 

0097

Comment submitted by Lolita Brewster, Secretary, 

Karshmer & Associates

Industry

Association

0104 Comment submitted by Brandy Toft, Air Quality 

Specialist, Leech Lake Band of Ojibwe

Tribe

0106 Comment and attachment submitted by Fawn R. Sharp, 

President, Quinault Indian Nation

Tribe

0107

Extension 

request

Comment and attachment submitted by Fawn R. Sharp, 

President, Quinault Indian Nation

Tribe

0108

Extension 

request

Comment and attachment submitted by Brandy Toft, Air 

Quality Specialist, Division of Resource Management, 

Leech Lake Band of Ojibwe

Tribe
Review of New Sources and Modifications in Indian Country 

Response to Comments 

7

Table 1. List of Commenters

DOCKET ID a b COMMENT DESCRIPTIONTYPE OF 

COMMENTER

0109

Extension 

request

Comment and attachment submitted by J. Stephen 

Hartsfield, Operations Coordinator, National Tribal Air 

Association (NTAA)

Tribe

0110

Nonextension 

request

Comment and attachment submitted by Jason S. Walker, 

Air Coordinator, Northwestern Band of the Shoshoni 

Nation

Tribe

0129 Comment and attachment submitted by Charlie Lippert, 

Mille Lacs Band of Ojibwe

Tribe

0130 Comment attachment submitted by Mary Munn, Air 

Program Coordinator, Fond du Lac Reservation, 

Minnesota (MN)

Tribe

a Docket ID identifies comments found in Docket No. EPA-HQ-OAR-2003-0076 by document 

number.

b Documents submitted to the docket together appear in the docket as multiple documents with 

the same “root number.” For example, comments received via email are identified by two 

numbers. First, the root number (e.g., 0001) is assigned to the email message. Second, the 

root number with an extension (e.g., 0001.1) is assigned to the attached comment. Any 

additional attachments are assigned extensions in numerical order (e.g., 0001.2, 0001.3, etc.). 

For the purposes of this table, all such documents are listed under the root number. In the text 

of the comment summary, each source document is identified by the entire document number.
Review of New Sources and Modifications in Indian Country

Response to Comments

8

(This page intentionally left blank.)
Review of New Sources and Modifications in Indian Country 

Response to Comments 

9

2 MINOR NSR PROGRAM

2.1 Proposed Approach to Minor NSR

We proposed a minor NSR program as a Federal Implementation Plan (FIP) for Indian 

country pursuant to section 110(a)(2)(C) of the Act. This section of the Act requires “regulation 

of the modification and construction of any stationary source within the areas covered by the 

plan as necessary to assure that national ambient air quality standards are achieved, including a 

permit program as required in parts C and D.” Part C of Title I of the Act contains the 

requirements for PSD, while part D sets out the requirements for nonattainment NSR. While 

section 110(a)(2)(C) of the Act forms the basis for the core policies behind the federal minor 

NSR program in Indian country, EPA is issuing the final rules pursuant to its authority under 

sections 301(a)(1) and 301(d)(4) of the CAA and 40 CFR 49.11. Section 301(a)(1) grants the 

Administrator the authority “to prescribe such regulations as are necessary to carry out [her] 

functions under this chapter.” 42 U.S.C. 7601(a)(1). Under section 301(d)(4), when the 

Administrator determines that the treatment of Indian tribes as identical to States is inappropriate 

or administratively infeasible, the Administrator can “provide by regulation, other means by 

which the Administrator will directly administer such provisions [of the Clean Air Act] so as to 

achieve the appropriate purpose.” 42 U.S.C. 7601(d)(4). The Administrator exercised the 

authority granted by CAA section 301(d)(4) in promulgating 40 CFR 49.11, which provides that 

the Administrator shall exercise the discretionary authority granted under CAA sections 301(a) 

and 301(d)(4) to promulgate such Federal implementation plan provisions “as are necessary or 

appropriate to protect air quality” in circumstances where a tribe either does not submit a tribal 

implementation plan or does not receive EPA approval of a submitted tribal implementation 

plan. 40 CFR 49.11(a). The Administrator has determined that it is appropriate to issue the final 

rules in order to “protect air quality” in Indian country.

2.1.1 Minor NSR Program for Indian Country

Supporting Comments:

Numerous commenters [six tribal commenters (0026.1, 0031, 0050.1, 0061.1/0061.2, 

0091.1, 0097.1), three industry commenters (0025.1, 0027.1, 0030), one environmental group 

(0037.1), two state/local commenters (0045.1. 0051.1), and one private citizen (0093.1)] 

endorsed the concept of a minor NSR program for Indian country. A number of these 

commenters also had significant comments about some aspects of the proposed program, which

are discussed in the following sections of this document. The commenters generally lauded the 

intent of the proposed minor NSR program for Indian country – to close a regulatory gap in such 

areas so as to protect the air resources as intended by the Act and create a level regulatory 

playing field inside and outside of Indian country. The commenters often endorsed the program 

for creating regulatory certainty and encouraging economic development in Indian country.

One of the tribal commenters (0061.1) stated that the proposed rule should balance 

environmental protection with allowing economic development on reservations, and indicated 
Review of New Sources and Modifications in Indian Country

Response to Comments

10

that the proposed rule does this for the most part. However, the commenter believes that the 

balance should be made through sufficient protection of air quality and a leveling of the playing 

field with surrounding local air management jurisdictions rather than reliance on only waivers 

and exemptions for emission sources locating within Indian country.

The private citizen (0093.1) cautioned that the minor NSR program should not be any 

more lenient or any more stringent than the programs in the surrounding areas. One industry 

commenter (0027.1) suggested that the minor NSR FIP will help standardize the processes that 

tribes will likely develop if they choose to maintain their own environmental air quality 

programs. Another industry commenter (0030), after endorsing the concept of a minor NSR 

program, stated that the proposed rules are unnecessarily complex and onerous, provide little or 

no environmental benefit at significant expense, and are too similar to the requirements for major 

sources under part 71 and PSD.

Opposing Comments:

Two industry commenters (0029.2, 0032) stated that they do not believe that the 

proposed minor NSR program is necessary to protect the air resources in Indian country.

One of these industry commenters (0029.2) disagreed with our statement that minor NSR 

in Indian country must be “comparable to that which applies outside of Indian country, in order 

to create a more level regulatory playing field for owners and operators within and outside of 

Indian country.” The commenter asserted that the Act does not require EPA to create any “level 

regulatory playing field” for owners and operators, regardless of their locations. Rather, the 

commenter went on, the Act requires a minor NSR program “as necessary to assure that national 

ambient air quality standards are achieved.”

The commenter (0029.2) pointed out that much of Indian country’s air quality is often 

significantly below the levels of the NAAQS and that emission growth rates are typically quite 

low in Indian country. The commenter believes that, as a result, it is not unreasonable to 

conclude that the air quality impacts of new or modified minor sources in Indian country will 

have less environmental significance than if those sources were instead located in developed 

areas outside of Indian country. Based on this reasoning, the commenter concluded that, without 

compromising protection of the NAAQS and related increments, minor NSR in Indian country 

does not need to be as substantive as those programs in most states. The commenter suggested 

that minor NSR for Indian country should place even less emphasis on the need for control 

technology or ambient air quality reviews, and that the degree of proposed monitoring, 

recordkeeping, and public participation are inconsistent with the minimal needs for such 

activities for minor sources in Indian country.

Finally, the commenter (0029.2) discussed the origins of the regulations that govern 

minor NSR programs [Title 40 of the Code of Federal Regulations, sections 51.160 and 51.161 

(40 CFR 51.160 and 51.161)] to support her company’s assertions. The commenter pointed out 

that the current 40 CFR 51.160 and 51.161 differ very little from the first NSR regulations, 

which were codified in the early 1970’s when neither the PSD nor nonattainment major NSR 

programs existed. The commenter concluded from this that because the requirements of 40 CFR 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

11

51.160 and 51.161 originally governed the entire NSR program (major and minor), they are more 

comprehensive than necessary for minor NSR in Indian country today (where separate major 

NSR programs will soon be in effect).

The second of the industry commenters (0032) pointed out the that the proposed minor 

NSR rules refer to the “rare instances where the reviewing authority has reason to be concerned 

that the... modification would cause or contribute to a NAAQS or PSD increment violation” 

[proposed 40 CFR 49.154(d)(1)]. Based on this language, the commenter indicated that there is 

no need or justification for proposed minor NSR program in Indian country. The commenter 

asserted that the proposed minor NSR FIP would impose extremely burdensome permitting 

requirements for minor plant projects, and stated that NSR should only apply to those projects 

that threaten the NAAQS. The commenter believes that reviewing such projects is the function 

of major NSR, and stated that EPA promulgated the major NSR significance thresholds for the 

express purpose of protecting the NAAQS and PSD increments. The commenter indicated that 

the purpose of section 110(a)(2)(C) of the Act and 40 CFR 51.160 – to protect and maintain the 

NAAQS – is fully satisfied by the major NSR significance thresholds.

The commenter (0032) went on to state that if EPA proceeds to adopt a minor NSR 

program, it should at most require a simple notification to the reviewing authority of minor 

modifications at major sources, allowing the reviewing authority to require further action if it has 

reason to believe that the proposed change will have an adverse impact on the NAAQS or 

increments. The commenter added that if minor NSR is indeed required and EPA is serious 

about leveling the regulatory playing field, we should apply the FIP to all areas of the country, 

and should require all state and tribal regulatory authorities to implement consistent minor NSR 

programs.

Response:

We agree with the commenters that endorsed the concept of developing a minor NSR 

program for Indian country under this final FIP to ensure that air resources in Indian country 

will be protected in the manner intended by the Act. Currently no tribes have been administering 

EPA-approved PSD5 or nonattainment major NSR programs and only a few tribes have been 

administering EPA-approved minor NSR programs.

6

 In addition, there has been no FIP in place 

to implement the nonattainment major NSR nor the minor NSR programs until now. Hence, 

there was a regulatory gap in Indian country. This final rule will allow us to address that gap 

and provide regulatory certainty to allow for environmentally sound economic growth in Indian 

country. By establishing this FIP for Indian country, we believe we will provide more 

consistency with the requirements and programs of the states and thus create a more level 

regulatory playing field for owners and operators within and outside of Indian country.

 5 However, 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. 6 For example, the St. Regis Mohawk Tribe has in place an EPA-approved TIP that includes provisions for 

minor NSR and synthetic minor permitting (see http://www.srmtenv.org/pdf_files/airtip.pdf). In addition, the Gila 

River Indian Community has developed a TIP that includes a minor NSR program (see 

http://www.epa.gov/region9/air/actions/gila-river.html). 
Review of New Sources and Modifications in Indian Country

Response to Comments

12

We do not believe, however, that the goal of balancing environmental protection and 

economic growth is being accomplished through waivers and exemptions that will only apply to 

Indian country, as one commenter suggested. Most of the exemptions and waivers being 

finalized under this rule are available for state major and minor NSR programs and they are 

consistent with how we have historically implemented the NSR program. 

We also disagree with the commenters who stated that the minor NSR program should 

not be any more lenient or any more stringent than the programs in surrounding areas or that 

we should level the regulatory playing field by applying the FIP to all areas of the country, 

including both states and tribes. As a general matter, it would be neither practical nor 

administratively feasible for us to develop and implement a separate program for each area of 

Indian country. In addition, we recognize that not all states and tribes face the same air quality 

issues. Therefore, we encourage states and tribes to develop their own minor source programs 

for incorporation into a SIP or TIP. If a tribe is developing its own program, this FIP can serve 

as one example of a program that meets the objectives and requirements of the Act. 

We are also not in agreement with those commenters who suggested that the minor NSR 

program is not necessary to protect the air resources in Indian country or that it should contain 

fewer requirements than the state minor NSR programs because much of Indian country’s air 

quality is often significantly below the levels of the NAAQS. Under the Act, EPA has a general 

obligation to ensure the protection of air quality throughout the nation, including throughout 

Indian country. This is particularly true in circumstances where EPA has determined that the 

implementation of a particular program by tribes is generally inappropriate or administratively 

infeasible. In addition, to protect air quality if tribal efforts do not result in adoption and 

approval of tribal plans or programs, we have expressed our intent, consistent with sections 

301(a) and 302(d)(4) of the Act, to promulgate without unreasonable delay such FIP provisions 

as are necessary or appropriate.

7

Finally, we disagree with those comments that mentioned that the program is too 

burdensome for minor sources, that the purpose of sections 110(a)(2)(C) of the Act and 40 CFR 

51.160 are fully satisfied by the major NSR significance thresholds, or that the provisions under 

40 CFR 51.160 and 51.161 are more comprehensive than necessary for minor NSR in Indian 

country today. Section 110(a)(2)(C) of the Act requires that every state program contain 

measures to regulate the construction or modification of “any stationary source” that may affect 

attainment of the NAAQS and this statutory requirement applies to all stationary sources, not 

just major sources. In addition, Title I of the Act requires that the NSR program be established 

to protect public health and welfare, national parks, and wilderness areas as new sources of air 

pollution are built or existing sources are modified and we believe that the minor source NSR 

program is an integral part of the NSR program. The minor source NSR program is designed to 

protect and maintain the NAAQS by specifically controlling those emissions sources that are not 

subject to the major NSR program because their emissions are below the major source NSR 

significance thresholds. Furthermore, we believe that the requirements under 40 CFR 51.160 

and 51.161 continue to be appropriate for inclusion in the minor source NSR programs as 

evidenced by the fact that we retained these requirements when we adopted the major source 

 7 See 63 FR 7265, 40 CFR 49.11.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

13

programs set forth in 40 CFR 51.160 and 51.161. Finally, state implementation plans are 

required to comply with the requirements at 40 CFR 51.160 and 51.161 and we believe the same 

requirements should be an integral part of a plan for Indian country. 

Other Comments:

One tribal commenter (0101.1) supports the rules in the existing FIP that currently 

applies to its reservation, which include 40 CFR 49.138 (registration of sources and reporting of 

emissions) and 40 CFR 49.139 (non-Title V operating permits). The commenter would support 

NSR FIP rules that offer additional (though not redundant) air quality protections.

Response:

We agree with the commenter who supports the FIP titled “Federal Implementation 

Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington 

(commonly known as the FARR Rule). Accordingly, in the final rule we do not have redundant 

air quality protections for the tribes located in these states.

2.1.2 Minor NSR Should Be Based on Surrounding State Programs

Comments:

Four state/local commenters (0018.1, 0034.1, 0045.1, 0051.1) indicated that the minor 

NSR programs for each area of Indian country should mirror the rules applicable in the adjacent 

state.

One of these commenters (0018.1) believes that regulation in Indian country should be 

based not only on the attainment classification of the Indian country lands, but also on the 

attainment classification of adjacent or affected areas under state jurisdiction. The commenter 

noted that there may not be sufficient monitoring within Indian country to establish a 

nonattainment classification, but yet the area may still be nonattainment or may impact adjacent 

nonattainment areas. The commenter also indicated that mirroring the state rules is necessary for 

environmental and health reasons and for economic reasons – to create a “level playing field” 

and prevent the perception of Indian country as a “pollution haven.” The commenter suggested 

that creating individual minor NSR programs for each area of Indian country could be carried out 

by the EPA Regional Offices because the adjacent or surrounding state area will have already 

drafted and implemented the rules that would be proposed for the Indian country areas.

Another of the state/local commenters (0034.1) stated that the “one size fits all” approach 

of a single minor NSR FIP for all Indian country will create inequities in each state that has an 

established minor source NSR program with differing threshold definitions or hazardous air 

pollutant (HAP) provisions. The commenter added that tying up permits in EPA’s 

Environmental Appeals Board (EAB), in the federal Court of Appeals, or in section 126-like 

actions is not in the best interest of any state, tribe, or company. The commenter went on to 

assert that the proposed FIP creates a program that is significantly less stringent on polluting 
Review of New Sources and Modifications in Indian Country

Response to Comments

14

sources than his state’s existing minor source and nonattainment major NSR permitting program, 

including the air toxics program, because it takes advantage of many simplifications (allowableto-allowable applicability for minor source permits, allowable plantwide applicability limits for 

minor sources, creating a roadmap by which offsets would not be required, vague control 

technology requirements for minor sources, etc.) that all work together in a common direction. 

The commenter believes that no single simplification, by itself, can be clearly criticized; 

however, use of all these options creates an exceedingly flexible program which could attract 

industry to the Indian country. The commenter asserted that creating this type of incentive to 

locate polluting sources in Indian country could constitute an actionable environmental justice 

claim, as could the reduced level of control being required by the less stringent FIP. To rectify 

this situation, the commenter believes that the federal program should create a permitting 

program for each area of Indian country that matches the level of stringency of the surrounding 

state(s) programs by extending the existing state programs to cover Indian country (or portions 

thereof) that lie within each state. The commenter suggested that authority for administration of 

such programs could reside with EPA, or with each state as a delegation of authority from EPA. 

The commenter added that individual tribes could create their own permitting program TIP for 

their lands.

The third state/local commenter (0045.1) strongly agreed that Indian country should not 

be viewed by industrial sources as a “pollution haven” from the regulatory requirements of NSR 

and other requirements. The commenter is particularly concerned about the specifics of the 

proposal relating to control technology, and believes that the proposed regulations will do little 

to address the goal of minimizing the basic inequities in air pollution regulation between those 

operating businesses off and on Indian country areas and will do little to clean the air in Indian 

country. The commenter encouraged tribes to adopt the minor NSR program of the closest 

neighboring state or local air agency, with EPA and the tribes working together to identify the 

appropriate minor NSR program for large reservations spanning more than one air agency 

jurisdiction. The commenter believes that the only reasonable method of creating parity between 

industrial sources in and outside Indian country is to hold operations in Indian country to the 

same standards that apply to operations in neighboring areas. The commenter added that with 

this approach, industry would be treated evenhandedly and residents in and around Indian 

country would benefit from the same public health protections as other Americans.

The fourth state/local commenter (0051.1) noted that we indicated in the proposal 

preamble that the Indian country minor NSR requirements will be stricter than the surrounding 

area’s in some cases and less strict in other cases. The commenter believes that this will only 

substitute one equity problem for another. While the commenter is encouraged that EPA is 

taking steps to apply NSR to minor sources of air pollution in nonattainment areas, the 

commenter believes that the only way to provide the stated goal of parity is to apply the same 

regulations that are applied in the neighboring air jurisdictions.

Response:

As stated previously, we disagree with those commenters that would like us to extend 

existing state programs to cover Indian country (or portions thereof) that lie within each state. 

States and tribes may face different air quality issues that a single or national program may or 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

15

may not be able to address. We also believe that, in most cases and in the absence of an EPAapproved program, it would be neither practical nor administratively feasible for us to develop 

and implement a separate program for each area of Indian country. We therefore encourage 

states and tribes to develop their own minor source programs for incorporation into their SIPs 

and TIPs. If a tribe is developing its own program, this FIP can serve as one example of a 

program that meets the objectives and requirements of the Act. 

In addition and as EPA has stated elsewhere, states generally lack the authority to 

regulate air quality in Indian country. See Alaska v. Native Village of Venetie Tribal 

Government, 522 U.S. 520, 527 fn.1 (1998) (“Generally speaking, primary jurisdiction over 

land that is Indian country rests with the Federal Government and the Indian Tribe inhabiting it, 

and not with the States.”), California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 

and n.18 (1987); see also HRI v. EPA, 198 F.3d 1224, 1242 (10th Cir. 2000); see also discussion 

in EPA’s final rule for the federal operating permits program, 64 FR 8251-8255, February 19, 

1999. Thus, it would be inappropriate and inconsistent with tribal sovereignty to impose state 

standards on adjacent areas of Indian country. 

Finally, EPA disagrees with the suggestion that this rule is inconsistent with 

environmental justice. The EPA defines environmental justice to mean fair treatment and 

meaningful participation in environmental decisionmaking for everyone, regardless of race, 

color, national origin, or income. This rule does that, by filling a “gap” in CAA coverage in 

Indian country, where there is currently no mechanism for permitting minor sources, thereby 

ensuring that those areas receive the benefits of coverage under the Act. Moreover, consistent 

with principles of environmental justice, the rule does not impose disproportionately high and 

adverse human health or environmental effects. It establishes a single program to provide air 

protection throughout Indian country that is more rigorous than the programs in some states, 

and less rigorous than the programs in others. The purpose of the minor source program is to 

ensure that sources of pollutants will not cause or contribute to a violation of a NAAQS. 

Because such standards are set at a level requisite to protect the public health, with an adequate 

margin of safety, compliance with the NAAQS is emblematic of a level of protection that does not 

impose disproportionately high and adverse effects on tribal or other populations.

 Comment:

One industry commenter (0022.1) recommended specifically that EPA should not disturb 

long-standing effective air regulatory programs administered by the State of Oklahoma. The 

commenter noted that Oklahoma has established practices and procedures, which the regulated 

community is familiar with and has come to know and rely upon in structuring their activities. 

The commenter added that Oklahoma’s air program is efficient, fosters economic development, 

is fair and reasonable, and is not overly burdensome on the regulated community. The 

commenter believes that the proposed rule would provide an unnecessary bureaucratic layer and 

diminish the effectiveness of the existing air program in Oklahoma. The commenter urged us to 

allow the states (especially Oklahoma) to implement any NSR program in Indian country to 

avoid inconsistencies, inefficiencies, and confusion within the regulated community.

Response:
Review of New Sources and Modifications in Indian Country

Response to Comments

16

As stated previously, states generally lack jurisdiction under the Act over facilities in 

Indian country and EPA generally excludes such areas from state programs approved under the 

Act. The EPA recognizes that the Safe, Accountable, Flexible, Efficient Transportation Equity 

Act of 2005 (SAFETEA) contains a provision (section 10211) relating to implementation of 

environmental regulatory programs under federal environmental laws, including the CAA, in 

Indian country in Oklahoma. However, to date, neither the State of Oklahoma, nor any Indian 

tribe in Oklahoma, has applied for EPA approval to administer either of the CAA programs 

included in this rulemaking for any area of Indian country. In the absence of an EPA-approved 

program, these FIPs will apply throughout Indian country, including Indian country in 

Oklahoma. In promulgating these FIPs, EPA is not acting on any potential request by the State 

of Oklahoma to administer any CAA or other regulatory program in Indian country, nor is EPA 

acting on any potential “treatment as a state” (TAS) application for an environmental 

regulatory program by any Indian tribe in Oklahoma. The EPA would address any such 

applications when necessary and on a case-by-case basis and in full consideration of the 

requirements of Section 10211 of SAFETEA. Section 10211 of the SAFETEA is thus not 

implicated in this rulemaking and is not a relevant consideration in EPA’s promulgation of the 

minor and nonattainment major NSR programs for Indian country, including Indian country in 

Oklahoma. 

2.1.3 Proposed Approach Is Not Appropriate for the Oil and Gas Sector

Comments:

Seven industry commenters (0021.1, 0022.1, 0030, 0035.1, 0039, 0052, 0081) and one 

tribal commenter (0036.1) believe that the proposed minor NSR program is not appropriate for 

the oil and gas sector in Indian country due to the uniqueness of oil and gas production facilities. 

The commenters believe that the proposed program would be more stringent than the state

permitting programs that apply to oil and gas extraction and production facilities outside of 

Indian country, and a number of the commenters offered the programs in Colorado and/or 

Wyoming as examples of state programs that address the oil and gas sector appropriately.

The commenters variously pointed to the following characteristics of the oil and gas 

sector which they believe make the proposed minor NSR program overly burdensome for the 

industry:

• The large number of individual locations that would be subject to permitting, 

including nearly every well that will be drilled.

• It is not possible for an operator to realistically predict the emissions associated with a 

well because emissions are related to production characteristics and volumes, neither 

of which is known for most wells at the time that they are drilled. 

• There is a high degree of consistency in the technology used to produce oil and gas. 

• Production from an individual well typically declines rapidly. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

17

• Production sites are not attended, are in remote areas, and are exposed to the extremes 

of weather.

The commenters believe that an expedited permitting system is necessary for the oil and 

gas sector. They suggested the following types of measures, which they indicated are common 

in state programs:

• De minimis thresholds below which a permit is not required.

• Presumptive Best Available Control Technology (BACT), rather than a case-by-case 

control technology review.

• A list of insignificant sources or categorically exempt sources or operations.

• General permits for oil and gas sector operation.

• Allowing the permit application to be submitted when a well begins production or 

operation (when actual emissions can be evaluated) to avoid the significant delays 

that would be caused by preconstruction permitting of minor sources.

• A provision to allow a permit to be withdrawn when the facility’s emissions fall 

below the permitting thresholds.

The tribal commenter (0036.1) believes that the proposed minor NSR rule might create a 

disincentive for operators to explore for and produce oil and gas in Indian country, putting the 

tribe at a disadvantage in the responsible development of its mineral wealth. The tribe believes 

that the proposed minor NSR program does not achieve the proper balance between the 

protection of air resources and economic development in Indian country, and sacrifices a 

measure of much-needed economic development for more stringent protection of air resources 

within Indian country than currently exists outside of Indian country. A number of the 

commenters believe that the proposed minor NSR program would put tribes at a competitive 

disadvantage when trying to develop their oil and gas resources, and two commenters (0036.1, 

0081) indicated that this would be in conflict with the intentions of Title V of the Energy Policy 

Act of 2005, the “Indian Tribal Energy Development and Self-Determination Act of 2005.”

Response:

In light of the comments received, we will develop a general permit specific for the oil 

and gas industry that will address many of the concerns expressed by these commenters.

2.1.4 Other Comments on the Proposed Approach to Minor NSR

Comment:

One of the industry commenters who opposes the entire minor NSR program (0032) also 

stated that our authority to promulgate a minor NSR program under section 110(a)(2)(C) of the 

Act extends, at most, to criteria pollutants (and their precursors) only. The commenter pointed 

out that the proposed minor NSR FIP would apply to any regulated NSR pollutant, which is not 

defined in the proposal and therefore relies on the definition in the PSD program. At 40 CFR 
Review of New Sources and Modifications in Indian Country

Response to Comments

18

52.21(b)(50), “regulated NSR pollutant” is defined to include essentially any pollutant regulated 

under the Act. The proposed minor NSR threshold table also includes entries for the non-criteria 

pollutants for which there are significant emissions rates in the PSD regulations. However, 

because our only claimed authority for a minor NSR program is section 110(a)(2)(C) of the Act, 

which allows “regulation of the modification and construction of any stationary source” only “as 

necessary to assure that national ambient air quality standards are achieved” (emphasis added), 

the commenter believes that we have statutory authority, at most, to regulate only criteria 

pollutants (and their precursors) under this provision of the Act.

Response:

While section 110(a)(2)(C) of the Clean Air Act (CAA) forms the basis for the core 

policies behind the federal minor NSR program in Indian country, EPA is issuing the final rules 

pursuant to its authority under sections 301(a)(1) and 301(d)(4) of the CAA and 40 CFR 49.11. 

Section 301(a)(1) grants the Administrator the authority “to prescribe such regulations as are 

necessary to carry out [her] functions under this chapter.” 42 U.S.C. 7601(a)(1). Under 

section 301(d)(4), when the Administrator determines that the treatment of Indian tribes as 

identical to States is inappropriate or administratively infeasible, the Administrator can 

“provide by regulation, other means by which the Administrator will directly administer such 

provisions [of the Clean Air Act] so as to achieve the appropriate purpose.” 42 U.S.C.

7601(d)(4). The Administrator exercised the authority granted by CAA section 301(d)(4) in 

promulgating 40 CFR 49.11, which provides that the Administrator shall exercise the 

discretionary authority granted under CAA sections 301(a) and 301(d)(4) to promulgate such 

federal implementation plan provisions “as are necessary or appropriate to protect air quality” 

in circumstances where a tribe either does not submit a tribal implementation plan or does not 

receive EPA approval of a submitted tribal implementation plan. 40 CFR 49.11(a). The 

Administrator has determined that it is appropriate to issue the final rules in order to “protect 

air quality” in Indian country.

The final rules are modeled after state programs established in response to CAA 

section 110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C). The final rules are not, however, required by 

section 110(a)(2)(C) and go beyond what that section requires of states by including nonNAAQS pollutants. The minor source permitting provisions of the final rules deal with two 

distinct types of sources, “synthetic minor” sources and “true minor” sources and EPA’s 

rationale for addressing non-NAAQS pollutants is different for each type of source. With regard 

to “synthetic minor” sources, the rules provide a mechanism whereby sources can obtain 

enforceable limits on their potential to emit (PTE) in order to avoid the application of major 

source requirements under the PSD program (part C of Title I of the CAA; 42 U.S.C. 7470 -

7479), the National Emission Standards for Hazardous Air Pollutants (NESHAP)/Maximum 

Achievable Control Technology (MACT) program (CAA section 112; 42 U.S.C. 7412) and/or the 

Title V operating permit program (CAA sections 501 – 506; 42 U.S.C. 7661 – 7661e). As such, 

EPA believes that it is appropriate to address a wide variety of emissions in the context of 

permitting synthetic minor sources. Our rationale regarding requiring “true minor” sources, 

i.e., sources with a PTE below the major source thresholds without having to obtain any 

restrictions on its PTE, to address an identified group of non-NAAQS pollutants is somewhat 

different. Because programs designed to protect air quality in Indian country are relatively 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

19

new, resulting in uncertainties regarding the types of pollutants that are likely to cause 

significant air quality degradation, and the sources of those pollutants, the Administrator has 

determined that it is appropriate to establish thresholds for certain non-NAAQS pollutants, as 

specified in the minor NSR threshold table in the final rules, and to require sources emitting 

those pollutants in amounts that exceed those thresholds to obtain a permit pursuant to the 

program established by the final rules. (The non-NAAQS pollutants included in the minor NSR 

threshold table are all regulated pursuant to one or more New Source Performance Standards 

(NSPS) promulgated pursuant to section 111(b) of the CAA, 42 U.S.C. 7411(b).) This 

requirement will enable EPA to understand, and where necessary, limit the quantity of these 

emissions before they can cause significant air quality degradation, either individually or 

cumulatively. 

Comment:

8

One tribal commenter (0043.1) believes that both of the proposed NSR programs are not 

consistent with the Tribal Authority Rule (TAR)

9 and its underlying principles (such as 

providing interested tribes with the resources to develop air programs, recognizing the 

differences between the policies and priorities of different tribes, engaging in ongoing 

consultation, and refraining from imposing requirements based on non-Indian practices without 

tribal consent). The commenter suggested two alternative approaches:

• Withdraw the rule as a nationwide FIP and promulgate regional or reservationspecific FIPs for those tribes who believe finalization of the proposed rule in its 

current form aligns with their economic development or environmental program 

priorities. For those areas of Indian country that are not covered by such regional or 

reservation-specific FIPs, EPA could commit to working with the tribes to encourage 

the development of more effective tribal programs, or to develop mutually agreeable 

FIPs in those areas where the tribes choose not to pursue their own programs.

• Incorporate an Opt-In or Opt-Out provision into the rule. This would enable 

individual tribes to determine whether the provisions of the rule are consistent with 

tribal goals and to opt in or out of coverage. For those tribes that do not opt in (or 

that opt out, as the case may be), EPA can work with them, as suggested in the first 

alternative, to determine how best to support tribal program development or to adopt 

mutually agreeable federal regulations.

Without addressing consistency with the TAR, a second tribal commenter (0097.1) suggested the 

two alternative approaches above for the proposed nonattainment major NSR rule, while 

expressing general support for the proposed minor NSR rule.

 8 Comments from Commenter 0043.1 apply to both the minor and nonattainment major NSR programs 

while the comments from Commenter 0097.1 apply only to the nonattainment NSR program. We respond to 

Commenter 0097.1 in this minor NSR section since the response to the comments from both commenters is the 

same. 9 The “Tribal Authority Rule” or “TAR,” refers to the final rule “Indian Tribes: Air Quality Planning and 

Management” (63 FR 7254, February 12, 1998), which is codified at 40 CFR part 49, subpart A.
Review of New Sources and Modifications in Indian Country

Response to Comments

20

In the event we choose not to withdraw the proposed rule as a nationwide FIP, one of the 

tribal commenters (0043.1) offered some comments regarding the preferred approach for the 

final rule, as follows:

• Encourage the development of tribal air programs and TIPs by including specific 

provisions that address how EPA will work with tribes to ensure adequate resources 

are available to assist the development and maintenance of tribal programs and to 

streamline the TIP review process. Tribal commenter 0097.1 also supported this 

approach.

• Continue to conduct consultation while the proposed rule is being finalized. Now that 

a document is available that tribes can assess with specificity, tribal leaders and 

environmental program personnel should be given additional consultation 

opportunities before the rule is finalized. 

• Continue to conduct consultation during implementation of the rule. It is important 

that the rule expressly provide a mechanism by which EPA, as long as it remains the 

reviewing authority, and regardless of whether any delegated authority is sought or 

granted, engage in consultation with each tribal government having jurisdiction over a 

facility for which EPA is rendering a permitting decision. The consultations would 

address such matters as the process by which permit applications will be considered, 

including the appropriate scope of public participation, and the specific regulatory 

criteria to be applied.

• Provide a mechanism by which affected tribal governments can provide input into 

decision-making regarding the appropriate regulatory criteria to apply on a regional 

or reservation-specific basis. Several of the topics in the proposed rule about which 

EPA sought comment relate to specific substantive technical or procedural regulatory 

provisions. The EPA should consider using the criteria in the final rule as guidelines 

that can be tailored by region or reservation after consultation with each potentially 

impacted tribal government.

Response:

Under the Act, EPA has a general obligation to ensure the protection of air quality 

throughout the nation, including throughout Indian country, when a tribe either does not have an 

approved TIP. Specifically, CAA sections 301(a) and 301(d)(4) provide the EPA Administrator 

with authority to promulgate such federal implementation plan provisions “as necessary or 

appropriate to protect air quality” in circumstances where a tribe either does not submit a TIP 

or does not receive EPA approval of a submitted tribal implementation plan. 40 CFR 49.11(a). 

In addition, the final TAR (see 70 FR 18075-18076) explains that EPA intends to use its

authority under the CAA “to protect air quality throughout Indian country” by directly 

implementing the CAA’s requirements where tribes have chosen not to develop or are not 

implementing a CAA program. 63 FR 7254, February 12, 1988; 40 CFR 49.11. Currently, no 

tribes have been administering EPA-approved PSD or nonattainment NSR programs and only a 

few tribes have been administering EPA-approved minor NSR programs. Therefore, the 

Administrator has determined that it is appropriate to issue these final rules in order to protect 

air quality in Indian country. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

21

 We also conducted consultation and outreach with tribes throughout the development of 

the rule and we have planned for conducting extensive consultation and outreach in 

implementing the rule. This consultation and outreach includes identification of available 

resources, training for all stakeholders, and support for developing delegations or TIPs. The 

EPA continues to be supportive of tribes developing their own air quality programs and

submitting programs to EPA for approval under the Act and the TAR. Among other things, EPA 

believes that the administrative delegation provision contained in the FIP will provide 

significant opportunities for interested tribes to become involved in the administration of the 

minor source program and to develop relevant expertise that may aid such tribes in ultimately 

developing their own programs. 

Finally, in those cases where the EPA is the reviewing authority, sources and EPA will 

inform the tribes regarding the permitting applications being submitted in Indian country, Any 

permitting decisions will be made in conformity with the goals and objectives of the CAA and 

after consideration of any public comments received, especially comments from the tribe where 

the source will locate. 

Comment:

One tribal commenter (0099.1) suggested an approach whereby a proposed source 

located on or adjacent to Indian country lands would be required to demonstrate compliance on 

both Indian country and non-Indian country lands, since pollution has no set boundary. The 

commenter also proposed to enact government-to-government relations on the issuance of 

permits. The commenter believes that tribal economic development should not be hindered 

whereby the tribe should receive preference (first choice) benefiting from the exemptions – if 

new source(s) are proposed to be located on tribal lands and cannot demonstrate compliance then 

the tribe should have the sole decision in allowing development of such source within its 

jurisdiction, not the EPA.

Response:

Sources only need to demonstrate that they are complying with the requirements that 

apply in the area where the proposed source or modification will be located. We encourage 

states and tribes, however, to work together in the issuance of permits either on state or Indian 

country lands, especially when the facilities will be located close to their respective geographic 

boundaries. Where EPA is the reviewing authority, it intends to consult with all affected tribes 

regarding permitting decisions, prior to making those decisions, and all such decisions will be 

made in conformity with the goals and objectives of the CAA.

2.2 Definition of “Minor Source”

Comment:

One tribal commenter (0036.1) and one industry commenter (0039) specifically indicated 

that they agree with the proposed definition of “minor source” as one whose PTE is lower than 
Review of New Sources and Modifications in Indian Country

Response to Comments

22

an applicable major source threshold. However, both commenters expressed concerns that the 

definition does not accommodate any de minimis exceptions or insignificant source categories or 

activities. These concerns are discussed further below in the appropriate sections of this 

document.

Response:

We agree with these commenters. Therefore, we have finalized a definition for minor

source that accommodates the language that refers to de minimis exemptions and insignificant 

categories or activities. This definition can be found under 40 CFR 49.152.

2.3 Definition of “Modification”

2.3.1 Allowable Emissions Basis

We proposed a definition of “modification” for the minor NSR program that would 

include “any physical or operational change at a 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 

definition includes some exemptions, which are discussed below in section 2.3.2.)

Supporting Comments:

Fourteen commenters, including seven tribal commenters (0020, 0031, 0033, 0036.1, 

0041, 0056, 0106.1), six industry commenters (0021.1, 0025.1, 0027.1, 0032, 0042, 0081), and 

one state/local commenter (0018.1), supported our proposal to base the definition of 

“modification” on the change in allowable emissions caused by a project. These supportive 

commenters generally favored the “allowable-to-allowable test” because it would be simpler for 

the sources in Indian country than the actual-to-projected-actual test that applies under the major 

NSR program. Two of the industry commenters (0027.1, 0081) expressed this forcefully, 

contrasting the ease of determining if a project is a permittable action under the allowable-toallowable test to the “quagmire that has become major NSR permitting (what with actual-topotential, actual-to-projected actual, netting, contemporaneous periods, offsetting, etc., etc.).” 

One of the tribal commenters (0031) expressed concern that a definition based on actual 

emissions would be too costly, time consuming, and complicated for minor sources locating on 

the tribe’s lands.

A number of the supportive commenters (0018.1, 0025.1, 0027.1, 0032, 0081) also 

indicated that the proposed allowable-to-allowable test is legal and that our interpretation of the 

applicable provisions of the Act is correct. Two of the supportive commenters (0025.1, 0036.1) 

also indicated that the proposed allowable-to-allowable test is consistent with state and local 

minor NSR programs that we have approved in SIPs pursuant to section 110 of the Act. One of 

these commenters (0025.1) went on to conclude that our interpretation of the statutory term 

“modification” will provide an equitable and consistent program across various jurisdictions for 

the purpose of minor NSR.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

23

The state/local commenter (0018.1) supported this approach with the caveat that all 

applicable limits on allowable emissions must be considered, not just hourly allowable 

emissions. For example, the commenter noted, the source may have taken a limit on monthly or 

yearly emissions, for purposes of defining required offsets, or becoming a synthetic minor.

Opposing Comments:

Twenty commenters, including nine tribal commenters (0026.1, 0038.1, 0044, 0050.1, 

0054, 0061.2, 0076, 0091.1, 0098.1), five private citizens (0016.1, 0092.1, 0093.1, 0094, 0096), 

three industry commenters (0028.1, 0072, 0081), two state/local commenters (0023.1, 0034.1), 

and one environmental group (0037.1), expressed opposition to the allowable-to-allowable test 

for modifications. The tribal commenters, private citizens, state/local commenters, and 

environmental group oppose the proposed test because they believe that it is less stringent than 

the alternative tests and/or that it is contrary to the Act and recent court decisions and therefore 

will be tied up in litigation. Most of these commenters prefer an applicability test based on 

actual emissions, although two (0037.1, 0061.2) prefer the actual-to-potential test and one 

state/local commenter (0023.1) suggested that the applicability test should mirror the 

neighboring state program. The industry commenters believe that adding the allowable-toallowable test for minor NSR would introduce unnecessary complexity. They would prefer to be 

consistent with major NSR and use the actual-to-projected-actual test. 

One of the opposing tribal comments (0098.1) expressed a number of common themes. 

The commenter is concerned that EPA’s focus is inappropriately placed on easing the regulatory 

burdens on minor sources and not with actually achieving the NAAQS. Under the allowable-toallowable test, the commenter believes, it is likely that a majority of modifications at existing 

sources will escape review. The commenter also expressed concern that the allowable-toallowable test will not hold up if challenged in court. Although the commenter understands the 

“slight technicality” that is the legal basis for our proposed definition of modification, the 

commenter does not see the benefit of miring the proposal in litigation over this issue, when the 

actual emissions standard is, arguably, more appropriate. The commenter maintained that what 

is best for Indian country is a test that is consistent in its application to major and minor sources, 

is legally defensible, and that protects air quality. 

One of the private citizens (0016.1) stated that EPA should clearly explain the legal and 

policy rationale for choosing to employ a definition of “modification” that is at odds with 

statutory definition and which seems, to the commenter, counterintuitive. Moreover, the 

commenter urged some explanation as to what effect changing this definition would have on the 

achievement of the NAAQS (which is the ultimate goal per section 110 of the Act) in those tribal 

areas that are not in attainment. The commenter believes that without this additional 

information, we may be acting in an “arbitrary or capricious” manner.

One of the state/local commenters (0023.1) believes that short-term emission increases 

should also be evaluated on a unit-by-unit basis to determine applicability. Without such an 

approach, the commenter believes that the potential exists for sources to escape evaluation in 

Indian country when similar source elsewhere would be reviewed and regulated under programs 
Review of New Sources and Modifications in Indian Country

Response to Comments

24

such as NSPS or NESHAP, leading to NAAQS and increments being adversely impacted outside 

of the Indian country. The commenter suggested that source category exemptions and short-term 

potential emission rate analysis are better methodologies to be used to determine minor NSR 

applicability.

The environmental group (0037.1) submitted extensive comments on this topic. The 

main points of the comments are summarized below:

• In proposing an allowables-to-allowables applicability approach for minor NSR in 

Indian country, EPA ignores the statutory purpose of the minor NSR program: to 

regulate “the modification and construction of any stationary source within the areas 

covered by the plan as necessary to assure that national ambient air quality standards 

are achieved.” Section 110(a)(2)(C) of the Act (emphasis added). The EPA also fails 

to consider that Indian country has been significantly lacking in air quality regulation 

for the last 35 years or more.

• The EPA must design the minor NSR regulation for sources and modifications in 

Indian country to be more inclusive. The EPA must consider its own longstanding 

requirements applicable to states in developing such NSR programs. Specifically, 

40 CFR 51.160(a) requires SIPs to include procedures for a state to determine 

whether “the construction or modification of a facility, building, structure, or 

installation or combination of these” would result in a violation of a control strategy 

or interfere with attainment or maintenance of a national standard.

• For many unregulated sources, an allowables-to-allowables applicability test is 

essentially equivalent to a potential-to-potential test. In 2002, EPA indicated that it 

did not support such a potential to potential comparison for major NSR. Specifically, 

in its Technical Support Document for its 2002 changes to the major source NSR 

regulations, EPA stated “[w]e agree with these commenters that a potential-topotential test for major NSR applicability could lead to unreviewed increases in 

emissions that would be detrimental to air quality.”

• As envisioned by Congress, the PSD and nonattainment major NSR programs are a 

subset of the general requirements for NSR specified in section 110(a)(2)(C) of the 

Act. This is how many states’ NSR regulations are set up – with more general NSR 

requirements applicable to all sources, and then specific PSD or nonattainment major 

NSR provisions for new and modified major sources. Accordingly, applicability to 

the minor NSR program in Indian country should be based on an approach that is 

more inclusive than applicability under the major source NSR program, rather than 

being less inconclusive and/or inconsistent with the major source NSR program.

• The EPA’s proposal for minor NSR will add confusion for both the regulated 

community and the permitting authorities and could result in source owners assuming 

that, if a modification is exempt from the minor NSR provisions for modifications to 

existing sources in Indian country, it will also be exempt from major NSR 

requirements.

• The EPA must devise an applicability mechanism that will both catch all 

modifications that should be subject to the major source NSR rules and also that will 

ensure that the many modifications that are now allowed to be exempt from major 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

25

NSR will still be reviewed under the minor NSR rule. In promulgating its 2002 

revisions to the major source NSR rules, EPA indicated in numerous instances that it 

assumed state and local minor NSR programs would provide for accountability and 

ensure protection of air quality for those modifications that would no longer be 

subject to major NSR permitting requirements.

• An actual-to-potential test is more appropriate in Indian country for defining whether 

a modification is subject to NSR. The commenter provided extensive information 

relating to this position.

• In the alternative, an actual-to-future-actual test could be acceptable, with appropriate 

safeguards. The suggested test is not the same as the actual-to-projected-actual test 

that applies to major NSR. The commenter provided a lengthy discussion of this 

option.

Response:

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 rule’s proposal (71 FR 48696), we evaluated the three basic types of applicability 

tests (actual-to-potential, actual-to-projected-actual, and allowable-to-allowable) and 

determined that the allowable-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 no actual emissions data, making the initial application of any test based on actual 

emissions virtually impossible. We believe that the resulting data gaps would make it virtually 

impossible to implement any test based on actual emissions, and we have rejected such a test for 

that reason. In addition, we understand that some state minor NSR programs use an allowableto-allowable test which would make this program for Indian country consistent with the 

programs in these states. 

Moreover and as we discussed in the proposal preamble, we believe that we have the 

discretion to use an allowable-to-allowable test for this minor NSR program because the 

statutory basis for minor NSR is section 110(a)(2)(C) of the Act. By contrast, parts C and D of 

Title I of the Act provide the statutory basis for the major NSR program and refer to 

section 111(a)(4) of the Act (the definition of “modification” for purposes of the 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. 
Review of New Sources and Modifications in Indian Country

Response to Comments

26

To address the concerns of those commenters who expressed that the allowable-toallowable 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 program10 we are finalizing with this 

rule to assess the feasibility of implementing an actual-emissions-based test. If our study 

concludes that adequate actual emissions data are available for minor sources, we will consider 

undertaking a rulemaking to adopt an actual-emissions-based test within 2 years from the end of 

the 5-year study period. 

Furthermore, because of our concern that some minor modifications at major sources 

might completely escape review under the minor NSR program as proposed, we are finalizing 

that the applicability of the minor NSR program to minor modifications at major sources be 

based on the actual-to-projected-actual test used in the applicable major NSR program. Thus, in 

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

modification (which would be subject to major NSR) based on the actual-to-projected-actual 

test, it is considered a minor modification and is subject to the minor NSR program if the 

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 the final rule’s preamble. The rationale for using 

an allowable-to-allowable test for modifications at 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 modifications at major 

sources. We believe this approach will be simpler and more efficient than an approach 

requiring the use of a second, allowable-to-allowable test for the minor NSR program. Hence, 

we are revising the definition of modification under 40 CFR 49.152 accordingly.

2.3.2 Exemptions from the Definition of “Modification”

The proposed definition provided the following the exemptions:

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

replacement (RMRR).

• An increase in the hours of operation or in the production rate is not considered an 

operational change unless such increase is prohibited under any federally-enforceable 

permit condition or other permit condition that is enforceable as a practical matter.

• A change in ownership at a stationary source is not considered a modification.

Supporting Comments:

Two industry commenters (0025.1, 0042) and one tribal commenter (0036.1) specifically 

endorsed the exemptions in the proposed definition of “modification.” One of the industry 

commenters (0042) added that RMRR should be better defined to alleviate any potential 

confusion and misinterpretations by the reviewing authority and the regulated community.

 10 We are requiring minor sources to register within 18 months from the effective date of this rule. See 

section IV.F of the final rule’s preamble for more details about the registration program. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

27

Another industry commenter (0032) also agreed with the RMRR exemption and 

encouraged us to provide a clear, objective definition of RMRR under the minor NSR program. 

Specifically, the commenter suggested that EPA should adopt for the minor NSR program 

provisions similar to the Equipment Replacement Provisions (ERP) that were promulgated but 

never took effect under the major NSR programs. See 68 FR 61268, October 27, 2003, vacated 

in New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) (NY II), pet. for cert. pending. The 

commenter asserted that the D.C. Circuit’s NY II decision is not relevant to the minor NSR 

program, for the same reasons that the court’s rejection of an “allowable-to-allowable” test for 

some activities under the major NSR rules is not relevant to the minor NSR program’s definition 

of “modification.” The commenter believes that, at a minimum, we should clarify that we do not 

intend to adopt under the minor NSR program a narrow reading of RMRR, and we should 

exclude from minor NSR activities that are commonly performed within the industry, even if 

they are performed infrequently or have not been performed before at a specific plant. See 57 FR 

32314, 32316, July 21, 1992; see also U.S. v. Ala. Power Co., 372 F.Supp.2d 1283 (N.D. Ala. 

2005); U.S. v. Duke Energy Corp., 278 F.Supp.2d 619 (M.D.N.C. 2003). Although RMRR is a 

contentious issue and the subject of extensive litigation, the commenter believes that this 

litigation, and the parties’ respective positions on this issue, have no bearing on the appropriate 

scope of minor NSR.

Opposing Comments:

One environmental group (0037.1) expressed serious concerns with the proposed 

exclusions for RMRR. The commenter believes that determining whether a maintenance, repair, 

or replacement project is “routine” for a particular industry can be time-consuming and 

controversial, as has been shown in numerous NSR enforcement actions. To avoid unnecessary 

controversy and delay in beginning the task of controlling minor source emissions in Indian 

country, the commenter believes that we should eliminate the RMRR exemption, so that 

applicability to modifications is governed simply by emissions changes. The commenter added 

that the ERP published at 40 CFR 51.166(y) and stayed by the Court in December 2003 are 

inconsistent with the Act, and should not be used in any part of the NSR program.

One private citizen (0095) expressed concern with the exemption for an increase in hours 

of operation. The commenter pointed out that daily NAAQS could be threatened by an increase 

in daily hours of operation, even if annual emissions do not increase.

Other Comments:

The environmental group (0037.1) did not contend that all increases in hours of operation 

or production rate should trigger minor NSR applicability, but stated that it is imperative that the 

exemption for increased production or hours of operation clearly state as a caveat that, for an 

increase in hours of operation or production rate to be exempt from being considered a 

modification, any such increase must not be associated with any physical or operational 

change(s) made at the emission unit(s) in question or anywhere else at the facility (i.e., must not 

be the result of a “debottlenecking”). The commenter believes that we must write this exemption 

more clearly in the Indian country minor NSR rule to facilitate compliance because the 
Review of New Sources and Modifications in Indian Country

Response to Comments

28

commenter has seen examples of facility owners who made source debottlenecking changes 

several years before increasing production and claimed subsequent exemption for increases in 

production.

Response:

Facilities perform RMRR to keep their facilities in proper working order, and these 

activities have been determined as exempt from the definition of modification under the major 

NSR rule provisions. As such, EPA believes it is prudent to carry over the RMRR exclusion for 

the minor NSR program in Indian country. The EPA has historically interpreted "the RMRR 

exclusion as limited to de minimis circumstances." New York v. EPA, 443 F.3d 880, 884 (D.C. 

Cir. 2006), cert. denied 127 S. Ct. 2127 (2007) (citing Alabama Pow. Co, v. Costle, 636 F.2d 

323 (D.C. Cir 1980)). Further, “in determining whether proposed work at an existing facility is 

‘routine,’ EPA makes a case-by-case determination by weighting the nature, extent, purpose, 

frequency and cost of the work, as well as other relevant factors, to arrive at a common-sense 

finding.” Memorandum from Don R. Clay, Acting Assistant Administrator, Office of Air and 

Radiation, U.S. EPA, “Applicability of Prevention of Significant Deterioration (PSD) and New 

Source Performance Standards (NSPS) Requirements to the Wisconsin Electric Power Company 

(WEPCO) Port Washington Life Extension Project” (Sep. 9, 1988) 

(http://www.epa.gov/region07/air/nsr/nsrmemos/wpco2.pdf). The EPA further explained these 

factors in Letter dated May 23, 2000 from Francis X. Lyons, Regional Administrator, Region V, 

U.S. EPA, to Henry Nickel, Counsel for the Detroit Edison Company, Hunton & Williams 

(http://www.epa.gov/region07/air/nsr/nsrmemos/detedisn.pdf). Given the case- and fact-specific 

analysis for determining whether an activity at a plant qualifies as RMRR, we do not believe it is 

necessary to further define RMRR in the context of creating an RMRR exemption for minor 

sources. 

We also do not believe it is necessary to adopt the ERP to define whether a modification 

at a minor source qualifies for the routine maintenance, repair, and replacement exemption, as a 

commenter suggested. The ERP was an impermissible exemption from CAA section 111(a)(4) 

that would have allowed certain physical changes to not be deemed to be modifications when 

they would cause an actual emission increase otherwise regulated under the major 

nonattainment NSR and PSD programs. The ERP would have substituted a test based on 

emissions limits for the actual emissions-based test required by CAA section 111(a)(4). For 

reasons described in the record, we are not restricted by the terms of CAA section 111(a)(4) 

when we establish a minor source program. However, an ERP for minor sources would be too 

complex to administer, requiring estimates of capital costs and engineering judgment as to the 

basic design parameters of the emission unit. We believe the thresholds applicable to minor 

modifications and the allowable emissions test established by this rule provide a simpler and 

more appropriate method for determining when an emission increase is a minor modification. 

Furthermore, we continue to believe that the hours of operation exemption is 

appropriate. Where necessary to account for variation in hours of operation, a combination of 

long-term and short-term emission limits may be required as part of any enforceable emission 

limitation. Therefore, increases in hours of operation or in the production rate will still allow 

for NAAQS protection as long as the increase is not prohibited under any federally-enforceable 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

29

permit condition (e.g., emission limit) or other permit condition that is enforceable as a practical 

matter. 

Under our major source NSR provisions, when a source undertakes a modification, it 

must consider, for applicability purposes, all emissions changes that result from the modification 

at the source. This includes both the emissions changes that are part of the project (i.e., the units 

undergoing the physical or operational changes), as well as emission changes from any units 

that are not part of the project. This latter category may include units that are 

“debottlenecked,” and therefore emit more pollution, as a result of the physical or operational 

change occurring elsewhere at the facility. However, for the purposes of the BACT analysis for 

a modified source, EPA only considers the units that are part of the project, which would not 

include debottlenecked units since they are not physically or operationally changed. As such, the 

commenter’s request to include the caveat “for an increase in hours of operation or production 

rate to be exempt from being considered a modification, any such increase must not be 

associated with any physical or operational change(s) made at the emission unit(s) in question 

or anywhere else at the facility (i.e., must not be the result of a “debottlenecking”)” is 

inconsistent with our debottlenecking policy for major NSR source permitting, and we do not see 

any reason to deviate from this policy for our minor source NSR provisions for Indian country. 

2.3.3 Other Comments on the Definition of “Modification”

Comment:

One industry commenter (0028.1) pointed out that the wording of the proposed definition 

of “modification” deviates from existing major NSR definition for “major modification.” The 

proposed definition refers to changes that would cause an increase in emissions, while the 

existing definition of “major modification” refers changes that would result in certain emissions 

increases. The commenter requested that we revise the proposed minor NSR definition to more 

closely track the existing major NSR definition. The commenter believes that this change would 

likely minimize confusion, maintain consistency between terms of art used in NSR programs, 

and enhance understanding of the program.

Response:

The definition of “modification” for this minor NSR program differs from the definition 

of “modification” under the major NSR program because we did not propose the concept of 

contemporaneous netting under the minor NSR program. Only emissions increases from the 

proposed physical or operational change are accounted for to determine if a source has

undergone a minor modification and not any other increases and decreases at the source that 

are contemporaneous with the particular change. Therefore, we believe it is appropriate to 

define modification, for the purposes of the minor NSR program, using the word “cause” instead 

of the words “result in” as the commenter suggested. 

Comment:
Review of New Sources and Modifications in Indian Country

Response to Comments

30

One tribal commenter (0054) is concerned that we have proposed to look at net 

increase/decrease for minor new source modifications on a yearly basis, while past NSR rules 

have required that net increase/decrease look at the past 5 years. The commenter suggested that 

EPA take the more conservative 5-year approach with minor new sources, as a precautionary 

measure to ensure that environmental creep from minor sources does not occur.

Response:

For the minor NSR program, we did not propose the concept of contemporaneous 

netting, as used in the major NSR program, and we are not finalizing the proposed project 

netting concept to be consistent with our position in the major NSR program (see final rule 

titled: “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review 

(NSR): Aggregation and Project Netting” January 15, 2009 (74 FR 2376)). Therefore, we are 

not considering a 5-year net increase/decrease look back period, as the commenter suggested. 

2.4 Process for Determining Whether a Proposed Change Is a 

Modification

2.4.1 Project Netting

Supporting Comments:

Eight commenters, including five industry commenters (0025.1, 0027.1, 0028.1, 0042, 

0081), two tribal commenters (0031, 0036.1), and one environmental group (0037.1) supported 

our proposal to allow “project netting” in the minor NSR program for determining whether a 

proposed project qualifies as a modification. These commenters frequently suggested that the 

project netting provision will provide incentive to sources to reduce emissions from existing 

units such that the net increase in allowable emissions will be less than minor NSR thresholds.

Some of these commenters (0027.1, 0036.1, 0037.1, 0081) also specifically stated that 

they are not in favor of including provisions for “contemporaneous netting” in the minor NSR 

rule. These commenters commonly indicated that contemporaneous netting is too complicated 

for minor NSR. The environmental group (0037.1) added that project netting could readily be 

accommodated in the actual-to-potential test that the commenter advocates.

One supportive industry commenter (0042) stated that contemporaneous netting should 

be allowed as an option. The commenter believes that the fundamentals of contemporaneous 

netting are generally much less complex than conducting a case-by-case control technology 

analysis, which is also required by this rule. If the underlying purpose of this rule is to ensure 

compliance with the NAAQS, the commenter asserted, previous emission reduction projects, 

even if not performed at exactly the same time, should be counted toward future projects. The 

commenter went on to point out that major sources are also subject to this ruling, and such 

sources do have a background in netting. The commenter believes that facilities should have the 

choice to undertake contemporaneous netting.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

31

Opposing Comments:

One state/local commenter (0023.1) stated that the proposed use of an annual emissions 

test with an ability to utilize project netting has the potential to result in projects that may have 

large emission thresholds to proceed without review. The commenter believes that short-term 

emission increases should also be evaluated on a unit-by-unit basis to determine applicability.

One industry commenter (0021.1) supported the use of contemporaneous netting rather 

than project netting for taking credit for emissions reductions. The commenter noted that 

although more complex than project netting, contemporaneous netting provides a manner for 

taking credit for emission reductions that may not related to a specific project but have occurred 

within a specified period of time.

Other Comments:

One tribal commenter (0099.1) who did not endorse project netting nevertheless opposed 

contemporaneous netting. The commenter took this stance because of concern about the 

immediate impacts of emissions on its membership, employees, and the environment, and stated 

that there should be no exceptions or allowances made for a facility’s past performance.

One industry commenter (0025.1) noted that the proposal preamble (71 FR 48713) 

indicates that to validate a project net emissions increase, a source must obtain allowable 

emissions limit(s) for existing emissions units involved in the project net. The commenter 

pointed out that the proposed regulatory provisions do not provide a permit mechanism to 

implement such allowable emissions other than minor NSR. If a source would still be required 

to obtain a minor NSR permit to make the new allowable emissions enforceable, the commenter 

asserted, other elements of the minor NSR program including control technology review 

requirements would also be triggered. The commenter believes that this approach clearly will 

not provide any incentive or benefit to the applicant for reducing emissions from existing 

emissions units or operations. Therefore, the commenter recommended that EPA provide an 

alternative permit mechanism to make emissions increases and decreases enforceable for projects 

involving netting, similar to the proposed administrative permit revision provisions for increases 

in allowable emissions under 40 CFR 49.159(f)(1)(v) or the synthetic minor permit provisions 

under 40 CFR 49.158. The commenters suggested approach would allow applicants proposing 

project netting to obtain a permit that will allow higher allowable emissions for some units (e.g., 

newly constructed or modified units) and decreases in the allowable emissions for other existing 

units.

Response:

We are not finalizing the “project netting” concept at this time to be consistent with our 

position in the major NSR program (see final rule titled: “Prevention of Significant 

Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation and Project 

Netting” January 15, 2009 (74 FR 2376)).
Review of New Sources and Modifications in Indian Country

Response to Comments

32

2.4.2 Other Comments on the Modification Applicability Test

Comment:

Two industry commenters (0025.1, 0032) expressed concern related to the allowable-toallowable test for unpermitted existing emissions units undergoing physical or operational 

changes. The proposal indicated that the emissions increase will be the allowable emissions after 

the change minus the PTE prior to the change. The commenters stated that based on the 

definitions of these terms in the proposed rule, for an existing unpermitted emissions unit 

(assuming no SIP, NSPS, etc. is applicable), allowable emissions after the change will be the 

uncontrolled PTE (since there are no applicable emissions limits that are enforceable as practical 

matter). Therefore, the commenters believe that in this situation, the emissions increase would 

be calculated by subtracting the uncontrolled PTE before change from the uncontrolled PTE after 

the change. The commenters requested that we clarify this further in the preamble to the final 

minor NSR rule.

One of these commenters (0032) also stated that proposed Flowchart 6 does not indicate 

what to do if a source does not have an allowable limit. The commenter recommended that we 

modify Flowchart 6 to indicate that if the unit’s post-change PTE does not exceed the pre-change 

PTE by the minor NSR threshold, minor NSR is not triggered.

Response:

We agree with these commenters. Allowable emissions after the change will be 

uncontrolled PTE for an existing unpermitted emissions unit that does not take an enforceable 

limitation on its PTE after the change. We have clarified this concept in the preamble of this 

final rule. 

We did not receive strong support for the proposed flowcharts and therefore, we are not 

finalizing these flowcharts in this final rule.

Comment:

One industry commenter (0032) noted that Flowcharts 3 and 5 both include a box stating, 

“Does physical change constitute a major SS [stationary source] by itself?” The commenter 

believes that this language is unclear and encouraged EPA to clarify.

Response:

We did not receive strong support for the proposed flowcharts and therefore, we are not 

finalizing these flowcharts in this final rule.

Comment:

One industry commenter (0032) recommended that we explicitly provide that a physical 

change or change in the method of operation at a major emitting facility that results in no net 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

33

emissions increase under the “major modification” rules applicable under PSD and 

nonattainment NSR is not a “modification” at all and thus is not subject to minor NSR. 

Response:

We have finalized provisions in the final rule that state that if a proposed modification at 

an existing major source does not qualify as a major modification (which would be subject to 

major NSR) based on the actual-to-projected-actual test, it is considered a minor modification 

and is subject to the minor NSR program if the net emissions increase from the actual-toprojected-actual test is equal to or exceeds the minor NSR thresholds listed in Table 1 of section 

IV.A.3 of the final rule’s preamble. Therefore, a physical change or change in the method of 

operation at a major emitting facility that results in no net emissions increase under the “major 

modification” rules applicable under PSD and nonattainment NSR would not be a modification 

under the minor NSR program because the net emissions increase will not exceed the minor NSR 

thresholds under this final rule. 

Comment:

One tribal commenter (0036.1) is concerned that language regarding a physical or 

operational change that may be subject to the proposed minor NSR program, even if it is not 

classified as a modification, is unnecessarily confusing and potentially quite burdensome. The 

commenter noted that the proposal preamble stated that “if a proposed change in emissions at 

any emissions unit would exceed a permitted allowable emissions limit for that unit, [the 

operator] must apply to revise the existing permit limit before [it] may implement the change” 

(71 FR 48706). The commenter indicated that this language forces a two-step process which is 

more time-consuming, burdensome and generally ill-suited to the needs of the oil and gas sector. 

Response:

We would like to clarify that the language the commenter is referencing is in regards to 

administrative permit revisions and these revisions can only 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. See 40 CFR 49.159(f) for more information about administrative permit revisions. 

Comment:

One state/local commenter (0034.1) noted that if a project nets to an exempt emissions 

increase [generally less than 10 tons per year (tpy)], any individual emissions unit that is part of 

the project may have its emission limit revised upwards as an administrative amendment. The 

commenter is concerned that there appears to be no preclusion against sham permitting in the 

proposed minor source permitting program. Specifically, the commenter believes that a facility 

could break up a single project into multiple smaller projects such that each smaller project falls 

below the exempt emissions increase, allowing a project that should have undergone a full 

preconstruction permitting review to make changes to the existing permit with only 

administrative amendments. The commenter believes that the regulations should preclude such 
Review of New Sources and Modifications in Indian Country

Response to Comments

34

actions. The commenter suggested that the rules require the minor NSR thresholds to apply to 

the combination of all affected emission units, as defined in the regulations.

Response:

We understand 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 source NSR or under 

this program. For example, this case could be one where a source introduces a new coating to a 

process line that will increase the emissions of that unit but the emissions increases from the 

source will not trigger the minor NSR requirements. 

Although this type of change does not trigger the major or the minor NSR thresholds, we 

continue to believe that we need to account for these changes in emissions in the permit to know 

the source’s current allowable emissions and to ensure that the source is complying with the 

applicable requirements. Therefore, an administrative permit revision can be used when the 

increase in a unit’s annual allowable emissions limit for a regulated NSR pollutant is not subject 

to major or minor NSR. Similarly, other 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 the air pollutants emitted by your source will be brought to the attention of 

your reviewing authority. 

In response to the concern regarding sham permitting, where a facility might break up a 

project into multiple small projects, the reviewing authority can ask the source to justify why all 

the multiple small projects shall not be considered a single project. 

2.5 Minor NSR Thresholds

2.5.1 General Comments on Thresholds

Supporting Comments:

Eight commenters, including four from industry (0025.1, 0035.1, 0039, 0072), two tribal 

commenters (0026.1, 0036.1), and two private citizens (0016.1, 0094), specifically supported the 

establishment of minor NSR thresholds in the rule. A number of these commenters had 

additional comments on some aspects of the proposed thresholds, which are summarized below 

in the appropriate sections of this document. No comments were received that specifically 

opposed minor NSR thresholds.

Response:
Review of New Sources and Modifications in Indian Country 

Response to Comments 

35

We agree with those commenters that endorsed the development of minor NSR 

thresholds. Therefore, in this final rule we are promulgating minor NSR thresholds.

Comment:

Four of the supportive commenters (0035.1, 0036.1, 0039, 0072) specifically endorsed 

setting the minor NSR thresholds in terms of a mass emission rate in tpy, rather than based on air 

quality impacts. However, another of the supportive commenters (0016.1) believes that we 

should formulate a threshold rule that is simpler to apply for more people. The commenter 

asserted that determining whether a source is exempt under the “emission rates in tpy” 

methodology laid out in proposed 40 CFR 49.153(a) would seem to require a degree of technical 

expertise (e.g., engineering analyses employing mass balance equations, etc.) beyond the typical 

small businessperson.

Response:

We agree with the commenters that would like us to establish minor NSR thresholds in 

terms of mass emission rates in tpy. Therefore, we are finalizing the minor NSR thresholds on a 

tpy basis. We understand that these mass emissions rates require some technical expertise and 

we plan to have tools and resources available to help minor sources comply with these limits as 

needed or requested. 

Comment:

One industry commenter (0021.1) indicated that EPA needs to adjust periodically the 

minor NSR thresholds, utilizing recent monitoring data, to maintain the NAAQS. The 

commenter suggested that, as monitoring data become available within Indian country, we 

should exercise our responsibility for reviewing new information and adjusting minor NSR 

thresholds as warranted for ensuring continuous compliance with the NAAQS.

Response:

We agree with the commenter and intend to revise the thresholds, if necessary, based on 

recent monitoring data. 

2.5.2 Level of the Proposed Thresholds

All Thresholds Should Be Less Stringent:

Six industrial commenters (0022.1, 0025.1, 0028.1, 0029.1, 0048.1, 0072) and one tribal 

commenter (0097.1) asserted that all of the proposed minor NSR thresholds should be less 

stringent. Two of these commenters (0022.1, 0048.1) indicated that the proposed thresholds are 

well in excess of those in the state minor NSR programs where they do business (Oklahoma and 

New Mexico, respectively). Commenter 0022.1 stated that Oklahoma’s program adequately 

addresses minor sources without being too burdensome on the regulated community, and that the 
Review of New Sources and Modifications in Indian Country

Response to Comments

36

proposed thresholds will create a significant, unnecessary burden on small businesses and the 

reviewing authority. Commenter 0048.1 noted that the minor NSR thresholds in New Mexico 

are 25 tpy for all pollutants except lead, and suggested that the minor thresholds align with the 

already established applicability thresholds for a major modification.

One of these industrial commenters (0029.2) stated that when due consideration is given 

to the typical, low levels of ambient air pollutants in Indian country, the thresholds for minor 

NSR in Indian country could be significantly higher than the proposed values. Another of the 

commenters (0025.1) stated that EPA’s analysis concluded that increasing minor NSR thresholds 

generally had a small effect on the percentage of total emissions and the percentage of sources 

that would be exempt from minor NSR. On this basis, the commenter recommended that we 

raise the minor NSR applicability thresholds for all regulated NSR pollutants [with the possible 

exception of volatile organic compounds (VOC)] to reduce the administrative burden of 

obtaining minor NSR permits and performing control technology evaluations for very small 

sources that are not significant contributors to the total emissions.

One of the industrial commenters (0028.1) stated that, based upon his company’s 

experiences with minor NSR projects, the proposed thresholds do not afford sufficient flexibility 

for major sources to undertake minor modifications that would result in an emissions increase. 

The commenter believes that the proposed thresholds are likely to result in numerous permit 

requests that consume limited resources of the regulated entity and of the reviewing authority. 

The tribal commenter (0097.1) similarly indicated that EPA may not currently be staffed to 

handle the substantial number of new permit applications that will result from the proposed 

thresholds, which the commenter believes will trigger permit review for almost everything, 

particularly in nonattainment areas. The commenter stated that sources with emissions less than 

20 to 25 percent of the major source thresholds are likely not worth pursuing for the amount of 

time and effort necessary for permitting and the associated administrative burden.

Thresholds for VOC Should Be Less Stringent:

Six industrial commenters (0021.1, 0027.1, 0030, 0035, 0039, 0081) and one tribal 

commenter (0036.1) believe that the proposed threshold for VOC is too stringent. These 

commenters generally expressed concern that the VOC threshold would be unduly burdensome 

for oil and gas operators in Indian country because a whole host of minor sources and activities 

would be subject to individual permits in Indian country, which are typically not required outside 

of Indian country. In addition to adding to the list of excluded emissions units and activities for 

such facilities (see section 2.6 below), most of the commenters asked that we increase the 

threshold for VOC in attainment areas to 10 tpy and in nonattainment areas to 5 tpy. The 

commenters generally noted that this would promote consistency across NSR criteria pollutant 

categories and would make the threshold for VOCs equivalent to that of the nonmethane organic 

compounds for solid waste landfills in attainment areas. Two of the commenters (0027.1, 0081) 

analyzed the figures we presented in Table 2 of the proposal preamble to conclude that raising 

the threshold to 10 tpy would bring the percent of unregulated sources of VOC more in line with 

that of the other criteria pollutants.

Thresholds for Carbon Monoxide (CO) Should Be Less Stringent:
Review of New Sources and Modifications in Indian Country 

Response to Comments 

37

Two of the industrial commenters (0025.1, 0072) who believe that all of the minor NSR 

thresholds should be less stringent are especially concerned that the threshold for CO is too 

stringent. These commenters pointed out that operation of combustion units often involves a 

trade-off between nitrogen oxides (NOx) and CO emissions. That is, combustion optimization 

for NOx emissions reduction often results in an increase in CO emissions and vice versa. The 

commenters noted that under the major NSR regulations for attainment areas, the significant 

emissions rate threshold and significant impact level for ambient air quality are significantly 

higher for CO in comparison to NOx. Also, based on EPA guidance and regulatory provisions 

relating to Pollution Control Projects under major NSR, reduction and control of NOx emissions 

is considered more beneficial than any collateral increase in CO emissions. In addition, 

stationary sources (both major and non-major) are not significant contributors to the overall CO 

emissions according to EPA’s website, which indicates that on-road vehicles are the major 

contributor to CO emissions (nearly 56 percent) nationwide and in urban areas this contribution 

is even higher (85-95 percent). The commenters recommended that for purpose of consistency 

and avoiding the administrative burden of permitting very small sources of CO emissions, EPA 

should raise the minor NSR applicability threshold for CO in relation to other regulated NSR 

pollutants, which will also avoid requiring application of control technology at very small 

sources of CO emissions that may cause increased NOx emissions.

Response:

After consideration of comments received and further evaluation of the proposed 

thresholds, we are finalizing the minor NSR thresholds as proposed, except for the NOx and VOC 

thresholds in extreme ozone nonattainment areas. We are amending the proposed “0” tpy NOx

and VOC thresholds for the minor NSR program in extreme ozone nonattainment areas because 

we believe that these thresholds, while required under section 182(e)(2) of the Act and 

appropriate as significance levels for major sources located in extreme ozone nonattainment 

areas, are not appropriate for minor sources. We believe that a “0” tpy threshold for 

modifications at minor sources in extreme nonattainment areas will place tribes at a competitive 

disadvantage with surrounding areas since a “0” tpy threshold will require all modifications at 

minor sources in these areas to obtain a permit before beginning construction. Therefore, we 

are finalizing minor NSR thresholds for NOx and VOC in extreme nonattainment areas as 5 and 

2 tpy respectively. 

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. 
Review of New Sources and Modifications in Indian Country

Response to Comments

38

In addition, we believe that such thresholds are included in many of the minor NSR 

programs, which will allow us to begin leveling the playing field with the surrounding state 

programs, and will result in a more cost-effective program by reducing the burden on sources 

and reviewing authorities.

Nevertheless, to address any 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 the final rule preamble for more information)

and will consider changing the minor NSR thresholds as appropriate.

11

Thresholds for Modifications Should Be More Stringent:

One environmental group (0037.1) asserted that we should promulgate lower thresholds 

for defining whether modifications are subject to the minor NSR program. The commenter 

noted that we proposed thresholds that would apply to both new construction and to 

modifications. The commenter believes that these minor source thresholds are much too high for 

defining whether a modification to an existing minor or major source should trigger applicability 

to the minor NSR program, and recommended that we promulgate separate, lower emission 

thresholds for modifications. 

The commenter indicated that a review of the six states in EPA Region VIII found that 

four out of the six states’ minor source NSR regulations would include modifications that would 

result in any increase in emissions or in the emissions of a pollutant not previously emitted. (The 

other two states had de minimis thresholds for defining when modifications to existing sources 

would be subject to minor NSR requirements, although neither of those states’ de minimis rules 

has been approved by EPA as part of the SIP.) The commenter observed that many benefits to 

air quality protection and management can be gained from an inclusive definition of 

modifications subject to the minor NSR permitting program, including the ability for the 

reviewing authority to monitor modifications for compliance with major source NSR permitting 

requirements and the ability to track emission changes at existing sources for use in air quality 

planning/regulation development efforts. The commenter suggested that we should strongly 

consider requiring all modifications that would increase emissions, on an actual-to-potential 

basis, to trigger applicability to the minor NSR program in Indian country.

At the minimum, the commenter added, EPA should promulgate modification thresholds 

in a similar manner to how we set the significance thresholds for major modifications; that is, 

modification emission thresholds should be 0-40 percent (or 100 percent in the case of CO) of 

the minor source applicability threshold specified in Table 1 of the proposed rulemaking, 

depending on the pollutant. The commenter indicated that, for example, this would mean in an 

attainment area, the NOx and sulfur dioxide (SO2) modification thresholds should be at 

maximum, 40 percent of the minor source threshold in Table 1, or 4 tpy, similar to how the 

major modification emission threshold in the major source regulations is 40 tpy or 40 percent of 

the 100 tpy major source threshold. 

 11 We might also consider proposing thresholds for greenhouse gases in accordance with any future 

rulemakings to address small greenhouse gas sources as outlined in the rule titled: “Prevention of Significant 

Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514).
Review of New Sources and Modifications in Indian Country 

Response to Comments 

39

Response:

We do not believe that we need to finalize more stringent minor NSR thresholds for 

modifications or that these thresholds should be set in a similar manner to how we set the 

significance thresholds for major modifications. As we stated in the proposal, we continue to 

believe that the sources with emissions below the thresholds we proposed will be inconsequential 

to attainment and maintenance of the NAAQS based on national source distribution analysis in 

the proposal (71 FR 48702).

Nevertheless, based on our concern that some minor modifications at major sources 

might completely escape review under the minor NSR program based on the proposed 

allowable-to-allowable test, we are finalizing that the applicability of the minor NSR program to 

minor modifications at major sources be based on the actual-to-projected-actual test used in the 

applicable major NSR program. Thus, in the final rule, if a proposed modification at an existing 

major source qualifies as a major modification, it will be subject to the thresholds under the 

major NSR program. If the proposed modification does not qualify as a major modification 

(which would be subject to major NSR) based on the actual-to-projected-actual test, it is 

considered a minor modification and is subject to the minor NSR program if the net emissions 

increase from the actual-to-projected-actual test is equal to or exceeds the minor NSR thresholds 

listed in Table 1 of section IV.A.3 of the final rule’s preamble. For all other minor 

modifications, we believe that the minor NSR thresholds listed in Table 1 of Section IV.A.3 of the 

final rule’s preamble are appropriate for these purposes. 

Comment:

One private citizen (0094) stated that distinguishing nonattainment areas from attainment 

areas in setting the threshold is vital to success of this method, as it will deal with air quality 

standards more appropriately.

Response:

As proposed and as suggested by this commenter, we are finalizing thresholds that are 

more stringent for nonattainment areas than attainment areas. We believe that this approach

will help us bring nonattainment areas into attainment. 

Comment:

One industrial commenter (0025.1) indicated that we should clarify that the applicability 

threshold for particulate matter less than 2.5 micrometers (μm) (PM2.5) noted in the minor NSR 

thresholds table applies to direct PM2.5 emissions and does not represent the contribution of other 

precursors such as SO2 or NOx to ambient PM2.5 formation. The commenter believes that 

emissions of precursors for PM2.5 formation for which minor NSR applicability thresholds are 

specified should be subject to those respective thresholds and not the direct PM2.5 emissions 

threshold.
Review of New Sources and Modifications in Indian Country

Response to Comments

40

Response:

We agree with this commenter. Therefore, we want to clarify that the PM2.5 threshold for 

applicability purposes applies to direct PM2.5 emissions, and does not represent the contribution 

of its precursors (e.g., SO2 or NOx).

Comment:

One industrial commenter (0025.1) noted that we proposed stringent applicability 

thresholds for minor sources locating in “extreme” ozone nonattainment areas. Because only 

VOC and NOx emissions are considered precursors for the formation of ozone, the commenter 

recommended that for “extreme” ozone nonattainment areas, we should define applicability 

thresholds for VOC and NOx emissions only.

Response:

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 

modifications at major sources located in extreme ozone nonattainment areas, are not 

appropriate for minor sources. We believe that a “0” tpy threshold for modifications at minor 

sources in extreme nonattainment areas will place tribes at a competitive disadvantage with 

surrounding areas since a “0” tpy threshold will require all modifications at minor sources in 

these areas to obtain a permit before beginning construction. Therefore, we are finalizing minor 

NSR thresholds for NOx and VOC in extreme nonattainment areas as 5 and 2 tpy respectively. 

As a result, we do not define different thresholds for extreme ozone nonattainment areas for any 

pollutants in the final rule.

2.5.3 Methodology Used To Develop the Proposed Thresholds

Comment:

Three industrial commenters (0029.2, 0032, 0042) believe that our methodology for 

selecting minor NSR thresholds is inadequate. These commenters indicated that, because the 

purpose of the minor NSR program under section 110 of the Act is to protect the NAAQS and 

PSD increments, the selection of minor NSR thresholds should be based on an analysis of air 

quality impacts. They do not believe that we have performed the necessary analysis to support 

our proposal preamble statement that “[t]hese thresholds would prevent stationary sources that 

make negligible contributions to pollution from being regulated under this rule.”

One of these commenters (0029.2) added the methodology fails to acknowledge the 

particular characteristics of much of Indian country, i.e., relatively low levels of ambient 

pollutants and low emissions densities of stationary sources. Although the commenter offered no 

specific data on this point, the commenter believes it is reasonable to believe that the air quality 

and emissions densities of most states are appreciably different from that of Indian country and 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

41

questioned our reliance on states’ minor NSR thresholds as guidance for setting those values for 

Indian country.

Another of the commenters (0032) stated that the threshold for “insignificant activities” 

under Title V is 2 tpy, below which the activity is not subject to regulation. So, for example, an 

emissions unit with less than 2 tpy of PM2.5 emissions would be considered insignificant for 

Title V purposes. In comparison, the commenter pointed out, under the proposed thresholds an 

increase of 3 tpy PM2.5 (1 tpy more than the Title V insignificance threshold) sufficiently 

threatens the NAAQS that preconstruction review is required and control technologies, 

potentially including BACT, may be warranted. The commenter also noted that EPA Region IX 

recently issued a draft air permit for a new coal-fired power plant on the Navajo Nation in which 

Region IX concluded that the total emissions from the entire plant will not threaten the NAAQS, 

even though the project estimated emissions are 3,325 tpy NOx, 5,529 tpy CO, 3,319 tpy SO2, 

and 1,120 tpy of particulate matter less than 10 μm (PM10). 

The third of these commenters (0042) stated that the analysis in the proposal preamble of 

the distribution of sources and emissions under the proposed minor NSR thresholds does not 

show how these levels will protect air quality, but rather, evaluates the potential workload of the 

regulatory agency that will be responsible for reviewing the applications.

A fourth industrial commenter (0072) also believes that our analysis does not adequately 

support the proposed thresholds. The commenter stated that a comparison of the range of state

minor NSR thresholds is not informative for this rulemaking, since the thresholds used by states 

may reflect strategies for regulating a wide variety of air quality issues, and states in different 

parts of the country develop rules based on the makeup of sources located there. The commenter 

also said that the proposal preamble appears to indicate that we proposing to regulate a larger 

number of minor VOC sources (and larger portion of emissions) than for other pollutants. The 

commenter recommended that we set the minor NSR thresholds based on a percentage of the 

corresponding major NSR thresholds for a given area, which would allow for a variation in 

minor NSR thresholds for nonattainment areas while ensuring consistency in regulation of 

different pollutants.

Two industry commenters (0039, 0081) and three tribal commenters (0036.1, 0043.1, 

0097.1) also expressed concern that our source distribution analysis relied on outdated 

information that does not reflect the current mix of minor sources in Indian country. The 

commenters are concerned that the final 1999 National Emission Inventory (NEI), extrapolated 

to 2001, is nearly a decade old. Three of the commenters (0036.1, 0039, 0081) specifically 

stated that these inventory data do not reflect the growth in minor sources in the oil and gas 

exploration and production sector that has occurred in recent years. As a result, these 

commenters believe that the proposed thresholds will not prevent stationary sources with 

insignificant emissions from being regulated under the minor NSR program. The commenters 

recommended that the final rule include categorical exemptions, such as for storage of produced 

water and many other oil and gas sector activities that individually and in the aggregate have 

insignificant emissions which should not threaten maintenance of the NAAQS in Indian country, 

as well as a VOC threshold of 10 tpy.
Review of New Sources and Modifications in Indian Country

Response to Comments

42

Response:

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. 

In addition, we believe that such thresholds are included in many of the minor NSR 

programs in surrounding states, which will allow us to begin leveling the playing field with the 

surrounding state programs, and will result in a more cost-effective program by reducing the 

burden on sources and reviewing authorities.

Nevertheless, to address any 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 the preamble to the final rule for more 

information) and will consider changing the minor NSR thresholds as appropriate.

12

2.5.4 Other Comments on the Proposed Thresholds

Comments Related to HAPs:

Four tribal commenters (0033, 0038.1, 0056, 0106.1) and one private citizen (0093.1) 

requested that thresholds for HAPs be included in the minor NSR rule. One additional tribal 

commenter (0061.1) asked that the minor NSR program regulate HAPs, although the commenter 

did not specifically request applicability thresholds for HAPs. The commenters would like the 

minor NSR program to regulate HAPs because of the known health effects of these compounds. 

One of the commenters stated that HAPs generally have limited transport and deposit near the

facility, not hundreds of miles away, directly affecting the local environment and those who 

reside in the affected area. Another of the commenters noted that his tribe has issued a fish 

consumption advisory due to elevated mercury levels in fish which, according to their research, 

largely results from atmospheric deposition of mercury.

In addition, one industry commenter (0021.1) stated that we should utilize the de minimis

levels for various constituents previously established under section 112 (g) of the Act. 

 12 We might also consider proposing thresholds for greenhouse gases in accordance with any future 

rulemakings to address small greenhouse gas sources as outlined in the rule titled: “Prevention of Significant 

Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514).
Review of New Sources and Modifications in Indian Country 

Response to Comments 

43

Response:

We disagree with these commenters and do not believe that it would be appropriate to 

establish thresholds for HAPs in the context of the minor source NSR program. Section 112 of 

the Act establishes a comprehensive program for addressing emission of HAP including a

preconstruction program for major sources of HAP emissions. Specifically, section 112(g)(B) 

prohibits the construction or reconstruction of a major source of HAP unless the Administrator

(or the State) determines that the maximum achievable control technology emission limitation 

under section 112 for new sources will be met and this determination is made on a case-by-case 

basis where no applicable emission limitations have been established by the Administrator. 

Thus, Congress has already established the threshold for requiring preconstruction review of 

new sources of HAP emissions. In addition, our definition of regulated NSR pollutant under 40 

CFR 51.166(b)(49)(iv) and 52.21(b)(50)(iv) specifically excludes any or all HAPs either listed in 

section 112 of the Act or added to the list, unless the listed HAP is also regulated as a constituent 

or precursor of a general pollutant listed under section 108 of the Act. 

Comments Related to PM2.5:

One industry commenter (0029.2) observed that the proposed rule identifies particulate 

matter measured as “total suspended particulate matter” (PM) as a regulated NSR pollutant by 

way of inclusion of a minor NSR threshold for PM. The commenter strongly suggested that the 

time is ripe for EPA to acknowledge that PM should not be considered a regulated NSR 

pollutant. The commenter noted that by 1995 we had withdrawn the NAAQS for PM, thereby 

leaving but one NAAQS for particulate matter, i.e., the NAAQS for PM10. At that time EPA 

issued a guidance memorandum entitled “Definition of Regulated Pollutant for Particulate 

Matter for Purposes of Title V.” Attached to that memorandum was an EPA-prepared discussion 

paper entitled “Regulated Air Pollutant: Particulate Matter,” stating that “at this time, PM-10 is 

considered to be the only regulated form of particulate matter.” 

Although these documents contain various disclaimers which purport to limit that 

Agency guidance only to the Title V program, the commenter (0029.2) believes that this 

restriction of the policy to Title V purposes not only lacks any legal basis, but is also illogical. In 

short, the commenter asserted, the context of a specific CAA program, such as Title V, was not a 

determinative factor in the Agency’s assessment of why PM is not a regulated air pollutant; 

consequently, that Agency policy with respect to PM should apply with equal force to Title I 

programs, such as minor NSR. If PM is not a form of particulate matter regulated under NSPS 

(section 111 of the Act), then the commenter believes that PM cannot satisfy the Agency’s 

definition of the term “regulated NSR pollutant.” Thus, the commenter concluded that PM 

should not be identified as a pollutant subject to regulation under the Agency’s proposed minor 

NSR rule.

In addition, another industry commenter (0028.1) asserted that the minor NSR program 

should not include an applicability threshold for PM2.5 at this time because estimating emissions 

of PM2.5 remains imprecise and infeasible. As support for this position, the commenter noted 

that in guidance memoranda in 1997 and 2005 we acknowledged “significant technical 

difficulties that now exist with respect to PM2.5 monitoring, emissions estimation, and 
Review of New Sources and Modifications in Indian Country

Response to Comments

44

modeling....”13 The commenter proposed we: (1) delete the PM2.5 threshold until such time as 

the technical issues are resolved and implementation guidance has been issued; or alternatively 

(2) expressly acknowledge the difficulties in applying the PM2.5 threshold so that permittees are 

aware of the technical difficulties, and allow that PM10 analyses be used as a surrogate for PM2.5

analyses consistent with current EPA guidance.

Response:

The pollutant PM or “particulate matter measured as “total suspended particulate 

matter” is a form of particulate matter regulated under certain subparts of the NSPS program 

and as such it is considered regulated under the definition of the term “regulated NSR 

pollutant.” In addition, the definition of “regulated NSR pollutant” under 40 CFR 

51.166(b)(49) and 52.21(b)(50) states that regulated NSR pollutants are not only the ones 

regulated under the NSPS program, CAA section 111, but also includes, among other pollutants, 

any pollutant for which a NAAQS has been promulgated and any constituents or precursors for 

such pollutants. Therefore, when we established the PM2.5 NAAQS on July 18, 1997, PM2.5

became a regulated NSR pollutant. 

In addition, we disagree with the commenter that states that it is not currently possible to 

estimate emissions of PM2.5. In fact, we believe that the various PM2.5 implementation issues 

that led to the adoption of the PM10 Surrogate Policy in 1997 have been largely resolved to a 

degree sufficient for the owners or operators of sources and permitting authorities to conduct 

meaningful permit-related PM2.5 analyses. For example, adequate procedures for the collection 

of ambient PM2.5 are now well established throughout the country and provide data useful for 

the purpose of PSD permitting. Also, air quality modeling of direct PM2.5 emissions can be 

accomplished using an EPA-approved model to predict ambient PM2.5 impacts caused by new 

and modified sources of PM2.5 emissions. Emissions factors for calculating PM2.5 emissions 

from various source categories and equipment are available, as are national inventories of PM2.5

emissions. See EPA’s proposed rulemaking for ending the PM10 surrogate policy at 75 FR 6827, 

6833 (col 1), and the EPA memorandum dated March 23, 2010 titled “Modeling Procedures for 

Demonstrating Compliance with PM2.5 NAAQS.”

2.6 Proposed List of Insignificant Units and Activities

In the proposal preamble, we noted that 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. Accordingly, we proposed a list of such units and activities located at a 

minor source that would be exempt from the requirements of the minor NSR program. [See 

proposed 40 CFR 49.153(c)]. The proposed list of exempt emissions units and activities was as 

follows:

 13 See Interim Implementation of New Source Review Requirements for PM2.5, John Seitz, October 24, 1997 

and Implementation of New Source Review Requirements in PM-2.5 Non-attainment Areas, Stephen D. Page, 

April 5, 2005.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

45

• Air-conditioning units 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 industrial process;

• Ventilating units for comfort that do not exhaust air pollutants into the ambient air 

from any manufacturing or other industrial process;

• Heating units for comfort that do not provide heat for any manufacturing or other 

industrial process;

• Noncommercial food preparation;

• Consumer use of office equipment and products;

• Janitorial services and consumer use of janitorial products;

• Internal combustion engines used for landscaping purposes;

• Bench scale laboratory activities, except for laboratory fume hoods and vents; and

• 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.

2.6.1 Expanding the List of Exemptions

Comment:

Seven industry commenters (0021.1, 0025.1, 0030, 0035.1, 0039, 0052, 0081), one tribal 

commenter (0036.1), one state /local commenter (0018.1) and one private citizen commenter 

(0016.1) believe that the list of exemptions should be expanded.

Six of the industry commenters (0021.1, 0030, 0035.1, 0039, 0052, 0081) and the tribal 

commenter (0036.1) aimed their comments primarily at the oil and gas industry in Indian 

country. The commenters expressed concern that the proposed minor NSR program does not 

include a de minimis exception (we believe that the commenters were referring to an emissions 

cut-off, below which an emissions unit at a permitted source need not be addressed in the permit) 

or provide for insignificant source categories or activities that are included in many state minor 

source preconstruction permitting programs. As a result, the commenters fear that sources 

previously considered as insignificant, including lube oil, glycol and produced water tanks, and 

line and tank heaters, will require permitting as emission sources. One industry commenter 

(0021.1) indicated that maintenance of equipment, including painting, and ESD events will 

require inclusion as permitted activities. The commenters typically named Colorado and/or 

Wyoming as examples of states with appropriate exemption lists.

The tribal commenter (0036.1) added that failure to expand the list of exemptions will 

significantly burden operators of minor sources wishing to locate in Indian country, and will 

thereby disadvantage the commenter’s tribe, as well as other tribes. One of the industry 

commenters (0021.1) recommended that we work with representatives of industry, including oil 

and gas, and review lists previously prepared by state agencies to expand further upon the list of 

categorically exempt sources/activities to be included in the minor NSR program. The 
Review of New Sources and Modifications in Indian Country

Response to Comments

46

commenter added that this expanded list of exempt sources/activities will probably include many 

insignificant sources as affected emissions units.

The other industry commenter (0025.1) had similar comments, requesting that EPA add a 

list of exempt emissions units and activities for existing sources based on de minimis emissions 

levels to further reduce regulatory burden, thereby freeing source owners/operators from being 

required to evaluate the addition, replacement, or modification of very small and insignificant 

emissions units for the purpose of minor NSR. The commenter believes that such exemptions 

will reduce administrative burden and provide regulatory certainty for sources with little or no 

environmental consequence. 

The private citizen (0016.1) suggested that we add the Texas program’s de minimis

source list to the minor NSR program as a non-exclusive list of exempt sources. The commenter 

is concerned that the proposed list of sources exempt from minor source NSR will not “square” 

with the sources that are exempted from minor NSR in surrounding states, which may have an 

impact on the siting of new facilities and may materially impact the economic welfare of people 

residing on tribal lands. Accordingly, to ensure a “level playing field,” the commenter that EPA 

add language to proposed 40 CFR 49.153(c) that would allow a minor source in Indian country 

to claim any exemption from minor NSR that could be claimed by a similar source in a 

surrounding state.

One state/local commenter (0018.1) commented specifically on exemptions in extreme 

ozone nonattainment areas, suggesting that there is a need to include in the program some 

reasonable types of exemptions for insignificant sources that are not included in the proposed 

minor NSR program. Otherwise, the commenter believes, EPA may well find itself 

overwhelmed with permit applications from very small sources. The commenter suggested that 

South Coast Air Quality Management District’s Rule 219 is an example of a reasonable 

exemption program.

Response:

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 a separate rule to seek public 

comment on the issue of whether additional units or activities should be exempted from the 

minor NSR program.

2.6.2 Sources Exempted from the Minor NSR Program

Comment:

One state/local agency commenter (0024.1) recommended that heating and ventilating 

units used to provide comfort for manufacturing, industrial, and commercial activities not be 

exempted from the minor NSR program unless they do not exhaust air pollutants to the ambient 

air. (This would narrow the proposed exemption.) The commenter made this recommendation 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

47

out of concern that the emissions from units supplying comfort heat to large complexes such as 

hotels and casinos can have significant impacts on air quality.

Response:

The list of exempted units and activities we have finalized does not exempt airconditioning units for comfort and heating units for comfort until we can study the implications 

of the new rules for greenhouse gases (see Prevention of Significant Deterioration and Title V 

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

Comment:

One tribe (0036.1) questioned the utility of the last proposed exemption on the list, for 

those emissions units or activities that do 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. The commenter noted that this 

categorical exemption appears to describe a unit or activity which is not even a source of air 

pollutants. The commenter asked whether we intended that product recovery equipment that 

does not have emissions, is not required for emissions control, and normally is not permitted 

would fall within this exception, and whether such equipment would include condensers and 

vapor recovery units (“VRUs”).

Response:

We are deleting the exemption referenced by this commenter (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 this exemption 

can be confusing and redundant. 

2.7 Permitting Process

2.7.1 Permit Application Requirements

Under the proposed minor NSR program, the owner or operator of a proposed new minor 

source or a proposed modification that is subject to this rule must submit a complete application 

to the reviewing authority requesting a minor NSR permit specific to the source. In addition to 

basic information identifying and describing the source, the application must include a list of all 

affected emissions units. “Affected emissions units” are defined as all the emissions units at the 

proposed new minor source or all the new, modified, and replacement emissions units that 

comprise the proposed modification [excluding the exempt emissions units and activities listed in 

proposed 40 CFR 49.153(c)]. The application must document the increase in emissions that will 

result from the new source or modification, including the PTE in tpy for each new emissions 

unit.
Review of New Sources and Modifications in Indian Country

Response to Comments

48

2.7.1.1 Timing of Applications

Comment:

Two industry commenters (0022.1, 0035.1) proposed that the NSR rulemaking be revised 

to address the timing of when information is available to assess NSR applicability of new oil and 

gas production facilities. One of the commenters (0035.1) recommended the approach used in 

the Wyoming program, under which production facilities can commence operation, and, within a 

specified period, an estimation assessment and permit application is required. A Notice of 

Installation that captures administrative information and informs the regulatory authority of the 

startup of a new production facility is required within 40 days of the first date of production.

The second industry commenter (0022.1) urged EPA to allow oil and gas operators 

120 days after first production to determine emissions and apply for appropriate air permits as 

needed. The commenter believes this is justified because a preconstruction permitting process 

will take a significant amount of time, costing the operator, royalty owners, and the state

valuable revenue.

Response:

In light of the comments received, we will develop a general permit specific for the oil 

and gas industry that will address many of the concerns expressed by these commenters.

2.7.1.2 Fugitive Emissions

Under the proposed rule, all permit applications must document the increase in emissions 

that will result from the new source or modification. Comments were requested on whether the 

reported emission levels should include fugitive emissions, to the extent that they are 

quantifiable, for all sources, for only those source categories listed pursuant to section 302(j) of 

the Act, or for no sources.

Comments Favoring Including Fugitives Emissions for All Sources:

Four tribal commenters (0020, 0038.1, 0041, 0050.1), one state/local commenter 

(0024.1), one environmental group (0037.1), and two private citizens (0094, 0096) supported the 

inclusion of fugitive emissions for all sources, to the extent quantifiable.

One of the tribal commenters (0050.1) stated that EPA should include fugitive emissions 

for all sources, not just for sources listed under section 302(j) of the Act, in calculating emissions

levels for applicability purposes. The commenter noted that studies performed for the Grand 

Canyon Visibility Transport Commission demonstrated that fugitive emissions are a large 

proportion of air pollutants in Indian country, and many sources of fugitive emissions that are 

prevalent in Indian country (such as mining activities and other industrial activities using dirt 

roads) are not listed under section 302(j) of the Act. The commenter concluded that, because 

fugitive emissions have an impact on air quality, especially in Indian country, they should be 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

49

included in determining whether a particulate source is subject to minor NSR permitting. 

Another of the tribal commenters (0038.1) also pointed out the problems encountered with 

fugitive emissions from industrial operations on unpaved roads as a simple example of why 

fugitive emissions are of concern and should be part of minor NSR permits.

The environmental group commenter (0037.1) asserted that there is no justification for 

excluding fugitive emissions from the NSR program for minor sources and modifications to 

existing sources in Indian country. The commenter stated that the basic statutory purpose of the 

minor NSR program is to ensure that the NAAQS will be attained and maintained, according to 

section 110(a)(2)(C) of the Act. The commenter pointed out that section 110(a)(2)(C) of the Act 

requires a program to regulate the construction or modification of “any stationary source,” and 

that section 302(z) of the Act defines “stationary source” in a very broad manner. The 

commenter argued that the reference in the transportation exception for those emissions resulting 

“directly” from an internal combustion engines makes clear that Congress intended for fugitive 

emissions from roads to be included in defining a stationary source. The commenter added that 

because the mandate of the minor NSR program is based on protection of air quality, EPA must 

require all sources of emissions, including fugitive emissions, to be included in determining 

applicability or minor NSR.

Comments Favoring Including Fugitives Only for Source Categories Listed under 

Section 302(j) of the Act:

One industry commenter (0029.2) stated that fugitive emissions should be included in 

minor NSR threshold applicability determinations only for source categories listed under 

section 302(j) of the Act. The commenter included an extensive analysis of the history of 

regulating fugitive emissions under NSR, particularly fugitive emissions from surface coal 

mines. (We have declined to list such sources under section 302(j).) The commenter maintained 

that substantial uncertainty and inconsistency surround the issue of whether fugitive particulate 

matter emissions are deemed “quantifiable” and thus acceptable for use in some threshold 

applicability determinations. The commenter believes that EPA should expressly acknowledge 

that existing technical and economic limitations on current measurement methods for such 

emissions preclude the reviewing authority from considering those emissions to be 

“quantifiable.” The commenter added that for applicability determinations that do include 

fugitive particulate matter emissions, we must define the criteria for determining when those 

emissions are “quantifiable.” 

Comments Opposing Inclusion of Fugitive Emissions for Any Sources:

Nine industry commenters (0021.1, 0022.1, 0027.1, 0028.1, 0032, 0039, 0042, 0048.1, 

0081) and two tribal commenters (0031, 0036.1) believe that EPA should exclude the calculation 

of fugitive emissions in the applicability determination of all sources. The majority of these 

commenters maintain that fugitive emissions at minor sources are miniscule, and a requirement 

to include them for minor sources would be excessive. 

Two industry commenters (0027.1, 0081) pointed out that most, if not all, new and/or 

major sources of fugitive VOC and HAP emissions have been subject to previous standards and 
Review of New Sources and Modifications in Indian Country

Response to Comments

50

requirements. As a result, the remaining fugitive emissions are extremely low. They are highly 

variable and difficult to quantify accurately.

Another industry commenter (0028.1) noted that calculating fugitive emission rates 

involves first calculating an emission factor and then applying the emission factor to a 

production of usage rate. In most cases, the emission factor calculations involve several 

variables related to the process. Few of these variables are common among processes; however, 

all of the variables are important in the calculations. Due to the technical nature of many of 

these emission factor variables, it would take a considerable amount of time and resources for 

someone unfamiliar with these concepts to understand all of the variables. Facilities located 

within Indian country that operate outside the typical range for which emissions factors apply 

would be obligated to pay to collect site-specific information. To keep the minor NSR program 

simple, the commenter recommended that we exclude fugitive emissions from applicability 

determinations.

One of the industry commenters (0032) argued that if EPA requires fugitives to be 

included and authorizes the imposition of controls, the costs of complying with minor NSR for 

fugitive emissions could potentially be substantial, and it would be particularly arbitrary to 

impose a requirement posing such costs without a sound reason. The commenter noted that EPA 

is subject to the requirements of the federal Administrative Procedure Act to engage in reasoned 

decision-making and to avoid discounting or ignoring permissible factors arbitrarily. Thus, the 

commenter went on, EPA may only impose requirements in a FIP entailing substantial costs 

where EPA identifies a sound reason for doing so. The commenter believes that EPA has not 

done so here.

One of the tribal commenters (0036.1) does not believe that the exclusion of fugitive 

emissions, including for minor sources operating in the oil and gas sector, will materially 

contribute to a violation of the NAAQS for ozone or other regulated NSR pollutants in Indian 

country. The other tribal commenter (0031) suggested that each tribe should be able to decide 

how it wants to handle fugitive emissions.

One of the industry commenters (0042) pointed out that in almost all cases, an allowable 

emissions limit for a fugitive emission source could not be enforced as a practical matter because 

of the inherent difficulties with accurately quantifying actual emissions from these sources.

Response:

Based on consideration of the comments received, we are finalizing provisions that 

require including fugitive emissions in the minor NSR applicability determination, to the extent 

that they are quantifiable, only if the source belongs to one of the source categories listed 

pursuant to section 302(j) of the Act (i.e., the source categories listed in 40 CFR part 51, 

Appendix S, Paragraph II.A.4(iii) and in 40 CFR 52.21(b)(1)(iii)), for the following reasons. 

For the source categories listed pursuant to section 302(j) we have historically identified 

these source categories as having the potential to significantly degrade air quality, and it has 

been demonstrated to be reasonable and cost-effective for sources in these categories to quantify 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

51

and include their fugitive emissions in applicability determinations. We believe it is reasonable 

to continue to require these source types to quantify fugitive emissions in determining 

applicability of minor NSR. While some other source categories also contribute significantly to 

air pollution, we have thus far not required counting their fugitive emissions in determining 

applicability because of unreasonable economic costs associated with doing so (see 54 FR 

48879).

We have the discretion under CAA section 110(a)(2)(C) to follow a similar approach in 

the minor program as long as the NAAQS are protected, and we are using that discretion 

because we believe it would be unreasonably cumbersome and costly to expect the wide variety 

of minor source types not on the 302(j) list to be able to quantify their fugitive emissions.

Without discounting the fact that fugitive emissions from individual sources or source 

categories may be significant contributors to air pollution, we believe that, as a whole, the air 

quality impacts of emissions from the number of sources that would likely be excluded from 

minor NSR because of exclusion of their fugitive emissions are likely to be small, and therefore 

not commensurate with the regulatory and economic burden we would impose on minor sources 

in Indian country if we were to require the estimation of fugitive emissions for all minor sources 

and subject them to permitting based on those emissions. This is especially the case since we are 

developing a program that applies generically to sources in Indian country regardless of 

whether fugitive emissions from major or minor sources are a significant source of air pollution 

in a specific location. Given this diversity, and the potential costs, our approach strikes a 

reasonable balance.

Finally, this approach in our final rule is consistent with how fugitive emissions are 

treated in some state minor source programs. 

In regards to the commenter who suggested that an allowable emission limit for a fugitive 

emission source could not be practically enforced, we acknowledge that there will be limitations 

during the quantification of fugitive emissions for purposes of calculating actual emissions. 

However, we expect sources to do so to the extent fugitive emissions are quantifiable. 

Comment:

One industry commenter (0029.2) who opposes including fugitive emissions for source 

categories not listed under section 302(j) of the Act (see above) said that, in the alternative, if 

EPA concludes that existing AP-42 factors for fugitive particulate matter emissions are 

acceptable for characterizing the rates of such emissions for substantive regulatory purposes 

including control technology reviews, air quality impact analyses (AQIAs), visibility impact 

assessments, and other regulatory evaluations requiring estimates of either actual emissions or 

potential to emit, then those same AP-42 factors (or existing alternatives previously approved by 

the reviewing authority) must be considered acceptable for NSR threshold applicability 

determinations.

One tribal commenter (0054) encouraged EPA to only include those fugitive emissions 

that have emission factors in AP-42 and that are associated with the project.
Review of New Sources and Modifications in Indian Country

Response to Comments

52

Response:

AP-42 emission factors are available for many source categories and we encourage 

sources to consult with their reviewing authorities for the appropriate use of emission factors for 

applicability determinations. 

2.7.1.3 Minor Source Plantwide Applicability Limitations (PALs)

Under the proposed minor NSR program, an owner or operator may request in its 

application an annual minor source plantwide applicability limitation (minor source PAL) for 

one or more of the regulated NSR pollutants emitted by a 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 established under the proposed 40 CFR 49.155 and that 

is enforceable as a practical matter. 

Supporting Comments:

One tribal commenter (0036.1) supported the flexibility contained in the proposed minor 

NSR rule to request minor source PALs. The commenter believes it is very important that 

aspects of permitting programs at the federal and state level outside of Indian country that 

provide operator flexibility, including the creation of PALs, also be afforded operators currently 

in or wishing to locate in Indian country.

One private citizen (0092.1) commented that once PALs are derived, the source would 

have the flexibility to increase emissions at some units within the plant without triggering NSR, 

as long as the plantwide limit and allowable emission level were not exceeded.

Opposing Comments:

One environmental group (0037.1) argued that EPA must not provide for minor source 

PALs in its proposed Indian country NSR rule. The commenter believes 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 the NAAQS are attained and maintained. Further, the 

commenter maintained such limits would likely be unenforceable as a practical matter, at most 

minor sources. The commenter’s extensive arguments are listed below.

• Under a PAL, a minor source could add a new unit or make other changes that could 

change the dispersion characteristics of the source’s emissions, which could affect air 

pollutant concentrations even if total allowable emissions stay constant under the 

PAL. Under the statutory requirements of section 110(a)(2)(C) of the Act, EPA must 

require that modifications that could increase air pollutant concentrations be modeled 

to ensure that the NAAQS will be attained and maintained. 

• When EPA promulgated regulations for PALs at major stationary sources on 

December 31, 2002, EPA indicated in several instances that it assumed that changes 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

53

under a major source PAL would still be reviewed under most states’ minor NSR 

programs. If EPA thought such changes under major source PALs (which may not be 

great in magnitude) should warrant review under a state’s minor NSR program, then 

such changes at a minor source should also be subject to review under the minor NSR 

program.

• The EPA has not specified any criteria for the development of minor source PALs in 

its proposed Indian country NSR rule. It appears that, at most, the limitations on a 

minor source PAL is that it cannot be greater than the major source thresholds and 

that it cannot be above source allowable emission limitations. This means that so 

called minor source PALs could be as high as 99-249 tpy, depending on whether the 

source is in one of the 28 listed source categories for which a 100 tpy major source 

threshold applies. If actual emissions have been much less than 100-249 tpy, this 

means that emission increases in excess of the minor source thresholds and even well 

in excess of the major modification significance levels could occur under a PAL 

entirely without any review by the reviewing authority. 

• The EPA’s proposed Indian country rule would apparently allow increases in a PAL 

limit through an administrative permit amendment without any public review or 

comment or any modeling analysis, as long as the increase would not trigger 

applicability under major NSR permitting requirements. This makes the minor source 

PAL an extremely weak limitation, and also negates the value of any modeling done 

for a minor source PAL limit since the PAL limit could readily be increased with no 

review.

• Depending on the status of air pollutant concentrations in the region where a source is 

located, even small increases in emissions could impact attainment or maintenance of 

the NAAQS or compliance with the PSD increments. Seemingly inconsequential 

emission increases at minor sources could cause significant problems especially in 

areas with rugged topography or with significant emissions from major or minor 

sources and/or pollution transport from other more industrialized areas.

• Minor source PALs (and major source PALs as well) will be difficult to enforce 

unless the facility has continuous emission monitoring systems (CEMS) on all 

emission units. While proposed 40 CFR 49.155(a)(3)(iii) requires “monitoring to 

determine the actual emissions from your source for each month and the total actual 

emissions for each 12-month period, rolled monthly,” EPA has not required CEMS to 

ensure continuous compliance with PALs. The EPA has also not specified any 

additional detailed requirements in the rule or preamble as to what constitutes 

sufficient monitoring for a PAL. Further, EPA has not addressed how fugitive 

emissions must be monitoring in showing compliance with a PAL. Thus, EPA’s 

monitoring requirement is excessively vague, which will impair effective 

implementation of the PALs and the NSR rules. Many minor sources in Indian 

country likely have not conducted stack tests, and most probably do not have any 

CEMS. Thus, many sources’ method of determining compliance may be based on 

source category emission factors, which may not accurately reflect a source’s actual 

emissions. Consequently, source compliance with a minor source PAL will be very 

difficult to ensure and yet such a PAL will enable most modifications at the source to 

forego any review.
Review of New Sources and Modifications in Indian Country

Response to Comments

54

One private citizen (0094) is concerned about hotspots developing through the use of 

minor source PALs. The commenter pointed out that major and minor stationary sources could 

emit up to the PAL level, without regard to whether the stationary source is in an attainment area 

or a nonattainment area. The commenter noted that a PAL does not distinguish how many other 

stationary sources are in the area, and therefore there is the potential for all of the sources to emit 

up to their limit without restriction. The commenter is concerned that this would create hotspots 

of emissions and possibly create pollution levels that could affect the NAAQS.

Response:

Based on consideration of the comments received and further evaluation, 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, would not be enforceable. 

2.7.2 Control Technology Review

In the minor NSR program, we proposed that each reviewing authority perform a caseby-case control technology review when issuing the permit (other than a general permit). 

“Control technology,” is defined as pollution prevention techniques, add-on pollution control 

equipment, design and equipment specifications, work practices, and operational restrictions. 

We noted that the required control technology resulting from such a review could range from 

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), depending on the air quality needs of the area, 

other applicable regulatory programs of the Act, and technical and economic feasibility. 

In proposing a case-by-case control technology review process to determine an 

appropriate level of control for minor sources and subject modifications in Indian country, we 

considered a number of factors, including: (1) the control technology review process should be 

as flexible as possible to provide for the specific needs and conditions of each area of Indian 

country, consistent with the requirements of the Act; (2) a reasonable level of air pollution 

control for new minor sources and subject modifications in Indian country is generally warranted 

to ensure protection of air resources in Indian country; and (3) Indian country must not be seen 

as a potential “pollution haven” where minor stationary sources can go to escape air pollution 

control requirements. 

Comments Supporting the Proposal:

Ten tribal commenters (0031, 0033, 0041, 0044, 0056, 0061.2, 0076, 0091.1, 0097.1, 

0106.1) supported our proposed case-by-case control technology review for each minor NSR 

permit. Four of these tribal commenters (0033, 0041, 0056, 0106.1) specifically recommended 

this approach to adequately reduce industrial emissions as part of the proposed minor NSR rule. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

55

They stated that the case-by-case control technology requirements would allow and promote 

economic growth and development as well as include tailored emissions controls in Indian 

country. Two of the tribal commenters (0076, 0091.1) indicated that requiring sources to meet a 

specific control technology requirement could place sources on tribal lands at a competitive 

disadvantage as they would need to expend resources on technologies already possessed by 

nearby competitors not within Indian country. They added that a flexible approach promotes 

innovation and could ultimately lead to a means of reducing minor source emissions that would

not have occurred by meeting a specific control technology requirement.

One tribal commenter (0061.2) believes the case-by-case control technology approach is 

appropriate. The commenter observed that having no capacity to impose controls on minor 

sources would seem to defeat the purpose of a permitting process for such facilities, and that a 

paper permit that could not impose any controls adds nothing to existing regulation or protection 

of health and the environment. The commenter also 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 playing field with the surrounding jurisdictions.

Another tribal commenter (0097.1) noted that many minor sources, such as standby 

generators, do not lend themselves to add-on control technology. While such source may need to 

be permitted under this program, the commenter believes there is no need to require a control 

technology assessment beyond meeting existing regulatory requirements for such equipment. 

Therefore, the commenter asserted that a case-by-case approach is vital.

Comments Opposing Any Control Technology Requirement:

Five industry commenters (0028.1, 0029.2, 0032, 0042, 0081) opposed any control 

technology requirement in the minor NSR program for Indian country. One of these commenters 

(0028.1) stated that because local air quality conditions vary, a federal program is likely to be 

applied inconsistently, resulting in competitive disadvantage for sources located in certain areas. 

In addition, the commenter believes that case-by-case control goes beyond minor NSR 

requirements generally applied in state minor NSR programs, and that where these exist, the 

requirement creates uncertainty and added expense for projects which result in minor emissions 

impacts. The commenter added that many sources are already subject to technology-based 

standards [such as NSPS and Maximum Achievable Control Technology (MACT) standards], 

and that further control requirements are unwarranted. 

One of the industry commenters (0032) believes that EPA has no authority to impose a 

control technology requirement under section 110(a)(2)(C) of the Act. The commenter pointed 

out that while section 165 of the Act (which establishes the PSD program) expressly requires the 

imposition of BACT and section 173 of the Act (which establishes the nonattainment major NSR

program) expressly requires the imposition of the lowest achievable emissions rate (LAER), 

section 110(a)(2)(C) of the Act contains no technology requirement. The commenter stated that 

it is a fundamental tenet of statutory construction that, where Congress imposes an explicit 

requirement in one statutory provision and declines to do so in another provision, Congress is 

presumed to know what it is doing and therefore did not intend to authorize the requirement in 
Review of New Sources and Modifications in Indian Country

Response to Comments

56

the silent provision. The commenter added that because controls are not authorized under the 

Act and thus cannot be imposed, the commenter fails to see the point of minor NSR, other than 

potentially to delay projects that are necessary to maintain the plant and to assure safe, reliable 

operation.

Another of the industry commenters (0029.2) stated that 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. This commenter indicated that 

because PSD review is generally so complex, time-consuming and expensive, most sources will 

design their projects to remain below the applicable PSD thresholds, even if that means installing 

more efficient controls, switching to a cleaner fuel, or restricting production or operating hours. 

The commenter added that section 110 requirements for minor NSR should be driven by ambient

air quality considerations and not separately by control technology considerations. Thus, the 

commenter believes that a control technology review should be considered only during those rare 

instances where the minor project may violate the NAAQS or increments due to influences of 

nearby complex terrain when existing ambient levels already are close to their limits.

One of the industry commenters (0042) believes that control technology determinations 

under the proposal would not be equivalent because the case-by-case analysis would be 

subjected to different interpretations by different reviewing authorities, and the level of control 

could vary widely between a very minimal requirement (e.g., work practices) to a very stringent 

requirement (e.g., BACT) based on the reviewing authority. On this basis, the commenter 

asserted that the minor NSR program should not contain a control technology requirement.

Another of the industry commenters (0081) said that implementing the control 

technology review on a case-by-case basis does not allow for any kind of uniformity to oil and 

gas exploration and production operations, and that the case-by-case situation will not allow 

companies to plan properly because the commenter will never know what the requirements will 

be until after the permit is issued. The commenter requested that the control technology 

requirement be removed based on the thought that these minor sources will not have the ability 

to influence NAAQS violations. 

Comments Supporting a Standardized Control Technology Requirement:

Six industry commenters (0021.1, 0032, 0035.1, 0039, 0042, 0081), one tribal commenter 

(0036.1), one environmental group (0037.1), and one state/local commenter (0024.1) 

recommended a clearly defined, standardized method for determining the required level of 

control. Three of the industry commenters (0032, 0042, 0081) primarily opposed any control 

technology requirement, but advocate a more defined analysis if control technology is required.

The commenters generally expressed concern that case-by-case review accords far too 

much discretion to the reviewing authority, and therefore may not be applied consistently across 

the country. They generally indicated that the proposed requirements are too vague. However, 

beyond these points of general agreement, the commenters’ views differed widely.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

57

One of the industry commenters (0032) said that given that the authority for a minor NSR 

program is the regulation of non-major new sources and modification only “as necessary to 

assure that [NAAQS] are achieved,” control technology review should be authorized only in 

those “rare instances” in which a reviewing authority has reason to be concerned that the 

construction of the new minor source or minor modification could cause or contribute to a 

NAAQS or increment violation. (Phrasing from the proposal preamble at 71 FR 48704.) The 

commenter asserted that, even in such rare instances, the reviewing authority cannot require 

controls just for the sake of controls or because some other similar source has constructed such 

controls. The commenter contended that the only authority to require controls would be to 

remedy a potential NAAQS or increment violation, if one were actually demonstrated in the 

AQIA.

Another of the industry commenters (0042) stated that if retained in the program, the 

control technology requirement must be better defined so that it is implemented unequivocally 

throughout the nation, whether the source is located inside or outside of Indian country, similar 

to the control technology requirements in the major NSR program.

The comments of the other four industry commenters (0021.1, 0035.1, 0039, 0081) and 

the tribal commenter (0036.1) were specifically related to the oil and gas production industry. 

These commenters are concerned that a case-by-case control technique review would be too time 

consuming and would unacceptably delay the permitting process in this dynamic industry that 

must act quickly to match production to the demands of the market. These commenters 

recommended that we adopt a presumptive BACT approach to oil and gas facilities, which they 

believe is appropriate because of the consistency in the equipment used at such sites. The 

commenters generally mentioned that Wyoming and Texas have good programs in this area that 

could be used as an example for the minor NSR program in Indian country. Two of these 

commenters (0021.1, 0081) also indicated that there is no need to consider the anticipated 

economic growth in an area when determining control technology requirements for a source [see 

proposed 40 CFR 49.154(c)(1)(iii)] and advised that this factor should be removed.

The environmental group (0037.1) commented that the control technology requirements 

of the Indian country NSR rule must be more rigorous. The commenter asserted that the 

proposed technology requirements, especially when considered with other proposed provisions 

of the Indian country NSR rule, are very vague and unenforceable. The commenter urged us to 

require all sources that trigger applicability to the Indian country minor NSR program be subject 

to a BACT review, which the commenter stated is similar to what is required in many states’ 

minor NSR programs. Even in states without an NSR BACT requirement, the commenter 

asserted, most states typically have general control technology requirements that apply to at least 

certain types of sources as part of the SIP. The commenter believes that a definitive BACT 

requirement would thus establish a level playing field for all new and modified sources in Indian 

country, especially given the lack of other implementation plan requirements in Indian country. 

The commenter noted that costs of control and other environmental and energy issues can be 

taken into account in a BACT determination, as well as the level of control that has typically 

been required or achieved at other similar sources. Thus, the commenter believes, reviewing 

authorities will have flexibility in defining the BACT limits for owners of smaller sources or 
Review of New Sources and Modifications in Indian Country

Response to Comments

58

sources with difficult to control emissions such that the requirement will not pose an economic 

burden or put such sources in Indian country at a competitive disadvantage. 

The state/local commenter (0024.1) similarly recommended application of a case-by-case 

control technology determination to include a “top-down,” or best control, assessment of similar 

sources located in areas with the same, or better, attainment/nonattainment classification. The 

commenter recommended that the rule include the requirement to apply BACT rather than the 

less stringent assessment of “typical” control technology proposed by EPA.

Comments Supporting Other Approaches to Control Technology Requirements:

One state/local commenter (0018.1) believes that the program’s requirements should 

mirror the programs in the surrounding or adjacent nonattainment areas.

One industry commenter (0025.1) recommended that EPA promulgate control technology 

requirements for various processes/emissions unit categories located in Indian country, while 

retaining case-by-case control technology review for situations that are not covered by 

promulgated control technology requirements or for unique circumstances. This commenter 

believes the proposed control technology review requirement will involve extremely onerous and 

intricate analyses that will be the responsibility of resource-limited reviewing agencies (EPA 

Regional Offices or tribal agencies) implementing minor NSR programs. The commenter also 

shared the concerns discussed above regarding the uncertainty, lengthy review, and potential for 

inequity that could result from the proposed case-by-case process.

The commenter (0025.1) elaborated that EPA should develop applicable minimum 

control technologies for various categories of processes or emissions units (such as boilers,

internal combustion engines, material handling and conveying operations, etc.) that are prevalent 

at minor sources located in Indian country. While categorical minimum control technology 

evaluations may be resource intensive at the early stages of development of the minor NSR 

program, the commenter believes they will avoid lengthy and cumbersome case-by-case reviews 

for subsequent permit applications. The commenter pointed out that the notice and comment 

rulemaking procedures associated with the promulgation of minimum control technology 

requirements would provide the regulated community and public with the opportunity to review 

and comment on the provisions. The commenter believes that minimum control technology 

requirements for designated processes/emissions unit categories will provide regulatory certainty 

and clarity as well as streamlined minor NSR permitting.

The commenter (0025.1) also recommended that EPA adopt applicability thresholds for 

control technology requirements based on an emissions unit’s potential to emit regulated NSR 

pollutant(s). The commenter indicated that these applicability thresholds should apply for each 

emissions unit and should be set reasonably higher than the applicability threshold for minor 

NSR permitting. 

One industry commenter who opposes any control technology requirement (0028.1) 

suggested that if EPA finalizes a control technology requirement in this rule, sources subject to 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

59

existing control standards, such as NSPS or MACT, should be expressly exempt from any 

additional case-by-case review requirements.

One tribal commenter (0020) believes that control technology should not necessarily be 

required for minor sources but that the option should be available in order to protect the NAAQS 

or any applicable tribal regulations. The commenter supported the use of other techniques, such 

as design and equipment specifications, work practices, and operational restrictions, as first step 

measures, followed by required control equipment if needed to protect health and environmental 

concerns.

Other Comments on the Proposed Control Technology Requirement:

One tribal commenter (0050.1) generally agrees with the proposed control technology 

review approach. However, the commenter believes that the best way for the reviewing 

authority to determine whether the NAAQS will be achieved is for the application to contain an 

AQIA. Without the requirement of an AQIA, the commenter cannot support the proposed 

approach to control technology review. 

A state/local commenter (0023.1) agreed that in instances where a case-by-case control 

technology review is utilized to determine applicable requirements, the determination should be 

based in part upon an ambient air quality analysis, or a rationale for foregoing such an analysis. 

This commenter also questioned whether tribal agencies will have adequate resources to conduct 

such analyses, which often either take an extensive amount of time or lack the benefit of detailed 

analysis. The commenter added that minor NSR program should include a backstop for the caseby-case control technology review requiring that the resulting emission rate be no less stringent 

than that which would be required under the rules of the surrounding state. 

Another state/local commenter (0034.1) observed that the proposed minor NSR 

program would allow controls that are less stringent than the RACT level of control. The 

commenter’s state applies the RACT floor to all sources, major and minor. The commenter 

suggested that allowing the possibility of controls less than the RACT floor may set up a 

“rush to the reservation” for minor sources, which, due to the proximity of Indian country to 

the commenter’s state’s nonattainment areas, could adversely affect the state’s ability to 

reach attainment in those areas.

One industry commenter who opposes any control technology requirement (0032) stated 

that if controls are authorized under minor NSR, the program should not allow the imposition of 

BACT-level controls. The commenter added that BACT controls are some of the most stringent 

controls achievable, typically require extensive and costly plant modifications, and are entirely 

unwarranted for minor plant projects. Furthermore, the commenter believes, to allow the 

imposition of BACT for inconsequential plant projects effectively eliminates the distinction 

between minor and major NSR. 

Response:
Review of New Sources and Modifications in Indian Country

Response to Comments

60

We agree with those commenters that support a case-by-case control technology review 

because as we stated in the proposal, the reviewing authority, at a minimum, must require 

control technology that assures that the NAAQS are achieved. 

We disagree with commenters that oppose any control technology requirement or who 

suggested that we have no authority to require such controls because 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 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. Indeed, it is unclear what purpose a 

preconstruction permitting program would serve if the reviewing authority were precluded from 

requiring controls on new or modified sources.

We also do not agree with those commenters that would like us to require control 

technologies only when there is a NAAQS or increment violation. As we have stated previously, 

section 110(a)(2)(C) provides for a program to regulate the construction and modification of 

stationary sources that ensures attainment and maintenance of the NAAQS. Therefore, we 

should strive for not allowing nonattainment of the NAAQS and nothing in the language of 

section 110 prevents us from using emission control requirements as a means of managing new 

source growth as to ensure that the NAAQS will continue to be achieved, even if an individual 

source will not cause a violation of the NAAQS. Moreover, the control requirements that we are 

adopting will allow for consideration of air quality. Specifically, the determination of when a 

control technology would be needed for a particular source or source category, will depend on 

the air quality needs of the area (e.g.., is the area almost in nonattainment?, is the control 

technology appropriate based on the anticipated growth of the area?), any other applicable 

requirements that the minor source needs to comply with, and the technical and economic 

feasibility for the particular control technology. 

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 use in the surrounding states. 

Therefore, the final rule requires the 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 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

61

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 the final rule preamble.

 

Comment:

Three tribal commenters (0033, 0041, 0056) recommended that, in order to reduce 

noncompliance with a technology-based emission limitation due to an emergency or upset 

condition, the minor NSR program should include provisions for these episodic events.

Response:

We are allowing reviewing authority discretion for including episodic events provisions 

in the minor NSR permits. 

2.7.3 Air Quality Impact Analysis

Under the proposed minor NSR program for Indian country, the reviewing authority 

typically would not require an AQIA for a new or modified minor source permit application. 

However, we stated in the proposal preamble (71 FR 48704) that “[i]n rare instances, if the 

reviewing authority has reason to be concerned that the construction of the minor source or 

modification could cause or contribute to a NAAQS or PSD increment violation, to ensure 

protection of the NAAQS, ... the reviewing authority may require the applicant to conduct an 

AQIA using dispersion modeling in accordance with 40 CFR part 51, appendix W to determine 

the impacts that will result from [the] new source or modification. If the AQIA demonstrated 

that the construction of [the] source or modification would cause or contribute to a NAAQS or 

PSD increment violation, [the applicant] would be required to further reduce its impact before 

[it] could obtain a permit.” The comments on this proposal are summarized below.

Comments Supporting More Stringent AQIA Requirements:

Four tribal commenters (0033, 0041, 0050.1, 0106.1), one environmental group 

commenter (0037.1), and one private citizen (0094) supported more stringent AQIA 

requirements. Two of these commenters pointed out that it is not clear how the reviewing 

authority could have “reason to be concerned” without having an AQIA to review. The private 

citizen (0094) favors requiring applicants to submit an AQIA in all cases, not only in “rare 

instances.” Three of the tribal commenters (0033, 0041, 0106.1) stated that AQIAs should be 

required in areas that are in nonattainment or near nonattainment. The third tribal commenter 

(0050.1) suggested reversing the presumption such that an AQIA is required except in the rare 

instances when a source can demonstrate that it presents no cause for concern. The 

environmental group (0037.1) stated that to satisfy the Act, the minor NSR program must require 

that a minor NSR permit cannot be issued unless the source demonstrates that it will not cause or 

contribute to a violation of a NAAQS or PSD increment. The commenter stressed that the 

burden for the demonstration must be placed on the source, although conservative screening 

techniques can be used where appropriate to simplify the process.
Review of New Sources and Modifications in Indian Country

Response to Comments

62

Comments Supporting More Specific AQIA Requirements:

Three industry commenters (0035.1, 0039, 0081), one tribal commenter (0036.1), and 

one state/local air agency commenter (0024.1) suggested that EPA should set pollutant specific 

emissions thresholds or screening-modeling impact levels to determine when detailed ambient 

air quality impacts analyses should be required. Three of these commenters (0035.1, 0039, 

0036.1) suggested these thresholds be set at 50 percent of major source levels. One of these 

commenters (0081), who believes AQIAs should not be required at all (see below), proposed 

setting thresholds at 75 percent of major source levels if they are to be required. Without 

requesting specific applicability provisions, another state/local commenter (0023.1) stated that 

the means for determining when an AQIA is to be conducted are vague and nondescript.

Comments Opposing Any AQIA Requirement:

Six industry commenters (0022.1, 0027.1, 0028.1, 0030, 0052, 0081) and one tribal 

commenter (0044) requested that EPA not require an AQIA in the minor NSR program. The 

commenters believe that this requirement would be excessive and very costly and time 

consuming for small businesses. These commenters often stated that if there is to be an AQIA 

requirement, the program should include prescribed screening procedures for when an AQIA 

must be performed. Two of these commenters (0027.1, 0028.1) pointed out that the AQIA is 

rarely used in comparable states’ minor source NSR programs. One of the commenters (0028.1) 

went on to say that if AQIAs are required at all, it should only be in rare instances, and the 

program should specify that fugitive emissions need not be included in modeling analyses.

Other Comments on the AQIA Requirement:

One industry commenter (0029.2) said that AQIA should be a rare exception, rather than 

the rule. The commenter pointed out that in general, stationary sources in Indian country are 

“few and far between.” Consequently, situations involving overlapping impacts from multiple 

sources threatening compliance with either the NAAQS or the increments are not a typical 

characteristic of Indian country. The commenter believes that, with the low ambient 

concentrations that generally prevail in Indian country and the inherent cap on emissions 

necessary to avoid PSD, minor sources and modifications will only rarely threaten a NAAQS or 

PSD increment. The commenter conceded that an AQIA could be needed in the rare situation 

where a source is located close to an area with complex terrain and ambient concentrations that 

are near a NAAQS or PSD increment level. To address such situations, the commenter believes 

that the minor NSR program should prescribe “trigger values” to include (1) a specific distance 

to an area of complex terrain, and (2) an existing elevated level of air quality (as a percent of the 

NAAQS).

Another industry commenter (0021.1) stated that the proposed rule does not specify the 

required modeling criteria. The commenter expressed concern that, because little permitting has 

been done within Indian country, relevant modeling data are not readily available and issuance of 

the draft permit could be delayed significantly.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

63

Two tribal commenters (0076, 0091.1) stated their understanding that the proposed rule 

would require each minor source to conduct dispersion modeling to determine the impacts that 

would result from the source or modification. Because such modeling could place a financial 

burden on minor sources in Indian country, the commenters recommended that EPA provide 

assurances that the requisite resources will be available to conduct such modeling.

One tribal commenter (0099.1) requested the authority to require an AQIA at the tribe’s 

discretion, for sources both on and off the reservation that may have the potential to adversely 

impact the tribe’s air quality.

Response:

Based on consideration of 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 

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. 

2.7.4 Permit Issuance Process

The proposed minor NSR program specifies that within 45 days after receiving a minor 

NSR permit application, the reviewing authority must either determine that the application is 

complete enough to commence a technical review or request additional information. If the 

applicant does not receive a request for additional information or a notice of a complete 

application within 50 days (to allow for mailing), the application is deemed complete. Once the 

application is complete, the 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, the reviewing authority issues a final permit if it determines that the 

application meets all applicable requirements. Otherwise, the reviewing authority sends a letter 

denying the permit application with the reasons for the denial.

The subsections below discuss the comments received on the proposed process up 

through the public comment period. The comments received on the process for issuing the final 

permit or denial and on opportunities for subsequent administrative and judicial review are 

discussed in section 2.14 of this document.
Review of New Sources and Modifications in Indian Country

Response to Comments

64

2.7.4.1 General Comments on the Permit Issuance Process

Comment:

Eight industry commenters (0021.1, 0022.1, 0025. 1, 0027.1, 0028.1, 0032, 0048.1, 0081) 

and two tribal commenters (0026.1, 0031) commented that the proposed permit issuance process 

is too lengthy for minor sources and/or too uncertain. A number of the commenters indicated 

that state minor NSR programs are bound by shorter and more definite timelines, and that the 

minor NSR program in Indian country should be too. Two tribal commenters (0033, 0106.1) 

recommended that we specify a complete timeline in the final rule, but did not recommend a 

specific period.

Two industry commenters in the oil and gas sector (0027.1, 0081) stated that the 

processing requirements are too stringent for a minor source program, and are even more 

stringent in some cases than the PSD program. These commenters indicated that under the 

proposal, a permit application could be withheld without a final decision for an unreasonable 

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

and even cancellation of the project. The commenters believe that frequent project delays and 

cancellations in the oil and gas sector could ultimately lead to serious loss of available oil and 

natural gas supply being brought to market.

Four commenters recommended that we set a limit on the time that the reviewing 

authority can take to issue the final permit after it has received the permit application. Two 

industry commenters (0032, 0048.1) suggested 90 days/3 months after receipt of a complete 

application. One of these commenters (0048.1) noted that the New Mexico program is based on 

a 90-day review period. The other (0032) believes that 3 months is adequate, especially because 

the commenter believes that the review process cannot lawfully include imposition of a control 

technology requirement.

Another industry commenter (0025.1) suggested a fixed timeframe not to exceed 

150 days from the date an application is first received until the final determination. 

Response:

In light of the comments received, we decided to finalize a definite timeline for the overall 

minor source permit issuance process. We believe this timeline will provide regulatory certainty 

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

reviewing authority to plan for the permit issuance process. The timeline was finalized under 40 

CFR 49.154(b) and varies depending on the type of source being regulated under the minor NSR 

program as follows:

• For minor sources seeking a site-specific permit, the permit issuance process timeline 

includes a period of 45 days for the application completeness review as well as a 

30-day public comment period. Any site-specific permit will be granted or denied no 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

65

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 timeline includes a period of 60 days for the 

application completeness review as well as a 30-day public comment period. Any 

site-specific permit will be granted or denied no later than 1 year after the date the 

application is deemed complete and all additional information necessary to make an 

informed decision has been provided. 

• For minor sources seeking coverage under a general permit (discussed in 

section IV.C of the final rule preamble and under 40 CFR 49.156), the permit 

issuance process timeline includes a completeness review period of 45 days. Any

request for coverage by individual sources under a general permit will be granted or 

denied within 90 days of the receipt of such request for coverage by the reviewing 

authority. We believe that since the general permit requirements have been subject to 

public notice when the general permit was developed, a shorter permit issuance 

process is warranted for determining whether a source is eligible for coverage under 

the general permit. 

• For synthetic minor sources (discussed in section IV.D of this preamble and under 

40 CFR 49.158), the permit issuance process timeline includes, as proposed, a period 

of 60 days for the application completeness review as well as a 30-day public 

comment period. Any synthetic minor permit will be granted or denied no later than 

1 year after the date the application is deemed complete and all additional 

information necessary to make an informed decision has been provided as well.

2.7.4.2 Completeness Review Period

Comment:

We proposed that the reviewing authority would have 45 days to conduct a completeness 

review on an application for a minor NSR permit, and that if the source had not received a notice 

of completeness or a request for additional information in 50 days, the application would be 

deemed to be complete. A number of commenters believe that this is too long for a minor NSR 

program. Specifically, three industry commenters (0022.1, 0027.1, 0081) and one tribal 

commenter (0041) recommended a 15-day completeness review, while three industry 

commenters (0028.1, 0030, 0035.1) and two tribal commenters (0033, 0106.1) recommended a 

30-day limit. Two other industry commenters (0021.1, 0048.1) stated that the proposed period is 

too long without recommending a specific shorter period. These commenters often indicated that 

state minor NSR programs have shorter deadlines for the completeness review than the proposed 

45 days. One of the commenters (0048.1) recommended that the source be allowed to 

commence work on the proposed construction or modification as soon as the application is 

determined to be complete, as is permitted by the Idaho program.

Two industry commenters (0039, 0042) and one tribal commenter (0036.1) believe that a 

45-day completeness review period is appropriate, but stated that the 50-day limit for deeming 
Review of New Sources and Modifications in Indian Country

Response to Comments

66

the application is confusing and unnecessary. One of these commenters (0042) suggested that 

the minor NSR program require the completeness determination to be postmarked within 45 days 

of receipt. This commenter also asked that we clarify that the receipt date is the day that the 

reviewing authority receives the application, not the day that it is received by the reviewer within 

the agency. Another of the commenters suggested that there could be a statutory mail delivery 

period by which completeness determinations are deemed mailed and received, e.g., 3 days.

One tribal commenter (0101.1) requested that we extend the period for the completeness 

determination to 60 days in the final rule.

Response:

After reviewing the comments about the completeness review period, we still believe that 

the application for a permit under this program should be reviewed by the reviewing authority 

within 45 days of its receipt for site-specific permits (60 days from its receipt for synthetic minor 

permits and minor modification at major sources) to determine whether the application contains 

all the information necessary for processing the application. If the reviewing authority 

determines that the application is not complete, it will request additional information as 

necessary to process the application. If the reviewing authority determines that the application is 

complete, it will notify the source in writing. The reviewing authority’s completeness 

determination or request for additional information should be postmarked within 45 days of 

receipt of the permit application by the reviewing authority for site-specific permits (60 days of 

receipt of the permit application by the reviewing authority for synthetic minor permits and 

minor modifications at major sources). If the source does not receive a request for additional 

information or a notice of complete application postmarked within 45 days of receipt of the 

permit application by the reviewing authority for site-specific permits (60 days for synthetic 

minor permits and minor modification at major sources), the application will be deemed 

complete. Once the application is complete, the reviewing authority will develop a draft permit 

and provide public notice seeking comments on the draft permit for a 30-day period. After 

considering all timely, relevant comments, if the reviewing authority determines that the new 

source or modification meets all applicable requirements, it will issue the final permit. 

Otherwise, the reviewing authority will send a letter denying the permit application with reasons 

for the denial. 

We amended our proposed completeness review procedures, as suggested by some 

commenters, and we will no longer require that if the source has not received a notice of 

completeness or a request for additional information in 50 days, that the application would be 

deemed complete. We agree with those commenters that expressed that this provision can be 

confusing. Therefore, if the source does not receive a request for additional information or a 

notice of complete application postmarked within 45 days of receipt of the permit application by

the reviewing authority for site-specific permits (60 days for synthetic minor permits and minor 

modification at major sources), the application will be deemed complete.

For general permits, the reviewing authority must comply with a 45-day completeness 

review period to determine if the request for coverage under a general permit is complete. 

Therefore, within 30 days after the receipt of the coverage request, the reviewing authority must 

make an initial request for any additional information necessary to process this request and the 

source owner or operator must submit such information within 15 days. If the source does not 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

67

submit the requested information within 15 days from the date of the request for additional 

information and this results in a delay that is beyond the 45-day completeness review period, the 

90-day permit issuance period for this general permit will be extended by the additional days the 

source took to submit the requested information beyond the 45-day period. If the reviewing 

authority fails to notify the source owner or operator within a 30-day period of any additional 

information necessary to process the coverage request, the source will still have 15 days to 

submit such information and the reviewing authority must still grant or deny the request for 

coverage under a general permit within the 90-day general permit issuance period and without 

any time extension. 

If the reviewing authority determines that the request for coverage under a general 

permit has all the relevant information and is complete, we will notify the source owner or 

operator in writing as soon as that determination is made. If the source does not receive from the 

reviewing authority a request for additional information or a notice that the request for coverage 

under a general permit is complete within the 45-day completeness review period described 

previously, the request for coverage under a general permit will be deemed complete.

As proposed, the reviewing authority shall grant or deny the request for coverage under 

a general permit without another 30-day public comment period. However, the source owner or 

operator must submit a copy of such request to the tribe in the area where the source is locating. 

We will also post notice of the coverage request under the general permit on our website. During 

our review of the request for coverage under the general permit, commenters can only notify us 

of any concerns about the eligibility of the source to obtain coverage under that general permit 

and not on any other issue. The reviewing authority shall grant or deny the request for coverage 

under a general permit as expeditiously as possible by sending the source owner or operator a 

letter notifying the source of the approval or denial of the request. This letter is a final action for 

purposes of judicial review (see 40 CFR 49.159) only for the issue of whether the source 

qualifies for coverage under the general permit. If the request for coverage under a general 

permit is approved, the source owner or operator must post, prominently, a copy of the letter 

granting such request at the site where the source is locating and the source must comply with 

all the condition and terms of the general permit. 

2.7.4.3 Technical Review Period

Comment:

Several commenters disagreed with our proposal not to impose a limit on the length of 

time that the reviewing authority has to complete its technical review of a complete application 

and prepare a draft permit. These commenters generally indicated that this would create 

unreasonable uncertainty regarding the permitting schedule. Two commenters (0027.1, 0081) 

indicated that the lack of a deadline could result in significant delays for a variety of reasons, 

such as a lack of reviewing authority resources, frequent change in agency personnel, and low 

priority being assigned to the permit program within the agency.

One industry commenter (0022.1) recommended allowing 15 days for technical review, 

but not more than 30 days. One industry commenter (0039) recommended a 45-day period. 

Another industry commenter (0030) recommended a period of 45 to 60 days. Four industry 
Review of New Sources and Modifications in Indian Country

Response to Comments

68

commenters (0027.1, 0028.1, 0035.1, 0081) and one tribal commenter (0041) recommended a 

60-day period. Two industry commenters (0042, 0072) suggested that we promulgate a specific 

period, but did not recommend a specific length.

Response:

We believe that the reviewing authority has the discretion to determine the appropriate 

length of time needed to complete the technical review of a complete permit application based on 

the particular circumstances of that permit and other factors such as available resources. 

However, to address the commenters’ concerns about the uncertainty of the permitting schedule 

and to ensure that permits are issued on a timely manner, we have finalized a definite timeline 

for the overall minor source permit issuance process that varies depending on the type of source 

being regulated under the minor NSR program. See section 2.7.4.1 of this document for more 

details on these timelines. 

2.7.4.4 Public Comment Period

Comment:

One industry commenter (0028.1) recommended that the final rule limit the public 

comment period to 30 days (as proposed). One tribal commenter (0041) and two industry 

commenters (0021.1, 0072) suggested that we not require a public comment period for all minor 

NSR permits. 

The tribal commenter (0041) indicated that while the importance of the public notice and 

participation is well understood, the nature and lesser complexity of a minor source could allow 

this aspect of the proposed rule to be revisited in an effort to shorten permit processing times. 

The commenter suggested that we should consider a tiered screening approach to applicability 

for the public notice and participation requirements, which could be as simple as a de minimis

level for a particular regulated NSR pollutant, whereby only sources above this level would be 

subject to public notice requirements. The commenter gave Colorado Air Quality Regulation #3, 

Part B.III.C as an example of this type of public comment applicability provision 

One of the industry commenters (0072) indicated that requiring a 30-day public notice 

and comment period for all permits is atypical for minor NSR programs implemented by states, 

and that it is not necessary. The commenter believes that this type of requirement would simply 

prolong the process of approval for sources with a small potential to impact the public. The 

commenter suggested that it would be appropriate for public notice to be required using a 

different set of emissions thresholds than the ones that trigger permitting, or that the final rule 

could only require public notice for permits that satisfy a certain criteria, such as those 

containing a synthetic minor permit limit. The other industry commenter (0021.1) questioned 

whether every minor source permit should be required to go through public comment because of 

the sheer number of permits and the similarity between many of these permits.

Response:
Review of New Sources and Modifications in Indian Country 

Response to Comments 

69

We continue to believe that a public comment period is important and necessary to 

ensure that the public is informed about the permitting actions occurring in Indian country and 

to ensure that the particular needs of Indian country are considered. However, we are not 

matching the public participation requirements to the environmental significance of the project, 

as some commenters suggested, because we believe that the public has the right to know about 

any permitting actions occurring in their area, notwithstanding the environmental significance of 

the project, and that a 30-day public comment period on a permitting action, as in our existing 

regulations, is an appropriate timeline for this purpose. Therefore, we are finalizing the public 

comment period provisions as proposed. See section 2.11 of this document for more details 

about these public participation provisions. 

2.7.5 Permit Term

Comment:

Four industry commenters (0022.1, 0035.1, 0039, 0081) and one tribal commenter 

(0036.1) recommended that the final minor NSR program include a provision to allow a permit 

to be canceled at the source’s request when its emissions fall below the minor NSR applicability 

thresholds. The commenters requested this provision in light of the fact that production at oil 

and gas facilities typically declines rapidly, with an attendant decline in emissions.

Response:

Permits under this program would not be revoked at the source’s request when there is a 

rapid decrease in production. 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.

Comment:

One state/local commenter (0018.1) noted that the proposal specifies that permits to 

construct do not expire, as long as the source completes construction within a reasonable period 

of time. The commenter cautioned that this provision may be administratively impractical to 

implement, and 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 a showing of diligence by the 

source. Otherwise, the commenter believes that the source may proceed with construction, but 

not within a “reasonable time,” only to have EPA retroactively find that the permit actually had 

expired.

Response:

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 
Review of New Sources and Modifications in Indian Country

Response to Comments

70

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 permits do not expire and we are 

finalizing the proposed provisions as stated under 40 CFR 49.155(b). 

Under 40 CFR 49.155(b), we have finalized provisions that state that 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 months or 

more, and you complete construction in a reasonable time. The reviewing authority may extend 

the 18-month period where justified and that 18-month limit does not apply to the time period 

between construction of approved phases of a phased construction program. In those cases, you 

must commence construction of each such phase within 18 months of the approved 

commencement date for that phase. 

2.7.6 Other Comments on the Permit Issuance Provisions

Comment:

One state/local commenter (0051.1) expressed the opinion that the proposed minor NSR 

program will have a small impact, if any, on air quality because program contains no real 

requirements other than the need to obtain a permit. The commenter stated that there is no 

required degree of control technology (only a proposal for a work-intensive, case-by-case control 

technology analysis that may conclude that no technology is required), no requirement to assure 

that the proposed increase in emissions does not cause or contribute to a nonattainment situation, 

and no requirement that such emissions increases be mitigated with emissions offsets.

The commenter (0051.1) went on to assert that the only certain requirement in the 

proposed minor NSR program is that the public be allowed to comment on proposed permits 

prior to issuance. The commenter believes that this is a noteworthy improvement on the status 

quo, but that the public notice process is a labor-intensive process with no direct impact on air 

quality. Based on extensive experience with public notices and public involvement in permitting 

decisions, the commenter believes that for the proposed minor NSR program (which has no 

meaningful requirements such as BACT or offsets) the public’s involvement will be limited to 

pointing out that the program cannot address concerns about air quality and public health, and 

will only result in increased frustration on the part of the public.

Response:

The minor source permitting program we are finalizing with this action addresses, on a 

national level, many environmental and regulatory issues that are specific to Indian country. 

However, we recognize that different tribes may face different issues and therefore it would be 

impossible for us 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 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

71

competitive disadvantage by requiring substantially more stringent controls in a particular area 

of Indian country than are required in the surrounding areas. Therefore, we are finalizing 

specific permit requirements that the source and the reviewing authority will have to comply with 

in order to ensure that the NAAQS are achieved and maintained, but we are also providing the 

flexibility for considering 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 use in the surrounding states.

Furthermore, we disagree with the commenter when he implies that emissions offsets 

should be required for minor sources. Unlike section 173 of the Act, which specifically requires 

offsets for major sources in nonattainment areas, section 110(a)(2)(C) of the Act does not 

provide us with explicit authority to require offsets for minor sources. In addition, we believe 

that requiring offsets for minor sources will put tribes at a competitive disadvantage because 

offset requirements are not included in state minor NSR programs. 

Finally, we continue to believe that a public comment period is important and necessary

to ensure that the public is informed about the permitting actions occurring in Indian country 

and to ensure that the particular needs of Indian country are considered. Therefore, we are 

finalizing provisions that will require a 30-day public comment period for site-specific minor 

NSR permits. 

Comment:

One state/local commenter (0024.1) interpreted the proposal to require only annual 

emissions limits in the minor source permits (based on language at 71 FR 48705). The 

commenter recommended that short-term emission limits also be required in the permits, noting 

that short-term limits are more practically enforceable and can be made consistent with the 

averaging time of the shortest relevant ambient air quality standard associated with the regulated 

pollutant. 

Response:

We agree with this commenter. Therefore, we want to clarify that the reviewing authority 

may not only require annual emissions limits in the minor NSR permits, but also short-term 

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

emission limitation and, if applicable, depending on the relevant ambient air quality standard 

associated with the regulated pollutant.

Comment:

One industry commenter (0072) noted that the proposal for the minor NSR program 

stated in several places that any permit issued under the program would need to ensure that a 

proposed project would not cause or contribute to a NAAQS violation. The commenter further 

noted that the minor NSR program will apply to minor modifications at major sources (including 

Title V sources). The commenter believes that the NAAQS protection requirement should not 
Review of New Sources and Modifications in Indian Country

Response to Comments

72

result in the need for an existing Title V facility to certify compliance with the NAAQS or PSD 

increments. The commenter asserted that this requirement is specifically prohibited by 40 CFR 

71.2, in the definition of “applicable requirement,” where it specifically states that these ambient 

air quality standards are only applicable requirements for temporary sources permitted under 

section 504(e) of the Act.

Response:

As proposed, the NAAQS protection requirement only applies to the minor modification 

and not the existing major source, which may also be a Title V source and thus subject to Title V

requirements. 

Comment:

Two industry commenters (0028.1, 0072) commented on the proposed requirement of 

40 CFR 49.155(a)(2) and 40 CFR 49.154(c) for emissions limits for each affected unit in the 

permit, if such a limit is technically and economically feasible. One of these commenters 

(0028.1) believes that this is potentially over-reaching and beyond reasonableness. The 

commenter asserted that emissions units should be subject to emissions limits if there is a 

substantive regulatory basis to impose a limit, such as a technology or health-based standard, and 

that an emissions limit should be related to an environmental protection purpose, not imposed 

simply because it is feasible. The commenter requested that we revise these subsections to link 

the requirement for emissions limitations in minor NSR permits to a substantive regulatory or 

environmental protection basis.

The second industry commenter (0072) stated that it is not clear why the permit must 

contain an emission limit for each affected unit. The commenter asserted that such a limit is 

appropriate if a synthetic minor limit is required to avoid an applicable requirement. However, 

the commenter believes that in other cases, if operation at the design capacity of a source would 

not trigger any requirements and would not cause or contribute to a NAAQS or PSD increment 

violation, then there is no need for a permitted emission limit.

Response:

In order for the reviewing authority to ensure that the NAAQS are maintained or 

achieved, control technologies and its corresponding emissions limitations will be required as

necessary and based on the review of the permit application. As we stated in the proposal at 

40 CFR 49.154(c), after determining that your application is complete, the reviewing authority 

will conduct a case-by-case control technology review to determine the appropriate level of 

control, if any, necessary to assure that NAAQS are achieved, as well as the corresponding 

emission limitations for the affected emissions units at your source. To determine if a control 

technology requirement is needed and as stated in 40 CFR 49.154(c)(1), the reviewing authority 

will consider the following: (1) local air quality conditions (2) typical control technology or 

other emissions reduction measures used by similar sources in surrounding areas, 

(3) anticipated economic growth in the area, and (4) cost-effective emission reductions 

alternatives. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

73

The main reason for choosing a control technology is based on the air quality of the 

area, including the anticipated growth and subsequent emission increases that will come from 

this growth. However, we also understand that we need to consider the emission reduction 

measures already in place in surrounding areas (to reduce the possibility of pollution havens or 

too stringent air pollution control requirements in Indian country) and the cost of such measure 

in comparison with other alternatives that might achieve the same goal of air quality protection. 

This will ensure that the control technology chosen, if any, is not excessively burdensome or 

lenient. 

Therefore, emission limits that are technically or economically feasible will only be 

required when the reviewing authority has determined, mainly based on air quality 

considerations, that a control technology is needed. 

Comment:

One state/local commenter (0034.1) requested clarification of the following definition:

Emission limitation means a requirement established by the reviewing authority 

which 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. [Emphasis added.] 

The commenter stated that specifying that the quantity, rate, or concentration of 

emissions is limited “on a continuous basis” implies that every emission limitation must be 

complied with on an instantaneous time period and accompanied by a continuous emission 

monitoring system (CEMS). The commenter went on to say that a more pragmatic reader would 

draw the conclusion that the word “continuous” means that the limitation applies “at all times.” 

The commenter noted that the remainder of the regulations does not use the concept of 

continuous as meaning an instantaneous time period over which the limit must be achieved, 

which argues for the more pragmatic reading but does not certify that interpretation. The 

commenter requested that this definition be clarified. 

Response:

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 section IV.B.3 of the final rule preamble. 

Comment:
Review of New Sources and Modifications in Indian Country

Response to Comments

74

Two industry commenters (0027.1, 0081) noted that proposed 40 CFR 49.155(a)(7)(vii) 

would require the permittee to allow a representative of the reviewing authority on to the 

premises. The commenters believe that the authority of agency personnel to enter the premises 

should be contingent on agency personnel compliance with facility safety practices. One of the 

commenters (0081) recommended that a phrase that states “the reviewing authority must comply 

with the safety requirements of the permittee” should be included in the language. The second 

commenter (0027.1) suggested adding the phrase “the reviewing authority must comply with the 

safety requirements of the permittee and the facility in question.”

Response:

Upon further evaluation of these provisions, we have stated in the preamble of the final 

rule that we do believe that the representative of the reviewing authority should follow standard 

safety requirements identical to the ones that apply to the permittee’s employees.

Comment:

One tribal commenter (0041) noted that the proposed rule does not mention a schedule 

that would hold the reviewing authority to a specified time frame to complete permit revisions. 

The commenter recommended that permit modification provisions be included to clarify the 

applicability and timing of this type of request.

This commenter (0041) also suggested that an Off-Permit Change(s) provision be 

included in the minor NSR program. The commenter noted that to meet the changing demands 

of industry, many times changes will occur in the field and in order to remain compliant with 

permit requirements a source will submit the changes to the reviewing authority. In many 

instances due to a variety of reasons, the processing of these requests may be delayed. To 

alleviate time loss due to changes that are not otherwise addressed or prohibited in a permit, the 

commenter recommended that procedures addressing these types of requests be included in the 

NSR program.

Response:

In light of the comments received, we decided to finalize a definite timeline for the overall 

minor source permit issuance process. We believe this timeline will provide regulatory certainty 

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

reviewing authority to plan for the permit issuance process. The timeline was finalized under 40 

CFR 49.154(b) and it is described in section 2.7.4.1 of this document.

As to off-permit changes, we do not believe it is appropriate to allow off-permit changes, 

other than at exempted units, under the tribal minor source NSR program. The tribal minor 

source NSR program does, however, provide a number of mechanisms for addressing potential 

changes. First, to the extent that possible changes can be anticipated at the time of permit 

issuance, they can be included in the permit as alternative operating scenarios. Second, we 

would process changes in an unit’s allowable emission limit for a regulated NSR pollutant that is

not otherwise subject to major or minor source NSR through an administrative permit revision. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

75

See final 40 CFR 49.159(f) for more information on the provisions that govern administrative 

permit revisions. 

2.8 Applicability of the Minor NSR Program to Existing Sources

In the proposal preamble, we proposed Option 1 and solicited comment on Options 2, 3, 

and 4 as follows:

• Option 1 – Existing minor sources are exempt from the program until they propose a 

modification.

• Option 2 – Existing synthetic minor sources are subject to all aspects of the program 

and must submit an application within 1 year.

• Option 3 – All existing minor sources must register within 1 year, but not be subject 

to permitting requirements.

• Option 4 – All existing minor sources are subject to all aspects of the program.

In sections 2.8.1 through 2.8.5 below we summarize the comments on each of these 

options and comments suggesting other approaches. Our response to all the comments in these 

subsections appears at the end of section 2.8.5.

2.8.1 Comments on Option 1

Supporting comments:

Numerous commenters supported Option 1, including nine industry commenters (0021.1, 

0022.1, 0025.1, 0027.1, 0030, 0035.1, 0042, 0052, 0081) and three tribal commenters (0026.1, 

0036.1, 0044). These commenters typically made some or all of the following points:

• Option 1 is consistent with state minor NSR programs.

• Option 1 is the least burdensome on existing sources.

• Regulation of existing minor sources is not needed to maintain the NAAQS.

• The EPA and tribes do not have resources available to implement any of the other 

options.

One of the tribal commenters (0036.1) supported Option 1 only on the condition that an 

existing source would still be able to obtain a synthetic minor permit. If that would not be 

allowed, the commenter supported Option 2.

Two of the supportive industry commenters (0025.1, 0081) specifically indicated that 

under Option 1 an exempt minor source should be allowed to opt for a permit under the minor 

NSR program (without being subject to any of the requirements) to establish enforceable limits 

associated with a consent decree or other enforcement mechanism. A third of the industry 
Review of New Sources and Modifications in Indian Country

Response to Comments

76

commenters (0022.1), who favors applying state minor NSR programs in Indian country, noted 

that such limits are already available under state programs.

Opposing comments:

Three commenters specifically opposed Option 1, including one state/local commenter 

(0024.1), one private citizen (0016.1), and one environmental group (0037.1). The state/local 

commenter (0024.1) expressed concern that Option 1 would allow an existing source to obtain a 

permit with unrealistically high allowable emissions, and then to avoid becoming subject to the 

proposed rule when modifying by refining the allowable emissions calculations concurrent with 

the physical modification. The private citizen (0016.1) pointed out that Option 1 would not 

address any air quality impacts resulting from existing sources, and asserted that if EPA has a 

plan for NAAQS maintenance and planning under Option 1, we should state the plan explicitly.

The environmental commenter (0037.1) strongly urged EPA to ensure that existing major 

sources (as well as minor sources) are brought up to date with emissions control technology, in 

order to fill the gap left by decades of delay in addressing sources located in Indian country. The 

commenter agreed with our statement that there has been a regulatory gap in Indian country over 

the past 35 years, and added that there is often a lack of data regarding all of the air pollution 

sources in existence in Indian country. The commenter believes that this historical gap justifies 

action by EPA to address minor sources in Indian country that should have been covered by NSR 

requirements over the past three decades, as well as any existing major sources that lack current 

controls. As a result, the commenter does not support Option 1.

2.8.2 Comments on Option 2

Supporting comments:

One private citizen (0016.1) supported Option 2 if Option 3 (the commenter’s preferred 

option) proves to be too burdensome for reviewing authorities and sources. One tribal 

commenter (0036.1) endorsed Option 2 only if existing sources would not be able to obtain a 

synthetic minor permit under Option 1 (the commenter’s preferred option). Three tribal 

commenters (0020, 0050.1, 0098.1) and one environmental group (0037.1) favored a 

combination of Options 2 and 3 (discussed further in section 2.8.5).

Opposing comments:

Two industry commenters (0025.1, 0081) specifically opposed Option 2. One of these 

commenters (0025.1) stated that Options 2 through 4 represent extremely onerous provisions for 

sources and reviewing authorities and provide limited or no gain in terms of environmental 

improvement. The commenter also noted that areas with real air quality concerns are already 

required under other programs to develop attainment/maintenance plans. The other commenter 

(0081) stated that Option 2 would have a large monetary effect on existing oil and gas industry 

plants and compressor stations.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

77

2.8.3 Comments on Option 3

Supporting comments:

Ten tribal commenters (0031, 0033, 0038.1, 0041, 0047.1, 0053, 0076, 0091.1, 0097.1, 

0106.1), three state/local commenters (0023.1, 0024.1, 0034.1), and one private citizen (0016.1) 

supported Option 3. Three additional tribal commenters (0020, 0050.1, 0098.1) and one 

environmental group (0037.1) favored a combination of Options 2 and 3 (discussed further in 

section 2.8.5).

The supportive commenters generally supported this option because they believe it would 

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. Six of the supportive tribal commenters (0033, 0038.1, 0041, 0076, 0091.1, 

0106.1) also indicated that they would like us to add a provision requiring existing sources to 

notify the tribe if they change their operations or shut down.

One of the supportive tribal commenters (0038.1) suggested that, in addition to 

registration, each existing source be reviewed for pollution control equipment and emissions 

(which is similar to Option 4). The commenter added that changes to bring the facilities into 

compliance could be done over a few years to lessen the economic burden. The commenter 

believes that the tribe needs to manage emissions from minor sources to protect their resources 

because they greatly outnumber major sources on the reservation and cumulatively emit a large 

volume of pollutants.

One of the supportive state/local commenters (0034.1) added that registration would 

allow the reviewing authority to provide each source with its permitting options, as follows:

• True Minor Sources – obtain minor source permit or track emissions to annually 

certify continuing minor source status.

• Synthetic Minor Source – obtain synthetic minor permit in order to avoid major 

source requirements.

• Synthetic Minor Source Eligible – obtain synthetic minor permit to reduce allowable 

emissions below major source level(s) in order to avoid major source requirements.

• Major Sources – obtain major source permit.

• Already Permitted Major and Minor Sources – convert existing permits to new 

permitting system as provided for in the proposed regulations.

One industry commenter (0081) who supports Option 1 conceded that Option 3 would 

not be overly burdensome and would assist with NAAQS planning.

Opposing comments:

One tribal commenter (0036.1) who supports Option 1 or 2 specifically opposed Options 

3 and 4. The commenter believes that Options 3 and 4 would be unduly burdensome and 
Review of New Sources and Modifications in Indian Country

Response to Comments

78

overbroad, and could significantly disadvantage minor sources already operating in Indian 

country.

2.8.4 Comments on Option 4

Supporting comments:

Two tribal commenters (0056, 0061.2) and two private citizens (0094, 0096) supported 

Option 4. One of the tribal commenters (0056) added that the final rule should require a notice 

to the tribe when a source shuts down. 

The other tribal commenter (0061.2) noted that states have generally regulated minor 

sources, and most tribes have not done so in Indian country. In order to level the playing field 

and protect health and the environment, the commenter believes that all appropriate minor 

sources should be subject to the minor NSR program. The commenter stated that the 

requirements of the program are not onerous. The commenter believes that at a minimum, all 

synthetic minor sources should be subject to the program (Option 2) to assure that they limit 

emissions to the permitted level. This commenter also noted that the Indian country areas in the 

Northwest are already subject to a registration requirement under an applicable FIP.

One of the private citizens (0096) suggested that existing sources be required to meet 

control requirements, such as BACT or LAER, depending on the air quality in the region where 

the facility is located. The commenter added that this could be implemented through a “sunset 

clause,” which would allow sources some time to come into compliance and thereby avoid undue 

economic burden all at once.

Opposing comments:

Three industry commenters (0025.1, 0072, 0081), one tribal commenter (0036.1), and 

one state/local commenter (0018.1) specifically opposed Option 4. The state/local commenter 

(0018.1) believes that the case-by-case reviews required under Option 4 would overwhelm 

EPA’s capabilities. One of the industry commenters (0072) similarly indicated that requiring 

permits for existing sources would overwhelm EPA’s ability to write permits for new and 

modified sources, resulting in unnecessary construction delays. This commenter also noted that 

there is no requirement for existing major sources to obtain an NSR permit and stated that it is 

not clear what benefit would be gained from requiring minor sources to do so.

One of the industry commenters (0025.1) stated that Options 2 through 4 represent 

extremely onerous provisions for sources and reviewing authorities and provide limited or no 

gain in terms of environmental improvement. The commenter also noted that areas with real air 

quality concerns are already required under other programs to develop attainment/maintenance 

plans. The tribal commenter (0036.1), who supports Option 1 or 2, specifically opposed Options 

3 and 4. The commenter believes that Options 3 and 4 would be unduly burdensome and 

overbroad, and could significantly disadvantage minor sources already operating in Indian 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

79

country. Another of the industry commenters (0081) believes that Option 4 would be overly 

burdensome on oil and gas operations currently operating in Indian country.

2.8.5 Other Suggestions for Addressing Existing Sources

Comments:

A number of commenters suggested other ways to address existing sources in Indian 

country. Three tribal commenters (0020, 0050.1, 0098.1) recommended a combination of 

Options 2 and 3. Under this approach, all existing sources would be required to register and 

provide emissions information to the reviewing authority and the tribe, and synthetic minor 

sources would be required to apply for a permit and undergo the full permitting process. One of 

these commenters (0098.1) stated that this combination would be a good balance between 

protecting both air quality and Indian country economies.

An environmental group (0037.1) similarly suggested that we implement Options 2 and 3 

now, and follow up with comprehensive retrofit control requirements in coming years. The 

commenter recommended that we develop retrofit control requirements by source category to 

avoid the burden of case-by-case review and to allow prioritization of source categories.

One state/local commenter (0024.1) recommended that the final rule require existing 

sources to register (to aid in attainment planning and implementation of the NSR program) and 

to apply RACT controls. Another state/local commenter (0018.1) advocated that we require best 

available retrofit control technology (BARCT) for each class or category of source. The 

commenter believes that it would be easier for EPA to promulgate such source category BARCT 

rules than to perform case-by-case reviews, since the presumptively appropriate BARCT would 

be whatever the adjacent state agency has included in its SIP for that source category.

Response:

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 the

final rule preamble, which include provisions that require certain sources to obtain permits 

under this program 1 year after the effective date of this rule. 

We are not finalizing our preferred option for “true” minor sources, Option 1, because 

even though we agree that this option is consistent with state minor NSR programs and it is the 

least burdensome option for existing minor sources, we believe that collecting source inventory 

data for minor sources in Indian country is necessary to successfully implement the minor NSR 

program. In addition, the source emissions data are needed to assess the feasibility of an actual 

emissions based applicability test and to determine if we need to modify the minor NSR 

thresholds at a later time. We are also not finalizing Option 4 at this time because we believe 

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

Thus, under the program we are finalizing, we are creating a registration program for 

minor sources in Indian country. Under the minor source registration program, an owner or 

operator of an existing true minor source in Indian country (as defined in 40 CFR 49.152(d)) 
Review of New Sources and Modifications in Indian Country

Response to Comments

80

must register the source with the reviewing authority in their area within 18 months after the 

effective date of this program. This date has been modified from the 12 months we proposed to 

provide existing sources additional time to comply with these requirements. These provisions are 

discussed further in section VII.C of the final rule preamble. 

If the true minor source commences construction in the time period between the effective 

date of this rule and 36 months from the rule’s effective date, the source owner or operator must 

register the source with their reviewing authority within 90 days after the source begins 

operation. 

If construction or modification of the source is scheduled to commence any time on or 

after 36 months from the effective date of this rule, the source must submit a permit application 

and the information in the application will be used to fulfill all the other registration 

requirements described in 40 CFR 49.160(c)(2). For modifications, the permit application must 

also include the source’s actual emissions (if available). 

This registration will be a one-time registration (not an annual registration) of the

source’s estimated actual and 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. 

2.9 Synthetic Minor Sources

The proposed minor NSR program includes provisions at 40 CFR 49.158 for synthetic 

minor source permits for both criteria pollutants and HAPs. With such permits, a source that has 

the potential to emit a pollutant in major amounts, but has actual emissions that are below the 

major source threshold, can accept enforceable emission limitations that reduce its potential 

emissions below the major source threshold. The synthetic minor source will then avoid the 

requirements that apply to major sources.

Supporting Comments:

Two industry commenters (0025.1, 0035.1), two tribal commenters (0031, 0036.1), one 

state/local commenter (0051.1), and one private citizen (0094) support at least some aspects of 

the proposal to provide for synthetic minor permits. Two of these commenters (0025.1, 0036.1) 

noted that this option has previously been available for sources located outside of Indian country.

The state/local commenter (0051.1) believes that synthetic minor sources would be better 

addressed by the adoption of regulations specifically designed to allow the granting of synthetic 

minor operating permits, rather than preconstruction permits. The private citizen (0094) supports 

synthetic minor source permits for criteria pollutants, but not for HAPs because of the potential 

danger to human health and the environment from these hazardous pollutants. This commenter 

also suggested specific wording changes in proposed 40 CFR 49.158(a)(1)(ii)(A) (revising it to 

read “... a description of its effect on actual emissions or and the potential to emit.”) and 

49.158(a)(1)(ii)(H) (revising it to read “Estimates of the allowable emissions and/or potential to 

emit ....”
Review of New Sources and Modifications in Indian Country 

Response to Comments 

81

Opposing Comments:

One tribal commenter (0041) and one private citizen (0092.1) opposed the proposal to 

allow for synthetic minor source permits. The private citizen (0092.1) apparently believes that 

synthetic minor source permits are not available outside of Indian country and therefore opposed 

the proposal in the belief that HAP sources would rush to Indian country to avoid MACT 

standards, thereby undermining Congressional intent to protect human health and inflicting 

economic disadvantage on HAP sources located outside of Indian country.

The tribal commenter (0041) believes that the proposed synthetic minor rule will hinder 

some tribes’ ability to develop and/or maintain their own sustainable Title V major source 

permitting program by decreasing the number of major sources and thereby reducing permitting 

fees collected and utilized by the tribes to run their Title V permitting programs. The commenter 

also indicated that the inclusion of the synthetic minor source provision will force certain tribes’ 

major source permitting programs to either raise the remaining major sources’ permitting fees or 

restructure their program to ensure sustainability. The commenter requested that either specific 

language be incorporated in the minor NSR rule to allow for each tribe to decide whether or not 

to allow for a synthetic minor permit program, or the proposed synthetic minor source rule be 

made applicable only to new sources constructed following the effective date of this rule.

Response:

We agree with those commenters that would like us to allow synthetic minor source 

permits for both criteria pollutants and HAPs. We believe that allowing synthetic minor source 

permits could be beneficial to the environment by reducing the amount of pollution that could 

have been emitted to the air otherwise. In addition, this option has been available for sources 

outside of Indian country for both regulated NSR pollutants and HAPs for many years. Thus, we 

disagree with the commenter who believed that we will be creating pollution havens in Indian 

country for HAP sources because HAP sources who obtain synthetic minor permits need to

comply with emissions limits that are enforceable as a practical matter (as defined in 40 CFR 

49.152) and with the applicable regulations under 40 CFR part 63. 

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 described in this rule’s proposal had already 

allowed sources in Indian country, until this FIP becomes final, to limit their PTE 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.” For details on the 

synthetic minor provisions we have finalized, please see section IV.D of the final rule preamble. 
Review of New Sources and Modifications in Indian Country

Response to Comments

82

In regards to changing the proposed regulatory language under 40 CFR 

49.158(a)(1)(ii)(A) and 49.158(a)(1)(ii)(H), we believe is not feasible. A source owner will be 

either proposing a new or modified source. A new source can only estimate the effect of the 

proposed emission limitations on their PTE (they will lack actual emissions data), while an 

existing source will estimate the effect of the proposed limitations on allowable limits not PTE as 

described in section IV.A.2 of the final rule preamble. 

We also disagree with the commenter that suggested that regulations for synthetic minor 

permits should be part of an operating permits program instead of the preconstruction permits 

program established in the final rules. EPA believes that the use of a pre-construction permit 

program is preferable to the use of an operating permit program for this purposes for a number 

of reasons. First, EPA has determined that it is appropriate to establish and implement a preconstruction minor source NSR permit program in Indian country in order to protect air quality 

in those areas and this would be true even if there were a separate operating permit program. 

As a result, EPA believes that the establishment of an operating permit program would be 

somewhat redundant and would result in unnecessary complexity. Second, EPA believes that a 

pre-construction permit program is imminently suited to the issuance of synthetic minor source 

permits because it is specifically designed to take into account the affect of increases in 

emissions in the area where a new source will be located. Finally, to the extent that the 

commenter is concerned about ongoing operations once a pre-construction permit is issued, it is 

important to remember that the requirements specified in the pre-construction permit will govern 

facility operations on an ongoing basis. 

Comment:

One industry commenter (0081) stated that general permits should be allowed for the 

permitting of synthetic minor sources. The commenter believes that even though synthetic minor 

permits are intended to be a less burdensome program, the use of general permits may still be 

advantageous due to streamlined processes and the absence of public notice requirements. 

Accordingly, the commenter requested that we clarify that general permits can be used for 

synthetic minor permits.

Response:

We disagree with this commenter since these sources are otherwise major sources until 

they are approved to construct under a synthetic minor source permit. We believe that the size 

and amount of emissions from these sources warrants a case-by-case review of the source and 

their proposed emission limitations. Therefore, in the final rule, we are not allowing general 

permits for synthetic minor sources. 

2.10 Case-by-Case MACT Determinations under Section 112(g) of the 

Act

Section 112(g)(2)(B) of the Act provides that a major source of HAPs may not be 

constructed or reconstructed unless MACT controls are installed. If the source is not in a source 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

83

category for which a MACT standard has been established, MACT for the source must be 

determined on a case-by-case basis. The proposed minor NSR program provides one mechanism 

for such a case-by-case determination in Indian country. Other options include a part 71 permit 

action or a “Notice of MACT Approval.”

Supporting Comments:

One industry commenter (0025.1) and two tribal commenters (0036.1, 0061.2) supported 

the proposal to provide for case-by-case MACT determinations in the minor NSR program. The 

industry commenter (0025.1) noted that the proposal is consistent with the practice of most state

programs. One of the tribal commenters (0036.1) indicated that it would be administratively 

convenient to address case-by-case MACT determinations in a minor NSR permitting action, and 

the other (0061.2) noted that regulation of HAPs is important for health.

Opposing Comment:

One industry commenter (0081) suggested that if a source is major for HAPs, it should 

not apply for a minor source permit but instead apply for a major source permit, which would 

require a case-by-case MACT determination.

Other Comments:

One state/local commenter (0018.1) believes that the proposal conflicts with the 

requirement of the Act that major sources of HAPs must obtain Title V permits. The commenter 

found the proposal preamble to be confusing in that we stated that a source could obtain a caseby-case MACT determination through the minor source program, but would ultimately have to 

obtain a part 71 permit for the source (71 FR 48715). The commenter indicated that this 

provision needs to be clarified to demonstrate that it is not in conflict with the Act.

One industry commenter (0021.1) similarly found the preamble explanation to be 

confusing. This commenter requested that we provide definitive clarification as to whether 

sources major for only HAPs, and thus minor for criteria pollutants, can be permitted under the 

proposed minor source NSR permitting process.

Response:

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. We believe it is 

administratively convenient for us, as the reviewing authority, and for the source owner to 

combine the preconstruction permit review process for both regulated NSR pollutants and caseby-case MACT determinations for HAPs under this minor NSR program in circumstances where 

the source is either a true minor source or it can effectively limit its PTE for regulated NSR 

pollutants to below major source levels, but cannot do so for HAP. If not, the minor NSR source 

that is major for HAPs would have to apply for both a minor NSR permit for its regulated NSR 

pollutant emissions and a separate preconstruction or reconstruction part 71 permit or Notice of 

MACT Approval for its case-by-case MACT determination prior to commencing construction. 
Review of New Sources and Modifications in Indian Country

Response to Comments

84

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 of HAP will be subject to requirements that will be less stringent as 

will otherwise be the case. The source still needs to comply with the requirements of 40 CFR 

63.40 through 63.44 that apply to case-by-case MACT determinations using “other 

administrative procedures.” In addition, we want to clarify, as requested by one commenter, 

that any source that is required to obtain a case-by-case MACT determination is a major source 

of HAPs and thus will have to obtain a part 71 permit for its major source emissions. 

Moreover, we would like to clarify that for case-by-case MACT determinations under this 

minor NSR program, we will apply the public noticing requirements under 40 CFR 49.157 and 

the administrative and judicial review procedures under 40 CFR 49.159. See final 40 CFR 

49.153(a)(5) for the provisions related to section 112(g) case-by-case MACT determinations. 

2.11 Public Participation Requirements

We proposed public participation requirements for minor NSR permits in Indian country 

that are consistent with the requirements at 40 CFR 51.161 for state minor NSR programs. 

Specifically, the proposed program would require that the reviewing authority 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. We proposed a 

mix of mandatory and optional methods for providing public notice.

Supporting Comments:

Three commenters generally supported the proposed public participation requirements, 

including two tribal commenters (0031, 0101.1) and one state/local commenter (0023.1). One of 

the tribal commenters (0031), although supporting the proposed public participation 

requirements, added that the overall permitting process time frame should be shortened. The 

other tribal commenter (0101.1) stated that EPA must ensure that the government-to-government 

consultation process with the affected tribal government is followed throughout. The state/local 

commenter (0023.1) added that the proposal for alternative notification methodologies is a good 

idea.

One of the tribal commenters (0036.1) and one of the industry commenters (0039) agreed 

with the proposed mix of mandatory and optional approaches to notices, where notices are 

needed. These commenters also indicated that they understand the need for public participation 

and hearings on draft general permits, since such permits will be used by many sources. They 

supported the 30-day comment period for draft permits and strongly recommended a 45-day 

limit for the reviewing authority to consider the public comments and make a decision on 

pending draft permits.

Opposing Comments:

Eleven commenters, including six industry commenters (0022.1, 0027.1, 0029.2, 0035.1, 

0081), three tribal commenters (0026.1, 0036.1, 0097.1), and two state/local commenters 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

85

(0018.1, 0034.1), generally opposed the proposed public participation requirements for being too 

burdensome. One environmental group (0037.1) expressed opposition to certain aspects of the 

requirements for not being strong enough.

The opposing commenters frequently indicated that the proposed requirements would be 

burdensome and time-consuming, and would be open to abuse by persons who oppose any sort 

of development to obstruct and delay even the smallest projects. Most also asserted that state

minor NSR programs do not have such extensive requirements for most minor NSR permits. Six

of the commenters (0027.1, 0029.2, 0035.1, 0039, 0081) 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, specifically:

• Industry commenters 0027.1 and 0081 suggested a threshold of 40 tpy, consistent 

with the approach in the Colorado minor NSR program.

• Industry commenter 0035.1 suggested a threshold of allowable emissions at a level of 

50 percent of the major source threshold.

• Tribal commenter 0097.1 suggested a threshold of no lower than 60 percent of the 

major source threshold for requiring public notice outside the reservation.

• Industry commenter 0039 suggested a threshold of 50 tpy actual emissions. The 

commenter also gave Utah and Colorado as examples of state programs with 

reasonable exemptions.

• Industry commenter 0029.2 suggested a minor NSR program which “may vary the 

procedures for, and timing of, public review in light of the environmental significance 

of the activity.” (Quoting our proposed 40 CFR 51.161(c), 60 FR 45564, August 31, 

1995, which was never finalized.) The commenter also stated that the program 

should designate certain categories of sources and changes as being de minimis and 

not requiring public participation.

One of the industry commenters (0029.2) noted that we relied on the provisions of 

40 CFR 51.161 in order to be consistent with existing state requirements. The commenter 

asserted that this statement is misleading, as a number of states’ minor NSR rules currently 

match the public participation process to the environmental significance of a prospective project. 

The commenter quoted proposals by EPA in 1994 and 1995 as evidence that we have endorsed 

this approach in the past (59 FR 44460, August 29, 1994; 60 FR 45549 and 45564, August 31, 

1995). These proposals were primarily focused on revisions to the procedures for revisions Title 

V permits, but also proposed conforming changes to 40 CFR 51.161.

The environmental group (0037.1), who believes that the requirements should be 

strengthened, stated that the proposal fails to ensure adequate opportunity for public notice and 

comment on minor NSR applications. In particular, the commenter recommended that the 

requirements be changed as follows:

• Require notices to be sent by mail or email to all persons requesting such notice 

(currently included in the optional measures).
Review of New Sources and Modifications in Indian Country

Response to Comments

86

• Require notices to be published in a tribal newspaper or newsletter or by other means 

of publication customary to the tribe, where possible (currently included in the 

optional measures).

• Require that a public hearing be held whenever one is requested (currently required 

only when, on the basis of requests, there is a significant degree of public interest).

Response:

After careful consideration of these comments, we are finalizing our public participation 

requirements for site-specific permits as proposed with the clarification that the appropriate 

types of notice will take into consideration any seasonal activities that may conflict with the 

public participation of the local community (e.g., subsistence hunting and fishing or other 

seasonal cultural practices). We believe these requirements are consistent with the 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. 

We are not matching the public participation requirements to the environmental 

significance of the project, as some commenters suggested, because we believe that the public 

has the right to know about any permitting actions occurring in their area notwithstanding the 

environmental significance of the project and that a 30-day public comment period on a 

permitting action, as in our existing regulations, is an appropriate timeline for this purpose. The 

EPA’s regulations require that state minor NSR permitting actions meet the public participation 

requirements of 40 CFR 51.161. Those requirements do not apply where sources are not 

required to obtain permits. Therefore, the only time EPA’s SIP regulations would allow a state 

to “match” the public participation requirements to the environmental significance of a project 

is where the state program establishes a significance threshold, and a project falls below that 

threshold. In that case, no public participation would be required because no permit is required.

In addition, we do not believe that our public participation requirements need to be 

strengthened at this time, as some commenters suggested, because we used the existing 

regulations under 40 CFR 51.161 as the basis for our public noticing requirements and added 

additional optional provisions to ensure that factors such as the nature and size of the source, 

the local air quality, and the characteristics of the population in the area are considered. 

Therefore, we believe that these requirements are more detailed than the requirements in our 

existing regulations under 40 CFR 51.161 and do not need to be strengthened even further at 

this time. 

Furthermore, we continue to believe that, as proposed, the reviewing authority should be 

able to hold a public hearing at its own discretion. We believe that the reviewing authority is in 

the best position to determine whether there is significant interest in a hearing on a case-by-case 

basis, and to decide whether it is more administrative efficient and economically prudent to ask a 

small number of commenters to submit their comments in writing. 

To address any concerns about the length of the entire permit issuance process, we are 

finalizing definite timelines for the overall permitting process depending on source type. See 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

87

section IV.B.4.a of the final rule preamble for more details about the permit issuance process 

timeline.

2.12 Monitoring, Recordkeeping, and Reporting

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 operators of stationary sources to monitor emissions from such 

sources,” as well as “periodic reports on the nature and amounts of emissions and emissionrelated data from such sources.” Accordingly, we proposed that all permits issued under the 

minor NSR program contain emission limitations that are enforceable as a practical matter, as 

well as adequate monitoring, recordkeeping, and reporting requirements as may be necessary to 

assure compliance with those limitations.

2.12.1 General Comments on Monitoring, Recordkeeping, and Reporting

In sections 2.12.1 through 2.12.4 below we summarize the comments received, if any, in 

regards to the monitoring, recordkeeping and reporting requirements. Our response to all the 

comments in these subsections appears at the end of section 2.12.4.

Comment:

Five industry commenters (0021.1, 0030, 0032, 0035.1, 0039) and one tribal commenter 

(0036.1) commented generally that the proposed monitoring, recordkeeping, and reporting 

requirements are too burdensome and are not justified for minor sources. These commenters 

generally stated that the requirements are much more stringent than what is required under state

minor NSR programs and are basically the same as the requirements for major sources under the 

Title V permitting program. The commenters typically suggested that we develop requirements 

that are comparable to state minor source requirements. One industry commenter (0035.1) 

suggested that we exempt true minor sources from the monitoring, recordkeeping, and reporting 

requirements. 

2.12.2 Monitoring Requirements

We proposed that minor NSR permits must include monitoring requirements sufficient to 

assure compliance with any control technology requirements contained in the permit. 

Monitoring approaches may include continuous emissions monitoring systems (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 each minor source based 
Review of New Sources and Modifications in Indian Country

Response to Comments

88

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 the source. We did not receive any 

comments specific to the proposed requirements for monitoring other than those general 

comments summarized above in section 2.12.1.

2.12.3 Recordkeeping Requirements

We proposed that permits must include recordkeeping requirements sufficient to assure 

compliance with the enforceable emission limitations in each permit, such as records of all 

calculations using emissions factors, all stack tests or sampling information including date and 

time of test or sampling, the name of the company or entity that performed the analyses, the 

analytical techniques or methods used, the results of such analyses and the operating conditions 

existing at the time of sampling or measurement. All such records (including support 

information) must be retained for 5 years from the date of the record. We did not receive any 

comments specific to the proposed requirements for recordkeeping other than those general 

comments summarized above in section 2.12.1.

2.12.4 Reporting Requirements

We proposed that sources must submit annual monitoring reports to show compliance 

permit emission limitations. We also proposed that sources must submit 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.

Comment:

Three industry commenters (0027.1, 0039, 0081) specifically asserted that requiring 

annual monitoring reports for minor sources is overly burdensome. These commenters indicated 

that testing and monitoring results should be maintained on-site or at a local field office and be 

made available upon request. The commenters noted that this is more consistent with state minor 

NSR programs.

One industry commenter (0072) requested that the monitoring reports requirement be 

changed to require submittal no less than annually, which would give the reviewing authority 

flexibility to require semiannual monitoring reports. The commenter favors semiannual 

reporting since Title V facilities are required to submit semiannual monitoring reports, and it 

would simplify the reporting process if all facilities on Indian land were on the same reporting 

schedule. The commenter noted that this approach would also reduce the volume of monitoring 

data required to be submitted with each report.

Other Comments:
Review of New Sources and Modifications in Indian Country 

Response to Comments 

89

Three industry commenters (0021.1, 0039, 0081) recommended that the word “prompt” 

(for reporting of deviations) be defined within the regulation. The commenters are concerned 

that the proposed approach will result in inconsistent definitions in different permits, resulting in 

unnecessary advantages or disadvantages based on the area and/or the permit writer. Two of the 

commenters (0039, 0081) also noted that the requirement for deviation reporting is a traditional 

Title V requirement and not a minor source requirement.

Response:

We disagree with those commenters that state that the monitoring, recordkeeping and 

reporting requirements are too burdensome. As stated in the proposal, sections 110(a)(2)(A) 

and 110(a)(2)(C) of the Act require preconstruction permitting programs to 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.” 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. We believe that these same core policies should apply in Indian country and that the 

annual reporting requirements are needed to ensure that sources are complying with their 

annual emissions limits as well as any other limits determined by the reviewing authority. 

We do not believe, however, that requiring monitoring reports more frequently than 

annually, as one commenter suggested, would be appropriate for minor sources. Minor sources 

are typically much smaller than the Title V sources the commenter is referring to. As a result, 

requiring monitoring reports more frequently than annually might be overly burdensome for 

these sources. We encourage reviewing authorities to develop annual monitoring schedules in 

accordance with Title V permit monitoring schedules if that facilitates the reporting of emissions 

to the reviewing authority. 

We also disagree with the commenters that would like us to define the word “prompt” for 

the reporting of deviations. We continue to believe that deferring the definition of this term to 

the reviewing authority is more appropriate to ensure that the respective permits are protective 

of the NAAQS while also ensuring that the particular needs of the area where the source is being 

permitted are considered. For example, if a source is locating in a particular area of Indian 

country, the reviewing authority might define this term by considering the provisions of the state 

and/or the air quality control districts surrounding the area of Indian country where the source 

is locating as well as technical and economical feasibility. Therefore, we are finalizing the 

monitoring, recordkeeping and reporting requirements as proposed and these requirements will 

be included in each permit as necessary to assure compliance with the source’s emission 

limitations.

2.13 General Permits

The proposed minor NSR program for Indian country would allow reviewing authorities 

to issue “general permits.” A general permit is a preconstruction permit that may be applied to a 
Review of New Sources and Modifications in Indian Country

Response to Comments

90

number of similar emissions units or stationary sources. The purpose of a general permit is to 

simplify the permit issuance process for similar facilities so that a reviewing authority’s limited 

resources need not be expended for case-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. Comments were requested on the use of general 

permits, eligible emissions units and source categories, and the process of issuing general 

permits.

Supporting Comments:

Eight industry commenters (0025.1, 0027.1, 0030, 0032, 0035.1, 0039, 0072, 0081) and 

two tribal commenters (0036.1, 0101.1) supported the establishment 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. 

One of the commenters (0025.1) noted that the development of general permits will help 

avoid the need for case-by-case control technology review. Another of the commenters (0027.1) 

believes the general permit system will reduce the administrative burden of obtaining permits for 

the majority of projects that have minimal environmental impact. 

One of the tribal commenters (0101.1) supported the proposal, but suggested EPA 

consider delegating minor source general permit issuance to the Regional Offices who can work 

with the tribes in their areas on a regional basis to develop general permits that are appropriately 

representative of those tribes.

Opposing Comments:

One environmental group commenter (0037.1) urged EPA to issue guidance for source 

categories to streamline permitting, rather than using general permits. The commenter agreed 

that there is a need to simplify the permitting process for similar sources, but believes that 

developing guidance documents is a better method. The commenter used the example of 

Wyoming Air Quality Division’s guidance for oil and gas development source and for coal bed 

methane sources (http://deq.state.wy.us/aqd/oilgas.asp and 

http://deq.state.wy.us/aqd/coalbed.asp).

Response:

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 

issuance process, avoid the need for case-by-case control technology review for those source 

categories/units for which the general permit was established, and reduce the administrative 

burden of the reviewing authorities. 

However, we disagree with the commenter that preferred guidance rather than general 

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

not appropriate in all circumstances, but we believe it is appropriate to develop general permits 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

91

for certain source categories/units, especially for those source categories/units for which the 

control technology or technologies available are fairly standard. Therefore, we are finalizing 

the option of developing general permits as proposed under 40 CFR 49.156.

Comment:

Seven industry commenters (0021.1, 0022.1, 0027.1, 0035.1, 0039, 0052, 0081) and one 

tribal commenter (0036.1) specifically mentioned establishing general permits for the oil and gas 

sector. One of these commenters (0027.1) pointed out that oil and natural gas exploration and 

production projects have difficult scheduling issues that permitting delays exacerbate.

Response:

In light of the comments received, we will develop a general permit specific for the oil 

and gas industry that will address many of the concerns expressed by these commenters.

Comment:

 One industry commenter (0025.1) recommended that EPA adopt general permits for 

categories of similar sources and emissions units that will be applicable in all jurisdictions 

implementing minor NSR program for Indian county throughout the nation. Another industry 

commenter (0039) similarly suggested that general permits should be consistent across the 

differing agencies to avoid confusion.

One industry commenter (0027.1) suggested establishing a workgroup that would assist 

in development of the draft general permits. This commenter indicated a willingness to fund the 

workgroup and hire a contractor to work with EPA in developing a general permits program that 

will benefit all parties involved. Other industry commenters (0021.1, 0022.1) agreed that it 

would be beneficial if industry representatives had input into the development of the general 

permits. One of the latter commenters (0021.1) added that EPA needs to define further the 

specifics of the general permit program (e.g., criteria for developing general permits and the 

categories of emissions sources to which the program may apply) prior to promulgation of the 

proposed rule.

Three industry commenters (0027.1, 0030, 0081) believe that general permits should be 

developed before the minor NSR program is adopted on Indian lands.

Response:

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

general permits for various source categories. The permits will be consistent across all of 

Indian country, as some commenters suggested, unless there is a need to develop specific 

provisions, or a specific general permit, for a particular area of Indian country. We also plan to 

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 and comment under 40 CFR 49.157, as appropriate 

to account for advances in control technology or for other pertinent reasons. However, when we 
Review of New Sources and Modifications in Indian Country

Response to Comments

92

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. 

Comment:

Two industry commenters (0027.1. 0081) stated that the general permit framework 

should allow either equipment specific or threshold based permits. The commenters noted that, 

as proposed, general permits appeared to be equipment specific, which matches certain effective 

state programs. However, the commenters added that some states also have threshold-based 

permits that are also effective. For example, Commenter 0081 pointed out that Colorado is 

currently proposing a registration of projects emitting less than 20 tpy, without further control 

requirements for these small sources, which may be adequate in some Indian country areas. The 

commenters suggested that threshold-based general permits may allow the owner/operator to 

propose controls, monitoring, and recordkeeping to reduce emissions below the permit 

applicability thresholds (e.g., 10 tpy for NOx), similar to synthetic minor permits for larger 

sources.

Response:

We are considering all options as we develop general permits for certain source 

categories.

Comment:

Two industry commenters (0027.1, 0081) stated that the 90-day period for the reviewing 

authority to approve the general permit should be eliminated, or at least reduced to 30 days. One 

of the commenters (0027.1) stated that many states allow the notification of use of a general 

permit simultaneously with construction (i.e., Texas’ permit-by-rule or PBRs) or even 90 days 

after the completion of a well (i.e., Wyoming’s O&G Permit). The commenter (0027.1) believes 

that if general permits must be reviewed by agency personnel, the project should be 

automatically approved if the reviewing authority has not responded to the applicant within 

30 days.

Response:

We disagree with those commenters that would like us to make final decisions on general 

permit applications in less than 90 days. We continue to believe that a 90-day permit issuance 

timeframe is appropriate since the reviewing authority needs adequate time to determine if your 

request for coverage has all the relevant information and is complete. If not, the reviewing 

authority will need to request additional information. Moreover, we believe it is appropriate to 

add a completeness review time period for sources requesting coverage under a general permit, 

as one commenter suggested, to ensure that both sources and reviewing authorities act on a 

request for coverage under a general permit as expeditiously as possible. The reviewing 

authority must comply with a 45-day completeness review period to determine if a source’s

request for coverage under a general permit is complete. Therefore, within 30 days after the 

receipt of the coverage request, the reviewing authority must make an initial request for any 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

93

additional information necessary to process this request and the source owner or operator must 

submit such information within 15 days. If the source owner or operator does not submit the 

requested information within 15 days from the date of the request for additional information and 

this results in a delay beyond the 45-day completeness review period, the 90-day permit issuance 

period for the general permit will be extended by the additional days the source owner or 

operator takes to submit the requested information beyond the 45-day period. If the reviewing 

authority fails to notify the source within a 30-day period of any additional information 

necessary to process the coverage request, the source owner or operator will still have 15 days 

to submit such information and the reviewing authority must still grant or deny the request for 

coverage under a general permit within the 90-day general permit issuance period and without 

any time extension. 

If the reviewing authority determines that the request for coverage under a general 

permit has all the relevant information and is complete, we will notify the source in writing as 

soon as that determination is made. If the source does not receive from the reviewing authority a 

request for additional information or a notice that the request for coverage under a general 

permit is complete within the 45-day completeness review period described previously, the

request for coverage under a general permit will be deemed complete.

If a source qualifies for a general permit, the source owner or operator may request 

coverage under that general permit to the reviewing authority 4 months after the effective date of 

the general permit, that is, 6 months after publication of the general permit in the Federal 

Register. The reviewing authority must notify the source of the final decision within 90 days of its 

receipt of the coverage request. The permit issuance process timeline for general permits is less 

than that for the site-specific permits, since the minor NSR program requirements, including 

control technology, if any, have already been established during the development of the general 

permit. See section IV.C. of the final rule preamble for more details on the general permit 

provisions. 

Comment:

One industry commenter (0022.1) noted that we proposed that the general permit and 

letter be maintained at the source location at all times. The commenter pointed out that many oil 

and gas sites are unmanned and suggested that we allow the general permit and letter to be 

maintained at the operator’s closest office to the emission source.

Another industry commenter (0027.1) similarly suggested that the requirement to post a 

prominent notice of the general permit letter of intent should be removed. The commenter noted 

that if a general permit applies, a review process – including public review and comment – has 

already been undertaken. The commenter believes that requiring an applicant to further post 

information at the source about the fact that now a general permit will be applied is duplicative 

and unnecessary.

Response:

We continue to believe that, posting prominently, a copy of the letter granting a source’s 

request for coverage under a general permit at the site where the source is locating is 

appropriate since this will facilitate any inspection by the reviewing authority. Moreover, this 
Review of New Sources and Modifications in Indian Country

Response to Comments

94

will allow the public to be informed about the sources locating in their area. The original copy 

of this letter of approval can be kept in a safe place, for example, a corporate office, especially 

for source locations that are unmanned. 

Comment:

One state/local commenter (0018.1) who is neutral on the general permits proposal stated 

that, if we adopt general permits, we should apply a similar approach to existing sources, not just 

new sources.

Response:

We agree that it may be appropriate to create general permits for certain source 

categories that would apply to both new and existing minor sources. We are considering all 

options as we develop general permits for certain source categories.

Comment:

One industry commenter (0022.1) said that the establishment of a general permit for 

similar sources would be beneficial only if it is easy for a small business to understand and 

complete (without the need of a consultant). 

Response:

To the extent possible, general permits will be simple to understand and complete by the 

regulated community. However, EPA will assist the regulated community as needed to fulfill the 

requirements of this minor NSR program. 

2.14 Final Permit Issuance and Administrative and Judicial Review 

2.14.1 Notice of Final Permit Action

Under the proposal, after the decision on a permit, the reviewing authority must notify the 

applicant of the decision, in writing, and if the permit is denied, of the reasons for the denial. If 

the reviewing authority issues a final permit to an applicant, it must make a copy of the permit 

available at all of the locations 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. Depending on the 

circumstances of the 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 that may be used to provide public notice of the draft permit.

Supporting Comments:
Review of New Sources and Modifications in Indian Country 

Response to Comments 

95

One tribal commenter (0036.1) and one industry commenter (0039) 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.”

Opposing Comments:

Three industry commenters (0027.1, 0030, 0081) and one state/local commenter (0018.1) 

indicated that the proposed notification requirements are excessive. The industry commenters 

stated that the proposed requirements are more stringent than the requirements for major sources 

under the PSD program (one commenter also added the part 71 program), which they believe is 

unwarranted because the impact of minor sources on public health and/or the environment would 

be much lower than major sources. The state/local commenter noted 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.

Response:

Based on consideration of the comments received, we agree that, for site-specific permits 

and general permits, making a copy of the permit available at all of the locations where the draft 

permit was made available might be too burdensome for the reviewing authorities. Accordingly, 

we are amending 40 CFR 49.159(a) to require a copy of the final permit or 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. 

2.14.2 Administrative Record for a Permit Decision

The proposed minor NSR program would require that the reviewing authority’s final 

decision on the permit be based on an administrative record. The proposed rule also includes 

requirements on what must be in that record. We proposed that the reviewing authority must 

retain permit-related records for not less than 5 years.

Comment:

One tribal commenter (0036.1) and one industry commenter (0039) agreed that the 

reviewing authority's final decision on a permit should be based on an administrative record that 

contains certain required information specified in the proposed rule.

Response:
Review of New Sources and Modifications in Indian Country

Response to Comments

96

Based on the comments received and in accordance with our proposed provisions, the 

reviewing authorities will base their final permit decisions on the administrative record of each 

particular permit. For more details on these provisions, see 40 CFR 49.159(b) and (c).

Comment:

One industry commenter (0032) noted that the proposed minor NSR program does not 

specify the circumstances under which a permit may be denied. The commenter believes that it 

is critical that the rules clearly delineate when a permit must be approved, and when it may be 

denied. The commenter suggested that, at a minimum, the rules should provide that a reviewing 

authority may only deny a permit if the proposed project is projected to cause a NAAQS or PSD 

increment violation. 

Response:

We disagree with this commenter. We do not believe that the final rules have to specify 

the circumstances of a permit denial since we cannot predict all the reasons why a permit could 

be denied. 

Comment:

One environmental group (0037.1) said that EPA must require the reviewing authority to 

retain permit records for the life of the source. The commenter pointed out that permit records 

may be used years after permit issuance, for various purposes such as:

• Understanding the basis for an emission limit specified in a permit when a source is 

proposing to revise and increase or eliminate the limit (e.g., to determine if it is a 

limit on PTE or a limit taken to ensure protection of the NAAQS or PSD increments).

• Reviewing modifications to see if a source unlawfully avoided review of a project by 

splitting it into smaller projects.

• Understanding the history of the various emission units, processes, and production 

rates at a source if this information is not clear in the permit.

Response:

We disagree with this commenter. We believe that keeping permit records for the life of 

the source will be too burdensome, especially when we do not require permit records for major 

sources under some provisions of the major NSR program to be kept for more than 5 years 

either. Therefore, we have finalized, as proposed and under 40 CFR 49.159(b), that the 

reviewing authority must retain permit-related records for no less than 5 years. 

2.14.3 Procedures for Appealing a Permit Decision

We proposed two options for reviewing initial permit decisions by reviewing authorities. 

In Option 1, review of minor NSR permits would be similar to review of major PSD permits 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

97

issued under 40 CFR 52.21. To challenge the terms of the permit, the applicant or another party 

would have to file a petition for review with EPA’s EAB. Decisions by the EAB could be 

appealed to the federal Court of Appeals for the location of the source. Under this option, permit 

decisions may be appealed to the EAB within 30 days of issuance, and a final permit typically 

would not become effective during that period. In addition, if someone filed a petition for 

review of the permit with the EAB, the permit would be stayed until the EAB decided whether to 

review any part of the permit and the reviewing authority took any action required by the EAB.

Alternatively, in 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. Under this option, the permit would become effective immediately upon issuance. The 

source could begin construction immediately, but could be placed in the difficult position of 

having the permit revoked after starting construction.

Comments Supporting Option 1:

Six tribal commenters (0031, 0044, 0076, 0091.1, 0097.1, 0101.1) and one state/local 

commenter (0034.1) supported Option 1. The tribal commenters (0031, 0044, 0076, 0091.1, 

0101.1) generally preferred this option because they believe that the EAB has greater 

environmental expertise and is likely to resolve the issues more quickly. Most of the tribal 

commenters believe 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. One of the tribal 

commenters (0097.1) added that a critical consideration is the timeliness issue and therefore 

urged EPA to ensure that the EAB is provided with the staffing and funding necessary to address 

what will undoubtedly be an increasing number of appeals. This commenter believes that in the 

absence of adequate staffing and funding, Option 1 would be extremely problematical because it 

would result in unreasonable delays while appeals are pending. The state/local agency (0034.1) 

prefers Option 1 because citizen appeals to the EAB represent an easier threshold to meet for the 

layperson that is aggrieved by a final agency action, since 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. 

Three additional tribal commenters (0033, 0041, 0106.1) offered conditional support for 

Option 1. These commenters also believe that this option will allow for the quicker resolution of 

appeals by an appellant review entity that has specialized knowledge. However, the commenters 

recommended that we revise Option 1 to allow the permit to become immediately effective upon 

issuance, unless a later effective date is specified. They believe that Option 1, with this revision, 

will allow for development on tribal lands while encouraging participation from environmental 

experts, should an appeal occur.

Comments Opposing Option 1:

Two industry commenters (0039, 0081) and one tribal commenter (0036.1) specifically 

opposed certain aspects of Option 1. One of the industry commenters (0081) stated that delaying 

final permit effectiveness for 30 days after issuance will compound an already lengthy permitting 

process, and could be used by commenters to delay the permitting process simply by requesting a 

permit change during the public comment period. The commenter asserted that this is not 
Review of New Sources and Modifications in Indian Country

Response to Comments

98

consistent with the process that most states follow with their minor NSR programs, which could 

put Indian country at a disadvantage for air quality permitting.

The tribal commenter (0036.1) and the other industry commenter (0039), who both also 

specifically endorsed Option 2, oppose the automatic stay upon filing a petition for review with 

the EAB under Option 1. These commenters believe that this provision is ripe for abuse and 

would encourage challenges from anti-development stakeholders simply to delay oil and gas 

development in Indian country. The commenters stated that, while this process may be 

appropriate for major source permits, it is time consuming and onerous to impose it on minor 

source permits.

Comments Supporting Option 2:

Five industry commenters (0025.1, 0028.1, 0029.2, 0039, 0042), two tribal commenters 

(0036.1, 0050.1), and one state/local commenter (0018.1) specifically endorsed Option 2. The 

commenters generally supported this option because the permit is effective upon issuance, 

allowing the source to determine whether to commence construction at its own risk. 

One industry commenter (0025.1) and the state/local commenter (0018.1) noted that this 

approach is more consistent with most state minor NSR programs. The state/local commenter 

(0018.1) also supports Option 2 because it eliminates an intermediate step (i.e., the EAB review) 

that, in the case of determined appellants, would not likely resolve any cases. 

Two industry commenters (0025.1, 0039) and one tribal commenter (0036.1) believe that 

EAB review and an automatic stay may be appropriate for the PSD program, but not for minor 

NSR. One of these industry commenters (0025.1) pointed out that PSD permits involve large, 

complex sources with relatively high potential to emit regulated NSR pollutants. For these 

operations, the commenter believes, the selection of the BACT and the assessment of impacts on 

ambient air quality in the area are a significant concern to affected parties, including applicants 

and the public. In contrast, the commenter noted, minor NSR permits are issued to relatively 

smaller operations where emissions of regulated NSR pollutants generally do not contribute 

significantly to total emissions in the area, and control technology requirements for such 

operations should not be as contentious as under major NSR. On these bases, the commenter 

believes that Option 2 is more appropriate for minor sources.

Another of the industry commenters (0029.2) believes that once an informed and 

experienced reviewing authority issues a minor NSR permit, the applicant should be entitled to 

begin actual construction. The commenter opined that issuance of a permit represents that 

reviewing authority’s reasoned assessment that the NAAQS and associated increments will be 

protected, while an automatic stay has the effect of overruling that agency’s assessment pending 

another time-consuming and burdensome round of administrative review. The commenter 

believes that such a result, which calls into question the reviewing authority’s decision making, 

is an unwarranted outcome for any minor NSR permit. Instead, the commenter believes that it is 

reasonable to presume that the reviewing authority’s decision on a minor NSR application is 

correct and that further administrative review of that decision is unnecessary. Thus, according to 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

99

the commenter, any subsequent challenge to such a decision should only consist of judicial 

review.

One of the industry commenters (0028.1) stated that, generally, the nature of minor NSR 

permit appeals is such that petitioners seek modification to a portion of the permit, not denial of 

the permit itself. Therefore, the commenter noted, in these circumstances under proposed 

Option 2, the source can evaluate the risk of proceeding while an appeal is pending, but the 

source would not be prohibited from proceeding as outlined by Option 1. 

One of the tribal commenters (0050.1) supports Option 2 because it expedites the permit 

issuance process, and since the reviewing authority will have been required to assemble the 

record on which the initial permit decision was based, there is no need for another layer of 

review to create that record. Moreover, the commenter believes that the approach proposed in 

Option 2 places less of a burden on government resources with regard to the permit issuance 

process. The commenter noted that this is the approach that the commenter’s tribal 

environmental agency takes with its own permitting process (with the exception that appeals 

from these permits are taken to tribal court rather than federal court).

Other Comments on the Proposed Options:

One tribal commenter (0061.2) claimed that neither option is complete. The commenter 

believes 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. For 

actions and decisions by EPA, the commenter believes that federal administrative or judicial 

reviews are appropriate. The commenter asserted, however, that when actions are taken by the 

tribe under this rule (once authority is delegated), the rule must allow exhaustion of tribal 

administrative review first, tribal court review if appropriate (depending on the issue), and 

federal court appeal only after exhaustion of appropriate tribal review.

Response:

Based on consideration of the comments received, we agree with those commenters that 

support the option of filing a petition for permit review through the EAB. We believe, as some 

commenters stated, that the EAB has substantial 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 pursue appeals in federal court.

However, we are not allowing permits to become effective immediately upon the service 

of notice of the final permit decision under the EAB option, as some commenters suggested, 

because the 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 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 
Review of New Sources and Modifications in Indian Country

Response to Comments

100

upon issuance are those for which no comments were submitted. Furthermore, we do not believe 

we can allow sources to construct while the EAB process is pending, because while a permit is 

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

Regarding the commenter that stated that delegated programs should allow for tribal 

administrative and tribal court review prior to going to federal court, we disagree. This is 

because under a delegated federal program, the delegated Indian tribe would be assisting EPA 

with the administration of federal requirements on EPA’s behalf under these federal regulations. 

Any federal requirement administered by a delegated tribe and any permit issued by such a 

delegated tribe would remain federal actions subject to EPA enforcement and EPA appeal 

procedures under federal law. On the other hand, if a tribe develops and EPA approves a TIP 

that includes a NSR program, tribally-issued NSR permits would be subject to administrative and 

judicial review under the applicable tribal program as approved by EPA. 

Comment:

One state/local commenter (0018.1) and one industry commenter (0025.1) believe that 

the federal Court of Appeals is an inappropriate venue for hearing what could be a large number 

of appeals of very small permits. The state/local commenter noted that the federal Court of 

Appeals is not accustomed to dealing with such small issues, and that these courts are not nearby 

to most sources in Indian country and would basically be inaccessible to the source and probably 

also to appellants. The industry commenter pointed out that the federal Court of Appeals may 

have other priorities, such as criminal cases or other regulatory matters of greater significance. 

The commenters suggested that EPA should consider whether the judicial review of minor NSR 

permits can be undertaken at a local federal District Court. The state/local commenter (0018.1) 

also suggested that state court might be an appropriate venue.

Response:

We agree with the commenter when he/she states that the federal Court of Appeals might 

not be the best venue for hearing a large number of appeals for very small permits due to their 

expertise and other priorities. Therefore, and based on the benefits of the EAB option stated on 

the response to the previous comment, we are not finalizing the federal Court of Appeals option 

at this time.

Comment:

One industry commenter (0081) addressed a comment specifically toward the review 

process for general permits. The commenter suggested that general permits be reviewed using 

Option 1, and once a general permit is accepted, all applications under the general permit would 

be reviewed using Option 2. The commenter believes that this would allow careful review and 

acceptance of the general permit, while properly allowing for subsequent applications under the 

general permit which are less likely to be contested and could proceed quickly.

Another tribal commenter (0020) noted that in our proposal preamble we asked if a 

mechanism should be established for administrative reconsideration through the EAB, even 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

101

when a party is seeking judicial review in the Court of Appeals (71 FR 48717). The commenter 

supported this approach, stating that it is useful for tribes to have more than one course of action 

from which to choose, depending on the specifics of each situation. The commenter does not 

believe that it is necessary to provide for permits to be stayed while the appeal process goes 

forward, since the rule addresses minor sources only.

Response:

For the reasons stated previously, we believe that the EAB Option is the most 

appropriate at this time for the permit appeals process and thus, we are not allowing two 

different permit appeals options depending on the stage of development for general permits or 

the course of action of the permit. 

2.14.4 Procedures for Reopening a Permit

The proposed minor NSR program included provisions that address reopening a permit 

after it has been issued if it contains a material mistake or fails to assure compliance with the 

permit requirements. Specifically, we proposed that any person (including the permittee) may 

petition the reviewing authority to reopen a permit for cause, and that the reviewing authority 

may commence a permit reopening on its own initiative. We further proposed that the reviewing 

authority may not reopen a permit unless it contains a material mistake or fails to assure 

compliance with applicable requirements.

Supporting Comments:

One tribal commenter (0036.1) supported the ability to reopen a permit after issuance for 

material mistake of facts or failure to assure compliance with permit requirements. One industry 

commenter (0039) stated that industry applicants should have the ability to reopen a permit after 

issuance for material mistake of facts or failure to assure compliance with permit requirements.

Opposing Comments:

Four industry commenters (0027.1, 0030, 0052, 0081) objected to enabling any person to 

petition for a minor NSR permit to be reopened. The commenters asserted that the proposal is 

more stringent than the reopening provisions in major source permitting programs (variously 

mentioning PSD, Title V, and/or nonattainment major NSR), which they contend is unwarranted 

for minor sources. Two of the commenters (0027.1, 0081) stated that only EPA should be able 

to initiate the process to reopen a minor NSR permit, and added that individuals always have the 

right to complain about a facility’s operation and the Agency can reopen the permit if that action 

is warranted. 

Another of the commenters (0030) indicated that the proposal is inconsistent with state

minor NSR programs. This commenter added that the proposal opens up a potential avenue for 

any person, even if uninformed or maliciously intentioned, to harass and disrupt operations, and 
Review of New Sources and Modifications in Indian Country

Response to Comments

102

asserted that people need to be involved at the appropriate time and in the provided forums to be 

heard. 

One of the industry commenters (0052) (which is owned by a tribe) expressed 

concern that the proposed rule would allow individuals to effectively veto the tribe’s 

development decisions through use of the provisions allowing anyone – regardless of motive or 

lack of factual support – to petition to reopen permits issued related to sources of insignificant 

emissions. One industry commenter (0081) suggested that the permit reopening petition should 

be allowed only for those members of public who provide substantial comments during the draft 

or final permit public notice period.

Response:

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 for a cause unless it contains a material 

mistake or fails to assure compliance with the applicable requirements. We do agree that the 

reasons for reopening the permit by the reviewing authority should not be limited to the permit 

containing a material mistake or failing to assure compliance with applicable requirements. 

Therefore, we have amended the proposed provisions by adopting the language finalized at 40 

CFR 49.159(e).

These provisions state that the reviewing authority may reopen a final, currently-in-effect 

permit for cause on its own initiative, such as if the permit contains a material mistake or fails to 

assure compliance with applicable requirements. However, except for those permit reopenings 

that do not increase the emissions limitations in the permit, such as permit reopenings that 

correct typographical errors, all other permit reopenings shall be carried out after the 

opportunity for public notice and comment and in accordance with one or more of the public 

participation requirements under 40 CFR 49.157(b)(1)(ii).

2.14.5 Administrative Permit Revisions

The proposed minor NSR program contained provisions for administrative permit 

revisions to make minor changes in the permit without being subject to the permit application, 

issuance, public participation, or administrative and judicial review requirements of the program. 

One use we proposed for administrative permit revisions was for increasing an emissions unit’s 

annual allowable emissions limit when the need for the increase is not associated with a 

modification that is subject to the major or minor NSR program.

Supporting Comments:

One tribal commenter (0036.1) and one industry commenter (0039) specifically 

supported the allowance of administrative permit revisions to make minor changes in a permit 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

103

without being subject to the full panoply of permit application, issuance, public participation, or 

administrative and judicial review requirements of the minor NSR program. 

Opposing Comments:

One environmental group (0037.1) opposed the proposal to allow increases in allowable 

emission limits through an administrative permit revision. The commenter asserted that 

increases in allowable emission rates must be subject to NSR permitting, review of impacts on 

air quality, and public notice and review. The commenter believes that the limitation on such 

administrative changes (i.e., that the action that necessitates such increase is not otherwise 

subject to review under major NSR or minor NSR) is not sufficient to ensure protection of air 

quality or compliance with major source permitting requirements because the language of the 

limitation is vague and unenforceable.

Response:

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, and as the opposing commenter suggested, that there might be 

particular concerns with the provision at 40 CFR 49.159(f)(v) where an administrative permit 

revision is allowed for an increase in an emissions unit’s annual allowable emissions limit for a 

regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject 

to review under major NSR or under this program. For example, this case could be one where a 

source introduces a new coating to a process line that will increase the emissions of that unit but 

the emissions increases from the source will not trigger the minor NSR requirements. 

Although this type of change does not trigger the major or the minor NSR thresholds, we 

continue to believe that we need to account for these changes in emissions in the permit to know 

the source’s current allowable emissions and to ensure that the source is complying with the 

applicable requirements. Therefore, an administrative permit revision can be used when the 

increase in a unit’s annual allowable emissions limit for a regulated NSR pollutant is not subject 

to major or minor NSR. Similarly, other 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 the air pollutants emitted by your source will be brought to the attention of 

your reviewing authority. 

Comment:

One industry commenter (0028.1) noted that the proposed rule does not propose how an 

administrative permit revisions is to be obtained, that is, there is no proposal for submittal of an 
Review of New Sources and Modifications in Indian Country

Response to Comments

104

application or notification, no description of the type of information required by the reviewing 

authority, nor any timeline proposed for the permitting agency to process the requested 

amendment. The commenter believes that without this definition on the process to amend a 

permit, the review and agency action is unpredictable and uncertain. The commenter 

recommended the following with respect to this subsection: (1) EPA propose a process and 

timeline to obtain this type of permit revision; (2) EPA expressly include language in the rule 

confirming that upon submittal of a request for revision under this subsection, the permittee is 

expressly authorized to operate or implement the change; and (3) EPA reconsider use of the term 

“administrative amendment” for this type of revision because that is a term of art under the 

Title V operating permit program and its use here may cause confusion. One tribal commenter 

(0041) similarly recommended that administrative permit modification provisions be included to 

clarify the applicability and timing of this type of request.

Response:

We believe that reviewing authorities, based on the particular air quality needs of the

relevant area of Indian country, should have the discretion to define how an administrative 

permit revision is to be obtained. Therefore, we are not finalizing more specific administrative 

permit revision provisions at this time. We also disagree with the commenter that would like us 

to change the term "administrative permit revision" to "administrative amendment" because we 

believe that this change is not necessary to be able to use these provisions under their respective 

programs appropriately.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

105

3 MAJOR NSR PROGRAM IN NONATTAINMENT AREAS 

OF INDIAN COUNTRY

3.1 Requirements for Major Source Permitting under Appendix S

We proposed to establish a nonattainment major NSR program for Indian country by 

applying 40 CFR part 51, Appendix S to major sources and major modifications in areas of 

Indian country that are designated as nonattainment areas. Pursuant to Paragraph IV of 

Appendix S, 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:

• The new major source or a major modification meets the LAER for that source 

utilizing add-on controls or pollution prevention measures.

• The applicant certifies that all existing major sources owned or operated by the 

applicant (or any entity controlling, controlled by, or under common control with the 

applicant) in the same state as the proposed source are in compliance with (or under a 

federally-enforceable compliance schedule for) all applicable emission limitations 

and standards under the Act.

• 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. 

• The emission offsets provide a net air quality benefit in the affected area.

Comment:

One tribal commenter (0026.1) stated that Appendix S fails to meet the requirement of 

the CAA Amendments of 1990 and should not be applied to Indian country. One state/local 

commenter (0034.1) was more specific, noting 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 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.

Response:

Upon further review of Appendix S, we agree that the section 173 alternate site provision 

was inadvertently missing from Appendix S regulations. Therefore, we have amended Appendix 
Review of New Sources and Modifications in Indian Country

Response to Comments

106

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 the final rule preamble for more details on the 

Appendix S amendments.

Comment:

One tribal commenter (0101.1) lacked sufficient information to comment as to whether 

the Appendix S requirements would indeed result in suitable gap-filling air quality protections in 

Indian country. The commenter suggested that EPA consider delegating development of 

nonattainment major NSR permit conditions to the EPA Region Offices, who can work with the 

tribes in their areas on a regional basis to ensure permit conditions are appropriately 

representative of those tribes.

Response:

The EPA Regional Offices will work with the tribes in their regions to ensure that the 

permit conditions are appropriately representative of those tribes and their surrounding areas. 

Comment:

One industry commenter (0072) noted that, as of the date of the comments, we had not 

yet amended Appendix S to include NSR Reform provisions adopted into other major NSR rules 

in December 2002. The commenter urged us to finalize the proposed changes to Appendix S 

either before, or concurrent with, the final NSR rules for Indian country. The commenter 

believes that if the nonattainment major NSR rule for Indian country is finalized before 

Appendix S is updated, then major sources in Indian country would be subject to different, more 

stringent applicability rules for modifications than major sources on state land, providing an 

unfair business advantage to sources not located in Indian country.

Response:

The current version of Appendix S does include NSR reform provisions as well as recent 

NSR revisions that applied to Appendix S. 

3.2 Options for Addressing the Lack of Available Offsets in Indian 

Country

Under nonattainment major NSR, including under Appendix S, new major sources and 

major modifications must obtain emission reductions from other sources to offset the increase in 

emissions from the source or modification. Tribal representatives have repeatedly stated that 

requirements for emission offsets are problematic in Indian country. They have advocated for 

additional flexibility to address offsets, such as the provision of NSR offset set-asides (which 

would come from state offset pools or banks). Tribal representatives have raised these and other 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

107

concerns in discussions on implementation of the 8-hour ozone and PM2.5 standards, and in 

comments on the 8-hour ozone implementation rule.

We proposed two options to provide exemptions from offset requirements in Indian 

country, the Economic Development Zone (EDZ) option, and the Appendix S, Paragraph VI 

option. We also invited comment on other options for offset relief in Indian country. In the 

subsections that follow, we first discuss general comments on waiving offset requirements in 

Indian country, then turn to the comments on the two proposed options, and finally address 

comments on other offset options.

3.2.1 General Comments on Waiving Offset Requirements in Indian 

Country

General Support for Waiving Offset Requirements:

Five tribal commenters (0026.1, 0031, 0036.1, 0053, 0054) and one industry commenter 

(0025.1) 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. 

General Opposition to Waiving Offset Requirements:

Five state/local commenters (0018.1, 0023.1, 0024.1, 0045.1, 0051), three private citizens 

(0093, 0094, 0096), two tribal commenters (0050.1, 0061.2), and one environmental group 

(0037.1) believe that offsetting of major NSR projects should be a requirement of the 

nonattainment major NSR program. The environmental group joined a number of the state/local 

commenters in asserting that the proposed waiver of offset requirements would likely be illegal 

under the Act. The tribal commenters and private citizens generally cited air quality concerns for 

their belief that offsets should not be waived in Indian country.

The state/local commenters also typically indicated that the proposal to waive offsets in 

Indian country would be unfair. For example, one state/local commenter (0051) indicated that 

there is a shortage of offsets in virtually every district in California. Another of the state/local 

commenters (0045.1) suggested 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 General Comments on Offset Waivers:

Four state/local commenters (0018.1, 0023.1, 0024.1, 0051), two private citizens (0093, 

0096), one tribal commenter (0050.1), and one environmental group (0037.1) commented that 

EPA should allow sources in Indian country to obtain offsets not just from the Indian area itself, 

but from adjacent or upwind areas. Two of these commenters (0018.1, 0037.1) noted that 

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 
Review of New Sources and Modifications in Indian Country

Response to Comments

108

a violation of the NAAQS in the area needing the offsets. One of the commenters (0050.1) cited 

40 CFR part 55 (designation of “corresponding onshore areas” for sources on the outer 

continental shelf for purposes of compliance with offsets and other requirements) as an example. 

Three of the commenters (0023.1, 0037.1, 0096) suggested that EPA, the states, the tribe, and 

sources could collaborate to identify acceptable offsets outside of Indian country.

One tribal commenter (0038.1) claimed that making it necessary for tribes to go to the 

states to obtain offsets for economic development on the reservation denigrates the governmentto-government relations. The commenter believes that if the state and the tribe, both in need of 

economic development, were vying over the same facility but the tribe had to obtain offsets for 

the facility from the state, the tribe would always suffer. One private citizen (0096) 

recommended against trading of offsets between Indian country and 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. 

Two state/local commenters (0018.1, 0051) stated that 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 sources. One tribal commenter (0026.1) and one private 

citizen (0096) also suggested generating offsets from on-reservation minor sources, and one 

private citizen (0094) also suggested offsets obtained from mobile sources. One tribal 

commenter (0054) pointed out that, because minor sources are typically much smaller than major 

sources, it would require offsets from many minor sources to compensate for one major source.

One tribal commenter (0020) suggested that the EPA implement a set-aside program in 

which tribes receive a certain amount of offset emissions that would need to be made up by the 

other sources in the state. The commenter believes that this would be fair because most 

nonattainment problems in Indian country are caused by sources that are not under tribal control. 

One tribal commenter (0061.2) suggested that EPA should allow tribes to participate in 

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 in needing to obtain an offset to maintain air quality.

Another tribal commenter (0054) indicated that there would be problems in trying to 

institute the use of offset banks in Indian country. The commenter 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 lands. 

This commenter (0054) also believes that 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 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

109

states will not receive the tax revenue from offsets purchased by sources on tribal lands as they 

do with sources within the state.

One tribal commenter (0097.1) stated that until and unless a system is developed that 

allows tribes to generate and obtain emission reduction credits in a manner that does not put such 

facilities at an environmental or economic disadvantage as compared with similar facilities 

operating outside Indian country, the offset provisions should be waived. The commenter did 

not suggest that the waiver continue indefinitely, but only that offsets not be required until there 

is a system in place that allows the tribes to participate on equal footing with the region 

surrounding their facility, including the ability to generate and bank credits and/or obtain them 

from outside the reservation. The commenter believes that the proposed ideas of waivers under 

Appendix S and/or EDZs allow some margin for development on tribal lands in the short term

but do not address the long-term solution. The commenter strongly suggested that the

nonattainment major NSR provisions of the proposed rule be withdrawn, reevaluated, and 

proposed on region/tribal-specific basis and negotiated through a stakeholder process that fully 

addresses the local/regional concerns.

One tribal commenter (0026.1) recommended that EPA waive the offset requirement 

entirely and develop a rule permitting importation of offsets into Indian country, or generate 

offsets from on-reservation minor source emissions reductions.

Another tribal commenter (0054) believes that tribes should be afforded the opportunity 

to request a permanent offset waiver based on language in the TAR. The commenter indicated 

that this would be allowed under the TAR, which states: “provide 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.” The commenter pointed out that the offset problem in Indian country was created 

by inconsistencies in the TAR, NSR, and SIPs: tribes have been included in state-designated 

nonattainment areas, but with the implementation of the TAR, tribes are not granted access to 

state-developed offset banks.

One tribal commenter (0049.1) stated that there needs to be greater flexibility in 

addressing offsets through consultation and coordination with EPA, such as establishing a 

“Tribal Area” (not just EDZ) for this process.

Response:

We recognize the unique circumstances that tribes face as well as the difficulty in 

obtaining offsets in certain parts of the country; however, we do not have the legal authority to 

waive the offset requirement under section 173 of the Act or under the TAR. 

Thus and to address the lack of offsets availability, both inside and outside of Indian 

country, we encourage states and tribes to work together in the creation and use of offset banks

for their areas since we agree that, where appropriate, tribes can obtain offsets from 

surrounding areas. For example, tribes may enter into a Memorandum of Understanding 

(MOU) with their neighboring states to allow tribal access to offsets in the state offset bank and 
Review of New Sources and Modifications in Indian Country

Response to Comments

110

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 considering 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, May 16, 2008), we 

finalized provisions that allow for inter-pollutant and inter-precursor trading of offsets between 

direct PM2.5 emissions and its precursor emissions.

14 We believe this is a first step in the process 

of addressing the shortage of offsets in the nation and we will continue to explore and 

implement, as one commenter suggested, the use of non-traditional sources of offsets such as 

offsets from mobile sources and area or minor sources. 

Regarding the offset waivers we proposed, we want to clarify that these waivers are 

currently available under the CAA and implementing regulations for both states and tribes. The 

EDZ option is currently available under section 173(a)(1)(B) of the Act and the Appendix S 

Paragraph VI option is currently available under 40 CFR part 51, Appendix S. Therefore, we 

disagree with those commenters that believed that if the proposed offset waivers would only be 

available for Indian country, then states would be at an economic disadvantage and/or that we 

would be creating pollution havens in Indian country. 

Nevertheless, based on the opposing comments we received, including comments from the 

tribes, regarding the implementation issues under the Appendix S, Paragraph VI option, we are 

only allowing the EDZ option that is currently available under the statute for both tribes and 

states as a potential option for offset waiver and we are not finalizing the Appendix S,

Paragraph VI option in this final rule. 

3.2.2 Economic Development Zone Option

The nonattainment major NSR requirements in section 173(a)(1) of the Act require major 

sources and modifications to obtain offsets unless they are located in a zone “identified by the 

Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone 

to which economic development should be targeted” (i.e., in an EDZ) and their emissions will 

not exceed the allowance permitted for such sources under section 172(c). Section 172(c)(4) 

requires that such emissions be consistent with the achievement of reasonable further progress 

(RFP) and not interfere with attainment of the NAAQS by the applicable attainment date. 

Under this proposed option, appropriate areas in Indian country would be identified as 

EDZs. Subsequently, sources in the EDZs that are subject to nonattainment major NSR may be 

exempt from the offset requirement, provided that the state/tribe could demonstrate that the new 

permitted emissions would be consistent with RFP and would not interfere with NAAQS 

attainment by the applicable attainment date.

 14 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. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

111

We also proposed that the Administrator would consult with the Secretary of Housing 

and Urban Development only once to develop a general set of approval criteria, such that a 

consultation is not required every time a tribe applies for its area of Indian country to be 

designated as an EDZ. We would provide assistance as needed for a tribe to complete an EDZ 

designation request. 

Supporting Comments:

One tribal commenter (0036.1) and one industry commenter (0025.1) specifically 

supported the EDZ option. The industry commenter believes that this option provides the 

flexibility for EPA not to require emissions offsets for a project where economic development 

and environmental protection are equally important concerns. In addition, the commenter 

indicated that the reviewing agency would be required to demonstrate achievement of RFP, 

which will provide flexibility to the reviewing agency to use traditional and non-traditional 

measures to provide balanced economic growth and environmental protection.

Opposing Comments:

A number of commenters had misgivings about the EDZ option, although not all 

expressed outright opposition.

One state/local commenter (0018.1) and one environmental group (0037.1) believe that 

the EDZ option cannot lawfully be applied in the present circumstances. According to 

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.” 

The environmental group (0037.1) stated that, in the absence of a TIP or a SIP that 

quantifies the allowance and makes the required demonstration, this precondition for offset relief 

in EDZs would not generally be met within Indian country. The commenter asserted that EPA 

must require enforceable TIP or SIP revisions to allocate any such allowances.

The state/local commenter (0018.1) indicated that the applicable SIP must have created 

an “allowance” of emissions for EDZ sources to use. By definition, the commenter believes, the 

proposed rule does not apply where there is a TIP; therefore, EPA would need to look at the 

relevant SIP of the surrounding or adjacent state for the applicable allowance. 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, 
Review of New Sources and Modifications in Indian Country

Response to Comments

112

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.

The state/local commenter (0018.1) 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. 

One tribal commenter (0038.1) believes that the idea that tribes could come in for an 

EDZ does not always work in favor of the tribe. The commenter noted that an EPA 

representative stated at an October 2006 Consultation meeting that if a tribe had a casino it might 

not meet the requirements for the program. The commenter stated that it is a common 

misconception is that if a tribe has a casino they must be well off economically, and that this 

false stereotype could hurt many tribes with concerns about offsets. 

Two tribal commenters (0053, 0054) stated that the data being used for the EDZ option is 

from the 1990 census and does not take into consideration the development in and around Indian 

country since that time. A third tribal commenter (0043.1) similarly indicated that the accuracy 

of any census data relied on should be confirmed through consultation with the affected tribes. 

Another tribal commenter (0026.1) indicated that the EDZ option would be difficult to 

implement. The commenter noted that the tribe is in a three-state area where offsets would have 

to be obtained to qualify EDZs, and stated that in this type of “checkerboard area” it would 

require state(s) input and true tribal applicability would be lacking. 

One tribal commenter (0061.2) stated that the EDZ option is not acceptable because EDZ 

status would be difficult for some tribes to obtain and because such a waiver does not balance 

legitimate development needs with environmental protection. Another tribal commenter 

(0097.1) noted that EDZs are not an option for tribes such as the commenter’s that have a selfsupporting economic base and thereby do not qualify for consideration under that provision.

One private citizen (0092) pointed out the potential for a “hotspot” considering that more 

industries will come into this area to avoid offset requirement, and another private citizen (0094) 

stated that the EDZ option creates a potential for too much leniency and an imbalance of 

environmental and economic issues. 

Response:

After reviewing all the comments received, we believe that the EDZ option as established 

by statute is available for offset relief as long as the area meets the statutory criteria in order to 

qualify. In other words, tribes who develop TIPs might request EPA to establish their area as an 

EDZ so they can avail themselves of the offset provision under section 173 of the Act. 

However, we disagree with the commenter who believed that, by definition, the proposed 

rule does not apply where there is a TIP and thus EPA would need to look at the relevant SIP of 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

113

the surrounding or adjacent state for the applicable “allowance of emissions” for EDZ sources. 

We do not see why the commenter believed that a TIP is not an appropriate mechanism for the 

EDZ provision under section 173 since the TAR provides that eligible tribes may be treated in 

the same manner as states for virtually all CAA programs and states are generally not approved 

to administer programs 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 believed that a general set of approval 

criteria will be in conflict with the language of the Act. 

3.2.3 Appendix S, Paragraph VI Option

Paragraph VI of 40 CFR part 51, 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, 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

• The preceding two conditions are determined by the Administrator to have been 

satisfied and such determination is published in the Federal Register.

In the proposal preamble, we noted that tribes would be able to use this option for offset 

relief for the 8-hour ozone and PM2.5 NAAQS. For instance, the attainment dates for 8-hour 

ozone nonattainment areas range from 2007 for marginal areas to 2021 for severe areas. Hence, 

a new major source or a major modification locating in such a nonattainment area prior to the 

attainment date may be exempt from the requirements of Paragraph IV of Appendix S, if the 

associated conditions are met. It is important to note that this option would provide only 

temporary offset relief because it would cease to be available once the attainment date for a 

pollutant has passed. For example, this option would not be available in marginal 8-hour ozone 

nonattainment areas after 2007. 

Supporting Comments:

Two tribal commenters (0031, 0036.1) and one industry commenter (0025.1) supported 

the use of 40 CFR part 51, Appendix S, Paragraph VI for temporary relief for sources locating in 

nonattainment areas in Indian country where attainment dates have not yet passed. The industry 

commenter (0025.1) noted that this option will provide relief, for a limited period, for areas 
Review of New Sources and Modifications in Indian Country

Response to Comments

114

where attainment dates have not yet passed and EPA has not finalized the designation of that 

area as an EDZ. This commenter also believes this option provides equivalent environmental 

protection since 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.

Opposing Comments:

A number of commenters had misgivings about the Paragraph VI option, generally on 

legal or environmental grounds.

One state/local commenter (0018.1) and one environmental commenter (0037.1) stated 

that the Paragraph VI option is inapplicable and unlawful for the following reasons: 

• Because there is no applicable implementation plan in Indian country, so no source 

can “comply with applicable implementation plan emissions limitations.” 

(Commenter 0018.1 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.)

• 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.

• 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 RFP, when considered together with emissions from other new and existing 

sources. (See section 173(a)1)(A) of the Act). 

• The 1990 Amendments to the Act set out specific offset ratios which major sources 

must meet, such as 1.5 to 1 for Extreme Areas, 1.3 to 1 for Severe Areas, etc. 

(section 182 of the Act). These ratios may be met on an aggregate basis (i.e., 

individual sources may be exempt from offsets if the state makes an equivalency 

demonstration showing that the universe of new sources as a whole meets the 

applicable ratios). However, nothing in Paragraph VI requires that equivalency 

demonstration to be made. Therefore, Paragraph VI on its face violates the 1990 

Amendments to the Act. Whatever may have been its status before 1990, 

Paragraph VI clearly may not lawfully be used today. 

One tribal commenter (0061.2) stated that the Paragraph VI option is not acceptable 

because it would be difficult for some tribes to obtain and because such a waiver does not 

balance legitimate development needs with environmental protection. Another tribal commenter 

(0026.1) agreed that Paragraph VI waivers would be hard to obtain because a major source could 

not interfere with attainment. This commenter 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.

One private citizen (0094) stated that the Paragraph VI option is problematic because it 

appears that the source is being permitted to emit pollution in an area that is already under 

emissions stress without a deadline. The commenter believes that, although such a waiver is 

“buying time” for sources, it is weakening environmental protection.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

115

Response:

Based on the comments we received, we are not finalizing the Appendix S provision as an 

option for offset waiver, since the provision is only available temporarily and it will be 

challenging for EPA or the tribe to demonstrate that the proposed source will not interfere with 

the attainment date. 

3.3 Public Participation Requirements for the Nonattainment Major 

NSR Program

We believe that the public participation requirements of 40 CFR 51.161 apply to 

permitting under Appendix S. Additionally, we proposed detailed public notice requirements for 

the nonattainment major NSR program, which are very similar to the requirements proposed for 

the minor NSR program.

Comment:

One tribal commenter (0047.1) stated that a public comment period of 30 days is not 

sufficient for tribes to review and provide comment on a proposed permit application. The 

commenter requested that the comment period be extended to 60 days. 

Response:

Consistent with the Executive Branch and EPA policies regarding consultation and 

coordination with Indian tribes, when issuing permits under this rule, EPA will strive to involve 

the tribes early so that they are not solely dependent on the 30 day comment period. 

3.4 Compliance Certification Requirements of the Act

According to section 173(a)(3) of the Act, an owner or operator of a proposed new or 

modified major stationary source must demonstrate that all other major stationary sources under 

her/his control in the same state are in compliance or on a schedule for compliance with all 

emission limitations and standards of the Act. We requested comment on whether, for the 

nonattainment major NSR program in Indian country, this requirement should be expressed as an 

Indian country-wide compliance certification or remain a statewide certification.

Comment:

Two tribal commenters (0020, 0061.2), one state/local air agency commenter (0018.1), 

and one industry commenter (0025.1) believe that certification should be on a statewide basis. 

This is in order to avoid providing sources in Indian country with a competitive advantage over 

sources in non-Indian areas. Also, the number of sources in Indian country is relatively small 

compared to the number of sources in general. The industry commenter (0025.1) believes that 

obtaining certification for all of Indian country would be very difficult because it is a vast area 
Review of New Sources and Modifications in Indian Country

Response to Comments

116

and sources under common control may be operated by different business units of the same 

parent company. Tribal Commenter 0062.1 added that if a tribe receives TAS status under the 

TAR, it should be free to expand the certification requirement to all of Indian country.

On the other hand, one industry commenter (0081) stated that it is inappropriate for a 

proposed rule for Indian country to reference compliance within the same state. Other sources 

within the same state may not be within Indian country and thus regulated by the state rather than 

EPA. The proposed statement would give EPA overreaching authority to facilities that are 

operating under SIP-approved programs within the state.

Four tribal commenters (0026.1, 0031, 0047.1, 0101.1) asserted that source 

owner/operators should be required to certify that that they are in compliance nationally. The 

commenters believe that expanding the requirement will ensure that the sources attempting to 

locate in Indian country will operate within regulatory parameters. Also, several reservations 

exist in more than one state.

One tribal commenter (0050.1) believes that compliance certification should be on an 

Indian country-wide basis. The commenter pointed out that benefits from this requirement 

would be helping tribes develop compliance databases, assisting tribes with monitoring patterns 

of noncompliance, minimizing risk of noncompliance, and building and enhancing consumer and 

market confidence. If Indian country-wide certification is too burdensome, the commenter 

believes there should at least be a compliance certification requirement for each applicable area 

of Indian country (i.e., for Tribe A’s Indian country, Tribe B’s Indian country, and so on).

One industry commenter (0021.1) recommended that the compliance certification 

requirement be limited to only those operations which are under EPA’s direct jurisdiction, i.e., 

operations located within Indian country. Further, the commenter would limit the requirement to 

only the specific nonattainment area where the new permit is being requested, as opposed to all 

of Indian country.

Four tribal commenters (0036.1, 0076, 0091.1, 0097.1) recommended that the 

compliance certification requirement be limited to those sources in the same tribe’s Indian 

country. The commenters generally believe that it would be too burdensome to require such 

certification across all of Indian country. One of the commenters (0036.1) added that this is 

more consistent with treatment of individual tribes as states under applicable EPA regulations, 

rather than aggregating all tribes’ sovereign lands into one for purposes of an Indian country 

certification requirement.

Response:

After consideration of comments, we are finalizing a statewide compliance certification 

requirement consistent with section 173(a)(3) of the Act. We believe that a statewide compliance 

certification: (1) provides a broad enough look at the compliance history of the company, 

without overburdening the review process, and (2) reflects a geographic approach to the 

certification rather than an approach based on the entity that is sovereign. An Indian country-
Review of New Sources and Modifications in Indian Country 

Response to Comments 

117

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

approach would have. 
Review of New Sources and Modifications in Indian Country

Response to Comments

118

(This page intentionally left blank.)
Review of New Sources and Modifications in Indian Country 

Response to Comments 

119

4 LEGAL BASIS, STATUTORY AUTHORITY, AND 

JURISDICTIONAL ISSUES

4.1 Jurisdiction in Indian Country

We interpret the Act to provide EPA with the authority to protect air quality throughout 

Indian country by directly implementing the Act’s requirements. We proposed to exercise the 

rulemaking authority entrusted to us by Congress by creating FIPs through which to directly 

implement the minor NSR permitting program and nonattainment major NSR permitting 

program throughout all areas of Indian country where no EPA-approved minor NSR or 

nonattainment major NSR program exists.

4.1.1 EPA’s Authority in Indian Country

Comment:

Two state/local commenters (0034.1, 0046.1/0100.1) and one industry commenter 

(0021.1) commented upon EPA’s analysis of its jurisdiction in Indian country. One of the 

state/local commenters (0034.1) offered the following points:

• The U.S. Supreme Court has recognized that states have plenary power over residents 

within their borders [citing the Department of Taxation and Finance of New York v.

Milhelm, Attea & Bros., Inc., 512 US 61, 72 (1994)]. This means that any preemption 

analysis requires “a particularized inquiry into the nature of the state, federal, and 

tribal interests at stake, an inquiry designed to determine whether, in the specific 

context, the exercise of state authority would violate federal law.” White Mountain 

Apache Tribe v. Bracker, 488 US 136, 142, 145 (1980). “[E]ven on reservations, 

state laws may be applied unless such application would interfere with reservation 

self-government or would impair a right granted or reserved by federal law.” 

Mescalero Apache Tribe v. Jones, 411 US 145, 148 (1973).

• The state has a valid, strong interest in seeing that citizens of the state comply with 

state laws governing the emissions of air pollutants. Congress placed the primary 

responsibility of preventing air pollution on states and local governments. Title 42 of

the United States Code, section 7401(a)(3) [42 U.S.C. 7401(a)(3)]. The mobile 

nature of air pollution emphasizes the importance to the state of regulating all sources 

of pollution within its geographic boundaries. 

• Congress has also recognized the importance of state law in the Act, where it states 

that states retain authority to adopt or enforce: (1) any standard or limitation 

respecting emissions of air pollutants or; (2) any requirement respecting control or 

abatement of air pollution except that if an emission standard or limitation is in effect 

under an applicable implementation plan or under [42 U.S.C. 7411 or 7412], such 

state or political subdivision may not adopt or enforce any emission standard or 
Review of New Sources and Modifications in Indian Country

Response to Comments

120

limitation which is less stringent that the standard or limitation under such plan or 

section. 42 U.S.C. 7416.

• The section also limits the federal interest to preempting less stringent state laws. 

Nothing in 42 U.S.C. 7410(o) and 7601(d) of the Act indicates that this general 

retention of state authority does not apply in Indian country.

• The tribal interests generally match those of the federal government because clean air 

benefits everyone. There is also no history of tribal regulation of air resources in 

Indian country. The states and the federal government regulated air quality because 

of its mobile nature. A particularized inquiry into the various interests involved in 

regulating air quality therefore shows that federal law does not preempt state air 

quality laws that are not less stringent than federal law in Indian country.

• All this is consistent with EPA’s past approval of the state’s authority over sources of 

air emissions in Indian country. These approvals should be respected because they 

worked for many years to protect the air resources in Indian country.

The other state/local commenter (0046.1/0100.1) commented separately regarding EPA’s 

authority to implement the proposed nationwide FIPs in Indian country. The main points of 

these comments are as follows:

• 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. Such a finding is a prerequisite to any valid issuance of a FIP.

• The Act only authorizes the adoption of a FIP on a jurisdiction-by-jurisdiction basis, 

not nationally. In promulgating a FIP, EPA must act in the place of either a state or a 

tribe. Because no state or tribe has nationwide regulatory authority, EPA cannot 

purport to regulate nationwide when acting in the shoes of a state or a tribe.

• The proposed rule fails to require EPA to make the necessary individualized 

jurisdictional determination concerning the scope of authority of the state or tribe for 

which it would act. As a practical matter, EPA’s proposed nationwide FIP will cause 

significant regulatory uncertainty and spawn unnecessary litigation. In the absence of 

jurisdictional determinations for each state and tribe, states, tribes, and members of 

the regulated community will have no clear understanding whether a given source is 

located in “Indian country.”

• The proposed FIP further violates the Act by impermissibly delegating EPA's 

authority to tribes to assist in administering the proposed nationwide FIP. The Act 

plainly allows a delegation of authority to a tribe only if the tribe has demonstrated 

that it has adequate legal authority to regulate the areas it claims. Because EPA has 

not made any jurisdictional determinations in connection with the proposed FIP, 

EPA’s delegation of authority to tribes to assist in administering the FIP violates the 

plain requirements of the Act.

• Even if the EPA adopts the proposed nationwide FIP, that 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 SAFETEA.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

121

The industry commenter (0021.1) agreed with the last point made by the second 

state/local commenter. This commenter stated that Congress understood the complexity and 

uniqueness of Oklahoma’s Indian country lands in regards to delegation of environmental 

programs when it passed section 10211 of the SAFETEA in 2005. The commenter expressed the 

view that this bill allows the State of Oklahoma to administer approved programs in Indian 

country upon request to EPA, and it establishes a process whereby tribes may obtain TAS for a 

program only in coordination with the state. The commenter urged us to delegate authority to 

the state (especially in Oklahoma) to administer any air program implemented on Indian country, 

in order to provide consistency and uniformity as Congress envisioned.

Response:

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 country”15 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. 

Although facilities in these areas may have historically followed state and local 

government air quality programs, with rare exception, EPA has never approved those 

governments to exercise regulatory authority under the CAA in any area of Indian country.

16 In 

addition, EPA has never approved a state or local government to implement a minor NSR or 

nonattainment major NSR program in Indian country. 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 

 15 “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. 16 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.
Review of New Sources and Modifications in Indian Country

Response to Comments

122

local governments lack authority under the CAA over air pollution sources, and the owners or 

operators of air pollution sources, throughout Indian country. 

Because only a few tribes have yet sought eligibility to administer a minor NSR program, 

and no tribe has yet sought eligibility for the nonattainment major NSR program, a gap for 

implementation of these programs currently exists in Indian country. Given the longstanding air 

quality concerns in some areas and the need to establish requirements in all areas to maintain 

CAA standards, EPA believes that these FIP provisions are appropriate to protect air quality in 

Indian country where no EPA-approved minor NSR or nonattainment major NSR program is in 

place. 

The rules published here are based on the same CAA authority as EPA has used 

elsewhere in rulemaking and that has 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 Reservation in Idaho, Oregon and Washington, 40 CFR 

part 49, subpart M (70 FR 18074, April 8, 2005) [upheld in Safe Air for Everyone v EPA, 2006 

WL 3697684 (9th Cir. 2006)]; FIP for Tri-Cities landfill, 40 CFR 49.22 (64 FR 65664, 

November 23, 1999); Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (64 FR 

65663, November 23, 1999); FIP for the Astaris-Idaho LLC Facility (formerly owned by FMC 

Corporation) in the Fort Hall PM-10 Nonattainment Area, 40 CFR 49.10711 (65 FR 51412, 

August 23, 2000); and FIP for Four Corners Power Plant, Navajo Nation, 40 CFR 49.23 (72 FR 

25698, May 7, 2007) [upheld in Arizona Public Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 

2009)]. 

Effects of State Law. The rules established by EPA here are in effect under the CAA. The 

EPA recognizes that in a few cases, other state or local governmental entities may have 

established air quality requirements that the commenters believe apply to activities in Indian 

country. However, unless those rules or requirements have been explicitly approved by EPA 

under the CAA to apply in Indian country, compliance with those other requirements does not 

relieve a source from complying with the applicable provisions of this FIP. As EPA has stated 

elsewhere, states generally lack the authority to regulate air quality in Indian country. See 

Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 fn.1 (1998) 

(“Generally speaking, primary jurisdiction over land that is Indian country rests with the 

Federal Government and the Indian Tribe inhabiting it, and not with the States.”), California v. 

Cabazon Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987); see also HRI v. EPA, 198 

F.3d 1224, 1242 (10th Cir. 2000); see also discussion in EPA’s final rule for the federal 

operating permits program, 64 FR 8251–8255, February 19, 1999. 

Furthermore, with regard to Indian reservations, EPA interprets the CAA as establishing 

unitary management of air resources and as a delegation by Congress of federal authority to 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

123

eligible tribes to implement the CAA over all sources within their reservations, including nonIndian sources on fee lands. Accordingly, even if a state could demonstrate authority over nonIndian sources on fee lands within an Indian reservation, EPA believes that the CAA generally 

provides the Agency the discretion to federally implement the CAA over all Indian reservation 

sources in order to ensure an efficient and effective transition to tribal CAA programs and to 

avoid the administratively undesirable checkerboarding 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 checkerboarded reservation area would be more difficult and that it would be 

inefficient if a state were to exercise regulation over piecemeal tracts of land within such areas, 

possibly with similar Indian country sources being subject to different substantive requirements. 

The EPA’s approach provides for coherent and consistent environmental regulation within 

Indian country. 

Although EPA does not recognize state or local air regulations as being effective within 

Indian country for purposes of the CAA, absent an express approval by EPA of those regulations 

for an area of Indian country, this rulemaking does not address the validity of state and local law 

and regulations with respect to sources in Indian country, or the authority of state and local 

agencies to regulate such sources, for purposes other than the federal CAA. We are specifically 

not making a determination that these federal CAA rules override or preempt any other laws that 

have been established outside the scope of the federal CAA. The EPA does not, therefore, 

believe that any further preemption analysis suggested by the commenters is needed in these 

circumstances. As described above, EPA believes that its authority under the CAA to implement 

these programs in Indian country is clear and well-established and has been upheld by reviewing 

courts in similar circumstances.

With regard to the comments relating to Indian country and the State of Oklahoma, EPA 

recognizes that SAFETEA contains a provision (section 10211) relating to implementation of 

environmental regulatory programs under federal environmental laws, including the CAA, in 

Indian country in Oklahoma. However, to date, neither the State of Oklahoma, nor any Indian 

tribe in Oklahoma, has applied for EPA approval to administer either of the CAA programs 

included in this rulemaking for any area of Indian country. In the absence of an EPA-approved 

program, these FIPs will apply throughout Indian country, including Indian country in 

Oklahoma. In promulgating these FIPs, EPA is not acting on any potential request by the State 

of Oklahoma to administer any CAA or other regulatory program in Indian country, nor is EPA 

acting on any potential TAS application for an environmental regulatory program by any Indian 

tribe in Oklahoma. The EPA would address any such applications when necessary and on a 

case-by-case basis and in full consideration of the requirements of section 10211 of SAFETEA. 

Section 10211 of the SAFETEA is thus not implicated in this rulemaking and is not a relevant 

consideration in EPA’s promulgation of the minor and nonattainment major NSR programs for 

Indian country, including Indian country in Oklahoma. In addition, although EPA recognizes 

that certain potential challenges may exist in implementing some CAA programs over relative 

small parcels of land, we have already described our clear authority to administer these 

programs throughout all areas of Indian country (in the absence of an EPA-approved program) 

and believe we will be able to act on permit applications for all sources covered by these 

programs in such areas. 
Review of New Sources and Modifications in Indian Country

Response to Comments

124

4.1.2 Definition of “Indian Country”

Comment:

One tribal commenter (0031) suggested that, for purposes of allotment lands, we define 

“Indian country” as follows:

(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-ofway 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 

(3) All Indian allotments, the Indian titles to which have not been extinguished, including 

rights-of-way running through the same. Unless otherwise indicated, the term “Indian 

country” is used instead of “Indian reservation” for consistency (18 U.S.C. 1151c).

One state/local commenter (0023.1) believes that the term “Indian country” as defined 

and used within the proposed NSR program may lead to jurisdiction and implementation issues, 

primarily in regard to small parcels of land that include tribal installations such as stores and 

casinos. The commenter noted that there are numerous such tribal installations scattered 

throughout his agency’s state. The commenter pointed out that if these types of installations are 

regulated under the proposed NSR program, emission sources located in Indian country lands 

may be reviewed and managed by the same tribal entity. The commenter believes that this 

approach could lead to a conflict of interest and potentially result in significant impact on air 

quality in areas that are located outside the boundary of this type of installation. The commenter 

noted that in his agency’s state, there is a clear separation of responsibility amongst agencies 

where the air emissions created by the operations of one agency are regulated by another, and 

that EPA required the state Attorney General to provide an opinion regarding this separation in 

conjunction with the approval of the state’s Title V operating permit program. The commenter 

believes that a similar obligation should be put forth in the approval of TIPs adopting the NSR 

program.

Three tribal commenters (0044, 0076, 0091.1) indicated that, under the proposed 

definition of “Indian country,” Alaska Native Villages and Oklahoma tribes may be excluded. A 

fourth tribal commenter (0098.1) expressed similar concerns regarding Alaska tribes. One of 

these commenters (0044) suggested that in modifying the definition to ensure tribes are eligible 

to participate, EPA may wish to consult with the American Indian Environmental Office 

regarding their current effort to define “Indian country.”

Two of the commenters (0076, 0091.1) stated that within the past few years, the 

jurisdiction of Oklahoma tribes has been called into question due to a 2005 “midnight rider” 

included as part of a transportation bill that now necessitates tribal water quality standards be 

approved by that state. The commenters added that during recent years, Alaska Native 

Corporations (for-profit) have gained many of the rights specific to Alaska Native Villages, 

which has sometimes led to the latter being found ineligible for certain federal programs while 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

125

the former have been found to be eligible, likely due to the vast resources that they bring to the 

table in carrying out such programs. Based on these two issues, the commenters recommended 

additional language as part of the definition for “Indian country” to include “in Indian country 

and including in Oklahoma and in Alaska.” The commenters noted that, aside from the addition 

of “in Oklahoma,” the rest of the language has been recommended by the EPA’s Office of 

General Counsel in the past to address Alaskan Native Villages and their eligibility under federal

programs. The commenters believe that adding “in Oklahoma” to this phrase would be a 

harmonious addition and not defeat the intent of the Office of General Counsel’s 

recommendation.

The fourth tribal commenter (0098.1) said that EPA failed to address air quality impacts 

from new sources and modifications which affect air quality in Alaska Native Villages. The 

commenter pointed out that the Alaska Native Claims Settlement Act extinguished tribal claims 

to most land over which Alaskan tribes held title, resulting in a unique jurisdictional standing for 

Alaskan tribes compared to tribes in the contiguous United States. The commenter believes that 

it is the federal government’s position that federal laws and rules affecting “Indian country” are 

not applicable on lands typically owned and occupied by members of Alaskan tribes, and that 

such constrained laws and rules apply only on the sole reservation in Alaska, the Metlakatla 

Indian Community, and to the scattered native allotments, trust lands, and other similar lands set 

aside in restricted status by the federal government.

The commenter (0098.1) believes that although the proposed NSR programs go a long 

way to filling the regulatory gap in Indian country in the contiguous United States, its 

jurisdictional arm does not extend to the tribal environment occupied and owned by most Native 

Alaskans. The commenter asserted that it is unacceptable for EPA to continue promulgating 

rules and regulations for Indian country while failing to address the lack of environmental 

resources available to Alaskan tribes to confront the same issues.

The commenter (0098.1) recommended that EPA immediately initiate a broad and 

detailed investigation into possible opportunities in which the Office of Air and Radiation can 

empower Alaskan tribes to improve and protect air quality in their communities. In light of 

EPA’s trust responsibility to tribes and the 1984 EPA Indian Policy, the commenter believes that 

EPA must examine any and all opportunities to address these concerns over the failure to address 

air quality for Alaskan tribes.

Response:

The minor NSR and nonattainment major NSR programs promulgated in these FIPs will 

apply to sources located in Indian country. As explained elsewhere, Indian country, as defined 

at 18 U.S.C. 1151, is the area over which jurisdiction, including the regulatory authority to 

promulgate these rules, generally lies with the federal government and the tribes, and not with 

the states. Indian country is also, therefore, the area EPA excludes from approved state

programs under the CAA, absent an explicit demonstration by the state (and finding by EPA) of 

authority in such area. Indian country is thus the area where the regulatory gap filled by the 

federal minor NSR and nonattainment major NSR programs –and EPA’ authority to fill that gap 

– exists. This includes Indian country in both Alaska and Oklahoma, which will be covered by 
Review of New Sources and Modifications in Indian Country

Response to Comments

126

these rules. The EPA does not believe that any change to the definition of Indian country at 

18 U.S.C. 1151 is needed to include Indian country within those two states within the scope of 

these federal programs. The EPA recognizes that certain tribes, including Alaska Native 

Villages, may have interests in lands and resources located outside of Indian country, and EPA 

is aware of the history of the status of lands located in Alaska. However, as described in detail 

in the preamble to these rules, EPA is exercising jurisdictional authority under sections 301(a) 

and 301(d) of the CAA and the TAR to fill the regulatory gap in Indian country. With regard to 

other areas in which tribes may have an interest, EPA has not generally excluded from approved 

state programs any areas other than areas that qualify as Indian country. A gap in program 

implementation would thus generally not exist in such areas. The EPA notes that we will 

continue to exercise oversight of approved state programs and that tribal interests may, as 

appropriate, be relevant considerations in such oversight. 

With regards to the state/local commenter’s concern about conflicts of interest within 

tribal agencies, we disagree that such potential conflicts are an issue for these rules. The 

programs promulgated in these FIPs will be federal programs implemented under federal 

authority. Even where a tribe is assisting EPA with implementation through a delegation 

agreement, the rules, and any permits issued under the rules, remain federal and subject to 

appeals to the EAB and to federal enforcement by EPA. To the extent the commenter is 

concerned about potential conflicts of interest associated with TIPs, EPA notes that these rules 

do not approve any TIP for any area of Indian country and that any such issues would be 

appropriately addressed in the context of a particular tribe’s application for TIP approval.

Comment:

One state/local commenter (0034.1) stated that air programs traditionally have been 

developed in a manner that ensures that the air resource is protected in an entire airshed. The 

commenter asserted that, accordingly, EPA must define a minimum size for which the proposed 

NSR program would be applicable. With no such definition, the commenter believes that small 

parcels of Indian country will become a checkerboard of areas within each state, but not under 

state jurisdiction, which will short-circuit a state’s ability to manage its air resources to meet the 

NAAQS and HAP obligations.

Response:

The EPA does not believe that the CAA requires us to define a minimum size for 

geographic areas of Indian country over which EPA may exercise authority under the statute. 

Because states are generally not approved to administer CAA programs in Indian country, and 

in the absence of an EPA-approved tribal CAA program, a regulatory gap exists throughout 

such areas, irrespective of the size of the Indian country area at issue. As described in detail 

elsewhere in this Response to Comments Document and in the final rule preamble, EPA has 

authority under the CAA to fill this gap throughout Indian country.

We understand that states and tribes may face different air quality issues that a single 

national program may or may not be able to address. However, we also believe that it would be 

impossible to create a single program that creates precisely equivalent regulations among all 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

127

areas of Indian country and the surrounding state areas. This rule simply represents EPA’s best 

judgment about the most appropriate way to implement the program in Indian country in the 

absence of an EPA-approved implementation plan. In the absence of EPA-approved programs, 

we believe that, in most cases, it would be neither practical nor administratively feasible for us 

to develop and implement a separate program for each area of Indian country.

Since we understand that states and eligible tribes may face different issues, and may 

therefore choose to develop different programs, we encourage those entities to develop their own 

minor programs for incorporation into their FIPs or TIPs. If a tribe is developing its own 

program, the final rule (FIP) can serve as one example of a program that meets the objectives 

and requirements of the Act. 

4.1.3 Establishing the Borders of Indian Country

Comment:

Two state/local commenters (0034.1, 0046.1/0100.1) and two industry commenters 

(0027.1, 0081) indicated that we should specifically define the borders of Indian country to avert 

any uncertainty concerning the proper reviewing authority for a specific proposed location. 

One of the state/local commenters (0046.1/0100.1) believes that without a clear 

delineation of jurisdiction, there is no basis for a state, individual tribes, or the regulated 

community to understand or predict which agency has regulatory and permitting authority, 

particularly in light of the inclusion of “dependent Indian communities” in the definition of 

“Indian country” and, therefore, in the area that the proposed FIP would cover. The commenter 

pointed out that in a land status determination concerning Hydro Resources, Inc., EPA adopted 

the Tenth Circuit Court of Appeals’ three-step “dependent Indian community” analysis, and that 

the first step in that analysis is a highly fact-intensive identification of the “appropriate 

community of reference” (which can aggregate both Indian and non-Indian owned lands). After 

summarizing the history and difficulties of the Hydro Resources, Inc. case, the commenter 

concluded that without individualized jurisdictional determinations by EPA in advance, the factintensive dependent Indian community analysis will be unmanageable and will foster needless 

regulatory uncertainty and protracted litigation. Because of this, the commenter believes that the 

proposed rule should be withdrawn.

The other state/local commenter (0034.1) pointed out that in the TAR, EPA has made it 

incumbent upon tribes to “identify with clarity and precision the exterior boundaries of the 

reservation including, for example, a map and a legal description of the area ...” and for “...areas 

outside the boundaries of a reservation, the statement should include ... a map or legal 

description of the area over which the application asserts authority.” This commenter suggested 

that, as part of the final rulemaking, we should make available to all state and local air pollution 

control entities such information in an easy-to-use and understandable manner. The commenter 

believes that current U.S. Department of the Interior tools are too cumbersome for expeditious 

use.
Review of New Sources and Modifications in Indian Country

Response to Comments

128

One industry commenter (0027.1) believes that the jurisdictional boundaries within 

Indian country are often unclear between states, federal agencies (EPA, Bureau of Land 

Management, Bureau of Indian Affairs, etc.), and tribal governments, especially when private/fee 

lands are intermixed among tribal lands. For more effective compliance, the commenter believes 

that EPA should provide to the regulated community the exact tools and maps the agency is 

using to determine what lands are subject to the final rule. As an example, the commenter noted 

that in its notice of proposed rulemaking on Indian Oil Valuation (71 FR 7453; February 13, 

2006) the Minerals Management Service listed seven specific areas of oil production on tribal 

reservation and allotted lands (page 7454). The commenter believes it is imperative to the 

successfulness of this program that EPA provide similar specificity on the applicability of the 

requirements.

The other industry commenter (0081) similarly stated that the boundaries of Indian 

country must be specifically defined within this proposed rule to avert any uncertainty 

concerning the proper reviewing authority for a specific proposed location. The commenter 

indicated that jurisdictional conflicts currently exist between the EPA and state authorities, 

giving as an example portions of the Wind River Indian Reservation where both the EPA and the 

State of Wyoming claim jurisdiction for permitting. Unless these conflicts are resolved, the 

commenter believes, new emission sources would be required to submit separate permit 

applications to both EPA and the state, which would create the potential for conflicts between 

permits issued by the two agencies. The commenter suggested that, following the resolution of 

the federal and state jurisdictional issues, the boundaries for all Indian country should be 

published, thereby allowing new sources to readily determine the proper authority for permitting.

Response:

The EPA does not believe that specific delineation of the borders of all parcels of Indian 

country throughout the nation is needed for EPA to promulgate these rules. As we have 

explained previously, EPA has well-established authority under the CAA to fill regulatory gaps 

in Indian country through federal implementation of CAA programs, in the absence of an EPAapproved program. In taking action on state program approval applications, EPA has not to 

date approved any state to administer either the minor NSR or nonattainment major NSR

program in any area of Indian country. In addition, because only a very small number of tribes 

have applied for eligibility to administer an approved minor NSR program, and no tribe has 

applied for eligibility to administer an approved nonattainment major NSR program, there is 

currently a regulatory gap for these programs throughout much or all of Indian country. In 

similar circumstances, EPA currently implements several programs under the CAA – as well as 

numerous additional programs under other federal environmental laws – throughout Indian 

country on a nationwide basis. Two relevant examples of this implementation throughout Indian 

country under the CAA include the federal major source operating permits program under 40 

CFR part 71 and the permit requirements for major sources in attainment areas under the PSD

program under 40 CFR 52.21. The minor NSR and nonattainment major NSR programs will be 

similarly implemented under EPA’s authority in Indian country.

As EPA has explained elsewhere, we also believe that in most cases, determining whether 

sources are located within Indian country will be straightforward and non-controversial, and 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

129

that EPA and sources will be able to easily assess whether a source is located within Indian 

country. See 64 FR 8247, 8256-57. Because EPA takes the position that state and local air 

quality programs do not, for CAA purposes, extend into Indian country absent express approval 

by EPA, EPA does not generally believe that sources in Indian country will be confused about 

whether they are covered by a state/local program or the federal minor NSR or nonattainment 

major NSR programs promulgated here. This is especially true for sources located in Indian 

country that are already covered by EPA CAA or other environmental programs based on their 

location in Indian country. In addition, EPA notes that states should be fully aware of whether 

EPA has explicitly approved their CAA programs as applying in Indian country, or excluded 

such areas from the state program. The EPA also believes that assessments of whether a source 

is located in Indian country can generally be easily verified through consultation with the U.S. 

Department of the Interior or through reference to readily available materials. The EPA

recognizes that certain rarer situations may raise more complex factual scenarios. In such 

cases, EPA intends to work with the Department of the Interior and relevant states, tribes, 

sources, and other stakeholders to assess the Indian country status of the particular source’s 

location. The EPA notes that it is ultimately a source’s responsibility to ascertain whether it is 

subject to the federal minor NSR or nonattainment major NSR program and to submit any 

required permit application.

4.2 Delegation of the NSR Programs to Tribes

We proposed a process to allow tribes to seek to assist EPA with administration of the 

federal NSR programs through a delegation agreement with EPA that would be similar to the 

process to delegate the administration of federal programs to tribes and states under other EPA 

rules. This process would not require the tribe to obtain TAS status or approval of a tribal minor 

NSR or nonattainment major NSR program under tribal law. Rather, the programs would remain 

federal and would continue to be implemented under EPA’s federal authority in Indian country. 

The only difference is that a tribe would, pursuant to an agreement with EPA, assist EPA by 

carrying out certain functions on EPA’s behalf. In our proposal, we noted that certain types of 

functions would not be available for delegation to an interested tribe. For instance, EPA would 

not include the enforcement of the NSR programs, which would be reserved to EPA under 

federal law. Of course, tribes would be free to pursue TAS status and approval to administer all 

aspects of a tribal NSR program under tribal law.

Comments Favoring Administrative Delegation:

Numerous tribal commenters (0031, 0033, 0038.1, 0041, 0044, 0047.1, 0049.1, 0053, 

0054, 0056, 0061.2, 0071, 0076, 0091.1, 0098.1, 0099.1, 0101.1, 0106.1) recommended that the 

administrative delegation of the program to tribes 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 also 

favor delegation of criminal enforcement authority. The commenters often suggested that the 

rules should give tribes the option of requesting delegation of enforcement authority, and two 

commenters (0047.1, 0071) believe that tribes should be allowed to negotiate the level of 

enforcement authority on a case-by-case basis. 
Review of New Sources and Modifications in Indian Country

Response to Comments

130

Three of the tribal commenters (0038.1, 0076, 0091.1) noted that there are a number of 

states that are exercising enforcement authority under their respective minor NSR programs, 

specifically due to delegation of such authority by EPA. The commenters believe that this 

should be available for tribes as well. 

A number of the commenters do not believe that it makes sense to divide implementation 

of the program between multiple agencies. For example, tribal commenter 0098.1 stated that 

bisecting the program confuses permittees and the public, adds to the administrative burden of 

EPA and tribal staff, and limits the possibility that tribes will want to aid EPA in administering 

the program.

Three of the commenters (0044, 0054, 0071) indicated that the current practice in other 

delegations is for EPA to retain criminal enforcement, but delegate civil enforcement to the 

tribes. These commenters questioned why this was not followed for the NSR program. One of 

the commenters (0071) expressed fear that the NSR program will change the status quo in these 

matters.

One of the commenters (0031) insisted that tribal sovereignty be maintained. This 

commenter believes that it is essential that tribes have enforcement power for both criminal and 

civil cases so as to guarantee that if a source is in violation and the EPA is not capable of 

handling it immediately, the tribe can pursue the case independently. The commenter also 

believes that the tribe should be responsible for enforcing all air quality standards upon sources 

that are owned or operated by tribal members.

One of the commenters (0049.1) stated that it may be efficient to address these gaps in 

environmental protection through methods including delegation of authority, but this method 

should be in addition to, not as a replacement for, the inherent authority and sovereignty of the 

tribal government. To that end, the commenter believes that the wording in the proposed rule 

pertaining to non-delegable elements of the FIPs is too broad and could lead to jurisdictional 

conflicts, rather than enhancing coordination as the proposed rules seem to intend. Specifically, 

the commenter indicated that the tribe should also retain the authority and capacity to issue and 

enforce, revoke, or terminate permits issued pursuant to the proposed rules for minor NSR or 

nonattainment major NSR, and these components should be delegable under the Act.

One of the commenters (0054) believes it is unrealistic to require a tribe to have an 

approved TIP in order to be delegated NSR enforcement. The commenter pointed out that the 

TIP process has been known to take a decade or more to complete.

Comments Opposing Administrative Delegation:

Two state/local commenters (0034.1, 0046.1/0100.1) and one industry commenter 

(0022.1) opposed the proposed administrative delegation of the NSR program to tribes. One of 

the state/local commenters (0034.1) noted that tribes can receive delegation if they demonstrate 

that they are formally recognized by the U.S. Department of the Interior, are currently carrying 

out substantial governmental powers, have authority to administer the program, and have 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

131

sufficient technical expertise to carry out the program. This commenter is concerned that these 

demonstrations will be approved by EPA based on their administrative completeness, rather than 

on their technical or legal merit. The commenter recommended that any delegation be 

contingent upon an approved TIP.

The industry commenter (0022.1) maintained that only the TAS process should be used 

to delegate authority of environmental programs to tribes. The commenter asserted that EPA has 

not provided any justification for why the proposed administrative delegation process is needed 

over the existing TAS process. In addition, the commenter believes that the proposed 

administrative delegation process will create 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 will be confusing to 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.

The second state/local commenter (0046.1/0100.1) stated that the Act plainly allows a 

delegation of authority to a tribe only if the tribe has demonstrated that it has adequate legal 

authority to regulate the areas it claims. Because EPA has not made any jurisdictional

determinations in connection with the proposed FIP, the commenter believes that delegation of 

authority to tribes to assist in administering the FIP violates the plain requirements of the Act.

Response:

The EPA believes that some of these commenters mistake the distinction between 

approvals of tribal programs under tribal law provided for in the TAR and the administrative 

delegations at issue here. Where EPA approves an eligible tribe for TAS under 

CAA section 301(d) and the TAR, EPA will continue to review the applicant tribe’s authority, 

including its authority to enforce, in an appropriate tribal forum, any approved tribal program 

operated under tribal law. In such circumstances, EPA has recognized that certain limitations 

on tribal criminal authority should not constitute a bar to tribal program approval and has 

determined to fill any gap in tribal criminal authority by retaining primary criminal enforcement 

at the federal level for all circumstances in which a tribe is precluded from exercising such 

authority. See 40 CFR 49.7(a)(6) and 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. The EPA does 

not believe that it would be appropriate to delegate enforcement of a federal permit in federal 

court to an Indian tribe assisting EPA with administration of the NSR program. Indeed, in 

similar circumstances EPA has consistently withheld enforcement in federal 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 
Review of New Sources and Modifications in Indian Country

Response to Comments

132

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.17 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 does not alter EPA’s approach 

to approval of tribal eligibility under the TAR. The EPA notes that tribes interested in enforcing 

NSR permits issued in their areas may continue to seek TAS eligibility and program approval 

pursuant to established procedures under the 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 eligibility for CAA programs under the TAR or with 

EPA’s approach to administrative delegations of other CAA programs to tribes and states.

4.3 Permits Previously Issued by States to Sources in Indian 

Country

Historically, sources in some areas of Indian country 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. The rulemaking proposal included a mechanism to change state permits issued 

to major sources of regulated NSR pollutants in nonattainment areas of Indian country to federal

nonattainment major NSR permits. Specifically, the proposal indicated that owners/operators of 

major stationary sources with state-issued nonattainment major NSR permits would be required 

to apply to convert the permit to a federal permit under the federal nonattainment major NSR 

 17 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. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

133

program within 1 year of the effective date of the program. In this case, the source would not be 

subject to any additional requirements under the nonattainment major NSR program for Indian 

country.

Comment:

Two industry commenters (0027.1, 0081) believe that state or federal permits (whether

minor or major source) should be transferred to the reviewing authority when the rule becomes 

effective, or the program is delegated. The commenters pointed out that proposed 40 CFR 

49.168(b) addresses the requirements to reapply for a nonattainment major NSR permit 

previously issued by a state to a source in Indian country, while proposed 40 CFR 49.158(c)(1) 

discusses the ability of an applicant to reapply for a synthetic minor source permit, if desired. 

(Commenter 0081 added that similar concerns exist with PSD, Title V, and minor NSR permits.) 

The commenters indicated that the reapplication processes set out in proposed 40 CFR 

49.158(c)(1) and 49.168(b) seem unnecessarily complex. The 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 of jurisdiction.

One of the commenters (0027.1) also offered the following alternative: a transitional 

MOU to specify a reasonable handoff between agencies for reporting, enforcement, audits, and 

the other compliance-related aspects of this transition. Both commenters (0027.1, 0081) 

indicated that if EPA believes that the “en mass” transfer methods are impracticable, then the 

source should be able to transfer the permit by submitting a transfer request (not a complete 

application) with a copy of the permit to both agencies. This transfer should occur without a 

review of the permit as stated in 40 CFR 49.168(b). The commenters added that additional 

information on the facility would be submitted to the reviewing authority upon request. One of 

the commenters (0081) stressed that sources with state minor NSR permits should be 

grandfathered into the Indian country program and not required to conduct minor NSR 

permitting.

A tribal commenter (0101.1) also believes that EPA should issue a federal permit under 

the Indian country NSR program to “any facility located in Indian country that has been 

erroneously issued a state permit.” (Although the commenter did not explicitly say so, we 

interpret this comment as favoring conversion of state minor NSR permits as well as 

nonattainment major NSR permits.) The commenter maintained that previous (erroneous) state

permit conditions may be appropriate to be included in the new federal permit, but that this 

should not be automatic. The commenter stated that government-to-government consultation 

between EPA and the affected tribe must take place during this process.

Three tribal commenters (0044, 0076, 0091.1) 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. One of the commenters (0044) stated that similar 

rules within EPA have an enforcement component, and that this rule should follow that 

precedent. This commenter recommended that EPA consider utilizing tribal courts for this 

purpose because the infraction would occur on Indian country and within tribal jurisdiction.
Review of New Sources and Modifications in Indian Country

Response to Comments

134

Response:

After considering these comments, we believe that transforming state nonattainment 

major NSR permits into federal nonattainment major NSR permits in Indian country is 

appropriate to protect air quality in Indian country. However, we do not believe that these 

permits should be transferred “en masse” from one agency to another or be automatically 

transferred because we need to determine if the permit complies with the applicable 

requirements under the federal NSR program. If it does not, a new permit with appropriate 

requirements would have to be publicly noticed and issued. If a source fails to obtain a required 

federal permit by the established timeline and/or does not meet the applicable requirements 

under this rule, it may be subject to potential enforcement action. We also believe that since any 

failure of a source to convert a state permit into a federal permit would be a violation of this 

rule, the violation is of the federal requirement and thus administratively enforceable by EPA 

and in federal court, not tribal court. Because these programs are operated under federal 

authority, there is no finding (and no need for a finding) of tribal jurisdiction. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

135

5 OTHER COMMENTS ON THE PROPOSED RULEMAKING

In this section, we present the comments, along with our responses, on other aspects of 

the proposal.

5.1 Implementation of the NSR Program

Section 5.1.1 addresses comments on the resources needed for implementation of the 

proposed NSR program, while section 5.1.2 deals with the implementation timeline. Finally, 

section 5.1.3 presents additional comments on implementation of the program.

5.1.1 Resources for Implementation 

Comment:

Numerous commenters questioned whether EPA or tribes will have adequate resources 

(staff and/or funds) to implement the NSR program. These commenters included 19 tribal 

commenters (0031, 0033, 0038.1, 0041, 0044, 0047.1, 0049.1, 0050.1, 0053, 0054, 0056, 0071,

0076, 0091.1, 0097.1, 0098.1, 0099.1, 0101.1, 0106.1), 3 industry commenters (0027.1, 0030, 

0081), and 1 state/local commenter (0051.1). 

As discussed further below, most of the tribal commenters believe that the NSR program 

should include a mechanism that allows tribes/EPA to collect fees to offset the costs of the 

program. Some of the tribal commenters (0031, 0047.1, 0049.1, 0053, 0098.1, 0099.1) also 

indicated that EPA should provide funding for tribal implementation of the NSR program, for 

example, through cooperative agreements and grants. Two of these commenters (0047.1, 0053) 

pointed out that tribes that do not accept delegation of the program will still need resources, such 

as funds to train and support personnel who will be reviewing and commenting on the permitting 

applications and providing technical assistance to businesses regarding compliance issues. 

Tribal Commenter 0047.1 stated that EPA should consult with individual tribes regarding the 

resources needed to implement the program. One of the commenters (0098.1) indicated that, 

with EPA’s limited staff and funding, the best chance of successful implementation of the NSR 

program is to partner with tribes through adequately-funded delegation agreements. However, 

the commenter observed that despite ever-growing tribal interest, available resources to fund 

tribal air programs are shrinking in relationship to the additional tribes interested in participating, 

and that specific enforcement resources have also declined over the past years. Another of the 

commenters (0099.1) stated that special funding for this proposed rule must be clearly stated and 

should not come from monies already allocated for implementation of tribal air quality programs.

Two tribal commenters (0038.1, 0044) indicated that they believe that we significantly 

underestimated the number of minor sources in Indian country and, therefore, have 

underestimated the resources required to implement the minor NSR program. One of these 

commenters (0038.1) noted that her tribe’s greatest fear is the potential lack of enforcement by 
Review of New Sources and Modifications in Indian Country

Response to Comments

136

EPA. Another tribal commenter (0053) wondered whether EPA has adequate staff available to 

enforce the NSR program and indicated that time frames, monitoring, and compliance are of 

great concern, noting that if EPA is not be able to make a site visit for a noncompliance issues, 

the emission source will continue to exceed emissions levels. Two other tribal commenters

(0076, 0091.1) recommended that EPA provide assurances that it will have sufficient resources 

to enforce the FIP for the nation’s many tribes.

Based on their experience with EPA issuance of Title V and PSD permits in Indian 

country, three industry commenters (0027.1, 0030, 0081) expressed doubt that EPA has the 

resources to take on the NSR program without significant permitting delays. One of the 

commenters (0030) expressed similar concerns regarding tribal agencies. This commenter 

(0030) believes that EPA has grossly underestimated the number of minor sources associated 

with oil and gas development that would be required to seek a minor NSR permit, and suggested 

that using general permits for typical oil and gas sources and recognizing that certain de minimis

sources are insignificant and should be permit-exempt would help address this shortfall in 

administrative resources. The other two commenters (0027.1, 0081) applauded the requirement 

that tribes must demonstrate that adequate resources are available to administer the program 

before the program is delegated to the tribe. These commenters asserted that permits should not 

be required in any Indian country area until the administrating agency, whether EPA or a tribal 

government, has demonstrated that adequate resources are budgeted to the program.

One state/local commenter (0051.1) pointed out that the proposed NSR program would 

create an enormous new workload for EPA Region IX, given the huge amount of Indian country

in California and other Region IX states, and 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 alreadyimpacted program areas, notably the air quality attainment plan and SIP rule approval processes 

and possibly other permit programs such as Title V, where local permitting agencies have to wait 

to issue final Title V permits until after a 45-day EPA review period.

Sixteen tribal commenters (0031, 0033, 0041, 0047.1, 0050.1, 0053, 0054, 0056, 0071, 

0076, 0091.1, 0097.1, 0098.1, 0099.1, 0101.1, 0106.1), one state/local commenter (0018.1), and 

one environmental group (0037.1) recommended that provisions for the collection of permit fees 

be added to the rule. The tribal commenters generally asserted that tribes who receive delegation 

of the program should be expressly allowed to collect permit fees to support the program, and 

several of these commenters also indicated that EPA should be empowered to collect fees when 

it is the reviewing authority. The tribal commenters believe that such fee provisions are 

necessary for providing the resources to enable sufficient oversight and operation of the tribal 

NSR program. 

Some of the tribal commenters addressed the fate of any fees collected:

• One tribal commenter (0053) simply indicated that who will collect and retain fees is 

an issue.

• One tribal commenter (0071) posited that under the proposed program, any fees 

collected by a delegate tribe would go back to EPA with no assurance that the fees 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

137

would go toward continuing tribal air programs development. This commenter 

argued that this situation would violate tribal statutes and protocol, as well as putting 

tribes at a great disadvantage when compared to state programs. The commenter 

asked that the rule provide for tribes to retain all permit fees that they collect.

• One tribal commenter (0050.1) indicated that without a mechanism under the Act 

similar to Title V, any fees collected by EPA would go to the U.S. Treasury. The 

commenter stated that tribal programs would not be subject to that requirement, and 

recommended that the final rule require delegate tribes to charge fees sufficient to 

cover the direct and indirect costs of the program. The commenter suggested that the 

fees be based on emissions or any other method that EPA deems appropriate. The 

commenter noted that TIP programs can devise their own fees.

• One tribal commenter (0101.1) recommended that fees collected by EPA be directed 

to the EPA Regional tribal air program, and that fees collected by a delegate tribe be 

retained by the tribe. In both cases, the commenter believes that the fees should 

support administration of the NSR program.

• One tribal commenter (0097.1) recommended that any permit fees collected by EPA 

under the permitting program, including the existing major source permitting 

programs for which EPA collects fees, be directed back to the Tribal Air Program in 

order have another resource pool for grants to further support tribal program 

development.

One tribal commenter (0099.1) recommended that EPA consult with each tribe regarding 

fees. The commenter went on to say that the fee structure for sources owned and operated by the 

tribe should be different than for other sources.

The state/local commenter (0018.1) stated that the final rule should require applicants to 

pay permit fees to EPA or the delegate tribe to make up for the resources expended on the 

program. The commenter noted that section 110(a)(2)(L) of the Act requires states to charge 

such fees, and indicated that such fees should be charged in Indian country in order to provide a 

level playing field.

The environmental group (0037.1) stated that without the ability to collect fees, tribes 

may be deterred from accepting delegation of authority of the NSR program. The commenter 

believes that implementation of the NSR program would be an important step in building tribal 

capacity to administer other programs under the Act.

Response:

The Agency is aware of and concerned about the resource needs of the rule, but the CAA 

does not give the Agency explicit authority to charge permit fees for preconstruction permitting. 

However, under a delegation agreement, EPA and the delegated tribe could, as appropriate, 

establish mechanisms to fund the work by tribal staff, that may include federal funding 

assistance through cooperative agreements and grants and/or user fees and charges established 

by the tribe under tribal law for the purpose of funding its administrative activities on behalf of 

EPA. See Federal Implementation Plans Under the Clean Air Act for Indian Reservations in 

Idaho, Oregon and Washington (70 FR 18080). In addition, tribes that develop TIPs can charge 
Review of New Sources and Modifications in Indian Country

Response to Comments

138

for permits under their authority. Furthermore, the final rule includes a number of mechanisms 

to address concerns regarding the resource burden, including: encouraging delegation of the 

program through trainings (face-to-face training sessions and through ITEP training), and 

developing and using general permits. We are also phasing in the implementation of the rules. 

See section 5.1.2 (next section) for more information about the implementation timeline. 

5.1.2 Implementation Timeline

Comment:

Three industry commenters (0022.1, 0027.1, 0081) and one state/local commenter 

(0051.1) requested that the program be phased in over a longer period of time. The three 

industry commenters (0022.1, 0027.1, 0081) noted that, as proposed, the NSR program would 

become effective 60 days after the rule is finalized, and that NSR permits would be required for 

projects in Indian country that commenced construction after this effective date. 

Two of the industry commenters (0027.1, 0081) stated that requiring preconstruction 

permits so soon after the rule is finalized will potentially disrupt currently planned projects –

industry will have insufficient time to obtain permits and EPA will have insufficient resources to 

process permit applications in a timely fashion. The commenters asserted that the ability for 

industry to continue with currently planned projects is imperative to project economics and to 

sustain America’s energy supply. Even if the reviewing authority has sufficient resources 

available when the rule is finalized to process the increased permit load, the commenters 

estimated that it may take 8 to 12 months to obtain the first preconstruction minor NSR permit in 

Indian country. They suggested that this could easily be avoided by delaying the preconstruction 

permit requirement for at least 12 months after the effective date of the rule, which would also 

allow agencies to develop general permits to reduce the resource burden for both industry and 

the reviewing authority.

The third industry commenter (0022.1) stated that the proposed rule does not allow 

industry adequate time to understand and comply with the final rule. The commenter believes 

that many small businesses will be regulated for the first time, and that these businesses will 

need time to understand and budget for those requirements. The commenter indicated that many, 

if not all, such businesses will have to hire consultants to help them comply with the final rule as 

most have limited knowledge and experience with air permitting issues. The commenter is 

concerned with the availability of consultants and budgeted funds to comply within 60 days of 

the final rule. The commenter recommended that EPA consider at least 18 months, which will 

also allow EPA time to develop guidance and general permits to expedite the permitting process.

The state/local commenter (0051.1) indicated that if we do not adopt requirements that 

mirror the local jurisdictions’ SIPs (the commenter’s preferred approach), we should postpone 

implementing the minor NSR rules for Indian country until sufficient experience and knowledge 

is gathered by implementing the nonattainment major NSR requirements, including the impact 

on the EPA Regional Offices, to allow EPA to construct a more productive and less laborintensive minor NSR program for Indian country.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

139

Response:

We agree that it would be very challenging for us, as the reviewing authority until a tribe 

obtains delegation or approval of a TIP, 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 

Regional Offices where EPA, as the reviewing authority, oversees a large area of Indian 

country with a potentially significant number of covered sources. Consequently, we have 

decided to phase in the implementation of the rules depending on the type of source being 

regulated. See section VII.C of the final rule preamble for more details on the phase-in 

schedule. 

5.1.3 Other Comments on Implementation

Comment:

One tribal commenter (0053) expressed concern that the Indian country NSR program 

will apply to all tribes, with or without tribal input, and that sources will be required to comply 

with NSR 60 days after the rules are promulgated. The commenter is concerned that, in the case 

of tribes that do not have an air quality program, no one will inform the Tribal Council about the 

NSR program.

Response:

We intend to do extensive training and outreach to the tribes and to provide compliance 

assistance to encourage and support tribal involvement. 

Comment:

One industry commenter (0021.1) and one state/local commenter (0046.1/0100.1) 

indicated that the proposed NSR program for Indian country would be especially problematic to 

implement in Oklahoma. The industry commenter (0021.1) gave the following reasons:

• Unlike reservations in western states, Oklahoma has 39 recognized tribes.

• There are no formal reservations in Oklahoma where a tribal government has primary 

control over significant sized tracts of contiguous lands. Indian country in Oklahoma 

includes isolated lands such as trust lands, dependent Indian communities, and 

allotments that are scattered throughout the state and are located in and among private 

lands held by non-tribal members. 

• Tribal trust lands and individual allotments can vary over time, and as such, the list of 

impacted property over which the tribe would assert jurisdiction would be constantly 

changing.
Review of New Sources and Modifications in Indian Country

Response to Comments

140

• The broad definition of “Indian country” makes it almost impossible to determine 

where affected lands are located. 

• The TAS process requires a tribe to demonstrate its jurisdiction over tracts of lands 

being claimed. There have been significant problems in Oklahoma with tribes 

providing adequate jurisdiction of lands they claim (see supplemental comments 

submitted to EPA Region VI on August 19, 2005 on behalf of the Oklahoma 

Department of Environmental Quality regarding the Cherokee Tribe’s TAS 

application for portions of the Act). 

The commenter (0021.1) does not think EPA has the ability to implement the 

environmental programs on thousands of non-contiguous tribal parcels of land spread throughout 

Oklahoma. Given these considerations, the commenter believes that the State of Oklahoma is in 

the best position to implement an air program over the entire state, including all Indian lands. 

The commenter urged EPA to use its discretion and allow the state to do so.

The state/local commenter (0046.1/0100.1) stated that the proposed FIP’s assertion of 

jurisdiction over “dependent Indian communities” creates particular regulatory uncertainty in 

Oklahoma, given that state’s history and land ownership patterns. The commenter points out that 

while there are no “reservations” in the traditional sense in Oklahoma, there are approximately 

97,000 acres of non-contiguous tribal trust land spread throughout the state and more than 

1 million acres of allotted, individually owned lands held by members of one tribe or another 

scattered throughout most of Oklahoma’s 77 counties. Thus, according to the commenter, much 

of the state of Oklahoma resembles a sparsely Indian-owned “checkerboard area.” Based on this 

situation, the commenter made the following points:

• Absent a clear jurisdictional determination prior to adoption of the proposed FIP, 

many land title issues would have to be adjudicated on a case-by-case basis. For 

example, in its application for TAS status the Cherokee Nation claimed title to parcels 

of “trust land” scattered across 14 counties in northeast Oklahoma. However, the 

review of land title of records established that many of the scattered parcels the 

Nation had claimed were trust land, in fact were not held in trust for the Cherokee 

Nation, and the Cherokee Nation had no interest at all in some of the claimed trust 

land parcels.

• Sweeping non-Indian owned land under the FIP as part of a “dependent Indian 

community” would needlessly disrupt long-standing, effective environmental 

regulatory programs administered by the commenter’s agency.

• The EPA has repeatedly recognized that “checkerboarded” regulation can confound 

efficient and effective environmental regulation. In the preamble to the federal 

operating permits program, for example, EPA made this point regarding tracts of land 

within a reservation (64 FR 8247). That same rationale should apply here to prevent 

checkerboarding of regulatory jurisdiction in Oklahoma among the state, tribes, and 

EPA.

• In SAFETEA, Congress appropriately sought to avoid precisely this kind of 

regulatory confusion and litigation.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

141

Based on these points, the commenter (0046.1/0100.1) concluded that the proposal to administer 

a FIP in Indian country should be withdrawn in its entirety or, alternatively, should be revised to 

exclude all lands within the State of Oklahoma.

Response:

As described above in section 4.1.3 of this document, EPA has authority to implement 

these CAA programs in Indian country on a nationwide basis in the absence of an EPA-approved 

non-federal program. The EPA believes that determining whether sources are located in Indian 

country will generally be straightforward and that in cases that present more complex factual 

scenarios EPA can work with DOI and relevant states, tribes, sources, and other stakeholders to 

assess the Indian country status of a particular source’s location. With regard to Indian country 

in the State of Oklahoma, as we have stated previously, EPA recognizes that SAFETEA contains 

a provision (section 10211) relating to implementation of environmental regulatory programs 

under federal environmental laws, including the CAA, in Indian country in Oklahoma. However, 

to date, neither the State of Oklahoma, nor any Indian tribe in Oklahoma, has applied for EPA 

approval to administer either of the CAA programs included in this rulemaking for any area of 

Indian country. In the absence of an EPA-approved program, these FIPs will apply throughout 

Indian country, including Indian country in Oklahoma. In promulgating these FIPs, EPA is not 

acting on any potential request by the State of Oklahoma to administer any CAA or other 

regulatory program in Indian country, nor is EPA acting on any potential TAS application for an 

environmental regulatory program by any Indian tribe in Oklahoma. The EPA would address 

any such applications when necessary and on a case-by-case basis and in full consideration of 

the requirements of section 10211 of SAFETEA. Section 10211 of 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. In addition, although EPA recognizes that certain potential challenges may exist in 

implementing some CAA programs over relative small parcels of land, we have already 

described our clear authority to administer these programs throughout all areas of Indian 

country (in the absence of an EPA-approved program) and believe we will be able to act on 

permit applications for all sources covered by these programs in such areas. 

5.2 Consultation with Tribes During the Rulemaking Process

Comment:

Eight tribal commenters (0044, 0049.1, 0061.2, 0071, 0076, 0091.1, 0098.1, 0101.1) 

indicated that there was no meaningful consultation between EPA and the tribes in developing 

this rule. These tribal commenters typically stated that while EPA initially gathered comments 

from interested tribes in 2002, the Agency did not communicate with the tribes on the results of 

that information gathering and offered no discussion of why some tribal suggestions were 

accepted and others rejected. Consultation on a government-to-government basis, they noted, is

a two-way communication, not merely a one-way distribution of information or a collection of 

comments from the tribes. The tribal commenters often stated that EPA did not consult at all 

with tribes about the proposed nonattainment major NSR program.
Review of New Sources and Modifications in Indian Country

Response to Comments

142

Three of the tribal commenters (0071, 0076, 0091.1) pointed out that EPA failed to 

follow the tribal consultation plan set out in 2002 by allowing a period of more than 2 years pass 

until further substantive discussions concerning the proposed FIP took place between the EPA 

and tribes. During this time, the EPA changed its staff overseeing development of the proposed 

FIP but failed to pass on information about previous tribal consultations to the new staff. Even 

after contacts were renewed at a 2004 National Tribal Air Association meeting, EPA did not act 

on the earlier consultation plan, but conducted the majority of its consultation/outreach efforts 

through a number of regional and national conferences, none of which met EPA’s policy of 

direct, government-to-government relations with tribes. One of these commenters (0071) asked 

that EPA revisit and carry out the original consultation plan, conduct further consultation on a 

government-to-government basis, and consult with tribes regarding the nonattainment major 

NSR program. Two of the commenters (0076, 0091.1) believe that additional opportunities exist 

for government-to-government consultation and urged EPA to act on these opportunities as soon 

as possible.

One of the tribal commenters (0101.1) agreed that additional opportunities exist for 

government-to-government consultation on the proposed minor NSR and nonattainment major 

NSR programs. This commenter stated that completion of promulgation of the proposed rule 

and its implementation must include a process that encourages continuing consultation with 

every impacted tribal government to ensure that each tribe’s policies and priorities (including 

existing air quality protections) are honored in the decision-making process. Another of the 

tribal commenters (0049.1) requested government-to-government consultation on the rulemaking 

process for the proposed rules, the implementation of the rules, and the enforcement process and 

necessary funding to carry out the provisions of the proposed rules.

One of the tribal commenters (0098.1) noted that consultation as expressed in Executive 

Order 13175 is the substantive baseline from which EPA must approach all environmental issues 

that might have an impact on tribes, tribal communities, or the tribal environment. This 

commenter requested that EPA provide a formal response to tribes that participated in the 

consultation process and that EPA directly address each tribe’s specific concerns in this 

response. In addition, the commenter urged EPA to sincerely incorporate the tribal complaints 

over the consultation process for the Tribal NSR proposal in an effort to improve consultation in 

the future.

Response:

The EPA conducted substantial outreach and consultation with tribal officials and other 

tribal representatives, and has incorporated tribal views, throughout the course of developing 

these rules. See section III.D of the final rule preamble for more details on our tribal outreach 

and consultation efforts. However, we agree that consultation and ongoing communication are 

critical to effective rulemaking and that long delays between consultations and other 

communication methods were problematic. For that reason, we plan to improve our 

communication efforts during the implementation of this rule to ensure that proper outreach and 

consultation is conducted. In addition, we intend to do extensive training and outreach to the 

tribes and to provide compliance assistance to encourage and support tribal involvement. 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

143

5.3 Use of FIPs for the NSR Program

Comment:

One private citizen (0016.1) questioned the effectiveness of EPA’s process for 

establishing and implementing the NSR program for Indian country. Noting the lack of 

involvement by tribes with the existing PSD program and the 15 percent response rate to the 

initial outreach effort to tribes (75 responses to 500 letters mailed out regarding these NSR 

rules), the commenter stated that EPA’s actions seem to indicate a long-term implementation and 

execution role in Indian country. The commenter believes that EPA has established regulations 

that create false options for tribal control of their own lands, given the lack of authority and 

funding given to tribes and the fact that there is no straightforward plan or means to transfer 

control to the tribes. The commenter indicated that EPA’s current trajectory involves continued 

implementation, execution, and enforcement of the Act in Indian country for an undefined 

period. Instead, the commenter recommended that EPA establish a strong government-togovernment approach through a permanent plan to invest monetarily and influentially in Indian 

country environmental programs, rather than continue to create a stream of FIPs implemented by 

EPA.

Response:

We agree that an implementation plan is needed and that development of this plan needs 

to involve tribes. To address this, we have an ongoing workgroup comprised of tribal 

environmental professionals and are working with them to develop a NSR implementation plan. 

The EPA intends to continue this work and to consult with tribes on an ongoing basis as these 

programs are implemented and as EPA considers other issues regarding implementation of the 

CAA programs in Indian country. 

Comment:

One private citizen (0093.1) commented that EPA should aim to respect tribal 

sovereignty by allowing tribes to create their own TIP in lieu of the FIP, as proposed. In order 

for this to become a reality, the commenter believes there needs to be more collaboration 

between EPA and the tribes, as well as an increase in funding and staffing necessary to 

implement the TIP.

Response:

We agree that collaboration is important and that support should be given to the tribes. 

Therefore, we have developed an implementation plan in collaboration with interested tribal 

environmental professionals through an ongoing workgroup that includes increased outreach 

and communication with the tribes, outreach to the sources, and training. We believe that this 

final implementation plan will meet the needs of the tribes. The EPA continues to support tribal 

efforts to develop TIPs and believes that these rules may assist in those efforts through 
Review of New Sources and Modifications in Indian Country

Response to Comments

144

opportunities for tribes to seek administrative delegation and also by forming an example upon 

which tribes may base potential tribal programs. 

Comment:

Another private citizen (0096) similarly suggested that the Indian country NSR rules 

should emphasize the adoption of TIPs with enforcement powers for the tribes. However, this 

commenter went on to recommend that, in cases where a TIP is currently infeasible for a given 

tribe, the tribe should be given the option to incorporate themselves into the SIP NSR program 

that is within the same air basin (while retaining the option of developing a TIP in the future). 

The commenter gave the following as advantages of state administration of NSR in tribal areas:

• Reduced burden on the increasingly overwhelmed EPA Regional Offices. This 

burden would fall on some Regional Offices more heavily than on others due to the 

differing numbers of tribes in each region.

• States already have the NSR regulatory framework established, unlike the EPA 

Regional Offices.

• It is preferable to apply uniform regulations in an entire airshed, not divide it up along 

political boundaries.

• Jurisdiction will be consistent across the United States, with no question about who 

will be regulated and by whom. This would provide a consistent set of rules for the 

regulated community, whether they operate within tribal areas or not.

Response:

We agree tribes should be encouraged to develop TIPs where appropriate. However, 

states generally lack jurisdiction under the Act over facilities in Indian country (See section 4 of 

this document for more information about states’ lack of jurisdiction in Indian country).

Therefore, we do not believe it will be feasible or appropriate to incorporate a tribe into the SIP 

NSR program that is within the same air basin. 

5.4 Regulatory Needs in Nonattainment Areas

Comment:

Three state/local commenters (0018.1, 0045.1, 0051.1) indicated that the proposed NSR 

program for Indian country does not go far enough for Indian country located in nonattainment 

areas. Commenters 0018.1 and 0045.1 specifically recommended that attainment plans be 

developed and implemented for Indian country located in nonattainment areas.

One of the commenters (0018.1) stated EPA should promulgate and implement a full set 

of rules for Indian country areas that are in nonattainment areas or whose emissions may impact 

nonattainment areas, which should include RACT, other applicable CAA requirements, and 

enough additional rules to assure attainment in the affected area. The commenter believes that 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

145

EPA has a moral duty to protect Indian residents to the same extent as state and local agencies 

are required to protect their own residents, i.e., by assuring timely attainment. The commenter 

asserted that EPA has an obligation to regulate sources in Indian country as needed to assure 

attainment in areas affected by emissions from these sources, given that state and local 

authorities are very limited in their ability to do so. The commenter also noted that EPA 

Region X has promulgated a limited set of rules applicable in Indian country that go beyond 

NSR, and suggested that this could be carried out and expanded by the EPA Regional Offices.

The other two commenters (0045.1, 0051.1) pointed out that, even with implementation 

of the proposed Indian country NSR program, existing sources in Indian country will be 

unregulated even though they operate within the same air basins as sources subject to all state

and federal CAA requirements for nonattainment areas. The commenters asserted that the result 

is a serious inequality in air pollution regulation and a significant potential impact – untouchable 

by state and local air quality regulators – on the air quality in areas already having degraded air 

quality. As an example, the commenters noted that on one side of the Indian country boundary, a 

facility can operate large existing industrial equipment, such as boilers and internal combustion 

engines, with large quantities of uncontrolled emissions, while on the other side of the boundary 

line, the same type of facility has made significant expenditures for pollution control equipment 

to reduce emissions.

The latter two commenters (0045.1, 0051.1) believe that sources in Indian country should 

comply with provisions that are consistent with those of the SIP of the bordering state or local 

agency. One of the commenters (0045.1) suggested that these requirements should be embodied 

in a TIP that requires compliance with the relevant SIP. Because the SIP rules have already been 

drafted and implemented by the state or locality, the commenter believes that it would require 

relatively little effort to develop effective tribal rules to mirror the SIP. The second of these 

commenters (0051.1) requested that EPA consider adopting, as the FIP for each respective area 

of Indian country, the SIP that has been adopted by the adjacent state or local agency. This 

commenter pointed out that such SIPs have already been demonstrated to contain the necessary 

components to attain the NAAQS for the area, which is the same air basin in which the Indian 

country areas are located.

Response:

In this final rule, we are establishing a major NSR program for new major sources and 

major modifications at existing major sources in nonattainment areas of Indian country at 

40 CFR 49.166 through 49.175. This program is designed to meet the requirements of part D of 

Title I of the Act, and, as proposed, sources subject to this program would be required to comply 

with the requirements of 40 CFR part 51, Appendix S (Appendix S).

Appendix S is titled “Emission Offset Interpretative Ruling” and sets forth 

preconstruction review requirements for major sources and modifications locating in 

nonattainment areas where the state does not have an EPA-approved nonattainment major NSR 

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

covers the period after an area has been newly designated as nonattainment, up until the time 

that the state has amended its SIP’s nonattainment major NSR program, as needed, to address 
Review of New Sources and Modifications in Indian Country

Response to Comments

146

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. First, 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. Second, 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. In addition, we 

believe it is appropriate to apply Appendix S provisions in Indian country for administrative 

convenience. 

We considered and rejected the option of amending Appendix S to extend its application 

to Indian country, since we believe that sources in Indian country are more likely to look for 

regulations applicable to them under part 49, which is solely dedicated to regulations that apply 

in Indian country. We also considered drafting 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.

Therefore, we believe this program will ensure protection of air quality in Indian country 

consistent with the requirements that apply to state programs.

In addition, and as noted elsewhere, EPA continues to support interested tribes’ efforts to 

seek TAS eligibility and program approval for their own NSR programs. As appropriate, such 

tribes may look to their surrounding states’ SIPs as guides in developing their own programs. 

However, eligible tribes are not required to so do. The EPA does not believe it would be 

appropriate to simply adopt existing SIP requirements for the surrounding states into this FIP 

for each area of Indian country. As noted elsewhere, state requirements generally do not apply 

under the Act in Indian country and may not have been developed with tribal involvement or with 

Indian country in mind. The EPA believes that reliance on Appendix S requirements is the most 

efficient and appropriate means of implementing the federal program throughout Indian country 

until such time as EPA approves an implementation plan for a particular area. 

5.5 Statutory and Executive Order Reviews

5.5.1 Regulatory Flexibility Act (RFA) Review

Comment:

One tribal commenter (0038.1) believes that EPA has grossly underestimated the number 

of minor sources on reservations nationwide. The commenter stated that utilizing data from 

11 emission inventories is inadequate for estimating sources and the variability of sources from 
Review of New Sources and Modifications in Indian Country 

Response to Comments 

147

reservation to reservation. For example, the commenter pointed out that Leech Lake alone has 

over 250 gas stations, while Fond du Lac has only three. 

Another tribal commenter (0044) indicated that EPA may wish to reconsider the method 

used to determine types of minor sources in Indian country and the corresponding number of 

affected small business. The commenter believes that because EPA used only 11 tribal emission 

inventories to project the expected number of affected small business and estimate costs 

incurred, it is very likely that the costs incurred by these small businesses will be much greater 

than estimated.

One industry commenter (0022.1) also thinks that EPA has not adequately addressed the 

impacts to small businesses. The commenter asserted that many small businesses operating 

minor sources will be regulated for the first time by EPA’s proposed minor NSR rule because of 

the low applicability thresholds. The commenter believes that many, if not all, oil and gas 

operators in Indian country will be subject to these new requirements; many of these operators 

are small businesses. The commenter stated that many will have to hire consultants to determine 

applicability and comply with the proposed rule because they do not have the knowledge or 

expertise on air issues. The commenter questioned whether EPA addressed this issue in the cost 

impact analysis and urged EPA to make the proposed rule as straightforward and simple as 

possible to help small businesses comply without the aid of a consultant.

Response:

We understand there is some uncertainty about the number of minor sources located on 

Indian country because we currently lack emission inventory data for all sources located in 

Indian country. Nevertheless, we revised the economic impact analysis between the proposal 

and final rule to account for better inventory data we gathered about sources located in Indian 

country. In addition, to address concerns about the lack of inventory data, we are finalizing 

procedures that will require sources to register after the effective date of the rule to better 

understand the emission sources in Indian country. In addition, the phased-in implementation of 

the rule will allow us to provide adequate outreach to small businesses in Indian country with 

the hope that the need of some sources to hire consultants to comply with the rule will be 

minimized. The EPA Regional Offices will also be available to help sources comply with the 

requirements of the rules as needed.

5.5.2 Executive Order 12866 and 13211 Review

Comment:

One industry commenter (0022.1) does not believe that EPA has fully addressed 

Executive Orders 12866 and 13211 as they relate to the impacts of the proposed rule on the 

regulated community. Specifically, the commenter does not believe that EPA has made an 

adequate assessment of the effects of the proposal on the nation’s energy supply, distribution, or 

use of energy, or on the cost and benefit to industry. The commenter indicated that the proposed 

action has the potential to adversely impact the nation’s energy supply, distribution, and use by 
Review of New Sources and Modifications in Indian Country

Response to Comments

148

impeding necessary domestic energy development because of delays and increases in the cost of 

drilling and producing oil and natural gas. The commenter urged EPA to use its discretion to 

implement air programs in Indian country through existing state programs (especially in 

Oklahoma) to avoid inconsistencies, inefficiencies, and confusion within the regulated 

community.

Response:

We disagree with this commenter. The number of projected new sources in the energy 

sector due to this rule is a small share (about 1 percent) of the total number of energy sector 

facilities nationwide. Therefore, EPA does not believe that this action will have a significant 

effect on energy production. In addition, EPA’s cost analysis, presented in the Economic Impact 

Analysis, estimates the total annualized cost of the rule will be substantially less than the $100 

million cost and/or benefits trigger identified in Executive Order 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.

5.6 Miscellaneous Comments on the Proposal

Comment:

One industry commenter (0028.1) indicated that the proposed rule does not address the 

relationship between permits issued under the proposed rule, and issuance or revision of Title V 

operating permits. Specifically, the commenter asked how permits or exemption determinations 

under this rule are to be incorporated into a major source Title V permit. Once a permit is issued 

under this program and construction or modification is authorized will the permittee have to 

revise its Title V permit before operation of that source commences?

Response:

The comment is unclear. Title V permits or renewals are issued to major sources in 

Indian country pursuant to 40 CFR part 71 provisions and will include all NSR requirements as 

applicable requirements. After a source is approved to construct or modify its operations under 

a nonattainment major NSR major source permit, a source can then commence operation and 

would have up to 12 months to apply for a Title V permit. Sources that currently have 

nonattainment major NSR permits under a source-specific FIP will not have to revise their 

permits unless they propose a modification that would cause their nonattainment major NSR and 

subsequently their Title V permit to change. 

Comment:

One private citizen (0015) commented that the State of Idaho has a huge program with an 

annual grass burn on the local Indian reservation. The commenter stated that the density of the 

smoke regularly exceeds EPA standards and should be managed.
Review of New Sources and Modifications in Indian Country 

Response to Comments 

149

Response:

Although we agree smoke management may be very important to address air quality, the

preconstruction permitting requirements included in this rule do not apply for this type of air 

pollution source. However, EPA can collaborate with this commenter and other interested 

parties to address air quality burning under other CAA provisions. 

Comment:

One private citizen (0019) contended that “we” do not need any more regulations until 

the rest of the world catches up with ours.

Response:

We disagree with this commenter. The EPA has a general obligation under the Act to 

ensure the protection of air quality throughout the Nation, including throughout Indian country 

Prior to this action, there has been no federal permitting mechanism for minor sources in Indian 

country and for major sources in areas of Indian country that are designated as not attaining the 

NAAQS. These final rules will fill this regulatory gap. In addition, these rules will provide 

regulatory certainty to allow for environmentally sound economic growth in Indian country.

Comment:

Three tribal commenters (0104, 0129.1, 0130.1) requested that EPA move the NSR rule 

forward based on their tribes’ circumstances. One of the commenter stated that Indian country 

needs to see the rule finalized to close this loophole and allow tribes to assume delegation of the 

program and also have enforcement authority.

Response:

We agree that it is important to fill the gaps in the NSR program in Indian country. 

Accordingly, we are issuing the final rule. See section 4.2 of this document for the discussion of

delegation and enforcement authority.