Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 31035 

Dated: May 27, 2014. 

Lynn B. Mahaffie, 

Senior Director, Policy Coordination, 

Development, and Accreditation Service, 

delegated the authority to perform the 

functions and duties of the Assistant 

Secretary for Postsecondary Education. 

[FR Doc. 2014–12582 Filed 5–29–14; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–HQ–OAR–2003–0076; FRL–9909–78– 

OAR] 

RIN 2060–AR25 

Review of New Sources and 

Modifications in Indian Country— 

Amendments to the Federal Indian 

Country Minor New Source Review 

Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is issuing final 

amendments to the federal minor New 

Source Review (NSR) program in Indian 

country. We refer to this NSR rule as the 

‘‘federal Indian country minor NSR 

program.’’ We are amending this rule in 

two ways. First, we are expanding the 

list of emissions units and activities that 

are exempt from the federal Indian 

country minor NSR program by adding 

several types of low-emitting units and 

activities. Second, we have clarified 

construction-related terms by defining 

‘‘commence construction’’ and ‘‘begin 

construction’’ to better reflect the 

regulatory requirements associated with 

construction activities. We believe both 

of these changes will simplify the 

program, and result in less burdensome 

implementation without detriment to air 

quality in Indian country. Finally, we 

have reconsidered the advance 

notification period for relocation of a 

true minor source in response to a 

petition on the rule from the American 

Petroleum Institute, the Independent 

Petroleum Association of America and 

America’s Natural Gas Alliance, but we 

are not changing that provision. 

DATES: The final rule is effective on June 

30, 2014. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2003–0076. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

William Jefferson Clinton West 

Building, Room 3334, 1301 Constitution 

Avenue NW., Washington, DC 20460. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air and 

Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Greg Nizich, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

3078; fax number (919) 541–5509; email 

address: nizich.greg@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this Supplementary 

Information section of this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What acronyms, abbreviations and units 

are used in this preamble? 

II. Purpose 

III. Background 

A. What are the general requirements for 

the minor NSR program in Indian 

country? 

B. What is the Indian country NSR rule? 

C. What is the status of NSR air quality 

programs in Indian country? 

IV. What final action is the EPA taking on 

amendments to the federal Indian 

country minor NSR rule? 

A. What additional emissions units and 

activities are exempted from the federal 

Indian country minor NSR rule? 

B. How are construction-related activities 

defined for permitting purposes? 

C. What is the deadline for advance 

notification to the reviewing authority 

for a true minor sources that is 

relocating? 

V. Summary of Significant Comments and 

Responses 

A. Emissions Unit and Activity 

Exemptions 

B. Definition of Begin Construction 

C. Source Relocation 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

VII. Statutory Authority 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

final rule include owners and operators 

of emission sources in all industry 

groups planning to locate or located in 

Indian country. Categories and entities 

potentially affected by this action are 

expected to include: 

Category NAICSa Examples of regulated entities 

Industry ..................................................... 21111 Oil and Gas Production/Operations. 

211111 Crude Petroleum and Natural Gas Extraction. 

211112 Natural Gas Liquid Extraction. 

212321 Sand and Gravel Mining. 

22111 Electric Power Generation. 

221210 Natural Gas Distribution. 

22132 Sewage Treatment Facilities. 

23899 Sand and Shot Blasting Operations. 

311119 Animal Food Manufacturing. 

3116 Beef Cattle Complex, Slaughter House and Meat Packing Plant. 

321113 Sawmills. 


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31036 Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 

1The federal Indian country minor NSR rule is a 

component of ‘‘Review of New Sources and 

Modifications in Indian Country,’’ Final rule 76 FR 

38747 (July 1, 2011) that applies to new and 

modified minor sources and minor modifications at 

major sources. 

Category NAICSa Examples of regulated entities 

321212 Softwood Veneer and Plywood Manufacturing. 

32191 Millwork (wood products manufacturing). 

323110 Printing Operations (lithographic). 

324121 Asphalt Hot Mix. 

3251 Chemical Preparation. 

32711 Clay and Ceramics operations (kilns). 

32732 Concrete Batching Plant. 

3279 Fiber Glass Operations. 

331511 Casting Foundry (Iron). 

3323 Fabricated Structural Metal. 

332812 Surface Coating Operations. 

3329 Fabricated Metal Products. 

33311 Machinery Manufacturing. 

33711 Wood Kitchen Cabinet manufacturing. 

42451 Grain Elevator. 

42471 Gasoline Bulk Plant. 

4471 Gasoline Station. 

54171 Professional, Scientific, and Technical Services. 

562212 Solid Waste Landfill. 

72112 Casinos). 

811121 Auto Body Refinishing. 

Federal government .................................. 924110 Administration of Air and Water Resources and Solid Waste Management Programs. 

State/local/tribal government .................... 924110 Administration of Air and Water Resources and Solid Waste Management Programs. 

a North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

subject to the federal Indian country 

minor NSR program, and therefore 

potentially affected by this action. To 

determine whether your facility is 

affected by this action, you should 

examine the applicability criteria in 40 

CFR 49.151 through 49.161 (i.e., the 

federal Indian country minor NSR rule). 

If you have any questions regarding the 

applicability of this action to a 

particular entity, contact the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this final 

rule will be posted in the regulations 

and standards section of the EPA’s NSR 

home page located at http://

www.epa.gov/nsr. 

C. What acronyms, abbreviations and 

units are used in this preamble? 

The following acronyms, 

abbreviations and units are used in this 

preamble: 

BACT Best Available Control Technology 

CAA or Act Clean Air Act 

EPA U.S. Environmental Protection Agency 

FARR Federal Air Rule for Indian 

Reservations 

FR Federal Register 

GP General Permit 

HAPs Hazardous Air Pollutants 

HP Horsepower 

LAER Lowest Achievable Emission Rate 

MMBTU/hr Million British thermal units 

per hour 

NAAQS National Ambient Air Quality 

Standard(s) 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

NTTAA National Technology Transfer and 

Advancement Act 

OMB Office of Management and Budget 

ppm Parts per million 

PSD Prevention of Significant Deterioration 

PTE Potential to Emit 

RFA Regulatory Flexibility Act 

SBA Small Business Administration 

SIP State Implementation Plan 

TIP Tribal Implementation Plan 

tpy Tons per year 

UMRA Unfunded Mandates Reform Act 

II. Purpose 

The purpose of this rulemaking is to 

revise certain provisions in the federal 

Indian country minor NSR rule 1 (the 

Rule) to streamline implementation by 

expanding the list of appropriately 

exempted units/activities and clarifying 

language related to source construction. 

Specifically, we are adding five 

categories to the list of units/activities 

that are exempt from the federal Indian 

country minor NSR rule, and revising 

another category, because their 

emissions are deemed insignificant. 

Listing these categories explicitly for 

exemptions means that many applicants 

and reviewing authorities will not need 

to calculate potential emissions for 

those activities. 

In the Rule, the term ‘‘commence 

construction’’ is used in two different 

contexts, i.e., the provisions governing 

construction prohibition, and also the 

provisions specifying that construction 

must occur within 18 months of the 

final permit issuance date. We are 

clarifying this distinction by adding two 

separate definitions for those situations: 

‘‘begin construction’’ and ‘‘commence 

construction.’’ Further, we are replacing 

‘‘commence construction’’ with ‘‘begin 

construction’’ in certain sections of the 

regulatory text for consistency with the 

new definitions. Finally, this rule 

reaffirms the 30-day advance 

notification requirement for relocation 

of true minor sources after 

reconsideration of this provision. 

III. Background 

A. What are the general requirements 

for the minor NSR program in Indian 

country? 

Section 110(a)(2)(C) of the Clean Air 

Act (Act) requires that every state 

implementation plan (SIP) include a 

program to regulate the construction 

and modification of stationary sources, 

including a permit program as required 

in parts C and D of title I of the Act, to 

ensure attainment and maintenance of 

the National Ambient Air Quality 

Standards (NAAQS). The permitting 

program for minor sources is addressed 


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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 31037 

2The TAR is comprised of Subpart A of 40 CFR 

part 49, which is titled ‘‘Indian Country: Air 

Quality Planning and Management’’. 

3The PSD program is a preconstruction 

permitting program that applies to new major 

stationary sources (major sources) and major 

modifications in areas attaining the NAAQS, 

including attainment areas in Indian country. 

4Title V of the Act requires all new and existing 

major sources in the United States to obtain and 

comply with an operating permit that brings 

together all of the source’s applicable requirements 

under the Act. All states, numerous local areas and 

one tribe have approved title V permitting programs 

under the regulations at 40 CFR part 70. The EPA 

implements the part 71 federal program in Indian 

country and other areas that are not covered by an 

approved part 70 program. Currently, one tribe has 

been delegated authority to assist the EPA with 

administration of the federal part 71 program. 

5 40 CFR 49.152 defines ‘‘synthetic minor source’’ 

as a source that otherwise has the potential to emit 

regulated NSR pollutants in amounts that are at or 

above those for major sources in section 49.167, 

section 52.21 or section 71.2 of chapter 40, as 

applicable, but that has taken a restriction so that 

its PTE is less than such amounts for major sources. 

Such restrictions must be enforceable as a practical 

matter. 

6 40 CFR 49.152 defines ‘‘true minor source’’ as 

a source, not including the exempt emissions units 

and activities listed in section 49.153(c), that emits 

or has the potential to emit regulated NSR 

pollutants in amounts that are less than the major 

source thresholds in section 49.167 or section 52.21 

of Chapter 40, as applicable, but equal to or greater 

than the minor NSR thresholds in section 49.153, 

without the need to take an enforceable restriction 

to reduce its PTE to such levels. 

by section 110(a)(2)(C) of the Act, which 

we commonly refer to as the minor NSR 

program. A minor source means a 

source that has a potential to emit (PTE) 

lower than the major NSR applicability 

threshold for a particular pollutant as 

defined in the applicable nonattainment 

major NSR program or any regulated 

NSR pollutant with respect to the 

Prevention of Significant Deterioration 

(PSD) program. 

States must develop minor NSR 

programs designed to attain and 

maintain the NAAQS in a manner most 

suitable for the circumstances of the 

particular state. The federal 

requirements for state minor NSR 

programs are outlined in 40 CFR 51.160 

through 51.164. These federal 

requirements for minor NSR programs 

are considerably less prescriptive than 

those for major sources to facilitate the 

development of programs that best 

reflect a state’s chosen approach to 

achieving the required result. As a 

result, the requirements vary 

substantially across the state minor NSR 

programs. 

Furthermore, sections 301(a) and 

301(d)(4) of the Act, as implemented 

through the Tribal Authority Rule 2

(TAR), provide the EPA with a broad 

degree of discretion in developing a 

program to regulate new and modified 

minor sources in Indian country. 

B. What is the Indian country NSR rule? 

The ‘‘Review of New Sources and 

Modifications in Indian country’’ (i.e., 

Indian country NSR rule) final rule was 

established under the authority of 

sections 301(a) and (d) of the Act and 

the TAR and published in the Federal 

Register on July 1, 2011 (76 FR 38748). 

This rule established a federal 

implementation plan (FIP) for Indian 

country that includes two NSR 

programs for the protection of air 

resources in Indian country. These two 

new NSR programs work together with 

the pre-existing PSD program at 40 CFR 

52.213 and the title V operating permits 

program at 40 CFR part 71 4 to provide 

a comprehensive permitting program for 

Indian country to ensure that air quality 

in Indian country will be protected in 

the manner intended by the Act. 

One regulation created by the Indian 

country NSR rule, which we refer to as 

the ‘‘federal Indian country minor NSR 

rule,’’ is codified at 40 CFR 49.151– 

49.161 and applies to new and modified 

minor sources and to minor 

modifications at existing major sources 

throughout Indian country where there 

is no EPA-approved plan in place. The 

second regulation, which we refer to as 

the ‘‘Indian country nonattainment 

major NSR rule,’’ is codified at 40 CFR 

49.166–49.173 and applies to new and 

modified major sources in areas of 

Indian country that are designated as 

not attaining the NAAQS 

(nonattainment areas). The Indian 

country NSR rules ensure that Indian 

country will be protected in the manner 

intended by the Act by establishing a 

preconstruction permitting program for 

new or modified minor sources, minor 

modifications at major sources, and new 

major sources and major modifications 

in nonattainment areas. 

Under the federal Indian country 

minor NSR rule, new minor sources 

with a PTE equal to or greater than the 

minor NSR thresholds and 

modifications at existing minor sources, 

as well as minor modifications at major 

sources, with allowable emissions 

increases equal to or greater than the 

minor NSR thresholds, must apply for 

and obtain a minor NSR permit prior to 

beginning construction of the new 

source or modification. The effective 

date of the federal Indian country minor 

NSR rule was August 30, 2011. To 

facilitate the effective implementation of 

the federal Indian country minor NSR 

program, some components of the rule 

were phased in. Generally, the 

applicability of the preconstruction 

permitting rules to new synthetic minor 

sources 5 began on the rule’s effective 

date, August 30, 2011; for new or 

modified true minor sources and minor 

modifications at major sources,6 the rule 

applies beginning the earlier of 

September 2, 2014, or 6 months after the 

publication of a final general permit for 

that source category in the Federal 

Register (40 CFR 49.151(c)(1)(iii)(B)). In 

addition, existing true minor sources in 

Indian country were required to register 

with their reviewing authority by March 

1, 2013. 

C. What is the status of NSR air quality 

programs in Indian country? 

No tribe is currently administering an 

EPA-approved PSD program. Therefore, 

the EPA has been implementing a FIP to 

issue PSD permits for major sources in 

attainment areas of Indian country (40 

CFR 52.21). There are also no tribes 

currently administering an EPAapproved nonattainment major NSR 

program, so the EPA is the reviewing 

authority under a FIP (40 CFR 49.166 

through 49.175). Only a few tribes are 

administering EPA-approved minor 

NSR programs. Accordingly, the EPA 

administers minor NSR programs in 

most areas of Indian country under a 

FIP (40 CFR 49.151 through 49.165). 

Sections 301(d) and 110(o) of the Act 

provide eligible tribes the opportunity 

to develop their own tribal programs 

and we encourage eligible tribes to 

develop their own minor and 

nonattainment major NSR programs, as 

well as a PSD major source program, for 

incorporation into tribal 

implementation plans (TIPs). Tribes 

may use the tribal NSR FIP program as 

a model if they choose to develop their 

own EPA-approved TIPs. 

IV. What final action is the EPA taking 

on amendments to the federal Indian 

country minor NSR rule? 

This section discusses the final 

amendments to the federal Indian 

country minor NSR rule and our 

rationale for those amendments. 

A. What additional emissions units and 

activities are exempted from the federal 

Indian country minor NSR rule? 

This final rule adds five categories 

(and also expands one category) to the 

current list of units/activities that are 

exempt from the existing federal Indian 

country minor NSR rule. We are adding 

these units/activities to 40 CFR 

49.153(c) because their potential 

emissions are insignificant and 

generally well below the minor source 

thresholds. These additional 

exemptions will reduce regulatory 

burden by eliminating the need for 

applicants and/or permitting agencies to 


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31038 Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 

7The Federal Register dated January 14, 2014, 

proposed to extend the true minor source 

permitting deadline for oil and natural gas sources 

between 12 and 18 months after the current 

deadline of September 2, 2014 (79 FR 2517). This 

means the true minor source permitting deadline 

for this category of sources could be extended from 

between September 2, 2015 and March 2, 2016. 

calculate their potential emissions to 

verify that minor source permitting 

thresholds are not triggered. Adding 

these exemption categories fulfills the 

commitment we made in the preamble 

to the federal Indian country minor NSR 

rule (July 1, 2011; 76 FR 38759) to 

assess whether to add other activities to 

the list of exempted units/activities. 

The following units/activities are 

being added to the exempt category list 

under 40 CFR 49.153(c): 

• Emergency generators used solely to 

provide electrical power during power 

outages: in attainment areas the total 

site-rated horsepower rating shall be 

below 1,000; in nonattainment areas 

classified Serious or lower, the total 

site-rated horsepower shall be below 

500. In areas classified Severe or 

Extreme, no exemption applies. 

• Stationary internal combustion 

engines with a horsepower rating less 

than 50. 

• Furnaces or boilers used for space 

heating that use only gaseous fuel with 

a total maximum heat input (i.e., from 

all units combined) at or below: in 

attainment areas, 10 million British 

thermal units per hour (MMBtu/hr); in 

nonattainment areas classified as 

Serious or lower, 5 MMBtu/hr; and in 

nonattainment areas classified as Severe 

or Extreme, 2 MMBtu/hr. 

• Single family residences and 

residential buildings with four or fewer 

dwelling units. 

• Air conditioning units used for 

human comfort that do not exhaust air 

pollutants to the atmosphere from any 

manufacturing or other industrial 

processes. 

Also, we are modifying the existing 

exemption for food preparation, as we 

proposed, to include the cooking of food 

by other than wholesale businesses that 

both cook and sell cooked food. Lastly, 

we have decided not to finalize the 

proposed exemption category for 

forestry and silvicultural activities for 

the reasons explained under section V 

below. 

B. How are construction-related 

activities defined for permitting 

purposes? 

This final rule adds definitions for the 

terms ‘‘begin construction’’ and 

‘‘commence construction’’ with only a 

minor change to the definitions we 

proposed. These definitions were 

proposed to better distinguish those 

situations where activity is prohibited 

without a permit from those situations 

where construction needs to occur 

within a specified period of time after 

permit issuance to maintain a valid 

permit. The only change being made to 

the proposed definitions in the final 

rule is that the term ‘‘grading’’ is being 

added to the list of activities that are 

allowed without a permit within the 

definition of ‘‘begin construction.’’ We 

discuss this change further under the 

public comments discussion in section 

V of this preamble. We are also 

finalizing the changes we proposed 

without revision to use ‘‘begin 

construction,’’ rather than ‘‘commence 

construction,’’ in those sections of the 

federal Indian country minor NSR rule 

where the regulatory text addresses 

actions that are prohibited prior to 

permit issuance. This makes our use of 

‘‘commence construction’’ more 

consistent with the EPA’s major NSR 

program, and, thus minimizing any 

potential confusion. 

Also, we are finalizing the revised 

regulatory text in 40 CFR 

49.151(c)(1)(iii)(B) clarifying our intent 

that true minor sources are not required 

to obtain a permit unless construction of 

such source, or modification, occurs on 

or after the date that is the earlier of 6 

months after a final general permit for 

that specific source category is 

published in the Federal Register, or 

September 2, 2014.7

C. What is the deadline for advance 

notification to the reviewing authority 

for a true minor source that is 

relocating? 

We requested public comment on the 

relocation provision under 40 CFR 

49.160(d)(1) that requires the owner/

operator of a true minor source to notify 

the relevant reviewing authority in 

writing 30 days prior to relocating an 

existing source. Specifically, we sought 

comment on possibly reducing the 

advance notification period from 30 

days to as few as 10 days. After 

reviewing the public comments received 

on this topic, we have decided to retain 

the 30-day advance notification period 

since a clear basis for reducing the 

notification period was not provided, 

and because several reasons for 

retaining the current 30-day period were 

given. In the process of reviewing the 

comments addressing the advance 

notification provision, we did become 

aware that relocation of individual 

pieces of equipment, rather than entire 

sources, can occur often in certain 

industries, and therefore we provide 

further discussion addressing those 

situations in section V of this preamble. 

Finally, to better clarify advance 

notification requirements when a source 

relocation results in a change in the 

reviewing authority (e.g., the source 

moves from a reservation in EPA Region 

8 to a reservation in EPA Region 6), we 

are finalizing the proposed changes to 

40 CFR 49.160(d)(1) specifying that a 

source must notify both the existing and 

new reviewing authorities in that case. 

V. Summary of Significant Comments 

and Responses 

The EPA provided a 60-day review 

and comment period on this 

rulemaking, which closed on August 5, 

2013. We received seven comment 

letters (two industry letters, one state/

local agency letter, three tribal letters 

and one private citizen letter) on the 

proposed amendments. The subsections 

that follow provide the significant 

comments and responses. The Response 

to Comments document that contains a 

summary of all comments received on 

the proposed amendments and the 

responses to those comments, is 

available in the docket. 

A. Emissions Unit and Activity 

Exemptions 

1. Overall Comment on Exemptions 

Comment: One state/local commenter 

appreciates that additional exemptions 

may be needed; however, the 

commenter expressed an overall 

concern (that applies broadly to several 

of the exemption categories proposed) 

that the exemptions are inconsistent 

with their region’s air quality rules. The 

commenter believes that exempting 

these sources from permitting will 

provide a competitive advantage to 

sources in Indian country compared to 

sources on non-tribal lands. 

The commenter cites a specific 

concern with the competitive advantage 

issue in light of the EPA’s recent 

proposed ‘‘detachment’’ of Morongo 

Indian country from California’s South 

Coast Air Basin and the lowering of the 

classification of the Morongo 

reservation from Extreme to Serious 

ozone nonattainment (Note: the 

proposed reclassification identified by 

the commenter was finalized on 

September 23, 2013 (78 FR 58189)). The 

commenter states that the Morongo 

lands are located directly upwind from 

the Coachella Valley, a Severe ozone 

nonattainment area, and therefore the 

commenter is concerned that exempting 

certain sources from permitting in 

Indian country will result in negative air 

quality impacts thereby delaying 

attainment of the NAAQS in downwind 

airsheds for both non-tribal lands and 

certain tribal areas. 


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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 31039 

8Press release dated June 12, 2012. See 

www.iarc.fr/en/media-centre/pr/2012/pdfs/pr213_

E.pdf. 

The commenter urges the EPA to 

adopt requirements specific to areas of 

Indian country that are classified as 

either Severe or Extreme ozone 

nonattainment areas, just as the EPA has 

adopted lower minor NSR emission 

thresholds in the existing rule for 

nonattainment areas as opposed to 

attainment areas. 

Response: Prior to the August 30, 

2011, effective date of the federal Indian 

country minor NSR rule, codified in 40 

CFR part 49, promulgated July 1, 2011 

(76 FR 38748), there were no emission 

reduction requirements for new minor 

sources within areas of Indian country 

such as the Morongo Reservation. We 

point this out to highlight that the 

federal Indian country minor NSR rule 

has already reduced any potential 

competitive advantage cited by the 

commenter by requiring preconstruction permits for sources (with 

emissions above permitting thresholds) 

where prior to August 30, 2011, there 

were no such requirements. 

As discussed in the July 1, 2011, final 

rule, while section 182(e)(2) of the Act 

specifies an emissions increase 

threshold of ‘‘0’’ tons/year (tpy) for 

existing major sources in Extreme ozone 

nonattainment areas, we do not believe 

these thresholds are appropriate for 

minor sources and operators within 

Indian country. Nonetheless, we are 

mindful of the need to protect the 

NAAQS and, as discussed later in 

comment responses related to 

exemptions for emergency generators 

and boilers/furnaces, we have made 

some revisions to the exemption criteria 

in the final rule amendments. 

2. Exemption for Emergency Generators 

Comment: One state/local commenter 

expressed concern with the proposed 

exemption threshold for emergency 

generators under 500 horsepower (HP) 

in nonattainment areas and asserted it 

would create an imbalance between 

tribal lands and the surrounding nontribal areas classified as Severe or 

Extreme nonattainment for ozone. Air 

quality regulations that apply to sources 

within the commenter’s jurisdiction 

specify emission limits for nitrogen 

oxide (NOX) and particulate matter (PM) 

for all engines over 50 HP. The 

commenter believes engines on tribal 

lands, which would be exempt from 

permitting under the EPA’s proposed 

criteria, would emit NOX in amounts 

above the 0.8 tpy and 1.8 tpy levels that 

new and older model engines, 

respectively, must meet under the state 

air district’s Best Available Control 

Technology (BACT) requirements. The 

commenter states that these types of 

engines are controllable and contribute 

to ozone and therefore should be subject 

to NSR permitting. 

The commenter also cited a report 

from the World Health Organization 8

that declared diesel PM to be a human 

carcinogen. The commenter states that 

emissions from three standby generators 

(approximately 900 HP in total) can 

create cancer risks exceeding 25 in a 

million, even if operated only 50 hours/ 

year. The commenter elaborates that a 

500 HP emergency generator, operating 

for 500 hours/year, would create even 

higher risk (than the engines totaling 

900 HP in the earlier example) due to its 

longer operating period, and therefore 

PM should be controlled from these 

units and they should be subject to NSR 

since the EPA’s source-specific rules are 

not applicable to these units. 

Response: One of our objectives for 

proposing activities/units for exemption 

was to reduce burden on source owners. 

We believe that emergency generators 

with horsepower ratings below the 

exemption thresholds will 

predominately have emissions below 

the minor source permitting thresholds 

and therefore the proposed exemption 

would potentially save source owners 

the effort of estimating their emissions 

solely to demonstrate that emissions are 

well below the permitting threshold. 

However, we also recognize the 

commenter’s concerns regarding the 

impacts of sources in Indian country to 

portions of the South Coast Air Basin 

that are classified Severe or Extreme 

nonattainment for ozone. We are 

required by title I of the Act to ensure 

attainment and maintenance of the 

NAAQS. Accordingly, after considering 

the comment, we believe that an 

exemption for emergency generators is 

not appropriate in ozone nonattainment 

areas classified Severe or Extreme, and 

we have revised exemption language in 

the final rule accordingly. As finalized, 

the total site-rated 500 HP exemption for 

emergency generators in ozone 

nonattainment areas will only apply in 

ozone nonattainment areas classified 

Serious or lower. The site-rated 1,000 

HP exemption proposed for attainment 

areas remains unchanged in this final 

rule. 

3. Exemption for Boilers and Furnaces 

Comment: One state/local commenter 

believes that boilers and/or furnaces 

below the proposed heat input rates 

should not be exempt from minor NSR 

permitting in ozone nonattainment areas 

classified as Severe or higher because it 

would provide a competitive advantage 

to sources locating in Indian country. 

The commenter explains that the South 

Coast Air Quality Management District’s 

(SCAQMD) air quality rules require 

controls for NOX at levels below the 

proposed exemption rates of 5 million 

Btu/hr for nonattainment areas; 10 

million Btu/hr for attainment areas. The 

commenter refers to SCAQMD’s NOX

emission limits of 9 ppm for natural gas 

boilers having heat input rates between 

2 million Btu/hr and 5 million Btu/hr to 

be met by January 1, 2012. In addition 

to that requirement, natural gas 

industrial furnaces must meet an 

emissions limit of 30 ppm (Rule 1147) 

and NOX controls for fan-type central 

furnaces under 175,000 Btu/hr are 

required as well (Rule 1111). The 

commenter states that the permitting 

exemption under Rule 219(b)(2) applies 

only to boilers and furnaces under 2 

million Btu/hr. 

Response: We believe the commenter 

raises a valid concern regarding the 

potential impacts to portions of the 

South Coast Air Basin classified as 

Severe or Extreme ozone nonattainment 

areas that are adjacent to/downwind 

from Indian country. In certain cases the 

proposed exemption could make it more 

difficult for downwind non-Indian 

country areas to achieve attainment of 

the NAAQS, which would be contrary 

to the requirements of title I of the Act. 

To minimize the likelihood of this 

occurring in the areas with higher ozone 

nonattainment classifications, we are 

finalizing a lower heat input rate (than 

the proposed 5 million Btu/hr which 

would have applied in all 

nonattainment areas) for Severe and 

Extreme ozone nonattainment areas. 

The heat input rate exemption for 

nonattainment areas in the final rule is 

specified as follows: for nonattainment 

areas classified Serious and lower, the 

exemption rate is heat input rates at or 

below 5 million Btu/hr; for ozone 

nonattainment areas classified as Severe 

or Extreme, the exemption level is a 

heat input rate at or below 2 million 

Btu/hr. The heat input rate exemption 

proposed for attainment areas remains 

unchanged. 

4. Exemption for Forestry/Silvicultural 

Activities 

Comment: One tribal commenter 

supports this proposed exemption. The 

commenter states the view that while 

emissions from road construction and 

maintenance are of particular concern 

(Note: while the commenter did not 

specify, we assume the comment is 

referring to activities related to the 

proposed exemption category), ‘‘such 

emissions do not rise to a level requiring 

their removal from the list of proposed 


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9The list we proposed includes the following 

activities: Engineering and design planning, 

geotechnical investigation (surface and subsurface 

explorations), clearing, surveying, ordering of 

equipment and materials, storing of equipment or 

setting up temporary trailers to house construction 

management or staff and contractor personnel. 

10Memorandum from Reich, Edward E., OAQPS, 

to DeSpain, Robert R., EPA Region VII, titled 

‘‘Construction Activities Prior to Issuance of a PSD 

Permit with Respect to ‘‘Begin Actual 

Construction,’’ March 28, 1986. 

11See memorandum titled Summary of 

Discussion from the October 23, 2013, 

Teleconference between API Representatives and 

the Environmental Protection Agency on Source 

Relocation under the Tribal Minor NSR Rule. Nov 

13, 2013. Docket number EPA–HQ–OAR–2003– 

0076–0188. 

12This section allows sources to submit changes 

to previously provided information within 15 days 

after the change occurs. 

exemptions.’’ The commenter further 

states that permitting requirements for 

road construction and maintenance will 

impact timely repair and maintenance 

of roads on the commenter’s lands. The 

commenter also mentions that open 

burning, a potential source of emissions 

on their lands, is regulated by the 

Bureau of Indian Affairs. Therefore the 

commenter believes the proposed 

exemption for forestry and silvicultural 

activities is reasonable and will save 

permitting resources. 

One state/local commenter requests 

that the proposed exemption category be 

modified or deleted. The commenter 

voices concern with significant 

emissions from road construction and 

maintenance, and logging activities. The 

commenter also expresses concern with 

the potential for multiple pieces of 

equipment to collectively exceed the 

minor source thresholds, such as 

engines associated with wood chippers, 

a consideration the EPA noted in 

identifying units/activities to propose 

for exemption (June 4, 2013; 78 FR 

33270). The commenter urges the EPA 

to delete the proposed exemption and 

instead rely on the attainment and 

nonattainment area NOX thresholds (10 

tpy and 5 tpy, respectively) to determine 

when a permit must be obtained. As an 

alternative, the commenter suggests that 

specific types of equipment could be 

exempted instead of the entire category 

if the EPA determines them to have de 

minimis emissions. 

Response: One reason we proposed 

the forestry/silvicultural category for 

exemption was to be consistent with the 

exemptions list in the Federal Air Rule 

for Indian Reservations, which applies 

in Indian country in the Northwest. A 

second reason we proposed this 

category for exemption was that we 

believed all emissions within the 

category would be de minimis in nature. 

Therefore, subjecting them to NSR 

permitting would provide little 

environmental benefit. Both 

commenters express some concern with 

the emissions associated with forestry 

and silvicultural activities, and one 

commenter identifies a situation where 

emissions could exceed de minimis 

levels. 

Upon considering available 

information, we have concluded that a 

category-wide exemption is not the most 

appropriate approach to managing 

emissions for forestry and silvicultural 

activities. This conclusion is based on 

our recognizing the broad range of 

activities and potential emissions 

sources that could be part of this 

category and the potential to 

inadvertently exclude units with 

significant emissions. Due to the broad 

nature of activities under this category, 

we believe that there might be cases 

where permitting of certain emission 

units is needed to protect air quality, 

which would be precluded under a 

category-wide exemption. Based on that 

concern, we believe it is more 

appropriate to use the emission 

thresholds in the existing rule (e.g., 

NOX: 10 tpy and 5 tpy in attainment and 

nonattainment areas, respectively) to 

determine source permitting 

requirements and not have a broad, 

category-wide exemption. Therefore the 

exemption for forestry and silvicultural 

activities is not included in the final 

amendments. 

B. Definition of Begin Construction 

Comment: One industry association 

commenter notes that the proposed 

definition of ‘‘begin construction’’ lists 

certain activities that can be conducted 

before the source has obtained a 

permit.9 The commenter states that the 

list is more restrictive than the Agency’s 

long standing approach to permissible 

activities. The commenter refers to a 

policy memo addressing activities 

allowed without a permit 10 and states 

that the EPA should not deviate from 

previously established policies. 

Response: We agree with the 

commenter. Our intent was to include 

the same list of activities in the 

proposed definition that have been 

historically allowed under the EPA 

policy prior to obtaining a permit. We 

inadvertently omitted the term 

‘‘grading’’ from the list in the proposed 

definition. We have added grading to 

the activities allowed under the 

definition of ‘‘begin construction’’ in the 

final rule to maintain consistency with 

the existing EPA policy. 

C. Source Relocation 

1. 30-Day Advance Notification 

Provision 

Comment: One tribal commenter 

believes that at least 30 days notice is 

warranted for relocation of a nonportable source since a new permit may 

be required, and, in that case, the 

permitting authority will need sufficient 

time to process the application and 

issue a permit. The commenter 

elaborates that for a portable source, a 

10-day notice requirement may be 

sufficient since its permit will likely 

include pre-approved new locations. 

The commenter agrees with the EPA’s 

interpretation that these time periods 

apply where an entire source is 

relocated, noting that relocation of one 

or more pieces of equipment or 

emission units requires consultation 

with the source’s reviewing authority to 

determine if a modification will occur 

under the federal Indian country minor 

NSR rule. 

Another tribal commenter believes 

that, based on their permitting 

experience, in situations where a 

registered source relocates to a new, 

previously unapproved location, the 

permitting authority should have at 

least 30 days to review the relocation 

request. The commenter states that this 

time period is needed for tribal and 

historic preservation reviews to be 

performed. 

One industry association commenter 

reiterates comments made in its petition 

for reconsideration on the July 1, 2011, 

final federal Indian country minor NSR 

rule stating that sources often relocate 

on short notice and occasionally change 

a previously planned relocation with 

little advance warning. The commenter 

states that the 30-day advance notice 

requirement is incompatible with oil 

and gas sector operations. In a 

subsequent teleconference, the 

commenter clarified that their primary 

concern involves relocation of one or 

more pieces of equipment or emissions 

units and not entire sources.11 In 

response to the EPA’s request for 

comment on the notification provision, 

the commenter agrees with the EPA’s 

statement that there is no requirement 

for advance approval, or a permit, for a 

registered source that relocates prior to 

September 2, 2014. The commenter 

suggests that, in those cases, there is no 

need or value to an advance notification 

as long as the source continues to 

comply with its permit. The commenter 

elaborates that there will be sufficient 

opportunity after relocation to notify the 

EPA of any change. The commenter 

offers that one possible approach is the 

one used under 40 CFR 63.9(j), and 

could be adopted in the tribal rule.12

The commenter also references the 

recently promulgated oil and gas sector 


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13See memorandum titled Summary of 

Discussion from the October 23, 2013, 

Teleconference between API Representatives and 

the Environmental Protection Agency on Source 

Relocation under the Tribal Minor NSR Rule. 

November 13, 2013. Docket number EPA–HQ– 

OAR–2003–0076–0188. 

14The EPA published a notice of proposed 

rulemaking in the Federal Register on January 14, 

2014 (79 FR 2546). Within that document we asked 

for comment on extending the true minor source 

permitting deadline from September 2, 2014, to 

between September 2, 2015, and March 2, 2016, for 

oil and natural gas production sources. 

New Source Performance Standards 

(NSPS) which allows for a lag time 

between source startup and the 

determination of whether controls are 

required. 

Response: We specifically requested 

comment on the case where the source 

relocates before September 2, 2014 (i.e., 

where no permit is required). As 

discussed in the preamble for the 

proposed amendments (78 FR 33723), a 

true minor source that relocates in that 

situation does not need prior approval 

from its reviewing authority. The 

notification provision simply specifies 

advance notification in that case. 

However, it was not clear in some tribal 

comments if they were addressing the 

situation where relocation occurs before 

September 2, 2014, or on or after that 

date, since the need for a permit was 

mentioned by commenters. For that 

latter case, as stated in the proposal, a 

previously unpermitted portable source 

(e.g., a hot-mix asphalt plant) that 

relocates on or after September 2, 2014, 

will be required to obtain a permit prior 

to relocation, and we believe that any 

such permit will contain provisions 

addressing any future relocation. In this 

case of relocation on/after September 2, 

2014, the permit application fulfills the 

advance notification requirement. In 

addition, we believe in cases where a 

permit is required the permitting 

process addresses the tribal and historic 

preservation obligations cited by the 

commenters. Because none of the 

commenters presented examples of a 

situation where the 30-day advance 

notification provision justifies a 

reduction, we are retaining the 30-day 

notification period. In the additional 

discussion below, we are clarifying that 

the advance notice relocation provision 

is intended to apply to entire sources 

and not individual pieces of equipment 

or emissions units. 

2. Permitting Issues Related to Source 

Relocation 

Comment: One industry association 

commenter referenced the EPA’s 

discussion in the proposed rule 

preamble addressing permitting 

obligations for true minor sources that 

relocate (78 FR 33273). The commenter 

disagrees with the EPA’s statement that 

a true minor source constructed before 

September 2, 2014, that relocates after 

that date will have to obtain a permit. 

The commenter states that relocation is 

not tantamount to a modification of 

such a source and therefore the need for 

a permit is not triggered. The 

commenter clarified in a subsequent 

teleconference 13 that most of the 

situations addressed in the comments 

involve relocation or replacement of 

single pieces of equipment, not entire 

facilities, in the oil and gas sector. 

Further, the commenter disagrees 

with the EPA’s statement in the 

proposed rule preamble that a true 

minor source constructed after 

September 2, 2014, must obtain a permit 

for the original location and any 

subsequent relocation not specifically 

pre-authorized in the original permit. 

The commenter believes the EPA should 

clarify that permit conditions listing 

specific sites for relocation are not 

required. The commenter states that this 

approach would be particularly 

important for general permits where the 

ability to relocate would have to be 

based on generic criteria. The 

commenter believes no other approach 

would work with a general permit. 

Response: The registration program 

and relocation provisions in 40 CFR 

49.160(d)(1) apply to an entire true 

minor source, and are not applicable to 

an individual piece of equipment that is 

merely a part of the true minor source. 

The registration program is used for 

developing an inventory of emissions 

throughout Indian country to help us 

manage and protect air quality. We 

understand from the commenter that in 

oil and gas sector operations moving a 

single piece of equipment from one 

facility to another, or replacing a piece 

of equipment with a new one, can occur 

on a regular basis. For clarification 

purposes, we believe it would be 

beneficial to both sources and reviewing 

authorities for us to list the different 

situations involving a piece of 

equipment (a unit) that we believe will 

be most common, and specify the 

outcome with respect to minor NSR 

permitting. While we have listed 

expected outcomes below, the source 

owner/operator should still verify with 

its reviewing authority that the 

‘‘matching’’ situation listed below, and 

its stated outcome, applies to its case: 

(1) A unit at a permitted source is 

replaced ‘‘in kind’’ (i.e., the replacement 

unit is of the same size, capacity, 

horsepower, etc. as the existing unit)— 

The owner/operator should notify the 

reviewing authority as specified in its 

permit. If the existing permit conditions 

do not address equipment replacement/ 

relocation, then the source should send 

a notification letter to its reviewing 

authority no later than 60 days 

following replacement of the unit. 

(2) A unit at a registered but 

unpermitted source is replaced in 

kind—No new notification to the 

reviewing authority is required since 

this unit is already part of the inventory. 

(3) A unit is moved within the 

boundary of a permitted or registered 

source—No new notification to the 

reviewing authority required, unless 

otherwise specified in the permit. 

(4) A unit planned for addition (i.e., 

not replacement) at either a permitted or 

registered source, with PTE above the 

minor NSR thresholds—The owner/

operator of the true minor source must 

first obtain a minor source permit before 

installing the unit at the new location 

beginning on September 2, 2014.14

(5) One or more units (with combined 

PTE between the minor and major 

source thresholds) that are relocated to 

an entirely new location (i.e., a 

greenfield facility)—(a) Prior to 

September 2, 2014, the owner/operator 

of the true minor source must register 

with its reviewing authority within 90 

days of beginning operation at the new 

location in accordance with 40 CFR 

49.160(c)(1)(ii); (b) On or after 

September 2, 2014, the owner/operator 

of the true minor source must obtain a 

minor NSR permit from the reviewing 

authority at the new location before 

beginning construction. 

(6) A unit moved from one registered 

source to another registered source 

before the September 2, 2014, 

permitting deadline—The source must 

notify the reviewing authority of 

removal of the unit from the originating 

source (to update its inventory) and also 

notify the reviewing authority of the 

addition of the unit at the destination 

source within 60 days following the 

change in location. 

3. Other Comments on Permitting 

Comment: One industry association 

commenter states that, in the existing 

federal Indian country minor NSR rule, 

true minor sources constructed or 

modified after August 30, 2011, are 

required to obtain a permit. The 

commenter notes that the EPA proposed 

to revise this applicability date until 

September 2, 2014, and the commenter 

supports this change. 

Response: We believe the commenter 

may have misinterpreted the existing 

requirements within 49.151(c)(1)(iii). 


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Our intent under the existing rule has 

always been that true minor sources do 

not need a permit if they begin 

construction before September 2, 2014. 

We proposed changes to the regulatory 

text on June 4, 2013, that are intended 

to clarify the nature of this deadline. We 

are finalizing these proposed changes to 

the regulatory text to make this intent 

clear. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The action 

will not create any new requirements 

under the federal Indian country minor 

NSR program, but rather will simplify 

minor source registrations and permit 

applications for some sources, 

potentially reducing burden. The Office 

of Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations for the federal 

Indian country minor NSR program (40 

CFR 49.151 through 49.161) under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., and has 

assigned OMB control number 2060– 

0003. The OMB control numbers for the 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this final action on small entities, 

small entity is defined as: (1) A small 

business as defined in the U.S. Small 

Business Administration size standards 

at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final action on small 

entities, I certify that this final action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analysis is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect, on all of the small 

entities subject to the rule. 

This final action will not create any 

new requirements under the federal 

Indian country minor NSR program, and 

therefore would not impose any 

additional burden on any sources 

(including small entities). This final 

action will simplify minor source 

registrations and reduce the burden of 

applicability determinations for some 

sources compared to the existing rule, 

potentially reducing burden for all 

entities, including small entities. We 

have therefore concluded that this final 

rule will be neutral or relieve the 

regulatory burden for all affected small 

entities. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1531–1538 for state, 

local and tribal governments, in the 

aggregate, or the private sector in any 1 

year. This action will not create any 

new requirements under the federal 

Indian country minor NSR program, but 

rather will simplify minor source 

registrations and reduce the burden of 

applicability determinations for some 

sources. Therefore, this action is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As 

noted previously, the effect of this final 

rule will be neutral or relieve regulatory 

burden. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

will revise the federal Indian country 

minor NSR program, which applies only 

in Indian country, and will not, 

therefore, affect the relationship 

between the national government and 

the states or the distribution of power 

and responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000), the 

EPA may not issue a regulation that has 

tribal implications, that imposes 

substantial direct compliance costs and 

that is not required by statute, unless 

the federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by tribal 

governments or the EPA consults with 

tribal officials early in the process of 

developing the proposed regulation and 

develops a tribal summary impact 

statement. 

The EPA has concluded that this final 

rule will have tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

tribal governments, nor preempt tribal 

law. This final rule will have tribal 

implications since it revises the federal 

Indian country minor NSR program, 

which applies to both tribally-owned 

and privately-owned sources in Indian 

country. As with the existing rule, the 

revised rule will be implemented by the 

EPA, or a delegate tribal agency 

assisting the EPA with administration of 

the rules, until replaced by an EPAapproved tribal implementation plan. 

The effect of this final rule will be to 

simplify compliance with, and 

administration of, the federal Indian 

country minor NSR program, so any 

impact on tribes would be in the form 

of reduced burden and cost. 

Prior to proposing the rule 

amendments, we presented highlights of 

the expected changes to tribal 

environmental staff during a conference 

call with the National Tribal Air 

Association on February 28, 2013, and 


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asked for comments. Following 

signature of the proposed amendments 

on May 23, 2013, the EPA mailed letters 

to over 560 tribal leaders to offer 

consultation. In addition, to help 

facilitate the tribes’ decision concerning 

our offer of consultation, we held 

conference calls on June 17 and 20, 

2013, with tribal environmental officials 

where we provided an overview of the 

proposed changes and answered any 

questions. We did not receive any 

requests for consultation from tribal 

governments. Lastly, we have taken into 

account the comments submitted from 

three tribes on the proposed 

amendments and fully considered those 

comments in finalizing the amendments 

in today’s rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs the EPA to 

provide Congress, through the OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, the EPA 

has not considered the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This final rule will 

simplify minor source registrations and 

permit applications for some sources 

under the federal Indian country minor 

NSR program, but will not relax control 

requirements or result in greater 

emissions under the program. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A Major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective on the 

date of publication, i.e., on June 30, 

2014. 

L. Judicial Review 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by July 29, 2014. Any 

such judicial review is limited to only 

those objections that are raised with 

reasonable specificity in timely 

comments. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed and shall not 

postpone the effectiveness of such rule 

or action. Under section 307(b)(2) of the 

Act, the requirements of this final action 

may not be challenged later in civil or 

criminal proceedings brought by us to 

enforce these requirements. 

VII. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 110, 112, 

114, 116 and 301 of the CAA as 

amended (42 U.S.C. 7401, 7410, 7412, 

7414, 7416 and 7601). 

List of Subjects in 40 CFR Part 49 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

Indians, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: May 9, 2014. 

Gina McCarthy, 

EPA Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as set 

forth below. 

PART 49—INDIAN COUNTRY: AIR 

QUALITY PLANNING AND 

MANAGEMENT 

■ 1. The authority citation for part 49 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart C—[Amended] 

■ 2. Section 49.151 is amended by 

revising paragraphs (c)(1)(i)(A), 

(c)(1)(ii)(A) and (B), (c)(1)(iii)(B), and 

(d)(1) to read as follows: 

§ 49.151 Program overview. 

* * * * * 

(c) * * * 

(1) * * * 

(i) * * * 

(A) If you wish to begin construction 

of a minor modification at an existing 

major source on or after August 30, 

2011, you must obtain a permit 

pursuant to §§ 49.154 and 49.155 (or a 

general permit pursuant to § 49.156, if 

applicable) prior to beginning 

construction. 

* * * * * 

(ii) * * * 

(A) If you wish to begin construction 

of a new synthetic minor source and/or 


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31044 Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 

a new synthetic minor HAP source or a 

modification at an existing synthetic 

minor source and/or synthetic minor 

HAP source on or after August 30, 2011, 

you must obtain a permit pursuant to 

§ 49.158 prior to beginning construction. 

(B) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after August 30, 

2011. For these modifications, you need 

to obtain a permit pursuant to § 49.158 

prior to beginning construction. 

* * * * * 

(iii) * * * 

(B) If you wish to begin construction 

of a new true minor source or a 

modification at an existing true minor 

source on or after 6 months from the 

date of publication in the Federal 

Register of a final general permit for that 

source category, or September 2, 2014, 

whichever is earlier, you must first 

obtain a permit pursuant to §§ 49.154 

and 49.155 (or a general permit 

pursuant to § 49.156, if applicable). The 

proposed new source or modification 

will also be subject to the registration 

requirements of § 49.160, except for 

sources that are subject to § 49.138. 

* * * * * 

(d) * * * 

(1) If you begin construction of a new 

source or modification that is subject to 

this program after the applicable date 

specified in paragraph (c) of this section 

without applying for and receiving a 

permit pursuant to this program, you 

will be subject to appropriate 

enforcement action. 

* * * * * 

■ 3. Section 49.152(d) is amended by 

adding in alphabetical order definitions 

for ‘‘Begin construction’’ and 

‘‘Commence construction’’ to read as 

follows: 

§ 49.152 Definitions. 

* * * * * 

(d) * * * 

Begin construction means, in general, 

initiation of physical on-site 

construction activities on an emissions 

unit which are of a permanent nature. 

Such activities include, but are not 

limited to, installation of building 

supports and foundations, laying 

underground pipework and 

construction of permanent storage 

structures. With respect to a change in 

method of operations, this term refers to 

those on-site activities other than 

preparatory activities which mark the 

initiation of the change. The following 

preparatory activities are excluded: 

Engineering and design planning, 

geotechnical investigation (surface and 

subsurface explorations), clearing, 

grading, surveying, ordering of 

equipment and materials, storing of 

equipment or setting up temporary 

trailers to house construction 

management or staff and contractor 

personnel. 

Commence construction means, as 

applied to a new minor stationary 

source or minor modification at an 

existing stationary source subject to this 

subpart, that the owner or operator has 

all necessary preconstruction approvals 

or permits and either has: 

(i) Begun on-site activities including, 

but not limited to, installing building 

supports and foundations, laying 

underground piping or erecting/

installing permanent storage structures. 

The following preparatory activities are 

excluded: Engineering and design 

planning, geotechnical investigation 

(surface and subsurface explorations), 

clearing, grading, surveying, ordering of 

equipment and materials, storing of 

equipment or setting up temporary 

trailers to house construction 

management or staff and contractor 

personnel; or 

(ii) Entered into binding agreements 

or contractual obligations, which cannot 

be cancelled or modified without 

substantial loss to the owner or 

operator, to undertake a program of 

actual construction of the source to be 

completed within a reasonable time. 

* * * * * 

■ 4. Section § 49.153 is amended by: 

■ a. Revising paragraphs (a)(3)(ii) and 

(iii) and (c) introductory text and (c)(3); 

and 

■ b. Adding paragraphs (c)(8) through 

(12) to read as follows: 

§ 49.153 Applicability. 

(a) * * * 

(3) * * * 

(ii) If you wish to begin construction 

of a new synthetic minor source and/or 

a new synthetic minor HAP source or a 

modification at an existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after August 30, 

2011, you must obtain a permit 

pursuant to § 49.158 prior to beginning 

construction. 

(iii) If you own or operate a synthetic 

minor source or synthetic minor HAP 

source that was established prior to the 

effective date of this rule (that is, prior 

to August 30, 2011) pursuant to the FIPs 

applicable to the Indian reservations in 

Idaho, Oregon and Washington or under 

an EPA-approved rule or permit 

program limiting potential to emit, you 

do not need to take any action under 

this program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source on or after August 30, 2011. 

For these modifications, you need to 

obtain a permit pursuant to § 49.158 

prior to beginning construction. 

* * * * * 

(c) What emissions units and 

activities are exempt from this program? 

At a source that is otherwise subject to 

this program, this program does not 

apply to the following emissions units 

and activities that are listed in 

paragraphs (c)(1) through (12) of this 

section: 

* * * * * 

(3) Cooking of food, except for 

wholesale businesses that both cook and 

sell cooked food. 

* * * * * 

(8) Single family residences and 

residential buildings with four or fewer 

dwelling units. 

(9) Emergency generators, designed 

solely for the purpose of providing 

electrical power during power outages: 

(i) In nonattainment areas classified as 

serious or lower, the total maximum 

manufacturer’s site-rated horsepower of 

all units shall be below 500; 

(ii) In attainment areas, the total 

maximum manufacturer’s site-rated 

horsepower of all units shall be below 

1,000. 

(10) Stationary internal combustion 

engines with a manufacturer’s site-rated 

horsepower of less than 50. 

(11) Furnaces or boilers used for space 

heating that use only gaseous fuel, with 

a total maximum heat input (i.e., from 

all units combined) of: 

(i) In nonattainment areas classified as 

Serious or lower, 5 million British 

thermal units per hour (MMBtu/hr) or 

less; 

(ii) In nonattainment areas classified 

as Severe or Extreme, 2 million British 

thermal units per hour (MMBtu/hr) or 

less; 

(iii) In attainment areas, 10 MMBtu/hr 

or less. 

(12) Air conditioning units used for 

human comfort that do not exhaust air 

pollutants in the atmosphere from any 

manufacturing or other industrial 

processes. 

* * * * * 

■ 5. Section 49.158 is amended by 

revising paragraph (c)(1) to read as 

follows: 


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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations 31045 

§ 49.158 Synthetic minor source permits. 

* * * * * 

(c) * * * 

(1) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source on or after August 30, 2011. 

For these modifications, you need to 

obtain a permit pursuant to § 49.158 

before you begin construction. 

* * * * * 

■ 6. Section 49.160 is amended by 

revising paragraph (d)(1) to read as 

follows: 

§ 49.160 Registration program for minor 

sources in Indian country. 

* * * * * 

(d) * * * 

(1) Report of relocation. After your 

source has been registered, you must 

report any relocation of your source to 

the reviewing authority in writing no 

later than 30 days prior to the relocation 

of the source. Unless otherwise 

specified in an existing permit, a report 

of relocation shall be provided as 

specified in paragraph (d)(1)(i) or (ii) of 

this section, as applicable. In either 

case, the permit application for the new 

location satisfies the report of relocation 

requirement. 

(i) Where the relocation results in a 

change in the reviewing authority for 

your source, you must submit a report 

of relocation to the current reviewing 

authority and a permit application to 

the new reviewing authority. 

(ii) Where the reviewing authority 

remains the same, a report of relocation 

is fulfilled through the permit 

application for the new location. 

* * * * * 

[FR Doc. 2014–11499 Filed 5–29–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Docket No. EPA–R02–OAR–2014–0182; 

FRL–9911–56–Region 2] 

Approval and Promulgation of 

Implementation Plans; Carbon 

Monoxide Maintenance Plan, 

Conformity Budgets, Emissions 

Inventories; State of New York 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the New York State 

Department of Environmental 

Conservation. This revision establishes 

an updated ten-year carbon monoxide 

(CO) maintenance plan for the New 

York portion of the New York-Northern 

New Jersey-Long Island (NYCMA) CO 

area which includes the following seven 

counties: Bronx, Kings, Nassau, New 

York, Queens, Richmond and 

Westchester. In addition, EPA is 

approving a revision to the CO motor 

vehicle emissions budgets for New York 

and revisions to the 2007 Attainment/

Base Year emissions inventory. 

The New York portion of the NYCMA 

CO area was redesignated to attainment 

of the CO National Ambient Air Quality 

Standard (NAAQS) on April 19, 2002 

and maintenance plans were also 

approved at that time. By this action, 

EPA is approving the second 

maintenance plan for this area because 

it provides for continued attainment for 

an additional ten years of the CO 

NAAQS. The intended effect of this 

rulemaking is to approve a SIP revision 

that will insure continued maintenance 

of the CO NAAQS. 

DATES: Effective Date: This rule is 

effective on June 30, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R02–OAR–2014–0182. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy for public inspection during 

normal business hours at the Air 

Programs Branch, Environmental 

Protection Agency, Region II, 290 

Broadway, New York, New York 10007– 

1866. This Docket Facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

Docket telephone number is 212–637– 

4249. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

final action, please contact Henry 

Feingersh, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, telephone number 

(212) 637–3382, fax number (212) 637– 

3901, email feingersh.henry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What action is EPA taking? 

EPA is approving New York’s SIP 

revision updating their existing ten-year 

carbon monoxide (CO) maintenance 

plan with another ten-year plan for the 

New York portion of the New YorkNorthern New Jersey-Long Island 

(NYCMA) CO area which includes the 

following seven counties: Bronx, Kings, 

Nassau, New York, Queens, Richmond 

and Westchester. The reader is referred 

to the March 25, 2014 (79 FR 16265) 

proposal for details on this rulemaking. 

II. What comments did EPA receive on 

its proposal and what are EPA’s 

responses? 

EPA received one comment that 

supports our proposed approval of the 

updated CO maintenance plan. EPA is 

approving the New York SIP revision 

request. 

III. What is EPA’s final action? 

EPA is approving New York’s SIP 

revision updating their existing ten-year 

CO maintenance plan for the New York 

portion of the New York-Northern New 

Jersey-Long Island (NYCMA) CO area. 

EPA is also approving the 2007 CO base 

year emissions inventory and the CO 

motor vehicle emissions budgets all 

dated May 9, 2013. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 


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