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Monday,

August 21, 2006

Part V

Environmental
Protection Agency
40 CFR Parts 49 and 51
Review of New Sources and Modifications
in Indian Country; Proposed Rule
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48696 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

ENVIRONMENTAL PROTECTION Environmental Protection Agency, EPA submitting comments, go to I C & D of


AGENCY West (Air Docket), 1200 Pennsylvania the SUPPLEMENTARY INFORMATION section
Avenue, Northwest, Mailcode: 6102T, of this document.
40 CFR Parts 49 and 51 Washington, DC 20460. Please include a Docket: All documents in the docket
[EPA–HQ–OAR–2003–0076; FRL–8210–4] total of 2 copies. In addition, please are listed in the http://
mail a copy of your comments on the www.regulations.gov index. Although
RIN 2060–AH37 information collection provisions to the listed in the index, some information is
Office of Information and Regulatory not publicly available, e.g., CBI or other
Review of New Sources and Affairs, Office of Management and
Modifications in Indian Country information whose disclosure is
Budget (OMB), Attn: Desk Officer for restricted by statute. Certain other
AGENCY: Environmental Protection EPA, 725 17th St., NW., Washington, DC material, such as copyrighted material,
Agency (EPA). 20503. will be publicly available only in hard
ACTION: Proposed rule. • Hand Delivery: U.S. Environmental copy. Publicly available docket
Protection Agency, EPA West (Air materials are available either
SUMMARY: The Environmental Protection Docket), 1301 Constitution Avenue, electronically in http://
Agency (EPA) proposes to promulgate a Northwest, Room B–102, Washington, www.regulations.gov or in hard copy at
Federal Implementation Plan (FIP) DC 20004, Attention Docket ID No. the U.S. Environmental Protection
under the Clean Air Act (the Act) for EPA–HQ–OAR–2003–0076. Such Agency, Air Docket, EPA/DC, EPA West,
tribes in Indian country. The FIP would deliveries are only accepted during the Room B102, 1301 Constitution Ave.,
include two basic air quality regulations Docket’s normal hours of operation, and NW., Washington, DC. The Public
for the protection of communities in special arrangements should be made Reading Room is open from 8:30 a.m. to
Indian country. The first rule would for deliveries of boxed information. 4:30 p.m., Monday through Friday,
apply to minor stationary sources and Instructions. Direct your comments to excluding legal holidays. The telephone
minor modifications at major stationary Docket ID No. EPA–HQ–OAR–2003– number for the Public Reading Room is
sources in Indian country (minor NSR 0076. EPA’s policy is that all comments (202) 566–1744, and the telephone
rule). The second rule would apply to received will be included in the public number for the Air Docket is (202) 566–
all new major stationary sources and docket without change and may be 1742.
major modifications located in areas of made available online at http://
Indian country that are designated as www.regulations.gov, including any FOR FURTHER INFORMATION CONTACT: For
not attaining the National Ambient Air personal information provided, unless technical information, contact Raj Rao,
Quality Standards (NAAQS) the comment includes information Air Quality Policy Division, U.S. EPA,
(nonattainment major NSR rule). These claimed to be Confidential Business Office of Air Quality Planning and
rules would be implemented by EPA, or Information (CBI) or other information Standards (C504–03), Research Triangle
a delegate tribal agency assisting EPA whose disclosure is restricted by statute. Park, North Carolina 27711, telephone
with administration of the rules, until Do not submit information that you number (919) 541–5344, facsimile
replaced by an EPA-approved tribal consider to be CBI or otherwise number (919) 541–5509, electronic mail
implementation plan for an area of protected through http:// e-mail address: rao.raj@epa.gov. To
Indian country. www.regulations.gov or e-mail. The request a public hearing or information
DATES: Comments. Comments must be http://www.regulations.gov Web site is pertaining to a public hearing on this
received on or before November 20, an ‘‘anonymous access’’ system, which document, contact Ms. Pamela S. Long,
2006. Under the Paperwork Reduction means EPA will not know your identity Air Quality Policy Division, U.S. EPA,
Act, comments on the information or contact information unless you Office of Air Quality Planning and
collection provisions must be received provide it in the body of your comment. Standards (C504–03), Research Triangle
by OMB on or before September 20, If you send an e-mail comment directly Park, North Carolina 27711, telephone
2006. to EPA without going through http:// number (919) 541–0641, facsimile
Public Hearing. If anyone contacts us www.regulations.gov your e-mail number (919) 541–5509, electronic mail
requesting to speak at a public hearing address will be automatically captured e-mail address: long.pam@epa.gov.
by September 11, 2006, we will hold a and included as part of the comment SUPPLEMENTARY INFORMATION:
public hearing. Additional information that is placed in the public docket and
about the hearing would be published in made available on the Internet. If you I. General Information
a subsequent Federal Register notice. submit an electronic comment, EPA A. Does This Action Apply to Me?
ADDRESSES: Submit your comments, recommends that you include your
identified by Docket ID No. EPA–HQ– name and other contact information in Entities potentially affected by this
OAR–2003–0076, by one of the the body of your comment and with any proposed action include owners and
following methods: disk or CD–ROM you submit. If EPA operators of emission sources in all
• http://www.regulations.gov. Follow cannot read your comment due to industry groups located in Indian
the on-line instructions for submitting technical difficulties and cannot contact country, EPA, and tribal governments
comments. you for clarification, EPA may not be that are delegated administrative
• E-mail: a-and-r- able to consider your comment. authority to assist EPA with the
docket@epamail.epa.gov. Electronic files should avoid the use of implementation of these Federal
• Fax: 202–566–1741. special characters, any form of regulations. Categories and entities
• Mail: Attention Docket ID No. EPA– encryption, and be free of any defects or potentially affected by this action are
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HQ–OAR–2003–0076, U.S. viruses. For additional instructions on expected to include:

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48697

Category NAICS a Examples of regulated entities

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


5614 Lumber manufacturer support.
21211 Coal mining.
31332 Surface coating operation.
33712 Furniture manufacture.
56221 Medical waste incinerator.
115112 Repellent and fertilizer applications.
211111 Natural gas plant.
211111 Oil and gas production.
211112 Fractionation of natural gas liquids.
212234 Copper mining and processing.
212312 Stone quarrying and processing.
212313 Stone quarrying and processing.
212321 Sand and gravel production.
221112 Power plant-coal-fired.
221119 Power plant-biomass fueled.
221119 Power plant-landfill gas fired.
221210 Natural gas collection.
221210 Natural gas pipeline.
321113 Sawmill.
321911 Window and door molding manufacturer.
323110 Printing operations.
323113 Surface coating operations.
324121 Asphalt hot mix plants.
325188 Elemental phosphorus plant.
325188 Sulfuric acid plant.
331314 Secondary aluminum production and extrusion.
331492 Cobalt and tungsten recycling.
332431 Surface coating operations.
332812 Surface coating operations.
421320 Concrete batching plant.
422510 Grain elevator.
422710 Crude oil storage and distribution.
422710 Gasoline bulk plant.
486110 Crude oil storage and distribution.
486210 Natural gas compressor station.
562212 Solid waste landfill.
811121 Automobile refinishing shop.
812320 Dry cleaner.
Federal government ................................................................................................ 924110 Administration of Air and Water Resources and
Solid Waste Management Programs.
State/local/tribal government .................................................................................. 924110 Administration of Air and Water Resources and
Solid Waste Management Programs.
a North American Industry Classification System.

This table is not intended to be you mail to EPA, mark the outside of the • Identify the rulemaking by docket
exhaustive, but rather provides a guide disk or CD ROM as CBI and then number and other identifying
for readers regarding entities likely to be identify electronically within the disk or information (subject heading, Federal
regulated by this action. To determine CD ROM the specific information that is Register date and page number).
whether your facility is regulated by this claimed as CBI. In addition to one • Follow directions—The agency may
action, you should examine the complete version of the comment that ask you to respond to specific questions
applicability criteria in the proposed includes information claimed as CBI, a or organize comments by referencing a
minor and major NSR programs for copy of the comment that does not
Indian country, proposed 40 CFR 49.153 Code of Federal Regulations (CFR) part
contain the information claimed as CBI or section number.
and 49.168, respectively. If you have must be submitted for inclusion in the
any questions regarding the • Explain why you agree or disagree;
public docket. Information so marked
applicability of this action to a suggest alternatives and substitute
will not be disclosed except in
particular entity, contact the person language for your requested changes.
accordance with procedures set forth in
listed in the preceding FOR FURTHER • Describe any assumptions and
40 CFR part 2. Send or deliver
INFORMATION CONTACT section. provide any technical information and/
information identified as CBI only to the
B. What Should I Consider as I Prepare following address: Roberto Morales, or data that you used.
My Comments for EPA? OAQPS Document Control Officer • If you estimate potential costs or
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(C404–02), U.S. EPA, Research Triangle burdens, explain how you arrived at
1. Submitting CBI. Do not submit this
Park, NC 27711, Attention Docket ID your estimate in sufficient detail to
information to EPA through http://
No. EPA–HQ–OAR–2003–0076. allow for it to be reproduced.
www.regulations.gov or e-mail. Clearly
mark the part or all of the information 2. Tips for Preparing Your Comments. • Provide specific examples to
that you claim to be CBI. For CBI When submitting comments, remember illustrate your concerns, and suggest
information in a disk or CD ROM that to: alternatives.

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• Explain your views as clearly as only minor sources with a potential to 7. Why do we believe that an allowable-to-
possible, avoiding the use of profanity emit (PTE) equal to or higher than these allowable test is appropriate for minor
or personal threats. thresholds would be subject to this rule. sources?
8. Is your existing minor source subject to
• Make sure to submit your Additionally, this rule would allow this rule?
comments by the comment period otherwise major stationary sources in 9. How are ‘‘synthetic minor sources’’
deadline identified. Indian country to voluntarily accept subject to this rule?
emission limitations on their PTE to 10. How would section 112(g) case-by-case
C. Where Can I get a Copy of This
become ‘‘synthetic minor sources.’’ MACT determinations be addressed by
Document and Other Related this rule?
Such synthetic minor sources would
Information? 11. What are the proposed requirements for
include sources that emit hazardous air
In addition to being available in the pollutants (HAP). In such a case, they public participation in the permitting
docket, an electronic copy of this process?
would not be subject to major source 12. What are the monitoring,
proposal will also be available on the MACT regulations under 40 CFR part recordkeeping, and reporting
WWW. Following signature by the EPA 63. Any limitations on PTE must be requirements?
Administrator, a copy of this notice will enforceable as a practical matter (that is, 13. What are the criteria for general
be posted in the regulations and legally and practically enforceable). permits, what source categories generally
standards section of our NSR home page Under the nonattainment major NSR qualify for them, and what are the permit
located at http://www.epa.gov/nsr and rule, affected sources would be required application requirements for a general
on the tribal air home page at http:// to comply with the provisions of 40 CFR permit?
www.epa.gov/oar/tribal. part 51, appendix S, a transitional rule 14. What is the administrative and judicial
review process proposed for this
which generally applies to areas that do
D. How Can I Find Information About a program?
not have a State Implementation Plan B. Major NSR Program in Nonattainment
Possible Hearing?
(SIP). Sources subject to this rule would Areas of Indian Country
Persons interested in presenting oral be subject to requirements for Lowest 1. What are the requirements for major
testimony should contact Ms. Pamela Achievable Emission Rate (LAER) source permitting under appendix S?
Long, New Source Review Group, Air control technology, emissions offsets, 2. What are the options we are proposing
Quality Policy Division (C504–03), U.S. compliance certification, and net air to address the lack of available offsets in
EPA, Research Triangle Park, NC 27711, quality benefit analysis. Due to the Indian country?
telephone number (919) 541–0641 or e- 3. What are the proposed public
limited number of sources in Indian participation requirements for this
mail long.pam@epa.gov at least 2 days country, offsets are not generally program?
in advance of the public hearing. available. We have proposed options for 4. How do I meet the statewide compliance
Persons interested in attending the addressing the lack of availability of certification requirement of the Act?
public hearing should also contact Ms. offsets in Indian country. V. Legal Basis, Statutory Authority, and
Long to verify the time, date, and The information presented in this Jurisdictional Issues
location of the hearing. The public preamble is organized as follows: A. What is the basis for our authority to
hearing will provide interested parties implement these programs?
I. General Information B. How does a tribe receive delegation to
the opportunity to present data, views, A. Does This Action Apply to Me? assist EPA with administration of the
or arguments concerning these proposed B. What Should I Consider as I Prepare My Federal minor and major NSR rules?
rules. Comments for EPA? C. What happens to permits previously
C. Where Can I get a Copy of This issued by States to sources in Indian
E. Overview of Rule Document and Other Related country?
In this rulemaking, we 1 are proposing Information? VI. Statutory and Executive Order Reviews
to fill a regulatory gap that currently D. How Can I Find Information About a A. Executive Order 12866: Regulatory
Possible Hearing? Planning and Review
exists in Indian country. We are E. Overview of Rule.
proposing two new source review (NSR) B. Paperwork Reduction Act
II. Purpose C. Regulatory Flexibility Act (RFA)
rules under which the reviewing III. Background D. Unfunded Mandates Reform Act
authority will issue pre-construction A. The New Source Review (NSR) Program E. Executive Order 13132: Federalism
permits for certain stationary sources of 1. What are the general requirements of the F. Executive Order 13175: Consultation
air pollution in Indian country. These major NSR program? and Coordination With Indian Tribal
proposed rules would provide 2. What are the general requirements of the Governments
additional regulatory tools for us to use minor NSR program? G. Executive Order 13045: Protection of
B. Status of Air Quality Programs in Indian Children From Environmental Health &
in implementing the Act in Indian
Country Safety Risks
country. The minor NSR rule would C. Consultation With Tribal
apply to new and modified minor H. Executive Order 13211: Actions That
Representatives Significantly Affect Energy Supply,
sources and to minor modifications at IV. Proposed Rules for Indian Country Distribution, or Use
major stationary sources. Sources A. Minor NSR Program I. Executive Order 12898: Federal Actions
subject to this rule would apply control 1. What is a minor source and which minor To Address Environmental Justice in
technology, if any, as determined by the sources are subject to this rule? Minority Populations and Low-Income
reviewing authority on a case-by-case 2. What is a modification and what Populations
modifications are subject to this rule? J. National Technology Transfer
basis. In rare instances at the discretion
3. What are the minor NSR thresholds and Advancement Act
of the reviewing authority, such sources how did we develop them?
may also be required to submit an air VII. Statutory Authority
4. Are any emissions units and activities at
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quality analysis as part of their permit stationary sources exempt from this rule? II. Purpose
application. We are proposing to 5. What are the permit application, control
technology, and air quality analysis
The purpose of today’s rulemaking is
establish minor NSR thresholds so that
requirements, and what is the permit to ensure that air resources in Indian
1 In this proposal, the term ‘‘we’’ refers to the EPA issuance process? country will be protected in the manner
and the term ‘‘you’’ refers to stationary sources of 6. When are modifications subject to this intended by the Act as amended in 1990
air pollution and their owners and operators. rule? by establishing a permitting program for

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stationary sources in Indian country. source is subject to the major NSR matter less than 10 microns in
Currently in Indian country, there is no program is based on the source’s PTE. aerodynamic diameter (PM–10), the
permitting mechanism for new or The Act, as implemented by our rules, more polluted the air is where the
modified minor sources; minor sets applicability thresholds for major source is locating or expanding, the
modifications at major sources; or new sources in nonattainment areas. These greater is the required offset ratio. The
major stationary sources or major thresholds are 100 tons per year (tpy) of emissions reductions to be used as
modifications of regulated NSR any pollutant subject to regulation offsets must be surplus (not otherwise
pollutants in nonattainment areas. In under the Act, or smaller amounts, required by the Act), quantifiable,
addition, there is no minor source depending on the nonattainment federally enforceable, and permanent.
permitting mechanism for major classification. For attainment areas the See sections 173(a) and (c) of the Act
stationary sources looking to voluntarily thresholds are 100 or 250 tpy, and 40 CFR 51.165(a)(3).
limit emissions to become synthetic depending on the source type. A new Additionally, each major
minor sources 2 or for approving case- source with a PTE at or above the nonattainment NSR permit applicant
by-case maximum achievable control applicable threshold amount ‘‘triggers,’’ must also conduct an analysis of
technology (MACT) determinations. or is subject to, major NSR. ‘‘alternative sites, sizes, production
Today’s proposed rules will fill this For existing major sources, major NSR processes, and environmental control
regulatory gap and provide regulatory applies to a ‘‘major modification.’’ For a techniques demonstrating that the
certainty to allow for environmentally modification to be major, the following benefits of the proposed emissions
sound economic growth in Indian three criteria have to be met: source significantly outweigh the
country. By establishing this FIP for (1) A physical change in or change in environmental and social costs of its
Indian country, we will provide more the method of operation of a major location, construction, or modification.’’
consistency with the requirements and stationary source must occur; Moreover, each major nonattainment
programs of the States and thus create (2) The increase in emissions NSR permit applicant must demonstrate
a more level regulatory playing field for resulting from this change must be that all other major stationary sources
owners and operators within and significant (equal to or above the under her/his control in the same State
outside of Indian country. We are significance levels defined in 40 CFR are in compliance or on a schedule of
proposing these permit programs 52.21(b)(23)); and compliance with all emission
pursuant to section 110(a)(2)(C), part D (3) The increase in emissions
limitations and standards of the Act.
of title I, and section 301(d) of the Act. resulting from the change must be a
significant net emissions increase. In Under the PSD program for
III. Background other words, when the increase from the attainment areas, a major source or
project is added to other modification must apply Best Available
A. The New Source Review (NSR)
contemporaneous increases or decreases Control Technology (BACT), which may
Program
in actual emissions 3 at the source, the be based on pollution prevention
1. What are the general requirements of techniques. In addition, the source must
net emissions increase must be
the major NSR program? analyze the impact of the project on
significant (equal to or above the
The major NSR program contained in significance levels defined in 40 CFR ambient air quality to assure that no
parts C and D of title I of the Act is a 52.21(b)(23)). violation of the NAAQS or PSD
preconstruction review and permitting Major sources and major increments will result, and must
program applicable to new major modifications subject to nonattainment analyze impacts on soil, vegetation, and
stationary sources and major major NSR must apply state-of-the-art visibility. Sources or modifications that
modifications at such sources. In areas emissions control technologies, would impact Class I areas (e.g.,
not meeting health-based NAAQS and including any pollution prevention national parks) may be subject to
in ozone transport regions (OTR), the measures, to achieve the LAER. The additional requirements to protect air
program is implemented under the LAER is based on the most stringent quality related values (AQRVs) that
requirements of part D of title I of the emission limitation in the have been identified for such areas.
Act. We call this program the implementation plan of any State, or 2. What are the general requirements of
‘‘nonattainment’’ major NSR program. In achieved in practice, for the source the minor NSR program?
areas meeting the NAAQS (‘‘attainment’’ category under review.
areas) or for which there is insufficient Each major source subject to Section 110(a)(2)(C) of the Act
information to determine whether they nonattainment major NSR must also requires that every SIP include a
meet the NAAQS (‘‘unclassifiable’’ ‘‘offset’’ its emissions increase by program to regulate the construction
areas), the NSR requirements under part obtaining emissions reductions from and modification of stationary sources,
C of title I of the Act apply. We call this other sources in the area, or in an area including a permit program as required
program the Prevention of Significant of equal or higher nonattainment by parts C and D of title I of the Act,
Deterioration (PSD) program. classification that contributes to to ensure attainment and maintenance
Collectively, we also commonly refer to nonattainment in the subject source’s of NAAQS. Parts C and D address the
these programs as the major NSR area. The ratio of the offset relative to major NSR program for major stationary
program. These rules are contained in the proposed increase must be at least sources, and the permitting program for
40 CFR 51.165, 51.166, 52.21, 52.24, and one-to-one and is based on the severity minor stationary sources is addressed by
part 51, appendices S and W. of the area’s nonattainment section 110(a)(2)(C) of the Act. We
For newly constructed, ‘‘greenfield’’ classification. For ozone and particulate commonly refer to the latter program as
sources, the determination of whether a the ‘‘minor NSR’’ program. A minor
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3 In approximate terms, ‘‘contemporaneous’’ stationary source means a source whose


2 Sources located within the exterior boundaries emissions increases or decreases are those that have PTE is lower than the major source
of Indian reservations in Idaho, Oregon, and occurred between the date 5 years immediately applicability threshold for a particular
Washington can apply for a non-Title V operating preceding the proposed physical or operational
permit to establish synthetic minor status under the change and the date that the increase from the
pollutant as defined in the applicable
FIP established for those reservations. See 40 CFR change occurs. See, for example, 40 CFR nonattainment major NSR program or
49.139 and 40 CFR part 49, subpart M. 52.21(b)(3)(ii). PSD program.

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The Federal requirements for minor source status by reducing their PTE numerous national and regional forums
source programs are outlined 40 CFR below the applicable major source including the National Tribal Forums
51.160 through 51.164. States must thresholds. Such sources are commonly sponsored by the ITEP, two National
develop minor source programs to attain referred to as ‘‘synthetic minors.’’ The Tribal Air Association meetings, and at
and maintain NAAQS. The Federal practice of creating synthetic minor meetings with tribal consortia, such as
regulations for minor source programs sources to avoid major NSR and title V the National Tribal Environmental
are considerably less detailed than the is common under most State and local Council, United Southern and Eastern
requirements for major sources. As a minor NSR permitting programs. Tribes, Inter-Tribal Environmental
result, there is a wider variety of However, outside of Idaho, Oregon, and Council, Inter Tribal Council of Arizona,
programs and requirements for these Washington, no such minor source and others.
‘‘nonmajor’’ preconstruction activities. permitting mechanism is currently Although much of our effort focused
Section 110(a)(2)(C) of the Act available in Federal regulations for on outreach to the tribes, we also
provides us with a broad degree of Indian country.4 We therefore believe interacted with State and local air
discretion in developing a program to that inclusion of this provision in the pollution control agencies during
regulate new and modified minor proposed rules would significantly development of this rule. We had two
stationary source construction activities benefit large sources in Indian country meetings with the State and Territorial
in Indian country. by providing them with a means to Air Pollution Program Administrators
B. Status of Air Quality Programs in legally avoid more stringent major NSR and the Association of Local Air
Indian Country rules otherwise required by title I of the Pollution Control Officers (STAPPA/
Act. We are establishing this mechanism ALAPCO) to present the draft rules.
As we have discussed in previous for both stationary sources of regulated
rulemaking actions which affect Indian IV. Proposed Rules for Indian Country
NSR pollutants and HAPs.
country, in the absence of an EPA- A. Minor NSR Program
approved program, we are authorized to C. Consultation With Tribal
develop a FIP to protect air quality by Representatives Today’s action proposes provisions
directly implementing provisions of the for a minor NSR program in Indian
Prior to undertaking this rulemaking,
Act throughout Indian country. See, e.g., country. We propose to codify these
we sought to include tribes early in the
59 FR 43958–61 (August 25, 1994), 63 provisions at 40 CFR 49.151 through
rulemaking process. On June 24, 2002,
FR 7262–64 (February 12, 1998), and 62 49.165. Our primary goal in developing
we sent approximately 500 letters to
FR 13750 (March 21, 1997). Previously, this proposed rule is to ensure that air
tribal leaders seeking their
we had already promulgated rules resources in Indian country will be
recommendations for effective
establishing requirements for major protected in the manner intended by the
consultation and their involvement in
stationary sources in attainment areas Act. In addition, we seek to establish a
developing this rule.
and have issued PSD permits in Indian We received responses from 75 tribes. flexible preconstruction permitting
country (See 40 CFR 52.21). Of these 75 tribes, 69 designated an program for minor stationary sources in
Under the Act and the Tribal environmental staff member to work Indian country that is comparable to
Authority Rule (TAR) (See 40 CFR part with us on developing the rules. Aside that which applies outside of Indian
49, subpart A), eligible tribes may seek from the designated staff, many tribal country, in order to create a more level
approval of their own PSD programs for leaders asked that we keep them regulatory playing field for owners and
their reservations and/or for other areas informed of our progress through e-mail, operators within and outside of Indian
under their jurisdiction. Currently, no meetings with the EPA Regional Offices, country.
tribe is administering an EPA-approved It is important to note, however, that
newsletters, and Web sites. However, 53
PSD program. Therefore, we implement outside of Indian country there is a great
percent of the tribal leaders also
the PSD program in Indian country. deal of variation among State minor
requested direct phone calls or
Unlike for the PSD program, there is NSR permitting programs. As a result, it
conference calls to discuss the subject.
currently no FIP to implement either the would be impossible to create a single
Only 16 percent of the respondents
nonattainment major NSR program or program that creates precisely
requested face-to-face consultation. Of
the minor NSR program in Indian equivalent regulations among all areas
these, only six tribes requested senior
country. Hence, there is a regulatory gap of Indian country and the surrounding
EPA staff to meet with tribal leaders.
in Indian country. Today’s proposed As a result of this feedback, we State areas. Instead, we designed the
rule will allow us to fully implement developed a consultation plan that proposed rules to ensure that stationary
the NSR program in Indian country. We included three meetings held at the sources in Indian country would operate
are proposing the minor NSR program at reservations of the Menominee Tribe in with a reasonable level of air pollution
40 CFR 49.151 through 49.165 and the Wisconsin, the Mohegan Tribe in control, if necessary, and in such a
nonattainment major NSR program at 40 Connecticut, and the Chehalis Tribe in manner to ensure that air resources in
CFR 49.166 through 49.175. It is Washington. A fourth meeting was held Indian country would be protected.
important to recognize, however, that We are not attempting through this
in conjunction with the Institute of
even if we adopt a Federal program that proposed rulemaking to establish a new
Tribal Environmental Professionals’
applies in Indian country, the tribes set of minimum criteria that an eligible
(ITEP) 10th anniversary meeting in
may still develop Tribal Implementation tribe, or a State, would need to follow
Flagstaff, Arizona. In addition to
Plans (TIPs), similar to SIPs, to in developing its own minor source
conducting these meetings, we also
implement these programs. If a tribe permitting program. Rather, this
visited tribal environmental staff in
develops a TIP to implement NSR, the proposal simply represents how we
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Indian country. Over 30 tribes attended


TIP, once it is approved, will replace the would implement the program in Indian
these meetings. As part of our outreach
Federal program as the requirement for country in the absence of an EPA-
efforts to the tribes, we participated in
that area of Indian country and the tribe approved implementation plan.
will become the reviewing authority. 4 See footnote 2 for more information on the FIP However, if a tribe is developing its own
Sources that obtain enforceable that is in place in within the exterior boundaries of program, this can serve as one example
emission limitations can avoid major Indian reservations in these three States. of a program that meets the objectives

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and requirements of the Act. We are are different for PSD and nonattainment CFR 49.167 and in 40 CFR 52.21) at
proposing a minor source permitting major NSR. major sources. How such modifications
program that addresses, on a national would be addressed under the proposed
2. What is a modification and what
level, many environmental and rule is explained in section IV.A.6 of
modifications are subject to this rule?
regulatory issues that are specific to this preamble. Section IV.A.6 also
Indian country. We understand that For the purposes of this rule, a includes detailed flowcharts to aid you
States and eligible tribes may face modification is defined at proposed 40 in determining if a proposed
different issues, and may therefore CFR 49.152(d) as (any physical or modification would be subject to the
choose to develop different programs for operational change at a stationary proposed rule.
their own State or Tribal source that would cause an increase in
the allowable emissions of the affected 3. What are the minor NSR thresholds
Implementation Plans. and how did we develop them?
emissions units for any regulated NSR
1. What is a minor source and which pollutant or that would cause the A review of several State minor NSR
minor sources are subject to this rule? emission of any regulated NSR pollutant programs indicated that a number of
A minor source means a source whose not previously emitted.( The following State programs have established cutoff
PTE is lower than an applicable major exemptions would apply: levels or minor NSR thresholds, below
source threshold. For the NSR program • A physical or operational change which sources are exempt from their
in Indian country, the major source does not include routine maintenance, minor NSR rules. We believe that such
thresholds are defined in the PSD repair, or replacement. an approach is also appropriate in
• An increase in the hours of Indian country. Section 110(a) (2)(C) of
program (See 40 CFR 52.21) and in
operation or in the production rate is the Act requires minor NSR programs to
today’s proposed nonattainment major
not considered an operational change assure that the NAAQS are attained and
NSR program (see proposed 40 CFR
unless such increase is prohibited under maintained. Applicability thresholds are
49.167), as applicable, and differ for
any federally-enforceable permit proper in this context provided that the
attainment areas and nonattainment condition or other permit condition that
areas for the same pollutant. For sources and modifications with
is enforceable as a practical matter. emissions below the thresholds are
example, in attainment areas the major • A change in ownership at a
source threshold for Nitrogen Oxides inconsequential to attainment and
stationary source is not considered a maintenance of the NAAQS. As
(NOX) for a source is 250 tpy, unless the modification. discussed further, the minor NSR
source belongs to a source category that Note that this definition differs from thresholds that we are proposing today
is listed in the major NSR rules (See 40 the term ‘‘modification’’ as used in the meet this criterion. In addition, these
CFR 52.21(b)(1)(i)(a)), in which case the major NSR program, primarily in that it thresholds will result in a more cost-
major source threshold is 100 tpy. In is based on an increase in allowable effective program and reduce the burden
contrast, the major source threshold for emissions rather than actual emissions. on sources and reviewing authorities.
NOX in ozone nonattainment areas can Parts C and D of title I of the Act ‘‘the In today’s rulemaking, we are
vary from 10tpy in an extreme ozone statutory basis for the major NSR proposing to adopt minor NSR
nonattainment area to 100 tpy in a program‘ refer to section 111(a)(4) of the thresholds as emission rates in tpy. In
marginal ozone nonattainment area. A Act [the definition of ‘‘modification’’ for setting the minor NSR thresholds for
source can be a major source for some purposes of the new source performance minor sources of regulated NSR
pollutants and a minor source for standards (NSPS) program] to define pollutants, we decided to use emission
others. ‘‘modification’’ for purposes of the rates, rather than air quality impacts, as
Today, we are proposing to establish major NSR program. In a recent the basis for the exemption. We chose
a minor NSR threshold as provided in decision, the D.C. Circuit Court of this approach because we were
section IV.A.3 of this preamble. The Appeals ruled that, based on the concerned that applicability
proposed rule would apply to only wording of the definition of determinations based on projected air
those minor sources whose PTE is equal ‘‘modification’’ in section 111(a)(4) of quality impacts would be excessively
to or greater than the minor NSR the Act, the applicability of major NSR complex and resource intensive. In
threshold for the regulated NSR to modifications must be based on addition, it is consistent with the
pollutant. Such sources would include changes in actual emissions (State of approach used in major NSR.
(1) New minor sources, (2) modified New York, et al., v. U.S. EPA, June 24, We are proposing minor NSR
minor sources, and (3) synthetic minor 2005). However, because the statutory thresholds that we have developed
sources including HAP sources. A basis for the minor NSR program is based on a review of several State minor
source’s PTE for a pollutant is expressed section 110(a)(2)(C) of the Act, which NSR programs. We found that there is
in tpy and generally is calculated by does not define or refer to a definition variation in State approaches to minor
multiplying the maximum hourly of ‘‘modification,’’ we believe that we NSR applicability. Some States do not
emissions rate in pounds per hour (lbs/ have discretion in defining the term as prescribe source applicability
hr) times 8,760 (which is the number of we think it best for the minor NSR thresholds, instead providing a list of
hours in a year) and dividing by 2,000 program in Indian country that we are emission units and activities that are
(which is the number of pounds in a proposing today. We do not believe that excluded from minor NSR. Many of the
ton), unless the source is restricted by the recent decision of the D.C. Circuit States that do have applicability
permit conditions that are enforceable Court of Appeals applies to minor NSR thresholds also provide a list of
as a practical matter. programs. We seek comment on whether excluded emission units and activities.
Section IV.A.6 of this preamble our proposed definition of modification In today’s rulemaking, we propose
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includes detailed flowcharts to aid you is appropriate for minor NSR for minor threshold levels that we believe are
in determining if a proposed new source sources. neither the most stringent nor the least
would be subject to the proposed rule. This rule would apply to certain stringent of the levels found in existing
The flowcharts differentiate between modifications at minor sources and to State minor NSR rules. These threshold
attainment areas and nonattainment minor modifications (not major levels represent a reasonable balance
areas because the applicability criteria modifications as defined in proposed 40 between environmental protection and

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48702 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

economic growth, since we did not want protection at the cost of discouraging programs, and we believe that these
them to be so high that they were not economic growth. We consider the limits will be appropriate for use in
environmentally protective or so low proposed thresholds to be representative Indian country. The proposed
that they ensured environmental of such thresholds in State minor NSR thresholds are listed in Table 1.

TABLE 1.—MINOR NSR THRESHOLDS


Minor NSR thresholds for non-
attainment areas Minor NSR thresh-
(tpy) olds for attainment
Regulated NSR pollutant areas
Extreme (tpy)
Other areas
ozone areas

Carbon monoxide (CO) ..................................................................................................... 5 5 10


Oxides of nitrogen (NOX) .................................................................................................. 0 5 10
Sulfur dioxide (SO2) ........................................................................................................... 5 5 10
Volatile Organic Compounds (VOC) ................................................................................. 0 2 5
PM ...................................................................................................................................... 5 5 10
PM–10 ................................................................................................................................ 1 1 5
PM–2.5 ............................................................................................................................... 0.6 0.6 3
Lead ................................................................................................................................... 0.1 0.1 0.1
Fluorides ............................................................................................................................ NA NA 1
Sulfuric acid mist ............................................................................................................... NA NA 2
Hydrogen sulfide (H2S) ...................................................................................................... NA NA 2
Total reduced sulfur (including H2S) ................................................................................. NA NA 2
Reduced sulfur compounds (including H2S) ..................................................................... NA NA 2
Municipal waste combustor emissions .............................................................................. NA NA 2
Municipal solid waste landfills emissions (measured as Non Methane Organic Com-
pounds) .......................................................................................................................... NA NA 10

The selected minor NSR thresholds designation of the area where the source these sources fall below the proposed
distinguish between minor stationary would be located. If a source straddles minor NSR thresholds, how many are
sources of regulated NSR pollutants the two areas, the more stringent between the minor NSR and major NSR
located in nonattainment versus thresholds would apply. thresholds, and how many are above the
attainment areas and by pollutant. We To evaluate how the proposed minor major NSR threshold.5 If we assume that
believe this distinction is important NSR thresholds might affect new the distribution of new sources will
because of the different air quality goals sources locating in Indian country, we mirror the existing source distribution,
in nonattainment and attainment areas. looked at the size distribution of this analysis approximates the fraction
In some cases, a tribe’s area of Indian existing sources across the country.
of new sources that will be exempt from
country may be divided between a Using the National Emission Inventory
minor NSR, subject to minor NSR, and
nonattainment area and an attainment (NEI), which includes the most
area. In this situation, the applicable comprehensive inventory of existing subject to major NSR, respectively. The
threshold for a proposed source or U.S. stationary point sources that is results of this analysis by pollutant are
modification would correspond to the available, we determined how many of summarized in Table 2.

TABLE 2.—DISTRIBUTION OF SOURCES AND EMISSIONS UNDER PROPOSED MINOR NSR THRESHOLDS
Total facilities Unregulated minor Minor sources Major sources
sources
Pollutant No. TPY % of total % of TPY % of total % of TPY
(×10 3) (×10 6) % of total % of TPY

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


SO2 ................................................................... 21.2 13.90 76 0.1 16 1 8 99
PM10 ................................................................. 33.9 1.69 65 1.3 32 22 4 76
PM2.5 ................................................................ 33.8 1.33 59 0.8 38 23 3 76
Ozone—VOC ................................................... 43.3 1.60 42 1.1 53 41 5 58
Ozone—NOX .................................................... 30.5 7.93 53 0.4 36 6 11 93
Nitrogen dioxide (NO2) ..................................... 30.5 7.93 59 0.6 32 7 9 92

As shown in Table 2, we performed and NOX emissions as the precursors of emission inventory for that pollutant
the analysis for each of the criteria ozone.6 For each pollutant, the table and the total, nationwide annual
pollutants except lead, including VOC gives the total number of facilities in the emissions of the pollutant. The column
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5 For this analysis, we used the final 1999 NEI, 6 For the analysis, we used the major NSR and sources in attainment areas, regardless of source
extrapolated to 2001. More on the 1999 NEI can be proposed minor NSR thresholds for each pollutant category or major source status for other pollutants.
found at http://www.epa.gov/ttn/chief/net/ based on the attainment status and classification of For the details of the analysis,see ‘‘Analysis of the
1999inventory.html. the county in which each source is located. We Proposed Minor NSR Thresholds’’ dated October
made certain simplifying assumptions, including
24, 2005 in the docket for this rulemaking.
using the 250 tpy major source threshold for all

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48703

labeled ‘‘unregulated minor sources’’ • Ventilating units for comfort that do emissions units that do not have an
represents the percentage of total not exhaust air pollutants into the established allowable emissions level
sources that fall below the minor NSR ambient air from any manufacturing or prior to the modification, you must
threshold, along with the percentage of other industrial process; report the PTE. The allowable emissions
total annual emissions that those • Heating units for comfort that do for any emissions unit are calculated
sources emit. The ‘‘minor sources’’ not provide heat for any manufacturing considering any emission limitations
column gives the same information for or other industrial process; that are enforceable as a practical matter
sources that fall between the minor NSR • Noncommercial food preparation; on the unit’s PTE. In calculating these
threshold and the major NSR threshold, • Consumer use of office equipment emission levels for applicability
while the ‘‘major sources’’ column and products; purposes, we seek comment on whether
addresses sources that exceed the major • Janitorial services and consumer you should include fugitive emissions,
NSR threshold. use of janitorial products; to the extent that they are quantifiable,
We believe that Table 2 provides • Internal combustion engines used for all sources, or include them only for
excellent evidence that sources with for landscaping purposes; source categories listed pursuant to
emissions below the proposed minor • Bench scale laboratory activities, section 302(j) of the Act or exclude them
NSR thresholds will be inconsequential except for laboratory fume hoods and for all sources.
to attainment and maintenance of the vents; and You may include in your application
NAAQS. For each pollutant, only • Any emissions unit or activity that proposed emission limitations for the
around 1 percent (or less) of total does not have the potential to emit a listed emissions units. If you do, you
emissions would be exempt from review regulated NSR pollutant or HAP, so long must account for these limitations in
under the minor NSR program. At the as that emissions unit or activity is not your calculations of post-construction
same time, the proposed thresholds will part of a process unit that emits or has PTE and/or allowable emissions. The
promote a cost-effective program. the potential to emit a regulated NSR application also must identify and
According to Table 2, anywhere from 42 pollutant or HAP. describe any existing air pollution
percent to 76 percent of sources 5. What are the permit application, control equipment and compliance
(depending on the pollutant) would be control technology, and air quality monitoring devices or activities relevant
too small to be subject to analysis requirements, and what is the to the affected emissions units, as well
preconstruction review. permit issuance process? as any existing emission limitations or
We believe that the proposed minor work practice requirements to which
NSR thresholds provide a reasonable Permit Application Requirements. any affected emissions units are subject.
approach to determining the Under today’s proposed minor NSR See proposed 40 CFR 49.154(a) for the
applicability of the minor NSR program. program, as the owner or operator of a complete requirements for your
These thresholds would prevent proposed new minor source or a application for a minor NSR permit.
stationary sources that make negligible proposed modification that is subject to You may request that the reviewing
contributions to pollution from being this rule, you must submit a complete authority establish an annual minor
regulated under this rule. However, this application to your reviewing authority source plantwide applicability
would not affect the applicability of requesting a minor NSR permit specific limitation (minor source PAL) for one or
other requirements, such as those found to your source (unless you wish to seek more of the regulated NSR pollutants
in an NSPS or a MACT standard. At the a ‘‘general permit,’’ if eligible). In emitted by your new or existing minor
same time, the limits would ensure that addition to basic information stationary source. A minor source PAL
intermediate-sized sources would be identifying and describing your source, is a source-wide limitation on allowable
subject to reasonable control technology your application must include a list of emissions of a regulated NSR pollutant,
requirements. We seek comment on our all affected emissions units. ‘‘Affected expressed in tpy, that is established
approach to selecting the proposed emissions units’’ are defined as all the under the proposed 40 CFR 49.155 and
minor NSR thresholds, on alternative emissions units at your proposed new that is enforceable as a practical matter
approaches to selecting such thresholds, minor source or all the new, modified, (See proposed 40 CFR 49.152(d)).
and on alternative applicability and replacement emissions units that For a new minor stationary source,
provisions (such as source category comprise your proposed modification you may request minor source PALs for
exemptions). (excluding the exempt emissions units some or all of the regulated NSR
and activities listed in proposed 40 CFR pollutants emitted by your source. For
4. Are any emissions units and activities 49.153(c)). See proposed 40 CFR the other regulated NSR pollutants that
at stationary sources exempt from this 49.152(d). your source emits (i.e., the non-PAL
rule? Your application also must document pollutants), your permit will contain
Certain emissions units and activities the increase in emissions of regulated annual allowable emissions limits for
at stationary sources either do not emit NSR pollutants that will result from each emissions unit.
regulated NSR pollutants to the ambient your new source or modification so that You may request a minor source PAL
air or emit these pollutants in negligible the reviewing authority can verify that for one or more regulated PAL
amounts. We propose that such you are subject to this proposed minor pollutants at the time that you are
activities located at a minor source be NSR program, rather than to major NSR. modifying an existing minor stationary
exempt from the requirements of this For each new emissions unit that you source. Each PAL will apply across all
rule (See proposed 40 CFR 49.153(c)). list, you must provide the PTE in tpy for the emissions units at your source,
We propose that such activities are each regulated NSR pollutant, along whether or not they are affected by the
limited to the following: with supporting documentation. For any modification. For the non-PAL
sroberts on PROD1PC70 with PROPOSALS

• Air-conditioning units for comfort modified or replacement unit that you pollutants, only the emissions units that
that are not subject to applicable list, you must provide the allowable are affected by the modification will
requirements under title VI of the Act emissions of each regulated NSR receive annual allowable emissions
and do not exhaust air pollutants into pollutant in tpy both before and after limits. If you request one or more minor
the ambient air from any manufacturing the modification or replacement, along source PALs for an existing minor
or industrial process; with supporting documentation. For stationary source at a time when no

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modification is planned, each PAL will technology that is the BACT level of control technology requirement at all.
apply across all the emissions units at control (which is the level required for Section 110(a)(2)(C) of the Act requires
your source, but your permit will new major sources and major a minor NSR program that assures that
include no new emission limits for the modifications in attainment areas), the NAAQS are achieved, but does not
non-PAL pollutants. depending on the air quality needs of mandate that the program include a
If your source is in a source category the area, other applicable regulatory control technology requirement. We are
covered by a ‘‘general permit’’ issued programs of the Act, and technical and seeking comment on whether a control
under proposed 40 CFR 49.156, you economic feasibility. technology requirement is necessary to
may apply for the general permit for that Based on the results of the control achieve the purposes of the Act, or
source category. A general permit is a technology review, the emission whether other approaches can achieve
permit developed by your reviewing limitations required by the reviewing these purposes just as well with less
authority for a general category of authority may consist of emission cost or administrative burden.
emissions units or stationary sources limits, pollution prevention techniques, Air Quality Impacts Analysis.
that are similar in nature, have design standards, equipment standards, Typically, for a new or modified minor
substantially similar emissions, and work practice standards, operational source permit application, your
would be subject to the same or standards, or any combination thereof. If reviewing authority would not require
substantially similar requirements it is technically and economically an Air Quality Impacts Analysis (AQIA).
governing operations, emissions, feasible, the reviewing authority must In rare instances, if your reviewing
monitoring, reporting, and require an emission limit (i.e., a limit on authority has reason to be concerned
recordkeeping. The permit application the quantity, rate, or concentration of that the construction of your minor
requirements for a particular general emissions) for each affected emissions source or modification could cause or
permit will be specified in that general unit at your source. contribute to a NAAQS or PSD
permit. General permits are discussed For a new minor source that is subject
increment violation, to ensure
further in section IV.A.13 of this to this rule, the case-by-case control
protection of the NAAQS, we are
preamble. technology review would be conducted
proposing that your reviewing authority
Control Technology Review. As for all emissions units [except the
may require you to conduct an AQIA
required under section 110(a)(2)(C) of exempt emissions units and activities
using dispersion modeling in
the Act, the minor NSR permitting discussed in section IV.A.4 and listed in
accordance with 40 CFR part 51,
program that we are proposing today is proposed 40 CFR 49.153(c)] that emit or
appendix W to determine the impacts
primarily designed to assure that the have the potential to emit the pollutant
that will result from your new source or
NAAQS are achieved, and to prohibit for which the source is subject to this
modification. If the AQIA demonstrated
any stationary source from emitting any rule. However, for modifications, such
air pollutant in amounts that would control technology review would apply that the construction of your source or
contribute to nonattainment or interfere only to the affected emissions unit(s). modification would cause or contribute
with maintenance of the NAAQS. At the In establishing a case-by-case control to a NAAQS or PSD increment
same time, we wish to provide technology review process to determine violation, you would be required to
flexibility in control technology an appropriate level of control for minor further reduce its impact before you
requirements for minor sources located sources and subject modifications in could obtain a permit.
in Indian country to promote economic Indian country, we considered a number Permit Issuance Process. Within 45
growth and development. of factors. On the one hand, we believe days after receiving your permit
Therefore, in today’s proposal, we are that the control technology review application, your reviewing authority
proposing that your reviewing authority process should be as flexible as possible must either determine that the permit
perform a control technology review on to provide for the specific needs and application is complete enough to
a case-by-case basis when issuing the conditions of each area of Indian commence a technical review or request
permit (other than a general permit). By country, consistent with the additional information. If you do not
‘‘control technology,’’ we mean requirements of the Act. On the other receive a request for additional
pollution prevention techniques, add-on hand, we believe that a reasonable level information or a notice of complete
pollution control equipment, design and of air pollution control for new minor application within 50 days of your
equipment specifications, work sources and subject modifications in permitting authority’s receipt of your
practices, and operational restrictions. Indian country is generally warranted to application, your application would be
This review would consider local air ensure protection of air resources in deemed complete. (You should contact
quality needs, typical control Indian country. In addition, we wish to your reviewing authority to find out the
technology used by similar sources in ensure that Indian country not be seen date that it received your application so
surrounding areas, anticipated as a potential ‘‘pollution haven’’ where that you will know when this 50-day
economic growth in the area, and cost- minor stationary sources can go to period is up.) Once the application is
effective control alternatives. At a escape air pollution control complete, your reviewing authority
minimum, the reviewing authority must requirements. At the same time, we do develops a draft permit and provides a
require control technology that assures not want to put tribes or owners and public notice seeking comments on the
that the NAAQS are achieved and that operators locating in Indian country at draft permit for a 30-day period. After
each affected emissions unit will a competitive disadvantage by requiring considering all timely, relevant
comply with all requirements of 40 CFR substantially more stringent controls in comments, if your reviewing authority
parts 60, 61, and 63 that apply. The Indian country than are required in the determines that your application meets
required control technology resulting surrounding areas. all applicable requirements, it would
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from such a review may range from We are seeking comment on the issue you a final permit. Otherwise, the
technology that is less stringent than the proposed case-by-case control reviewing authority would send you a
reasonably available control technology technology review for all new and letter denying your permit application
(RACT) level of control (which is modified sources subject to this minor with reasons for the denial. We seek
typically required for existing major NSR program. We also request comment comment on the proposed permit
sources in nonattainment areas), to on whether the program should have a issuance process.

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We are proposing that your reviewing well as the major and minor NSR change or replacement minus the
authority would issue you a permit with applicability thresholds. For a given allowable emissions prior to the change
an allowable emissions limit in tpy for modification, a particular pollutant may or replacement. This may be a negative
each affected emissions unit (Option A). be subject to review under PSD, value for an emissions unit if its
You have the alternative of requesting a nonattainment major NSR, or minor allowable emissions would be reduced
minor source PAL or cap in tpy (Option NSR, or may not be subject to any of as a result of the change or replacement.
B), and your reviewing authority may these programs. • For each unpermitted emissions
issue such a permit. This type of permit The first step in determining whether unit that is to be changed or replaced,
can provide the flexibility to make your proposed physical or operational the emissions increase would be the
frequent changes at your source without change is subject to the minor NSR allowable emissions of the unit after the
permit review. If you wish, you may program proposed today is to determine change or replacement minus the PTE
request a minor source PAL for some whether the change is subject to the prior to the change or replacement. It is
pollutants and allowable emissions applicable major NSR program (i.e., necessary to use PTE since these
limits for each emissions unit for other proposed 40 CFR 49.167 or 40 CFR emissions units will not have a
pollutants. 52.21 for nonattainment and attainment allowable emissions limit prior to the
Permit Term. A preconstruction areas, respectively). If you are changing change. This may be a negative value for
permit does not expire. Your permit an existing major source, you would an emissions unit if its post-change
remains valid as long as you commence determine whether the change qualifies allowable emissions would be less than
construction of your new source or as a major modification using the its pre-change PTE.
modification within 18 months after the procedures in the applicable major NSR This process of summing the
effective date of the permit, you do not program. If you are changing an existing emissions increases and decreases
discontinue construction for a period of minor source, you would determine across all the affected emissions units is
18 months or more, and you complete whether the change would qualify as a called ‘‘project netting,’’ which is
construction in a reasonable time. Your major stationary source by itself under discussed later in this section of the
reviewing authority may extend the 18- the applicable major NSR program. If preamble.
month period where justified. The 18- your proposed physical or operational If your proposed physical or
month limit does not apply to the time change is subject to review under major operational change qualifies as a
period between construction of NSR for a regulated NSR pollutant, it is modification (i.e., causes an increase in
approved phases of a phased not subject to the minor NSR program allowable emissions), the final step in
construction program; you must for that pollutant. determining whether the proposed
commence construction of each such If your proposed physical or modification is subject to today’s
phase within 18 months of the approved operational change is not subject to proposed minor NSR program is to
commencement date for that phase. major NSR, the next step is to determine compare the increase in allowable
whether the change qualifies as a emissions to the applicability criteria for
6. When are modifications subject to modification under the minor NSR the type of source and emission limits
this rule? program. To be a modification, the that you have. Your modification would
As discussed in section IV.A.2 of this change must result in an increase in be subject to the minor NSR program in
preamble, for the purposes of the minor allowable emissions at your source. the following circumstances:
NSR program proposed today, a Thus, the next step is to calculate • If your minor source has a permit
modification means any physical or whether, and by how much, allowable with a minor source PAL in tpy (Option
operational change at a stationary emissions would increase as a result of B in section IV.A.5 of this preamble)
source that would cause an increase in the change. If your minor stationary and the modification would result in
the allowable emissions of the affected source is subject to a minor source PAL any increase in the PAL level. To
emissions units for any regulated NSR for a regulated NSR pollutant (Option B determine if an increase in the PAL
pollutant or that would cause the in section IV.A.5 of this preamble), the level is necessary, you must evaluate
emission of any regulated NSR pollutant emissions increase for that pollutant whether your source’s actual emissions
not previously emitted (with the would be the PAL level after the after the modification would exceed the
exclusions outlined in section IV.A.2 of physical or operational change minus PAL level by any amount. If you could
this preamble). The proposed rule the PAL level prior to the change. For construct and operate the modification
would apply to certain modifications at physical or operational changes at other without your actual emissions
your minor sources and minor minor stationary sources (i.e., those exceeding your minor source PAL, then
modifications at your major sources. For with annual allowable emissions limits no permit action would be required.
such modifications, you would have to for each emissions unit (Option A), • For other minor sources, if the
meet the application requirements and those that are unpermitted, and those modification would increase total
comply with any control technology with a combination of unpermitted allowable emissions from the affected
requirements as discussed in section emissions units and emissions units emissions units by an amount that
IV.A.5 of this preamble. In rare with annual allowable emissions limits) equals or exceeds any of the minor NSR
instances, if your reviewing authority and at major stationary sources, the total thresholds listed in Table 1 of this
has reason to believe that your increase in allowable emissions preamble.
modification could result in a violation resulting from your proposed change • If the minor modification at your
of the NAAQS or PSD increment, you would be the sum of the following: major source would increase total
would be required to conduct an AQIA. • For each new emissions unit that is allowable emissions from the affected
In all NSR applicability to be added, the emissions increase emissions units by an amount that
sroberts on PROD1PC70 with PROPOSALS

determinations, you must evaluate each would be the PTE of the unit. equals or exceeds any of the minor NSR
regulated NSR pollutant individually. • For each emissions unit with an thresholds listed in Table 1 of this
The area where your source is located allowable emissions limit that is to be preamble.
may be attainment for some pollutants changed or replaced, the emissions • In addition, if the modification
and nonattainment for others, which increase would be the allowable would increase allowable emissions
affects which pollutants are regulated as emissions of the emissions unit after the from any emissions unit above an

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established unit-specific allowable If the post-change emissions at any will be in the position to evaluate
emission permit limit, even if the total emissions unit would exceed a whether the change has the potential to
increase for your source would be less permitted allowable emissions limit for increase ambient concentrations outside
than the corresponding minor NSR that unit, you must apply to revise the the boundaries of your source. If so, the
threshold listed in Table 1 of this existing permit limit before you may reviewing authority can require
preamble. In this case, the needed implement the change. The needed measures to mitigate any unacceptable
increase in the unit-specific allowable increase in the unit-specific allowable air quality impacts (i.e., to protect the
emissions permit limit can be emissions permit limit can be NAAQS and PSD increments) as part of
accomplished through an administrative accomplished through an administrative the permit revision process.
permit revision (See proposed 40 CFR permit revision (See proposed 40 CFR
49.159(f)). 49.159(f)). Flowcharts to aid in determining
In addition, a physical or operational Similarly, other proposed physical or major and minor NSR applicability are
change may be subject to today’s operational changes that could not be presented in Figures 1 through 6. These
proposed minor NSR program even if it implemented within the requirements of flowcharts illustrate the applicability
is not classified as a modification (i.e., an existing permit would necessitate a process for new sources and
it does not increase allowable emissions permit revision, even if they are not modifications in attainment areas and
of a regulated NSR pollutant or result in otherwise subject to major or minor nonattainment areas. The flowcharts
emission of a pollutant not previously NSR. We believe that this fact will serve should be used to evaluate each
emitted). For example, a proposed to ensure that the types of changes that regulated NSR pollutant individually
change might increase allowable could significantly alter the dispersion since different flow charts may apply to
emissions from some emissions units characteristics of the air pollutants different pollutants depending on the
and decrease emissions at others so that, emitted by your source will be brought attainment status of the area for each
overall, emissions from the affected to the attention of your reviewing pollutant.
units would stay the same or decrease. authority. Thus, the reviewing authority BILLING CODE 6560–50–P
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7. Why do we believe that an allowable- capabilities of major sources, we believe a ‘‘major modification’’ that is subject to
to-allowable test is appropriate for that a simpler system is more review under major NSR.
minor sources? appropriate for the minor sources in We considered including
Indian country, many of which are contemporaneous netting in today’s
As discussed earlier, we are proposing
unaccustomed to any type of regulation. minor NSR program, but have elected
an ‘‘allowable-to-allowable’’
We are proposing an allowable-to- not to propose it as our preferred
applicability test as the primary test for
allowable test for modifications in the approach. Contemporaneous netting has
modifications under this minor NSR
Indian country minor NSR program. We proved to be a complicated aspect of the
program. We evaluated the three basic
believe that this relatively simple and major NSR program. While major
types of applicability tests (actual-to-
straightforward system is most sources are accustomed to
potential, actual-to-projected-actual, and
appropriate for the minor sources found contemporaneous netting and have built
allowable-to-allowable) and determined
in Indian country. In addition, we the capacity to track emissions changes
that the allowable-to-allowable test is
believe that it is beneficial to use and carry out this procedure, many
most suitable for minor NSR in Indian minor sources that would be covered by
country. allowable emissions as the currency for
attainment planning, in that they today’s proposed minor NSR program
We rejected the actual-to-potential
represent the worst-case post-change lack such capacity. We believe that a
test for many of the same reasons that
emissions. This approach is consistent simpler system is more appropriate for
we have moved away from this test in
with section 173(a)(1)(A) of the Act, the minor sources in Indian country.
the major NSR program. In this type of Nevertheless, we believe that minor
system, the emissions increase that which requires new and modified major
sources to obtain offsets based on sources should be able to receive credit
results from a change is determined by for the emission decreases that would
comparing the emissions unit’s PTE allowable emissions. (While we are not
requiring offsets for minor sources in result from a proposed modification.
after the change to its actual emissions Hence, we are proposing to allow
prior to the change. If pre-change actual Indian country nonattainment areas, we
believe that the language in section project netting in today’s minor NSR
emissions are well below the unit’s PTE, program.
as is generally the case, any change will 173(a)(1)(A) provides validation for our
We believe that project netting
result in a large emissions increase proposed minor NSR modification test.)
calculations are relatively
when calculated in this manner. To Finally, we understand that many State
straightforward and are within the
avoid triggering NSR, a source must minor NSR programs use an allowable-
capacity of most minor sources. For
accept a limit on the unit’s post-change to-allowable test.
example, an existing minor source
PTE at a level that exceeds pre-change As discussed in section IV.A.2 of this might wish to expand by adding a
actual emissions by less than the preamble, we believe that we have the second production line to go with an
applicable NSR threshold. discretion to use an allowable-to- existing, uncontrolled line. If the
As discussed in our December 2002 allowable test for this minor NSR proposed project includes adding an air
NSR Improvement rulemaking, there are program because the statutory basis for pollution control device to control
numerous objections to the actual-to- minor NSR is section 110(a)(2)(C) of the emissions from both lines, it would
potential test (67 FR 80194). Industry Act, rather than section 111(a)(4). We result in an allowable emissions
has long believed that the need to take seek comment on using the proposed increase attributable to the new line, as
a PTE limit to avoid NSR has the effect allowable-to-allowable test for well as an allowable emissions decrease
of unfairly confiscating the emissions addressing modifications and on the from the existing, previously
unit’s unused operating capacity even alternative of using the actual-to- uncontrolled line. Determining the
though, in many cases, the changed unit projected-actual test. overall net emission change that would
as a practical matter will function As laid out in the second step for result from the proposed modification
essentially as it did before the change determining if a proposed modification would be a straightforward exercise.
and emissions to the environment will is subject to minor NSR, we are However, to validate the project net
not increase. In addition, the actual-to- proposing to allow ‘‘project netting.’’ emissions increase, as in the major NSR
potential test discourages sources from This means that both increases and program, the source must take limits on
making the types of changes that decreases in allowable emissions are allowable emissions for both lines that
improve operating efficiency, summed when determining the total are enforceable as a practical matter.
implement pollution prevention emission increase that would result We believe that in proposing to allow
projects, and result in other from a proposed modification. project netting, but not
environmentally beneficial effects. The major NSR program uses a two- contemporaneous netting, we have
In the December 2002 NSR step procedure for determining struck an appropriate balance for the
Improvement rulemaking for major applicability. First, the emission minor NSR program in Indian country.
NSR, we promulgated an alternative increases from the proposed project are We believe that the resulting program
‘‘actual-to-projected-actual’’ test for summed. If the total emission increase properly allows you to receive credit for
major modifications. However, we do from the project is ‘‘significant’’ (that is, emission reductions that are achieved as
not propose to adopt the same course for equal to or greater than the major NSR part of an overall project, without
the minor NSR program in Indian threshold), the second step in the introducing too much complexity into
country. We believe that determining process is ‘‘contemporaneous netting.’’ the program. We invite comment on this
emissions changes in terms of changes In contemporaneous netting, the approach, as well as on other
in allowable emissions typically will be emission increase due to the proposed approaches that would allow minor
easier and more straightforward for the modification is summed with all other sources in Indian country to take credit
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minor sources subject to this program. emission increases and decreases that for emission reductions.
In particular, the major NSR procedures have occurred at the major source
for projecting and tracking future actual during the contemporaneous period 8. Is your existing minor source subject
emissions may be somewhat (generally 5 years). If the net emission to this rule?
complicated for minor sources. While increase determined in this way is States develop, adopt, and submit to
we believe that this system is within the significant, the proposed modification is us for approval a SIP that contains a

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broad range of measures to attain and all minor sources in Indian country, but the policy memo.7 However, as the
maintain the NAAQS and to meet other would involve very little burden to memo specifies, this PTE transition
requirements of section 110(a) of the sources, since this would be a one-time policy terminates when we adopt and
Act. The SIPs typically include some registration. Option 3 would allow your implement a mechanism that you can
emission limitations for existing reviewing authority to collect use to limit your PTE, or we explicitly
sources, even those that do not modify information on the number and size of approve a tribe’s program providing
their operations. Hence, a SIP provides existing minor sources, which would such a mechanism. Today’s proposed
an infrastructure to achieve the air assist with NAAQS maintenance and minor NSR program would provide
quality goals of attaining and attainment planning in Indian country. such a mechanism. Therefore, upon the
maintaining the NAAQS. Option 4. Require all existing minor effective date of these rules when
Tribes are not required to submit sources to be subject to the minor NSR promulgated, the PTE transition policy
implementation plans, and to date, very program requirements (as provided in will expire and you will have to obtain
few tribes have sought our approval of section IV.A.5. of this preamble). While a permit under this minor NSR program
such plan. Consistent with our approach this option would result in significant for any subsequent synthetic minor
to Federal implementation of the Act’s emissions reductions, it would also sources.
requirements, we issue FIPs for areas of require significant EPA resources and Additionally, for your existing
Indian country as necessary or may also be overly burdensome on synthetic minor sources under the
appropriate. However, there is still a minor sources in Indian country. current policy, you will have 1 year
regulatory gap in relevant infrastructure Additionally, we believe that subjecting from the effective date of the final rules
in much of Indian country. Because of all minor sources to this program is not to apply for a permit under the
this unique situation, we are raising the necessary to achieve the NAAQS, as proposed minor NSR program. If you
question of whether it may be demonstrated by state minor NSR submit a permit application in
appropriate to regulate existing minor programs. accordance with the requirements of
sources in Indian country under this We also seek comment on any other proposed 40 CFR 49.158(c) by that date,
minor NSR program to attain and approaches for addressing existing we will continue to consider your
maintain NAAQS. We are proposing minor sources. source a synthetic minor source until
Option 1 and soliciting comment on we issue a permit with synthetic minor
Options 2, 3, and 4: 9. How are ‘‘synthetic minor sources’’ limits. The permit will contain
Option 1. Exempt existing minor subject to this rule? monitoring, recordkeeping, reporting,
sources from this rule. This option Some sources have the potential to and testing requirements as needed to
would not affect any existing sources emit one or more pollutant in major assure compliance with your synthetic
(unless they propose a modification) source amounts, but have actual minor permit, but will not impose any
and, thus, be the least burdensome for emissions that are below the major additional requirements. Should you
such sources in Indian country. Many source thresholds. One of our primary fail to submit an application within 1
State minor NSR rules do not apply to
objectives for this rulemaking is to year of the effective date of the final
such sources; hence this would be
create a mechanism by which you can rules, your source will no longer be
consistent with many of the areas that
obtain emission limitations for such considered a synthetic minor source or
surround Indian country. Under this
sources that are enforceable as a synthetic minor HAP source (as
option, we are seeking comment on
practical matter, so that they can applicable), and will immediately
whether such an exempt minor source
become ‘‘synthetic minor sources’’ and become subject to all requirements for
should be allowed to opt for a permit
avoid major source status. We are major sources.
under this program (without being
therefore proposing to create such a
subject to any of the requirements) 10. How would section 112(g) case-by-
mechanism in 40 CFR 49.158 of the
merely to establish enforceable limits case MACT determinations be
and conditions associated with a proposed rules. The proposed rules
addressed by this rule?
consent decree or other enforcement allow for designation of synthetic minor
sources (for regulated NSR pollutants) Section 112(g)(2)(B) of the Act
mechanism.
Option 2. Require existing synthetic and synthetic minor HAP sources. It is provides that you may not construct or
minor sources to become subject to the important to note that although you may reconstruct a major source of HAPs
minor NSR program requirements choose to obtain such emission unless you install MACT. If the
(including control technology review limitations at your own discretion, once Administrator has not established a
and other requirements as provided in you have accepted an enforceable MACT standard for the source category,
section IV.A.5. of this preamble) and to emission limitation, you must comply the Act requires that MACT must be
submit a permit application within 1 with that limitation. This is necessary to determined on a case-by-case basis.
year after the effective date of the ensure that you are legally prohibited Where there is no EPA-approved
program. This option would draw into from operating as a major source. We are program in an area of Indian country,
the regulatory scheme the biggest minor taking comment on the proposal to we are the reviewing authority for case-
sources and may result in large allow your stationary sources to become by-case MACT under section
emissions reductions in instances where synthetic minors in Indian country. 112(g)(2)(B). The requirement for a case-
the required control technology review Our 1999 policy memo on synthetic by-case MACT determination prior to
would result in new or more stringent minor sources in Indian country construction or reconstruction of a
controls. Option 2 would affect currently provides guidance on how major source of HAPs is found at 40
relatively few existing minor sources in sources that would otherwise be major CFR 63.42(c). In 40 CFR 63.43(c), we
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Indian country. sources under section 302 or part D of provide a number of review options for
Option 3. Require all existing minor title I of the Act can become synthetic these determinations. These options
sources to register within 1 year after minor sources if their actual emissions
7 John S. Seitz and Eric V. Schaeffer. Policy
the effective date of this program, but remain below 50 percent of the relevant
memo. ‘‘Potential to Emit Transition Policy for Part
not be subject to the permitting major source PTE threshold and they 71 Implementation in Indian Country.’’ March 7,
requirements. This option would affect comply with all other requirements of 1999.

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include using a title V permit, applying appropriate EPA Regional Office and in notices posted in locations frequented
for and obtaining a Notice of MACT at least one location in the area affected by the local population and on agency
Approval, and ‘‘any other by the source, such as the tribal Web sites, as well as mailed or e-mailed
administrative procedures for environmental office or a local library. to concerned parties, will provide more
preconstruction review and approval The public notice must provide an ‘‘prominent advertisement’’ than would
established by the reviewing authority opportunity for public comment and a publication in a newspaper.
for a State or local jurisdiction which public hearing on the draft permit. The The reviewing authority must provide
provide for public participation * * appropriate types of notice may vary for a 30-day public comment period on
*.’’ Currently, no tribes have an EPA- depending on the proposed project and the draft permit. After considering all
approved title V permitting program or the area of Indian country that would be relevant public comments, the
the ‘‘other administrative procedures’’ affected. reviewing authority will make a final
for this purpose, although one tribe has In all cases, the proposed rule decision to issue or deny your permit.
been delegated authority to assist us requires the reviewing authority to mail The public (including you, the permit
with implementation of the Federal part a copy of the notice to you, the applicant) will have an opportunity to
71 operating permit program (i.e., the appropriate Indian governing body, and appeal the final decision under 40 CFR
Federal program for issuing title V the tribal, State, and local air pollution 49.159 of the proposed rule.
permits). While we can permit a section authorities having jurisdiction in areas These proposed public participation
112(g) case-by-case MACT outside of the area of Indian country requirements would apply to
determination through a part 71 permit potentially impacted by your source. preconstruction permits, minor source
or a Notice of MACT Approval, we The proposed rule lists optional PAL permits, synthetic minor permits,
believe that if your source is major only approaches that the reviewing authority and the initial issuance of general
for HAPs it would be administratively may elect to use to provide public permits. We seek comment on the
convenient for us and you to combine notice as appropriate for a given proposed public participation
the construction permit process for both situation, depending on such factors as requirements in 40 CFR 49.157.
regulated NSR pollutants and HAPs the nature and size of your source, local We are also proposing very similar
under this proposed minor NSR air quality considerations, and the public participation requirements for
program, rather than also go through the characteristics of the population in the the nonattainment major NSR program.
part 71 permit or Notice of MACT affected area. The optional methods of See section IV.B.3 of this preamble.
Approval process to address HAPs. notifying the public include the 12. What are the monitoring,
Therefore, we are proposing to allow for following: recordkeeping, and reporting
review of section 112(g) case-by-case • Mailing or e-mailing a copy of the requirements?
MACT determinations through this notice to persons on a mailing list
minor NSR program and seek comment developed by the reviewing authority Sections 110(a)(2)(A) and (C) of the
on this approach. See proposed 40 CFR consisting of those persons who have Act require that a preconstruction
49.153(a)(5) for the provisions related to requested to be placed on such a permitting program provide for the
section 112(g) case-by-case MACT mailing list. enforcement of measures that include
determinations. Note that you • Posting the notice on its Web site. ‘‘enforceable emission limitations’’ and
ultimately will have to obtain a part 71 • Publishing the notice in a other control measures, means, or
permit for your major source of HAPs. newspaper of general circulation in the techniques * * * as well as schedules
area affected by the source. Where and timetables for compliance.’’ Section
11. What are the proposed requirements possible, the notice may also be 110(a)(2)(F) additionally requires that a
for public participation in the published in a tribal newspaper or permitting program may require ‘‘the
permitting process? newsletter. We do not believe that such installation, maintenance, and
Our requirements for State a notice is appropriate for every single replacement of equipment, and the
preconstruction review programs at 40 minor source permit application since implementation of other necessary steps
CFR 51.161 require such programs to this would require a heavy resource by owners and operators of stationary
provide for public availability of permit commitment for the reviewing sources to monitor emissions from such
applications as well as the reviewing authority, while not necessarily being as sources,’’ as well as ‘‘periodic reports on
authority’s analysis of the application. effective as some other measures. the nature and amounts of emissions
In addition, State programs must • Providing copies of the public and emission-related data from such
provide opportunity for public comment notice for posting at locations in the sources.’’
on permitting actions. To be consistent area affected by your source. We expect Generally, we are proposing that all
with these requirements for State that such locations might include Post permits issued under this minor NSR
programs, we are proposing to require Offices, libraries, tribal environmental program contain emission limitations
the reviewing authority to make non- offices, community centers, and other that are enforceable as a practical
confidential information on the permit gathering places in the community. matter, as well as adequate monitoring,
available to the public and to provide • Other appropriate means of recordkeeping, and reporting
public notice and an opportunity to notification. requirements as may be necessary to
comment on the draft minor NSR We believe that this combination of assure compliance with those
permit. See proposed 40 CFR 49.157. mandatory and optional approaches to limitations. The requirements for
Specifically, we would require that providing notice is appropriate for monitoring, recordkeeping, and
the reviewing authority prepare a draft today’s proposed minor NSR program in reporting are discussed below; See 40
permit and provide adequate public Indian country. In addition, we believe CFR 49.155(a) of the proposed rule for
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notice to ensure that the affected that the proposal is consistent with 40 the complete requirements.
community and the general public have CFR 51.161, which requires a ‘‘notice by Monitoring requirements. The permit
reasonable access to the application and prominent advertisement in the area must include monitoring requirements
draft permit information. The reviewing affected,’’ but does not specify a sufficient to assure compliance with any
authority must make such information newspaper advertisement. We believe control technology requirements
available for public inspection at the that in many areas of Indian country, contained in the permit. Monitoring

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approaches may include continuous 13. What are the criteria for general In setting criteria for sources to be
emissions monitoring systems (CEMS), permits, what source categories covered by general permits, your
predictive emissions monitoring generally qualify for them, and what are reviewing authority would consider the
systems (PEMS), continuous parameter the permit application requirements for following factors. First, categories of
monitoring systems (CPMS), periodic a general permit? sources or emissions units covered by a
manual logging of monitor readings, general permit should be generally
A ‘‘general permit’’ is a homogeneous in terms of operations,
equipment inspections, mass balances, preconstruction permit that may be
periodic performance tests, and/or processes, and emissions. All sources or
applied to a number of similar emissions units in the category should
emission factors, as appropriate for your emissions units or stationary sources.
minor source based on the types of have essentially similar operations or
The purpose of a general permit is to processes and emit pollutants with
emissions units, magnitude of simplify the permit application and similar characteristics. Second, the
emissions, and air quality issuance process for similar facilities so sources or emissions units should be
considerations. Such monitoring shall that a reviewing authority’s limited expected to warrant the same or
assure use of terms, test methods, units, resources need not be expended for substantially similar permit
and averaging periods consistent with case-by-case permit development for requirements governing operation,
the control technology and emission such facilities. A general permit may be emissions, monitoring, recordkeeping,
limitations required for your source. If written to address a single emissions or reporting.
the permit includes a minor source PAL unit, a group of the same type of Your sources covered under a general
for a pollutant at your minor stationary emissions units, or an entire minor permit would be issued a letter
source, it must also include monitoring source. approving coverage under the general
to determine the actual emissions from The minor NSR program proposed in permit. You must maintain the general
your source for each month and the total this action would allow your reviewing permit and the letter at your source
actual emissions for each 12-month authority to issue general permits for location at all times to be made
period, rolled monthly, for that categories of emissions units or available for inspection by the
pollutant. stationary sources that are similar in reviewing authority.
nature, have substantially similar General permits may be issued to
Recordkeeping requirements. The cover any category of numerous similar
permit must include recordkeeping emissions, and would be subject to the
same or substantially similar permit sources, provided that such sources
requirements sufficient to assure meet the appropriate criteria. For
requirements. ‘‘Similar in nature’’ refers
compliance with the enforceable example, permits can be issued to cover
to size, processes, and operating
emission limitations in your permit. small businesses such as gas stations or
conditions. To issue a general permit,
Records of required monitoring dry cleaners. General permits may also,
the reviewing authority must provide
information must include all the same opportunities for public in some circumstances, be issued to
calculations using emissions factors, all participation and administrative and cover discrete emissions units, such as
stack tests or sampling information judicial review that apply to minor NSR individual solvent cleaning machines at
including date and time of test or permits issued to a specific source industrial complexes. We request
sampling, the name of the company or comment on the use of general permits,
under this program. This is true with
entity that performed the analyses, the eligible emissions units and source
respect to all aspects of the general
analytical techniques or methods used, categories, and the process of issuing
permit except its applicability to an
the results of such analyses and the general permits.
individual source. See proposed 40 CFR
operating conditions existing at the time 49.156(b). 14. What is the administrative and
of sampling or measurement. All such Once a general permit has been issued judicial review process proposed for
records including support information for a source category or category of this program?
must be retained for 5 years from the emissions units, you may submit an We are proposing and seeking
date of the record. Support information application to be covered under the comment on two options for reviewing
may include all calibration and general permit if your proposed new initial permit decisions by reviewing
maintenance records and all original minor source or modification qualifies authorities under this program. We will
strip-chart recordings or electronic for coverage under that general permit. discuss these options further, but first
records for continuous monitoring Your reviewing authority may grant or we will present the proposed
instrumentation. deny your request to construct under a administrative procedures that we
Reporting requirements. You must general permit without further public expect to be the same regardless of
provide annual monitoring reports participation. However, when you which review option we ultimately
showing whether you have complied receive approval to be covered under a select.
with your permit emission limitations. general permit, you must post a The final permit issuance procedures
prominent notice at your source of this and related notice requirements are
You also must provide prompt reports
approval to construct under the general proposed in 40 CFR 49.159(a). After
of deviations from permit requirements,
permit. Someone may seek judicial decision on a permit, the reviewing
including those attributable to upset review only on the issue of whether authority must notify you of the
conditions as defined in the permit, the your source qualifies for the general decision, in writing, and if the permit is
probable cause of such deviations, and permit. See proposed 40 CFR 49.156(e). denied, of the reasons for the denial. If
any corrective actions or preventive We believe that general permits offer a the reviewing authority issues a final
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measures taken. Within a permit, the cost-effective means of issuing permits permit to you, it must make a copy of
reviewing authority must define and provide a quicker and simpler the permit available at all of the
‘‘prompt’’ in relation to the degree and alternative mechanism for permitting locations where the draft permit was
type of deviation likely to occur. your minor sources than the site- made available. In addition, the
specific permitting process discussed reviewing authority must provide
previously. adequate public notice of the final

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permit decision to ensure that the have been modified to better suit the inappropriately delay your ability to
affected community, general public, and small sources that will be covered under construct or modify a new minor source.
any individuals who commented on the the minor NSR program. On the one hand, minor NSR permits
draft permit have reasonable access to The major difference between Option are for sources and modifications that
the decision and supporting materials. 1 and Option 2 is that, under Option 1, emit less than new major sources and
Depending on the circumstances of your permit decisions may be appealed to the major modifications to major sources.
permit, the reviewing authority may EAB within 30 days after a final permit An automatic stay would delay these
elect to provide notice directly to the decision has been issued, and a final smaller projects from going ahead when
individuals who commented on the permit typically would not become there is less environmentally at stake
draft permit and/or use any of the other effective until 30 days after issuance. than in a challenge to a PSD or
methods of public notice discussed in Upon filing of a petition for review, the nonattainment major NSR permit. In
section IV.A.11 of this preamble (related permit would be stayed (i.e., not go into those instances where there would be
to public notice of the draft permit). effect) until the EAB decides whether to irreparable harm caused by a project
We are proposing a requirement that review any condition of the permit and proceeding under a flawed permit, there
the reviewing authority’s final decision the reviewing authority takes any action would still be available the opportunity
on your permit be based on an required by the EAB. When the EAB has to seek a stay under the APA.
administrative record and requirements issued its final order on an appeal, a On the other hand, review of permit
on what must be in that record. See motion to reconsider the final order may decisions by the EAB serves as quality
proposed 40 CFR 49.159(b) and (c). The be filed with the EAB within 10 days. control over decisions by various parts
proposed rules also include provisions Only after all administrative remedies of EPA. The EAB can ensure that the
at 40 CFR 49.159(e) that address under proposed 40 CFR 49.159 have policies of the Administrator are
reopening a permit after it has been been exhausted could the person(s) applied consistently and appropriately
issued if it contains a material mistake filing the petition seek judicial review. in permit decisions. This may be
or fails to assure compliance with the important when a tribe receiving a
Option 2. Option 2 has two major
permit requirements. In addition, delegation under this rule or an EPA
differences from the appeals process we
proposed 40 CFR 49.159(f) contains Regional Office acting as the reviewing
proposed in Option 1. First, we propose
provisions for administrative permit authority makes an error in applying the
under Option 2 that permits would
revisions to make minor changes in the relevant rules.
become immediately effective upon One important consideration would
permit without being subject to the issuance by the reviewing authority
permit application, issuance, public be the timeliness of any review process.
unless a later effective date is specified. The EAB has specialized expertise in
participation, or administrative and
Second, there is no requirement for environmental issues, unlike courts
judicial review requirements of the
seeking EAB review before filing a with broader case-loads. The EAB is
program.
We are proposing two options for petition for review in the Federal Court likely to process a petition for review
reviewing initial permit decisions by of Appeals with jurisdiction of the tribal faster than a Court of Appeals. Courts of
reviewing authorities. In Option 1, area. The final agency action for Appeals necessarily give priority
review of minor NSR permits would be purposes of judicial review is the criminal appeals over civil regulatory
similar to review of major PSD permits issuance of the final permit by the matters and thus may delay addressing
issued under 40 CFR 52.21. To reviewing authority. The permit is not and resolving permit appeals. In either
challenge the terms of your permit, you stayed by the filing of a petition for the EAB or the Courts of Appeals, it is
or another party would have to file a review. If a party challenging a permit unlikely that review of minor NSR
petition for review with our would like to have your permit stayed, permits will be expedited ahead of
Environmental Appeals Board (EAB). that party may seek a stay under the matters with greater environmental
Decisions by the EAB could be appealed provisions of the Administrative impact.
to the Federal Court of Appeals for the Procedures Act (APA), 5 U.S.C. 705. Under Option 2, you may be placed
tribal area. Alternatively, in Option 2, Because the regulatory language for in a difficult situation of having a
the reviewing authority’s initial permit Option 1 is more detailed than would be permit revoked after proceeding with
could be appealed directly to the required for Option 2, the proposed construction while an appeal was
appropriate Federal Court of Appeals regulatory text only addresses Option 1. pending. However, under Option 1,
without a requirement to appeal to the Advantages and Disadvantages of your project cannot proceed so long as
EAB first. There are advantages and Options 1 and 2. The different the EAB appeal is pending.
disadvantages to both approaches. We approaches to appeals of reviewing We seek comment on how to balance
solicit comment on which option we authority decisions result from section these issues. Which option do you
should adopt. 704 of the APA. This section provides prefer and why? We invite comment on
Option 1. Under Option 1, the that an agency action that is otherwise whether either Option 1 or Option 2 is
proposed administrative and judicial final is final for purposes of judicial more appropriate for general permits
review process for the minor NSR review unless the agency otherwise than individual minor source permits.
program parallels the process for PSD requires by rule that a party must seek We also ask for comment on whether
permits issued under 40 CFR 52.21, review by a superior authority within there should be a short delay of 30 days
which is found in 40 CFR part 124. the agency and the agency’s action is before a permit is effective under Option
Since not all of the provisions of part meanwhile inoperative. Therefore, if we 1 in order to allow for parties to seek
124 need to apply to this program, were to require administrative review by administrative stays during
rather than adding the minor NSR the EAB or another part of EPA before reconsideration or to obtain a judicial
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program to the list of programs to which allowing anyone to seek judicial review stay before a permit goes into effect.
part 124 applies, in this option we are of a permit, then we would be required Should we establish a mechanism for
proposing to include the desired to stay the permit for the duration of the administrative reconsideration though
provisions in 40 CFR 49.159. The appeal. The two options balance the the EAB, even when a party is seeking
proposed provisions are very similar to advantages of EAB review of permits judicial review in the Court of Appeals?
the part 124 provisions, although they with the desire to not unnecessarily and Any input on these issues with

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supporting documentation will help us this option since it would essentially re- Tribes, with few exceptions, do not have
in structuring the final rule. propose appendix S provisions, which many existing sources within their area
have been in effect outside of Indian of Indian country from which offsets
B. Major NSR Program in
country for many years. We wanted to can be obtained. In addition,
Nonattainment Areas of Indian Country
avoid any potential confusion or administrative barriers may hinder
In today’s rulemaking, we are possible perception that these parallel tribal access to otherwise available
proposing to establish a major NSR regulation requirements would be offsets. Therefore, tribal representatives
program for new major stationary different than the appendix S have advocated for additional flexibility
sources and major modifications at requirements. to address offsets, such as the provision
existing major stationary sources in It is important to keep in mind that, of NSR offset set-asides (which we
nonattainment areas of Indian country in this rulemaking, we are only seeking expect would come from State offset
at 40 CFR 49.166 through 49.175. This comment on our general approach of pools or banks). Tribal representatives
program is designed to meet the requiring sources subject to the major have raised these and other concerns in
requirements of part D of title I of the NSR program in Indian country to be discussions on implementation of the 8-
Act, and sources subject to this program subject to the provisions of appendix S. hour ozone and PM2.5 standards, and in
would be required to comply with the While we will consider any compelling comments on the 8-hour ozone
requirements of 40 CFR part 51, rationale or justification from a implementation rule.8
appendix S (appendix S). commenter that a particular provision in We recognize the unique
Appendix S is entitled ‘‘Emission appendix S is not appropriate for Indian circumstances that tribes face. Unlike
Offset Interpretative Ruling’’ and sets country, we will not entertain general States that have a SIP, a huge industrial
forth preconstruction review comments on the appendix S base with several hundred existing
requirements for major stationary provisions, since this transitional sources, and a broad range of measures
sources and modifications locating in program has been implemented in to attain and maintain NAAQS, a tribe
nonattainment areas where the State States across the country for many generally has neither a TIP nor many
does not have an EPA-approved years. existing sources from which to generate
nonattainment major NSR program. In offsets. Under these circumstances, we
general, appendix S is a transitional 1. What are the requirements for major are proposing two options to address the
nonattainment major NSR program that source permitting under appendix S? lack of availability of offsets for tribes:
covers the period after an area has been Pursuant to paragraph IV of appendix (1) The Economic Development Zone
newly designated as nonattainment, up S, a reviewing authority may issue a (EDZ) option and (2) the appendix S,
until the State has amended its SIP’s permit for a new major source or a major paragraph VI option. We also are
nonattainment major NSR program, as modification locating in a requesting comment on other potential
needed, to address the new nonattainment area, if it complies with options for offset relief in Indian
nonattainment area. The requirements the following conditions: country.
under appendix S are essentially the • The new major source or a major Economic Development Zone Option.
same as our requirements for State modification meets the LAER for that We would rely on section 173(a)(1)(B) of
nonattainment major NSR programs at source utilizing add-on controls or the Act wherein the Administrator, in
40 CFR 51.165. pollution prevention measures. consultation with the Secretary of
Primarily, we believe it is appropriate • The applicant certifies that all Housing and Urban Development
to apply appendix S provisions in existing major sources owned or (HUD), would identify areas in Indian
Indian country for administrative operated by the applicant (or any entity country as EDZs such that sources
convenience. Additionally, since controlling, controlled by, or under subject to major NSR located in EDZs in
appendix S generally applies in common control with the applicant) in Indian country would be exempt from
nonattainment areas where there is no the same State as the proposed source the offset requirement in section
approved nonattainment major NSR are in compliance with (or under a 173(a)(1)(A) of the Act.
program, and since no tribe currently federally-enforceable compliance Section 173(a)(1) of the Act provides
has such a program, we believe that schedule for) all applicable emission for the issuance of permits to construct
appendix S should also apply in Indian limitations and standards under the Act. and operate a new or modified major
country. Another reason for requiring • Emission reductions (offsets) from stationary source if the reviewing
sources subject to this program to existing sources in the area of the authority determines that (A) ‘‘* * *
comply with appendix S requirements proposed source (whether or not under sufficient offsetting emissions
is that the EPA Regional Offices (which the same ownership) are obtained such reductions have been obtained * * *’’
will be implementing the program until that there will be reasonable progress or (B) ‘‘in the case of a new or modified
an EPA-approved implementation plan towards attainment of the applicable major stationary source which is located
is in place) and several major sources in NAAQS. Only intrapollutant emission in a zone (within the nonattainment
Indian country are familiar with the offsets will be acceptable (e.g., NOx for area) identified by the Administrator, in
implementation and provisions of NOx). consultation with the Secretary of
appendix S. • The emission offsets provide a net Housing and Urban Development, as a
We considered and rejected the air quality benefit in the affected area. zone to which economic development
option of amending appendix S to should be targeted, that emissions of
extend its application to Indian country, 2. What are the options we are such pollutant resulting from the
since we believe that sources in Indian proposing to address the lack of proposed new or modified major
country are more likely to look for available offsets in Indian country? stationary source will not cause or
sroberts on PROD1PC70 with PROPOSALS

regulations applicable to them under Tribal representatives have repeatedly contribute to emissions levels which
part 49, which is solely dedicated to stated that requirements for emission
regulations that apply in Indian country. offsets are problematic in Indian 8 For example, see the letter from Bill Grantham,

We also considered drafting a parallel country for the following reasons. Many National Tribal Envrionmental Council, to docket
EPA–HQ–OAR–2003–0076, providing comments on
major NSR regulation to apply to tribes believe that transport is a major the proposed 8-hour ozone implementation rule (66
sources in Indian country, but rejected cause of pollution in Indian country. FR 32802).

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48719

exceed the allowance permitted for such • The new source will not interfere Indian country, we are seeking
pollutant for such area from new or with the attainment date for a regulated comments on whether this requirement
modified major stationary sources under NSR pollutant; and should be expressed as an Indian
section 172(c).’’ • We have determined that the country-wide compliance certification
Once the Administrator has identified preceding two conditions are satisfied or remain a statewide certification. In
an area that should be targeted for and such determination is published in other words, should you be required to
economic development in consultation the Federal Register. certify that all your sources in the State
with HUD, major sources that construct Tribes would be able to use this where your proposed source is locating
or modify within that area are relieved option for offset relief for the 8-hour are in compliance, or that all your
of the offset requirement if the State/ ozone and PM2.5 NAAQS. For instance, sources in all of Indian country are in
tribe can demonstrate that the new the attainment dates for 8-hour ozone compliance?
permitted emissions are consistent with nonattainment areas range from 2007 for Note that we are proposing a minor
the achievement of reasonable further marginal areas to 2021 for severe areas. change to appendix S that is related to
progress pursuant to section 172(c)(4) of Hence, a new major source or a major the ‘‘emission limitations and standards
the Act, and will not interfere with modification locating in such a of the Act.’’ Existing paragraph II.B of
attainment of the applicable NAAQS by nonattainment area prior to the appendix S requires the reviewing
the applicable attainment date. attainment date may be exempt from the authority to review each proposed new
We understand that HUD’s Initiative requirements of paragraph IV of major source and major modification to
for Renewal Communities, Urban appendix S, if the associated conditions determine whether it will meet ‘‘any
Empowerment Zones, and Urban are met. applicable new source performance
Enterprise Communities generally It is important to note that this option standard in 40 CFR part 60, or any
require that participating communities would provide only temporary offset national emission standard for
demonstrate pervasive poverty, high relief because it would cease to be hazardous air pollutants in 40 CFR part
unemployment, and general distress available once the attainment date for a 61.’’ While we have incorporated this
throughout the designated area. The pollutant has passed. For instance, this requirement into proposed 40 CFR
U.S. Department of Agriculture requires option would not be available to 49.169(a), we believe that it should be
similar eligibility criteria for marginal 8-hr ozone nonattainment expanded to include the newer national
participating communities located in areas after 2007. We seek comment on emission standards for hazardous air
rural areas. We believe that many areas this paragraph VI option for offset relief. pollutants codified at 40 CFR part 63
We are seeking comment on other (commonly referred to as MACT
of Indian country may meet these
potential options for addressing the lack standards). Accordingly, we are
criteria and hence could qualify for this
of availability of offsets in Indian proposing to revise paragraph II.B of
offset relief provision. We seek
country. appendix S to add these standards
comment on whether these criteria are
appropriate for use in identifying EDZs 3. What are the proposed public under the Act, and proposed 40 CFR
in Indian country and if we should participation requirements for this 49.169(a) would match the revised
consider any other criteria. program? language of this paragraph.
We are also proposing to have the We believe that the public V. Legal Basis, Statutory Authority, and
Administrator consult with HUD only participation requirements of 40 CFR Jurisdictional Issues
once to develop a general set of 51.161 apply to permitting under
approval criteria, such that a A. What is the basis for our authority to
appendix S. Additionally, for the
consultation is not required every time implement these programs?
nonattainment major NSR program, we
a tribe applies for its area of Indian are proposing detailed public notice Today’s proposed rules are intended
country to be designated as an EDZ. requirements at 40 CFR 49.171. The to fill a regulatory gap in the protection
EPA would provide assistance as proposed requirements for the of air quality in Indian country.
needed for a tribe to complete an EDZ nonattainment major NSR program are Although many States have developed
designation request. Once the very similar to those proposed for the regulatory programs for minor sources,
Administrator approves such a request minor NSR program at 40 CFR 49.157. those programs do not apply in Indian
from a tribe, a new major source or a See section IV.A.11 for more country unless explicitly approved by
major modification locating in that EDZ information on the proposed EPA for such areas. In addition, there is
would be exempt from the offset requirements. no Federal minor NSR program or major
provisions. We seek comment on this nonattainment NSR program in Indian
approach for providing offset relief. 4. How do I meet the statewide country. Part D of title I of the Act
Appendix S, Paragraph VI Option. compliance certification requirement of requires that each SIP include
Paragraph VI of appendix S notes that the Act? preconstruction review and permitting
in some cases, the dates for attainment Pursuant to the statewide compliance rules for the construction and operation
of the primary or secondary NAAQS certification requirements of section of new and modified major stationary
may not have passed. In such cases, 173(a)(3) of the Act, an owner or sources located in designated
appendix S provides that a new source operator of a proposed new or modified nonattainment areas. The TAR
locating in a nonattainment area may be major stationary source must authorizes eligible Indian tribes to
exempt from the requirements of demonstrate that all other major implement EPA-approved
paragraph IV.A of appendix S stationary sources under her/his control nonattainment NSR (part D of title I of
(discussed in section IV.B.1 of this in the same State are in compliance or the Act), PSD (part C of title I of the
sroberts on PROD1PC70 with PROPOSALS

preamble), including the offset on a schedule for compliance with all Act), and other programs under the Act
requirement, if the following conditions emission limitations and standards of in the same manner as States. However,
are met: the Act. It is important to recognize that if Indian tribes are unable, or choose
• The new source complies with the the proposed rules will not impact this not, to develop a nonattainment NSR
applicable implementation plan statewide compliance certification program in a TIP, we will implement
emission limitations; requirement. However, in the context of the program where necessary or

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48720 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

appropriate. Today’s proposed TAR, we discussed generally the legal neither practical nor administratively
requirements are intended to provide basis under the Act for EPA and tribal feasible for us to develop and
the mechanism for implementation of regulation of sources of air pollution in implement a separate program for each
the Federal major nonattainment NSR Indian country. We concluded that the area of Indian country. As a result, we
and minor NSR programs in Indian Act constitutes a statutory delegation of are proposing to implement a flexible
country. Federal authority to eligible tribes over FIP for Indian country that provides
The purpose of the proposed rules is all sources of air pollution within the new and modified minor sources and
to ensure that the NSR program is exterior boundaries of their reservations. major sources in nonattainment areas
implemented throughout the United Further, under the Act, tribes may with procedures to demonstrate that
States and that any economic growth also apply to administer tribal air they will be operating in a manner that
occurring in Indian country will do so quality programs for non-reservation is protective of air resources and the
in harmony with the preservation of areas over which they can show NAAQS.
existing clean air resources. Today’s jurisdiction.9 See 63 FR 7254–7259, 59 Section 301(a) of the Act provides us
proposed rules provide both Indian FR 43958–43960, Arizona Public broad authority to issue such
tribes and businesses operating or Service Co. v. EPA, 211 F.3d 1280 (D.C. regulations as are necessary to carry out
considering locating in Indian country Cir. 2000), cert. den., 532 U.S. 970 the mandates of the Act. Further, several
an understanding of the NSR programs (2001). provisions of the Act call for Federal
for stationary sources. They also provide In the preamble to the TAR, we also implementation of a program where, for
businesses and tribes procedures to concluded that the Act authorizes us to example, a State, or in this case a tribe,
comply with the major nonattainment protect air quality throughout Indian fails to adopt a program or adopts an
NSR and minor NSR programs. country. See 63 FR 7262, 59 FR 43960– inadequate program. See, for example,
The Act gives us the authority to 43961 citing sections 101(b)(1), 301(a), sections 110(c)(1), 502(d)(3), and
protect the Nation’s air resources. and 301(d) of the Act. 502(i)(4) of the Act. These provisions
Furthermore, title I of the Act requires In addition, sections 301(d) and exist in part to ensure that the benefits
that the NSR program be established to 110(o) of the Act give the tribes the of the Act would be realized throughout
protect public health and welfare, authority to develop their own tribal the United States, whether or not local
national parks, and wilderness areas as programs. We encourage eligible tribes governments choose to participate in
new sources of pollution are built or to develop their own minor and major implementing the Act. Especially in
existing sources are modified. The nonattainment NSR programs for light of the problems associated with
program is designed to ensure that incorporation into their TIPs. In the transport of air pollution across State
emissions will be well controlled and absence of EPA-approved programs, we and tribal boundaries, it follows that
that there will be protection of the believe that, in most cases, it would be Congress intended that we have the
NAAQS in Indian country. We authority to operate a Federal program
understand that not all tribes have the 9 We believe that in the context of programs
in the absence of an adequately
resources to design and implement NSR under the Act, States generally lack the authority
to regulate air quality in Indian country. See Alaska
implemented EPA-approved program.
programs; therefore, in today’s proposal, v. Native Village of Venetie Tribal Government, 522 See, for example, 59 FR 43958–61,
we are providing a Federal program to U.S. 520, 527 fn. 1 (1998) (‘‘Generally speaking, August 25, 1994; 62 FR 13750, March
apply in Indian country and that tribes primary jurisdiction over land that is Indian 21, 1997; and 63 FR 7262–64, February
may use as a model if they choose to country rests with the Federal Government and the
Indian tribe inhabiting it, and not with the States.’’),
12, 1998.
develop their own implementation California v. Cabazon Band of Mission Indians, 480 This interpretation is most evident
programs and obtain our approval. U.S. 202 (1987), and HRI v. EPA, 198 F.3d 1224 from Congress’ grant of authority to the
Under today’s proposed rule, the (10th Cir. 2000); see also discussion in EPA’s final EPA under section 301(d)(4) of the Act.
Federal program at 40 CFR 49.151 rule for the Federal operating permits program (64 Section 301(d)(4) authorizes the
FR 8251–8255, February 19, 1999). To provide
through 49.165 for minor stationary additional certainty to regulated entities, we believe Administrator to directly administer
sources would apply throughout Indian it is helpful to clarify the extent to which State NSR provisions of the Act so as to achieve
country, except where we explicitly programs have force in Indian country. We make the appropriate purpose where tribal
approve an implementation plan for clear today that we interpret past approvals and implementation of those provisions is
delegations of NSR programs as not extending to
such programs. The Federal rule at 40 Indian country unless the State has made an inappropriate or administratively
CFR 49.166 through 49.175 for new and explicit demonstration of jurisdiction over Indian infeasible. We determined that it is
modified major stationary sources in country, and we have explicitly approved or inappropriate to subject tribes, among
nonattainment areas located in Indian delegated the State’s program for such area. This is other things, to the mandatory submittal
consistent with Congress’ requirement that we
country would likewise apply in an area approve State and tribal programs only where there deadlines and to the related Federal
of Indian country until an is a demonstration of adequate authority. See oversight mechanisms in section
implementation plan has been approved sections 110(a)(2)(E), 110(o), and 301(d) of the Act 110(c)(1) of the Act, which are triggered
by us. and 40 CFR part 49. Since States generally lack the
authority to regulate air resources in Indian
when we make a finding that States
As discussed previously, the Act country, we do not believe it would be appropriate have failed to meet required deadlines
provides us with broad authority to for us to approve State programs under the Act as or disapprove a plan submittal. See 40
protect air resources throughout the covering Indian country where there has not been CFR 49.4(d).
Nation, including air resources in an explicit demonstration of adequate jurisdiction By determining that tribes should not
and where we have not explicitly indicated our
Indian country. See, for example, the intent to approve the State program for an area of be treated similarly to States for
preamble discussion for the proposed Indian country. In State NSR program approvals purposes of the specific FIP obligation
and final TAR (59 FR 43956, 43958–61, and delegations, we generally were not faced with under section 110(c)(1) of the Act, we
August 25, 1994; 63 FR 7254, 7262–64, State assertions of authority to regulate sources in are not relieved of the general obligation
sroberts on PROD1PC70 with PROPOSALS

Indian country. However, to the extent States or


February 12, 1998) and the preamble others may have interpreted our past approvals or under the Act to ensure the protection
discussion for the proposed revisions to delegations that were not based on explicit of air quality throughout the Nation,
the part 71 Federal operating permits demonstrations of adequate authority and did not including throughout Indian country.
explicitly grant approval in Indian country, as
program for Indian country (62 FR approvals to operate NSR programs in Indian
Rather, consistent with the provisions of
13748, 13750, March 21, 1997). In the country, we wish to clarify any such sections 301(a) and 301(d)(4) of the Act,
preambles to the proposed and final misunderstanding. we expressed our intent to promulgate

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without unreasonable delay a FIP manner consistent with the EPA Indian tribal NSR program, under tribal law.
(where necessary or appropriate) to Policy’’). The TAR allows tribes to seek approval
protect air quality if tribal efforts do not In order to further our commitment to for such programs covering their
result in adoption and approval of tribal use our authority under the Act to reservations or other areas within their
plans or programs. See 63 FR 7265, 40 protect air quality throughout Indian jurisdiction. We recognize that some
CFR 49.11. country by directly implementing the tribes may choose not to develop tribal
We propose to exercise our authority Act’s requirements, we are now NSR programs for submission to us for
to administer the minor NSR permitting exercising the rulemaking authority approval under the TAR, but that these
program and the nonattainment major entrusted to us by Congress to directly tribes may still wish to assist us in
NSR program in Indian country, which implement the minor NSR permitting implementing the Federal NSR program
is generally the area over which a tribe program and nonattainment major NSR for their area of Indian country. By
may potentially receive approval of permitting program throughout all areas assisting us with administration of the
programs under the Act. As noted in the of Indian country. See generally, Federal program, tribes remain
final TAR, we interpret the Act as Chevron USA, Inc. v. NRDC, 467 U.S. appropriately involved in
establishing a territorial approach to 837, 842–45 (1984). implementation of an important air
implementation of the Act within B. How does a tribe receive delegation quality program and may develop their
Indian reservations by delegating to to assist EPA with administration of the own capacity to manage such programs
eligible tribes authority over all Federal minor and major NSR rules? in the future should they choose to do
reservation sources without so. Proposed 40 CFR 49.160 and 49.172
Section 301(a)(1) of the Act provides of the minor and major NSR rules,
differentiating among the various
that the Administrator is authorized to respectively, provide tribal governments
categories of on-reservation lands (63 FR
prescribe such regulations as are
7254–7258). In addition, the Act the option of seeking delegation from us
necessary to carry out his or her
authorizes eligible tribes to implement of the administration of the Federal NSR
functions under the Act. Pursuant to
tribal programs under the Act in non- program, or aspects of the program, for
this authority, proposed 40 CFR 49.160
reservation areas over which a tribe has their area of Indian country. Such
and 49.172 of the minor and major NSR
jurisdiction, generally including all administrative delegation is to be
rules, respectively, provide that partial
areas of Indian country (63 FR 7258– distinguished from the TAS process
administration of the Federal NSR
7259). under the TAR whereby tribes seek
programs may be delegated to a tribal
Under section 301(d)(4) of the Act, approval to run programs under tribal
agency that submits a request for
Congress authorized the EPA to law. Tribes would not need to seek TAS
delegation which includes the
maintain the territorial approach by under the TAR in order to request
information set forth in the proposed
implementing the Act in Indian country delegation of administration of aspects
sections.10 Any Federal requirements
in the absence of an EPA-approved of these Federal NSR programs. Tribes
under these programs that are
program. We believe that Congress would, however, need to provide the
administered by the delegate tribal
authorized us, consistent with our relevant application information
agency will be subject to enforcement by
Indian policy, to avoid the described in those sections. In addition,
EPA under Federal law. Nothing in the
checkerboarding of reservations based program functions delegated under
proposed rules would require us to
on land ownership by federally proposed 40 CFR 49.160 or 49.172
delegate administration of any aspect of
implementing the Act over all would remain part of the relevant FIP
the Federal program to a tribal agency.
reservation sources in the absence of an administered under Federal law. The
As noted elsewhere, we have
EPA-approved tribal program. See S. delegate tribal agency would simply
established a process in the TAR
Rep. No. 228, 101st Cong., 1st Sess. 79 assist EPA with administration of the
pursuant to section 301(d) of the Act for
(1989) (implementation of the Act to be program to the extent of the functions
tribes to seek treatment in a similar
in a manner consistent with EPA’s delegated.
manner as a State (TAS) for various
Indian policy). In addition, section provisions and programs of the Act. We have well-established processes
301(d)(4) authorized us to implement Under the procedures set forth in the for delegating our Federal authority to
the Act in non-reservation areas of TAR, tribes may seek to demonstrate States for administering Federal rules
Indian country in order to fill any gap eligibility for approval of tribal under the Act, including conducting
in program coverage and to ensure an programs under the Act, including a new source review under 40 CFR
efficient and effective transition to EPA- 52.21(u), and issuing Federal operating
approved programs. 10 This information includes identifying the permits under 40 CFR 71.4(j) and 71.10.
Our interpretation of section 301(d) of specific rules and provisions and the area of Indian The process we would follow to
the Act as authorizing our country for which the delegation is requested. In delegate the administration of the
addition, tribal agencies seeking delegation must
implementation throughout Indian provide a statement by the tribe’s legal counsel or
Federal NSR program to a tribal agency
country is also supported by the equivalent official including a statement that the is similar to the process we follow to
legislative history. See S. Rep. No. 228, tribe is recognized by the Secretary of the Interior, delegate the administration of Federal
101st Cong., 1st Sess. 80 (1989) (noting a descriptive statement demonstrating that the tribe programs to States. Prior to finalizing
is currently carrying out substantial governmental
that section 301(d) of the Act authorizes duties and powers over a defined area (this
any delegation agreement with a tribal
the EPA to implement provisions of the statement should be consistent with the type of agency, we would consult with other
Act throughout ‘‘Indian country’’ when information described in 40 CFR 49.7(a)(2), which Federal, State, tribal, or local
there is no approved tribal program); Id. relates to the separate process by which tribes apply governmental entities, or other
to be treated in a similar manner as States for
at 80 (noting that criminal sanctions are governmental agencies in the area, as
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various purposes under the Act), a description of


to be levied by the EPA, ‘‘consistent the laws of the tribe that provide adequate authority appropriate. Although sections 110(o)
with the Federal government’s general to administer the Federal rules and provisions for and 301(d) of the Act and the TAR
authority in Indian country’’); Id. at 79 which the delegation is requested, and a descriptive authorize us to review and approve
statement demonstrating that the tribal agency has,
(the purpose of section 301(d) is to or will have, the technical capability and adequate
TIPs, neither the Act nor the regulations
‘‘improve the environmental quality of resources to administer the Federal rules and provide that approval of tribal programs
the air within Indian country in a provisions for which the delegation is requested. under tribal law is the sole mechanism

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48722 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

available for tribal agencies to take on adequate capacity and authority to carry issuance of any permit that we
permitting responsibilities. Accordingly, out the delegated activities. For determine not to be in compliance with
we propose to exercise our discretion to example, where a tribe seeks the requirements under the program or
delegate administration of the Federal administrative delegation for permit other requirements pursuant to
NSR program to interested tribal issuing activities of the Federal regulations under the Act. For any such
agencies satisfying the requirements of program, the tribe may, among other objections, we will outline the reasons
proposed 40 CFR 49.160 and 49.172. things, need to show it has in place an for the objection in writing, and we will
The delegation of administration of appropriate agency with legal authority provide a copy of the written statement
the Federal NSR program to tribes to review applications and issue permits to the permit applicant. The delegate
proposed in these rules is to be on behalf of the delegate tribal tribal agency may not issue a permit if
distinguished from our interpretation government. For these administratively we object to its issuance in writing. The
that the Act constitutes a delegation of delegated programs, Federal program delegate tribal agency may submit a
Federal authority from Congress to requirements will continue to be subject revised draft permit to us in response to
tribes over their reservations as to enforcement by us, not the delegate the objection. However, if it does not do
described in the TAR. See 63 FR 7254– tribal agency, under Federal law. so within 90 days, we will issue or deny
59. As described in the preamble to the Administrative appeals of permitting the permit in accordance with the
TAR, it is our position that the TAS decisions would also continue to be requirements of the Federal minor or
provision of the Act constitutes a made directly to the EAB under our major NSR program, as applicable.
statutory delegation of authority to administrative procedures with any
eligible tribes over their reservations. As C. What happens to permits previously
subsequent judicial review to be
described earlier, the TAR established issued by States to sources in Indian
conducted in Federal court. In the
procedures for our approval of tribal country?
proposed rules we make it clear that we
eligibility applications to operate the will not delegate enforcement or appeal As discussed previously, section
programs of the Act under tribal law. components of the program to tribal 301(d) of the Act recognizes the
Where we approve a tribal eligibility agencies. authority of eligible tribes to implement
application and approve a tribal NSR In order to be delegated authority to the Act throughout their reservations
program, the approved tribe will administer the proposed rules for a and other areas under their jurisdiction.
manage the program under tribal law, particular area of Indian country, the Historically, sources in some areas of
and the tribal program becomes authorized representative of a tribal Indian country may have received
federally enforceable. Among the agency must demonstrate that it has the permits from States operating EPA-
required elements of a tribal eligibility authority and technical capability to approved programs. However, States
application under the TAR is a carry out the provisions of the rules for generally lack jurisdiction under the Act
demonstration of the tribe’s authority, which delegation is requested. When over these facilities and generally were
including appropriate enforcement delegation is approved, a Partial not authorized under the Act to issue
authority, to regulate air quality for the Delegation of Administrative Authority such permits in Indian country. We also
areas to be covered by the program. For Agreement between the Administrator recognize that just as it required many
air resources within the exterior and the tribal agency will set forth the years to develop State and Federal
boundaries of a tribe’s reservation, the terms and conditions of the delegation, programs to cover lands subject to State
tribe may rely on the Congressional and will also specify the rules and jurisdiction, it will also require time to
delegation of Federal authority to provisions that the tribal agency is develop tribal and Federal programs to
operate approved tribal programs. authorized to implement. Once the cover areas of Indian country.
Tribes may also attempt to demonstrate delegation becomes effective, the tribal We have also mentioned before that
authority to operate the programs of the agency will have the authority under the we will ‘‘promulgate without
Act over other areas outside of their Act, to the extent specified in the unreasonable delay such Federal
reservations, generally including non- Agreement, to administer the rules in implementation plan provisions as are
reservation areas of Indian country. effect for the particular area of Indian necessary or appropriate to protect air
In contrast, the delegation approach country, and to act on behalf of the quality, consistent with the provisions
proposed in these rules provides for us Administrator. The Federal of sections 301(a) and 301(d)(4) [of the
to delegate administration of the Federal requirements administered by the Act], if a tribe does not submit a tribal
program operating under Federal law to delegate tribal agency will be subject to implementation plan. * * *’’ See 40
interested tribes that provide the enforcement by us under Federal law. CFR 49.11(a). Today’s proposed
information described in proposed 40 When we have delegated rulemaking would provide a mechanism
CFR 49.160(b)(1) and 49.172(b)(1). Since administration of the portion of the to change State permits issued to major
this program operates throughout Indian Federal minor or major NSR program sources of regulated NSR pollutants in
country under Federal authority, tribes that includes receipt of permit nonattainment areas of Indian country
would not need to demonstrate either application materials and preparation of to Federal major NSR permits. If you
Congressionally-delegated authority draft permits, the delegate tribal agency own or operate a major stationary source
over air resources within the exterior must provide us a copy of each permit with a State-issued nonattainment major
boundaries of their reservations or application (including any application NSR permit, you must apply to convert
authority of non-reservation areas of for permit revision) and each draft the permit to a Federal permit under
Indian country. Instead, tribal agencies permit.11 In any such delegation, we this program within 1 year of the
would assist us in implementing the retain the authority to object to the effective date of this program. In this
Federal program by taking delegation of case, you would not be subject to any
sroberts on PROD1PC70 with PROPOSALS

the administration of particular 11 The proposed minor and major NSR programs additional requirements under this
activities conducted under our authority provide that the delegate tribal agency may require program. See proposed 40 CFR
in Indian country. Under proposed 40 the applicant to provide a copy of the permit 49.168(b).
application directly to us. In addition, with our
CFR 49.160(b)(1)(iii)(C) and consent, the delegate tribal agency may submit to
The requirements contained in these
49.172(b)(1)(iii)(C), tribes would only us a permit application summary form and any State-issued permits have been relied on
need to show that their laws provide relevant portion of the permit application. for protection of attainment and

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48723

maintenance of air quality in these stationary sources subject to the rules; unless it displays a currently valid OMB
nonattainment areas. We believe that and (2) ensure that the stationary source control number. The OMB control
transforming the State permits in to control requirements are being numbers for the EPA’s rules are listed in
Federal major NSR permits for major achieved. The information would be 40 CFR part 9 and 48 CFR chapter 15.
sources in Indian country is appropriate used by the EPA or tribal enforcement To comment on the Agency’s need for
to protect air quality in Indian country, personnel to (1) Identify stationary this information, the accuracy of the
as the tribes take on the effort to develop sources subject to the rules, (2) ensure provided burden estimates, and any
and/or run their own programs. that appropriate control technology is suggested methods for minimizing
being properly applied, and (3) ensure respondent burden, including the use of
VI. Statutory and Executive Order that the emission control devices are
Reviews automated collection techniques, EPA
being properly operated and maintained has established a public docket for this
A. Executive Order 12866: Regulatory on a continuous basis. Based on the rule, which includes this ICR, under
Planning and Review reported information, the delegate tribes Docket ID number EPA–HQ–OAR–
can decide which plants, records, or 2003–0075. Submit any comments
Under Executive Order 12866, (58 FR
processes should be inspected. related to the ICR for this proposed rule
51735, October 4, 1993), we must The major nonattainment NSR rule
determine whether the regulatory action to EPA and OMB. See ADDRESSES
would have little impact on existing section at the beginning of this notice
is ‘‘significant’’ and therefore subject to major stationary sources in Indian
Office of Management and Budget for where to submit comments to EPA.
country because it would only affect Send comments to OMB at the Office of
(OMB) review and the requirements of such owners and operators if they
the Executive Order. The Executive Information and Regulatory Affairs,
propose a major modification; none are Office of Management and Budget, 725
Order defines a ‘‘significant regulatory expected. The proposed rule would only
action’’ as one that is likely to result in 17th Street, NW., Washington, DC
result in an administrative change for 20503, Attention: Desk Office for EPA.
a rule that may: new major sources in Indian country
(1) Have an annual effect on the Since OMB is required to make a
because, although the regulatory decision concerning the ICR between 30
economy of $100 million or more or mechanism to issue permits is not yet
adversely affect in a material way the and 60 days after August 21, 2006, a
available in the form of either a Federal comment to OMB is best assured of
economy, a sector of the economy, nonattainment NSR rule or a TIP, we
productivity, competition, jobs, the having its full effect if OMB receives it
would be required to implement the by September 20, 2006. The final rule
environment, public health or safety, or program in Indian country, and would
State, local, or tribal governments or will respond to any OMB or public
otherwise have to do source-specific comments on the information collection
communities; FIP. As a result, there would no new or
(2) Create a serious inconsistency or requirements contained in this proposal.
additional burden on industry.
otherwise interfere with an action taken With regard to the minor source C. Regulatory Flexibility Act (RFA)
or planned by another agency; permitting rule, the average capital cost
(3) Materially alter the budgetary The RFA generally requires an agency
per facility for the one-time activities is
impact of entitlements, grants, user fees, to prepare a regulatory flexibility
$13,088 per source; annualized, this
or loan programs, or the rights and analysis of any rule subject to notice
cost is $1,863 per year per source. The
obligation of recipients thereof; or and comment rulemaking requirements
total of the various annualized and
(4) Raise novel legal or policy issues recurring costs is an average of $7,598 under the Administrative Procedure Act
arising out of legal mandates, the per year per source. The annual or any other statute unless the agency
President’s priorities, or the principles reporting and record keeping cost certifies that the rule will not have a
set forth in the Executive Order. burden is a total annualized capital/ significant economic impact on a
Pursuant to the terms of Executive startup costs of $77,000, and total substantial number of small entities.
Order 12866, it has been determined annual costs (operation and Small entities include small businesses,
that this is a ‘‘significant regulatory maintenance) of $235,000. small organizations, and small
action’’. We have submitted this action Burden means the total time, effort, or governmental jurisdictions.
to OMB for review. Changes made in financial resources expended by persons For purposes of assessing the impacts
response to OMB suggestions or to generate, maintain, retain, or disclose of today’s proposed rule on small
recommendations will be documented or provide information to or for a entities, ‘‘small entity’’ is defined as: (1)
in the public record. Federal agency. This includes the time A small business as defined by the
needed to review instructions; develop, Small Business Administration’s
B. Paperwork Reduction Act regulations at 13 CFR 121.201; (2) a
acquire, install, and utilize technology
The information collection and systems for the purposes of small governmental jurisdiction that is a
requirements in the proposed collecting, validating, and verifying government or a city, county, town,
amendments have been submitted for information, processing and school district or special district with a
approval to OMB under the Paperwork maintaining information, and disclosing population of less than 50,000; and (3)
Reduction Act, 44 U.S.C. 3501, et seq. and providing information; adjust the a small organization that is any not-for-
The Information Collection Request existing ways to comply with any profit enterprise which is independently
(ICR) document prepared by EPA has previously applicable instructions and owned and operated and is not
been assigned OMB Control Number requirements; train personnel to be able dominant in its field. Today’s proposed
2060–0003 (EPA ICR No. 1230.13). to respond to a collection of rule only potentially affects small
Certain records and reports are information; search data sources; businesses, not small governments or
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necessary for the tribal agency (or the complete and review the collection of small organizations.
EPA Administrator in non-delegated information; and transmit or otherwise The proposed rule potentially affects
areas), for example, to: (1) Confirm the disclose the information. six types of stationary sources in Indian
compliance status of stationary sources, An agency may not conduct or Country:
identify any stationary sources not sponsor, and a person is not required to • New and modified minor sources of
subject to the standards, and identify respond to, a collection of information regulated NSR pollutants;

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

• Sources of regulated NSR pollutants is entirely optional; rational firms created in Indian country by applying
choosing to accept enforceable emission would only make this choice if it the estimated growth rate for American
limitations to avoid major source resulted in a cost savings. For these four Indian/Alaska Native (AI/AN)
regulations (synthetic minors); types of sources, therefore, no adverse population in each State to the
• Sources of HAP choosing to accept economic impacts are expected to any estimated baseline number of sources in
enforceable emission limitations to businesses, including small businesses. Indian country in the State. Over the
avoid major source regulations period from promulgation (2004)
The screening assessment therefore
(synthetic minors); through (2010), we estimate that 288
• Minor modifications to major focused on costs and impacts for new
and modified minor sources and minor new minor sources will be created in
sources of regulated NSR pollutants; Indian country. We used data from
• New major sources of regulated modifications at major sources. To
analyze potential impacts to small financial databases to compute the share
NSR pollutants in nonattainment areas; of companies in each sector that are
and companies owning such sources, we
first estimated the number of new owned by small businesses (based on
• Major modifications to major the Small Business Administration
sources of regulated NSR pollutants in sources that would be sited in Indian
country over the period 2004 through small business size definitions at 13
nonattainment areas. CFR part 121). Assuming that the same
The second, third, fifth, and sixth 2010, the time period selected for the
analysis.12 Generally, data on minor share of new minor sources will be
types of sources are projected to incur
sources in Indian country is very owned by small businesses, we estimate
no incremental costs or to experience
limited. We conducted an exhaustive that 164 new minor source facilities,
cost savings due to the proposed rule.
search for information available from owned by 143 small businesses, will be
The rule results in only an
administrative change for new major EPA databases, the Small Business created in Indian country during the
sources in nonattainment areas. In the Administration, and EPA Regional period. Additionally, we project that
absence of the proposed rule, there is no Offices. We also encouraged the tribes to 112 modifications to existing minor
regulatory mechanism to issue permits. participate in the rulemaking, and sources will occur during the period
We would be required to implement the inquired whether tribes had any 2004 through 2010. Of these, we
program in Indian country, and such information on minor sources but no estimate that 51 small businesses will
new major sources would have to be data were received. We concluded that own 62 existing minor sources
permitted through a source-specific FIP. the information in 11 tribal emissions undergoing modifications during the
The proposed rule would provide a inventories maintained by EPA/OAQPS period.
regulatory mechanism for permitting provided the best characterization of the Finally, we estimate that one major
such sources; because the compliance types of minor sources that currently source in Indian country will make a
requirements are expected to be exist and the types of new minor minor modification to its operations
unchanged by the proposed rule, no sources that might be sited in Indian each year. Thus, we estimate that seven
change in control costs is expected. country in the future. We collected data minor modifications to existing major
Because the permitting process may be from the Economic Census (1997) on the sources will occur over the period 2004
less uncertain under the proposed rule, number of establishments of each type to 2010. Of these, we estimate that 3 of
new and modifying major sources could in each State, and allocated the these major sources will be owned by 3
potentially experience cost savings establishments to Indian country based small businesses.
compared to baseline conditions. on tribes’ share of State income. Then, Table 3 below summarizes the
Choosing to accept enforceable emission we projected the number of new minor estimated numbers of affected facilities
limitations (become a synthetic minor) sources of each type that would be and small businesses.

TABLE 3.—PROJECTED NUMBER OF AFFECTED SMALL BUSINESSES AND ESTIMATED COSTS INCURRED BY SMALL
BUSINESSES
[2004 through 2010]

Projected number of Estimated costs incurred


Estimated number of
Source type sources owned by small by small businesses
small businesses
businesses ($ million) a

New Minor Sources ..................................................................... 164 143 $2.68


Modified Minor Sources ............................................................... 62 51 0.97
Minor Modifications to Major Sources ......................................... 3 3 0.02

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


a Based on Year 2000 dollars.

To conduct our screening analysis of Based on the screening analysis of small businesses, two (a natural gas
impacts on small businesses, we impacts on small entities, we certify that compressor station and a landfill) will
compared the estimated costs of this action will not have a significant experience costs greater than 1 percent
compliance for each type of source in economic impact on a substantial of sales and none will experience costs
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each sector with typical small business number of small entities. Our analysis exceeding 3 percent of sales due to the
sales in each sector. estimates that, of the projected 164 new proposed rule. Of the estimated 62
minor source facilities owned by 143 existing minor source facilities owned
12 Based upon our evaluation of current Tribal has not changed significantly to date; therefore, the supporting statement and this RFA. This analysis
emission inventories and the application of updated May, 2003 analysis for the period 2004–2010 will be updated for the final rulemaking.
growth rates, we have determined that the analysis remains valid for the EIA, the associated ICR

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

by 51 small businesses projected to proposals with significant Federal Under section 6 of Executive Order
perform minor modifications that result intergovernmental mandates, and 13132, we may not issue a regulation
in emissions increases greater than the informing, educating, and advising that has federalism implications, that
minor NSR thresholds in Table 1, three small governments on compliance with imposes substantial direct compliance
may experience costs approximately the regulatory requirements. costs, and that is not required by statute,
equal to 1 percent of sales; none We have determined that this unless the Federal government provides
experience costs exceeding 3 percent of proposed rule does not contain a the funds necessary to pay the direct
sales. The three major source facilities Federal mandate that may result in compliance costs incurred by State and
owned by small businesses projected to expenditures of $100 million or more local governments, or we consult with
perform minor modifications during the for State, local, and tribal governments, State and local officials early in the
period 2004 through 2010 will incur in the aggregate, or the private sector in process of developing the proposed
only the costs of obtaining a minor any 1 year. The maximum total annual regulation. We also may not issue a
source permit, which represent a very cost of this proposed rule for any 1 year regulation that has federalism
small share of baseline company sales. has been estimated to be $312,000. implications and that preempts State
Therefore, of these 229 potentially Thus, today’s proposed rule is not law, unless we consult with State and
affected facilities owned by an subject to the requirements of sections local officials early in the process of
estimated 197 small businesses, only 5 202 and 205 of the UMRA. In addition, developing the proposed regulation.
are projected to incur costs exceeding 1 we have determined that this proposed This proposed rule does not have
percent of company sales, and none is rule contains no regulatory federalism implications. It would not
projected to incur costs greater than 3 requirements that might significantly or have substantial direct effects on the
percent of company sales. Thus, the uniquely affect small governments States, on the relationship between the
proposed rule will not impose a because it contains no requirements that national government and the States, or
significant economic impact on a apply to such governments or impose on the distribution of power and
substantial number of small entities. obligations upon them. Therefore, responsibilities among the various
today’s proposed rule is not subject to levels of government, as specified in
D. Unfunded Mandates Reform Act the requirements of section 203 of the Executive Order 13132. Pursuant to the
Title II of the Unfunded Mandates UMRA. terms of Executive Order 13132, it has
Reform Act of 1995 (UMRA), Public The proposed rule does not require been determined that this proposed rule
Law 104–4, establishes requirements for that any tribe accept delegation or does not have ‘‘federalism implications’’
Federal agencies to assess the effects of develop their own permitting program; because it does not meet the necessary
their regulatory actions on State, local, thus, it does not impose any burden on criteria. Thus, the requirements of
and tribal governments and the private small tribes. We recognize, however, section 6 of the Executive Order do not
sector. Under section 202 of the UMRA, that some small tribes may choose to apply to this proposed rule.
we generally must prepare a written assist EPA with administration of the In the spirit of Executive Order 13132,
statement, including a cost-benefit minor NSR program on their and consistent with our policy to
analysis, for proposed and final rules reservations. We thus analyzed the costs promote communications between us
with ‘‘Federal mandates’’ that may to small tribes if they did make this and State and local governments, we
result in expenditures to State, local, choice, using small tribes that have specifically solicit comment on this
and tribal governments, in aggregate, or chosen to develop their own air proposed rule from State and local
to the private sector, of $100 million or programs as examples of the types of officials. We felt it was important to
more in any 1 year. Before promulgating tribes that might choose to assist EPA ensure that the State and local air
an EPA rule for which a written with administration of the minor new pollution control agencies and small
statement is needed, section 205 of the source permitting program. We found business concerns had an opportunity to
UMRA generally requires us to identify that the cost per tribal member was less interact with development of this rule.
and consider a reasonable number of than $1 per year, and represented less To that end, we had two meetings with
regulatory alternatives and adopt the than 0.01 percent of the per capita the STAPPA/ALAPCO to present the
least costly, most cost-effective, or least income of tribal members. Thus, if the draft preamble and rule. We also met
burdensome alternative that achieves costs of developing and implementing a with the National Federation of
the objectives of the rule. The permitting program for new minor Independent Business and provided
provisions of section 205 do not apply sources were borne by the tribes’ outreach material through the small
when they are inconsistent with members, it would not be a significant business ombudsman’s office to get
applicable law. Moreover, section 205 burden to them. input from the small businesses that
allows us to adopt an alternative other might be affected by this rule.
than the least-costly, most cost-effective, E. Executive Order 13132: Federalism
or least-burdensome alternative if the Executive Order 13132 (64 FR 43255, F. Executive Order 13175: Consultation
Administrator publishes with the final August 10, 1999), requires us to develop and Coordination With Indian Tribal
rule an explanation why that alternative an accountable process to ensure Governments
was not adopted. Before we establish ‘‘meaningful and timely input by State Executive Order 13175 (65 FR 67249,
any regulatory requirements that may and local officials in the development of November 6, 2000), requires us to
significantly or uniquely affect small regulatory policies that have federalism develop an accountable process to
governments, including tribal implications.’’ ‘‘Policies that have ensure ‘‘meaningful and timely input by
governments, we must have developed federalism implications’’ is defined in tribal officials in the development of
under section 203 of the UMRA a small the Executive Order to include regulatory policies that have tribal
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government agency plan. The plan must regulations that have ‘‘substantial direct implications.’’
provide for notifying potentially effects on the States, on the relationship The EPA has concluded that this rule
affected small governments, enabling between the national government and will have tribal implications, since it
officials of affected small governments the States, or on the distribution of provides two preconstruction air
to have meaningful and timely input in power and responsibilities among the permitting rules for stationary sources
the development of our regulatory various levels of government.’’ in Indian Country. These rules will be

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

implemented by EPA, or a delegate Tribal Environmental Council, Inter and adverse human health
tribal agency assisting EPA with Tribal Council of Arizona, and others. environmental effects of its programs,
administration of the rules, until In addition to the meetings, we also policies, and activities on minorities
replaced by an EPA-approved tribal have an ongoing workgroup of tribal and low-income populations.
implementation plan. However, it will environmental staff that has worked The EPA believes that the two
neither impose substantial direct with us on developing these rules. We preconstruction air quality regulations
compliance costs on tribal governments, propose to continue with this proposed in this FIP should not raise
nor preempt Tribal law. consultation and outreach process until any environmental justice issues. These
The EPA consulted with tribal we promulgate this rulemaking package. regulations would provide regulatory
officials early in the process of EPA specifically solicits additional certainty and fill a regulatory gap in
developing this regulation to permit comment on this proposed rule from Indian Country and result in emissions
them to have meaningful and timely tribal officials. reductions from sources complying with
input into its development. In these regulations. Consequently, the
undertaking this rulemaking effort we G. Executive Order 13045: Protection of
Children From Environmental Health & regulations should result in some health
wanted to ensure that the tribes were benefits to persons living in Indian
included in the rulemaking process Safety Risks
Country, many of whom live in low-
from the beginning of the rule Executive Order 13045 (62 FR 19885, income and minority communities.
development effort. On June 24, 2002, April 23, 1997) applies to any rule that: Therefore, we believe that these
we sent letters to tribal leaders seeking (1) Is determined to be ‘‘economically regulations would not have a
their input on how we could best significant’’ as defined under Executive disproportionate adverse effect on the
consult with the tribes on the Order 12866, and (2) concerns an health or safety of minority or low
rulemaking effort. environmental health or safety risk that income populations.
We received responses from 75 tribes. we have reason to believe may have a
Of these 75 tribes, 69 designated an disproportionate effect on children. If J. National Technology Transfer
environmental staff member to work the regulatory action meets both criteria, Advancement Act
with us on developing the rule. Aside we must evaluate the environmental Section 12(d) of the National
from the staff designated to help with health or safety effects of the planned Technology Transfer and Advancement
the rulemaking process, many tribal rule on children, and explain why the Act of 1995 (NTTAA), Public Law 104–
leaders wished to be kept informed of planned regulation is preferable to other 113, 12(d) (15 U.S.C. 272 note) directs
the rule development. Many of the tribal potentially effective and reasonably us to use voluntary consensus standards
leaders indicated that they wished to be feasible alternatives that we considered. (VCS) in our regulatory and
kept informed through e-mail, meetings We interpret Executive Order 13045 procurement activities unless to do so
with the EPA Regional Offices, as applying only to those regulatory would be inconsistent with applicable
newsletters, and Web sites. However, 53 actions that are based on health or safety law or otherwise impractical. The VCS
percent of the tribal leaders also risks, such that the analysis required are technical standards (e.g., materials
requested direct phone calls or under section 5–501 of the Executive specifications, test methods, sampling
conference calls to discuss the subject. Order has the potential to influence the procedures, and business practices)
Only 16 percent of the respondents regulation. This proposed rule is not developed or adopted by one or more
requested face-to-face consultation. subject to Executive Order 13045 voluntary consensus bodies. The
Even among the tribes requesting face- because it does not establish NTTAA directs us to provide Congress,
to-face consultation, there was some environmental standards based on an through annual reports to OMB, with
degree of latitude, with only six tribes assessment of health or safety risks. explanations when we do not use
requesting senior EPA staff to meet with Furthermore, this proposed rule has available and applicable VCS.
tribal leaders. been determined not to be
As a result of this feedback we This proposed rule does not involve
‘‘economically significant’’ as defined technical standards. Therefore, we are
developed a consultation/outreach plan under Executive Order 12866.
which included three meetings held at not considering the use of any voluntary
the reservations of the Menominee Tribe H. Executive Order 13211: Actions That consensus standards.
in Wisconsin, the Mohegan Tribe in Significantly Affect Energy Supply, VII. Statutory Authority
Connecticut, and the Chehalis Tribe in Distribution, or Use
Washington. A fourth meeting was held The statutory authority for this
This proposed rule is not a
in conjunction with the Institute of proposed action is provided by sections
‘‘significant energy action’’ as defined in
Tribal Environmental Professionals’ 101, 110, 112, 114, 116, and 301 of the
Executive Order 13211,‘‘Actions
(ITEP) anniversary meeting in Flagstaff, Act as amended (42 U.S.C. 7401, 7410,
Concerning Regulations that
Arizona. In addition to conducting these 7412, 7414, 7416, and 7601).
Significantly Affect Energy Supply,
national meetings, we also visited tribal Distribution, or Use’’ (66 FR 28355, May List of Subjects
environmental staff on tribal lands, 22, 2001) because it is not likely to have
where time and travel permitted. Over 40 CFR Part 49
a significant adverse effect on the
30 tribes attended these meetings. We supply, distribution, or use of energy. Administrative practices and
have also provided outreach to the procedures, Air pollution control,
tribes in numerous national and I. Executive Order 12898: Federal Environmental protection, Indians,
regional forums including the National Actions To Address Environmental Intergovernmental relations, Reporting
Tribal Forums put on by the Institute of Justice in Minority Populations and and recordkeeping requirements.
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Tribal Environmental Professionals, two Low-Income Populations


National Tribal Air Association Executive Order 12898 requires that 40 CFR Part 51
meetings, and at meetings with tribal each Federal agency make achieving Administrative practices and
consortia, such as the National Tribal environmental justice part of its mission procedures, Air pollution control,
Environmental Council, United by identifying and addressing, as Environmental protection,
Southern and Eastern Tribes, Inter appropriate, disproportionately high Intergovernmental relations.

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Dated: August 9, 2006. implementation plan becomes effective, submit an air quality analysis upon
Stephen L. Johnson, provided that the implementation plan request by the reviewing authority.
Administrator. includes provisions that comply with (5) The reviewing authority
the requirements of section 110(a)(2)(C) determines that the new or modified
For the reasons cited in the preamble, source will not cause or contribute to a
of the Act for the construction and
title 40, chapter I of the Code of Federal NAAQS or PSD increment violation.
modification of minor sources and
Regulations is proposed to be amended (6) The reviewing authority develops
minor modifications at major stationary
as follows: a draft permit that meets the permit
sources.
PART 49—[AMENDED] (d) What general provisions apply content requirements of § 49.155(a).
under this program? The following (7) The reviewing authority provides
1. The authority citation for part 49 general provisions apply to you as an for public participation according to the
continues to read as follows: owner/operator of a stationary source: requirements of § 49.157.
Authority: 42 U.S.C. 7401, et seq. (1) If you propose to construct a new (8) The reviewing authority either
minor source, a modification at an issues a final permit that meets the
Subpart C—[Amended] existing minor source, or a minor requirements of § 49.155(a), or denies
modification at an existing major the permit and provides reasons for the
2. Subpart C of Part 49 is amended by stationary source that would be subject denial.
adding an undesignated center heading to this program, you must obtain a
and §§ 49.151 through 49.160, and minor NSR permit under this program § 49.152 Definitions.
adding and reserving §§ 49.161 through before beginning actual construction. If (a) For sources of regulated NSR
49.165 to read as follows: you commence construction after the pollutants in nonattainment areas, the
Federal Minor New Source Review effective date of this program without definitions in § 49.167 apply to the
Program in Indian Country applying for and receiving a permit extent that they are used in this program
pursuant to this program, you will be (except for terms defined in paragraph
§ 49.151 Program overview. subject to appropriate enforcement (d) of this section).
(a) What constitutes the Federal minor action. (b) For sources of regulated NSR
new source review (NSR) program in (2) If you construct or operate your pollutants in attainment or
Indian country? As set forth in this source or modification not in unclassifiable areas, the definitions in
Federal Implementation Plan (FIP), the accordance with the terms of your § 52.21 of this chapter apply to the
Federal minor NSR program in Indian minor NSR permit, you will be subject extent that they are used in this program
country (or ‘‘program’’) consists of to appropriate enforcement action. (except for terms defined in paragraph
§§ 49.151 through 49.165. (3) Issuance of a permit does not (d) of this section).
(b) What is the purpose of this relieve you of the responsibility to (c) For sources of HAP, the definitions
program? This program has the comply fully with applicable provisions in § 63.2 of this chapter apply to the
following purposes: of any EPA-approved implementation extent that they are used in this program
(1) It establishes a preconstruction plan or FIP and any other requirements (except for terms defined in paragraph
permitting program for new and under applicable law. (d) of this section).
modified minor stationary sources (4) Nothing in this program prevents (d) The following definitions also
(minor sources) and minor a tribe from administering a minor NSR apply to this program: Affected
modifications at major stationary permit program with more stringent emissions units means the following
sources located in Indian country to requirements in an approved Tribal emissions units, as applicable:
meet the requirements of section Implementation Plan (TIP). (1) For a proposed new minor source,
110(a)(2)(C) of the Act. (e) What is the process for issuing all the emissions units.
(2) It also provides a mechanism for permits under this program? For the (2) For a proposed modification, the
an otherwise major stationary source to reviewing authority to issue a final new, modified, and replacement
voluntarily accept restrictions on its permit decision under this program emissions units involved in the
potential to emit to become a synthetic (other than a general permit under modification.
minor source. This mechanism also may § 49.156), all the actions listed in (3) For an existing minor source
be used by an otherwise major source of paragraphs (e)(1) through (8) of this applying for a minor source PAL, all the
Hazardous Air Pollutants (HAPs) to section need to be completed. This emissions units that emit the PAL
voluntarily accept restrictions on its paragraph (e) does not apply to general pollutant. However, such units are
potential to emit to become a synthetic permits. considered affected emissions units
minor HAP source. Such restrictions (1) You must submit a permit only for the PAL pollutant.
must be enforceable as a practical application that meets the requirements Allowable emissions means
matter. of § 49.154(a). ‘‘allowable emissions’’ as defined in
(3) It sets forth the criteria and (2) The reviewing authority § 52.21(b)(16) of this chapter, except
procedures that the reviewing authority determines completeness of the permit that the allowable emissions for any
(as defined in § 49.152(d)) will use to application as provided in § 49.154(b). emissions unit are calculated
administer the program. (3) The reviewing authority considering any emission limitations
(c) When and where does this determines the appropriate emission that are enforceable as a practical matter
program apply? (1) The provisions of limitations for your affected emissions on the emissions unit’s potential to
this program apply in Indian country units under § 49.154(c). emit.
where there is no EPA-approved minor (4) In those rare instances where the Emission limitation means a
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NSR program, beginning on [60 days reviewing authority has reason to be requirement established by the
from publication of final rule]. concerned that the construction of your reviewing authority which limits the
(2) The provisions of this program minor source or modification would quantity, rate, or concentration of
cease to apply in an area covered by an cause or contribute to a NAAQS or emissions of air pollutants on a
EPA-approved implementation plan on Prevention of Significant Deterioration continuous basis, including any
the date that our approval of that (PSD) increment violation, you must requirement relating to the operation or

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maintenance of a source to assure Indian governing body means the § 52.21(b)(18) of this chapter, do not
continuous emissions reduction, and governing body of any tribe, band, or count in determining the potential to
any design standard, equipment group of Indians subject to the emit of a source.
standard, work practice, operational jurisdiction of the United States and Reviewing authority means the
standard, or pollution prevention recognized by the United States as Administrator, and may mean an Indian
technique. possessing power of self-government. tribe in cases where a tribal agency is
Enforceable as a practical matter Minor modification at a major assisting EPA with administration of the
means that an emission limitation is stationary source means a modification program through a delegation.
both legally and practically enforceable at a major stationary source that does Synthetic minor HAP source means a
as follows: not qualify as a major modification source that otherwise has the potential
(1) An emission limitation is ‘‘legally under § 49.167 or § 52.21 of this chapter, to emit HAPs in amounts that are at or
enforceable’’ if the reviewing authority as applicable. above those for major sources of HAP in
has the right to enforce it. Minor NSR threshold means any of § 63.2 of this chapter, but that has taken
(2) Practical enforceability for an the applicability cutoffs for this program a restriction so that its potential to emit
emission limitation in a permit for a listed in Table 1 of § 49.153. is less than such amounts for major
source is achieved if the permit’s Minor source plantwide applicability sources. Such restrictions must be
provisions specify: limitation (PAL) means a source-wide enforceable as a practical matter.
(i) A limitation and the emissions limitation on allowable emissions of a Synthetic minor source means a
unit(s) at the source subject to the regulated NSR pollutant, expressed in source that otherwise has the potential
limitation; tons per year, that is established for a to emit regulated NSR pollutants in
(ii) The time period for the limitation minor source in a permit issued under amounts that are at or above those for
(e.g., hourly, daily, monthly, and/or § 49.155 and that is enforceable as a major stationary sources in § 49.167 or
annual limits such as rolling annual practical matter. § 52.21 of this chapter, as applicable,
limits); and Minor stationary source or minor but that has taken a restriction so that
(iii) The method to determine source means a source that emits or has its potential to emit is less than such
compliance, including appropriate the potential to emit regulated NSR amounts for major stationary sources.
monitoring, recordkeeping, reporting, pollutants in amounts that are less than Such restrictions must be enforceable as
and testing. the major stationary source levels in a practical matter. The term ‘‘synthetic
(3) For rules and general permits that § 49.167 or § 52.21 of this chapter, as minor source’’ applies independently
apply to categories of sources, applicable. The term ‘‘minor stationary for each regulated NSR pollutant that
practicable enforceability additionally source’’ applies independently to each the source has the potential to emit.
requires that the provisions: regulated NSR pollutant that the source
(i) Identify the types or categories of has the potential to emit. § 49.153 Applicability.
sources that are covered by the rule or Modification means any physical or (a) Does this program apply to me?
general permit; operational change at a source that The requirements of this program apply
(ii) Where coverage is optional, would cause an increase in the to you as set out in paragraphs (a)(1)
provide for notice to the reviewing allowable emissions of the affected through (5) of this section.
authority of the source’s election to be emissions units for any regulated NSR (1) New and modified sources. The
covered by the rule or general permit; pollutant or that would cause the applicability of the preconstruction
and emission of any regulated NSR pollutant review requirements of this program is
(iii) Specify the enforcement not previously emitted. The following determined individually for each
consequences relevant to the rule or exemptions apply: regulated NSR pollutant that would be
general permit. (1) A physical or operational change emitted by your new or modified
Environmental Appeals Board means does not include routine maintenance, source. For each such pollutant,
the Board within the EPA described in repair, or replacement. determine applicability as set out in the
§ 1.25(e) of this chapter. (2) An increase in the hours of relevant paragraph (a)(1)(i) or (ii) of this
Indian country, as defined in 18 operation or in the production rate is section. Flowcharts 1 through 6 of this
U.S.C. 1151, means the following: not considered an operational change section are provided as aids for making
(1) All land within the limits of any unless such increase is prohibited under these applicability determinations.
Indian reservation under the any federally-enforceable permit (i) New source. Use the following
jurisdiction of the United States condition or other permit condition that steps to determine applicability for each
government, notwithstanding the is enforceable as a practical matter. regulated NSR pollutant. Flowchart 2 of
issuance of any patent, and including (3) A change in ownership at a source this section addresses attainment and
rights-of-way running through the is not considered a modification. unclassifiable pollutants; Flowchart 4 of
reservation; 1 Potential to emit means the maximum this section addresses nonattainment
(2) All dependent Indian communities capacity of a source to emit a pollutant pollutants.
within the borders of the United States under its physical and operational (A) Step 1. For the pollutant being
whether within the original or design. Any physical or operational evaluated, determine whether your
subsequently acquired territory thereof, limitation on the capacity of the source proposed source is subject to review
and whether within or without the to emit a pollutant, including air under the applicable major NSR
limits of a State; and pollution control equipment and program (that is, under § 52.21 of this
(3) All Indian allotments, the Indian restrictions on hours of operation or on chapter, under the Federal major NSR
titles to which have not been the type or amount of material program for nonattainment areas in
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extinguished, including rights-of-way combusted, stored, or processed, shall Indian country at §§ 49.166 through
running through the same. be treated as part of its design if the 49.75, or under a program approved by
1 Under this definition, EPA treats as reservations
limitation or the effect it would have on the Administrator pursuant to § 51.165
trust lands validly set aside for the use of a tribe
emissions is federally enforceable or or § 51.166 of this chapter). If not, go to
even if the trust lands have not been formally enforceable as a practical matter. Step 2 (paragraph (a)(1)(i)(B) of this
designated as a reservation. Secondary emissions, as defined at section).

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(B) Step 2. Determine whether the (2) Increase in an emissions unit’s resulting from your proposed change
source’s potential to emit the pollutant annual allowable emissions limit. If you would be the sum of the following:
that you are evaluating is greater than or propose a physical or operational (i) For each new emissions unit that
equal to the corresponding minor NSR change at your minor or major is to be added, the emissions increase
threshold in Table 1 of this section. If stationary source that would increase an would be the potential to emit of the
it is, you are subject to the emissions unit’s allowable emissions of emissions unit.
preconstruction requirements of this a regulated NSR pollutant above its (ii) For each emissions unit with an
program for that pollutant. existing annual allowable emissions allowable emissions limit that is to be
(ii) Modification at an existing source. limit, you must obtain an increase in the changed or replaced, the emissions
If you propose to make a physical or limit prior to making the change. For a increase would be the allowable
operational change at an existing source, physical or operational change that is emissions of the emissions unit after the
determine whether the change qualifies not otherwise subject to review under change or replacement minus the
as a modification (as defined in major NSR or under this program, such allowable emissions prior to the change
§ 49.152) using the procedures in increase in the annual allowable or replacement. This may be a negative
paragraph (b) of this section to emissions limit can be accomplished value for an emissions unit if the
determine the increase in allowable through an administrative permit allowable emissions of the unit would
emissions. If the change is a revision as provided in § 49.159(f). be reduced as a result of the change or
modification, use the following steps to (3) Synthetic minor permits. If you replacement.
determine applicability for each propose to establish a synthetic minor (iii) For each unpermitted emissions
regulated NSR pollutant. Flowchart 3 of source or synthetic minor HAP source, unit that is to be changed or replaced,
this section addresses attainment and you must apply for a permit under the emissions increase is the allowable
unclassifiable pollutants; Flowchart 5 of § 49.158. Additionally, if you currently emissions of the emissions unit after the
this section addresses nonattainment own or operate such a source that was change or replacement minus the
pollutants. Flowchart 6 addresses minor established by maintaining your actual potential to emit prior to the change or
NSR applicability. Note that if the emissions at less than 50 percent of the replacement. This may be a negative
physical or operational change is not a relevant major source threshold, you value for an emissions unit if its post-
modification under this program, it may must obtain a synthetic minor permit change allowable emissions would be
still be subject to some requirements under this program according to the less than its pre-change potential to
under this program; See paragraphs requirements of § 49.158. emit.
(a)(2) through (5) of this section. (4) Minor source PALs. If you propose
(c) What emissions units and
to establish a minor source PAL for your
(A) Step 1. For the pollutant being activities are exempt from this program?
existing minor source, you must apply
evaluated, determine whether your This program does not apply to the
for a permit under § 49.154.
proposed modification is subject to following emissions units and activities
(5) Case-by-case maximum achievable
review under the applicable major NSR at a source that are listed in paragraphs
control technology (MACT)
program. If not, go to Step 2 (paragraph (c)(1) through (10) of this section.
determinations. If you propose to
(a)(1)(ii)(B) of this section). construct or reconstruct a major source (1) Mobile sources.
(B) Step 2. Does your existing source of HAPs such that you are subject to a (2) Air-conditioning units used for
have a minor source PAL for the case-by-case MACT determination comfort that are not subject to
pollutant that you are evaluating? If so, under section 112(g)(2) of the Act, you applicable requirements under title VI
you are subject to the preconstruction may elect to have this determination of the Act and do not exhaust air
requirements of this program for that approved under the provisions of this pollutants into the ambient air from any
pollutant. If not, go to Step 3 (paragraph program. (Other options for such manufacturing or other industrial
(a)(1)(ii)(C) of this section). determinations include a title V permit process.
(C) Step 3. Determine whether the action or a Notice of MACT Approval (3) Ventilating units used for comfort
increase in allowable emissions from under § 63.43 of this chapter.) If you that do not exhaust air pollutants into
the proposed modification (calculated elect this option, you still must comply the ambient air from any manufacturing
using the procedures of paragraph (b) of with the requirements of § 63.43 of this or other industrial process.
this section) would be greater than or chapter that apply to all case-by-case (4) Heating units used for comfort that
equal to the minor NSR threshold in MACT determinations. do not provide heat for any
Table 1 of this section for the pollutant (b) How do I determine the increase manufacturing or other industrial
that you are evaluating. If it is, you are in allowable emissions from a physical process.
subject to the preconstruction or operational change at my source? (5) Noncommercial food preparation.
requirements of this program for that Determine the resulting increase in (6) Consumer use of office equipment
pollutant. If not, go to Step 4 (paragraph allowable emissions in tons per year and products.
(a)(1)(ii)(D) of this section). (tpy) of each regulated NSR pollutant (7) Janitorial services and consumer
(D) Step 4. If any of the emissions after considering all increases and use of janitorial products.
units affected by your proposed decreases from the change according to (8) Internal combustion engines used
modification currently has an annual paragraph (b)(1) or (2) of this section, as for landscaping purposes.
allowable emissions limit for the applicable. A physical or operational (9) Bench scale laboratory activities,
pollutant that you are evaluating, change may involve one or more except for laboratory fume hoods or
determine whether the modification emissions units. vents.
would increase any such unit’s (1) For a change at a minor source (10) Any emissions unit or activity
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allowable emissions above its existing with a minor source PAL, the emissions that does not emit or have the potential
limit. If so, the proposed modification is increase would be the PAL level after to emit a regulated NSR pollutant or
subject to paragraph (a)(2) of this the change minus the PAL level prior to HAP, so long as that emissions unit or
section. If not, your proposed the change. activity is not part of a process unit that
modification is not subject to this (2) For other changes, the total emits or has the potential to emit a
program. increase in allowable emissions regulated NSR pollutant or HAP.

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TABLE 1 TO § 49.153. MINOR NSR THRESHOLDS.1


Minor NSR thresholds for non-
attainment areas Minor NSR thresh-
(tpy) olds for attainment
Regulated NSR pollutant areas
Extreme (tpy)
Other areas
ozone areas

Carbon monoxide .............................................................................................................. 5 5 10


Oxides of nitrogen ............................................................................................................. 0 5 10
Sulfur dioxide ..................................................................................................................... 5 5 10
VOC ................................................................................................................................... 0 2 5
PM ...................................................................................................................................... 5 5 10
PM–10 ................................................................................................................................ 1 1 5
PM–2.5 ............................................................................................................................... 0.6 0.6 3
Lead ................................................................................................................................... 0.1 0.1 0.1
Fluorides ............................................................................................................................ NA NA 1
Sulfuric acid mist ............................................................................................................... NA NA 2
Hydrogen sulfide (H2S) ...................................................................................................... NA NA 2
Total reduced sulfur (including H2S) ................................................................................. NA NA 2
Reduced sulfur compounds (including H2S) ..................................................................... NA NA 2
Municipal waste combustor emissions .............................................................................. NA NA 2
Municipal solid waste landfills emissions (measured as nonmethane organic com-
pounds) .......................................................................................................................... NA NA 10
1 If
part of a tribe’s area of Indian country is designated as attainment and another part as nonattainment, the applicable threshold for a pro-
posed source or modification is determined based on the designation where the source would be located. If the source straddles the two areas,
the more stringent thresholds would apply.

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§ 49.154 Permit application requirements. after the modification (including notice of complete application from the
This section applies to you if you are fugitive emissions, to the extent that reviewing authority within 50 days of
subject to this program under they are quantifiable), with supporting its receipt of your application, your
§ 49.153(a)(1) for the construction of documentation. For emissions units that application will be deemed complete.
new minor sources or modifications at do not have an allowable emissions (3) If, while processing an application
existing sources. (As an alternative, you limit prior to the modification, report that has been determined to be
may apply for a general permit under the potential to emit. In your calculation complete, the reviewing authority
§ 49.156 if an applicable general permit of annual allowable emissions for an determines that additional information
is available for your source type.) In emissions unit after the modification, is necessary to evaluate or take final
addition, this section applies to you if you must account for any proposed action on the application, it may request
you wish to establish a minor source emission limitations. additional information from you and
PAL for your existing minor source (See (vi) The following information to the require your responses within a
§ 49.153(a)(4)). See § 49.158(a) for extent it is needed to determine or reasonable time period.
synthetic minor permit application regulate emissions: fuels, fuel use, raw (c) How will the reviewing authority
requirements. materials, production rates, and determine the emission limitations that
(a) What information must my permit operating schedules. will be required in my permit? After
application contain? Paragraphs (a)(1) (vii) Identification and description of determining that your application is
through (3) of this section govern the any existing air pollution control complete, the reviewing authority will
content of your application. equipment and compliance monitoring conduct a case-by-case control
(1) General provisions for permit devices or activities. technology review to determine the
applications. The following provisions (viii) Any existing limitations on appropriate level of control, if any,
apply to permit applications under this source operation affecting emissions or necessary to assure that NAAQS are
program: any work practice standards, where achieved, as well as the corresponding
(i) The reviewing authority may applicable, for all NSR regulated emission limitations for the affected
develop permit application forms for pollutants at the source. emissions units at your source.
your use. (ix) For each emission point (1) In carrying out this case-by-case
(ii) The permit application need not associated with an affected emissions review, the reviewing authority will
contain information on the exempt unit, provide stack or vent dimensions consider the following factors:
emissions units and activities listed in and flow information. (i) Local air quality conditions.
§ 49.153(c). (3) Optional permit application (ii) Typical control technology or
(iii) The permit application for a content. At your option, you may other emissions reduction measures
modification need only include propose the following: used by similar sources in surrounding
information on the affected emissions (i) Emission limitations for each areas.
units as defined in § 49.152(d). affected emissions unit, which may (iii) Anticipated economic growth in
(2) Required permit application include pollution prevention the area.
content. Except as specified in techniques, air pollution control (iv) Cost-effective emission reduction
paragraphs (a)(1)(ii) and (iii) of this devices, design standards, equipment alternatives.
section, you must include the standards, work practices, operational (2) The reviewing authority must
information listed in paragraphs (a)(2)(i) standards, or a combination thereof. require an emission limit (i.e., a limit on
through (ix) of this section in your You may include an explanation of why the quantity, rate, or concentration of
application for a permit under this you believe the proposed emission emissions) for each affected emissions
program. The reviewing authority may limitations to be appropriate. unit at your source for which such a
require additional information as (ii) A minor source PAL, which is a limit is technically and economically
needed to process the permit source-wide annual allowable emissions feasible.
application. limit, for one or more of the regulated (3) The emission limitations required
(i) Identifying information, including NSR pollutants emitted by your source. by the reviewing authority may consist
your name and address (and plant name (b) How is my permit application of emission limits, pollution prevention
and address if different) and the name determined to be complete? Paragraphs techniques, design standards,
and telephone number of the plant (b)(1) through (3) of this section govern equipment standards, work practice
manager/contact. the completeness review of your permit standards, operational standards, or any
(ii) A description of your source’s application. combination thereof.
processes and products. (1) An application for a permit under (4) The emission limitations required
(iii) A list of all affected emissions this program will be reviewed by the by the reviewing authority must assure
units (with the exception of the exempt reviewing authority within 45 days of that each affected emissions unit will
emissions units and activities listed in its receipt to determine whether the comply with all requirements of parts
§ 49.153(c)). application contains all the information 60, 61, and 63 of this chapter that apply
(iv) For each new emissions unit that necessary for processing the application. to the unit.
is listed, the potential to emit of each You should contact the reviewing (5) The emission limitations required
regulated NSR pollutant in tpy authority to find out the date of receipt by the reviewing authority must not be
(including fugitive emissions, to the of the application. affected in any manner by so much of
extent that they are quantifiable), with (2) If the reviewing authority a stack’s height as exceeds good
supporting documentation. In your determines that the application is not engineering practice or by any other
calculation of the potential to emit for complete, it will request additional dispersion technique, except as
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an emissions unit, you must account for information from you as necessary to provided in § 51.118(b) of this chapter.
any proposed emission limitations. process the application. If the reviewing If the reviewing authority proposes to
(v) For each modified emissions unit authority determines that the issue a permit to a source based on a
and replacement unit that is listed, the application is complete, it may notify good engineering practice stack height
allowable emissions of each regulated you in writing. If you do not receive a that exceeds the height allowed by
NSR pollutant in tpy both before and request for additional information or a § 51.100(ii)(1) or (2) of this chapter, it

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48738 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

must notify the public of the availability (i) New minor sources. For new minor requirements sufficient to assure
of the demonstration study and must sources, limits on annual allowable compliance with the emission
provide opportunity for a public hearing emissions in tpy must be included in limitations and monitoring
according to the requirements of the permit as follows: requirements, and must require the
§ 49.157 for the draft permit. (A) The reviewing authority may elements in paragraphs (a)(4)(i) and (ii)
(d) When may the reviewing authority include minor source PALs for one or of this section.
require an air quality impacts analysis more regulated NSR pollutants, if you (i) Records of required monitoring
(AQIA)? Paragraphs (d)(1) through (3) of requested such PALs. information that include the
this section govern AQIA requirements (B) Otherwise, the reviewing authority information in paragraphs (a)(4)(i)(A)
under this program. must include an annual allowable through (F) of this section, as
(1) In those rare instances where the emissions limit for each affected appropriate.
reviewing authority has reason to be emissions unit, for each regulated NSR (A) The location, date, and time of
concerned that the construction of your pollutant emitted by the unit that is not sampling or measurements.
minor source or modification would subject to a minor source PAL. (B) The date(s) analyses were
cause or contribute to a NAAQS or PSD (ii) Existing minor sources. For performed.
increment violation, it may require you existing minor sources, limits on annual (C) The company or entity that
to conduct and submit an AQIA. allowable emissions in tpy must be performed the analyses.
(2) If required, you must conduct the included in the permit as follows: (D) The analytical techniques or
AQIA using the dispersion models and (A) The reviewing authority may methods used.
procedures of part 51, Appendix W of include minor source PALs for one or (E) The results of such analyses.
this chapter. more regulated NSR pollutants, if you (F) The operating conditions existing
(3) If the AQIA reveals that requested such PALs. at the time of sampling or measurement.
construction of your source or (B) For a modification, the reviewing
(ii) Retention for 5 years of records of
modification would cause or contribute authority must include an annual
all required monitoring data and
to a NAAQS or PSD increment allowable emissions limit for each
support information for the monitoring
violation, the reviewing authority must affected emissions unit, for each
sample, measurement, report, or
require you to reduce such impacts regulated NSR pollutant emitted by the
application. Support information may
before it can issue you a permit. unit that is not subject to a minor source
include all calibration and maintenance
PAL.
§ 49.155 Permit requirements. (C) If you apply for a minor source records, all original strip-chart
This section applies to your permit if PAL for one or more regulated NSR recordings or digital records for
you are subject to this program under pollutants for your existing source at a continuous monitoring instrumentation,
§ 49.153(a)(1) for construction of new time when you are not also proposing a copies of all reports required by the
minor sources or modifications at modification, no annual allowable permit, and for sources with a minor
existing sources, unless you applied for emissions limits are required for the source PAL for a pollutant, the actual
a general permit under § 49.156 (where regulated NSR pollutants that are not emissions determined for each month
an applicable general permit is available subject to a PAL. and the total actual emissions for each
for your source type). In addition, this (3) Monitoring requirements. The 12-month period, rolled monthly, for
section applies to your permit if you permit must include monitoring that pollutant.
wish to establish a minor source PAL for requirements sufficient to assure (5) Reporting requirements The permit
your existing minor source (See compliance with the emission must include the reporting requirements
§ 49.153(a)(4)) limitations that apply to the affected in paragraphs (a)(5)(i) and (ii) of this
(a) What information must my permit emissions units at your source. The section.
include? Your permit must include the reviewing authority may require, as (i) Annual submittal of reports of
requirements in paragraphs (a)(1) appropriate, any of the requirements in monitoring required under paragraph
through (7) of this section. paragraphs (a)(3)(i) through (iii) of this (a)(3) of this section, including the type
(1) General requirements. The section. and frequency of monitoring, and a
following elements must be included in (i) Any emissions monitoring, summary of results obtained by
your permit: including analysis procedures, test monitoring.
(i) The effective date of the permit and methods, periodic testing, instrumental (ii) Prompt reporting of deviations
the date by which you must commence monitoring, and non-instrumental from permit requirements, including
construction in order for your permit to monitoring. Such monitoring those attributable to upset conditions as
remain valid (i.e., 18 months after the requirements shall assure use of test defined in the permit, the probable
permit effective date). methods, units, averaging periods, and cause of such deviations, and any
(ii) The emissions units subject to the other statistical conventions consistent corrective actions or preventive
permit and their associated emission with the required emission limitations. measures taken. Within the permit, the
limitations. (ii) As necessary, requirements reviewing authority must define
(iii) Monitoring, recordkeeping, concerning the use, maintenance, and ‘‘prompt’’ in relation to the degree and
reporting, and testing requirements to installation of monitoring equipment or type of deviation likely to occur and the
assure compliance with the emission methods. applicable emission limitations.
limitations. (iii) If the permit includes a minor (6) Severability clause. The permit
(2) Emission limitations. The permit source PAL for a pollutant at your minor must include a severability clause to
must include the emission limitations source, monitoring to determine the ensure the continued validity of the
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determined by the reviewing authority actual emissions from your source for other portions of the permit in the event
under § 49.154(c) for each affected each month and the total actual of a challenge to a portion of the permit.
emissions unit. In addition, the permit emissions for each 12-month period, (7) Additional provisions. The permit
must address limits on annual allowable rolled monthly, for that pollutant. must also contain provisions stating the
emissions as set out in paragraphs (4) Recordkeeping requirements. The requirements in paragraphs (a)(7)(i)
(a)(2)(i) and (ii) of this section. permit must include recordkeeping through (vii) of this section.

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(i) You, as the permittee, must comply purpose of assuring compliance with (3) Issuance of a general permit is
with all conditions of your permit, the permit or other applicable considered final agency action with
including emission limitations that requirements; and respect to all aspects of the general
apply to the affected emissions units at (E) Record any inspection by use of permit except its applicability to an
your source. Noncompliance with any written, electronic, magnetic and individual source. The sole issue that
permit term or condition is a violation photographic media. may be appealed after an individual
of the permit and may constitute a (b) Can my permit become invalid? source is approved to construct under a
violation of the Act and is grounds for Your permit becomes invalid if you do general permit (See paragraph (e) of this
enforcement action and for a permit not commence construction within 18 section) is the applicability of the
termination or revocation. months after the effective date of your general permit to that particular source.
(ii) Your permitted source must not permit, if you discontinue construction (c) For what categories will general
cause or contribute to a NAAQS for a period of 18 months or more, or permits be issued? (1) The reviewing
violation or, in an attainment area, must if you do not complete construction authority will determine which
not cause or contribute to a PSD within a reasonable time. The reviewing categories of individual emissions units,
increment violation. authority may extend the 18-month groups of similar emissions units, or
(iii) It is not a defense for you, as the period upon a satisfactory showing that sources are appropriate for general
permittee, in an enforcement action that an extension is justified. This provision permits in its area.
it would have been necessary to halt or does not apply to the time period (2) General permits will be issued at
reduce the permitted activity in order to between construction of the approved the discretion of the reviewing
maintain compliance with the phases of a phased construction project; authority. However, the following are
conditions of this permit. you must commence construction of some common categories of emissions
(iv) The permit may be revised, each such phase within 18 months of units or sources for which general
reopened, revoked and reissued, or the projected and approved permits may be developed:
terminated for cause. The filing of a commencement date. (i) Autobody repair shops.
request by you, as the permittee, for a (ii) Concrete batching plants.
permit revision, revocation and re- § 49.156 General permits. (iii) Dry cleaners.
issuance, or termination, or of a This section applies to general (iv) Gas stations.
notification of planned changes or permits for the purposes of complying (v) Gas distribution facilities.
anticipated noncompliance does not with the preconstruction permitting (vi) General purpose internal
stay any permit condition. requirements for sources of regulated combustion engines.
(v) The permit does not convey any NSR pollutants under this program. (vii) Hot mix asphalt facilities.
property rights of any sort or any (a) What is a general permit? A (viii) Heating units.
exclusive privilege. (ix) Nonmetallic mineral processing
general permit is a preconstruction
(vi) You, as the permittee, shall plants.
permit issued by a reviewing authority
furnish to the reviewing authority, (x) Rock crushing facilities.
that may be applied to a number of
within a reasonable time, any (xi) Surface coating operations.
similar emissions units or sources. The
information that the reviewing authority (xii) Solvent cleaning operations.
purpose of a general permit is to (xiii) Graphic arts operations.
may request in writing to determine simplify the permit application and
whether cause exists for revising, (xiv) Grain elevators.
issuance process for similar facilities so (xv) Tank batteries in oil and gas
revoking and reissuing, or terminating that a reviewing authority’s limited
the permit or to determine compliance production operations that are not part
resources need not be expended for of a larger source.
with the permit. For any such case-by-case permit development for
information claimed to be confidential, (xvi) Small to medium compressor
such facilities. A general permit may be stations.
you must also submit a claim of written to address a single emissions
confidentiality in accordance with part (xvii) Small to medium transmission
unit, a group of the same type of stations.
2, subpart B of this chapter. emissions units, or an entire minor
(vii) Inspection and entry provisions (xviii) Dehydrators that are not a part
source. of a larger source.
requiring that upon presentation of
proper credentials, you, as the (b) How will the reviewing authority (xix) Compressor engines.
permittee, must allow a representative issue general permits? The reviewing (d) What should the general permit
of the reviewing authority to: authority will issue general permits as contain? The general permit must
(A) Enter upon your premises where follows: contain the permit elements listed in
a source is located or emissions-related (1) A general permit may be issued for § 49.155(a). In addition, the general
activity is conducted, or where records a category of emissions units or sources permit must contain the information
are required to be kept under the that are similar in nature, have listed in paragraphs (d)(1) and (2) of this
conditions of the permit; substantially similar emissions, and section. The reviewing authority may
(B) Have access to and copy, at would be subject to the same or specify additional general permit terms
reasonable times, any records that are substantially similar requirements and conditions.
required to be kept under the conditions governing operations, emissions, (1) Identification of the specific
of the permit; monitoring, reporting, and category of emissions units or sources to
(C) Inspect, during normal business recordkeeping. ‘‘Similar in nature’’ which the general permit applies,
hours or while the source is in refers to size, processes, and operating including any criteria that your
operation, any facilities, equipment conditions. emissions units or source must meet to
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(including monitoring and air pollution (2) A general permit must be issued be eligible for coverage under the
control equipment), practices, or according to the requirements for public general permit.
operations regulated or required under participation in § 49.157 and the (2) Information required to apply for
the permit; requirements for final permit issuance coverage under a general permit
(D) Sample or monitor, at reasonable and administrative and judicial review including, but not limited to, the
times, substances or parameters for the in § 49.159. following:

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48740 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules

(i) The name and mailing address of of any confidential information as (B) The reviewing authority may post
the reviewing authority to whom you defined in part 2, subpart B of this the notice on its Web site.
must submit your application. chapter, the reviewing authority must (C) The reviewing authority may
(ii) The procedure to obtain any make available for public inspection the publish the notice in a newspaper of
standard application forms that the documents listed in paragraphs (a)(1) general circulation in the area affected
reviewing authority may have through (5) of this section. The by the source. Where possible, the
developed. reviewing authority must make such notice may also be published in a tribal
(iii) The information that you must information available for public newspaper or newsletter.
provide to the reviewing authority in inspection at the appropriate EPA (D) The reviewing authority may
your application to demonstrate that Regional Office and in at least one provide copies of the notice for posting
you are eligible for coverage under the location in the area affected by the at one or more locations in the area
general permit. source, such as the tribal environmental affected by the source, such as Post
(iv) Other application requirements office or a local library. Offices, trading posts, libraries, tribal
deemed necessary by the reviewing (1) All information submitted as part environmental offices, community
authority. of an application for a permit. centers, or other gathering places in the
(e) How is my source issued a general (2) Any additional information community.
permit? (1) If your source qualifies for a requested by the reviewing authority. (E) The reviewing authority may
general permit, you may apply to the (3) The reviewing authority’s analysis employ other means of notification as
reviewing authority for coverage under of the application and any additional appropriate.
the general permit. information submitted by the source, (2) The notice required pursuant to
(2) The reviewing authority must act including (for preconstruction and paragraph (b)(1) of this section must
on your application for coverage under general permits) the control technology include the following information at a
the general permit as expeditiously as review. minimum:
possible, but it must notify you of the (4) For preconstruction and general (i) Identifying information, including
final decision within 90 days. permits, the reviewing authority’s your name and address (and plant name
(3) Without repeating the public and address if different) and the name
analysis of the effect of the construction
participation procedures required in and telephone number of the plant
of the minor source or modification on
§ 49.157, the reviewing authority may manager/contact.
ambient air quality.
grant or deny your request for approval (ii) The name and address of the
(5) A copy of the draft permit or the
to construct under a general permit. The reviewing authority processing the
decision to deny the permit with the
reviewing authority must send you a permit action;
justification for denial.
letter approving or disapproving the (iii) For preconstruction permits
(b) How will the public be notified (including general permits), the
request to construct under a general
and participate? (1) Before issuing a regulated NSR pollutants to be emitted,
permit. Such a letter is a final permit
permit under this program, the the affected emissions units, and the
action for purposes of judicial review
reviewing authority must prepare a draft emission limitations for each affected
(See § 49.159) only for the issue of
permit and must provide adequate emissions unit;
whether your source qualifies for the
public notice to ensure that the affected (iv) For preconstruction permits, the
general permit. You must post a
community and the general public have emissions change involved in the permit
prominent notice at your source of the
reasonable access to the application and action;
letter of approval to construct under the
draft permit information, as set out in (v) For synthetic minor permits, a
general permit.
(4) If the reviewing authority has sent paragraphs (b)(1)(i) and (ii) of this description of the proposed limitation
a letter approving the general permit for section The public notice must provide and its effect on the potential to emit of
your source, you must comply with all an opportunity for public comment and the source;
conditions and terms of the general notice of a public hearing, if any, on the (vi) Instructions for requesting a
permit. You will be subject to draft permit. public hearing;
enforcement action for failure to obtain (i) The reviewing authority must mail (vii) The name, address, and
a preconstruction permit if you a copy of the notice to you, the telephone number of a contact person in
construct the emissions unit(s) or source appropriate Indian governing body, and the reviewing authority’s office from
with general permit approval and your the tribal, State, and local air pollution whom additional information may be
source is later determined not to qualify authorities having jurisdiction in areas obtained;
for the conditions and terms of the outside of the area of Indian country (viii) Locations and times of
general permit. potentially impacted by the air availability of the information (listed in
(5) Any source covered under a letter pollution source. paragraph (a) of this section) for public
approving the general permit may (ii) Depending on such factors as the inspection; and
request to be excluded from the general nature and size of your source, local air (ix) A statement that any person may
permit by applying for a permit under quality considerations, and the submit written comments, a written
§ 49.154. characteristics of the population in the request for a public hearing, or both, on
affected area, the reviewing authority the draft permit action. The reviewing
§ 49.157 Public participation requirements. must use appropriate means of authority must provide a period of at
This section applies to the issuance of notification, such as those listed in least 30 days from the date of the public
preconstruction permits, synthetic paragraphs (b)(1)(ii)(A) through (E) of notice for comments, and for requests
minor permits, and the initial issuance this section. for a public hearing.
sroberts on PROD1PC70 with PROPOSALS

of general permits. It does not apply to (A) The reviewing authority may mail (c) How will the public comment, and
decisions regarding whether a specific or e-mail a copy of the notice to persons will there be a public hearing? (1) Any
source is eligible for coverage under a on a mailing list developed by the person may submit written comments
general permit. reviewing authority consisting of those on the draft permit and may request a
(a) What permit information will be persons who have requested to be public hearing. These comments must
publicly available? With the exception placed on such a mailing list. raise any reasonably ascertainable issue

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with supporting arguments by the close emissions or the potential to emit. synthetic minor permit. You should
of the public comment period Proposed emission limitations must contact the reviewing authority to find
(including any public hearing). The have a reasonably short averaging out the date of receipt of the
reviewing authority must consider all period, taking into consideration the application.
comments in making the final decision. operation of the source and the methods (3) If the reviewing authority
The reviewing authority must keep a to be used for demonstrating determines that the application is not
record of the commenters and of the compliance. complete, it will request additional
issues raised during the public (B) Proposed testing, monitoring, information from you as necessary to
participation process, and such records recordkeeping, and reporting process the application. If the reviewing
must be available to the public. requirements to be used to demonstrate authority determines that the
(2) The reviewing authority must and assure compliance with the application is complete, it may notify
extend the public comment period proposed limitation. you in writing. If you do not receive a
under paragraph (b) of this section to (C) A description of the production request for additional information or a
the close of any public hearing under processes. notice of complete application from the
this section. The hearing officer may (D) Identification of the emissions reviewing authority within 65 days of
also extend the comment period by so units. its receipt of your application, your
stating at the hearing. (E) Type and quantity of fuels and/or application will be deemed complete.
(3) A request for a public hearing raw materials used. (4) The reviewing authority will
must be in writing and must state the (F) Description and estimated prepare a draft synthetic minor permit
nature of the issues proposed to be efficiency of air pollution control that describes the proposed limitation
raised at the hearing. equipment under present or anticipated and its effect on the potential to emit of
(4) The reviewing authority must hold operating conditions. the source.
a hearing whenever there is, on the basis (G) Estimates of the current actual (5) The reviewing authority must
of requests, a significant degree of emissions and current potential to emit, provide an opportunity for public
public interest in a draft permit. The including all calculations for the participation and public comment on
reviewing authority may also hold a estimates. the draft synthetic minor permit as set
public hearing at its discretion, (H) Estimates of the allowable out in § 49.157.
whenever, for instance, such a hearing emissions and/or potential to emit that (6) After the close of the public
might clarify one or more issues would result from compliance with the comment period, the reviewing
involved in the permit decision. The proposed limitation, including all authority will review all comments
reviewing authority must provide notice calculations for the estimates. received and prepare a final synthetic
of any public hearing at least 30 days (iii) Any other information minor permit.
prior to the date of the hearing. Public specifically requested by the reviewing (7) The final synthetic minor permit
notice of the hearing may be concurrent authority. will be issued and will be subject to
with that of the draft permit, and the (2) Estimates of actual emissions must administrative and judicial review as set
two notices may be combined. be based upon actual test data, or in the out in § 49.159.
Reasonable limits may be set upon the absence of such data, upon procedures (c) What are my responsibilities under
time allowed for oral statements at the acceptable to the reviewing authority. this program for my existing synthetic
hearing. Any emission estimates submitted to the minor source or synthetic minor HAP
(5) The reviewing authority must reviewing authority must be verifiable source? If you have an existing synthetic
make a tape recording or written using currently accepted engineering minor source or synthetic minor HAP
transcript of any hearing available to the criteria. The following procedures are source, you are subject to either
public. generally acceptable for estimating paragraph (c)(1) or paragraph (c)(2) of
emissions from air pollution sources: this section, as follows:
§ 49.158 Synthetic minor permits. (i) Source-specific emission tests; (1) If your synthetic minor status is
You may obtain a synthetic minor (ii) Mass balance calculations; established through a permit or other
permit under this program to establish (iii) Published, verifiable emission document that is enforceable as a
a synthetic minor source and/or a factors that are applicable to the source; practical matter, you do not need to do
synthetic minor HAP source. Note that (iv) Other engineering calculations; or anything. You may use the mechanism
if you propose to construct or modify a (v) Other procedures to estimate established in this program according to
synthetic minor source, you are also emissions specifically approved by the the requirements of paragraphs (a) and
subject to the preconstruction reviewing authority. (b) of this section to replace your
permitting requirements in §§ 49.154 (b) What are the procedures for existing synthetic minor permit when it
and 49.155. obtaining a synthetic minor permit? (1) expires.
(a) What information must my If you wish to obtain a synthetic minor (2) If you have achieved your existing
synthetic minor permit application permit under this program, you must synthetic minor status by maintaining
contain? (1) Your application must submit a permit application to the your actual emissions at less than 50
include the following information: reviewing authority. The application percent of the relevant major source
(i) Identifying information, including must contain the information specified threshold, you must obtain a synthetic
your name and address (and plant name in paragraph (a) of this section. If the minor permit under this program
and address if different) and the name reviewing authority has developed according to the requirements of
and telephone number of the plant application forms for such permits, you paragraphs (a) and (b) of this section.
manager/contact. must use those forms. The following provisions apply:
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(ii) For each regulated NSR pollutant (2) Within 60 days after receipt of an (i) You must apply for a synthetic
and/or HAP and for all emissions units application, the reviewing authority will minor permit by [1 year and 60 days
to be covered by an emissions determine if it contains the information after publication of final rule], and you
limitation, the following information: specified in paragraph (a) of this section must respond in a timely manner to any
(A) The proposed emission limitation and, if so, will determine it complete for requests from the reviewing authority
and a description of its effect on actual the purpose of preparing a draft for additional information.

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(ii) Provided that you submit your (ii) The draft permit or notice of intent person who failed to file comments and
application and any requested to deny the application; failed to participate in the public
additional information as indicated in (iii) Other documents in the hearing on the draft permit may petition
paragraph (c)(2)(i) of this section, your supporting files for the draft permit that for administrative review only to the
source will continue to be considered a were relied upon in the decisionmaking; extent that the changes from the draft to
synthetic minor source or synthetic (iv) All comments received during the the final permit or other new grounds
minor HAP source (as applicable) until public comment period, including any were not reasonably foreseeable during
your synthetic minor permit under this extension or reopening; the public comment period on the draft
program has been issued. (v) The tape or transcript of any permit. The 30-day period within which
(iii) Should you fail to submit your hearing(s) held; a person may request review under this
application and any requested (vi) Any written material submitted at section begins when the reviewing
additional information as indicated in such a hearing; authority has fulfilled the notice
paragraph (c)(2)(i) of this section, your (vii) Any new materials placed in the requirements for the final permit
source will no longer be considered a record as a result of the reviewing decision, unless a later date is specified
synthetic minor source or synthetic authority’s evaluation of public in that notice.
minor HAP source (as applicable), and comments; (3) The petition must include a
will immediately become subject to all (viii) The final permit; and statement of the reasons supporting the
requirements for major sources. (ix) Other documents in the review, including a demonstration that
supporting files for the final permit that any issues identified were raised during
§ 49.159 Final permit issuance and were relied upon in the decisionmaking. the public comment period (including
administrative and judicial review. (2) The additional documents any public hearing) to the extent
(a) How will final action occur, and required under paragraph (c)(1) of this required by these regulations, unless the
when will my permit become effective? section should be added to the record as petitioner demonstrates that it was
After decision on a permit, the soon as possible after their receipt or impracticable to raise such objections
reviewing authority must notify you of publication by the reviewing authority. within such period or unless the
the decision, in writing, and if the The record must be complete on the grounds for such objection arose after
permit is denied, of the reasons for such date the final permit is issued. such period, and, when appropriate, a
denial. If the reviewing authority issues (3) Material readily available or showing that the condition in question
a final permit to you, it must make a published materials that are generally is based on:
copy of the permit available at all of the available and that are included in the (i) A finding of fact or conclusion of
locations where the draft permit was administrative record under the law that is clearly erroneous; or
made available. In addition, the standards of paragraph (c)(1) of this (ii) An exercise of discretion or an
reviewing authority must provide section need not be physically included important policy consideration that the
adequate public notice of the final in the same file as the rest of the record Board should, in its discretion, review.
permit decision to ensure that the as long as it is specifically referred to in (4) The Board may also decide on its
affected community, general public, and the that file. own initiative to review any condition
any individuals who commented on the (d) Can permit decisions be appealed? of any permit issued under this
draft permit have reasonable access to Permit decisions may be appealed program.
the decision and supporting materials. according to the following provisions: (5) Within a reasonable time following
A final permit becomes effective 30 days (1) The Administrator delegates the filing of the petition for review, the
after permit issuance, unless: authority to the Environmental Appeals Board must issue an order either
(1) A later effective date is specified Board (the Board) to issue final granting or denying the petition for
in the permit; or decisions in permit appeals filed under review. To the extent review is denied,
(2) Review of the final permit is this program, including informal the conditions of the final permit
requested under paragraph (d) of this appeals of denials of requests for decision become final agency action. If
section (in which case the specific terms modification, revocation and re- the Board grants review in response to
and conditions of the permit that may issuance, or termination of permits requests under paragraph (d)(2) or (4) of
be the subject of the request for review under paragraph (e)(2) of this section. this section, public notice must be given
must be stayed); or An appeal directed to the as provided in §49.157(b). Public notice
(3) The reviewing authority may make Administrator, rather than to the Board, must set forth a briefing schedule for the
the permit effective immediately upon will be forwarded to the Board for appeal and must state that any
issuance if no comments requested a consideration. This delegation does not interested person may file an amicus
change in the draft permit or a denial of preclude the Board from referring an brief. If the Board denies review, the
the permit. appeal or a motion under this program permit applicant and the person(s)
(b) For how long will the reviewing to the Administrator when the Board, in requesting review must be notified
authority retain my permit-related its discretion, deems it appropriate to do through means that are adequate to
records? The records, including any so. When an appeal or motion is assure reasonable access to the decision,
required applications for each draft and referred to the Administrator by the which may include mailing a notice to
final permit or application for permit Board, all parties shall be so notified each.
revision, must be kept by the reviewing and the provisions of this program (6) A petition to the Board under
authority for not less than 5 years. referring to the Board shall be paragraph (d)(2) of this section is, under
(c) What is the administrative record interpreted as referring to the 42 U.S.C. 307(b), a prerequisite to
for each final permit? (1) The reviewing Administrator. seeking judicial review of the final
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authority must base final permit (2) Within 30 days after a final permit agency action.
decisions on an administrative record decision has been issued, any person (7) For purposes of judicial review,
consisting of: who filed comments on the draft permit final agency action occurs when a final
(i) The application and any or participated in the public hearing permit is issued or denied by the
supporting data furnished by the may petition the Board to review any reviewing authority and agency review
applicant; condition of the permit decision. Any procedures are exhausted. A final

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permit decision must be issued by the (2) If the reviewing authority decides administrative and judicial review
reviewing authority: the request is not justified, the requirements of this program.
(i) When the Board issues notice to reviewing authority must send the
the parties that review has been denied; requestor a brief written response giving § 49.160 Administration and delegation of
(ii) When the Board issues a decision the minor NSR program in Indian country.
a reason for the decision. Denials of
on the merits of the appeal and the requests for revision, revocation and re- (a) Who administers a minor NSR
decision does not include a remand of issuance, or termination are not subject program in Indian country? (1) If the
the proceedings; or to public notice, comment, or hearings. Administrator has approved a TIP that
(iii) Upon the completion of remand Denials by the reviewing authority may includes a minor NSR program for
proceedings if the proceedings are be informally appealed to the Board by sources in Indian country that meets the
remanded, unless the Board’s remand a letter briefly setting forth the relevant requirements of section 110(a)(2)(C) of
order specifically provides that appeal facts. The Board may direct the the Act and §§51.160 through 51.164 of
of the remand decision will be required reviewing authority to begin revision, this chapter, the tribe is the reviewing
to exhaust administrative remedies. revocation and re-issuance, or authority and will administer the
(8) Motions to reconsider a final order termination proceedings under approved minor NSR program under
must be filed within 10 days after paragraph (e)(3) of this section. The tribal law.
service of the final order. Every such appeal must be considered denied if the (2) If the Administrator has not
motion must set forth the matters Board takes no action within 60 days approved an implementation plan, the
claimed to have been erroneously after receiving it. This informal appeal Administrator may delegate the
decided and the nature of the alleged is, under 42 U.S.C. 307, a prerequisite authority to assist EPA with
errors. Motions for reconsideration to seeking judicial review of EPA action administration of portions of this
under this provision must be directed in denying a request for revision, Federal minor NSR program
to, and decided by, the Board. Motions revocation and re-issuance, or implemented under Federal authority to
for reconsideration directed to the termination. a tribal agency upon request, in
Administrator, rather than to the Board, (3) If the reviewing authority decides accordance with the provisions of
will be forwarded to the Board for the request is justified and that cause paragraph (b) of this section. If the tribal
consideration, except in cases in which exists to revise, revoke and reissue or agency has been granted such
the Board has deferred to the terminate a permit, it shall initiate delegation, it will have the authority to
Administrator and the Administrator proceedings to reopen the permit. assist EPA according to paragraph (b) of
has issued the final order. A motion for (f) What is an administrative permit this section.
reconsideration must not stay the revision? The following provisions
effective date of the final order unless govern administrative permit revisions. (3) If the Administrator has not
specifically so ordered by the Board. (1) An administrative permit revision approved an implementation plan or
(9) For purposes of this section, time is a permit revision that makes any of granted delegation to a tribal agency, the
periods are computed as follows: the following changes: Administrator is the reviewing authority
(i) Any time period scheduled to (i) Corrects typographical errors. and will directly administer all aspects
begin on the occurrence of an act or (ii) Identifies a change in the name, of this Federal minor NSR program in
event must begin on the day after the act address, or phone number of any person Indian country under Federal authority.
or event. identified in the permit, or provides a (b) Delegation of administration of the
(ii) Any time period scheduled to similar minor administrative change at Federal minor NSR program to tribes.
begin before the occurrence of an act or the source. This paragraph (b) establishes the
event must be computed so that the (iii) Requires more frequent process by which the Administrator
period ends on the day before the act or monitoring or reporting by the may delegate authority to a tribal
event, except as otherwise provided. permittee. agency, with or without signature
(iii) If the final day of any time period (iv) Allows for a change in ownership authority, to assist EPA with
falls on a weekend or legal holiday, the or operational control of a source where administration of portions of this
time period must be extended to the the reviewing authority determines that Federal minor NSR program, in
next working day. no other change in the permit is accordance with the provisions in
(iv) Whenever a party or interested necessary, provided that a written paragraphs (b)(1) through (8) of this
person has the right or is required to act agreement containing a specific date for section. Any Federal requirements
within a prescribed period after the transfer of permit responsibility, under this program that are
service of notice or other paper upon coverage, and liability between the administered by the delegate tribal
him or her by mail, 3 days must be current and new permittee has been agency will be subject to enforcement by
added to the prescribed time. submitted to the reviewing authority. EPA under Federal law. This section
(e) Can my permit be reopened? Your (v) Establishes an increase in an provides for administrative delegation
permit can be reopened according to the emissions unit’s annual allowable of the Federal minor NSR program and
following procedures: emissions limit for a regulated NSR does not affect the eligibility criteria
(1) Any person (including the pollutant, when the action that under § 49.6 for treatment in the same
permittee) may petition the reviewing necessitates such increase is not manner as a State.
authority to reopen a permit for cause, otherwise subject to review under major
and the reviewing authority may NSR or under this program. (1) Information to be included in the
commence a permit reopening on its (vi) Incorporates any other type of Administrative Delegation Request. In
own initiative. The reviewing authority change that the reviewing authority has order to be delegated authority to assist
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may not reopen a permit for cause determined to be similar to those in EPA with administration of this FIP
unless it contains a material mistake or paragraphs (f)(1)(i) through (v) of this permit program for sources, the tribal
fails to assure compliance with section. agency must submit a request to the
applicable requirements. All requests (2) An administrative permit revision Administrator that:
must be in writing and must contain is not subject to the permit application, (i) Identifies the specific provisions
reasons supporting the request. issuance, public participation, or for which delegation is requested;

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(ii) Identifies the Indian Reservation (5) Transmission of information to the (1) The Administrator’s authority to
or other areas of Indian country for Administrator. When administration of object to the issuance of a minor NSR
which delegation is requested; a portion of the Federal minor NSR permit.
(iii) Includes a statement by the program in Indian country that includes (2) The Administrator’s authority to
applicant’s legal counsel (or equivalent receipt of permit application materials enforce, revoke, or terminate permits
official) that includes the following and preparation of draft permits has issued pursuant to this program.
information: been delegated in accordance with the (d) How will EPA transition its
(A) A statement that the applicant is provisions of this section, the delegate authority to an approved minor NSR
a tribe recognized by the Secretary of tribal agency must provide to the program? (1) The Administrator will
the Interior; Administrator a copy of each permit suspend the issuance of minor NSR
(B) A descriptive statement that is application (including any application permits under this program promptly
consistent with the type of information for permit revision) and each draft upon publication of notice of approval
described in § 49.7(a)(2) demonstrating permit. The applicant may be required of an implementation plan with a minor
that the applicant is currently carrying by the delegate tribal agency to provide NSR permit program for that area.
out substantial governmental duties and a copy of the permit application directly (2) The Administrator may retain
powers over a defined area; and to the Administrator. With the jurisdiction over the permits for which
(C) A description of the laws of the Administrator’s consent, the delegate the administrative or judicial review
tribe that provide adequate authority to tribal agency may submit to the process is not complete and will address
administer the Federal rules and Administrator a permit application this issue in the notice of program
provisions for which delegation is summary form and any relevant portion approval.
requested; and of the permit application, in place of the (3) After approval of a program for
(iv) Demonstrates that the tribal complete permit application. To the issuing minor NSR permits and the
agency has the technical capability and extent practicable, the preceding suspension of issuance of minor NSR
adequate resources to administer the FIP information should be provided in permits by the Administrator, the
provisions for which the delegation is electronic format as requested by the Administrator will continue to
requested. Administrator. administer minor NSR permits until
(2) Delegation of Partial (6) Waiver of information permits are issued under the approved
Administrative Authority Agreement. A transmission requirements. The implementation plan program.
Delegation of Partial Administrative Administrator may waive the
Authority Agreement (Agreement) will §§ 49.161–49.165 [Reserved]
requirements of paragraph (b)(5) of this
set forth the terms and conditions of the section for any category of sources 3. Subpart C of Part 49 is amended by
delegation, will specify the provisions (including any class, type, or size within adding an undesignated center heading
that the delegate tribal agency will be such category) by transmitting the and §§ 49.166 through 49.173, and
authorized to implement on behalf of waiver in writing to the delegate tribal adding and reserving §§ 49.174 and
EPA, and will be entered into by the agency. 49.175 to read as follows:
Administrator and the delegate tribal (7) Retention of records. Where a Federal Major New Source Review
agency. The Agreement will become delegate tribal agency prepares draft or Program for Nonattainment Areas in
effective upon the date that both the final permits or receives applications for Indian Country
Administrator and the delegate tribal permit revisions on behalf of EPA, the
agency have signed the Agreement or as records for each draft and final permit § 49.166 Program overview.
otherwise stated in the Agreement. Once or application for permit revision must (a) What constitutes the Federal major
the delegation becomes effective, the be kept by the delegate tribal agency for new source review (NSR) program for
delegate tribal agency will be a period not less than 5 years. The nonattainment areas in Indian country?
responsible, to the extent specified in delegate tribal agency must also submit As set forth in this Federal
the Agreement, for assisting EPA with to the Administrator such information Implementation Plan (FIP), the Federal
administration of the provisions of the as the Administrator may reasonably major NSR program for nonattainment
Federal minor NSR program that are require to ascertain whether the delegate areas in Indian country (or ‘‘program’’)
subject to the Agreement. tribal agency is implementing and consists of §§ 49.166 through 49.175.
(3) Publication of notice of the administering the delegated program in (b) What is the purpose of this
Agreement. The Administrator will compliance with the requirements of the program? This program has the
publish a notice in the Federal Register Act and of this program. following purposes:
informing the public of any Agreement (8) Delegation of signature authority. (1) It establishes a preconstruction
for a particular area of Indian country. To receive delegation of signature permitting program for new major
The Administrator also will publish the authority, the legal statement submitted stationary sources and major
notice in a newspaper of general by the tribal agency pursuant to modifications at existing major
circulation in the area affected by the paragraph (b)(1) of this section must stationary sources located in
delegation. In addition, the certify that no applicable provision of nonattainment areas in Indian country
Administrator will mail a copy of the tribal law requires that a minor NSR to meet the requirements of part D of
notice to persons on a mailing list permit be issued after a certain time if title I of the Act.
developed by the Administrator the delegate tribal agency has failed to (2) It requires that major stationary
consisting of those persons who have take action on the application (or sources subject to this program comply
requested to be placed on such a includes any other similar provision with the provisions and requirements of
mailing list. providing for default issuance of a part 51, appendix S of this chapter
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(4) Revision or revocation of an permit). (appendix S). Additionally, it sets forth


Agreement. An Agreement may be (c) Are there any non-delegable the criteria and procedures in appendix
modified, amended, or revoked, in part elements of the Federal minor NSR S that the reviewing authority (as
or in whole, by the Administrator after program in Indian country? The defined in § 49.167) will use to approve
consultation with the delegate tribal following authorities cannot be permits under this program. Note that
agency. delegated outside of EPA: for the purposes of this program, the

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term ‘‘SIP’’ as used in appendix S means and any other requirements under Indian country, as defined in 18
any EPA-approved implementation applicable law. U.S.C. 1151, means the following:
plan, including a Tribal Implementation (4) Nothing in this program prevents (1) All land within the limits of any
Plan (TIP). While some of the important a tribe from administering a major NSR Indian reservation under the
provisions of appendix S are permit program with more stringent jurisdiction of the United States
paraphrased in various paragraphs of requirements in an approved TIP. government, notwithstanding the
this program to highlight them, the issuance of any patent, and including
§ 49.167 Definitions.
provisions of appendix S govern. rights-of-way running through the
(3) It also sets forth procedures for For the purposes of this program, the reservation;2
appealing a permit issued under this definitions in paragraph II.A of (2) All dependent Indian communities
program as provided in § 49.172. appendix S to part 51 of this chapter within the borders of the United States
(c) When and where does this apply, unless otherwise stated. The whether within the original or
program apply? (1) The provisions of following definitions also apply to this subsequently acquired territory thereof,
this program apply to new major program: and whether within or without the
stationary sources and major Allowable emissions means limits of a State; and
modifications at existing major ‘‘allowable emissions’’ as defined in (3) All Indian allotments, the Indian
stationary sources located in paragraph II.A.11 of appendix S to part titles to which have not been
nonattainment areas in Indian country 51 of this chapter, except that the extinguished, including rights-of-way
where there is no EPA-approved allowable emissions for any emissions running through the same.
nonattainment major NSR program unit are calculated considering any Indian governing body means the
beginning on [date 60 days from date of emission limitations that are enforceable governing body of any tribe, band, or
publication of final rule]. The as a practical matter on the emissions group of Indians subject to the
provisions of this program apply only to unit’s potential to emit. jurisdiction of the United States and
Enforceable as a practical matter recognized by the United States as
stationary sources and modifications
means that an emission limitation or possessing power of self-government.
that are major for the regulated NSR
other standard is both legally and Regulated NSR pollutant, for
pollutant(s) for which the area is
practically enforceable as follows: purposes of this program, means the
designated nonattainment.
(1) An emission limitation or other following:
(2) The provisions of this program
standard is ‘‘legally enforceable’’ if the (1) Nitrogen oxides or any volatile
cease to apply in an area covered by an
reviewing authority has the right to organic compounds;
EPA-approved implementation plan on
enforce it. (2) Any pollutant for which a national
the date that our approval of that plan (2) Practical enforceability for an
becomes effective, provided that the ambient air quality standard has been
emission limitation or for other promulgated; or
plan includes provisions that comply standards (design standards, equipment
with the requirements of part D of title (3) Any pollutant that is a constituent
standards, work practices, operational or precursor of a general pollutant listed
I of the Act and § 51.165 of this chapter standards, pollution prevention
for the construction of new major under paragraphs (1) or (2) of this
techniques) in a permit for a stationary definition, provided that a constituent
stationary sources and major source is achieved if the permit’s
modifications at existing major or precursor pollutant may only be
provisions specify: regulated under NSR as part of
stationary sources in nonattainment (i) A limitation or standard and the
areas. regulation of the general pollutant.
emissions units or activities at the Reviewing authority means the
(d) What general provisions apply stationary source subject to the
under this program? The following Administrator and may mean an Indian
limitation or standard; tribe in cases where a tribal agency is
general provisions apply to you as an (ii) The time period for the limitation
owner/operator of a stationary source: assisting EPA with administration of the
or standard (e.g., hourly, daily, monthly, program through a delegation under
(1) If you propose to construct a new and/or annual limits such as rolling
major stationary source or a major § 49.173.
annual limits); and Synthetic minor HAP source means a
modification at an existing major (iii) The method to determine
stationary source in a nonattainment stationary source that otherwise has the
compliance, including appropriate
area in Indian country, you must obtain potential to emit HAPs in amounts that
monitoring, recordkeeping, reporting,
a major NSR permit under this program are at or above those for major sources
and testing.
before beginning actual construction. If of HAP in § 63.2 of this chapter, but that
(3) For rules and general permits that
you commence construction after the has taken a restriction such that its
apply to categories of stationary sources,
effective date of this program without potential to emit is less than such
practicable enforceability additionally
applying for and receiving a permit amounts for major sources. Such
requires that the provisions:
pursuant to this program, you will be restrictions must be enforceable as a
(i) Identify the types or categories of
subject to appropriate enforcement practical matter.
sources that are covered by the rule or
action. Synthetic minor source means a
general permit;
(2) If you do not construct or operate (ii) Where coverage is optional, stationary source that otherwise has the
your source or modification in provide for notice to the reviewing potential to emit regulated NSR
accordance with the terms of your major authority of the source’s election to be pollutants in amounts that are at or
NSR permit issued under this program, covered by the rule or general permit; above those for major stationary sources
you will be subject to appropriate and in appendix S to part 51 of this chapter,
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enforcement action. (iii) Specify the enforcement but that has taken a restriction such that
(3) Issuance of a permit under this consequences relevant to the rule or its potential to emit is less than such
program does not relieve you of the general permit. 2 Under this definition, EPA treats as reservations
responsibility to comply fully with Environmental Appeals Board means trust lands validly set aside for the use of a tribe
applicable provisions of any EPA- the Board within the EPA described in even if the trust lands have not been formally
approved implementation plan or FIP § 1.25(e) of this chapter. designated as a reservation.

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amounts for major stationary sources. stationary sources and major including the offset requirement,
Such restrictions must be enforceable as modifications locating in nonattainment provided all the following conditions
a practical matter. The term ‘‘synthetic areas are given in paragraph IV.A of are met:
minor source’’ applies independently appendix S to part 51 of this chapter. In (1) The new major stationary source
for each regulated NSR pollutant that summary, these are the following: or major modification complies with
the stationary source has the potential to (1) The lowest achievable emission any applicable EPA-approved
emit. rate (LAER) requirement for any NSR implementation plan or FIP emission
pollutant subject to this program. limitations.
§ 49.168 Does this program apply to me? (2) Certification that all existing major (2) The new major stationary source
(a) In a nonattainment area in Indian stationary sources owned or operated by or major modification will not interfere
country, the requirements of this you in the same State as the proposed with the attainment date for a regulated
program apply to you under either of source or modification are in NSR pollutant.
the following circumstances: compliance or under a compliance (3) The Administrator has determined
(1) If you propose to construct a new schedule. that conditions specified in paragraphs
major stationary source (as defined in (3) Emissions reductions (offsets) (b)(1) and (2) of this section are satisfied
paragraph II.A.4 of appendix S to part requirement for any source or and such determination is published in
51 of this chapter) of the nonattainment modification subject to this program. the Federal Register.
pollutant. (4) A demonstration that the emission
(2) If you propose to construct a major offsets will provide a net air quality § 49.171 Public participation requirements.
modification at your existing major benefit in the affected area. (a) What permit information will be
stationary source (as defined in publicly available? With the exception
paragraph II.A.5 of appendix S to part § 49.170 Emission offset requirement of any confidential information as
51 of this chapter), where your source exemption. defined in part 2, subpart B of this
is a major stationary source of the An Indian governing body may seek chapter, the reviewing authority must
nonattainment pollutant and the an exemption from the emission offset make available for public inspection the
proposed modification is a major requirement (See § 49.169(b)(3)) for documents listed in paragraphs (a)(1)
modification for the nonattainment major stationary sources and major through (4) of this section. The
pollutant. modifications subject to this program reviewing authority must make such
(b) If you own or operate a major that are located within the tribe(s Indian information available for public
stationary source with a State-issued country pursuant to the following inspection at the appropriate EPA
nonattainment major NSR permit, you options: Regional Office and in at least one
must apply to convert such permit to a (a) Section 173(a)(1)(B) Economic location in the area affected by the
Federal permit under this program by Development Zone (EDZ) option. Under stationary source, such as the tribal
[date 1 year and 60 days from date of section 173(a)(1)(B) of the Act, major environmental office or a local library.
publication of final rule]. In this case, stationary sources and major (1) All information submitted as part
you would not be subject to any modifications subject to this program of an application for a permit.
additional requirements under this may be exempted from the offset (2) Any additional information
program. requirement if they are located in a zone requested by the reviewing authority.
(c) If you propose to establish a targeted for economic development by (3) The reviewing authority’s analysis
synthetic minor source or synthetic the Administrator, in consultation with of the application and any additional
minor HAP source, or to construct a the Department of Housing and Urban information submitted by you,
minor modification at your major Development (HUD). Under the EDZ including the LAER analysis and, where
stationary source, you will have to option, the Administrator would waive applicable, the analysis of your
comply with the requirements of the the offset requirement for such sources emissions reductions (offsets) and your
Federal minor NSR program in Indian and modifications, provided that: demonstration of a net air quality
country at §§49.51 through 49.165 or (1) The new major stationary source benefit in the affected area.
other EPA-approved minor NSR or major modification is located in a (4) A copy of the draft permit or the
program, as applicable. geographical area which meets the decision to deny the permit with the
criteria for an EDZ, and the justification for denial.
§ 49.169 Permit approval criteria. Administrator has approved a request (b) How will the public be notified
(a) What are the general criteria for from a tribe and declared the area an and participate? (1) Before issuing a
permit approval? The general review EDZ; and permit under this program, the
criteria for permits are provided in (2) The State/tribe demonstrates that reviewing authority must prepare a draft
paragraph II.B of appendix S to part 51 the new permitted emissions are permit and must provide adequate
of this chapter. In summary, that consistent with the achievement of public notice to ensure that the affected
paragraph basically requires the reasonable further progress pursuant to community and the general public have
reviewing authority to ensure that the section 172(c)(4) of the Act, and will not reasonable access to the application and
proposed new major stationary source interfere with attainment of the draft permit information, as set out in
or major modification would meet all applicable NAAQS by the applicable paragraphs (b)(1)(i) and (ii) of this
applicable emission requirements in the attainment date. section. The public notice must provide
EPA-approved implementation plan or (b) Appendix S, paragraph VI option. an opportunity for public comment and
FIP, any applicable NSPS in part 60 of Pursuant to paragraph VI of appendix S notice of a public hearing, if any, on the
this chapter, and any applicable to part 51 of this chapter, for a new draft permit.
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NESHAP in part 61 or part 63 of this major stationary source or major (i) The reviewing authority must mail
chapter, before a permit can be issued. modification locating in a a copy of the notice to you, the
(b) What are the program-specific nonattainment area for which the appropriate Indian governing body, and
criteria for permit approval? The attainment date has not yet passed, such the tribal, State, and local air pollution
approval criteria or conditions for source or modification would be exempt authorities having jurisdiction in areas
obtaining a major NSR permit for major from all requirements of this program, outside of the area of Indian country

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potentially impacted by the air least 30 days from the date of the public affected community, general public, and
pollution source. notice for comments, and for requests any individuals who commented on the
(ii) Depending on such factors as the for a public hearing. draft permit have reasonable access to
nature and size of your stationary (c) How will the public comment, and the decision and supporting materials.
source, local air quality considerations, will there be a public hearing? (1) Any A final permit becomes effective 30 days
and the characteristics of the population person may submit written comments after permit issuance, unless:
in the affected area, the reviewing on the draft permit and may request a (1) A later effective date is specified
authority must use appropriate means of public hearing. These comments must in the permit; or
notification, such as those listed in raise any reasonably ascertainable issue (2) Review of the final permit is
paragraphs (b)(1)(ii)(A) through (E) of with supporting arguments by the close requested under paragraph (d) of this
this section. of the public comment period section (in which case the specific terms
(A) The reviewing authority may mail (including any public hearing). The and conditions of the permit that may
or e-mail a copy of the notice to persons reviewing authority must consider all be the subject of the request for review
on a mailing list developed by the comments in making the final decision. must be stayed); or
reviewing authority consisting of those The reviewing authority must keep a (3) The draft permit was subjected to
persons who have requested to be record of the commenters and of the a public comment period and no
placed on such a mailing list. issues raised during the public comments requested a change in the
(B) The reviewing authority may post participation process, and such records draft permit or a denial of the permit, in
the notice on its Web site. must be available to the public. which case the reviewing authority may
(C) The reviewing authority may (2) The reviewing authority must make the permit effective immediately
publish the notice in a newspaper of extend the public comment period upon issuance.
general circulation in the area affected under paragraph (b) of this section to (b) For how long will the reviewing
by the source. Where possible, the the close of any public hearing under authority retain my permit-related
notice may also be published in a tribal this section. The hearing officer may records? The records, including any
newspaper or newsletter. also extend the comment period by so required applications for each draft and
(D) The reviewing authority may stating at the hearing. final permit or application for permit
provide copies of the notice for posting (3) A request for a public hearing revision, must be kept by the reviewing
at one or more locations in the area must be in writing and must state the authority for not less than 5 years.
affected by the source, such as Post nature of the issues proposed to be (c) What is the administrative record
Offices, trading posts, libraries, tribal raised at the hearing. for each final permit? (1) The reviewing
environmental offices, community (4) The reviewing authority must hold authority must base final permit
centers, or other gathering places in the a hearing whenever there is, on the basis decisions on an administrative record
community. of requests, a significant degree of consisting of:
(E) The reviewing authority may public interest in a draft permit. The (i) All comments received during any
employ other means of notification as reviewing authority may also hold a public comment period, including any
appropriate. public hearing at its discretion, extension or reopening;
(2) The notice required pursuant to whenever, for instance, such a hearing (ii) The tape or transcript of any
paragraph (b)(1) of this section must might clarify one or more issues hearing(s) held;
include the following information at a involved in the permit decision. The (iii) Any written material submitted at
minimum: reviewing authority must provide notice such a hearing;
(i) Identifying information, including of any public hearing at least 30 days (iv) Any new materials placed in the
your name and address (and plant name prior to the date of the hearing. Public record as a result of the reviewing
and address if different) and the name notice of the hearing may be concurrent authority’s evaluation of public
and telephone number of the plant with that of the draft permit, and the comments;
manager/contact. two notices may be combined. (v) Other documents in the supporting
(ii) The name and address of the Reasonable limits may be set upon the files for the permit that were relied
reviewing authority processing the time allowed for oral statements at the upon in the decisionmaking;
permit action; hearing. (vi) The final permit;
(iii) The regulated NSR pollutants to (5) The reviewing authority must (vii) The application and any
be emitted, the affected emissions units, make a tape recording or written supporting data furnished by the
and the emission limitations for each transcript of any hearing available to the applicant;
affected emissions unit; public. (viii) The draft permit or notice of
(iv) The emissions change involved in intent to deny the application or to
the permit action; § 49.172 Final permit issuance and terminate the permit; and
(v) Instructions for requesting a public administrative and judicial review. (ix) Other documents in the
hearing; (a) How will final action occur, and supporting files for the draft permit that
(vi) The name, address, and telephone when will my permit become effective? were relied upon in the decisionmaking.
number of a contact person in the After decision on a permit, the (2) The additional documents
reviewing authority’s office from whom reviewing authority must notify you of required under paragraph (c)(1) of this
additional information may be obtained; the decision, in writing, and if the section should be added to the record as
(vii) Locations and times of permit is denied, of the reasons for such soon as possible after their receipt or
availability of the information (listed in denial. If the reviewing authority issues publication by the reviewing authority.
paragraph (a) of this section) for public a final permit to you, it must make a The record must be complete on the
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inspection; and copy of the permit available at any date the final permit is issued.
(viii) A statement that any person may location where the draft permit was (3) Material readily available or
submit written comments, a written made available. In addition, the published materials that are generally
request for a public hearing, or both, on reviewing authority must provide available and that are included in the
the draft permit action. The reviewing adequate public notice of the final administrative record under the
authority must provide a period of at permit decision to ensure that the standards of paragraph (c)(1) of this

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

section need not be physically included (ii) An exercise of discretion or an Administrator and the Administrator
in the same file as the rest of the record important policy consideration that the has issued the final order. A motion for
as long as it is specifically referred to in Board should, in its discretion, review. reconsideration must not stay the
that file. (4) The Board may also decide on its effective date of the final order unless
(d) Can permit decisions be appealed? own initiative to review any condition specifically so ordered by the Board.
Permit decisions may be appealed of any permit issued under this (10) For purposes of this section, time
according to the following provisions: program. periods are computed as follows:
(1) The Administrator delegates (5) Within a reasonable time following (i) Any time period scheduled to
authority to the Environmental Appeals the filing of the petition for review, the begin on the occurrence of an act or
Board (the Board) to issue final Board must issue an order either event must begin on the day after the act
decisions in permit appeals filed under granting or denying the petition for or event.
this program, including informal review. To the extent review is denied, (ii) Any time period scheduled to
appeals of denials of requests for the conditions of the final permit begin before the occurrence of an act or
modification, revocation and re- decision become final agency action. If event must be computed so that the
issuance, or termination of permits the Board grants review in response to period ends on the day before the act or
under paragraph (e)(2) of this section. requests under paragraph (d)(2) or (4) of event, except as otherwise provided.
An appeal directed to the this section, public notice must be given (iii) If the final day of any time period
Administrator, rather than to the Board, as provided in § 49.171(b). Public notice falls on a weekend or legal holiday, the
will be forwarded to the Board for must set forth a briefing schedule for the time period must be extended to the
consideration. This delegation does not appeal and must state that any next working day.
preclude the Board from referring an interested person may file an amicus (iv) Whenever a party or interested
appeal or a motion under this program brief. If the Board denies review, the person has the right or is required to act
to the Administrator when the Board, in permit applicant and the person(s) within a prescribed period after the
its discretion, deems it appropriate to do requesting review must be notified service of notice or other paper upon
so. When an appeal or motion is through means that are adequate to him or her by mail, 3 days must be
referred to the Administrator by the assure reasonable access to the decision, added to the prescribed time.
Board, all parties shall be so notified which may include mailing a notice to (e) Can my permit be reopened? Your
and the provisions of this program each. permit can be reopened according to the
referring to the Board shall be (6) A petition to the Board under
following procedures:
interpreted as referring to the paragraph (d)(2) of this section is, under
(1) Any person (including the
Administrator. 42 U.S.C. 307(b), a prerequisite to
permittee) may petition the reviewing
(2) Within 30 days after a final permit seeking judicial review of the final
authority to reopen a permit for cause,
decision has been issued, any person agency action.
(7) For purposes of judicial review, and the reviewing authority may
who filed comments on the draft permit commence a permit reopening on its
final agency action occurs when a final
or participated in the public hearing own initiative. The reviewing authority
permit is issued or denied by the
may petition the Board to review any may not reopen a permit for cause
reviewing authority and agency review
condition of the permit decision. Any unless it contains a material mistake or
procedures are exhausted. A final
person who failed to file comments and fails to assure compliance with
permit decision must be issued by the
failed to participate in the public applicable requirements. All requests
reviewing authority:
hearing on the draft permit may petition (i) When the Board issues notice to must be in writing and must contain
for administrative review only to the the parties that review has been denied; reasons supporting the request.
extent that the changes from the draft to (ii) When the Board issues a decision (2) If the reviewing authority decides
the final permit or other new grounds on the merits of the appeal and the the request is not justified, the
were not reasonably foreseeable during decision does not include a remand of reviewing authority must send the
the public comment period on the draft the proceedings; or requestor a brief written response giving
permit. The 30-day period within which (iii) Upon the completion of remand a reason for the decision. Denials of
a person may request review under this proceedings if the proceedings are requests for revision, revocation and re-
section begins when the reviewing remanded, unless the Board’s remand issuance, or termination are not subject
authority has fulfilled the notice order specifically provides that appeal to public notice, comment, or hearings.
requirements for the final permit of the remand decision will be required Denials by the reviewing authority may
decision, unless a later date is specified to exhaust administrative remedies. be informally appealed to the Board by
in that notice. (8) Notice of any final agency action a letter briefly setting forth the relevant
(3) The petition must include a on a permit shall promptly be published facts. The Board may direct the
statement of the reasons supporting the in the Federal Register. reviewing authority to begin revision,
review, including a demonstration that (9) Motions to reconsider a final order revocation and re-issuance, or
any issues identified were raised during must be filed within 10 days after termination proceedings under
the public comment period (including service of the final order. Every such paragraph (e)(3) of this section. The
any public hearing) to the extent motion must set forth the matters appeal must be considered denied if the
required by these regulations, unless the claimed to have been erroneously Board takes no action within 60 days
petitioner demonstrates that it was decided and the nature of the alleged after receiving it. This informal appeal
impracticable to raise such objections errors. Motions for reconsideration is, under 42 U.S.C. 307, a prerequisite
within such period or unless the under this provision must be directed to seeking judicial review of EPA action
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grounds for such objection arose after to, and decided by, the Board. Motions in denying a request for revision,
such period, and, when appropriate, a for reconsideration directed to the revocation and re-issuance, or
showing that the condition in question Administrator, rather than to the Board, termination.
is based on: will be forwarded to the Board for (3) If the reviewing authority decides
(i) A finding of fact or conclusion of consideration, except in cases in which the request is justified and that cause
law that is clearly erroneous; or the Board has deferred to the exists to revise, revoke and reissue or

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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48749

terminate a permit, it shall initiate (ii) Identifies the Indian Reservation consultation with the delegate tribal
proceedings to reopen the permit. or other areas of Indian country for agency.
which delegation is requested; (5) Transmission of information to the
§ 49.173 Administration and delegation of Administrator. When administration of
(iii) Includes a statement by the
the nonattainment major NSR program in a portion of the Federal nonattainment
Indian country. applicant’s legal counsel (or equivalent
official) that includes the following major NSR program in Indian country
(a) Who administers a nonattainment that includes receipt of permit
information:
major NSR Program in Indian Country? application materials and preparation of
(A) A statement that the applicant is
(1) If the Administrator has approved a draft permits has been delegated in
a tribe recognized by the Secretary of
TIP that includes a major NSR program accordance with the provisions of this
the Interior;
for stationary sources in nonattainment section, the delegate tribal agency must
areas of Indian country that meets the (B) A descriptive statement that is
consistent with the type of information provide to the Administrator a copy of
requirements of part D of title I of the each permit application (including any
Act and § 51.165 of this chapter, the described in § 49.7(a)(2) demonstrating
that the applicant is currently carrying application for permit revision) and
tribe is the reviewing authority and will each draft permit. The applicant may be
administer the approved major NSR out substantial governmental duties and
powers over a defined area; and required by the delegate tribal agency to
program under tribal law. provide a copy of the permit application
(2) If the Administrator has not (C) A description of the laws of the
tribe that provide adequate authority to directly to the Administrator. With the
approved an implementation plan, the Administrator’s consent, the delegate
Administrator may delegate the administer the Federal rules and
provisions for which delegation is tribal agency may submit to the
authority to assist EPA with Administrator a permit application
administration of portions of this requested; and
(iv) Demonstrates that the tribal summary form and any relevant portion
Federal nonattainment major NSR of the permit application, in place of the
program implemented under Federal agency has the technical capability and
adequate resources to administer the FIP complete permit application. To the
authority to a tribal agency upon extent practicable, the preceding
request, in accordance with the provisions for which the delegation is
information should be provided in
provisions of paragraph (b) of this requested.
electronic format as requested by the
section. If the tribal agency has been (2) Delegation of Partial
Administrator.
granted such delegation, it will have the Administrative Authority Agreement. A (6) Waiver of information
authority to assist EPA according to Delegation of Partial Administrative transmission requirements. The
paragraph (b) of this section. Authority Agreement (Agreement) will Administrator may waive the
(3) If the Administrator has not set forth the terms and conditions of the requirements of paragraph (b)(5) of this
approved an implementation plan or delegation, will specify the provisions section for any category of stationary
granted delegation to a tribal agency, the that the delegate tribal agency will be sources (including any class, type, or
Administrator is the reviewing authority authorized to implement on behalf of size within such category) by
and will directly administer all aspects EPA, and will be entered into by the transmitting the waiver in writing to the
of this Federal nonattainment major Administrator and the delegate tribal delegate tribal agency.
NSR program in Indian country under agency. The Agreement will become (7) Retention of records. Where a
Federal authority. effective upon the date that both the delegate tribal agency prepares draft or
(b) Delegation of administration of the Administrator and the delegate tribal final permits or receives applications for
Federal nonattainment major NSR agency have signed the Agreement or as permit revisions on behalf of EPA, the
program to tribes. This paragraph (b) otherwise stated in the Agreement. Once records for each draft and final permit
establishes the process by which the the delegation becomes effective, the or application for permit revision must
Administrator may delegate authority to delegate tribal agency will be be kept by the delegate tribal agency for
a tribal agency, with or without responsible, to the extent specified in a period not less than 5 years. The
signature authority, to assist EPA with the Agreement, for assisting EPA with delegate tribal agency must also submit
administration of portions of this administration of the provisions of the to the Administrator such information
Federal nonattainment major NSR Federal nonattainment major NSR as the Administrator may reasonably
program, in accordance with the program that are subject to the require to ascertain whether the delegate
provisions in paragraphs (b)(1) through Agreement. tribal agency is implementing and
(8) of this section. Any Federal (3) Publication of notice of the administering the delegated program in
requirements under this program that Agreement. The Administrator will compliance with the requirements of the
are administered by the delegate tribal publish a notice in the Federal Register Act and of this program.
agency will be subject to enforcement by informing the public of any Agreement (8) Delegation of signature authority.
EPA under Federal law. This section for a particular area of Indian country. To receive delegation of signature
provides for administrative delegation The Administrator also will publish the authority, the legal statement submitted
of the Federal nonattainment major NSR notice in a newspaper of general by the tribal agency pursuant to
program and does not affect the circulation in the area affected by the paragraph (b)(1) of this section must
eligibility criteria under § 49.6 for delegation. In addition, the certify that no applicable provision of
treatment in the same manner as a State. Administrator will mail a copy of the tribal law requires that a major NSR
(1) Information to be included in the notice to persons on a mailing list permit be issued after a certain time if
Administrative Delegation Request. In developed by the Administrator the delegate tribal agency has failed to
order to be delegated authority to assist consisting of those persons who have take action on the application (or
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EPA with administration of this FIP requested to be placed on such a includes any other similar provision
permit program for stationary sources, mailing list. providing for default issuance of a
the tribal agency must submit a request (4) Revision or revocation of an permit).
to the Administrator that: Agreement. An Agreement may be (c) Are there any non-delegable
(i) Identifies the specific provisions modified, amended, or revoked, in part elements of the Federal nonattainment
for which delegation is requested; or in whole, by the Administrator after major NSR program in Indian country?

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

The following authorities cannot be (3) After approval of a program for Appendix S to Part 51—Emission Offset
delegated outside of EPA: issuing nonattainment major NSR Interpretative Ruling
(1) The Administrator’s authority to permits and the suspension of issuance * * * * *
object to the issuance of a major NSR of nonattainment major NSR permits by II. * * *
permit. the Administrator, the Administrator B. Review of all sources for emission
(2) The Administrator’s authority to will continue to administer limitation compliance. The reviewing
nonattainment major NSR permits until authority must examine each proposed major
enforce, revoke, or terminate permits
permits are issued under the approved new source and proposed major
issued pursuant to this program. modification 1 to determine if such a source
(d) How will EPA transition its implementation plan program.
will meet all applicable emission
authority to an approved nonattainment §§ 49.174–49.175 [Reserved] requirements in the SIP, any applicable new
major NSR program? (1) The source performance standard in 40 CFR part
Administrator will suspend the issuance 60, or any national emission standard for
PART 51—[AMENDED]
of nonattainment major NSR permits hazardous air pollutants in 40 CFR part 61
or part 63. If the reviewing authority
under this program promptly upon 4. The authority citation for part 51 determines that the proposed major new
publication of notice of approval of an continues to read as follows: source cannot meet the applicable emission
implementation plan with a major NSR requirements, the permit to construct must be
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
permit program for nonattainment areas. denied.
7671q.
(2) The Administrator may retain * * * * *
jurisdiction over the permits for which Appendix S to Part 51—[Amended] [FR Doc. 06–6926 Filed 8–18–06; 8:45 am]
the administrative or judicial review
5. Appendix S to Part 51 is amended BILLING CODE 6560–50–P
process is not complete and will address
this issue in the notice of program by revising paragraph II.B to read as 1 Hereafter the term source will be used to denote

approval. follows:
both any source and any modification.
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