[Federal Register Volume 79, Number 104 (Friday, May 30, 2014)]
[Rules and Regulations]
[Pages 31035-31045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11499]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2003-0076; FRL-9909-78-OAR]
RIN 2060-AR25
Review of New Sources and Modifications in Indian Country--
Amendments to the Federal Indian Country Minor New Source Review Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing final
amendments to the federal minor New Source Review (NSR) program in
Indian country. We refer to this NSR rule as the ``federal Indian
country minor NSR program.'' We are amending this rule in two ways.
First, we are expanding the list of emissions units and activities that
are exempt from the federal Indian country minor NSR program by adding
several types of low-emitting units and activities. Second, we have
clarified construction-related terms by defining ``commence
construction'' and ``begin construction'' to better reflect the
regulatory requirements associated with construction activities. We
believe both of these changes will simplify the program, and result in
less burdensome implementation without detriment to air quality in
Indian country. Finally, we have reconsidered the advance notification
period for relocation of a true minor source in response to a petition
on the rule from the American Petroleum Institute, the Independent
Petroleum Association of America and America's Natural Gas Alliance,
but we are not changing that provision.
DATES: The final rule is effective on June 30, 2014.
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 in the www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the Air and
Radiation Docket, EPA/DC, William Jefferson Clinton West Building, Room
3334, 1301 Constitution Avenue NW., Washington, DC 20460. 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 is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Greg Nizich, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-3078; fax number (919) 541-5509;
email address: [email protected].
SUPPLEMENTARY INFORMATION: The information in this Supplementary
Information section of 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?
C. What acronyms, abbreviations and units are used in this
preamble?
II. Purpose
III. Background
A. What are the general requirements for the minor NSR program
in Indian country?
B. What is the Indian country NSR rule?
C. What is the status of NSR air quality programs in Indian
country?
IV. What final action is the EPA taking on amendments to the federal
Indian country minor NSR rule?
A. What additional emissions units and activities are exempted
from the federal Indian country minor NSR rule?
B. How are construction-related activities defined for
permitting purposes?
C. What is the deadline for advance notification to the
reviewing authority for a true minor sources that is relocating?
V. Summary of Significant Comments and Responses
A. Emissions Unit and Activity Exemptions
B. Definition of Begin Construction
C. Source Relocation
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
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 and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
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
L. Judicial Review
VII. 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 planning to locate
or located in Indian country. 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.
[[Page 31036]]
321212 Softwood Veneer and
Plywood Manufacturing.
32191 Millwork (wood products
manufacturing).
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 Casinos).
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.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be subject to the
federal Indian country minor NSR program, and therefore potentially
affected by this action. To determine whether your facility is affected
by this action, you should examine the applicability criteria in 40 CFR
49.151 through 49.161 (i.e., the federal Indian country minor NSR
rule). 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 the EPA's NSR home
page located at http://www.epa.gov/nsr.
C. What acronyms, abbreviations and units are used in this preamble?
The following acronyms, abbreviations and units are used in this
preamble:
BACT Best Available Control Technology
CAA or Act Clean Air Act
EPA U.S. Environmental Protection Agency
FARR Federal Air Rule for Indian Reservations
FR Federal Register
GP General Permit
HAPs Hazardous Air Pollutants
HP Horsepower
LAER Lowest Achievable Emission Rate
MMBTU/hr Million British thermal units per hour
NAAQS National Ambient Air Quality Standard(s)
NESHAP National Emission Standards for Hazardous Air Pollutants
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
ppm Parts per million
PSD Prevention of Significant Deterioration
PTE Potential to Emit
RFA Regulatory Flexibility Act
SBA Small Business Administration
SIP State Implementation Plan
TIP Tribal Implementation Plan
tpy Tons per year
UMRA Unfunded Mandates Reform Act
II. Purpose
The purpose of this rulemaking is to revise certain provisions in
the federal Indian country minor NSR rule \1\ (the Rule) to streamline
implementation by expanding the list of appropriately exempted units/
activities and clarifying language related to source construction.
Specifically, we are adding five categories to the list of units/
activities that are exempt from the federal Indian country minor NSR
rule, and revising another category, because their emissions are deemed
insignificant. Listing these categories explicitly for exemptions means
that many applicants and reviewing authorities will not need to
calculate potential emissions for those activities.
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\1\ The federal Indian country minor NSR rule is a component of
``Review of New Sources and Modifications in Indian Country,'' Final
rule 76 FR 38747 (July 1, 2011) that applies to new and modified
minor sources and minor modifications at major sources.
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In the Rule, the term ``commence construction'' is used in two
different contexts, i.e., the provisions governing construction
prohibition, and also the provisions specifying that construction must
occur within 18 months of the final permit issuance date. We are
clarifying this distinction by adding two separate definitions for
those situations: ``begin construction'' and ``commence construction.''
Further, we are replacing ``commence construction'' with ``begin
construction'' in certain sections of the regulatory text for
consistency with the new definitions. Finally, this rule reaffirms the
30-day advance notification requirement for relocation of true minor
sources after reconsideration of this provision.
III. Background
A. What are the general requirements for the minor NSR program in
Indian country?
Section 110(a)(2)(C) of the Clean Air Act (Act) requires that every
state implementation plan (SIP) include a program to regulate the
construction and modification of stationary sources, including a permit
program as required in parts C and D of title I of the Act, to ensure
attainment and maintenance of the National Ambient Air Quality
Standards (NAAQS). The permitting program for minor sources is
addressed
[[Page 31037]]
by section 110(a)(2)(C) of the Act, which we commonly refer to as the
minor NSR program. A minor source means a source that has a potential
to emit (PTE) lower than the major NSR applicability threshold for a
particular pollutant as defined in the applicable nonattainment major
NSR program or any regulated NSR pollutant with respect to the
Prevention of Significant Deterioration (PSD) program.
States must develop minor NSR programs designed to attain and
maintain the NAAQS in a manner most suitable for the circumstances of
the particular state. 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 prescriptive
than those for major sources to facilitate the development of programs
that best reflect a state's chosen approach to achieving the required
result. As a result, the requirements vary substantially across the
state minor NSR programs.
Furthermore, sections 301(a) and 301(d)(4) of the Act, as
implemented through the Tribal Authority Rule \2\ (TAR), provide the
EPA with a broad degree of discretion in developing a program to
regulate new and modified minor sources in Indian country.
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\2\ The TAR is comprised of Subpart A of 40 CFR part 49, which
is titled ``Indian Country: Air Quality Planning and Management''.
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B. What is the Indian country NSR rule?
The ``Review of New Sources and Modifications in Indian country''
(i.e., Indian country NSR rule) final rule was established under the
authority of sections 301(a) and (d) of the Act and the TAR and
published in the Federal Register on July 1, 2011 (76 FR 38748). This
rule established a federal implementation plan (FIP) for Indian country
that includes two NSR programs for the protection of air resources in
Indian country. These two new NSR programs work together with the pre-
existing PSD program at 40 CFR 52.21\3\ and the title V operating
permits program at 40 CFR part 71 \4\ to provide a comprehensive
permitting program for Indian country to ensure that air quality in
Indian country will be protected in the manner intended by the Act.
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\3\ The PSD program is a preconstruction permitting program that
applies to new major stationary sources (major sources) and major
modifications in areas attaining the NAAQS, including attainment
areas in Indian country.
\4\ Title V of the Act requires all new and existing major
sources in the United States to obtain and comply with an operating
permit that brings together all of the source's applicable
requirements under the Act. All states, numerous local areas and one
tribe have approved title V permitting programs under the
regulations at 40 CFR part 70. The EPA implements the part 71
federal program in Indian country and other areas that are not
covered by an approved part 70 program. Currently, one tribe has
been delegated authority to assist the EPA with administration of
the federal part 71 program.
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One regulation created by the Indian country NSR rule, which we
refer to as the ``federal Indian country minor NSR rule,'' is codified
at 40 CFR 49.151-49.161 and applies to new and modified minor sources
and to minor modifications at existing major sources throughout Indian
country where there is no EPA-approved plan in place. The second
regulation, which we refer to as the ``Indian country nonattainment
major NSR rule,'' is codified at 40 CFR 49.166-49.173 and applies to
new and modified major sources in areas of Indian country that are
designated as not attaining the NAAQS (nonattainment areas). The Indian
country NSR rules ensure that 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 and major modifications in nonattainment
areas.
Under the federal Indian country minor NSR rule, new minor sources
with a PTE equal to or greater than the minor NSR thresholds and
modifications at existing minor sources, as well as minor modifications
at major sources, with allowable emissions increases equal to or
greater than the minor NSR thresholds, must apply for and obtain a
minor NSR permit prior to beginning construction of the new source or
modification. The effective date of the federal Indian country minor
NSR rule was August 30, 2011. To facilitate the effective
implementation of the federal Indian country minor NSR program, some
components of the rule were phased in. Generally, the applicability of
the preconstruction permitting rules to new synthetic minor sources \5\
began on the rule's effective date, August 30, 2011; for new or
modified true minor sources and minor modifications at major
sources,\6\ the rule applies beginning the earlier of September 2,
2014, or 6 months after the publication of a final general permit for
that source category in the Federal Register (40 CFR
49.151(c)(1)(iii)(B)). In addition, existing true minor sources in
Indian country were required to register with their reviewing authority
by March 1, 2013.
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\5\ 40 CFR 49.152 defines ``synthetic minor source'' as a source
that otherwise has the potential to emit regulated NSR pollutants in
amounts that are at or above those for major sources in section
49.167, section 52.21 or section 71.2 of chapter 40, as applicable,
but that has taken a restriction so that its PTE is less than such
amounts for major sources. Such restrictions must be enforceable as
a practical matter.
\6\ 40 CFR 49.152 defines ``true minor source'' as a source, not
including the exempt emissions units and activities listed in
section 49.153(c), that emits or has the potential to emit regulated
NSR pollutants in amounts that are less than the major source
thresholds in section 49.167 or section 52.21 of Chapter 40, as
applicable, but equal to or greater than the minor NSR thresholds in
section 49.153, without the need to take an enforceable restriction
to reduce its PTE to such levels.
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C. What is the status of NSR air quality programs in Indian country?
No tribe is currently administering an EPA-approved PSD program.
Therefore, the EPA has been implementing a FIP to issue PSD permits for
major sources in attainment areas of Indian country (40 CFR 52.21).
There are also no tribes currently administering an EPA-approved
nonattainment major NSR program, so the EPA is the reviewing authority
under a FIP (40 CFR 49.166 through 49.175). Only a few tribes are
administering EPA-approved minor NSR programs. Accordingly, the EPA
administers minor NSR programs in most areas of Indian country under a
FIP (40 CFR 49.151 through 49.165).
Sections 301(d) and 110(o) of the Act provide eligible tribes the
opportunity to develop their own tribal programs and we encourage
eligible tribes to develop their own minor and nonattainment major NSR
programs, as well as a PSD major source program, for incorporation into
tribal implementation plans (TIPs). Tribes may use the tribal NSR FIP
program as a model if they choose to develop their own EPA-approved
TIPs.
IV. What final action is the EPA taking on amendments to the federal
Indian country minor NSR rule?
This section discusses the final amendments to the federal Indian
country minor NSR rule and our rationale for those amendments.
A. What additional emissions units and activities are exempted from the
federal Indian country minor NSR rule?
This final rule adds five categories (and also expands one
category) to the current list of units/activities that are exempt from
the existing federal Indian country minor NSR rule. We are adding these
units/activities to 40 CFR 49.153(c) because their potential emissions
are insignificant and generally well below the minor source thresholds.
These additional exemptions will reduce regulatory burden by
eliminating the need for applicants and/or permitting agencies to
[[Page 31038]]
calculate their potential emissions to verify that minor source
permitting thresholds are not triggered. Adding these exemption
categories fulfills the commitment we made in the preamble to the
federal Indian country minor NSR rule (July 1, 2011; 76 FR 38759) to
assess whether to add other activities to the list of exempted units/
activities.
The following units/activities are being added to the exempt
category list under 40 CFR 49.153(c):
Emergency generators used solely to provide electrical
power during power outages: in attainment areas the total site-rated
horsepower rating shall be below 1,000; in nonattainment areas
classified Serious or lower, the total site-rated horsepower shall be
below 500. In areas classified Severe or Extreme, no exemption applies.
Stationary internal combustion engines with a horsepower
rating less than 50.
Furnaces or boilers used for space heating that use only
gaseous fuel with a total maximum heat input (i.e., from all units
combined) at or below: in attainment areas, 10 million British thermal
units per hour (MMBtu/hr); in nonattainment areas classified as Serious
or lower, 5 MMBtu/hr; and in nonattainment areas classified as Severe
or Extreme, 2 MMBtu/hr.
Single family residences and residential buildings with
four or fewer dwelling units.
Air conditioning units used for human comfort that do not
exhaust air pollutants to the atmosphere from any manufacturing or
other industrial processes.
Also, we are modifying the existing exemption for food preparation,
as we proposed, to include the cooking of food by other than wholesale
businesses that both cook and sell cooked food. Lastly, we have decided
not to finalize the proposed exemption category for forestry and
silvicultural activities for the reasons explained under section V
below.
B. How are construction-related activities defined for permitting
purposes?
This final rule adds definitions for the terms ``begin
construction'' and ``commence construction'' with only a minor change
to the definitions we proposed. These definitions were proposed to
better distinguish those situations where activity is prohibited
without a permit from those situations where construction needs to
occur within a specified period of time after permit issuance to
maintain a valid permit. The only change being made to the proposed
definitions in the final rule is that the term ``grading'' is being
added to the list of activities that are allowed without a permit
within the definition of ``begin construction.'' We discuss this change
further under the public comments discussion in section V of this
preamble. We are also finalizing the changes we proposed without
revision to use ``begin construction,'' rather than ``commence
construction,'' in those sections of the federal Indian country minor
NSR rule where the regulatory text addresses actions that are
prohibited prior to permit issuance. This makes our use of ``commence
construction'' more consistent with the EPA's major NSR program, and,
thus minimizing any potential confusion.
Also, we are finalizing the revised regulatory text in 40 CFR
49.151(c)(1)(iii)(B) clarifying our intent that true minor sources are
not required to obtain a permit unless construction of such source, or
modification, occurs on or after the date that is the earlier of 6
months after a final general permit for that specific source category
is published in the Federal Register, or September 2, 2014.\7\
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\7\ The Federal Register dated January 14, 2014, proposed to
extend the true minor source permitting deadline for oil and natural
gas sources between 12 and 18 months after the current deadline of
September 2, 2014 (79 FR 2517). This means the true minor source
permitting deadline for this category of sources could be extended
from between September 2, 2015 and March 2, 2016.
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C. What is the deadline for advance notification to the reviewing
authority for a true minor source that is relocating?
We requested public comment on the relocation provision under 40
CFR 49.160(d)(1) that requires the owner/operator of a true minor
source to notify the relevant reviewing authority in writing 30 days
prior to relocating an existing source. Specifically, we sought comment
on possibly reducing the advance notification period from 30 days to as
few as 10 days. After reviewing the public comments received on this
topic, we have decided to retain the 30-day advance notification period
since a clear basis for reducing the notification period was not
provided, and because several reasons for retaining the current 30-day
period were given. In the process of reviewing the comments addressing
the advance notification provision, we did become aware that relocation
of individual pieces of equipment, rather than entire sources, can
occur often in certain industries, and therefore we provide further
discussion addressing those situations in section V of this preamble.
Finally, to better clarify advance notification requirements when a
source relocation results in a change in the reviewing authority (e.g.,
the source moves from a reservation in EPA Region 8 to a reservation in
EPA Region 6), we are finalizing the proposed changes to 40 CFR
49.160(d)(1) specifying that a source must notify both the existing and
new reviewing authorities in that case.
V. Summary of Significant Comments and Responses
The EPA provided a 60-day review and comment period on this
rulemaking, which closed on August 5, 2013. We received seven comment
letters (two industry letters, one state/local agency letter, three
tribal letters and one private citizen letter) on the proposed
amendments. The subsections that follow provide the significant
comments and responses. The Response to Comments document that contains
a summary of all comments received on the proposed amendments and the
responses to those comments, is available in the docket.
A. Emissions Unit and Activity Exemptions
1. Overall Comment on Exemptions
Comment: One state/local commenter appreciates that additional
exemptions may be needed; however, the commenter expressed an overall
concern (that applies broadly to several of the exemption categories
proposed) that the exemptions are inconsistent with their region's air
quality rules. The commenter believes that exempting these sources from
permitting will provide a competitive advantage to sources in Indian
country compared to sources on non-tribal lands.
The commenter cites a specific concern with the competitive
advantage issue in light of the EPA's recent proposed ``detachment'' of
Morongo Indian country from California's South Coast Air Basin and the
lowering of the classification of the Morongo reservation from Extreme
to Serious ozone nonattainment (Note: the proposed reclassification
identified by the commenter was finalized on September 23, 2013 (78 FR
58189)). The commenter states that the Morongo lands are located
directly upwind from the Coachella Valley, a Severe ozone nonattainment
area, and therefore the commenter is concerned that exempting certain
sources from permitting in Indian country will result in negative air
quality impacts thereby delaying attainment of the NAAQS in downwind
airsheds for both non-tribal lands and certain tribal areas.
[[Page 31039]]
The commenter urges the EPA to adopt requirements specific to areas
of Indian country that are classified as either Severe or Extreme ozone
nonattainment areas, just as the EPA has adopted lower minor NSR
emission thresholds in the existing rule for nonattainment areas as
opposed to attainment areas.
Response: Prior to the August 30, 2011, effective date of the
federal Indian country minor NSR rule, codified in 40 CFR part 49,
promulgated July 1, 2011 (76 FR 38748), there were no emission
reduction requirements for new minor sources within areas of Indian
country such as the Morongo Reservation. We point this out to highlight
that the federal Indian country minor NSR rule has already reduced any
potential competitive advantage cited by the commenter by requiring
pre-construction permits for sources (with emissions above permitting
thresholds) where prior to August 30, 2011, there were no such
requirements.
As discussed in the July 1, 2011, final rule, while section
182(e)(2) of the Act specifies an emissions increase threshold of ``0''
tons/year (tpy) for existing major sources in Extreme ozone
nonattainment areas, we do not believe these thresholds are appropriate
for minor sources and operators within Indian country. Nonetheless, we
are mindful of the need to protect the NAAQS and, as discussed later in
comment responses related to exemptions for emergency generators and
boilers/furnaces, we have made some revisions to the exemption criteria
in the final rule amendments.
2. Exemption for Emergency Generators
Comment: One state/local commenter expressed concern with the
proposed exemption threshold for emergency generators under 500
horsepower (HP) in nonattainment areas and asserted it would create an
imbalance between tribal lands and the surrounding non-tribal areas
classified as Severe or Extreme nonattainment for ozone. Air quality
regulations that apply to sources within the commenter's jurisdiction
specify emission limits for nitrogen oxide (NOX) and
particulate matter (PM) for all engines over 50 HP. The commenter
believes engines on tribal lands, which would be exempt from permitting
under the EPA's proposed criteria, would emit NOX in amounts
above the 0.8 tpy and 1.8 tpy levels that new and older model engines,
respectively, must meet under the state air district's Best Available
Control Technology (BACT) requirements. The commenter states that these
types of engines are controllable and contribute to ozone and therefore
should be subject to NSR permitting.
The commenter also cited a report from the World Health
Organization \8\ that declared diesel PM to be a human carcinogen. The
commenter states that emissions from three standby generators
(approximately 900 HP in total) can create cancer risks exceeding 25 in
a million, even if operated only 50 hours/year. The commenter
elaborates that a 500 HP emergency generator, operating for 500 hours/
year, would create even higher risk (than the engines totaling 900 HP
in the earlier example) due to its longer operating period, and
therefore PM should be controlled from these units and they should be
subject to NSR since the EPA's source-specific rules are not applicable
to these units.
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\8\ Press release dated June 12, 2012. See www.iarc.fr/en/media-
centre/pr/2012/pdfs/pr213_E.pdf.
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Response: One of our objectives for proposing activities/units for
exemption was to reduce burden on source owners. We believe that
emergency generators with horsepower ratings below the exemption
thresholds will predominately have emissions below the minor source
permitting thresholds and therefore the proposed exemption would
potentially save source owners the effort of estimating their emissions
solely to demonstrate that emissions are well below the permitting
threshold.
However, we also recognize the commenter's concerns regarding the
impacts of sources in Indian country to portions of the South Coast Air
Basin that are classified Severe or Extreme nonattainment for ozone. We
are required by title I of the Act to ensure attainment and maintenance
of the NAAQS. Accordingly, after considering the comment, we believe
that an exemption for emergency generators is not appropriate in ozone
nonattainment areas classified Severe or Extreme, and we have revised
exemption language in the final rule accordingly. As finalized, the
total site-rated 500 HP exemption for emergency generators in ozone
nonattainment areas will only apply in ozone nonattainment areas
classified Serious or lower. The site-rated 1,000 HP exemption proposed
for attainment areas remains unchanged in this final rule.
3. Exemption for Boilers and Furnaces
Comment: One state/local commenter believes that boilers and/or
furnaces below the proposed heat input rates should not be exempt from
minor NSR permitting in ozone nonattainment areas classified as Severe
or higher because it would provide a competitive advantage to sources
locating in Indian country. The commenter explains that the South Coast
Air Quality Management District's (SCAQMD) air quality rules require
controls for NOX at levels below the proposed exemption
rates of 5 million Btu/hr for nonattainment areas; 10 million Btu/hr
for attainment areas. The commenter refers to SCAQMD's NOX
emission limits of 9 ppm for natural gas boilers having heat input
rates between 2 million Btu/hr and 5 million Btu/hr to be met by
January 1, 2012. In addition to that requirement, natural gas
industrial furnaces must meet an emissions limit of 30 ppm (Rule 1147)
and NOX controls for fan-type central furnaces under 175,000
Btu/hr are required as well (Rule 1111). The commenter states that the
permitting exemption under Rule 219(b)(2) applies only to boilers and
furnaces under 2 million Btu/hr.
Response: We believe the commenter raises a valid concern regarding
the potential impacts to portions of the South Coast Air Basin
classified as Severe or Extreme ozone nonattainment areas that are
adjacent to/downwind from Indian country. In certain cases the proposed
exemption could make it more difficult for downwind non-Indian country
areas to achieve attainment of the NAAQS, which would be contrary to
the requirements of title I of the Act. To minimize the likelihood of
this occurring in the areas with higher ozone nonattainment
classifications, we are finalizing a lower heat input rate (than the
proposed 5 million Btu/hr which would have applied in all nonattainment
areas) for Severe and Extreme ozone nonattainment areas. The heat input
rate exemption for nonattainment areas in the final rule is specified
as follows: for nonattainment areas classified Serious and lower, the
exemption rate is heat input rates at or below 5 million Btu/hr; for
ozone nonattainment areas classified as Severe or Extreme, the
exemption level is a heat input rate at or below 2 million Btu/hr. The
heat input rate exemption proposed for attainment areas remains
unchanged.
4. Exemption for Forestry/Silvicultural Activities
Comment: One tribal commenter supports this proposed exemption. The
commenter states the view that while emissions from road construction
and maintenance are of particular concern (Note: while the commenter
did not specify, we assume the comment is referring to activities
related to the proposed exemption category), ``such emissions do not
rise to a level requiring their removal from the list of proposed
[[Page 31040]]
exemptions.'' The commenter further states that permitting requirements
for road construction and maintenance will impact timely repair and
maintenance of roads on the commenter's lands. The commenter also
mentions that open burning, a potential source of emissions on their
lands, is regulated by the Bureau of Indian Affairs. Therefore the
commenter believes the proposed exemption for forestry and
silvicultural activities is reasonable and will save permitting
resources.
One state/local commenter requests that the proposed exemption
category be modified or deleted. The commenter voices concern with
significant emissions from road construction and maintenance, and
logging activities. The commenter also expresses concern with the
potential for multiple pieces of equipment to collectively exceed the
minor source thresholds, such as engines associated with wood chippers,
a consideration the EPA noted in identifying units/activities to
propose for exemption (June 4, 2013; 78 FR 33270). The commenter urges
the EPA to delete the proposed exemption and instead rely on the
attainment and nonattainment area NOX thresholds (10 tpy and
5 tpy, respectively) to determine when a permit must be obtained. As an
alternative, the commenter suggests that specific types of equipment
could be exempted instead of the entire category if the EPA determines
them to have de minimis emissions.
Response: One reason we proposed the forestry/silvicultural
category for exemption was to be consistent with the exemptions list in
the Federal Air Rule for Indian Reservations, which applies in Indian
country in the Northwest. A second reason we proposed this category for
exemption was that we believed all emissions within the category would
be de minimis in nature. Therefore, subjecting them to NSR permitting
would provide little environmental benefit. Both commenters express
some concern with the emissions associated with forestry and
silvicultural activities, and one commenter identifies a situation
where emissions could exceed de minimis levels.
Upon considering available information, we have concluded that a
category-wide exemption is not the most appropriate approach to
managing emissions for forestry and silvicultural activities. This
conclusion is based on our recognizing the broad range of activities
and potential emissions sources that could be part of this category and
the potential to inadvertently exclude units with significant
emissions. Due to the broad nature of activities under this category,
we believe that there might be cases where permitting of certain
emission units is needed to protect air quality, which would be
precluded under a category-wide exemption. Based on that concern, we
believe it is more appropriate to use the emission thresholds in the
existing rule (e.g., NOX: 10 tpy and 5 tpy in attainment and
nonattainment areas, respectively) to determine source permitting
requirements and not have a broad, category-wide exemption. Therefore
the exemption for forestry and silvicultural activities is not included
in the final amendments.
B. Definition of Begin Construction
Comment: One industry association commenter notes that the proposed
definition of ``begin construction'' lists certain activities that can
be conducted before the source has obtained a permit.\9\ The commenter
states that the list is more restrictive than the Agency's long
standing approach to permissible activities. The commenter refers to a
policy memo addressing activities allowed without a permit \10\ and
states that the EPA should not deviate from previously established
policies.
---------------------------------------------------------------------------
\9\ The list we proposed includes the following activities:
Engineering and design planning, geotechnical investigation (surface
and subsurface explorations), clearing, surveying, ordering of
equipment and materials, storing of equipment or setting up
temporary trailers to house construction management or staff and
contractor personnel.
\10\ Memorandum from Reich, Edward E., OAQPS, to DeSpain, Robert
R., EPA Region VII, titled ``Construction Activities Prior to
Issuance of a PSD Permit with Respect to ``Begin Actual
Construction,'' March 28, 1986.
---------------------------------------------------------------------------
Response: We agree with the commenter. Our intent was to include
the same list of activities in the proposed definition that have been
historically allowed under the EPA policy prior to obtaining a permit.
We inadvertently omitted the term ``grading'' from the list in the
proposed definition. We have added grading to the activities allowed
under the definition of ``begin construction'' in the final rule to
maintain consistency with the existing EPA policy.
C. Source Relocation
1. 30-Day Advance Notification Provision
Comment: One tribal commenter believes that at least 30 days notice
is warranted for relocation of a non-portable source since a new permit
may be required, and, in that case, the permitting authority will need
sufficient time to process the application and issue a permit. The
commenter elaborates that for a portable source, a 10-day notice
requirement may be sufficient since its permit will likely include pre-
approved new locations. The commenter agrees with the EPA's
interpretation that these time periods apply where an entire source is
relocated, noting that relocation of one or more pieces of equipment or
emission units requires consultation with the source's reviewing
authority to determine if a modification will occur under the federal
Indian country minor NSR rule.
Another tribal commenter believes that, based on their permitting
experience, in situations where a registered source relocates to a new,
previously unapproved location, the permitting authority should have at
least 30 days to review the relocation request. The commenter states
that this time period is needed for tribal and historic preservation
reviews to be performed.
One industry association commenter reiterates comments made in its
petition for reconsideration on the July 1, 2011, final federal Indian
country minor NSR rule stating that sources often relocate on short
notice and occasionally change a previously planned relocation with
little advance warning. The commenter states that the 30-day advance
notice requirement is incompatible with oil and gas sector operations.
In a subsequent teleconference, the commenter clarified that their
primary concern involves relocation of one or more pieces of equipment
or emissions units and not entire sources.\11\ In response to the EPA's
request for comment on the notification provision, the commenter agrees
with the EPA's statement that there is no requirement for advance
approval, or a permit, for a registered source that relocates prior to
September 2, 2014. The commenter suggests that, in those cases, there
is no need or value to an advance notification as long as the source
continues to comply with its permit. The commenter elaborates that
there will be sufficient opportunity after relocation to notify the EPA
of any change. The commenter offers that one possible approach is the
one used under 40 CFR 63.9(j), and could be adopted in the tribal
rule.\12\ The commenter also references the recently promulgated oil
and gas sector
[[Page 31041]]
New Source Performance Standards (NSPS) which allows for a lag time
between source startup and the determination of whether controls are
required.
---------------------------------------------------------------------------
\11\ See memorandum titled Summary of Discussion from the
October 23, 2013, Teleconference between API Representatives and the
Environmental Protection Agency on Source Relocation under the
Tribal Minor NSR Rule. Nov 13, 2013. Docket number EPA-HQ-OAR-2003-
0076-0188.
\12\ This section allows sources to submit changes to previously
provided information within 15 days after the change occurs.
---------------------------------------------------------------------------
Response: We specifically requested comment on the case where the
source relocates before September 2, 2014 (i.e., where no permit is
required). As discussed in the preamble for the proposed amendments (78
FR 33723), a true minor source that relocates in that situation does
not need prior approval from its reviewing authority. The notification
provision simply specifies advance notification in that case. However,
it was not clear in some tribal comments if they were addressing the
situation where relocation occurs before September 2, 2014, or on or
after that date, since the need for a permit was mentioned by
commenters. For that latter case, as stated in the proposal, a
previously unpermitted portable source (e.g., a hot-mix asphalt plant)
that relocates on or after September 2, 2014, will be required to
obtain a permit prior to relocation, and we believe that any such
permit will contain provisions addressing any future relocation. In
this case of relocation on/after September 2, 2014, the permit
application fulfills the advance notification requirement. In addition,
we believe in cases where a permit is required the permitting process
addresses the tribal and historic preservation obligations cited by the
commenters. Because none of the commenters presented examples of a
situation where the 30-day advance notification provision justifies a
reduction, we are retaining the 30-day notification period. In the
additional discussion below, we are clarifying that the advance notice
relocation provision is intended to apply to entire sources and not
individual pieces of equipment or emissions units.
2. Permitting Issues Related to Source Relocation
Comment: One industry association commenter referenced the EPA's
discussion in the proposed rule preamble addressing permitting
obligations for true minor sources that relocate (78 FR 33273). The
commenter disagrees with the EPA's statement that a true minor source
constructed before September 2, 2014, that relocates after that date
will have to obtain a permit. The commenter states that relocation is
not tantamount to a modification of such a source and therefore the
need for a permit is not triggered. The commenter clarified in a
subsequent teleconference \13\ that most of the situations addressed in
the comments involve relocation or replacement of single pieces of
equipment, not entire facilities, in the oil and gas sector.
---------------------------------------------------------------------------
\13\ See memorandum titled Summary of Discussion from the
October 23, 2013, Teleconference between API Representatives and the
Environmental Protection Agency on Source Relocation under the
Tribal Minor NSR Rule. November 13, 2013. Docket number EPA-HQ-OAR-
2003-0076-0188.
---------------------------------------------------------------------------
Further, the commenter disagrees with the EPA's statement in the
proposed rule preamble that a true minor source constructed after
September 2, 2014, must obtain a permit for the original location and
any subsequent relocation not specifically pre-authorized in the
original permit. The commenter believes the EPA should clarify that
permit conditions listing specific sites for relocation are not
required. The commenter states that this approach would be particularly
important for general permits where the ability to relocate would have
to be based on generic criteria. The commenter believes no other
approach would work with a general permit.
Response: The registration program and relocation provisions in 40
CFR 49.160(d)(1) apply to an entire true minor source, and are not
applicable to an individual piece of equipment that is merely a part of
the true minor source. The registration program is used for developing
an inventory of emissions throughout Indian country to help us manage
and protect air quality. We understand from the commenter that in oil
and gas sector operations moving a single piece of equipment from one
facility to another, or replacing a piece of equipment with a new one,
can occur on a regular basis. For clarification purposes, we believe it
would be beneficial to both sources and reviewing authorities for us to
list the different situations involving a piece of equipment (a unit)
that we believe will be most common, and specify the outcome with
respect to minor NSR permitting. While we have listed expected outcomes
below, the source owner/operator should still verify with its reviewing
authority that the ``matching'' situation listed below, and its stated
outcome, applies to its case:
(1) A unit at a permitted source is replaced ``in kind'' (i.e., the
replacement unit is of the same size, capacity, horsepower, etc. as the
existing unit)--The owner/operator should notify the reviewing
authority as specified in its permit. If the existing permit conditions
do not address equipment replacement/relocation, then the source should
send a notification letter to its reviewing authority no later than 60
days following replacement of the unit.
(2) A unit at a registered but unpermitted source is replaced in
kind--No new notification to the reviewing authority is required since
this unit is already part of the inventory.
(3) A unit is moved within the boundary of a permitted or
registered source--No new notification to the reviewing authority
required, unless otherwise specified in the permit.
(4) A unit planned for addition (i.e., not replacement) at either a
permitted or registered source, with PTE above the minor NSR
thresholds--The owner/operator of the true minor source must first
obtain a minor source permit before installing the unit at the new
location beginning on September 2, 2014.\14\
---------------------------------------------------------------------------
\14\ The EPA published a notice of proposed rulemaking in the
Federal Register on January 14, 2014 (79 FR 2546). Within that
document we asked for comment on extending the true minor source
permitting deadline from September 2, 2014, to between September 2,
2015, and March 2, 2016, for oil and natural gas production sources.
---------------------------------------------------------------------------
(5) One or more units (with combined PTE between the minor and
major source thresholds) that are relocated to an entirely new location
(i.e., a greenfield facility)--(a) Prior to September 2, 2014, the
owner/operator of the true minor source must register with its
reviewing authority within 90 days of beginning operation at the new
location in accordance with 40 CFR 49.160(c)(1)(ii); (b) On or after
September 2, 2014, the owner/operator of the true minor source must
obtain a minor NSR permit from the reviewing authority at the new
location before beginning construction.
(6) A unit moved from one registered source to another registered
source before the September 2, 2014, permitting deadline--The source
must notify the reviewing authority of removal of the unit from the
originating source (to update its inventory) and also notify the
reviewing authority of the addition of the unit at the destination
source within 60 days following the change in location.
3. Other Comments on Permitting
Comment: One industry association commenter states that, in the
existing federal Indian country minor NSR rule, true minor sources
constructed or modified after August 30, 2011, are required to obtain a
permit. The commenter notes that the EPA proposed to revise this
applicability date until September 2, 2014, and the commenter supports
this change.
Response: We believe the commenter may have misinterpreted the
existing requirements within 49.151(c)(1)(iii).
[[Page 31042]]
Our intent under the existing rule has always been that true minor
sources do not need a permit if they begin construction before
September 2, 2014. We proposed changes to the regulatory text on June
4, 2013, that are intended to clarify the nature of this deadline. We
are finalizing these proposed changes to the regulatory text to make
this intent clear.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. The action will not create any new requirements under the federal
Indian country minor NSR program, but rather will simplify minor source
registrations and permit applications for some sources, potentially
reducing burden. The Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations for the federal Indian country minor NSR
program (40 CFR 49.151 through 49.161) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003. The OMB control numbers for the EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
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 action on small
entities, small entity is defined as: (1) A small business as defined
in the U.S. Small Business Administration size standards at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
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 that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final action on
small entities, I certify that this final action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic
effect, on all of the small entities subject to the rule.
This final action will not create any new requirements under the
federal Indian country minor NSR program, and therefore would not
impose any additional burden on any sources (including small entities).
This final action will simplify minor source registrations and reduce
the burden of applicability determinations for some sources compared to
the existing rule, potentially reducing burden for all entities,
including small entities. We have therefore concluded that this final
rule will be neutral or relieve the regulatory burden for all affected
small entities.
D. Unfunded Mandates Reform Act
This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local and tribal governments, in the aggregate, or the
private sector in any 1 year. This action will not create any new
requirements under the federal Indian country minor NSR program, but
rather will simplify minor source registrations and reduce the burden
of applicability determinations for some sources. Therefore, this
action is not subject to the requirements of sections 202 or 205 of
UMRA.
This action 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. As noted
previously, the effect of this final rule will be neutral or relieve
regulatory burden.
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 final rule will revise the
federal Indian country minor NSR program, which applies only in Indian
country, and will not, therefore, affect the relationship between the
national government and the states or the distribution of power and
responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000), the 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 the 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 final rule will have tribal
implications. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt tribal law. This
final rule will have tribal implications since it revises the federal
Indian country minor NSR program, which applies to both tribally-owned
and privately-owned sources in Indian country. As with the existing
rule, the revised rule will be implemented by the EPA, or a delegate
tribal agency assisting the EPA with administration of the rules, until
replaced by an EPA-approved tribal implementation plan. The effect of
this final rule will be to simplify compliance with, and administration
of, the federal Indian country minor NSR program, so any impact on
tribes would be in the form of reduced burden and cost.
Prior to proposing the rule amendments, we presented highlights of
the expected changes to tribal environmental staff during a conference
call with the National Tribal Air Association on February 28, 2013, and
[[Page 31043]]
asked for comments. Following signature of the proposed amendments on
May 23, 2013, the EPA mailed letters to over 560 tribal leaders to
offer consultation. In addition, to help facilitate the tribes'
decision concerning our offer of consultation, we held conference calls
on June 17 and 20, 2013, with tribal environmental officials where we
provided an overview of the proposed changes and answered any
questions. We did not receive any requests for consultation from tribal
governments. Lastly, we have taken into account the comments submitted
from three tribes on the proposed amendments and fully considered those
comments in finalizing the amendments in today's rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and 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 subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
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 the 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 the EPA to
provide Congress, through the OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
the EPA has not considered 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 does not
affect the level of protection provided to human health or the
environment. This final rule will simplify minor source registrations
and permit applications for some sources under the federal Indian
country minor NSR program, but will not relax control requirements or
result in greater emissions under the program.
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 on the date of publication, i.e.,
on June 30, 2014.
L. Judicial Review
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 July 29, 2014. 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.
VII. Statutory Authority
The statutory authority for this action is provided by sections
101, 110, 112, 114, 116 and 301 of the CAA as amended (42 U.S.C. 7401,
7410, 7412, 7414, 7416 and 7601).
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practices and procedures,
Air pollution control, Indians, Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: May 9, 2014.
Gina McCarthy,
EPA Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
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. Section 49.151 is amended by revising paragraphs (c)(1)(i)(A),
(c)(1)(ii)(A) and (B), (c)(1)(iii)(B), and (d)(1) to read as follows:
Sec. 49.151 Program overview.
* * * * *
(c) * * *
(1) * * *
(i) * * *
(A) If you wish to begin 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 beginning
construction.
* * * * *
(ii) * * *
(A) If you wish to begin construction of a new synthetic minor
source and/or
[[Page 31044]]
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 beginning 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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
prior to beginning construction.
* * * * *
(iii) * * *
(B) If you wish to begin construction of a new true minor source or
a modification at an existing true minor source on or after 6 months
from the date of publication in the Federal Register of a final general
permit for that source category, or September 2, 2014, whichever is
earlier, you must first obtain a permit pursuant to Sec. Sec. 49.154
and 49.155 (or a general permit pursuant to Sec. 49.156, if
applicable). 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.
* * * * *
(d) * * *
(1) If you begin 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.
* * * * *
0
3. Section 49.152(d) is amended by adding in alphabetical order
definitions for ``Begin construction'' and ``Commence construction'' to
read as follows:
Sec. 49.152 Definitions.
* * * * *
(d) * * *
Begin construction means, in general, initiation of physical on-
site construction activities on an emissions unit which are of a
permanent nature. Such activities include, but are not limited to,
installation of building supports and foundations, laying underground
pipework and construction of permanent storage structures. With respect
to a change in method of operations, this term refers to those on-site
activities other than preparatory activities which mark the initiation
of the change. The following preparatory activities are excluded:
Engineering and design planning, geotechnical investigation (surface
and subsurface explorations), clearing, grading, surveying, ordering of
equipment and materials, storing of equipment or setting up temporary
trailers to house construction management or staff and contractor
personnel.
Commence construction means, as applied to a new minor stationary
source or minor modification at an existing stationary source subject
to this subpart, that the owner or operator has all necessary
preconstruction approvals or permits and either has:
(i) Begun on-site activities including, but not limited to,
installing building supports and foundations, laying underground piping
or erecting/installing permanent storage structures. The following
preparatory activities are excluded: Engineering and design planning,
geotechnical investigation (surface and subsurface explorations),
clearing, grading, surveying, ordering of equipment and materials,
storing of equipment or setting up temporary trailers to house
construction management or staff and contractor personnel; or
(ii) Entered into binding agreements or contractual obligations,
which cannot be cancelled or modified without substantial loss to the
owner or operator, to undertake a program of actual construction of the
source to be completed within a reasonable time.
* * * * *
0
4. Section Sec. 49.153 is amended by:
0
a. Revising paragraphs (a)(3)(ii) and (iii) and (c) introductory text
and (c)(3); and
0
b. Adding paragraphs (c)(8) through (12) to read as follows:
Sec. 49.153 Applicability.
(a) * * *
(3) * * *
(ii) If you wish to begin 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 beginning 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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
prior to beginning construction.
* * * * *
(c) What emissions units and activities are exempt from this
program? At a source that is otherwise subject to this program, this
program does not apply to the following emissions units and activities
that are listed in paragraphs (c)(1) through (12) of this section:
* * * * *
(3) Cooking of food, except for wholesale businesses that both cook
and sell cooked food.
* * * * *
(8) Single family residences and residential buildings with four or
fewer dwelling units.
(9) Emergency generators, designed solely for the purpose of
providing electrical power during power outages:
(i) In nonattainment areas classified as serious or lower, the
total maximum manufacturer's site-rated horsepower of all units shall
be below 500;
(ii) In attainment areas, the total maximum manufacturer's site-
rated horsepower of all units shall be below 1,000.
(10) Stationary internal combustion engines with a manufacturer's
site-rated horsepower of less than 50.
(11) Furnaces or boilers used for space heating that use only
gaseous fuel, with a total maximum heat input (i.e., from all units
combined) of:
(i) In nonattainment areas classified as Serious or lower, 5
million British thermal units per hour (MMBtu/hr) or less;
(ii) In nonattainment areas classified as Severe or Extreme, 2
million British thermal units per hour (MMBtu/hr) or less;
(iii) In attainment areas, 10 MMBtu/hr or less.
(12) Air conditioning units used for human comfort that do not
exhaust air pollutants in the atmosphere from any manufacturing or
other industrial processes.
* * * * *
0
5. Section 49.158 is amended by revising paragraph (c)(1) to read as
follows:
[[Page 31045]]
Sec. 49.158 Synthetic minor source permits.
* * * * *
(c) * * *
(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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
before you begin construction.
* * * * *
0
6. Section 49.160 is amended by revising paragraph (d)(1) to read as
follows:
Sec. 49.160 Registration program for minor sources in Indian country.
* * * * *
(d) * * *
(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. Unless otherwise specified in an existing permit, a report
of relocation shall be provided as specified in paragraph (d)(1)(i) or
(ii) of this section, as applicable. In either case, the permit
application for the new location satisfies the report of relocation
requirement.
(i) Where the relocation results in a change in the reviewing
authority for your source, you must submit a report of relocation to
the current reviewing authority and a permit application to the new
reviewing authority.
(ii) Where the reviewing authority remains the same, a report of
relocation is fulfilled through the permit application for the new
location.
* * * * *
[FR Doc. 2014-11499 Filed 5-29-14; 8:45 am]
BILLING CODE 6560-50-P