Review of New Sources and Modifications in 

Indian Country - Amendments

Response to Comments 
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Review of New Sources and Modifications in 

Indian Country - Amendments

Response to Comments

New Source Review Group

Air Quality Policy Division

Office of Air Quality Policy and Standards

U. S. Environmental Protection Agency

Research Triangle Park, NC 27711

April 2014
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TABLE OF CONTENTS

LIST OF ACRONYMS AND ABBREVIATIONS ......................................................................iii

LIST OF UNITS ............................................................................................................................iii

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

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

1.2 The Commenters ............................................................................................................ 1

2 Summarized Comments on the Proposed Amendments and Responses................................. 3

2.1 Minor NSR Rule Overview............................................................................................ 3

2.2 Units/activities Exempted from Permitting.................................................................... 3

2.2.1 Exemption for Emergency Generators............................................................... 4

2.2.2 Exemption for Boilers and Furnaces.................................................................. 6

2.2.3 Proposed exemption for Forestry/Silvicultural Activities.................................. 7

2.3 Suggestions for Other Exemptions................................................................................. 8

2.3.1 Other Categories Proposed for Exemption ........................................................ 9

2.4 Construction Related Terms......................................................................................... 10

2.4.1 General Comments on Construction Terms..................................................... 10

2.4.2 Definition of Begin Construction..................................................................... 10

2.4.3 Definition of Commence Construction ............................................................ 10

2.5 Source Relocation......................................................................................................... 11

2.5.1 30-Day Advance Notification Provision.......................................................... 11

2.5.2 Permitting Issues related to Source Relocation................................................ 12

2.6 Other Comments on Permitting.................................................................................... 14

2.7 Miscellaneous Comments............................................................................................. 15

2.7.1 Rulemaking Process......................................................................................... 15

2.7.2 General Permits................................................................................................ 15

2.7.3 Environmental Appeals Board ......................................................................... 16
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LIST OF ACRONYMS AND ABBREVIATIONS

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

BACT Best available control technology 

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

CFR Code of Federal Regulations

CO Carbon monoxide

EAB Environmental Appeals Board

EPA U. S. Environmental Protection Agency

FARR Federal Air Rule for Indian Reservations

FBIR Fort Berthold Indian Reservation

FIP Federal Implementation Plan 

FR Federal Register

NAAQS National Ambient Air Quality Standards

NOx Nitrogen oxides

NSPS New Source Performance Standard

NSR New Source Review

PSD Prevention of Significant Deterioration

PTE Potential to emit

SCAQMD South Coast Air Quality Management District

SIP State Implementation Plan

U.S.C. United States Code

LIST OF UNITS

ppm Parts per million

tpy Tons per year
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1 INTRODUCTION

1.1 Background 

On July 1, 2011, the U. S. Environmental Protection Agency (EPA or we) finalized a 

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

Federal Implementation Plan (FIP) for Indian country.1The FIP included two basic air quality 

regulations for the protection of communities in Indian country. The two rules are elements of 

the New Source Review (NSR) program. The first rule applies to minor stationary sources

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

country (Indian country minor NSR rule). The second rule applies to all new major sources and 

major modifications located in areas of Indian country that are designated as not attaining the 

National Ambient Air Quality Standards (NAAQS) (nonattainment major NSR rule). On June 4, 

2013, proposed amendments to the first rule were published in the Federal Register. The minor 

NSR rule is hereinafter referred to as the “Indian country minor NSR rule”

2

.

We proposed the following amendments:

1) To reconsider the 30 day advance notification provision for true minor sources that 

relocate.

2) To add seven activities/categories to the list exempt from permitting.

3) To clarify terms related to the construction of a new source/emissions unit and related 

permitting requirements by adding definitions for “commence construction” and “begin 

construction.”

We intend that these changes will make the Indian country minor NSR rule clearer and 

easier to implement for reviewing authorities and sources within Indian country. This document 

presents a summary of the public comments on the proposed amendments, along with our 

responses to those comments. The document supports the final rule amendments for the Indian 

country minor NSR rule.

1.2 The Commenters 

The public comment period ended on August 4, 2013. We received seven sets of 

comments on the proposed amendments. The commenters can be broken down by general type 

as follows: 3 tribal and tribal association commenters, 1 state/local air agency, 2 industry and

industry association commenters and 1 private citizen. The commenters are listed in Table 1 

below.

 

1 The FIP was published in the Federal Register, Volume 76, beginning on page 38,748 (76 FR 38748).

2

See 78 FR 33266.
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Table 1. List of Commenters

DOCKET ID 

a COMMENT DESCRIPTION

TYPE OF 

COMMENTER

0178 Comment submitted by Luke Martone Private Citizen 

0180 Comment submitted by James M. Olguin, ViceChairman, Southern Ute Indian Tribal CouncilTribe

0181 Comment submitted by Barbara Baird, Chief Deputy 

Counsel, South Coast Air Quality Management District

State/Local Air 

Agency

0182 Comment submitted by Matthew Todd, Senior Policy 

Advisor, American Petroleum Institute

Industry 

Association

0183 Comment submitted by Stephen B. Etsitty, Executive 

Director, Navajo Nation Environmental Protection 

Agency

Tribe

0184 Comment submitted by Julie Simpson, Air Quality 

Program Manager, Nez Perce Tribe

Tribe

0186 Comment submitted by Jennifer Biever, on behalf of 

Cameron Cuch, V.P. of Government Affairs, Crescent 

Point Energy

Industry 

0187 Summary of 9/5/13 call between the South Coast Air 

Quality Management District and EPA on proposed 

exemptions 

State/Local Air 

Agency

0188 Summary of 10/23/13 teleconference between API and 

the EPA on source relocation

Industry 

Association

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

number.
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2 Summarized Comments on the Proposed Amendments 

and Responses

2.1 Minor NSR Rule Overview

The Indian country minor NSR rule applies to new and modified minor sources and to 

minor modifications at major sources. New minor sources with a PTE equal to or greater than the 

minor NSR thresholds, or modifications at existing minor sources with allowable emissions 

increases equal to or greater than the minor NSR thresholds, must apply for and obtain a minor 

NSR permit prior to beginning construction of the new source or modification. 

The effective date of the Indian country minor NSR rule was August 30, 2011. To 

facilitate the effective implementation of the Tribal minor NSR program, some components of 

the rule were phased in. Generally, the applicability of the preconstruction permitting rules to 

new synthetic minor sources3began on the rule’s effective date, August 30, 2011; for new or 

modified true minor sources4, the rules generally apply beginning September 2, 2014. In 

addition, existing true minor sources were required to register with their reviewing authority by 

March 1, 2013. 

2.2 Units/activities Exempted from Permitting

Comment:

One private citizen (0178) supports the proposed exemptions for units and activities that 

are exempted under the Federal Air Rule for Indian Reservations (FARR)

5

as well as proposed 

exemptions for other classifications. One tribal commenter (0180) supports the changes as they 

appear to reduce regulatory burden for minor sources without significantly reducing 

environmental protection.

Response:

We appreciate the support for the proposed exemptions. We have made some revisions to

the proposed exemption categories as discussed below.

 

3

40 CFR 49.152 defines “synthetic minor source” as a source that otherwise has the potential to emit 

regulated NSR pollutants in amounts that are at or above those for major sources in section 49.167, section 52.21 or 

section 71.2 of chapter 40, as applicable, but that has taken a restriction so that its PTE is less than such amounts for 

major sources. Such restrictions must be enforceable as a practical matter.

4

40 CFR 49.152 defines “true minor source” as a source, not including the exempt emissions units and 

activities listed in section 49.153(c), that emits or has the potential to emit regulated NSR pollutants in amounts that

are less than the major source thresholds in section 49.167 or section 52.21 of Chapter 40, as applicable, but equal to 

or greater than the minor NSR thresholds in section 49.153, without the need to take an enforceable restriction to 

reduce its PTE to such levels.

5 The FARR is a FIP that applies to air pollution sources on Indian reservations in Idaho, Oregon and 

Washington. 
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Comment:

One state/local commenter (0181) appreciates that additional exemptions may be needed, 

however they expressed an overall concern (that applies broadly to several of the exemption 

categories proposed) that the exemptions are inconsistent with their region’s air quality rules. 

The commenter believes that exempting these sources from permitting will provide a competitive 

advantage to sources in Indian country compared to sources on non-Tribal lands. 

The commenter cites a specific concern with the competitive advantage issue in light of

the EPA’s recent proposed "detachment" of Morongo Indian country from California’s South 

Coast Air Basin and the lowering of the classification of the Morongo reservation from Extreme 

to Serious ozone nonattainment (Note: the proposed reclassification identified by the commenter

was finalized on September 23, 2013 (78 FR 58189). The commenter states that the Morongo 

lands are located directly upwind from the Coachella Valley, a Severe ozone nonattainment area, 

and therefore the commenter is concerned that exempting certain sources from permitting in 

Indian country will result in negative air quality impacts thereby delaying attainment of the 

NAAQS in downwind airsheds for both non-tribal lands and certain tribal areas.

The commenter urges EPA to adopt requirements specifically for areas of Indian country 

that are classified as either Severe or Extreme ozone nonattainment areas, just as the EPA has 

adopted lower minor NSR emission thresholds in the existing rule for nonattainment areas as 

opposed to attainment areas.

Response:

Prior to the August 30, 2011 effective date of the Indian country minor NSR rule, codified 

in 40 CFR, part 49, promulgated July 1, 2011 (76 FR 38748), there were no emission reduction 

requirements for new minor sources within areas of Indian country such as the Morongo 

Reservation. We point this out to highlight that the Indian country minor NSR rule has already 

reduced any potential competitive advantage cited by the commenter by requiring preconstruction permits on sources (with emissions above permitting thresholds) where prior to 

August 30, 2011, there were no such requirements. 

 

As discussed in the July 1, 2011 final rule, while section 182(e)(2) of the Act specifies an 

emissions increase threshold of “0” tons/year (tpy) for existing major sources in Extreme ozone 

nonattainment areas, we do not believe these thresholds are appropriate for minor sources and 

operators within Indian country. Nonetheless, we are mindful of the need to protect the NAAQS 

and, as discussed in comment responses related to exemptions for emergency generators and 

boilers/furnaces in sections 2.2.1 and 2.2.2 of this document, respectively, we have made some 

revisions to the exemption criteria in the final rule amendments.

2.2.1 Exemption for Emergency Generators

Comments:
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One private citizen (0179) recommends that EPA maintain the exemption sizes of 500 

horsepower (HP) maximum manufacturer site-rated HP in nonattainment areas, and 1,000 HP in 

attainment areas for residential and healthcare related purposes only, but lower the exemption 

sizes to 400 HP and 800 HP for non-residential and non-healthcare related purposes, 

respectively. The commenter did not provide any additional details regarding this 

recommendation.

Response:

Since the commenter did not provide any rationale for lowering the exemption sizes for 

emergency generators used for non-residential or non-healthcare related purposes, we were 

unable to evaluate the details of this recommendation. Therefore, no changes were made in 

response to this comment.

 Comment:

One tribal commenter (0183) supports the emergency generator exemption. The 

commenter notes that the emissions at the proposed sizes are well below the minor source 

emissions thresholds and states that exempting the identified units from permitting will save 

resources by eliminating the need for applicants and permitting agencies to calculate potential to 

emit.

Response:

We appreciate support for the proposed exemption.

Comment:

One state/local commenter (0181) expressed concern with the proposed exemption 

threshold for emergency generators under 500 horsepower (HP) in nonattainment areas and 

asserted it would create an imbalance between tribal lands and the surrounding non-tribal areas 

classified as Severe or Extreme nonattainment for ozone. Air quality regulations that apply to 

sources within the commenter’s jurisdiction specify emission limits for NOx and particulate 

matter (PM) for all engines over 50 HP. The commenter believes engines on tribal lands, which 

would be exempt from permitting under the EPA’s proposed criteria, would emit NOx in 

amounts above the 0.8 tpy and 1.8 tpy levels that new and older model engines, respectively, 

must meet under the state air district’s Best Available Control Technology (BACT)

requirements. The commenter states that these types of engines are controllable and contribute to 

ozone and therefore should be subject to NSR permitting. 

The commenter also cited a report from the World Health Organization6that declared 

diesel PM to be a human carcinogen. The commenter states that emissions from three standby 

generators (approximately 900 HP in total) can create cancer risks exceeding 25 in a million, 

 

6

Press release dated June 12, 2012. See: www.iarc.fr/en/media-centre/pr/2012/pdfs/pr213_E.pdf.
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even if operated only 50 hours/year. The commenter elaborates that a 500 HP emergency 

generator, operating for 500 hours/year, would create even higher risk (than the engines totaling 

900 HP in the earlier example) due to its longer operating period, and therefore PM should be 

controlled from these units and they should be subject to NSR since the EPA's source-specific 

rules are not applicable to these units.

Response:

One of our objectives for proposing activities/units for exemption was to reduce burden 

on source owners. We believe that emergency generators with horsepower ratings below the 

exemption sizes will predominately have emissions below the minor source permitting thresholds 

and therefore the proposed exemption would potentially save source owners the effort of 

estimating their emissions solely to demonstrate that emissions are well below the permitting 

threshold.

However, we also recognize the commenter’s concerns regarding the impacts of sources

to portions of the South Coast Air Basin that are classified Severe or Extreme for ozone. We are 

required by title I of the Act to ensure attainment and maintenance of the NAAQS. Accordingly, 

after considering the comment, we believe that an exemption for emergency generators is not 

appropriate in ozone nonattainment areas classified Severe or Extreme, and we have revised 

exemption language in the final rule accordingly. As finalized, the total site-rated 500 HP 

exemption for emergency generators in ozone nonattainment areas will only apply in ozone 

nonattainment areas classified Serious or lower. The site-rated 1,000 HP exemption proposed 

for attainment areas remains unchanged in this final rule. 

2.2.2 Exemption for Boilers and Furnaces

Comment:

One tribal commenter (0183) supports the proposed exemption category for boilers and 

furnaces, but is not sure any such units are located on their tribal lands. The commenter believes 

the exemptions are reasonable and will save resources by eliminating the need for applicants and 

permitting agencies to calculate PTE.

Response:

We appreciate support for the proposed exemption.

Comment:

One state/local commenter (0181) believes that boilers and/or furnaces below the 

proposed heat input rates should not be exempt from minor NSR permitting in ozone 

nonattainment areas classified as Severe or higher because it would provide a competitive 

advance to sources locating in Indian country. The commenter explains that the SCAQMD air 

quality rules require controls for NOx at levels below the proposed exemption rates of 5 million 

Btu/hr for nonattainment areas; 10 million Btu/hr for attainment areas. The commenter refers to
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the SCAQMD’s NOx emission limits of 9 ppm for natural gas boilers having heat rates between 

2 million Btu/hr and 5 million Btu/hr to be met by January 1, 2012. In addition to that 

requirement, natural gas industrial furnaces must meet an emissions limit of 30 ppm (Rule 1147)

and NOx controls for fan-type central furnaces under 175,000 Btu/hr are required as well (Rule 

1111). The commenter states that the permitting exemption under Rule 219(b) (2) applies only to 

boilers and furnaces under 2 million Btu/hr.

Response:

We believe the commenter raises a valid concern regarding the potential impacts to 

portions of the South Coast Air Basin classified as Severe or Extreme ozone nonattainment areas

that are adjacent to/downwind from Indian country. In certain cases the proposed exemption 

could make it more difficult for downwind non- Indian country areas to achieve attainment of the 

NAAQS, which would be contrary to the requirements of title I of the Act. To minimize the 

likelihood of this occurring in the areas with higher ozone nonattainment classifications, we are

finalizing a lower heat input rate (than the proposed 5 million Btu/hr which would have applied 

in all nonattainment areas) for Severe and Extreme ozone nonattainment areas. The heat input

rate exemption for nonattainment areas in the final rule is specified as follows: for 

nonattainment areas classified Serious and lower, the exemption rate is heat input rates at or 

below 5 million Btu/hr; for ozone nonattainment areas classified as Severe or Extreme, the 

exemption level is a heat input rate at or below 2 million Btu/hr. The heat input rate exemption

proposed for attainment areas remains unchanged.

2.2.3 Proposed exemption for Forestry/Silvicultural Activities

Comment:

One tribal commenter (0183) supports this proposed exemption. The commenter states 

the view that emissions from road construction and maintenance are of particular concern (note: 

while the commenter didn’t specify, we assume the comment is referring to activities related to 

the proposed exemption category), “such emissions do not rise to a level requiring their removal 

from the list of proposed exemptions.” The commenter further states that permitting 

requirements for road construction and maintenance will impact timely repair and maintenance 

of roads on the commenter’s lands. The commenter also mentions that open burning, a potential 

source of emissions on their lands, is regulated by the Bureau of Indian Affairs. Therefore the 

commenter believes the proposed exemption for forestry and silvicultural activities is reasonable 

and will save permitting resources.

One state/local commenter (0181) requests that the proposed exemption category be 

modified or deleted. The commenter voices concern with significant emissions from road 

construction and maintenance, and logging activities. The commenter also expresses concern 

with the potential for multiple pieces of equipment to collectively exceed the minor source 

thresholds, such as engines associated with wood chippers, a consideration EPA noted in 

identifying units/activities to propose for exemption (78 FR 33270). The commenter urges the 

EPA to delete the proposed exemption and instead rely on the attainment and nonattainment 
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NOx thresholds (10 tpy and 5 tpy, respectively) to determine when a permit must be obtained. As 

an alternative, the commenter suggests that specific types of equipment could be exempted

instead of the entire category if the EPA determines them to have de minimis emissions.

Response:

One reason we proposed the forestry/silvicultural category for exemption was to be 

consistent with the exemptions list in the FARR, which applies in Indian country in the 

Northwest. A second reason we proposed this category for exemption was that we believed all 

emissions within the category would be de minimis in nature. Therefore, subjecting them to NSR 

permitting would provide little environmental benefit. Both commenters express some concern 

with the emissions associated with forestry and silvicultural activities, and one commenter 

identifies a situation where emissions could exceed de minimis levels. 

Upon considering available information, we have concluded that a category-wide 

exemption is not the most appropriate approach to managing emissions for forestry and 

silvicultural activities. This conclusion is based on our recognizing the broad range of activities 

and potential emissions sources that could be part of this category and the potential to

inadvertently exclude units with significant emissions. Due to the broad nature of activities under

this category, we believe that there might be cases where permitting of certain emission units is

needed to protect air quality, which would be precluded under a category wide exemption. Based 

on that concern, we believe it is more appropriate to use the emission thresholds in the existing

rule (e.g., NOx: 10 tpy and 5 tpy in attainment and nonattainment areas respectively) to 

determine source permitting requirements and not have a broad, category-wide exemption.

Therefore the exemption for forestry and silvicultural activities is not included in the final 

amendments.

2.3 Recommendations for Other Exemptions

Comment:

One industry commenter (0186) states that it operates methanol and glycol storage tanks 

below 250 gallons in Tribal airsheds. The commenter believes that given the small sizes of these 

tanks they should be added to the list of exempted emissions. The commenter states that 

emissions from these units are insignificant and that similar units, often in much greater sizes, 

are considered insignificant for Title V purposes

Response:

We agree with the commenter that emissions from such tanks are of a de minimis level. 

However, we chose exemption categories based on more than that single criterion. In this case, 

we believe that the types of tanks cited by the commenter would be found, generally, in the 

following situations: 1) the tank is located at a well, with no other equipment present besides the 

necessary piping, valves and controllers at the well, and the minor source permitting thresholds 

would be sufficient exclude a tank at this location from permitting; or 2) the tank is located with 

several other pieces of equipment (e.g., glycol storage tank with a glycol dehydrator and a 
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condensate tank) that collectively exceed the minor source permitting threshold, and must obtain 

a permit prior to construction. Due to the different facility configurations where these tanks 

could be found, we believe the minor source permitting thresholds are the appropriate way to 

decide permit requirements. For this reason we have not added these units to the exemption list 

as suggested by the commenter. 

Comment:

One industry association commenter (0182) states that many member companies operate

facilities with one significant emissions source, such as a compressor, that is accompanied by 

other insignificant auxiliary equipment, such as a tank or heater. The commenter recommends

that the EPA consider an additional exemption based on a general PTE threshold for the

insignificant auxiliary equipment at such a location. The commenter believes this would alleviate 

the equipment database maintenance and reporting requirements for these activities. The 

commenter believes this exemption would be consistent with the EPA’s goal to limit permitting 

burden for minor emitting units expected to be very common.

Response:

The commenter is suggesting that we exempt certain emission units from permitting at a 

facility whose potential emissions have been shown to exceed the minor source permitting 

thresholds. The minor source permitting thresholds in the Indian country minor NSR rule were

developed to identify those facilities that should be subject to permitting for the purposes of 

attaining or maintaining the NAAQS, as required by Section 110(a)(2)(C) of the Act. Once a 

facility’s PTE has been evaluated and found to exceed the minor NSR thresholds the source is 

required to obtain a permit. At that point, we believe the determination of emission control 

requirements, recordkeeping and reporting should be made by the reviewing authority on a caseby-case basis. Also insignificant activities could also be exempted. We do not believe that 

applying an individual emissions unit PTE exemption is appropriate for those cases.

2.3.1 Other Categories Proposed for Exemption

Comment:

One tribal commenter (0183) supported the proposed exemptions for engines below 50 

HP; single family residences/residential dwellings; air condition units used for comfort; and 

cooking of food. The commenter believes that permitting of these sources would be 

unnecessarily burdensome for applicants and permitting agencies.

Response:

We appreciate support for the four exemption categories cited by the commenter. We 

have finalized these exemptions as proposed.
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2.4 Construction Related Terms

2.4.1 General Comments on Construction Terms

Comment:

One tribal commenter (0183) supports the proposed clarifications for “commence 

construction” and “begin construction” and believes that using different terms for the distinct 

permitting milestones provides clarity. The commenter also supports the specific definitions 

proposed and finds it helpful that they specify activities that are allowed before a permit has been

issued.

Response:

We appreciate support for the proposed clarifications. 

2.4.2 Definition of Begin Construction

Comment:

One industry association commenter (0182) notes that the proposed definition of "begin 

construction" lists certain activities that can be conducted before the source has obtained a 

permit7. The commenter states that the list is more restrictive than the Agency's long standing 

approach to permissible activities. The commenter refers to a policy memo addressing activities 

allowed without a permit8and states that the EPA should not deviate from previously established 

policies.

Response:

We agree with the commenter. Our intent was to include the same list of activities in the 

proposed definition that have been historically allowed under EPA policy prior to obtaining a 

permit. We inadvertently omitted the term "grading" from the list in the proposed definition. We 

have added grading to the activities allowed under the definition of “begin construction” in the 

final rule to maintain consistency with existing EPA policy.

2.4.3 Definition of Commence Construction

 

7 The list we proposed includes the following activities: engineering and design planning, geotechnical 

investigation (surface and subsurface explorations), clearing, surveying, ordering of equipment and materials, 

storing of equipment or setting up temporary trailers to house construction management or staff and contractor 

personnel.

8 Memorandum from Reich, Edward E., OAQPS, to DeSpain, Robert R., EPA Region VII, titled 

Construction Activities Prior to Issuance of a PSD Permit with Respect to “Begin Actual Construction,” March 28, 

1986,
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Comment:

One industry association commenter (0182) refers to the recently promulgated FIP for the 

Fort Berthold Indian Reservation (FBIR) and notes that under that rule, construction begins on 

the date on which well completion operations are initiated (78 FR 17836). The commenter 

requests that the definition from the FBIR FIP also be used in the Indian country minor NSR rule

for facilities in the oil and gas exploration and production sector.

Response:

The FBIR FIP cited by the commenter does not address preconstruction permitting 

requirements. Instead, it specifies emission reduction measures for oil and gas production 

activities within the FBIR. The well completion milestone under the FBIR FIP establishes the 

date when emission controls must be in operation, it does not identify or establish a deadline for

permitting. By contrast, the Indian country minor NSR rule is a preconstruction program. It 

would not be appropriate to use the same definition in both rules since they serve different 

purposes. No changes related to this comment were made to the definition of commence 

construction in the final rule.

2.5 Source Relocation

2.5.1 30-Day Advance Notification Provision

Comment:

One tribal commenter (0183) believes that at least 30 days notice is warranted for 

relocation of a non-portable source since a new permit may be required, and in that case, the 

permitting authority (i.e., reviewing authority) will need sufficient time to process the application 

and issue a permit. The commenter elaborates that for a portable source, a 10-day notice 

requirement may be sufficient since its permit will likely include pre-approved new locations. 

The commenter agrees with the EPA's interpretation that these time periods apply where an 

entire source is relocated, noting that relocation of one or more pieces of equipment or emission 

units requires consultation with the source's reviewing authority to determine if a modification 

will occur under the federal Indian country minor NSR rule.

Another tribal commenter (0184) believes that, based on their permitting experience, in 

situations where a registered source relocates to a new, previously unapproved location, the 

permitting authority should have at least 30 days to review the relocation request. The 

commenter states that this time period is needed for tribal and historic preservation office 

reviews to be performed.

One industry association commenter (0182) reiterates comments made in its petition for 

reconsideration on the July 1, 2011, final federal Indian country minor NSR rule stating that 

sources often relocate on short notice and occasionally change a previously planned relocation 

with little advance warning. The commenter states that the 30-day advance notice requirement is 

incompatible with oil and gas sector operations. In a subsequent teleconference, the commenter 
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clarified that their primary concern involves relocation of one or more pieces of equipment or 

emissions units and not entire sources.9In response to the EPA’s request for comment on the 

notification provision, the commenter agrees with the EPA’s statement that there is no 

requirement for advance approval, or a permit, for a registered source that relocates prior to 

September 2, 2014. The commenter suggests that, in those cases, there is no need or value to an 

advance notification as long as the source continues to comply with its permit. The commenter 

elaborates that there will be sufficient opportunity after relocation to notify the EPA of any

change. The commenter offers that one possible approach is the one used under 40 CFR 63.9(j), 

and could be adopted in the Tribal rule10. The commenter also references the recently

promulgated oil and gas sector NSPS which allows for a lag time between source start-up and the 

determination of whether controls are required.

Response:

We specifically requested comment on the case where the source relocates before 

September 2, 2014 (i.e., where no permit is required). As we discussed in the preamble for the 

proposed amendments (78 FR 33723), a true minor source that relocates in that situation does

not need prior approval from its reviewing authority. . The notification provision simply specifies 

advance notification in that case. However, it was not clear in some tribal comments if they were 

addressing the situation where relocation occurs before September 2, 2014, or on or after that 

date, since the need for a permit was mentioned by commenters. For that latter case, as stated in 

the proposal, a previously unpermitted portable source (e.g., a hot-mix asphalt plant) that 

relocates on or after September 2, 2014, will be required to obtain a permit prior to relocation,

and we believe that any such permit will contain provisions addressing any future relocation. In 

this case of relocation on/after September 2, 2014, the permit application fulfills the advance

notification requirement. In addition, we believe in cases where a permit is required the 

permitting process addresses the tribal and historic preservation obligations cited by the 

commenters. Because none of the commenters presented examples of a situation where the 30-

day advance notification provision justifies a reduction, we are retaining the 30-day notification 

period. In the additional discussion in section 2.5.2, we are clarifying that the advance notice 

relocation provision is intended to apply to entire sources and not individual pieces of equipment 

or emissions units.

2.5.2 Permitting Issues related to Source Relocation

Comment:

One industry association commenter (0182) referenced the EPA’s discussion in the 

proposed rule preamble addressing permitting obligations for true minor sources that relocate (78 

FR 33273). The commenter disagrees with the EPA’s statement that a true minor source 

constructed before September 2, 2014 that relocates after that date will have to obtain a permit. 

 

9

See memorandum titled Summary of Discussion from the October 23, 2013, Teleconference between API 

Representatives and the Environmental Protection Agency on Source Relocation under the Tribal Minor NSR Rule. 

Nov 13, 2013. Docket number EPA-HQ-OAR-2003-0076-0188.

10 This section allows sources to submit changes to previously provided information within 15 days after 

the change occurs.
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The commenter states that relocation is not tantamount to a modification of such a source and 

therefore the need for a permit is not triggered. The commenter clarified in a subsequent 

teleconference11 that most of the situations addressed in the comments involve relocation or 

replacement of a single piece of equipment, not entire facilities.

Further, the commenter disagrees with EPA’s statement in the proposed rule preamble

that a true minor source constructed after Sept 2, 2014 must obtain a permit for the original 

location and any subsequent relocation not specifically pre-authorized in the original permit. The 

commenter believes the EPA should clarify that permit conditions listing specific sites for 

relocation are not required. The commenter states that this approach would be particularly 

important for general permits where the ability to relocate would have to be based on generic 

criteria. The commenter believes no other approach would work with a general permit.

Response:

The registration program and relocation provisions in 40 CFR 49.160(d)(1) apply to an 

entire true minor source, they are not applicable to an individual piece of equipment that is 

merely a part of the true minor source. The registration program is used in developing an 

inventory of emissions throughout Indian country to help us manage and protect air quality. We 

understand from the commenter that moving a single piece of equipment from one facility to 

another, or replacing a piece of equipment with a new one, can occur on a regular basis. For 

clarification purposes, we believe it would be beneficial to both sources and reviewing 

authorities for us to list the different situations involving a piece of equipment that we believe 

will be most common, and specify the outcome with respect to minor NSR permitting. While we 

have listed expected outcomes below, the source should still verify with its reviewing authority 

that the “matching” situation listed below, and its stated outcome, applies to its case:

1) A unit at a permitted source is replaced “in kind” (i.e., the replacement unit is of the 

same size, capacity, horsepower, etc. as the existing unit) – The owner/operator should notify the 

reviewing authority as specified in its permit. If the existing permit conditions do not address 

equipment replacement/relocation then the source should send a notification letter to its 

reviewing authority no later than 60 days following replacement of the unit.

2) A unit at a registered but unpermitted source is replaced in kind - No new notification 

required since this unit would already be part of the inventory.

3) A unit is moved within the boundary of a permitted or registered source - No new 

notification to the reviewing authority required, unless otherwise specified in the permit.

4) A unit planned for addition (i.e., not replacement) at either a permitted or registered

source, with PTE above the minor NSR thresholds – The owner/operator of the true minor 

source must first obtain a minor source permit before installing the unit at the new location

beginning on September 2, 2014.

 

1

11 Ibid. 9, p. 12.
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5) One or more units (with combined PTE between the minor and major source 

thresholds) that are relocated to an entirely new location (i.e., a greenfield facility) – a) Prior to 

September 2, 2014, the owner/operator of the true minor source must notify its reviewing 

authority within 90 days of beginning operation at the new location in accordance with 40 CFR 

49.160(c)(1)(ii); b) On or after September 2, 2014, the owner/operator of the true minor source

must obtain a minor NSR permit from the reviewing authority at the new location before

beginning construction.

6) A unit moved from one registered source to another registered source before the 

September 2, 2014 permitting deadline – The source must notify the reviewing authority of

removal of the unit from the originating source (to update its inventory) and also notify the 

reviewing authority of the addition of the unit at the new source within 60 days following the 

change in location.

Note: We are not addressing any comments pertaining to general permits in this 

document since the proposed amendments did not address general permits.

Comment:

One industry commenter (0186) expressed concern with impacts to drilling schedules

created by the permitting process (up to 6 months for individual permits) and believes the EPA 

should allow oil and gas operators to transfer an approved minor source permit to a new location,

within the same basin or "general area," as long as construction hasn't commenced. The 

commenter states that such a transfer would be done without reopening the permit and further 

delaying the oil and gas development. The commenter believes the EPA could require notice of 

such a transfer 10 to 30 days prior to the source commencing construction at the new location, 

thus saving time and resources for all parties.

Response:

We believe it would be appropriate to address situations such as those cited by the 

commenter on a case-by-case basis. We believe that oil and/or gas basins are too varied in terms 

of size, terrain, proximity to other emission units and other parameters to develop any

generalized criteria that could allow preapproval of locations beyond the single location

authorized under the initial permit.

2.6 Other Comments on Permitting

Comment:

One industry association commenter (0182) states that, in the existing federal Indian 

country minor NSR rule, true minor sources constructed or modified after August 30, 2011, are 

required to obtain a permit. The commenter notes that the EPA proposed to revise this

applicability date until September 2, 2014, and the commenter supports this change.

Response:
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We believe the commenter may have misinterpreted the existing requirements within

49.151(c)(1)(iii). Our intent under the existing rule has always been that true minor sources do

not need a permit if they commence construction before September 2, 2014. We proposed

changes to the regulatory text on June 4, 2013, that are intended to clarify the nature of this

deadline. We are finalizing these proposed changes to the regulatory text to make this intent 

clear.

2.7 Miscellaneous Comments

2.7.1 Rulemaking Process

Comment:

One private citizen (0178) references the discussion in the proposed rule preamble (78 

FR 33270), and characterizes EPA’s consideration of burden in the permitting process for 

various source types, as looking at the "cost/benefit" of the regulation. The commenter opines 

that such an analysis is inappropriate on existing regulations. The commenter elaborates that cost 

should be considered in amending a regulation, but it should not be as prominent a factor as it 

appears to be in the proposed rulemaking.

Response:

The units/activities proposed for addition to the exemption list were identified primarily 

based on their low emission potential. A cost analysis was not generated or used to select the 

exemption categories.

2.7.2 General Permits

Comment:

One industry association commenter (0182) cites applicability provisions for obtaining a 

permit (note: these are under 49.151(c)(1)(iii)(B)), and expresses concern related to coverage 

under a general permit to meet those dates. The commenter states that the EPA should allow 

coverage immediately after the effective date of the general permit rather than requiring the 

source to wait six months after publication in the Federal Register to seek coverage. 

Alternatively, the commenter suggests, the EPA could push back the September 2, 2014 

permitting deadline to a reasonable period after general permit publication.

The industry association commenter also states that the current rule allows sources to

apply for coverage under a general permit no earlier than 6 months after a general permit is 

published in the Federal Register. The commenter believes that, based on the availability of the 

general permit, the EPA would need to publish the final general permit for the oil and gas sector 

in the Federal Register no later than December 2, 2013, to provide affected sources sufficient 

time to obtain coverage by September 2, 2014. The commenter opines that failure to make the 

general permit available in a timely fashion will require all oil and gas sector sources to obtain 
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site-specific permits, and that this outcome would be a waste of time and resources. The 

commenter states that the EPA should make it clear that sources are deemed covered if the EPA 

fails to respond to a general permit request.

One industry commenter (0186) recommends that the EPA engage industry stakeholders 

and tribes early in the general permit development process (i.e., prior to proposal of a draft 

general permit) to accurately consider the scope, impacts and other criteria of oil and gas sources 

as well as to make sure Tribal interests are met.

Response:

Requirements related to coverage under the general permit were not part of the 

amendments proposed on June 4, 2013. However, a notice of proposed rulemaking related to 

general permits for minor sources in Indian country was published in the Federal Register on 

January 14, 2014. That notice asks for comment on extending the permitting deadline for true 

minor oil and gas sector sources between 12 and 18 months beyond the deadline cited by the 

industry association commenter.

2.7.3 Environmental Appeals Board

Comment:

One industry commenter ((0186) notes that an individual minor source permit could take 

up to six months for approval. Since the commenter anticipates a need for up to 50 true minor 

source permits annually, these "delays" are economically significant and the commenter is 

concerned about the EPA's resources and ability to meet permit issuance deadlines. The 

commenter continues that in addition to the review and issuance time period, the Environmental 

Appeals Board (EAB) review process can also be invoked, adding further delay (up to two years 

in total) before permitted operations could begin. The commenter believes this process is 

inefficient, inappropriate, and unnecessary for minor sources and requests that the EAB review 

process be eliminated for true and synthetic minor NSR permits. As an alternative, the 

commenter requests that a more expeditious review process be established that includes the 

elimination of the automatic "stay" for minor and synthetic NSR permits while awaiting EAB 

review.

Response:

The EAB review process was not part of the amendments proposed on June 4, 2013.