Review of New Sources andModifications in IndianCountry (Tribal NSR Rules)Rules Comments SummaryCommon NSR TermsPotential to Emit (PTE)– maximum capacity of asource to emit a pollutantAllowable emissions– enforceable emissionlimitations on maximum capacity2Actual emissions– current source emissionsProjected actual emissions- source’s estimate offuture actual emissions (future actual)Tribal Minor NSR RuleRule Comments SummaryMinor NSR Applicability – New SourcesProposed that applicability test for new minor sources will bebased on potential to emitSupporting2General Supporting Comment1 tribe•Agree with definition of minor source, but the definition41 industry•Agree with definition of minor source, but the definitionshould accommodate anydeminimisthresholds orinsignificant source categories or activitiesMinor NSR Applicability – ModificationsProposed that applicability test for minor modifications willbebased on allowable emissions instead of actual emissions(allowable-to-allowable test)Supporting13Opposing19General Opposing Comment56 tribes6 industries1 air agency8 tribe3 industries2 air agencies1 enviro5 citizens• Less stringent and will be tied-up in litigation• Introduces unnecessary complexity - test is different thantheone used for the major NSR program• Actual emissions test is preferable• Actual-to-projected actual test would be acceptableMinor NSR Applicability – Fugitive EmissionsAsked for comment on whether we should account for fugitiveemissions during minor NSR applicability determinations fornew minor sources or minor modificationsSupporting8Opposing11General Opposing Comment64 tribes2 citizens1 air agency1 enviro9 industries2 tribes•Too excessive for the miniscule minor source emissions•Time-consuming and resource-intensive for those unfamiliar withconcepts•Compliance costs for minor sources could be substantial andimposing this requirement without sound reason is partiallyarbitraryProposed Minor NSR Thresholds(cutoff levels for which minor sources with emissions lower than the thresholdswould be exempt from the minor NSR rules - vary by pollutant andarea classification)Regulated NSR Pollutant Nonattainment Areas Attainment AreasCarbon monoxide (CO)5 10Oxides of nitrogen (NOx)5 10Sulfur dioxide (SO2)5 10Volatile organic compounds (VOC)2 5PM5 107PM-101 5PM-2.50.6 3Lead0.1 0.1FluoridesNA 1Sulfuric acid mistNA 2Hydrogen sulfide (H2S)NA 2Total reduced sulfur (including H2S)NA 2Reduced sulfur compounds (including H2S)NA 2Municipal waste combustor emissionsNA 2Municipal solid waste landfills emissionsNA 10Minor NSR Thresholds (Continued)Establishment of Minor NSR ThresholdsSupporting8General Supporting Comments2 tribes4 industry2 citizens• Some specifically endorsed setting thresholds in tons peryear• EPA needs to adjust the minor NSR thresholds periodically based on monitoring data8Levels of the Proposed ThresholdsSupporting1Opposing6General Opposing Comments1 enviro 6 industries •Raise thresholds to reduce administrative burden•Other comments:•VOC threshold too burdensome for oil and gas industry– 6 industries,1 tribe•CO threshold should be raised in relation to other NSR pollutants,trade-off between NO2and CO – 2 industriesList of Exempted Units and ActivitiesProposed list of exempted units and activities because they either do not emit regulated NSRpollutants to the ambient air or emit these pollutants in negligible amounts. The list includes:1.Air-conditioning units for comfort that are not subject to applicable requirements under title VI of theAct and do not exhaust air pollutants into the ambient air from any manufacturing or industrial process2.Ventilating units for comfort that do not exhaust air pollutants into the ambient air from anymanufacturing or other industrial process3.Heating units for comfort that do not provide heatfor any manufacturing or other industrial process4.Noncommercial food preparationConsumer use of office equipment and products5.6.Janitorial services and consumer use of janitorialproducts7.Internal combustion engines used for landscaping purposes8.Bench scale laboratory activities, except for laboratory fume hoods and vents9.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 toemit a regulated NSR pollutant or HAP9Supporting0Opposing10*General Opposing Comments1 tribe7 industry1 air agency1 citizen•List will not help reduce administrative burden•Not including ade minimisexemption or adding the insignificant sourcecategories or activities that are included in many Stateprograms is aconcern* Commenters opposed the few units/activities on the list, not the promulgation of a list of exempted units/activitiesCase-by-Case Technology ReviewProposed case-by-case control technology review based on a consideration of:Local air quality needsTypical control technology used by similar sourcesin surrounding areasAnticipated economic growth in the areaCost-effective control alternativesSupporting6Opposing11General Opposing Comments6 tribes 1 tribe8 industry1 enviro1 air agency•A control technology requirement under the minor NSR program shouldnot be included•Many sources are already subject to technology based standards thus further controlrequirements are unwarranted•EPA has no authority to impose a control technology requirement under section110(a)(2)(C) of the Act•Control technology determinations under the program will not be consistent amongdifferent reviewing authorities10Air Quality Impact Analysis (AQIA)SupportingOpposingGeneral Opposing CommentsProposed to require AQIA at the discretion of the reviewing authority:Only if concerned minor source will cause or contribute to a NAAQS or PSDincrement violationSupporting10*Opposing7General Opposing Comments4 tribes3 industries1 air agency1 enviro1 citizen6 industries1 tribe•Requirement excessive, costly and time consuming for smallbusinesses•Rarely used in States’ minor NSR programs•Should be used in rare instances and fugitives should not beincluded in modeling analysis•If finalized, requirements should include prescribed screeningprocedures for when AQIAs must be performed* Support, but suggest that more specific or stringent requirements should be finalized11Treatment of Existing Minor SourcesProposed three options for how to treat existing minor sources once the ruleis finalized:Option 1–Newpermit not neededinitially, only when aminor modificationtriggers NSRSupporting - 12 Opposing - 3 General Opposing Comments9 industries3 tribes1 air agency1 citizen1 enviro•Air quality impacts are not addressed12Option 2–Newpermit not neededinitially, but existingsources must registerwithin 1 year afterrule’s effective dateSupporting - 15 Opposing - 1 General Opposing Comments10 tribes3 air agencies1 enviro1 citizen1 tribe •Too burdensome for existing minor sourcesOption 3–Existingminors need newpermit shortly afterthe rule is finalSupporting - 4 Opposing – 5 General Opposing Comments2 tribes2 citizens3 industries1 tribe1 air agency•Overwhelming on EPA’s resources; willcause construction delays•Burdensome on oil & gas industryTreatment of Existing Synthetic Minor SourcesOption 1–ExistingSupportingOpposingGeneral Opposing CommentsProposed that:Existing synthetic minors would need a new permit and mustsubmit a permitapplication within 1 year of rule’s effective dateFailure to meet the new application deadline results in source becoming subjectto all requirements for major sourcesOption 1–Existingsynthetic minors would needa new permit and mustsubmit a permit applicationwithin 1 year of rule’seffective dateSupporting6Opposing2General Opposing Comments4 tribes1 enviro1 citizen2 industries • Should not be allowed for HAPs• Burdensome on oil & gas industry13General PermitsProposed that:EPA would have authority to issue general permitsGPs will be developed by HQs and/or the Regions, will be issued through a notice andcomment procedure, and must be appealed at the timeof GP issuanceAfter GP is developed, public can appeal the applicability of a GP to a particularsource, not the GP itselfSupporting10Opposing1General Supporting Comments8 industries2 tribes1 tribe•Permitting should be streamlined using guidance, ratherthan using general permitsReviewing authority may grant or deny constructionunder a GP without repeating publicnoticing procedures used to develop the GP (GP considered final agency action)Public notified about the approval of a GP for a particular facility by letter posted at thefacility14Case-by-case MACT determinationsMACT compliance determined on a case-by-case basis if:No MACT standard for a source category has been establishedThere is no EPA-approved programAct provides review options for these determinationsUsing a Title V permitApplying and obtaining a Notice of MACT approvalAny other administrative procedures for preconstruction review and approvalSupporting3Opposing1General Opposing Comments2 tribes1 industry1 industry • Source should not apply for minor source permit, instead applyfor a major source permit which would require case-by-caseMACTAny other administrative procedures for preconstruction review and approvalProposed that minor NSR program will be used as one of the “other administrativeprocedures for preconstruction review and approval”Applicable sources will be major for HAPs and minorfor NSRSources will eventually need a Part 71 permit for major HAP emissions15Public Participation RequirementsSupportingOpposingGeneral Opposing CommentProposed that:The reviewing authority is required to prepare a draft permitand provideadequate public notice (including, among other requirements,a 30-day publiccomment period)Supporting3Opposing11General Opposing Comment2 tribes1 air agency2 tribes6 industries2 air agencies1 enviro•More stringent than State minor NSR programs•Match environmental significance with public notice period•Addde minimisthresholds below which sources would be exempt from publicnotice and participation requirements16Proposed Tribal MajorNonattainment NSR ProgramRule Comments SummaryOffset WaiversIn nonattainment areas, the Clean Air Act requires emissionsreductions (offsets)from existing sources in the area of the proposed source (whetheror not under thesame ownership) to obtain reasonable progress towards attainment of theapplicable NAAQS.We proposed two options to address the lack of available offsetsin Indiancountry:Economic Development Zone OptionSupporting2Opposing6General Opposing Comment1 tribe1 industry4 tribes1 air agency1 enviro•Data used to develop this option is old.•There has been significant development in Indian country in the past 20 yearsand thus this option will not be available to tribes.•In the absence of a TIP, this precondition for offset relief would notbe met inIndian countryAppendix S Paragraph IV OptionSupporting3Opposing4General Opposing Comment2 tribes1 industry1 tribe1 air agency1 enviro1 citizen•Option “buys time” for sources, its weakening environmental protection.18Compliance Certification Review AreaState-wideSupportingOpposingGeneral Opposing CommentsClean Air Act Section 173 requires source owners/operators to certify that theowner/operator is complying with all applicable air regulations. The certificationmust cover all facilities owned/operated by such person in thesame State.Asked for comments as to whether that certification, for purposes of the Tribal NAmajor NSR rule, should be State-wide, Indian country-wide or Per Tribe.State-wideSupporting4Opposing1General Opposing Comments2 Tribes1 air agency1 industry1 industry•Will give EPA overreaching authority over SIP-approved facilitiesIndiancountrywideSupporting1Opposing4General Opposing Comments1 tribe 4 tribes•Prefer nationwide compliancePer TribeSupporting3General Supporting Comments2 tribes1 industry•Indian country-wide certification burdensome•More consistent with treating individual tribes as states19Provisions Applicable To BothRulesRule Comments SummaryPermit Appeals(Proposed Two Options for Permit Appeals)Appeals must be filed within 30days after a final permit decisionhas been issuedUpon filing of a petition for review,Permits:are effective upon issuancenot stayed by filing for anAdministrative Permit AppealsJudicial Permit AppealsUpon filing of a petition for review,the permit will be stayedMotion to reconsider the final EABorder must be filed within 10 daysIf all remedies are exhausted,person may appeal to Federal Courtnot stayed by filing for anappealTo stay a permit, petition underthe Administrative Procedures Act(APA) 5 U.S.C. 705 must be filedSource can have permit revokedafter proceeding with constructionwhile appeal was pending21Permit Appeals (Continued)Environmental Appeals Board (EAB) OptionSupporting5Opposing3General Opposing Comments4 tribes1 state1 tribe2 industry•Permit stay provision will encourage abuse and delays•Permit stay too burdensome for minor sources, not consistent with stateprogramsFederal Court of Appeals OptionSupporting8General Supporting Comments5 industry2 tribes1 air agency•Permit effective upon issuance.•Source determines construction commencement.•More consistent with State minor NSR programs.•Less burdensome on government resources.22Permit Reopening ProvisionsProposed that:Any person (including the permittee) may petition the reviewingauthority toreopen a permit for a causeThe reviewing authority may commence a permit reopening in itsown initiative ifit contains a material mistake or fails to assure compliance with applicablerequirementsSupporting2Opposing4General Opposing Comments1 tribe1 industry4 industries•More stringent than Title V and other NSR programs•Potential for abuse and disruption of permit process•EPA, reviewing authorities or only those commenters who provided substantialcomments should be allowed to reopen permit23requirementsOther Significant CommentsRule Comments SummaryImplementing the Minor NSR Rule in PhasesDelayed Rule ImplementationSupportingGeneral supporting commentsProposed that entire rule would be effective 60 days after publication inthe Federal RegisterCommenters raised concerns about workload rule might bring andsuggested that we should delay implementation of the ruleSupporting4General supporting comments3 industries1 air agency•Work with synthetic minors first and then true minor sources•Delay effective date up to 12 or 18 months after promulgation•Postpone implementing minor program until sufficient experience and knowledge is gathered fromimplementing the major NA-NSR program25