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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-HQOAR-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. EPAHQ-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.

e 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 otheriqise

protected through http://

www.regulations.gov or e-mail. The

http://ww.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 Qualify 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 ' Examples of regulated entities

Industry ...................................................................................................................

Federal government.........................................

State/local/tribal government ..................................................................................

a North American Industry Classification System.

4471

5614

21211

31332

33712

56221

115112

211111

211111

211112

212234

212312

212313

212321

221112

221119

221119

221210

221210

321113

321911

323110

323113

324121

325188

325188

331314

331492

332431

332812

421320

422510

422710

422710

486110

486210

562212

811121

812320

924110

924110

Gasoline station storage tanks and refueling.

Lumber manufacturer support.

Coal mining.

Surface coating operation.

Furniture manufacture.

Medical waste incinerator.

Repellent and fertilizer applications.

Natural gas plant

Oil and gas production.

Fractionation of natural gas liquids.

Copper mining and processing.

Stone quarrying and processing.

Stone quarrying and processing.

Sand and gravel production.

Power plant-coal-fired.

Power plant-biomass fueled.

Power plant-landfill gas fired.

Natural gas collection.

Natural gas pipeline.

Sawmill.

Window and door molding manufacturer.

Printing operations.

Surface coating operations.

Asphalt. hot mix plants.

Elemental phosphorus plant.

Sulfuric acid plant

Secondary aluminum production and extrusion.

Cobalt and: tungsten recycling.

Surface coating operations.

Surface coating operations.

Concrete batching plant.

Grain elevator.

Crude oil storage and distribution.

Gasoline bulk plant.

Crude oil storage and distribution.

Natural gas compressor station.

Solid waste landfill.

Automobile refinishing shop.

Dry cleaner.

Administration of Air and Water -Resources and

Solid Waste Management Programs.

Administration of Air and Water Resources and

Solid Waste Management Programs.

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 CB1. 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.

a 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.

e If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

e Provide specific examples to

illustrate your concerns, and suggest

alternatives.

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e Explain your views as clearly as,

possible, avoiding the use of profanity

-or personal threats.

e 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

pr9posal 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/oarltribal.

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, ds 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

I 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.,,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.

Im. 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

"nonattaiment" 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 attai

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 activitie

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 ti

develop a FIP to protect air quality by

directly implementing provisions of th

Act throughout Indian country.. See, e.g

59 FR 43958-61 (August 25, 1994), 63

FR 7262-64 (February 12, 1998), and 6,

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 foi

their reservations and/or for other areas

under their jurisdiction. Currently, no

tribe is administering an EPA-approved

PSD program. Therefore, we implemeni

the PSD program in Indian country.

Unlike for the PSD program, there is

currently no FIP to implement either th

nonattainment major NSR program or

the minor NSR program in Indian

country. Hence, there is a regulatory ga]

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 E

40 CFR 49.151 through 49.165 and the

nonattainment major NSR program at 41

CFR 49.166 through 49.175. It is

important to recognize, however, that

even if we adopt a Federal program thai

applies in Indian country, the tribes

may still develop Tribal Implementatio:

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 th

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

n 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, Oregoii, 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

3 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.

e Only 16 percent of the respondents

requested face-to-face consultation. Of

these, only six tribes requested senior

P 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

it reservations of the Menominee Tribe in

Wisconsin, the Mohegan Tribe in

0 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

n Flagstaff, Arizona. In addition to

conducting these meetings, we also

visited tribal environmental staff in

Indian country. Over 30 tribes attended e 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 a)., 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 modificatfons 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 bas~ed 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

Minor NSR thresholds for nonattainment areas Minor NSR threshRegulated NSR pollutant (tpy) olds for attainment

areas

Extreme Other areas (tpy)

ozone areas

Carbon m onoxide (C O ) ........................................................................................

5 5 10

O xides of nitrogen (N O x) .......................................................................................

-0 5 10

Sulfur dioxide (SO 2) 5 5 10

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

0 2 5

P M -.....................................................................................................

5 5 10

PM-1 .................................................................................. *****'"1 ..... 1 5

P M -2.5 ..................................................................................................

0 .6 0.6 3

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

... 0.1 0.1 0.1

Fluorides.......................................... :- **""****"'*"*..... ... .... ........... ** ... NA NA1

S ulfuric acid m ist ............................................................................................ • .................. N A N A 2

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

NA NA 2

Total reduced sulfur (including H2S) ................................................................................ .NA NA 2

Reduced sulfur compounds (including H2S) ..................................................................... NA NA 2

Municipal waste combustor emissions .............................................................................. NA , NA 2

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

N A N A 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 this analysis approximates the fraction

In some cases, a tribe's area of Indian existing sources across the country. of new sources that will be exempt from

country may be divided between a Using the National Emission Inventory minor NSR, subject to minor NSR, and

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

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 EfMISSIONS UNDER PROPOSED MINOR NSR THRESHOLDS

Total facilities Unregulated minor Minor sources Major sources

Pollutant No. TPY sources

(x10 3

) (x10 6

) %of total %ofTPY %of total %ofTPY %of total %ofTPY

CO .................................. 28.9 4.43 65 0.8 29 11 6 88

S0 2 ................................................................... 21.2 13.90 76 0.1 '16 1 8 99

PM10 ............................... .................................. - 33.9 1.69 65 1.3 32 22 4 .76

PM 2.5 ................................................................ 33.8 1.33 59 0.8 38 23 3 76

Ozone- VOC ................................................... 43.3 1.60 42 1.1 53 41 5 58

Ozone- NOx .................................................... 30.5 7.93 53 0.4 36 6 11 93

Nitrogen dioxide (NO2) ..................................... 30.5 7.93 59 0.6 32 7 9 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.govttn/rhief/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 analysissee "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-foundin 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;

e Janitorial services and consumer

use of janitorial products;

e 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 modificati6n 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 reviewingauthority 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 minorstationary 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 youare

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 emission's 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 assur6 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 aid 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, tonsistent 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'toensure 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, wo are

proposing that your reviewing authority

may require you to conduct an AQIA

using dispersibn 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 c6mplete

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

comm9nt on the proposed permit

issuace proc9ss.. ,,

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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.

o 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: a 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.

o 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.

o 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.

BILLING CODE 6560-50-P

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