[Federal Register Volume 76, Number 127 (Friday, July 1, 2011)]
[Rules and Regulations]
[Pages 38747-38808]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14981]
[[Page 38747]]
Vol. 76
Friday,
No. 127
July 1, 2011
Part II
Environmental Protection Agency
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40 CFR Parts 49 and 51
Review of New Sources and Modifications in Indian Country; Final Rule
Federal Register / Vol. 76 , No. 127 / Friday, July 1, 2011 / Rules
and Regulations
[[Page 38748]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 49 and 51
[EPA-HQ-OAR-2003-0076; FRL-9320-2]
RIN 2060-AH37
Review of New Sources and Modifications in Indian Country
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing a Federal Implementation Plan (FIP)
under the Clean Air Act (CAA or Act) for Indian country. The FIP
includes two New Source Review (NSR) regulations for the protection of
air resources in Indian country. The first rule applies to new and
modified minor stationary sources (minor sources) and to minor
modifications at existing major stationary sources (major sources)
throughout Indian country. The second rule (nonattainment major NSR
rule) applies to new and modified major sources in areas of Indian
country that are designated as not attaining the National Ambient Air
Quality Standards (NAAQS). These rules will be implemented by EPA or a
delegate Tribal agency assisting EPA with administration of the rules,
until replaced by an EPA-approved implementation plan.
DATES: This final rule is effective on August 30, 2011.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2003-0076. All documents in the docket are
listed on the http://www.regulations.gov Web site. 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, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air and
Radiation Docket and Information Center, EPA/DC, EPA West, Room 3334,
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 and Radiation
Docket and Information Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Jessica Monta[ntilde]ez, Air
Quality Policy Division, Office of Air Quality Planning and Standards
(C504-03), U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711, telephone number (919) 541-3407, facsimile
number (919) 541-5509, e-mail address: montanez.jessica@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Overview of the Final Rules
III. Background
A. What is 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. What is the basis for EPA's authority to implement CAA
programs in Indian country?
C. What is the status of the NSR air quality programs in Indian
country?
D. What consultation and outreach has been done with Tribal
leaders and representatives?
IV. Final Minor NSR Program for Indian Country
A. General Provisions Under the Minor NSR Program
1. What is a minor source and which minor sources are subject to
this rule?
a. Minor Source Definition
b. Determining Applicability for New Minor Sources
2. What is a modification and which modifications are subject to
this rule?
a. Definition of ``Modification''
b. Determining Applicability for Modifications
3. What are the minor NSR thresholds?
4. What emissions units and activities at minor sources are
exempt from this rule?
B. Site-Specific Permits
1. What are the requirements for permit applications?
2. What technical reviews must the reviewing authority conduct?
a. Control Technology Review
b. Air Quality Impacts Analysis (AQIA)
3. What are the permit content requirements?
a. Emissions Limitations
b. Monitoring, Recordkeeping and Reporting
c. Other Permit Content Requirements
4. What are the permit issuance procedures, permit term and
public participation requirements?
a. Permit Issuance Process
b. Permit Term
c. Public Participation Requirements
5. What are the provisions for final action on a permit, permit
reopenings, administrative permit revisions and administrative and
judicial review procedures?
a. Final Action on a Permit
b. Permit Reopenings
c. Administrative Permit Revisions
d. Administrative and Judicial Review Procedures
C. General Permits
1. What is a ``General Permit''?
2. What is the process for issuing general permits?
3. For what categories will general permits be issued?
4. What are the permit content requirements for general permits?
5. What is the process that you may use for obtaining coverage
under a general permit?
D. Synthetic Minor Source Permits
E. Case-by-Case MACT Determinations Under Section 112(g) of the
Act
F. Treatment of Existing Minor Sources Under the Final Minor NSR
Program
V. Final Major NSR Program for Nonattainment Areas in Indian Country
A. What are the requirements for major source permitting?
B. How is EPA addressing the lack of available offsets in Indian
country?
1. Economic Development Zone Option
2. Appendix S, Paragraph VI Option
C. How do I meet the statewide compliance certification
requirement of the Act and Appendix S?
D. What are the public participation requirements of this
program?
E. What are the provisions for final action on a permit, permit
reopenings and administrative and judicial review procedures?
1. Final Action on a Permit
2. Permit Reopenings
3. Administrative and Judicial Review Procedures
F. How is EPA revising Appendix S?
VI. Legal Basis, Statutory Authority and Jurisdictional Issues
A. What is the basis for EPA's authority to implement these NSR
programs in Indian country?
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?
VII. Implementation Issues
A. Are Tribes allowed to collect fees for NSR permitting?
B. Who retains enforcement authority in Indian country?
C. What is the implementation schedule for the final rules?
VIII. 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
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I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
IX. Statutory Authority
I. General Information
A. Does this action apply to me?
Entities potentially affected by this final rule include owners and
operators of emission sources in all industry groups 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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Examples of regulated
Category NAICS \a\ entities
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Industry......................... 21111 Oil and gas production/
operations.
211111 Crude petroleum and
natural gas extraction
211112 Natural gas liquid
extraction.
212321 Sand and gravel mining.
22111 Electric power
generation.
221210 Natural gas
distribution.
22132 Sewage treatment
facilities.
23899 Sand and shot blasting
operations.
311119 Animal food
manufacturing.
3116 Beef cattle complex,
slaughter house and
meat packing plant.
321113 Sawmills.
321212 Softwood veneer and
plywood Manufacturing.
32191 Millwork (wood products
mfg).
323110 Printing operations
(lithographic).
324121 Asphalt hot mix.
3251 Chemical preparation.
32711 Clay and ceramics
operations (kilns).
32732 Concrete batching plant.
3279 Fiber glass operations.
331511 Casting foundry (Iron).
3323 Fabricated structural
metal.
332812 Surface coating
operations.
3329 Fabricated metal
products.
33311 Machinery manufacturing.
33711 Wood kitchen cabinet
manufacturing.
42451 Grain elevator.
42471 Gasoline bulk plant.
4471 Gasoline station.
54171 Professional, scientific
and technical services.
562212 Solid waste landfill.
72112 Other (natural gas-fired
boilers).\b\
811121 Auto body refinishing.
Federal government............... 924110 Administration of Air
and Water Resources and
Solid Waste Management
Programs.
State/local/Tribal government.... 924110 Administration of Air
and Water Resources and
Solid Waste Management
Programs.
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\a\ North American Industry Classification System.
\b\ Used NAICS code designated for casino hotels. However, the projected
new and modified sources listed under ``other (natural gas-fired
boilers)'' include not only boilers at casino hotels, but also new
sources listed as ``boilers'' and new Tribal government facilities
assumed to have natural gas fired boilers.
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 final minor and
major NSR programs for Indian country, 40 CFR 49.151 through 49.161 and
through 49.175, 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. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final rule will also be available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this final rule will be
posted in the regulations and standards section of 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.
II. Overview of the Final Rules
The EPA is ensuring that air resources in Indian country will be
protected in the manner intended by the Act by establishing a
preconstruction permitting program for new or modified minor sources,
minor modifications at major sources, and new major sources or major
modifications in nonattainment areas. In addition, we are establishing
a minor source permitting mechanism for major sources that wish to
voluntarily limit emissions to become synthetic minor sources \1\ and
for approving case-by-case maximum achievable control technology (MACT)
determinations.\2\ Prior to this action, there has been no
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Federal permitting mechanism for minor sources in Indian country and
for major sources in areas of Indian country that are designated as not
attaining the NAAQS. These final rules will fill this regulatory gap.
In addition, these rules will provide regulatory certainty to allow for
environmentally sound economic growth in Indian country.
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\1\ 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 FIPs applicable to those reservations until this rule becomes
effective. See 40 CFR 49.139 and 40 CFR part 49, subpart M. However,
after the effective date of this rule, sources seeking synthetic
minor status within the exterior boundaries of Indian reservations
in these three states as well as the rest of Indian country must
apply for synthetic minor source permits under the provisions of
this rule.
\2\ Section 112(g)(2)(B) of the Act provides that you may not
construct or reconstruct a major source of HAPs unless the
appropriate permitting authority determines that MACT for new
sources will be met. If the Administrator has not established a MACT
standard for the source category, the Act requires that MACT be
determined on a case-by-case basis. See Section IV.E. of this
preamble for more information on case-by-case MACT determinations.
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The minor NSR rule applies to new and modified minor sources and to
minor modifications at major sources. New minor sources with a
potential to emit (PTE) equal to or greater than the minor NSR
thresholds or modifications at minor sources with allowable emissions
increases equal to or greater than the minor NSR thresholds must apply
for and obtain a minor NSR permit prior to commencing construction of
the new source or modification. At an existing major source, if a
proposed modification does not qualify as a major modification (which
would be subject to major NSR) based on the actual-to-projected-actual
test, it is considered a minor modification and is subject to the minor
NSR program requirements, if the net emissions increase from the
actual-to-projected-actual test is equal to or exceeds the minor NSR
thresholds listed in Table 1 of section IV.A.3 of this preamble. A
major source with such a minor modification must apply for and obtain a
minor NSR permit prior to commencing construction of the minor
modification. In addition, these sources must install and operate
control technology as determined by the reviewing authority on a case-
by-case basis. At the discretion of the reviewing authority, such
sources may also be required to submit air quality impact analyses as
part of their permit applications. For minor sources, as an alternative
to a site-specific permit, some sources can request for coverage under
a general permit.\3\
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\3\ As described in section IV.C of this preamble, a general
permit is a preconstruction permit that may be applied to a number
of similar emission units or sources. The purpose of a general
permit is to simplify the permit issuance process for similar
facilities so that a reviewing authority's limited resources need
not be expended for site-specific permit development for such
facilities.
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This rule will also allow otherwise major sources in Indian country
to voluntarily accept emission limitations on their PTE to become
``synthetic minor sources.'' Synthetic minor sources may include
sources that emit regulated NSR pollutants and/or hazardous air
pollutants (HAPs) \4\ and any limitations on PTE must be enforceable as
a practical matter (that is, both legally and practicably enforceable)
as defined in this regulation under 40 CFR 49.152(d). 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 has been available in Federal regulations for
Indian country, which discouraged sources that could qualify as
synthetic minors from locating in areas of Indian country outside these
three states. We therefore believe that inclusion of this provision in
the final rules will significantly benefit Tribes by encouraging larger
sources that can qualify as synthetic minors to locate in Indian
country, thereby promoting environmentally sound economic growth.
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\4\ In such cases, these sources will be subject to the minor
NSR regulations under 40 CFR 49.151-49.165 and/or the applicable
area source regulations under 40 CFR part 63. These sources will not
be subject to the major NSR regulations under 40 CFR 52.21 (PSD) and
40 CFR 49.166 through 49.175 (nonattainment major NSR), the major
source MACT regulations under 40 CFR part 63 and/or the title V
operating permit regulations. For information on when a major HAP
source can obtain federally enforceable limits on its potential to
emit, see the policy memorandum titled: ``Potential to Emit for MACT
Standards--Guidance on Timing Issues,'' John S. Seitz, EPA, May 16,
1995.
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Synthetic minor sources will undergo site-specific permitting; that
is, general permits will not be issued to synthetic minor sources.
However, we intend to develop general permits for some common types of
emissions units and minor sources to streamline the permitting process.
The initial establishment of the general permit will include control
technology review and associated emission limits. Thus, sources will
not be required to conduct a case-by-case control technology review
when they apply for coverage under a general permit.
Under the nonattainment major NSR rule, affected sources are
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 an
approved nonattainment major NSR program for a particular pollutant in
their State Implementation Plan (SIP). Sources subject to this rule
must meet requirements for Lowest Achievable Emission Rate (LAER)
control technology, emissions offsets and compliance certification.
We are adopting these final rules after further evaluation of the
proposed provisions and consideration of the public comments. On August
21, 2006 (71 FR 48696), EPA proposed the ``Review of New Sources and
Modifications in Indian Country'' (i.e., Tribal NSR rules). EPA also
held an extensive outreach and consultation period (described in
section III.D of this preamble), along with an extensive public comment
period that ended on March 20, 2007. The comments provided detailed
information specific to Indian country and the final rules incorporate
many of the suggestions we received. We respond to many of these
comments in explaining our rationale for the final rules, which is
described in sections IV through VII.
The final rules adopt many elements of the proposal, but differ
from the proposal in several important respects. For the minor NSR
rule, we had proposed a 30-day public comment period for the initial
establishment of the general permit and also proposed that coverage of
individual sources under general permits would not undergo a public
comment period. In the final rule, to address concerns from Tribes, we
have slightly changed the proposed notification provisions. A source
that wants to request coverage under the general permit will be
required to submit such request to the reviewing authority. At the same
time, the source owner must also submit a copy of this request to the
Tribe in the area where the source is locating. We will also post
notice of the coverage request under a general permit on our Web site.
During our review of your request for coverage under the general
permit, commenters can only notify us of any concerns about the
eligibility of your source to obtain coverage under that general permit
and not on any other issue. For the minor NSR rule, we had also
proposed Plantwide Applicability Limitations (PALs) and project
netting. A minor source PAL would have been a source-wide limitation on
allowable emissions of a regulated NSR pollutant expressed in tons per
year (tpy) that was enforceable as a practical matter. However, we are
not finalizing minor source PALs after consideration of the comments we
received. At this time, we are also not finalizing project netting, the
calculation of the total emissions increase that would result from a
proposed modification by summing both the increases and decreases
resulting from the modification, since we decided not to take final
action on project netting for the major NSR program. (See Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NSR): Aggregation and Project Netting; 74 FR 2376.)
Regarding the proposed list of emissions units and activities that
will be exempted from the minor NSR program, we are finalizing an
amended list. This list takes into consideration the comments received
and the recent
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developments in greenhouse gas regulations. We are also committing to
the development of a supplemental rule to determine if additional
exempted units/activities should be added to the list.
Furthermore, to address commenters' concerns about EPA's ability to
issue minor NSR permits on a timely basis, we have decided to phase in
the implementation dates of these rules. For example, we are delaying
the implementation date of this rule for new and modified true minor
sources by the earlier of 6 months after the general permit for a
source category is published in the Federal Register or 36 months from
the effective date of this rule, that is, September 2, 2014. Existing
true minor sources will not be subject to the requirements of the minor
NSR program until they propose a modification. However, true minor
sources will be required to register within 18 months from the
effective date of this rule, that is, by March 1, 2013, or within 90
days after the source begins operation, whichever is later (see section
VII.C of this preamble for more details on these provisions).
For the major NSR rule, we are not finalizing the proposed Appendix
S, paragraph VI as an option for offset \5\ waivers due to certain
comments raising concerns with implementation of this waiver. Relative
to the compliance certification requirement,\6\ we are finalizing a
state-wide compliance requirement consistent with section 173(a)(3) of
the Act.
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\5\ Under the CAA, emissions 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. See section
173(a)(1) of the Act.
\6\ Also under the CAA, a permit applicant must certify 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. See section 173(a)(3) of the Act.
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We are finalizing the minor NSR and the nonattainment major NSR
permit programs pursuant to section 110(a)(2)(C), part D of title I and
section 301(d) of the Act.
III. Background
A. What is 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 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
title 40 of the Code of Federal Regulations (CFR), Sec. Sec. 51.165,
51.166, 52.21 and 52.24 (40 CFR 51.165, 51.166, 52.21 and 52.24) and 40
CFR part 51, Appendices S and W.
For newly constructed, ``greenfield'' sources, the determination of
whether a 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 both attainment and nonattainment
areas. For nonattainment areas, these thresholds are 100 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.\7\ A new
source with a PTE at or above the applicable threshold amount
``triggers,'' or is subject to, major NSR.
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\7\ Sources listed in section 169(l) of the Act are subject to a
threshold of 100 tpy (see 40 CFR 52.21(b)(1)(i)(a)). All other
sources are subject to a 250 tpy threshold. (See 40 CFR
52.21(b)(1)(i)(b).) In addition, under the recently finalized
``Greenhouse Gas Tailoring Rule,'' greenhouse gases will be phased
into the PSD program with higher applicability thresholds (75 FR
31514).
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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 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) for PSD or 40 CFR part 51, Appendix S, paragraph
II.A.10 for nonattainment major NSR); and
(3) The increase in emissions resulting from the change must result
in a significant net emissions increase. In other words, when the
increase from the project is added to other contemporaneous increases
and decreases in actual emissions \8\ 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) for PSD or 40 CFR part 51, Appendix S,
paragraph II.A.10 for nonattainment major NSR).
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\8\ 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 40
CFR 52.21(b)(3)(ii) for PSD. For nonattainment major NSR, see, 40
CFR part 51, Appendix S, paragraph II.A.6(ii).
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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 lowest
achievable emission rate. The lowest achievable emission rate 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
proposed major 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 matter less than or equal to 10 microns in aerodynamic
diameter (PM10), the more polluted the air is where the
source is locating or expanding, the greater the required offset ratio
is. 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 nonattainment major 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 nonattainment major NSR permit applicant
must demonstrate that all other major 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.
[[Page 38752]]
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 the NAAQS.
Parts C and D address the major NSR program for major sources and the
permitting program for minor 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 source means a source whose PTE is lower
than the major NSR applicability threshold for a particular pollutant
as defined in the applicable nonattainment major NSR program or PSD
program.
States must develop minor NSR programs to attain and maintain the
NAAQS and the Federal requirements for state minor NSR programs are
outlined in 40 CFR 51.160 through 51.164. These Federal requirements
for minor NSR programs are considerably less prescribed than those for
major sources and as a result there is a larger variation of
requirements in the state minor NSR programs.
Furthermore, 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 source construction activities in Indian country.
B. What is the basis for EPA's authority to implement CAA programs in
Indian country?
The Tribal Authority Rule (TAR) authorizes eligible Indian Tribes
to implement EPA-approved nonattainment major 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. This is accomplished when Indian
Tribes develop Tribal Implementation Plans (TIPs), which are plans
similar to SIPs. If a Tribe develops a TIP to implement a CAA program,
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
responsible for implementing that particular program. However, if
Indian Tribes are unable or choose not to include a CAA program such as
NSR in a TIP, we will implement the program under these rules.
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 (DC Cir. 2000), cert. den., 532 U.S.
970 (2001).
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\9\ We believe that in the context of programs under the Act,
states generally lack the authority to regulate air quality in
Indian country as defined in 18 U.S.C. 1151. 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 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.
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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, 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. 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 are
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 state
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
[[Page 38753]]
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 without unreasonable delay such FIP
provisions as are 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.
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
checker-boarding of Indian 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 EPA-approved 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) of the Act is to ``improve the environmental
quality of the air within Indian country in a manner consistent with
the EPA Indian Policy'').
Therefore, with these final rules, we will 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 country
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 non-reservation
areas over which a Tribe has jurisdiction, generally including all
areas of Indian country (63 FR 7258-7259).
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).
C. What is the status of the NSR air quality programs in Indian
country?
No Tribe is currently administering an EPA-approved PSD program.
Therefore, EPA has been implementing a FIP for major sources in
attainment areas and has been issuing PSD permits in Indian country.
See 40 CFR 52.21. For the nonattainment major NSR program or the minor
NSR program in Indian country, no Tribes have been administering an
EPA-approved nonattainment major NSR program and only a few Tribes have
been administering EPA-approved minor NSR programs.\10\ In addition,
there has been no FIP in place to implement these programs until now.
Hence, there was a regulatory gap in Indian country. This final rule
will allow us to address that gap and more fully implement the NSR
program in Indian country. We are finalizing 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 and these programs will continue to apply
except where we explicitly approve an implementation plan for such
programs for a specific area in Indian country.\11\ The requirements
finalized under these rules do not apply to State permitting programs.
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\10\ For example, the St. Regis Mohawk Tribe has in place an
EPA-approved TIP that includes provisions for minor NSR and
synthetic minor permitting (See http://www.srmtenv.org/pdf_files/airtip.pdf). In addition, the Gila River Indian Community has
developed a TIP that includes a minor NSR program (See http://www.epa.gov/region9/air/actions/gila-river.html).
\11\ 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.
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As we stated previously, sections 301(d) and 110(o) of the Act give
the Tribes the authority to develop their own Tribal programs and we
encourage eligible Tribes to develop their own minor and nonattainment
major NSR programs for incorporation into TIPs. However, we understand
that not all Tribes have the resources to design and implement NSR
programs; therefore, in the absence of an EPA-approved program, this
final rulemaking provides a Federal program for implementing the minor
NSR and the major NSR program in nonattainment areas of Indian country.
Tribes may use this program as a model if they choose to develop their
own Tribal Implementation plans and obtain our approval.
Since, in most cases and in the absence of an EPA-approved program,
it would be neither practical nor administratively feasible for us to
develop and implement a separate program for each area of Indian
country,; these final rules will 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. In addition, these rules will ensure that any economic growth
occurring in Indian country will be in harmony with the preservation of
Clean Air Act resources.
D. What consultation and outreach has been done with Tribal leaders and
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 these rules.
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. In addition,
53 percent of the Tribal leaders also requested direct phone calls or
conference calls to discuss the subject and 16 percent of the
respondents requested face-to-face consultation. Of these, 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
[[Page 38754]]
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. We also participated in numerous national and regional forums
including the National Tribal Forums sponsored by the ITEP, two
National Tribal Air Association meetings and 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 these rules. 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.\12\
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\12\ This organization has since changed its name to the
National Association of Clean Air Agencies (NACAA).
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We considered feedback from all stakeholders and proposed the
``Review of New Sources and Modifications in Indian Country'' rules on
August 21, 2006 (71 FR 48696). However, Tribal government
representatives expressed concerns that the long gap between
consultation/outreach and action by the Agency undermined the
effectiveness of these interactions. Thus, after proposal of the rule,
we started an extensive outreach program in the years 2006 and 2007 to
inform and seek comments from the public, especially Tribes.
We again sent over 500 letters to Tribal leaders to inform them
about the proposal. We did not receive any formal responses to these
letters and did not receive any request for formal consultation from
the Tribes, but they contacted us either through e-mail or phone calls
and asked to keep them informed of our progress through e-mail,
meetings, training sessions, newsletters and/or Web sites. To enhance
understanding of the proposal and what it would mean for Indian
country, we supplemented the 2006 outreach efforts by holding four
training sessions using Web conferencing not only for Tribes, but also
for EPA Regional Offices, air program managers and Tribal
organizations. We also held training sessions in 2006 and at the
request of the Tribes for interested Tribal and other environmental
professionals at the Pechanga Band of Luise[ntilde]o Indians in
California and Salt River Pima-Maricopa Indian Community in Arizona. In
addition, we held training sessions for all interested parties at EPA
Region V's Tribal Air Meeting in Illinois (2006) and EPA's Region X's
office in Washington (2007).
We participated in numerous national and regional forums including
the forums sponsored by the Institute of Tribal Environmental
Professionals, the National Tribal Air Association and at meetings with
Tribal consortia, such as the United Southern and Eastern Tribes. We
also interacted with state and local air pollution agencies during this
outreach period and had meetings with the NACAA.
Furthermore, we extended and reopened the comment period for the
proposed rules twice (from November 20, 2006 to January 19, 2007 and
from January 19, 2007 to March 20, 2007) at the request of the Tribes.
During this time, we also recorded and presented a webcast video for
all interested stakeholders to train more environmental professionals
about the NSR program and the rules themselves.
To address the concern about the long gap between the proposal and
finalization of the rules and to ensure that the Tribes are aware of
the proposed rules and their provisions, we held a series of meetings
in 2010 with the National Tribal Operations Committee, interested
Regional Tribal Operations Committees and interested Tribal
environmental staff. In 2011, we sent letters to all Tribes to ask them
about their interest in an additional round of consultation and
outreach and, based on their responses, we have conducted consultation
and outreach meetings with several Tribes. These meetings included a
face-to-face meeting in Denver, Colorado with a number of Tribes within
EPA Region VIII and four conference calls with Tribes from across the
country.
After these rules are promulgated, we intend to conduct similar
outreach efforts with all stakeholders, including extensive training to
facilitate easier implementation of the rules.
IV. Final Minor NSR Program for Indian Country
This rulemaking finalizes provisions for a minor NSR program in
Indian country, codified at 40 CFR 49.151 through 49.165. The program
includes requirements for preconstruction review for minor sources and
minor modifications, general permits and synthetic minor source
permits. The minor NSR program also serves as a mechanism for case-by-
case MACT determinations and establishes a registration system for
existing minor sources to improve the Tribal source emission inventory.
Our primary goal in developing this program 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 sources in Indian country that is
comparable to similar programs in neighboring states in order to create
a more level regulatory playing field for owners and operators within
and outside of Indian country.
This final rulemaking is not intended to establish a new set of
minimum criteria that a Tribe or a state would need to follow in
developing its own minor source permitting program. Rather, these rules
simply represent how we will implement the program in Indian country in
the absence of an EPA-approved Tribal implementation plan. However, if
a Tribe is developing its own program, this can serve as one example of
a program that meets the objectives and requirements of the Act. This
final minor source permitting program addresses, on a national level,
many environmental and regulatory issues that are specific to Indian
country. We understand that different Tribes may face different issues
and may therefore, like states developing SIPs, choose to develop TIPs
tailored to their individual Tribal circumstances and needs. This rule
will allow Tribes to develop their own TIPs, consistent with the
overarching requirement that the Tribe ensure that the TIP will not
interfere with any applicable requirement of the CAA.
A. General Provisions Under the Minor NSR Program
1. What is a minor source and which minor sources are subject to this
rule?
a. Minor Source Definition
We are finalizing under 40 CFR 49.152 that a minor source, for the
purposes of this rule, means a source, not including the exempt
emissions units and activities listed in Sec. 49.153(c), that has the
potential to emit regulated NSR pollutants in amounts that are less
than the major source thresholds in 40 CFR Sec. 49.167 or Sec. 52.21,
as applicable, but equal to or greater than the minor NSR thresholds in
Sec. 49.153. The potential to emit includes fugitive emissions, to the
extent that they are quantifiable, only if the source belongs to one of
the source categories listed in 40 CFR part 51, Appendix S, paragraph
II.A.4(iii) or 52.21(b)(1)(iii), as applicable.
[[Page 38755]]
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 hours (which is the number of hours in a
year) and dividing by 2,000 (which is the number of pounds in a ton).
If a source is restricted by permit conditions that limit its emissions
and are enforceable as a practical matter (as defined in 40 CFR
49.152), its PTE (and allowable emissions) are calculated based on the
permit restrictions.
For the NSR program in Indian country, the major source thresholds
are defined in the PSD program (see 40 CFR 52.21) and in the
nonattainment major NSR program being finalized in this action (see 40
CFR 49.167), as applicable. These thresholds may differ in attainment
areas and nonattainment areas for the same pollutant. For example, in
attainment areas the major source threshold for nitrogen oxides
(NOX) 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 10 tpy in an extreme ozone
nonattainment area to 100 tpy in a marginal ozone nonattainment area
(see 40 CFR part 51, Appendix S, paragraph II.A.4(i)). The final rule
establishes minor NSR thresholds as discussed in section IV.A.3 of this
preamble.
This minor source definition differs from the definition in the
proposal by providing the following clarifications. We clarified that
de minimis exceptions (i.e., minor NSR thresholds) and insignificant
source categories or activities being finalized under this rule are not
considered minor sources for purposes of this rule and eliminated the
sentence in the proposed definition that stated the term ``minor
stationary source applies independently to each regulated NSR pollutant
that the source has the potential to emit.''
A few commenters asked us to accommodate in the minor source
definition references to the de minimis exceptions (i.e., minor NSR
thresholds) and insignificant source categories or activities being
finalized under this rule and we believe it is appropriate to do so. In
addition, since the source can only be a minor source if the PTE of all
regulated NSR pollutants for that source are less than the
corresponding major source thresholds, we deleted from the definition
the statement that read: ``the term `minor stationary source' applies
independently to each regulated NSR pollutant that the source has the
potential to emit.''
Furthermore, we have amended the minor source definition to specify
that the PTE of a source includes fugitive emissions, to the extent
that they are quantifiable, only if the source belongs to one of the
source categories listed in 40 CFR 52.21(b)(1)(iii) (for PSD) and 40
CFR part 51, Appendix S, paragraph II.A.4(iii) (for nonattainment major
NSR) of the major NSR rules pursuant to section 302(j) of the Act. This
action is explained further in the next section.
b. Determining Applicability for New Minor Sources
As stated in the proposal, in all NSR applicability determinations,
you must evaluate each regulated NSR pollutant individually because the
area where your source is located may be attainment for some pollutants
and nonattainment for others. For a given new source or 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.
For proposed new sources, the first step is to calculate the
potential to emit of each regulated NSR pollutant. The second step is
to determine whether the source is subject to the applicable major NSR
program (i.e., 40 CFR 49.167 or 40 CFR 52.21 for nonattainment and
attainment areas, respectively) with respect to each regulated NSR
pollutant. Under the nonattainment major NSR program, this step is
repeated for each regulated NSR pollutant the source has the potential
to emit. Under the PSD program, if the source's potential to emit is
greater than the major source threshold for one pollutant, then PSD
applies to any other regulated NSR pollutants for which the potential
to emit is above the level defined as ``significant'' in the PSD
regulations.\13\ The significance level is typically lower than the
major source threshold; for example, the significance level for
PM10 is 15 tpy while the major source threshold is 100 or
250 tpy.
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\13\ The significance levels are defined in 40 CFR 52.21(b)(23).
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If your proposed new source is not subject to major NSR for a
particular regulated NSR pollutant, the next step is to determine
whether the source is subject to the requirements of this minor NSR
rule for that pollutant, i.e., if the source's potential to emit of the
pollutant is equal to or greater than the applicable minor NSR
threshold listed in Table 1 of this final rule. These steps are
repeated for every regulated NSR pollutant the source has the potential
to emit. However, for a source to be considered a minor source, the PTE
of all regulated NSR pollutants must be less than the corresponding
major source threshold.
In determining if the source's potential to emit of a pollutant is
equal to or greater than the applicable minor NSR threshold listed in
Table 1 of this final rule, fugitive emissions will be included to the
extent that they are quantifiable, only if the source belongs to one of
the source categories listed pursuant to section 302(j) of the Act
(i.e., the source categories listed in 40 CFR part 51, Appendix S,
paragraph II.A.4(iii) and in 40 CFR 52.21(b)(1)(iii)).
We are finalizing this provision after seeking comment in the
proposal as to whether in calculating the emission levels for
applicability purposes, you should include fugitive emissions, to the
extent 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.
Commenters who supported the approach of including fugitive
emissions for all sources believed that the mandate of the minor NSR
program is based on protection of air quality throughout the nation.
Additionally, they believed that fugitive emissions are a large
proportion of the air pollutants in Indian country and therefore EPA
must require fugitive emissions to be included in determining
applicability. However, many commenters argued that fugitive emissions
at minor sources are minuscule and a requirement to include them would
be excessive. Some of these commenters believed that the costs for
complying with minor NSR for fugitive emissions could potentially be
substantial and that fugitive emissions are inherently difficult to
quantify. In addition, one commenter added that fugitive emissions
should only be included for source categories listed under section
302(j) of the Act, citing an extensive analysis of the history of
regulating fugitive emissions under NSR.
Based on the comments received, we are finalizing provisions that
require including fugitive emissions in the minor NSR applicability
determination, to the extent that they are quantifiable, only if the
source belongs to one of the source categories listed pursuant to
section 302(j) of the Act (i.e., the source categories listed in 40 CFR
part 51, Appendix S, paragraph II.A.4(iii) and in 40 CFR
52.21(b)(1)(iii)), for the following reasons.
For the source categories listed pursuant to section 302(j) we have
historically identified these source
[[Page 38756]]
categories as having the potential to significantly degrade air quality
and it has been demonstrated to be reasonable and cost effective for
sources in these categories to quantify and include their fugitive
emissions in applicability determinations. We will continue to require
these source types to quantify fugitive emissions in determining
applicability of minor NSR. While some other source categories also
contribute significantly to air pollution, we have thus far not
required counting their fugitive emissions in determining applicability
because of unreasonable economic costs associated with doing so (See 54
FR 48879).
We have the discretion under CAA section 110(a)(2)(c) to follow a
similar approach in the minor source program as long as the NAAQS are
protected and we are using that discretion because we believe it would
be unreasonably cumbersome and costly to expect the wide variety of
minor source types not on the section 302(j) list to be able to
quantify their fugitive emissions.
Without discounting the fact that fugitive emissions from
individual sources or source categories may be significant contributors
to air pollution, we believe that, as a whole, the air quality impacts
of emissions from the number of sources that would likely be excluded
from minor NSR because of exclusion of their fugitive emissions are
likely to be small and therefore not commensurate with the regulatory
and economic burden we would impose on minor sources in Indian country
if we were to require the estimation of fugitive emissions for all
minor sources and subject them to permitting based on those emissions.
This is especially the case since we are developing a program that
applies generically to sources in Indian country regardless of whether
fugitive emissions from major or minor sources are a significant source
of air pollution in a specific location. Given this diversity and the
potential costs, our approach strikes a reasonable balance.
Finally, this approach in our final rule is consistent with how
fugitive emissions are treated in some state minor source programs.
Therefore, we are finalizing the new minor source applicability
requirements mainly as proposed and under 40 CFR 49.153(a).
2. What is a modification and which modifications are subject to this
rule?
a. Definition of ``Modification''
Under this final rule, a modification means any physical or
operational change that would cause an increase in the allowable
emissions of a minor source or an increase in the actual emissions
(based on the applicable test under the major NSR program) of a major
source for any regulated NSR pollutant or that would cause the emission
of any regulated NSR pollutant not previously emitted. Allowable
emissions of a minor source include fugitive emissions, to the extent
that they are quantifiable, only if the source belongs to one of the
source categories listed in 40 CFR 52.21(b)(1)(iii) for PSD and 40 CFR
part 51, Appendix S, paragraph II.A.4(iii) for nonattainment major NSR.
The following exemptions apply:
A physical or operational change does not include routine
maintenance, repair or replacement.\14\
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\14\ ``For over two decades,'' EPA has interpreted ``the RMRR
exclusion as limited to de minimis circumstances.'' New York v. EPA,
443 F.3d 880, 884 (DC Cir. 2006), cert. denied 127 S. Ct.2127 (2007)
(citing Alabama Pow. Co, v. Costle, 636 F.2d 323 (DC Cir 1980)).
EPA's historic policy is that ``in determining whether proposed work
at an existing facility is `routine,' EPA makes a case-by-case
determination by weighting the nature, extent, purpose, frequency
and cost of the work, as well as other relevant factors, to arrive
at a common-sense finding.'' Memorandum from Don R. Clay, Acting
Assistant Administrator, Office of Air and Radiation, U.S. EPA,
``Applicability of Prevention of Significant Deterioration (PSD) and
New Source Performance Standards (NSPS) Requirements to the
Wisconsin Electric Power Company (WEPCO) Port Washington Life
Extension Project'' (Sep. 9, 1988) (http://www.epa.gov/region07/air/nsr/nsrmemos/wpco2.pdf). EPA further explained these factors in
letter dated May 23, 2000 from Francis X. Lyons, Regional
Administrator, Region V, U.S. EPA, to Henry Nickel, Counsel for the
Detroit Edison Company, Hunton & Williams (http://www.epa.gov/region07/air/nsr/nsrmemos/detedisn.pdf).
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An increase in the hours of operation or in the production
rate is not considered an operational change unless such change is
prohibited under any permit condition that is enforceable as a
practical matter (as defined in 40 CFR 49.152).
A change in ownership at a stationary source.
The emissions units and activities listed in 40 CFR
49.153(c).
We are finalizing this definition under 40 CFR 49.152 after
requesting comments as to whether the term modification should be based
on an increase in allowable emissions or actual emissions.
Commenters who supported our proposal to adopt a definition of the
term ``modification'' based on an increase in allowable emissions
(allowable-to-allowable test) believed that this test would be a
simpler test than the actual-to-projected-actual test that applies to
the major NSR program; it will be less costly, less time consuming and
less complicated for Tribal minor sources and it is legal under the CAA
and consistent with some state and local minor NSR programs that we
have approved in SIPs pursuant to section 110 of the Act. On the other
hand, commenters who opposed the allowable emissions test believed that
this test is less stringent than the alternative tests and/or it is
contrary to the Act and recent court decisions. They also believed that
the allowable-to-allowable test will be inconsistent with the major NSR
program and it does not ensure that the NAAQS are achieved (i.e., it
could lead to unreviewed increases in emissions that would be
detrimental to air quality). Furthermore, some of these commenters
believed that an allowable-to-allowable test will not capture those
sources that escape major NSR review and suggested the use of an
actual-emissions-based test which could include an actual-to-potential,
actual-to-projected-actual or an actual-to-future-actual test.
For the most part, we agree with those commenters that endorsed the
concept of defining the term modification for the minor NSR program as
a change in allowable emissions. As we stated in the proposal (71 FR
48696), we evaluated the three basic types of applicability tests
(actual-to-potential, actual-to-projected-actual and allowable-to-
allowable) and determined that the allowable-to-allowable test is the
most suitable for Indian country because, apart from being a simple
test, it will help with implementation of the program for the minor
sources in Indian country that, to date, have little experience with
air regulations. Since minor sources in Indian country have been
unregulated until now, many of these sources have not kept track of
actual emissions data, making the initial application of any test based
on actual emissions virtually impossible. In addition, we understand
that some state minor NSR programs use an allowable-to-allowable test
which would make this program for Indian country consistent with the
programs in these states.
In addition and as we discussed in the proposal preamble, we
believe that we have the discretion to use an allowable-to-allowable
test for this minor NSR program because the statutory basis for minor
NSR is section 110(a)(2)(C) of the Act. By contrast, parts C and D of
title I of the Act provide the statutory basis for the major NSR
program and refer to section 111(a)(4) of the Act (the definition of
``modification'' for purposes of the new source performance standards
(NSPS)) in defining ``modification'' for purposes of the major NSR
program. The DC Circuit Court of Appeals has ruled that, based on the
wording of the definition of
[[Page 38757]]
``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 v. U.S. EPA, 413 F. 3d 3 (DC Cir. 2005). However,
that reasoning based on the definition in section 111 of the Act does
not apply to minor source permitting 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.'' Thus, we
believe that we have discretion in defining the term for the minor NSR
program in Indian country and we do not believe that the decision of
the DC Circuit Court of Appeals applies to the minor NSR program.
To address the concerns of those commenters who expressed that the
allowable-to-allowable test is less stringent than an actual-emissions-
based test or that this test is at odds with section 110(a)(2)(C) of
the Act, we commit to conducting a study to collect actual emissions
data for a period of 5 years from the minor source registration program
\15\ we are finalizing with this rule to assess the feasibility of
implementing an actual-emissions-based test. If our study concludes
that adequate actual emissions data are available for minor sources, we
will consider undertaking a rulemaking to adopt an actual-emissions-
based test within 2 years from the end of the 5-year study period.
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\15\ We are requiring minor sources to register within 18 months
from the effective date of this rule. See section IV.F of this
preamble for more details about the registration program.
---------------------------------------------------------------------------
Furthermore, because of our concern that some minor modifications
at major sources might escape review under the minor NSR program as
proposed, we are finalizing that the applicability of the minor NSR
program to minor modifications at major sources be based on the actual-
to-projected-actual test used in the applicable major NSR program.
Thus, in the final rule, if a proposed modification at an existing
major source does not qualify as a major modification (which would be
subject to major NSR) based on the actual-to-projected-actual test, it
is considered a minor modification and is subject to the minor NSR
program if the net emissions increase from the actual-to-projected-
actual test is equal to or exceeds the minor NSR thresholds listed in
Table 1 in section IV.A.3 of this preamble. The rationale for using an
allowable-to-allowable test for modifications at minor sources in
Indian country--that actual emissions data are not available for minor
sources and an actual-emissions-based test would be beyond the
capabilities of many minor sources--does not apply to modifications at
major sources. We believe this approach will be simpler and more
efficient than an approach requiring the use of a second, allowable-to-
allowable test for the minor NSR program. Hence, we are revising the
definition of modification under 40 CFR 49.152 accordingly.
We are also making a change to the definition of modification
related to the treatment of fugitive emissions. Now this definition
includes provisions to account for fugitive emissions, to the extent
they are quantifiable, only if the source belongs to one of the source
categories listed pursuant to section 302(j) of the Act (see previous
section for details on why we are including fugitive emissions in the
minor NSR applicability determinations).
b. Determining Applicability for Modifications
To determine if your proposed physical or operational change is
subject to the minor NSR program (see final 49.153(a)(1)(ii) and
49.153(b)), you must first determine whether the change is subject to
the applicable major NSR program (i.e., 40 CFR part 51, Appendix S or
40 CFR 52.21 for nonattainment and attainment areas, respectively). For
physical or operational changes at your existing major source, you
would determine whether the modification qualifies as a major
modification using the procedures in the applicable major NSR program
(i.e., the actual-to-projected-actual applicability test). In addition
and as discussed in the previous section, if the change does not
qualify as a major modification under that test, it is considered a
minor modification if the net emissions increase from the actual-to-
projected-actual test is equal to or greater than the minor NSR
thresholds listed in Table 1 of section IV.A.3 of this preamble. A
major source with such a minor modification must apply for and obtain a
minor NSR permit prior to commencing construction of the minor
modification.
For a physical or operational change at your existing minor source,
you will first determine if the change qualifies as a major source by
itself (e.g., when a source owner adds one or more large emissions
units to his minor source) using the provisions of the applicable major
NSR program (see, e.g., 40 CFR 52.21(b)(1)(i)(c)). If it is, then the
change is subject to the applicable major NSR program.
For modifications at existing minor sources that do not qualify as
major sources by themselves, the total increase in allowable emissions
resulting from the proposed change at your source, including fugitive
emissions to the extent they are quantifiable, only if the source
belongs to one of source categories listed pursuant to section 302(j)
of the Act, would be the sum of the following:
For each new emissions unit that is to be added, the
emissions increase would be the potential to emit 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. However, this may not be a negative value. If the
allowable emissions of an emissions unit would be reduced as a result
of the change or replacement, use zero in the calculation.
For each unpermitted emissions unit (i.e., a unit without
any enforceable permit conditions) that is to be changed or replaced,
the emissions increase would be the allowable emissions of the unit
after the change or replacement \16\ minus the potential to emit prior
to the change or replacement.\17\ However, this may not be a negative
value. If the allowable emissions of an emissions unit would be reduced
as a result of the change or replacement, use zero in the calculation.
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\16\ The minor NSR permit for the modification must include an
annual allowable emissions limit for each affected emissions unit
per final 40 CFR 49.155(a)(2). The post-change allowable emissions
limit can be the uncontrolled potential to emit or can be lower
depending on the outcome of the reviewing authority's control
technology review as well as any other restrictions that you propose
for the emissions unit (e.g., for purposes of NSR applicability).
\17\ It is necessary to use potential to emit since these
emissions units will not have an allowable emissions limit prior to
the change.
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If the total increase in allowable emissions resulting from your
proposed modification at your minor source causes an increase in
allowable emissions for one or more regulated NSR pollutants above the
applicable minor NSR threshold (see Table 1 in section IV.A.3 of this
preamble), the modification is subject to this program. See final 40
CFR 49.153(b).
If the total allowable emissions increase from your modification is
less than the corresponding minor NSR threshold listed in Table 1, the
modification is not subject to this minor NSR rule. Under this
scenario, if a permitted allowable emissions limit of one or more
emissions units increases, you must apply for an administrative permit
revision to amend the allowable
[[Page 38758]]
emissions limit for that emissions unit(s). See section IV.B.5 of this
preamble or final 40 CFR 49.153(a)(2) and 49.159(f) for more
information on administrative permit revisions.
At proposal, we asked for comments as to whether minor sources in
Indian country should be allowed to take credit for concurrent
emissions reductions that would result from a proposed modification
under the concept commonly known as ``project netting.'' \18\
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\18\ As proposed, ``project netting'' means that both increases
and decreases in allowable emissions are summed when determining the
total emission increase that would result from a proposed
modification.
---------------------------------------------------------------------------
Several commenters supported our proposal to allow ``project
netting'' in the minor NSR program for determining whether a proposed
project qualifies as a modification. However, we are not finalizing the
``project netting'' concept at this time to be consistent with our
position in the major NSR program (See final rule titled: ``Prevention
of Significant Deterioration (PSD) and Nonattainment New Source Review
(NSR): Aggregation and Project Netting'' January 15, 2009 (74 FR
2376)).
3. What are the minor NSR thresholds?
As proposed, the ``minor NSR thresholds'' in this final rule
establish cutoff levels for which sources with emissions lower than the
thresholds would typically be exempt from the minor NSR rules (see
Table 1 and final 40 CFR 49.153).
Various commenters supported the development of thresholds and no
comments were received against this concept. However, some commenters
wanted us to finalize less [e.g., volatile organic compounds (VOC) and
carbon monoxide (CO)] or more stringent thresholds (for minor
modifications) while other commenters expressed concern that the source
distribution analysis that we used to support the proposed thresholds
did not accurately reflect the number of sources currently in existence
in Indian country.
Table 1--Minor NSR Thresholds \a\
------------------------------------------------------------------------
Minor NSR Minor NSR
thresholds for thresholds for
Regulated NSR pollutant nonattainment attainment
areas (tpy) areas (tpy)
------------------------------------------------------------------------
Carbon monoxide (CO).................... 5 10
Nitrogen oxides (NOX)................... 5 \b\ 10
Sulfur dioxide (SO2).................... 5 10
Volatile Organic Compounds (VOC)........ 2 \b\ 5
PM...................................... 5 10
PM10.................................... 1 5
PM2.5................................... 0.6 3
Lead.................................... 0.1 0.1
Fluorides............................... NA 1
Sulfuric acid mist...................... NA 2
Hydrogen sulfide (H2S).................. NA 2
Total reduced sulfur (including H2S).... NA 2
Reduced sulfur compounds (including H2S) NA 2
Municipal waste combustor emissions..... NA 2
Municipal solid waste landfill emissions NA 10
(measured as nonmethane organic
compounds).............................
------------------------------------------------------------------------
\a\ 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 apply.
\b\ In extreme ozone nonattainment areas, section 182(e)(2) of the Act
requires any change at a major source that results in any increase in
emissions to be subject to major NSR permitting. In other words, any
changes to existing major sources in extreme ozone nonattainment areas
are subject to a ``0'' tpy threshold, but that threshold does not
apply to minor sources.
After consideration of comments received and further evaluation of
the proposed thresholds, we are finalizing the minor NSR thresholds as
proposed, except for the NOX and VOC thresholds in extreme
ozone nonattainment areas. We are amending the proposed ``0'' tpy
NOX and VOC thresholds for the minor NSR program in extreme
ozone nonattainment areas because we believe that these thresholds,
while required under section 182(e)(2) of the Act and appropriate as
significance levels for major sources located in extreme ozone
nonattainment areas, are not appropriate for minor sources. Therefore,
we are finalizing minor NSR thresholds for NOX and VOC in
extreme nonattainment areas as 5 and 2 tpy respectively. We also want
to clarify, as one commenter suggested, that the PM2.5
threshold applies to direct PM2.5 emissions and does not
represent the contribution of its precursors (e.g., SO2 or
NOX).
Furthermore, we continue to believe that the sources with emissions
below the thresholds will be inconsequential to attainment or
maintenance of the NAAQS because the national source distribution
analysis in the proposal (71 FR 48702) applied to the national source
distribution at the time (sources inside and outside of Indian country)
and not only to estimates of the possible number of existing sources in
Indian country. For each pollutant, we found that only around 1 percent
(or less) of total emissions would be exempt from review under the
minor NSR program. At the same time, the thresholds would promote an
effective balance between environmental protection and source burden
because anywhere from 42 percent to 76 percent of sources (depending on
the pollutant) would be too small to be subject to preconstruction
review.
In addition, we believe that such thresholds are included in many
of the minor NSR programs in surrounding states, which will allow us to
begin leveling the playing field with the surrounding state programs
and will result in a more cost-effective program by reducing the burden
on sources and reviewing authorities.
These thresholds, however, are neither the most stringent nor the
least stringent of the levels found in existing state minor NSR rules
since they represent a reasonable balance between environmental
protection and economic
[[Page 38759]]
growth. We did not want the thresholds to be so high that they were not
environmentally protective or so low that they ensured environmental
protection at the cost of discouraging economic growth. Nevertheless,
to address any concerns about the stringency of the thresholds, we will
evaluate the information we collect as part of the registration
provisions for minor sources we are finalizing under this rule (see
section IV.F of this preamble for more information) and will consider
changing the minor NSR thresholds as appropriate.\19\
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\19\ We might also consider proposing thresholds for greenhouse
gases and in accordance with any future rulemakings to address small
greenhouse gas sources as outlined in the rule titled: ``Prevention
of Significant Deterioration and Title V Greenhouse Gas Tailoring
Rule'' (75 FR 31514).
---------------------------------------------------------------------------
4. What emissions units and activities at minor sources are exempt from
this rule?
Certain emissions units and activities at minor sources either do
not emit regulated NSR pollutants to the ambient air or emit these
pollutants in negligible amounts. Therefore, under 40 CFR 49.153(c), we
are finalizing a list of units and activities at minor sources that are
exempt from this rule:
1. Mobile sources;
2. Ventilating units for comfort that do not exhaust air pollutants
into the ambient air from any manufacturing of other industrial
processes;
3. Noncommercial food preparation;
4. Consumer use of office equipment and products;
5. Janitorial services and consumer use of janitorial products;
6. Internal combustion engines used for landscaping purposes; and
7. Bench scale laboratory activities, except for laboratory fume
hoods and vents.
This list we have finalized is an amended list from the exempted
units and activities we proposed since we are not exempting air-
conditioning units for comfort and heating units for comfort until we
can study the implications of the new rules for greenhouse gases (see
Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule, 75 FR 31514) on these units. In addition and also in
light of a comment received, we are deleting the last exemption in the
proposed list of exemptions (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) because we agree with the commenter that argued that this
exemption can be confusing and redundant.
Furthermore, we would like to clarify that the list of exemptions
included in the proposal's regulatory text included mobile sources,
although mobile sources were inadvertently left out of the exempted
units and activities discussion in the proposal's preamble. Therefore,
we have added mobile sources to the list in this preamble and have
decided to keep mobile sources in the list of exempted units and
activities in this final rule because we continue to believe that it is
not appropriate to include mobile sources in a stationary source
permitting program and we did not receive any comments suggesting that
mobile sources should be removed from the list of exemptions.
Nevertheless, many commenters noted that state and local agencies
often exempt many more types of emissions units and activities and
suggested that we should expand the exemptions included in the final
minor NSR rule. Some of these commenters also argued that failure to
expand the list of exemptions will significantly burden operators of
minor sources wishing to locate in Indian country, especially the oil
and gas industry and will thereby disadvantage Tribes.
In light of the comments received, we agree that the list of
exempted units and activities might need to be expanded. Therefore, we
intend to propose and finalize a separate rule to seek public comment
on the issue of whether additional units or activities should be
exempted from the minor NSR program.
B. Site-Specific Permits
1. What are the requirements for permit applications?
As the owner or operator of a proposed new minor source or a
proposed modification that is subject to the rule (see 40 CFR 49.154),
you must submit a complete application to the reviewing authority
requesting a minor NSR permit specific to your source (unless you are
seeking a ``general permit''). 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)).
Your application must also 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 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 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 provide
the pre-change PTE. For the post-change allowable emissions for these
units, you may provide the unrestricted post-change PTE or may propose
a lower level of allowable emissions. The allowable emissions for any
emissions unit are calculated considering any emissions limitations
that are enforceable as a practical matter on the unit's PTE. In
calculating these emissions levels for applicability purposes you
should include fugitive emissions, to the extent they are quantifiable,
only for source categories listed pursuant to section 302(j) of the Act
(and as described in sections IV.A.1 and IV.A.2 of this preamble).
Furthermore, 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 for 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 emissions limitations or work practice requirements to which
any affected emissions units are subject.
No commenters expressed concern with the proposed permit
application requirements described above except for the concept of
PAL.\20\ One commenter believed such provisions will not ensure
compliance with the statutory mandates applicable to minor NSR programs
under section 110(a)(2)(C) of the Act to ensure that NAAQS are attained
and maintained. Further, the commenter maintained that such limits
would likely be unenforceable as a practical
[[Page 38760]]
matter at most sources and offered extensive arguments for his
position. On the other hand, a couple of commenters expressed support
for minor source PALs, with one of these commenters believing that it
is very important that aspects of permitting programs at the Federal
and state levels outside of Indian country that provide operator
flexibility, including the creation of PALs, should also be afforded to
operators currently in or wishing to locate in Indian country.
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\20\ A minor source PAL determination is a sourcewide limitation
on allowable emissions of a regulated NSR pollutant, expressed in
tpy, that is enforceable as a practical matter and we had proposed
that you may request that the reviewing authority establish an
annual minor source PAL for one or more of the regulated NSR
pollutants emitted by your new or existing minor source.
---------------------------------------------------------------------------
Based on the comments received, we are finalizing the permit
application requirements mainly as proposed, with only two exceptions.
See final 40 CFR 49.154. First, we are not finalizing the minor source
PAL provisions at this time because we agree with the opposing
commenter that stated, for example, that finalizing the PAL provisions
without more specific criteria, including provisions for extensive
monitoring, would not be enforceable. Second and as we explained in
sections IV.A.1 and IV.A.2, we are finalizing provisions that will
require you, the source owner, to include fugitive emissions in the
minor NSR applicability determinations, to the extent they are
quantifiable, only for those source categories listed pursuant to
section 302(j) of the Act.
In addition, we would like to clarify that 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 instead of a site-specific permit. The permit application
requirements for a particular general permit will be specified in that
general permit. General permits, including the comments we received
about them, are discussed further in section IV.C of this preamble.
2. What technical reviews must the reviewing authority conduct?
After determining that your application is complete (see section
IV.B.4 for more information about this process), the reviewing
authority must do 2 types of technical reviews--a control technology
review and a review of the probable impact on air quality of the
proposed new source or modification. These reviews are discussed
further in the following subsections.
a. Control Technology Review
As required under section 110(a)(2)(C) of the Act, this minor NSR
permitting program for Indian country is primarily designed to assure
that the NAAQS are achieved and to prohibit any minor source from
emitting any air pollutant in amounts that would contribute to
nonattainment or interfere with maintenance of the NAAQS. Therefore,
with this single program applicable to all areas of Indian country
where there is no EPA-approved implementation plan, we are trying to
ensure the NAAQS protection required by the CAA, while still allowing
sufficient flexibility in control technology requirements for minor
sources located in Indian country. By control technology, we mean
pollution prevention techniques; add-on pollution control equipment;
design and equipment specifications; work practices and operational
restrictions.
For this review, the reviewing authority will consider local air
quality needs, typical control technology used by similar sources in
surrounding areas, anticipated economic growth in the area and cost-
effective 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 no
control technology, to control 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). The control technology chosen would
depend on the air quality needs of the area, other applicable
regulatory programs of the Act and technical and economic feasibility.
Furthermore and based on the results of the control technology
review, the emission limitations required by the reviewing authority
may consist of numerical limits on the quantity, rate or concentration
of emissions; 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 a numerical 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 the final 40 CFR 49.153(c)) that emit or
have the potential to emit the pollutant(s) for which the source is
subject to this rule. For a modification, such control technology
review would apply only to the affected emissions unit(s) at your
source.
At proposal, we sought comment on the proposed case-by-case control
technology review for all new and modified sources subject to this
minor NSR program. Therefore, we sought 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 and administrative burden.
Several commenters supported the case-by-case control technology
review. These commenters believed that a case-by-case control
technology review would allow and promote economic growth and
development that is tailored to the needs in Indian country, while one
of these commenters added that having no capacity to impose controls on
minor sources would seem to defeat the purpose of a permitting process
for such facilities because a paper permit that could not impose any
controls adds nothing to existing regulation or protection of public
health and the environment. Furthermore, several commenters supported a
clearly defined, standardized method for determining the required level
of control, while one commenter stated that a system that requires a
single set of controls for all minor sources across Indian country does
not provide the needed flexibility to adapt regulation to the needs of
individual areas of Indian country or to take into account the benefit
of a level playing field with the surrounding areas.
On the other hand, other commenters opposed any control technology
requirement. These commenters believed that a Federal program is likely
to be applied inconsistently, resulting in a competitive disadvantage
for sources located in certain areas; EPA has no authority to impose a
control technology requirement under section 110(A)(2)(C) of the Act
and a separate control technology review process under minor NSR is
unnecessary when the threat of PSD review will otherwise accomplish the
ultimate objective--protection of air resources (i.e., the PSD review
is generally so complex, time-consuming and expensive, that most
sources will design their projects to remain below the applicable PSD
thresholds, even if that means installing more efficient controls,
switching to cleaner fuel or restricting production or operating
hours).
[[Page 38761]]
We disagree with commenters that oppose any control technology
requirement or who suggested that we have no authority to require such
controls. Section 110(a)(2)(c) requires us to assure that the NAAQS are
achieved and we believe that requiring control technologies when
necessary will ensure the NAAQS are protected as established in this
section. Furthermore, section 110(a)(2)(c) does not preclude us from
requiring additional provisions that will further the goal of NAAQS
protection and the fact that the statutory language requires a control
technology review under some statutory provisions does not mean that
the statute prohibits EPA from requiring it under other provisions.
We also disagree with those commenters that would like us to
implement consistent control technologies across the nation. As we
stated in the proposal, it would be impossible to create a single
program that creates precisely equivalent regulations among all areas
of Indian country. We wish to ensure that Indian country is not seen as
a potential ``pollution haven'' where minor sources can go to escape
air pollution control requirements and we also 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 a particular area of Indian country than are required in
the surrounding areas. Therefore, a case-by-case control technology
review provides the reviewing authority with the flexibility to create
requirements that protect public health and environment, but also takes
into consideration the needs of the area in question based on its
current air quality situation, the potential air quality impacts from
the growth associated with the source and the technological and
economic feasibility of the control technology as well as the control
technologies in use in the surrounding states.
Therefore, we are finalizing the case-by-case control technology
review requirements as proposed. The final rules require your reviewing
authority to perform a control technology review on a case-by-case
basis when issuing a site-specific minor NSR permit. See the final 40
CFR 49.154(c). For general permits, the control technology review will
be performed at the time when the general permit is developed. More
details on general permits are provided in section IV.C of this
preamble.
b. Air Quality Impacts Analysis (AQIA)
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, 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
demonstrates 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.
Various commenters supported requiring an AQIA and added that they
would like us to develop guidance on when and how an AQIA analysis
should be performed. On the other hand, several commenters believed
that AQIAs would be excessive, very costly and time consuming for small
businesses.
Based on the comments received, we are finalizing the AQIA
provisions as proposed at 40 CFR 49.154(d). We continue to believe that
allowing reviewing authority discretion for when an AQIA might be
required ensures that construction of new minor sources or
modifications at existing minor sources do not cause or contribute to a
NAAQS or PSD increment violation when needed, but limits overburdening
all minor sources in Indian country with these types of air quality
analysis. Nevertheless, to aid the reviewing authorities in the
determination of when an AQIA might be needed for minor NSR sources in
Indian country and to address the commenters' suggestions, we intend to
develop guidance on the scope of the AQIA that will consider the
suggestions presented by these commenters. We are also eliminating the
language in the proposal preamble that stated (71 FR 48704) that AQIAs
will be required ``[i]n rare instances.'' Since the reviewing authority
has the discretion to require an AQIA, it is difficult to predict that
such AQIAs will be required only in rare instances.
3. What are the permit content requirements?
The requirements for permits issued pursuant to site-specific
preconstruction review include the following (see 40 CFR 49.155):
The effective date of the permit and the date by which you
must commence construction on your approved project in order for your
permit to remain valid (i.e., 18 months after the permit effective
date).
The emissions units subject to the permit and their
associated emissions limitations.
Monitoring, recordkeeping, reporting and testing
requirements to assure compliance with the emission limitations.
In addition, the permit should include a number of standard permit
terms. These include emission limitations, monitoring recordkeeping and
reporting requirements as well as terms such as 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), a requirement
to comply with all conditions of the permit, a requirement that the
permitted source does not cause or contribute to a NAAQS violation and
inspection and entry provisions requiring that you allow
representatives of the reviewing authority to enter and inspect your
source.
a. Emissions Limitations
Your permit must include 2 types of emission limitations:
The emissions limitations for each affected emissions unit
determined by the reviewing authority based on the case-by-case
technology review discussed previously in section IV.B.2 of this
preamble.
Limits on annual allowable emissions in tpy.
Emission limitation, as defined in 40 CFR 49.152, means a
requirement established by the reviewing authority that limits the
quantity, rate or concentration of emissions of air pollutants on a
continuous basis, including any requirement relating to the operation
or maintenance of a source to assure continuous emissions reduction and
any design standard, equipment standard, work practice, operational
standard or pollution prevention technique. Allowable emissions (also
as defined under 40 CFR 49.152) means ``allowable emissions'' as
defined in 40 CFR 52.21(b)(16), except that the allowable emissions for
any emissions unit are calculated considering any emissions limitations
that are enforceable as a practical matter on the emissions units'
potential to emit. Once established in the permit, annual allowable
emissions become the basis for determining whether a later change at
your source will result in an increase in allowable emissions subject
to permitting under this program.
We did not specifically receive comments on these two types of
emissions limitations that must be included in your permit. Therefore
we are finalizing these emissions limitations at 40 CFR 49.155(a)(2) as
proposed.
Additionally, we would like to clarify, as some commenters
requested, a couple
[[Page 38762]]
of terms or conditions. One commenter interpreted the proposal to only
require annual emissions limits in the minor source permits, while one
commenter asked us to clarify if the term ``on a continuous basis'' in
the definition of emissions limitation implies that every emission
limitation must be complied with on an instantaneous time period and
accompanied by a continuous emission monitoring system (CEMS).
Therefore, we want to clarify that the reviewing authority may not
only require annual emissions limits in the minor NSR permits, but also
short-term limits as necessary. Short-term emission limits may also be
required as part of any enforceable emission limitation and, if
applicable, depending on the relevant ambient air quality standard
associated with the regulated pollutant.
Furthermore, the term ``on a continuous basis'' in the definition
of emission limitation does not imply that every emission limitation
must be complied with on an instantaneous time period and accompanied
by a CEMS. The term ``on a continuous basis,'' as the commenter
suggests, means that the limitation applies ``at all times,'' but not
that the emission limitation has to be accompanied by a CEMS. There are
various ways to monitor compliance with limitations that apply on a
continuous basis as we mention in the next section.
b. Monitoring, Recordkeeping and Reporting
The monitoring, recordkeeping and reporting requirements have been
finalized under 40 CFR 49.155. Specifically, the final monitoring
requirements are under 40 CFR 49.155(a)(3), the final recordkeeping
requirements under 49.155(a)(4) and the final reporting requirements
under 40 CFR 49.155(a)(5).
(1) Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with any emissions
limitations contained in the permit. Monitoring approaches may include
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.
(2) 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.
(3) 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.
We did not receive any specific comments regarding the monitoring
and recordkeeping requirements, but several commenters commented on the
reporting requirements. Some of these commenters specifically asserted
that requiring annual monitoring reports for minor sources is overly
burdensome, while another commenter would like us to require monitoring
reports to be submitted at least annually, to give the reviewing
authority flexibility to require semiannual monitoring reports and in
accordance with the title V reporting schedule. Other commenters
recommended that for reporting deviations the word ``prompt'' should be
defined within the regulation.
We disagree with those commenters that state that the monitoring,
recordkeeping and reporting requirements are too burdensome because, as
stated in the proposal, sections 110(a)(2)(A) and 110(a)(2)(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 time-tables for compliance.'' In addition, section
110(a)(2)(F) 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 emissions-
related data from such sources. Therefore, we believe that, for
example, annual reporting requirements will ensure that sources are
complying with their annual emissions limits as well as any other
limits determined by the reviewing authority.
However, we do not believe that requiring monitoring reports more
frequently than annually, as one commenter suggested, would be
appropriate for minor sources. Minor sources are typically much smaller
than the title V sources the commenter is referring to and therefore
requiring monitoring reports more frequently than annually might be
overly burdensome for these sources. However, we encourage reviewing
authorities to develop annual monitoring schedules in accordance with
title V permit monitoring schedules if that facilitates the reporting
of emissions to the reviewing authority.
We also disagree with the commenters that would like us to define
the word ``prompt'' for the reporting of deviations. We continue to
believe that deferring the definition of this term to the reviewing
authority is more appropriate to ensure that the respective permits are
protective of the NAAQS while also ensuring that the particular needs
of the area where the source is being permitted are considered. For
example, if a source is locating in a particular area of Indian
country, the reviewing authority might define this term by considering
the provisions of the state and/or the air quality control districts
surrounding the area of Indian country where the source is locating as
well as technical and economical feasibility. Therefore, we are
finalizing the monitoring, recordkeeping and reporting requirements as
proposed and these requirements will be included in each permit as
necessary to assure compliance with the source's emission limitations.
c. Other Permit Content Requirements
Under 40 CFR 49.155(a)(7), we have finalized other permit
requirements. Specifically, these requirements include inspection and
entry provisions under 40 CFR 49.155(a)(7)(vii) that state that upon
presentation of proper credentials, you, as the permittee, must allow a
[[Page 38763]]
representative of the reviewing authority to:
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;
Have access to and copy, at reasonable times, any records
that are required to be kept under the conditions of the permit;
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;
Sample or monitor, at reasonable times, substances or
parameters for the purpose of assuring compliance with the permit or
other applicable requirements; and
Record any inspection by use of written, electronic,
magnetic and photographic media.
Commenters on these requirements wanted us to clarify that as the
reviewing authority representative enters the source premises for any
inspection, the reviewing authority ``must comply with the safety
requirements of the permittee.'' Upon further evaluation of these
provisions, we do believe that the representative of the reviewing
authority should follow standard safety requirements identical to the
ones that apply to the permittee's employees.
4. What are the permit issuance procedures, permit term and public
participation requirements?
a. Permit Issuance Process
Under 40 CFR 49.154(b), we have finalized definite timelines for
the overall minor source permit issuance process that vary depending on
the type of source being regulated under the minor NSR program. The
timelines are described as follows:
For minor sources seeking a site-specific permit, the
permit issuance process timeline includes a period of 45 days for the
application completeness review as well as a 30-day public comment
period. Any site-specific permit will be granted or denied no later
than 135 days after the date the application is deemed complete and all
additional information necessary to make an informed decision has been
provided.
For minor modifications at major sources seeking coverage
under a site-specific permit, the permit issuance process timeline
includes a period of 60 days for the application completeness review as
well as a 30-day public comment period. Any site-specific permit will
be granted or denied no later than 1 year after the date the
application is deemed complete and all additional information necessary
to make an informed decision has been provided.
For minor sources seeking coverage under a general permit
(discussed in section IV.C of this preamble and under 40 CFR 49.156),
the permit issuance process timeline includes a completeness review
period of 45 days. Any request for coverage by individual sources under
a general permit will be granted or denied within 90 days of the
receipt of such request for coverage by the reviewing authority. We
believe that since the general permit requirements have been subject to
public notice when the general permit was developed, a shorter permit
issuance process is warranted for determining whether a source is
eligible for coverage under the general permit.
For synthetic minor sources (discussed in section IV.D of
this preamble and under 40 CFR 49.158), the permit issuance process
timeline includes, as proposed, a period of 60 days for the application
completeness review as well as a 30-day public comment period. Any
synthetic minor permit will be granted or denied no later than 1 year
after the date the application is deemed complete and all additional
information necessary to make an informed decision has been provided.
The application for a permit under this program will be reviewed by
the reviewing authority within 45 days of its receipt for site-specific
permits (60 days from its receipt for synthetic minor permits and minor
modification at major sources) to determine whether the application
contains all the information necessary for processing the application.
If the reviewing authority determines that the application is not
complete, it will request additional information as necessary to
process the application. If the reviewing authority determines that the
application is complete, it will notify you in writing. The reviewing
authority's completeness determination or request for additional
information should be postmarked within 45 days of receipt of the
permit application by the reviewing authority for site-specific permits
(60 days of receipt of the permit application by the reviewing
authority for synthetic minor permits and minor modifications at major
sources). If you do not receive a request for additional information or
a notice of complete application postmarked within 45 days of receipt
of the permit application by the reviewing authority for site-specific
permits (60 days for synthetic minor permits and minor modification at
major sources), your application will be deemed complete. Once the
application is complete, your reviewing authority will develop a draft
permit and provide 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 new source or
modification meets all applicable requirements, it will issue you a
final permit. Otherwise, the reviewing authority will send you a letter
denying your permit application with reasons for the denial.
We decided to finalize a definite timeline for the overall minor
source permit issuance process that varies depending on the type of
source being regulated under the minor NSR program because we agree
with those commenters who believed that this timeline will provide
regulatory certainty for the regulated community and the public, as
well as time for the regulated community and the reviewing authority to
plan for the permit issuance process. Specifically, commenters believed
that the proposed permit issuance process was too lengthy and/or too
uncertain for minor sources. They argued that state minor NSR programs
are bound by shorter and more definite time lines. In addition, a few
commenters believed that the proposed language could allow a permit
application to be held without a final decision for an unreasonable
period, resulting in serious financial burden, lost business
opportunities, a delay in the project and even cancellation of the
project.
Furthermore, we have amended our proposed completeness review
procedures, as suggested by some commenters and we will no longer
require that if the source has not received a notice of completeness or
a request for additional information in 50 days, that the application
would be deemed complete. We agree with those commenters that expressed
concerns that this provision can be confusing. Therefore and as we
stated previously, if you do not receive a request for additional
information or a notice of complete application postmarked within 45
days of receipt of the permit application by the reviewing authority
for site-specific permits (60 days for synthetic minor permits and
minor modification at major sources), your application will be deemed
complete. The permit issuance procedures for general permits are
discussed in section IV.C.5 of this preamble.
[[Page 38764]]
b. Permit Term
Under 40 CFR 49.155(b), we have finalized provisions that state
that your permit remains valid as long as you commence construction on
your project 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. The reviewing
authority may extend the 18-month period where justified and that 18-
month limit does not apply to the time period between construction of
approved phases of a phased construction program. In those cases, you
must commence construction of each such phase within 18 months of the
approved commencement date for that phase.
We received only one comment about the permit term provisions. This
commenter had concerns about the proposal preamble language that stated
that: ``a preconstruction permit does not expire.'' Specifically, this
commenter stated that it may be appropriate to specify that the permit
does expire after a specified period, subject to renewal for a
specified period upon showing of diligence by the source. If a
preconstruction permit does not expire, the commenter argues that the
permit term provisions may be administratively impractical to
implement.
Upon further review of these provisions, we have noticed that the
language we used in the proposal preamble was not consistent with the
provisions we proposed under 40 CFR 49.155(b). Under 40 CFR 49.155(b),
we proposed provisions for when permits become invalid and did not
state that ``a preconstruction permit does not expire.'' Therefore, we
have eliminated the proposal preamble language that stated that permits
do not expire and we are finalizing the proposed provisions as stated
under 40 CFR 49.155(b).
In addition, we would like to clarify that permits under this
program would not be revoked at the source's request when there is a
rapid decrease in production, as a few commenters recommended. In such
a case, the limits of these permits might be revised appropriately to
account for the reduction, but the permit would not be revoked. Permits
will be revoked only if the source officially shuts down its operation
and notifies the reviewing authority about the business closure.
c. Public Participation Requirements
We have finalized our public participation requirements under 40
CFR 49.157 for site-specific permits, minor modification at major
sources, synthetic minor sources and the initial development of a
general permit for a source category. Pursuant to these requirements,
the reviewing authority is required to 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 reviewing authority must mail a copy of the
notice to you (the permit applicant); the appropriate Indian governing
body and the Tribal, state and local air pollution authorities having
jurisdiction adjacent to the area of Indian country potentially
impacted by the air pollution source. In addition, the reviewing
authority may elect to provide public notice for a given situation as
appropriate and 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.
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.
Furthermore, 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. Final permit issuance and the opportunity for
appeal are discussed further in the next section of this preamble.
Several commenters supported the proposed public participation
requirements stating that they like the proposed mix of mandatory and
optional approaches to notices, while others suggested that the overall
permitting process should be shortened. On the other hand, other
commenters argued that the proposed public participation requirements
were too burdensome, time consuming and will be open to abuse by
persons who oppose any sort of development including development from
very small projects. Therefore, some of these opposing commenters
suggested adding a de minimis threshold below which sources would be
exempt from the public notice and participation requirements in order
to match the level of public participation to the environmental
significance of the project. In addition, one commenter believed that
we should strengthen the proposed public participation requirements by
requiring notices to be sent by mail or e-mail to all persons
requesting such notice, by requiring notices to be published in a
Tribal newspaper or newsletter and by requiring other means of
publication customary to the Tribe, where possible. They also wanted us
to hold a public hearing whenever one is requested.
After careful consideration of these comments, we are finalizing
our public participation requirements for site-specific permits, minor
modifications at major sources, synthetic minor permits and the initial
development of a general permit for a source category as proposed, with
the clarification that the appropriate types of notice will take into
consideration any seasonal activities that may conflict with the public
participation of the local community (e.g., subsistence hunting and
fishing or other seasonal cultural practices). We believe these
requirements are consistent with the current public availability of
information requirements under our existing regulations at 40 CFR
51.161 and they add optional public noticing and participation
provisions that will enhance the permitting process. All the
requirements will ensure that the public is informed about the
permitting actions occurring in Indian country and will also ensure
that the particular public noticing needs in Indian country are
considered.
[[Page 38765]]
We are not matching the public participation requirements to the
environmental significance of the project, as some commenters
suggested, because we believe that the public has the right to know
about any permitting actions occurring in their area notwithstanding
the environmental significance of the project and that a 30-day public
comment period on a permitting action, as in our existing regulations,
is an appropriate timeline for this purpose.
In addition, we do not believe that our public participation
requirements need to be strengthened at this time, as some commenters
suggested, because we used the existing regulations under 40 CFR 51.161
as the basis for our public noticing requirements and added additional
optional provisions to ensure that factors such as the nature and size
of the source, the local air quality and the characteristics of the
population in the area are considered. Therefore, we believe that these
requirements are more detailed than the requirements in our existing
regulations under 40 CFR 51.161 and do not need to be strengthened even
further at this time.
We also continue to believe that, as proposed, the reviewing
authority should be able to hold a public hearing at its own
discretion. We believe that the reviewing authority is in the best
position to determine whether there is significant interest in a
hearing on a case-by-case basis and to decide whether it is more
administrative and economically prudent to ask a small number of
commenters to submit their comments in writing.
To address any concerns about the length of the entire permit
issuance process, we are finalizing definite timelines for the overall
permitting process depending on the source type. See section IV.B.4.a
of this preamble for more details about the permit issuance process
timeline.
5. What are the provisions for final action on a permit, permit
reopenings, administrative permit revisions and administrative and
judicial review procedures?
In general, these provisions are based closely on selected
provisions of part 124, subpart A. The specific provisions are as
follows:
a. Final Action on a Permit
Under 40 CFR 49.159(a), we have finalized provisions regarding how
final action on a permit will occur. Specifically we state that after a
decision to issue or deny your permit, the reviewing authority must
notify you, the permit applicant, of the decision in writing and, if
the permit is denied, provide the reasons for the denial and the
procedures for appeal. If the reviewing authority issues a final permit
to you, 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.
Furthermore, under 40 CFR 49.159(b) we have finalized provisions
regarding how long the reviewing authority will retain permit-related
records and under 40 CFR 49.159(c) the requirements on what must be in
that record. For example, the records must be kept by the reviewing
authority for not less than 5 years. The administrative record must
include the application and any supporting data furnished by the
applicant and all comments received during the public comment period,
including any extension or reopening.
A few commenters supported the proposed provisions for providing
notice of final permit actions, which included making a copy of the
final permit available at all of the locations where the draft permit
was made available. These commenters believed that such notice should
be provided in the same manner that it was provided during the public
comment on the draft permit and not depend, as we proposed, ``upon the
circumstances of your permit''.
On the other hand, a few commenters indicated that the proposed
notification requirements are excessive. They believed that the
proposed requirements are more stringent than the requirements for
major sources under the PSD program and/or the part 71 program, which
they believed is unwarranted because the impact for minor sources on
public health and/or the environment would be much lower than major
sources. Furthermore, some of these commenters argued that EPA may find
the proposed requirements burdensome and expensive unless the method of
notice is limited to something such as publication on EPA's Web site.
Based on the comments received, we agree that, for site-specific
permits, making a copy of the permit available at all of the locations
where the draft permit was made available might be too burdensome for
the reviewing authorities. Accordingly, we are amending 40 CFR
49.159(a) to require copy of the final permit decision to be made
available at all of the locations where the draft permit was made
available for synthetic minor sources and minor modifications at major
sources, but we are requiring the reviewing authority to only elect one
or more of the methods for public noticing under 40 CFR
49.157(b)(1)(ii) for site-specific permits. As proposed, sources are
required to post, prominently, a copy of the letter granting the
request for coverage under the general permit at the site where the
source is locating. More details about the general permit provisions
are provided in section IV.C of this preamble.
Regarding the administrative record for a permit decision, several
commenters commented on how long the reviewing authority should retain
permit-related records. These commenters agreed with the provision of
keeping records for not less than 5 years, while one commenter
specifically asked us to require the reviewing authority to retain
permit records for the life of the source. We believe that keeping
permit records for the life of the source will be too burdensome,
especially when we do not require permit records for major sources
under some provisions of the major NSR program to be kept for more than
5 years either. Therefore, we have finalized, as proposed and under 40
CFR 49.159(b), that the reviewing authority must retain permit-related
records for not less than 5 years.
No comments were received on what must be kept on the
administrative record and thus, we have also finalized these
provisions, under 40 CFR 49.159(c), as proposed.
b. Permit Reopenings
Under 40 CFR 49.159(e) we have finalized provisions regarding when
your permit can be reopened. These provisions state that the reviewing
authority may reopen a final, currently-in-effect permit for cause on
its own initiative, such as if the permit contains a material mistake
or fails to assure compliance with applicable requirements. However,
except for those permit reopenings that do not increase the emissions
limitations in the permit, such as permit reopenings that correct
typographical errors, all other permit reopenings shall be carried out
after the opportunity for public notice and comment and in accordance
with one or more of the public participation requirements under 40 CFR
49.157(b)(1)(ii).
These final provisions amend the proposed provisions, which stated,
among other requirements, that any person (including the permittee) may
petition the reviewing authority to reopen a permit for cause, based on
the comments we received. Commenters were concerned about allowing
anyone--regardless of motive or lack of
[[Page 38766]]
factual support--to petition to reopen permits issued to sources of
insignificant emissions. Furthermore, they argued that the proposed
provisions were more stringent than the reopening provisions in the
major source permitting programs, which they contend is unwarranted for
minor sources and that these provisions are inconsistent with state
minor NSR programs.
We agree, as some commenters suggested, that the provisions we
proposed might open potential avenues for any person, even if
uninformed or maliciously intentioned, to harass and disrupt permitting
operations. In addition, we did not intend to excessively restrict the
reasons for why a permit should be reopened by us, as the reviewing
authority, by stating in the proposal that the reviewing authority may
not reopen a permit for a cause unless it contains a material mistake
or fails to assure compliance with the applicable requirements. We do
agree that the reasons for reopening the permit by the reviewing
authority should not be limited to the permit containing a material
mistake or failing to assure compliance with applicable requirements.
Therefore and as stated previously, we have amended the proposed
provisions by adopting the language finalized at 40 CFR 49.159(e).
c. Administrative Permit Revisions
Under 40 CFR 49.159(f), we have finalized provisions to allow for
minor changes in the permit without these changes being subject to the
permit application, issuance, public participation or administrative
and judicial review requirements of the program. For example, an
administrative permit revision is a permit revision that could make a
change such as: (1) Correcting a typographical error, (2) requiring
more frequent monitoring or reporting by the permittee or (3)
identifying a change in the name, address or phone number of any person
identified in the permit. However, 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. (See final 40 CFR
49.159(f) for more information on the provisions that govern
administrative permit revisions). A few commenters supported our
proposed administrative permit revision provisions \21\ because they
believed that these provisions will allow a source to make minor
changes without being subject to the overall permit process, while one
commenter specifically opposed the provision to allow increases in
allowable emission limits through an administrative permit revision
since the commenter believed. According to the commenter, increases in
allowable emission rates must be subject to NSR permitting, review of
impacts on air quality and public notice and review.
---------------------------------------------------------------------------
\21\ See 71 FR 48743 for more information on the proposed list
of administrative permit revisions.
---------------------------------------------------------------------------
We agree with those commenters that support the administrative
permit revision provisions for the situations outlined in the proposal
and hence we are finalizing these provisions as proposed at 40 CFR
49.159(f). We believe that permit changes involving typographical
errors, more frequent monitoring and reporting requirements and/or
changes in ownership should not go through the overall permitting
process.
We understand, however and as the opposing commenter suggested,
that there might be particular concerns with the provision at 40 CFR
49.159(f)(v) where an administrative permit revision is allowed for 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. For example, this case could be one where a source
introduces a new coating to a process line that will increase the
emissions of that unit but the emissions increases from the source will
not trigger the minor NSR requirements.
Although this type of change does not trigger the major or the
minor NSR thresholds, we continue to believe that we need to account
for these changes in emissions in the permit to know the source's
current allowable emissions and to ensure that the source is complying
with the applicable requirements. Therefore, an administrative permit
revision can be used when the increase in an unit's allowable emissions
limit for a regulated NSR pollutant is not subject to major or minor
NSR.
d. Administrative and Judicial Review Procedures
At 40 CFR 49.159(d), we have finalized the provisions under which
permit decisions may be appealed. Permit decisions may be appealed to
the Environmental Appeals Board (EAB) within 30 days after a final
permit decision has been issued and a final permit typically will not
become effective until 30 days after the service of notice of the final
permit decision. Upon filing 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 the administrative remedies
under proposed 40 CFR 49.159 have been exhausted could the person(s)
filing the petition seek review in the Federal Court of Appeals with
jurisdiction over the area of Indian country in which the source is
located. We proposed and took comment on two options for reviewing
final permit decisions by reviewing authorities under 40 CFR 49.159(d).
The option described above or Option 1 (where review of minor NSR
permits will be similar to review of major PSD permits issued under 40
CFR 52.21 and which occurs in accordance with EPA's permitting
regulations at 40 CFR part 124) and an alternative Option 2, where 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.
Several commenters supported Option 1 because they believed that
the EAB has greater environmental expertise and is likely to resolve
issues more quickly. These commenters also argued that citizen appeals
to the EAB represent an easier threshold to meet for the layperson that
is aggrieved by a final agency action. They believed it is easier for
most citizens to write a letter to the EAB requesting an appeal than it
is to hire an attorney to sue a governmental agency.
Supporting commenters also argued that it makes more sense to delay
the effective date of the permit while the issues are being resolved
(rather than allowing the source to begin construction), while some of
these supporting commenters would like us to allow the permit to become
effective immediately upon issuance unless a later date is specified.
These latter commenters believed this option will allow for development
in Indian country while encouraging participation from environmental
experts should an appeal occur.
Other commenters opposed Option 1. These commenters stated that
delaying final permit effectiveness for 30 days after issuance will
compound an already lengthy permitting process. They also argued that
these provisions are not consistent with the process that most states
follow with their minor NSR programs and that these provisions are
[[Page 38767]]
ripe for abuse and would encourage challenges from anti-development
stakeholders.
On the other hand, several commenters specifically endorsed Option
2 because it allows the source to determine whether to commence
construction at its own risk. Some of these commenters also noted that
this option is more consistent with most state minor NSR programs and
it eliminates an intermediate step, the EAB review. These commenters
also argued that Option 2 is more appropriate due to the size and
amount of emissions from minor NSR sources and it expedites the
permitting process. Another commenter added that for Tribes that have
or will be seeking, delegation of the NSR program, the rule should
allow for Tribal administrative and Tribal court review prior to going
to Federal court.
Based on the comments received, we agree with those commenters that
support the option of filing a petition for permit review through the
Environmental Appeals Board. We believe, as some commenters stated,
that the EAB has greater environmental expertise, is likely to solve
issues more quickly and it will be easier for the public to file a
petition through the EAB than to hire an attorney to go through the
appeals process.
However, we are not allowing permits to become effective
immediately upon the service of notice of the final permit decision
under the EAB option, as some commenters suggested, because the
proposed provisions are based upon the EAB regulations under 40 CFR
124.15 and we did not propose to allow a different approach under this
rule. The EAB regulations clearly state, under 40 CFR section
124.15(b), that a final permit decision shall become effective 30 days
after the service of notice of the decision unless: (1) A later
effective date is specified in the decision; (2) a review is requested
on the permit under 40 CFR 124.19 or (3) no comments requested a change
in the draft permit, in which case the permit shall become effective
immediately upon issuance. In other words, EPA regulations specify that
the only permits that become effective upon issuance are those for
which no comments were submitted. Furthermore, we do not believe we can
allow sources to construct while the EAB process is pending, because
while a permit is being reviewed by the EAB, it is not effective and
thus it does not authorize construction.
Regarding the commenter that stated that delegated programs should
allow for Tribal administrative and Tribal court review prior to going
to Federal court, we disagree. This is because under a delegated
Federal program, the delegated Indian Tribe would be assisting EPA with
the administration of Federal requirements on EPA's behalf and under
these Federal regulations. Any Federal requirement administered by a
delegated Tribe and any permit issued by such a delegated Tribe would
remain Federal actions subject to EPA enforcement and EPA appeal
procedures under Federal law. On the other hand, if a Tribe develops
and EPA approves a TIP that includes a NSR program, Tribally-issued NSR
permits would be subject to administrative and judicial review under
the applicable Tribal program as approved by EPA. Therefore, we are
finalizing the administrative and judicial review procedures for Option
1 as proposed at 40 CFR 49.159(d).
C. General Permits
1. What is a ``General Permit?''
A ``general permit'' is a preconstruction permit that may be
applied to a number of similar emissions units or minor sources. The
purpose of a general permit is to simplify the permit issuance process
for similar facilities so that a reviewing authority's limited
resources need not be expended for site-specific 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. We believe that general permits offer a cost-
effective means of issuing permits and provide a quicker and simpler
alternative mechanism for permitting minor sources than the site-
specific permitting process discussed previously.
We received strong support for the development of general permits.
These commenters believed that the development of general permits for
sources of similar operation and emissions will simplify the permit
issuance process. On the other hand, one commenter urged EPA to issue
guidance for particular source categories, rather than use general
permits to streamline permitting. The commenter believed that
developing guidance documents is a better method.
We agree with those commenters who supported the development of
general permits because we believe, as some commenters suggested, that
general permits will simplify the permit issuance process, avoid the
need for case-by-case control technology review for those source
categories/units for which the general permit was established and
reduce the administrative burden of the reviewing authorities. However,
we disagree with the commenter that preferred guidance rather than
general permits for the minor NSR program in Indian country. We
understand that general permits are not appropriate in all
circumstances, but we believe it is appropriate to develop general
permits for certain source categories/units, especially for those
source categories/units for which the control technology or
technologies available are fairly standard. Therefore, we are
finalizing the option of developing general permits as proposed under
40 CFR 49.156.
In addition, upon consideration of other alternatives to streamline
minor source permitting, we plan to propose permits-by-rule for
suitable source categories not covered by general permits. The permits-
by-rule content and requirements will be addressed in a separate
rulemaking action.
2. What is the process for issuing general permits?
Under 40 CFR 49.156(b), we have finalized the provisions for the
general permits issuance process. The reviewing authority may issue a
general permit 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.
A general permit must be issued according to the requirements for
public participation in 40 CFR 49.157 and the requirements for final
permit issuance and administrative and judicial review in 40 CFR
49.159. Issuance of a general permit is considered final 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 is
the applicability of the general permit to a particular source. We did
not receive comments regarding the proposed general permit issuance
procedures under 49.156(b). Consequently, we are finalizing the
provisions under 49.156(b) as proposed.
3. For what categories will general permits be issued?
Under 40 CFR 49.156(c), we have finalized provisions allowing the
reviewing authority to determine which categories of individual
emissions units, groups of similar emissions units or
[[Page 38768]]
sources are appropriate for general permits in its area.
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.
In addition, in setting criteria for sources to be covered by
general permits, your reviewing authority will 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 and reporting.
A few commenters specifically requested establishing general
permits for the oil and gas sector. Other commenters were more general
in their general permits recommendations and stated that general
permits should be adopted for categories of similar sources and
emissions units and developed before the minor NSR program is adopted
in Indian country. These commenters also added that EPA needs to define
further the criteria for developing general permits and the categories
of emissions sources to which the program may apply. For example, some
of these commenters would like us to develop general permits that are
consistent across all of Indian country.
Based on the comments received, we are in the process of developing
general permits for various source categories under the factors
mentioned. The permits will be consistent across all of Indian country,
as some commenters suggested, unless there is a need to develop
specific provisions or a specific general permit, for a particular area
of Indian country. We also plan to develop these general permits, after
the opportunity for public notice and comment, using the public
noticing procedures under 40 CFR 49.157. Furthermore, we plan to update
general permits, also after the opportunity of notice and comment under
40 CFR 49.157, as appropriate to account for advances in control
technology or for other pertinent reasons. However, when we update a
general permit, sources operating under the existing general permit
will be able to continue to operate under that existing permit until
such time when the source is modified.
4. What are the permit content requirements for general permits?
General permits must contain the same permit elements required for
permits issued under the site-specific preconstruction review rules.
These permit elements are described in section IV.B of this preamble
and listed in final 40 CFR 49.155(a).
In addition, the general permit must identify the specific category
of emissions units or sources to which the general permit applies,
including any criteria that your emissions unit must meet to be
eligible for coverage under the general permit. The general permit must
also include information required to apply for coverage under the
general permit, such as the name and address of your reviewing
authority, how to obtain application forms and the information you must
provide to demonstrate that you are eligible for coverage. Finally, the
reviewing authority may include other general permit terms and
conditions as it deems necessary.
We did not receive any comments on the permit content requirements
for general permits. Therefore, we are finalizing the general permit
content requirements as proposed under 49.156(d).
5. What is the process that you may use for obtaining coverage under a
general permit?
Under 40 CFR 49.156(e), we have finalized provisions that state
that once a general permit has been issued for a source category or
category of emissions units, you may submit a request for coverage
under that general permit if your proposed new minor source or
modification qualifies for that permit. Alternatively, you may apply
for a site-specific permit under the provisions of 40 CFR 49.154.
If your source qualifies for a general permit, you may request
coverage under that general permit to the reviewing authority 4 months
after the effective date of the general permit, that is, 6 months after
publication of the general permit in the Federal Register. The
reviewing authority must act on your request for coverage under the
general permit as expeditiously as possible, but it must notify you of
the final decision within 90 days of its receipt of your coverage
request.
Your reviewing authority must comply with a 45-day completeness
review period to determine if your request for coverage under a general
permit is complete. Therefore, within 30 days after the receipt of your
coverage request, your reviewing authority must make an initial request
for any additional information necessary to process this request and
you must submit such information within 15 days. If you do not submit
the requested information within 15 days from the date of the request
for additional information and this results in a delay that is beyond
the 45-day completeness review period, the 90-day permit issuance
period for your general permit will be extended by the additional days
you take to submit the requested information beyond the 45-day period.
If the reviewing authority fails to notify you within a 30-day period
of any additional information necessary to process your coverage
request, you will still have 15 days to submit such information and the
reviewing authority must still grant or deny your request for coverage
under a general permit within the 90-day general permit issuance period
and without any time extension.
If the reviewing authority determines that your request for
coverage under a general permit has all the relevant information and is
complete, we will notify you in writing as soon as that determination
is made. If you do not receive from the reviewing authority a request
for additional information or a notice that your request for coverage
under a general permit is complete within the 45-day completeness
review period described previously, your request for coverage under a
general permit will be deemed complete.
As proposed, your reviewing authority shall grant or deny your
request for coverage under a general permit without another 30-day
public comment period. However, you must submit a copy of such request
to the Tribe in the area where your source is locating. We will also
post notice of the coverage request under the general permit on our Web
site. During our review of your request for coverage under the general
permit, commenters can only notify us of any concerns about the
eligibility of your source to obtain coverage under that general permit
and not on any other issue. Your reviewing authority shall grant or
deny your request for coverage under a general permit as expeditiously
as possible by sending you a letter notifying you of the approval or
denial of your request. This letter is a final action for purposes of
judicial review (see 40 CFR 49.159) only for the issue of whether your
source qualifies for coverage under the general permit. If your request
for coverage under a general permit is approved, you
[[Page 38769]]
must post, prominently, a copy of the letter granting such request at
the site where your source is locating and you must comply with all the
condition and terms of the general permit.
You will be subject to enforcement action for failure to obtain a
preconstruction permit if you construct the emission unit(s) or source
under the general permit and your source is later determined not to
qualify for the conditions and terms of the general permit. Any source
eligible to request coverage under the general permit may alternatively
apply for a site-specific permit under 40 CFR 49.154.
We received a few comments regarding the timeline in which the
reviewing authority must notify you of the final decision on a request
for coverage under a general permit. These commenters argued that the
90-day period we proposed for the reviewing authority to determine
coverage under the general permit should be eliminated or at least
reduced to 30 days. However, we continue to believe that a 90-day
permit issuance timeframe is appropriate since reviewing authorities
need adequate time to determine if your request for coverage has all
the relevant information and is complete. If not, the reviewing
authority will need to request additional information.
Moreover, we believe it is appropriate to add a completeness review
time period for sources requesting coverage under a general permit, as
one commenter suggested, to ensure that both sources and reviewing
authorities act on the request for coverage under a general permit as
expeditiously as possible.
In regards to a 30-day public comment period for when a source
requests to be covered under a general permit, some commenters
expressed concerns about this provision arguing that this will
significantly delay or disrupt the permitting process. Other commenters
were more concerned about being informed about the sources planning to
construct in their area. To address these comments, we have decided not
to require a 30-day comment period for sources seeking coverage under a
general permit. However, as stated previously, you and the reviewing
authority must implement the other notification procedures.
Regarding the requirement to post prominent notice of the letter
approving your request for coverage under a general permit, we received
two comments. One of these commenters believed that we should allow the
general permit and letter to be maintained at the operator's office
closest to the emission source since, specifically, many oil and gas
sites are unmanned. Another commenter believed that requiring an
applicant to post information at the source about the fact that now a
general permit will be applied to this source is duplicative of the
public review and comment period and thus unnecessary.
We continue to believe that posting, prominently, a copy of the
letter granting your request for coverage under a general permit at the
site where the source is locating is appropriate since this will
facilitate any inspection by the reviewing authority. Moreover, this
will allow the public to be informed about the sources locating in
their area. The original copy of this letter of approval can be kept in
a safe place, for example, a corporate office, especially for source
locations that are unmanned.
Accordingly, we are finalizing the general permit issuance
procedures under 40 CFR 49.156(e) mainly as proposed. In addition, in
the final rule we are including provisions for addressing when a
general permit becomes invalid that mirror the corresponding site-
specific permit provisions (see section IV.B.4.b of this preamble for
more information on these provisions).
Finally we want to add that if a general permit has been issued for
your source category, you have the option to request coverage under
that general permit 4 months after the effective date of the permit
(i.e., 6 months after the general permit is published) or you can apply
for a site-specific permit according to the provisions under 40 CFR
49.154. However we want to clarify that since we are delaying the
implementation date of this minor NSR program to true minor sources for
36 months after the effective date of this rule (see section VII.C of
this preamble for an explanation of these implementation provisions),
if you elect not to seek coverage under the general permit available
for your source category, you will have to apply for a site-specific
permit prior to construction if that occurs prior to the 36 month
implementation date. In other words, there will be no permitting grace
period if a general permit exists for your source category prior to the
36-month period and you elect not to seek coverage under that general
permit.
D. Synthetic minor source permits
Some sources have the potential to emit one or more pollutants in
major source amounts, but have actual emissions that are below the
major source thresholds. These sources are called ``synthetic minor
sources'' and the term means a source that otherwise has the potential
to emit regulated NSR pollutants in amounts that are at or above those
for major sources in 40 CFR 49.167, 40 CFR 52.21 or 40 CFR 71.2, as
applicable, but 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 (as defined in 40 CFR 49.152).
The designation of synthetic minor source is allowed for both
regulated NSR pollutants and HAPs and 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. In addition, if you apply for a
synthetic minor source or synthetic minor HAP source, you must comply
with the same public participation requirements and the same procedures
for final permit issuance and administrative and judicial review found
at 40 CFR 49.157 and 40 CFR 49.159 respectively.
In our proposal we explained that 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.\22\ However, as the memo specifies, this PTE transition policy
terminates when we adopt and implement a mechanism that you can use to
limit your potential to emit or we explicitly approve a program
providing such a mechanism. This minor NSR program adopts and
implements a mechanism that you can use to limit your potential to emit
and as such it terminates the PTE transition policy.
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\22\ 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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Several commenters supported the proposal to allow synthetic minor
source permits because this option has been previously available for
sources located outside of Indian country. On the other hand, two
commenters opposed the proposal to allow for synthetic minor source
permits since they believe that synthetic minor source permits are not
available outside of Indian country and therefore HAP sources would
rush to Indian country to avoid MACT standards.
[[Page 38770]]
Another commenter opined that the proposed synthetic minor rule
will hinder some Tribes' ability to develop or maintain their own
sustainable title V major source permitting programs. This commenter
argued that allowing for synthetic minor source permits in Indian
country will decrease the number of major sources under this program
thereby reducing the permitting fees collected and used by Tribes to
run their title V permitting programs. One commenter also added that
general permits should be allowed for synthetic minor sources.
We agree with those commenters that would like us to allow
synthetic minor source permits for both criteria pollutants and HAPs.
We believe that allowing synthetic minor source permits could be
beneficial to the environment by reducing the amount of pollution that
could have been emitted to the air otherwise. In addition, this option
has been available for sources outside of Indian country for both
regulated NSR pollutants and HAP sources for many years. Thus, we
disagree with the commenters who believed that we will be creating
pollution havens in Indian country for HAP sources because HAP sources
who obtain synthetic minor permits need to comply with emissions limits
that are enforceable as a practical matter (as defined in 40 CFR
49.152) and with the applicable regulations under 40 CFR Part 63.
We do not believe that synthetic minor source permits will
significantly reduce the number of title V major sources in Indian
country and hence the associated permit fees, since we do not
anticipate many sources to change their current status to synthetic
minor status once this rule is final. The PTE transition policy had
already allowed sources in Indian country, until this FIP becomes
final, to limit their potential to emit to avoid major source status
for purposes of the title V program. However, if a Tribe is concerned
that existing title V programs may be unsustainable after a certain
number of sources change their existing title V permits to synthetic
minor source permits, the Tribe will have to consider raising their
title V fees as necessary to ensure that, as stated in section
502(b)(3) of the Act, the fees collected under the title V program are
``sufficient to cover all reasonable (direct and indirect) costs
required to develop and administer the permit program requirements.''
We also disagree with the commenter that would like us to allow the
use of general permits for synthetic minor sources since these sources
are major sources until they are approved to construct under a
synthetic minor source permit. We believe that the size and amount of
emissions from these sources warrants a case-by-case review of the
source and their proposed emission limitations. Therefore, in the final
rule, we are not allowing general permits for synthetic minor sources.
In this final rule apart from specifying the circumstances under
which a new source may obtain a synthetic minor source permit, we are
also clarifying the possible mechanisms under which synthetic minor
source permits have been issued to date and the requirements these
sources may have to comply with after the effective date of this rule.
Consequently, we are finalizing provisions under 40 CFR 49.158 that
state that you may obtain a synthetic minor source permit under this
program to establish a synthetic minor source for PSD, nonattainment
major NSR and title V purposes and/or a synthetic minor HAP source for
MACT standards and title V purposes. Any source that becomes a
synthetic minor for NSR and title V purposes but has other applicable
requirements or becomes a synthetic minor for NSR but is major for
title V purposes, must also apply for a part 71 title V permit. In
addition, you, as the permit applicant, will have to submit a permit
application pursuant to the provisions of 40 CFR 49.158(a) and 40 CFR
49.154 and you will also be subject to the permit requirements at 40
CFR 49.155 and 49.158 which include, among other things, case-by-case
control technology review as well as monitoring, recordkeeping and
reporting requirements.\23\
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\23\ Please note that if you propose to construct or modify a
synthetic minor source, you are subject to the synthetic minor
source provisions under 40 CFR 49.158 and the preconstruction
permitting requirements in 40 CFR 49.154 and 49.155, except for the
completeness review and permit issuance timeline provisions. The
permit completeness review and permit issuance timeline provisions
that apply for sources seeking a synthetic minor permit are
specified in 40 CFR 49.158(b).
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Hence, we are finalizing the synthetic minor source permit
application procedures mainly as proposed, with the exception that we
are requiring the reviewing authority to notify you of the permit
application completeness determination in writing and thus eliminating
the requirement that you, as the permit applicant, should contact the
reviewing authority to find out the date of receipt of the application.
The final synthetic minor source permit application requirements state
that you must submit a permit application to the reviewing authority
and within 60 days after receipt of an application, the reviewing
authority will determine if it contains the information specified in 40
CFR 49.158(a). 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 will notify
you in writing. The reviewing authority's completeness determination or
request for additional information should be postmarked within 60 days
of receipt of the permit application by the reviewing authority.
We are also adding a provision, to be consistent with the site-
specific and general permit provisions, to state that if you do not
receive a request for additional information or a notice of complete
application postmarked within 60 days of receipt of the permit
application by the reviewing authority, your application would be
deemed complete. The reviewing authority must provide an opportunity
for public participation and public comment on the draft synthetic
minor source permit as set out in 40 CFR 49.157. The final synthetic
minor source permit will be issued and will be subject to
administrative and judicial review as set out in 40 CFR 49.159.
The provisions of the final rule address the various possible
scenarios for synthetic minor source permits as follows:
If you own or operate an existing major source and you
wish to obtain a synthetic minor source permit pursuant 40 CFR 49.158
to establish a synthetic minor source and/or a synthetic minor HAP
source,\24\ you may submit a synthetic minor source permit application
on or after the effective date of the final rule, that is, on or after
August 30, 2011. However, if your
[[Page 38771]]
permit application for a synthetic minor source and/or synthetic minor
HAP source pursuant to the FIPs for reservations in Idaho, Oregon and
Washington has been determined complete prior to August 30, 2011, you
do not need to apply for a synthetic minor source permit under this
program.
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\24\ EPA's historic policy is ``that facilities may switch to
area source status [in this case through a synthetic minor permit]
at any time until `the first compliance' of the standard. The
``first compliance date'' is defined as the first date a source must
comply with an emission limitation or other substantive regulatory
requirement (i.e., leak detection and repair programs, work practice
measures, housekeeping measures, etc * * *, but not a notice
requirement) in the applicable MACT standard. Facilities that are
major sources for HAPs on the ``first compliance date'' are required
to comply permanently with the MACT standard to ensure that maximum
achievable reductions in toxic emissions are achieved and
maintained.'' Memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, U.S. EPA, ``Potential to Emit for
MACT Standards--Guidance on Timing Issues'' (May 16, 1995). EPA
continues to believe that this policy best reflects the way Congress
intended the MACT program to function. As a result, if you own or
operate a major source subject to a MACT standard for which the
initial compliance date has already passed, you cannot become a
synthetic minor source for purposes of or otherwise avoid continuing
to comply with, that particular MACT standard.
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If you wish to commence construction of a new synthetic
minor source and/or a new synthetic minor HAP source,\25\ or a
modification at an existing synthetic minor source and/or synthetic
minor HAP source, on or after the effective date of the final rule
(that is, on or after August 30, 2011), you must obtain a permit
pursuant to 40 CFR 49.158 prior to commencing construction.
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\25\ See previous footnote regarding the timing for obtaining
potential to emit restrictions on sources seeking a synthetic minor
HAP permit.
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If your existing synthetic minor source and/or synthetic
minor HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for your existing synthetic minor source and/or
synthetic minor HAP source on or after the effective date of this rule,
that is, on or after August 30, 2011. For these modifications, you must
obtain a permit pursuant to 40 CFR 49.158 prior to commencing
construction.
If your existing synthetic minor source and/or synthetic
minor HAP source was established under a permit with enforceable
emissions limitations issued pursuant to the part 71 program, the
reviewing authority has the discretion to require you to submit a
permit application pursuant to 40 CFR 49.158 for a synthetic minor
source permit under this program within 1 year after the effective date
of the final rule (that is, by September 4, 2012) or to require you to
submit a permit application for a synthetic minor source permit under
this program (pursuant to 40 CFR 49.158) at the same time that you
apply to renew your part 71 permit or to allow you to continue to
maintain synthetic minor status through your part 71 permit. If the
reviewing authority requires you to obtain a synthetic minor source
permit and/or a synthetic minor HAP source permit under this program
(pursuant to 40 CFR 49.158), it also has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
If your existing synthetic minor source and/or synthetic
minor HAP source \26\ was established through a mechanism other than
those described in preceding paragraphs, you must submit an application
for a synthetic minor source permit pursuant to 40 CFR 49.158 within 1
year of the effective date of the final rule, that is, by September 4,
2012. The reviewing authority has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
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\26\ You can only be an existing synthetic minor HAP source if
your current PTE limits are federally enforceable. 40 CFR 63.2. As a
result, a source located in Indian country can only be an existing
synthetic minor HAP source if the limits on its PTE were established
through a mechanism administered by or on behalf of EPA.
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If you submit your application and any requested additional
information in the timelines indicated above, your source will continue
to be considered a synthetic minor source or synthetic minor HAP source
(as applicable) until your synthetic minor source permit under this
program has been issued. Should you fail to submit your application and
any requested additional information in the timelines indicated above,
your source will no longer be considered a synthetic minor source or
synthetic minor HAP source (as applicable) and will become subject to
all requirements for major sources.
E. Case-by-Case MACT Determinations Under Section 112(g) of the Act
Section 112(g)(2)(B) of the Act provides that you may not construct
or reconstruct a major source of HAPs unless the appropriate permitting
authority determines that MACT for new sources will be met. If the
Administrator has not established a MACT standard for the source
category, the Act requires that MACT be determined on a case-by-case
basis.
The regulations implementing section 112(g)(2)(B) are at 40 CFR
63.40 through 63.44. The regulations at 40 CFR 63.43(c) set forth
several options for procedures that can be used to accomplish case-by-
case MACT determinations. These options include using title V
administrative procedures if a pre-construction or reconstruction
(63.43(c)(1)) title V permit is required or can be obtained, applying
for and obtaining a Notice of MACT Approval (63.43(c)(2)(i)) and ``any
other administrative procedures for preconstruction review and approval
established by the permitting authority for a state or local
jurisdiction which provide for public participation * * *''
(63.43(c)(2)(ii)).\27\
---------------------------------------------------------------------------
\27\ See also 63.42(b) for an additional option where the
permitting authority has not adopted a 112(g) program but has
authority to make case-by-case MACT determinations.
---------------------------------------------------------------------------
Currently, no Tribes have an EPA-approved title V permitting
program or have adopted any other program to implement section 112(g),
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). Therefore, EPA
expects that it will conduct case-by-case MACT determinations for
sources in Indian country.
Furthermore, while we can accomplish a section 112(g) case-by-case
MACT determination through a part 71 permit issued pre-construction or
reconstruction or a Notice of MACT Approval, we believe that if your
source is a major source only for HAPs and a minor source for regulated
NSR pollutants, the minor NSR program is an appropriate ``other
administrative procedures'' under 63.43(c)(2)(ii) for obtaining a case-
by-case MACT determination. In addition, if your source is or could be
minor for regulated NSR pollutants and is or could be major for HAPs,
it would also be administratively convenient for you and for us, as the
reviewing authority, to combine the construction permit process for
both regulated NSR pollutants and case-by-case MACT determinations
under the final minor NSR program, rather than to address regulated NSR
pollutants under the minor NSR program and also go through the part 71
permit for preconstruction or reconstruction or Notice of MACT Approval
process to address case-by-case MACT requirements. Note that even with
this approach to preconstruction review, the source is still a major
source for HAP under the MACT program (unless the source becomes a
synthetic minor source) and thus you ultimately will have to obtain a
part 71 operating permit for your major source of HAPs.
Several commenters supported the proposal to provide for case-by-
case MACT determinations in the minor NSR program because they stated
this will be consistent with the practice of most state programs, it
would be administratively convenient and regulation of HAPs is
important to health. On the other hand, one commenter argued that if a
source is major for HAPs, the source should not apply for a minor
source permit because
[[Page 38772]]
applying for a case-by-case MACT determination under the minor NSR
program would exempt the source from the MACT program.
We agree with those commenters that supported the use of the minor
NSR program as one of the mechanisms for obtaining a case-by-case MACT
determination. As we stated previously, it is administratively
convenient for us, as the reviewing authority and for you as the source
owner to combine the preconstruction permit review process for both
regulated NSR pollutants and case-by-case MACT determinations under
this minor NSR program. If not, the minor NSR source that is also major
for HAPs would have to apply for a minor NSR permit and a separate
preconstruction or reconstruction part 71 permit or Notice of MACT
Approval for its case-by-case MACT determination of its HAP emissions.
We want to clarify, however and as the opposing commenter suggested,
that using the minor NSR program as the mechanism for a section 112(g)
case-by-case MACT determination does not mean that a major source will
escape the major source requirements under the MACT program. The source
still needs to comply with the requirements of 40 CFR 63.40 through
63.44 that apply to case-by-case MACT determinations using ``other
administrative procedures.'' In addition, any source that is required
to obtain a case-by-case MACT determination is a major source of HAPs
and will have to obtain a part 71 permit.
In addition, we would like to clarify that for case-by-case MACT
determinations under this minor NSR program, we will apply the public
noticing requirements under 40 CFR 49.157 and the administrative and
judicial review procedures under 40 CFR 49.159. See final 40 CFR
49.153(a)(4) for the provisions related to section 112(g) case-by-case
MACT determinations.
F. Treatment of Existing Minor Sources Under the Minor NSR Program
In the proposal preamble, we raised the question of whether it may
be appropriate to also regulate existing minor sources in Indian
country under this minor NSR program to help attain and maintain the
NAAQS. At proposal, we discussed four options for the treatment of
existing minor sources, as follows:
Option 1--No requirements for existing minor sources
(until a source wishes to make a modification).
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
through 9 of the proposal preamble) and to submit a permit application
within 1 year after the effective date of the program.
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.
Option 4--Require all existing minor sources to be subject
to the minor NSR program requirements (as provided in section IV.A.5
through 9 of the proposal preamble).
Numerous commenters supported Option 1. These commenters believed
that this option is consistent with state minor NSR programs, is the
least burdensome on existing sources and the EPA and Tribes do not have
the resources available to implement any of the other options. In
addition, these commenters opined that regulation of existing sources
is not needed to maintain the NAAQS. On the other hand, a few
commenters opposed this option, mainly because they believed it would
not address any air quality impacts resulting from existing sources.
Regarding Option 2, a few commenters supported this option if it
were to be used in combination with other options such as Option 1 or
3. However, two commenters specifically opposed Option 2 because they
believe this option represents extremely onerous provisions for sources
and reviewing authorities.
Several commenters supported Option 3 because they believed it
would only place a small administrative burden on existing sources to
report their existing emissions while providing Tribes with important
information about the existing emissions within their jurisdictions.
Nevertheless, one commenter opposed this option because the commenter
believed Option 3 will be unduly burdensome and overbroad and could
significantly disadvantage minor sources already operating in Indian
country.
A few commenters supported Option 4 by noting that states have
generally regulated minor sources and thus that experience could aid
the implementation of this option. Another commenter added that EPA
could meet the requirements under Option 4 if we used a ``sunset
clause.'' A ``sunset clause'' would allow sources some time to come
into compliance and thereby avoid undue economic burden all at once. On
the other hand, other commenters opposed this option because they
generally believe it is extremely onerous for both sources and
reviewing authorities.
After considering the comments, we have decided to finalize Option
3 for true minor sources. For synthetic minor sources, we are
finalizing provisions as stated in section IV.D of this final rule
preamble, which include provisions that require certain sources to
obtain permits under this program 1 year after the effective date of
this rule.
We are not finalizing our preferred option for ``true'' minor
sources, Option 1, because even though we agree that this option is
consistent with state minor NSR programs and it is the least burdensome
option for existing minor sources, we believe that collecting source
inventory data for minor sources in Indian country is necessary to
successfully implement the minor NSR program. In addition, these source
inventory data are needed to assess the feasibility of an actual
emissions based applicability test and to determine if we need to
modify the minor NSR thresholds at a later time. We are also not
finalizing Option 4 at this time because we believe that Option 4 would
overwhelm limited EPA resources even if we were to use a ``sunset
clause.''
Thus, under the program we are finalizing, we are creating a
registration program for minor sources in Indian country. Under the
minor source registration program, if you own or operate an existing
true minor source in Indian country (as defined in 40 CFR 49.152(d))
you must register your source with your reviewing authority in your
area within 18 months after the effective date of this program, that
is, by March 1, 2013. This date has been modified from the 12 months we
proposed to provide existing sources additional time to comply with
these requirements. These provisions are discussed further in section
VII.C of this preamble. If your true minor source commences
construction in the time period between the effective date of this rule
and September 2, 2014, you must register your source with the reviewing
authority in your area within 90 days after the source begins
operation.
If construction or modification of your source commenced any time
on or after September 2, 2014 and your source is subject to this rule,
you must report your source's actual emissions (if available) as part
of your permit application and your permit application information will
be used to fulfill all the other registration requirements described in
40 CFR 49.160(c)(2).
This registration will be a one-time registration (not an annual
registration) of your source's estimated actual and allowable emissions
as provided in 40
[[Page 38773]]
CFR 49.160. For the Indian reservations subject to the registration
requirements under 40 CFR 49.138 (``Rule for the registration of air
pollution sources and the reporting of emissions''), the data being
collected under that rule will be used to fulfill the requirements of
this national registration program.
V. Final Major NSR Program for Nonattainment Areas in Indian Country
In this final action, we are establishing a major NSR program for
new major sources and major modifications at existing major 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, as proposed, 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 titled ``Emission Offset Interpretative Ruling'' and
sets forth preconstruction review requirements for major 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 time that 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.
We are finalizing our proposal to apply Appendix S to nonattainment
areas in Indian country for a number of reasons. 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 owners/operators of 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 re-propose 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.
A. What are the requirements for major source permitting?
Pursuant to paragraph IV of Appendix S, we have finalized that 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:
1. The new major source or a major modification meets the LAER for
that source using add-on controls or pollution prevention measures.
2. 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.
3. 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.\28\
---------------------------------------------------------------------------
\28\ In general, only intrapollutant offsets are permitted
(e.g., NOX for NOX). As part of the rulemaking
to implement the NSR program for PM2.5, Appendix S and 40
CFR 51.165 were revised to allow interpollutant trading of emissions
of PM2.5 and its precursors under certain conditions (73
FR 28321, May 16, 2008). However, this aspect of the regulations is
currently under reconsideration by EPA. See letter from Lisa P.
Jackson, EPA Administrator, to Paul R. Cort, Earthjustice, April 24,
2009. http://www.epa.gov/nsr/documents/Earthjustice.pdf.
---------------------------------------------------------------------------
4. The emission offsets provide a net air quality benefit in the
affected area.
5. The permit applicant conducts an analysis of alternative sites,
sizes, production processes and environmental control techniques for
such proposed source that demonstrates that the benefits of the
proposed source significantly outweigh the environmental and social
costs imposed as a result of its location, construction or
modification.
We received only a few comments regarding the use of Appendix S for
Indian country. A couple of commenters did not explicitly support or
oppose the use of Appendix S in Indian country, while one commenter
suggested that Appendix S failed to address provisions under the CAA.
The commenter pointed out that section 173(a)(5) of the Act provides
for permits in a nonattainment area to be issued if ``an analysis of
alternative sites, sizes, production processes and environmental
control techniques for such proposed source demonstrates that benefits
of the proposed source significantly outweigh the environmental and
social costs imposed as a result of its location, construction or
modification.'' However, the provisions under 40 CFR Part 51, Appendix
S did not include such requirement even when this requirement is
included in every approved SIP in the country. Therefore, by requiring
only the provisions of Appendix S, the commenter believed that the
proposed nonattainment major NSR program failed to satisfy the
requirements of the Act. The commenter suggested that a requirement for
an adequate alternate site assessment should be added to the proposed
regulations as a complementary requirement to Appendix S.
Upon further review of Appendix S, we agree that the section 173
alternate site provision was inadvertently missing from Appendix S
regulations. Therefore, we have amended Appendix S to include the
section 173 alternatives site provision to ensure that the provisions
of the 1990 amendments, including the CAA section 173 alternative sites
analysis provision, is codified in implementing regulations. See
section V.F. of this preamble for more details on the Appendix S
amendments.
B. How is EPA addressing the lack of available offsets in Indian
Country?
Tribal representatives have repeatedly stated that requirements for
emission offsets are problematic in Indian country because: (1) Many
Tribes believe that transport is a major cause of pollution in Indian
country, (2) Tribes generally do not have many existing sources within
their area of Indian country from which offsets can be obtained, and
(3) 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-
[[Page 38774]]
asides (which we expect would come from state offset pools or
banks).\29\
---------------------------------------------------------------------------
\29\ 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. For example, see the letter from Bill Grantham,
National Tribal Environmental Council, to docket EPA-HQ-OAR-2003-
0076, providing comments on the proposed 8-hour ozone implementation
rule (66 FR 32802).
---------------------------------------------------------------------------
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. Because of these circumstances, we
proposed 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.
1. Economic Development Zone Option
For this option we rely on section 173(a)(1)(B) of the Act under
which the Administrator, in consultation with the Secretary of Housing
and Urban Development (HUD), may identify zones within nonattainment
areas 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 a 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 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.
To be identified as an EDZ, 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 United States Department of Agriculture requires
similar eligibility criteria for participating communities located in
rural areas. We believe that some areas of Indian country may meet
these criteria and hence could qualify for this offset relief
provision.
As we proposed, the Administrator will consult with HUD only once
to develop a general set of approval criteria, such that a consultation
with HUD is not required every time a Tribe applies for its area of
Indian country to be designated as an EDZ. Also as proposed, EPA
intends to provide assistance as needed for a Tribe to complete an EDZ
designation request. If 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.
2. 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 VI.A 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.
It is important to note that this option only provides temporary
offset relief because it will cease to be available once the attainment
date for a pollutant has passed.
Several commenters gave general support to waiving the requirement
for offsets in Indian country, either through support of one or both of
the proposed options or through advocating a general waiver on other
grounds. For example, some commenters suggested that:
EPA should allow sources in Indian country to obtain
offsets not just from the Indian country area itself, but from adjacent
or upwind areas. Section 173(c) of the Act specifically provides that
offsets may be used if they are from an area with an equal or higher
nonattainment classification and if emissions from that area contribute
to a violation of the NAAQS in the area needing the offsets.
EPA should allow Tribes to participate in state offset
pools. With the approach of opening offset pools to Tribes, those
Tribes wishing to develop major sources in nonattainment areas would
still be able to do so, but would be treated like other sources needing
to obtain an offset to maintain air quality.
EPA should implement a set-aside program in which Tribes
receive a certain amount of offset emissions that would need to be made
up by the other sources in the state. The commenter believed that this
would be fair because most nonattainment problems in Indian country are
caused by sources that are not under Tribal control.
EPA, the states, the Tribe and sources could collaborate
to identify acceptable offsets outside of Indian country.
EPA should launch a concerted effort to improve the
availability of offsets in all areas that need them (not just in Indian
country) by encouraging the development of protocols to allow the
creation of offsets from nontraditional sources, especially mobile and
area/minor sources.
Tribes should be afforded the opportunity to request a
permanent offset waiver based on language in the TAR. The TAR:
``provide[s] an opportunity for Indian Tribes to assume responsibility
for the development and implementation of CAA programs on lands within
the exterior boundaries of their reservations or other areas within
their jurisdiction.'' Thus, the commenter believed that the waiver will
allow the opportunity for Tribes to be able to develop and implement
the nonattainment major NSR program.
However, other commenters believe that offsetting of major NSR
projects should be a requirement of the nonattainment major NSR program
and no waivers should be given. These commenters opined that offset
waivers would: (1) Likely be illegal under the Act, (2) cause air
quality concerns, and (3) be unfair for sources located or locating
outside of Indian country. For example, one of the commenters indicated
that there is a significant shortage of offsets in virtually every
[[Page 38775]]
district in California, while another commenter added that the proposal
would create an incentive for industrial sources to find Indian country
a kind of refuge from regulatory requirements--resulting in a tilted
playing field and exacerbating air quality and public health problems
on reservations. Other commenters stated that:
Setting up an offset bank within an area of Indian country
would be difficult because no source on Tribal land is currently
subject to NSR and therefore there are currently no offsets from
sources on Tribal land to be bought or sold. The commenter believed
that with no available offsets, when NSR is enacted on Tribal lands,
the price of the first offsets will be unaffordable for most if not all
sources on Tribal lands.
There would be problems in allowing sources on Tribal
lands access to the State offset banks. The commenter believed that
states will be apprehensive to allow sources on Tribal lands access to
state-established offset banks because states will not receive the tax
revenue from offsets purchased by sources on Tribal lands as they do
with sources within the state.
EPA, state and Tribal collaboration should not make it
necessary for Tribes to go to the states to obtain offsets for economic
development on the reservation since it denigrates the government-to-
government relations.
Offsets should not be traded between Indian country and
the states due to Tribal sovereignty issues and potential for confusion
involving monitoring and tracking costs, as well as who receives tax
revenue from the offsets.
In regards to the EDZ option, supporting commenters believed that
this option provides the flexibility for EPA not to require emissions
offsets for a project where economic development and environmental
protection are equally important concerns, while opposing commenters
believed that the EDZ option cannot lawfully be applied in the present
circumstances. According to one commenter, under section 173(a)(1)(B)
of the Act, the affected source must not cause or contribute to
emissions levels ``which exceed the allowance permitted for such
pollutant for such area from new or modified stationary sources under
section 172(c).'' The latter section, at section 172(c)(4) of the Act,
provides that the implementation plan shall identify and quantify the
emissions, if any, that will be allowed to be used under section
173(a)(1)(B) (the EDZ section) and shall ``demonstrate to the
satisfaction of the Administrator that the emissions quantified for
this purpose will be consistent with the achievement of reasonable
further progress and will not interfere with attainment of the
applicable national ambient air quality standard by the applicable
attainment date.'' Thus, the commenter believed that, in the absence of
a TIP that quantifies the allowance and makes the required
demonstration, this precondition for offset relief in EDZs would not
generally be met within Indian country.
Furthermore, another commenter believed that, by definition, the
proposed rule does not apply where there is a TIP and thus EPA would
need to look at the relevant SIP of the surrounding or adjacent state
for the applicable ``allowance of emissions'' for EDZ sources. The
commenter noted that in many cases there may be no such allowance and
that even if the relevant State SIP includes an allowance, that
allowance would almost certainly not have been calculated under the
assumption that areas in Indian country could access the allowance.
Under these circumstances, the commenter asserted, the affected state
would be entitled under the Act to determine in the first instance
what, if any, access to the allowance it wished to make available to
sources in Indian country. The commenter concluded that as a matter of
law the EDZ option is unavailable unless and until the relevant state
creates and makes available an appropriate allowance.
Another commenter also noted that as proposed, EPA would consult
with the Secretary of Housing and Urban Development only once to
develop a general set of approval criteria for EDZs. The commenter
stated that this approach appears to conflict with the language of the
Act, which requires consultation on each individual zone.
In regards to the Appendix S, paragraph VI option, several
commenters supported it because, as one of these commenters stated,
this option provides equivalent environmental protection. The reviewing
agency has to demonstrate that the proposed source will not interfere
with the attainment date for the regulated NSR pollutant(s) in the
area.
However, a number of commenters had misgivings about the paragraph
VI option, generally based on legal or environmental grounds. Two
commenters stated that the paragraph VI option is inapplicable and
unlawful because: (1) There is no applicable implementation plan in
Indian country, so no source can ``comply with applicable
implementation plan emissions limitations'' (in addition, one of these
commenters conceded that if we interpret this to require the source to
meet the SIP limits in the surrounding or adjacent state, this
requirement could be met), (2) if there is no applicable implementation
plan, it will be impossible to demonstrate that a source will not
interfere with the attainment date for a nonattainment pollutant, (3)
the Act requires that for every major source, the source must provide
sufficient offsetting emissions reductions such that there is a
reduction in emissions amounting to reasonable further progress, when
considered together with emissions from other new and existing sources
(see section 173(a)(1)(A) of the Act) and (4) the 1990 Amendments to
the Act set out specific offset ratios which major sources must meet,
such as 1.5 to 1 for Extreme Areas, 1.3 to 1 for Severe Areas, etc.
(section 182 of the Act). These ratios may be met on an aggregate basis
(i.e., individual sources may be exempt from offsets if the state makes
an equivalency demonstration showing that the universe of new sources
as a whole meets the applicable ratios). However, nothing in paragraph
VI requires that equivalency demonstration to be made. Therefore, the
commenter noted that paragraph VI on its face violates the 1990
Amendments to the Act.
Other commenters stated that the paragraph VI option is not
acceptable because it would be difficult for some Tribes to meet the
criteria. They stated that such a waiver does not balance legitimate
development needs with environmental protection or that a major source
could not interfere with attainment. One of these commenters also noted
that these waivers would expire at attainment dates and added that
these ``expiration dates'' established by states should not be imposed
on Tribes.
As we stated previously, we recognize the unique circumstances that
Tribes face as well as the difficulty in obtaining offsets in certain
parts of the country; however, we do not have the legal authority to
waive the offset requirement under section 173 of the Act or under the
TAR.
Thus and to address the lack of offsets availability, both inside
and outside of Indian country, we encourage states and Tribes to work
together in the creation and use of offset banks for their lands since
we agree that, where appropriate, Tribes can obtain offsets from
surrounding areas. For example, Tribes may enter into a Memorandum of
Understanding (MOU) with their neighboring states to allow Tribal
access to offsets in the state offset bank and vice-versa if and when
Tribes develop
[[Page 38776]]
their own offset banks. This MOU would contain provisions establishing
the criteria for emissions reductions to be used as offsets such as
real, quantifiable, surplus, permanent and enforceable.
Furthermore, we are addressing the lack of availability of offsets
in general. For example, in the final rule titled, ``Implementation of
the New Source Review (NSR) Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5)'' (73 FR 28340), we finalized
provisions that allow for inter-pollutant and inter-precursor trading
of offsets between direct PM2.5 emissions and its precursor emissions.
We believe this is a first step in the process of addressing the
shortage of offsets in the nation and we will continue to explore and
implement, as one commenter suggested, the use of non-traditional
sources of offsets such as offsets from mobile sources and area or
minor sources.
Regarding the offset waivers we proposed, we want to clarify that
these waivers are currently available under the CAA and implementing
regulations for both states and Tribes. The EDZ option is currently
available under section 173(a)(1)(B) of the Act and the Appendix S
paragraph VI option is currently available under 40 CFR part 51
Appendix S. Therefore, we disagree with those commenters that believed
that if the proposed offset waivers would only be available for Indian
country, then states would be at an economic disadvantage and/or that
we would be creating pollution havens in Indian country.
Nevertheless, based on the opposing comments we received, including
comments from the Tribes, regarding the implementation issues under the
Appendix S Paragraph VI option, we are only allowing the EDZ option
that is currently available under the statute for both Tribes and
States as a potential option for offset waiver and we are not
finalizing the Appendix S Paragraph VI option in this final rule.
After reviewing all the comments received, we believe that the EDZ
option as established by statute is available for offset relief as long
as the area meets the statutory criteria in order to qualify. In other
words, Tribes who develop TIPs might request EPA to establish their
area as an EDZ so they can avail themselves of the offset provision
under section 173 of the Act.
However, we disagree with the commenter who believed that, by
definition, the proposed rule does not apply where there is a TIP and
thus EPA would need to look at the relevant SIP of the surrounding or
adjacent state for the applicable ``allowance of emissions'' for EDZ
sources. We do not see why the commenter believed that a TIP is not an
appropriate mechanism for the EDZ provision under section 173 since the
TAR provides that Tribes will be treated in the same manner as states
for virtually all CAA programs and states generally lack jurisdiction
under the Act over facilities in Indian country.
The ability of an area to qualify would be determined on a case-by-
case basis, but criteria for including Tribes in the EDZs and for
consultation with the Tribes will need to be developed in advance and
in coordination with the Secretary of Housing and Urban Development.
These criteria will ensure that Tribal and state input are included and
that considerations are put in place to avoid industries coming into an
area strictly for the offset relief. Therefore, we disagree with the
commenter that believed that a general set of approval criteria will be
in conflict with the language of the Act.
We are not finalizing the Appendix S provision as an option for
offset waiver, since the provision is only available temporarily and it
will be challenging for EPA or the Tribe to demonstrate that the
proposed source will not interfere with the attainment date.
C. How do I meet the statewide compliance certification requirement of
the Act and Appendix S?
Pursuant to the statewide compliance certification requirements of
section 173(a)(3) of the Act, as reflected in Appendix S at Condition 2
of paragraph IV.A, an owner or operator of a proposed new or modified
major stationary source must demonstrate that all other major sources
under his/her control in the same state are in compliance or on a
schedule for compliance with all emission limitations and standards
under the Act. In the context of Indian country, we sought comment on
whether this requirement should be expressed as an Indian country-wide
compliance certification or remain a statewide certification. In other
words, we requested comment on whether you should 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.
We received a variety of comments on this issue. Several commenters
believed that the certification should be on a state-wide basis
because: (1) It will not provide sources in Indian country with a
competitive advantage over sources in non-Indian country, and (2)
obtaining certification for all of Indian country would be very
difficult since it is a vast area and sources under common control may
be operated by different business units of the same parent company. On
the other hand, one commenter believed that state-wide compliance
certification would give EPA overreaching authority to facilities that
are operating under SIP-approved programs within the state since other
sources within the same state may not be within Indian country and thus
regulated by the state rather than EPA.
Regarding the Indian country-wide certification, one commenter
supported it. The commenter believed this type of certification will
benefit Tribes by allowing for the development of compliance databases,
assisting Tribes with monitoring patterns of noncompliance, minimizing
risk of noncompliance and building and enhancing consumer and market
confidence.
Other commenters provided comments supporting a national
certification (not proposed) since they believed that expanding the
requirement will ensure that the sources attempting to locate in Indian
country will operate within regulatory parameters and several
reservations exist in more than one state. Other commenters supported a
certification for each applicable area of Indian country since these
commenters believe that: (1) It would be too burdensome to require such
certification across all of Indian country and (2) this is more
consistent with treatment of individual Tribes as states under
applicable EPA regulations.
After consideration of comments, we are finalizing a state-wide
compliance certification requirement consistent with section 173(a)(3)
of the Act. We believe that a state-wide compliance certification: (1)
Provides a broad enough look at the compliance history of the company,
without overburdening the review process and (2) reflects a geographic
approach to the certification rather than an approach based on the
entity that is sovereign. An Indian country-wide certification would
not have the proximity and geographic contiguity that a state-wide
approach would have.
D. What are the 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 in Indian country, we are finalizing
detailed public participation requirements at 40 CFR 49.171. As
proposed, the final public participation
[[Page 38777]]
requirements for the nonattainment major NSR program are very similar
to those finalized for the minor NSR program at 40 CFR 49.157. See
section IV.B of this preamble for more information on these
requirements and the comments we received.
E. What are the provisions for final action on a permit, permit
reopenings and administrative and judicial review procedures?
In general, these provisions are based closely on selected
provisions of part 124, subpart A. The specific provisions are as
follows:
1. Final Action on a Permit
This final rule requires that after making a decision to issue or
deny your permit, the reviewing authority must notify you of the
decision in writing and, if the permit is denied, provide 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 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. See final 40 CFR 49.172(a).
The reviewing authority's final decision on your permit must be
based on an administrative record and the final rule includes
requirements on what must be in that record. For example, the
administrative record must include the application and any supporting
data furnished by the applicant and all comments received during the
public comment period, including any extension or reopening. See final
40 CFR 49.172(b) and (c) for a listing of all the requirements.
A few commenters largely supported the proposed provisions for
providing notice of final permit actions. However, the commenters
recommended that such notice be provided in the same manner that it was
provided during the public comment on the draft permit. The commenters
believed that numerous inconsistencies will occur if the agency uses
subjective discretion based, as we proposed, ``upon the circumstances
of your permit.''
Based on the comments received, we are finalizing slightly
different final permit public notice requirements for the nonattainment
major NSR program and the minor NSR program. We believe that for major
sources in nonattainment areas making a copy of the permit available at
all of the locations where the draft permit was made available will not
be too burdensome for the reviewing authorities and will ensure that
the affected community and the general public have reasonable access to
the applicable information. These provisions are included in 40 CFR
49.171 of this final rule. However, for minor sources, we continue to
believe that 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.B.4 of this
preamble because providing the same public noticing procedures as those
that were used during the comment period for the draft permit might be
too burdensome for minor sources. These provisions are included in 40
CFR 49.157 of this final rule.
Regarding the administrative record for a permit decision, we are
finalizing these provisions as proposed and under 40 CFR 49.172(b) and
(c). 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 no less than 5 years. These provisions are
the same as the ones for the minor NSR program and details of the
comments received and the rationale behind finalizing these provisions
are included in section IV.B.3 of this preamble. We did not receive any
comments about these provisions specifically for the nonattainment
major NSR program.
2. Permit Reopenings
Regarding the permit reopening provisions, the final rule requires
that a permit may be reopened for cause by the reviewing authority on
its own initiative, such as if it contains a material mistake or fails
to assure compliance with permit requirements. See final 40 CFR
49.172(e). Details of the comments received and the rationale behind
finalizing these provisions are included in section IV.B.5 of this
preamble. We did not receive any comments about these provisions
specifically for the nonattainment major NSR program.
3. Administrative and Judicial Review Procedures
At 40 CFR 49.172(d), we have finalized the provisions under which
permit decisions for major nonattainment NSR permits may be appealed.
Details of the comments received and the rationale behind finalizing
these provisions are included in section IV.B.5 of this preamble. We
did not receive any comments about these provisions specifically for
the nonattainment major NSR program.
F. How is EPA revising Appendix S?
As we explain in more detail in section V.A. of this preamble, we
are amending Appendix S to include the alternative sites analysis
provisions of CAA section 173. Therefore, we are finalizing a change to
Appendix S that will add a Condition 5 to the provisions under 40 CFR
Appendix S Paragraph IV.A. This condition will state that the permit
applicant shall conduct an analysis of alternative sites, sizes,
production processes and environmental control techniques for such
proposed source that demonstrates that the benefits of the proposed
source significantly outweigh the environmental and social costs
imposed as a result of its location, construction or modification.
In addition and as proposed, we are finalizing 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 NSPS in
40 CFR part 60 or any national emission standard for HAPs in 40 CFR
part 61.'' While we have incorporated this requirement into final 40
CFR 49.169(a), we believe that it should be expanded to include the
newer national emission standards for HAPs codified at 40 CFR part 63
(commonly referred to as MACT standards). Accordingly, we are revising
paragraph II.B of Appendix S to add these standards under the Act and
to match the revised language of this paragraph with the final 40 CFR
49.169(a). We did not receive any comments for this proposed provision.
VI. Legal Basis, Statutory Authority and Jurisdictional Issues
A. What is the basis for EPA's authority to implement these NSR
programs in Indian country?
As we have described in section III of this preamble, in the
absence of an EPA-approved 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). For
the PSD program, no Tribe is currently administering an EPA-approved
PSD program.\30\ Therefore, EPA has been
[[Page 38778]]
implementing a FIP and issuing PSD permits for major sources in
attainment areas in Indian country. See 40 CFR 52.21.
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\30\ Under the Act and the 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.
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For the nonattainment major NSR program and the minor NSR program
in Indian country, no Tribes have been administering an EPA-approved
nonattainment major NSR program and only a few Tribes have been
administering EPA-approved minor NSR programs.\31\ In addition, there
has been no FIP in place to implement these programs until now. Hence,
there was a regulatory gap in Indian country. This final rule will
allow us to address that gap and more fully implement the NSR program
in Indian country. We are finalizing 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.
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\31\ For example, the St. Regis Mohawk Tribe has in place an
EPA-approved TIP that includes provisions for minor NSR and
synthetic minor permitting (See http://www.srmtenv.org/pdf_files/airtip.pdf). In addition, the Gila River Indian Community has
developed a TIP that includes a minor NSR program (See http://www.epa.gov/region9/air/actions/gila-river.html).
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It is important to recognize, however, that even though we are
adopting this Federal program that applies in Indian country, the
Tribes may still develop TIPs, similar to SIPs, to implement these
programs. If a Tribe develops a TIP to implement NSR, the TIP, once it
is approved by EPA, will replace the Federal program as the requirement
for that area of Indian country and the Tribe will become the reviewing
authority under its TIP.
A few commenters remarked upon EPA's analysis of its jurisdiction
in Indian country (citing various court cases as well as legislative
history). These commenters believed that in general Congress placed the
primary responsibility of preventing air pollution on states and thus
states have the responsibility to adopt or enforce any emission
standards in Indian country. Some of these commenters also added that
this FIP violates the CAA because the Administrator has failed to make
a finding that any specific state or Tribe has failed to submit an
implementation plan or that any specific implementation plan either
fails to satisfy the minimum criteria under the Act or has been
disapproved in whole or in part. In addition, the commenter believed
that the Act only authorizes the adoption of a FIP on a jurisdiction-
by-jurisdiction basis, not nationally. Two of these commenters also
stated that even if the EPA adopts the proposed nationwide FIP, the FIP
cannot supersede and EPA must acknowledge, the State of Oklahoma's
right to administer its state air quality programs in areas of Indian
country within Oklahoma under the Federal Safe, Accountable, Flexible
and Efficient Transportation Equity Act: A Legacy for Users (2005). We
disagree with these commenters to the extent they believe EPA does not
have authority under the Act to implement these programs in Indian
country.
EPA's Authority To Implement the CAA in Indian Country. In the
final rule titled, ``Indian Tribes: Air Quality Planning and
Management,'' generally referred to as the ``Tribal Authority Rule'' or
``TAR,'' EPA explains that it intends to use its authority under the
CAA ``to protect air quality throughout Indian country'' \32\ by
directly implementing the CAA's requirements where Tribes have chosen
not to develop or are not implementing an EPA-approved CAA program. 63
FR 7254, February 12, 1998. The final TAR at 40 CFR 49.11 states that
EPA would ``promulgate without unreasonable delay such FIP provisions
as are necessary or appropriate to protect air quality'' for these
areas. The EPA is exercising its authority under sections 301(a) and
301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate FIPs in order to
remedy an existing regulatory gap under the CAA with respect to Indian
country.
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\32\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (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) 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. 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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Although many facilities in these areas may have historically
followed state and local government air quality programs, with rare
exception, EPA has never approved those governments to exercise
regulatory authority under the CAA in any area of Indian country. In
addition, EPA has never approved a state or local government to
implement a minor NSR or nonattainment major NSR program in Indian
country.\33\ Since the CAA was amended in 1990, EPA has been clear in
its approvals of state programs that the approved state program does
not extend into Indian country. It is EPA's position that, absent an
explicit demonstration of authority by a state to administer a CAA
program in Indian country and absent an explicit finding by EPA of such
jurisdiction and explicit approval of the state in Indian country,
state and local governments lack authority under the CAA over air
pollution sources and the owners or operators of air pollution sources
throughout Indian country.
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\33\ For purposes of approving the Washington Department of
Ecology (WDOE) operating permits program under 40 CFR part 70, EPA
explicitly found that WDOE demonstrated that the Washington Indian
(Puyallup) Land Claims Settlement Act, 25 U.S.C. 1773, gives
explicit authority to state and local governments to administer
their environmental laws on all nontrust lands within the 1873
Survey Area of the Puyallup Reservation in Tacoma, Washington.
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Because only a few Tribes have yet sought eligibility to administer
a minor NSR program and no Tribe has yet sought eligibility for the
nonattainment major NSR program, a gap for implementation of these
programs currently exists in Indian country. Given the longstanding air
quality concerns in some areas and the need to establish requirements
in all areas to maintain CAA standards, EPA believes that these FIP
provisions are appropriate to protect air quality in Indian country
where no EPA-approved minor NSR or nonattainment major NSR program is
in place.
The rules published here are based on the same CAA authority as EPA
has used elsewhere in rulemaking that have been affirmed by the courts.
The EPA's interpretation of its authority has been affirmed by the U.S.
Court of Appeals for the District of Columbia Circuit in Arizona Public
Service Co. v. EPA, 211 F.3d 1280 (DC Cir. 2000), cert. denied 121 S.
Ct. 1600 (2001). In addition, EPA's authority to issue operating
permits to major sources located in Indian country under title V of the
Act, pursuant to nationwide regulations at 40 CFR part 71, was affirmed
in State of Michigan v. EPA, 268 F.3d 1075 (DC Cir. 2001). The EPA has
used this same authority to issue a number of FIPs to address air
pollution concerns on a regional basis and at specific facilities
located in Indian country. See Federal Implementation Plans Under the
Clean Air Act for Indian Reservation in Idaho, Oregon, Washington, 40
CFR part 49, subpart M (70 FR 18074, April 8, 2005) (upheld in Safe Air
for Everyone v. EPA, 2006 WL 3697684 (9th Cir. 2006)); FIP for Tri-
Cities landfill, 40 CFR 49.22 (64 FR 65664, November 23, 1999); Salt
River Pima-Maricopa Indian Community, 40 CFR 49.22 (64 FR 65663,
November 23, 1999); FIP for the Astaris-Idaho LLC Facility (formerly
owned by FMC Corporation) in the Fort
[[Page 38779]]
Hall PM-10 Nonattainment Area, 40 CFR 49.10711 (65 FR 51412, August 23,
2000) and FIP for Four Corners Power Plant, Navajo Nation, 40 CFR 49.23
(72 FR 25698, May 7, 2007) (upheld in Arizona Public Service Co. v.
EPA, 562 F.3d 1116 (10th Cir. 2009)).
Effects of State Law. The rules established by EPA here are in
effect under the CAA. The EPA recognizes that in a few cases, other
state or local governmental entities may have established air quality
requirements that the commenters believe apply to activities in Indian
country. However, unless those rules or requirements have been
explicitly approved by EPA under the CAA to apply in Indian country,
compliance with those other requirements does not relieve a source from
complying with the applicable provision of this FIP. As EPA has stated
elsewhere, 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, 216 and n.18 (1987); see also HRI v. EPA, 198 F.3d 1224, 1242
(10th Cir. 2000); see also discussion in EPA's final rule for the
Federal operating permits program, 64 FR 8251-8255, February 19, 1999.
Furthermore, with regard to Indian reservations, EPA interprets the
CAA as establishing unitary management of air resources and as a
delegation of Federal authority to eligible Tribes to implement the CAA
over all sources within reservations, including non-Indian sources on
fee lands. Accordingly, even if a state could demonstrate authority
over non-Indian sources on fee lands within an Indian reservation, EPA
believes that the CAA generally provides the Agency the discretion to
Federally implement the CAA over all Indian reservation sources in
order to ensure an efficient and effective transition to Tribal CAA
programs and to avoid the administratively undesirable checker-boarding
of reservation air quality management based on land ownership. The EPA
believes that Congress intended that EPA take a territorial view of
implementing air programs within reservations. The EPA also believes
that air quality planning for a checker-boarded reservation area would
be more difficult and that it would be inefficient if a state were to
exercise regulation over piecemeal tracts of land within such areas,
possibly with similar Indian country sources being subject to different
substantive requirements. The EPA's approach provides for coherent and
consistent environmental regulation within Indian country.
Although EPA does not recognize state or local air regulations as
being effective within Indian country for purposes of the CAA, absent
an express approval by EPA of those regulations for an area of Indian
country, this rulemaking does not address the validity of state and
local law and regulations with respect to sources in Indian country or
the authority of state and local agencies to regulate such sources, for
purposes other than the Federal CAA. We are specifically not making a
determination that these Federal CAA rules override or preempt any
other laws that have been established outside the scope of the Federal
CAA. The EPA does not, therefore, believe that any further preemption
analysis suggested by the commenters is needed in these circumstances.
As described above, EPA believes that its authority under the CAA to
implement these programs in Indian country is clear and well-
established and has been upheld by reviewing courts in similar
circumstances.
With regard to the comments relating to Indian country and the
State of Oklahoma, EPA recognizes that the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005 (SAFETEA) contains a
provision (section 10211) relating to implementation of environmental
regulatory programs under Federal environmental laws, including the
CAA, in Indian country in Oklahoma. However, to date, neither the State
of Oklahoma, nor any Indian Tribe in Oklahoma, has applied for EPA
approval to administer either of the CAA programs included in this
rulemaking for any area of Indian country. In the absence of an EPA-
approved program, these FIPs will apply throughout Indian country,
including Indian country in Oklahoma. In promulgating these FIPs, EPA
is not acting on any potential request by the State of Oklahoma to
administer any CAA or other regulatory program in Indian country, nor
is EPA acting on any potential treatment-in-the-same-manner-as-a-state
application for an environmental regulatory program by any Indian Tribe
in Oklahoma. The EPA would address any such applications when necessary
and on a case-by-case basis and in full consideration of the
requirements of Section 10211 of SAFETEA. Section 10211 of the SAFETEA
is thus not implicated in this rulemaking and is not a relevant
consideration in EPA's promulgation of the minor and nonattainment
major NSR programs for Indian country, including Indian country in
Oklahoma.
B. How does a Tribe receive delegation to assist EPA with
administration of the Federal minor and major NSR rules?
With this action, we are finalizing the provisions on
administrative delegation to Tribes as proposed. Our authority for such
delegations is discussed in the following paragraphs.
Under the procedures set forth in the TAR, Tribes may seek to
demonstrate eligibility for approval of Tribal programs under the Act,
including a Tribal NSR program, under Tribal law.\34\ The TAR allows
Tribes to seek approval for such programs covering their reservations
or other areas within their jurisdiction. However, we recognize that
some Tribes may choose not to develop Tribal NSR programs for
submission to EPA for approval under the TAR, but that these Tribes may
still wish to assist us in implementing all or some portion of the
Federal NSR program for their area of Indian country. In addition,
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
available for Tribal agencies to take on permitting responsibilities.
Accordingly, we are exercising our discretion to delegate
administration of the Federal NSR program to interested and qualified
Tribal agencies satisfying the requirements of final provisions at 40
CFR 49.161 and 49.173. By assisting us with administration of the
Federal program through delegation, Tribes may 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. Therefore final 40 CFR 49.161 and 49.173 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.
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\34\ As noted elsewhere, the TAR contains a process, 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.
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We have well-established processes for delegating our Federal
authority to states and/or Tribes for administering Federal rules under
the Act, including
[[Page 38780]]
conducting NSR under 40 CFR 52.21(u),\35\ issuing Federal operating
permits under 40 CFR 71.4(j) and 71.10 and delegation to Tribes of
elements of the Federal air rules for Indian country in the Pacific
Northwest under 40 CFR 49.122. The process we will 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 under those provisions.
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\35\ The current provisions under 40 CFR 52.21(u) do not allow a
tribe to request delegation of the PSD program. However, we are
aware of this deficiency and we are currently working on a
rulemaking that will amend this provision.
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This 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 sections 40 CFR 49.161
and 49.173.\36\ In addition, program functions delegated under final 40
CFR 49.161 or 49.173 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.
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\36\ 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.
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As described in the preamble to the TAR,\37\ 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 non-reservation areas of Indian
country. Arizona Public Service Co. v. EPA, 211 F. 3d 1280 (DC Cir.
2000), cert. den., 532 U.S. 970 (2001).
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\37\ See 63 FR 7254-59.
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In contrast, the administrative delegation approach finalized 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 final 40 CFR 49.161(b)(1) and
49.173(b)(1). Since this program operates throughout Indian country
under Federal authority, Tribes will 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 will
assist us in implementing the Federal program by taking delegation of
the administration of particular activities conducted under our
authority in Indian country. Under final 40 CFR 49.161(b)(1)(iii)(C)
and 49.173(b)(1)(iii)(C), Tribes will 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 EPA, not the delegate Tribal agency, under Federal law.
Administrative appeals of permitting decisions will 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
final rules we make it clear that we will not delegate enforcement or
appeal components of the program to Tribal agencies.
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 EPA 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.\38\ In any such
delegation, we retain the authority to object to the 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.
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\38\ 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.
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We did not receive any comments expressly supporting our delegation
provisions. However, a number of commenters opined that when a Tribe
has administrative delegation of the program, enforcement authority
should be delegated to the Tribes as well. These comments are addressed
in section VII.B of this preamble.
Other commenters oppose delegation of the program to the Tribes.
One of these commenters believed that
[[Page 38781]]
delegation demonstrations will be approved by EPA based on their
administrative completeness, rather than on their technical merit and
thus recommends that any delegation be contingent upon an approved TIP.
Another commenter maintained that only the TAS process should be used
to delegate authority of environmental programs to Tribes to avoid
jurisdictional conflicts between EPA, Tribes and the state (especially
in Oklahoma because there have been, according to the commenter,
significant problems there with Tribes providing adequate jurisdiction
of lands they claim) and to avoid confusion for the regulated
community. The commenter suggested that if the administrative
delegation process is included in the final NSR program, it should
include a Federal Register public notice and comment provision. Another
commenter believed that because EPA has not made any jurisdictional
determinations in connection with the proposed FIP, delegation of
authority to Tribes to assist in administering the FIP violates the
plain requirements of the Act.
As described previously, EPA continues to believe that the CAA
authorizes us to use the administrative delegation approach to assist
EPA in carrying out implementation of our Federal program. See CAA
section 301(a).\39\ The EPA believes that the administrative delegation
provisions provide additional flexibility for implementation of the
Federal rules and establish an appropriate means for Tribal involvement
in EPA's Federal implementation of CAA requirements.
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\39\ 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. This
authority supports EPA's finalization of 40 CFR 49.161 and 49.173 of
the minor and major NSR rules, respectively, which provide for
partial administrative delegations to tribal agencies. However,
nothing in the final rules requires us to delegate administration of
any aspect of the federal program to a tribal agency.
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As described above, delegation of the authority to assist EPA with
administration of elements of the Federal NSR programs is a process
that is distinct from approval of Tribal eligibility and Tribal
programs under CAA section 301(d) and the TAR. To the extent the
commenters are concerned that administrative delegation acts as an
approval of Tribal authority, EPA reiterates that irrespective of any
such delegation, the minor NSR and nonattainment major NSR programs
established here will continue to operate under Federal authority
subject to EPA appeal procedures before EPA's Environmental Appeals
Board and to enforcement solely by EPA. The administrative delegation
provision simply allows EPA to delegate certain functions to qualified
Tribes that may then assist EPA with administration of the programs.
EPA also notes that because the minor and nonattainment major NSR
programs will continue to operate under Federal authority (irrespective
of administrative delegation of any functions to qualified Tribes),
none of the jurisdictional issues raised in the comments should arise.
Indeed, as described elsewhere, EPA's well-established Federal
authority to implement CAA programs in Indian country in the absence of
an EPA-approved program should provide jurisdictional certainty to all
sources covered by these programs. Similarly, issues of Tribal
jurisdiction over covered sources should not arise since no showing or
finding of such jurisdiction is needed for administration of the
Federal programs.
As noted in EPA's proposal of the minor NSR and nonattainment major
NSR rules, EPA also intends to consult with other Federal, state,
Tribal or local governmental entities or other governmental agencies in
the area, prior to finalizing a delegation agreement with a Tribal
agency. Although the CAA does not require such consultations or any
specific process, to approve administrative delegations, EPA believes
that this approach provides an appropriate opportunity for such
governmental entities to express views regarding the potential
delegation agreement and will assist EPA in identifying any
unanticipated issues.
The EPA also notes that our establishment of criteria for the
delegation provisions of the minor and nonattainment major NSR rules
for Tribes seeking to assist EPA with administration of the Federal
programs does not change the criteria EPA would evaluate in reviewing
and acting upon Tribal applications for TAS under CAA section 301(d)
and the TAR. CAA section 301(d) and the TAR at 40 CFR 49.6 and 49.7
establish the criteria Tribes must demonstrate and the types of
information to be included in Tribal applications, to obtain TAS
eligibility to administer Tribal programs under Tribal law.
Although the TAS and delegation criteria overlap in certain
respects, they also contain significant differences, most notably in
the required demonstration of authority. Tribes seeking TAS eligibility
to administer approved Tribal regulatory programs under Tribal law must
demonstrate their relevant authority, including appropriate enforcement
authority, to regulate air quality in the areas to be covered by the
program. See 40 CFR 49.6(c) and 49.7(a)(3). By contrast, because the
minor and nonattainment major NSR programs will, in all circumstances,
operate under Federal authority, Tribes requesting to assist EPA
through administrative delegation need not demonstrate Congressionally-
delegated authority over air resources within the exterior boundaries
of their reservations or authority over non-reservations areas of
Indian country. Instead, such Tribes would only need to show that their
laws provide adequate capacity and authority to carry out the delegated
activities. These distinctions between the TAS and administrative
delegation requirements are important and EPA reiterates that nothing
in either process is intended to affect the criteria and requirements
for the other.
C. What happens to permits previously issued by states to sources in
Indian country?
In the past, sources in some areas of Indian country may have
received permits from states. 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. See
sections III.B and VI.A. of this preamble for more information.
Therefore, this final rulemaking provides 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 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. See final 40 CFR 49.168(b). We believe that transforming the
state permits into Federal major NSR permits for major sources in
Indian country is appropriate to protect air quality in Indian country.
A couple of commenters believed that the permit reapplication
process set out in the proposed 40 CFR 49.158(c)(1) and 49.168(b) seems
unnecessarily complex and thus these commenters argued that these
permits should be transferred ``en masse'' from one agency to the other
with a simple notification to the operator of the transfer or
jurisdiction. One of these commenters added that if EPA feels that the
``en masse'' transfer methods are impracticable, then the source should
be able to transfer the permit by submitting a transfer request (not a
complete application) with a copy of the permit to both agencies, while
the other commenter stressed that sources with state minor NSR permits
should be
[[Page 38782]]
grandfathered into the Indian country program and not required to
conduct minor NSR permitting.
On the other hand, one commenter maintained that while previous
state permit conditions may be appropriate to be included in the new
Federal permit, this should not be automatic. The commenter also stated
that government-to-government consultation between EPA and the affected
Tribe must take place during this process. Furthermore, two commenters
pointed out that the proposal did not discuss what enforcement
mechanism would be used if a source failed to convert a state permit to
a Federal permit in the given time frame and thus one of these
commenters recommended that EPA should consider using Tribal courts for
this purpose since the infraction would occur on Tribal lands and
within Tribal jurisdiction.
After considering these comments, we believe that transforming
state nonattainment major NSR permits into Federal nonattainment major
NSR permits in Indian country is appropriate to protect air quality in
Indian country. However, we do not believe that these permits should be
transferred ``en masse'' from one agency to another or be automatically
transferred because we need to determine if the permit complies with
the applicable requirements under the NSR program. If it does not, a
new permit with appropriate requirements would have to be public
noticed and issued. If a source fails to obtain a required Federal
permit by the established timeline and/or does not meet the applicable
requirements under this rule, it may be subject to potential
enforcement action. We also believe that since any failure of a source
to convert a state permit into a Federal permit would be a violation of
this rule, the violation is of the Federal requirement and thus
administratively enforceable by EPA and in Federal court, not Tribal
court. Because these programs are operated under Federal authority,
there is no finding (and no need for a finding) of Tribal jurisdiction.
VII. Implementation Issues
A. Are Tribes allowed to collect fees for NSR permitting?
Many Tribal commenters suggested that the NSR program should
include a mechanism that allows Tribes or the EPA to collect fees to
offset the costs of the program, especially when a Tribe has been given
delegation of the program. Two of these commenters pointed out that
Tribes that do accept delegation of the program will need resources,
such as funds to train and support personnel who will be reviewing and
commenting on the permitting applications and funds for providing
technical assistance to businesses regarding compliance issues. Some of
these commenters also indicated that EPA should provide funding for
Tribal implementation of the NSR program, for example, through
cooperative agreements and grants.
The Agency is aware of and concerned about the resource needs of
the rule, but the CAA does not give the Agency explicit authority to
charge permit fees for pre-construction permitting. However, under a
delegation agreement, EPA and the delegated Tribe could, as
appropriate, establish mechanisms to fund the work by Tribal staff,
that may include Federal funding assistance through cooperative
agreements and grants and/or user fees and charges established by the
Tribe [under Tribal law] for the purpose of funding its administrative
activities on behalf of EPA (See Federal Implementation Plans Under the
Clean Air Act for Indian Reservations in Idaho, Oregon and Washington
(70 FR 18080)). In addition, Tribes that develop TIPs can charge for
permits under their authority. Furthermore, the final rule includes a
number of mechanisms to address concerns regarding the resource burden,
including: Encouraging delegation of the program through trainings
(face-to-face training sessions and through ITEP training) and
developing and using general permits.
B. Who retains enforcement authority in Indian country?
Numerous Tribal commenters recommended that administrative
delegation of the program to Tribes should include enforcement
authority. Where they were specific, most of these commenters specified
delegation of civil enforcement authority (including the ability to
collect civil penalties to help support the program), but a number of
commenters also favored delegation of criminal enforcement authority.
In addition, commenters stated that by declining to administratively
delegate enforcement (whether civil or criminal) of Federal permits to
Tribes, EPA is acting inconsistently with other delegations which, in
the commenters' view, withhold only criminal enforcement, but include
civil enforcement. Other commenters also added that Tribes should be
allowed to negotiate the level of enforcement authority on a case-by-
case basis. We disagree with these commenters.
The EPA believes that these commenters mistake the distinction
between approvals of Tribal programs under Tribal law provided for in
the TAR and the administrative delegations at issue here. Where EPA
approves an eligible Tribe for TAS under CAA section 301(d) and the
TAR, EPA will continue to review the applicant Tribe's authority,
including its authority to enforce, in an appropriate Tribal forum, any
approved Tribal program operated under Tribal law. In such
circumstances, EPA has recognized that certain limitations on Tribal
criminal authority should not constitute a bar to Tribal program
approval and has determined to fill any gap in Tribal criminal
authority by retaining primary criminal enforcement at the Federal
level for all circumstances in which a Tribe is precluded from
exercising such authority. See 40 CFR 49.7(a)(6), 49.8. In such
situations EPA would, however, generally expect the applicant Tribe to
demonstrate authority to pursue appropriate civil enforcement under
Tribal law of any approved Tribal program.
By contrast, any permits issued under the Federal NSR programs
(even where issued by a Tribe acting on EPA's behalf pursuant to a
delegation agreement) remain Federal in character and continue to be
enforceable (whether civilly or criminally) in Federal court. EPA does
not believe that it would be appropriate to delegate enforcement of a
Federal permit in Federal court to an Indian Tribe assisting EPA with
administration of the NSR program. Indeed, in similar circumstances EPA
has consistently withheld enforcement in Federal court from any
administratively delegated entity, whether a state or a Tribe. For
instance, under certain other CAA programs (e.g., EPA's major source
operating permit program under 40 CFR part 70 and EPA's PSD program
under 40 CFR 52.21) EPA may, in appropriate circumstances, delegate
administration of elements of the program to non-Federal entities.
However, while such entities may pursue enforcement in their own courts
of parallel non-Federal air quality requirements, enforcement of the
Federal permit in Federal court will always be retained and conducted
by EPA.\40\ See also 40 CFR 49.122; 70 FR 18074, 18080-81, April 8,
2005 (discussing EPA's similar approach to administrative delegation in
the context
[[Page 38783]]
of FIPs for Indian reservations in the Pacific Northwest).
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\40\ Most states have sought and obtained EPA approval to
administer their own minor and nonattainment major NSR programs
administered under state law. To the extent the commenters believe
that states are pursuing enforcement of NSR programs, EPA notes that
such enforcement is likely being taken pursuant to State law under
such approved state programs.
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The EPA's approach to administrative delegation of the Federal NSR
programs is thus consistent with other administrative delegation
regulations and with EPA's approach to approval of Tribal programs
under the TAR. The EPA notes that Tribes interested in enforcing NSR
permits issued in their areas may continue to seek TAS eligibility and
program approval pursuant to established procedures under the TAR.
Indeed, EPA expects that the approach to administrative delegation of
elements of the Federal NSR program may benefit such Tribes by
providing opportunities for Tribes that are building air quality
programs to gain experience by assisting EPA with administration of the
Federal rules without needing to first develop Tribal air programs
under Tribal law. To the extent such Tribes do subsequently obtain TAS
eligibility and NSR program approval, their approved Tribal programs
under Tribal law would replace the relevant Federal rule. In addition,
EPA recognizes that some Tribes may choose not to develop air programs
under Tribal law, but may still want to participate in air quality
management in their areas of Indian country. Administrative delegation
of elements of the Federal rules may provide an appropriate opportunity
for such Tribal involvement.
Consequently, EPA believes the distinction between delegation of
administration of aspects of the Federal NSR rules and approval of
eligible Tribal programs under CAA section 301(d) and the TAR is
significant and warrants EPA's retention of Federal enforcement of
Federal NSR permits in Federal court. The EPA also believes that this
approach does not create any inconsistency with its treatment of Tribal
programs under the TAR or with EPA's approach to administrative
delegations of other CAA programs to Tribes and states.
C. What is the implementation schedule for the final rules?
At proposal we stated that all the provisions of these final rules
will be effective 60 days from publication of the final rule based on
the information we had at the time about the number of sources that
might need to seek permits under the minor NSR program. In the
proposal, we noted that the data on minor sources in Indian country
were very limited, but we projected that 288 new minor sources and 112
modifications will be required to obtain permits during the first six
years of implementation of the minor NSR program (71 FR at 48724).
Since then, however, the Agency has obtained additional information
about sources in Indian country and the Agency now estimates that
several thousand new and modified minor sources will be created in
Indian country during the first six years following issuance of this
rule (see section VIII of this preamble for more information about the
projected number of new and modified sources that might be subject to
this program).
Furthermore, a few commenters believed that neither EPA nor Tribal
agencies had adequate resources to implement the NSR program without
significant permitting delays. One commenter in particular was very
concerned about the workload EPA Regions will have, especially those
Regions that oversee large areas of Indian country, given EPA's
presupposition that few, if any, Tribes will be prepared to pursue
delegation of the responsibility to implement these requirements.
Therefore, upon review of our updated estimate of the projected
number of covered sources and the comments we received pertaining to
this issue, we agree that it would be very challenging for us, as the
reviewing authority until a Tribe requests delegation or obtains
approval of a TIP, to implement all elements of the final rules
simultaneously beginning on the rules' effective date. We currently
experience resource constraints and these rules will create new
workload for the Agency, especially for those EPA Regions where EPA, as
the reviewing authority, would oversee a large number of Tribes.
Consequently, to ensure timely permit issuance, we have decided to
delay the implementation date of the minor NSR permitting requirement
for true minor sources for a period of 36 months after this rule's
effective date, that is, September 2, 2014. The implementation dates of
other parts of the program depending on the type of source being
permitted are as follows:
Existing major sources.
If you wish to commence construction of a minor
modification at an existing major source on or after the effective date
of the final rule (that is, on or after August 30, 2011), you must
obtain a permit pursuant to 40 CFR 49.154 and 49.155 (or a general
permit pursuant to 40 CFR 49.156, if applicable) prior to commencing
construction.
If you wish to obtain a synthetic minor source permit
pursuant to 40 CFR 49.158 to establish a synthetic minor source and/or
a synthetic minor HAP source at your existing major source, you may
submit a synthetic minor source permit application on or after August
30, 2011. However, if your permit application for a synthetic minor
source and/or synthetic minor HAP source pursuant to the FIPs for
reservations in Idaho, Oregon and Washington has been determined
complete prior to August 30, 2011 you do not need to apply for a
synthetic minor source permit under this program.
Synthetic minor sources.
If you wish to commence construction of a new synthetic
minor source and/or a new synthetic minor HAP source \41\ or a
modification at an existing synthetic minor source and/or synthetic
minor HAP source on or after the effective date of the final rule (that
is, on or after August 30, 2011), you must obtain a permit pursuant to
40 CFR 49.158 prior to commencing construction.
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\41\ EPA's historic policy is ``that facilities may switch to
area source status [in this case through a synthetic minor permit]
at any time until ``the first compliance'' of the standard. The
``first compliance date'' is defined as the first date a source must
comply with an emission limitation or other substantive regulatory
requirement (i.e., leak detection and repair programs, work practice
measures, housekeeping measures, etc * * *, but not a notice
requirement) in the applicable MACT standard. Facilities that are
major sources for HAPs on the ``first compliance date'' are required
to comply permanently with the MACT standard to ensure that maximum
achievable reductions in toxic emissions are achieved and
maintained.'' Memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, U.S. EPA, ``Potential to Emit for
MACT Standards--Guidance on Timing Issues'' (May 16, 1995). EPA
continues to believe that this policy best reflects the way Congress
intended the MACT program to function. As a result, if you own or
operate a major source subject to a MACT standard for which the
initial compliance date has already passed, you cannot become a
synthetic minor source for purposes of or otherwise avoid continuing
to comply with that particular MACT standard.
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If your existing synthetic minor source and/or synthetic
minor HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to 40 CFR 49.158 prior to
commencing construction.
If your existing synthetic minor source and/or synthetic
minor HAP source was established under a permit with enforceable
emissions limitations
[[Page 38784]]
issued pursuant to the part 71 program, the reviewing authority has the
discretion to require you to submit a permit application for a
synthetic minor source permit under this program within 1 year after
the effective date of the final rule (that is, by September 4, 2012,
and pursuant to 40 CFR 49.158), to require you to submit a permit
application for a synthetic minor source permit under this program
(pursuant to 40 CFR 49.158) at the same time that you apply to renew
your part 71 permit or to allow you to continue to maintain synthetic
minor status through your part 71 permit. If the reviewing authority
requires you to obtain a synthetic minor source permit and/or a
synthetic minor HAP source permit under this program (pursuant to 40
CFR 49.158), it also has the discretion to require any additional
requirements, including control technology requirements, based on the
specific circumstances of the source.
If your existing synthetic minor source and/or synthetic
minor HAP source was established through a mechanism other than those
described in the preceding paragraphs, you must submit an application
pursuant to 40 CFR 49.158 for a synthetic minor source permit within 1
year after the effective date of the final rule, that is, by September
4, 2012. The reviewing authority has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
True minor sources.
If you own or operate an existing true minor source in
Indian country (as defined in 40 CFR 49.152(d)), you must register your
source with your reviewing authority in your area within 18 months
after the effective date of this program, that is, by March 1, 2013. If
your true minor source commences construction in the time period after
the effective date of this rule and September 2, 2014, you must also
register your source with the reviewing authority in your area within
90 days after the source begins operation. You are exempt from this
registration requirement if your source is subject to 40 CFR 49.138--
``Rule for the registration of air pollution sources and the reporting
of emissions.''
If you wish to commence construction of a new true minor
source or a modification at an existing true minor source that is
subject to this program, you must obtain a permit pursuant to 40 CFR
49.154 and 49.155 (or a general permit pursuant to 40 CFR 49.156, if
applicable) by the earlier of 6 months after the general permit for a
source category is published in the Federal Register or on or after 36
months from the effective date of this rule, that is, September 2,
2014. The proposed new source or modification will be subject to the
registration requirements of 40 CFR 49.160, except for sources that are
subject to the registration requirements of 40 CFR 49.138--``Rule for
the registration of air pollution sources and the reporting of
emissions.''
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it raises novel
legal or policy issues arising out of legal mandates, the President's
priorities or the principles set forth in the Executive Order.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011) and any changes made in response to OMB
recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
impacts associated with this action. This rule is not considered
economically significant because EPA estimates the total annualized
costs of the rule to be substantially lower than $100 million.
Given that during the first three years following the rule's
effective date, all new and modified sources are either required to
register or request coverage under the general permit available for
their source category (unless the source decides to apply for a site-
specific permit at the time the source had to request coverage under
that general permit), the EPA estimates lower bound \42\ total
annualized costs of the rule to be $4.6 million, including $2.3 million
for industry and $2.3 million for the Agency ($2008) while upper bound
\42\ total annualized costs of this rule are estimated to be
approximately $4.7 million per year, including $2.4 million for
industry and $2.3 million for the Agency ($2008). After the first 36
months, total annualized costs for true minor sources would increase,
since all new and modified true minor sources will have to apply for a
site-specific permit or request coverage under a general permit.
However, EPA believes that costs for sources choosing to request
coverage under a general permit would remain low, as would cost for the
Agency. This analysis is contained in the EIA for this final rule. A
copy of the analysis is available in the docket for this action.
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\42\ ``Lower Bound'' costs in the Economic Impact Analysis (EIA)
of this rule only include monitoring, recordkeeping and reporting
costs computed under the conservative assumption that all facilities
choose site-specific permitting (cost burden for development and
implementation of general permits is unknown at this time). Under
the ``Upper Bound'' cost estimates some facilities area assumed to
be subject to BACT.
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B. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
The information collection requirements resulting from this final
rule are associated with certain records and reports that 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, (2) identify any stationary sources not subject to
the standards and identify stationary sources subject to the rules, and
(3) 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 (or the EPA Administrator in
non-delegated areas) can decide which plants, records or processes
should be inspected.
The nonattainment major NSR rule would have little impact on
existing major sources in Indian country because it would only affect
such owners and operators if they propose a major modification and only
one is expected during the first 6 years after promulgation (See the
Economic Impact Analysis in the docket for this action for more
information). In addition, the final 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 major NSR rule or a TIP,
we are already required to implement the program in Indian country and
have developed source-specific FIPs to do so. As a result, there would
be no new or additional burden on industry.
With regard to the minor source permitting rule (including new
minor
[[Page 38785]]
sources, minor modifications at minor sources, minor modifications at
major sources and new synthetic minor sources), it is estimated that
4,326 new or modified facilities will be affected for the first 3 years
after promulgation of the rule.
Minor sources will incur approximately 47,220 hours in monitoring,
recordkeeping and reporting burden, incurring an estimated $549,402
($2008) in burden during this 36 month period to complete registration
or request coverage under a general permit. In addition, 32,970
existing true and synthetic minor sources will incur a one-time burden
of 169,590 hours or an estimated $2.1 million, to complete registration
for true minor sources and to secure new permits for existing synthetic
minor sources. The Agency is estimated to incur 76,550 hours or $6.91
million ($2008) in burden to administer the minor source program during
the first 3 years after rule promulgation. This Agency burden does not
include costs associated with development and implementation of new
general permits, as these costs are not known at this time. Burden is
defined at 5 CFR 1320.3(b).
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 EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
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 this final 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-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities potentially regulated by this final rule in Indian country
are:
New and modified minor sources of regulated NSR
pollutants;
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.
We have determined that the new major sources and major
modifications at existing major sources in nonattainment areas will
incur no incremental costs or will experience cost savings due to the
final rule because the rule only changes the regulatory mechanism in
which these sources can request a permit (it does not change the
compliance requirements). The costs of the source-specific FIP (the
alternative mechanism in the absence of this rule) would have been
comparable to the estimated costs of complying with this rule. In
addition, since the permitting process may be less uncertain under the
final rule, new and modifying major sources could potentially
experience cost savings compared to baseline conditions.
Therefore, the screening assessment focused on costs for new and
modified minor sources, minor modifications at major sources and
synthetic minor 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 of 2011
through 2016. However, since data on minor sources in Indian country
are generally very limited, we conducted an exhaustive search for
information currently available from EPA databases, the Small Business
Administration and EPA Regional Offices. We then collected data from
the Economic Census (2002) 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 6-year period after
the effective date of the rule (2011 through 2016), we estimate that
7,606 new minor sources will be created in Indian country.
Based on our analysis,\43\, EPA also estimates that fewer than 20
percent of new minor sources in Indian country (20 percent of 7,606)
will be owned by small businesses. Thus, we estimate that 1,521 new
minor source facilities will be created in Indian country by small
businesses during the first 6 years after promulgation. Additionally,
we project that 197 of the total estimated 984 minor modifications to
existing minor sources during the period 2011 through 2016 will occur
at facilities owned by small businesses. Furthermore, we estimate that
10 synthetic minor sources owned by small businesses will be created
during the period 2011 through 2016.
---------------------------------------------------------------------------
\43\ 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 121.201). We also examined the share of
existing major and synthetic minor sources in Indian country that
are owned by small businesses.
---------------------------------------------------------------------------
Finally, we estimate that 2 of the 12 major sources in Indian
country that make a minor modification to their operations between 2011
and 2016 will be owned by small businesses. Table 2 summarizes the
estimated number of affected facilities and small businesses and table
3 disaggregates this information by source category (NAICS code).
Table 2--Projected Number of Affected Small Businesses
[2011 through 2016] \a\
------------------------------------------------------------------------
Projected number
of new and
Source type modified sources
owned by small
businesses
------------------------------------------------------------------------
New Minor Sources..................................... 1,521
Modified Minor Sources................................ 197
Synthetic Minor Sources............................... 10
Minor Modifications to Major Sources.................. 2
-----------------
[[Page 38786]]
Total............................................. 1,730
------------------------------------------------------------------------
\a\ Based on Year 2008 dollars.
Table 3--Source Categories for Projected Number of Affected Small Businesses
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minor Total projected
NAICS Sector description New minor Modified minor Synthetic minor modifications to small businesses
sources sources sources major sources by sector
--------------------------------------------------------------------------------------------------------------------------------------------------------
324121............................... Asphalt hot mix........ 1 ................ ................ ................ 1
811121............................... Auto body refinishing.. 4 6 ................ ................ 10
3116................................. Beef Cattle Complex, 1 ................ ................ ................ 1
Slaughter House and
Meat Packing Plant.
3251................................. Chemical preparation... 1 ................ ................ ................ 1
32711................................ Clay and ceramics 4 1 ................ ................ 5
operations (kilns).
327320............................... Concrete batching plant 1 ................ ................ ................ 1
211111............................... Crude Petroleum and 1,402 150 3 2 1,557
Natural Gas Extraction.
22111................................ Electric power 1 ................ ................ ................ 1
generation.
3329................................. Fabricated metal ................ 1 ................ ................ 1
products.
3323................................. Fabricated structural ................ 1 ................ ................ 1
metal.
4471................................. Gasoline station 19 7 ................ ................ 26
(storage tanks,
refueling).
424510............................... Grain Elevator......... 2 1 ................ ................ 3
33311................................ Machinery manufacturing ................ 3 ................ ................ 3
221210............................... Natural Gas 1 1 ................ ................ 2
Distribution.
21111................................ Oil and gas production/ 1 ................ ................ ................ 1
operations.
72112................................ Other (natural gas- 11 10 7 ................ 28
fired boilers) \a\.
323110............................... Printing operations 3 1 ................ ................ 4
(lithographic).
54171................................ Professional, 3 1 ................ ................ 4
Scientific and
Technical Services.
212321............................... Sand and Gravel Mining. 1 1 ................ ................ 2
238990............................... Sand and shot blasting 3 1 ................ ................ 4
operations.
321113............................... Sawmills............... 1 1 ................ ................ 2
221320............................... Sewage treatment 1 ................ ................ ................ 1
facilities.
562212............................... Solid Waste Landfill... 1 ................ ................ ................ 1
332812............................... Surface coating 5 3 ................ ................ 8
operations.
Other (costs not 54 8 ................ ................ 62
estimated) \b\.
-----------------------------------------------------------------------------------------
Total............................ ....................... 1,521 197 10 2 1,730
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ For small business analysis, used NAICS code designated for casino hotels. However, the projected new and modified sources listed under ``other
(natural gas-fired boilers)'' include not only boilers at casino hotels, but also new sources listed as ``boilers'' and new Tribal government
facilities assumed to have natural gas-fired boilers.
\b\ Includes source categories such as crematories, restaurants, car dealers and social assistance.
To conduct our screening analysis of impacts \44\ on small
businesses, we compared the estimated costs of
[[Page 38787]]
compliance for each type of source in each sector with typical small
business sales in each sector.
---------------------------------------------------------------------------
\44\ This small entity impact assessment does not reflect the
final revisions to the rule's provisions. At the time this analysis
was conducted, we planned to delay the implementation date of the
rule for true minor sources that might be subject to the minor NSR
program for a period of 18 months from the rule's effective date (60
days after the final rule is published). However, to address
commenters' concerns about EPA's ability to implement this NSR
permitting program in a timely manner and to provide additional time
for EPA Regions to prepare for their duties as the Federal
permitting authority, including the development of additional
permitting tools, we have extended the implementation date of the
rule for true minor sources to 36 months from the effective date of
this final rule. In addition, sources eligible to seek coverage
under a general permit will be subject to that general permit 4
months after the general permit is effective (6 months after the
general permit is published in the Federal Register) unless the
source decides to apply for a site-specific permit at the time the
source had to request coverage under that general permit. Therefore,
since we are reducing the permitting requirements during the initial
36-month period after the effective date of the rule, we expect the
actual impacts to be lower than those reported here.
---------------------------------------------------------------------------
Our analysis estimates that small businesses investing in new minor
source facilities, minor modifications to existing minor sources, minor
modifications to existing major sources and new synthetic minor sources
over the period 2011 through 2016 will incur costs that are less than 1
percent of average small company sales revenues for most sectors, but
small companies choosing to invest in new auto body refinishing plants,
concrete batching plants, sawmills, solid waste landfills, sand and
gravel mines and sand and shot blasting operations have the potential
to incur costs between 1 percent and 3 percent of sales under upper
bound cost estimates. The EPA estimates that at most 20 new and
modified sources would be owned by small businesses in these sectors
(new auto body refinishing plants, concrete batching plants, sawmills,
solid waste landfills, sand and gravel mines and sand and shot blasting
operations) during the first 6 years following the effective date of
the rule. Because this is a small number of facilities and because EPA
believes that very few new sources will incur upper bound costs, this
is considered an over-estimate of the potential small business impacts.
Thus, EPA does not believe that the rule will impose significant
economic impacts on a substantial number of small businesses owning new
or modified minor sources.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA has tried to
reduce the impact of this rule on small entities. We are not requiring
existing minor sources to obtain a permit once the rule is effective,
but we are requiring them to register within 18 months after the rule's
effective date or 90 days after the source begins operation. In
addition, we are delaying the implementation of the rule for new and
modified minor sources to the earlier of 4 months after the effective
date of a general permit (6 months after the final permit is published)
or 36 months after the rule's effective date, that is, September 2,
2014, to provide adequate time for the regulated entities and us, the
reviewing authority, to prepare for the implementation of this rule.
D. Unfunded Mandates Reform Act
This 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 EPA cost estimates lower bound total annualized costs of the
rule to be $4.6 million, including $2.3 million for industry and $2.3
million for the Agency ($2008) while upper bound total annualized costs
of this rule were estimated to be approximately $4.7 million per year,
including $2.4 million for industry and $2.3 million for the Agency
($2008). After the first three years following the rule's effective
date, total annualized costs for true minor sources would increase
since all new and modified true minor sources will have to apply for a
site-specific permit or request coverage under a general permit.
However, EPA believes that costs for sources choosing to request
coverage under a general permit would remain low, as would cost for the
Agency. Agency costs do not include the costs of developing general
permits, as these costs are unknown at this time. Thus, this rule is
not subject to the requirements of sections 202 or 205 of the Unfunded
Mandates Reform Act (UMRA).
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule has no
requirements applicable to small governments and as such does not
impose obligations upon them.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule has no requirements
applicable to states. Thus, Executive Order 13132 does not apply to
this rule.
In the spirit of Executive Order 13132 and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on the proposed rule
from state and local officials. To that end, we had two meetings with
the STAPPA/ALAPCO \45\ to present the draft preamble and rule. We also
met with the National Federation of Independent Business and provided
outreach material through EPA's Small Business Ombudsman's office to
get input from the small businesses that might be affected by this
rule.
---------------------------------------------------------------------------
\45\ This organization has since changed its name to the
National Association of Clean Air Agencies (NACAA).
---------------------------------------------------------------------------
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has Tribal implications, that
imposes substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by Tribal governments or EPA
consults with Tribal officials early in the process of developing the
proposed regulation and develops a Tribal summary impact statement.
The EPA has concluded that this action will have Tribal
implications. However, it will neither impose substantial direct
compliance costs on Tribal governments, nor preempt Tribal law. This
action provides two preconstruction air permitting rules for stationary
sources in Indian Country, but these rules will neither impose
substantial direct compliance costs on Tribal governments nor preempt
Tribal law because these rules will be implemented by EPA or a delegate
Tribal agency that has requested to assist EPA with administration of
the rules, until replaced by an EPA-approved Tribal implementation
plan. Nonetheless, EPA conducted substantial outreach and consultation
with Tribal officials and other Tribal representatives and has
incorporated Tribal views, throughout the course of developing these
rules. See section III.D of this final rule preamble for more details
on our Tribal outreach and consultation efforts.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a
[[Page 38788]]
significant adverse effect on the supply, distribution or use of
energy. The number of projected new sources in the energy sector due to
this rule is a small share (about 1 percent) of the total number of
energy sector facilities nationwide. Therefore, EPA does not believe
that this action will have a significant effect on energy production.
In addition, EPA's cost analysis, presented in the Economic Impact
Analysis (EIA), estimates the total annualized cost of the rule will be
substantially less than the $100 million cost and/or benefits trigger
identified in EO 12866 and thus this action is not considered an
``economically significant regulatory action.'' With the final rule not
being a economically significant regulatory action, it is not
considered a significant energy action.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations (which
are persons living in Indian country) without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Indeed, EPA believes that the two preconstruction air
quality regulations in this FIP 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 are expected to result in health benefits to persons
living in Indian country, many of whom live in low-income and minority
communities.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective 60 days from the date of
publication, i.e., on August 30, 2011.
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit by August 30, 2011 Any such judicial
review is limited to only those objections that are raised with
reasonable specificity in timely comments. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
Under section 307(b)(2) of the Act, the requirements of this final
action may not be challenged later in civil or criminal proceedings
brought by us to enforce these requirements.
IX. Statutory Authority
The statutory authority for this 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.
Dated: June 10, 2011.
Lisa P. Jackson,
Administrator.
For the reasons cited in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 49--[AMENDED]
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--[AMENDED]
0
2. Add an undesignated center heading and Sec. Sec. 49.151 through
49.161 to subpart C to read as follows:
Federal Minor New Source Review Program in Indian Country
* * * * *
Sec.
49.151 Program overview.
49.152 Definitions.
49.153 Applicability.
49.154 Permit application requirements.
49.155 Permit requirements.
49.156 General permits.
49.157 Public participation requirements.
49.158 Synthetic minor source permits.
49.159 Final permit issuance and administrative and judicial review.
49.160 Registration program for minor sources in Indian country.
49.161 Administration and delegation of the minor NSR program in
Indian country.
* * * * *
Sec. 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 Sec. Sec. 49.151 through 49.165.
[[Page 38789]]
(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 sources (minor sources) and minor modifications at major
sources located in Indian country to meet the requirements of section
110(a)(2)(C) of the Act.
(2) It establishes a registration system that will allow the
reviewing authority to develop and maintain a record of minor source
emissions in Indian country.
(3) It provides a mechanism for an otherwise major source to
voluntarily accept restrictions on its potential to emit to become a
synthetic minor source. This mechanism may also be used by an otherwise
major source of 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.
(4) It provides an additional mechanism for case-by-case maximum
achievable control technology (MACT) determinations for those major
sources of HAPs subject to such determinations under section 112(g)(2)
of the Act.
(5) It sets forth the criteria and procedures that the reviewing
authority (as defined in Sec. 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, according to the following
implementation schedule:
(i) Existing major sources.
(A) If you wish to commence construction of a minor modification at
an existing major source on or after August 30, 2011, you must obtain a
permit pursuant to Sec. Sec. 49.154 and 49.155 (or a general permit
pursuant to Sec. 49.156, if applicable) prior to commencing
construction.
(B) If you wish to obtain a synthetic minor source permit pursuant
Sec. 49.158 to establish a synthetic minor source and/or a synthetic
minor HAP source at your existing major source, you may submit a
synthetic minor source permit application on or after August 30, 2011.
However, if your permit application for a synthetic minor source and/or
synthetic minor HAP source pursuant to the FIPs for reservations in
Idaho, Oregon and Washington has been determined complete prior to
August 30, 2011, you do not need to apply for a synthetic minor source
permit under this program.
(ii) Synthetic minor sources.
(A) If you wish to commence construction of a new synthetic minor
source and/or a new synthetic minor HAP source or a modification at an
existing synthetic minor source and/or synthetic minor HAP source on or
after August 30, 2011, you must obtain a permit pursuant to Sec.
49.158 prior to commencing construction.
(B) If your existing synthetic minor source and/or synthetic minor
HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec. 49.158 prior to
commencing construction.
(C) If your existing synthetic minor source and/or synthetic minor
HAP source was established under a permit with enforceable emissions
limitations issued pursuant to part 71 of this chapter, the reviewing
authority has the discretion to require you to submit a permit
application for a synthetic minor source permit under this program by
September 4, 2012 and pursuant to Sec. 49.158, to require you to
submit a permit application for a synthetic minor source permit under
this program (pursuant to Sec. 49.158) at the same time that you apply
to renew your part 71 permit or to allow you to continue to maintain
synthetic minor status through your part 71 permit. If the reviewing
authority requires you to obtain a synthetic minor source permit and/or
synthetic minor HAP source permit under this program (pursuant to Sec.
49.158) it also has the discretion to require any additional
requirements, including control technology requirements, based on the
specific circumstances of the source.
(D) If your existing synthetic minor source and/or synthetic minor
HAP source was established through a mechanism other than those
described in paragraphs (c)(1)(ii)(B) and (C) of this section, you must
submit an application pursuant to Sec. 49.158 for a synthetic minor
source permit under this program by September 4, 2012. The reviewing
authority has the discretion to require any additional requirements,
including control technology requirements, based on the specific
circumstances of the source.
(iii) True minor sources.
(A) If you own or operate an existing true minor source in Indian
country (as defined in 40 CFR 49.152(d)), you must register your source
with your reviewing authority in your area within 18 months after the
effective date of this program, that is, by March 1, 2013. If your true
minor source commences construction in the time period after the
effective date of this rule and September 2, 2014, you must also
register your source with the reviewing authority in your area within
90 days after the source begins operation. You are exempt from this
registration requirement if your source is subject to Sec. 49.138--
``Rule for the registration of air pollution sources and the reporting
of emissions.''
(B) If you wish to commence construction of a new true minor source
or a modification at an existing true minor source that is subject to
this program, you must obtain a permit pursuant to Sec. Sec. 49.154
and 49.155 (or a general permit pursuant to Sec. 49.156, if
applicable) by the earlier of 6 months after the general permit for a
source category is published in the Federal Register or on or after 36
months from the effective date of this rule, that is, September 2,
2014. The proposed new source or modification will also be subject to
the registration requirements of Sec. 49.160, except for sources that
are subject to Sec. 49.138.
(2) The provisions of this program or portions of this program
cease to apply in an area covered by an EPA-approved Tribal
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 sources. Permits previously
issued under this program will remain in effect and be enforceable as a
practical matter until and unless the Tribe issues new permits to these
sources based on the provisions of the EPA-approved Tribal
implementation plan.
(d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a minor source:
(1) If you commence construction of a new source or modification
that is subject to this program after the applicable date specified in
paragraph (c) of this section without applying for and receiving a
permit pursuant to this program, you will be subject to appropriate
enforcement action.
(2) If you do not construct or operate your source or modification
in accordance with the terms of your
[[Page 38790]]
minor NSR permit, you will be subject to appropriate enforcement
action.
(3) If you are subject to the registration requirements of this
program, you must comply with those requirements.
(4) 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.
(5) Nothing in this program prevents a Tribe from administering a
minor NSR permit program with different requirements in an approved
Tribal Implementation Plan (TIP) as long as the TIP does not interfere
with any applicable requirement of the Act.
(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 Sec. 49.156 or a synthetic
minor source permit under Sec. 49.158), all the actions listed in
paragraphs (e)(1) through (8) of this section need to be completed. The
processes for issuing general permits and synthetic minor source
permits are set out in Sec. 49.156 and Sec. 49.158, respectively.
(1) You must submit a permit application that meets the
requirements of Sec. 49.154(a).
(2) The reviewing authority determines completeness of the permit
application as provided in Sec. 49.154(b) within 45 days of receiving
the application (60 days for minor modifications at major sources).
(3) The reviewing authority determines the appropriate emission
limitations and permit conditions for your affected emissions units
under Sec. 49.154(c).
(4) The reviewing authority may require you to submit an Air
Quality Impact Analysis (AQIA) if it 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.
(5) If an AQIA is submitted, 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 Sec. 49.155(a).
(7) The reviewing authority provides for public participation,
including a 30-day period for public comment, according to the
requirements of Sec. 49.157.
(8) The reviewing authority either issues a final permit that meets
the requirements of Sec. 49.155(a) or denies the permit and provides
reasons for the denial, within 135 days (or within 1 year for minor
modifications at major sources) after the date the application is
deemed complete and all additional information necessary to make an
informed decision has been provided.
Sec. 49.152 Definitions.
(a) For sources of regulated NSR pollutants in nonattainment areas,
the definitions in Sec. 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 Sec. 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 Sec. 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.
Allowable emissions means ``allowable emissions'' as defined in
Sec. 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 that limits the quantity, rate or concentration of
emissions of air pollutants on a continuous basis, including any
requirement relating to the operation or 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
or other standard is both legally and practicably 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 source is achieved if the permit's provisions specify:
(i) A limitation or standard and the emissions units or activities
at the 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
sources, practical 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 Sec. 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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
(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.
Minor modification at a major source means a modification at a
major source that does not qualify as a major modification under Sec.
49.167 or Sec. 52.21 of this chapter, as applicable.
[[Page 38791]]
Minor NSR threshold means any of the applicability cutoffs for this
program listed in Table 1 of Sec. 49.153.
Minor source means, for purposes of this rule, a source, not
including the exempt emissions units and activities listed in Sec.
49.153(c), that has the potential to emit regulated NSR pollutants in
amounts that are less than the major source thresholds in Sec. 49.167
or Sec. 52.21 of this chapter, as applicable, but equal to or greater
than the minor NSR thresholds in Sec. 49.153. The potential to emit
includes fugitive emissions, to the extent that they are quantifiable,
only if the source belongs to one of the source categories listed in
part 51, Appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii) of
this chapter, as applicable.
Modification means any physical or operational change at a source
that would cause an increase in the allowable emissions of a minor
source or an increase in the actual emissions (based on the applicable
test under the major NSR program) of a major source for any regulated
NSR pollutant or that would cause the emission of any regulated NSR
pollutant not previously emitted. Allowable emissions of a minor source
include fugitive emissions, to the extent that they are quantifiable,
only if the source belongs to one of the source categories listed in
part 51, Appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii) of
this chapter, as applicable. 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 change is
prohibited under any permit condition that is enforceable as a
practical matter.
(3) A change in ownership at a stationary source.
(4) The emissions units and activities listed in Sec. 49.153(c).
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 enforceable as a
practical matter. Secondary emissions, as defined at Sec. 52.21(b)(18)
of this chapter, do not count in determining the potential to emit of a
source.
Reviewing authority means the Administrator or 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 Sec. 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 sources in Sec. 49.167, Sec. 52.21 or Sec.
71.2 of this chapter, as applicable, 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.
True minor source means a source, not including the exempt
emissions units and activities listed in Sec. 49.153(c), that emits or
has the potential to emit regulated NSR pollutants in amounts that are
less than the major source thresholds in Sec. 49.167 or Sec. 52.21 of
this chapter, as applicable, but equal to or greater than the minor NSR
thresholds in Sec. 49.153, without the need to take an enforceable
restriction to reduce its potential to emit to such levels. That is, a
true minor source is a minor source that is not a synthetic minor
source. The potential to emit includes fugitive emissions, to the
extent that they are quantifiable, only if the source belongs to one of
the source categories listed in part 51, Appendix S, paragraph
II.A.4(iii) or Sec. 52.21(b)(1)(iii) of this chapter, as applicable.
Sec. 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 (4) 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.
(i) New source. Use the following steps to determine applicability
for each regulated NSR pollutant.
(A) Step 1. Determine whether your proposed source's potential to
emit the pollutant that you are evaluating is subject to review under
the applicable major NSR program (that is, under Sec. 52.21 of this
chapter, under the Federal major NSR program for nonattainment areas in
Indian country at Sec. Sec. 49.166 through 49.175 or under a program
approved by the Administrator pursuant to Sec. 51.165 or Sec. 51.166
of this chapter). If not, go to Step 2 (paragraph (a)(1)(i)(B) of this
section).
(B) Step 2. Determine whether your proposed source's potential to
emit the pollutant that you are evaluating, (including fugitive
emissions, to the extent they are quantifiable, only if the source
belongs to one of the source categories listed pursuant to section
302(j) of the Act), is equal to or greater than 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. Use the following steps to
determine applicability for each regulated NSR pollutant.
(A) Step 1. For the pollutant being evaluated, determine whether
your proposed modification is subject to review under the applicable
major NSR program. If the modification at your existing major source
does not qualify as a major modification under that program based on
the actual-to-projected-actual test, it is considered a minor
modification and is subject to the minor NSR program requirements, if
the net emissions increase from the actual-to-projected-actual test is
equal to or exceeds the minor NSR threshold listed in Table 1 of this
section. For a modification at your existing minor source go to Step 2
(paragraph (a)(1)(ii)(B) of this section).
(B) Step 2. Determine whether the increase in allowable emissions
from the proposed modification (calculated using the procedures of
paragraph (b) of this section) would be equal to or greater than 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 3
(paragraph (a)(1)(ii)(C) of this section).
(C) Step 3. If any of the emissions units affected by your proposed
modification result in an increase in an annual allowable emissions
limit for the pollutant that you are evaluating, 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 source
[[Page 38792]]
that would increase an emissions unit's allowable emissions of a
regulated NSR pollutant above its existing annual allowable emissions
limit, you must obtain a permit revision to reflect the 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 may be
accomplished through an administrative permit revision as provided in
Sec. 49.159(f).
(3) Synthetic minor source permits.
(i) If you own or operate an existing major source and you wish to
obtain a synthetic minor source permit pursuant to Sec. 49.158 to
establish a synthetic minor source and/or a synthetic minor HAP source,
you may submit a synthetic minor source permit application on or after
August 30, 2011. However, if your permit application for a synthetic
minor source and/or synthetic minor HAP source pursuant to the FIPs for
reservations in Idaho, Oregon and Washington has been determined
complete prior to August 30, 2011, you do not need to apply for a
synthetic minor source permit under this program.
(ii) If you wish to commence construction of a new synthetic minor
source and/or a new synthetic minor HAP source or a modification at an
existing synthetic minor source and/or synthetic minor HAP source, on
or after August 30, 2011, you must obtain a permit pursuant to Sec.
49.158 prior to commencing construction.
(iii) If you own or operate a synthetic minor source or synthetic
minor HAP source that was established prior to the effective date of
this rule (that is, prior to August 30, 2011) pursuant to the FIPs
applicable to the Indian reservations in Idaho, Oregon and Washington
or under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec. 49.158 prior to
commencing construction.
(iv) If you own or operate a synthetic minor source or synthetic
minor HAP source that was established prior to the effective date of
this rule (that is, prior to August 30, 2011) through a permit with
enforceable emissions limitations issued pursuant to the operating
permit program in part 71 of this chapter, the reviewing authority has
the discretion to require you to apply for a synthetic minor source
permit under Sec. 49.158 of this program by September 4, 2012 or at
the time of part 71 permit renewal or allow you to maintain synthetic
minor status through your part 71 permit.
(v) For all other synthetic minor sources or synthetic minor HAP
sources that obtained synthetic minor status or synthetic minor source
permits through a mechanism other than those described in paragraphs
(a)(3)(iii) and (iv) of this section, you must submit an application
for a synthetic minor source permit under this program by September 4,
2012 under Sec. 49.158.
(4) 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 Sec. 63.43 of this chapter). If you
elect this option, you still must comply with the requirements of Sec.
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 from the
change. A physical or operational change may involve one or more
emissions units. The total increase in allowable emissions resulting
from your proposed change, including fugitive emissions, to the extent
they are quantifiable, only if your source belongs to one of the source
categories listed pursuant to section 302(j) of the Act, would be the
sum of the following:
(1) For each new emissions unit that is to be added, the emissions
increase would be the potential to emit of the emissions unit.
(2) 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. However, this may not be a negative value. If the
allowable emissions of an emissions unit would be reduced as a result
of the change or replacement, use zero in the calculation.
(3) For each unpermitted emissions unit (a unit without any
enforceable permit conditions) 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. However, this may not be a negative value.
If an emissions unit's post-change allowable emissions would be less
than its pre-change potential to emit, use zero in the calculation.
(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 (7)
of this section.
(1) Mobile sources.
(2) Ventilating units for comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial processes
(3) Noncommercial food preparation.
(4) Consumer use of office equipment and products.
(5) Janitorial services and consumer use of janitorial products.
(6) Internal combustion engines used for landscaping purposes.
(7) Bench scale laboratory activities, except for laboratory fume
hoods or vents.
Table 1 to Sec. 49.153--Minor NSR Thresholds a
------------------------------------------------------------------------
Minor NSR Minor NSR
thresholds for thresholds for
Regulated NSR pollutant nonattainment attainment areas
areas (tpy) (tpy)
------------------------------------------------------------------------
Carbon monoxide (CO)............ 5 10
Nitrogen oxides (NOX)........... 5 \b\ 10
Sulfur dioxide (SO2)............ 5 10
Volatile Organic Compounds (VOC) 2 \b\ 5
[[Page 38793]]
PM.............................. 5 10
PM10............................ 1 5
PM2.5........................... 0.6 3
Lead............................ 0.1 0.1
Fluorides....................... NA 1
Sulfuric acid mist.............. NA 2
Hydrogen sulfide (H2S).......... NA 2
Total reduced sulfur (including NA 2
H2S)...........................
Reduced sulfur compounds NA 2
(including H2S)................
Municipal waste combustor NA 2
emissions......................
Municipal solid waste landfill NA 10
emissions (measured as
nonmethane organic compounds)..
------------------------------------------------------------------------
\a\ 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 apply.
\b\ In extreme ozone nonattainment areas, section 182(e)(2) of the Act
requires any change at a major source that results in any increase in
emissions to be subject to major NSR permitting. In other words, any
changes to existing major sources in extreme ozone nonattainment areas
are subject to a ``0'' tpy threshold, but that threshold does not
apply to minor sources.
Sec. 49.154 Permit application requirements.
This section applies to you if you are subject to this program
under Sec. 49.153(a) for the construction of a new minor source,
synthetic minor source or a modification at an existing source.
(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 Sec. 49.153(c).
(iii) The permit application for a modification need only include
information on the affected emissions units as defined in Sec.
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 Sec. 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, if the emissions
unit or source is in one of the source categories listed in part 51,
Appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii) of this
chapter, as applicable), 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, if the emissions unit or
source belongs to one of the source categories listed in part 51,
Appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii) of this
chapter, as applicable), 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 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.
(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 (60 days for
minor modifications at major sources) to determine whether the
application contains all the information necessary for processing 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 will notify you in
writing. The reviewing
[[Page 38794]]
authority's completeness determination or request for additional
information should be postmarked within 45 days of receipt of the
permit application by the reviewing authority (60 days for minor
modifications at major sources). If you do not receive a request for
additional information or a notice of complete application postmarked
within 45 days of receipt of the permit application by the reviewing
authority (60 days for minor modifications at major sources), 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.
(4) Any permit application will be granted or denied no later than
135 days (1 year for minor modifications at major sources) after the
date the application is deemed complete and all additional information
necessary to make an informed decision has been provided.
(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 control technology 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 a numerical limit on the
quantity, rate or concentration of emissions for each regulated NSR
pollutant emitted by 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 numerical limits on the quantity, rate or concentration
of emissions; pollution prevention techniques; design standards;
equipment standards; work practices; operational standards;
requirements relating to the operation or maintenance of the source 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 as well as any FIPs
or TIPs that apply to the unit.
(5) The emission limitations required by the reviewing authority
must not be affected in a manner by so much of a stack's height as
exceeds good engineering practice or by any other dispersion technique,
except as provided in Sec. 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
Sec. 51.100(ii)(1) or (2) of this chapter, it must notify the public
of the availability of the demonstration study and must provide
opportunity for a public hearing according to the requirements of Sec.
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) If 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 or
mitigate such impacts before it can issue you a permit.
Sec. 49.155 Permit requirements.
This section applies to your permit if you are subject to this
program under Sec. 49.153(a) for construction of a new minor source,
synthetic minor source or a modification at an existing source.
(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 permit must include the following
elements:
(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 Sec. 49.154(c)
for each affected emissions unit. In addition, the permit must include
an annual allowable emissions limit for each affected emissions unit
and for each regulated NSR pollutant emitted by the unit if the unit is
issued an enforceable emission limitation lower than the potential to
emit of that unit.
(3) Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with the emission
limitations and annual allowable emissions limits 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) and (ii) 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.
(4) Recordkeeping requirements. The permit must include
recordkeeping requirements sufficient to assure compliance with the
emission limitations and monitoring requirements and it 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
[[Page 38795]]
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 and copies of all
reports required by the permit.
(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.
(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 re-issuance 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) 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.
Sec. 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 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 applicable
requirements in Sec. 49.154(c), Sec. 49.154(d) and Sec. 49.155, the
public participation requirements in Sec. 49.157 and the requirements
for final permit issuance and administrative and judicial review in
Sec. 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.
(d) What should the general permit contain? The general permit must
contain the permit elements listed in Sec. 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.
[[Page 38796]]
(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 request coverage under a general permit
including, but not limited to, the following:
(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) What are the procedures for obtaining coverage for a source
under a general permit?
(1) If your source qualifies for a general permit, you may request
coverage under that general permit to the reviewing authority 4 months
after the effective date of the general permit, that is, 6 months after
publication of the general permit in the Federal Register.
(2) At the time you submit your request for coverage under a
general permit, you must submit a copy of such request to the Tribe in
the area where the source is locating.
(3) The reviewing authority must act on your request for coverage
under the general permit as expeditiously as possible, but it must
notify you of the final decision within 90 days of its receipt of your
coverage request.
(4) Your reviewing authority must comply with a 45-day completeness
review period to determine if your request for coverage under a general
permit is complete. Therefore, within 30 days after the receipt of your
coverage request, your reviewing authority must make an initial request
for any additional information necessary to process your coverage
request and you must submit such information within 15 days. If you do
not submit the requested information within 15 days from the request
for additional information and this results in a delay that is beyond
the 45-day completeness review period, the 90-day permit issuance
period for your general permit will be extended by the additional days
you take to submit the requested information beyond the 45-day period.
If the reviewing authority fails to notify you within a 30-day period
of any additional information necessary to process your coverage
request, you will still have 15 days to submit such information and the
reviewing authority must still grant or deny your request for coverage
under a general permit within the 90-day general permit issuance period
and without any time extension.
(5) If the reviewing authority determines that your request for
coverage under a general permit has all the relevant information and is
complete, it will notify you in writing as soon as that determination
is made. If you do not receive from the reviewing authority a request
for additional information or a notice that your request for coverage
under a general permit is complete within the 45-day completeness
review period described in paragraph (4) of this section, your request
will be deemed complete.
(6) The reviewing authority will send you a letter notifying you of
the approval or denial of your request for coverage under a general
permit. This letter is a final action for purposes of judicial review
(see 40 CFR 49.159) only for the issue of whether your source qualifies
for coverage under the general permit. If your request for coverage
under a general permit is approved, you must post, prominently, a copy
of the letter granting such request at the site where your source is
locating.
(7) If the reviewing authority has sent a letter to you approving
your request for coverage under a general permit, 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.
(8) Your permit becomes invalid if you do not commence construction
within 18 months after the effective date of your request for coverage
under a general 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.
(9) Any source eligible to request coverage under a general permit
may request to be excluded from the general permit by applying for a
permit under Sec. 49.154.
Sec. 49.157 Public participation requirements.
This section applies to the issuance of minor source permits and
synthetic minor source permits, the initial issuance of general permits
and coverage of a particular source 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 (6)
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 your 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 you submitted, including (for preconstruction
permits and the initial issuance of general permits) the control
technology review.
(4) For minor source permits and the initial issuance of general
permits, the reviewing authority's analysis of the effect of the
construction of the minor source or modification on ambient air
quality.
(5) For coverage of a particular source under a general permit, the
reviewing authority's analysis of whether your particular emissions
unit or source is within the category of emissions units or sources to
which the general permit applies, including whether your emissions unit
or source meets any criteria to be eligible for coverage under the
general permit.
(6) 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.
[[Page 38797]]
(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 adjacent to 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 (e.g., subsistence hunting and fishing
or other seasonal cultural practices), 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 minor source permits, the initial issuance of general
permits and coverage of a particular source under a general permit, the
regulated NSR pollutants to be emitted, the affected emissions units
and the emission limitations for each affected emissions unit;
(iv) For minor source permits, the initial issuance of general
permits and coverage of a particular source under a general permit, the
emissions change involved in the permit action;
(v) For synthetic minor source 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 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.
Sec. 49.158 Synthetic minor source permits.
You may obtain a synthetic minor source permit under this program
to establish a synthetic minor source for purposes of the applicable
PSD, nonattainment major NSR or Clean Air Act title V program and/or a
synthetic minor HAP source for purposes of part 63 of the Act or the
applicable Clean Air Act title V program. Any source that becomes a
synthetic minor source for NSR and title V purposes but has other
applicable requirements or becomes a synthetic minor for NSR but is
major for title V purposes, remains subject to the applicable title V
program. Note that if you propose to construct or modify a synthetic
minor source, you are also subject to the preconstruction permitting
requirements in Sec. Sec. 49.154 and 49.155, except for the permit
application content and permit application completeness provisions
included in Sec. 49.154(a)(2) and Sec. 49.154(b).
(a) What information must my synthetic minor source 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
[[Page 38798]]
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 source
permit?
(1) If you wish to obtain a synthetic minor source 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.
(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.
(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 will notify you in
writing. The reviewing authority's completeness determination or
request for additional information should be postmarked within 60 days
of receipt of the permit application by the reviewing authority. If you
do not receive a request for additional information or a notice of
complete application postmarked within 60 days of receipt of the permit
application by the reviewing authority, your application will be deemed
complete
(4) The reviewing authority will prepare a draft synthetic minor
source 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 source
permit as set out in Sec. 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 source permit.
(7) The final synthetic minor source permit will be granted or
denied no later than 1 year after the date the application is deemed
complete and all additional information necessary to make an informed
decision has been provided.
(8) The final synthetic minor source permit will be issued and will
be subject to administrative and judicial review as set out in Sec.
49.159.
(c) What are my responsibilities under this program for my source
that already has synthetic minor source or synthetic minor HAP source
status prior to the effective date of this rule (that is, prior to
August 30, 2011)?
(1) If your existing synthetic minor source and/or synthetic minor
HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec. 49.158 prior to
commencing construction.
(2) If your existing synthetic minor source and/or synthetic minor
HAP source was established under a permit with enforceable emissions
limitations issued pursuant to part 71 of this chapter, the reviewing
authority has the discretion to do any of the following:
(i) Allow you to maintain the synthetic minor status for your
source through your permit under part 71 of this chapter, including
subsequent renewals of that permit.
(ii) Require you to submit an application for a synthetic minor
source permit under this program by September 4, 2012, subject to the
provisions in paragraphs (a) and (c)(4)(i) through (iii) of this
section. The reviewing authority also has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
(iii) Require you to submit an application for a synthetic minor
source permit under this program at the same time that you apply to
renew your permit under part 71 of this chapter, subject to the
provisions in paragraphs (a) and (c)(4)(i) through (iii) of this
section. The reviewing authority also has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
(3) If your existing synthetic minor source and/or synthetic minor
HAP source was established through a mechanism other than those
described in paragraphs (c)(1) and (c)(2) of this section, you must
submit an application for a synthetic minor source permit under this
program by September 4, 2012, subject to the provisions in paragraphs
(a) and (c)(4)(i) through (iii) of this section
(4) If you are required to obtain a synthetic minor source permit
under this program for your existing synthetic minor source and/or
synthetic minor HAP source, the following provisions apply:
(i) After submitting your synthetic minor source permit
application, you must respond in a timely manner to any requests from
the reviewing authority for additional information.
(ii) Provided that you submit your application as required in
paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) and any
requested additional information as required in paragraph (c)(4)(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 source permit under this program has been issued.
Issuance of your synthetic minor source permit under this program will
be in accordance with the applicable requirements in Sec. Sec. 49.154
and 49.155 and all other provisions under this section.
(iii) Should you fail to submit your application as required in
paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) or any
requested additional information as required in paragraph (c)(4)(i) of
this section, your source will no longer be considered a synthetic
minor source or synthetic minor HAP source (as applicable) and will
become subject to all requirements for major sources. In the case of
sources subject to section (c)(2)(iii) of this section, the renewed
part 71 permit will not contain enforceable emissions limitations and
instead will include applicable major source requirements.
Sec. 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
[[Page 38799]]
permit is denied, of the reasons for such denial and the procedures for
appeal. 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
according to 49.157(b)(1), for synthetic minor sources and minor
modifications at major sources and according to one or more of the
provisions in Sec. 49.157(b)(1)(ii)(A)-(E) for site-specific permits.
A final permit becomes effective 30 days after service of notice of the
final permit decision, 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 are 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 you, the
permit 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 decision-making;
(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 decision-making.
(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 preparation 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 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. An appeal directed to the Administrator,
rather than to the Board, will not be considered. 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 or 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
ascertainable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins with the service of notice of 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 being raised were
raised during the public comment period (including any public hearing)
to the extent required by these regulations, unless the petitioner
demonstrates that such objections were not reasonably ascertainable
within 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 will 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)-(3) or (4)
of this section, public notice must be given as provided in Sec.
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, you, 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 party.
(6) The reviewing authority, at any time prior to the rendering of
a decision under paragraph (d)(5) of this section to grant or deny
review of a permit decision, may, upon notification to the Board and
any interested parties, withdraw the permit and prepare a new draft
permit addressing the portions so withdrawn. The new draft permit shall
proceed through the same process of public comment and opportunity for
a public hearing as would apply to any other draft permit subject to
this subpart and in accordance with Sec. 49.157.
(7) A petition to the Board under paragraph (d)(2) of this section
is, under section 307(b) of the Act, a prerequisite to seeking judicial
review of the final agency action.
(8) 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 will 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.
(9) Motions to reconsider a final order must be filed within 10
days after service of the final order. Every such
[[Page 38800]]
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 not be considered, except
in cases the Board has referred to the Administrator pursuant to Sec.
49.159(d)(1) and in which the Administrator has issued the final order.
A motion for reconsideration will 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? The reviewing authority may reopen
an existing, currently-in-effect permit for cause on its own
initiative, such as if it contains a material mistake or fails to
assure compliance with applicable requirements. However, except for
those permit reopenings that do not increase the emissions limitations
in the permit, such as permit reopenings that correct typographical,
calculation and other errors, all other permit reopenings shall be
carried out after the opportunity of public notice and comment and in
accordance with one or more of the public participation requirements
under Sec. 49.157(b)(1)(ii).
(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.
Sec. 49.160 Registration program for minor sources in Indian country.
(a) Does this section apply to my source? This section applies to
you if you are the owner/operator of a true minor source.
(b) What is exempted from this section? The exemptions in
paragraphs (b)(1) and (b)(2) of this section apply to the registration
program of this section.
(1) You are exempt from this registration program if any of the
following paragraphs applies to your source:
(i) Your source is subject to the registration requirements under
Sec. 49.138--``Rule for the registration of air pollution sources and
the reporting of emissions.''
(ii) Your source has a part 71 permit.
(iii) Your source is a synthetic minor source or a synthetic minor
HAP source or a minor modification at a major source as defined in
Sec. 49.152(d).
(2) For purposes of determining the potential to emit, allowable or
actual emissions of your source, you are not required to include
emissions from the exempted emissions units and activities listed in
Sec. 49.153(c).
(c) What are the requirements for registering your minor source?
The requirements for registrations are as follows:
(1) Due date. The due date of your source registration varies
according to the following paragraphs:
(i) If you own or operate an existing true minor source (as defined
in 40 CFR 49.152(d)), you must register your source with your reviewing
authority 18 months after the effective date of this program, that is,
March 1, 2013.
(ii) If your true minor source commences construction in the time
period between the effective date of the rule and September 2, 2014,
you must register your source with your reviewing authority within 90
days after the source begins operation.
(iii) If construction or modification of your source commenced any
time on or after September 2, 2014 and your source is subject to this
rule, you must report your source's actual emissions (if available) as
part of your permit application and your permit application information
will be used to fulfill the registration requirements described in
Sec. 49.160(c)(2).
(2) Content. You must submit all registration information on forms
provided by the reviewing authority. Each registration must include the
following information, as applicable:
(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 emissions units (with the exception of the
exempt emissions units and activities listed in Sec. 49.153(c)).
(iv) For each emissions unit that is listed, both the allowable and
estimated actual annual emissions of each regulated NSR pollutant in
tpy (including fugitive emissions, to the extent that they are
quantifiable, if the emissions unit or source is in one of the source
categories listed in Sec. 51, Appendix S, paragraph II.A.4(iii) or
Sec. 52.21(b)(1)(iii) of this chapter), with supporting documentation.
(v) The following information: Fuels, fuel use, raw materials,
production rates and operating schedules.
(vi) Identification and description of any existing air pollution
control equipment and compliance monitoring devices or activities.
(vii) Any existing limitations on source operation affecting
emissions or any work practice standards, where applicable, for all NSR
regulated pollutants at the source.
(viii) Any other information specifically requested by the
reviewing authority.
(3) Procedure for estimating emissions. Your registration should
include potential to emit or estimates of the allowable and actual
emissions, in tpy, of each regulated NSR pollutant for each emissions
unit at the source.
(i) Estimates of allowable emissions must be consistent with the
definition of that term in Sec. 49.152(d). Allowable
[[Page 38801]]
emissions must be calculated based on 8,760 operating hours per year
(i.e., operating 24 hours per day, 365 days per year) unless the
reviewing authority approves a different number of annual operating
hours as the basis for the calculation.
(ii) Estimates of actual emissions must take into account
equipment, operating conditions and air pollution control measures. For
a source that operated during the entire calendar year preceding the
initial registration submittal, the reported actual emissions typically
should be the annual emissions for the preceding calendar year,
calculated using the actual operating hours, production rates, in-place
control equipment and types of materials processed, stored or combusted
during the preceding calendar year. However, if you believe that the
actual emissions in the preceding calendar year are not representative
of the emissions that your source will actually emit in coming years,
you may submit an estimate of projected actual emissions along with the
actual emissions from the preceding calendar year and the rationale for
the projected actual emissions. For a source that has not operated for
an entire year, the actual emissions are the estimated annual emissions
for the current calendar year.
(iii) The allowable and actual emission estimates 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 Regional Administrator.
(4) Duty to obtain a permit. Submitting a registration does not
relieve you of the requirement to obtain any required permit, including
a preconstruction permit, if your source or any physical or operational
change at your source would be subject to any minor or major NSR rule.
(d) What are the requirements for additional reports? After you
have registered your source, you must submit the following additional
reports, when applicable:
(1) Report of relocation. After your source has been registered,
you must report any relocation of your source to the reviewing
authority in writing no later than 30 days prior to the relocation of
the source. However, you need not submit a report if you obtained a
major or minor NSR permit for the relocation. Submitting a report of
relocation does not relieve you of the requirement to obtain a
preconstruction permit if the change is subject to any major NSR or
minor NSR rule.
(2) Report of change of ownership. After your source has been
registered, the new owner/operator must report any change of ownership
of a source to the reviewing authority in writing within 90 days after
the change in ownership is effective.
(3) Report of closure. Except for regular seasonal closures, after
your source has been registered, you must submit a report of closure to
the reviewing authority in writing within 90 days after the cessation
of all operations at your source.
Sec. 49.161 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 Sec. Sec. 51.160 through 51.164
of this chapter, the Tribe is the reviewing authority and it 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 and
it will be the reviewing authority for purposes of the provisions for
which it has been granted delegation.
(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 Sec. 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;
(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 Sec. 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) A demonstration 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
[[Page 38802]]
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. You, the permit
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 by the delegate Tribal agency
or by you, the permit applicant, as applicable and as requested by the
Administrator. 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.
(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 3 years.
(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 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 a Tribal 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 Tribal implementation plan
program.
(4) Permits previously issued under this program will remain in
effect and be enforceable as a practical matter until and unless the
Tribe issues new permits to these sources based on the provisions of
the EPA-approved Tribal implementation plan.
0
3. Add an undesignated center heading and Sec. Sec. 49.166 through
49.173 to subpart C to read as follows:
Federal Major New Source Review Program for Nonattainment Areas in
Indian Country
* * * * *
Sec.
49.166 Program overview.
49.167 Definitions.
49.168 Does this program apply to me?
49.169 Permit approval criteria.
49.170 Emission offset requirement exemption.
49.171 Public participation requirements.
49.172 Final permit issuance and administrative and judicial review.
49.173 Administration and delegation of the nonattainment major NSR
program in Indian country.
* * * * *
Sec. 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
Sec. Sec. 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 sources and major modifications at existing major 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 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
Sec. 49.167) will use to approve permits under this program. Note that
for the purposes of this program, the 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 Sec. 49.172.
(c) When and where does this program apply?
(1) The provisions of this program apply to new major sources and
major modifications at existing major sources located in nonattainment
areas in Indian country where there is no EPA-approved nonattainment
major NSR program beginning on August 30, 2011. The provisions of this
program apply only to new sources and modifications
[[Page 38803]]
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 implementation plan becomes effective, provided that
the plan includes provisions that comply with the requirements of part
D of title I of the Act and Sec. 51.165 of this chapter for the
construction of new major sources and major modifications at existing
major sources in nonattainment areas. Permits previously issued under
this program will remain in effect and be enforceable as a practical
matter until and unless the Tribe issues new permits to these sources
based on the provisions of the EPA-approved Tribal implementation plan.
(d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a source:
(1) If you propose to construct a new major source or a major
modification at an existing major 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
EPA-approved implementation plan or FIP and any other requirements
under applicable law.
(4) Nothing in this program prevents a Tribe from administering a
nonattainment major NSR permit program with different requirements in
an approved TIP as long as the TIP meets the requirements of part D of
title I of the Act.
Sec. 49.167 Definitions.
For the purposes of this program, the definitions in part 51,
Appendix S, paragraph II.A of this chapter apply, unless otherwise
stated. The following definitions also apply to this program:
Allowable emissions means ``allowable emissions'' as defined in
part 51, Appendix S, paragraph II.A.11 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 practicably 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 source is achieved if the permit's provisions specify:
(i) A limitation or standard and the emissions units or activities
at the 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
sources, practical 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 Sec. 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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
(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.
Reviewing authority means the Administrator or an Indian Tribe in
cases where a Tribal agency is assisting EPA with administration of the
program through a delegation under Sec. 49.173.
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 Sec. 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 source that otherwise has the
potential to emit regulated NSR pollutants in amounts that are at or
above those for major sources in Appendix S, 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.
Sec. 49.168 Does this program apply to me?
(a) In a nonattainment area for a pollutant 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 source (as defined in
part 51, Appendix S, paragraph II.A.4 of this chapter) of the
nonattainment pollutant.
(2) If you propose to construct a major modification at your
existing major source (as defined in part 51, Appendix S, paragraph
II.A.5 of this chapter), where your source is a major 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 source with a state-issued
nonattainment major NSR permit, you must apply to convert such permit
to a Federal permit under this program by September 4, 2012.
(c) If you propose to establish a synthetic minor source or
synthetic minor HAP source or to construct a minor modification at your
major source, you will have to comply with the requirements of the
Federal minor NSR program in Indian country at
[[Page 38804]]
Sec. Sec. 49.151 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 part 51, Appendix S,
paragraph II.B of this chapter. In summary, that paragraph basically
requires the reviewing authority to ensure that the proposed new major
source or major modification would meet all applicable emission
requirements in the EPA-approved implementation plan or FIP, any
applicable new source performance standard in part 60 of this chapter
and any applicable national emission standards for hazardous air
pollutants 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 sources and major modifications locating in nonattainment areas
are given in part 51, Appendix S, paragraph IV.A 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 sources owned or operated
by you in the same state as the state including the Tribal land where
the proposed source or modification is locating 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.
(5) An analysis of alternative sites, sizes, production processes
and environmental control techniques for such proposed source that
demonstrates that the benefits of the proposed source significantly
outweigh the environmental and social costs imposed as a result of its
location, construction or modification.
Sec. 49.170 Emission offset requirement exemption.
An Indian governing body may seek an exemption from the emission
offset requirement (see Sec. 49.169(b)(3)) for major sources and major
modifications subject to this program that are located within the
Tribe's Indian country pursuant to section 173(a)(1)(B) of the Act,
under which major 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 this Economic Development Zone (EDZ) approach, the
Administrator would waive the offset requirement for such sources and
modifications, provided that:
(a) The new major 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
(b) 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.
Sec. 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 source, such
as the Tribal environmental office or a local library.
(1) All information submitted as part of your 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), your demonstration of a net air quality benefit in the
affected area and your analysis of alternative sites, sizes, production
processes and environmental control techniques.
(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 adjacent to 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 (e.g., subsistence hunting and fishing
or other seasonal cultural practices), 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
[[Page 38805]]
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.
Sec. 49.172 Final permit issuance and administrative and judicial
review.
(a) How will final action occur and when will my permit become
effective? After making a decision on a permit, the reviewing authority
must notify you of the decision, in writing and if the permit is
denied, provide the reasons for such denial and the procedures for
appeal. 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 service of notice of the final permit decision, 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 are 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 decision-making;
(vi) The final permit;
(vii) The application and any supporting data furnished by you, the
permit 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 decision-making.
(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 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. An appeal directed to the Administrator,
rather than to the Board, will not be considered. 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 or 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
ascertainable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins with the service of notice of 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 being raised 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 were
not reasonably
[[Page 38806]]
ascertainable 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 will 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)-(3) or (4)
of this section, public notice must be given as provided in Sec.
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, you, 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 party.
(6) The reviewing authority, at any time prior to the rendering of
the decision under paragraph (d)(5) of this section to grant or deny
review of a permit decision, may, upon notification to the Board and
any interested parties, withdraw the permit and prepare a new draft
permit addressing the portions so withdrawn. The new draft permit shall
proceed through the same process of public comment and opportunity for
a public hearing as would apply to any other draft permit subject to
this part.
(7) A petition to the Board under paragraph (d)(2) of this section
is, under section 307(b) of the Act, a prerequisite to seeking judicial
review of the final agency action.
(8) 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 will 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.
(9) The reviewing authority shall promptly publish in the Federal
Register notice of any final agency action on a permit.
(10) 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 not be considered, except in cases the Board has referred
to the Administrator pursuant to Sec. 49.172(d)(1) and in which the
Administrator has issued the final order. A motion for reconsideration
will not stay the effective date of the final order unless specifically
so ordered by the Board.
(11) 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? The reviewing authority may reopen
an existing, currently-in-effect permit for cause on its own
initiative, such as if it contains a material mistake or fails to
assure compliance with applicable requirements. However, except for
those permit reopenings that do not increase the emissions limitations
in the permit, such as permit reopenings that correct typographical,
calculation and other errors, all other permit reopenings shall be
carried out after the opportunity of public notice and comment and in
accordance with one or more of the public participation requirements
under Sec. 49.171(b)(1)(ii).
Sec. 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 sources in nonattainment areas of Indian country that
meets the requirements of part D of title I of the Act and Sec. 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 and it will be the reviewing authority for purposes of the
provisions for which it has been granted delegation.
(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 Sec. 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;
[[Page 38807]]
(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 Sec. 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) A demonstration 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. You, the permit 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 by the delegate Tribal agency or by you, the permit applicant,
as applicable and as requested by the Administrator. 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.
(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.
(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? 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 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 a TIP 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 Tribal implementation plan program.
(4) Permits previously issued under this program will remain in
effect and be enforceable as a practical matter until and unless the
Tribe issues new permits to these sources based on the provisions of
the EPA-approved Tribal implementation plan.
PART 51--[AMENDED]
0
4. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
5. Appendix S to part 51 is amended by revising paragraph II.B and
adding condition 5 to paragraph IV.A 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 part 60 or any national emission
standard for hazardous
[[Page 38808]]
air pollutants in part 61 or part 63 of this chapter. If the
reviewing authority determines that the proposed major new source
cannot meet the applicable emission requirements, the permit to
construct must be denied.
---------------------------------------------------------------------------
\1\ Hereafter the term source will be used to denote both any
source and any modification.
---------------------------------------------------------------------------
IV. * * *
A. * * *
Condition 5. The permit applicant shall conduct an analysis of
alternative sites, sizes, production processes and environmental
control techniques for such proposed source that demonstrates that
the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction or modification.
* * * * *
[FR Doc. 2011-14981 Filed 6-30-11; 8:45 am]
BILLING CODE 6560-50-P