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Monday, 

August 21, 2006 

Part V 

Environmental 

Protection Agency 

40 CFR Parts 49 and 51 

Review of New Sources and Modifications 

in Indian Country; Proposed Rule 

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48696 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 49 and 51 

[EPA–HQ–OAR–2003–0076; FRL–8210–4] 

RIN 2060–AH37 

Review of New Sources and 

Modifications in Indian Country 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Proposed rule. 


SUMMARY: The Environmental Protection 

Agency (EPA) proposes to promulgate a 

Federal Implementation Plan (FIP) 

under the Clean Air Act (the Act) for 

tribes in Indian country. The FIP would 

include two basic air quality regulations 

for the protection of communities in 

Indian country. The first rule would 

apply to minor stationary sources and 

minor modifications at major stationary 

sources in Indian country (minor NSR 

rule). The second rule would apply to 

all new major stationary sources and 

major modifications located in areas of 

Indian country that are designated as 

not attaining the National Ambient Air 

Quality Standards (NAAQS) 

(nonattainment major NSR rule). These 

rules would be implemented by EPA, or 

a delegate tribal agency assisting EPA 

with administration of the rules, until 

replaced by an EPA-approved tribal 

implementation plan for an area of 

Indian country. 

DATES: Comments. Comments must be 

received on or before November 20, 

2006. Under the Paperwork Reduction 

Act, comments on the information 

collection provisions must be received 

by OMB on or before September 20, 

2006. 

Public Hearing. If anyone contacts us 

requesting to speak at a public hearing 

by September 11, 2006, we will hold a 

public hearing. Additional information 

about the hearing would be published in 

a subsequent Federal Register notice. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2003–0076, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-rdocket@epamail.epa.gov. 

• Fax: 202–566–1741. 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2003–0076, U.S. 

Environmental Protection Agency, EPA 

West (Air Docket), 1200 Pennsylvania 

Avenue, Northwest, Mailcode: 6102T, 

Washington, DC 20460. Please include a 

total of 2 copies. In addition, please 

mail a copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue, 

Northwest, Room B–102, Washington, 

DC 20004, Attention Docket ID No. 

EPA–HQ–OAR–2003–0076. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2003– 

0076. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to I C & D of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA West, 

Room B102, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: For 

technical information, contact Raj Rao, 

Air Quality Policy Division, U.S. EPA, 

Office of Air Quality Planning and 

Standards (C504–03), Research Triangle 

Park, North Carolina 27711, telephone 

number (919) 541–5344, facsimile 

number (919) 541–5509, electronic mail 

e-mail address: rao.raj@epa.gov. To 

request a public hearing or information 

pertaining to a public hearing on this 

document, contact Ms. Pamela S. Long, 

Air Quality Policy Division, U.S. EPA, 

Office of Air Quality Planning and 

Standards (C504–03), Research Triangle 

Park, North Carolina 27711, telephone 

number (919) 541–0641, facsimile 

number (919) 541–5509, electronic mail 

e-mail address: long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially affected by this 

proposed action include owners and 

operators of emission sources in all 

industry groups located in Indian 

country, EPA, and tribal governments 

that are delegated administrative 

authority to assist EPA with the 

implementation of these Federal 

regulations. Categories and entities 

potentially affected by this action are 

expected to include: 

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Category NAICS a Examples of regulated entities 

Industry ...................................................................................................................
 4471 Gasoline station storage tanks and refueling. 

5614 Lumber manufacturer support. 

21211 Coal mining. 

31332 Surface coating operation. 

33712 Furniture manufacture. 

56221 Medical waste incinerator. 

115112 Repellent and fertilizer applications. 

211111 Natural gas plant. 

211111 Oil and gas production. 

211112 Fractionation of natural gas liquids. 

212234 Copper mining and processing. 

212312 Stone quarrying and processing. 

212313 Stone quarrying and processing. 

212321 Sand and gravel production. 

221112 Power plant-coal-fired. 

221119 Power plant-biomass fueled. 

221119 Power plant-landfill gas fired. 

221210 Natural gas collection. 

221210 Natural gas pipeline. 

321113 Sawmill. 

321911 Window and door molding manufacturer. 

323110 Printing operations. 

323113 Surface coating operations. 

324121 Asphalt hot mix plants. 

325188 Elemental phosphorus plant. 

325188 Sulfuric acid plant. 

331314 Secondary aluminum production and extrusion. 

331492 Cobalt and tungsten recycling. 

332431 Surface coating operations. 

332812 Surface coating operations. 

421320 Concrete batching plant. 

422510 Grain elevator. 

422710 Crude oil storage and distribution. 

422710 Gasoline bulk plant. 

486110 Crude oil storage and distribution. 

486210 Natural gas compressor station. 

562212 Solid waste landfill. 

811121 Automobile refinishing shop. 

812320 Dry cleaner. 

Federal government ................................................................................................ 924110 Administration of Air and Water Resources and 

Solid Waste Management Programs. 

State/local/tribal government .................................................................................. 924110 Administration of Air and Water Resources and 

Solid Waste Management Programs. 

a North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. To determine 

whether your facility is regulated by this 

action, you should examine the 

applicability criteria in the proposed 

minor and major NSR programs for 

Indian country, proposed 40 CFR 49.153 

and 49.168, respectively. If you have 

any questions regarding the 

applicability of this action to a 

particular entity, contact the person 

listed in the preceding FOR FURTHER 

INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2003–0076. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

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• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Where Can I get a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of this 

proposal will also be available on the 

WWW. Following signature by the EPA 

Administrator, a copy of this notice will 

be posted in the regulations and 

standards section of our NSR home page 

located at http://www.epa.gov/nsr and 

on the tribal air home page at http:// 

www.epa.gov/oar/tribal. 

D. How Can I Find Information About a 

Possible Hearing? 

Persons interested in presenting oral 

testimony should contact Ms. Pamela 

Long, New Source Review Group, Air 

Quality Policy Division (C504–03), U.S. 

EPA, Research Triangle Park, NC 27711, 

telephone number (919) 541–0641 or email long.pam@epa.gov at least 2 days 

in advance of the public hearing. 

Persons interested in attending the 

public hearing should also contact Ms. 

Long to verify the time, date, and 

location of the hearing. The public 

hearing will provide interested parties 

the opportunity to present data, views, 

or arguments concerning these proposed 

rules. 

E. Overview of Rule 

In this rulemaking, we 1 are proposing 

to fill a regulatory gap that currently 

exists in Indian country. We are 

proposing two new source review (NSR) 

rules under which the reviewing 

authority will issue pre-construction 

permits for certain stationary sources of 

air pollution in Indian country. These 

proposed rules would provide 

additional regulatory tools for us to use 

in implementing the Act in Indian 

country. The minor NSR rule would 

apply to new and modified minor 

sources and to minor modifications at 

major stationary sources. Sources 

subject to this rule would apply control 

technology, if any, as determined by the 

reviewing authority on a case-by-case 

basis. In rare instances at the discretion 

of the reviewing authority, such sources 

may also be required to submit an air 

quality analysis as part of their permit 

application. We are proposing to 

establish minor NSR thresholds so that 

1 In this proposal, the term ‘‘we’’ refers to the EPA 

and the term ‘‘you’’ refers to stationary sources of 

air pollution and their owners and operators. 

only minor sources with a potential to 

emit (PTE) equal to or higher than these 

thresholds would be subject to this rule. 

Additionally, this rule would allow 

otherwise major stationary sources in 

Indian country to voluntarily accept 

emission limitations on their PTE to 

become ‘‘synthetic minor sources.’’ 

Such synthetic minor sources would 

include sources that emit hazardous air 

pollutants (HAP). In such a case, they 

would not be subject to major source 

MACT regulations under 40 CFR part 

63. Any limitations on PTE must be 

enforceable as a practical matter (that is, 

legally and practically enforceable). 

Under the nonattainment major NSR 

rule, affected sources would be required 

to comply with the provisions of 40 CFR 

part 51, appendix S, a transitional rule 

which generally applies to areas that do 

not have a State Implementation Plan 

(SIP). Sources subject to this rule would 

be subject to requirements for Lowest 

Achievable Emission Rate (LAER) 

control technology, emissions offsets, 

compliance certification, and net air 

quality benefit analysis. Due to the 

limited number of sources in Indian 

country, offsets are not generally 

available. We have proposed options for 

addressing the lack of availability of 

offsets in Indian country. 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does This Action Apply to Me? 

B. What Should I Consider as I Prepare My 

Comments for EPA? 

C. Where Can I get a Copy of This 


Document and Other Related 


Information? 


D. How Can I Find Information About a 

Possible Hearing? 

E. Overview of Rule. 

II. Purpose 

III. Background 

A. The New Source Review (NSR) Program 

1. What are the general requirements of the 

major NSR program? 

2. What are the general requirements of the 

minor NSR program? 

B. Status of Air Quality Programs in Indian 

Country 

C. Consultation With Tribal 


Representatives 


IV. Proposed Rules for Indian Country 

A. Minor NSR Program 

1. What is a minor source and which minor 

sources are subject to this rule? 

2. What is a modification and what 

modifications are subject to this rule? 

3. What are the minor NSR thresholds and 

how did we develop them? 

4. Are any emissions units and activities at 

stationary sources exempt from this rule? 

5. What are the permit application, control 

technology, and air quality analysis 

requirements, and what is the permit 

issuance process? 

6. When are modifications subject to this 

rule? 

7. Why do we believe that an allowable-toallowable test is appropriate for minor 

sources? 

8. Is your existing minor source subject to 

this rule? 

9. How are ‘‘synthetic minor sources’’


subject to this rule? 


10. How would section 112(g) case-by-case 

MACT determinations be addressed by 

this rule? 

11. What are the proposed requirements for 

public participation in the permitting 

process? 

12. What are the monitoring, 


recordkeeping, and reporting 


requirements? 


13. What are the criteria for general 

permits, what source categories generally 

qualify for them, and what are the permit 

application requirements for a general 

permit? 

14. What is the administrative and judicial 

review process proposed for this 

program? 

B. Major NSR Program in Nonattainment 

Areas of Indian Country 

1. What are the requirements for major 

source permitting under appendix S? 

2. What are the options we are proposing 

to address the lack of available offsets in 

Indian country? 

3. What are the proposed public 


participation requirements for this 


program? 


4. How do I meet the statewide compliance 

certification requirement of the Act? 

V. Legal Basis, Statutory Authority, and 

Jurisdictional Issues 

A. What is the basis for our authority to 

implement these programs? 

B. How does a tribe receive delegation to 

assist EPA with administration of the 

Federal minor and major NSR rules? 

C. What happens to permits previously 

issued by States to sources in Indian 

country? 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 


Planning and Review 


B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

J. National Technology Transfer 


Advancement Act 


VII. Statutory Authority 

II. Purpose 

The purpose of today’s rulemaking is 

to ensure that air resources in Indian 

country will be protected in the manner 

intended by the Act as amended in 1990 

by establishing a permitting program for 

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stationary sources in Indian country. 

Currently in Indian country, there is no 

permitting mechanism for new or 

modified minor sources; minor 

modifications at major sources; or new 

major stationary sources or major 

modifications of regulated NSR 

pollutants in nonattainment areas. In 

addition, there is no minor source 

permitting mechanism for major 

stationary sources looking to voluntarily 

limit emissions to become synthetic 

minor sources 2 or for approving caseby-case maximum achievable control 

technology (MACT) determinations. 

Today’s proposed rules will fill this 

regulatory gap and provide regulatory 

certainty to allow for environmentally 

sound economic growth in Indian 

country. By establishing this FIP for 

Indian country, we will provide more 

consistency with the requirements and 

programs of the States and thus create 

a more level regulatory playing field for 

owners and operators within and 

outside of Indian country. We are 

proposing these permit programs 

pursuant to section 110(a)(2)(C), part D 

of title I, and section 301(d) of the Act. 

III. Background 

A. The New Source Review (NSR) 

Program 

1. What are the general requirements of 

the major NSR program? 

The major NSR program contained in 

parts C and D of title I of the Act is a 

preconstruction review and permitting 

program applicable to new major 

stationary sources and major 

modifications at such sources. In areas 

not meeting health-based NAAQS and 

in ozone transport regions (OTR), the 

program is implemented under the 

requirements of part D of title I of the 

Act. We call this program the 

‘‘nonattainment’’ major NSR program. In 

areas meeting the NAAQS (‘‘attainment’’ 

areas) or for which there is insufficient 

information to determine whether they 

meet the NAAQS (‘‘unclassifiable’’ 

areas), the NSR requirements under part 

C of title I of the Act apply. We call this 

program the Prevention of Significant 

Deterioration (PSD) program. 

Collectively, we also commonly refer to 

these programs as the major NSR 

program. These rules are contained in 

40 CFR 51.165, 51.166, 52.21, 52.24, and 

part 51, appendices S and W. 

For newly constructed, ‘‘greenfield’’ 

sources, the determination of whether a 

2 Sources located within the exterior boundaries 

of Indian reservations in Idaho, Oregon, and 

Washington can apply for a non-Title V operating 

permit to establish synthetic minor status under the 

FIP established for those reservations. See 40 CFR 

49.139 and 40 CFR part 49, subpart M. 

source is subject to the major NSR 

program is based on the source’s PTE. 

The Act, as implemented by our rules, 

sets applicability thresholds for major 

sources in nonattainment areas. These 

thresholds are 100 tons per year (tpy) of 

any pollutant subject to regulation 

under the Act, or smaller amounts, 

depending on the nonattainment 

classification. For attainment areas the 

thresholds are 100 or 250 tpy, 

depending on the source type. A new 

source with a PTE at or above the 

applicable threshold amount ‘‘triggers,’’ 

or is subject to, major NSR. 

For existing major sources, major NSR 

applies to a ‘‘major modification.’’ For a 

modification to be major, the following 

three criteria have to be met: 

(1) A physical change in or change in 

the method of operation of a major 

stationary source must occur; 

(2) The increase in emissions 

resulting from this change must be 

significant (equal to or above the 

significance levels defined in 40 CFR 

52.21(b)(23)); and 

(3) The increase in emissions 

resulting from the change must be a 

significant net emissions increase. In 

other words, when the increase from the 

project is added to other 

contemporaneous increases or decreases 

in actual emissions 3 at the source, the 

net emissions increase must be 

significant (equal to or above the 

significance levels defined in 40 CFR 

52.21(b)(23)). 

Major sources and major 

modifications subject to nonattainment 

major NSR must apply state-of-the-art 

emissions control technologies, 

including any pollution prevention 

measures, to achieve the LAER. The 

LAER is based on the most stringent 

emission limitation in the 

implementation plan of any State, or 

achieved in practice, for the source 

category under review. 

Each major source subject to 

nonattainment major NSR must also 

‘‘offset’’ its emissions increase by 

obtaining emissions reductions from 

other sources in the area, or in an area 

of equal or higher nonattainment 

classification that contributes to 

nonattainment in the subject source’s 

area. The ratio of the offset relative to 

the proposed increase must be at least 

one-to-one and is based on the severity 

of the area’s nonattainment 

classification. For ozone and particulate 

3 In approximate terms, ‘‘contemporaneous’’ 

emissions increases or decreases are those that have 

occurred between the date 5 years immediately 

preceding the proposed physical or operational 

change and the date that the increase from the 

change occurs. See, for example, 40 CFR 

52.21(b)(3)(ii). 

matter less than 10 microns in 

aerodynamic diameter (PM–10), the 

more polluted the air is where the 

source is locating or expanding, the 

greater is the required offset ratio. The 

emissions reductions to be used as 

offsets must be surplus (not otherwise 

required by the Act), quantifiable, 

federally enforceable, and permanent. 

See sections 173(a) and (c) of the Act 

and 40 CFR 51.165(a)(3). 

Additionally, each major 

nonattainment NSR permit applicant 

must also conduct an analysis of 

‘‘alternative sites, sizes, production 

processes, and environmental control 

techniques demonstrating that the 

benefits of the proposed emissions 

source significantly outweigh the 

environmental and social costs of its 

location, construction, or modification.’’ 

Moreover, each major nonattainment 

NSR permit applicant must demonstrate 

that all other major stationary sources 

under her/his control in the same State 

are in compliance or on a schedule of 

compliance with all emission 

limitations and standards of the Act. 

Under the PSD program for 

attainment areas, a major source or 

modification must apply Best Available 

Control Technology (BACT), which may 

be based on pollution prevention 

techniques. In addition, the source must 

analyze the impact of the project on 

ambient air quality to assure that no 

violation of the NAAQS or PSD 

increments will result, and must 

analyze impacts on soil, vegetation, and 

visibility. Sources or modifications that 

would impact Class I areas (e.g., 

national parks) may be subject to 

additional requirements to protect air 

quality related values (AQRVs) that 

have been identified for such areas. 

2. What are the general requirements of 

the minor NSR program? 

Section 110(a)(2)(C) of the Act 

requires that every SIP include a 

program to regulate the construction 

and modification of stationary sources, 

including a permit program as required 

by parts C and D of title I of the Act, 

to ensure attainment and maintenance 

of NAAQS. Parts C and D address the 

major NSR program for major stationary 

sources, and the permitting program for 

minor stationary sources is addressed by 

section 110(a)(2)(C) of the Act. We 

commonly refer to the latter program as 

the ‘‘minor NSR’’ program. A minor 

stationary source means a source whose 

PTE is lower than the major source 

applicability threshold for a particular 

pollutant as defined in the applicable 

nonattainment major NSR program or 

PSD program. 

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The Federal requirements for minor 

source programs are outlined 40 CFR 

51.160 through 51.164. States must 

develop minor source programs to attain 

and maintain NAAQS. The Federal 

regulations for minor source programs 

are considerably less detailed than the 

requirements for major sources. As a 

result, there is a wider variety of 

programs and requirements for these 

‘‘nonmajor’’ preconstruction activities. 

Section 110(a)(2)(C) of the Act 

provides us with a broad degree of 

discretion in developing a program to 

regulate new and modified minor 

stationary source construction activities 

in Indian country. 

B. Status of Air Quality Programs in 

Indian Country 

As we have discussed in previous 

rulemaking actions which affect Indian 

country, in the absence of an EPAapproved program, we are authorized to 

develop a FIP to protect air quality by 

directly implementing provisions of the 

Act throughout Indian country. See, e.g., 

59 FR 43958–61 (August 25, 1994), 63 

FR 7262–64 (February 12, 1998), and 62 

FR 13750 (March 21, 1997). Previously, 

we had already promulgated rules 

establishing requirements for major 

stationary sources in attainment areas 

and have issued PSD permits in Indian 

country (See 40 CFR 52.21). 

Under the Act and the Tribal 

Authority Rule (TAR) (See 40 CFR part 

49, subpart A), eligible tribes may seek 

approval of their own PSD programs for 

their reservations and/or for other areas 

under their jurisdiction. Currently, no 

tribe is administering an EPA-approved 

PSD program. Therefore, we implement 

the PSD program in Indian country. 

Unlike for the PSD program, there is 

currently no FIP to implement either the 

nonattainment major NSR program or 

the minor NSR program in Indian 

country. Hence, there is a regulatory gap 

in Indian country. Today’s proposed 

rule will allow us to fully implement 

the NSR program in Indian country. We 

are proposing the minor NSR program at 

40 CFR 49.151 through 49.165 and the 

nonattainment major NSR program at 40 

CFR 49.166 through 49.175. It is 

important to recognize, however, that 

even if we adopt a Federal program that 

applies in Indian country, the tribes 

may still develop Tribal Implementation 

Plans (TIPs), similar to SIPs, to 

implement these programs. If a tribe 

develops a TIP to implement NSR, the 

TIP, once it is approved, will replace the 

Federal program as the requirement for 

that area of Indian country and the tribe 

will become the reviewing authority. 

Sources that obtain enforceable 

emission limitations can avoid major 

source status by reducing their PTE 

below the applicable major source 

thresholds. Such sources are commonly 

referred to as ‘‘synthetic minors.’’ The 

practice of creating synthetic minor 

sources to avoid major NSR and title V 

is common under most State and local 

minor NSR permitting programs. 

However, outside of Idaho, Oregon, and 

Washington, no such minor source 

permitting mechanism is currently 

available in Federal regulations for 

Indian country.4 We therefore believe 

that inclusion of this provision in the 

proposed rules would significantly 

benefit large sources in Indian country 

by providing them with a means to 

legally avoid more stringent major NSR 

rules otherwise required by title I of the 

Act. We are establishing this mechanism 

for both stationary sources of regulated 

NSR pollutants and HAPs. 

C. Consultation With Tribal 

Representatives 

Prior to undertaking this rulemaking, 

we sought to include tribes early in the 

rulemaking process. On June 24, 2002, 

we sent approximately 500 letters to 

tribal leaders seeking their 

recommendations for effective 

consultation and their involvement in 

developing this rule. 

We received responses from 75 tribes. 

Of these 75 tribes, 69 designated an 

environmental staff member to work 

with us on developing the rules. Aside 

from the designated staff, many tribal 

leaders asked that we keep them 

informed of our progress through e-mail, 

meetings with the EPA Regional Offices, 

newsletters, and Web sites. However, 53 

percent of the tribal leaders also 

requested direct phone calls or 

conference calls to discuss the subject. 

Only 16 percent of the respondents 

requested face-to-face consultation. Of 

these, only six tribes requested senior 

EPA staff to meet with tribal leaders. 

As a result of this feedback, we 

developed a consultation plan that 

included three meetings held at the 

reservations of the Menominee Tribe in 

Wisconsin, the Mohegan Tribe in 

Connecticut, and the Chehalis Tribe in 

Washington. A fourth meeting was held 

in conjunction with the Institute of 

Tribal Environmental Professionals’ 

(ITEP) 10th anniversary meeting in 

Flagstaff, Arizona. In addition to 

conducting these meetings, we also 

visited tribal environmental staff in 

Indian country. Over 30 tribes attended 

these meetings. As part of our outreach 

efforts to the tribes, we participated in 

4 See footnote 2 for more information on the FIP 

that is in place in within the exterior boundaries of 

Indian reservations in these three States. 

numerous national and regional forums 

including the National Tribal Forums 

sponsored by the ITEP, two National 

Tribal Air Association meetings, and at 

meetings with tribal consortia, such as 

the National Tribal Environmental 

Council, United Southern and Eastern 

Tribes, Inter-Tribal Environmental 

Council, Inter Tribal Council of Arizona, 

and others. 

Although much of our effort focused 

on outreach to the tribes, we also 

interacted with State and local air 

pollution control agencies during 

development of this rule. We had two 

meetings with the State and Territorial 

Air Pollution Program Administrators 

and the Association of Local Air 

Pollution Control Officers (STAPPA/ 

ALAPCO) to present the draft rules. 

IV. Proposed Rules for Indian Country 

A. Minor NSR Program 

Today’s action proposes provisions 

for a minor NSR program in Indian 

country. We propose to codify these 

provisions at 40 CFR 49.151 through 

49.165. Our primary goal in developing 

this proposed rule is to ensure that air 

resources in Indian country will be 

protected in the manner intended by the 

Act. In addition, we seek to establish a 

flexible preconstruction permitting 

program for minor stationary sources in 

Indian country that is comparable to 

that which applies outside of Indian 

country, in order to create a more level 

regulatory playing field for owners and 

operators within and outside of Indian 

country. 

It is important to note, however, that 

outside of Indian country there is a great 

deal of variation among State minor 

NSR permitting programs. As a result, it 

would be impossible to create a single 

program that creates precisely 

equivalent regulations among all areas 

of Indian country and the surrounding 

State areas. Instead, we designed the 

proposed rules to ensure that stationary 

sources in Indian country would operate 

with a reasonable level of air pollution 

control, if necessary, and in such a 

manner to ensure that air resources in 

Indian country would be protected. 

We are not attempting through this 

proposed rulemaking to establish a new 

set of minimum criteria that an eligible 

tribe, or a State, would need to follow 

in developing its own minor source 

permitting program. Rather, this 

proposal simply represents how we 

would implement the program in Indian 

country in the absence of an EPAapproved implementation plan. 

However, if a tribe is developing its own 

program, this can serve as one example 

of a program that meets the objectives 

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and requirements of the Act. We are 

proposing a minor source permitting 

program that addresses, on a national 

level, many environmental and 

regulatory issues that are specific to 

Indian country. We understand that 

States and eligible tribes may face 

different issues, and may therefore 

choose to develop different programs for 

their own State or Tribal 

Implementation Plans. 

1. What is a minor source and which 

minor sources are subject to this rule? 

A minor source means a source whose 

PTE is lower than an applicable major 

source threshold. For the NSR program 

in Indian country, the major source 

thresholds are defined in the PSD 

program (See 40 CFR 52.21) and in 

today’s proposed nonattainment major 

NSR program (see proposed 40 CFR 

49.167), as applicable, and differ for 

attainment areas and nonattainment 

areas for the same pollutant. For 

example, in attainment areas the major 

source threshold for Nitrogen Oxides 

(NOX) for a source is 250 tpy, unless the 

source belongs to a source category that 

is listed in the major NSR rules (See 40 

CFR 52.21(b)(1)(i)(a)), in which case the 

major source threshold is 100 tpy. In 

contrast, the major source threshold for 

NOX in ozone nonattainment areas can 

vary from 10tpy in an extreme ozone 

nonattainment area to 100 tpy in a 

marginal ozone nonattainment area. A 

source can be a major source for some 

pollutants and a minor source for 

others. 

Today, we are proposing to establish 

a minor NSR threshold as provided in 

section IV.A.3 of this preamble. The 

proposed rule would apply to only 

those minor sources whose PTE is equal 

to or greater than the minor NSR 

threshold for the regulated NSR 

pollutant. Such sources would include 

(1) New minor sources, (2) modified 

minor sources, and (3) synthetic minor 

sources including HAP sources. A 

source’s PTE for a pollutant is expressed 

in tpy and generally is calculated by 

multiplying the maximum hourly 

emissions rate in pounds per hour (lbs/ 

hr) times 8,760 (which is the number of 

hours in a year) and dividing by 2,000 

(which is the number of pounds in a 

ton), unless the source is restricted by 

permit conditions that are enforceable 

as a practical matter. 

Section IV.A.6 of this preamble 

includes detailed flowcharts to aid you 

in determining if a proposed new source 

would be subject to the proposed rule. 

The flowcharts differentiate between 

attainment areas and nonattainment 

areas because the applicability criteria 

are different for PSD and nonattainment 

major NSR. 

2. What is a modification and what 

modifications are subject to this rule? 

For the purposes of this rule, a 

modification is defined at proposed 40 

CFR 49.152(d) as (any physical or 

operational change at a stationary 

source that would cause an increase in 

the allowable emissions of the affected 

emissions units for any regulated NSR 

pollutant or that would cause the 

emission of any regulated NSR pollutant 

not previously emitted.( The following 

exemptions would apply: 

• A physical or operational change 

does not include routine maintenance, 

repair, or replacement. 

• An increase in the hours of 

operation or in the production rate is 

not considered an operational change 

unless such increase is prohibited under 

any federally-enforceable permit 

condition or other permit condition that 

is enforceable as a practical matter. 

• A change in ownership at a 

stationary source is not considered a 

modification. 

Note that this definition differs from 

the term ‘‘modification’’ as used in the 

major NSR program, primarily in that it 

is based on an increase in allowable 

emissions rather than actual emissions. 

Parts C and D of title I of the Act ‘‘the 

statutory basis for the major NSR 

program‘ refer to section 111(a)(4) of the 

Act [the definition of ‘‘modification’’ for 

purposes of the new source performance 

standards (NSPS) program] to define 

‘‘modification’’ for purposes of the 

major NSR program. In a recent 

decision, the D.C. Circuit Court of 

Appeals ruled that, based on the 

wording of the definition of 

‘‘modification’’ in section 111(a)(4) of 

the Act, the applicability of major NSR 

to modifications must be based on 

changes in actual emissions (State of 

New York, et al., v. U.S. EPA, June 24, 

2005). However, because the statutory 

basis for the minor NSR program is 

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

does not define or refer to a definition 

of ‘‘modification,’’ we believe that we 

have discretion in defining the term as 

we think it best for the minor NSR 

program in Indian country that we are 

proposing today. We do not believe that 

the recent decision of the D.C. Circuit 

Court of Appeals applies to minor NSR 

programs. We seek comment on whether 

our proposed definition of modification 

is appropriate for minor NSR for minor 

sources. 

This rule would apply to certain 

modifications at minor sources and to 

minor modifications (not major 

modifications as defined in proposed 40 

CFR 49.167 and in 40 CFR 52.21) at 

major sources. How such modifications 

would be addressed under the proposed 

rule is explained in section IV.A.6 of 

this preamble. Section IV.A.6 also 

includes detailed flowcharts to aid you 

in determining if a proposed 

modification would be subject to the 

proposed rule. 

3. What are the minor NSR thresholds 

and how did we develop them? 

A review of several State minor NSR 

programs indicated that a number of 

State programs have established cutoff 

levels or minor NSR thresholds, below 

which sources are exempt from their 

minor NSR rules. We believe that such 

an approach is also appropriate in 

Indian country. Section 110(a) (2)(C) of 

the Act requires minor NSR programs to 

assure that the NAAQS are attained and 

maintained. Applicability thresholds are 

proper in this context provided that the 

sources and modifications with 

emissions below the thresholds are 

inconsequential to attainment and 

maintenance of the NAAQS. As 

discussed further, the minor NSR 

thresholds that we are proposing today 

meet this criterion. In addition, these 

thresholds will result in a more costeffective program and reduce the burden 

on sources and reviewing authorities. 

In today’s rulemaking, we are 

proposing to adopt minor NSR 

thresholds as emission rates in tpy. In 

setting the minor NSR thresholds for 

minor sources of regulated NSR 

pollutants, we decided to use emission 

rates, rather than air quality impacts, as 

the basis for the exemption. We chose 

this approach because we were 

concerned that applicability 

determinations based on projected air 

quality impacts would be excessively 

complex and resource intensive. In 

addition, it is consistent with the 

approach used in major NSR. 

We are proposing minor NSR 

thresholds that we have developed 

based on a review of several State minor 

NSR programs. We found that there is 

variation in State approaches to minor 

NSR applicability. Some States do not 

prescribe source applicability 

thresholds, instead providing a list of 

emission units and activities that are 

excluded from minor NSR. Many of the 

States that do have applicability 

thresholds also provide a list of 

excluded emission units and activities. 

In today’s rulemaking, we propose 

threshold levels that we believe are 

neither the most stringent nor the least 

stringent of the levels found in existing 

State minor NSR rules. These threshold 

levels represent a reasonable balance 

between environmental protection and 

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economic growth, since we did not want protection at the cost of discouraging programs, and we believe that these 

them to be so high that they were not economic growth. We consider the limits will be appropriate for use in 

environmentally protective or so low proposed thresholds to be representative Indian country. The proposed 

that they ensured environmental of such thresholds in State minor NSR thresholds are listed in Table 1. 

TABLE 1.—MINOR NSR THRESHOLDS 

Regulated NSR pollutant 

Minor NSR thresholds for nonattainment areas 

(tpy) 

Minor NSR thresholds for attainment 

areas 

Extreme (tpy)

ozone areas Other areas 

Carbon monoxide (CO) ..................................................................................................... 

Oxides of nitrogen (NOX) .................................................................................................. 

Sulfur dioxide (SO2) ........................................................................................................... 

Volatile Organic Compounds (VOC) ................................................................................. 

PM ...................................................................................................................................... 

PM–10 ................................................................................................................................ 

PM–2.5 ............................................................................................................................... 

Lead ................................................................................................................................... 

Fluorides ............................................................................................................................ 

Sulfuric acid mist ............................................................................................................... 

Hydrogen sulfide (H2S) ...................................................................................................... 

Total reduced sulfur (including H2S) ................................................................................. 

Reduced sulfur compounds (including H2S) ..................................................................... 

Municipal waste combustor emissions .............................................................................. 

Municipal solid waste landfills emissions (measured as Non Methane Organic Compounds) .......................................................................................................................... 

5 

0 

5 

0 

5 

1 

0.6 

0.1 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

5 

5 

5 

2 

5 

1 

0.6 

0.1 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

10 

10 

10 

5 

10 

5 

3 

0.1 

1 

2 

2 

2 

2 

2 

10 

The selected minor NSR thresholds designation of the area where the source these sources fall below the proposed 

distinguish between minor stationary would be located. If a source straddles minor NSR thresholds, how many are 

sources of regulated NSR pollutants the two areas, the more stringent between the minor NSR and major NSR located in nonattainment versus thresholds would apply. thresholds, and how many are above the attainment areas and by pollutant. We To evaluate how the proposed minor major NSR threshold.5 If we assume that 

believe this distinction is important NSR thresholds might affect new the distribution of new sources will 

because of the different air quality goals sources locating in Indian country, we mirror the existing source distribution, in nonattainment and attainment areas. looked at the size distribution of 

In some cases, a tribe’s area of Indian existing sources across the country. this analysis approximates the fraction 

country may be divided between a Using the National Emission Inventory of new sources that will be exempt from 

nonattainment area and an attainment (NEI), which includes the most minor NSR, subject to minor NSR, and 

area. In this situation, the applicable comprehensive inventory of existing subject to major NSR, respectively. The 

threshold for a proposed source or U.S. stationary point sources that is results of this analysis by pollutant are 

modification would correspond to the available, we determined how many of summarized in Table 2. 

TABLE 2.—DISTRIBUTION OF SOURCES AND EMISSIONS UNDER PROPOSED MINOR NSR THRESHOLDS 

Pollutant 

Total facilities Unregulated minor 

sources 

Minor sources Major sources 

No. TPY % of total % of TPY % of total % of TPY (×10 3) (×10 6) % of total % of TPY 

CO .................................................................... 

SO2 ................................................................... 

PM10 ................................................................. 

PM2.5 ................................................................ 

Ozone—VOC ................................................... 

Ozone—NOX .................................................... 

Nitrogen dioxide (NO2) ..................................... 

28.9 

21.2 

33.9 

33.8 

43.3 

30.5 

30.5 

4.43 

13.90 

1.69 

1.33 

1.60 

7.93 

7.93 

65 

76 

65 

59 

42 

53 

59 

0.8 

0.1 

1.3 

0.8 

1.1 

0.4 

0.6 

29 

16 

32 

38 

53 

36 

32 

11 

1 

22 

23 

41 

6 

7 

6 

8 

4 

3 

5 

11 

9 

88 

99 

76 

76 

58 

93 

92 

As shown in Table 2, we performed 

the analysis for each of the criteria 

pollutants except lead, including VOC 

5 For this analysis, we used the final 1999 NEI, 

extrapolated to 2001. More on the 1999 NEI can be 

found at http://www.epa.gov/ttn/chief/net/ 

1999inventory.html. 

and NOX emissions as the precursors of 

ozone.6 For each pollutant, the table 

gives the total number of facilities in the 

6 For the analysis, we used the major NSR and 

proposed minor NSR thresholds for each pollutant 

based on the attainment status and classification of 

the county in which each source is located. We 

made certain simplifying assumptions, including 

using the 250 tpy major source threshold for all 

emission inventory for that pollutant 

and the total, nationwide annual 

emissions of the pollutant. The column 

sources in attainment areas, regardless of source 

category or major source status for other pollutants. 

For the details of the analysis,see ‘‘Analysis of the 

Proposed Minor NSR Thresholds’’ dated October 

24, 2005 in the docket for this rulemaking. 

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labeled ‘‘unregulated minor sources’’ 

represents the percentage of total 

sources that fall below the minor NSR 

threshold, along with the percentage of 

total annual emissions that those 

sources emit. The ‘‘minor sources’’ 

column gives the same information for 

sources that fall between the minor NSR 

threshold and the major NSR threshold, 

while the ‘‘major sources’’ column 

addresses sources that exceed the major 

NSR threshold. 

We believe that Table 2 provides 

excellent evidence that sources with 

emissions below the proposed minor 

NSR thresholds will be inconsequential 

to attainment and maintenance of the 

NAAQS. For each pollutant, only 

around 1 percent (or less) of total 

emissions would be exempt from review 

under the minor NSR program. At the 

same time, the proposed thresholds will 

promote a cost-effective program. 

According to Table 2, anywhere from 42 

percent to 76 percent of sources 

(depending on the pollutant) would be 

too small to be subject to 

preconstruction review. 

We believe that the proposed minor 

NSR thresholds provide a reasonable 

approach to determining the 

applicability of the minor NSR program. 

These thresholds would prevent 

stationary sources that make negligible 

contributions to pollution from being 

regulated under this rule. However, this 

would not affect the applicability of 

other requirements, such as those found 

in an NSPS or a MACT standard. At the 

same time, the limits would ensure that 

intermediate-sized sources would be 

subject to reasonable control technology 

requirements. We seek comment on our 

approach to selecting the proposed 

minor NSR thresholds, on alternative 

approaches to selecting such thresholds, 

and on alternative applicability 

provisions (such as source category 

exemptions). 

4. Are any emissions units and activities 

at stationary sources exempt from this 

rule? 

Certain emissions units and activities 

at stationary sources either do not emit 

regulated NSR pollutants to the ambient 

air or emit these pollutants in negligible 

amounts. We propose that such 

activities located at a minor source be 

exempt from the requirements of this 

rule (See proposed 40 CFR 49.153(c)). 

We propose that such activities are 

limited to the following: 

• Air-conditioning units for comfort 

that are not subject to applicable 

requirements under title VI of the Act 

and do not exhaust air pollutants into 

the ambient air from any manufacturing 

or industrial process; 

• Ventilating units for comfort that do 

not exhaust air pollutants into the 

ambient air from any manufacturing or 

other industrial process; 

• Heating units for comfort that do 

not provide heat for any manufacturing 

or other industrial process; 

• Noncommercial food preparation; 

• Consumer use of office equipment 

and products; 

• Janitorial services and consumer 

use of janitorial products; 

• Internal combustion engines used 

for landscaping purposes; 

• Bench scale laboratory activities, 

except for laboratory fume hoods and 

vents; and 

• Any emissions unit or activity that 

does not have the potential to emit a 

regulated NSR pollutant or HAP, so long 

as that emissions unit or activity is not 

part of a process unit that emits or has 

the potential to emit a regulated NSR 

pollutant or HAP. 

5. What are the permit application, 

control technology, and air quality 

analysis requirements, and what is the 

permit issuance process? 

Permit Application Requirements. 

Under today’s proposed minor NSR 

program, as the owner or operator of a 

proposed new minor source or a 

proposed modification that is subject to 

this rule, you must submit a complete 

application to your reviewing authority 

requesting a minor NSR permit specific 

to your source (unless you wish to seek 

a ‘‘general permit,’’ if eligible). In 

addition to basic information 

identifying and describing your source, 

your application must include a list of 

all affected emissions units. ‘‘Affected 

emissions units’’ are defined as all the 

emissions units at your proposed new 

minor source or all the new, modified, 

and replacement emissions units that 

comprise your proposed modification 

(excluding the exempt emissions units 

and activities listed in proposed 40 CFR 

49.153(c)). See proposed 40 CFR 

49.152(d). 

Your application also must document 

the increase in emissions of regulated 

NSR pollutants that will result from 

your new source or modification so that 

the reviewing authority can verify that 

you are subject to this proposed minor 

NSR program, rather than to major NSR. 

For each new emissions unit that you 

list, you must provide the PTE in tpy for 

each regulated NSR pollutant, along 

with supporting documentation. For any 

modified or replacement unit that you 

list, you must provide the allowable 

emissions of each regulated NSR 

pollutant in tpy both before and after 

the modification or replacement, along 

with supporting documentation. For 

emissions units that do not have an 

established allowable emissions level 

prior to the modification, you must 

report the PTE. The allowable emissions 

for any emissions unit are calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the unit’s PTE. In calculating these 

emission levels for applicability 

purposes, we seek comment on whether 

you should include fugitive emissions, 

to the extent that they are quantifiable, 

for all sources, or include them only for 

source categories listed pursuant to 

section 302(j) of the Act or exclude them 

for all sources. 

You may include in your application 

proposed emission limitations for the 

listed emissions units. If you do, you 

must account for these limitations in 

your calculations of post-construction 

PTE and/or allowable emissions. The 

application also must identify and 

describe any existing air pollution 

control equipment and compliance 

monitoring devices or activities relevant 

to the affected emissions units, as well 

as any existing emission limitations or 

work practice requirements to which 

any affected emissions units are subject. 

See proposed 40 CFR 49.154(a) for the 

complete requirements for your 

application for a minor NSR permit. 

You may request that the reviewing 

authority establish an annual minor 

source plantwide applicability 

limitation (minor source PAL) for one or 

more of the regulated NSR pollutants 

emitted by your new or existing minor 

stationary source. A minor source PAL 

is a source-wide limitation on allowable 

emissions of a regulated NSR pollutant, 

expressed in tpy, that is established 

under the proposed 40 CFR 49.155 and 

that is enforceable as a practical matter 

(See proposed 40 CFR 49.152(d)). 

For a new minor stationary source, 

you may request minor source PALs for 

some or all of the regulated NSR 

pollutants emitted by your source. For 

the other regulated NSR pollutants that 

your source emits (i.e., the non-PAL 

pollutants), your permit will contain 

annual allowable emissions limits for 

each emissions unit. 

You may request a minor source PAL 

for one or more regulated PAL 

pollutants at the time that you are 

modifying an existing minor stationary 

source. Each PAL will apply across all 

the emissions units at your source, 

whether or not they are affected by the 

modification. For the non-PAL 

pollutants, only the emissions units that 

are affected by the modification will 

receive annual allowable emissions 

limits. If you request one or more minor 

source PALs for an existing minor 

stationary source at a time when no 

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modification is planned, each PAL will 

apply across all the emissions units at 

your source, but your permit will 

include no new emission limits for the 

non-PAL pollutants. 

If your source is in a source category 

covered by a ‘‘general permit’’ issued 

under proposed 40 CFR 49.156, you 

may apply for the general permit for that 

source category. A general permit is a 

permit developed by your reviewing 

authority for a general category of 

emissions units or stationary sources 

that are similar in nature, have 

substantially similar emissions, and 

would be subject to the same or 

substantially similar requirements 

governing operations, emissions, 

monitoring, reporting, and 

recordkeeping. The permit application 

requirements for a particular general 

permit will be specified in that general 

permit. General permits are discussed 

further in section IV.A.13 of this 

preamble. 

Control Technology Review. As 

required under section 110(a)(2)(C) of 

the Act, the minor NSR permitting 

program that we are proposing today is 

primarily designed to assure that the 

NAAQS are achieved, and to prohibit 

any stationary source from emitting any 

air pollutant in amounts that would 

contribute to nonattainment or interfere 

with maintenance of the NAAQS. At the 

same time, we wish to provide 

flexibility in control technology 

requirements for minor sources located 

in Indian country to promote economic 

growth and development. 

Therefore, in today’s proposal, we are 

proposing that your reviewing authority 

perform a control technology review on 

a case-by-case basis when issuing the 

permit (other than a general permit). By 

‘‘control technology,’’ we mean 

pollution prevention techniques, add-on 

pollution control equipment, design and 

equipment specifications, work 

practices, and operational restrictions. 

This review would consider local air 

quality needs, typical control 

technology used by similar sources in 

surrounding areas, anticipated 

economic growth in the area, and costeffective control alternatives. At a 

minimum, the reviewing authority must 

require control technology that assures 

that the NAAQS are achieved and that 

each affected emissions unit will 

comply with all requirements of 40 CFR 

parts 60, 61, and 63 that apply. The 

required control technology resulting 

from such a review may range from 

technology that is less stringent than the 

reasonably available control technology 

(RACT) level of control (which is 

typically required for existing major 

sources in nonattainment areas), to 

technology that is the BACT level of 

control (which is the level required for 

new major sources and major 

modifications in attainment areas), 

depending on the air quality needs of 

the area, other applicable regulatory 

programs of the Act, and technical and 

economic feasibility. 

Based on the results of the control 

technology review, the emission 

limitations required by the reviewing 

authority may consist of emission 

limits, pollution prevention techniques, 

design standards, equipment standards, 

work practice standards, operational 

standards, or any combination thereof. If 

it is technically and economically 

feasible, the reviewing authority must 

require an emission limit (i.e., a limit on 

the quantity, rate, or concentration of 

emissions) for each affected emissions 

unit at your source. 

For a new minor source that is subject 

to this rule, the case-by-case control 

technology review would be conducted 

for all emissions units [except the 

exempt emissions units and activities 

discussed in section IV.A.4 and listed in 

proposed 40 CFR 49.153(c)] that emit or 

have the potential to emit the pollutant 

for which the source is subject to this 

rule. However, for modifications, such 

control technology review would apply 

only to the affected emissions unit(s). 

In establishing a case-by-case control 

technology review process to determine 

an appropriate level of control for minor 

sources and subject modifications in 

Indian country, we considered a number 

of factors. On the one hand, we believe 

that the control technology review 

process should be as flexible as possible 

to provide for the specific needs and 

conditions of each area of Indian 

country, consistent with the 

requirements of the Act. On the other 

hand, we believe that a reasonable level 

of air pollution control for new minor 

sources and subject modifications in 

Indian country is generally warranted to 

ensure protection of air resources in 

Indian country. In addition, we wish to 

ensure that Indian country not be seen 

as a potential ‘‘pollution haven’’ where 

minor stationary sources can go to 

escape air pollution control 

requirements. At the same time, we do 

not want to put tribes or owners and 

operators locating in Indian country at 

a competitive disadvantage by requiring 

substantially more stringent controls in 

Indian country than are required in the 

surrounding areas. 

We are seeking comment on the 

proposed case-by-case control 

technology review for all new and 

modified sources subject to this minor 

NSR program. We also request comment 

on whether the program should have a 

control technology requirement at all. 

Section 110(a)(2)(C) of the Act requires 

a minor NSR program that assures that 

the NAAQS are achieved, but does not 

mandate that the program include a 

control technology requirement. We are 

seeking comment on whether a control 

technology requirement is necessary to 

achieve the purposes of the Act, or 

whether other approaches can achieve 

these purposes just as well with less 

cost or administrative burden. 

Air Quality Impacts Analysis. 

Typically, for a new or modified minor 

source permit application, your 

reviewing authority would not require 

an Air Quality Impacts Analysis (AQIA). 

In rare instances, if your reviewing 

authority has reason to be concerned 

that the construction of your minor 

source or modification could cause or 

contribute to a NAAQS or PSD 

increment violation, to ensure 

protection of the NAAQS, we are 

proposing that your reviewing authority 

may require you to conduct an AQIA 

using dispersion modeling in 

accordance with 40 CFR part 51, 

appendix W to determine the impacts 

that will result from your new source or 

modification. If the AQIA demonstrated 

that the construction of your source or 

modification would cause or contribute 

to a NAAQS or PSD increment 

violation, you would be required to 

further reduce its impact before you 

could obtain a permit. 

Permit Issuance Process. Within 45 

days after receiving your permit 

application, your reviewing authority 

must either determine that the permit 

application is complete enough to 

commence a technical review or request 

additional information. If you do not 

receive a request for additional 

information or a notice of complete 

application within 50 days of your 

permitting authority’s receipt of your 

application, your application would be 

deemed complete. (You should contact 

your reviewing authority to find out the 

date that it received your application so 

that you will know when this 50-day 

period is up.) Once the application is 

complete, your reviewing authority 

develops a draft permit and provides a 

public notice seeking comments on the 

draft permit for a 30-day period. After 

considering all timely, relevant 

comments, if your reviewing authority 

determines that your application meets 

all applicable requirements, it would 

issue you a final permit. Otherwise, the 

reviewing authority would send you a 

letter denying your permit application 

with reasons for the denial. We seek 

comment on the proposed permit 

issuance process. 

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We are proposing that your reviewing 

authority would issue you a permit with 

an allowable emissions limit in tpy for 

each affected emissions unit (Option A). 

You have the alternative of requesting a 

minor source PAL or cap in tpy (Option 

B), and your reviewing authority may 

issue such a permit. This type of permit 

can provide the flexibility to make 

frequent changes at your source without 

permit review. If you wish, you may 

request a minor source PAL for some 

pollutants and allowable emissions 

limits for each emissions unit for other 

pollutants. 

Permit Term. A preconstruction 

permit does not expire. Your permit 

remains valid as long as you commence 

construction of your new source or 

modification within 18 months after the 

effective date of the permit, you do not 

discontinue construction for a period of 

18 months or more, and you complete 

construction in a reasonable time. Your 

reviewing authority may extend the 18-

month period where justified. The 18-

month limit does not apply to the time 

period between construction of 

approved phases of a phased 

construction program; you must 

commence construction of each such 

phase within 18 months of the approved 

commencement date for that phase. 

6. When are modifications subject to 

this rule? 

As discussed in section IV.A.2 of this 

preamble, for the purposes of the minor 

NSR program proposed today, a 

modification means any physical or 

operational change at a stationary 

source that would cause an increase in 

the allowable emissions of the affected 

emissions units for any regulated NSR 

pollutant or that would cause the 

emission of any regulated NSR pollutant 

not previously emitted (with the 

exclusions outlined in section IV.A.2 of 

this preamble). The proposed rule 

would apply to certain modifications at 

your minor sources and minor 

modifications at your major sources. For 

such modifications, you would have to 

meet the application requirements and 

comply with any control technology 

requirements as discussed in section 

IV.A.5 of this preamble. In rare 

instances, if your reviewing authority 

has reason to believe that your 

modification could result in a violation 

of the NAAQS or PSD increment, you 

would be required to conduct an AQIA. 

In all NSR applicability 

determinations, you must evaluate each 

regulated NSR pollutant individually. 

The area where your source is located 

may be attainment for some pollutants 

and nonattainment for others, which 

affects which pollutants are regulated as 

well as the major and minor NSR 

applicability thresholds. For a given 

modification, a particular pollutant may 

be subject to review under PSD, 

nonattainment major NSR, or minor 

NSR, or may not be subject to any of 

these programs. 

The first step in determining whether 

your proposed physical or operational 

change is subject to the minor NSR 

program proposed today is to determine 

whether the change is subject to the 

applicable major NSR program (i.e., 

proposed 40 CFR 49.167 or 40 CFR 

52.21 for nonattainment and attainment 

areas, respectively). If you are changing 

an existing major source, you would 

determine whether the change qualifies 

as a major modification using the 

procedures in the applicable major NSR 

program. If you are changing an existing 

minor source, you would determine 

whether the change would qualify as a 

major stationary source by itself under 

the applicable major NSR program. If 

your proposed physical or operational 

change is subject to review under major 

NSR for a regulated NSR pollutant, it is 

not subject to the minor NSR program 

for that pollutant. 

If your proposed physical or 

operational change is not subject to 

major NSR, the next step is to determine 

whether the change qualifies as a 

modification under the minor NSR 

program. To be a modification, the 

change must result in an increase in 

allowable emissions at your source. 

Thus, the next step is to calculate 

whether, and by how much, allowable 

emissions would increase as a result of 

the change. If your minor stationary 

source is subject to a minor source PAL 

for a regulated NSR pollutant (Option B 

in section IV.A.5 of this preamble), the 

emissions increase for that pollutant 

would be the PAL level after the 

physical or operational change minus 

the PAL level prior to the change. For 

physical or operational changes at other 

minor stationary sources (i.e., those 

with annual allowable emissions limits 

for each emissions unit (Option A), 

those that are unpermitted, and those 

with a combination of unpermitted 

emissions units and emissions units 

with annual allowable emissions limits) 

and at major stationary sources, the total 

increase in allowable emissions 

resulting from your proposed change 

would be the sum of the following: 

• For each new emissions unit that is 

to be added, the emissions increase 

would be the PTE of the unit. 

• For each emissions unit with an 

allowable emissions limit that is to be 

changed or replaced, the emissions 

increase would be the allowable 

emissions of the emissions unit after the 

change or replacement minus the 

allowable emissions prior to the change 

or replacement. This may be a negative 

value for an emissions unit if its 

allowable emissions would be reduced 

as a result of the change or replacement. 

• For each unpermitted emissions 

unit that is to be changed or replaced, 

the emissions increase would be the 

allowable emissions of the unit after the 

change or replacement minus the PTE 

prior to the change or replacement. It is 

necessary to use PTE since these 

emissions units will not have a 

allowable emissions limit prior to the 

change. This may be a negative value for 

an emissions unit if its post-change 

allowable emissions would be less than 

its pre-change PTE. 

This process of summing the 

emissions increases and decreases 

across all the affected emissions units is 

called ‘‘project netting,’’ which is 

discussed later in this section of the 

preamble. 

If your proposed physical or 

operational change qualifies as a 

modification (i.e., causes an increase in 

allowable emissions), the final step in 

determining whether the proposed 

modification is subject to today’s 

proposed minor NSR program is to 

compare the increase in allowable 

emissions to the applicability criteria for 

the type of source and emission limits 

that you have. Your modification would 

be subject to the minor NSR program in 

the following circumstances: 

• If your minor source has a permit 

with a minor source PAL in tpy (Option 

B in section IV.A.5 of this preamble) 

and the modification would result in 

any increase in the PAL level. To 

determine if an increase in the PAL 

level is necessary, you must evaluate 

whether your source’s actual emissions 

after the modification would exceed the 

PAL level by any amount. If you could 

construct and operate the modification 

without your actual emissions 

exceeding your minor source PAL, then 

no permit action would be required. 

• For other minor sources, if the 

modification would increase total 

allowable emissions from the affected 

emissions units by an amount that 

equals or exceeds any of the minor NSR 

thresholds listed in Table 1 of this 

preamble. 

• If the minor modification at your 

major source would increase total 

allowable emissions from the affected 

emissions units by an amount that 

equals or exceeds any of the minor NSR 

thresholds listed in Table 1 of this 

preamble. 

• In addition, if the modification 

would increase allowable emissions 

from any emissions unit above an 

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established unit-specific allowable 

emission permit limit, even if the total 

increase for your source would be less 

than the corresponding minor NSR 

threshold listed in Table 1 of this 

preamble. In this case, the needed 

increase in the unit-specific allowable 

emissions permit limit can be 

accomplished through an administrative 

permit revision (See proposed 40 CFR 

49.159(f)). 

In addition, a physical or operational 

change may be subject to today’s 

proposed minor NSR program even if it 

is not classified as a modification (i.e., 

it does not increase allowable emissions 

of a regulated NSR pollutant or result in 

emission of a pollutant not previously 

emitted). For example, a proposed 

change might increase allowable 

emissions from some emissions units 

and decrease emissions at others so that, 

overall, emissions from the affected 

units would stay the same or decrease. 

If the post-change emissions at any 

emissions unit would exceed a 

permitted allowable emissions limit for 

that unit, you must apply to revise the 

existing permit limit before you may 

implement the change. The needed 

increase in the unit-specific allowable 

emissions permit limit can be 

accomplished through an administrative 

permit revision (See proposed 40 CFR 

49.159(f)). 

Similarly, other proposed physical or 

operational changes that could not be 

implemented within the requirements of 

an existing permit would necessitate a 

permit revision, even if they are not 

otherwise subject to major or minor 

NSR. We believe that this fact will serve 

to ensure that the types of changes that 

could significantly alter the dispersion 

characteristics of the air pollutants 

emitted by your source will be brought 

to the attention of your reviewing 

authority. Thus, the reviewing authority 

will be in the position to evaluate 

whether the change has the potential to 

increase ambient concentrations outside 

the boundaries of your source. If so, the 

reviewing authority can require 

measures to mitigate any unacceptable 

air quality impacts (i.e., to protect the 

NAAQS and PSD increments) as part of 

the permit revision process. 

Flowcharts to aid in determining 

major and minor NSR applicability are 

presented in Figures 1 through 6. These 

flowcharts illustrate the applicability 

process for new sources and 

modifications in attainment areas and 

nonattainment areas. The flowcharts 

should be used to evaluate each 

regulated NSR pollutant individually 

since different flow charts may apply to 

different pollutants depending on the 

attainment status of the area for each 

pollutant. 

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7. Why do we believe that an allowableto-allowable test is appropriate for 

minor sources? 

As discussed earlier, we are proposing 

an ‘‘allowable-to-allowable’’ 

applicability test as the primary test for 

modifications under this minor NSR 

program. We evaluated the three basic 

types of applicability tests (actual-topotential, actual-to-projected-actual, and 

allowable-to-allowable) and determined 

that the allowable-to-allowable test is 

most suitable for minor NSR in Indian 

country. 

We rejected the actual-to-potential 

test for many of the same reasons that 

we have moved away from this test in 

the major NSR program. In this type of 

system, the emissions increase that 

results from a change is determined by 

comparing the emissions unit’s PTE 

after the change to its actual emissions 

prior to the change. If pre-change actual 

emissions are well below the unit’s PTE, 

as is generally the case, any change will 

result in a large emissions increase 

when calculated in this manner. To 

avoid triggering NSR, a source must 

accept a limit on the unit’s post-change 

PTE at a level that exceeds pre-change 

actual emissions by less than the 

applicable NSR threshold. 

As discussed in our December 2002 

NSR Improvement rulemaking, there are 

numerous objections to the actual-topotential test (67 FR 80194). Industry 

has long believed that the need to take 

a PTE limit to avoid NSR has the effect 

of unfairly confiscating the emissions 

unit’s unused operating capacity even 

though, in many cases, the changed unit 

as a practical matter will function 

essentially as it did before the change 

and emissions to the environment will 

not increase. In addition, the actual-topotential test discourages sources from 

making the types of changes that 

improve operating efficiency, 

implement pollution prevention 

projects, and result in other 

environmentally beneficial effects. 

In the December 2002 NSR 

Improvement rulemaking for major 

NSR, we promulgated an alternative 

‘‘actual-to-projected-actual’’ test for 

major modifications. However, we do 

not propose to adopt the same course for 

the minor NSR program in Indian 

country. We believe that determining 

emissions changes in terms of changes 

in allowable emissions typically will be 

easier and more straightforward for the 

minor sources subject to this program. 

In particular, the major NSR procedures 

for projecting and tracking future actual 

emissions may be somewhat 

complicated for minor sources. While 

we believe that this system is within the 

capabilities of major sources, we believe 

that a simpler system is more 

appropriate for the minor sources in 

Indian country, many of which are 

unaccustomed to any type of regulation. 

We are proposing an allowable-toallowable test for modifications in the 

Indian country minor NSR program. We 

believe that this relatively simple and 

straightforward system is most 

appropriate for the minor sources found 

in Indian country. In addition, we 

believe that it is beneficial to use 

allowable emissions as the currency for 

attainment planning, in that they 

represent the worst-case post-change 

emissions. This approach is consistent 

with section 173(a)(1)(A) of the Act, 

which requires new and modified major 

sources to obtain offsets based on 

allowable emissions. (While we are not 

requiring offsets for minor sources in 

Indian country nonattainment areas, we 

believe that the language in section 

173(a)(1)(A) provides validation for our 

proposed minor NSR modification test.) 

Finally, we understand that many State 

minor NSR programs use an allowableto-allowable test. 

As discussed in section IV.A.2 of this 

preamble, we believe that we have the 

discretion to use an allowable-toallowable test for this minor NSR 

program because the statutory basis for 

minor NSR is section 110(a)(2)(C) of the 

Act, rather than section 111(a)(4). We 

seek comment on using the proposed 

allowable-to-allowable test for 

addressing modifications and on the 

alternative of using the actual-toprojected-actual test. 

As laid out in the second step for 

determining if a proposed modification 

is subject to minor NSR, we are 

proposing to allow ‘‘project netting.’’ 

This means that both increases and 

decreases in allowable emissions are 

summed when determining the total 

emission increase that would result 

from a proposed modification. 

The major NSR program uses a twostep procedure for determining 

applicability. First, the emission 

increases from the proposed project are 

summed. If the total emission increase 

from the project is ‘‘significant’’ (that is, 

equal to or greater than the major NSR 

threshold), the second step in the 

process is ‘‘contemporaneous netting.’’ 

In contemporaneous netting, the 

emission increase due to the proposed 

modification is summed with all other 

emission increases and decreases that 

have occurred at the major source 

during the contemporaneous period 

(generally 5 years). If the net emission 

increase determined in this way is 

significant, the proposed modification is 

a ‘‘major modification’’ that is subject to 

review under major NSR. 

We considered including 

contemporaneous netting in today’s 

minor NSR program, but have elected 

not to propose it as our preferred 

approach. Contemporaneous netting has 

proved to be a complicated aspect of the 

major NSR program. While major 

sources are accustomed to 

contemporaneous netting and have built 

the capacity to track emissions changes 

and carry out this procedure, many 

minor sources that would be covered by 

today’s proposed minor NSR program 

lack such capacity. We believe that a 

simpler system is more appropriate for 

the minor sources in Indian country. 

Nevertheless, we believe that minor 

sources should be able to receive credit 

for the emission decreases that would 

result from a proposed modification. 

Hence, we are proposing to allow 

project netting in today’s minor NSR 

program. 

We believe that project netting 

calculations are relatively 

straightforward and are within the 

capacity of most minor sources. For 

example, an existing minor source 

might wish to expand by adding a 

second production line to go with an 

existing, uncontrolled line. If the 

proposed project includes adding an air 

pollution control device to control 

emissions from both lines, it would 

result in an allowable emissions 

increase attributable to the new line, as 

well as an allowable emissions decrease 

from the existing, previously 

uncontrolled line. Determining the 

overall net emission change that would 

result from the proposed modification 

would be a straightforward exercise. 

However, to validate the project net 

emissions increase, as in the major NSR 

program, the source must take limits on 

allowable emissions for both lines that 

are enforceable as a practical matter. 

We believe that in proposing to allow 

project netting, but not 

contemporaneous netting, we have 

struck an appropriate balance for the 

minor NSR program in Indian country. 

We believe that the resulting program 

properly allows you to receive credit for 

emission reductions that are achieved as 

part of an overall project, without 

introducing too much complexity into 

the program. We invite comment on this 

approach, as well as on other 

approaches that would allow minor 

sources in Indian country to take credit 

for emission reductions. 

8. Is your existing minor source subject 

to this rule? 

States develop, adopt, and submit to 

us for approval a SIP that contains a 

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broad range of measures to attain and 

maintain the NAAQS and to meet other 

requirements of section 110(a) of the 

Act. The SIPs typically include some 

emission limitations for existing 

sources, even those that do not modify 

their operations. Hence, a SIP provides 

an infrastructure to achieve the air 

quality goals of attaining and 

maintaining the NAAQS. 

Tribes are not required to submit 

implementation plans, and to date, very 

few tribes have sought our approval of 

such plan. Consistent with our approach 

to Federal implementation of the Act’s 

requirements, we issue FIPs for areas of 

Indian country as necessary or 

appropriate. However, there is still a 

regulatory gap in relevant infrastructure 

in much of Indian country. Because of 

this unique situation, we are raising the 

question of whether it may be 

appropriate to regulate existing minor 

sources in Indian country under this 

minor NSR program to attain and 

maintain NAAQS. We are proposing 

Option 1 and soliciting comment on 

Options 2, 3, and 4: 

Option 1. Exempt existing minor 

sources from this rule. This option 

would not affect any existing sources 

(unless they propose a modification) 

and, thus, be the least burdensome for 

such sources in Indian country. Many 

State minor NSR rules do not apply to 

such sources; hence this would be 

consistent with many of the areas that 

surround Indian country. Under this 

option, we are seeking comment on 

whether such an exempt minor source 

should be allowed to opt for a permit 

under this program (without being 

subject to any of the requirements) 

merely to establish enforceable limits 

and conditions associated with a 

consent decree or other enforcement 

mechanism. 

Option 2. Require existing synthetic 

minor sources to become subject to the 

minor NSR program requirements 

(including control technology review 

and other requirements as provided in 

section IV.A.5. of this preamble) and to 

submit a permit application within 1 

year after the effective date of the 

program. This option would draw into 

the regulatory scheme the biggest minor 

sources and may result in large 

emissions reductions in instances where 

the required control technology review 

would result in new or more stringent 

controls. Option 2 would affect 

relatively few existing minor sources in 

Indian country. 

Option 3. Require all existing minor 

sources to register within 1 year after 

the effective date of this program, but 

not be subject to the permitting 

requirements. This option would affect 

all minor sources in Indian country, but 

would involve very little burden to 

sources, since this would be a one-time 

registration. Option 3 would allow your 

reviewing authority to collect 

information on the number and size of 

existing minor sources, which would 

assist with NAAQS maintenance and 

attainment planning in Indian country. 

Option 4. Require all existing minor 

sources to be subject to the minor NSR 

program requirements (as provided in 

section IV.A.5. of this preamble). While 

this option would result in significant 

emissions reductions, it would also 

require significant EPA resources and 

may also be overly burdensome on 

minor sources in Indian country. 

Additionally, we believe that subjecting 

all minor sources to this program is not 

necessary to achieve the NAAQS, as 

demonstrated by state minor NSR 

programs. 

We also seek comment on any other 

approaches for addressing existing 

minor sources. 

9. How are ‘‘synthetic minor sources’’ 

subject to this rule? 

Some sources have the potential to 

emit one or more pollutant in major 

source amounts, but have actual 

emissions that are below the major 

source thresholds. One of our primary 

objectives for this rulemaking is to 

create a mechanism by which you can 

obtain emission limitations for such 

sources that are enforceable as a 

practical matter, so that they can 

become ‘‘synthetic minor sources’’ and 

avoid major source status. We are 

therefore proposing to create such a 

mechanism in 40 CFR 49.158 of the 

proposed rules. The proposed rules 

allow for designation of synthetic minor 

sources (for regulated NSR pollutants) 

and synthetic minor HAP sources. It is 

important to note that although you may 

choose to obtain such emission 

limitations at your own discretion, once 

you have accepted an enforceable 

emission limitation, you must comply 

with that limitation. This is necessary to 

ensure that you are legally prohibited 

from operating as a major source. We are 

taking comment on the proposal to 

allow your stationary sources to become 

synthetic minors in Indian country. 

Our 1999 policy memo on synthetic 

minor sources in Indian country 

currently provides guidance on how 

sources that would otherwise be major 

sources under section 302 or part D of 

title I of the Act can become synthetic 

minor sources if their actual emissions 

remain below 50 percent of the relevant 

major source PTE threshold and they 

comply with all other requirements of 

the policy memo.7 However, as the 

memo specifies, this PTE transition 

policy terminates when we adopt and 

implement a mechanism that you can 

use to limit your PTE, or we explicitly 

approve a tribe’s program providing 

such a mechanism. Today’s proposed 

minor NSR program would provide 

such a mechanism. Therefore, upon the 

effective date of these rules when 

promulgated, the PTE transition policy 

will expire and you will have to obtain 

a permit under this minor NSR program 

for any subsequent synthetic minor 

sources. 

Additionally, for your existing 

synthetic minor sources under the 

current policy, you will have 1 year 

from the effective date of the final rules 

to apply for a permit under the 

proposed minor NSR program. If you 

submit a permit application in 

accordance with the requirements of 

proposed 40 CFR 49.158(c) by that date, 

we will continue to consider your 

source a synthetic minor source until 

we issue a permit with synthetic minor 

limits. The permit will contain 

monitoring, recordkeeping, reporting, 

and testing requirements as needed to 

assure compliance with your synthetic 

minor permit, but will not impose any 

additional requirements. Should you 

fail to submit an application within 1 

year of the effective date of the final 

rules, your source will no longer be 

considered a synthetic minor source or 

synthetic minor HAP source (as 

applicable), and will immediately 

become subject to all requirements for 

major sources. 

10. How would section 112(g) case-bycase MACT determinations be 

addressed by this rule? 

Section 112(g)(2)(B) of the Act 

provides that you may not construct or 

reconstruct a major source of HAPs 

unless you install MACT. If the 

Administrator has not established a 

MACT standard for the source category, 

the Act requires that MACT must be 

determined on a case-by-case basis. 

Where there is no EPA-approved 

program in an area of Indian country, 

we are the reviewing authority for caseby-case MACT under section 

112(g)(2)(B). The requirement for a caseby-case MACT determination prior to 

construction or reconstruction of a 

major source of HAPs is found at 40 

CFR 63.42(c). In 40 CFR 63.43(c), we 

provide a number of review options for 

these determinations. These options 

7 John S. Seitz and Eric V. Schaeffer. Policy 

memo. ‘‘Potential to Emit Transition Policy for Part 

71 Implementation in Indian Country.’’ March 7, 

1999. 

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include using a title V permit, applying 

for and obtaining a Notice of MACT 

Approval, and ‘‘any other 

administrative procedures for 

preconstruction review and approval 

established by the reviewing authority 

for a State or local jurisdiction which 

provide for public participation * * 

*.’’ Currently, no tribes have an EPAapproved title V permitting program or 

the ‘‘other administrative procedures’’ 

for this purpose, although one tribe has 

been delegated authority to assist us 

with implementation of the Federal part 

71 operating permit program (i.e., the 

Federal program for issuing title V 

permits). While we can permit a section 

112(g) case-by-case MACT 

determination through a part 71 permit 

or a Notice of MACT Approval, we 

believe that if your source is major only 

for HAPs it would be administratively 

convenient for us and you to combine 

the construction permit process for both 

regulated NSR pollutants and HAPs 

under this proposed minor NSR 

program, rather than also go through the 

part 71 permit or Notice of MACT 

Approval process to address HAPs. 

Therefore, we are proposing to allow for 

review of section 112(g) case-by-case 

MACT determinations through this 

minor NSR program and seek comment 

on this approach. See proposed 40 CFR 

49.153(a)(5) for the provisions related to 

section 112(g) case-by-case MACT 

determinations. Note that you 

ultimately will have to obtain a part 71 

permit for your major source of HAPs. 

11. What are the proposed requirements 

for public participation in the 

permitting process? 

Our requirements for State 

preconstruction review programs at 40 

CFR 51.161 require such programs to 

provide for public availability of permit 

applications as well as the reviewing 

authority’s analysis of the application. 

In addition, State programs must 

provide opportunity for public comment 

on permitting actions. To be consistent 

with these requirements for State 

programs, we are proposing to require 

the reviewing authority to make nonconfidential information on the permit 

available to the public and to provide 

public notice and an opportunity to 

comment on the draft minor NSR 

permit. See proposed 40 CFR 49.157. 

Specifically, we would require that 

the reviewing authority prepare a draft 

permit and provide adequate public 

notice to ensure that the affected 

community and the general public have 

reasonable access to the application and 

draft permit information. The reviewing 

authority must make such information 

available for public inspection at the 

appropriate EPA Regional Office and in 

at least one location in the area affected 

by the source, such as the tribal 

environmental office or a local library. 

The public notice must provide an 

opportunity for public comment and a 

public hearing on the draft permit. The 

appropriate types of notice may vary 

depending on the proposed project and 

the area of Indian country that would be 

affected. 

In all cases, the proposed rule 

requires the reviewing authority to mail 

a copy of the notice to you, the 

appropriate Indian governing body, and 

the tribal, State, and local air pollution 

authorities having jurisdiction in areas 

outside of the area of Indian country 

potentially impacted by your source. 

The proposed rule lists optional 

approaches that the reviewing authority 

may elect to use to provide public 

notice as appropriate for a given 

situation, depending on such factors as 

the nature and size of your source, local 

air quality considerations, and the 

characteristics of the population in the 

affected area. The optional methods of 

notifying the public include the 

following: 

• Mailing or e-mailing a copy of the 

notice to persons on a mailing list 

developed by the reviewing authority 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

• Posting the notice on its Web site. 

• Publishing the notice in a 

newspaper of general circulation in the 

area affected by the source. Where 

possible, the notice may also be 

published in a tribal newspaper or 

newsletter. We do not believe that such 

a notice is appropriate for every single 

minor source permit application since 

this would require a heavy resource 

commitment for the reviewing 

authority, while not necessarily being as 

effective as some other measures. 

• Providing copies of the public 

notice for posting at locations in the 

area affected by your source. We expect 

that such locations might include Post 

Offices, libraries, tribal environmental 

offices, community centers, and other 

gathering places in the community. 

• Other appropriate means of 

notification. 

We believe that this combination of 

mandatory and optional approaches to 

providing notice is appropriate for 

today’s proposed minor NSR program in 

Indian country. In addition, we believe 

that the proposal is consistent with 40 

CFR 51.161, which requires a ‘‘notice by 

prominent advertisement in the area 

affected,’’ but does not specify a 

newspaper advertisement. We believe 

that in many areas of Indian country, 

notices posted in locations frequented 

by the local population and on agency 

Web sites, as well as mailed or e-mailed 

to concerned parties, will provide more 

‘‘prominent advertisement’’ than would 

publication in a newspaper. 

The reviewing authority must provide 

for a 30-day public comment period on 

the draft permit. After considering all 

relevant public comments, the 

reviewing authority will make a final 

decision to issue or deny your permit. 

The public (including you, the permit 

applicant) will have an opportunity to 

appeal the final decision under 40 CFR 

49.159 of the proposed rule. 

These proposed public participation 

requirements would apply to 

preconstruction permits, minor source 

PAL permits, synthetic minor permits, 

and the initial issuance of general 

permits. We seek comment on the 

proposed public participation 

requirements in 40 CFR 49.157. 

We are also proposing very similar 

public participation requirements for 

the nonattainment major NSR program. 

See section IV.B.3 of this preamble. 

12. What are the monitoring, 

recordkeeping, and reporting 

requirements? 

Sections 110(a)(2)(A) and (C) of the 

Act require that a preconstruction 

permitting program provide for the 

enforcement of measures that include 

‘‘enforceable emission limitations’’ and 

other control measures, means, or 

techniques * * * as well as schedules 

and timetables for compliance.’’ Section 

110(a)(2)(F) additionally requires that a 

permitting program may require ‘‘the 

installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary steps 

by owners and operators of stationary 

sources to monitor emissions from such 

sources,’’ as well as ‘‘periodic reports on 

the nature and amounts of emissions 

and emission-related data from such 

sources.’’ 

Generally, we are proposing that all 

permits issued under this minor NSR 

program contain emission limitations 

that are enforceable as a practical 

matter, as well as adequate monitoring, 

recordkeeping, and reporting 

requirements as may be necessary to 

assure compliance with those 

limitations. The requirements for 

monitoring, recordkeeping, and 

reporting are discussed below; See 40 

CFR 49.155(a) of the proposed rule for 

the complete requirements. 

Monitoring requirements. The permit 

must include monitoring requirements 

sufficient to assure compliance with any 

control technology requirements 

contained in the permit. Monitoring 

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approaches may include continuous 

emissions monitoring systems (CEMS), 

predictive emissions monitoring 

systems (PEMS), continuous parameter 

monitoring systems (CPMS), periodic 

manual logging of monitor readings, 

equipment inspections, mass balances, 

periodic performance tests, and/or 

emission factors, as appropriate for your 

minor source based on the types of 

emissions units, magnitude of 

emissions, and air quality 

considerations. Such monitoring shall 

assure use of terms, test methods, units, 

and averaging periods consistent with 

the control technology and emission 

limitations required for your source. If 

the permit includes a minor source PAL 

for a pollutant at your minor stationary 

source, it must also include monitoring 

to determine the actual emissions from 

your source for each month and the total 

actual emissions for each 12-month 

period, rolled monthly, for that 

pollutant. 

Recordkeeping requirements. The 

permit must include recordkeeping 

requirements sufficient to assure 

compliance with the enforceable 

emission limitations in your permit. 

Records of required monitoring 

information must include all 

calculations using emissions factors, all 

stack tests or sampling information 

including date and time of test or 

sampling, the name of the company or 

entity that performed the analyses, the 

analytical techniques or methods used, 

the results of such analyses and the 

operating conditions existing at the time 

of sampling or measurement. All such 

records including support information 

must be retained for 5 years from the 

date of the record. Support information 

may include all calibration and 

maintenance records and all original 

strip-chart recordings or electronic 

records for continuous monitoring 

instrumentation. 

Reporting requirements. You must 

provide annual monitoring reports 

showing whether you have complied 

with your permit emission limitations. 

You also must provide prompt reports 

of deviations from permit requirements, 

including those attributable to upset 

conditions as defined in the permit, the 

probable cause of such deviations, and 

any corrective actions or preventive 

measures taken. Within a permit, the 

reviewing authority must define 

‘‘prompt’’ in relation to the degree and 

type of deviation likely to occur. 

13. What are the criteria for general 

permits, what source categories 

generally qualify for them, and what are 

the permit application requirements for 

a general permit? 

A ‘‘general permit’’ is a 

preconstruction permit that may be 

applied to a number of similar 

emissions units or stationary sources. 

The purpose of a general permit is to 

simplify the permit application and 

issuance process for similar facilities so 

that a reviewing authority’s limited 

resources need not be expended for 

case-by-case permit development for 

such facilities. A general permit may be 

written to address a single emissions 

unit, a group of the same type of 

emissions units, or an entire minor 

source. 

The minor NSR program proposed in 

this action would allow your reviewing 

authority to issue general permits for 

categories of emissions units or 

stationary sources that are similar in 

nature, have substantially similar 

emissions, and would be subject to the 

same or substantially similar permit 

requirements. ‘‘Similar in nature’’ refers 

to size, processes, and operating 

conditions. To issue a general permit, 

the reviewing authority must provide 

the same opportunities for public 

participation and administrative and 

judicial review that apply to minor NSR 

permits issued to a specific source 

under this program. This is true with 

respect to all aspects of the general 

permit except its applicability to an 

individual source. See proposed 40 CFR 

49.156(b). 

Once a general permit has been issued 

for a source category or category of 

emissions units, you may submit an 

application to be covered under the 

general permit if your proposed new 

minor source or modification qualifies 

for coverage under that general permit. 

Your reviewing authority may grant or 

deny your request to construct under a 

general permit without further public 

participation. However, when you 

receive approval to be covered under a 

general permit, you must post a 

prominent notice at your source of this 

approval to construct under the general 

permit. Someone may seek judicial 

review only on the issue of whether 

your source qualifies for the general 

permit. See proposed 40 CFR 49.156(e). 

We believe that general permits offer a 

cost-effective means of issuing permits 

and provide a quicker and simpler 

alternative mechanism for permitting 

your minor sources than the sitespecific permitting process discussed 

previously. 

In setting criteria for sources to be 

covered by general permits, your 

reviewing authority would consider the 

following factors. First, categories of 

sources or emissions units covered by a 

general permit should be generally 

homogeneous in terms of operations, 

processes, and emissions. All sources or 

emissions units in the category should 

have essentially similar operations or 

processes and emit pollutants with 

similar characteristics. Second, the 

sources or emissions units should be 

expected to warrant the same or 

substantially similar permit 

requirements governing operation, 

emissions, monitoring, recordkeeping, 

or reporting. 

Your sources covered under a general 

permit would be issued a letter 

approving coverage under the general 

permit. You must maintain the general 

permit and the letter at your source 

location at all times to be made 

available for inspection by the 

reviewing authority. 

General permits may be issued to 

cover any category of numerous similar 

sources, provided that such sources 

meet the appropriate criteria. For 

example, permits can be issued to cover 

small businesses such as gas stations or 

dry cleaners. General permits may also, 

in some circumstances, be issued to 

cover discrete emissions units, such as 

individual solvent cleaning machines at 

industrial complexes. We request 

comment on the use of general permits, 

eligible emissions units and source 

categories, and the process of issuing 

general permits. 

14. What is the administrative and 

judicial review process proposed for 

this program? 

We are proposing and seeking 

comment on two options for reviewing 

initial permit decisions by reviewing 

authorities under this program. We will 

discuss these options further, but first 

we will present the proposed 

administrative procedures that we 

expect to be the same regardless of 

which review option we ultimately 

select. 

The final permit issuance procedures 

and related notice requirements are 

proposed in 40 CFR 49.159(a). After 

decision on a permit, the reviewing 

authority must notify you of the 

decision, in writing, and if the permit is 

denied, of the reasons for the denial. If 

the reviewing authority issues a final 

permit to you, it must make a copy of 

the permit available at all of the 

locations where the draft permit was 

made available. In addition, the 

reviewing authority must provide 

adequate public notice of the final 

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permit decision to ensure that the 

affected community, general public, and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

Depending on the circumstances of your 

permit, the reviewing authority may 

elect to provide notice directly to the 

individuals who commented on the 

draft permit and/or use any of the other 

methods of public notice discussed in 

section IV.A.11 of this preamble (related 

to public notice of the draft permit). 

We are proposing a requirement that 

the reviewing authority’s final decision 

on your permit be based on an 

administrative record and requirements 

on what must be in that record. See 

proposed 40 CFR 49.159(b) and (c). The 

proposed rules also include provisions 

at 40 CFR 49.159(e) that address 

reopening a permit after it has been 

issued if it contains a material mistake 

or fails to assure compliance with the 

permit requirements. In addition, 

proposed 40 CFR 49.159(f) contains 

provisions for administrative permit 

revisions to make minor changes in the 

permit without being subject to the 

permit application, issuance, public 

participation, or administrative and 

judicial review requirements of the 

program. 

We are proposing two options for 

reviewing initial permit decisions by 

reviewing authorities. In Option 1, 

review of minor NSR permits would be 

similar to review of major PSD permits 

issued under 40 CFR 52.21. To 

challenge the terms of your permit, you 

or another party would have to file a 

petition for review with our 

Environmental Appeals Board (EAB). 

Decisions by the EAB could be appealed 

to the Federal Court of Appeals for the 

tribal area. Alternatively, in Option 2, 

the reviewing authority’s initial permit 

could be appealed directly to the 

appropriate Federal Court of Appeals 

without a requirement to appeal to the 

EAB first. There are advantages and 

disadvantages to both approaches. We 

solicit comment on which option we 

should adopt. 

Option 1. Under Option 1, the 

proposed administrative and judicial 

review process for the minor NSR 

program parallels the process for PSD 

permits issued under 40 CFR 52.21, 

which is found in 40 CFR part 124. 

Since not all of the provisions of part 

124 need to apply to this program, 

rather than adding the minor NSR 

program to the list of programs to which 

part 124 applies, in this option we are 

proposing to include the desired 

provisions in 40 CFR 49.159. The 

proposed provisions are very similar to 

the part 124 provisions, although they 

have been modified to better suit the 

small sources that will be covered under 

the minor NSR program. 

The major difference between Option 

1 and Option 2 is that, under Option 1, 

permit decisions may be appealed to the 

EAB within 30 days after a final permit 

decision has been issued, and a final 

permit typically would not become 

effective until 30 days after issuance. 

Upon filing of a petition for review, the 

permit would be stayed (i.e., not go into 

effect) until the EAB decides whether to 

review any condition of the permit and 

the reviewing authority takes any action 

required by the EAB. When the EAB has 

issued its final order on an appeal, a 

motion to reconsider the final order may 

be filed with the EAB within 10 days. 

Only after all administrative remedies 

under proposed 40 CFR 49.159 have 

been exhausted could the person(s) 

filing the petition seek judicial review. 

Option 2. Option 2 has two major 

differences from the appeals process we 

proposed in Option 1. First, we propose 

under Option 2 that permits would 

become immediately effective upon 

issuance by the reviewing authority 

unless a later effective date is specified. 

Second, there is no requirement for 

seeking EAB review before filing a 

petition for review in the Federal Court 

of Appeals with jurisdiction of the tribal 

area. The final agency action for 

purposes of judicial review is the 

issuance of the final permit by the 

reviewing authority. The permit is not 

stayed by the filing of a petition for 

review. If a party challenging a permit 

would like to have your permit stayed, 

that party may seek a stay under the 

provisions of the Administrative 

Procedures Act (APA), 5 U.S.C. 705. 

Because the regulatory language for 

Option 1 is more detailed than would be 

required for Option 2, the proposed 

regulatory text only addresses Option 1. 

Advantages and Disadvantages of 

Options 1 and 2. The different 

approaches to appeals of reviewing 

authority decisions result from section 

704 of the APA. This section provides 

that an agency action that is otherwise 

final is final for purposes of judicial 

review unless the agency otherwise 

requires by rule that a party must seek 

review by a superior authority within 

the agency and the agency’s action is 

meanwhile inoperative. Therefore, if we 

were to require administrative review by 

the EAB or another part of EPA before 

allowing anyone to seek judicial review 

of a permit, then we would be required 

to stay the permit for the duration of the 

appeal. The two options balance the 

advantages of EAB review of permits 

with the desire to not unnecessarily and 

inappropriately delay your ability to 

construct or modify a new minor source. 

On the one hand, minor NSR permits 

are for sources and modifications that 

emit less than new major sources and 

major modifications to major sources. 

An automatic stay would delay these 

smaller projects from going ahead when 

there is less environmentally at stake 

than in a challenge to a PSD or 

nonattainment major NSR permit. In 

those instances where there would be 

irreparable harm caused by a project 

proceeding under a flawed permit, there 

would still be available the opportunity 

to seek a stay under the APA. 

On the other hand, review of permit 

decisions by the EAB serves as quality 

control over decisions by various parts 

of EPA. The EAB can ensure that the 

policies of the Administrator are 

applied consistently and appropriately 

in permit decisions. This may be 

important when a tribe receiving a 

delegation under this rule or an EPA 

Regional Office acting as the reviewing 

authority makes an error in applying the 

relevant rules. 

One important consideration would 

be the timeliness of any review process. 

The EAB has specialized expertise in 

environmental issues, unlike courts 

with broader case-loads. The EAB is 

likely to process a petition for review 

faster than a Court of Appeals. Courts of 

Appeals necessarily give priority 

criminal appeals over civil regulatory 

matters and thus may delay addressing 

and resolving permit appeals. In either 

the EAB or the Courts of Appeals, it is 

unlikely that review of minor NSR 

permits will be expedited ahead of 

matters with greater environmental 

impact. 

Under Option 2, you may be placed 

in a difficult situation of having a 

permit revoked after proceeding with 

construction while an appeal was 

pending. However, under Option 1, 

your project cannot proceed so long as 

the EAB appeal is pending. 

We seek comment on how to balance 

these issues. Which option do you 

prefer and why? We invite comment on 

whether either Option 1 or Option 2 is 

more appropriate for general permits 

than individual minor source permits. 

We also ask for comment on whether 

there should be a short delay of 30 days 

before a permit is effective under Option 

1 in order to allow for parties to seek 

administrative stays during 

reconsideration or to obtain a judicial 

stay before a permit goes into effect. 

Should we establish a mechanism for 

administrative reconsideration though 

the EAB, even when a party is seeking 

judicial review in the Court of Appeals? 

Any input on these issues with 

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supporting documentation will help us 

in structuring the final rule. 

B. Major NSR Program in 

Nonattainment Areas of Indian Country 

In today’s rulemaking, we are 

proposing to establish a major NSR 

program for new major stationary 

sources and major modifications at 

existing major stationary sources in 

nonattainment areas of Indian country 

at 40 CFR 49.166 through 49.175. This 

program is designed to meet the 

requirements of part D of title I of the 

Act, and sources subject to this program 

would be required to comply with the 

requirements of 40 CFR part 51, 

appendix S (appendix S). 

Appendix S is entitled ‘‘Emission 

Offset Interpretative Ruling’’ and sets 

forth preconstruction review 

requirements for major stationary 

sources and modifications locating in 

nonattainment areas where the State 

does not have an EPA-approved 

nonattainment major NSR program. In 

general, appendix S is a transitional 

nonattainment major NSR program that 

covers the period after an area has been 

newly designated as nonattainment, up 

until the State has amended its SIP’s 

nonattainment major NSR program, as 

needed, to address the new 

nonattainment area. The requirements 

under appendix S are essentially the 

same as our requirements for State 

nonattainment major NSR programs at 

40 CFR 51.165. 

Primarily, we believe it is appropriate 

to apply appendix S provisions in 

Indian country for administrative 

convenience. Additionally, since 

appendix S generally applies in 

nonattainment areas where there is no 

approved nonattainment major NSR 

program, and since no tribe currently 

has such a program, we believe that 

appendix S should also apply in Indian 

country. Another reason for requiring 

sources subject to this program to 

comply with appendix S requirements 

is that the EPA Regional Offices (which 

will be implementing the program until 

an EPA-approved implementation plan 

is in place) and several major sources in 

Indian country are familiar with the 

implementation and provisions of 

appendix S. 

We considered and rejected the 

option of amending appendix S to 

extend its application to Indian country, 

since we believe that sources in Indian 

country are more likely to look for 

regulations applicable to them under 

part 49, which is solely dedicated to 

regulations that apply in Indian country. 

We also considered drafting a parallel 

major NSR regulation to apply to 

sources in Indian country, but rejected 

this option since it would essentially repropose appendix S provisions, which 

have been in effect outside of Indian 

country for many years. We wanted to 

avoid any potential confusion or 

possible perception that these parallel 

regulation requirements would be 

different than the appendix S 

requirements. 

It is important to keep in mind that, 

in this rulemaking, we are only seeking 

comment on our general approach of 

requiring sources subject to the major 

NSR program in Indian country to be 

subject to the provisions of appendix S. 

While we will consider any compelling 

rationale or justification from a 

commenter that a particular provision in 

appendix S is not appropriate for Indian 

country, we will not entertain general 

comments on the appendix S 

provisions, since this transitional 

program has been implemented in 

States across the country for many 

years. 

1. What are the requirements for major 

source permitting under appendix S? 

Pursuant to paragraph IV of appendix 

S, a reviewing authority may issue a 

permit for a new major source or a major 

modification locating in a 

nonattainment area, if it complies with 

the following conditions: 

• The new major source or a major 

modification meets the LAER for that 

source utilizing add-on controls or 

pollution prevention measures. 

• The applicant certifies that all 

existing major sources owned or 

operated by the applicant (or any entity 

controlling, controlled by, or under 

common control with the applicant) in 

the same State as the proposed source 

are in compliance with (or under a 

federally-enforceable compliance 

schedule for) all applicable emission 

limitations and standards under the Act. 

• Emission reductions (offsets) from 

existing sources in the area of the 

proposed source (whether or not under 

the same ownership) are obtained such 

that there will be reasonable progress 

towards attainment of the applicable 

NAAQS. Only intrapollutant emission 

offsets will be acceptable (e.g., NOx for 

NOx). 

• The emission offsets provide a net 

air quality benefit in the affected area. 

2. What are the options we are 

proposing to address the lack of 

available offsets in Indian country? 

Tribal representatives have repeatedly 

stated that requirements for emission 

offsets are problematic in Indian 

country for the following reasons. Many 

tribes believe that transport is a major 

cause of pollution in Indian country. 

Tribes, with few exceptions, do not have 

many existing sources within their area 

of Indian country from which offsets 

can be obtained. In addition, 

administrative barriers may hinder 

tribal access to otherwise available 

offsets. Therefore, tribal representatives 

have advocated for additional flexibility 

to address offsets, such as the provision 

of NSR offset set-asides (which we 

expect would come from State offset 

pools or banks). Tribal representatives 

have raised these and other concerns in 

discussions on implementation of the 8-

hour ozone and PM2.5 standards, and in 

comments on the 8-hour ozone 

implementation rule.8 

We recognize the unique 

circumstances that tribes face. Unlike 

States that have a SIP, a huge industrial 

base with several hundred existing 

sources, and a broad range of measures 

to attain and maintain NAAQS, a tribe 

generally has neither a TIP nor many 

existing sources from which to generate 

offsets. Under these circumstances, we 

are proposing two options to address the 

lack of availability of offsets for tribes: 

(1) The Economic Development Zone 

(EDZ) option and (2) the appendix S, 

paragraph VI option. We also are 

requesting comment on other potential 

options for offset relief in Indian 

country. 

Economic Development Zone Option. 

We would rely on section 173(a)(1)(B) of 

the Act wherein the Administrator, in 

consultation with the Secretary of 

Housing and Urban Development 

(HUD), would identify areas in Indian 

country as EDZs such that sources 

subject to major NSR located in EDZs in 

Indian country would be exempt from 

the offset requirement in section 

173(a)(1)(A) of the Act. 

Section 173(a)(1) of the Act provides 

for the issuance of permits to construct 

and operate a new or modified major 

stationary source if the reviewing 

authority determines that (A) ‘‘*** 

sufficient offsetting emissions 

reductions have been obtained * * *’’ 

or (B) ‘‘in the case of a new or modified 

major stationary source which is located 

in a zone (within the nonattainment 

area) identified by the Administrator, in 

consultation with the Secretary of 

Housing and Urban Development, as a 

zone to which economic development 

should be targeted, that emissions of 

such pollutant resulting from the 

proposed new or modified major 

stationary source will not cause or 

contribute to emissions levels which 

8 For example, see the letter from Bill Grantham, 

National Tribal Envrionmental Council, to docket 

EPA–HQ–OAR–2003–0076, providing comments on 

the proposed 8-hour ozone implementation rule (66 

FR 32802). 

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exceed the allowance permitted for such 

pollutant for such area from new or 

modified major stationary sources under 

section 172(c).’’ 

Once the Administrator has identified 

an area that should be targeted for 

economic development in consultation 

with HUD, major sources that construct 

or modify within that area are relieved 

of the offset requirement if the State/ 

tribe can demonstrate that the new 

permitted emissions are consistent with 

the achievement of reasonable further 

progress pursuant to section 172(c)(4) of 

the Act, and will not interfere with 

attainment of the applicable NAAQS by 

the applicable attainment date. 

We understand that HUD’s Initiative 

for Renewal Communities, Urban 

Empowerment Zones, and Urban 

Enterprise Communities generally 

require that participating communities 

demonstrate pervasive poverty, high 

unemployment, and general distress 

throughout the designated area. The 

U.S. Department of Agriculture requires 

similar eligibility criteria for 

participating communities located in 

rural areas. We believe that many areas 

of Indian country may meet these 

criteria and hence could qualify for this 

offset relief provision. We seek 

comment on whether these criteria are 

appropriate for use in identifying EDZs 

in Indian country and if we should 

consider any other criteria. 

We are also proposing to have the 

Administrator consult with HUD only 

once to develop a general set of 

approval criteria, such that a 

consultation is not required every time 

a tribe applies for its area of Indian 

country to be designated as an EDZ. 

EPA would provide assistance as 

needed for a tribe to complete an EDZ 

designation request. Once the 

Administrator approves such a request 

from a tribe, a new major source or a 

major modification locating in that EDZ 

would be exempt from the offset 

provisions. We seek comment on this 

approach for providing offset relief. 

Appendix S, Paragraph VI Option. 

Paragraph VI of appendix S notes that 

in some cases, the dates for attainment 

of the primary or secondary NAAQS 

may not have passed. In such cases, 

appendix S provides that a new source 

locating in a nonattainment area may be 

exempt from the requirements of 

paragraph IV.A of appendix S 

(discussed in section IV.B.1 of this 

preamble), including the offset 

requirement, if the following conditions 

are met: 

• The new source complies with the 

applicable implementation plan 

emission limitations; 

• The new source will not interfere 

with the attainment date for a regulated 

NSR pollutant; and 

• We have determined that the 

preceding two conditions are satisfied 

and such determination is published in 

the Federal Register. 

Tribes would be able to use this 

option for offset relief for the 8-hour 

ozone and PM2.5 NAAQS. For instance, 

the attainment dates for 8-hour ozone 

nonattainment areas range from 2007 for 

marginal areas to 2021 for severe areas. 

Hence, a new major source or a major 

modification locating in such a 

nonattainment area prior to the 

attainment date may be exempt from the 

requirements of paragraph IV of 

appendix S, if the associated conditions 

are met. 

It is important to note that this option 

would provide only temporary offset 

relief because it would cease to be 

available once the attainment date for a 

pollutant has passed. For instance, this 

option would not be available to 

marginal 8-hr ozone nonattainment 

areas after 2007. We seek comment on 

this paragraph VI option for offset relief. 

We are seeking comment on other 

potential options for addressing the lack 

of availability of offsets in Indian 

country. 

3. What are the proposed public 

participation requirements for this 

program? 

We believe that the public 

participation requirements of 40 CFR 

51.161 apply to permitting under 

appendix S. Additionally, for the 

nonattainment major NSR program, we 

are proposing detailed public notice 

requirements at 40 CFR 49.171. The 

proposed requirements for the 

nonattainment major NSR program are 

very similar to those proposed for the 

minor NSR program at 40 CFR 49.157. 

See section IV.A.11 for more 

information on the proposed 

requirements. 

4. How do I meet the statewide 

compliance certification requirement of 

the Act? 

Pursuant to the statewide compliance 

certification requirements of section 

173(a)(3) of the Act, an owner or 

operator of a proposed new or modified 

major stationary source must 

demonstrate that all other major 

stationary sources under her/his control 

in the same State are in compliance or 

on a schedule for compliance with all 

emission limitations and standards of 

the Act. It is important to recognize that 

the proposed rules will not impact this 

statewide compliance certification 

requirement. However, in the context of 

Indian country, we are seeking 

comments on whether this requirement 

should be expressed as an Indian 

country-wide compliance certification 

or remain a statewide certification. In 

other words, should you be required to 

certify that all your sources in the State 

where your proposed source is locating 

are in compliance, or that all your 

sources in all of Indian country are in 

compliance? 

Note that we are proposing a minor 

change to appendix S that is related to 

the ‘‘emission limitations and standards 

of the Act.’’ Existing paragraph II.B of 

appendix S requires the reviewing 

authority to review each proposed new 

major source and major modification to 

determine whether it will meet ‘‘any 

applicable new source performance 

standard in 40 CFR part 60, or any 

national emission standard for 

hazardous air pollutants in 40 CFR part 

61.’’ While we have incorporated this 

requirement into proposed 40 CFR 

49.169(a), we believe that it should be 

expanded to include the newer national 

emission standards for hazardous air 

pollutants codified at 40 CFR part 63 

(commonly referred to as MACT 

standards). Accordingly, we are 

proposing to revise paragraph II.B of 

appendix S to add these standards 

under the Act, and proposed 40 CFR 

49.169(a) would match the revised 

language of this paragraph. 

V. Legal Basis, Statutory Authority, and 

Jurisdictional Issues 

A. What is the basis for our authority to 

implement these programs? 

Today’s proposed rules are intended 

to fill a regulatory gap in the protection 

of air quality in Indian country. 

Although many States have developed 

regulatory programs for minor sources, 

those programs do not apply in Indian 

country unless explicitly approved by 

EPA for such areas. In addition, there is 

no Federal minor NSR program or major 

nonattainment NSR program in Indian 

country. Part D of title I of the Act 

requires that each SIP include 

preconstruction review and permitting 

rules for the construction and operation 

of new and modified major stationary 

sources located in designated 

nonattainment areas. The TAR 

authorizes eligible Indian tribes to 

implement EPA-approved 

nonattainment NSR (part D of title I of 

the Act), PSD (part C of title I of the 

Act), and other programs under the Act 

in the same manner as States. However, 

if Indian tribes are unable, or choose 

not, to develop a nonattainment NSR 

program in a TIP, we will implement 

the program where necessary or 

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appropriate. Today’s proposed 

requirements are intended to provide 

the mechanism for implementation of 

the Federal major nonattainment NSR 

and minor NSR programs in Indian 

country. 

The purpose of the proposed rules is 

to ensure that the NSR program is 

implemented throughout the United 

States and that any economic growth 

occurring in Indian country will do so 

in harmony with the preservation of 

existing clean air resources. Today’s 

proposed rules provide both Indian 

tribes and businesses operating or 

considering locating in Indian country 

an understanding of the NSR programs 

for stationary sources. They also provide 

businesses and tribes procedures to 

comply with the major nonattainment 

NSR and minor NSR programs. 

The Act gives us the authority to 

protect the Nation’s air resources. 

Furthermore, title I of the Act requires 

that the NSR program be established to 

protect public health and welfare, 

national parks, and wilderness areas as 

new sources of pollution are built or 

existing sources are modified. The 

program is designed to ensure that 

emissions will be well controlled and 

that there will be protection of the 

NAAQS in Indian country. We 

understand that not all tribes have the 

resources to design and implement NSR 

programs; therefore, in today’s proposal, 

we are providing a Federal program to 

apply in Indian country and that tribes 

may use as a model if they choose to 

develop their own implementation 

programs and obtain our approval. 

Under today’s proposed rule, the 

Federal program at 40 CFR 49.151 

through 49.165 for minor stationary 

sources would apply throughout Indian 

country, except where we explicitly 

approve an implementation plan for 

such programs. The Federal rule at 40 

CFR 49.166 through 49.175 for new and 

modified major stationary sources in 

nonattainment areas located in Indian 

country would likewise apply in an area 

of Indian country until an 

implementation plan has been approved 

by us. 

As discussed previously, the Act 

provides us with broad authority to 

protect air resources throughout the 

Nation, including air resources in 

Indian country. See, for example, the 

preamble discussion for the proposed 

and final TAR (59 FR 43956, 43958–61, 

August 25, 1994; 63 FR 7254, 7262–64, 

February 12, 1998) and the preamble 

discussion for the proposed revisions to 

the part 71 Federal operating permits 

program for Indian country (62 FR 

13748, 13750, March 21, 1997). In the 

preambles to the proposed and final 

TAR, we discussed generally the legal 

basis under the Act for EPA and tribal 

regulation of sources of air pollution in 

Indian country. We concluded that the 

Act constitutes a statutory delegation of 

Federal authority to eligible tribes over 

all sources of air pollution within the 

exterior boundaries of their reservations. 

Further, under the Act, tribes may 

also apply to administer tribal air 

quality programs for non-reservation 

areas over which they can show 

jurisdiction.9 See 63 FR 7254–7259, 59 

FR 43958–43960, Arizona Public 

Service Co. v. EPA, 211 F.3d 1280 (D.C. 

Cir. 2000), cert. den., 532 U.S. 970 

(2001). 

In the preamble to the TAR, we also 

concluded that the Act authorizes us to 

protect air quality throughout Indian 

country. See 63 FR 7262, 59 FR 43960– 

43961 citing sections 101(b)(1), 301(a), 

and 301(d) of the Act. 

In addition, sections 301(d) and 

110(o) of the Act give the tribes the 

authority to develop their own tribal 

programs. We encourage eligible tribes 

to develop their own minor and major 

nonattainment NSR programs for 

incorporation into their TIPs. In the 

absence of EPA-approved programs, we 

believe that, in most cases, it would be 

9 We believe that in the context of programs 

under the Act, States generally lack the authority 

to regulate air quality in Indian country. See Alaska 

v. Native Village of Venetie Tribal Government, 522 

U.S. 520, 527 fn. 1 (1998) (‘‘Generally speaking, 

primary jurisdiction over land that is Indian 

country rests with the Federal Government and the 

Indian tribe inhabiting it, and not with the States.’’), 

California v. Cabazon Band of Mission Indians, 480 

U.S. 202 (1987), and HRI v. EPA, 198 F.3d 1224 

(10th Cir. 2000); see also discussion in EPA’s final 

rule for the Federal operating permits program (64 

FR 8251–8255, February 19, 1999). To provide 

additional certainty to regulated entities, we believe 

it is helpful to clarify the extent to which State NSR 

programs have force in Indian country. We make 

clear today that we interpret past approvals and 

delegations of NSR programs as not extending to 

Indian country unless the State has made an 

explicit demonstration of jurisdiction over Indian 

country, and we have explicitly approved or 

delegated the State’s program for such area. This is 

consistent with Congress’ requirement that we 

approve State and tribal programs only where there 

is a demonstration of adequate authority. See 

sections 110(a)(2)(E), 110(o), and 301(d) of the Act 

and 40 CFR part 49. Since States generally lack the 

authority to regulate air resources in Indian 

country, we do not believe it would be appropriate 

for us to approve State programs under the Act as 

covering Indian country where there has not been 

an explicit demonstration of adequate jurisdiction 

and where we have not explicitly indicated our 

intent to approve the State program for an area of 

Indian country. In State NSR program approvals 

and delegations, we generally were not faced with 

State assertions of authority to regulate sources in 

Indian country. However, to the extent States or 

others may have interpreted our past approvals or 

delegations that were not based on explicit 

demonstrations of adequate authority and did not 

explicitly grant approval in Indian country, as 

approvals to operate NSR programs in Indian 

country, we wish to clarify any such 

misunderstanding. 

neither practical nor administratively 

feasible for us to develop and 

implement a separate program for each 

area of Indian country. As a result, we 

are proposing to implement a flexible 

FIP for Indian country that provides 

new and modified minor sources and 

major sources in nonattainment areas 

with procedures to demonstrate that 

they will be operating in a manner that 

is protective of air resources and the 

NAAQS. 

Section 301(a) of the Act provides us 

broad authority to issue such 

regulations as are necessary to carry out 

the mandates of the Act. Further, several 

provisions of the Act call for Federal 

implementation of a program where, for 

example, a State, or in this case a tribe, 

fails to adopt a program or adopts an 

inadequate program. See, for example, 

sections 110(c)(1), 502(d)(3), and 

502(i)(4) of the Act. These provisions 

exist in part to ensure that the benefits 

of the Act would be realized throughout 

the United States, whether or not local 

governments choose to participate in 

implementing the Act. Especially in 

light of the problems associated with 

transport of air pollution across State 

and tribal boundaries, it follows that 

Congress intended that we have the 

authority to operate a Federal program 

in the absence of an adequately 

implemented EPA-approved program. 

See, for example, 59 FR 43958–61, 

August 25, 1994; 62 FR 13750, March 

21, 1997; and 63 FR 7262–64, February 

12, 1998. 

This interpretation is most evident 

from Congress’ grant of authority to the 

EPA under section 301(d)(4) of the Act. 

Section 301(d)(4) authorizes the 

Administrator to directly administer 

provisions of the Act so as to achieve 

the appropriate purpose where tribal 

implementation of those provisions is 

inappropriate or administratively 

infeasible. We determined that it is 

inappropriate to subject tribes, among 

other things, to the mandatory submittal 

deadlines and to the related Federal 

oversight mechanisms in section 

110(c)(1) of the Act, which are triggered 

when we make a finding that States 

have failed to meet required deadlines 

or disapprove a plan submittal. See 40 

CFR 49.4(d). 

By determining that tribes should not 

be treated similarly to States for 

purposes of the specific FIP obligation 

under section 110(c)(1) of the Act, we 

are not relieved of the general obligation 

under the Act to ensure the protection 

of air quality throughout the Nation, 

including throughout Indian country. 

Rather, consistent with the provisions of 

sections 301(a) and 301(d)(4) of the Act, 

we expressed our intent to promulgate 

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without unreasonable delay a FIP 

(where necessary or appropriate) to 

protect air quality if tribal efforts do not 

result in adoption and approval of tribal 

plans or programs. See 63 FR 7265, 40 

CFR 49.11. 

We propose to exercise our authority 

to administer the minor NSR permitting 

program and the nonattainment major 

NSR program in Indian country, which 

is generally the area over which a tribe 

may potentially receive approval of 

programs under the Act. As noted in the 

final TAR, we interpret the Act as 

establishing a territorial approach to 

implementation of the Act within 

Indian reservations by delegating to 

eligible tribes authority over all 

reservation sources without 

differentiating among the various 

categories of on-reservation lands (63 FR 

7254–7258). In addition, the Act 

authorizes eligible tribes to implement 

tribal programs under the Act in nonreservation areas over which a tribe has 

jurisdiction, generally including all 

areas of Indian country (63 FR 7258– 

7259). 

Under section 301(d)(4) of the Act, 

Congress authorized the EPA to 

maintain the territorial approach by 

implementing the Act in Indian country 

in the absence of an EPA-approved 

program. We believe that Congress 

authorized us, consistent with our 

Indian policy, to avoid the 

checkerboarding of reservations based 

on land ownership by federally 

implementing the Act over all 

reservation sources in the absence of an 

EPA-approved tribal program. See S. 

Rep. No. 228, 101st Cong., 1st Sess. 79 

(1989) (implementation of the Act to be 

in a manner consistent with EPA’s 

Indian policy). In addition, section 

301(d)(4) authorized us to implement 

the Act in non-reservation areas of 

Indian country in order to fill any gap 

in program coverage and to ensure an 

efficient and effective transition to EPAapproved programs. 

Our interpretation of section 301(d) of 

the Act as authorizing our 

implementation throughout Indian 

country is also supported by the 

legislative history. See S. Rep. No. 228, 

101st Cong., 1st Sess. 80 (1989) (noting 

that section 301(d) of the Act authorizes 

the EPA to implement provisions of the 

Act throughout ‘‘Indian country’’ when 

there is no approved tribal program); Id. 

at 80 (noting that criminal sanctions are 

to be levied by the EPA, ‘‘consistent 

with the Federal government’s general 

authority in Indian country’’); Id. at 79 

(the purpose of section 301(d) is to 

‘‘improve the environmental quality of 

the air within Indian country in a 

manner consistent with the EPA Indian 

Policy’’). 

In order to further our commitment to 

use our authority under the Act to 

protect air quality throughout Indian 

country by directly implementing the 

Act’s requirements, we are now 

exercising the rulemaking authority 

entrusted to us by Congress to directly 

implement the minor NSR permitting 

program and nonattainment major NSR 

permitting program throughout all areas 

of Indian country. See generally, 

Chevron USA, Inc. v. NRDC, 467 U.S. 

837, 842–45 (1984). 

B. How does a tribe receive delegation 

to assist EPA with administration of the 

Federal minor and major NSR rules? 

Section 301(a)(1) of the Act provides 

that the Administrator is authorized to 

prescribe such regulations as are 

necessary to carry out his or her 

functions under the Act. Pursuant to 

this authority, proposed 40 CFR 49.160 

and 49.172 of the minor and major NSR 

rules, respectively, provide that partial 

administration of the Federal NSR 

programs may be delegated to a tribal 

agency that submits a request for 

delegation which includes the 

information set forth in the proposed 

sections.10 Any Federal requirements 

under these programs that are 

administered by the delegate tribal 

agency will be subject to enforcement by 

EPA under Federal law. Nothing in the 

proposed rules would require us to 

delegate administration of any aspect of 

the Federal program to a tribal agency. 

As noted elsewhere, we have 

established a process in the TAR 

pursuant to section 301(d) of the Act for 

tribes to seek treatment in a similar 

manner as a State (TAS) for various 

provisions and programs of the Act. 

Under the procedures set forth in the 

TAR, tribes may seek to demonstrate 

eligibility for approval of tribal 

programs under the Act, including a 

10 This information includes identifying the 

specific rules and provisions and the area of Indian 

country for which the delegation is requested. In 

addition, tribal agencies seeking delegation must 

provide a statement by the tribe’s legal counsel or 

equivalent official including a statement that the 

tribe is recognized by the Secretary of the Interior, 

a descriptive statement demonstrating that the tribe 

is currently carrying out substantial governmental 

duties and powers over a defined area (this 

statement should be consistent with the type of 

information described in 40 CFR 49.7(a)(2), which 

relates to the separate process by which tribes apply 

to be treated in a similar manner as States for 

various purposes under the Act), a description of 

the laws of the tribe that provide adequate authority 

to administer the Federal rules and provisions for 

which the delegation is requested, and a descriptive 

statement demonstrating that the tribal agency has, 

or will have, the technical capability and adequate 

resources to administer the Federal rules and 

provisions for which the delegation is requested. 

tribal NSR program, under tribal law. 

The TAR allows tribes to seek approval 

for such programs covering their 

reservations or other areas within their 

jurisdiction. We recognize that some 

tribes may choose not to develop tribal 

NSR programs for submission to us for 

approval under the TAR, but that these 

tribes may still wish to assist us in 

implementing the Federal NSR program 

for their area of Indian country. By 

assisting us with administration of the 

Federal program, tribes remain 

appropriately involved in 

implementation of an important air 

quality program and may develop their 

own capacity to manage such programs 

in the future should they choose to do 

so. Proposed 40 CFR 49.160 and 49.172 

of the minor and major NSR rules, 

respectively, provide tribal governments 

the option of seeking delegation from us 

of the administration of the Federal NSR 

program, or aspects of the program, for 

their area of Indian country. Such 

administrative delegation is to be 

distinguished from the TAS process 

under the TAR whereby tribes seek 

approval to run programs under tribal 

law. Tribes would not need to seek TAS 

under the TAR in order to request 

delegation of administration of aspects 

of these Federal NSR programs. Tribes 

would, however, need to provide the 

relevant application information 

described in those sections. In addition, 

program functions delegated under 

proposed 40 CFR 49.160 or 49.172 

would remain part of the relevant FIP 

administered under Federal law. The 

delegate tribal agency would simply 

assist EPA with administration of the 

program to the extent of the functions 

delegated. 

We have well-established processes 

for delegating our Federal authority to 

States for administering Federal rules 

under the Act, including conducting 

new source review under 40 CFR 

52.21(u), and issuing Federal operating 

permits under 40 CFR 71.4(j) and 71.10. 

The process we would follow to 

delegate the administration of the 

Federal NSR program to a tribal agency 

is similar to the process we follow to 

delegate the administration of Federal 

programs to States. Prior to finalizing 

any delegation agreement with a tribal 

agency, we would consult with other 

Federal, State, tribal, or local 

governmental entities, or other 

governmental agencies in the area, as 

appropriate. Although sections 110(o) 

and 301(d) of the Act and the TAR 

authorize us to review and approve 

TIPs, neither the Act nor the regulations 

provide that approval of tribal programs 

under tribal law is the sole mechanism 

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available for tribal agencies to take on 

permitting responsibilities. Accordingly, 

we propose to exercise our discretion to 

delegate administration of the Federal 

NSR program to interested tribal 

agencies satisfying the requirements of 

proposed 40 CFR 49.160 and 49.172. 

The delegation of administration of 

the Federal NSR program to tribes 

proposed in these rules is to be 

distinguished from our interpretation 

that the Act constitutes a delegation of 

Federal authority from Congress to 

tribes over their reservations as 

described in the TAR. See 63 FR 7254– 

59. As described in the preamble to the 

TAR, it is our position that the TAS 

provision of the Act constitutes a 

statutory delegation of authority to 

eligible tribes over their reservations. As 

described earlier, the TAR established 

procedures for our approval of tribal 

eligibility applications to operate the 

programs of the Act under tribal law. 

Where we approve a tribal eligibility 

application and approve a tribal NSR 

program, the approved tribe will 

manage the program under tribal law, 

and the tribal program becomes 

federally enforceable. Among the 

required elements of a tribal eligibility 

application under the TAR is a 

demonstration of the tribe’s authority, 

including appropriate enforcement 

authority, to regulate air quality for the 

areas to be covered by the program. For 

air resources within the exterior 

boundaries of a tribe’s reservation, the 

tribe may rely on the Congressional 

delegation of Federal authority to 

operate approved tribal programs. 

Tribes may also attempt to demonstrate 

authority to operate the programs of the 

Act over other areas outside of their 

reservations, generally including nonreservation areas of Indian country. 

In contrast, the delegation approach 

proposed in these rules provides for us 

to delegate administration of the Federal 

program operating under Federal law to 

interested tribes that provide the 

information described in proposed 40 

CFR 49.160(b)(1) and 49.172(b)(1). Since 

this program operates throughout Indian 

country under Federal authority, tribes 

would not need to demonstrate either 

Congressionally-delegated authority 

over air resources within the exterior 

boundaries of their reservations or 

authority of non-reservation areas of 

Indian country. Instead, tribal agencies 

would assist us in implementing the 

Federal program by taking delegation of 

the administration of particular 

activities conducted under our authority 

in Indian country. Under proposed 40 

CFR 49.160(b)(1)(iii)(C) and 

49.172(b)(1)(iii)(C), tribes would only 

need to show that their laws provide 

adequate capacity and authority to carry 

out the delegated activities. For 

example, where a tribe seeks 

administrative delegation for permit 

issuing activities of the Federal 

program, the tribe may, among other 

things, need to show it has in place an 

appropriate agency with legal authority 

to review applications and issue permits 

on behalf of the delegate tribal 

government. For these administratively 

delegated programs, Federal program 

requirements will continue to be subject 

to enforcement by us, not the delegate 

tribal agency, under Federal law. 

Administrative appeals of permitting 

decisions would also continue to be 

made directly to the EAB under our 

administrative procedures with any 

subsequent judicial review to be 

conducted in Federal court. In the 

proposed rules we make it clear that we 

will not delegate enforcement or appeal 

components of the program to tribal 

agencies. 

In order to be delegated authority to 

administer the proposed rules for a 

particular area of Indian country, the 

authorized representative of a tribal 

agency must demonstrate that it has the 

authority and technical capability to 

carry out the provisions of the rules for 

which delegation is requested. When 

delegation is approved, a Partial 

Delegation of Administrative Authority 

Agreement between the Administrator 

and the tribal agency will set forth the 

terms and conditions of the delegation, 

and will also specify the rules and 

provisions that the tribal agency is 

authorized to implement. Once the 

delegation becomes effective, the tribal 

agency will have the authority under the 

Act, to the extent specified in the 

Agreement, to administer the rules in 

effect for the particular area of Indian 

country, and to act on behalf of the 

Administrator. The Federal 

requirements administered by the 

delegate tribal agency will be subject to 

enforcement by us under Federal law. 

When we have delegated 

administration of the portion of the 

Federal minor or major NSR program 

that includes receipt of permit 

application materials and preparation of 

draft permits, the delegate tribal agency 

must provide us a copy of each permit 

application (including any application 

for permit revision) and each draft 

permit.11 In any such delegation, we 

retain the authority to object to the 

11 The proposed minor and major NSR programs 

provide that the delegate tribal agency may require 

the applicant to provide a copy of the permit 

application directly to us. In addition, with our 

consent, the delegate tribal agency may submit to 

us a permit application summary form and any 

relevant portion of the permit application. 

issuance of any permit that we 

determine not to be in compliance with 

the requirements under the program or 

other requirements pursuant to 

regulations under the Act. For any such 

objections, we will outline the reasons 

for the objection in writing, and we will 

provide a copy of the written statement 

to the permit applicant. The delegate 

tribal agency may not issue a permit if 

we object to its issuance in writing. The 

delegate tribal agency may submit a 

revised draft permit to us in response to 

the objection. However, if it does not do 

so within 90 days, we will issue or deny 

the permit in accordance with the 

requirements of the Federal minor or 

major NSR program, as applicable. 

C. What happens to permits previously 

issued by States to sources in Indian 

country? 

As discussed previously, section 

301(d) of the Act recognizes the 

authority of eligible tribes to implement 

the Act throughout their reservations 

and other areas under their jurisdiction. 

Historically, sources in some areas of 

Indian country may have received 

permits from States operating EPAapproved programs. However, States 

generally lack jurisdiction under the Act 

over these facilities and generally were 

not authorized under the Act to issue 

such permits in Indian country. We also 

recognize that just as it required many 

years to develop State and Federal 

programs to cover lands subject to State 

jurisdiction, it will also require time to 

develop tribal and Federal programs to 

cover areas of Indian country. 

We have also mentioned before that 

we will ‘‘promulgate without 

unreasonable delay such Federal 

implementation plan provisions as are 

necessary or appropriate to protect air 

quality, consistent with the provisions 

of sections 301(a) and 301(d)(4) [of the 

Act], if a tribe does not submit a tribal 

implementation plan. * * *’’ See 40 

CFR 49.11(a). Today’s proposed 

rulemaking would provide a mechanism 

to change State permits issued to major 

sources of regulated NSR pollutants in 

nonattainment areas of Indian country 

to Federal major NSR permits. If you 

own or operate a major stationary source 

with a State-issued nonattainment major 

NSR permit, you must apply to convert 

the permit to a Federal permit under 

this program within 1 year of the 

effective date of this program. In this 

case, you would not be subject to any 

additional requirements under this 

program. See proposed 40 CFR 

49.168(b). 

The requirements contained in these 

State-issued permits have been relied on 

for protection of attainment and 

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maintenance of air quality in these 

nonattainment areas. We believe that 

transforming the State permits in to 

Federal major NSR permits for major 

sources in Indian country is appropriate 

to protect air quality in Indian country, 

as the tribes take on the effort to develop 

and/or run their own programs. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735, October 4, 1993), we must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

Office of Management and Budget 

(OMB) review and the requirements of 

the Executive Order. The Executive 

Order defines a ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligation of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this is a ‘‘significant regulatory 

action’’. We have submitted this action 

to OMB for review. Changes made in 

response to OMB suggestions or 

recommendations will be documented 

in the public record. 

B. Paperwork Reduction Act 

The information collection 

requirements in the proposed 

amendments have been submitted for 

approval to OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501, et seq. 

The Information Collection Request 

(ICR) document prepared by EPA has 

been assigned OMB Control Number 

2060–0003 (EPA ICR No. 1230.13). 

Certain records and reports are 

necessary for the tribal agency (or the 

EPA Administrator in non-delegated 

areas), for example, to: (1) Confirm the 

compliance status of stationary sources, 

identify any stationary sources not 

subject to the standards, and identify 

stationary sources subject to the rules; 

and (2) ensure that the stationary source 

control requirements are being 

achieved. The information would be 

used by the EPA or tribal enforcement 

personnel to (1) Identify stationary 

sources subject to the rules, (2) ensure 

that appropriate control technology is 

being properly applied, and (3) ensure 

that the emission control devices are 

being properly operated and maintained 

on a continuous basis. Based on the 

reported information, the delegate tribes 

can decide which plants, records, or 

processes should be inspected. 

The major nonattainment NSR rule 

would have little impact on existing 

major stationary sources in Indian 

country because it would only affect 

such owners and operators if they 

propose a major modification; none are 

expected. The proposed rule would only 

result in an administrative change for 

new major sources in Indian country 

because, although the regulatory 

mechanism to issue permits is not yet 

available in the form of either a Federal 

nonattainment NSR rule or a TIP, we 

would be required to implement the 

program in Indian country, and would 

otherwise have to do source-specific 

FIP. As a result, there would no new or 

additional burden on industry. 

With regard to the minor source 

permitting rule, the average capital cost 

per facility for the one-time activities is 

$13,088 per source; annualized, this 

cost is $1,863 per year per source. The 

total of the various annualized and 

recurring costs is an average of $7,598 

per year per source. The annual 

reporting and record keeping cost 

burden is a total annualized capital/ 

startup costs of $77,000, and total 

annual costs (operation and 

maintenance) of $235,000. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s rules are listed in 

40 CFR part 9 and 48 CFR chapter 15. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, including the use of 

automated collection techniques, EPA 

has established a public docket for this 

rule, which includes this ICR, under 

Docket ID number EPA–HQ–OAR– 

2003–0075. Submit any comments 

related to the ICR for this proposed rule 

to EPA and OMB. See ADDRESSES 

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street, NW., Washington, DC 

20503, Attention: Desk Office for EPA. 

Since OMB is required to make a 

decision concerning the ICR between 30 

and 60 days after August 21, 2006, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by September 20, 2006. The final rule 

will respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, ‘‘small entity’’ is defined as: (1) 

A small business as defined by the 

Small Business Administration’s 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government or a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. Today’s proposed 

rule only potentially affects small 

businesses, not small governments or 

small organizations. 

The proposed rule potentially affects 

six types of stationary sources in Indian 

Country: 

• New and modified minor sources of 

regulated NSR pollutants; 

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48724 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

• Sources of regulated NSR pollutants 

choosing to accept enforceable emission 

limitations to avoid major source 

regulations (synthetic minors); 

• Sources of HAP choosing to accept 

enforceable emission limitations to 

avoid major source regulations 

(synthetic minors); 

• Minor modifications to major 

sources of regulated NSR pollutants; 

• New major sources of regulated 

NSR pollutants in nonattainment areas; 

and 

• Major modifications to major 

sources of regulated NSR pollutants in 

nonattainment areas. 

The second, third, fifth, and sixth 

types of sources are projected to incur 

no incremental costs or to experience 

cost savings due to the proposed rule. 

The rule results in only an 

administrative change for new major 

sources in nonattainment areas. In the 

absence of the proposed rule, there is no 

regulatory mechanism to issue permits. 

We would be required to implement the 

program in Indian country, and such 

new major sources would have to be 

permitted through a source-specific FIP. 

The proposed rule would provide a 

regulatory mechanism for permitting 

such sources; because the compliance 

requirements are expected to be 

unchanged by the proposed rule, no 

change in control costs is expected. 

Because the permitting process may be 

less uncertain under the proposed rule, 

new and modifying major sources could 

potentially experience cost savings 

compared to baseline conditions. 

Choosing to accept enforceable emission 

limitations (become a synthetic minor) 

is entirely optional; rational firms 

would only make this choice if it 

resulted in a cost savings. For these four 

types of sources, therefore, no adverse 

economic impacts are expected to any 

businesses, including small businesses. 

The screening assessment therefore 

focused on costs and impacts for new 

and modified minor sources and minor 

modifications at major sources. To 

analyze potential impacts to small 

companies owning such sources, we 

first estimated the number of new 

sources that would be sited in Indian 

country over the period 2004 through 

2010, the time period selected for the 

analysis.12 Generally, data on minor 

sources in Indian country is very 

limited. We conducted an exhaustive 

search for information available from 

EPA databases, the Small Business 

Administration, and EPA Regional 

Offices. We also encouraged the tribes to 

participate in the rulemaking, and 

inquired whether tribes had any 

information on minor sources but no 

data were received. We concluded that 

the information in 11 tribal emissions 

inventories maintained by EPA/OAQPS 

provided the best characterization of the 

types of minor sources that currently 

exist and the types of new minor 

sources that might be sited in Indian 

country in the future. We collected data 

from the Economic Census (1997) on the 

number of establishments of each type 

in each State, and allocated the 

establishments to Indian country based 

on tribes’ share of State income. Then, 

we projected the number of new minor 

sources of each type that would be 

created in Indian country by applying 

the estimated growth rate for American 

Indian/Alaska Native (AI/AN) 

population in each State to the 

estimated baseline number of sources in 

Indian country in the State. Over the 

period from promulgation (2004) 

through (2010), we estimate that 288 

new minor sources will be created in 

Indian country. We used data from 

financial databases to compute the share 

of companies in each sector that are 

owned by small businesses (based on 

the Small Business Administration 

small business size definitions at 13 

CFR part 121). Assuming that the same 

share of new minor sources will be 

owned by small businesses, we estimate 

that 164 new minor source facilities, 

owned by 143 small businesses, will be 

created in Indian country during the 

period. Additionally, we project that 

112 modifications to existing minor 

sources will occur during the period 

2004 through 2010. Of these, we 

estimate that 51 small businesses will 

own 62 existing minor sources 

undergoing modifications during the 

period. 

Finally, we estimate that one major 

source in Indian country will make a 

minor modification to its operations 

each year. Thus, we estimate that seven 

minor modifications to existing major 

sources will occur over the period 2004 

to 2010. Of these, we estimate that 3 of 

these major sources will be owned by 3 

small businesses. 

Table 3 below summarizes the 

estimated numbers of affected facilities 

and small businesses. 

TABLE 3.—PROJECTED NUMBER OF AFFECTED SMALL BUSINESSES AND ESTIMATED COSTS INCURRED BY SMALL


BUSINESSES


[2004 through 2010] 


Source type 

Projected number of 

sources owned by small 

businesses 

Estimated number of 

small businesses 

Estimated costs incurred 

by small businesses 

($ million) a 

New Minor Sources ..................................................................... 

Modified Minor Sources ............................................................... 

Minor Modifications to Major Sources ......................................... 

164 

62 

3 

143 

51 

3 

$2.68 

0.97 

0.02 

Total ...................................................................................... 229 197 3.62 

a Based on Year 2000 dollars. 

To conduct our screening analysis of 

impacts on small businesses, we 

compared the estimated costs of 

compliance for each type of source in 

each sector with typical small business 

sales in each sector. 

Based on the screening analysis of 

impacts on small entities, we certify that 

this action will not have a significant 

economic impact on a substantial 

number of small entities. Our analysis 

estimates that, of the projected 164 new 

minor source facilities owned by 143 

small businesses, two (a natural gas 

compressor station and a landfill) will 

experience costs greater than 1 percent 

of sales and none will experience costs 

exceeding 3 percent of sales due to the 

proposed rule. Of the estimated 62 

existing minor source facilities owned 

12 Based upon our evaluation of current Tribal has not changed significantly to date; therefore, the supporting statement and this RFA. This analysis 

emission inventories and the application of updated May, 2003 analysis for the period 2004–2010 will be updated for the final rulemaking. growth rates, we have determined that the analysis remains valid for the EIA, the associated ICR 

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48725 

by 51 small businesses projected to 

perform minor modifications that result 

in emissions increases greater than the 

minor NSR thresholds in Table 1, three 

may experience costs approximately 

equal to 1 percent of sales; none 

experience costs exceeding 3 percent of 

sales. The three major source facilities 

owned by small businesses projected to 

perform minor modifications during the 

period 2004 through 2010 will incur 

only the costs of obtaining a minor 

source permit, which represent a very 

small share of baseline company sales. 

Therefore, of these 229 potentially 

affected facilities owned by an 

estimated 197 small businesses, only 5 

are projected to incur costs exceeding 1 

percent of company sales, and none is 

projected to incur costs greater than 3 

percent of company sales. Thus, the 

proposed rule will not impose a 

significant economic impact on a 

substantial number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

we generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in aggregate, or 

to the private sector, of $100 million or 

more in any 1 year. Before promulgating 

an EPA rule for which a written 

statement is needed, section 205 of the 

UMRA generally requires us to identify 

and consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective, or least 

burdensome alternative that achieves 

the objectives of the rule. The 

provisions of section 205 do not apply 

when they are inconsistent with 

applicable law. Moreover, section 205 

allows us to adopt an alternative other 

than the least-costly, most cost-effective, 

or least-burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before we establish 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, we must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of our regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any 1 year. The maximum total annual 

cost of this proposed rule for any 1 year 

has been estimated to be $312,000. 

Thus, today’s proposed rule is not 

subject to the requirements of sections 

202 and 205 of the UMRA. In addition, 

we have determined that this proposed 

rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments 

because it contains no requirements that 

apply to such governments or impose 

obligations upon them. Therefore, 

today’s proposed rule is not subject to 

the requirements of section 203 of the 

UMRA. 

The proposed rule does not require 

that any tribe accept delegation or 

develop their own permitting program; 

thus, it does not impose any burden on 

small tribes. We recognize, however, 

that some small tribes may choose to 

assist EPA with administration of the 

minor NSR program on their 

reservations. We thus analyzed the costs 

to small tribes if they did make this 

choice, using small tribes that have 

chosen to develop their own air 

programs as examples of the types of 

tribes that might choose to assist EPA 

with administration of the minor new 

source permitting program. We found 

that the cost per tribal member was less 

than $1 per year, and represented less 

than 0.01 percent of the per capita 

income of tribal members. Thus, if the 

costs of developing and implementing a 

permitting program for new minor 

sources were borne by the tribes’ 

members, it would not be a significant 

burden to them. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), requires us to develop 

an accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

Under section 6 of Executive Order 

13132, we may not issue a regulation 

that has federalism implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or we consult with 

State and local officials early in the 

process of developing the proposed 

regulation. We also may not issue a 

regulation that has federalism 

implications and that preempts State 

law, unless we consult with State and 

local officials early in the process of 

developing the proposed regulation. 

This proposed rule does not have 

federalism implications. It would not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Pursuant to the 

terms of Executive Order 13132, it has 

been determined that this proposed rule 

does not have ‘‘federalism implications’’ 

because it does not meet the necessary 

criteria. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this proposed rule. 

In the spirit of Executive Order 13132, 

and consistent with our policy to 

promote communications between us 

and State and local governments, we 

specifically solicit comment on this 

proposed rule from State and local 

officials. We felt it was important to 

ensure that the State and local air 

pollution control agencies and small 

business concerns had an opportunity to 

interact with development of this rule. 

To that end, we had two meetings with 

the STAPPA/ALAPCO to present the 

draft preamble and rule. We also met 

with the National Federation of 

Independent Business and provided 

outreach material through the small 

business ombudsman’s office to get 

input from the small businesses that 

might be affected by this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 (65 FR 67249, 

November 6, 2000), requires us to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ 

The EPA has concluded that this rule 

will have tribal implications, since it 

provides two preconstruction air 

permitting rules for stationary sources 

in Indian Country. These rules will be 

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48726 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

implemented by EPA, or a delegate 

tribal agency assisting EPA with 

administration of the rules, until 

replaced by an EPA-approved tribal 

implementation plan. However, it will 

neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. 

The EPA consulted with tribal 

officials early in the process of 

developing this regulation to permit 

them to have meaningful and timely 

input into its development. In 

undertaking this rulemaking effort we 

wanted to ensure that the tribes were 

included in the rulemaking process 

from the beginning of the rule 

development effort. On June 24, 2002, 

we sent letters to tribal leaders seeking 

their input on how we could best 

consult with the tribes on the 

rulemaking effort. 

We received responses from 75 tribes. 

Of these 75 tribes, 69 designated an 

environmental staff member to work 

with us on developing the rule. Aside 

from the staff designated to help with 

the rulemaking process, many tribal 

leaders wished to be kept informed of 

the rule development. Many of the tribal 

leaders indicated that they wished to be 

kept informed through e-mail, meetings 

with the EPA Regional Offices, 

newsletters, and Web sites. However, 53 

percent of the tribal leaders also 

requested direct phone calls or 

conference calls to discuss the subject. 

Only 16 percent of the respondents 

requested face-to-face consultation. 

Even among the tribes requesting faceto-face consultation, there was some 

degree of latitude, with only six tribes 

requesting senior EPA staff to meet with 

tribal leaders. 

As a result of this feedback we 

developed a consultation/outreach plan 

which included three meetings held at 

the reservations of the Menominee Tribe 

in Wisconsin, the Mohegan Tribe in 

Connecticut, and the Chehalis Tribe in 

Washington. A fourth meeting was held 

in conjunction with the Institute of 

Tribal Environmental Professionals’ 

(ITEP) anniversary meeting in Flagstaff, 

Arizona. In addition to conducting these 

national meetings, we also visited tribal 

environmental staff on tribal lands, 

where time and travel permitted. Over 

30 tribes attended these meetings. We 

have also provided outreach to the 

tribes in numerous national and 

regional forums including the National 

Tribal Forums put on by the Institute of 

Tribal Environmental Professionals, two 

National Tribal Air Association 

meetings, and at meetings with tribal 

consortia, such as the National Tribal 

Environmental Council, United 

Southern and Eastern Tribes, Inter 

Tribal Environmental Council, Inter 

Tribal Council of Arizona, and others. 

In addition to the meetings, we also 

have an ongoing workgroup of tribal 

environmental staff that has worked 

with us on developing these rules. We 

propose to continue with this 

consultation and outreach process until 

we promulgate this rulemaking package. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives that we considered. 

We interpret Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This proposed rule is not 

subject to Executive Order 13045 

because it does not establish 

environmental standards based on an 

assessment of health or safety risks. 

Furthermore, this proposed rule has 

been determined not to be 

‘‘economically significant’’ as defined 

under Executive Order 12866. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211,‘‘Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

I. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 requires that 

each Federal agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionately high 

and adverse human health 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations. 

The EPA believes that the two 

preconstruction air quality regulations 

proposed in this FIP should not raise 

any environmental justice issues. These 

regulations would provide regulatory 

certainty and fill a regulatory gap in 

Indian Country and result in emissions 

reductions from sources complying with 

these regulations. Consequently, the 

regulations should result in some health 

benefits to persons living in Indian 

Country, many of whom live in lowincome and minority communities. 

Therefore, we believe that these 

regulations would not have a 

disproportionate adverse effect on the 

health or safety of minority or low 

income populations. 

J. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

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

us to use voluntary consensus standards 

(VCS) in our regulatory and 

procurement activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. The VCS 

are technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) 

developed or adopted by one or more 

voluntary consensus bodies. The 

NTTAA directs us to provide Congress, 

through annual reports to OMB, with 

explanations when we do not use 

available and applicable VCS. 

This proposed rule does not involve 

technical standards. Therefore, we are 

not considering the use of any voluntary 

consensus standards. 

VII. Statutory Authority 

The statutory authority for this 

proposed action is provided by sections 

101, 110, 112, 114, 116, and 301 of the 

Act as amended (42 U.S.C. 7401, 7410, 

7412, 7414, 7416, and 7601). 

List of Subjects 

40 CFR Part 49 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, Indians, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

40 CFR Part 51 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, 

Intergovernmental relations. 

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48727 

Dated: August 9, 2006. 

Stephen L. Johnson, 

Administrator. 

For the reasons cited in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is proposed to be amended 

as follows: 

PART 49—[AMENDED] 

1. The authority citation for part 49 

continues to read as follows: 

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

Subpart C—[Amended] 

2. Subpart C of Part 49 is amended by 

adding an undesignated center heading 

and §§ 49.151 through 49.160, and 

adding and reserving §§ 49.161 through 

49.165 to read as follows: 

Federal Minor New Source Review 

Program in Indian Country 

§ 49.151 Program overview. 

(a) What constitutes the Federal minor 

new source review (NSR) program in 

Indian country? As set forth in this 

Federal Implementation Plan (FIP), the 

Federal minor NSR program in Indian 

country (or ‘‘program’’) consists of 

§§ 49.151 through 49.165. 

(b) What is the purpose of this 

program? This program has the 

following purposes: 

(1) It establishes a preconstruction 

permitting program for new and 

modified minor stationary sources 

(minor sources) and minor 

modifications at major stationary 

sources located in Indian country to 

meet the requirements of section 

110(a)(2)(C) of the Act. 

(2) It also provides a mechanism for 

an otherwise major stationary source to 

voluntarily accept restrictions on its 

potential to emit to become a synthetic 

minor source. This mechanism also may 

be used by an otherwise major source of 

Hazardous Air Pollutants (HAPs) to 

voluntarily accept restrictions on its 

potential to emit to become a synthetic 

minor HAP source. Such restrictions 

must be enforceable as a practical 

matter. 

(3) It sets forth the criteria and 

procedures that the reviewing authority 

(as defined in § 49.152(d)) will use to 

administer the program. 

(c) When and where does this 

program apply? (1) The provisions of 

this program apply in Indian country 

where there is no EPA-approved minor 

NSR program, beginning on [60 days 

from publication of final rule]. 

(2) The provisions of this program 

cease to apply in an area covered by an 

EPA-approved implementation plan on 

the date that our approval of that 

implementation plan becomes effective, 

provided that the implementation plan 

includes provisions that comply with 

the requirements of section 110(a)(2)(C) 

of the Act for the construction and 

modification of minor sources and 

minor modifications at major stationary 

sources. 

(d) What general provisions apply 

under this program? The following 

general provisions apply to you as an 

owner/operator of a stationary source: 

(1) If you propose to construct a new 

minor source, a modification at an 

existing minor source, or a minor 

modification at an existing major 

stationary source that would be subject 

to this program, you must obtain a 

minor NSR permit under this program 

before beginning actual construction. If 

you commence construction after the 

effective date of this program without 

applying for and receiving a permit 

pursuant to this program, you will be 

subject to appropriate enforcement 

action. 

(2) If you construct or operate your 

source or modification not in 

accordance with the terms of your 

minor NSR permit, you will be subject 

to appropriate enforcement action. 

(3) Issuance of a permit does not 

relieve you of the responsibility to 

comply fully with applicable provisions 

of any EPA-approved implementation 

plan or FIP and any other requirements 

under applicable law. 

(4) Nothing in this program prevents 

a tribe from administering a minor NSR 

permit program with more stringent 

requirements in an approved Tribal 

Implementation Plan (TIP). 

(e) What is the process for issuing 

permits under this program? For the 

reviewing authority to issue a final 

permit decision under this program 

(other than a general permit under 

§ 49.156), all the actions listed in 

paragraphs (e)(1) through (8) of this 

section need to be completed. This 

paragraph (e) does not apply to general 

permits. 

(1) You must submit a permit 

application that meets the requirements 

of § 49.154(a). 

(2) The reviewing authority 

determines completeness of the permit 

application as provided in § 49.154(b). 

(3) The reviewing authority 

determines the appropriate emission 

limitations for your affected emissions 

units under § 49.154(c). 

(4) In those rare instances where the 

reviewing authority has reason to be 

concerned that the construction of your 

minor source or modification would 

cause or contribute to a NAAQS or 

Prevention of Significant Deterioration 

(PSD) increment violation, you must 

submit an air quality analysis upon 

request by the reviewing authority. 

(5) The reviewing authority 

determines that the new or modified 

source will not cause or contribute to a 

NAAQS or PSD increment violation. 

(6) The reviewing authority develops 

a draft permit that meets the permit 

content requirements of § 49.155(a). 

(7) The reviewing authority provides 

for public participation according to the 

requirements of § 49.157. 

(8) The reviewing authority either 

issues a final permit that meets the 

requirements of § 49.155(a), or denies 

the permit and provides reasons for the 

denial. 

§ 49.152 Definitions. 

(a) For sources of regulated NSR 

pollutants in nonattainment areas, the 

definitions in § 49.167 apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(b) For sources of regulated NSR 

pollutants in attainment or 

unclassifiable areas, the definitions in 

§ 52.21 of this chapter apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(c) For sources of HAP, the definitions 

in § 63.2 of this chapter apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(d) The following definitions also 

apply to this program: Affected 

emissions units means the following 

emissions units, as applicable: 

(1) For a proposed new minor source, 

all the emissions units. 

(2) For a proposed modification, the 

new, modified, and replacement 

emissions units involved in the 

modification. 

(3) For an existing minor source 

applying for a minor source PAL, all the 

emissions units that emit the PAL 

pollutant. However, such units are 

considered affected emissions units 

only for the PAL pollutant. 

Allowable emissions means 

‘‘allowable emissions’’ as defined in 

§ 52.21(b)(16) of this chapter, except 

that the allowable emissions for any 

emissions unit are calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the emissions unit’s potential to 

emit. 

Emission limitation means a 

requirement established by the 

reviewing authority which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis, including any 

requirement relating to the operation or 

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maintenance of a source to assure 

continuous emissions reduction, and 

any design standard, equipment 

standard, work practice, operational 

standard, or pollution prevention 

technique. 

Enforceable as a practical matter 

means that an emission limitation is 

both legally and practically enforceable 

as follows: 

(1) An emission limitation is ‘‘legally 

enforceable’’ if the reviewing authority 

has the right to enforce it. 

(2) Practical enforceability for an 

emission limitation in a permit for a 

source is achieved if the permit’s 

provisions specify: 

(i) A limitation and the emissions 

unit(s) at the source subject to the 

limitation; 

(ii) The time period for the limitation 

(e.g., hourly, daily, monthly, and/or 

annual limits such as rolling annual 

limits); and 

(iii) The method to determine 

compliance, including appropriate 

monitoring, recordkeeping, reporting, 

and testing. 

(3) For rules and general permits that 

apply to categories of sources, 

practicable enforceability additionally 

requires that the provisions: 

(i) Identify the types or categories of 

sources that are covered by the rule or 

general permit; 

(ii) Where coverage is optional, 

provide for notice to the reviewing 

authority of the source’s election to be 

covered by the rule or general permit; 

and 

(iii) Specify the enforcement 

consequences relevant to the rule or 

general permit. 

Environmental Appeals Board means 

the Board within the EPA described in 

§ 1.25(e) of this chapter. 

Indian country, as defined in 18 

U.S.C. 1151, means the following: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation; 1 

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of a State; and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

1 Under this definition, EPA treats as reservations 

trust lands validly set aside for the use of a tribe 

even if the trust lands have not been formally 

designated as a reservation. 

Indian governing body means the 

governing body of any tribe, band, or 

group of Indians subject to the 

jurisdiction of the United States and 

recognized by the United States as 

possessing power of self-government. 

Minor modification at a major 

stationary source means a modification 

at a major stationary source that does 

not qualify as a major modification 

under § 49.167 or § 52.21 of this chapter, 

as applicable. 

Minor NSR threshold means any of 

the applicability cutoffs for this program 

listed in Table 1 of § 49.153. 

Minor source plantwide applicability 

limitation (PAL) means a source-wide 

limitation on allowable emissions of a 

regulated NSR pollutant, expressed in 

tons per year, that is established for a 

minor source in a permit issued under 

§ 49.155 and that is enforceable as a 

practical matter. 

Minor stationary source or minor 

source means a source that emits or has 

the potential to emit regulated NSR 

pollutants in amounts that are less than 

the major stationary source levels in 

§ 49.167 or § 52.21 of this chapter, as 

applicable. The term ‘‘minor stationary 

source’’ applies independently to each 

regulated NSR pollutant that the source 

has the potential to emit. 

Modification means any physical or 

operational change at a source that 

would cause an increase in the 

allowable emissions of the affected 

emissions units for any regulated NSR 

pollutant or that would cause the 

emission of any regulated NSR pollutant 

not previously emitted. The following 

exemptions apply: 

(1) A physical or operational change 

does not include routine maintenance, 

repair, or replacement. 

(2) An increase in the hours of 

operation or in the production rate is 

not considered an operational change 

unless such increase is prohibited under 

any federally-enforceable permit 

condition or other permit condition that 

is enforceable as a practical matter. 

(3) A change in ownership at a source 

is not considered a modification. 

Potential to emit means the maximum 

capacity of a source to emit a pollutant 

under its physical and operational 

design. Any physical or operational 

limitation on the capacity of the source 

to emit a pollutant, including air 

pollution control equipment and 

restrictions on hours of operation or on 

the type or amount of material 

combusted, stored, or processed, shall 

be treated as part of its design if the 

limitation or the effect it would have on 

emissions is federally enforceable or 

enforceable as a practical matter. 

Secondary emissions, as defined at 

§ 52.21(b)(18) of this chapter, do not 

count in determining the potential to 

emit of a source. 

Reviewing authority means the 

Administrator, and may mean an Indian 

tribe in cases where a tribal agency is 

assisting EPA with administration of the 

program through a delegation. 

Synthetic minor HAP source means a 

source that otherwise has the potential 

to emit HAPs in amounts that are at or 

above those for major sources of HAP in 

§ 63.2 of this chapter, but that has taken 

a restriction so that its potential to emit 

is less than such amounts for major 

sources. Such restrictions must be 

enforceable as a practical matter. 

Synthetic minor source means a 

source that otherwise has the potential 

to emit regulated NSR pollutants in 

amounts that are at or above those for 

major stationary sources in § 49.167 or 

§ 52.21 of this chapter, as applicable, 

but that has taken a restriction so that 

its potential to emit is less than such 

amounts for major stationary sources. 

Such restrictions must be enforceable as 

a practical matter. The term ‘‘synthetic 

minor source’’ applies independently 

for each regulated NSR pollutant that 

the source has the potential to emit. 

§ 49.153 Applicability. 

(a) Does this program apply to me? 

The requirements of this program apply 

to you as set out in paragraphs (a)(1) 

through (5) of this section. 

(1) New and modified sources. The 

applicability of the preconstruction 

review requirements of this program is 

determined individually for each 

regulated NSR pollutant that would be 

emitted by your new or modified 

source. For each such pollutant, 

determine applicability as set out in the 

relevant paragraph (a)(1)(i) or (ii) of this 

section. Flowcharts 1 through 6 of this 

section are provided as aids for making 

these applicability determinations. 

(i) New source. Use the following 

steps to determine applicability for each 

regulated NSR pollutant. Flowchart 2 of 

this section addresses attainment and 

unclassifiable pollutants; Flowchart 4 of 

this section addresses nonattainment 

pollutants. 

(A) Step 1. For the pollutant being 

evaluated, determine whether your 

proposed source is subject to review 

under the applicable major NSR 

program (that is, under § 52.21 of this 

chapter, under the Federal major NSR 

program for nonattainment areas in 

Indian country at §§ 49.166 through 

49.75, or under a program approved by 

the Administrator pursuant to § 51.165 

or § 51.166 of this chapter). If not, go to 

Step 2 (paragraph (a)(1)(i)(B) of this 

section). 

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(B) Step 2. Determine whether the 

source’s potential to emit the pollutant 

that you are evaluating is greater than or 

equal to the corresponding minor NSR 

threshold in Table 1 of this section. If 

it is, you are subject to the 

preconstruction requirements of this 

program for that pollutant. 

(ii) Modification at an existing source. 

If you propose to make a physical or 

operational change at an existing source, 

determine whether the change qualifies 

as a modification (as defined in 

§ 49.152) using the procedures in 

paragraph (b) of this section to 

determine the increase in allowable 

emissions. If the change is a 

modification, use the following steps to 

determine applicability for each 

regulated NSR pollutant. Flowchart 3 of 

this section addresses attainment and 

unclassifiable pollutants; Flowchart 5 of 

this section addresses nonattainment 

pollutants. Flowchart 6 addresses minor 

NSR applicability. Note that if the 

physical or operational change is not a 

modification under this program, it may 

still be subject to some requirements 

under this program; See paragraphs 

(a)(2) through (5) of this section. 

(A) Step 1. For the pollutant being 

evaluated, determine whether your 

proposed modification is subject to 

review under the applicable major NSR 

program. If not, go to Step 2 (paragraph 

(a)(1)(ii)(B) of this section). 

(B) Step 2. Does your existing source 

have a minor source PAL for the 

pollutant that you are evaluating? If so, 

you are subject to the preconstruction 

requirements of this program for that 

pollutant. If not, go to Step 3 (paragraph 

(a)(1)(ii)(C) of this section). 

(C) Step 3. Determine whether the 

increase in allowable emissions from 

the proposed modification (calculated 

using the procedures of paragraph (b) of 

this section) would be greater than or 

equal to the minor NSR threshold in 

Table 1 of this section for the pollutant 

that you are evaluating. If it is, you are 

subject to the preconstruction 

requirements of this program for that 

pollutant. If not, go to Step 4 (paragraph 

(a)(1)(ii)(D) of this section). 

(D) Step 4. If any of the emissions 

units affected by your proposed 

modification currently has an annual 

allowable emissions limit for the 

pollutant that you are evaluating, 

determine whether the modification 

would increase any such unit’s 

allowable emissions above its existing 

limit. If so, the proposed modification is 

subject to paragraph (a)(2) of this 

section. If not, your proposed 

modification is not subject to this 

program. 

(2) Increase in an emissions unit’s 

annual allowable emissions limit. If you 

propose a physical or operational 

change at your minor or major 

stationary source that would increase an 

emissions unit’s allowable emissions of 

a regulated NSR pollutant above its 

existing annual allowable emissions 

limit, you must obtain an increase in the 

limit prior to making the change. For a 

physical or operational change that is 

not otherwise subject to review under 

major NSR or under this program, such 

increase in the annual allowable 

emissions limit can be accomplished 

through an administrative permit 

revision as provided in § 49.159(f). 

(3) Synthetic minor permits. If you 

propose to establish a synthetic minor 

source or synthetic minor HAP source, 

you must apply for a permit under 

§ 49.158. Additionally, if you currently 

own or operate such a source that was 

established by maintaining your actual 

emissions at less than 50 percent of the 

relevant major source threshold, you 

must obtain a synthetic minor permit 

under this program according to the 

requirements of § 49.158. 

(4) Minor source PALs. If you propose 

to establish a minor source PAL for your 

existing minor source, you must apply 

for a permit under § 49.154. 

(5) Case-by-case maximum achievable 

control technology (MACT) 

determinations. If you propose to 

construct or reconstruct a major source 

of HAPs such that you are subject to a 

case-by-case MACT determination 

under section 112(g)(2) of the Act, you 

may elect to have this determination 

approved under the provisions of this 

program. (Other options for such 

determinations include a title V permit 

action or a Notice of MACT Approval 

under § 63.43 of this chapter.) If you 

elect this option, you still must comply 

with the requirements of § 63.43 of this 

chapter that apply to all case-by-case 

MACT determinations. 

(b) How do I determine the increase 

in allowable emissions from a physical 

or operational change at my source? 

Determine the resulting increase in 

allowable emissions in tons per year 

(tpy) of each regulated NSR pollutant 

after considering all increases and 

decreases from the change according to 

paragraph (b)(1) or (2) of this section, as 

applicable. A physical or operational 

change may involve one or more 

emissions units. 

(1) For a change at a minor source 

with a minor source PAL, the emissions 

increase would be the PAL level after 

the change minus the PAL level prior to 

the change. 

(2) For other changes, the total 

increase in allowable emissions 

resulting from your proposed change 

would be the sum of the following: 

(i) For each new emissions unit that 

is to be added, the emissions increase 

would be the potential to emit of the 

emissions unit. 

(ii) For each emissions unit with an 

allowable emissions limit that is to be 

changed or replaced, the emissions 

increase would be the allowable 

emissions of the emissions unit after the 

change or replacement minus the 

allowable emissions prior to the change 

or replacement. This may be a negative 

value for an emissions unit if the 

allowable emissions of the unit would 

be reduced as a result of the change or 

replacement. 

(iii) For each unpermitted emissions 

unit that is to be changed or replaced, 

the emissions increase is the allowable 

emissions of the emissions unit after the 

change or replacement minus the 

potential to emit prior to the change or 

replacement. This may be a negative 

value for an emissions unit if its postchange allowable emissions would be 

less than its pre-change potential to 

emit. 

(c) What emissions units and 

activities are exempt from this program? 

This program does not apply to the 

following emissions units and activities 

at a source that are listed in paragraphs 

(c)(1) through (10) of this section. 

(1) Mobile sources. 

(2) Air-conditioning units used for 

comfort that are not subject to 

applicable requirements under title VI 

of the Act and do not exhaust air 

pollutants into the ambient air from any 

manufacturing or other industrial 

process. 

(3) Ventilating units used for comfort 

that do not exhaust air pollutants into 

the ambient air from any manufacturing 

or other industrial process. 

(4) Heating units used for comfort that 

do not provide heat for any 

manufacturing or other industrial 

process. 

(5) Noncommercial food preparation. 

(6) Consumer use of office equipment 

and products. 

(7) Janitorial services and consumer 

use of janitorial products. 

(8) Internal combustion engines used 

for landscaping purposes. 

(9) Bench scale laboratory activities, 

except for laboratory fume hoods or 

vents. 

(10) Any emissions unit or activity 

that does not emit or have the potential 

to emit a regulated NSR pollutant or 

HAP, so long as that emissions unit or 

activity is not part of a process unit that 

emits or has the potential to emit a 

regulated NSR pollutant or HAP. 

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TABLE 1 TO § 49.153. MINOR NSR THRESHOLDS.1 

Regulated NSR pollutant 

Minor NSR thresholds for nonattainment areas 

(tpy) 

Minor NSR thresholds for attainment 

areas 

Extreme (tpy)

ozone areas Other areas 

Carbon monoxide .............................................................................................................. 

Oxides of nitrogen ............................................................................................................. 

Sulfur dioxide ..................................................................................................................... 

VOC ................................................................................................................................... 

PM ...................................................................................................................................... 

PM–10 ................................................................................................................................ 

PM–2.5 ............................................................................................................................... 

Lead ................................................................................................................................... 

Fluorides ............................................................................................................................ 

Sulfuric acid mist ............................................................................................................... 

Hydrogen sulfide (H2S) ...................................................................................................... 

Total reduced sulfur (including H2S) ................................................................................. 

Reduced sulfur compounds (including H2S) ..................................................................... 

Municipal waste combustor emissions .............................................................................. 

Municipal solid waste landfills emissions (measured as nonmethane organic compounds) .......................................................................................................................... 

5 

0 

5 

0 

5 

1 

0.6 

0.1 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

5 

5 

5 

2 

5 

1 

0.6 

0.1 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

10 

10 

10 

5 

10 

5 

3 

0.1 

1 

2 

2 

2 

2 

2 

10 

1 If part of a tribe’s area of Indian country is designated as attainment and another part as nonattainment, the applicable threshold for a proposed source or modification is determined based on the designation where the source would be located. If the source straddles the two areas, 

the more stringent thresholds would apply. 

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§ 49.154 Permit application requirements. 

This section applies to you if you are 

subject to this program under 

§ 49.153(a)(1) for the construction of 

new minor sources or modifications at 

existing sources. (As an alternative, you 

may apply for a general permit under 

§ 49.156 if an applicable general permit 

is available for your source type.) In 

addition, this section applies to you if 

you wish to establish a minor source 

PAL for your existing minor source (See 

§ 49.153(a)(4)). See § 49.158(a) for 

synthetic minor permit application 

requirements. 

(a) What information must my permit 

application contain? Paragraphs (a)(1) 

through (3) of this section govern the 

content of your application. 

(1) General provisions for permit 

applications. The following provisions 

apply to permit applications under this 

program: 

(i) The reviewing authority may 

develop permit application forms for 

your use. 

(ii) The permit application need not 

contain information on the exempt 

emissions units and activities listed in 

§ 49.153(c). 

(iii) The permit application for a 

modification need only include 

information on the affected emissions 

units as defined in § 49.152(d). 

(2) Required permit application 

content. Except as specified in 

paragraphs (a)(1)(ii) and (iii) of this 

section, you must include the 

information listed in paragraphs (a)(2)(i) 

through (ix) of this section in your 

application for a permit under this 

program. The reviewing authority may 

require additional information as 

needed to process the permit 

application. 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) A description of your source’s 

processes and products. 

(iii) A list of all affected emissions 

units (with the exception of the exempt 

emissions units and activities listed in 

§ 49.153(c)). 

(iv) For each new emissions unit that 

is listed, the potential to emit of each 

regulated NSR pollutant in tpy 

(including fugitive emissions, to the 

extent that they are quantifiable), with 

supporting documentation. In your 

calculation of the potential to emit for 

an emissions unit, you must account for 

any proposed emission limitations. 

(v) For each modified emissions unit 

and replacement unit that is listed, the 

allowable emissions of each regulated 

NSR pollutant in tpy both before and 

after the modification (including 

fugitive emissions, to the extent that 

they are quantifiable), with supporting 

documentation. For emissions units that 

do not have an allowable emissions 

limit prior to the modification, report 

the potential to emit. In your calculation 

of annual allowable emissions for an 

emissions unit after the modification, 

you must account for any proposed 

emission limitations. 

(vi) The following information to the 

extent it is needed to determine or 

regulate emissions: fuels, fuel use, raw 

materials, production rates, and 

operating schedules. 

(vii) Identification and description of 

any existing air pollution control 

equipment and compliance monitoring 

devices or activities. 

(viii) Any existing limitations on 

source operation affecting emissions or 

any work practice standards, where 

applicable, for all NSR regulated 

pollutants at the source. 

(ix) For each emission point 

associated with an affected emissions 

unit, provide stack or vent dimensions 

and flow information. 

(3) Optional permit application 

content. At your option, you may 

propose the following: 

(i) Emission limitations for each 

affected emissions unit, which may 

include pollution prevention 

techniques, air pollution control 

devices, design standards, equipment 

standards, work practices, operational 

standards, or a combination thereof. 

You may include an explanation of why 

you believe the proposed emission 

limitations to be appropriate. 

(ii) A minor source PAL, which is a 

source-wide annual allowable emissions 

limit, for one or more of the regulated 

NSR pollutants emitted by your source. 

(b) How is my permit application 

determined to be complete? Paragraphs 

(b)(1) through (3) of this section govern 

the completeness review of your permit 

application. 

(1) An application for a permit under 

this program will be reviewed by the 

reviewing authority within 45 days of 

its receipt to determine whether the 

application contains all the information 

necessary for processing the application. 

You should contact the reviewing 

authority to find out the date of receipt 

of the application. 

(2) If the reviewing authority 

determines that the application is not 

complete, it will request additional 

information from you as necessary to 

process the application. If the reviewing 

authority determines that the 

application is complete, it may notify 

you in writing. If you do not receive a 

request for additional information or a 

notice of complete application from the 

reviewing authority within 50 days of 

its receipt of your application, your 

application will be deemed complete. 

(3) If, while processing an application 

that has been determined to be 

complete, the reviewing authority 

determines that additional information 

is necessary to evaluate or take final 

action on the application, it may request 

additional information from you and 

require your responses within a 

reasonable time period. 

(c) How will the reviewing authority 

determine the emission limitations that 

will be required in my permit? After 

determining that your application is 

complete, the reviewing authority will 

conduct a case-by-case control 

technology review to determine the 

appropriate level of control, if any, 

necessary to assure that NAAQS are 

achieved, as well as the corresponding 

emission limitations for the affected 

emissions units at your source. 

(1) In carrying out this case-by-case 

review, the reviewing authority will 

consider the following factors: 

(i) Local air quality conditions. 

(ii) Typical control technology or 

other emissions reduction measures 

used by similar sources in surrounding 

areas. 

(iii) Anticipated economic growth in 

the area. 

(iv) Cost-effective emission reduction 

alternatives. 

(2) The reviewing authority must 

require an emission limit (i.e., a limit on 

the quantity, rate, or concentration of 

emissions) for each affected emissions 

unit at your source for which such a 

limit is technically and economically 

feasible. 

(3) The emission limitations required 

by the reviewing authority may consist 

of emission limits, pollution prevention 

techniques, design standards, 

equipment standards, work practice 

standards, operational standards, or any 

combination thereof. 

(4) The emission limitations required 

by the reviewing authority must assure 

that each affected emissions unit will 

comply with all requirements of parts 

60, 61, and 63 of this chapter that apply 

to the unit. 

(5) The emission limitations required 

by the reviewing authority must not be 

affected in any manner by so much of 

a stack’s height as exceeds good 

engineering practice or by any other 

dispersion technique, except as 

provided in § 51.118(b) of this chapter. 

If the reviewing authority proposes to 

issue a permit to a source based on a 

good engineering practice stack height 

that exceeds the height allowed by 

§ 51.100(ii)(1) or (2) of this chapter, it 

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must notify the public of the availability 

of the demonstration study and must 

provide opportunity for a public hearing 

according to the requirements of 

§ 49.157 for the draft permit. 

(d) When may the reviewing authority 

require an air quality impacts analysis 

(AQIA)? Paragraphs (d)(1) through (3) of 

this section govern AQIA requirements 

under this program. 

(1) In those rare instances where the 

reviewing authority has reason to be 

concerned that the construction of your 

minor source or modification would 

cause or contribute to a NAAQS or PSD 

increment violation, it may require you 

to conduct and submit an AQIA. 

(2) If required, you must conduct the 

AQIA using the dispersion models and 

procedures of part 51, Appendix W of 

this chapter. 

(3) If the AQIA reveals that 

construction of your source or 

modification would cause or contribute 

to a NAAQS or PSD increment 

violation, the reviewing authority must 

require you to reduce such impacts 

before it can issue you a permit. 

§ 49.155 Permit requirements. 

This section applies to your permit if 

you are subject to this program under 

§ 49.153(a)(1) for construction of new 

minor sources or modifications at 

existing sources, unless you applied for 

a general permit under § 49.156 (where 

an applicable general permit is available 

for your source type). In addition, this 

section applies to your permit if you 

wish to establish a minor source PAL for 

your existing minor source (See 

§ 49.153(a)(4)) 

(a) What information must my permit 

include? Your permit must include the 

requirements in paragraphs (a)(1) 

through (7) of this section. 

(1) General requirements. The 

following elements must be included in 

your permit: 

(i) The effective date of the permit and 

the date by which you must commence 

construction in order for your permit to 

remain valid (i.e., 18 months after the 

permit effective date). 

(ii) The emissions units subject to the 

permit and their associated emission 

limitations. 

(iii) Monitoring, recordkeeping, 

reporting, and testing requirements to 

assure compliance with the emission 

limitations. 

(2) Emission limitations. The permit 

must include the emission limitations 

determined by the reviewing authority 

under § 49.154(c) for each affected 

emissions unit. In addition, the permit 

must address limits on annual allowable 

emissions as set out in paragraphs 

(a)(2)(i) and (ii) of this section. 

(i) New minor sources. For new minor 

sources, limits on annual allowable 

emissions in tpy must be included in 

the permit as follows: 

(A) The reviewing authority may 

include minor source PALs for one or 

more regulated NSR pollutants, if you 

requested such PALs. 

(B) Otherwise, the reviewing authority 

must include an annual allowable 

emissions limit for each affected 

emissions unit, for each regulated NSR 

pollutant emitted by the unit that is not 

subject to a minor source PAL. 

(ii) Existing minor sources. For 

existing minor sources, limits on annual 

allowable emissions in tpy must be 

included in the permit as follows: 

(A) The reviewing authority may 

include minor source PALs for one or 

more regulated NSR pollutants, if you 

requested such PALs. 

(B) For a modification, the reviewing 

authority must include an annual 

allowable emissions limit for each 

affected emissions unit, for each 

regulated NSR pollutant emitted by the 

unit that is not subject to a minor source 

PAL. 

(C) If you apply for a minor source 

PAL for one or more regulated NSR 

pollutants for your existing source at a 

time when you are not also proposing a 

modification, no annual allowable 

emissions limits are required for the 

regulated NSR pollutants that are not 

subject to a PAL. 

(3) Monitoring requirements. The 

permit must include monitoring 

requirements sufficient to assure 

compliance with the emission 

limitations that apply to the affected 

emissions units at your source. The 

reviewing authority may require, as 

appropriate, any of the requirements in 

paragraphs (a)(3)(i) through (iii) of this 

section. 

(i) Any emissions monitoring, 

including analysis procedures, test 

methods, periodic testing, instrumental 

monitoring, and non-instrumental 

monitoring. Such monitoring 

requirements shall assure use of test 

methods, units, averaging periods, and 

other statistical conventions consistent 

with the required emission limitations. 

(ii) As necessary, requirements 

concerning the use, maintenance, and 

installation of monitoring equipment or 

methods. 

(iii) If the permit includes a minor 

source PAL for a pollutant at your minor 

source, monitoring to determine the 

actual emissions from your source for 

each month and the total actual 

emissions for each 12-month period, 

rolled monthly, for that pollutant. 

(4) Recordkeeping requirements. The 

permit must include recordkeeping 

requirements sufficient to assure 

compliance with the emission 

limitations and monitoring 

requirements, and must require the 

elements in paragraphs (a)(4)(i) and (ii) 

of this section. 

(i) Records of required monitoring 

information that include the 

information in paragraphs (a)(4)(i)(A) 

through (F) of this section, as 

appropriate. 

(A) The location, date, and time of 

sampling or measurements. 

(B) The date(s) analyses were 

performed. 

(C) The company or entity that 

performed the analyses. 

(D) The analytical techniques or 

methods used. 

(E) The results of such analyses. 

(F) The operating conditions existing 

at the time of sampling or measurement. 

(ii) Retention for 5 years of records of 

all required monitoring data and 

support information for the monitoring 

sample, measurement, report, or 

application. Support information may 

include all calibration and maintenance 

records, all original strip-chart 

recordings or digital records for 

continuous monitoring instrumentation, 

copies of all reports required by the 

permit, and for sources with a minor 

source PAL for a pollutant, the actual 

emissions determined for each month 

and the total actual emissions for each 

12-month period, rolled monthly, for 

that pollutant. 

(5) Reporting requirements The permit 

must include the reporting requirements 

in paragraphs (a)(5)(i) and (ii) of this 

section. 

(i) Annual submittal of reports of 

monitoring required under paragraph 

(a)(3) of this section, including the type 

and frequency of monitoring, and a 

summary of results obtained by 

monitoring. 

(ii) Prompt reporting of deviations 

from permit requirements, including 

those attributable to upset conditions as 

defined in the permit, the probable 

cause of such deviations, and any 

corrective actions or preventive 

measures taken. Within the permit, the 

reviewing authority must define 

‘‘prompt’’ in relation to the degree and 

type of deviation likely to occur and the 

applicable emission limitations. 

(6) Severability clause. The permit 

must include a severability clause to 

ensure the continued validity of the 

other portions of the permit in the event 

of a challenge to a portion of the permit. 

(7) Additional provisions. The permit 

must also contain provisions stating the 

requirements in paragraphs (a)(7)(i) 

through (vii) of this section. 

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(i) You, as the permittee, must comply 

with all conditions of your permit, 

including emission limitations that 

apply to the affected emissions units at 

your source. Noncompliance with any 

permit term or condition is a violation 

of the permit and may constitute a 

violation of the Act and is grounds for 

enforcement action and for a permit 

termination or revocation. 

(ii) Your permitted source must not 

cause or contribute to a NAAQS 

violation or, in an attainment area, must 

not cause or contribute to a PSD 

increment violation. 

(iii) It is not a defense for you, as the 

permittee, in an enforcement action that 

it would have been necessary to halt or 

reduce the permitted activity in order to 

maintain compliance with the 

conditions of this permit. 

(iv) The permit may be revised, 

reopened, revoked and reissued, or 

terminated for cause. The filing of a 

request by you, as the permittee, for a 

permit revision, revocation and reissuance, or termination, or of a 

notification of planned changes or 

anticipated noncompliance does not 

stay any permit condition. 

(v) The permit does not convey any 

property rights of any sort or any 

exclusive privilege. 

(vi) 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. 

(vii) Inspection and entry provisions 

requiring that upon presentation of 

proper credentials, you, as the 

permittee, must allow a representative 

of the reviewing authority to: 

(A) Enter upon your premises where 

a source is located or emissions-related 

activity is conducted, or where records 

are required to be kept under the 

conditions of the permit; 

(B) Have access to and copy, at 

reasonable times, any records that are 

required to be kept under the conditions 

of the permit; 

(C) Inspect, during normal business 

hours or while the source is in 

operation, any facilities, equipment 

(including monitoring and air pollution 

control equipment), practices, or 

operations regulated or required under 

the permit; 

(D) Sample or monitor, at reasonable 

times, substances or parameters for the 

purpose of assuring compliance with 

the permit or other applicable 

requirements; and 

(E) Record any inspection by use of 

written, electronic, magnetic and 

photographic media. 

(b) Can my permit become invalid? 

Your permit becomes invalid if you do 

not commence construction within 18 

months after the effective date of your 

permit, if you discontinue construction 

for a period of 18 months or more, or 

if you do not complete construction 

within a reasonable time. The reviewing 

authority may extend the 18-month 

period upon a satisfactory showing that 

an extension is justified. This provision 

does not apply to the time period 

between construction of the approved 

phases of a phased construction project; 

you must commence construction of 

each such phase within 18 months of 

the projected and approved 

commencement date. 

§ 49.156 General permits. 

This section applies to general 

permits for the purposes of complying 

with the preconstruction permitting 

requirements for sources of regulated 

NSR pollutants under this program. 

(a) What is a general permit? A 

general permit is a preconstruction 

permit issued by a reviewing authority 

that may be applied to a number of 

similar emissions units or sources. The 

purpose of a general permit is to 

simplify the permit application and 

issuance process for similar facilities so 

that a reviewing authority’s limited 

resources need not be expended for 

case-by-case permit development for 

such facilities. A general permit may be 

written to address a single emissions 

unit, a group of the same type of 

emissions units, or an entire minor 

source. 

(b) How will the reviewing authority 

issue general permits? The reviewing 

authority will issue general permits as 

follows: 

(1) A general permit may be issued for 

a category of emissions units or sources 

that are similar in nature, have 

substantially similar emissions, and 

would be subject to the same or 

substantially similar requirements 

governing operations, emissions, 

monitoring, reporting, and 

recordkeeping. ‘‘Similar in nature’’ 

refers to size, processes, and operating 

conditions. 

(2) A general permit must be issued 

according to the requirements for public 

participation in § 49.157 and the 

requirements for final permit issuance 

and administrative and judicial review 

in § 49.159. 

(3) Issuance of a general permit is 

considered final agency action with 

respect to all aspects of the general 

permit except its applicability to an 

individual source. The sole issue that 

may be appealed after an individual 

source is approved to construct under a 

general permit (See paragraph (e) of this 

section) is the applicability of the 

general permit to that particular source. 

(c) For what categories will general 

permits be issued? (1) The reviewing 

authority will determine which 

categories of individual emissions units, 

groups of similar emissions units, or 

sources are appropriate for general 

permits in its area. 

(2) General permits will be issued at 

the discretion of the reviewing 

authority. However, the following are 

some common categories of emissions 

units or sources for which general 

permits may be developed: 

(i) Autobody repair shops. 

(ii) Concrete batching plants. 

(iii) Dry cleaners. 

(iv) Gas stations. 

(v) Gas distribution facilities. 

(vi) General purpose internal 

combustion engines. 

(vii) Hot mix asphalt facilities. 

(viii) Heating units. 

(ix) Nonmetallic mineral processing 

plants. 

(x) Rock crushing facilities. 

(xi) Surface coating operations. 

(xii) Solvent cleaning operations. 

(xiii) Graphic arts operations. 

(xiv) Grain elevators. 

(xv) Tank batteries in oil and gas 

production operations that are not part 

of a larger source. 

(xvi) Small to medium compressor 

stations. 

(xvii) Small to medium transmission 

stations. 

(xviii) Dehydrators that are not a part 

of a larger source. 

(xix) Compressor engines. 

(d) What should the general permit 

contain? The general permit must 

contain the permit elements listed in 

§ 49.155(a). In addition, the general 

permit must contain the information 

listed in paragraphs (d)(1) and (2) of this 

section. The reviewing authority may 

specify additional general permit terms 

and conditions. 

(1) Identification of the specific 

category of emissions units or sources to 

which the general permit applies, 

including any criteria that your 

emissions units or source must meet to 

be eligible for coverage under the 

general permit. 

(2) Information required to apply for 

coverage under a general permit 

including, but not limited to, the 

following: 

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(i) The name and mailing address of 

the reviewing authority to whom you 

must submit your application. 

(ii) The procedure to obtain any 

standard application forms that the 

reviewing authority may have 

developed. 

(iii) The information that you must 

provide to the reviewing authority in 

your application to demonstrate that 

you are eligible for coverage under the 

general permit. 

(iv) Other application requirements 

deemed necessary by the reviewing 

authority. 

(e) How is my source issued a general 

permit? (1) If your source qualifies for a 

general permit, you may apply to the 

reviewing authority for coverage under 

the general permit. 

(2) The reviewing authority must act 

on your application for coverage under 

the general permit as expeditiously as 

possible, but it must notify you of the 

final decision within 90 days. 

(3) Without repeating the public 

participation procedures required in 

§ 49.157, the reviewing authority may 

grant or deny your request for approval 

to construct under a general permit. The 

reviewing authority must send you a 

letter approving or disapproving the 

request to construct under a general 

permit. Such a letter is a final permit 

action for purposes of judicial review 

(See § 49.159) only for the issue of 

whether your source qualifies for the 

general permit. You must post a 

prominent notice at your source of the 

letter of approval to construct under the 

general permit. 

(4) If the reviewing authority has sent 

a letter approving the general permit for 

your source, you must comply with all 

conditions and terms of the general 

permit. You will be subject to 

enforcement action for failure to obtain 

a preconstruction permit if you 

construct the emissions unit(s) or source 

with general permit approval and your 

source is later determined not to qualify 

for the conditions and terms of the 

general permit. 

(5) Any source covered under a letter 

approving the general permit may 

request to be excluded from the general 

permit by applying for a permit under 

§ 49.154. 

§ 49.157 Public participation requirements. 

This section applies to the issuance of 

preconstruction permits, synthetic 

minor permits, and the initial issuance 

of general permits. It does not apply to 

decisions regarding whether a specific 

source is eligible for coverage under a 

general permit. 

(a) What permit information will be 

publicly available? With the exception 

of any confidential information as 

defined in part 2, subpart B of this 

chapter, the reviewing authority must 

make available for public inspection the 

documents listed in paragraphs (a)(1) 

through (5) of this section. The 

reviewing authority must make such 

information available for public 

inspection at the appropriate EPA 

Regional Office and in at least one 

location in the area affected by the 

source, such as the tribal environmental 

office or a local library. 

(1) All information submitted as part 

of an application for a permit. 

(2) Any additional information 

requested by the reviewing authority. 

(3) The reviewing authority’s analysis 

of the application and any additional 

information submitted by the source, 

including (for preconstruction and 

general permits) the control technology 

review. 

(4) For preconstruction and general 

permits, the reviewing authority’s 

analysis of the effect of the construction 

of the minor source or modification on 

ambient air quality. 

(5) A copy of the draft permit or the 

decision to deny the permit with the 

justification for denial. 

(b) How will the public be notified 

and participate? (1) Before issuing a 

permit under this program, the 

reviewing authority must prepare a draft 

permit and must provide adequate 

public notice to ensure that the affected 

community and the general public have 

reasonable access to the application and 

draft permit information, as set out in 

paragraphs (b)(1)(i) and (ii) of this 

section The public notice must provide 

an opportunity for public comment and 

notice of a public hearing, if any, on the 

draft permit. 

(i) The reviewing authority must mail 

a copy of the notice to you, the 

appropriate Indian governing body, and 

the tribal, State, and local air pollution 

authorities having jurisdiction in areas 

outside of the area of Indian country 

potentially impacted by the air 

pollution source. 

(ii) Depending on such factors as the 

nature and size of your source, local air 

quality considerations, and the 

characteristics of the population in the 

affected area, the reviewing authority 

must use appropriate means of 

notification, such as those listed in 

paragraphs (b)(1)(ii)(A) through (E) of 

this section. 

(A) The reviewing authority may mail 

or e-mail a copy of the notice to persons 

on a mailing list developed by the 

reviewing authority consisting of those 

persons who have requested to be 

placed on such a mailing list. 

(B) The reviewing authority may post 

the notice on its Web site. 

(C) The reviewing authority may 

publish the notice in a newspaper of 

general circulation in the area affected 

by the source. Where possible, the 

notice may also be published in a tribal 

newspaper or newsletter. 

(D) The reviewing authority may 

provide copies of the notice for posting 

at one or more locations in the area 

affected by the source, such as Post 

Offices, trading posts, libraries, tribal 

environmental offices, community 

centers, or other gathering places in the 

community. 

(E) The reviewing authority may 

employ other means of notification as 

appropriate. 

(2) The notice required pursuant to 

paragraph (b)(1) of this section must 

include the following information at a 

minimum: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) The name and address of the 

reviewing authority processing the 

permit action; 

(iii) For preconstruction permits 

(including general permits), the 

regulated NSR pollutants to be emitted, 

the affected emissions units, and the 

emission limitations for each affected 

emissions unit; 

(iv) For preconstruction permits, the 

emissions change involved in the permit 

action; 

(v) For synthetic minor permits, a 

description of the proposed limitation 

and its effect on the potential to emit of 

the source; 

(vi) Instructions for requesting a 

public hearing; 

(vii) The name, address, and 

telephone number of a contact person in 

the reviewing authority’s office from 

whom additional information may be 

obtained; 

(viii) Locations and times of 

availability of the information (listed in 

paragraph (a) of this section) for public 

inspection; and 

(ix) A statement that any person may 

submit written comments, a written 

request for a public hearing, or both, on 

the draft permit action. The reviewing 

authority must provide a period of at 

least 30 days from the date of the public 

notice for comments, and for requests 

for a public hearing. 

(c) How will the public comment, and 

will there be a public hearing? (1) Any 

person may submit written comments 

on the draft permit and may request a 

public hearing. These comments must 

raise any reasonably ascertainable issue 

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with supporting arguments by the close 

of the public comment period 

(including any public hearing). The 

reviewing authority must consider all 

comments in making the final decision. 

The reviewing authority must keep a 

record of the commenters and of the 

issues raised during the public 

participation process, and such records 

must be available to the public. 

(2) The reviewing authority must 

extend the public comment period 

under paragraph (b) of this section to 

the close of any public hearing under 

this section. The hearing officer may 

also extend the comment period by so 

stating at the hearing. 

(3) A request for a public hearing 

must be in writing and must state the 

nature of the issues proposed to be 

raised at the hearing. 

(4) The reviewing authority must hold 

a hearing whenever there is, on the basis 

of requests, a significant degree of 

public interest in a draft permit. The 

reviewing authority may also hold a 

public hearing at its discretion, 

whenever, for instance, such a hearing 

might clarify one or more issues 

involved in the permit decision. The 

reviewing authority must provide notice 

of any public hearing at least 30 days 

prior to the date of the hearing. Public 

notice of the hearing may be concurrent 

with that of the draft permit, and the 

two notices may be combined. 

Reasonable limits may be set upon the 

time allowed for oral statements at the 

hearing. 

(5) The reviewing authority must 

make a tape recording or written 

transcript of any hearing available to the 

public. 

§ 49.158 Synthetic minor permits. 

You may obtain a synthetic minor 

permit under this program to establish 

a synthetic minor source and/or a 

synthetic minor HAP source. Note that 

if you propose to construct or modify a 

synthetic minor source, you are also 

subject to the preconstruction 

permitting requirements in §§ 49.154 

and 49.155. 

(a) What information must my 

synthetic minor permit application 

contain? (1) Your application must 

include the following information: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) For each regulated NSR pollutant 

and/or HAP and for all emissions units 

to be covered by an emissions 

limitation, the following information: 

(A) The proposed emission limitation 

and a description of its effect on actual 

emissions or the potential to emit. 

Proposed emission limitations must 

have a reasonably short averaging 

period, taking into consideration the 

operation of the source and the methods 

to be used for demonstrating 

compliance. 

(B) Proposed testing, monitoring, 

recordkeeping, and reporting 

requirements to be used to demonstrate 

and assure compliance with the 

proposed limitation. 

(C) A description of the production 

processes. 

(D) Identification of the emissions 

units. 

(E) Type and quantity of fuels and/or 

raw materials used. 

(F) Description and estimated 

efficiency of air pollution control 

equipment under present or anticipated 

operating conditions. 

(G) Estimates of the current actual 

emissions and current potential to emit, 

including all calculations for the 

estimates. 

(H) Estimates of the allowable 

emissions and/or potential to emit that 

would result from compliance with the 

proposed limitation, including all 

calculations for the estimates. 

(iii) Any other information 

specifically requested by the reviewing 

authority. 

(2) Estimates of actual emissions must 

be based upon actual test data, or in the 

absence of such data, upon procedures 

acceptable to the reviewing authority. 

Any emission estimates submitted to the 

reviewing authority must be verifiable 

using currently accepted engineering 

criteria. The following procedures are 

generally acceptable for estimating 

emissions from air pollution sources: 

(i) Source-specific emission tests; 

(ii) Mass balance calculations; 

(iii) Published, verifiable emission 

factors that are applicable to the source; 

(iv) Other engineering calculations; or 

(v) Other procedures to estimate 

emissions specifically approved by the 

reviewing authority. 

(b) What are the procedures for 

obtaining a synthetic minor permit? (1) 

If you wish to obtain a synthetic minor 

permit under this program, you must 

submit a permit application to the 

reviewing authority. The application 

must contain the information specified 

in paragraph (a) of this section. If the 

reviewing authority has developed 

application forms for such permits, you 

must use those forms. 

(2) Within 60 days after receipt of an 

application, the reviewing authority will 

determine if it contains the information 

specified in paragraph (a) of this section 

and, if so, will determine it complete for 

the purpose of preparing a draft 

synthetic minor permit. You should 

contact the reviewing authority to find 

out the date of receipt of the 

application. 

(3) If the reviewing authority 

determines that the application is not 

complete, it will request additional 

information from you as necessary to 

process the application. If the reviewing 

authority determines that the 

application is complete, it may notify 

you in writing. If you do not receive a 

request for additional information or a 

notice of complete application from the 

reviewing authority within 65 days of 

its receipt of your application, your 

application will be deemed complete. 

(4) The reviewing authority will 

prepare a draft synthetic minor permit 

that describes the proposed limitation 

and its effect on the potential to emit of 

the source. 

(5) The reviewing authority must 

provide an opportunity for public 

participation and public comment on 

the draft synthetic minor permit as set 

out in § 49.157. 

(6) After the close of the public 

comment period, the reviewing 

authority will review all comments 

received and prepare a final synthetic 

minor permit. 

(7) The final synthetic minor permit 

will be issued and will be subject to 

administrative and judicial review as set 

out in § 49.159. 

(c) What are my responsibilities under 

this program for my existing synthetic 

minor source or synthetic minor HAP 

source? If you have an existing synthetic 

minor source or synthetic minor HAP 

source, you are subject to either 

paragraph (c)(1) or paragraph (c)(2) of 

this section, as follows: 

(1) If your synthetic minor status is 

established through a permit or other 

document that is enforceable as a 

practical matter, you do not need to do 

anything. You may use the mechanism 

established in this program according to 

the requirements of paragraphs (a) and 

(b) of this section to replace your 

existing synthetic minor permit when it 

expires. 

(2) If you have achieved your existing 

synthetic minor status by maintaining 

your actual emissions at less than 50 

percent of the relevant major source 

threshold, you must obtain a synthetic 

minor permit under this program 

according to the requirements of 

paragraphs (a) and (b) of this section. 

The following provisions apply: 

(i) You must apply for a synthetic 

minor permit by [1 year and 60 days 

after publication of final rule], and you 

must respond in a timely manner to any 

requests from the reviewing authority 

for additional information. 

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(ii) Provided that you submit your 

application and any requested 

additional information as indicated in 

paragraph (c)(2)(i) of this section, your 

source will continue to be considered a 

synthetic minor source or synthetic 

minor HAP source (as applicable) until 

your synthetic minor permit under this 

program has been issued. 

(iii) Should you fail to submit your 

application and any requested 

additional information as indicated in 

paragraph (c)(2)(i) of this section, your 

source will no longer be considered a 

synthetic minor source or synthetic 

minor HAP source (as applicable), and 

will immediately become subject to all 

requirements for major sources. 

§ 49.159 Final permit issuance and 

administrative and judicial review. 

(a) How will final action occur, and 

when will my permit become effective? 

After decision on a permit, the 

reviewing authority must notify you of 

the decision, in writing, and if the 

permit is denied, of the reasons for such 

denial. If the reviewing authority issues 

a final permit to you, it must make a 

copy of the permit available at all of the 

locations where the draft permit was 

made available. In addition, the 

reviewing authority must provide 

adequate public notice of the final 

permit decision to ensure that the 

affected community, general public, and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

A final permit becomes effective 30 days 

after permit issuance, unless: 

(1) A later effective date is specified 

in the permit; or 

(2) Review of the final permit is 

requested under paragraph (d) of this 

section (in which case the specific terms 

and conditions of the permit that may 

be the subject of the request for review 

must be stayed); or 

(3) The reviewing authority may make 

the permit effective immediately upon 

issuance if no comments requested a 

change in the draft permit or a denial of 

the permit. 

(b) For how long will the reviewing 

authority retain my permit-related 

records? The records, including any 

required applications for each draft and 

final permit or application for permit 

revision, must be kept by the reviewing 

authority for not less than 5 years. 

(c) What is the administrative record 

for each final permit? (1) The reviewing 

authority must base final permit 

decisions on an administrative record 

consisting of: 

(i) The application and any 

supporting data furnished by the 

applicant; 

(ii) The draft permit or notice of intent 

to deny the application; 

(iii) Other documents in the 

supporting files for the draft permit that 

were relied upon in the decisionmaking; 

(iv) All comments received during the 

public comment period, including any 

extension or reopening; 

(v) The tape or transcript of any 

hearing(s) held; 

(vi) Any written material submitted at 

such a hearing; 

(vii) Any new materials placed in the 

record as a result of the reviewing 

authority’s evaluation of public 

comments; 

(viii) The final permit; and 

(ix) Other documents in the 

supporting files for the final permit that 

were relied upon in the decisionmaking. 

(2) The additional documents 

required under paragraph (c)(1) of this 

section should be added to the record as 

soon as possible after their receipt or 

publication by the reviewing authority. 

The record must be complete on the 

date the final permit is issued. 

(3) Material readily available or 

published materials that are generally 

available and that are included in the 

administrative record under the 

standards of paragraph (c)(1) of this 

section need not be physically included 

in the same file as the rest of the record 

as long as it is specifically referred to in 

the that file. 

(d) Can permit decisions be appealed? 

Permit decisions may be appealed 

according to the following provisions: 

(1) The Administrator delegates 

authority to the Environmental Appeals 

Board (the Board) to issue final 

decisions in permit appeals filed under 

this program, including informal 

appeals of denials of requests for 

modification, revocation and reissuance, or termination of permits 

under paragraph (e)(2) of this section. 

An appeal directed to the 

Administrator, rather than to the Board, 

will be forwarded to the Board for 

consideration. This delegation does not 

preclude the Board from referring an 

appeal or a motion under this program 

to the Administrator when the Board, in 

its discretion, deems it appropriate to do 

so. When an appeal or motion is 

referred to the Administrator by the 

Board, all parties shall be so notified 

and the provisions of this program 

referring to the Board shall be 

interpreted as referring to the 

Administrator. 

(2) Within 30 days after a final permit 

decision has been issued, any person 

who filed comments on the draft permit 

or participated in the public hearing 

may petition the Board to review any 

condition of the permit decision. Any 

person who failed to file comments and 

failed to participate in the public 

hearing on the draft permit may petition 

for administrative review only to the 

extent that the changes from the draft to 

the final permit or other new grounds 

were not reasonably foreseeable during 

the public comment period on the draft 

permit. The 30-day period within which 

a person may request review under this 

section begins when the reviewing 

authority has fulfilled the notice 

requirements for the final permit 

decision, unless a later date is specified 

in that notice. 

(3) The petition must include a 

statement of the reasons supporting the 

review, including a demonstration that 

any issues identified were raised during 

the public comment period (including 

any public hearing) to the extent 

required by these regulations, unless the 

petitioner demonstrates that it was 

impracticable to raise such objections 

within such period or unless the 

grounds for such objection arose after 

such period, and, when appropriate, a 

showing that the condition in question 

is based on: 

(i) A finding of fact or conclusion of 

law that is clearly erroneous; or 

(ii) An exercise of discretion or an 

important policy consideration that the 

Board should, in its discretion, review. 

(4) The Board may also decide on its 

own initiative to review any condition 

of any permit issued under this 

program. 

(5) Within a reasonable time following 

the filing of the petition for review, the 

Board must issue an order either 

granting or denying the petition for 

review. To the extent review is denied, 

the conditions of the final permit 

decision become final agency action. If 

the Board grants review in response to 

requests under paragraph (d)(2) or (4) of 

this section, public notice must be given 

as provided in §49.157(b). Public notice 

must set forth a briefing schedule for the 

appeal and must state that any 

interested person may file an amicus 

brief. If the Board denies review, the 

permit applicant and the person(s) 

requesting review must be notified 

through means that are adequate to 

assure reasonable access to the decision, 

which may include mailing a notice to 

each. 

(6) A petition to the Board under 

paragraph (d)(2) of this section is, under 

42 U.S.C. 307(b), a prerequisite to 

seeking judicial review of the final 

agency action. 

(7) For purposes of judicial review, 

final agency action occurs when a final 

permit is issued or denied by the 

reviewing authority and agency review 

procedures are exhausted. A final 

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permit decision must be issued by the 

reviewing authority: 

(i) When the Board issues notice to 

the parties that review has been denied; 

(ii) When the Board issues a decision 

on the merits of the appeal and the 

decision does not include a remand of 

the proceedings; or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Board’s remand 

order specifically provides that appeal 

of the remand decision will be required 

to exhaust administrative remedies. 

(8) Motions to reconsider a final order 

must be filed within 10 days after 

service of the final order. Every such 

motion must set forth the matters 

claimed to have been erroneously 

decided and the nature of the alleged 

errors. Motions for reconsideration 

under this provision must be directed 

to, and decided by, the Board. Motions 

for reconsideration directed to the 

Administrator, rather than to the Board, 

will be forwarded to the Board for 

consideration, except in cases in which 

the Board has deferred to the 

Administrator and the Administrator 

has issued the final order. A motion for 

reconsideration must not stay the 

effective date of the final order unless 

specifically so ordered by the Board. 

(9) For purposes of this section, time 

periods are computed as follows: 

(i) Any time period scheduled to 

begin on the occurrence of an act or 

event must begin on the day after the act 

or event. 

(ii) Any time period scheduled to 

begin before the occurrence of an act or 

event must be computed so that the 

period ends on the day before the act or 

event, except as otherwise provided. 

(iii) If the final day of any time period 

falls on a weekend or legal holiday, the 

time period must be extended to the 

next working day. 

(iv) Whenever a party or interested 

person has the right or is required to act 

within a prescribed period after the 

service of notice or other paper upon 

him or her by mail, 3 days must be 

added to the prescribed time. 

(e) Can my permit be reopened? Your 

permit can be reopened according to the 

following procedures: 

(1) Any person (including the 

permittee) may petition the reviewing 

authority to reopen a permit for cause, 

and the reviewing authority may 

commence a permit reopening on its 

own initiative. The reviewing authority 

may not reopen a permit for cause 

unless it contains a material mistake or 

fails to assure compliance with 

applicable requirements. All requests 

must be in writing and must contain 

reasons supporting the request. 

(2) If the reviewing authority decides 

the request is not justified, the 

reviewing authority must send the 

requestor a brief written response giving 

a reason for the decision. Denials of 

requests for revision, revocation and reissuance, or termination are not subject 

to public notice, comment, or hearings. 

Denials by the reviewing authority may 

be informally appealed to the Board by 

a letter briefly setting forth the relevant 

facts. The Board may direct the 

reviewing authority to begin revision, 

revocation and re-issuance, or 

termination proceedings under 

paragraph (e)(3) of this section. The 

appeal must be considered denied if the 

Board takes no action within 60 days 

after receiving it. This informal appeal 

is, under 42 U.S.C. 307, a prerequisite 

to seeking judicial review of EPA action 

in denying a request for revision, 

revocation and re-issuance, or 

termination. 

(3) If the reviewing authority decides 

the request is justified and that cause 

exists to revise, revoke and reissue or 

terminate a permit, it shall initiate 

proceedings to reopen the permit. 

(f) What is an administrative permit 

revision? The following provisions 

govern administrative permit revisions. 

(1) An administrative permit revision 

is a permit revision that makes any of 

the following changes: 

(i) Corrects typographical errors. 

(ii) Identifies a change in the name, 

address, or phone number of any person 

identified in the permit, or provides a 

similar minor administrative change at 

the source. 

(iii) Requires more frequent 

monitoring or reporting by the 

permittee. 

(iv) Allows for a change in ownership 

or operational control of a source where 

the reviewing authority determines that 

no other change in the permit is 

necessary, provided that a written 

agreement containing a specific date for 

transfer of permit responsibility, 

coverage, and liability between the 

current and new permittee has been 

submitted to the reviewing authority. 

(v) Establishes an increase in an 

emissions unit’s annual allowable 

emissions limit for a regulated NSR 

pollutant, when the action that 

necessitates such increase is not 

otherwise subject to review under major 

NSR or under this program. 

(vi) Incorporates any other type of 

change that the reviewing authority has 

determined to be similar to those in 

paragraphs (f)(1)(i) through (v) of this 

section. 

(2) An administrative permit revision 

is not subject to the permit application, 

issuance, public participation, or 

administrative and judicial review 

requirements of this program. 

§ 49.160 Administration and delegation of 

the minor NSR program in Indian country. 

(a) Who administers a minor NSR 

program in Indian country? (1) If the 

Administrator has approved a TIP that 

includes a minor NSR program for 

sources in Indian country that meets the 

requirements of section 110(a)(2)(C) of 

the Act and §§51.160 through 51.164 of 

this chapter, the tribe is the reviewing 

authority and will administer the 

approved minor NSR program under 

tribal law. 

(2) If the Administrator has not 

approved an implementation plan, the 

Administrator may delegate the 

authority to assist EPA with 

administration of portions of this 

Federal minor NSR program 

implemented under Federal authority to 

a tribal agency upon request, in 

accordance with the provisions of 

paragraph (b) of this section. If the tribal 

agency has been granted such 

delegation, it will have the authority to 

assist EPA according to paragraph (b) of 

this section. 

(3) If the Administrator has not 

approved an implementation plan or 

granted delegation to a tribal agency, the 

Administrator is the reviewing authority 

and will directly administer all aspects 

of this Federal minor NSR program in 

Indian country under Federal authority. 

(b) Delegation of administration of the 

Federal minor NSR program to tribes. 

This paragraph (b) establishes the 

process by which the Administrator 

may delegate authority to a tribal 

agency, with or without signature 

authority, to assist EPA with 

administration of portions of this 

Federal minor NSR program, in 

accordance with the provisions in 

paragraphs (b)(1) through (8) of this 

section. Any Federal requirements 

under this program that are 

administered by the delegate tribal 

agency will be subject to enforcement by 

EPA under Federal law. This section 

provides for administrative delegation 

of the Federal minor NSR program and 

does not affect the eligibility criteria 

under § 49.6 for treatment in the same 

manner as a State. 

(1) Information to be included in the 

Administrative Delegation Request. In 

order to be delegated authority to assist 

EPA with administration of this FIP 

permit program for sources, the tribal 

agency must submit a request to the 

Administrator that: 

(i) Identifies the specific provisions 

for which delegation is requested; 

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(ii) Identifies the Indian Reservation 

or other areas of Indian country for 

which delegation is requested; 

(iii) Includes a statement by the 

applicant’s legal counsel (or equivalent 

official) that includes the following 

information: 

(A) A statement that the applicant is 

a tribe recognized by the Secretary of 

the Interior; 

(B) A descriptive statement that is 

consistent with the type of information 

described in § 49.7(a)(2) demonstrating 

that the applicant is currently carrying 

out substantial governmental duties and 

powers over a defined area; and 

(C) A description of the laws of the 

tribe that provide adequate authority to 

administer the Federal rules and 

provisions for which delegation is 

requested; and 

(iv) Demonstrates that the tribal 

agency has the technical capability and 

adequate resources to administer the FIP 

provisions for which the delegation is 

requested. 

(2) Delegation of Partial 

Administrative Authority Agreement. A 

Delegation of Partial Administrative 

Authority Agreement (Agreement) will 

set forth the terms and conditions of the 

delegation, will specify the provisions 

that the delegate tribal agency will be 

authorized to implement on behalf of 

EPA, and will be entered into by the 

Administrator and the delegate tribal 

agency. The Agreement will become 

effective upon the date that both the 

Administrator and the delegate tribal 

agency have signed the Agreement or as 

otherwise stated in the Agreement. Once 

the delegation becomes effective, the 

delegate tribal agency will be 

responsible, to the extent specified in 

the Agreement, for assisting EPA with 

administration of the provisions of the 

Federal minor NSR program that are 

subject to the Agreement. 

(3) Publication of notice of the 

Agreement. The Administrator will 

publish a notice in the Federal Register 

informing the public of any Agreement 

for a particular area of Indian country. 

The Administrator also will publish the 

notice in a newspaper of general 

circulation in the area affected by the 

delegation. In addition, the 

Administrator will mail a copy of the 

notice to persons on a mailing list 

developed by the Administrator 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

(4) Revision or revocation of an 

Agreement. An Agreement may be 

modified, amended, or revoked, in part 

or in whole, by the Administrator after 

consultation with the delegate tribal 

agency. 

(5) Transmission of information to the 

Administrator. When administration of 

a portion of the Federal minor NSR 

program in Indian country that includes 

receipt of permit application materials 

and preparation of draft permits has 

been delegated in accordance with the 

provisions of this section, the delegate 

tribal agency must provide to the 

Administrator a copy of each permit 

application (including any application 

for permit revision) and each draft 

permit. The applicant may be required 

by the delegate tribal agency to provide 

a copy of the permit application directly 

to the Administrator. With the 

Administrator’s consent, the delegate 

tribal agency may submit to the 

Administrator a permit application 

summary form and any relevant portion 

of the permit application, in place of the 

complete permit application. To the 

extent practicable, the preceding 

information should be provided in 

electronic format as requested by the 

Administrator. 

(6) Waiver of information 

transmission requirements. The 

Administrator may waive the 

requirements of paragraph (b)(5) of this 

section for any category of sources 

(including any class, type, or size within 

such category) by transmitting the 

waiver in writing to the delegate tribal 

agency. 

(7) Retention of records. Where a 

delegate tribal agency prepares draft or 

final permits or receives applications for 

permit revisions on behalf of EPA, the 

records for each draft and final permit 

or application for permit revision must 

be kept by the delegate tribal agency for 

a period not less than 5 years. The 

delegate tribal agency must also submit 

to the Administrator such information 

as the Administrator may reasonably 

require to ascertain whether the delegate 

tribal agency is implementing and 

administering the delegated program in 

compliance with the requirements of the 

Act and of this program. 

(8) Delegation of signature authority. 

To receive delegation of signature 

authority, the legal statement submitted 

by the tribal agency pursuant to 

paragraph (b)(1) of this section must 

certify that no applicable provision of 

tribal law requires that a minor NSR 

permit be issued after a certain time if 

the delegate tribal agency has failed to 

take action on the application (or 

includes any other similar provision 

providing for default issuance of a 

permit). 

(c) Are there any non-delegable 

elements of the Federal minor NSR 

program in Indian country? The 

following authorities cannot be 

delegated outside of EPA: 

(1) The Administrator’s authority to 

object to the issuance of a minor NSR 

permit. 

(2) The Administrator’s authority to 

enforce, revoke, or terminate permits 

issued pursuant to this program. 

(d) How will EPA transition its 

authority to an approved minor NSR 

program? (1) The Administrator will 

suspend the issuance of minor NSR 

permits under this program promptly 

upon publication of notice of approval 

of an implementation plan with a minor 

NSR permit program for that area. 

(2) The Administrator may retain 

jurisdiction over the permits for which 

the administrative or judicial review 

process is not complete and will address 

this issue in the notice of program 

approval. 

(3) After approval of a program for 

issuing minor NSR permits and the 

suspension of issuance of minor NSR 

permits by the Administrator, the 

Administrator will continue to 

administer minor NSR permits until 

permits are issued under the approved 

implementation plan program. 

§§ 49.161–49.165 [Reserved] 

3. Subpart C of Part 49 is amended by 

adding an undesignated center heading 

and §§ 49.166 through 49.173, and 

adding and reserving §§ 49.174 and 

49.175 to read as follows: 

Federal Major New Source Review 

Program for Nonattainment Areas in 

Indian Country 

§ 49.166 Program overview. 

(a) What constitutes the Federal major 

new source review (NSR) program for 

nonattainment areas in Indian country? 

As set forth in this Federal 

Implementation Plan (FIP), the Federal 

major NSR program for nonattainment 

areas in Indian country (or ‘‘program’’) 

consists of §§ 49.166 through 49.175. 

(b) What is the purpose of this 

program? This program has the 

following purposes: 

(1) It establishes a preconstruction 

permitting program for new major 

stationary sources and major 

modifications at existing major 

stationary sources located in 

nonattainment areas in Indian country 

to meet the requirements of part D of 

title I of the Act. 

(2) It requires that major stationary 

sources subject to this program comply 

with the provisions and requirements of 

part 51, appendix S of this chapter 

(appendix S). Additionally, it sets forth 

the criteria and procedures in appendix 

S that the reviewing authority (as 

defined in § 49.167) will use to approve 

permits under this program. Note that 

for the purposes of this program, the 

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term ‘‘SIP’’ as used in appendix S means 

any EPA-approved implementation 

plan, including a Tribal Implementation 

Plan (TIP). While some of the important 

provisions of appendix S are 

paraphrased in various paragraphs of 

this program to highlight them, the 

provisions of appendix S govern. 

(3) It also sets forth procedures for 

appealing a permit issued under this 

program as provided in § 49.172. 

(c) When and where does this 

program apply? (1) The provisions of 

this program apply to new major 

stationary sources and major 

modifications at existing major 

stationary sources located in 

nonattainment areas in Indian country 

where there is no EPA-approved 

nonattainment major NSR program 

beginning on [date 60 days from date of 

publication of final rule]. The 

provisions of this program apply only to 

stationary sources and modifications 

that are major for the regulated NSR 

pollutant(s) for which the area is 

designated nonattainment. 

(2) The provisions of this program 

cease to apply in an area covered by an 

EPA-approved implementation plan on 

the date that our approval of that plan 

becomes effective, provided that the 

plan includes provisions that comply 

with the requirements of part D of title 

I of the Act and § 51.165 of this chapter 

for the construction of new major 

stationary sources and major 

modifications at existing major 

stationary sources in nonattainment 

areas. 

(d) What general provisions apply 

under this program? The following 

general provisions apply to you as an 

owner/operator of a stationary source: 

(1) If you propose to construct a new 

major stationary source or a major 

modification at an existing major 

stationary source in a nonattainment 

area in Indian country, you must obtain 

a major NSR permit under this program 

before beginning actual construction. If 

you commence construction after the 

effective date of this program without 

applying for and receiving a permit 

pursuant to this program, you will be 

subject to appropriate enforcement 

action. 

(2) If you do not construct or operate 

your source or modification in 

accordance with the terms of your major 

NSR permit issued under this program, 

you will be subject to appropriate 

enforcement action. 

(3) Issuance of a permit under this 

program does not relieve you of the 

responsibility to comply fully with 

applicable provisions of any EPAapproved implementation plan or FIP 

and any other requirements under 

applicable law. 

(4) Nothing in this program prevents 

a tribe from administering a major NSR 

permit program with more stringent 

requirements in an approved TIP. 

§ 49.167 Definitions. 

For the purposes of this program, the 

definitions in paragraph II.A of 

appendix S to part 51 of this chapter 

apply, unless otherwise stated. The 

following definitions also apply to this 

program: 

Allowable emissions means 

‘‘allowable emissions’’ as defined in 

paragraph II.A.11 of appendix S to part 

51 of this chapter, except that the 

allowable emissions for any emissions 

unit are calculated considering any 

emission limitations that are enforceable 

as a practical matter on the emissions 

unit’s potential to emit. 

Enforceable as a practical matter 

means that an emission limitation or 

other standard is both legally and 

practically enforceable as follows: 

(1) An emission limitation or other 

standard is ‘‘legally enforceable’’ if the 

reviewing authority has the right to 

enforce it. 

(2) Practical enforceability for an 

emission limitation or for other 

standards (design standards, equipment 

standards, work practices, operational 

standards, pollution prevention 

techniques) in a permit for a stationary 

source is achieved if the permit’s 

provisions specify: 

(i) A limitation or standard and the 

emissions units or activities at the 

stationary source subject to the 

limitation or standard; 

(ii) The time period for the limitation 

or standard (e.g., hourly, daily, monthly, 

and/or annual limits such as rolling 

annual limits); and 

(iii) The method to determine 

compliance, including appropriate 

monitoring, recordkeeping, reporting, 

and testing. 

(3) For rules and general permits that 

apply to categories of stationary sources, 

practicable enforceability additionally 

requires that the provisions: 

(i) Identify the types or categories of 

sources that are covered by the rule or 

general permit; 

(ii) Where coverage is optional, 

provide for notice to the reviewing 

authority of the source’s election to be 

covered by the rule or general permit; 

and 

(iii) Specify the enforcement 

consequences relevant to the rule or 

general permit. 

Environmental Appeals Board means 

the Board within the EPA described in 

§ 1.25(e) of this chapter. 

Indian country, as defined in 18 

U.S.C. 1151, means the following: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation;2 

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of a State; and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

Indian governing body means the 

governing body of any tribe, band, or 

group of Indians subject to the 

jurisdiction of the United States and 

recognized by the United States as 

possessing power of self-government. 

Regulated NSR pollutant, for 

purposes of this program, means the 

following: 

(1) Nitrogen oxides or any volatile 

organic compounds; 

(2) Any pollutant for which a national 

ambient air quality standard has been 

promulgated; or 

(3) Any pollutant that is a constituent 

or precursor of a general pollutant listed 

under paragraphs (1) or (2) of this 

definition, provided that a constituent 

or precursor pollutant may only be 

regulated under NSR as part of 

regulation of the general pollutant. 

Reviewing authority means the 

Administrator and may mean an Indian 

tribe in cases where a tribal agency is 

assisting EPA with administration of the 

program through a delegation under 

§ 49.173. 

Synthetic minor HAP source means a 

stationary source that otherwise has the 

potential to emit HAPs in amounts that 

are at or above those for major sources 

of HAP in § 63.2 of this chapter, but that 

has taken a restriction such that its 

potential to emit is less than such 

amounts for major sources. Such 

restrictions must be enforceable as a 

practical matter. 

Synthetic minor source means a 

stationary source that otherwise has the 

potential to emit regulated NSR 

pollutants in amounts that are at or 

above those for major stationary sources 

in appendix S to part 51 of this chapter, 

but that has taken a restriction such that 

its potential to emit is less than such 

2 Under this definition, EPA treats as reservations 

trust lands validly set aside for the use of a tribe 

even if the trust lands have not been formally 

designated as a reservation. 

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amounts for major stationary sources. 

Such restrictions must be enforceable as 

a practical matter. The term ‘‘synthetic 

minor source’’ applies independently 

for each regulated NSR pollutant that 

the stationary source has the potential to 

emit. 

§ 49.168 Does this program apply to me? 

(a) In a nonattainment area in Indian 

country, the requirements of this 

program apply to you under either of 

the following circumstances: 

(1) If you propose to construct a new 

major stationary source (as defined in 

paragraph II.A.4 of appendix S to part 

51 of this chapter) of the nonattainment 

pollutant. 

(2) If you propose to construct a major 

modification at your existing major 

stationary source (as defined in 

paragraph II.A.5 of appendix S to part 

51 of this chapter), where your source 

is a major stationary source of the 

nonattainment pollutant and the 

proposed modification is a major 

modification for the nonattainment 

pollutant. 

(b) If you own or operate a major 

stationary source with a State-issued 

nonattainment major NSR permit, you 

must apply to convert such permit to a 

Federal permit under this program by 

[date 1 year and 60 days from date of 

publication of final rule]. In this case, 

you would not be subject to any 

additional requirements under this 

program. 

(c) If you propose to establish a 

synthetic minor source or synthetic 

minor HAP source, or to construct a 

minor modification at your major 

stationary source, you will have to 

comply with the requirements of the 

Federal minor NSR program in Indian 

country at §§49.51 through 49.165 or 

other EPA-approved minor NSR 

program, as applicable. 

§ 49.169 Permit approval criteria. 

(a) What are the general criteria for 

permit approval? The general review 

criteria for permits are provided in 

paragraph II.B of appendix S to part 51 

of this chapter. In summary, that 

paragraph basically requires the 

reviewing authority to ensure that the 

proposed new major stationary source 

or major modification would meet all 

applicable emission requirements in the 

EPA-approved implementation plan or 

FIP, any applicable NSPS in part 60 of 

this chapter, and any applicable 

NESHAP in part 61 or part 63 of this 

chapter, before a permit can be issued. 

(b) What are the program-specific 

criteria for permit approval? The 

approval criteria or conditions for 

obtaining a major NSR permit for major 

stationary sources and major 

modifications locating in nonattainment 

areas are given in paragraph IV.A of 

appendix S to part 51 of this chapter. In 

summary, these are the following: 

(1) The lowest achievable emission 

rate (LAER) requirement for any NSR 

pollutant subject to this program. 

(2) Certification that all existing major 

stationary sources owned or operated by 

you in the same State as the proposed 

source or modification are in 

compliance or under a compliance 

schedule. 

(3) Emissions reductions (offsets) 

requirement for any source or 

modification subject to this program. 

(4) A demonstration that the emission 

offsets will provide a net air quality 

benefit in the affected area. 

§ 49.170 Emission offset requirement 

exemption. 

An Indian governing body may seek 

an exemption from the emission offset 

requirement (See § 49.169(b)(3)) for 

major stationary sources and major 

modifications subject to this program 

that are located within the tribe(s Indian 

country pursuant to the following 

options: 

(a) Section 173(a)(1)(B) Economic 

Development Zone (EDZ) option. Under 

section 173(a)(1)(B) of the Act, major 

stationary sources and major 

modifications subject to this program 

may be exempted from the offset 

requirement if they are located in a zone 

targeted for economic development by 

the Administrator, in consultation with 

the Department of Housing and Urban 

Development (HUD). Under the EDZ 

option, the Administrator would waive 

the offset requirement for such sources 

and modifications, provided that: 

(1) The new major stationary source 

or major modification is located in a 

geographical area which meets the 

criteria for an EDZ, and the 

Administrator has approved a request 

from a tribe and declared the area an 

EDZ; and 

(2) The State/tribe demonstrates that 

the new permitted emissions are 

consistent with the achievement of 

reasonable further progress pursuant to 

section 172(c)(4) of the Act, and will not 

interfere with attainment of the 

applicable NAAQS by the applicable 

attainment date. 

(b) Appendix S, paragraph VI option. 

Pursuant to paragraph VI of appendix S 

to part 51 of this chapter, for a new 

major stationary source or major 

modification locating in a 

nonattainment area for which the 

attainment date has not yet passed, such 

source or modification would be exempt 

from all requirements of this program, 

including the offset requirement, 

provided all the following conditions 

are met: 

(1) The new major stationary source 

or major modification complies with 

any applicable EPA-approved 

implementation plan or FIP emission 

limitations. 

(2) The new major stationary source 

or major modification will not interfere 

with the attainment date for a regulated 

NSR pollutant. 

(3) The Administrator has determined 

that conditions specified in paragraphs 

(b)(1) and (2) of this section are satisfied 

and such determination is published in 

the Federal Register. 

§ 49.171 Public participation requirements. 

(a) What permit information will be 

publicly available? With the exception 

of any confidential information as 

defined in part 2, subpart B of this 

chapter, the reviewing authority must 

make available for public inspection the 

documents listed in paragraphs (a)(1) 

through (4) of this section. The 

reviewing authority must make such 

information available for public 

inspection at the appropriate EPA 

Regional Office and in at least one 

location in the area affected by the 

stationary source, such as the tribal 

environmental office or a local library. 

(1) All information submitted as part 

of an application for a permit. 

(2) Any additional information 

requested by the reviewing authority. 

(3) The reviewing authority’s analysis 

of the application and any additional 

information submitted by you, 

including the LAER analysis and, where 

applicable, the analysis of your 

emissions reductions (offsets) and your 

demonstration of a net air quality 

benefit in the affected area. 

(4) A copy of the draft permit or the 

decision to deny the permit with the 

justification for denial. 

(b) How will the public be notified 

and participate? (1) Before issuing a 

permit under this program, the 

reviewing authority must prepare a draft 

permit and must provide adequate 

public notice to ensure that the affected 

community and the general public have 

reasonable access to the application and 

draft permit information, as set out in 

paragraphs (b)(1)(i) and (ii) of this 

section. The public notice must provide 

an opportunity for public comment and 

notice of a public hearing, if any, on the 

draft permit. 

(i) The reviewing authority must mail 

a copy of the notice to you, the 

appropriate Indian governing body, and 

the tribal, State, and local air pollution 

authorities having jurisdiction in areas 

outside of the area of Indian country 

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potentially impacted by the air 

pollution source. 

(ii) Depending on such factors as the 

nature and size of your stationary 

source, local air quality considerations, 

and the characteristics of the population 

in the affected area, the reviewing 

authority must use appropriate means of 

notification, such as those listed in 

paragraphs (b)(1)(ii)(A) through (E) of 

this section. 

(A) The reviewing authority may mail 

or e-mail a copy of the notice to persons 

on a mailing list developed by the 

reviewing authority consisting of those 

persons who have requested to be 

placed on such a mailing list. 

(B) The reviewing authority may post 

the notice on its Web site. 

(C) The reviewing authority may 

publish the notice in a newspaper of 

general circulation in the area affected 

by the source. Where possible, the 

notice may also be published in a tribal 

newspaper or newsletter. 

(D) The reviewing authority may 

provide copies of the notice for posting 

at one or more locations in the area 

affected by the source, such as Post 

Offices, trading posts, libraries, tribal 

environmental offices, community 

centers, or other gathering places in the 

community. 

(E) The reviewing authority may 

employ other means of notification as 

appropriate. 

(2) The notice required pursuant to 

paragraph (b)(1) of this section must 

include the following information at a 

minimum: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) The name and address of the 

reviewing authority processing the 

permit action; 

(iii) The regulated NSR pollutants to 

be emitted, the affected emissions units, 

and the emission limitations for each 

affected emissions unit; 

(iv) The emissions change involved in 

the permit action; 

(v) Instructions for requesting a public 

hearing; 

(vi) The name, address, and telephone 

number of a contact person in the 

reviewing authority’s office from whom 

additional information may be obtained; 

(vii) Locations and times of 

availability of the information (listed in 

paragraph (a) of this section) for public 

inspection; and 

(viii) A statement that any person may 

submit written comments, a written 

request for a public hearing, or both, on 

the draft permit action. The reviewing 

authority must provide a period of at 

least 30 days from the date of the public 

notice for comments, and for requests 

for a public hearing. 

(c) How will the public comment, and 

will there be a public hearing? (1) Any 

person may submit written comments 

on the draft permit and may request a 

public hearing. These comments must 

raise any reasonably ascertainable issue 

with supporting arguments by the close 

of the public comment period 

(including any public hearing). The 

reviewing authority must consider all 

comments in making the final decision. 

The reviewing authority must keep a 

record of the commenters and of the 

issues raised during the public 

participation process, and such records 

must be available to the public. 

(2) The reviewing authority must 

extend the public comment period 

under paragraph (b) of this section to 

the close of any public hearing under 

this section. The hearing officer may 

also extend the comment period by so 

stating at the hearing. 

(3) A request for a public hearing 

must be in writing and must state the 

nature of the issues proposed to be 

raised at the hearing. 

(4) The reviewing authority must hold 

a hearing whenever there is, on the basis 

of requests, a significant degree of 

public interest in a draft permit. The 

reviewing authority may also hold a 

public hearing at its discretion, 

whenever, for instance, such a hearing 

might clarify one or more issues 

involved in the permit decision. The 

reviewing authority must provide notice 

of any public hearing at least 30 days 

prior to the date of the hearing. Public 

notice of the hearing may be concurrent 

with that of the draft permit, and the 

two notices may be combined. 

Reasonable limits may be set upon the 

time allowed for oral statements at the 

hearing. 

(5) The reviewing authority must 

make a tape recording or written 

transcript of any hearing available to the 

public. 

§ 49.172 Final permit issuance and 

administrative and judicial review. 

(a) How will final action occur, and 

when will my permit become effective? 

After decision on a permit, the 

reviewing authority must notify you of 

the decision, in writing, and if the 

permit is denied, of the reasons for such 

denial. If the reviewing authority issues 

a final permit to you, it must make a 

copy of the permit available at any 

location where the draft permit was 

made available. In addition, the 

reviewing authority must provide 

adequate public notice of the final 

permit decision to ensure that the 

affected community, general public, and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

A final permit becomes effective 30 days 

after permit issuance, unless: 

(1) A later effective date is specified 

in the permit; or 

(2) Review of the final permit is 

requested under paragraph (d) of this 

section (in which case the specific terms 

and conditions of the permit that may 

be the subject of the request for review 

must be stayed); or 

(3) The draft permit was subjected to 

a public comment period and no 

comments requested a change in the 

draft permit or a denial of the permit, in 

which case the reviewing authority may 

make the permit effective immediately 

upon issuance. 

(b) For how long will the reviewing 

authority retain my permit-related 

records? The records, including any 

required applications for each draft and 

final permit or application for permit 

revision, must be kept by the reviewing 

authority for not less than 5 years. 

(c) What is the administrative record 

for each final permit? (1) The reviewing 

authority must base final permit 

decisions on an administrative record 

consisting of: 

(i) All comments received during any 

public comment period, including any 

extension or reopening; 

(ii) The tape or transcript of any 

hearing(s) held; 

(iii) Any written material submitted at 

such a hearing; 

(iv) Any new materials placed in the 

record as a result of the reviewing 

authority’s evaluation of public 

comments; 

(v) Other documents in the supporting 

files for the permit that were relied 

upon in the decisionmaking; 

(vi) The final permit; 

(vii) The application and any 

supporting data furnished by the 

applicant; 

(viii) The draft permit or notice of 

intent to deny the application or to 

terminate the permit; and 

(ix) Other documents in the 

supporting files for the draft permit that 

were relied upon in the decisionmaking. 

(2) The additional documents 

required under paragraph (c)(1) of this 

section should be added to the record as 

soon as possible after their receipt or 

publication by the reviewing authority. 

The record must be complete on the 

date the final permit is issued. 

(3) Material readily available or 

published materials that are generally 

available and that are included in the 

administrative record under the 

standards of paragraph (c)(1) of this 

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48748 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

section need not be physically included 

in the same file as the rest of the record 

as long as it is specifically referred to in 

that file. 

(d) Can permit decisions be appealed? 

Permit decisions may be appealed 

according to the following provisions: 

(1) The Administrator delegates 

authority to the Environmental Appeals 

Board (the Board) to issue final 

decisions in permit appeals filed under 

this program, including informal 

appeals of denials of requests for 

modification, revocation and reissuance, or termination of permits 

under paragraph (e)(2) of this section. 

An appeal directed to the 

Administrator, rather than to the Board, 

will be forwarded to the Board for 

consideration. This delegation does not 

preclude the Board from referring an 

appeal or a motion under this program 

to the Administrator when the Board, in 

its discretion, deems it appropriate to do 

so. When an appeal or motion is 

referred to the Administrator by the 

Board, all parties shall be so notified 

and the provisions of this program 

referring to the Board shall be 

interpreted as referring to the 

Administrator. 

(2) Within 30 days after a final permit 

decision has been issued, any person 

who filed comments on the draft permit 

or participated in the public hearing 

may petition the Board to review any 

condition of the permit decision. Any 

person who failed to file comments and 

failed to participate in the public 

hearing on the draft permit may petition 

for administrative review only to the 

extent that the changes from the draft to 

the final permit or other new grounds 

were not reasonably foreseeable during 

the public comment period on the draft 

permit. The 30-day period within which 

a person may request review under this 

section begins when the reviewing 

authority has fulfilled the notice 

requirements for the final permit 

decision, unless a later date is specified 

in that notice. 

(3) The petition must include a 

statement of the reasons supporting the 

review, including a demonstration that 

any issues identified were raised during 

the public comment period (including 

any public hearing) to the extent 

required by these regulations, unless the 

petitioner demonstrates that it was 

impracticable to raise such objections 

within such period or unless the 

grounds for such objection arose after 

such period, and, when appropriate, a 

showing that the condition in question 

is based on: 

(i) A finding of fact or conclusion of 

law that is clearly erroneous; or 

(ii) An exercise of discretion or an 

important policy consideration that the 

Board should, in its discretion, review. 

(4) The Board may also decide on its 

own initiative to review any condition 

of any permit issued under this 

program. 

(5) Within a reasonable time following 

the filing of the petition for review, the 

Board must issue an order either 

granting or denying the petition for 

review. To the extent review is denied, 

the conditions of the final permit 

decision become final agency action. If 

the Board grants review in response to 

requests under paragraph (d)(2) or (4) of 

this section, public notice must be given 

as provided in § 49.171(b). Public notice 

must set forth a briefing schedule for the 

appeal and must state that any 

interested person may file an amicus 

brief. If the Board denies review, the 

permit applicant and the person(s) 

requesting review must be notified 

through means that are adequate to 

assure reasonable access to the decision, 

which may include mailing a notice to 

each. 

(6) A petition to the Board under 

paragraph (d)(2) of this section is, under 

42 U.S.C. 307(b), a prerequisite to 

seeking judicial review of the final 

agency action. 

(7) For purposes of judicial review, 

final agency action occurs when a final 

permit is issued or denied by the 

reviewing authority and agency review 

procedures are exhausted. A final 

permit decision must be issued by the 

reviewing authority: 

(i) When the Board issues notice to 

the parties that review has been denied; 

(ii) When the Board issues a decision 

on the merits of the appeal and the 

decision does not include a remand of 

the proceedings; or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Board’s remand 

order specifically provides that appeal 

of the remand decision will be required 

to exhaust administrative remedies. 

(8) Notice of any final agency action 

on a permit shall promptly be published 

in the Federal Register. 

(9) Motions to reconsider a final order 

must be filed within 10 days after 

service of the final order. Every such 

motion must set forth the matters 

claimed to have been erroneously 

decided and the nature of the alleged 

errors. Motions for reconsideration 

under this provision must be directed 

to, and decided by, the Board. Motions 

for reconsideration directed to the 

Administrator, rather than to the Board, 

will be forwarded to the Board for 

consideration, except in cases in which 

the Board has deferred to the 

Administrator and the Administrator 

has issued the final order. A motion for 

reconsideration must not stay the 

effective date of the final order unless 

specifically so ordered by the Board. 

(10) For purposes of this section, time 

periods are computed as follows: 

(i) Any time period scheduled to 

begin on the occurrence of an act or 

event must begin on the day after the act 

or event. 

(ii) Any time period scheduled to 

begin before the occurrence of an act or 

event must be computed so that the 

period ends on the day before the act or 

event, except as otherwise provided. 

(iii) If the final day of any time period 

falls on a weekend or legal holiday, the 

time period must be extended to the 

next working day. 

(iv) Whenever a party or interested 

person has the right or is required to act 

within a prescribed period after the 

service of notice or other paper upon 

him or her by mail, 3 days must be 

added to the prescribed time. 

(e) Can my permit be reopened? Your 

permit can be reopened according to the 

following procedures: 

(1) Any person (including the 

permittee) may petition the reviewing 

authority to reopen a permit for cause, 

and the reviewing authority may 

commence a permit reopening on its 

own initiative. The reviewing authority 

may not reopen a permit for cause 

unless it contains a material mistake or 

fails to assure compliance with 

applicable requirements. All requests 

must be in writing and must contain 

reasons supporting the request. 

(2) If the reviewing authority decides 

the request is not justified, the 

reviewing authority must send the 

requestor a brief written response giving 

a reason for the decision. Denials of 

requests for revision, revocation and reissuance, or termination are not subject 

to public notice, comment, or hearings. 

Denials by the reviewing authority may 

be informally appealed to the Board by 

a letter briefly setting forth the relevant 

facts. The Board may direct the 

reviewing authority to begin revision, 

revocation and re-issuance, or 

termination proceedings under 

paragraph (e)(3) of this section. The 

appeal must be considered denied if the 

Board takes no action within 60 days 

after receiving it. This informal appeal 

is, under 42 U.S.C. 307, a prerequisite 

to seeking judicial review of EPA action 

in denying a request for revision, 

revocation and re-issuance, or 

termination. 

(3) If the reviewing authority decides 

the request is justified and that cause 

exists to revise, revoke and reissue or 

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terminate a permit, it shall initiate 

proceedings to reopen the permit. 

§ 49.173 Administration and delegation of 

the nonattainment major NSR program in 

Indian country. 

(a) Who administers a nonattainment 

major NSR Program in Indian Country? 

(1) If the Administrator has approved a 

TIP that includes a major NSR program 

for stationary sources in nonattainment 

areas of Indian country that meets the 

requirements of part D of title I of the 

Act and § 51.165 of this chapter, the 

tribe is the reviewing authority and will 

administer the approved major NSR 

program under tribal law. 

(2) If the Administrator has not 

approved an implementation plan, the 

Administrator may delegate the 

authority to assist EPA with 

administration of portions of this 

Federal nonattainment major NSR 

program implemented under Federal 

authority to a tribal agency upon 

request, in accordance with the 

provisions of paragraph (b) of this 

section. If the tribal agency has been 

granted such delegation, it will have the 

authority to assist EPA according to 

paragraph (b) of this section. 

(3) If the Administrator has not 

approved an implementation plan or 

granted delegation to a tribal agency, the 

Administrator is the reviewing authority 

and will directly administer all aspects 

of this Federal nonattainment major 

NSR program in Indian country under 

Federal authority. 

(b) Delegation of administration of the 

Federal nonattainment major NSR 

program to tribes. This paragraph (b) 

establishes the process by which the 

Administrator may delegate authority to 

a tribal agency, with or without 

signature authority, to assist EPA with 

administration of portions of this 

Federal nonattainment major NSR 

program, in accordance with the 

provisions in paragraphs (b)(1) through 

(8) of this section. Any Federal 

requirements under this program that 

are administered by the delegate tribal 

agency will be subject to enforcement by 

EPA under Federal law. This section 

provides for administrative delegation 

of the Federal nonattainment major NSR 

program and does not affect the 

eligibility criteria under § 49.6 for 

treatment in the same manner as a State. 

(1) Information to be included in the 

Administrative Delegation Request. In 

order to be delegated authority to assist 

EPA with administration of this FIP 

permit program for stationary sources, 

the tribal agency must submit a request 

to the Administrator that: 

(i) Identifies the specific provisions 

for which delegation is requested; 

(ii) Identifies the Indian Reservation 

or other areas of Indian country for 

which delegation is requested; 

(iii) Includes a statement by the 

applicant’s legal counsel (or equivalent 

official) that includes the following 

information: 

(A) A statement that the applicant is 

a tribe recognized by the Secretary of 

the Interior; 

(B) A descriptive statement that is 

consistent with the type of information 

described in § 49.7(a)(2) demonstrating 

that the applicant is currently carrying 

out substantial governmental duties and 

powers over a defined area; and 

(C) A description of the laws of the 

tribe that provide adequate authority to 

administer the Federal rules and 

provisions for which delegation is 

requested; and 

(iv) Demonstrates that the tribal 

agency has the technical capability and 

adequate resources to administer the FIP 

provisions for which the delegation is 

requested. 

(2) Delegation of Partial 

Administrative Authority Agreement. A 

Delegation of Partial Administrative 

Authority Agreement (Agreement) will 

set forth the terms and conditions of the 

delegation, will specify the provisions 

that the delegate tribal agency will be 

authorized to implement on behalf of 

EPA, and will be entered into by the 

Administrator and the delegate tribal 

agency. The Agreement will become 

effective upon the date that both the 

Administrator and the delegate tribal 

agency have signed the Agreement or as 

otherwise stated in the Agreement. Once 

the delegation becomes effective, the 

delegate tribal agency will be 

responsible, to the extent specified in 

the Agreement, for assisting EPA with 

administration of the provisions of the 

Federal nonattainment major NSR 

program that are subject to the 

Agreement. 

(3) Publication of notice of the 

Agreement. The Administrator will 

publish a notice in the Federal Register 

informing the public of any Agreement 

for a particular area of Indian country. 

The Administrator also will publish the 

notice in a newspaper of general 

circulation in the area affected by the 

delegation. In addition, the 

Administrator will mail a copy of the 

notice to persons on a mailing list 

developed by the Administrator 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

(4) Revision or revocation of an 

Agreement. An Agreement may be 

modified, amended, or revoked, in part 

or in whole, by the Administrator after 

consultation with the delegate tribal 

agency. 

(5) Transmission of information to the 

Administrator. When administration of 

a portion of the Federal nonattainment 

major NSR program in Indian country 

that includes receipt of permit 

application materials and preparation of 

draft permits has been delegated in 

accordance with the provisions of this 

section, the delegate tribal agency must 

provide to the Administrator a copy of 

each permit application (including any 

application for permit revision) and 

each draft permit. The applicant may be 

required by the delegate tribal agency to 

provide a copy of the permit application 

directly to the Administrator. With the 

Administrator’s consent, the delegate 

tribal agency may submit to the 

Administrator a permit application 

summary form and any relevant portion 

of the permit application, in place of the 

complete permit application. To the 

extent practicable, the preceding 

information should be provided in 

electronic format as requested by the 

Administrator. 

(6) Waiver of information 

transmission requirements. The 

Administrator may waive the 

requirements of paragraph (b)(5) of this 

section for any category of stationary 

sources (including any class, type, or 

size within such category) by 

transmitting the waiver in writing to the 

delegate tribal agency. 

(7) Retention of records. Where a 

delegate tribal agency prepares draft or 

final permits or receives applications for 

permit revisions on behalf of EPA, the 

records for each draft and final permit 

or application for permit revision must 

be kept by the delegate tribal agency for 

a period not less than 5 years. The 

delegate tribal agency must also submit 

to the Administrator such information 

as the Administrator may reasonably 

require to ascertain whether the delegate 

tribal agency is implementing and 

administering the delegated program in 

compliance with the requirements of the 

Act and of this program. 

(8) Delegation of signature authority. 

To receive delegation of signature 

authority, the legal statement submitted 

by the tribal agency pursuant to 

paragraph (b)(1) of this section must 

certify that no applicable provision of 

tribal law requires that a major NSR 

permit be issued after a certain time if 

the delegate tribal agency has failed to 

take action on the application (or 

includes any other similar provision 

providing for default issuance of a 

permit). 

(c) Are there any non-delegable 

elements of the Federal nonattainment 

major NSR program in Indian country? 

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48750 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

The following authorities cannot be 

delegated outside of EPA: 

(1) The Administrator’s authority to 

object to the issuance of a major NSR 

permit. 

(2) The Administrator’s authority to 

enforce, revoke, or terminate permits 

issued pursuant to this program. 

(d) How will EPA transition its 

authority to an approved nonattainment 

major NSR program? (1) The 

Administrator will suspend the issuance 

of nonattainment major NSR permits 

under this program promptly upon 

publication of notice of approval of an 

implementation plan with a major NSR 

permit program for nonattainment areas. 

(2) The Administrator may retain 

jurisdiction over the permits for which 

the administrative or judicial review 

process is not complete and will address 

this issue in the notice of program 

approval. 

(3) After approval of a program for 

issuing nonattainment major NSR 

permits and the suspension of issuance 

of nonattainment major NSR permits by 

the Administrator, the Administrator 

will continue to administer 

nonattainment major NSR permits until 

permits are issued under the approved 

implementation plan program. 

§§ 49.174–49.175 [Reserved] 

PART 51—[AMENDED] 

4. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

Appendix S to Part 51—[Amended] 

5. Appendix S to Part 51 is amended 

by revising paragraph II.B to read as 

follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

II. * * * 

B. Review of all sources for emission 

limitation compliance. The reviewing 

authority must examine each proposed major 

new source and proposed major 

modification 1 to determine if such a source 

will meet all applicable emission 

requirements in the SIP, any applicable new 

source performance standard in 40 CFR part 

60, or any national emission standard for 

hazardous air pollutants in 40 CFR part 61 

or part 63. If the reviewing authority 

determines that the proposed major new 

source cannot meet the applicable emission 

requirements, the permit to construct must be 

denied. 

* * * * * 


[FR Doc. 06–6926 Filed 8–18–06; 8:45 am] 


BILLING CODE 6560–50–P 

1 Hereafter the term source will be used to denote 

both any source and any modification.