1

Summary of Public Comments and Responses for General Permits and Permits by Rule for 

the Federal Minor New Source Review Program in Indian Country

for Five Source Categories

4/6/15

This document provides a complete summary of all of the comments the U.S. 

Environmental Protection Agency (EPA) received on the following action: “General Permits and 

Permits by Rule for the Federal Minor New Source Review Program in Indian Country,” U.S. 

Environmental Protection Agency, January 14, 2014 (79 FR 2546). It also provides a complete 

summary of EPA’s responses to those comments. Throughout this document, “reviewing 

authority,” “we,” “us” and “our” refer to EPA.

List of Commenters

Commenter(s) Affiliation DCN

Kevin Greenleaf Kootenai tribe of Idaho EPA-HQ-OAR-2011-0151-0021

David Scott Beatty & Wozniak, P.C. EPA-HQ-OAR-2011-0151-0022

John Cline John R. Cline, PLLC EPA-HQ-OAR-2011-0151-0023

Brenda Jarrell Southern Ute Indian tribe EPA-HQ-OAR-2011-0151-0025

Richard Hyde Texas Commission on 

Environmental Quality 

(TCEQ)

EPA-HQ-OAR-2011-0151-0027

Tex (Red Tipped 

Arrow) Hall

Mandan, Hidatsa and 

Arikara Nation (MHA)

EPA-HQ-OAR-2011-0151-0029

Jeff Applekamp Gas Processors 

Association (GPA)

EPA-HQ-OAR-2011-0151-0030

(No name provided) Tribal Environmental 

Policy Center (TEPC)

EPA-HQ-OAR-2011-0151-0031

Fredericks Peebles &

Morgan LLP 

Submitted on behalf of 

Ute Indian tribe of the 

Uintah and Ouray 

Reservation

EPA-HQ-OAR-2011-0151-0032

Stephen B. Etsitty Navajo Nation 

Environmental 

Protection Agency 

(NNEPA)

EPA-HQ-OAR-2011-0151-0033

Mohsen Nazemi South Coast Air Quality 

Maintenance District 

(SCAQMD)

EPA-HQ-OAR-2011-0151-0035

Kathryn Fontaine QEP Field Services 

Company

EPA-HQ-OAR-2011-0151-0037

Cameron Cuch Crescent Point Energy 

U.S. Corp

EPA-HQ-OAR-2011-0151-0038

Mike Smith QEP Resources, Inc. EPA-HQ-OAR-2011-0151-0039, EPAHQ-OAR-2011-0151-0049-3
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Commenter(s) Affiliation DCN

Nez Perce Tribe Air 

Quality Program Staff

Nez Perce Tribe EPA-HQ-OAR-2011-0151-0040, EPAHQ-OAR-2011-0151-0117

Korby Bracken Anadarko Petroleum 

Corporation

EPA-HQ-OAR-2011-0151-0041

Matthew Todd American Petroleum 

Industry (API)

EPA-HQ-OAR-2011-0151-0042

V. Bruce Thompson American Exploration 

and Production Council 

(AXPC)

EPA-HQ-OAR-2011-0151-0043

Duane Zavadil Bill Barrett Corporation 

(BBC)

EPA-HQ-OAR-2011-0151-0044

Jonathan Knight St. Croix Chippewa 

Indians of Wisconsin

EPA-HQ-OAR-2011-0151-0045

Scott Mason Enerplus Resources 

(USA) Corporation

EPA-HQ-OAR-2011-0151-0046

Brandy Toft Leech Lake Band of 

Ojibwe

EPA-HQ-OAR-2011-0151-0047, EPAHQ-OAR-2011-0151-0122

Robert E. King WPX Energy, Inc. EPA-HQ-OAR-2011-0151-0048

Scott Mason Enerplus Resources 

(USA) Corporation

EPA-HQ-OAR-2011-0151-0049-1

Jennifer Biever Hogan Lovells, on behalf 

of Crescent Point Energy 

US Corporation

EPA-HQ-OAR-2011-0151-0049-2

TJ McReynolds Ute Indian tribe EPA-HQ-OAR-2011-0151-0049-4

Chad Schlichtemeier Anadarko Petroleum 

Corporation

EPA-HQ-OAR-2011-0151-0049-5

Gerald Wagner EPA (Blackfeet Tribe) EPA-HQ-OAR-2011-0151-0050

Bill Thompson National Tribal Air 

Association

EPA-HQ-OAR-2011-0151-0052, EPAHQ-OAR-2011-0151-0115
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1.0 Comments Related to the General Permit Issuance Process 

1.1 General comments on EPA’s proposed approach of issuing national general 

permits and use of two types of minor New Source Review (NSR) preconstruction 

permits

Comment 1.1.1: Twelve commenters (0025, 0027, 0030, 0031, 0033, 0041, 0042, 0045, 

0047, 0048, 0049-5, 0052) support the issuance of general permits, while eight commenters 

(0025, 0027, 0029, 0030, 0041, 0042, 0048, 0049-5) support the development of both general 

permits and permits by rule. Although one of these commenters (0025) noted that general 

permits afford a regulatory agency more oversight than a permit by rule program through the 

opportunity to review supporting documentation submitted with an application, they also noted 

that either general permits or permits by rule afford adequate protection of air quality. Two 

commenters (0042, 0048) added that either general permits or permits by rule would provide 

maximum implementation flexibility. Four commenters (0025, 0027, 0031, 0033) supported the 

streamlining of the permitting process, while five commenters (0033, 0045, 0047, 0048, 0052) 

added that the process would provide time and cost savings to sources and reviewing authorities 

alike. Two commenters (0025, 0029) noted that the permits would give operators a level of 

certainty regarding the permitting requirements for planned facilities. Two commenters (0027, 

0049-5) noted that the permit streamlining would be successful in maintaining air quality as 

required by the federal Clean Air Act (CAA). One commenter (0033) noted that the issuance of 

general permits would make the need for site-specific permits unlikely. Three commenters 

(0045, 0047, 0052) noted that the issuance of general permits would close the regulatory gap that 

has existed in Indian country regarding minor source emissions, while another commenter (0031) 

noted that the issuance of these general permits would benefit the health of Indian tribes by 

reducing the pollutants emitted by minor sources on their lands. One commenter (0030) noted 

that, in order to streamline permitting for a modification, operators may wish to request 

enforceable emission limits through the general permit process for existing sources. Two 

commenters (0048, 0049-5) noted that the general permit and permit by rule approaches offer 

sufficient opportunities for public input, particularly for minor sources. One commenter (0033) 

stated that both the general permit and permit by rule approaches would protect air quality, 

endangered species, and historic properties in tribal lands.

Response: EPA acknowledges the support of the commenters with respect to 

development of the general permits and permits by rule in Indian country. EPA agrees that this 

process allows for public comment and should serve to streamline the permitting process for 

minor sources locating in Indian country while protecting air quality, endangered species, and 

historic properties on tribal lands. 

1.2 Comments related to administrative procedures for permit issuance (e.g., 

appeals, reopening, or administrative amendments)

Comment 1.2.1: One commenter (0042) disagreed with EPA’s proposed procedure for 

amending general permits, noting that the provision is overly broad and inconsistent with the 

procedures for amending source-specific permits. This commenter (0042) recommended that 
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EPA treat sources covered by general permits (or permits by rule) in the same manner as 

facilities covered by source-specific permits.

Response: EPA’s procedure for issuing general permits is governed by 40 CFR 49.156 

under the Federal Minor NSR Program in Indian Country (the Federal Indian Country Minor

NSR Rule), which was promulgated on July 1, 2011, 76 Fed. Reg. 38788. EPA interprets the 

Federal Indian Country Minor NSR Rule to require the procedure in 40 CFR 49.156 to be 

followed anytime a general permit is revised. We note that 40 CFR 49.156 requires general 

permits to be issued using the same procedures that apply to site-specific permits in 40 CFR 

49.154(c), 49.154(d), 49.155, 49.157, and 49.159. It is not clear which procedure(s) for sitespecific permits the commenter would prefer apply to general permits that are not already 

required by the Federal Indian Country Minor NSR Rule. In the proposal (79 Federal Register 

(FR) 2546), we intended to clarify that although a general permit may be revised in the future,

we do not intend to use the revision process to subject existing sources already covered by a 

general permit to new control requirements, unless and until they modify. By modify, we mean a 

modification above the minor NSR thresholds in Table 1 to 40 CFR 49.153. In such a case, the 

modifying source could apply for the new version of the general permit or apply for a sitespecific permit. EPA anticipates that in the future there may be different versions of a general 

permit available for a particular source category. The Approval of Request for Coverage will 

identify the particular version applicable to the different source types. Note that on the first page 

of each general permit that EPA has proposed we identify the “version” as “Version 1.0.” In 

some instances, EPA may make administrative amendments to an existing general permit (e.g.,

to correct a typographical error). In these cases, EPA would need to update a source’s Approval 

of Request for Coverage to apply the administratively revised general permit to the source. In the 

case of updating a general permit to reflect advances in control technology, we would not amend 

an existing Approval of Request for Coverage to apply the new version of the general permit, 

unless and until the source proposes to modify and applies for the new version of the general 

permit.

This process would be consistent with how site-specific permits are revised. A sitespecific permit may need revision in two general circumstances: (1) changes that do not involve 

a modification above the minor NSR thresholds in Table 1 to 40 CFR 49.153; and (2) those that 

trigger a modification above the minor NSR thresholds. In the first case, such revisions would 

not be used to subject a source to new control requirements, whereas in the second case review 

under the Federal Indian Country Minor NSR Rule may require new control requirements for the 

source.

1.3 Comments on procedures for obtaining coverage under a general permit (e.g., 

notification requirements)

Comment 1.3.1: Three commenters (0029, 0032, 0035) expressed concern with how the 

Federal Indian Country Minor NSR Rule would address permitting a source that could cause or 

contribute to a National Ambient Air Quality Standards (NAAQS) violation or a Prevention of 

Significant Deterioration (PSD) increment violation, and asked EPA to explain how EPA expects 

this process will work, under what circumstances EPA would require a source to obtain a site-
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specific permit, and whether the general permit itself would include language that recognizes this 

possibility. Two of these commenters (0029, 0032) noted that an EPA regional administrator’s 

ability to terminate a permit for “cause” would create uncertainty for companies planning 

significant investments in Indian country, and puts tribally owned companies at risk. One 

commenter (0035) asked if an adjacent air agency could request that for a specific Indian country 

area, all sources require site-specific permits. Two commenters (0029, 0032) objected to EPA’s 

stated preference for general permits, noting that the Federal Indian Country Minor NSR Rule

does not address the fundamental problem of a lack of staff at local agencies to process these 

new regulatory requirements. These two commenters noted that lack of staffing has created 

backlogs in the preconstruction approval process on Indian lands, and that the delay in 

processing permits would result in loss of revenue to the tribes. These two commenters 

suggested that EPA needs to include a staffing plan that identifies the staff, expertise and 

increases in appropriations that will be needed to efficiently process permits for each reservation, 

or should use permits by rule instead.

Response: EPA believes that the ability to deny coverage under a general permit may 

cause some uncertainty in the permitting process. However, such latitude is needed given the 

potential for sources to locate near nonattainment areas, or areas close to nonattainment, or near 

large, existing sources that have conducted modeling in the past that has shown potential for 

exceedances of the NAAQS. In order to meet the spirit of the requirements of Section 

110(a)(2)(C) of the CAA, EPA must balance the need to protect air quality with our desire to use 

general permits for relatively common, straight-forward permitting cases and sources that are 

similar in terms of emissions and operations. As such, the reviewing authority must be able, on a 

case-by-case basis, to determine that a general permit is not appropriate for a particular source. 

EPA does not anticipate this situation arising frequently. In addition, we recommend that 

individual tribal air agencies work with the specific reviewing authority in their area to address 

concerns related to whether site-specific permits for all sources is more appropriate for a 

particular area given local air quality concerns. 

One of the benefits of the general permit program is that it will help alleviate any 

potential backlog or delay in the issuance of minor source permits to sources that would 

otherwise require site-specific permits. This efficiency will come as a result of EPA having 

already completed the background analysis to ensure that the provisions of the permit are 

consistent with similar permits issued in other states as well as protective of air quality. EPA 

intends to manage the permitting workload by issuing streamlined general permits and permits 

by rule and focusing its limited resources on issuing source-specific permits for more 

complicated sources that require more in-depth review by EPA permitting staff. The more indepth review will generally focus on for sources that are covered by source-specific permits, but 

will also focus on general permits when appropriate.

Relating to terminating a permit for cause, each general permit contains a definition for 

“cause” with respect to the ability to terminate a permitted source’s coverage under a general 

permit:

1. The permittee is not in compliance with the provisions of this general permit;
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2. The reviewing authority determines that the emissions resulting from the construction 

or modification of the permitted source significantly contribute to NAAQS violations, 

which are not adequately addressed by the requirements in this general permit;

3. The reviewing authority has reasonable cause to believe that the permittee obtained 

Approval of the Request for Coverage by fraud or misrepresentation; or

4. The permittee failed to disclose a material fact required by the Request for Coverage 

or the regulations applicable to the permitted source of which the applicant had or 

should have had knowledge at the time the permittee submitted the Request for 

Coverage.

Given this definition, the situations under which coverage under a general permit would 

be terminated are fairly specific.

2.0. Comments on the Structure and General Requirements of the Draft General Permits

2.1 Comments on the structure of the draft general permits

Comment 2.1.1: One commenter (0040) stated that proposing permit terms related to the 

reviewing authority’s ability to reopen, revise or terminate an individual approval of coverage 

under the general permit is appropriate. One commenter (0052) noted that Title 40 CFR 

§49.155(a)(7)(iv) of the Federal Indian Country Minor NSR Rule provides that a “permit may be 

revised, reopened, revoked and reissued or terminated for cause,” and that these provisions are 

also included in Section 6 of the general permits to clarify how the Federal Indian Country Minor 

NSR Rule intended these actions to apply to an individual request for coverage. Although EPA 

stated that it could amend the Federal Indian Country Minor NSR Rule to provide such 

clarification, this commenter (0052) states it is reasonable that EPA include the provisions in 

Section 6, as it places the information in a shorter, readable document as compared to the much 

longer Federal Indian Country Minor NSR Rule. The commenter (0052) also suggests that EPA 

modify the Federal Indian Country Minor NSR Rule to include the same information as provided 

under Section 6 of the general permits. Another commenter (0042) objected to allowing the 

reviewing authority to reopen, revise, or terminate an individual approval of coverage under a 

general permit, noting that, although EPA has suggested including coverage determinations 

under the §49.159 revision procedures by incorporating by reference each reviewing authority’s 

approval of a general permit coverage request in the general permit itself, this provision creates 

substantial uncertainty. The commenter (0042) added that the circumstances that could be used 

to justify a revision to, or termination of, a general permit coverage approval is unclear, and the 

broad enforcement mechanisms available under the CAA render this reopening, revision, and 

termination authority unnecessary. The commenter (0042) recommended that EPA abandon this 

element of the proposed rule. 

Response: Upon review of the comments received, related to incorporating the Approval 

of the Request for Coverage into the general permits, EPA is finalizing each general permit to 

include the draft language in Section 6 of each permit. In response to Comment 1.3.1 above, we

explained that each permit already contains a definition of “cause” setting forth the 

circumstances in which an individual permit may be terminated for cause. While one commenter 
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is correct that we have not identified every situation in which an individual approval may need to 

be revised, we do not believe such an exercise is necessary. As described in our proposed rule 

(79 FR 2546), there are numerous situations in which an individual approval may need to be 

updated to better reflect the covered source. We anticipate that such revisions would be similar to 

the types of revisions that may be necessary for site-specific permits, which must also contain the

same revise, reopen, revoke, reissue or terminate clause in 40 CFR 49.155(a)(7)(d).

Comment 2.1.2: One commenter (0030) stated that a general permit and permit by rule 

should cover an entire process including multiple equipment types (process units, engines, tanks, 

etc) rather than a limited type of equipment, noting that more inclusive permits that cover an 

entire process tend to be easier to administer and comply with rather than multiple permits. One 

commenter (0025) stated that identification of emission units, control devices, and emission 

points does not improve the compliance and enforcement aspect of the NSR program and will 

create an undue burden for industry. One commenter (0027) disagreed with EPA’s interpretation 

of the CAA that the draft general permits are for “similar” types of emissions units or minor 

sources, and that this is a limitation on the ability to issue general permits. This commenter 

(0027) noted that, on March 26, 2012, the Fifth Circuit Court found that EPA’s imposition of a 

“similar source” requirement applied by EPA to TCEQ’s Pollution Control Project Standard 

Permit was “neither necessary to safeguard the national ambient air quality standards nor 

warranted by any applicable provision of the federal Clean Air Act,” and was in excess of EPA’s 

statutory authority. 

Response: EPA agrees that for some source categories it is appropriate and more 

efficient for a general permit and permit by rule to cover an entire process, and not only a limited 

number of pieces or types of equipment. As appropriate, EPA has designed the Federal Indian 

Country Minor NSR Rule general permits as such. For example, in the hot mix asphalt (HMA) 

permit, both combustion units (engines and generators) and process units (dryer/mixer) are 

included under the permit. Identification and labeling of emission units and control devices is 

needed to facilitate identification of equipment covered under the general permit by any potential 

inspectors.

EPA rejects the suggestion that it lacks authority to issue general permits available only 

to similar types of emissions units. To the contrary, EPA’s Federal Indian Country Minor NSR 

Rule regulation authorizing general permits for minor sources in Indian country expressly limits 

their availability to “similar emission units or sources.” 40 CFR 49.156(a), (b)(1). The cited Fifth 

Circuit decision, Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) did not find such 

a limitation unlawful. The court held only that, in light of a state’s “wide discretion” in 

developing a minor source program, EPA had not provided, in “the rulemaking record” a 

sufficient basis to support disapproval of a Texas implementation plan authorizing a standard 

permit for pollution control projects constituting minor sources. Id. at 927. 

Comment 2.1.3: Two commenters (0031, 0052) noted that, although the text of the 

general permits for the five source categories requires that each source post the general permit 

and the most current Approval of the Request for Coverage, as well as requiring that each 

affected emissions unit and any associated air pollution control technology be labeled with the 

identification number listed in the Approval of the Request for Coverage for that permitted 
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source, §49.156(e)(6) provides that only a copy of the letter granting a request for coverage must 

be posted at each source. The commenters (0031, 0052) recommended that EPA require posting 

the additional information, as required under the general permits, and that it would be reasonable 

and be neither costly nor time-consuming for a minor source to meet. One commenter (0040) 

stated the general permit and the most current approval of the request for coverage for the 

permitted source “must be made available immediately upon request,” as opposed to “must be 

posted.”

Response: As noted by the commenters, posting of the Approval of the Request for 

Coverage is required under §49.156(e)(6), but the general permit itself is not required under the 

regulation to be posted and only needs to be available on site as needed. EPA will revise the 

permits to exclude the requirement that the general permit must be posted.

2.2 General comments on EPA’s Control Technology Review

Comment 2.2.1: While two commenters (003 3, 0040) supported EPA’s control 

technology review, three other commenters (0030, 0035, 0038) expressed concern with EPA’s 

decision to apply local control requirements on a nationwide basis, stating that this might lead to 

a competitive advantage or disadvantage for sources locating in Indian lands. One commenter 

(0038) noted that if the requirements in the general permits and permits by rule were stricter than 

in adjacent non-tribal lands, companies would relocate and tribal nations would lose their most 

important revenue stream. One commenter (0035) recommended that EPA issue a general permit 

that is applicable in only one region, and that the draft emission limits or other standards in each 

regional permit be based on the most current version of the rules and regulations of regulatory 

agencies in adjacent areas. One commenter (0030) stated that EPA must consider factors specific 

to each region that affect the technical and economic feasibility of controls, including the 

nonattainment status of the area. The same commenter (0030) noted that the general permit and 

permit by rule programs should enable applicants to document federally enforceable, numeric 

emission limits for both criteria pollutants and hazardous air pollutants (HAP). For example, a 

source that is subject to New Source Performance Standard (NSPS) JJJJ for spark ignition

engines that requires a control device for compliance with this regulation would be able to 

request and document federally enforceable, numeric HAP emission limits through the general 

permit and permit by rule process, given that the NSPS regulation only covers criteria pollutants.

Response: EPA acknowledges that it is challenging to develop a single general permit 

for use across a broad range of Indian country lands. EPA believes, however, that it is important 

to apply the same requirements regardless of where a source is physically locating to the extent 

possible as such an approach creates certainty for the relevant category of sources and avoids the 

significant implementation burden associated with issuing different general permits for each 

region. In developing the draft general permit terms and conditions, EPA has relied on national 

EPA standards as included in the NSPS program, as well as standards currently in place across 

the country as part of various state regulatory and permitting programs. EPA has not necessarily 

adopted the most stringent of these observed standards, but rather, has evaluated all relevant 

rules and regulations to determine the most appropriate and commonly employed standards for 

each source and unit type covered under the Federal Indian Country Minor NSR Rule. The 
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general permit background documents provide the specific approach conducted for each 

regulated process or unit for each covered source category. As part of the approach, EPA 

designed the general permits to, in some circumstances, not be available in certain nonattainment 

areas or to require more stringent control requirements in certain nonattainment areas. In 

addition, individual EPA regions may deny coverage and require a source-specific permit instead 

or choose to develop general permits that are applicable within a particular EPA region. EPA 

recommends that individual tribal air agencies work with their EPA regional office to address 

concerns related to the use of general permits and permits by rule in their tribal area.

The general permit and permit by rule programs do enable applicants to document 

federally enforceable, numeric emission limits for NSR-regulated pollutants. However, EPA is 

not considering inclusion of requirements for controlling HAP as such in any of the general 

permits or permits by rule. EPA is administering the Federal Indian Country Minor NSR

Program in Indian Country under the authority provided in Section 301(d)(4) and consistent with 

the requirements in Section 110(a)(2)(C) of the CAA. Section 110(a)(2)(C) of the CAA requires 

the development of a program to regulate the modification and construction of any stationary 

source as necessary to assure that the NAAQS are achieved. The NAAQS address criteria 

pollutants. In addition to addressing criteria pollutants directly, the Federal Indian Country Minor 

NSR Program addresses precursors to those pollutants and certain other pollutants as listed in 

Table 1 of the preamble to the final minor NSR rule and in 40 CFR 49.153. We note, however, 

that 40 CFR 49.158 provides a specific mechanism for limiting HAP for purposes of establishing 

a synthetic minor source. 

2.3 General comments on the use of surrogate annual allowable emission Limits

Comment 2.3.1: Six commenters (0025, 0031, 0040, 0041, 0042, 0048) supported the 

use of throughput limits as a surrogate for ton-per-year allowable emissions limitations, and four 

commenters (0031, 0042, 0025, 0052) also noted that monitoring throughput limits, hours of 

operation and production are more efficient and cost-effective methods for minor sources to 

demonstrate their compliance. Three commenters (0041, 0042, 0048) noted that sources should 

be allowed flexibility in demonstrating compliance and should be allowed to use alternative 

methods to a throughput limit so that facility capacity is not unnecessarily constrained. One 

commenter (0041) recommended that EPA allow operators to propose alternative and perhaps 

superior approaches for showing compliance. Two commenters (0025, 0040) requested that the 

general permit also include clearly defined, enforceable, annual allowable emission limits to 

ensure adequate protection of the air shed and public health and safety, noting that emission 

factors may change. Regarding EPA’s consideration of the establishment of annual allowable 

emission limitations for each pollutant, two commenters (0031, 0052) supported the use of 

throughput production limits as a surrogate monitoring measure to demonstrate compliance. The 

commenters recommend that EPA require a minor source to use such an approach for a discrete 

time period, such as three years, after which time EPA should assess the results and determine if 

throughput production limits tracked closely with the annual allowable emission limitations.

Response: EPA acknowledges the comments supportive of the use of throughput limits 

and compliance monitoring as a means of compliance demonstration. These types of permit 
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terms and conditions are commonly found in state general permits and permits by rule. An 

advantage of limiting throughput or hours of operation is that this information may be readily 

available and already being tracked for other purposes, such as inventory management or 

maintenance requirements. EPA feels that imposing ton per year allowable emission limits on 

these particular source categories would be burdensome in that such an approach would require 

each source to determine its emissions on a recurring (e.g., monthly) basis to show compliance 

with a rolling 12-month limit. For other source categories, annual allowable emissions limits 

may be more appropriate. If a source feels an alternative limit or compliance monitoring method 

is more compatible with their operational procedures, they may apply for a source-specific 

permit. The general permits are intended for common, straightforward sources that do not require 

case-by-case decisions to determine the means of compliance.

2.4 Inclusion of requirements related to endangered and threatened species and 

historic properties

Comment 2.4.1: One commenter (0047) expressed support for requiring applicants to 

comply with the requirements of the Endangered Species Act (ESA) and National Historic 

Preservation Act (NHPA). 

Response: We note that it is EPA’s obligation, rather than the applicant’s, to comply 

with the ESA and NHPA in connection with issuance of the general permits and permits by rule.

In order to streamline the availability of the general permits and permits by rule, we have chosen 

to meet these requirements by including in the general permits and as part of the permits by rule 

screening processes to address potential impacts on the relevant resources, and by providing 

these screening procedures for permits by rule in a separate document.

1 The screening processes 

require investigation of potential impacts to threatened and endangered species/habitats, as well 

as to historic properties when warranted and the determination of measures to address potential 

impacts.

Comment 2.4.2: One tribal commenter (0021) asks if EPA will be including the 

endangered species and historic preservation requirements in all air permitting actions. 

Response: EPA is required to comply with the ESA and NHPA for each of the current 

Federal Indian Country Minor NSR Rule permitting actions. Therefore, the listed species and 

historic properties screening procedures are included in the two general permits being finalized 

and provided in a separate document referenced in Comment 2.4.1 for the three permits by rule 

being finalized. 

 

1

“Procedures to Address Endangered and Threatened Species and Historic Properties for New or Modified True 

Minor Sources in Indian Country Seeking Air Quality Permits by Rule,” 

http://www.epa.gov/air/tribal/tribalnsr.html.
11

Comment 2.4.3: One commenter (0021) inquired if the threatened and endangered 

species clause (i.e., the ESA) is also included in the Title V permits.

Response: This rulemaking action is not within the scope of the Title V permit program 

(i.e., sources in Indian country that are defined as major sources or otherwise required to obtain 

operating permits under 40 CFR part 71); thus the comment is outside the scope of this action. 

The general permits/permits by rule in this rulemaking action are intended to streamline and 

expedite the preconstruction permits issued under the Federal Indian Country Minor NSR Rule. 

In the present circumstances, the ESA requirements are triggered under Section 7(a)(2) of the 

ESA because the general permits/permits by rule are a federal agency action, in this case 

authorizing construction or modification of a minor source. 

Comment 2.4.4: One commenter (0021) requested clarification on which geographic 

areas the ESA “action areas” would encompass. 

Response: The term “action area” for the purposes of the ESA is defined in 50 CFR Part 

402.02: “Action area means all areas to be affected directly or indirectly by the Federal action 

and not merely the immediate area involved in the action.”

For the purposes of an NSR general permit/permit by rule this would generally include a 

source’s footprint and would generally also mean that water quality (e.g., from stormwater 

runoff), lighting and noise impacts and air emissions beyond a source’s footprint would be a 

consideration in assessing potential impacts. This definition is also included under footnote 1 of 

the listed species eligibility criteria section of the permit applications. We have added additional 

information under Appendix A, Section 2.1 of the ESA screening procedures to further clarify 

the extent of an action area.

Comment 2.4.5: Three commenters (0021, 0031, 0052) expressed concerns about the 

ability of permit applicants to meet the time, expertise, and cost burdens of the compliance 

requirements of the ESA and NHPA. Two commenters (0031, 0052) asked if EPA had assessed 

the time and cost impacts to a permit applicant in complying with the ESA and NHPA, as this is 

information that permit applicants and reviewing authorities should know in advance. One 

commenter (0021) also noted that, in their experience, complying with the requirements in 

Section 2.2, Step 2 of the endangered species requirements would be extremely costly and will 

be cost prohibitive, particularly to small tribes and operations, as threatened and endangered 

species often live in tribal lands. 

Response: EPA has structured the ESA/NHPA processes so as to minimize the burdens, 

as well as the level of expertise needed to complete the processes. EPA understands that 

satisfactorily addressing the screening procedures for threatened and endangered species and 

historic properties will impose some burden on sources seeking permits. However, we have 

attempted to streamline the screening processes in order to minimize the effort needed to 

complete them. For example, both sets of procedures have been clarified to make more explicit 
12

that sources can rely on prior assessments performed by other federal agencies to satisfy the 

procedures.

Comment 2.4.6: One commenter (0030) observed that EPA proposed to use a process to 

demonstrate compliance with the ESA and NHPA that is modeled after the National Pollutant 

Discharge Elimination System (NPDES) general permit for Stormwater Discharge from 

Construction Activities. The commenter does not believe this is appropriate. The commenter 

requested that EPA defer the regulation of ESA and NHPA requirements to Federal Land 

Management Agencies, noting that federal land management agencies, either the Bureau of Land 

Management (BLM) or the Bureau of Indian Affairs (BIA) (Federal Land Managers (FLMs)), 

already have responsibility for administering the ESA and NHPA on Indian lands. The 

commenter recommended that EPA engage with the FLMs to coordinate ESA and NHPA review 

in Indian country, thereby avoiding redundant federal agency review. 

Response: As stated in the proposal preamble (79 FR 2557), and noted by the 

commenter, we modeled our screening procedures relating to listed species and historic 

properties on those used in connection with EPA’s general permit under the Clean Water Act 

NPDES Program for Stormwater Discharges from Construction Activities. We mirrored the 

NPDES approach because we believe it establishes appropriate screening procedures to ensure 

that any impacts on listed species and/or historic properties are identified and addressed and 

because applicants obtaining coverage under both general permits (i.e., minor NSR and NPDES) 

could make use of the similar assessment criteria, thus streamlining the process and minimizing 

burden.

EPA is also aware that in many cases, new sources locating in Indian country may also 

need approvals or other authorizations from other federal agencies such as the BIA or the BLM, 

which are relevant FLMs for such areas, and that such approvals or authorizations may require 

the FLMs to address the ESA and/or the NHPA as part of their own procedures. EPA must 

similarly comply with ESA/NHPA requirements when finalizing the minor NSR general 

permit(s) and permit(s) by rule. Where possible, we believe it is appropriate for facilities seeking 

to be covered under the general permits or permits by rule to use listed species and historic 

property assessments, analyses, and outcomes obtained through the FLMs’ compliance with the 

ESA and NHPA to satisfy the relevant screening procedures of the minor NSR general permits

and permits by rule. 

Within the ESA screening procedures, we intended that Criterion D (Appendix A, 

Section 1.0), could be chosen by applicants to satisfy their screening obligation, where “another 

Federal Agency” would be perhaps be either BLM or BIA. To better clarify that intent, we have 

revised language in Appendix A, for ESA, and Appendix B, for NHPA (since our intent applies 

to screening procedures related to both statutes). Further, we have revised the formatting of 

Section 2.0 in both appendices to clarify that Criterion D can satisfy the listed species screening 

process on its own. Also, we have added a clarification to Section 1.0 of Appendix B that prior 

assessments may satisfy the historic property screening requirements. The formatting structure 

contained in the proposal could have lead applicants to believe that each step had to be followed 

sequentially in every case.
13

For sources obtaining coverage under a permit by rule, as noted above, the revised 

procedures discussed above are now within a document titled: “Procedures to Address 

Endangered and Threatened Species and Historic Properties for New or Modified True Minor 

Sources in Indian Country Seeking Air Quality Permits by Rule.”

Comment 2.4.7: One commenter (0042) stated that, because no regulatory text has been 

provided with respect to EPA’s proposed approach to addressing ESA and NHPA requirements, 

it is impossible to fully evaluate EPA’s proposal. The commenter (0042) requested that complete 

regulatory text be made available for public comment, and a full explanation of the intended 

procedures must be included in the draft general permits. The commenter (0042) also noted that 

EPA’s approach to addressing the ESA and NHPA poses a number of potentially significant 

problems: (1) the proposed rule does not expressly address whether this rulemaking action is 

itself subject to the ESA and NHPA, (2) the process EPA identifies for ensuring compliance with 

the ESA and NHPA involves requiring applicants to interface with the agencies responsible for 

guiding implementation of the ESA and NHPA in the absence of any procedure governing that 

interaction, (3) there are no clear timeframes for these agencies to respond to an applicant’s 

request for coordination, and (4) the legal consequences of certifying compliance with the ESA 

and NHPA are undefined. This commenter (0042) also noted that the process does not

acknowledge the importance of EPA’s role in compliance with the ESA and NHPA, stating that 

the no effect determination, or any obligation to undertake consultation with other federal 

agencies, is EPA’s responsibility and that EPA should not defer to the opinions of other 

agencies. 

Response: EPA recognizes that there are ESA and NHPA requirements associated with 

EPA’s issuance of the general permits and permits by rule and that those requirements apply to 

EPA. To address these requirements in a manner consistent with our intent to appropriately 

streamline the permitting process, EPA has established the listed species and historic properties 

screening procedures set forth in these actions to provide an effective means of identifying and 

addressing any impacts on the protected resources as sources seek coverage. We note that 

sources must demonstrate satisfactory completion of the screening procedures and that this 

demonstration must form part of the legal basis for concluding that the source is eligible for 

coverage under a general permit or permit by rule.

To provide an opportunity for the public to review these screening procedures, each of 

the five draft general permits and associated applications, fact sheets, questionnaires and 

emission calculators were made available in the docket for review and comment. The draft 

applications for each general permit contained appendices (Appendix A for listed species and 

Appendix B for historic properties) with the detailed screening procedures that an applicant will 

follow to assess the potential impacts of their source as it pertains to the relevant protected 

resources. We specifically requested comment on these general permits and implementation tools 

and believe that our process provided an appropriate opportunity for public involvement.
14

Comment 2.4.8: One commenter (0042) recommended that, in its final rule, EPA should 

include a determination expressly finding that the minor sources on tribal lands subject to the 

Federal Indian Country Minor NSR Rule will have no effect on any species listed under the 

ESA, nor any potential effects on resources protected by the NHPA. This commenter (0042) 

stated that the use of the term “significant risk” (“... based on the evaluation of available 

information, that the sources that are the subject of this proposal are unlikely to present a 

significant risk to listed species and critical habitat and to historic properties ...”) confuses the 

issue, as that term is not the relevant standard under the ESA or NHPA for determining whether 

regulatory requirements pursuant to those statutes apply. 

Response: EPA does not believe that a single determination for all new sources in Indian 

country that may be covered under a general permit or permit by rule would be appropriate. At 

this point, there is insufficient information to evaluate all such potential sources or their potential 

impacts on the protected resources. Rather, EPA believes that the screening procedures 

incorporated into the general permits and permits by rule are the appropriate means to address 

potential impacts as sources seek coverage. The commenter did not provide any specific 

information to support why they believe a single determination could be made at this point.

To comply with the ESA and NHPA for the Bundle #1 group of source categories, we 

believe a level of site-specific assessment is needed, primarily for the purpose of investigating 

the potential impact of land disturbance activities but also to address any other potential impacts. 

We believe the source screening procedures contained in the request for coverage documents of 

the final general permits and in the document “Procedures to Address Endangered and 

Threatened Species and Historic Properties for New or Modified True Minor Sources in Indian 

Country Seeking Air Quality Permits by Rule” for the permits by rule are the most efficient way 

to make those determinations. As discussed in the response to comment 2.4.6, in those cases 

where some degree of ESA and/or NHPA evaluation has been previously conducted during 

another Federal agency’s approval process, that information may be sufficient to satisfy the 

screening requirements, or may at least provide useful relevant analyses that may be incorporated 

into a source’s compliance with the screening procedures.

3.0 Comments on the Specific Terms and Conditions of the Draft General Permits and 

Implementation Tools for the Proposed Source Categories 

3.1 General comments on the draft general permits 

Comment 3.1.1: One commenter (0027) declined to provide comments on the specific 

draft terms and conditions of the general permits or the permits by rule. One commenter (0040) 

noted that, from the Federal Indian Country Minor NSR Rule website 

(http://www.epa.gov/air/tribal/tribalnsr.html) the link for “permit instructions” goes to 

http://www.epa.gov/air/tribal/tribalnsrgp.html, Tribal Minor NSR general permits. 

Response: EPA apologizes for the error in the link to the permit instructions and has 

corrected the link. The correct information was provided in the docket.
15

Comment 3.1.2: Two commenters (0029, 0032) expressed concern that, in the draft

general permits, EPA has adopted NSPS with little or no analysis of whether such requirements 

are appropriate for minor sources. Four commenters (0029, 0032, 0048, 0049-4) noted that some 

of the draft permits include provisions significantly more stringent than NSPS for the same 

source category with no analysis of the need for such restrictive requirements. Four commenters 

(0029, 0032, 0048, 0049-4) stated that the draft general permits include burdensome monitoring, 

recordkeeping, and reporting requirements for minor sources that are more restrictive than 

comparable permits on state lands, and two commenters (0029, 0032) stated that some of the 

monitoring, recordkeeping, and reporting requirements go well beyond what states adjacent to 

reservations require. Two commenters (0029, 0032) observed that EPA’s draft permits look more 

like major source permits than minor source or synthetic minor source permits. Four commenters 

(0029, 0032, 0048, 0049-4) stated that the more stringent requirements in the general permits 

provide an unfair economic advantage for the same type of facility that is off the reservation, 

thus denying the tribes of a much needed revenue source. Three commenters (0029, 0032, 0048) 

requested that the requirement to have a responsible official certify the truth, accuracy, and 

completeness of reports be deleted from the general permits and permits by rule, noting that such 

certifications are generally only seen in the major source context, should not apply to minor 

source and synthetic minor source permits, and that such a requirement will be costly for tribal

member owned businesses.

Response: Concerning the analysis of the NSPS requirements, EPA has evaluated the 

provisions of these rules with respect to suitability for minor sources as documented in the 

background documents. As noted in these documents, the Federal Indian Country Minor NSR 

Rule requires the emissions limits in the general permits to ensure compliance with the NSPS 

requirements. See 40 CFR 49.154(c)(4). NSPS requirements are generally applicable based on 

the type of emission unit, and not on the magnitude of emissions from the entire stationary 

source. The majority of the conditions in the draft permits are based on existing federal standards 

or comparable state permitting requirements and are consistent with what is required for these 

source types across the country. In each background document, EPA included a list of the 

requirements for general permits issued by state and local agencies. Upon review of those 

requirements, it appears the general permits are neither the most stringent nor the least stringent 

of other general permits. The commenters only identified the annual reporting and deviation 

reporting requirements as being too stringent or overly burdensome. These requirements appear 

in the general permits because they are required by the Federal Indian Country Minor NSR Rule. 

EPA is not taking comment on these elements, which are required for all Federal Indian Country

Minor NSR Rule permits per 40 CFR 49.155(a)(5). The commenters did not identify any other

specific conditions that are believed to be too stringent or overly burdensome, or identify the 

particular requirements in other areas to which they are comparing EPA’s draft permits. This 

makes it difficult to respond more specifically to the comments.

With respect to the draft permits appearing more like major source permits, EPA 

disagrees as the permitting requirements for a major source are generally much more rigorous 

than currently required in the draft permits. For example, major source permits require sources to 

meet emission limitations based on the application of either the Best Available Control 

Technology (BACT) (in areas that are in attainment with the NAAQS or are unclassifiable) or 

Lowest Achievable Emission Rate (in nonattainment areas), to install equipment for continuous 
16

emissions monitoring, or to meet more frequent performance testing requirements. In developing 

these general permits EPA followed the Federal Indian Country Minor NSR Rule, which requires 

EPA to set emissions limits and to include monitoring and recordkeeping requirements 

“sufficient to assure compliance with the emission limitations” in the permit. We believe we 

have met this requirement without overburdening sources with the same rigorous requirements 

used for major sources. 

We note that the requirement to have a responsible official sign any reports required

under a general permit is common and consistent with state permitting programs. It is unclear 

why this certification would be costly for permittees.

3.2 Comments on the Draft Hot Mix Asphalt and Stone Quarrying, Crushing, and 

Screening General Permits and Implementation Tools

3.2.1 Comments on specific provisions of the draft Hot Mix Asphalt General Permit 

and Implementation Tools

Comment 3.2.1.1: One commenter (0035) noted that, while the HMA permit does not 

appear to address compliance with the state and federal ambient air quality standards, the 

background document for the stone quarrying, crushing, and screening (SQCS) facilities permit 

noted that a setback of 150 meters would ensure no violation of the 24-hour NAAQS for 

particulate matter (PM10; 150 ug/m3). This commenter (0035) recommended adding a similar 

reference to the HMA background document. 

Response: Due to the lack of an EPA analysis demonstrating the air quality benefits of 

requiring setbacks, we lack sufficient information to incorporate them in the final general permits 

for HMA plants and SQCS facilities. Therefore, the final general permits for HMA plants and 

SQCS facilities do not contain setback provisions. Nonetheless, the reviewing authority retains 

the discretion to deny the granting of source coverage under the general permits based on local 

air quality concerns.

Comment 3.2.1.2: One commenter (0035) noted that the setback requirements may be 

difficult for existing sources to meet if the source is modified. The commenter (0035) 

recommended that EPA use the following definition of “sensitive receptor”: “Sensitive Receptor 

means any residence including private homes, condominiums, apartments, and living quarters; 

education resources such as preschools, and kindergarten through grade twelve (k-12) schools; 

daycare centers; and health care facilities such as hospitals or retirement and nursing homes. A 

sensitive receptor includes long term care hospitals, hospices, prisons, and dormitories or similar 

live-in housing”.

Response: Due to the lack of an EPA analysis demonstrating the air quality benefits of 

requiring setbacks, we lack sufficient information to incorporate them in the final general permits 

for HMA plants and SQCS facilities. Therefore, the final general permits for HMA plants and 

SQCS facilities do not contain setback provisions. Nonetheless, the reviewing authority retains 
17

the discretion to deny the granting of source coverage under the general permits based on local 

air quality concerns.

Comment 3.2.1.3: One commenter (0035) clarified that, in Condition #24 of the draft 

general permit, the SCAQMD documents that were referenced to develop some of the standards 

for the asphalt plant equipment include Rule 1147, Rule 1155, and SCAQMD BACT2 Guidelines 

for Minor Sources and that this is consistent with the standards developed in the table referenced 

in Condition #24 for gaseous fuel from mixers/dryers. The commenter (0035) also clarified that 

the standard for particulate matter (PM)/PM10/PM2.5 in SCAQMD Rule 1155 of 0.01 gr/dscf 

applies to Tier 3 baghouses where the filter surface area is greater than 7,500 square feet. 

Response: EPA appreciates this comment and the clarification about SCAQMD rules.

We acknowledge that we did consider SCAQMD rules when we developed some of the 

nonattainment area emission requirements in the HMA general permit. We believe that this is 

appropriate because many of the nation’s tribal lands located in nonattainment areas are in 

California. We, therefore, decided to draw on California requirements in those areas, namely 

those issued by the SCAQMD and the San Joaquin Valley Air Pollution Control District. In light 

of this comment, we have revised the HMA general permit to identify that a limit of 0.01gr/dscf 

applies in nonattainment areas, except that a limit of 0.04 gr/dscf applies for baghouses with a 

filter surface area of less than 7,500 square feet.

Comment 3.2.1.4: One commenter (0035) recommended that asphalt batch plants, 

process heaters, and storage tanks also be subject to BACT, and provided a table showing 

SCAQMD BACT requirements. [See Table in Docket Id. No. EPA-HQ-OAR-2011-0151-0035.] 

Response: EPA appreciates this comment from SCAQMD as we considered SCAQMD 

rules when developing some of the nonattainment area emission requirements. Accordingly, we 

have modified the HMA General Permit to include these additional requirements for combustion 

units and asphalt tanks for nonattainment areas.

Comment 3.2.1.5: One commenter (0035) recommended that EPA add a requirement for 

hot asphalt conveying, mixing, and truck load out to have "Blue Smoke Control" per the 

SCAQMD Visible Emission Rule 401.

Response: The draft HMA General Permit applies an opacity limit of 20 percent on all 

affected emission units (Condition 23 of the draft general permit) and weekly opacity monitoring 

(Condition 27 of the draft general permit), which can result in corrective action. Condition 28 of 

the draft HMA permit requires weekly fugitive emission surveys of the entire facility and can 

also result in corrective action. EPA considers these existing requirements to be adequate for 

controlling visible emissions from HMA facilities. 

 

2 For federal purposes, BACT is a requirement for major sources under the PSD Program. However, the term is 

being used as it is used by the SCAQMD air program in the context of minor source NSR permitting in 

nonattainment areas.
18

Comment 3.2.1.6: Two commenters (0029, 0032) stated that the requirements to submit 

annual compliance and deviation reports are overly cumbersome when compared to state 

requirements immediately outside reservations, and that deviation reports are an exorbitantly 

complicated and unnecessary requirement for minor and synthetic minor sources. 

Response: The provision requiring submittal of annual compliance monitoring and 

deviation reports is included in the Federal Indian Country Minor NSR Rule promulgated July 1, 

2011. (40 CFR 49.155) EPA has, therefore, incorporated the requirements into the general 

permits. EPA is not taking comments on the Federal Indian Country Minor NSR Rule in 

conjunction with this action. EPA notes that these requirements are needed to ensure that the 

source is conducting the required monitoring, and to ensure that any problems identified by the 

facility are addressed in a timely manner.

Comment 3.2.1.7: Two commenters (0048, 0049-1) noted that, while EPA chose to 

review existing state general permits, and use them as the standard for the HMA permit, EPA 

failed to recognize the requirements in permits for states containing tribal lands. This commenter 

(0049-1) stated that EPA has picked the most stringent permit requirements from the state 

permits reviewed. Another commenter (0048) noted that EPA has created overly burdensome 

and duplicative requirements, creating an economic disadvantage for operators on tribal lands. 

This commenter (0049-1) noted that the state permitting agencies have the staff and time to 

negotiate out the permit terms and conditions for a site-specific permit, but EPA does not. 

Response: Please see the response to Comment 2.2.1. We reiterate that it is challenging 

to develop a single general permit for use across all tribal lands to create a perfectly level playing 

field. Furthermore, use of the general permits is optional. Applicants may instead choose to 

submit an application for a source specific permit (which EPA has the resources to process on a 

limited basis), if they do not wish to comply with the conditions of the general permit.

Comment 3.2.1.8: Two commenters (0048, 0049-1) stated that EPA failed to recognize 

that many HMA plants are portable in operation, and that the permit does not allow the 

flexibility for easily relocating HMA plants. One commenter (0049-1) recommended that if an 

HMA plant had an already-issued state construction permit for state land adjacent to the tribal

lands, EPA should honor that permit and allow the industry to operate under that permit. The 

commenter (0048) recommended that, if an HMA operator submits a Request for Coverage 

under the HMA General Permit, EPA should presume that it will operate and that records of 

asphalt production will suffice for demonstrating compliance

Response: The HMA permit includes provisions for relocation of the HMA facility as 

long as the alternate location was identified in the Approval of the Request for Coverage. We 

have revised the request for coverage to clarify that the facility may seek approval of multiple

locations and additional locations may be added in the future. The permit will create emission 
19

limits that allow the facility to operate on the approved locations as a minor source, but only at 

the specific locations identified by the Approval of Request for Coverage. 

EPA notes that it is our Federal Indian Country Minor NSR Rule that applies in Indian 

country where no other plan has been approved by EPA. States may issue permits for sources in 

their areas. However, where such state programs are not approved for Indian country areas, 

EPA’s general permits cannot appropriately recognize the state permitting action as applicable in 

the Indian country area.

Comment 3.2.1.9: A commenter (0048) stated that requiring operators to submit to EPA 

a notice of construction each time the facility begins or resumes operations provides unnecessary 

enforcement risk to operators on tribal lands and should be stricken from the HMA General 

Permit.

Response: Condition 46 of the draft HMA General Permit requires the permittee to 

submit notifications to the reviewing authority when the permittee begins actual construction, 

and when the permittee begins operations or resumes operations. EPA considers these 

notifications necessary to document when the requirements in the permit become applicable. 

However, EPA recognizes this provision, as included in the draft general permit, is confusing as 

it could be read to require notifications on a more frequent basis than intended. EPA is, therefore,

revising this condition to clarify that these notifications are only needed at the time the source 

begins construction of a new or modified source, and when it initially begins operating the new 

or modified source. 

Comment 3.2.1.10: One commenter (0035) noted that it is not clear what sources will be 

allowed to conduct the performance testing and whether they have to be certified and approved 

for the different test methods, and recommended that EPA should specify that certain 

qualifications be met. Two commenters (0048, 0049-1) also recommended that EPA recognize 

an existing proved stack test on the same facility approved by an adjoining state agency, as stack 

tests are expensive, and the HMA industry has thin (profit) margins, creating an economic 

disadvantage for operators on tribal lands. One commenter (0048) stated that most HMA plants 

are portable and will have re-located onto tribal lands from an area under state jurisdiction.

Response: EPA has not provided requirements to specify who must conduct the 

performance test or whether such person(s) must be certified to conduct each test. Currently, 

EPA does not have established standards for certification. Note that we have provided that 

performance tests shall be performed according to a test plan approved by the reviewing 

authority using test methods from 40 CFR part 60, Appendix A, unless alternative methods are 

approved. Review of the test plan and test methods used will ensure that tests are conducted 

properly. 

Regarding the commenters’ suggestions that EPA recognize an existing proved stack test 

on the same HMA facility, EPA has considered this comment and will allow a previous 

performance test that meets the performance test requirements identified in the HMA General 

Permit to be used in lieu of an initial performance test. Such existing performance tests must 

have occurred less than two years prior to the date the performance test is required by EPA’s 
20

HMA General Permit. However, the permittee must still conduct the inspection and tune-up 

requirements in the general permit. 

Comment 3.2.1.11: One commenter (0049-1) stated that the HMA permit application 

reads as if operators are required to know every location that they will be at when they register or 

request coverage under the general permit, but the operators do not know this in advance.

Response: Please see the response to Comment 3.2.1.8. The application materials have 

been modified to explain the procedure for adding additional locations.

Comment 3.2.1.12: One commenter (0052) noted that EPA used tons-per-month average 

throughput production limits as a surrogate for nitrogen oxide (NOx) emissions to help ensure 

continuous compliance for portable plants that may relocate to ozone nonattainment areas during 

the same year. This commenter (0052) stated that the restriction on HMA plants locating in 

severe and extreme ozone nonattainment areas and serious carbon monoxide (CO) nonattainment 

areas would place an automatic restraint on any Indian tribe in these areas that might want to 

establish or attract an HMA plant for economic development purposes. 

Response: The HMA General Permit is not available to sources locating in severe and 

extreme ozone nonattainment areas or serious CO nonattainment areas because in such areas the 

air quality is already considerably degraded. Although EPA considered throughput limits for 

facilities locating in severe and extreme ozone nonattainment areas, we determined that these 

limits would need to be set at very low levels and would not provide sufficient flexibility for 

sources. We note that it is still possible for sources to locate in these areas; however, they would 

be required to obtain a site-specific NSR permit. In light of this comment, we have removed the 

restriction prohibiting sources from locating in a serious CO nonattainment area. EPA 

acknowledges that there are currently no CO nonattainment areas in the United States. However, 

we have added asphalt production limits to the HMA General Permit that would allow a source 

located in a serious CO nonattainment area to be eligible for the general permit. 

Comment 3.2.1.13: One commenter (0048) stated that EPA’s inclusion of nonattainment 

area limitations in the HMA General Permit is regulatory overreach, adding that the Federal 

Implementation Plans (FIPs) or Tribal Implementation Plans (TIPs) are the regulatory path for 

moving nonattainment areas back into attainment, and not permits. This commenter (0048) 

recommended that more stringent requirements for nonattainment areas should only be addressed 

during development of a FIP or TIP.

Response: EPA agrees with commenters that FIPs or TIPs are the primary regulatory 

path for moving nonattainment areas back into attainment. However, we note that the Federal 

Indian Country Minor NSR Rule requires that all permits issued be protective of the NAAQS. 

Specifically, 40 CFR 49.154(c)(1)(i) and (ii) provide that the reviewing authority must conduct a 

case-by-case control technology review that considers local air quality conditions, typical control 

technologies, and emissions reduction measures used by similar sources in surrounding areas to 

determine the appropriate level of control necessary to assure that NAAQS are achieved. In 
21

keeping with these requirements, EPA has conducted a control technology review as part of this 

rulemaking and included limits within the general permits that will provide the appropriate level 

of control for areas designated as attainment or nonattainment, as appropriate. Nonattainment 

areas where the NAAQS are currently violated require a greater level of control, which is 

reflected in the general permits by more stringent control requirements. 

Comment 3.2.1.14: Two commenters (0048, 0049-1) noted that HMA permit 

requirements (emissions rate limitations, emissions concentration limitations, throughput 

limitations, consumption limitations, routine inspections, Method 9 opacity readings, portable 

analyzer testing, and continuous parametric monitoring) create major source-like requirements 

for a true minor source and synthetic minor source, and noted that the HMA permit is a very 

complex permit for a not very complex industry. One commenter (0048) stated that this 

combination is unnecessary and overly burdensome creating an economic disadvantage for 

operators on tribal lands. The same commenter stated that emission limitations should 

exclusively limit operations to major source thresholds and the NSPS Subpart I (Hot Mix 

Asphalt Facilities) particulate matter concentration limitation to be consistent with permit 

conditions issued by state agencies adjoining tribal land. 

Response: EPA believes that the conditions in the general permit for this source 

category are appropriate. The complexity of this source category is demonstrated by there being 

multiple pieces of equipment and/or processes and pollutants and it being typically co-located 

with SQCS facilities. Protecting air quality for sources in such a source category this complex 

does necessitate a more comprehensive and specific set of emissions limitations and standards 

and associated requirements than might otherwise be appropriate. It is important to also keep in 

mind that a comparison of the requirements in EPA’s HMA General Permit and the limits listed 

in Attachment A of EPA’s background document for the HMA General Permit, which contains a 

summary of permitting requirements for state-issued general permits, demonstrates that EPA’s 

general permit for HMA plants is not the most stringent, nor the least stringent, in the country for 

HMA plants. EPA’s limits on throughput, fuel use, fuel sulfur content, NOx emissions, CO 

emissions, and PM emissions for attainment, unclassifiable or attainment/unclassifiable areas are 

all within the range of limits established by state-issued general permits. In addition, the general 

permits reviewed by EPA also includes several permits for states that contain Indian country, 

such as Alaska, Arizona, New Mexico, Washington, and Wisconsin. 

Note that EPA’s emission limits for fuel use, NOx and PM at HMA plants in 

nonattainment areas are more stringent than the limits we set for attainment, unclassifiable or 

attainment/unclassifiable areas. The fuel use limits ensure a particular source is below the 

applicable major source threshold and the NOx and PM limits were based on emission rates 

achieved in practice as BACT within the South Coast Air Quality Management District – an area 

that is nonattainment for ozone and PM2.5.

EPA disagrees with the comment that throughput and emission limitations should 

exclusively limit operations to major source thresholds or to the particulate matter concentration 

limitations issued by state agencies. EPA has included limits within the general permits that will 

provide the appropriate level of control for areas designated as attainment, unclassifiable or 
22

attainment/unclassifiable or nonattainment, as appropriate. Furthermore, when developing the 

throughput limits for each permit, we set emission limitations sufficiently below the major 

source thresholds to provide a margin of safety and ensure that emissions from the facilities do 

not result in an exceedance of the thresholds (e.g., in the event of excess emissions). This is 

particularly important for sources that would otherwise require a major source permit but have 

accepted synthetic minor limits. Further, because the requirements were set to control the 

limiting pollutants (i.e., those nearest the major source level), the throughput limitations set by 

EPA translate to emission rates that could be well below the major source thresholds for certain

non-limiting pollutants. For example, as shown in the table below which is from Attachment C 

of the final version of the “Background Document: True Minor Source Hot Mix Asphalt Plants 

General Permit,” the limited emissions for a drum mix asphalt plant located in a serious ozone 

nonattainment area are as follows: 

Process PM10 PM2.5 NOX CO

Volatile Organic 

Compounds (VOC) SO2

Dryer/Mixer 11.5 1.44 18.9 64.7 15.9 5.48

Load-out/Silo 

Filling 0.55 0.55 - 1.22 8.02 -

Conveying 2.74 2.74 - - - -

Screening 0.37 0.02 - - - -

Storage Piles 1.35 0.20 - - - -

Lime Silo Loading 4.82 4.82 - - - -

Auxiliary Heater 1.03 0.80 6.26 3.61 0.48 0.1

Engine/Generator 3.23 3.23 18.9 4.1 1.51 1.25

Total Emissions 25.54 13.81 44.12 73.65 25.94 6.80

In this case, for a serious ozone nonattainment area, the limiting pollutant is NOx, which 

must be maintained below the 50 ton per year (tpy) threshold. In order to limit NOx, EPA has set 

a 83,000 tons-per-month production limit on the dryer/mixer), as well as a fuel consumption 

limit of 5,200 gallons-per-calendar month for all engines and generators. Although the 

production limits remain the same for a serious ozone nonattainment area, the fuel consumption 

limit for NOx effectively reduces CO emissions from the engines to 4.1 tpy, which brings total 

facility CO emissions (73.65 tpy) to well below the major source threshold. 

Comment 3.2.1.15: Two commenters (0048, 0049-1) noted that EPA did not provide any 

opportunity to use on-specification waste oil or used oil, which is common in the asphalt 

industry, and could create an economic disadvantage for operators on tribal lands. One 
23

commenter (0048) stated that the HMA permit sulfur content limit for liquid fuels (< 0.0015 % 

S) is a very stringent on-road fuel standard being applied to stationary or non-road equipment, 

and that this creates a disadvantage for operations on tribal Land. This commenter (0048) stated 

that sulfur dioxide (SO2) is not the pollutant which has the potential to exceed major source 

thresholds or to cause an exceedance of the SO2 NAAQS.

Response: Regarding the use of on-specification waste oil or used oil, EPA has 

accounted for the use of waste oil and recycled oil in the definition of “distillate fuel” in 

Attachment B to the general permit. “Distillate fuel” is defined as “fuel oils, including recycled 

oils that comply with the specifications for fuel oil numbers 1 and 2, as defined by ASTM 396, 

or equivalent.” Regarding sulfur content limits, we have limited the sulfur content for all fuels 

used to less than 0.0015% sulfur in order to maintain consistency with the current fuel standards 

for sulfur in 40 CFR 80.510, which are already required for engines under NSPS IIII (Stationary 

Compression Ignition Internal Combustion Engines) and National Emission Standards for 

Hazardous Air Pollutants (NESHAP) Subpart ZZZZ (Stationary Reciprocating Internal 

Combustion Engines).

Comment 3.2.1.16: One commenter (0049-1) noted that EPA created duplicative 

requirements for engines that already have extensive federal requirements applicable through 

NSPS, Maximum Achievable Control Technology (MACT), and on-road engine rules. Another 

commenter (0048) stated that the performance test for engines provision provides for expensive 

stack test requirements for engines and establishment of operating parameters during stack 

testing, and it is unclear whether this provision applies to stationary or non-road engines or 

whether this provision applies to liquid or gaseous fuels. This commenter (0048) noted that 

engines used in any application with any type of fuel are already regulated by EPA and stated 

that duplicative emission limitations, work practice requirements, and additional testing 

requirements beyond what is already required in existing regulation is overreaching and provides 

for an economic disadvantage on tribal lands. 

Response: EPA acknowledges that the permit includes requirements for engines that are 

covered by NSPS and NESHAP engine rules. However, we did not simply duplicate the NSPS 

and NESHAP requirements in the permits. Instead, we followed the case-by case control 

technology review of the source category and established engine requirements that are consistent 

with the NSPS and NESHAP requirements. In addition, following this approach is in line with 

the requirement of the Federal Indian Country Minor NSR rule, which requires that each permit 

must include applicable emission limitations that assure each affected emissions unit will comply 

with all requirements of parts 60, 61 and 63 (see 40 CFR 49.155(a)(2) and 40 CFR 49.154(c)(4)). 

As noted in the “Background Document: True Minor Source Hot Mix Asphalt Plants General 

Permit,” in creating HMA permit conditions, EPA also considered and included requirements 

from parts 60, 61, and 63 that apply to HMA facilities, including 40 CFR 60, subpart I, 40 CFR 

60, subpart IIII, and 40 CFR 63, Subpart ZZZZ. The requirements included in the general permit 

are intended to harmonize with the existing NSPS and NESHAP rules to the greatest extent 

possible. Regarding performance testing for engines, the general permit includes requirements 

for certain compression ignition engines that must comply with the CO, NOx and PM emission

limits in the general permit. These particular engines are subject to 40 CFR Part 63, Subpart 
24

ZZZZ and may use the testing performed under subpart ZZZZ to meet the general permit 

performance testing requirements. We have clarified in the final permit that a source may use 

this prior testing for up to two years after the test date. 

Comment 3.2.1.17: One commenter (0048) stated that fuel consumption limits are overly 

burdensome and unnecessary for determining compliance with the HMA General Permit, and 

recommended that they be removed from the general permit. This commenter (0048) 

recommended that actual fuel consumption should be tracked and used to calculate emissions to 

verify that facilities do not exceed major source thresholds. One commenter (0048) stated that 

operators on tribal land lose the flexibility operators will have off tribal lands through the use of 

a fuel consumption limit.

Response: EPA is retaining the fuel consumption limits in the general permit in this final 

rule. EPA chose to include limitations on fuel use in lieu of ton-per-year emission limits because 

tracking fuel use is easier for sources and reduces burden. If EPA were to take an emission limit 

approach, this would require facilities to track fuel use, calculate emissions, and to perform 

additional recordkeeping and reporting to verify that the calculated emissions are correct. By 

adopting fuel use limits, the permittee is only required to track and report types and quantities of 

fuel combusted in each affected emissions unit each month. Furthermore, EPA’s survey of states, 

conducted in the development of the draft permit, indicates that states are using fuel consumption 

limits for these sources. Therefore, we disagree with the commenter that calculating emissions to 

verify that facilities do not exceed major source thresholds is necessary to ensure the same level 

of flexibility offered by states.

Comment 3.2.1.18: Two commenters (0049-1, 0048) noted that EPA did not provide any 

allowance or justification for not allowing wet scrubbers for particulate controls when they may 

be allowed on adjoining state lands, creating an economic disadvantage for operators on tribal

lands. One commenter (0048) noted that the requirement to control particulate emissions from 

the dryer/mixer with a baghouse is arbitrary and capricious, as many HMA facilities on adjacent 

state lands are allowed to use venturi wet scrubbers. This commenter recommended that a 

venturi wet scrubber be allowed if they are able to meet the NSPS particulate concentration limit 

and maintain particulate matter mass emission rates below major source thresholds. 

Response: EPA agrees with the commenter that some sources may currently use venturi 

wet scrubbers. In this final rule, we are adding provisions to the HMA General Permit to provide 

monitoring and recordkeeping requirements to facilitate the use of a wet scrubber in appropriate 

circumstances. These conditions include continuous monitoring of the pressure drop across the 

scrubber, as well as continuous monitoring of the liquid flow rate to the scrubber. The permitted 

source must maintain the operating parameters within plus or minus thirty percent of the average 

value from the most recent performance test. Continuous monitoring of a wet scrubber is 

appropriate for this source category because it is an active control device (where the emission 

rate from the control device is affected by the particular set point of the operating parameters), 

whereas a baghouse is a passive control device (where the emission rate is not affected by 

particular operating parameters). 
25

Comment 3.2.1.19: One commenter (0048) recommended that EPA remove the 

provision requiring that extra bags and spare parts be maintained on site, and allow operators the 

choice to shut down a facility that has a torn bag in the baghouse until a replacement is 

transported to the site.

Response: EPA agrees with the commenter’s concern and has modified Condition 22 in 

the final general permit to suggest the permittee maintain extra bags and spare parts on site to 

ensure timely repair. However, replacements bags can be transported on site when needed. In 

either case, the permittee must shut down the facility until a replacement bag is installed. 

Comment 3.2.1.20: One commenter (0048) stated that EPA has created excessively 

burdensome monitoring, recordkeeping and reporting requirements, creating an economic 

disadvantage for operators on tribal lands. 

Response: EPA notes that the commenter has not provided specifics as to why the 

monitoring, recordkeeping, and reporting requirements are excessively burdensome. We further 

note that in the development of the draft permits, EPA attempted to design minor NSR general 

permits that are enforceable and include adequate monitoring, recordkeeping, and reporting 

requirements that ensure compliance with the emission limitations. These requirements are 

consistent with the strictures of the Federal Indian Country Minor NSR Rule, which requires that 

each permit include monitoring and recordkeeping sufficient to assure compliance with the 

emission limitations and annual allowable emissions limits that apply to the affected emissions 

units (see 40 CFR 49.155(a)(3) and (4)). All permits must be equally enforceable. As discussed 

in the preamble to the proposed rule, we have crafted the draft minor source general permits to 

ensure air quality is protected and to provide a streamlined approach where appropriate. EPA 

also undertook a survey of existing state requirements, and reviewed, weighed, and compared 

these requirements to develop general permits that would provide a level playing field for minor 

sources in Indian country. In some cases, we dismissed requirements that were not necessary to 

demonstrate compliance (e.g., we did not include fuel limits for the dryer/mixer, which would 

have required additional recordkeeping for these units). For nonattainment areas, where 

appropriate, EPA has proposed more stringent requirements. As noted in the preamble to the 

proposed rule, these requirements are necessary to help ensure compliance and mitigate any 

further degradation of air quality in those areas. See response to Comment 3.2.1.13 of this 

document.
26

3.2.2 Comments on specific provisions of the draft SQCS General Permits and 

Implementation Tools

Comment 3.2.2.1: Two commenters (0031, 0052) stated that the monthly total emissions 

limitation based on a 30-day rolling total would be appropriate since an SQCS facility can 

relocate much like an HMA plant, and even perhaps to an area in nonattainment for PM10. One 

commenter (0052) recommended that, as an alternative, EPA could retain the 12-month period 

limits on raw material throughput but establish different throughput production limits for areas in 

attainment and for areas in serious, severe, or extreme nonattainment for PM10.

3

Response: EPA has considered the commenters’ suggestion and revised the throughput

and fuel use limits consistent with the approach used in the HMA General Permit. In addition, 

upon review of this and other comments we discovered an error in the throughput limit initially 

proposed for SQCS facilities. The proposed throughput limit of 10,500,000 was inadvertently 

calculated based on an assumed maximum hourly rate of 1,198 tons per hour instead of 119.8 

tons per hour. The revised permit limits reflects a rate equivalent to about 2,700,000 tons of 

material per year. This rate includes consideration of emission reductions achieved through the 

control requirements of the general permit. The material throughput limits in the final permit are 

as follows: 

 The maximum raw material throughput shall not exceed 226,000 tons-per-month 

based on a 12-month rolling average; and

 For a SQCS operation co-located with a HMA operation, and that requests to take 

additional limits to lower PTE to a level that does not trigger Title V applicability, the 

maximum raw material throughput shall not exceed 146,000 tons-per-month based on 

a 12-month rolling average.

We also revised the fuel use limits consistent with the approach for HMA plants. For 

SQCS plants, the combined fuel consumption in all engines and generators, excluding nonroad 

mobile engines, shall not exceed:

 24,200 gallons per calendar month if the permitted source is located in an ozone 

attainment, unclassifiable or attainment/unclassifiable area or a marginal or moderate 

ozone nonattainment area;

 12,000 gallons per calendar month if the permitted source is located in a serious

ozone nonattainment area;

 5,500 gallons per calendar month if the permitted source is located in a severe ozone 

nonattainment area; and

 1,900 gallons per calendar month if the permitted source is located in an extreme

ozone nonattainment area.

For an SQCS operation that is co-located with an HMA operation that requests to take 

additional limits to lower the combined PTE of the entire facility to a level that does not trigger 

 

3

It is important to note that Subpart 4 of Part D of the Clean Air Act provides for only Moderate and serious 

classifications for PM10 nonattainment areas.
27

Title V applicability, the combined fuel consumption in all engines and generators, excluding 

nonroad mobile engines, shall not exceed 18,275 gallons per calendar month. 

These limitations will provide for SQCS facilities to relocate to different areas 

(attainment, unclassifiable or attainment/unclassifiable and nonattainment) and allow facilities 

flexibility to adjust their throughputs as they relocate. 

Comment 3.2.2.2: One commenter (0035) recommended that EPA consider SCAQMD 

adopted Rule 1157 to address PM10 emission reductions from aggregate and related operations, 

and use Rule 1157 to address standards for visible emissions, fugitive dust controls from storage 

piles, loading, unloading and transfer of materials stored, and track-out from trucks. The 

commenter (0035) provided data in a table reflecting the requirements that can be found

SCAQMD Rule 1157.

Response: EPA has considered the limits in SCAQMD Rule 1157. Rule 1157 establishes 

an opacity limit of 20 percent on any equipment, activity, storage pile, or disturbed surface area. 

While Rule 1157 requires a baghouse for crushing equipment, the rule alternatively allows dust 

suppressant methods to also be used as long as the 20 percent opacity standard is met. EPA’s 

SQCS General Permit establishes an opacity limit of 12 percent for crushers and 7 percent for 

other affected units and requires weekly opacity surveys. The general permit also requires 

fugitive emissions surveys and corrective action when fugitive emissions are observed crossing 

the property line. The existing permit conditions appear to be at least as stringent as, or more 

stringent, than those suggested by the commenter.

Comment 3.2.2.3: One commenter (0048) noted that the general permit assumes that all 

engines used for this operation would be diesel-fired compression ignition engines and asked 

why provisions for spark ignition engines and the use of other fuels were not included.

Response: EPA did not include provisions for spark ignition engines in the draft SQCS 

General Permit because it is unlikely that many minor sources in this source category are using 

these engines. Additionally, inclusion of spark ignition engines would require additional fuel 

limits, monitoring, recordkeeping, and reporting requirements to address the use of gasoline and 

natural gas fuels. EPA has attempted to adopt a streamlined approach to the general permitting 

process that provides simplified provisions and reduces burden on the permittee. In order to 

maintain this streamlined approach, EPA has limited the general permit requirements to 

compression ignition engines as this is the most common engine type found at the SQCS sources 

likely to be covered by the general permit. Moreover, electricity for the motors running the 

crushers, screens, and conveyors at SQCS facilities is provided either by grid electric power or 

by diesel engines. Diesel engines are preferred in this source category because of their improved 

efficiency and reliability in these heavy work-intensive, industrial applications versus spark 

ignition engines. In EPA’s view, adding spark ignition engines to the SQCS General Permit is, 

therefore, not justified.
28

Comment 3.2.2.4: One commenter (0048) recommended that the general permit should 

reference the specifics of compliance such as stack testing, and emission limits to the NSPS and 

MACT requirements in the federal regulations. This commenter (0048) stated that the way the 

general permit is written could lead to conflicts with the current rules and also noted that the 

general permit does not seem to give credit for compliance certified engines.

Response: The emission limitations in EPA’s SQCS General Permit are intended to 

ensure compliance with the applicable NSPS and NESHAPs for this source category, as required 

by the Federal Indian Country Minor NSR Rule. EPA’s pre-construction permitting program 

under the Federal Indian Country Minor NSR Rule is not an operating permit program. As a 

result, the terms and conditions in permits issued pursuant to the Federal Indian Country Minor 

NSR Rule must be enforceable independent of the NSPS and NESHAP requirements. Similarly, 

sources subject to an NSPS and/or NESHAP must comply with all of the requirements of those 

rules whether they are specified in a permit or not. However, to aid permittees in ensuring 

compliance with all of EPA’s regulations we have included a list of regulatory requirements in 

the background document for each permit that identifies conditions from the NSPS and 

NESHAP regulations that are included in the general permit. EPA acknowledges that the tribal

general permits may require revisions in the future to maintain consistency with changes to 

NSPS and NESHAP requirements. As noted in the preamble to the draft rule, we intend to use 

methods consistent with the procedures in 40 CFR 49.159 to reopen or administratively amend 

final permits if we determine it is necessary and appropriate (e.g., to account for changes to 

NSPS or NESHAP or to consider advances in control technology). See response to Comment 

1.2.1 above. EPA would provide the opportunity for notice and comment under §49.157 for these 

changes. Further, the draft general permits include provisions to provide for compliance certified 

engines. For example, see Condition 24.a. of the draft SQCS General Permit. 

3.2.3 Comments on the use of throughput limitations for HMA and SQCS facilities

Comment 3.2.3.1: One commenter (0033) agreed with the throughput production limits 

and fuel-type and usage limits stated in the draft permits for HMA plants and SQCS facilities and 

believes that the emission limitations based on those factors are reasonable, since calculations 

show that emissions from such sources are generally below the major source thresholds and these 

types of facilities do not operate continuously year-round. One commenter (0047) stated that, in 

regards to HMA and SQCS, we agree with EPA’s plans for throughput limits. We support 

monthly limits with HMA plants and feel that fuel use restrictions are a viable option for both 

HMA plants and SQCS facilities. We would accept either scenario of fuel usage limits per 

attainment area or an across the board single fuel usage limit. Two commenters (0031, 0052) 

stated their support for EPA’s proposed combined fuel use restrictions (a range of between 

33,000 gallons and 162,000 gallons annually based on a 12-monthly rolling total for each month) 

for HMA plants and SQCS facilities based on an area’s attainment status, stating that it accounts 

for the realities of the airshed in which a source wishes to locate (i.e., attainment versus 

nonattainment). 

Response: EPA acknowledges the support provided by several commenters for the 

production limits, fuel-type and usage limits.
29

Comment 3.2.3.2: One commenter (0042) asserted that the inclusion of different 

emission limits (or throughput limits) in general permits for attainment versus nonattainment 

areas is unnecessary because each such nonattainment area will have a nonattainment State 

Implementation Plan (SIP) that, by definition, will include measures adequate to achieve 

attainment. Two commenters (0029, 0032) stated that the requirements in the SQCS permit 

(materials throughput limits, fuel usage limits, fuel sulfur limits, wet suppression of fugitive dust, 

engine emission and opacity limitations) can be damaging to tribal member-owned companies 

and may cause them to go out of business. 

Response: We disagree with the comment that the existence of nonattainment SIPs 

renders the inclusion of nonattainment-area specific emission limitations unnecessary. A state’s 

SIP may or may not account for activities in Indian country and the state may lack authority to 

implement or enforce the SIP there.4 As a result, EPA believes that establishing different 

throughput limits for nonattainment areas is necessary to move such areas toward attainment. 

Although a nonattainment SIP or TIP provides a path for moving nonattainment areas back into 

attainment, the Indian Country Minor Source NSR rule requires all permits issued to be 

protective of the NAAQS. Specifically, 40 CFR 49.154(c)(1)(i) and (ii) provide that the 

reviewing authority must conduct a case-by-case control technology review that considers local 

air quality conditions, typical control technologies, and emissions reduction measures used by 

similar sources in surrounding areas to determine the appropriate level of control necessary to 

assure that NAAQS are achieved. In keeping with these requirements, EPA has conducted a 

control technology review as part of this rulemaking and included limits within the general 

permits that will provide the appropriate level of control for areas designated as attainment or 

nonattainment, as appropriate. Nonattainment areas where the NAAQS are currently exceeded 

require a greater level of control, which is reflected in the general permits by more stringent 

control requirements. 

EPA does not believe that the requirements in the SQCS General Permit will be 

damaging to tribal member owned companies. EPA conducted a survey of states during the 

development of the draft permit to identify and review similar material throughput limits, fuel 

usage limits, fuel sulfur limits, fugitive dust suppression methods, and engine emission and 

opacity limitations in state-issued permits. EPA based the requirements in the SQCS on the 

results of that analysis. As noted in the “Background Document: True Minor Source Stone 

Quarrying, Crushing, and Screening Facilities General Permit,” all state permits typically limit

raw materials throughput and fuel usage as a surrogate for limiting emissions. EPA evaluated the 

emission rates at which a new or modified source would become a major source under Title V, 

depending on whether the source was located in an attainment or nonattainment area. We note 

that the raw material and fuel throughput limits established in the draft permit are higher than the 

 

4

In Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3rd 185 (D.C. Cir. 2014), the U.S. 

Court of Appeals for the District of Columbia Circuit held that the state, not tribes or the EPA, 

has initial primary responsibility for implementation plans under Clean Air Act section 110 in 

non-reservation areas of Indian country (i.e., dependent Indian communities and Indian 

allotments) in the absence of a demonstration of tribal jurisdiction by the EPA or a tribe. 

However, SIPs generally do not apply in reservations, including informal reservations or trust 

lands, and these areas are believed to comprise the bulk of Indian country.
30

limits typically established by states. Further, several state permits (e.g., Arizona, Florida, 

Indiana, Washington, and Wisconsin) require control of particulate emissions, and all of the state 

sand and gravel permits include opacity limitations for stone quarrying, rock crushing, and 

screening activities as well as for engines. Review of the state regulations and existing general 

permits resulted in draft permit conditions requiring emissions from all crushers, screens, drop 

points, and other possible release points to be controlled by wet suppression, limiting fugitive 

emissions from crushers to 12% opacity, limiting fugitive emissions from all other processes to 

7% opacity, and requiring fugitive emissions to be controlled by a fugitive dust control plan. 

Most states require an operation and maintenance plan, and all of the reviewed permits include 

some variation of the monitoring and recordkeeping requirements. Therefore, we have 

determined that the emission limitations and controls proposed in the general permit for both 

attainment, unclassifiable or attainment/unclassifiable and nonattainment areas are consistent 

with what is required of similarly located SQCS facilities across the country, based on the 

attainment status where the source is locating, and would not present an unfair or undue burden 

for tribal member-owned sources. For additional information, see the background document for 

SQCS facilities at http://www.epa.gov/air/tribal/tribalnsrbackground.html.

3.2.4 Comments on setback limitations for HMA plants and SQCS facilities 

Comment 3.2.4.1: Three commenters (0031, 0035, 0047) agreed with EPA’s setback 

requirements for mobile HMA and SQCS facilities. Four commenters (0031, 0035, 0047, 0052) 

recommended that EPA include schools, daycares, assisted living/nursing homes, 

hospitals/clinics, community centers, agricultural fields, playgrounds/parks/ball fields, 

recreational areas, waterways, and tribal cultural and subsistence activity areas in the list of areas 

that must have setback requirements. Another commenter (0040) stated support for applying 

setback requirements to schools, nursing homes, community centers, health care facilities, 

daycares, hospitals, parks, and ball fields. One commenter (0035) recommended that EPA 

consider the term “sensitive receptor” to include schools, hospitals, residential areas, and longterm medical care facilities. One commenter (0035) recommended that the setback requirements 

should be extended to gasoline dispensing facilities (GDFs), which emit air toxics such as 

benzene. One commenter (0042) stated that it is unnecessary to restrict HMA facilities from 

locating in severe and extreme ozone nonattainment areas or serious CO nonattainment areas by 

limiting the geographic applicability of general permits, because each such nonattainment area 

will have a nonattainment SIP that, by definition, will include measures adequate to achieve 

attainment.

Two commenters (0030, 0035) recommended that EPA consider allowing a source that 

wishes to locate within the “setback” to make an individualized demonstration that its emissions 

would not cause significant adverse health effects to those receptors, e.g., by modeling maximum 

cancer risk and acute and chronic hazard indices. One commenter (0035) recommended that, if a 

source shows that its emissions create a cancer risk of less than 1 in a million at the nearest 

sensitive receptor to its chosen location, it should be permitted to locate there even if it were in 

the “setback.” Another commenter (0030) stated that setback requirements should be specific to 

the emission source type, based on a scientific evaluation of potential health risks, and paired 

with additional control requirements to mitigate the health risk if the source cannot meet the 

setback requirement. This commenter (0030) recommended that for sources that do not meet the 

setback requirement, control requirements should be included in the general permit or permit by 
31

rule. The commenter (0030) noted that locating emission sources 150 feet from the nearest 

property boundary may not always be feasible for midstream facilities. The commenter (0030) 

expressed concern that automatic setback requirements could cause significant issues for existing 

sites that do not meet the setback requirements and, therefore, could not qualify for a general 

permit or permit by rule when they are modified. Another commenter (0040) suggested allowing 

sources that did not meet the setback limitations for the general permit to apply for a site-specific 

permit.

One commenter (0040) did not support requiring the facilities to use physical markers on 

their property to show compliance with the setback requirements. One commenter (0030) 

recommended that, if setbacks are deemed appropriate, modern mapping tools and satellite 

imagery provides a better permanent record than physical markers on the ground that are subject 

to disturbance and deterioration. Another commenter (0052) stated that the use of physical 

markers on their property to show compliance with setback requirements may or may not be 

acceptable to a given tribe, depending on its specific perspective. One commenter (0030) asked 

that setback requirements be based on the physical location of the emission point and the nearest 

sensitive receptor, not the property boundary.

Two commenters (0029, 0049-4) stated that they believe a setback requirement does 

interfere with tribal authority. One of these commenters (0029) stated that EPA does not have 

jurisdiction over the surface estate of the tribal lands, and that EPA has no business trying to 

usurp tribal sovereignty and self-determination in the name of air quality. One commenter (0049-

4) asked that setback requirements be deleted from any permitting regime. One commenter 

(0029) stated that EPA should be cognizant of what federal law already requires with respect to 

setbacks and the oil and gas sector, noting that tribal and Allottee mineral leases, and the tribal

laws and federal regulations governing the same, already include specific setback requirements. 

This commenter (0029) stated that EPA does not have the authority to modify those contractual 

setback zones. Another commenter (0035) stated that they did not believe a setback requirement 

interferes with tribal authority over zoning, but would enhance its purposes. This commenter 

(0035) asserted that one of the purposes of zoning is to ensure adjacent land uses are compatible. 

The commenter (0035) provided that due to lack of knowledge about air pollution issues, 

sometimes zoning decisions will locate sources that threaten the health or comfort of neighbors 

in the same or adjacent zone, thus creating incompatible uses. The commenter (0035) noted that 

although there are California statutes preventing air districts from interfering with local 

government authority to plan or control land use, those statutes have historically been interpreted 

as not to prohibit imposing additional controls on pollution sources, including distance 

requirements, but generally require sources to meet more stringent requirements if they are 

located within specified distances of a sensitive receptor. One commenter (0031) stated their 

agreement with the general concept of setback requirements and their purpose, but advised EPA 

to consider carefully each Indian tribe’s sovereign right to manage and oversee land use within 

its own boundaries. This commenter (0031) noted that approaches to zoning vary among tribes: 

some tribes may not provide for setback requirements whereas others may have setback 

requirements that are less restrictive than those under the proposed rule. Another commenter 

(0052) stated that setback requirements can be found in the land use and/or zoning codes for a 

number of Indian tribes, although not necessarily at the distance which EPA proposes. The same 

commenter (0052) stated that EPA’s proposed setback requirements could conflict with Indian 
32

tribes that don’t provide for setback requirements in their land use and/or zoning codes, provide 

for setback requirements in their land use and/or zoning codes that are less restrictive than what 

is being proposed by EPA, or don’t have a land use and/or zoning code and may never choose to 

have one. Two commenters (0031, 0052) recommend that EPA retain the proposed setback 

requirements, but also insert a provision allowing a tribe to obtain a partial or full waiver from 

the requirements based on its sovereign right to manage and oversee land use matters within its 

boundaries. Two commenters (0030, 0048) recommended that EPA should defer to the local 

jurisdiction with authority when determining setback requirements. 

Response: Due to the lack of an EPA analysis demonstrating the air quality benefits of 

requiring setbacks, we lack sufficient information to incorporate them in the final general permits 

for HMA plants and SQCS facilities. Therefore, the final general permits for HMA plants and 

SQCS facilities do not contain setback provisions. Nonetheless, the reviewing authority retains 

the discretion to deny the granting of source coverage under the general permits based on local 

air quality concerns.

3.2.5 Comments on a single, combined permit for HMA plants and SQCS facilities

Comment 3.2.5.1: One commenter (0031) stated its preference for a permitting approach 

that requires each HMA plant and SQCS facility to request coverage under its own general 

permit, rather than placing both sources under one general permit. Another commenter (0047) 

stated that co-location of HMAs and SQCSs is quite probable, but believed that they cannot be 

combined and permitted in one permit. One commenter (0040) did not support offering a single 

permit for both facilities because most often it would be two different companies. One 

commenter (0047) recommended that HMAs and SQCSs be permitted separately, but when 

operated at the same location and utilizing materials from one operation to another that they 

combine (and limit) the emissions (as if they were one source) to protect the airshed and don’t 

create a double emissions loophole. Another commenter (0033) recommended that a single 

general permit should be issued covering sources that are co-located in addition to issuing 

separate general permits for each source, noting that the requirement for co-located sources 

would be used to ensure that the two sources’ combined emissions are below the major 

thresholds. Two commenters (0031, 0052) stated that placing both sources under one permit 

would make for a more efficient process, much like what is done under the Title V permit 

program. However, these commenters (0031, 0052) noted that if both sources were under one 

general permit, relocation of either facility to another location could complicate matters with two 

sources being covered under the same general permit while being located in difference places.

Response: EPA has considered the concerns and recommendations of commenters and 

has determined that it is appropriate to maintain separate permits for HMA and SQCS sources

even when they are co-located. As commenters noted, in many situations permits would need to 

be issued to two different companies to cover each source, and a new permit would be required if 

either facility relocated. Issuance of more than one permit to each source (e.g., a single general 

permit for both sources and separate general permits for each source) would increase the burden 

on sources as they would need to comply with provisions in multiple permits. Furthermore, it is 

unlikely that co-located sources with separate permits would result in an emissions loophole. As 

part of the Request for Coverage, sources must list all equipment at the site owned, leased or 

operated by the applicant, as well as identify whether the source is a co-located HMA/SQCS 
33

source. Additionally, the applicant must tally up the potential to emit (PTE) for all new, 

modified, and existing units at the source and compare the PTE to the major source thresholds 

for both attainment and nonattainment areas. The reviewing authority retains the discretion to not 

allow coverage under a general permit if it determines that a particular source may cause adverse 

impacts on the NAAQS that are not sufficiently addressed by the conditions in the permit. 

However, in the final HMA and SQCS permits, we are providing alternative throughput limits 

for instances where HMA and SQCS operations are co-located and the owner/operator wishes to 

limit emissions such that the combined emissions of the two processes are below the Title V

permitting thresholds. This option is not available to co-located sources in serious, severe or 

extreme ozone nonattainment areas5or serious CO nonattainment areas. The alternative 

throughput limits for co-located HMA and SQCS sources are as follows:

Facility Type Combined Engine Fuel Usage Limit 

(gallons/month)

Throughput Limit 

(tons/month)

SQCS

18,275

146,000

HMA, Drum Mix 73,000

HMA, Batch Mix 25,000

Based on the aforementioned throughput limits for co-located HMA and SQCS sources, 

the limited PTE from co-located drum-mix HMA and SQCS facilities are shown in the table 

below.

Potential to Emit from Co-located Drum-Mix HMA and SQCS Facilities 

Located in Attainment, Unclassifiable or Attainment/Unclassifiable Areas

PM10 PM2.5 NOX CO VOC

43 tpy 30 tpy 90 tpy 78 tpy 27 tpy

Comment 3.2.5.2: Two commenters (0033, 0040) supported general permits authorizing 

relocation of a facility to pre-approved site locations, in so long as the source submits a 

notification to the reviewing authority and tribe each time it relocates to a pre-approved site. Two 

commenters (0041, 0048) stated that EPA's proposed rule would continue an unworkable 

approach toward permitting facilities that can operate at multiple locations. One commenter 

(0048) stated that EPA failed to recognize that many plants are portable and frequently move to 

new locations, and that the proposed regulations do not allow the flexibility for easily relocating 

the plants. Three commenters (0041, 0042, 0048) explained that the proposed rule would require 

 

5The co-location option for these source categories is not available in serious, severe and extreme ozone 

nonattainment areas. For Severe and extreme areas, the co-location option is not available because the HMA general 

permit is not available in those areas because the major stationary source thresholds are very low in such areas and 

we do not envision that any minor source HMA plants would be able to remain below the thresholds through the use 

of a general permit. For serious areas, EPA evaluated the viability of setting co-location limits at levels low enough 

to ensure that emissions remain below the applicable 50 tpy major source threshold for serious areas and 

determined that we would have to set the throughput limits at levels so low that we do not envision minor, colocated sources being able to meet them. In such areas, we believe that co-location is more appropriately addressed

thorough a site-specific permit.
34

a source to “identify multiple sites of operation in its request for coverage” and if the reviewing 

authority “does not approve a specific location, the source will need to reapply for coverage 

under the general permit or for a site specific permit before relocating to this site.” These three 

commenters (0041, 0042, 0048) recommended that EPA should instead adopt an approach based 

on generalized relocation criteria that would not require identification of specific locations. 

Response: EPA agrees with commenters that the general permits should authorize 

relocation of a facility to approved site locations listed in the Approval of Request for Coverage. 

EPA has considered the option of taking a general approach that would not require identification 

of specific locations. However, we do not think such an approach is appropriate for the HMA 

and SQCS general permits. Given the wide applicability of these general permits in Indian 

country, it is difficult to develop criteria that would be appropriate for all possible locations. In 

addition, EPA must meet its obligations under the ESA and NHPA for each of these general 

permits and to do so, EPA must be able to identify with some specificity each of the areas where 

the source might locate.

3.2.6 Comments on control measures for spark ignition engines

Comment 3.2.6.1: One commenter (0040) stated that it is not necessary to include sparkignition engine controls.

Response: EPA agrees with the commenter, see response to Comment 3.2.2.3 of this 

document. 

3.3 Comments on the draft Auto Body Repair and Miscellaneous Surface Coating 

Operations General Permit and Implementation Tools

Comment 3.3.1: One commenter (0035) recommended that, for ozone nonattainment

regions, EPA should consider requiring the most stringent emissions limitation or installation of 

BACT6based on the requirements of the neighboring air district regardless of a facility’s PTE or 

throughput. The commenter (0035) asserted that emissions generated by equipment operating in 

Indian country will have an effect on neighboring air districts’ air quality and their compliance 

with federal standards. The commenter (0035) recommended that EPA include the following 

SCAQMD BACT requirements as part of the draft autobody repair and miscellaneous surface 

coating operations general permit for regions in which serious, severe, and extreme ozone 

nonattainment areas are located:

 Facilities utilizing fuel combustion heating units (e.g. ovens, make-up air heaters, etc.) 

should use only natural gas as their primary fuel, and the NOx emissions from these 

devices should not exceed 30 parts per million by volume – dry (ppmvd) corrected to 3% 

oxygen.

 Facilities with the potential to emit VOC emissions greater than or equal to 22 lbs/day 

from their spray booth should install add-on control devices (VOC control system with 

 

6 The SCAQMD requires minor sources locating in such areas to install BACT. This level of control is distinct from 

BACT as determined under EPA’s major source PSD program.
35

greater than or equal to 90% collection efficiency and greater than or equal to 95% 

destruction efficiency) or use materials with less than 5% VOC by weight or low VOC 

materials that results in an equivalent emission reduction. 

 Facilities engaged in spray application of coatings to plastic and/or metal substrate on a 

part or a product should comply with emission standards similar to the SCAQMD’s Rules 

1145 and 1107, respectively. The emission limits specified in SCAQMD’s Rules 1145 

and 1107 are more stringent than the emission limits specified in the draft general permit. 

[The commenter (0035) provided hyperlinks to the text of the SCAQMD Rules 1145 and 

1107 in their written comments]

 Facilities engaged in coating operations conducted on motor vehicle assembly lines 

should comply with emission standards similar to the SCAQMD’s Rule 1115. [The 

commenter (0035) provided hyperlinks to the text of the SCAQMD Rule 1115 in their 

written comments]

 All solvent cleaning operations and surface preparation at a facility, excluding batch 

loaded cold cleaners, should comply with emission standards similar to the SCAQMD’s 

Rule 1171. [The commenter (0035) provided hyperlinks to the text of the SCAQMD Rule 

1171 in their written comments]

 Facilities that use adhesives should comply with standards similar to the SCAQMD’s 

Rule 1168. [The commenter (0035) provided hyperlinks to the text of the SCAQMD Rule 

1168 in their written comments]

Response: EPA has considered the commenter’s recommendations and has incorporated 

some of the requirements proposed by the commenter into the final Auto Body Repair and 

Miscellaneous Surface Coating Operations Permit by Rule requirements for serious, severe, and 

extreme ozone nonattainment areas. EPA has concluded that in nonattainment areas where the 

NAAQS are currently exceeded, a greater level of control is required to protect air quality. The 

more stringent provisions recommended by the commenter will only apply in these 

nonattainment areas. We have determined that the adopted SCAQMD provisions are appropriate 

to include because the majority of serious, severe and extreme nonattainment areas in Indian 

country are located in California. Facilities in these nonattainment areas are, therefore, located 

near other facilities outside of Indian country that already comply with these more stringent 

requirements based on their location in a nonattainment area. Inclusion of the adopted 

requirements thus serves the dual purpose of ensuring that air quality is adequately protected and 

of creating a more level regulatory playing field for facilities within and outside of Indian 

country.

We did not include requirements for activities that we do not expect to occur at sources 

eligible for this final Auto Body Repair and Miscellaneous Surface Coating Operations Permit

by Rule, such as those in Rule 1115 and many of the limits in Rules 1145 and 1107. In addition, 

we did not include the specific work practice standards in Rule 1171 referenced by the 

commenter. We believe the permit already includes similar work practice standards (see Section 

2.0 of the final Permit by Rule). Note that surface coating operations not covered by this Permit 

by Rule will be required to obtain a site-specific permit under the tribal minor NSR rule. The list 

of VOC content limits in the final Permit by Rule for serious, severe, and extreme ozone 

nonattainment areas is provided in the response to Comment 3.3.3. 
36

Comment 3.3.2: One commenter (0048) stated that the materials use provisions in the 

proposed Auto Body Repair and Miscellaneous Surface Coating Operations general permit are 

unclear. This commenter (0048) asked if the material use limits meant that the permittee is 

limited to that quantity regardless of the VOC content or if it is based on allowing 5,000 gallons 

of 100% VOC materials. Another commenter (0035) recommended that the coating VOC 

content limits specified in the draft general permit be measured in grams/liter or lbs/gallon, 

excluding water and any other compounds exempted by the permitting authority or the 

local/neighboring air district. The commenter (0035) noted that the limit for spraying operations 

located in serious, severe or extreme ozone nonattainment areas as specified in the draft general 

permit are less stringent than the limits in SCAQMD rules. The commenter (0035) recommended 

that the total VOC emissions from the spray coating operation should be calculated as applied 

excluding water and exempt compounds.

Response: The material use provisions in Condition 15 of the draft general permit are 

based on a worst-case VOC content limit of 8.34 lb/gallon. Therefore, a facility would be limited 

to 5,000 gallons of materials (coatings, thinners, and clean-up solvents) with a VOC content of 

8.34 lbs/gallon or less. For clarification, EPA is revising the final Permit by Rule in 

§49.162(d)(2)(vii) to include a maximum content limit of 8.34 lb/gal for all VOC-containing 

materials (coatings, thinners, and clean-up solvents) for marginal and moderate ozone 

nonattainment areas, as well as attainment, unclassifiable and attainment/unclassifiable areas. 

EPA agrees with the recommendation that the coating content limits should also be provided in 

grams per liter and has added VOC content limits measured in grams per liter. 

We also agree with the recommendation that the coating content limits should be on an 

“as applied” basis, excluding water. We added a definition for VOC to the Permit by Rule to 

clarify the compounds not included when considering VOC. The definition references the list of 

exempt compounds in 40 CFR 51.100(s)(1).

Comment 3.3.3: One commenter (0048) stated that the VOC content limits for 

nonattainment areas make sense. In addition, this commenter (0048) recommended that an 

emission limit based on the Indian Country Minor NSR Rule permitting levels be used instead of 

a throughput limitation. Another commenter (0035) noted that the coating’s VOC content limits 

listed for spraying operations located in serious, severe or extreme ozone nonattainment areas in 

the draft autobody repair and miscellaneous surface coating operations general permit are based 

on SCAQMD Rule 1151, December 2, 2005, a version which has been amended, and that the 

current coating VOC content limits can be found in Appendix A (effective July 1, 2008) of 

SCAQMD Rule 1151. The commenter (0035) provided hyperlinks to the text of the SCAQMD 

Rule 1151 in their written comments. The commenter (0035) included a table with the 

aforementioned VOC content limits. See Docket Id. No EPA-HQ-OAR-2011-0151 for additional 

information. 

Response: EPA is retaining both the VOC content and material use limits in the final 

Permit by Rule in this final action. EPA chose to include limitations on material use in lieu of 
37

ton-per-year emission limits because tracking material use is easier for sources and, thus, reduces 

their burden. If EPA were to take an emission limit approach, this would require facilities to 

track material use, calculate emissions, and to perform additional recordkeeping and reporting to 

verify that the calculated emissions are correct. By adopting material use limits, permittees are 

only required to track and report types and quantities of materials used each month. Furthermore, 

EPA’s survey of states, conducted in the development of the draft permit, indicates that states are 

using material use limits for these sources. 

EPA agrees that the VOC content limits for spraying operations located in serious, severe

or extreme ozone nonattainment areas should reflect the most current VOC content limits 

approved by EPA. Therefore, we have updated the content limits in the final rule as follows:

Type of Coating VOC Content Limits 

(grams/liter)

VOC Content 

Limits 

(lbs/gallon)

Adhesion Promoter 540 4.5

Clear Coating 250 2.1

Color Coating 420 3.5

Multi-Color Coating 680 5.7

Pretreatment 660 5.5

Primer 250 2.1

Single-Stage Coating 340 2.8

Temporary Protective Coating 60 0.5

Truck Bed Liner Coating 310 2.6

Underbody Coating 430 3.6

Uniform Finishing Coating 540 4.5

One or Two-Component Coatings 

for Plastics 120 1.0

Tire Retread Adhesive 100 0.8

Any other coating type or adhesive 250 2.1

In addition, while reviewing this comment EPA determined that it would be appropriate 

to add definitions for the various coatings listed in this table to the Permit by Rule. The 
38

definitions are based on the underlying SCAQMD rules reviewed and will provide clarity and 

consistency for sources complying with these requirements.

Comment 3.3.4: One commenter (0035) recommended that, to reduce potential health 

risk and odor impacts, EPA should add a setback for new facilities, similar to the approach in the 

draft HMA and SQCS general permits. 

Response: Due to the lack of an EPA analysis demonstrating the air quality benefits of 

requiring setbacks, we lack sufficient information to incorporate them in the final general permits 

for HMA plants and SQCS facilities. Therefore, the final general permits for HMA plants and 

SQCS facilities do not contain setback provisions. Nonetheless, the reviewing authority retains 

the discretion to deny the granting of source coverage under the general permits based on local 

air quality concerns. See response to comment 3.2.4.1.

Comment 3.3.5: One commenter (0035) recommended that EPA consider adding a 

requirement like SCAQMD Rule 1151 that prohibits the use of automotive coatings that contain 

cadmium or chromium to help ensure adequate public health protection.

Response: EPA appreciates the commenter’s concern for public health. However, EPA’s 

Indian Country Minor NSR Rule permitting program is intended to be consistent with the 

requirements of Section 110(a)(2)(c) of the CAA to ensure protection of the NAAQS. Minor 

NSR permitting is only triggered based on the NSR pollutants listed in Table 1 to 40 CFR 

49.153. While 40 CFR 49.154(c)(4) requires EPA to set emission limits consistent with EPA’s 

regulations for HAP emissions (40 CFR part 63), the Federal Indian Country Minor NSR Rule 

permitting program does not provide the EPA authority to regulate HAP other than through the 

issuance of a synthetic minor permit. Therefore, the content limits in the final Permit by Rule are 

limited to VOC-containing coatings and do not address cadmium or chromium. 

Comment 3.3.6: One commenter (0035) noted that there are no limits or work practices 

for stripping operations in the draft Autobody Repair and Miscellaneous Surface Coating 

Operations general permit and recommended that EPA adopt requirements as listed under 

SCAQMD Rules 1107 and 1168 for stripping operations.

Response: EPA notes that the recommended limits for stripping operations primarily 

address HAP. As previously noted, EPA lacks authority under the Federal Indian Country Minor 

NSR Program to impose limits on HAP emissions other than in conjunction with issuing a 

synthetic minor source permit and the commenter did not provide information indicating that 

such work practices are necessary for other reasons, EPA has, therefore, not included limits or 

work practices for stripping operations in the final Autobody Repair and Miscellaneous Surface 

Coating Operations Permit by Rule. See response to Comment 3.3.5 above.
39

Comment 3.3.7: One commenter (0035) noted that, in Section 1: General Provisions, 

Condition 9 of the draft general permit (Information Requests), the term “Reasonable time” is 

subjective and not easily enforceable as it pertains to reviewing authority information requests of 

permittees. This commenter (0035) recommends that a specific time frame should be included in 

the Autobody Repair and Miscellaneous Surface Coating Operations general permit. 

Response: EPA agrees with the commenter. The term “reasonable time” in Condition 9 

is based on provisions of the Federal Indian Country Minor NSR Rule (see 40 CFR 

49.155(a)(7)(vi)) as follows: “You, as the permittee, shall furnish to the reviewing authority, 

within a reasonable time, any information that the reviewing authority may request in writing to 

determine whether cause exists for revising, revoking and reissuing or terminating the permit or 

to determine compliance with the permit. For any such information claimed to be confidential, 

you must also submit a claim of confidentiality in accordance with part 2, subpart B of this 

chapter.” We have replaced “reasonable time” with “30 days unless another timeframe is 

specified by the EPA.” We have made this change for all of the final permits in this action.

Comment 3.3.8: One commenter (0035) recommended that, in Section 2: Emission 

Limitations and Standards, Condition 18, the draft autobody repair and miscellaneous surface 

coating operations general permit should identify a specific test method (e.g., ASHRAE 52 

Standards or equivalent) to ensure consistency in determining the efficiency of filters used in 

conjunction with capturing overspray in enclosed painting areas. 

Response: EPA agrees with the commenter and has revised the final Autobody Repair 

and Miscellaneous Surface Coating Operations Permit by Rule accordingly. 

Comment 3.3.9: One commenter (0035) noted that airless and air-assisted airless spray 

guns are not equivalent to high-volume low-pressure (HVLP) spray guns. This commenter 

(0035) considers low-volume low-pressure (LVLP) spray guns and air brush operations 

equivalent to HVLP spray guns. The commenter (0035) recommended removal of airless and airassisted air less spray guns from Section 2: Emission Limitations and Standards, Conditions 19 

and 33 of the draft general permit, unless the spray gun manufacturer can demonstrate that their 

device is capable of achieving transfer efficiency comparable to that of a HVLP spray gun.

Response: EPA agrees with the commenter in the context of serious, severe, and extreme

ozone nonattainment areas. EPA has concluded that in nonattainment areas where the NAAQS 

are currently exceeded, a greater level of control is required to protect air quality. The revision 

recommended by the commenter will only apply in these nonattainment areas. For other areas,

we believe consistency with the spray gun requirements in Subpart HHHHHH (identify what 6 H 

covers) is more appropriate. We have added the following condition to the final Permit by Rule

(see §49.164(d)(2)(xi)): “In serious, severe, and extreme ozone nonattainment areas, all sprayapplied coating operations must be applied with an HVLP spray gun, LVLP spray gun, or air 

brush spray operation. An equivalent spray technology may be used if it has been demonstrated 

by the spray gun manufacturer to achieve a transfer efficiency comparable to that of an HVLP 
40

spray gun and the spray gun manufacturer has obtained written approval for the use of such 

technology from the U.S. Environmental Protection Agency (EPA).”

Comment 3.3.10: One commenter requests that the exemption for spray guns with a cup 

capacity of 3 fluid ounces or less be removed for facilities located in serious, severe, or extreme

ozone nonattainment areas. The commenter recommended continuing to exempt spray guns with 

this capacity used in air brush operations.

Response: EPA agrees with the commenter that the 3 fluid ounces cup capacity 

exemption should not apply in serious, severe, or extreme ozone nonattainment areas. EPA has 

concluded that in nonattainment areas where the NAAQS are currently exceeded, a greater level 

of control is required to protect air quality. The revision recommended by the commenter, which 

will result in a more stringent requirement, will only apply in serious, severe, and extreme ozone 

nonattainment areas. The condition added for spray guns used in serious, severe or extreme

ozone nonattainment areas does not provide for the 3 fluid ounces cup capacity exemption. See 

response to comment 3.3.9 in this document for additional information.

Comment 3.3.11: One commenter (0035) recommended that, in Section 3: Monitoring 

and Testing Requirements, Condition 25 of the draft general permit, EPA include language 

requiring installation and maintenance of a pressure gauge across each filter bank, such as: 

“Pressure gauges shall be installed and maintained to indicate, in inches of water, the static 

pressure differential across the exhaust filters.” One commenter (0048) noted that, in the surface 

coating permit, there is no requirement in Condition 18 to install exhaust filter pressure gauges, 

even though measurement and recordkeeping is required in the permit.

Response: EPA agrees with the commenters that the permit should include a provision 

requiring the installation of exhaust filter pressure gauges to maintain consistency with the 

monitoring and recordkeeping requirements in the permit, and we have included this requirement 

in the final Autobody Repair and Miscellaneous Surface Coating Operations Permit by Rule.

Comment 3.3.12: One commenter (0035) noted that, in Section 5: Notification and 

Reporting Requirements, Condition 38 (Notification of Change in Ownership) of the draft 

general permit, the proposed regulation is unclear in establishing whether it is the responsibility 

of the new permittee or the old permittee to comply with the notification requirements.

Response: The commenter is correct. We have revised the final permit for clarification. 

If the permitted source changes ownership, then the new permittee must submit a written or 

electronic notice to the reviewing authority within 90 days before or after the change in 

ownership is effective. This clarifying change to the notification and reporting requirements has 

been applied to all final general permits and permits by rule. In addition, upon review of this 

comment we removed the condition from each permit by rule related to administrative revisions 

to the permit by the reviewing authority when there is a change in ownership. This condition is 

not necessary for source categories covered by a permit by rule. 
41

Comment 3.3.13: One commenter (0035) recommended inclusion of the following 

definitions for “Air Brush Operations,” “Freeboard Area,” “Freeboard Height,” and “Liquid 

Leak”: 

 “Air Brush Operations are conducted with a type of coating application equipment that 

operates at air pressures between 25 psi and 116 psi and an air volume of 0.7 cfm and 

1.75 cfm respectively. These operations apply a very thin film of coating to a substrate 

from a paint reservoir of eight ounces or less.”

 “Freeboard Area is the air space in a batch-loaded cold cleaner that extends from the 

liquid surface to the top of the tank.”

 ”Freeboard Height is the distance from the top of the solvent to the top of the tank for 

Batch-Loaded Cold Cleaners.”

 “Liquid Leak is a VOC-containing liquid leak from the degreaser at a rate of three drops 

per minute or more or any visible liquid mist.”

Response: EPA agrees with the commenter that definitions for “Freeboard Area,” 

“Freeboard Height,” and “Liquid Leak” are appropriate to include in the final permit, and we 

have adopted the definitions proposed by the commenter. We have determined that these 

definitions accurately describe the intended use of the terms in the permit. We have not included 

a definition for “Air Brush Operations” because this term is not included in any of the conditions 

of the final Autobody Repair and Miscellaneous Surface Coating Operations Permit by Rule.

Comment 3.3.14: One commenter (0048) recommended that, in the surface coating 

permit, the expected transfer efficiency of the HVLP spray gun should be defined. This 

commenter (0048) also asked why the equivalent spray gun is only defined as the HVLP when 

electrostatic application, airless spray gun, air-assisted airless spray gun are also listed. One 

commenter (0035) recommended that the definition of HVLP spray equipment should be 

corrected to read as follows: ‘‘high-volume, low-pressure (HVLP) spray equipment means spray 

equipment that is permanently labeled as such and used to apply any coating by means of a spray 

gun which is designed and operated between 0.1 and 10 pounds per square inch gauge (psig) air 

atomizing pressure measured dynamically at the center of the air cap and at the air horns.’’

Response: EPA disagrees with the commenter that a specific transfer efficiency for an

HVLP spray gun should be specified. The draft Auto Body Repair and Miscellaneous Surface 

Coating Operations permit defined an HVLP spray gun as “one in which spray equipment that is 

permanently labeled as such and used to apply any coating by means of a spray gun which is 

designed and operated between 0.1 and 10 pounds per square inch gauge (psig) air atomizing 

pressure measured dynamically at the center of the air cap and at the air horns.” This is the 

definition in the Paint Stripping and Miscellaneous Surface Coating Operations Area Source 

NESHAP (Subpart HHHHHH). We prefer to maintain consistency with this regulation and not 

specify a particular transfer efficiency. A spray gun not meeting specifications of one of the 

defined types of spray guns identified in the final Permit by Rule can only be used if it has been 

demonstrated to be equivalent to HVLP technology. This is consistent with the requirements of 
42

Subpart HHHHHH. The suggested edits are minor, but we prefer to keep the definition in the 

permit consistent with the definition in 40 CFR 63 Subpart HHHHHH. As a result, we have not 

made the changes to the definition of HVLP spray equipment as recommended by the 

commenter. 

Comment 3.3.15: One commenter (0048) stated that the materials use provisions for cold 

cleaning solvent in the draft Autobody Repair and Miscellaneous Surface Coating Operations 

general permit are unclear. This commenter (0048) recommended that an emission limit based on 

the Federal Indian Country Minor NSR Rule permitting levels could be used instead of a 

throughput limitation for cold cleaning solvent. One commenter (0035) recommended adding the 

following paragraph to Attachment C – Standards for Batch-loaded Cold Cleaner Degreaser in 

the draft general permit, as required in SCAQMD’s Rule 1122: “The average draft rate in the 

work room, as measured parallel to the plane of the degreaser opening, shall not exceed 9.1 

meters per minute (30 feet per minute).” This commenter (0035) provided hyperlinks to the text 

of the SCAQMD Rule 1122 in their written comments. 

Response: EPA believes that the requirements are sufficiently clear and that the materials 

use requirements are preferable to an emission limit in this context because it is far easier for 

small sources to track material use than emissions. As a result, the EPA is retaining material use 

limits in the final Permit by Rule. The commenter has not provided any substantive comments to 

explain why an emission limit is needed in lieu of a material use limitation. EPA chose to include 

limitations on material use in lieu of ton-per-year emission limits because tracking material use is 

easier for sources and reduces burden. If EPA were to take an emission limit approach, this 

would require facilities to track material use, calculate emissions, and to perform additional 

recordkeeping and reporting to verify that the calculated emissions are correct. By adopting 

material use limits, reporters are only required to track and report types and quantities of 

materials used each month. Furthermore, EPA’s survey of states, conducted in the development 

of the draft permit, indicates that states are using material use limits for these sources.

Regarding the recommendation to add language to Attachment C – Standards for Batchloaded Cold Cleaner Degreaser,7 EPA is declining to include this requirement in the final Permit

by Rule. It is unclear how this condition is enforceable through appropriate monitoring and 

recordkeeping. Therefore, we are making no changes to the final permit based on this comment.

Comment 3.3.16: One commenter (0033) stated that, although they are not aware of any 

[surface coating] facility in their jurisdiction with a throughput of VOC-containing materials 

even close to the 5,000 gallons per year specified in the proposed rule, they would be 

comfortable issuing a general permit or permit by rule for any such facility meeting the abovementioned threshold.

Response: EPA thanks the commenter for their support.

 

7 This is §49.162(e) in the final Auto Body Repair and Miscellaneous Surface Coating Operations Permit by Rule.
43

Comment 3.3.17: One commenter (0048) requested clarification on whether sources that 

do not exceed the permitting limit for Federal Indian Country Minor NSR Rule but are subject to 

the MACT still need to obtain a general permit. The commenter (0048) recommended that any 

rule potentially applicable to the source, such as 40 CFR Part 63 Subpart HHHHHH, Paint 

Stripping and Miscellaneous Surface Coating Operations, should be referenced in the permit. 

The commenter (0048) also noted that there are no requirements concerning the use of paint 

strippers like there are in the MACT.

Response: Independent of whether a source is subject to a NESHAP, a permit under the

Federal Indian Country Minor NSR Rule is only required when constructing or modifying a 

source and the emissions increase is above the minor source permitting thresholds. Regarding the 

need for requirements for paint strippers, see response to comment 3.3.6 of this document. The 

application documents have been revised to identify when requirements for an NSPS or 

NESHAP are included in a final general permit or permit by rule. 

Comment 3.3.18: One commenter (0048) stated that the surface coating permit requires 

the permittee to keep records of the VOC and HAP content of the solvent used in a solvent 

degreaser, but asked why the permittee would need to keep records when there are no limits on 

the VOC content of the solvents. This commenter (0048) stated that keeping similar records is 

not required for the attainment area coatings. The same commenter (0048) recommended that the 

VOC content limit of 25 g/L for cleaning materials used in serious, severe and extreme ozone 

nonattainment areas (in Attachment C of the draft general permit) be listed in the body of the 

permit like the coating limits.

Response: EPA agrees with the commenter that the recordkeeping requirements for VOC 

and HAP content of halogenated solvents used in a degreaser are unnecessary and has revised the 

condition to be consistent with the other recordkeeping requirements for VOC-containing 

material by requiring the Material Safety Data Sheet to be kept onsite. Additionally, we agree 

with the commenter that the VOC content limit for cleaning materials used in serious, severe and 

extreme ozone nonattainment areas specified in Attachment C of the draft general permit should 

be listed in the body of the final Autobody Repair and Miscellaneous Surface Coating Operations 

Permit by Rule. It now can be found in §49.162(d)(2)(xvii).

Comment 3.3.19: One commenter (0048) noted that, in the notification of construction 

or modification requirement, it is not clear whether the notification required for beginning 

operations is within 30 days of start of construction or within 30 days after operations begin or 

resume.

Response: EPA agrees with the commenter that the permit is unclear. We have revised 

this condition in the final Autobody Repair and Miscellaneous Surface Coating Operations 

Permit by Rule to clarify that the permittee must provide written notice within 30 days of 

beginning construction, and within 30 days of beginning initial operations or resuming operation

after a modification.
44

Comment 3.3.20: One commenter (0048) requested clarification on when the refresher 

training (mentioned in Attachment D – Training and Certification Requirements for SprayApplied Surface Coating Personnel of the draft general permit) is required for spray booth 

operators.

Response: EPA appreciates this comment and has updated §49.162(f) in the final 

Autobody Repair and Miscellaneous Surface Coating Operations Permit by Rule to specify that 

training must be conducted within 180 days for new hires and that operators must be re-certified 

at least every 5 years thereafter. This is consistent with the requirements in 40 CFR 63.11173(g), 

the NESHAP applicable to this source category. 

3.4 Comments on the draft Gasoline Dispensing Facility General Permit and 

Implementation Tools

Comment 3.4.1: One commenter (0040) stated that: for GDFs, the percentage onboard 

refueling vapor recovery (ORVR) estimate seems optimistic. This commenter (0040) stated that 

basing applicability on throughput based on those assumptions may under-estimate source 

emissions. 

Response: EPA disagrees with the commenter. As discussed in the “Background 

Document: Air Quality Permit by Rule for New or Modified True Minor Source Gasoline 

Dispensing Facilities in Indian Country”, we determined the percent ORVR for the vehicle fleet 

based on an Agency analysis using the 2012 memorandum, “Updated Data for ORVR 

Widespread Use Assessment” (see Docket Id. No. EPA-HQ-OAR-2010-1076). This analysis has 

been through a rulemaking review which involved substantial participation by gasoline 

marketing and automotive interests and is similar to an analysis prepared by the California Air 

Resources Board (CARB). It is our determination that the estimates of source emissions based on 

the throughput limitations and %ORVR are reasonable and well substantiated. 

Comment 3.4.2: One commenter (0040) noted an error in Table 3: the units in the table 

are not correct; the correct unit for Disp. Breathing losses, Stage I, and Total columns in Table 3 

should be lb/103gallons (lb/1000 gallons). 

Response: EPA agrees with the commenter. We note that there was an error in the 

printing of the Federal Register proposal notice, and that the correct units for Table 3 should be 

lb/103gallons. 

Comment 3.4.3: One commenter (0040) supports the inclusion of standing loss control 

(SLC) requirements in the draft GDF general permit for those parts of Indian country that are 

located in serious, severe and extreme ozone nonattainment areas in California and 

recommended that SLC for VOC emissions from above ground storage tanks (ASTs) should also 

be applied in potential future serious, severe, and extreme ozone nonattainment areas outside 

California. Another commenter (0052) stated that the addition of SLC requirements to the draft 
45

GDF general permit for those parts of Indian Country in California that are located in serious, 

severe, and extreme ozone nonattainment areas could cause increased costs to the GDFs in 

Indian country that would have to provide SLC for VOC emissions from ASTs. The commenter 

(0052) also stated that applying the SLC for VOC emissions from ASTs in potential future 

serious, severe, and extreme ozone nonattainment areas outside of California, could lead to 

increased cost to GDFs in these areas and the reviewing authorities that would need to monitor 

for compliance. One commenter (0035) recommended that EPA apply SLC outside of California, 

stating that SLC is a very cost effective way to reduce emissions from gasoline storage and it is 

independent of throughput. 

Response: EPA has considered the points raised by commenters and has determined that 

SLC requirements for VOC emissions from ASTs should be applied to GDFs in Indian country 

serious, severe, and extreme ozone nonattainment areas as proposed. In doing this, EPA has tried 

to balance the primary purpose of protecting the NAAQS with the desire to provide a level 

regulatory playing field. Moreover, we have determined that these provisions are appropriate to 

include because the majority of Indian country serious, severe and extreme nonattainment areas 

are located in California, where SLC is already required. Facilities in these nonattainment areas 

are located near other non-tribal facilities that already comply with SLC based on their location 

in serious, severe, or extreme nonattainment areas. The inclusion of SLC requirements in areas 

of Indian country with the same designation will ultimately create a more level regulatory 

playing field for GDFs within and outside of Indian country. 

Comment 3.4.4: One commenter (0035) noted that the draft GDF general permit requires 

Stage I control for both underground storage tanks and aboveground storage tanks and SLC for 

aboveground storage tanks, but that Stage II control is not required under the draft general 

permit, even though Stage II control is still required in some states. This commenter (0035) 

noted that EPA has declared that there is widespread use of ORVR and allowed states to obtain a 

waiver of Stage II requirements. The commenter (0035) noted that Paragraph (c) of 40 CFR 

49.154 provides that EPA should take into consideration, among other criteria, the typical control 

technology or other emissions reduction measures used by similar sources in surrounding areas, 

to determine the appropriate level of controls to be employed. The commenter (0035) stated that 

there are Stage II control systems (e.g., CARB certified Phase II Enhanced Vapor Recovery 

Systems or CARB Phase II EVR Systems) that have been certified to be ORVR compatible and 

effective while fueling non-ORVR vehicles and stated that these systems can certainly qualify as 

BACT for both types of vehicles. The commenter (0035) recommended that EPA require Stage 

II controls in states that still require Stage II controls, Phase II EVR systems in states that require 

them, and Phase II EVR systems in serious, severe, or extreme nonattainment areas. 

Response: Stage II and vehicle ORVR were initially both required by the 1990 

Amendments to the CAA under Sections 182(b)(3) and 202(a)(6), respectively. As noted by the 

commenter, the Agency previously issued a notice of final rulemaking to allow the states to 

phase out Stage II controls for serious, severe, and extreme ozone nonattainment areas (77 FR 

28772, May 12, 2012). At that time, the Administrator made the determination that ORVR is in 

widespread use, as authorized under Section 202(a)(6) of the CAA, and that Stage II controls 

could be removed to reduce costs for redundant control. However, this notice allowed, but did 
46

not require, states to discontinue Stage II vapor recovery programs. As such, some states may 

have maintained Stage II controls as part of their SIP but indications are that most are not 

requiring Stage II controls for new GDFs.

EPA estimates that approximately 84% of gasoline will be dispensed to ORVR equipped 

vehicles by the end of 2014 and that by the end of 2020 this value will increase to 94%. There 

remains a small but continually decreasing percentage of gasoline refueling emissions not 

captured by ORVR controls. EPA, nevertheless, considers additional emission reductions 

achieved through Stage II controls as technically achievable. Those controls would, however,

only apply to emissions from those vehicles without ORVR, while the costs to the GDF would 

be the same regardless of the volume of non-ORVR vehicle gasoline throughput at the GDF. 

Thus, while Stage II controls would provide a benefit, the cost of this control would be 

disproportionally large and there would be follow-on annual costs to the GDF operator. 

Nevertheless, given that areas of California have chosen to continue requiring the program, these 

additional emission reductions continue to be necessary and required in California plans for 

demonstrating how they will attain the NAAQS. We do not, however, anticipate any other areas 

in the country continuing to require Stage II controls at new GDFs.

In the development of the final rule, we have tried to balance the need to provide a level 

regulatory playing field with the need to protect the NAAQS. Because of the costs associated 

with installing Stage II controls, extending Stage II requirements to GDFs in current or future 

Indian country nonattainment areas outside of California would likely create a significantly 

disproportionate regulatory requirement when compared with the requirements applicable in the

surrounding area. In this particular case, where such a disparity in typical control requirements in 

different parts of the country will likely exist, we do not think it is appropriate to make a permit 

by rule available in all areas of Indian country. Therefore, the final Permit by Rule for GDFs will 

not include Stage II controls, but sources located within the geographical boundaries of 

California will not be eligible for the Permit by Rule. This approach will allow EPA Region 9, 

the current reviewing authority in all areas of Indian country in California, to develop a general 

permit or permit by rule for areas within California, that can more closely consider the unique air 

quality concerns in that area of the country.

Comment 3.4.5: One commenter (0035) recommended that, in the case of EPA adopting 

Stage II controls, that CARB Vapor Recovery Test Procedures TP-201.1B, TP-201.1C, and TP201.1D or equivalent should be included for testing of Stage II components. 

Response: Consideration of California ARB test procedures covering the implementation 

of Stage II EVR for GDFs would be highly appropriate if the rule were to require Stage II

controls. However, for the reasons discussed above, Stage II is not a requirement for new GDFs 

in Indian country.

Comment 3.4.6: One commenter (0035) recommended that EPA require In-Station 

Diagnostics (ISD) for all GDFs that dispense more than 600,000 gallons/year, noting that ISD is 

important since it provides continuous real time monitoring of critical emission-related vapor 
47

recovery system parameters and components, and alerts the station operator when a failure mode 

is detected so that corrective action can be taken. 

Response: Consideration of California ARB requirements such as ISD might be 

appropriate if the rule were to require Stage II controls. However, for the reasons discussed 

above, Stage II is not a requirement for new GDFs in Indian country. Therefore, we are not 

requiring ISD in the GDF Permit by Rule.

Comment 3.4.7: One commenter (0035) explained that vapor recovery systems at GDF 

are often certified with a group of components designed to work together under specific 

conditions, and are to be operated and maintained within specified constraints which are defined 

in the certification for these systems, including equipment configuration, performance standards, 

testing methods, and installation, operational and maintenance procedures. The commenter 

(0035) recommended that EPA incorporate these constraints by referring to the certification 

documents for such systems.

Response: The commenter seems to be referring to the fact that Stage II installations are 

certified in addition to some components needing to meet specific requirements. This is quite 

sensible, but it is not relevant since we are not requiring Stage II controls for new GDFs in 

Indian country.

Comment 3.4.8: One commenter (0035) supports the exemption for tanks < 250 gallon 

capacity.

Response: EPA thanks the commenter for their support. 

Comment 3.4.9: One commenter (0035) requested that EPA revise the first sentence of 

Section 2: Emission Limitations and Standards, Paragraph 14 in the draft GDF general permit to 

read: “The permittee shall install, maintain and operate each affected emission unit, ... .”

Response: The commenter’s suggested text would modify Condition 14 to clarify that 

the permittee shall install each affected emissions unit, including any associated air pollution 

control equipment, in a manner consistent with good air pollution control practices and 

considering the manufacturer’s recommended operating procedures at all times, including 

periods of startup, shutdown, maintenance and malfunction. EPA agrees with the suggested 

change and has revised §49.164(d)(2)(i) of the final GDF Permit by Rule, accordingly. This 

change has been applied to all final general permits and permits by rule.

Comment 3.4.10: In commenting on the draft GDF general permit, one commenter 

(0035) recommended that EPA add one housekeeping measure in Section 2: Emission 

Limitations and Standards, Paragraph 15. “f. The spill bucket shall be free from standing liquid 

and of debris.”
48

Response: EPA agrees that the provision suggested by the commenter is appropriate for 

inclusion in the final permit. The provision is a good air pollution control practice and would not 

increase the burden to sources. The provision has, therefore, been added to §49.164(d)(2)(iv)(B) 

of the final GDF Permit by Rule.

Comment 3.4.11: One commenter (0035) noted that, in Section 2: Emission Limitations 

and Standards, Paragraph 19: All gasoline storage tanks greater than 250 gallons should have a 

Stage I dual-point vapor balance system. Any Stage I coaxial system should not be allowed 

because these systems are prone to blockage. This commenter (0035) further recommended that 

the phrase “that are constructed after January 20, 2008” under Item A and Item B be deleted in 

its entirety.

Response: EPA concurs with these suggestions.

Comment 3.4.12: One commenter (0035) recommended that, in Section 2: Emission 

Limitations and Standards, Paragraph 20, EPA add the following requirements for cargo tanks: 

“h. A sight glass shall be installed in the fuel drop hose to verify that there are no bubbles 

forming during the fuel drop.”

Response: EPA does not agree that this provision is necessary to include in the final 

permit. The commenter has not provided a substantive explanation for the suggested requirement 

or explained why bubble formation would be problematic. As a result, EPA has not made any 

changes to the final GDF Permit by Rule in response to this comment.

Comment 3.4.13: One commenter (0035) noted that, in Section 3: Monitoring and 

Testing Requirements, Paragraph 23 of the draft general permit, which states: “An initial 

performance test should be conducted as soon as practical but no more than 180 days after initial, 

or resumption of, fuel dispensing operation.,” the condition as stated may provide a much longer 

period in cases where the reviewing authority does not timely issue the Approval of the Request 

for Coverage. 

Response: A particular source may not begin construction or modification until either an 

Approval of the Request for Coverage is issued for a general permit or a completed Notification 

of Coverage is received by the reviewing authority for a permit by rule. As such, the period for 

conducting the initial performance test is specific, making the commenter’s concern unclear.

Comment 3.4.14: One commenter (0035) recommended that, in Section 3: Monitoring 

and Testing Requirements, Paragraph 25 of the draft general permit, should read: “The permittee 

should follow maintenance procedures as specified in the equipment certification documents 

(e.g. CARB Executive Orders) where applicable.” EPA should also add a requirement for daily 
49

visual inspection of equipment because fueling equipment is used by a consumer or delivery 

truck driver and not GDF employees. 

Response: In the final GDF Permit by Rule, EPA has considered the commenter’s 

suggestion and is revising §49.164(d)(3)(iii) of the final GDF Permit by Rule, Condition 25 to 

include a requirement for a daily visual inspection of equipment in extreme ozone nonattainment

areas. This is standard practice and is recommended by the Petroleum Equipment Institutes in 

their Recommended Practice 300-09. We have determined that this inspection is appropriate to 

protect the air quality in these areas. We did not include a reference to CARB Executive Orders, 

as equipment certification documents may be issued by other reviewing authorities.

Comment 3.4.15: One commenter (0035) recommended that, in Attachment B: 

Definitions of the draft general permit, EPA change the definition for ullage to: “Ullage means 

the empty volume of any container. For example, the ullage of a tank designed primarily for 

containing liquid is the volume of the tank minus the volume of the liquid it contains.”

Response: EPA has considered the commenter’s suggestion and is revising the definition 

of ullage in the final GDF Permit by Rule. We have not adopted the commenter’s suggested 

language in its entirety because it does not provide clarity. The definition of ullage included in 

the final permit reads, “Ullage means the volume of a container not occupied by liquid. For 

example, the ullage of a tank designed primarily for containing liquid is the volume of the tank 

minus the volume of the liquid it contains.” 

Comment 3.4.16: One commenter (0035) recommended that, in Attachment C: Vapor 

Balance System Design Criteria, Management Practices, and Performance Testing of the draft 

general permit, Paragraph 10, EPA add a requirement to perform the test at least once every three 

years, and at Paragraph 11, add a requirement to perform the test at least once a year. This 

commenter (0035) recommended that Item b. be deleted from Paragraphs 10 and 11, because the 

permitted source has to be in a non-operational state to conduct the test (no fuel transfer and no 

vehicle being fueled). 

Response: This comment is mostly related to testing frequency for Stage II requirements, 

which are not included in the final GDF permit by rule. EPA agrees with the recommendation to 

delete the requirement to conduct the testing while the permitted source is operating under 

typical conditions and has done so in §49.164(e)(2)(i) and (ii).

Comment 3.4.17: One commenter (0035) recommended that, in Attachment C: Vapor 

Balance System Design Criteria, Management Practices, and Performance Testing of the draft 

general permit, Paragraph 11, EPA revise the requirement because the two test methods (under c.

and d.) are interchangeable and should be alternative to each other (i.e. “c. or d.” instead of “c. 

and d.”). 
50

Response: EPA concurs with this comment and has made the suggested change in 

§49.164(e)(2)(ii)(C).

Comment 3.4.18: One commenter (0035) recommended that, in Attachment C: Vapor 

Balance System Design Criteria, Management Practices, and Performance Testing of the draft 

general permit, Paragraph 11, for AST, CARB Vapor Recovery Test Procedures, EPA should 

use TP-206.3, instead of TP-201.3.

Response: EPA concurs that the testing requirements for ASTs should include TP-206.3. 

However, the testing requirements for ASTs were in Paragraph 12 of the draft general permit. 

TP-206.3 has been added to the list of testing requirements in §49.164(e)(2)(iii).

Comment 3.4.19: One commenter (0035) noted that, in Attachment C: Vapor Balance 

System Design Criteria, Management Practices, and Performance Testing of the draft general 

permit, Paragraph 12, the tests under TP-206.1 and TP-206.2 are meant for use in certifying AST 

and not for testing of individual storage tanks. 

Response: EPA agrees with this comment and has revised §49.164(e)(2)(iii) to indicate 

that the permittee must use ASTs certified with these procedures.

Comment 3.4.20: One commenter (0035) recommended that, in Attachment C: Vapor 

Balance System Design Criteria, Management Practices, and Performance Testing of the draft 

general permit, Paragraph 12, EPA should require the installation of CARB certified AST for 

SLC instead of testing ASTs. 

Response: EPA concurs with this comment and, thus, we have added a requirement in

§49.164(e)(2)(iii) that ASTs be CARB certified for SLC.

Comment 3.4.21: One commenter (0033) noted that an average GDF has a throughput of 

1.5 million gallons per year. This commenter (0033) stated that most, if not all, GDFs on the 

Navajo Nation have a yearly throughput of four million gallons or less and will not qualify as 

minor sources.

Response: EPA thanks the commenter for their input. 

EPA acknowledges that many sources will be below the upper threshold to qualify for the 

final GDF Permit by Rule. Note, however, that the facility must also determine whether it qualifies 

as a minor source based on the facility PTE. If the facility PTE is below the minor NSR thresholds 

in Indian country in 40 CFR 49.153 (see Table 1 of the “Background Document: Air Quality 

Permit by Rule for New or Modified True Minor Source Auto Body Repair and Miscellaneous 
51

Surface Coating Operations in Indian Country”),8then the facility is exempt from the minor NSR 

program. Translated into throughput levels, if the source is above the following lower levels, then 

it is a minor source subject to minor NSR (provided it is below major source levels):

 If located in an attainment, unclassifiable or attainment/unclassifiable area for ozone, 

after the proposed construction or modification project, the facility is projected to 

dispense more than 4,000,000 gallons of fuel over a consecutive 12 month period; 

and 

 If located in an ozone nonattainment area, after the proposed construction or 

modification project, the facility is projected to dispense more than 2,100,000 gallons 

of fuel over a consecutive 12 month period.

Facilities with throughput above these levels that have PTEs below the NSR major source 

thresholds may seek coverage under the final GDF Permit by Rule if they meet the throughput 

limits and operating requirements established in the Permit by Rule.

Comment 3.4.22: One commenter (0048) recommended that the MACT standard for 

GDFs, 40 CFR part 63, subpart CCCCCC, should be referenced in the draft general permit. This 

commenter (0048) noted that a side-by-side comparison suggests the permit conditions are more 

stringent than are the MACT requirements in some respects. This commenter (0048) 

recommended that it should be made clear in the permit that when there is a contradiction that 

the MACT rule meaning applies. This commenter (0048) recommended that it would be better to 

remove any sections from the general permit that duplicate what is in the MACT rule.

Response: See response to Comment 3.2.1.16. The emission limitations in the final GDF 

Permit by Rule, as well as those in other general permits and permits by rule, are consistent with 

the requirements of the Federal Minor NSR Program in Indian Country, which requires that each 

permit include applicable emission limitations for each affected emissions unit as determined by 

the reviewing authority, and that the emission limitations assure that each affected emissions 

unit will comply with all requirements of parts 60, 61 and 63 (see 40 CFR 49.155(a)(2) and 40 

CFR 49.154(c)(4)). The requirements included in the final GDF Permit by Rule are intended to 

harmonize with the existing NESHAP rule to the greatest extent possible. We have tried to 

maintain consistency with 40 CFR part 63, subpart CCCCCC to streamline the permit and to 

reduce burden to sources who must comply with both sets of requirements. We note, however, 

that sources subject to subpart CCCCCC must fully comply with the requirements of that rule 

independent of what is required in the final GDF Permit by Rule.

 

8 Background Document: Air Quality Permit by Rule for New or Modified True Minor Source Gasoline Dispensing 

Facilities in Indian Country, Docket ID No. EPA-HQ-OAR-2011-0151, http://www.epa.gov/air/tribal/tribalnsr.html.
52

3.5 Comments on the draft Petroleum Dry Cleaning Facilities General Permit and 

Implementation Tools

Comment 3.5.1: One commenter (0033) stated that they are not aware of any petroleum 

dry cleaning facilities on the Navajo Nation with a throughput of VOC-containing materials 

close to 5,600 gallons per year, but that they would be comfortable issuing a general permit or 

permit by rule for any such facility meeting the above-mentioned threshold. One commenter 

(0047) agreed with EPA on the throughput limits for dry cleaning facilities and on inspections 

for dry cleaners every 15 months, at a minimum. This commenter (0047) noted that although 

there may be related recordkeeping with marginal costs, they do not seem “unreasonable” and 

would assist in protecting the tribe’s air shed. Another commenter (0052) stated that although 

requiring the inspections of cleaning dryers and dry cleaning equipment does not appear to be 

unreasonable, the timeframe for performing inspections of cleaning dryers and the turnaround 

time for repairing any leaks that are discovered for these dryers, in particular, could be 

burdensome for dry cleaning facilities. This commenter (0052) recommended that the permit be 

revised to allow a slightly longer timeframe for each activity. 

Response: EPA thanks the commenters for their support of the proposed throughput 

limits and inspection requirements; we are maintaining these provisions in the final Petroleum 

Dry Cleaning Facilities Permit by Rule. Regarding the timeframe for inspections and repair, the 

proposed timeframe for inspections and repair is actually every 15 days. We disagree with the 

comment that this timeframe is unreasonable. The Petroleum Dry Cleaners NSPS (40 CFR part 

60, subpart JJJ) requires labeling of dryers for periodic inspections of the petroleum solvent 

dryer every 15 days and repair of all vapor or liquid leaks within the subsequent 15 day period. 

As such, we anticipate that many facilities are currently implementing inspections and repair 

within this time frame. The final Petroleum Dry Cleaning Facilities Permit by Rule, therefore, 

requires that each petroleum solvent dry cleaning dryer be inspected every 15 calendar days for 

evidence of leaks and that all vapor or liquid leaks be repaired within the subsequent 15 calendar 

day period.

Comment 3.5.2: One commenter (0035) noted that there is no requirement in the draft 

Petroleum Dry Cleaners general permit for BACT. This commenter (0035) recommended that 

EPA include BACT guidelines for new petroleum dry cleaning equipment in nonattainment areas 

identical to the SCAQMD BACT guidelines, which specify BACT for petroleum dry cleaning 

equipment as a “Closed Loop, Dry-to-Dry Machine with a Refrigerated Condenser (manufacture 

date on or after 10-20-2000) or Evaporatively Cooled Condenser (manufacture date on or after 7-

9-2004)”. 

Response: As stated previously, EPA intended to include more stringent requirements for 

sources locating in certain ozone nonattainment areas. Those requirements were based on

requirements applicable in California where the majority of the Indian country nonattainment

areas exist. The draft permit included some requirements from SCAQMD rules for sources 

locating in serious, severe, and extreme ozone nonattainment areas, but inadvertently did not 

specifically identify that a closed-looped dryer is required in these areas. All other requirements 
53

applicable to this equipment were included. We have included a requirement to use closed-loop 

dryers in serious, severe, and extreme ozone nonattainment areas as suggested by the commenter.

Comment 3.5.3: Another commenter (0048) recommended that the MACT standard for 

dry cleaners, 40 CFR Subpart M – NESHAP for Perchloroethylene Dry Cleaning Facilities, be 

referenced in the draft general permit. One commenter (0048) stated that a side-by-side 

comparison suggests the permit conditions are more stringent than are the MACT requirements 

in some respects. The commenter (0048) recommended that it should be made clear in the permit 

that when there is a contradiction, that the MACT rule meaning applies, and recommended that 

EPA remove any sections from the general permit that duplicate what is in the MACT rule.

Response: EPA did not include standards from the NESHAP for perchloroethylene dry 

cleaners in the draft permit as the permit is not intended to regulate emissions of HAP. Instead, 

in establishing the requirements for the draft permit, EPA drew on requirements from the 

Petroleum Dry Cleaners NSPS (40 CFR part 60, subpart JJJ), and not the NESHAP for 

Perchloroethylene Dry Cleaning Facilities (40 CFR 63, subpart M). The provisions of subpart M 

apply to dry cleaners that use the HAP perchloroethylene, which is not a pollutant regulated 

under the NSR program. The final Petroleum Dry Cleaning Facilities Permit by Rule is intended 

for use only by petroleum dry cleaning facilities, which are subject to the provisions of 40 CFR 

60 subpart JJJ. 

Regarding the stringency of the draft permit conditions, in some cases, more stringent 

provisions are necessary to protect the NAAQS, especially in serious, severe, and extreme ozone 

nonattainment areas, and EPA has included such provisions in the final permit. These limitations 

remain consistent with the requirements of the Federal Indian Country Minor NSR Rule, which 

requires that each permit must include applicable emission limitations for each affected 

emissions unit as determined by the reviewing authority, and that the emission limitations must 

assure that each affected emissions unit will comply with all requirements of parts 60, 61 and 63 

(see 40 CFR 49.155(a)(2) and 40 CFR 49.154(c)(4)).

9 The requirements included in the final 

Petroleum Dry Cleaning Facilities Permit by Rule are intended to harmonize with the existing 

NSPS rule to the greatest extent possible. We have tried to avoid contradictions with 40 CFR 

part 60, subpart JJJ to streamline the permit and to reduce burden to sources who must comply 

with both sets of requirements. If there are questions or concerns related to the compliance 

provisions of the final Petroleum Dry Cleaning Facilities Permit by Rule or 40 CFR part 60, 

subpart JJJ, facilities may contact the appropriate regulatory authority for additional information.

Comment 3.5.4: One commenter (0052) stated that the requirements in the draft 

Petroleum Dry Cleaners general permit for sources located in serious, severe, and extreme ozone 

nonattainment areas, such as having wastewater evaporators and meeting leak check and repair 

requirements, do not appear unreasonable, but there would be costs involved in meeting these 

requirements.

 

9 While we are ensuring compliance with part 63, sources covered by the Petroleum Dry Cleaning Facilities Permit 

by Rule are not covered by the MACT standard for dry cleaners, 40 CFR Subpart M – NESHAP for 

Perchloroethylene Dry Cleaning Facilities.
54

Response: EPA thanks the commenter for their support. We acknowledge that there are 

costs associated with meeting these requirements. EPA has previously analyzed the impact of 

streamlined permitting in the development of the proposed rule. We determined that the draft

permit conditions would not impose a substantial direct compliance cost or have a significant 

economic impact. The permit conditions included are necessary to ensure that air quality is 

protected throughout Indian country.

Comment 3.5.5: One commenter (0035) noted that, in Section 2: Emission Limitations 

and Standards of the draft general permit, Paragraph 21, reference should be made to Attachment 

“C,” not “A”.

Response: EPA thanks the commenter for identifying the typo. We have corrected this 

reference in the final Dry Cleaning Facilities Permit by Rule.

4.0 Comments on the appropriateness of utilizing streamlined general permit applications 

(Permit by Rule) for three source categories

4.1 General comments on the regulatory framework that EPA proposed as an 

alternative to use to establish permits by rule 

Comment 4.1.1: Several commenters (0030, 0031, 0033, 0038, 0040, 0041, 0042, 0049-

2, 0052) provided support for EPA’s proposed use of streamlined permit applications (permits by 

rule) for three source categories (auto body repair and miscellaneous surface coating, GDFs, and 

petroleum dry cleaning facilities). Some commenters (0029, 0038) noted that several states and 

local reviewing authorities use permits by rule to authorize construction of minor sources and 

that EPA has approved several state or local permits by rule in SIPs. Two commenters (0031, 

0033) stated that based on the simplicity of these operations and the type and number of 

pollutants emitted, a permit by rule is appropriate for these sources. One commenter (0033) 

specified that auto body repair and miscellaneous surface operations, GDFs, and petroleum dry 

cleaning facilities emit VOCs only in amounts that are significantly below the major source 

thresholds. Some commenters (0029, 0049-2) stated that the notification-only approach would 

not undermine the environmental benefits or compliance with requirements but would provide an 

equivalent level of emissions reductions; one commenter (0049-2) reiterated that there is no 

evidence that violations are more likely to occur with a permit by rule than with a general permit. 

Three commenters (0031, 0033, 0049-2, 0052) asserted that the use of permits by rule 

would expedite the permitting process and reduce administrative burdens and costs for 

permitting agencies and/or operators. Commenters (0030, 0049-2) supported the permit by rule 

approach because it would allow permittees to begin construction without delay, rather than 

waiting for preconstruction review and approval. Some commenters (0049-2, 0038) urged EPA 

to consider available resources and the timing of permitting, noting that the permit by rule 

approach will allow EPA to more efficiently manage minor sources and ensure resources are 

available to ensure compliance for both major and minor sources. Some commenters (0029, 

0032) pointed to other state or federal programs for EPA to consider as a model for the 
55

development of its permit by rule approach. These commenters (0029, 0032) also expressed 

concerns about whether EPA has the resources to process general permits in a timely manner. 

These commenters (0029, 0032) referenced issues experienced by EPA Region 8 when the 

synthetic minor source permitting program for that region became effective, and pointed to the 

Fort Berthold Indian Reservation (FBIR) FIP used in that region as a model for EPA’s minor 

source permitting.

Response: EPA has considered the input provided by commenters and is finalizing 

permits by rule, in lieu of general permits, for the auto body repair and miscellaneous surface 

coating operations, gasoline dispensing,10 and petroleum dry cleaning source categories. EPA has 

attempted to balance the air quality concerns in Indian country with the resource and workload 

needs of reviewing authorities and minimizing delays associated with the permitting process. 

Permits by rule provide a streamlined approach that reduces the time permitting authorities must 

devote to reviewing permit applications and issuing permits for source categories and simplifies 

the permitting process for sources that pose little environmental concern. EPA believes that 

permits by rule are appropriate for controlling emissions-generating activities that should be 

controlled to protect air quality, but pose a relatively lower environmental concern. Permits by 

rule have frequently been used by states to authorize construction of less complex sources that 

emit below the major stationary source thresholds, including auto body repair and miscellaneous 

surface coating operations, gasoline dispensing, and petroleum dry cleaning sources. These 

sources have the most straightforward operations, the least variations in equipment and 

configurations, largely involve one air pollutant (i.e., VOCs), and have the simplest compliance 

requirements. Given the relative simplicity and generally lower emissions of these sources, we 

have determined that we do not need to conduct case-specific reviews to evaluate whether an 

individual source qualifies for the permit, and we are comfortable requiring only notification 

from these sources. In this final rule, the permits by rule program would require an individual 

applicant to submit a letter and Notification of Coverage Form to the reviewing authority and the 

tribal authority, prior to construction or modification, indicating/demonstrating that it meets the 

eligibility criteria for the permit and that it can and will comply with all of the permit terms and 

conditions. We are also requiring that sources obtain written confirmation from the EPA that the 

screening procedures for threatened and endangered species and historic properties have been 

completed correctly prior to submitting the Notification of Coverage Form. To make this clearer, 

we have created a new document, Procedures to Address Threatened and Endangered Species 

and Historic Properties for New or Modified True Minor Sources in Indian Country Seeking Air 

Quality Permits by Rule, that sources will use to guide them through the screening processes 

prior to submitting a Notification of Coverage Form. We are adding the requirement to notify the 

tribal authority in order to ensure that the tribal authority is aware of new facilities and may 

communicate the information to the tribe.

In addition, where EPA is the reviewing authority, we must post a source’s Notification 

of Coverage Form on the relevant Region’s our web site upon receiving it. The posting of the 

Notification of Coverage Form is considered final agency action with respect to its applicability 

to an individual source. The sole issue that may be appealed after an individual source is covered 

under a permit by rule is the applicability of the permit by rule to that particular source. Appeals 

 

10 The gasoline dispensing facilities permit by rule that EPA is finalizing does not apply to GDFs located in 

California (see Response to Comment 3.4.4).
56

must be made to the U.S. Court of Appeals for the relevant Circuit within 60 days of EPA’s 

action. We have decided to promulgate this process as a separate regulation from 40 CFR 49.159 

to provide a process for permits by rule that is streamlined compared to the two-step process of 

first seeking review by EPA’s Environmental Appeals Board and then seeking review by the 

relevant Circuit Court provided in 40 CFR 49.159 for general permits.

Comment 4.1.2: Two commenters (0041, 0042) asserted that the permit by rule approach 

provides sufficient opportunities for public input. The commenters (0041, 0042) noted that each 

permit by rule would be codified, which would provide an opportunity for public notice and 

comment, similar to the procedures used for NSPS and MACT standards. The commenters 

(0041, 0042) also stated that the public would retain the right to judicial review of any source's 

receipt of coverage under a permit by rule. One commenter (0033) supported the use of permits 

by rule provided that the proposed requirement for certification of compliance is retained in the 

final rule; the commenter (0033) noted that the certification requirement is necessary to ensure 

that the source is aware of the relevant eligibility criteria and permit terms and conditions. The 

commenter (0033) also recommended that the applicant mail a copy of the application to the 

reviewing authority for the reviewing authority’s records. Another commenter (0052) suggested 

that the receipt of a source notification requesting coverage would qualify as a final action for 

purposes of judicial review.

Response: For the auto body repair and miscellaneous surface coating operations, 

gasoline dispensing, and petroleum dry cleaning source categories, EPA agrees with commenters 

that the permit by rule approach provides sufficient opportunity for public input, including both 

comment and response to the proposed rule and the opportunity for judicial review of any 

source’s receipt of coverage. The source is required to list the equipment at the facility in the

Notification of Coverage Form that it submits to the reviewing authority and the tribe. EPA is 

retaining the proposed requirement for certification of compliance in the final rule, and is adding 

a requirement to send the certified notification to both the reviewing authority and the tribal

authority, as discussed in response to comment 4.1.1 of this document. We agree that the receipt 

and posting of the Notification of Coverage Form qualifies as final agency action for the 

purposes of judicial review, which provides another avenue for the public to address concerns 

regarding the coverage of the facility and the implications on local air quality.

Comment 4.1.3: Four commenters (0035, 0045, 0047, 0052) opposed the use of permits 

by rule for the three source categories. One commenter (0047) also expressed opposition to the 

use of permits by rule for any future source categories that EPA may propose. Many commenters

(0035, 0045, 0047, 0052) objected to the use of permits by rule or expressed concern because the 

process does not allow for public notice and comment on the applicability of the permit by rule. 

Two commenters (0047, 0052) stated that a facility may not be aware of all aspects of the 

permitting process that need to take place and which they must meet to comply. One of these 

commenters (0047) stated that a lack of notification could result in a permittee missing out on 

critical permitting steps. The commenter (0047) also asked how EPA or a tribe would be able to 

review and confirm that a facility is providing the correct information. The commenter (0047) 

asserted that this scenario is no different than the process before the Federal Indian Country 
57

Minor NSR Rule. Two of these commenters (0045, 0047) indicated that they would support a 

permit by rule if EPA provided a notice and comment period under the process. One commenter 

(0031) who supported the permit by rule approach also requested that EPA provide a notice and 

comment period, if only for tribes, which have certain rights as set forth by the U.S. Constitution, 

treaties, and longstanding legal precedence.

Response: EPA disagrees that the use of permits by rule is inappropriate for the auto 

body repair and miscellaneous surface coating operations, gasoline dispensing, and petroleum 

dry cleaning source categories. Permits by rule provide a streamlined permitting approach that 

reduces the time permitting authorities must devote to reviewing permit applications and issuing 

permits, while adequately controlling emissions-generating activities that pose a relatively lower 

threat to air quality. As discussed in the response to comment 4.1.1 of this document, EPA has 

striven to balance the air quality concerns in Indian country with the resource and workload 

needs of reviewing authorities. The issuance of general permits for these facilities would greatly 

add to the workload of the reviewing authority without providing greater benefits to air quality

since a general permit would be unlikely to impose any additional substantive requirements. 

Since we are establishing the permits by rule through notice and comment rulemaking, the public 

has had an adequate opportunity to comment on the proposed rule and the provisions of the 

permits by rule for the three source categories for which we are establishing permit by rule.

Given the simplicity and lower emissions of these sources, we have determined that we do not 

need to conduct an in-depth review to evaluate whether an individual source qualifies for the 

permit, and we are comfortable requiring only notification from these sources. Because we will 

need to continue to balance the workload and resource needs of the reviewing authority with the 

need to protect air quality, we do not agree with the comment that permits by rule should not be 

used for any future source categories. 

Although we understand that some commenters are concerned that the permit by rule

mechanism does not allow for public notice of and an opportunity to comment on each 

individual source’s coverage under the permit, it is our determination that these source 

categories, which contain simple operations and thus need fewer requirements than those 

necessary for other minor sources, can be adequately controlled and permitted without the need 

for public notice and an opportunity to comment on an individual source’s coverage. Detailed 

source specific information is not necessary because these source categories are composed of 

facilities that are straightforward in their configuration and emissions (they are primarily VOC 

emission sources), and thus do not require detailed review or confirmation of the information. 

We disagree with the comments that the approach is no different than prior to the Federal Indian 

Country Minor NSR Rule and that the approach does not provide opportunity for public input. 

Prior to the promulgation of the Federal Indian Country Minor NSR Rule, minor sources 

intending to locate in Indian country, other than those intending to locate in areas subject to the 

Federal Air Rule for Reservations, were not required to obtain a permit prior to commencing 

construction or modification. The public has currently provided comments on the proposed rule 

and the provisions of the permit by rule documents for the three source categories for which EPA 

is codifying permits by rule. The public retains the opportunity for judicial review by the U.S. 

Court of Appeals of any source’s coverage under a permit by rule. The public will have the same

opportunity to comment on the provisions of any permits by rule proposed in the future and the 
58

opportunity to seek judicial review of an individual source’s coverage under any such permits by 

rule that are ultimately promulgated. 

Regarding the concern that a facility may not be aware of all aspects of the permitting 

process, EPA has developed multiple implementation tools and documents to provide facilities 

with the information necessary to understand the permitting process, assist facilities in 

navigating the permitting process and help to ensure that a facility meets critical permitting 

requirements. Specifically, we are providing seven tools to provide facilities with the adequate 

information necessary to understand the permitting process:

 Notification of Coverage Form: This form notifies the reviewing authority of the 

source’s intent to proceed under a permit by rule.

 Document to address Threatened and Endangered Species and Historic Properties: 

“Procedures to Address Endangered and Threatened Species and Historic Properties for 

New or Modified True Minor Sources in Indian Country Seeking Air Quality Permits 

by Rule”;

 Questionnaire: Guides sources through a series of questions to determine whether it is 

eligible for coverage under the permit by rule.

 Instructions: Provides additional guidance that may be useful in obtaining coverage.

 Permit terms and conditions: The permit document lays out the general and specific 

terms and conditions that the source must meet.

 PTE Calculator: A spreadsheet-based tool that helps sources calculate the PTE of the 

affected emissions units.

 Background document: Provided as a reference and contains important information 

including the source category definition, state minor source permit programs used for 

comparison, requirements for the permit by rule, and threshold development and 

rationale.

The availability of these implementation tools and documents will help ensure that a 

facility meets critical permitting steps. For example, the permittee will be informed in the permit 

instructions that a notification must be supplied to the tribal authority as well as the reviewing 

authority when EPA is the reviewing authority. 

Comment 4.1.4: One commenter (0035) argued that the use of permits by rule would 

effectively mean that sources exceeding the minor source permit threshold are exempt from a 

permit. The commenter (0035) stated that it is difficult to enforce against a source that has 

constructed in violation of the “permit by rule” requirements. The commenter (0035) asserted 

that permits by rule would only make sense for sources below the threshold at which the rule 

requires a pre-construction permit, or for the very smallest of sources that slightly exceed the 

minor source threshold. One commenter (0047) asserted that permits by rule are not appropriate 

for either true minor or synthetic minor sources.

Response: EPA disagrees with the comment that the use of permits by rule effectively 

means that sources exceeding the minor source permit threshold are exempt from a permit. We 

also disagree that the permits by rule are not appropriate for minor sources. The permit by rule 
59

provides that the source will be subject to a set of enforceable terms and conditions. Permits by 

rule are only available to true minor sources. As with general permits and source-specific 

permits, the permit by rule contains throughput limits which will ensure that facilities remain 

true minor sources. Facilities that cannot meet any of the requirements in the permit by rule 

would not be eligible for coverage. Facilities that are able to comply and choose to do so must 

submit a letter and Notification of Coverage Form certifying that the facility will comply with all 

of the terms and conditions in the relevant permit by rule. As such, the requirements of the 

permits by rule are written protectively, and only apply to facilities that can comply with the 

throughput limitations and control measures provided in the permit. Under these circumstances, 

and given EPA’s limited resources, we do not believe that there is sufficient additional value in 

requiring the reviewing authority to review each Notification of Coverage Form. Rather, we 

think that requiring the source to submit a Notification of Coverage Form wherein in the source 

certifies its intent and ability to proceed under the relevant permit by rule. Any source that does 

not comply with the requirements of the permit by rule after it has submitted the Notification of 

Coverage Form will be subject to potential enforcement action. We disagree that such 

enforcement would be difficult. EPA has worked to ensure that each permit by rule contains 

clear, enforceable terms and conditions such that noncompliance can quickly be identified. In 

addition, if the reviewing authority believes in any instance that a permit by rule is not 

appropriate for a given source or sources in a particular area, then the permit by rule can be 

revoked for that specific source or set of sources. 

Comment 4.1.5: One commenter (0048) pointed out that the proposed rule did not 

include “specific regulatory language for any of the proposed permits by rule; this commenter 

(0048) argued that the lack of regulatory text prevented full and complete public review and 

comment on the Proposed Rule. The commenter (0048) asked that EPA provide regulatory text 

and a full explanation of the permit by rule approach before finalizing the rule. Another 

commenter (0038) asked that EPA consider tribal authority, as it related to land use decisions, 

during the development of any permit by rule. The commenter (0038) asserted that EPA should 

refrain from regulating in areas within the tribal jurisdiction to minimize jurisdictional conflicts.

Response: As discussed in Section VIII of the preamble to the proposed rule, rather than 

proposing separate, specific regulatory language for any of the proposed permits by rule, we

proposed a general approach to issuing permits by rule and to codify the requirements of the 

draft general permits for the specified source category. Therefore, EPA did effectively propose 

specific regulatory language for each proposed permit by rule. For the auto body repair and 

miscellaneous surface coating, gasoline dispensing, and petroleum dry cleaning source 

categories, we are codifying the requirements as contained in the draft general permit for that 

source category, including the changes that we have identified as appropriate based on our 

review of public comments on the general permits. 

4.2 Comments Specific to whether EPA should use Permit by Rule for GDFs

Comment 4.2.1: One commenter (0035) specifically opposed the use of a permit by rule 

for GDFs. The commenter (0035) stated that if a permit by rule is issued for GDFs, it must be 

limited to sources that are located at least 750 feet from a sensitive receptor. The commenter 
60

(0030) provided that for a facility with the highest throughput specified in the draft general 

permit (8,000,000 gals/yr) in a nonattainment area, the cancer risk likely to be present at this 

distance would be between 25.98 in a million (best case) and 50.11 in a million (worst case). The 

commenter suggested health-protective distances (to reduce risk to one in a million) of 490 feet 

(best case) and 670 feet (worst case). The commenter (0035) specified that these limitations are 

necessary because a GDF permitted on Indian land could be exposing sensitive receptors under 

state or local jurisdictions to unacceptable cancer risks.

Response: Due to the lack of an EPA analysis demonstrating the air quality benefits of 

requiring setbacks, we lack sufficient information to incorporate them in the final general permits 

for HMA plants and SQCS facilities. Therefore, the final general permits for HMA plants and 

SQCS facilities do not contain setback provisions. Nonetheless, the reviewing authority retains 

the discretion to deny the granting of source coverage under the general permits based on local 

air quality concerns. Because EPA has removed the setback requirement from the permits as 

finalized, this comment is rendered moot.

5.0 Proposal to change the policy in the Federal Indian Country Minor NSR Rule to allow 

the use of both general permits and permits by rule to create synthetic minor sources

5.1 General comments regarding eligibility of the draft general permits (i.e., 

whether the final general permits should be limited to use by true minor sources or 

whether any source is allowed to apply for coverage)

Comment 5.1.1: EPA received numerous comments (0025, 0030, 0031, 0032, 0033, 

0035, 0039, 0041, 0042, 0045, 0048, 0049-2, 0049-5, 0052) providing support for the use of 

general permits and/or permits by rule to create synthetic minor sources. These commenters 

(0030, 0031, 0052) agreed that major sources should be able to take advantage of the streamlined 

process for general permits or permits by rule. One commenter (0052) noted that major sources 

that are truly minor sources (e.g., if operations are seasonal or sporadic) would benefit from 

being classified as minor sources. Commenters (0025, 0030, 0031, 0033, 0049-4, 0052) noted 

that this process would provide an incentive for sources that would otherwise be considered a 

major source to voluntary reduce emissions. Two commenters (0030, 0041) provided that 

synthetic minor permits would result in lower emission levels than if the source must obtain a 

major source permit. For example, one commenter (0030) stated that the streamlined permits 

would allow sources to begin construction quickly, leading to reduced flaring of natural gas at 

well sites and reduced trucking of oil. Another commenter (0038) stated that due to the number 

of sources that will be covered under the new rules, these general permits will satisfy the air 

quality standards set by the NSR Program. 

Response: EPA has considered the comments received on the proposed rule and is 

allowing for the use of general permits to create synthetic minor sources. However, we are not 

finalizing the use of a permit by rule for synthetic minor facilities. We note that many sources 

that would qualify as synthetic minor sources have the potential to emit pollutants above the 

major source thresholds in the absence of enforceable restrictions, but in many cases, the 

sources’ actual emissions remain well below these thresholds even without the restrictions. 

Additionally, for sources that currently emit above major source threshold(s), we anticipate that 
61

providing a pre-defined synthetic minor permit may provide the facilities with a degree of 

regulatory certainty and encourage the facility to voluntarily reduce emissions to qualify for 

minor source status. This provides the opportunity for sources that would be major sources to 

become minor sources, which provides a further protective effect on air quality. We have 

decided to allow the use of general permits to create synthetic minor sources because it provides 

for streamlining of the permit process (by providing a pre-defined set of conditions and 

limitations), but allows for greater scrutiny in the review of the permit application by the 

reviewing authority. This level of scrutiny helps to ensure that the coverage provided by the 

general permit is appropriate and protects the air quality in Indian county. The reviewing 

authority would be able to confirm through review of the application that it is likely that the 

source will meet the throughput limitations and emissions control requirements in the general 

permit and that doing so would effectively limit the source’s PTE to below the major source 

threshold(s).

The final general permits for both HMA plants and SQCS facilities are written for use by 

both true minor sources and sources wishing to become synthetic minor sources. The permits 

contain a single set of requirements that apply to both true minor source and sources wishing to 

become synthetic minor sources and include a margin of safety between the permitted 

throughput limit and the major source threshold(s). The limits in the permits are both legally 

enforceable and enforceable as a practical matter. According to EPA guidance, for emission 

limits in a permit to be practically enforceable, the permit provisions must specify: (1) a 

technically-accurate limitation and the portions of the source subject to the limitation; (2) the 

time period for the limitation; and (3) the method to determine compliance, including appropriate 

monitoring, record keeping, and reporting. The permits contain these provisions. In addition, the 

control technology determinations proposed are contained in the final general permits. They 

cover a myriad of emission points at sources in these categories, including engines, mixers, 

dryers, and heaters.

The throughput limits are set with an adequate margin between the relevant major source 

threshold(s) and the permit limit to account for uncertainties of measurement, emissions from 

unpermitted activities, variability in emission rates, and excess emissions during startup, 

shutdown, or malfunction. In setting the throughput limits, relevant factors have included the 

certainty of the compliance method, emission rates and the likelihood of unaccounted emissions.

Because permits by rule do not provide for the same level of review and scrutiny by the 

reviewing authority, we are not finalizing the use of permits by rule to establish synthetic minor 

sources for the other three categories in the proposal. They also do not provide the same level of 

public participation. We believe that this approach fairly considers both the need to protect air 

quality and the need to develop an efficient approach for application, review, and issuance of 

minor source permits.

Comment 5.1.2: Several commenters (0041, 0042, 0048, 0049-5) expressed that the use 

of general permits to establish federally enforceable emissions limits will ensure that emissions 

from synthetic minor sources are appropriately restricted. Several commenters (0030, 0039, 

0041, 0042) contended that general permits can be used to set effective limits on PTE for 
62

synthetic minor sources where equipment and operations do not significantly vary from source to 

source, at a significant efficiency savings for both operators and EPA. Some commenters (0041, 

0042, 0048, 0049-5) asserted that the use of general permits for synthetic minor sources will 

pose no regulatory risk that would not also be present with a source-specific permit, as true and 

synthetic minor sources pose no significant difference to air quality when emissions are limited 

(0030, 0039). Other commenters (0033, 0045, 0052) affirmed that these emissions reductions 

would lead to improved health and welfare in Indian country. One commenter (0025) requested 

that EPA provide more discussion regarding the technical process of developing a general permit 

to authorize a source up to the major source threshold. The commenter (0025) asked how EPA 

plans to address compliance with the NAAQS (e.g., if an analysis would be performed during the 

development of the general permit), specifically for the one hour and annual standards for NOx. 

One commenter (0030) recommended that the program be structured to allow federallyenforceable limits to be established during the application phase, using either a self-certification 

process and/or a response letter confirming authorization. Another commenter (0049-4) stated 

that EPA did not provide enough information in the proposed rule on the use of general permits 

or permits by rule for synthetic minors.

Response: EPA agrees with the comment that the use of general permits to establish 

federally enforceable emissions limits on PTE will ensure that emissions from synthetic minor 

sources are appropriately restricted. We agree with commenters that, if appropriately restricted 

and monitored, synthetic minor sources covered by a general permit would not pose a regulatory 

risk and would have emissions similar to sources subject to a source-specific permit. We also 

agree that the use of a general permit to establish synthetic minor sources could reduce emissions 

from facilities that would otherwise be major sources. The use of general permits to create 

synthetic minor sources could actually result in reductions in emissions beyond those achieved 

through a source-specific permit where, as here, the general permits ensure that there is a 

reasonable margin of safety between the emissions authorized by the permit and the major source 

threshold(s) since a source-specific synthetic minor source permit only needs to limit emissions 

to below the major source threshold(s) without any margin of safety. As such, we are allowing 

for the use of general permits to create synthetic minor sources. In order to develop general

permits that would ensure that an otherwise major source would become a synthetic minor 

source, we have taken into consideration whether more stringent emission limits, monitoring, 

recordkeeping and reporting requirements are necessary for synthetic minor sources. We have 

made some alterations to the provisions in the final permits to accommodate synthetic minor 

sources. Specifically, we have revised the throughput limits and fuel use limits in the HMA and 

SQCS general permits. The revised limits are set at levels intended to keep the sources’

emissions below the NSR major source thresholds, with an adequate margin to account for other 

pollutants emitted by the source. This margin accounts for uncertainties of measurement, 

emissions from unpermitted activities, variability in emission rates, and excess emissions during 

startup, shutdown, or malfunction. Furthermore, the use of throughput and fuel use limitations to 

establish synthetic minor sources ensures compliance as this information is readily available and 

easily monitored, lessening the likelihood for an exceedance of the permit limits. The 

monitoring, recordkeeping, and reporting requirements remain the same for true minor sources 

and synthetic minor sources; however, the revised throughput and fuel use limits ensure that 

emissions from sources that would otherwise be major are appropriately restricted and that 

emissions remain below major source thresholds with a reasonable margin of safety. 
63

In the application process, permittees would apply to use a general permit to establish a

synthetic minor source by agreeing to be bound by the federally-enforceable limits established in 

the general permit. EPA’s approval of the request for coverage will then put the federallyenforceable limits in effect for the source. We disagree with the comment that we did not provide 

enough information in the proposed rule on the use of general permits or permits by rule to 

establish synthetic minor sources; EPA provided a discussion of the synthetic minor 

requirements in the preamble to the proposed rule and provided a detailed request for comments 

in Section XI of the preamble to the proposed rule. We have received multiple comments 

affirming and responding to this request; therefore, we feel that these requirements were 

sufficiently presented in the proposed rule. We note that the commenter did not specify the type 

of information sought that was apparently lacking from the proposal.

Comment 5.1.3: Several commenters (0041, 0042, 0048) reiterated that case-by-case 

permitting determinations for source types where equipment and operations do not differ 

significantly from source to source is unnecessary. Some commenters (0030) pointed to state 

programs (e.g., in Oklahoma and Texas) that have used general permits and permits by rule to 

authorize synthetic minor sources. One commenter (0030) argued that these permitting programs 

afford permittees consistency, predictability, and efficiency while reducing the administrative 

burden on the permitting authority. The commenter (0030) provided that a standardized set of 

permit conditions allows permittees of similar sites to operate on a level playing field. Another 

commenter (0037) compared the use of general permits or permits by rule to the use of SIPs, 

federal emission standards, or individual permits that establish federally enforceable emission 

limits. The commenter (0037) noted that because a general permit or permit by rule would be 

enforced by the EPA Administrator, it will qualify as legally and practicably enforceable 

regardless of whether the facility is a true or synthetic minor source. Two commenters (0032, 

0043) requested that the true minor and synthetic minor permits should come from the same 

program to streamline the process. Three commenters (0032, 0037, 0043) pointed to the FBIR 

FIP as an example of the successful use of general permits or permits by rule for synthetic minor 

permits that EPA should consider going forward. One of these commenters (0037) noted that the 

requirements of the FBIR FIP were consistent with the requirements of the North Dakota SIP; 

thus, providing a level playing field. One commenter (0038) advocated that EPA not delay 

issuance of a general permit or permit by rule for synthetic minor sources; the commenter asked 

that if the requirements to qualify as a synthetic minor source would delay completion of the 

permit, EPA should develop a separate permit by rule or general permit governing sources 

seeking synthetic minor status.

Response: EPA agrees with commenters that the use of general permits to create 

synthetic minor sources provides consistency, predictability, and efficiency, and reduces the 

administrative burden on the permitting authority. We have decided to allow the use of general 

permits to create synthetic minor sources because it provides for streamlining of the permit 

process (by providing a pre-defined set of conditions and limitations), while allowing for an 

appropriate level of scrutiny in the review of the permit application by the reviewing authority. 

This level of scrutiny helps to ensure that the coverage provided by the general permit is 

appropriate and protects the air quality in Indian county. The reviewing authority will be able to 
64

confirm through review of the application that it is likely that the source will meet the throughput 

limitations and emissions control requirements in the general permit. Because permits by rule do 

not provide for the same level of review and scrutiny by the reviewing authority, we are not 

finalizing the use of permits by rule to establish synthetic minor sources. As noted by 

commenters, the general permit will be enforced by the Administrator and will be legally and 

practically enforceable for both synthetic and true minor sources. We believe that this approach 

fairly considers both the need to protect air quality and the need to develop an efficient approach 

for application, review, and issuance of minor source permits, and will provide a level playing 

field for synthetic minor sources. 

We are finalizing general permits that may be used by either true minor or synthetic 

minor sources in this final rulemaking and are not delaying the general permits. We do not 

believe it is necessary to establish a separate general permit for synthetic minor sources. We have 

established provisions in the final general permits to accommodate the creation of synthetic 

minor sources, ensuring that these sources are appropriately monitored and that emissions remain 

below major source thresholds (see response to comment 5.1.2 of this document for additional 

information). In this process we consulted regulations in neighboring states to attempt to create a 

level playing field for facilities located in Indian country. However, we have balanced the need 

to provide a level regulatory playing field with the need to protect the NAAQS. Therefore, in 

some cases, a greater level of control may be required to protect air quality. For example, we 

have drawn provisions for facilities located in nonattainment areas from regulatory programs in 

Southern California, where the majority of Indian country nonattainment areas are located. We 

recognize that in some cases, serious, severe, or extreme nonattainment areas outside of 

California may be located near facilities in the same nonattainment area that comply with 

requirements of a different stringency. We anticipate that this will affect a small portion of the 

facilities located in these nonattainment areas. Furthermore, we feel that the provisions we have 

selected are necessary for protection of the NAAQS in these areas, and are appropriate for 

inclusion in the final permits.

Comment 5.1.4: Several commenters (0031, 0033, 0040, 0045, 0052) provided support 

for the use of general permits to create synthetic minor sources, but opposed the use of a permit 

by rule for this purpose. One commenter (0040) indicated that permits by rule are more 

appropriate for less-complex, non-portable, true minor source categories. Other commenters 

(0025, 0031, 0033, 0045, 0052) expressed concerns about using the permits by rule approach for 

synthetic minor sources without providing the public an opportunity to comment on proposed 

permit applications. One commenter (0031) stated that if EPA is willing to amend its approach to 

permits by rule by allowing for a notice and comment period, the use of permits by rule for 

synthetic minor source determinations could be justified. Another commenter (0025) noted that 

because permits by rule are codified in a regulation, they are more difficult to revise or amend. 

Several commenters (0038, 0041, 0042, 0048) advocated for the use of a permit by rule 

for synthetic minor sources. Two commenters (0042, 0048) asserted that no additional risk of 

noncompliance would result from the use of permits by rule for synthetic minor sources. Another 

commenter (0038) agreed that issues or concerns related to specific major sources can be 

addressed in the permit by rule or general permit for those particular sources. The commenter 
65

(0038) further urged EPA to consider using the streamlined permits for synthetic minor sources 

on a case-by-case basis. Another commenter (0035) stated that the permit by rule concept has 

been used in a Title V program, under which sources that might have been major based on PTE 

became synthetic minors by complying with specific limits set out in regional air rules. 

Response: EPA has considered the concerns raised by commenters and has determined 

that a permit by rule approach to establishing synthetic minor sources is not appropriate. We are 

only allowing the use of general permits to create synthetic minor sources, which allows for 

greater scrutiny in the review of the permit application by the reviewing authority. This level of 

review helps to ensure that a particular source that would otherwise be major is likely to be able 

to comply with the throughput limits and emissions control requirements in the general permit, 

thereby ensuring that the source’s emissions will be below the major source threshold(s). We 

believe that this level of review is necessary for sources with a PTE that would otherwise be 

above the major source threshold(s). Because permits by rule do not provide for the same level 

of review regarding coverage, we are not finalizing the use of permits by rule to create synthetic 

minor sources. 

5.2 Comments regarding finalizing both permitting mechanisms for three source 

categories (i.e., auto body repair and miscellaneous surface coating operations; 

GDFs; and petroleum dry cleaning facilities) 

Comment 5.2.1: One commenter (0040) specifically provided support for the 

establishment of both permitting mechanisms for the auto body repair and miscellaneous surface 

coating operations, GDF, and petroleum dry cleaning source categories for both true and 

synthetic minor sources. The commenter (0040) did not support the establishment of a permit by 

rule for the HMA and SQCS source categories. 

Response: EPA thanks the commenter for their support. EPA did not propose, and is not 

establishing, permits by rule for the HMA or SQCS source categories. We proposed general 

permits and permits by rule in the alternative for the autobody repair and miscellaneous surface 

coating operations, GDF and petroleum dry cleaning facilities source categories and are 

finalizing permits by rule for those source categories in lieu of general permits. We do not 

believe that there is additional value in providing for the use of both permitting mechanisms.

Comment 5.2.2: Several commenters (0041, 0042, 0048) opposed EPA’s proposed 

“hybrid approach” to establishing permits by rule for true minor sources and general permits for 

synthetic minor sources. Two commenters (0041, 0042) stated that while EPA appears to be 

applying this approach based on source category, reserving permits by rule for less complex 

sources, the proposed rule did not provide a compelling reason for adopting this approach. Two 

commenters (0042, 0048) pointed out that, for three of the five source categories proposed, EPA 

is proposing to codify the requirements of the draft general permits for the permits by rule for the 

specified source categories. Several commenters (0041, 0042, 0048) indicated that this approach 

suggests that permits by rule would work equally as well for any source category as a general 

permit, and that EPA should accordingly treat true and synthetic minor sources for all source 

categories in the same manner. One commenter (0049-2) disagreed that all synthetic minor 
66

sources warrant use of a general permit as opposed to a permit by rule, and requested that EPA 

evaluate this on a case-by-case basis. Another commenter (0035) expressed support for the 

hybrid approach in which a source would establish itself as a synthetic minor using permit by 

rule, and then obtain an individual minor source permit or apply under a general permit.

Response: EPA is not adopting a hybrid approach. We do not anticipate that the need for 

a general permit would be an issue for the three source categories for which we are establishing 

permits by rule (auto body repair and miscellaneous surface coating operations, GDFs, and 

petroleum dry cleaning facilities). These sources are generally true minor sources with the most 

straightforward operation, the least variation in equipment and configurations, largely involve 

one regulated NSR pollutant (i.e., VOCs), and have the simplest compliance requirements. Given 

the simplicity and lower emissions of these sources, we do not anticipate that these sources 

would require a synthetic minor permit or that a hybrid approach would benefit these sources. 

5.3 Comments regarding specific regulatory changes to the draft permits for each 

source category to address synthetic minor sources

Comment 5.3.1: Two commenters (0031, 0052) urged that EPA make regulatory 

changes to be more explicit and to inhibit future litigation concerning the issuance of general 

permits or permits by rule for synthetic minor sources. Three commenters (0031, 0047, 0052) 

stated that EPA must include more stringent monitoring, recordkeeping, and reporting for 

synthetic minor sources. One commenter (0047) stated that sources who opt for a synthetic 

minor permit and opt to avoid major source thresholds need to accept additional requirements to 

prove and report that they are below those thresholds. Three commenters (0031, 0047, 0052) 

supported EPA’s suggestion to issue synthetic minor permits only to sources with actual 

emissions at a margin below the major source thresholds (e.g., 25-50% below the major source 

threshold), although one commenter (0047) stated that the exact percentage requires more 

analysis and discussion. The commenters (0031, 0052) stated that this approach should be 

adopted to assure that synthetic minor sources do not inadvertently convert themselves to major 

sources. One commenter (0033) expressed the concern that allowing higher surrogate emission 

limits may result in permitting of sources as synthetic minors when they are truly major sources; 

the commenter stated that although such sources may initially meet the federally enforceable 

emission limitations, they may struggle to continue to do so.

Four commenters (0033, 0041, 0042, 0048 ) stated that EPA should not require more 

stringent monitoring, recordkeeping, or reporting requirements for synthetic minor sources using 

a general permit or permit by rule. Several commenters (0030, 0033, 0041, 0042, 0048) stated 

that EPA should not impose additional requirements or limitations on the use of general permits 

or permits by rule to establish synthetic minor sources, including surrogate annual allowable 

emission limitations that are scaled up to reflect a value closer to the major source threshold. 

Two commenters (0041, 0042) stated that additional or more stringent requirements or 

limitations are unnecessary. These commenters (0041, 0042) argued that compliance with permit 

limits will be required regardless of whether a source is a true or synthetic minor source; one 

commenter (0030) asserted that that there is no difference in emission impacts between true and 

synthetic minor sources if actual emissions are the same. One commenter (0033) stated that if the 

current surrogate annual allowable emission limitations are met, there is no need for additional 
67

requirements. Commenters (0041, 0042, 0048) provided that requirements applicable to true 

minor sources are more than adequate to ensure compliance by synthetic sources, and that these 

sources should be treated the same for purposes of general permit applicability. Another 

commenter (0030) noted that site-specific federally enforceable limits can be established through 

a certification process to ensure compliance. Three commenters (0041, 0042, 0048) requested 

that the general permits, implementation documents, and tools contained in the Proposed Rule, 

which are currently drafted in a manner intended to limit applicability to true minor sources, be 

amended to allow both true and synthetic minor sources to apply for coverage.

Response: EPA has considered the concerns raised by commenters and is finalizing 

general permits for SQCS facilities and HMA plants that may be used either by true minor 

sources or to establish synthetic minor sources. We do not believe it is necessary to establish a 

separate general permit for synthetic minor sources. Additionally, we are not setting a 

requirement that only sources with actual emissions at a margin below the major source 

thresholds can use general permits to establish a synthetic minor source. We have established 

provisions in the final general permits, implementation documents, and tools to accommodate the 

establishment of synthetic minor sources, ensuring that these sources are appropriately monitored 

and that emissions remain below major source thresholds (see response to comment 5.1.2 of this 

document for additional information). Specifically, we have revised the throughput and fuel use 

limits in the HMA and SQCS general permits. The revised limits are set at levels intended to 

keep the source’s emissions below the NSR major source thresholds, with an adequate margin to 

account for other pollutants emitted by the source. The monitoring, recordkeeping, and reporting 

requirements remain the same for true minor sources and synthetic minor sources; however, the 

revised throughput and fuel use limits ensure that emissions from sources that would otherwise 

be major remain below major source thresholds. We have also required sources to identify 

whether they are using the general permit to establish a synthetic minor source in the 

implementation documents. In the application process, permittees wanting to use a general 

permit to establish a synthetic minor source would only be able to do so if they agree to the 

federally-enforceable limits established in the general permit. EPA’s approval for the request for 

coverage will then apply the federally-enforceable limits to the source. With these federallyenforceable limits, including throughput and emission limitations, otherwise major sources 

covered by a general permit would have actual emissions similar to true minor sources and 

would act and operate as true minor sources covered by the same permit. As long as the 

federally-enforceable limits in the permit are followed by the source, facilities would remain 

below major source thresholds and would not inadvertently convert themselves to major sources. 

As described in our response to comment 3.2.1.14 above, the limits in the final SQCS and HMA 

general permits are set such that there is a sufficient margin between allowable emissions and the 

major source thresholds to ensure that the limits are enforceable as a practical matter for 

purposes of establishing synthetic minor sources.

5.4 Comments related to the use of more than one general permit and/or permit by 

rule for a source at a particular location 

Comment 5.4.1: EPA received several comments on whether it is appropriate to allow 

the use of more than one general permit and/or permit by rule for a single source. Several 

commenters (0030, 0040, 0037, 0042, 0048) supported the use of more than one general permit 

or permit by rule for a single source. Three commenters (0030, 0037, 0040) specifically 
68

supported allowing more than one general permit for facilities with more than one source 

category. Some commenters (0030, 0037, 0052) provided examples of situations in which a 

facility may require more than one permit due to different types of equipment or collocated 

processes. One commenter (0030) asserted that co-located sources should not be precluded from 

using general permits if site-wide emissions remain below major source thresholds. Another 

commenter (0037) stated that facilities containing equipment covered under different general 

permits should retain the ability to establish synthetic minor sources. The same commenter 

(0037) stated that allowing a source to qualify for coverage under a general permit or permit by 

rule based on emission reductions obtained pursuant to a different general permit or permit by 

rule would be consistent with EPA's policy for determining whether facilities are major sources 

or area sources for purposes of MACT. 

Other commenters (0025, 0031, 0047) expressed concerns with allowing a synthetic 

minor source to acquire coverage under more than one general permit or permit by rule. One 

commenter (0031) recommended that only one general permit or permit by rule be used for a 

synthetic minor source. Two commenters (0025, 0047) explained that allowing more than one 

general permit could potentially allow a source to incrementally increase emissions and avoid 

major NSR preconstruction review and major source requirements. Other commenters (0042) 

asserted there is no basis in the rulemaking record for assuming that use of more than one 

general permit or permit by rule might allow a source to increase emissions beyond regulatory 

requirements. The commenter (0042) argued that there is therefore no reason to limit the use of 

more than one general permit or permit by rule by a source. Two commenters (0042, 0048) 

stated that the process for applying for coverage will provide EPA and the public with all the 

information necessary to determine whether coverage is warranted. One commenter (0025) 

expressed that allowing a source to use more than one general permit or permit by rule to 

authorize emissions from a single source could pose an issue from a regulatory compliance 

standpoint. The commenter (0025) stated that during an air quality compliance evaluation, an 

inspector would have to assess and document emissions associated with multiple general permits 

and permits by rule.

One commenter (0025) asked how EPA planned to prevent "stacking" of authorizations, 

which may circumvent the general permit or site-specific NSR authorization process or PSD 

permitting requirements. The commenter (0025) contended that a permit by rule for larger, more 

complex, or synthetic minor sources would not provide an adequate mechanism for a reviewing 

authority to request an AQIA and accept or deny an authorization based on the results. Several 

commenters (0042, 0047, 0048, 0052) suggested that the general permit or permit by rule include 

a requirement that all total emissions at the stationary source be listed and compared to the major 

source thresholds. One commenter (0047) stated that because synthetic minor sources have the 

potential to create major source threshold emissions, this and possibly additional requirements 

should be included to prove the source is in compliance. Another commenter (0031) stated that 

any recordkeeping system by which synthetic minor sources are required to track simultaneously 

the emissions of all their permits would not be failsafe and that some sources could inadvertently 

surpass a major source threshold. 

Response: EPA is finalizing its proposed policy with respect to a source gaining 

coverage under multiple general permits or permits by rule with modifications. Under the 

proposed policy, to qualify for more than one general permit or permit by rule, a source must 
69

sum the PTE of its new, modified and existing units. If that sum is below major source 

thresholds, then the source is a true minor source and is eligible for a general permit/permit by 

rule, provided it can meet the permit’s throughput limits and other terms and conditions. EPA’s 

final policy for true minor sources is as proposed. For synthetic minor sources, EPA’s final 

policy will also allow the same steps for synthetic minor sources seeking a general permit. In 

both cases, the Agency reserves the ability to deny a general permit for sources seeking to 

combine new emissions with existing emissions if the reviewing authority has concerns about 

local air quality conditions.

In addition, we have modified the general permit applications for HMA plants and stone, 

quarrying, crushing and screening facilities so as to allow those source types to co-locate, if 

desired. If the applicant is seeking such co-location, the permit will contain throughput limits set 

low enough to ensure the source’s emissions are below the level that would trigger the 

requirement to receive a Title V permit. 

6.0 Comments related to additional source categories for which EPA is planning to propose 

general permits and/or permits by rule in the future

6.1 General support/opposition for other source categories

Comment 6.1.1: EPA received several comments in support of the use of general permits 

and/or permits by rule for minor sources in the additional source categories for which EPA is 

planning to propose a streamlined permitting approach. Two commenters (0033, 0040) supported 

the use of general permits or permits by rule for engines (spark and compression ignition), 

concrete batch plants, saw mills, boilers, and landfills. One commenter (0040) supported the use 

of permits by rule for printing operations (including solvent cleaning/degreasing). The same 

commenter (0040) supported only site-specific permits for landfill operations. Another 

commenter (0047) stated that some tribes may have operational landfills that require a general 

permit, but the commenter did not support the use of permits by rule for these operations. EPA 

received one comment (0035) in opposition of the use of general permits or permits by rule for 

solid and/or liquid waste processing, storage and treatment facilities, landfills or oil and gas 

production facilities. The commenter (0035) stated that solid and/or liquid waste processing, 

storage and treatment facilities, landfills, and oil and gas production can be a significant source 

of odors, toxic releases, or volatile organic emissions and should not be handled through a 

general permitting approach. One commenter (0040) supported general permits for other source 

categories, provided that tribes will have an opportunity to comment on what source categories 

can qualify for a synthetic minor general permit.

Response: EPA thanks the commenters for their input. Subsequent to issuing the propose 

rule herein, EPA issued for comment a combination of draft general permits and a proposed 

permit by rule for six source categories: spark ignition engines, compression ignition engines, 

saw mills, graphic arts and printing operations, boilers, and concrete batch plants (79 FR 41846, 

July 17, 2014). Comments regarding these sources received in response to the January proposed 

rule will be considered in EPA’s review of comments on that proposed rule. Commenters may 

comment on the use of general permits and permits by rule for these source categories, including 

whether to allow the use of general permits or permits by rule for synthetic minor sources in 
70

these source categories, during the public comment period for the July 17, 2014 proposed rule. 

EPA has not issued a draft general permit or proposed permit by rule for landfills. A review of 

the available data for landfills in Indian country indicates that there are a limited number of these 

sources in Indian country and we do not expect this to change. As a result, we do not think that 

the establishment of a general permit or permit by rule for this source category is warranted. 

Commenters have not presented any new data for landfills that would warrant the development 

of a general permit or permit by rule for these sources at this time. 

Regarding oil and natural gas facilities, the Administrator signed an Advance Notice of 

Proposed Rulemaking (ANPR) on May 22, 2014 to solicit input on potential new source 

permitting approaches to address emissions from proposed new and modified oil and natural gas 

production activities; see http://www.epa.gov/air/tribal/tribalnsr.html (79 FR 32502). The ANPR 

seeks broad feedback on the most effective and efficient mechanism for permitting oil and 

natural gas minor sources in Indian country. It lays out three options: a general permit, a permit 

by rule, or a FIP. EPA requested comment on several issues, including what control requirements 

would be appropriate for new and modified oil and natural gas production sources, and which 

specific oil and gas production activities should be controlled. In addition, the agency sought 

comment on pollutants that might warrant regulation. As a separate issue, the agency sought

comment on whether a FIP should be used to establish requirements for existing oil and gas 

production sources in Indian country, if the agency determines a FIP is the best approach for 

permitting new and modified emission sources. EPA will consider comments received in 

response to the ANPR, as well as any comments concerning the oil and natural gas production 

category received in response to the January proposed rule, in developing any future proposed 

rule for that source category.

6.2 Comments supporting the use of general permits or permits by rule for oil and 

gas sources 

Comment 6.2.1: EPA received numerous comments (0025, 0029, 0032, 0033, 0037, 

0038, 0040, 0043) supporting the development of general permits and/or permits by rule for the 

oil and gas source category. Several of these commenters (0025, 0037, 0043) noted that the use 

of either general permits or permits by rule offers operators a level of certainty regarding 

permitting requirements and is more conducive to the needs of the oil and gas sector than sitespecific permitting, due to the nature of oil and gas exploration and the similarities in the types 

and performance of process equipment used. Another commenter (0037) stated that the use of 

general permits and permits by rule will reduce emissions and decrease regulatory burdens for 

sources and regulators. Three commenters (0037, 0046, 0049-2) also expressed support for the 

use of general permits or permits by rule for synthetic minor sources in the oil and gas source 

category. One commenter (0037) maintained that the emission limits established would be 

effective for synthetic minor sources because the facilities and emission controls do not 

significantly vary from site to site. The commenter (0037) requested that general permits or 

permits by rule should enable oil and gas facilities to qualify as synthetic minor sources of all 

pollutants, including criteria pollutants, HAP, and greenhouse gases. Another commenter (0025) 

suggested a tiered approach for authorization of general permits for oil and gas sources to define 

emission thresholds and establish when an AQIA is required. At least two commenters (0037, 

0039) requested that they participate in the development of the oil and gas permits. One 
71

commenter (0032) reiterated that EPA is required to consult with the tribes in the development of 

a permitting mechanism and should do so to remain aware of how the permitting process will 

impact development on tribal lands.

Response: As indicated above, the Administrator signed an ANPR on May 22, 2014 to 

solicit input on approaches for permitting oil and natural gas production minor sources in Indian 

country. EPA will consider these comments in any action it takes as a follow up to the ANPR. 

See response to Comment 6.1.1 of this document.

6.3 Comments supporting a permit by rule for oil and gas sources

Comment 6.3.1: Multiple commenters (0029, 0032, 0037, 0038, 0043, 0044, 0046, 

0049-2) requested that EPA use permits by rule in place of general permits, particularly for true 

minor oil and gas sources, where feasible. One commenter (0049-4) requested clarification of 

whether the oil and gas industry would qualify for permits by rule. Commenters (0038, 0049-2) 

recognized that oil and gas sources are prevalent in Indian country and that a streamlined 

permitting process is necessary. At least two commenters (0038, 0043) stressed that due to the 

large number of sources to be permitted, a streamlined permit by rule approach for oil and gas 

sources would simplify the permit issuance process and create an efficient and predictable 

process for both industry and EPA. Other commenters (0038, 0039, 0049-2) emphasized that the 

types of sources and anticipated controls warrant development of a permit by rule, as opposed to 

a general permit, with respect to oil and gas production sources. One commenter (0049-2) 

contended that all emissions sources in the oil and gas industry should be covered by the 

streamlined approach so that there are no overlapping areas requiring an individual permit for 

these sources.

Four commenters (0038, 0046, 0049-2, 0049-4) noted that the streamlined permit by rule 

approach would require fewer resources but not risk impacts to air quality. Several commenters 

(0043, 0044, 0046, 0049-2, 0049-5) acknowledged similar permit by rule programs in other 

states (e.g., Texas, Oklahoma, Colorado, Wyoming) that they assert protect the environment, 

allow industry operational flexibility, and reduce the burden on the permitting authorities. 

Another commenter (0049-4) suggested the existing FIP for the FBIR should serve as a model 

for the permitting program. One commenter (0039) provided that some of these states do not 

require submission of documentation, but require constant tracking of emissions and consistent 

recordkeeping to ensure that the permit by rule terms and conditions are being met. Two 

commenters (0039, 0049-2) stated that this approach would allow operators to focus on reducing 

emissions through engineering efforts, rather than filling out and filing of paperwork. Two 

commenters (0038, 0046) noted that the public would have an opportunity to review the permit 

by rule requirements during the rulemaking process. 

Many commenters (0029, 0032, 0039, 0048) stated that the use of general permits will 

lead to delays in oil and gas operations. Some commenters (0029, 0032, 0049-1, 0049-4) stated 

that the draft general permits would not work for oil and gas because they impose preconstruction review. Two commenters (0049-1, 0049-5) emphasized that post-construction 

permitting is necessary for oil and gas because facilities are unable to predict production. Three 

commenters (0029, 0032, 0049-4) noted that industry needs flexibility in planning drilling 

schedules (e.g., examining leaseholds and choosing the most favorable development areas) as 
72

well as predictability and certainty in the permitting process. Another commenter (0038) noted 

that because the general permit requires companies to submit applications for coverage over 3 

months in advance of construction, it requires significant planning and budgeting. One 

commenter (0046) argued that there is no benefit to pre-construction review because initial 

production rates may differ tremendously from basin to basin and even within the same basin, 

requiring operators to guess at production rates. The commenter (0046) stated that oil and gas 

operations have a 20-70% decline in emissions associated with production declines in the first 

year of operation, which should be accounted for in the PTE calculation. The commenter (0046) 

argued that if an operator estimated emissions too low, they would be at risk of noncompliance, 

but if an operator guessed too high, operators would need to revise and submit Request for 

Coverage applications. The commenter (0046) stated that for these reasons, a post-construction 

process is more reasonable. Several commenters (0029, 0032, 0046) argued that preconstruction 

review hampers development because it results in uncertainty regarding when emission source 

permits will be issued and drives industry away. Other commenters (0043, 0048, 0049-2, 0049-

4) asserted that due to the large number of applicants expected, EPA could become quickly 

overwhelmed in processing the thousands of general permit applications that would be required, 

significantly delaying the approval of applications and subsequent development. One of these 

commenters (0046) asserted that EPA does not have the resources to process the large number of 

applications it will receive for oil and gas development. Two commenters (0043, 0048) called 

attention to delays in EPA’s processing of permits on the FBIR in North Dakota. Several 

commenters (0039, 0043, 0046, 0048, 0049-4) noted that a permit by rule approach would 

remove the potential for this delay, significantly reduce the burden on the agency, and result in a 

more efficient permitting process. One commenter (0039) attested that in the permit by rule 

approach provides certainty that the pressure associated with permit application deadlines and 

associated approvals is alleviated and that drilling operations can continue without the possibility 

of a potential delay.

At least three commenters (0029, 0032, 0049-4) expressed concern that many areas of 

Indian country are actively engaged in new energy development and that the use of general 

permits would encourage industry to move off-reservation. These commenters (0029, 0032) 

stated that some companies may cease development on Indian country lands due to the 

uncertainty regarding EPA’s permitting for minor sources in the oil and gas sector. Other 

commenters (0029, 0032) pointed out that the use of general permits may impact the ability to 

expand operations and decrease the revenue that tribal governments earn from tribal lands. Two 

commenters (0029, 0032) provided estimates of economic losses due to lost royalties, jobs, and 

tax income. Two commenters (0029, 0049-4) asserted that a permit by rule approach would keep 

investments on tribal lands and allow tribes to receive the full benefit of their natural resources. 

These commenters (0029, 0032) also stated that current delays in the federal oil and gas permit 

approval process are already causing energy companies to limit their activities on reservation 

lands. One commenter (0032) declared that once a source diverts capital away from reservation 

lands, it may be years before the source reconsider tribal lands.

Four commenters (0029, 0048, 0049-4, 0049-5) expressed concern that the general permit 

relies on throughput limits and other "surrogate" emission limitations that restrict flexibility. 

Two commenters (0048, 0049-4) stated that the draft general permits incorporate throughput and 

production limits, but that a well's production cannot be predicted in advance of bringing it on 
73

line. These commenters (0029, 0049-4, 0049-5) also argued that the general permit imposes 

“unnecessarily stringent” pollution control requirements and burdensome recordkeeping and 

reporting requirements.

Response: The Administrator signed an ANPR on May 22, 2014 to solicit input on 

approaches for permitting oil and natural gas production minor sources in Indian country. EPA 

will consider these comments in any action it takes as a follow up to the ANPR. See response to 

Comment 6.1.1 of this document.

6.4 Concerns regarding specific conditions for oil and gas general permits

Comment 6.4.1: Several commenters (0029, 0030, 0032, 0038, 0046, 0048, 0049-1, 

0049-2, 0049-4, 0049-5) expressed concerns regarding the sources covered or specific conditions 

that may need to be considered in the development of an oil and gas general permit or permit by 

rule. Three commenters (0030, 0038, 0048) requested that EPA include all operations and 

associated equipment that would typically be used at an oil and gas site, including the midstream 

sector and natural gas gathering and processing, in the developed oil and gas general permit or 

permit by rule. One commenter (0030) noted that by using a streamlined permitting approach, 

EPA will reduce the amount of time required for gatherers to install the infrastructure to support 

production facilities. Another commenter (0038) explained that this would clarify the 

enforceability of the permit and ease tracking of emissions at a site for comparison to Title V and 

PSD applicable standards. The same commenter (0038) listed several process/equipment types 

that should be included in a permit by rule, including temporary flaring of associated gas, storage 

tanks and storage tank emissions control devices (if required by NSPS Subpart OOOO), 

dehydrators, truck load out, engines, and fugitive emissions. One commenter (0030) noted that 

the states of Oklahoma and Texas have developed streamlined permits that cover oil and gas 

sources including natural gas compressor stations, small gas plants, well sites, and tank batteries. 

Another commenter (0048) suggested that sources should include heater treaters, engines for 

compression and power generation, fugitive emissions, tanks, small gas plants, dehydrators, 

control devices such as flares and combustors, and vapor recovery units and vapor recovery 

towers. The same commenter (0048) specifically requested that EPA delay any action on the 

general permit for engines related to permitting engines at oil and gas facilities and include these 

provisions in the general permit for an oil and gas site. One commenter (0030) noted that a 

permit by rule for all of these sources would be relatively straightforward to develop, since the 

majority of equipment is already regulated under EPA’s existing NSPS and NESHAP rules.

Four commenters (0029, 0032, 0038, 0046, 0049-4) objected to the incorporation of 

throughput limits in an oil and gas general permit or permit by rule. These commenters (0029, 

0032, 0038, 0046, 0049-4) reiterated that oil and gas facilities are unable to predict well 

production, therefore, throughput limits would introduce significant uncertainty and cost. The 

commenters (0029, 0032, 0038, 0049-4) noted that oil and gas operators approaching a 

throughput limit would be required to restrict production in order to meet the permit limit. Two 

of these commenters (0029, 0032) argued that restricting production would have negative effect 

on a tribe’s ability to receive the financial benefit of its natural resources and would prove 

detrimental as tribes depend on revenues from oil and gas development. These same two 

commenters (0029, 0032) pointed out that the North Dakota regulations and the FBIR FIP do not 

contain throughput limits, but instead incorporate emissions limitations. One commenter (0046) 
74

stated that providing oil and gas production limitations would be a “one size fits all” approach 

that ignores the diversity in gas to oil ratios, production related emission factors, and decline 

rates between one basin and another. The commenter (0046) asserted that production limitations 

would be inappropriate for synthetic minor source, as well, unless the limitation is provided by 

the operator in the Request for Coverage. Another commenter (0038) considered EPA’s proposal 

to restrict sources from locating in severe and extreme ozone nonattainment areas and contended 

that this provision would not be appropriate for inclusion in any general permit for oil and gas 

sources.

Other commenters (0029, 0032) expressed concerns that the draft general permits appear 

to include provisions significantly more stringent than NSPS for the same source category. One

commenter (0032) stated that these stringent requirements appear to have been adopted with 

little or no analysis of whether such requirements are appropriate for minor sources. Two 

commenters (0029, 0032) expressed concern that this means EPA will incorporate requirements 

that are more strict than those in NSPS Subpart OOOO for true minor sources, such as such as 

requiring green completions for oil wells, requiring advance notice of plans to hydraulically 

fracture a well, or requiring reporting of materials used in fracturing a well. Several commenters 

(0030, 0046, 0048, 0049-1) requested that EPA consider existing NSPS and NESHAP standards 

and FIPs in the development of the oil and gas general permits and permits by rule. These 

commenters (0030, 0046) provided lists and examples of the existing regulations applicable to 

oil and gas equipment, including NSPS Subparts Dc, GG, KKK, LLL, IIII, JJJJ, KKKK, OOOO, 

ZZZZ; NESHAP Subparts HH and ZZZZ; flare requirements under 40 CFR part 60, and 

regulations under 40 CFR parts 49, 89, and 1048. One commenter (0049-1) stated that the 

current general permits did not provide exceptions for existing requirements and existing federal 

regulation or federal action, such as consent decrees. Two commenters (0046, 0049-5) expressed 

concern that a nationwide oil and gas general permit or permit by rule could include duplicative 

and contradictory requirements if EPA does not consider existing regulations. The commenters 

(0046, 0049-5) further argued that operators are likely to avoid the streamlined permits and file 

for individual permits if the existing regulations are not considered, which could place the 

burden back on to EPA. Another commenter (0030) stated that the general permitting program 

does not need to recreate the existing NSPS and NESHAP requirements, but could incorporate 

federally enforceable numeric emission limits for criteria and HAP that are requested by the 

permittee, in order to establish a source as a synthetic minor.

One commenter (0049-2) stated that EPA should be cautious about pulling concepts from 

existing general permits in developing the oil and gas general permit requirements. The 

commenter (0049-2) encouraged EPA to engage industry stakeholders and tribes to develop 

provisions for a permit by rule for oil and gas sources. Another commenter (0049-5) echoed this 

sentiment, and suggested that EPA consider that industry operators have worked closely with the 

State of Utah on developing a General Approval Order (GAO). The commenter (0049-5) 

suggested that if EPA wishes to use the GAO as a template for provisions in the minor source 

permits, it must engage with the operators to get appropriate feedback on concerns with the 

GAO.

Response: The Administrator signed an ANPR on May 22, 2014 to solicit input on 

approaches for permitting oil and natural gas production minor sources in Indian country. EPA 
75

will consider these comments in any action it takes as a follow up to the ANPR. See response to 

Comment 6.1.1 of this document.

7.0 Comments related to other proposed rule changes to the Federal Indian Country Minor 

NSR Rule

7.1 Comments related to adjusting the deadline by which minor sources for which a

general permit has been issue need to obtain a preconstruction permit and 

extending the permitting deadline for true minor sources within the oil and gas 

source category

Comment 7.1.1: EPA received two comments (0030, 0033) in support of the proposed 

amendments to §49.151(c)(1)(iii)(B) which clarify the date by which a source undertaking a 

minor modification must obtain a permit. The commenters supported the removal of the 

requirement for an owner/operator to obtain a permit within six months after the general permit 

for a source category is published, noting that this change is necessary because the proposed rule 

will not be finalized more than six months prior to September 2, 2014. 

Response: The EPA Administrator signed final amendments to the Federal Indian 

Country Minor NSR Rule on May 22, 2014. This final rule amended §49.151(c)(1)(iii)(B) to 

eliminate the requirement to obtain a permit beginning 6 months after the general permit for a 

source category is published in the Federal Register, if that date is before September 2, 2014 (79 

FR 34231). See the final rule at http://www.epa.gov/air/tribal/tribalnsr.html for additional 

information.

Comment 7.1.2: EPA received numerous comments generally supporting the extension 

of the deadline for true minor sources in the oil and gas source category. Several commenters 

(0025, 0029, 0030, 0031, 0032, 0033, 0037, 0038, 0039, 0041, 0043, 0044, 0045, 0046, 0048, 

0049-1, 0049-2, 0049-3, 0049-4, 0049-5, 0052) specifically supported the amendments to 

§49.151(c)(1)(iii)(B) to extend the permitting deadline for true minor sources within the oil and 

natural gas production source category. Many of these commenters (0029, 0037, 0038, 0039, 

0043) recognized that EPA had not yet developed a general permit for the oil and gas sector, and 

would be rushed or unable to complete the final oil and natural gas production minor source 

general permit or permit by rule by September 2, 2014. Two commenters (0049-1, 0049-5) noted 

that the assembly of the first bundle of permits prepared by EPA had taken nearly 3 years, and 

several commenters preferred that EPA have adequate time to implement a well-developed 

general permit or permit by rule for the oil and natural gas production source category and 

develop a streamlined method for permitting (0025, 0039, 0049-2, 0049-5). Two commenters 

(0041, 0042) stated that it was unreasonable to make the program effective for any sector until 

after a general permit or permit by rule has been issued.

Several commenters (0029, 0037, 0049-5) also noted that failure to provide an extension 

could cause significant delays and expenditures for industry. Commenters (0037, 0039, 0049-5) 

noted that the permitting process takes six months to complete, and, given the nature of the oil 

and gas sector, operators will need to submit permits between six and 12 months in advance of 
76

the deadline. These commenters (0037) noted that permit processing may be further delayed if 

the agency needs to request additional information from the applicant. Multiple commenters 

(0029, 0037, 0039, 0043, 0049-5) also noted that without a general permit in place, given the 

large number of oil and gas sources, the number of applications for individual minor source 

permits would likely overwhelm EPA resources.

Several commenters (0032, 0043, 0048) expressed concerns regarding the industry’s 

ability to comply with a general permit or permit by rule within the next 5 months. Commenters 

(0030, 0043) noted that sufficient time is needed for sources to assess applicability, determine 

the appropriate permit type, make control decisions and equipment purchases, and obtain the 

correct NSR authorization. One commenter (0049-1) emphasized that operators would need 

adequate time to adjust to a pre-construction permitting process. Some commenters (0041, 0048) 

noted that the extension was also necessary to accommodate sources that may wish to seek a 

source-specific permit after a general permit or permit by rule is finalized. At least one 

commenter (0029) expressed concerns that this would cause a financial hardship to tribes that 

rely on revenues from oil and gas development, in addition to resulting in a loss of economic 

opportunity and jobs, if oil and gas development were curtailed due to “costly and unnecessary 

expenditures”. 

Six commenters (0030, 0037, 0041, 0042, 0049-2, 0049-5) supported the extension of the 

deadline to September 2015 and eight commenters (0038, 0039, 0043, 0044, 0046, 0048, 0049-1, 

0049-3) supported the extension of the deadline to March 2016. However, many of these 

commenters (0030, 0037, 0038, 0039, 0041, 0042, 0046, 0048, 0049-1, 0049-3, 0049-5) also 

asked EPA to use or add conditional language extending the deadline to one year after a general 

permit or permit by rule is finalized. One commenter (0037) noted that an extension to 

September 2, 2015 would require EPA to finalize general permits or permits by rule between 

September 2014 and March 2015. The commenter (0037) noted that tying the extension to the 

effective date of the general permits or permits by rule will avoid the need for another extension 

of the permitting deadline. At least two other commenters (0039, 0043) expressed concern that if 

the deadline is extended but a general permit or permit by rule for the industry is never finalized, 

EPA will find itself in the same situation 18 months from now. Another commenter (0046) stated 

that twelve months lead time, in addition to the requested 18 month extension, is necessary to 

allow oil and gas operators time to determine whether the final oil and gas general permit or 

permit by rule is a usable document. Five of the commenters (0030, 0037, 0041, 0042, 0049-2) 

proposed that the effective date should be extended until 12 months after the effective date of 

any general permits or permits by rule covering the oil and gas sector, or until September 2, 

2015, whichever is later. Seven commenters (0032, 0038, 0039, 0043, 0044, 0046, 0048) 

recommended similar rule language, with the exception that the effective date would be the later 

of March 2, 2016 or the date 12 months after the effective date of a general permit or permit by 

rule. One commenter (0049-2) reiterated that EPA cannot delay finalizing any developed general 

permits or permits by rule beyond the extended deadline. 

One commenter (0030) urged EPA to set the deadline far enough in the future to allow 

time to develop a full general permit and permit by rule program that addresses midstream, as 

well as oil and gas production sources. Some commenters (0041, 0042) advocated that EPA 

provide a similar deferral of the effective date for all other source categories. Another 

commenter (0043) requested that if EPA allows for the use of general permits or permits by rule 
77

for synthetic minor sources, these sources should have the same extension of the deadline. The 

commenter (0043) specifically asked that EPA apply the full 18 month extension proposed for 

true minor sources or one year after a general permit or permit by rule for synthetic minor 

sources is finalized, whichever is later. 

One commenter (0029) argued that EPA has provided no assurance that it will extend the 

deadline for permitting minor sources in the oil and gas sector. Several commenters (0038, 0039, 

0049-3, 0049-5) urged EPA to immediately extend the deadline, noting that operators may need 

to begin the individual permitting process, if an extension is not granted in a timely manner, in 

order to ensure that a final permit would be in place by the current September 2, 2014 deadline. 

One commenter (0049-5) asked that EPA issue a separate extension in order to give operators 

sufficient lead time to prepare for the proper permit. Another commenter (0038) urged EPA to 

decide on the extension within 30 days of the comment filing deadline in order to allow 

sufficient lead time for permit applications for sources. 

Response: EPA’s Administrator signed final amendments to the Federal Indian Country 

Minor NSR Rule on May 22, 2014. This final rule extended the permitting deadline for all true 

minor sources (both new and modified true minor sources and minor modifications at existing 

major sources) within the oil and natural gas production sector that are subject to the Federal 

Indian Country Minor NSR Rule from September 2, 2014, to March 2, 2016 (79 FR 34231). See 

EPA’s response to these comments in the final rule at 

http://www.epa.gov/air/tribal/tribalnsr.html. As explained in the final rule, EPA believes that an 

extension of the permitting deadline for sources in the oil and natural gas production source 

category to March 2, 2016 is both necessary and sufficient to allow EPA to finalize a streamlined

approach to permitting such facilities. (79 FR 34231)

Comment 7.1.3: Several commenters (0030, 0037, 0038, 0039, 0049-3) requested 

clarification that the extension would apply to all oil and gas sources. One commenter (0037) 

stated that the facilities included in the extension must include glycol dehydrators, compressor 

stations, natural gas processing plants, and any other gas gathering facilities, and not be limited 

to wells or other oil and gas production facilities. Commenters (0030, 0037, 0039, 0049-3) stated 

that it appeared that EPA intended to include these sources in the use of NAICS 21111 for 

midstream facilities. However, two commenters (0037, 0039) noted that clarification is needed 

because the NAICS codes listed in the rule do not explicitly apply to gathering, processing or 

compression. Another commenter (0038) recommended that EPA include the NAICS codes 486 

(pipeline transportation) and 324 (petroleum and coal products manufacturing) for further 

clarification. 

Response: The EPA Administrator signed final amendments to the Federal Indian 

Country Minor NSR Rule on May 22, 2014. This final rule extended the permitting deadline for 

all true minor sources (both new and modified true minor sources and minor modifications at 

existing major sources) within the oil and natural gas sector that are subject to the Federal Indian 

Country Minor NSR Rule from September 2, 2014, to March 2, 2016 (79 FR 34231). (See EPA’s 

response to these comments in the final rule at http://www.epa.gov/air/tribal/tribalnsr.html.)
78

As we explained in response to comments in the final rule, EPA agrees with the 

commenters that the permitting extension should apply to all affected emissions units that are 

located at a true minor source in the oil and natural gas sector. An affected emissions unit, such 

as a boiler or an internal combustion engine, does not have to be exclusive to the industry, but it 

must be necessary for, and used in conjunction with, the extraction, production, processing, 

storage, transmission or distribution of oil or natural gas to be part of the oil and natural gas 

sector. We decided to apply the extension to all affected emissions units at true minor sources in 

the oil and natural gas sector because we have yet to determine which affected emissions units 

will be covered by a general permit, FIP or other approach. Before we decide in a subsequent 

notice of proposed rulemaking which affected emission units we want to propose to be covered, 

we wanted to consider the public comments received on a host of issues outlined in the ANPR. 

We expect that most affected emissions units at true minor sources in the oil and natural gas 

sector will be covered by one of the approaches outlined in the ANPR; however, we believed it 

best to extend the deadline for all affected emissions units at true minor sources in the oil and 

natural gas sector until we determine exactly which affected emissions units will be covered.

Comment 7.1.4: One commenter (0040) expressed concerns that extending the 

permitting deadline for minor sources within the oil and gas source category may provide 

additional time for these sources to startup or modify without a permit. The commenter noted 

that these are prolific sources and that it may not be beneficial to have these sources unpermitted. 

One commenter (0050) asked how EPA would protect air quality in Indian country during the 

period of the extension. Another commenter (0049-5) noted that there is existing regulatory

framework in place to address emissions growth during the extension period. The commenter 

identified NSPS subpart OOOO, which requires controls on oil and gas for new and modified 

facilities, in addition to Records of Decisions through environmental impact statements. The 

commenter stated that the NSPS and RODs would require controls for new and modified 

sources, as well as require retrofitting of existing sources. The commenter also suggested that 

VOC emissions would remain low due to the natural decline in production over time. 

Response: The EPA Administrator signed final amendments to the Federal Indian 

Country Minor NSR Rule on May 22, 2014. This final rule extended the permitting deadline for 

all true minor sources (both new and modified true minor sources and minor modifications at 

existing major sources) within the oil and natural gas sector that are subject to the Federal Indian 

Country Minor NSR Rule from September 2, 2014, to March 2, 2016 (79 FR 34231). (See the 

final rule at http://www.epa.gov/air/tribal/tribalnsr.html for additional information.)

As we explained in response to comments in the final rule, EPA recognizes that 

extending the minor NSR permitting deadline for the oil and natural gas sector could have 

negative impacts on air quality in Indian country, because some sources will not have to install 

air pollution controls that might otherwise have been required. Such impacts should be 

minimized, because many new, modified and reconstructed sources in Indian country will have 

to meet the requirements of the Agency’s oil and natural gas NSPS. The NSPS will help protect 

air quality during the extension. Moreover, the permitting extension applies only to true minor 

sources; the requirement that major sources and synthetic minor sources obtain preconstruction 

permits in Indian country is not affected.
79

7.2 Comments related to removing a provision to make clear that sources may seek 

coverage under a general permit as soon as it is effective

Comment 7.2.1: Several commenters (0030, 0031, 0032, 0038, 0039, 0040, 0041, 0042, 

0043) supported EPA’s proposal to amend §49.156(e)(1) so that minor sources would not be 

required to wait 4 months to seek coverage under the general permit after the general permit’s 

effective date, but may seek coverage as soon as the general permit is effective. Two 

commenters (0041, 0042) noted that the current provisions would have caused significant 

permitting delays and lacked an apparent rationale. Two commenters (0032, 0043) reiterated that 

industry would like to be able to apply for permits as soon as the general permit is effective, in 

order to facilitate planning. EPA did not receive any comments in opposition to the proposed 

change.

Response: EPA agrees with the commenters and is amending §49.156(e)(1) as proposed, 

removing the requirement for sources to wait 4 months after the general permit is finalized to 

request coverage. This change clarifies that sources may seek coverage under a general permit as 

soon as it is effective. 

7.3 Comments related to shortening the general permit application review process 

from 90 to 45 days for certain source categories (auto body repair and miscellaneous 

surface coating, GDFs, and petroleum dry cleaning facilities) 

Comment 7.3.1: EPA received no comments objecting to the proposed amendments to 

§49.156(e)(4). Multiple commenters (0030, 0031, 0033, 0035, 0038, 0039, 0041, 0042, 0045, 

0047, 0049-2, 0052) supported EPA’s proposal to shorten the general permit application review 

process from 90 to 45 days for three of the proposed source categories (auto body repair and 

miscellaneous surface operations, GDFs, and petroleum dry cleaning facilities). One commenter 

(0047) asserted that the change to the review period is acceptable provided that the tribe and 

community is notified and given the full time to comment. Several commenters (0031, 0033, 

0045, 0052) stated that based on the type and limited number of pollutants emitted by these 

source categories and the straightforward nature of these operations, shortening the period of the 

review is acceptable. Another commenter (0030) supported the change stating that the short 

review period will set expectations and encourage development of well-crafted general permits. 

One commenter (0052) noted that the changes would allow for a reduction in the information 

required in requests for coverage. Other commenters (0038, 0049-2) recommended that EPA 

consider reducing the application review period so that the total application review time for 

general permits would be reduced to 30 days, in order to further reduce administrative 

processing. Two commenters (0040, 0052) supported the retention of a 90-day review period for 

the HMA and SQCS source categories. 

Several commenters (0031, 0032, 0041) supported shortening the permit application 

review process to 45 days, but objected to EPA’s proposal to allow the reviewing authority the 

option of automatically denying a request for coverage if the source fails to submit the additional 

information requested by the reviewing authority. These commenters (0031, 0032, 0041) stated 

that, instead of an automatic denial for sources who do not submit information within the 

timeline, EPA should adopt a case-specific approach. 
80

One commenter (0038) noted that in some sections of the proposal preamble, EPA refers 

to the timing within which a reviewing authority must act and the date of request by the source 

for coverage under the “permit by rule.” The commenter expected that this should refer to the 

date of request by the source for coverage under a “general permit.”

Response: We are not finalizing revisions to §49.156(e)(4) to shorten the general permit 

application review process from 90 to 45 days for the permits by rule for the auto body repair 

and miscellaneous surface operations, GDF, or petroleum dry cleaning source categories. The 

extension of the deadline for general permits is not an issue for these three source categories 

because we are establishing permits by rule for these operations instead of general permits. For a 

permit by rule, the individual applicant must complete the ESA and NHPA screening process, 

document that it has done so in a letter to the reviewing authority and submit a Notification of 

Coverage certifying to the reviewing authority that it meets the eligibility criteria for the permit 

and can comply with the permit conditions, and the reviewing authority needs to take no further 

action other than posting the Notification of Coverage on its web page. Therefore, the general 

permit application review process does not apply. 

7.4 Comments related to adjusting the deadline by which minor sources within the 

oil and gas source category must register

Comment 7.4.1: Three commenters (0031, 0038, 0039) supported EPA’s proposal to 

amend §49.160(c)(1)(ii) and (iii) to adjust the deadline for when true minor sources must 

register. Two commenters (0038, 0039) acknowledged that these changes are necessary to be 

consistent with the proposed permitting deadline extension for oil and gas sources.

Response: The EPA Administrator signed final amendments to the Federal Indian 

Country Minor NSR Rule on May 22, 2014. This final rule amended §49.160(c)(1)(ii) and 

(c)(1)(iii) to extend the registration deadline from September 2, 2014 to March 2, 2016 for all 

true minor sources in the oil and natural gas sector that are subject to the Federal Indian Country 

Minor NSR Rule, consistent with the minor NSR permitting deadline (79 FR 34231). See the 

final rule at http://www.epa.gov/air/tribal/tribalnsr.html for additional information.

8.0 Comments on EPA’s Legal Authority and EPA Administrative Procedures

Comment 8.1: One commenter (0042) stated that the proposed rule did not include 

specific regulatory language for any of the issues addressed in the proposed action. The 

commenter asserted that the lack of regulatory text prevented a complete public review and 

comment on the proposed rule. The commenter asked that EPA provide regulatory text for 

general permits, permits by rule, and all other elements of the proposal that require regulatory 

text. 

Response: EPA acknowledges that we did not include specific regulatory language for 

every aspect of the requirements of the general permits. Instead, we referred readers to the draft 

permits and associated background information in the docket to review all the detailed 

requirements we would include in each general permit. We did not provide specific regulatory 

language for any of the proposed permits by rule, but rather proposed to codify the requirements 

of the draft general permits of the specified source category. For the auto body repair and 
81

miscellaneous surface coating operations, gasoline dispensing, and petroleum dry cleaning 

source categories, we are codifying the requirements as contained in the proposed draft general 

permits for those source categories, including the changes that we have identified as appropriate 

based on our review of public comments on the general permits. All other revisions to the 

Federal Indian Country Minor NSR Rule were discussed explicitly in Section XIII of the 

preamble to the proposed rule. We believe that the descriptions provided in the preamble to the 

proposed rule, in addition to the draft general permits and background documents, provided the 

public with a sufficient understanding of the contents of the final rule to allow for the 

development and submission of informed comments.

Comment 8.2: Five commenters (0029, 0032, 0038, 0049-2, 0049-4) stated that EPA 

must further consult with tribes in the development of Federal standards and permitting that 

would apply to reservations. Three of these commenters (0029, 0032, 0049) specifically 

requested additional consultation with EPA as part of the development of the general permits 

and/or permits by rule for the oil and gas sector. Two commenters (0029, 0032) cited Executive 

Order No. 13175 - Consultation and Coordination with Indian Tribal Governments, EPA’s May 

4, 2011 “Policy on Consultation with Indian tribes”, and President Obama’s November 5, 2009 

“Memorandum for the Heads of Executive Departments and Agencies on tribal Consultation”, 

reiterating that EPA must engage tribes early in the development process. One commenter (0038) 

noted that early engagement was necessary to accurately consider the scope of the oil and gas 

sources; the types, benefits, and costs of pollution control equipment; and the impacts to 

permittees. Another commenter (0049-4) reiterated the concern that loss of energy revenue could 

result in loss or curtailment of essential services. Three commenters (0038, 0049-2, 0049-4) 

specifically requested government-to-government consultation, including two commenters 

(0038, 0049-2) with concerns regarding the relevant governing body for certain lands. These 

commenters requested that EPA acknowledge the difficulties associated with identifying the 

proper governing body and ensure that companies are not penalized for misidentifying the 

appropriate jurisdiction. One commenter (0049-4) requested consultation on any permit, general 

permit, or permit by rule for the five source categories in the proposed rule to review and 

develop the final permits.

Response: These comments are addressed in the final amendments to the Federal Indian 

Country Minor NSR Rule signed by the Administrator on May 22, 2014 (79 FR 34231); see 

http://www.epa.gov/air/tribal/tribalnsr.html.

9.0 Out of Scope Comments Related to Provisions of the Federal Indian Country Minor 

NSR Rule Not Covered by the Proposal

Comment 9.1: One commenter (0042) suggested that the definition of “synthetic minor 

source” should be expanded to apply not only to “NSR regulated pollutants” but also to HAPs. 

The commenter stated that for purposes of establishing a source as a synthetic minor under Part 

71, a source may need to limit its potential to emit of HAP and must be able to establish these 

limits by way of a general permit or permit by rule. 
82

Response: The Federal Indian Country Minor NSR Rule applies to new and modified 

minor sources and to minor modifications at major sources with a potential to emit equal to or 

greater than the minor thresholds for the regulated NSR pollutants in Table 1 of Section IV.A.3 

of the preamble to the final minor NSR rule (see 76 FR 38758, July 1, 2011). EPA is not 

considering inclusion of requirements for controlling HAP as such in any of the general permits 

or permits by rule. EPA is administering the Federal Minor NSR Program in Indian Country

under the authority provided in Section 301(d)(4) and consistent with the requirements in Section

110(a)(2)(C) of the CAA. Section 110(a)(2)(C) of the CAA requires the development of a 

program to regulate the modification and construction of any stationary source as necessary to 

assure that the NAAQS are achieved. The NAAQS address criteria pollutants. In addition to 

addressing criteria pollutants directly, the Federal Indian Country Minor NSR Program addresses 

precursors to those pollutants and certain other pollutants as listed in Table 1 of the preamble to 

the final minor NSR rule and in 40 CFR 49.153. Therefore, we have not revised the definition of 

“synthetic minor source” in this final rule. We note, however, that 40 CFR 49.158 provides a 

specific mechanism for limiting HAP for purposes of establishing a synthetic minor source. 

Comment 9.2: One commenter (0042) requested that EPA make clear in the final rule 

that any source that obtains a permit under the tribal minor NSR program (including a general 

permit or permit by rule) is no longer covered by the FBIR FIP. The commenter (0042) stated 

that the FIP for the Ft. Berthold reservation was intended as a stop-gap rule that would be needed 

only until appropriate permits could be obtained through the tribal minor NSR permitting 

program. The commenter (0042) asserted that once the rule is revised to make general permit 

(and permits by rule) available as a means of establishing synthetic minor sources, the tribal

minor NSR program will have all of the elements needed to permit and appropriately manage 

emissions from sources on tribal lands. 

Response: EPA has not yet issued a mechanism for the permitting of minor oil and 

natural gas sources in Indian country. When we do so, we will provide clear direction on how the 

mechanism impacts, or relates to, the implementation of the FBIR FIP.

10.0 Other Out of Scope Comments 

Comment 10.1: One commenter (0027) stated that EPA’s implementation of general 

permits and permits by rule must not interfere with states’ flexibility to manage their own NSR 

programs. The commenter noted that EPA has previously stated that the minor NSR programs 

within each state’s implementation plan are designed to ensure the attainment of NAAQS. The 

commenter asked whether EPA will allow the states the same flexibility to develop general 

permits and permits by rule, including flexibility with respect to minor NSR public participation 

requirements. 

Response: With regard to state NSR programs, EPA evaluates SIP submittals based on 

the criteria established in 40 CFR 51.160 through 164. At this time, EPA is not seeking comment 

on the requirements applicable to state minor NSR programs. However, we note that the 

particular requirements in state minor NSR programs vary widely across the country and are 

often tailored to the specific concerns of the individual state or local agency.
83

11.0 Comments on EPA’s Second Proposed Rule for General Permits and Permits by Rule 

in Indian Country.

The following comments were made with respect to the second set of permits EPA made 

available for comment in July 2014.11 They apply generally to all permits and we have made 

changes in response to them for these final permits. Therefore, we are providing the comments 

and responses here. They will also appear in the Response to Comments Document for the 

second set of permits we proposed in July 2014.

Comment 11.1: One commenter (0035) stated that Condition 38 of the draft general 

permit (Notification of Change in Ownership) is unclear in establishing whether it is the 

responsibility of the new permittee or the old permittee to comply with the notification 

requirements; the commenter requested that the paragraph be clarified to indicate if the new 

permittee or the old permittee is required to submit the required notice. The same commenter 

(0035) requested that Conditions 38 and 47 of the draft general permit be clarified to cover 

situations in which there is a change of operator, but the ownership of the equipment is the same.

Response: The commenter is correct. We have revised the final general permits and 

permit by rule for clarification. If the permitted source changes ownership, then the new

permittee must submit a written or electronic notice to the reviewing authority within 90 days 

before or after the change in ownership is effective. This clarifying change to the notification and 

reporting requirements has been applied to the final general permits and permits by rule 

established in this rulemaking and will be applied to all future final general permits and permits 

by rule. We have also modified the change in ownership conditions12 that appear in Section 5 

and 6 of the general permits and in §49.162(d)(5), §49.163(d)(5) and §49.164(d)(5) of the final 

permits by rule to include the word “operator” to clarify that these conditions also cover a change 

in operators where ownership of the equipment is the same. 

Comment 11.2: One commenter (0035) stated that the term “Responsible Official” 

should be defined to ensure truth, accuracy, and completeness of required reports.

Response: In response to the comment, EPA has added a definition of Responsible 

Official to each of the final permits as follows:

1. For a corporation: a president, secretary, treasurer, or vice-president of the 

corporation in charge of a principal business function, or any other person who 

performs similar policy or decision-making functions for the corporation, or a duly 

authorized representative of such person if the representative is directly responsible 

for the overall operation of the permitted source.

 

11

“General Permits and Permits by Rule for the Federal Minor New Source Review Program in 

Indian Country,” 79 Federal Register 41846, July 17, 2014, http://www.gpo.gov/fdsys/pkg/FR2014-07-17/pdf/2014-16814.pdf.

12 The change in ownership condition in §49.162(d)(5), §49.163(d)(6) and §49.164(d)(6) of the 

final permits by rule has been dropped because there is no Approval of Coverage for permits by 

rule to change.
84

2. For a partnership or sole proprietorship: a general partner or the proprietor, 

respectively.

3. For a public agency: Either a principal executive officer or ranking elected official, 

such as a chief executive officer having responsibility for the overall operations of a 

principal geographic unit of the agency.

Comment 11.3: Two commenters (0115, 0122) supported the proposed rule’s approach of 

requiring each source to post the current approval of the request for coverage and to label each 

affected emissions unit and associated air pollution control technology with the identification 

numbers listed in the approval; these commenters noted that this requirement is neither costly nor

time-consuming. One commenter (0117) recommended that the general permit and the most 

current approval of the request for coverage for the permitted source “must be made available 

immediately upon request,” as opposed to “must be posted.” The commenter (0117) stated that it 

was not necessary to label the air pollution control equipment as the description and serial 

numbers are provided in the application.

Response: EPA acknowledges the support of the commenters with respect to posting the 

Approval of the Request for Coverage. Upon review of comments received related to the posting 

of the general permit in addition to the Approval of the Request for Coverage, EPA is revising 

the permits to exclude the requirement that the general permit must be posted. Posting of the 

Approval of the Request for Coverage is required under 40 CFR 49.156(e)(6), but the general 

permit itself is not required under the regulation to be posted and only needs to be available on 

site as needed. Regarding the labeling of emission units and air pollution control equipment, 

identification and labeling of these units is needed to facilitate identification of equipment 

covered under the general permit by any potential inspectors. Therefore, EPA is finalizing the 

labeling requirements as proposed.