21 August 2006
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[Federal Register: August 21, 2006 (Volume 71, Number 161)]
[Proposed Rules]
[Page 48695-48750]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21au06-34]
[[Page 48695]]
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Part V
Environmental Protection Agency
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40 CFR Parts 49 and 51
Review of New Sources and Modifications in Indian Country; Proposed
Rule
[[Page 48696]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 49 and 51
[EPA-HQ-OAR-2003-0076; FRL-8210-4]
RIN 2060-AH37
Review of New Sources and Modifications in Indian Country
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to
promulgate a Federal Implementation Plan (FIP) under the Clean Air Act
(the Act) for tribes in Indian country. The FIP would include two basic
air quality regulations for the protection of communities in Indian
country. The first rule would apply to minor stationary sources and
minor modifications at major stationary sources in Indian country
(minor NSR rule). The second rule would apply to all new major
stationary sources and major modifications located in areas of Indian
country that are designated as not attaining the National Ambient Air
Quality Standards (NAAQS) (nonattainment major NSR rule). These rules
would be implemented by EPA, or a delegate tribal agency assisting EPA
with administration of the rules, until replaced by an EPA-approved
tribal implementation plan for an area of Indian country.
DATES: Comments. Comments must be received on or before November 20,
2006. Under the Paperwork Reduction Act, comments on the information
collection provisions must be received by OMB on or before September
20, 2006.
Public Hearing. If anyone contacts us requesting to speak at a
public hearing by September 11, 2006, we will hold a public hearing.
Additional information about the hearing would be published in a
subsequent Federal Register notice.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0076, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: a-and-r-docket@epamail.epa.gov.
Fax: 202-566-1741.
Mail: Attention Docket ID No. EPA-HQ-OAR-2003-0076, U.S.
Environmental Protection Agency, EPA West (Air Docket), 1200
Pennsylvania Avenue, Northwest, Mailcode: 6102T, Washington, DC 20460.
Please include a total of 2 copies. In addition, please mail a copy of
your comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC
20503.
Hand Delivery: U.S. Environmental Protection Agency, EPA
West (Air Docket), 1301 Constitution Avenue, Northwest, Room B-102,
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2003-0076.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0076. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional instructions on submitting
comments, go to I C & D of the SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov
index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Air Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.
FOR FURTHER INFORMATION CONTACT: For technical information, contact Raj
Rao, Air Quality Policy Division, U.S. EPA, Office of Air Quality
Planning and Standards (C504-03), Research Triangle Park, North
Carolina 27711, telephone number (919) 541-5344, facsimile number (919)
541-5509, electronic mail e-mail address: rao.raj@epa.gov. To request a
public hearing or information pertaining to a public hearing on this
document, contact Ms. Pamela S. Long, Air Quality Policy Division, U.S.
EPA, Office of Air Quality Planning and Standards (C504-03), Research
Triangle Park, North Carolina 27711, telephone number (919) 541-0641,
facsimile number (919) 541-5509, electronic mail e-mail address:
long.pam@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this proposed action include
owners and operators of emission sources in all industry groups located
in Indian country, EPA, and tribal governments that are delegated
administrative authority to assist EPA with the implementation of these
Federal regulations. Categories and entities potentially affected by
this action are expected to include:
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Category NAICS a Examples of regulated entities
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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.
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a North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in the proposed minor and
major NSR programs for Indian country, proposed 40 CFR 49.153 and
49.168, respectively. If you have any questions regarding the
applicability of this action to a particular entity, contact the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. Send or deliver information
identified as CBI only to the following address: Roberto Morales, OAQPS
Document Control Officer (C404-02), U.S. EPA, Research Triangle Park,
NC 27711, Attention Docket ID No. EPA-HQ-OAR-2003-0076.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
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Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where Can I get a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
this proposal will also be available on the http://WWW. Following signature by
the EPA Administrator, a copy of this notice will be posted in the
regulations and standards section of our NSR home page located at
http://www.epa.gov/nsr and on the tribal air home page at http://www
.epa.gov/oar/tribal.
D. How Can I Find Information About a Possible Hearing?
Persons interested in presenting oral testimony should contact Ms.
Pamela Long, New Source Review Group, Air Quality Policy Division
(C504-03), U.S. EPA, Research Triangle Park, NC 27711, telephone number
(919) 541-0641 or e-mail long.pam@epa.gov at least 2 days in advance of
the public hearing. Persons interested in attending the public hearing
should also contact Ms. Long to verify the time, date, and location of
the hearing. The public hearing will provide interested parties the
opportunity to present data, views, or arguments concerning these
proposed rules.
E. Overview of Rule
In this rulemaking, we \1\ are proposing to fill a regulatory gap
that currently exists in Indian country. We are proposing two new
source review (NSR) rules under which the reviewing authority will
issue pre-construction permits for certain stationary sources of air
pollution in Indian country. These proposed rules would provide
additional regulatory tools for us to use in implementing the Act in
Indian country. The minor NSR rule would apply to new and modified
minor sources and to minor modifications at major stationary sources.
Sources subject to this rule would apply control technology, if any, as
determined by the reviewing authority on a case-by-case basis. In rare
instances at the discretion of the reviewing authority, such sources
may also be required to submit an air quality analysis as part of their
permit application. We are proposing to establish minor NSR thresholds
so that only minor sources with a potential to emit (PTE) equal to or
higher than these thresholds would be subject to this rule.
Additionally, this rule would allow otherwise major stationary sources
in Indian country to voluntarily accept emission limitations on their
PTE to become ``synthetic minor sources.'' Such synthetic minor sources
would include sources that emit hazardous air pollutants (HAP). In such
a case, they would not be subject to major source MACT regulations
under 40 CFR part 63. Any limitations on PTE must be enforceable as a
practical matter (that is, legally and practically enforceable).
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\1\ In this proposal, the term ``we'' refers to the EPA and the
term ``you'' refers to stationary sources of air pollution and their
owners and operators.
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Under the nonattainment major NSR rule, affected sources would be
required to comply with the provisions of 40 CFR part 51, appendix S, a
transitional rule which generally applies to areas that do not have a
State Implementation Plan (SIP). Sources subject to this rule would be
subject to requirements for Lowest Achievable Emission Rate (LAER)
control technology, emissions offsets, compliance certification, and
net air quality benefit analysis. Due to the limited number of sources
in Indian country, offsets are not generally available. We have
proposed options for addressing the lack of availability of offsets in
Indian country.
The information presented in this preamble is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
C. Where Can I get a Copy of This Document and Other Related
Information?
D. How Can I Find Information About a Possible Hearing?
E. Overview of Rule.
II. Purpose
III. Background
A. The New Source Review (NSR) Program
1. What are the general requirements of the major NSR program?
2. What are the general requirements of the minor NSR program?
B. Status of Air Quality Programs in Indian Country
C. Consultation With Tribal Representatives
IV. Proposed Rules for Indian Country
A. Minor NSR Program
1. What is a minor source and which minor sources are subject to
this rule?
2. What is a modification and what modifications are subject to
this rule?
3. What are the minor NSR thresholds and how did we develop
them?
4. Are any emissions units and activities at stationary sources
exempt from this rule?
5. What are the permit application, control technology, and air
quality analysis requirements, and what is the permit issuance
process?
6. When are modifications subject to this rule?
7. Why do we believe that an allowable-to-allowable test is
appropriate for minor sources?
8. Is your existing minor source subject to this rule?
9. How are ``synthetic minor sources'' subject to this rule?
10. How would section 112(g) case-by-case MACT determinations be
addressed by this rule?
11. What are the proposed requirements for public participation
in the permitting process?
12. What are the monitoring, recordkeeping, and reporting
requirements?
13. What are the criteria for general permits, what source
categories generally qualify for them, and what are the permit
application requirements for a general permit?
14. What is the administrative and judicial review process
proposed for this program?
B. Major NSR Program in Nonattainment Areas of Indian Country
1. What are the requirements for major source permitting under
appendix S?
2. What are the options we are proposing to address the lack of
available offsets in Indian country?
3. What are the proposed public participation requirements for
this program?
4. How do I meet the statewide compliance certification
requirement of the Act?
V. Legal Basis, Statutory Authority, and Jurisdictional Issues
A. What is the basis for our authority to implement these
programs?
B. How does a tribe receive delegation to assist EPA with
administration of the Federal minor and major NSR rules?
C. What happens to permits previously issued by States to
sources in Indian country?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
J. National Technology Transfer Advancement Act
VII. Statutory Authority
II. Purpose
The purpose of today's rulemaking is to ensure that air resources
in Indian country will be protected in the manner intended by the Act
as amended in 1990 by establishing a permitting program for
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stationary sources in Indian country. Currently in Indian country,
there is no permitting mechanism for new or modified minor sources;
minor modifications at major sources; or new major stationary sources
or major modifications of regulated NSR pollutants in nonattainment
areas. In addition, there is no minor source permitting mechanism for
major stationary sources looking to voluntarily limit emissions to
become synthetic minor sources \2\ or for approving case-by-case
maximum achievable control technology (MACT) determinations. Today's
proposed rules will fill this regulatory gap and provide regulatory
certainty to allow for environmentally sound economic growth in Indian
country. By establishing this FIP for Indian country, we will provide
more consistency with the requirements and programs of the States and
thus create a more level regulatory playing field for owners and
operators within and outside of Indian country. We are proposing these
permit programs pursuant to section 110(a)(2)(C), part D of title I,
and section 301(d) of the Act.
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\2\ Sources located within the exterior boundaries of Indian
reservations in Idaho, Oregon, and Washington can apply for a non-
Title V operating permit to establish synthetic minor status under
the FIP established for those reservations. See 40 CFR 49.139 and 40
CFR part 49, subpart M.
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III. Background
A. The New Source Review (NSR) Program
1. What are the general requirements of the major NSR program?
The major NSR program contained in parts C and D of title I of the
Act is a preconstruction review and permitting program applicable to
new major stationary sources and major modifications at such sources.
In areas not meeting health-based NAAQS and in ozone transport regions
(OTR), the program is implemented under the requirements of part D of
title I of the Act. We call this program the ``nonattainment'' major
NSR program. In areas meeting the NAAQS (``attainment'' areas) or for
which there is insufficient information to determine whether they meet
the NAAQS (``unclassifiable'' areas), the NSR requirements under part C
of title I of the Act apply. We call this program the Prevention of
Significant Deterioration (PSD) program. Collectively, we also commonly
refer to these programs as the major NSR program. These rules are
contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51,
appendices S and W.
For newly constructed, ``greenfield'' sources, the determination of
whether a source is subject to the major NSR program is based on the
source's PTE. The Act, as implemented by our rules, sets applicability
thresholds for major sources in nonattainment areas. These thresholds
are 100 tons per year (tpy) of any pollutant subject to regulation
under the Act, or smaller amounts, depending on the nonattainment
classification. For attainment areas the thresholds are 100 or 250 tpy,
depending on the source type. A new source with a PTE at or above the
applicable threshold amount ``triggers,'' or is subject to, major NSR.
For existing major sources, major NSR applies to a ``major
modification.'' For a modification to be major, the following three
criteria have to be met:
(1) A physical change in or change in the method of operation of a
major stationary source must occur;
(2) The increase in emissions resulting from this change must be
significant (equal to or above the significance levels defined in 40
CFR 52.21(b)(23)); and
(3) The increase in emissions resulting from the change must be a
significant net emissions increase. In other words, when the increase
from the project is added to other contemporaneous increases or
decreases in actual emissions \3\ at the source, the net emissions
increase must be significant (equal to or above the significance levels
defined in 40 CFR 52.21(b)(23)).
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\3\ In approximate terms, ``contemporaneous'' emissions
increases or decreases are those that have occurred between the date
5 years immediately preceding the proposed physical or operational
change and the date that the increase from the change occurs. See,
for example, 40 CFR 52.21(b)(3)(ii).
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Major sources and major modifications subject to nonattainment
major NSR must apply state-of-the-art emissions control technologies,
including any pollution prevention measures, to achieve the LAER. The
LAER is based on the most stringent emission limitation in the
implementation plan of any State, or achieved in practice, for the
source category under review.
Each major source subject to nonattainment major NSR must also
``offset'' its emissions increase by obtaining emissions reductions
from other sources in the area, or in an area of equal or higher
nonattainment classification that contributes to nonattainment in the
subject source's area. The ratio of the offset relative to the proposed
increase must be at least one-to-one and is based on the severity of
the area's nonattainment classification. For ozone and particulate
matter less than 10 microns in aerodynamic diameter (PM-10), the more
polluted the air is where the source is locating or expanding, the
greater is the required offset ratio. The emissions reductions to be
used as offsets must be surplus (not otherwise required by the Act),
quantifiable, federally enforceable, and permanent. See sections 173(a)
and (c) of the Act and 40 CFR 51.165(a)(3).
Additionally, each major nonattainment NSR permit applicant must
also conduct an analysis of ``alternative sites, sizes, production
processes, and environmental control techniques demonstrating that the
benefits of the proposed emissions source significantly outweigh the
environmental and social costs of its location, construction, or
modification.'' Moreover, each major nonattainment NSR permit applicant
must demonstrate that all other major stationary sources under her/his
control in the same State are in compliance or on a schedule of
compliance with all emission limitations and standards of the Act.
Under the PSD program for attainment areas, a major source or
modification must apply Best Available Control Technology (BACT), which
may be based on pollution prevention techniques. In addition, the
source must analyze the impact of the project on ambient air quality to
assure that no violation of the NAAQS or PSD increments will result,
and must analyze impacts on soil, vegetation, and visibility. Sources
or modifications that would impact Class I areas (e.g., national parks)
may be subject to additional requirements to protect air quality
related values (AQRVs) that have been identified for such areas.
2. What are the general requirements of the minor NSR program?
Section 110(a)(2)(C) of the Act requires that every SIP include a
program to regulate the construction and modification of stationary
sources, including a permit program as required by parts C and D of
title I of the Act, to ensure attainment and maintenance of NAAQS.
Parts C and D address the major NSR program for major stationary
sources, and the permitting program for minor stationary sources is
addressed by section 110(a)(2)(C) of the Act. We commonly refer to the
latter program as the ``minor NSR'' program. A minor stationary source
means a source whose PTE is lower than the major source applicability
threshold for a particular pollutant as defined in the applicable
nonattainment major NSR program or PSD program.
[[Page 48700]]
The Federal requirements for minor source programs are outlined 40
CFR 51.160 through 51.164. States must develop minor source programs to
attain and maintain NAAQS. The Federal regulations for minor source
programs are considerably less detailed than the requirements for major
sources. As a result, there is a wider variety of programs and
requirements for these ``nonmajor'' preconstruction activities.
Section 110(a)(2)(C) of the Act provides us with a broad degree of
discretion in developing a program to regulate new and modified minor
stationary source construction activities in Indian country.
B. Status of Air Quality Programs in Indian Country
As we have discussed in previous rulemaking actions which affect
Indian country, in the absence of an EPA-approved program, we are
authorized to develop a FIP to protect air quality by directly
implementing provisions of the Act throughout Indian country. See,
e.g., 59 FR 43958-61 (August 25, 1994), 63 FR 7262-64 (February 12,
1998), and 62 FR 13750 (March 21, 1997). Previously, we had already
promulgated rules establishing requirements for major stationary
sources in attainment areas and have issued PSD permits in Indian
country (See 40 CFR 52.21).
Under the Act and the Tribal Authority Rule (TAR) (See 40 CFR part
49, subpart A), eligible tribes may seek approval of their own PSD
programs for their reservations and/or for other areas under their
jurisdiction. Currently, no tribe is administering an EPA-approved PSD
program. Therefore, we implement the PSD program in Indian country.
Unlike for the PSD program, there is currently no FIP to implement
either the nonattainment major NSR program or the minor NSR program in
Indian country. Hence, there is a regulatory gap in Indian country.
Today's proposed rule will allow us to fully implement the NSR program
in Indian country. We are proposing the minor NSR program at 40 CFR
49.151 through 49.165 and the nonattainment major NSR program at 40 CFR
49.166 through 49.175. It is important to recognize, however, that even
if we adopt a Federal program that applies in Indian country, the
tribes may still develop Tribal Implementation Plans (TIPs), similar to
SIPs, to implement these programs. If a tribe develops a TIP to
implement NSR, the TIP, once it is approved, will replace the Federal
program as the requirement for that area of Indian country and the
tribe will become the reviewing authority.
Sources that obtain enforceable emission limitations can avoid
major source status by reducing their PTE below the applicable major
source thresholds. Such sources are commonly referred to as ``synthetic
minors.'' The practice of creating synthetic minor sources to avoid
major NSR and title V is common under most State and local minor NSR
permitting programs. However, outside of Idaho, Oregon, and Washington,
no such minor source permitting mechanism is currently available in
Federal regulations for Indian country.\4\ We therefore believe that
inclusion of this provision in the proposed rules would significantly
benefit large sources in Indian country by providing them with a means
to legally avoid more stringent major NSR rules otherwise required by
title I of the Act. We are establishing this mechanism for both
stationary sources of regulated NSR pollutants and HAPs.
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\4\ See footnote 2 for more information on the FIP that is in
place in within the exterior boundaries of Indian reservations in
these three States.
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C. Consultation With Tribal Representatives
Prior to undertaking this rulemaking, we sought to include tribes
early in the rulemaking process. On June 24, 2002, we sent
approximately 500 letters to tribal leaders seeking their
recommendations for effective consultation and their involvement in
developing this rule.
We received responses from 75 tribes. Of these 75 tribes, 69
designated an environmental staff member to work with us on developing
the rules. Aside from the designated staff, many tribal leaders asked
that we keep them informed of our progress through e-mail, meetings
with the EPA Regional Offices, newsletters, and Web sites. However, 53
percent of the tribal leaders also requested direct phone calls or
conference calls to discuss the subject. Only 16 percent of the
respondents requested face-to-face consultation. Of these, only six
tribes requested senior EPA staff to meet with tribal leaders.
As a result of this feedback, we developed a consultation plan that
included three meetings held at the reservations of the Menominee Tribe
in Wisconsin, the Mohegan Tribe in Connecticut, and the Chehalis Tribe
in Washington. A fourth meeting was held in conjunction with the
Institute of Tribal Environmental Professionals' (ITEP) 10th
anniversary meeting in Flagstaff, Arizona. In addition to conducting
these meetings, we also visited tribal environmental staff in Indian
country. Over 30 tribes attended these meetings. As part of our
outreach efforts to the tribes, we participated in numerous national
and regional forums including the National Tribal Forums sponsored by
the ITEP, two National Tribal Air Association meetings, and at meetings
with tribal consortia, such as the National Tribal Environmental
Council, United Southern and Eastern Tribes, Inter-Tribal Environmental
Council, Inter Tribal Council of Arizona, and others.
Although much of our effort focused on outreach to the tribes, we
also interacted with State and local air pollution control agencies
during development of this rule. We had two meetings with the State and
Territorial Air Pollution Program Administrators and the Association of
Local Air Pollution Control Officers (STAPPA/ALAPCO) to present the
draft rules.
IV. Proposed Rules for Indian Country
A. Minor NSR Program
Today's action proposes provisions for a minor NSR program in
Indian country. We propose to codify these provisions at 40 CFR 49.151
through 49.165. Our primary goal in developing this proposed rule is to
ensure that air resources in Indian country will be protected in the
manner intended by the Act. In addition, we seek to establish a
flexible preconstruction permitting program for minor stationary
sources in Indian country that is comparable to that which applies
outside of Indian country, in order to create a more level regulatory
playing field for owners and operators within and outside of Indian
country.
It is important to note, however, that outside of Indian country
there is a great deal of variation among State minor NSR permitting
programs. As a result, it would be impossible to create a single
program that creates precisely equivalent regulations among all areas
of Indian country and the surrounding State areas. Instead, we designed
the proposed rules to ensure that stationary sources in Indian country
would operate with a reasonable level of air pollution control, if
necessary, and in such a manner to ensure that air resources in Indian
country would be protected.
We are not attempting through this proposed rulemaking to establish
a new set of minimum criteria that an eligible tribe, or a State, would
need to follow in developing its own minor source permitting program.
Rather, this proposal simply represents how we would implement the
program in Indian country in the absence of an EPA-approved
implementation plan. However, if a tribe is developing its own program,
this can serve as one example of a program that meets the objectives
[[Page 48701]]
and requirements of the Act. We are proposing a minor source permitting
program that addresses, on a national level, many environmental and
regulatory issues that are specific to Indian country. We understand
that States and eligible tribes may face different issues, and may
therefore choose to develop different programs for their own State or
Tribal Implementation Plans.
1. What is a minor source and which minor sources are subject to this
rule?
A minor source means a source whose PTE is lower than an applicable
major source threshold. For the NSR program in Indian country, the
major source thresholds are defined in the PSD program (See 40 CFR
52.21) and in today's proposed nonattainment major NSR program (see
proposed 40 CFR 49.167), as applicable, and differ for attainment areas
and nonattainment areas for the same pollutant. For example, in
attainment areas the major source threshold for Nitrogen Oxides
(NOX ) for a source is 250 tpy, unless the source belongs to
a source category that is listed in the major NSR rules (See 40 CFR
52.21(b)(1)(i)(a)), in which case the major source threshold is 100
tpy. In contrast, the major source threshold for NOX in
ozone nonattainment areas can vary from 10tpy in an extreme ozone
nonattainment area to 100 tpy in a marginal ozone nonattainment area. A
source can be a major source for some pollutants and a minor source for
others.
Today, we are proposing to establish a minor NSR threshold as
provided in section IV.A.3 of this preamble. The proposed rule would
apply to only those minor sources whose PTE is equal to or greater than
the minor NSR threshold for the regulated NSR pollutant. Such sources
would include (1) New minor sources, (2) modified minor sources, and
(3) synthetic minor sources including HAP sources. A source's PTE for a
pollutant is expressed in tpy and generally is calculated by
multiplying the maximum hourly emissions rate in pounds per hour (lbs/
hr) times 8,760 (which is the number of hours in a year) and dividing
by 2,000 (which is the number of pounds in a ton), unless the source is
restricted by permit conditions that are enforceable as a practical
matter.
Section IV.A.6 of this preamble includes detailed flowcharts to aid
you in determining if a proposed new source would be subject to the
proposed rule. The flowcharts differentiate between attainment areas
and nonattainment areas because the applicability criteria are
different for PSD and nonattainment major NSR.
2. What is a modification and what modifications are subject to this
rule?
For the purposes of this rule, a modification is defined at
proposed 40 CFR 49.152(d) as (any physical or operational change at a
stationary source that would cause an increase in the allowable
emissions of the affected emissions units for any regulated NSR
pollutant or that would cause the emission of any regulated NSR
pollutant not previously emitted.( The following exemptions would
apply:
A physical or operational change does not include routine
maintenance, repair, or replacement.
An increase in the hours of operation or in the production
rate is not considered an operational change unless such increase is
prohibited under any federally-enforceable permit condition or other
permit condition that is enforceable as a practical matter.
A change in ownership at a stationary source is not
considered a modification.
Note that this definition differs from the term ``modification'' as
used in the major NSR program, primarily in that it is based on an
increase in allowable emissions rather than actual emissions. Parts C
and D of title I of the Act ``the statutory basis for the major NSR
program` refer to section 111(a)(4) of the Act [the definition of
``modification'' for purposes of the new source performance standards
(NSPS) program] to define ``modification'' for purposes of the major
NSR program. In a recent decision, the D.C. Circuit Court of Appeals
ruled that, based on the wording of the definition of ``modification''
in section 111(a)(4) of the Act, the applicability of major NSR to
modifications must be based on changes in actual emissions (State of
New York, et al., v. U.S. EPA, June 24, 2005). However, because the
statutory basis for the minor NSR program is section 110(a)(2)(C) of
the Act, which does not define or refer to a definition of
``modification,'' we believe that we have discretion in defining the
term as we think it best for the minor NSR program in Indian country
that we are proposing today. We do not believe that the recent decision
of the D.C. Circuit Court of Appeals applies to minor NSR programs. We
seek comment on whether our proposed definition of modification is
appropriate for minor NSR for minor sources.
This rule would apply to certain modifications at minor sources and
to minor modifications (not major modifications as defined in proposed
40 CFR 49.167 and in 40 CFR 52.21) at major sources. How such
modifications would be addressed under the proposed rule is explained
in section IV.A.6 of this preamble. Section IV.A.6 also includes
detailed flowcharts to aid you in determining if a proposed
modification would be subject to the proposed rule.
3. What are the minor NSR thresholds and how did we develop them?
A review of several State minor NSR programs indicated that a
number of State programs have established cutoff levels or minor NSR
thresholds, below which sources are exempt from their minor NSR rules.
We believe that such an approach is also appropriate in Indian country.
Section 110(a) (2)(C) of the Act requires minor NSR programs to assure
that the NAAQS are attained and maintained. Applicability thresholds
are proper in this context provided that the sources and modifications
with emissions below the thresholds are inconsequential to attainment
and maintenance of the NAAQS. As discussed further, the minor NSR
thresholds that we are proposing today meet this criterion. In
addition, these thresholds will result in a more cost-effective program
and reduce the burden on sources and reviewing authorities.
In today's rulemaking, we are proposing to adopt minor NSR
thresholds as emission rates in tpy. In setting the minor NSR
thresholds for minor sources of regulated NSR pollutants, we decided to
use emission rates, rather than air quality impacts, as the basis for
the exemption. We chose this approach because we were concerned that
applicability determinations based on projected air quality impacts
would be excessively complex and resource intensive. In addition, it is
consistent with the approach used in major NSR.
We are proposing minor NSR thresholds that we have developed based
on a review of several State minor NSR programs. We found that there is
variation in State approaches to minor NSR applicability. Some States
do not prescribe source applicability thresholds, instead providing a
list of emission units and activities that are excluded from minor NSR.
Many of the States that do have applicability thresholds also provide a
list of excluded emission units and activities. In today's rulemaking,
we propose threshold levels that we believe are neither the most
stringent nor the least stringent of the levels found in existing State
minor NSR rules. These threshold levels represent a reasonable balance
between environmental protection and
[[Page 48702]]
economic growth, since we did not want them to be so high that they
were not environmentally protective or so low that they ensured
environmental protection at the cost of discouraging economic growth.
We consider the proposed thresholds to be representative of such
thresholds in State minor NSR programs, and we believe that these
limits will be appropriate for use in Indian country. The proposed
thresholds are listed in Table 1.
Table 1.--Minor NSR Thresholds
----------------------------------------------------------------------------------------------------------------
Minor NSR thresholds for
nonattainment areas (tpy) Minor NSR
Regulated NSR pollutant -------------------------------- thresholds for
Extreme ozone attainment areas
areas Other areas (tpy)
----------------------------------------------------------------------------------------------------------------
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 NA NA 10
Methane Organic Compounds)................................
----------------------------------------------------------------------------------------------------------------
The selected minor NSR thresholds distinguish between minor
stationary sources of regulated NSR pollutants located in nonattainment
versus attainment areas and by pollutant. We believe this distinction
is important because of the different air quality goals in
nonattainment and attainment areas.
In some cases, a tribe's area of Indian country may be divided
between a nonattainment area and an attainment area. In this situation,
the applicable threshold for a proposed source or modification would
correspond to the designation of the area where the source would be
located. If a source straddles the two areas, the more stringent
thresholds would apply.
To evaluate how the proposed minor NSR thresholds might affect new
sources locating in Indian country, we looked at the size distribution
of existing sources across the country. Using the National Emission
Inventory (NEI), which includes the most comprehensive inventory of
existing U.S. stationary point sources that is available, we determined
how many of these sources fall below the proposed minor NSR thresholds,
how many are between the minor NSR and major NSR thresholds, and how
many are above the major NSR threshold.\5\ If we assume that the
distribution of new sources will mirror the existing source
distribution, this analysis approximates the fraction of new sources
that will be exempt from minor NSR, subject to minor NSR, and subject
to major NSR, respectively. The results of this analysis by pollutant
are summarized in Table 2.
---------------------------------------------------------------------------
\5\ For this analysis, we used the final 1999 NEI, extrapolated
to 2001. More on the 1999 NEI can be found at http://www.epa.gov/
ttn/ chief/ net/ 1999inventory.html.
Table 2.--Distribution of Sources and Emissions Under Proposed Minor NSR Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total facilities Unregulated minor Minor sources Major sources
---------------------- sources -------------------------------------------
Pollutant ----------------------
No. (x10 TPY (x10 % of % of % of TPY % of % of TPY
3) 6) total % of TPY total total
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 the analysis for each of the
criteria pollutants except lead, including VOC and NOX
emissions as the precursors of ozone.\6\ For each pollutant, the table
gives the total number of facilities in the emission inventory for that
pollutant and the total, nationwide annual emissions of the pollutant.
The column
[[Page 48703]]
labeled ``unregulated minor sources'' represents the percentage of
total sources that fall below the minor NSR threshold, along with the
percentage of total annual emissions that those sources emit. The
``minor sources'' column gives the same information for sources that
fall between the minor NSR threshold and the major NSR threshold, while
the ``major sources'' column addresses sources that exceed the major
NSR threshold.
---------------------------------------------------------------------------
\6\ For the analysis, we used the major NSR and proposed minor
NSR thresholds for each pollutant based on the attainment status and
classification of the county in which each source is located. We
made certain simplifying assumptions, including using the 250 tpy
major source threshold for all sources in attainment areas,
regardless of source category or major source status for other
pollutants. For the details of the analysis,see ``Analysis of the
Proposed Minor NSR Thresholds'' dated October 24, 2005 in the docket
for this rulemaking.
---------------------------------------------------------------------------
We believe that Table 2 provides excellent evidence that sources
with emissions below the proposed minor NSR thresholds will be
inconsequential to attainment and maintenance of the NAAQS. For each
pollutant, only around 1 percent (or less) of total emissions would be
exempt from review under the minor NSR program. At the same time, the
proposed thresholds will promote a cost-effective program. According to
Table 2, anywhere from 42 percent to 76 percent of sources (depending
on the pollutant) would be too small to be subject to preconstruction
review.
We believe that the proposed minor NSR thresholds provide a
reasonable approach to determining the applicability of the minor NSR
program. These thresholds would prevent stationary sources that make
negligible contributions to pollution from being regulated under this
rule. However, this would not affect the applicability of other
requirements, such as those found in an NSPS or a MACT standard. At the
same time, the limits would ensure that intermediate-sized sources
would be subject to reasonable control technology requirements. We seek
comment on our approach to selecting the proposed minor NSR thresholds,
on alternative approaches to selecting such thresholds, and on
alternative applicability provisions (such as source category
exemptions).
4. Are any emissions units and activities at stationary sources exempt
from this rule?
Certain emissions units and activities at stationary sources either
do not emit regulated NSR pollutants to the ambient air or emit these
pollutants in negligible amounts. We propose that such activities
located at a minor source be exempt from the requirements of this rule
(See proposed 40 CFR 49.153(c)). We propose that such activities are
limited to the following:
Air-conditioning units for comfort that are not subject to
applicable requirements under title VI of the Act and do not exhaust
air pollutants into the ambient air from any manufacturing or
industrial process;
Ventilating units for comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial process;
Heating units for comfort that do not provide heat for any
manufacturing or other industrial process;
Noncommercial food preparation;
Consumer use of office equipment and products;
Janitorial services and consumer use of janitorial
products;
Internal combustion engines used for landscaping purposes;
Bench scale laboratory activities, except for laboratory
fume hoods and vents; and
Any emissions unit or activity that does not have the
potential to emit a regulated NSR pollutant or HAP, so long as that
emissions unit or activity is not part of a process unit that emits or
has the potential to emit a regulated NSR pollutant or HAP.
5. What are the permit application, control technology, and air quality
analysis requirements, and what is the permit issuance process?
Permit Application Requirements. Under today's proposed minor NSR
program, as the owner or operator of a proposed new minor source or a
proposed modification that is subject to this rule, you must submit a
complete application to your reviewing authority requesting a minor NSR
permit specific to your source (unless you wish to seek a ``general
permit,'' if eligible). In addition to basic information identifying
and describing your source, your application must include a list of all
affected emissions units. ``Affected emissions units'' are defined as
all the emissions units at your proposed new minor source or all the
new, modified, and replacement emissions units that comprise your
proposed modification (excluding the exempt emissions units and
activities listed in proposed 40 CFR 49.153(c)). See proposed 40 CFR
49.152(d).
Your application also must document the increase in emissions of
regulated NSR pollutants that will result from your new source or
modification so that the reviewing authority can verify that you are
subject to this proposed minor NSR program, rather than to major NSR.
For each new emissions unit that you list, you must provide the PTE in
tpy for each regulated NSR pollutant, along with supporting
documentation. For any modified or replacement unit that you list, you
must provide the allowable emissions of each regulated NSR pollutant in
tpy both before and after the modification or replacement, along with
supporting documentation. For emissions units that do not have an
established allowable emissions level prior to the modification, you
must report the PTE. The allowable emissions for any emissions unit are
calculated considering any emission limitations that are enforceable as
a practical matter on the unit's PTE. In calculating these emission
levels for applicability purposes, we seek comment on whether you
should include fugitive emissions, to the extent that they are
quantifiable, for all sources, or include them only for source
categories listed pursuant to section 302(j) of the Act or exclude them
for all sources.
You may include in your application proposed emission limitations
for the listed emissions units. If you do, you must account for these
limitations in your calculations of post-construction PTE and/or
allowable emissions. The application also must identify and describe
any existing air pollution control equipment and compliance monitoring
devices or activities relevant to the affected emissions units, as well
as any existing emission limitations or work practice requirements to
which any affected emissions units are subject. See proposed 40 CFR
49.154(a) for the complete requirements for your application for a
minor NSR permit.
You may request that the reviewing authority establish an annual
minor source plantwide applicability limitation (minor source PAL) for
one or more of the regulated NSR pollutants emitted by your new or
existing minor stationary source. A minor source PAL is a source-wide
limitation on allowable emissions of a regulated NSR pollutant,
expressed in tpy, that is established under the proposed 40 CFR 49.155
and that is enforceable as a practical matter (See proposed 40 CFR
49.152(d)).
For a new minor stationary source, you may request minor source
PALs for some or all of the regulated NSR pollutants emitted by your
source. For the other regulated NSR pollutants that your source emits
(i.e., the non-PAL pollutants), your permit will contain annual
allowable emissions limits for each emissions unit.
You may request a minor source PAL for one or more regulated PAL
pollutants at the time that you are modifying an existing minor
stationary source. Each PAL will apply across all the emissions units
at your source, whether or not they are affected by the modification.
For the non-PAL pollutants, only the emissions units that are affected
by the modification will receive annual allowable emissions limits. If
you request one or more minor source PALs for an existing minor
stationary source at a time when no
[[Page 48704]]
modification is planned, each PAL will apply across all the emissions
units at your source, but your permit will include no new emission
limits for the non-PAL pollutants.
If your source is in a source category covered by a ``general
permit'' issued under proposed 40 CFR 49.156, you may apply for the
general permit for that source category. A general permit is a permit
developed by your reviewing authority for a general category of
emissions units or stationary sources that are similar in nature, have
substantially similar emissions, and would be subject to the same or
substantially similar requirements governing operations, emissions,
monitoring, reporting, and recordkeeping. The permit application
requirements for a particular general permit will be specified in that
general permit. General permits are discussed further in section
IV.A.13 of this preamble.
Control Technology Review. As required under section 110(a)(2)(C)
of the Act, the minor NSR permitting program that we are proposing
today is primarily designed to assure that the NAAQS are achieved, and
to prohibit any stationary source from emitting any air pollutant in
amounts that would contribute to nonattainment or interfere with
maintenance of the NAAQS. At the same time, we wish to provide
flexibility in control technology requirements for minor sources
located in Indian country to promote economic growth and development.
Therefore, in today's proposal, we are proposing that your
reviewing authority perform a control technology review on a case-by-
case basis when issuing the permit (other than a general permit). By
``control technology,'' we mean pollution prevention techniques, add-on
pollution control equipment, design and equipment specifications, work
practices, and operational restrictions. This review would consider
local air quality needs, typical control technology used by similar
sources in surrounding areas, anticipated economic growth in the area,
and cost-effective control alternatives. At a minimum, the reviewing
authority must require control technology that assures that the NAAQS
are achieved and that each affected emissions unit will comply with all
requirements of 40 CFR parts 60, 61, and 63 that apply. The required
control technology resulting from such a review may range from
technology that is less stringent than the reasonably available control
technology (RACT) level of control (which is typically required for
existing major sources in nonattainment areas), to technology that is
the BACT level of control (which is the level required for new major
sources and major modifications in attainment areas), depending on the
air quality needs of the area, other applicable regulatory programs of
the Act, and technical and economic feasibility.
Based on the results of the control technology review, the emission
limitations required by the reviewing authority may consist of emission
limits, pollution prevention techniques, design standards, equipment
standards, work practice standards, operational standards, or any
combination thereof. If it is technically and economically feasible,
the reviewing authority must require an emission limit (i.e., a limit
on the quantity, rate, or concentration of emissions) for each affected
emissions unit at your source.
For a new minor source that is subject to this rule, the case-by-
case control technology review would be conducted for all emissions
units [except the exempt emissions units and activities discussed in
section IV.A.4 and listed in proposed 40 CFR 49.153(c)] that emit or
have the potential to emit the pollutant for which the source is
subject to this rule. However, for modifications, such control
technology review would apply only to the affected emissions unit(s).
In establishing a case-by-case control technology review process to
determine an appropriate level of control for minor sources and subject
modifications in Indian country, we considered a number of factors. On
the one hand, we believe that the control technology review process
should be as flexible as possible to provide for the specific needs and
conditions of each area of Indian country, consistent with the
requirements of the Act. On the other hand, we believe that a
reasonable level of air pollution control for new minor sources and
subject modifications in Indian country is generally warranted to
ensure protection of air resources in Indian country. In addition, we
wish to ensure that Indian country not be seen as a potential
``pollution haven'' where minor stationary sources can go to escape air
pollution control requirements. At the same time, we do not want to put
tribes or owners and operators locating in Indian country at a
competitive disadvantage by requiring substantially more stringent
controls in Indian country than are required in the surrounding areas.
We are seeking comment on the proposed case-by-case control
technology review for all new and modified sources subject to this
minor NSR program. We also request comment on whether the program
should have a control technology requirement at all. Section
110(a)(2)(C) of the Act requires a minor NSR program that assures that
the NAAQS are achieved, but does not mandate that the program include a
control technology requirement. We are seeking comment on whether a
control technology requirement is necessary to achieve the purposes of
the Act, or whether other approaches can achieve these purposes just as
well with less cost or administrative burden.
Air Quality Impacts Analysis. Typically, for a new or modified
minor source permit application, your reviewing authority would not
require an Air Quality Impacts Analysis (AQIA). In rare instances, if
your reviewing authority has reason to be concerned that the
construction of your minor source or modification could cause or
contribute to a NAAQS or PSD increment violation, to ensure protection
of the NAAQS, we are proposing that your reviewing authority may
require you to conduct an AQIA using dispersion modeling in accordance
with 40 CFR part 51, appendix W to determine the impacts that will
result from your new source or modification. If the AQIA demonstrated
that the construction of your source or modification would cause or
contribute to a NAAQS or PSD increment violation, you would be required
to further reduce its impact before you could obtain a permit.
Permit Issuance Process. Within 45 days after receiving your permit
application, your reviewing authority must either determine that the
permit application is complete enough to commence a technical review or
request additional information. If you do not receive a request for
additional information or a notice of complete application within 50
days of your permitting authority's receipt of your application, your
application would be deemed complete. (You should contact your
reviewing authority to find out the date that it received your
application so that you will know when this 50-day period is up.) Once
the application is complete, your reviewing authority develops a draft
permit and provides a public notice seeking comments on the draft
permit for a 30-day period. After considering all timely, relevant
comments, if your reviewing authority determines that your application
meets all applicable requirements, it would issue you a final permit.
Otherwise, the reviewing authority would send you a letter denying your
permit application with reasons for the denial. We seek comment on the
proposed permit issuance process.
[[Page 48705]]
We are proposing that your reviewing authority would issue you a
permit with an allowable emissions limit in tpy for each affected
emissions unit (Option A). You have the alternative of requesting a
minor source PAL or cap in tpy (Option B), and your reviewing authority
may issue such a permit. This type of permit can provide the
flexibility to make frequent changes at your source without permit
review. If you wish, you may request a minor source PAL for some
pollutants and allowable emissions limits for each emissions unit for
other pollutants.
Permit Term. A preconstruction permit does not expire. Your permit
remains valid as long as you commence construction of your new source
or modification within 18 months after the effective date of the
permit, you do not discontinue construction for a period of 18 months
or more, and you complete construction in a reasonable time. Your
reviewing authority may extend the 18-month period where justified. The
18-month limit does not apply to the time period between construction
of approved phases of a phased construction program; you must commence
construction of each such phase within 18 months of the approved
commencement date for that phase.
6. When are modifications subject to this rule?
As discussed in section IV.A.2 of this preamble, for the purposes
of the minor NSR program proposed today, a modification means any
physical or operational change at a stationary source that would cause
an increase in the allowable emissions of the affected emissions units
for any regulated NSR pollutant or that would cause the emission of any
regulated NSR pollutant not previously emitted (with the exclusions
outlined in section IV.A.2 of this preamble). The proposed rule would
apply to certain modifications at your minor sources and minor
modifications at your major sources. For such modifications, you would
have to meet the application requirements and comply with any control
technology requirements as discussed in section IV.A.5 of this
preamble. In rare instances, if your reviewing authority has reason to
believe that your modification could result in a violation of the NAAQS
or PSD increment, you would be required to conduct an AQIA.
In all NSR applicability determinations, you must evaluate each
regulated NSR pollutant individually. The area where your source is
located may be attainment for some pollutants and nonattainment for
others, which affects which pollutants are regulated as well as the
major and minor NSR applicability thresholds. For a given modification,
a particular pollutant may be subject to review under PSD,
nonattainment major NSR, or minor NSR, or may not be subject to any of
these programs.
The first step in determining whether your proposed physical or
operational change is subject to the minor NSR program proposed today
is to determine whether the change is subject to the applicable major
NSR program (i.e., proposed 40 CFR 49.167 or 40 CFR 52.21 for
nonattainment and attainment areas, respectively). If you are changing
an existing major source, you would determine whether the change
qualifies as a major modification using the procedures in the
applicable major NSR program. If you are changing an existing minor
source, you would determine whether the change would qualify as a major
stationary source by itself under the applicable major NSR program. If
your proposed physical or operational change is subject to review under
major NSR for a regulated NSR pollutant, it is not subject to the minor
NSR program for that pollutant.
If your proposed physical or operational change is not subject to
major NSR, the next step is to determine whether the change qualifies
as a modification under the minor NSR program. To be a modification,
the change must result in an increase in allowable emissions at your
source. Thus, the next step is to calculate whether, and by how much,
allowable emissions would increase as a result of the change. If your
minor stationary source is subject to a minor source PAL for a
regulated NSR pollutant (Option B in section IV.A.5 of this preamble),
the emissions increase for that pollutant would be the PAL level after
the physical or operational change minus the PAL level prior to the
change. For physical or operational changes at other minor stationary
sources (i.e., those with annual allowable emissions limits for each
emissions unit (Option A), those that are unpermitted, and those with a
combination of unpermitted emissions units and emissions units with
annual allowable emissions limits) and at major stationary sources, the
total increase in allowable emissions resulting from your proposed
change would be the sum of the following:
For each new emissions unit that is to be added, the
emissions increase would be the PTE of the unit.
For each emissions unit with an allowable emissions limit
that is to be changed or replaced, the emissions increase would be the
allowable emissions of the emissions unit after the change or
replacement minus the allowable emissions prior to the change or
replacement. This may be a negative value for an emissions unit if its
allowable emissions would be reduced as a result of the change or
replacement.
For each unpermitted emissions unit that is to be changed
or replaced, the emissions increase would be the allowable emissions of
the unit after the change or replacement minus the PTE prior to the
change or replacement. It is necessary to use PTE since these emissions
units will not have a allowable emissions limit prior to the change.
This may be a negative value for an emissions unit if its post-change
allowable emissions would be less than its pre-change PTE.
This process of summing the emissions increases and decreases
across all the affected emissions units is called ``project netting,''
which is discussed later in this section of the preamble.
If your proposed physical or operational change qualifies as a
modification (i.e., causes an increase in allowable emissions), the
final step in determining whether the proposed modification is subject
to today's proposed minor NSR program is to compare the increase in
allowable emissions to the applicability criteria for the type of
source and emission limits that you have. Your modification would be
subject to the minor NSR program in the following circumstances:
If your minor source has a permit with a minor source PAL
in tpy (Option B in section IV.A.5 of this preamble) and the
modification would result in any increase in the PAL level. To
determine if an increase in the PAL level is necessary, you must
evaluate whether your source's actual emissions after the modification
would exceed the PAL level by any amount. If you could construct and
operate the modification without your actual emissions exceeding your
minor source PAL, then no permit action would be required.
For other minor sources, if the modification would
increase total allowable emissions from the affected emissions units by
an amount that equals or exceeds any of the minor NSR thresholds listed
in Table 1 of this preamble.
If the minor modification at your major source would
increase total allowable emissions from the affected emissions units by
an amount that equals or exceeds any of the minor NSR thresholds listed
in Table 1 of this preamble.
In addition, if the modification would increase allowable
emissions from any emissions unit above an
[[Page 48706]]
established unit-specific allowable emission permit limit, even if the
total increase for your source would be less than the corresponding
minor NSR threshold listed in Table 1 of this preamble. In this case,
the needed increase in the unit-specific allowable emissions permit
limit can be accomplished through an administrative permit revision
(See proposed 40 CFR 49.159(f)).
In addition, a physical or operational change may be subject to
today's proposed minor NSR program even if it is not classified as a
modification (i.e., it does not increase allowable emissions of a
regulated NSR pollutant or result in emission of a pollutant not
previously emitted). For example, a proposed change might increase
allowable emissions from some emissions units and decrease emissions at
others so that, overall, emissions from the affected units would stay
the same or decrease. If the post-change emissions at any emissions
unit would exceed a permitted allowable emissions limit for that unit,
you must apply to revise the existing permit limit before you may
implement the change. The needed increase in the unit-specific
allowable emissions permit limit can be accomplished through an
administrative permit revision (See proposed 40 CFR 49.159(f)).
Similarly, other proposed physical or operational changes that
could not be implemented within the requirements of an existing permit
would necessitate a permit revision, even if they are not otherwise
subject to major or minor NSR. We believe that this fact will serve to
ensure that the types of changes that could significantly alter the
dispersion characteristics of the air pollutants emitted by your source
will be brought to the attention of your reviewing authority. Thus, the
reviewing authority will be in the position to evaluate whether the
change has the potential to increase ambient concentrations outside the
boundaries of your source. If so, the reviewing authority can require
measures to mitigate any unacceptable air quality impacts (i.e., to
protect the NAAQS and PSD increments) as part of the permit revision
process.
Flowcharts to aid in determining major and minor NSR applicability
are presented in Figures 1 through 6. These flowcharts illustrate the
applicability process for new sources and modifications in attainment
areas and nonattainment areas. The flowcharts should be used to
evaluate each regulated NSR pollutant individually since different flow
charts may apply to different pollutants depending on the attainment
status of the area for each pollutant.
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7. Why do we believe that an allowable-to-allowable test is appropriate
for minor sources?
As discussed earlier, we are proposing an ``allowable-to-
allowable'' applicability test as the primary test for modifications
under this minor NSR program. We evaluated the three basic types of
applicability tests (actual-to-potential, actual-to-projected-actual,
and allowable-to-allowable) and determined that the allowable-to-
allowable test is most suitable for minor NSR in Indian country.
We rejected the actual-to-potential test for many of the same
reasons that we have moved away from this test in the major NSR
program. In this type of system, the emissions increase that results
from a change is determined by comparing the emissions unit's PTE after
the change to its actual emissions prior to the change. If pre-change
actual emissions are well below the unit's PTE, as is generally the
case, any change will result in a large emissions increase when
calculated in this manner. To avoid triggering NSR, a source must
accept a limit on the unit's post-change PTE at a level that exceeds
pre-change actual emissions by less than the applicable NSR threshold.
As discussed in our December 2002 NSR Improvement rulemaking, there
are numerous objections to the actual-to-potential test (67 FR 80194).
Industry has long believed that the need to take a PTE limit to avoid
NSR has the effect of unfairly confiscating the emissions unit's unused
operating capacity even though, in many cases, the changed unit as a
practical matter will function essentially as it did before the change
and emissions to the environment will not increase. In addition, the
actual-to-potential test discourages sources from making the types of
changes that improve operating efficiency, implement pollution
prevention projects, and result in other environmentally beneficial
effects.
In the December 2002 NSR Improvement rulemaking for major NSR, we
promulgated an alternative ``actual-to-projected-actual'' test for
major modifications. However, we do not propose to adopt the same
course for the minor NSR program in Indian country. We believe that
determining emissions changes in terms of changes in allowable
emissions typically will be easier and more straightforward for the
minor sources subject to this program. In particular, the major NSR
procedures for projecting and tracking future actual emissions may be
somewhat complicated for minor sources. While we believe that this
system is within the capabilities of major sources, we believe that a
simpler system is more appropriate for the minor sources in Indian
country, many of which are unaccustomed to any type of regulation.
We are proposing an allowable-to-allowable test for modifications
in the Indian country minor NSR program. We believe that this
relatively simple and straightforward system is most appropriate for
the minor sources found in Indian country. In addition, we believe that
it is beneficial to use allowable emissions as the currency for
attainment planning, in that they represent the worst-case post-change
emissions. This approach is consistent with section 173(a)(1)(A) of the
Act, which requires new and modified major sources to obtain offsets
based on allowable emissions. (While we are not requiring offsets for
minor sources in Indian country nonattainment areas, we believe that
the language in section 173(a)(1)(A) provides validation for our
proposed minor NSR modification test.) Finally, we understand that many
State minor NSR programs use an allowable-to-allowable test.
As discussed in section IV.A.2 of this preamble, we believe that we
have the discretion to use an allowable-to-allowable test for this
minor NSR program because the statutory basis for minor NSR is section
110(a)(2)(C) of the Act, rather than section 111(a)(4). We seek comment
on using the proposed allowable-to-allowable test for addressing
modifications and on the alternative of using the actual-to-projected-
actual test.
As laid out in the second step for determining if a proposed
modification is subject to minor NSR, we are proposing to allow
``project netting.'' This means that both increases and decreases in
allowable emissions are summed when determining the total emission
increase that would result from a proposed modification.
The major NSR program uses a two-step procedure for determining
applicability. First, the emission increases from the proposed project
are summed. If the total emission increase from the project is
``significant'' (that is, equal to or greater than the major NSR
threshold), the second step in the process is ``contemporaneous
netting.''
In contemporaneous netting, the emission increase due to the
proposed modification is summed with all other emission increases and
decreases that have occurred at the major source during the
contemporaneous period (generally 5 years). If the net emission
increase determined in this way is significant, the proposed
modification is a ``major modification'' that is subject to review
under major NSR.
We considered including contemporaneous netting in today's minor
NSR program, but have elected not to propose it as our preferred
approach. Contemporaneous netting has proved to be a complicated aspect
of the major NSR program. While major sources are accustomed to
contemporaneous netting and have built the capacity to track emissions
changes and carry out this procedure, many minor sources that would be
covered by today's proposed minor NSR program lack such capacity. We
believe that a simpler system is more appropriate for the minor sources
in Indian country.
Nevertheless, we believe that minor sources should be able to
receive credit for the emission decreases that would result from a
proposed modification. Hence, we are proposing to allow project netting
in today's minor NSR program.
We believe that project netting calculations are relatively
straightforward and are within the capacity of most minor sources. For
example, an existing minor source might wish to expand by adding a
second production line to go with an existing, uncontrolled line. If
the proposed project includes adding an air pollution control device to
control emissions from both lines, it would result in an allowable
emissions increase attributable to the new line, as well as an
allowable emissions decrease from the existing, previously uncontrolled
line. Determining the overall net emission change that would result
from the proposed modification would be a straightforward exercise.
However, to validate the project net emissions increase, as in the
major NSR program, the source must take limits on allowable emissions
for both lines that are enforceable as a practical matter.
We believe that in proposing to allow project netting, but not
contemporaneous netting, we have struck an appropriate balance for the
minor NSR program in Indian country. We believe that the resulting
program properly allows you to receive credit for emission reductions
that are achieved as part of an overall project, without introducing
too much complexity into the program. We invite comment on this
approach, as well as on other approaches that would allow minor sources
in Indian country to take credit for emission reductions.
8. Is your existing minor source subject to this rule?
States develop, adopt, and submit to us for approval a SIP that
contains a
[[Page 48714]]
broad range of measures to attain and maintain the NAAQS and to meet
other requirements of section 110(a) of the Act. The SIPs typically
include some emission limitations for existing sources, even those that
do not modify their operations. Hence, a SIP provides an infrastructure
to achieve the air quality goals of attaining and maintaining the
NAAQS.
Tribes are not required to submit implementation plans, and to
date, very few tribes have sought our approval of such plan. Consistent
with our approach to Federal implementation of the Act's requirements,
we issue FIPs for areas of Indian country as necessary or appropriate.
However, there is still a regulatory gap in relevant infrastructure in
much of Indian country. Because of this unique situation, we are
raising the question of whether it may be appropriate to regulate
existing minor sources in Indian country under this minor NSR program
to attain and maintain NAAQS. We are proposing Option 1 and soliciting
comment on Options 2, 3, and 4:
Option 1. Exempt existing minor sources from this rule. This option
would not affect any existing sources (unless they propose a
modification) and, thus, be the least burdensome for such sources in
Indian country. Many State minor NSR rules do not apply to such
sources; hence this would be consistent with many of the areas that
surround Indian country. Under this option, we are seeking comment on
whether such an exempt minor source should be allowed to opt for a
permit under this program (without being subject to any of the
requirements) merely to establish enforceable limits and conditions
associated with a consent decree or other enforcement mechanism.
Option 2. Require existing synthetic minor sources to become
subject to the minor NSR program requirements (including control
technology review and other requirements as provided in section IV.A.5.
of this preamble) and to submit a permit application within 1 year
after the effective date of the program. This option would draw into
the regulatory scheme the biggest minor sources and may result in large
emissions reductions in instances where the required control technology
review would result in new or more stringent controls. Option 2 would
affect relatively few existing minor sources in Indian country.
Option 3. Require all existing minor sources to register within 1
year after the effective date of this program, but not be subject to
the permitting requirements. This option would affect all minor sources
in Indian country, but would involve very little burden to sources,
since this would be a one-time registration. Option 3 would allow your
reviewing authority to collect information on the number and size of
existing minor sources, which would assist with NAAQS maintenance and
attainment planning in Indian country.
Option 4. Require all existing minor sources to be subject to the
minor NSR program requirements (as provided in section IV.A.5. of this
preamble). While this option would result in significant emissions
reductions, it would also require significant EPA resources and may
also be overly burdensome on minor sources in Indian country.
Additionally, we believe that subjecting all minor sources to this
program is not necessary to achieve the NAAQS, as demonstrated by state
minor NSR programs.
We also seek comment on any other approaches for addressing
existing minor sources.
9. How are ``synthetic minor sources'' subject to this rule?
Some sources have the potential to emit one or more pollutant in
major source amounts, but have actual emissions that are below the
major source thresholds. One of our primary objectives for this
rulemaking is to create a mechanism by which you can obtain emission
limitations for such sources that are enforceable as a practical
matter, so that they can become ``synthetic minor sources'' and avoid
major source status. We are therefore proposing to create such a
mechanism in 40 CFR 49.158 of the proposed rules. The proposed rules
allow for designation of synthetic minor sources (for regulated NSR
pollutants) and synthetic minor HAP sources. It is important to note
that although you may choose to obtain such emission limitations at
your own discretion, once you have accepted an enforceable emission
limitation, you must comply with that limitation. This is necessary to
ensure that you are legally prohibited from operating as a major
source. We are taking comment on the proposal to allow your stationary
sources to become synthetic minors in Indian country.
Our 1999 policy memo on synthetic minor sources in Indian country
currently provides guidance on how sources that would otherwise be
major sources under section 302 or part D of title I of the Act can
become synthetic minor sources if their actual emissions remain below
50 percent of the relevant major source PTE threshold and they comply
with all other requirements of the policy memo.\7\ However, as the memo
specifies, this PTE transition policy terminates when we adopt and
implement a mechanism that you can use to limit your PTE, or we
explicitly approve a tribe's program providing such a mechanism.
Today's proposed minor NSR program would provide such a mechanism.
Therefore, upon the effective date of these rules when promulgated, the
PTE transition policy will expire and you will have to obtain a permit
under this minor NSR program for any subsequent synthetic minor
sources.
---------------------------------------------------------------------------
\7\ John S. Seitz and Eric V. Schaeffer. Policy memo.
``Potential to Emit Transition Policy for Part 71 Implementation in
Indian Country.'' March 7, 1999.
---------------------------------------------------------------------------
Additionally, for your existing synthetic minor sources under the
current policy, you will have 1 year from the effective date of the
final rules to apply for a permit under the proposed minor NSR program.
If you submit a permit application in accordance with the requirements
of proposed 40 CFR 49.158(c) by that date, we will continue to consider
your source a synthetic minor source until we issue a permit with
synthetic minor limits. The permit will contain monitoring,
recordkeeping, reporting, and testing requirements as needed to assure
compliance with your synthetic minor permit, but will not impose any
additional requirements. Should you fail to submit an application
within 1 year of the effective date of the final rules, your source
will no longer be considered a synthetic minor source or synthetic
minor HAP source (as applicable), and will immediately become subject
to all requirements for major sources.
10. How would section 112(g) case-by-case MACT determinations be
addressed by this rule?
Section 112(g)(2)(B) of the Act provides that you may not construct
or reconstruct a major source of HAPs unless you install MACT. If the
Administrator has not established a MACT standard for the source
category, the Act requires that MACT must be determined on a case-by-
case basis.
Where there is no EPA-approved program in an area of Indian
country, we are the reviewing authority for case-by-case MACT under
section 112(g)(2)(B). The requirement for a case-by-case MACT
determination prior to construction or reconstruction of a major source
of HAPs is found at 40 CFR 63.42(c). In 40 CFR 63.43(c), we provide a
number of review options for these determinations. These options
[[Page 48715]]
include using a title V permit, applying for and obtaining a Notice of
MACT Approval, and ``any other administrative procedures for
preconstruction review and approval established by the reviewing
authority for a State or local jurisdiction which provide for public
participation * * *.'' Currently, no tribes have an EPA-approved title
V permitting program or the ``other administrative procedures'' for
this purpose, although one tribe has been delegated authority to assist
us with implementation of the Federal part 71 operating permit program
(i.e., the Federal program for issuing title V permits). While we can
permit a section 112(g) case-by-case MACT determination through a part
71 permit or a Notice of MACT Approval, we believe that if your source
is major only for HAPs it would be administratively convenient for us
and you to combine the construction permit process for both regulated
NSR pollutants and HAPs under this proposed minor NSR program, rather
than also go through the part 71 permit or Notice of MACT Approval
process to address HAPs. Therefore, we are proposing to allow for
review of section 112(g) case-by-case MACT determinations through this
minor NSR program and seek comment on this approach. See proposed 40
CFR 49.153(a)(5) for the provisions related to section 112(g) case-by-
case MACT determinations. Note that you ultimately will have to obtain
a part 71 permit for your major source of HAPs.
11. What are the proposed requirements for public participation in the
permitting process?
Our requirements for State preconstruction review programs at 40
CFR 51.161 require such programs to provide for public availability of
permit applications as well as the reviewing authority's analysis of
the application. In addition, State programs must provide opportunity
for public comment on permitting actions. To be consistent with these
requirements for State programs, we are proposing to require the
reviewing authority to make non-confidential information on the permit
available to the public and to provide public notice and an opportunity
to comment on the draft minor NSR permit. See proposed 40 CFR 49.157.
Specifically, we would require that the reviewing authority prepare
a draft permit and provide adequate public notice to ensure that the
affected community and the general public have reasonable access to the
application and draft permit information. The reviewing authority must
make such information available for public inspection at the
appropriate EPA Regional Office and in at least one location in the
area affected by the source, such as the tribal environmental office or
a local library. The public notice must provide an opportunity for
public comment and a public hearing on the draft permit. The
appropriate types of notice may vary depending on the proposed project
and the area of Indian country that would be affected.
In all cases, the proposed rule requires the reviewing authority to
mail a copy of the notice to you, the appropriate Indian governing
body, and the tribal, State, and local air pollution authorities having
jurisdiction in areas outside of the area of Indian country potentially
impacted by your source. The proposed rule lists optional approaches
that the reviewing authority may elect to use to provide public notice
as appropriate for a given situation, depending on such factors as the
nature and size of your source, local air quality considerations, and
the characteristics of the population in the affected area. The
optional methods of notifying the public include the following:
Mailing or e-mailing a copy of the notice to persons on a
mailing list developed by the reviewing authority consisting of those
persons who have requested to be placed on such a mailing list.
Posting the notice on its Web site.
Publishing the notice in a newspaper of general
circulation in the area affected by the source. Where possible, the
notice may also be published in a tribal newspaper or newsletter. We do
not believe that such a notice is appropriate for every single minor
source permit application since this would require a heavy resource
commitment for the reviewing authority, while not necessarily being as
effective as some other measures.
Providing copies of the public notice for posting at
locations in the area affected by your source. We expect that such
locations might include Post Offices, libraries, tribal environmental
offices, community centers, and other gathering places in the
community.
Other appropriate means of notification.
We believe that this combination of mandatory and optional
approaches to providing notice is appropriate for today's proposed
minor NSR program in Indian country. In addition, we believe that the
proposal is consistent with 40 CFR 51.161, which requires a ``notice by
prominent advertisement in the area affected,'' but does not specify a
newspaper advertisement. We believe that in many areas of Indian
country, notices posted in locations frequented by the local population
and on agency Web sites, as well as mailed or e-mailed to concerned
parties, will provide more ``prominent advertisement'' than would
publication in a newspaper.
The reviewing authority must provide for a 30-day public comment
period on the draft permit. After considering all relevant public
comments, the reviewing authority will make a final decision to issue
or deny your permit. The public (including you, the permit applicant)
will have an opportunity to appeal the final decision under 40 CFR
49.159 of the proposed rule.
These proposed public participation requirements would apply to
preconstruction permits, minor source PAL permits, synthetic minor
permits, and the initial issuance of general permits. We seek comment
on the proposed public participation requirements in 40 CFR 49.157.
We are also proposing very similar public participation
requirements for the nonattainment major NSR program. See section
IV.B.3 of this preamble.
12. What are the monitoring, recordkeeping, and reporting requirements?
Sections 110(a)(2)(A) and (C) of the Act require that a
preconstruction permitting program provide for the enforcement of
measures that include ``enforceable emission limitations'' and other
control measures, means, or techniques * * * as well as schedules and
timetables for compliance.'' Section 110(a)(2)(F) additionally requires
that a permitting program may require ``the installation, maintenance,
and replacement of equipment, and the implementation of other necessary
steps by owners and operators of stationary sources to monitor
emissions from such sources,'' as well as ``periodic reports on the
nature and amounts of emissions and emission-related data from such
sources.''
Generally, we are proposing that all permits issued under this
minor NSR program contain emission limitations that are enforceable as
a practical matter, as well as adequate monitoring, recordkeeping, and
reporting requirements as may be necessary to assure compliance with
those limitations. The requirements for monitoring, recordkeeping, and
reporting are discussed below; See 40 CFR 49.155(a) of the proposed
rule for the complete requirements.
Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with any control
technology requirements contained in the permit. Monitoring
[[Page 48716]]
approaches may include continuous emissions monitoring systems (CEMS),
predictive emissions monitoring systems (PEMS), continuous parameter
monitoring systems (CPMS), periodic manual logging of monitor readings,
equipment inspections, mass balances, periodic performance tests, and/
or emission factors, as appropriate for your minor source based on the
types of emissions units, magnitude of emissions, and air quality
considerations. Such monitoring shall assure use of terms, test
methods, units, and averaging periods consistent with the control
technology and emission limitations required for your source. If the
permit includes a minor source PAL for a pollutant at your minor
stationary source, it must also include monitoring to determine the
actual emissions from your source for each month and the total actual
emissions for each 12-month period, rolled monthly, for that pollutant.
Recordkeeping requirements. The permit must include recordkeeping
requirements sufficient to assure compliance with the enforceable
emission limitations in your permit. Records of required monitoring
information must include all calculations using emissions factors, all
stack tests or sampling information including date and time of test or
sampling, the name of the company or entity that performed the
analyses, the analytical techniques or methods used, the results of
such analyses and the operating conditions existing at the time of
sampling or measurement. All such records including support information
must be retained for 5 years from the date of the record. Support
information may include all calibration and maintenance records and all
original strip-chart recordings or electronic records for continuous
monitoring instrumentation.
Reporting requirements. You must provide annual monitoring reports
showing whether you have complied with your permit emission
limitations. You also must provide prompt reports of deviations from
permit requirements, including those attributable to upset conditions
as defined in the permit, the probable cause of such deviations, and
any corrective actions or preventive measures taken. Within a permit,
the reviewing authority must define ``prompt'' in relation to the
degree and type of deviation likely to occur.
13. What are the criteria for general permits, what source categories
generally qualify for them, and what are the permit application
requirements for a general permit?
A ``general permit'' is a preconstruction permit that may be
applied to a number of similar emissions units or stationary sources.
The purpose of a general permit is to simplify the permit application
and issuance process for similar facilities so that a reviewing
authority's limited resources need not be expended for case-by-case
permit development for such facilities. A general permit may be written
to address a single emissions unit, a group of the same type of
emissions units, or an entire minor source.
The minor NSR program proposed in this action would allow your
reviewing authority to issue general permits for categories of
emissions units or stationary sources that are similar in nature, have
substantially similar emissions, and would be subject to the same or
substantially similar permit requirements. ``Similar in nature'' refers
to size, processes, and operating conditions. To issue a general
permit, the reviewing authority must provide the same opportunities for
public participation and administrative and judicial review that apply
to minor NSR permits issued to a specific source under this program.
This is true with respect to all aspects of the general permit except
its applicability to an individual source. See proposed 40 CFR
49.156(b).
Once a general permit has been issued for a source category or
category of emissions units, you may submit an application to be
covered under the general permit if your proposed new minor source or
modification qualifies for coverage under that general permit. Your
reviewing authority may grant or deny your request to construct under a
general permit without further public participation. However, when you
receive approval to be covered under a general permit, you must post a
prominent notice at your source of this approval to construct under the
general permit. Someone may seek judicial review only on the issue of
whether your source qualifies for the general permit. See proposed 40
CFR 49.156(e). We believe that general permits offer a cost-effective
means of issuing permits and provide a quicker and simpler alternative
mechanism for permitting your minor sources than the site-specific
permitting process discussed previously.
In setting criteria for sources to be covered by general permits,
your reviewing authority would consider the following factors. First,
categories of sources or emissions units covered by a general permit
should be generally homogeneous in terms of operations, processes, and
emissions. All sources or emissions units in the category should have
essentially similar operations or processes and emit pollutants with
similar characteristics. Second, the sources or emissions units should
be expected to warrant the same or substantially similar permit
requirements governing operation, emissions, monitoring, recordkeeping,
or reporting.
Your sources covered under a general permit would be issued a
letter approving coverage under the general permit. You must maintain
the general permit and the letter at your source location at all times
to be made available for inspection by the reviewing authority.
General permits may be issued to cover any category of numerous
similar sources, provided that such sources meet the appropriate
criteria. For example, permits can be issued to cover small businesses
such as gas stations or dry cleaners. General permits may also, in some
circumstances, be issued to cover discrete emissions units, such as
individual solvent cleaning machines at industrial complexes. We
request comment on the use of general permits, eligible emissions units
and source categories, and the process of issuing general permits.
14. What is the administrative and judicial review process proposed for
this program?
We are proposing and seeking comment on two options for reviewing
initial permit decisions by reviewing authorities under this program.
We will discuss these options further, but first we will present the
proposed administrative procedures that we expect to be the same
regardless of which review option we ultimately select.
The final permit issuance procedures and related notice
requirements are proposed in 40 CFR 49.159(a). After decision on a
permit, the reviewing authority must notify you of the decision, in
writing, and if the permit is denied, of the reasons for the denial. If
the reviewing authority issues a final permit to you, it must make a
copy of the permit available at all of the locations where the draft
permit was made available. In addition, the reviewing authority must
provide adequate public notice of the final
[[Page 48717]]
permit decision to ensure that the affected community, general public,
and any individuals who commented on the draft permit have reasonable
access to the decision and supporting materials. Depending on the
circumstances of your permit, the reviewing authority may elect to
provide notice directly to the individuals who commented on the draft
permit and/or use any of the other methods of public notice discussed
in section IV.A.11 of this preamble (related to public notice of the
draft permit).
We are proposing a requirement that the reviewing authority's final
decision on your permit be based on an administrative record and
requirements on what must be in that record. See proposed 40 CFR
49.159(b) and (c). The proposed rules also include provisions at 40 CFR
49.159(e) that address reopening a permit after it has been issued if
it contains a material mistake or fails to assure compliance with the
permit requirements. In addition, proposed 40 CFR 49.159(f) contains
provisions for administrative permit revisions to make minor changes in
the permit without being subject to the permit application, issuance,
public participation, or administrative and judicial review
requirements of the program.
We are proposing two options for reviewing initial permit decisions
by reviewing authorities. In Option 1, review of minor NSR permits
would be similar to review of major PSD permits issued under 40 CFR
52.21. To challenge the terms of your permit, you or another party
would have to file a petition for review with our Environmental Appeals
Board (EAB). Decisions by the EAB could be appealed to the Federal
Court of Appeals for the tribal area. Alternatively, in Option 2, the
reviewing authority's initial permit could be appealed directly to the
appropriate Federal Court of Appeals without a requirement to appeal to
the EAB first. There are advantages and disadvantages to both
approaches. We solicit comment on which option we should adopt.
Option 1. Under Option 1, the proposed administrative and judicial
review process for the minor NSR program parallels the process for PSD
permits issued under 40 CFR 52.21, which is found in 40 CFR part 124.
Since not all of the provisions of part 124 need to apply to this
program, rather than adding the minor NSR program to the list of
programs to which part 124 applies, in this option we are proposing to
include the desired provisions in 40 CFR 49.159. The proposed
provisions are very similar to the part 124 provisions, although they
have been modified to better suit the small sources that will be
covered under the minor NSR program.
The major difference between Option 1 and Option 2 is that, under
Option 1, permit decisions may be appealed to the EAB within 30 days
after a final permit decision has been issued, and a final permit
typically would not become effective until 30 days after issuance. Upon
filing of a petition for review, the permit would be stayed (i.e., not
go into effect) until the EAB decides whether to review any condition
of the permit and the reviewing authority takes any action required by
the EAB. When the EAB has issued its final order on an appeal, a motion
to reconsider the final order may be filed with the EAB within 10 days.
Only after all administrative remedies under proposed 40 CFR 49.159
have been exhausted could the person(s) filing the petition seek
judicial review.
Option 2. Option 2 has two major differences from the appeals
process we proposed in Option 1. First, we propose under Option 2 that
permits would become immediately effective upon issuance by the
reviewing authority unless a later effective date is specified. Second,
there is no requirement for seeking EAB review before filing a petition
for review in the Federal Court of Appeals with jurisdiction of the
tribal area. The final agency action for purposes of judicial review is
the issuance of the final permit by the reviewing authority. The permit
is not stayed by the filing of a petition for review. If a party
challenging a permit would like to have your permit stayed, that party
may seek a stay under the provisions of the Administrative Procedures
Act (APA), 5 U.S.C. 705.
Because the regulatory language for Option 1 is more detailed than
would be required for Option 2, the proposed regulatory text only
addresses Option 1.
Advantages and Disadvantages of Options 1 and 2. The different
approaches to appeals of reviewing authority decisions result from
section 704 of the APA. This section provides that an agency action
that is otherwise final is final for purposes of judicial review unless
the agency otherwise requires by rule that a party must seek review by
a superior authority within the agency and the agency's action is
meanwhile inoperative. Therefore, if we were to require administrative
review by the EAB or another part of EPA before allowing anyone to seek
judicial review of a permit, then we would be required to stay the
permit for the duration of the appeal. The two options balance the
advantages of EAB review of permits with the desire to not
unnecessarily and inappropriately delay your ability to construct or
modify a new minor source.
On the one hand, minor NSR permits are for sources and
modifications that emit less than new major sources and major
modifications to major sources. An automatic stay would delay these
smaller projects from going ahead when there is less environmentally at
stake than in a challenge to a PSD or nonattainment major NSR permit.
In those instances where there would be irreparable harm caused by a
project proceeding under a flawed permit, there would still be
available the opportunity to seek a stay under the APA.
On the other hand, review of permit decisions by the EAB serves as
quality control over decisions by various parts of EPA. The EAB can
ensure that the policies of the Administrator are applied consistently
and appropriately in permit decisions. This may be important when a
tribe receiving a delegation under this rule or an EPA Regional Office
acting as the reviewing authority makes an error in applying the
relevant rules.
One important consideration would be the timeliness of any review
process. The EAB has specialized expertise in environmental issues,
unlike courts with broader case-loads. The EAB is likely to process a
petition for review faster than a Court of Appeals. Courts of Appeals
necessarily give priority criminal appeals over civil regulatory
matters and thus may delay addressing and resolving permit appeals. In
either the EAB or the Courts of Appeals, it is unlikely that review of
minor NSR permits will be expedited ahead of matters with greater
environmental impact.
Under Option 2, you may be placed in a difficult situation of
having a permit revoked after proceeding with construction while an
appeal was pending. However, under Option 1, your project cannot
proceed so long as the EAB appeal is pending.
We seek comment on how to balance these issues. Which option do you
prefer and why? We invite comment on whether either Option 1 or Option
2 is more appropriate for general permits than individual minor source
permits. We also ask for comment on whether there should be a short
delay of 30 days before a permit is effective under Option 1 in order
to allow for parties to seek administrative stays during
reconsideration or to obtain a judicial stay before a permit goes into
effect. Should we establish a mechanism for administrative
reconsideration though the EAB, even when a party is seeking judicial
review in the Court of Appeals? Any input on these issues with
[[Page 48718]]
supporting documentation will help us in structuring the final rule.
B. Major NSR Program in Nonattainment Areas of Indian Country
In today's rulemaking, we are proposing to establish a major NSR
program for new major stationary sources and major modifications at
existing major stationary sources in nonattainment areas of Indian
country at 40 CFR 49.166 through 49.175. This program is designed to
meet the requirements of part D of title I of the Act, and sources
subject to this program would be required to comply with the
requirements of 40 CFR part 51, appendix S (appendix S).
Appendix S is entitled ``Emission Offset Interpretative Ruling''
and sets forth preconstruction review requirements for major stationary
sources and modifications locating in nonattainment areas where the
State does not have an EPA-approved nonattainment major NSR program. In
general, appendix S is a transitional nonattainment major NSR program
that covers the period after an area has been newly designated as
nonattainment, up until the State has amended its SIP's nonattainment
major NSR program, as needed, to address the new nonattainment area.
The requirements under appendix S are essentially the same as our
requirements for State nonattainment major NSR programs at 40 CFR
51.165.
Primarily, we believe it is appropriate to apply appendix S
provisions in Indian country for administrative convenience.
Additionally, since appendix S generally applies in nonattainment areas
where there is no approved nonattainment major NSR program, and since
no tribe currently has such a program, we believe that appendix S
should also apply in Indian country. Another reason for requiring
sources subject to this program to comply with appendix S requirements
is that the EPA Regional Offices (which will be implementing the
program until an EPA-approved implementation plan is in place) and
several major sources in Indian country are familiar with the
implementation and provisions of appendix S.
We considered and rejected the option of amending appendix S to
extend its application to Indian country, since we believe that sources
in Indian country are more likely to look for regulations applicable to
them under part 49, which is solely dedicated to regulations that apply
in Indian country. We also considered drafting a parallel major NSR
regulation to apply to sources in Indian country, but rejected this
option since it would essentially re-propose appendix S provisions,
which have been in effect outside of Indian country for many years. We
wanted to avoid any potential confusion or possible perception that
these parallel regulation requirements would be different than the
appendix S requirements.
It is important to keep in mind that, in this rulemaking, we are
only seeking comment on our general approach of requiring sources
subject to the major NSR program in Indian country to be subject to the
provisions of appendix S. While we will consider any compelling
rationale or justification from a commenter that a particular provision
in appendix S is not appropriate for Indian country, we will not
entertain general comments on the appendix S provisions, since this
transitional program has been implemented in States across the country
for many years.
1. What are the requirements for major source permitting under appendix
S?
Pursuant to paragraph IV of appendix S, a reviewing authority may
issue a permit for a new major source or a major modification locating
in a nonattainment area, if it complies with the following conditions:
The new major source or a major modification meets the
LAER for that source utilizing add-on controls or pollution prevention
measures.
The applicant certifies that all existing major sources
owned or operated by the applicant (or any entity controlling,
controlled by, or under common control with the applicant) in the same
State as the proposed source are in compliance with (or under a
federally-enforceable compliance schedule for) all applicable emission
limitations and standards under the Act.
Emission reductions (offsets) from existing sources in the
area of the proposed source (whether or not under the same ownership)
are obtained such that there will be reasonable progress towards
attainment of the applicable NAAQS. Only intrapollutant emission
offsets will be acceptable (e.g., NOx for NOx).
The emission offsets provide a net air quality benefit in
the affected area.
2. What are the options we are proposing to address the lack of
available offsets in Indian country?
Tribal representatives have repeatedly stated that requirements for
emission offsets are problematic in Indian country for the following
reasons. Many tribes believe that transport is a major cause of
pollution in Indian country. Tribes, with few exceptions, do not have
many existing sources within their area of Indian country from which
offsets can be obtained. In addition, administrative barriers may
hinder tribal access to otherwise available offsets. Therefore, tribal
representatives have advocated for additional flexibility to address
offsets, such as the provision of NSR offset set-asides (which we
expect would come from State offset pools or banks). Tribal
representatives have raised these and other concerns in discussions on
implementation of the 8-hour ozone and PM2.5 standards, and
in comments on the 8-hour ozone implementation rule.\8\
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\8\ For example, see the letter from Bill Grantham, National
Tribal Envrionmental Council, to docket EPA-HQ-OAR-2003-0076,
providing comments on the proposed 8-hour ozone implementation rule
(66 FR 32802).
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We recognize the unique circumstances that tribes face. Unlike
States that have a SIP, a huge industrial base with several hundred
existing sources, and a broad range of measures to attain and maintain
NAAQS, a tribe generally has neither a TIP nor many existing sources
from which to generate offsets. Under these circumstances, we are
proposing two options to address the lack of availability of offsets
for tribes: (1) The Economic Development Zone (EDZ) option and (2) the
appendix S, paragraph VI option. We also are requesting comment on
other potential options for offset relief in Indian country.
Economic Development Zone Option. We would rely on section
173(a)(1)(B) of the Act wherein the Administrator, in consultation with
the Secretary of Housing and Urban Development (HUD), would identify
areas in Indian country as EDZs such that sources subject to major NSR
located in EDZs in Indian country would be exempt from the offset
requirement in section 173(a)(1)(A) of the Act.
Section 173(a)(1) of the Act provides for the issuance of permits
to construct and operate a new or modified major stationary source if
the reviewing authority determines that (A) ``* * * sufficient
offsetting emissions reductions have been obtained * * *'' or (B) ``in
the case of a new or modified major stationary source which is located
in a zone (within the nonattainment area) identified by the
Administrator, in consultation with the Secretary of Housing and Urban
Development, as a zone to which economic development should be
targeted, that emissions of such pollutant resulting from the proposed
new or modified major stationary source will not cause or contribute to
emissions levels which
[[Page 48719]]
exceed the allowance permitted for such pollutant for such area from
new or modified major stationary sources under section 172(c).''
Once the Administrator has identified an area that should be
targeted for economic development in consultation with HUD, major
sources that construct or modify within that area are relieved of the
offset requirement if the State/tribe can demonstrate that the new
permitted emissions are consistent with the achievement of reasonable
further progress pursuant to section 172(c)(4) of the Act, and will not
interfere with attainment of the applicable NAAQS by the applicable
attainment date.
We understand that HUD's Initiative for Renewal Communities, Urban
Empowerment Zones, and Urban Enterprise Communities generally require
that participating communities demonstrate pervasive poverty, high
unemployment, and general distress throughout the designated area. The
U.S. Department of Agriculture requires similar eligibility criteria
for participating communities located in rural areas. We believe that
many areas of Indian country may meet these criteria and hence could
qualify for this offset relief provision. We seek comment on whether
these criteria are appropriate for use in identifying EDZs in Indian
country and if we should consider any other criteria.
We are also proposing to have the Administrator consult with HUD
only once to develop a general set of approval criteria, such that a
consultation is not required every time a tribe applies for its area of
Indian country to be designated as an EDZ. EPA would provide assistance
as needed for a tribe to complete an EDZ designation request. Once the
Administrator approves such a request from a tribe, a new major source
or a major modification locating in that EDZ would be exempt from the
offset provisions. We seek comment on this approach for providing
offset relief.
Appendix S, Paragraph VI Option. Paragraph VI of appendix S notes
that in some cases, the dates for attainment of the primary or
secondary NAAQS may not have passed. In such cases, appendix S provides
that a new source locating in a nonattainment area may be exempt from
the requirements of paragraph IV.A of appendix S (discussed in section
IV.B.1 of this preamble), including the offset requirement, if the
following conditions are met:
The new source complies with the applicable implementation
plan emission limitations;
The new source will not interfere with the attainment date
for a regulated NSR pollutant; and
We have determined that the preceding two conditions are
satisfied and such determination is published in the Federal Register.
Tribes would be able to use this option for offset relief for the
8-hour ozone and PM2.5 NAAQS. For instance, the attainment dates for 8-
hour ozone nonattainment areas range from 2007 for marginal areas to
2021 for severe areas. Hence, a new major source or a major
modification locating in such a nonattainment area prior to the
attainment date may be exempt from the requirements of paragraph IV of
appendix S, if the associated conditions are met.
It is important to note that this option would provide only
temporary offset relief because it would cease to be available once the
attainment date for a pollutant has passed. For instance, this option
would not be available to marginal 8-hr ozone nonattainment areas after
2007. We seek comment on this paragraph VI option for offset relief.
We are seeking comment on other potential options for addressing
the lack of availability of offsets in Indian country.
3. What are the proposed public participation requirements for this
program?
We believe that the public participation requirements of 40 CFR
51.161 apply to permitting under appendix S. Additionally, for the
nonattainment major NSR program, we are proposing detailed public
notice requirements at 40 CFR 49.171. The proposed requirements for the
nonattainment major NSR program are very similar to those proposed for
the minor NSR program at 40 CFR 49.157. See section IV.A.11 for more
information on the proposed requirements.
4. How do I meet the statewide compliance certification requirement of
the Act?
Pursuant to the statewide compliance certification requirements of
section 173(a)(3) of the Act, an owner or operator of a proposed new or
modified major stationary source must demonstrate that all other major
stationary sources under her/his control in the same State are in
compliance or on a schedule for compliance with all emission
limitations and standards of the Act. It is important to recognize that
the proposed rules will not impact this statewide compliance
certification requirement. However, in the context of Indian country,
we are seeking comments on whether this requirement should be expressed
as an Indian country-wide compliance certification or remain a
statewide certification. In other words, should you be required to
certify that all your sources in the State where your proposed source
is locating are in compliance, or that all your sources in all of
Indian country are in compliance?
Note that we are proposing a minor change to appendix S that is
related to the ``emission limitations and standards of the Act.''
Existing paragraph II.B of appendix S requires the reviewing authority
to review each proposed new major source and major modification to
determine whether it will meet ``any applicable new source performance
standard in 40 CFR part 60, or any national emission standard for
hazardous air pollutants in 40 CFR part 61.'' While we have
incorporated this requirement into proposed 40 CFR 49.169(a), we
believe that it should be expanded to include the newer national
emission standards for hazardous air pollutants codified at 40 CFR part
63 (commonly referred to as MACT standards). Accordingly, we are
proposing to revise paragraph II.B of appendix S to add these standards
under the Act, and proposed 40 CFR 49.169(a) would match the revised
language of this paragraph.
V. Legal Basis, Statutory Authority, and Jurisdictional Issues
A. What is the basis for our authority to implement these programs?
Today's proposed rules are intended to fill a regulatory gap in the
protection of air quality in Indian country. Although many States have
developed regulatory programs for minor sources, those programs do not
apply in Indian country unless explicitly approved by EPA for such
areas. In addition, there is no Federal minor NSR program or major
nonattainment NSR program in Indian country. Part D of title I of the
Act requires that each SIP include preconstruction review and
permitting rules for the construction and operation of new and modified
major stationary sources located in designated nonattainment areas. The
TAR authorizes eligible Indian tribes to implement EPA-approved
nonattainment NSR (part D of title I of the Act), PSD (part C of title
I of the Act), and other programs under the Act in the same manner as
States. However, if Indian tribes are unable, or choose not, to develop
a nonattainment NSR program in a TIP, we will implement the program
where necessary or
[[Page 48720]]
appropriate. Today's proposed requirements are intended to provide the
mechanism for implementation of the Federal major nonattainment NSR and
minor NSR programs in Indian country.
The purpose of the proposed rules is to ensure that the NSR program
is implemented throughout the United States and that any economic
growth occurring in Indian country will do so in harmony with the
preservation of existing clean air resources. Today's proposed rules
provide both Indian tribes and businesses operating or considering
locating in Indian country an understanding of the NSR programs for
stationary sources. They also provide businesses and tribes procedures
to comply with the major nonattainment NSR and minor NSR programs.
The Act gives us the authority to protect the Nation's air
resources. Furthermore, title I of the Act requires that the NSR
program be established to protect public health and welfare, national
parks, and wilderness areas as new sources of pollution are built or
existing sources are modified. The program is designed to ensure that
emissions will be well controlled and that there will be protection of
the NAAQS in Indian country. We understand that not all tribes have the
resources to design and implement NSR programs; therefore, in today's
proposal, we are providing a Federal program to apply in Indian country
and that tribes may use as a model if they choose to develop their own
implementation programs and obtain our approval.
Under today's proposed rule, the Federal program at 40 CFR 49.151
through 49.165 for minor stationary sources would apply throughout
Indian country, except where we explicitly approve an implementation
plan for such programs. The Federal rule at 40 CFR 49.166 through
49.175 for new and modified major stationary sources in nonattainment
areas located in Indian country would likewise apply in an area of
Indian country until an implementation plan has been approved by us.
As discussed previously, the Act provides us with broad authority
to protect air resources throughout the Nation, including air resources
in Indian country. See, for example, the preamble discussion for the
proposed and final TAR (59 FR 43956, 43958-61, August 25, 1994; 63 FR
7254, 7262-64, February 12, 1998) and the preamble discussion for the
proposed revisions to the part 71 Federal operating permits program for
Indian country (62 FR 13748, 13750, March 21, 1997). In the preambles
to the proposed and final TAR, we discussed generally the legal basis
under the Act for EPA and tribal regulation of sources of air pollution
in Indian country. We concluded that the Act constitutes a statutory
delegation of Federal authority to eligible tribes over all sources of
air pollution within the exterior boundaries of their reservations.
Further, under the Act, tribes may also apply to administer tribal
air quality programs for non-reservation areas over which they can show
jurisdiction.\9\ See 63 FR 7254-7259, 59 FR 43958-43960, Arizona Public
Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), cert. den., 532
U.S. 970 (2001).
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\9\ We believe that in the context of programs under the Act,
States generally lack the authority to regulate air quality in
Indian country. See Alaska v. Native Village of Venetie Tribal
Government, 522 U.S. 520, 527 fn. 1 (1998) (``Generally speaking,
primary jurisdiction over land that is Indian country rests with the
Federal Government and the Indian tribe inhabiting it, and not with
the States.''), California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), and HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000); see
also discussion in EPA's final rule for the Federal operating
permits program (64 FR 8251-8255, February 19, 1999). To provide
additional certainty to regulated entities, we believe it is helpful
to clarify the extent to which State NSR programs have force in
Indian country. We make clear today that we interpret past approvals
and delegations of NSR programs as not extending to Indian country
unless the State has made an explicit demonstration of jurisdiction
over Indian country, and we have explicitly approved or delegated
the State's program for such area. This is consistent with Congress'
requirement that we approve State and tribal programs only where
there is a demonstration of adequate authority. See sections
110(a)(2)(E), 110(o), and 301(d) of the Act and 40 CFR part 49.
Since States generally lack the authority to regulate air resources
in Indian country, we do not believe it would be appropriate for us
to approve State programs under the Act as covering Indian country
where there has not been an explicit demonstration of adequate
jurisdiction and where we have not explicitly indicated our intent
to approve the State program for an area of Indian country. In State
NSR program approvals and delegations, we generally were not faced
with State assertions of authority to regulate sources in Indian
country. However, to the extent States or others may have
interpreted our past approvals or delegations that were not based on
explicit demonstrations of adequate authority and did not explicitly
grant approval in Indian country, as approvals to operate NSR
programs in Indian country, we wish to clarify any such
misunderstanding.
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In the preamble to the TAR, we also concluded that the Act
authorizes us to protect air quality throughout Indian country. See 63
FR 7262, 59 FR 43960-43961 citing sections 101(b)(1), 301(a), and
301(d) of the Act.
In addition, sections 301(d) and 110(o) of the Act give the tribes
the authority to develop their own tribal programs. We encourage
eligible tribes to develop their own minor and major nonattainment NSR
programs for incorporation into their TIPs. In the absence of EPA-
approved programs, we believe that, in most cases, it would be neither
practical nor administratively feasible for us to develop and implement
a separate program for each area of Indian country. As a result, we are
proposing to implement a flexible FIP for Indian country that provides
new and modified minor sources and major sources in nonattainment areas
with procedures to demonstrate that they will be operating in a manner
that is protective of air resources and the NAAQS.
Section 301(a) of the Act provides us broad authority to issue such
regulations as are necessary to carry out the mandates of the Act.
Further, several provisions of the Act call for Federal implementation
of a program where, for example, a State, or in this case a tribe,
fails to adopt a program or adopts an inadequate program. See, for
example, sections 110(c)(1), 502(d)(3), and 502(i)(4) of the Act. These
provisions exist in part to ensure that the benefits of the Act would
be realized throughout the United States, whether or not local
governments choose to participate in implementing the Act. Especially
in light of the problems associated with transport of air pollution
across State and tribal boundaries, it follows that Congress intended
that we have the authority to operate a Federal program in the absence
of an adequately implemented EPA-approved program. See, for example, 59
FR 43958-61, August 25, 1994; 62 FR 13750, March 21, 1997; and 63 FR
7262-64, February 12, 1998.
This interpretation is most evident from Congress' grant of
authority to the EPA under section 301(d)(4) of the Act. Section
301(d)(4) authorizes the Administrator to directly administer
provisions of the Act so as to achieve the appropriate purpose where
tribal implementation of those provisions is inappropriate or
administratively infeasible. We determined that it is inappropriate to
subject tribes, among other things, to the mandatory submittal
deadlines and to the related Federal oversight mechanisms in section
110(c)(1) of the Act, which are triggered when we make a finding that
States have failed to meet required deadlines or disapprove a plan
submittal. See 40 CFR 49.4(d).
By determining that tribes should not be treated similarly to
States for purposes of the specific FIP obligation under section
110(c)(1) of the Act, we are not relieved of the general obligation
under the Act to ensure the protection of air quality throughout the
Nation, including throughout Indian country. Rather, consistent with
the provisions of sections 301(a) and 301(d)(4) of the Act, we
expressed our intent to promulgate
[[Page 48721]]
without unreasonable delay a FIP (where necessary or appropriate) to
protect air quality if tribal efforts do not result in adoption and
approval of tribal plans or programs. See 63 FR 7265, 40 CFR 49.11.
We propose to exercise our authority to administer the minor NSR
permitting program and the nonattainment major NSR program in Indian
country, which is generally the area over which a tribe may potentially
receive approval of programs under the Act. As noted in the final TAR,
we interpret the Act as establishing a territorial approach to
implementation of the Act within Indian reservations by delegating to
eligible tribes authority over all reservation sources without
differentiating among the various categories of on-reservation lands
(63 FR 7254-7258). In addition, the Act authorizes eligible tribes to
implement tribal programs under the Act in non-reservation areas over
which a tribe has jurisdiction, generally including all areas of Indian
country (63 FR 7258-7259).
Under section 301(d)(4) of the Act, Congress authorized the EPA to
maintain the territorial approach by implementing the Act in Indian
country in the absence of an EPA-approved program. We believe that
Congress authorized us, consistent with our Indian policy, to avoid the
checkerboarding of reservations based on land ownership by federally
implementing the Act over all reservation sources in the absence of an
EPA-approved tribal program. See S. Rep. No. 228, 101st Cong., 1st
Sess. 79 (1989) (implementation of the Act to be in a manner consistent
with EPA's Indian policy). In addition, section 301(d)(4) authorized us
to implement the Act in non-reservation areas of Indian country in
order to fill any gap in program coverage and to ensure an efficient
and effective transition to EPA-approved programs.
Our interpretation of section 301(d) of the Act as authorizing our
implementation throughout Indian country is also supported by the
legislative history. See S. Rep. No. 228, 101st Cong., 1st Sess. 80
(1989) (noting that section 301(d) of the Act authorizes the EPA to
implement provisions of the Act throughout ``Indian country'' when
there is no approved tribal program); Id. at 80 (noting that criminal
sanctions are to be levied by the EPA, ``consistent with the Federal
government's general authority in Indian country''); Id. at 79 (the
purpose of section 301(d) is to ``improve the environmental quality of
the air within Indian country in a manner consistent with the EPA
Indian Policy'').
In order to further our commitment to use our authority under the
Act to protect air quality throughout Indian country by directly
implementing the Act's requirements, we are now exercising the
rulemaking authority entrusted to us by Congress to directly implement
the minor NSR permitting program and nonattainment major NSR permitting
program throughout all areas of Indian country. See generally, Chevron
USA, Inc. v. NRDC, 467 U.S. 837, 842-45 (1984).
B. How does a tribe receive delegation to assist EPA with
administration of the Federal minor and major NSR rules?
Section 301(a)(1) of the Act provides that the Administrator is
authorized to prescribe such regulations as are necessary to carry out
his or her functions under the Act. Pursuant to this authority,
proposed 40 CFR 49.160 and 49.172 of the minor and major NSR rules,
respectively, provide that partial administration of the Federal NSR
programs may be delegated to a tribal agency that submits a request for
delegation which includes the information set forth in the proposed
sections.\10\ Any Federal requirements under these programs that are
administered by the delegate tribal agency will be subject to
enforcement by EPA under Federal law. Nothing in the proposed rules
would require us to delegate administration of any aspect of the
Federal program to a tribal agency.
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\10\ This information includes identifying the specific rules
and provisions and the area of Indian country for which the
delegation is requested. In addition, tribal agencies seeking
delegation must provide a statement by the tribe's legal counsel or
equivalent official including a statement that the tribe is
recognized by the Secretary of the Interior, a descriptive statement
demonstrating that the tribe is currently carrying out substantial
governmental duties and powers over a defined area (this statement
should be consistent with the type of information described in 40
CFR 49.7(a)(2), which relates to the separate process by which
tribes apply to be treated in a similar manner as States for various
purposes under the Act), a description of the laws of the tribe that
provide adequate authority to administer the Federal rules and
provisions for which the delegation is requested, and a descriptive
statement demonstrating that the tribal agency has, or will have,
the technical capability and adequate resources to administer the
Federal rules and provisions for which the delegation is requested.
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As noted elsewhere, we have established a process in the TAR
pursuant to section 301(d) of the Act for tribes to seek treatment in a
similar manner as a State (TAS) for various provisions and programs of
the Act. Under the procedures set forth in the TAR, tribes may seek to
demonstrate eligibility for approval of tribal programs under the Act,
including a tribal NSR program, under tribal law. The TAR allows tribes
to seek approval for such programs covering their reservations or other
areas within their jurisdiction. We recognize that some tribes may
choose not to develop tribal NSR programs for submission to us for
approval under the TAR, but that these tribes may still wish to assist
us in implementing the Federal NSR program for their area of Indian
country. By assisting us with administration of the Federal program,
tribes remain appropriately involved in implementation of an important
air quality program and may develop their own capacity to manage such
programs in the future should they choose to do so. Proposed 40 CFR
49.160 and 49.172 of the minor and major NSR rules, respectively,
provide tribal governments the option of seeking delegation from us of
the administration of the Federal NSR program, or aspects of the
program, for their area of Indian country. Such administrative
delegation is to be distinguished from the TAS process under the TAR
whereby tribes seek approval to run programs under tribal law. Tribes
would not need to seek TAS under the TAR in order to request delegation
of administration of aspects of these Federal NSR programs. Tribes
would, however, need to provide the relevant application information
described in those sections. In addition, program functions delegated
under proposed 40 CFR 49.160 or 49.172 would remain part of the
relevant FIP administered under Federal law. The delegate tribal agency
would simply assist EPA with administration of the program to the
extent of the functions delegated.
We have well-established processes for delegating our Federal
authority to States for administering Federal rules under the Act,
including conducting new source review under 40 CFR 52.21(u), and
issuing Federal operating permits under 40 CFR 71.4(j) and 71.10. The
process we would follow to delegate the administration of the Federal
NSR program to a tribal agency is similar to the process we follow to
delegate the administration of Federal programs to States. Prior to
finalizing any delegation agreement with a tribal agency, we would
consult with other Federal, State, tribal, or local governmental
entities, or other governmental agencies in the area, as appropriate.
Although sections 110(o) and 301(d) of the Act and the TAR authorize us
to review and approve TIPs, neither the Act nor the regulations provide
that approval of tribal programs under tribal law is the sole mechanism
[[Page 48722]]
available for tribal agencies to take on permitting responsibilities.
Accordingly, we propose to exercise our discretion to delegate
administration of the Federal NSR program to interested tribal agencies
satisfying the requirements of proposed 40 CFR 49.160 and 49.172.
The delegation of administration of the Federal NSR program to
tribes proposed in these rules is to be distinguished from our
interpretation that the Act constitutes a delegation of Federal
authority from Congress to tribes over their reservations as described
in the TAR. See 63 FR 7254-59. As described in the preamble to the TAR,
it is our position that the TAS provision of the Act constitutes a
statutory delegation of authority to eligible tribes over their
reservations. As described earlier, the TAR established procedures for
our approval of tribal eligibility applications to operate the programs
of the Act under tribal law. Where we approve a tribal eligibility
application and approve a tribal NSR program, the approved tribe will
manage the program under tribal law, and the tribal program becomes
federally enforceable. Among the required elements of a tribal
eligibility application under the TAR is a demonstration of the tribe's
authority, including appropriate enforcement authority, to regulate air
quality for the areas to be covered by the program. For air resources
within the exterior boundaries of a tribe's reservation, the tribe may
rely on the Congressional delegation of Federal authority to operate
approved tribal programs. Tribes may also attempt to demonstrate
authority to operate the programs of the Act over other areas outside
of their reservations, generally including non-reservation areas of
Indian country.
In contrast, the delegation approach proposed in these rules
provides for us to delegate administration of the Federal program
operating under Federal law to interested tribes that provide the
information described in proposed 40 CFR 49.160(b)(1) and 49.172(b)(1).
Since this program operates throughout Indian country under Federal
authority, tribes would not need to demonstrate either Congressionally-
delegated authority over air resources within the exterior boundaries
of their reservations or authority of non-reservation areas of Indian
country. Instead, tribal agencies would assist us in implementing the
Federal program by taking delegation of the administration of
particular activities conducted under our authority in Indian country.
Under proposed 40 CFR 49.160(b)(1)(iii)(C) and 49.172(b)(1)(iii)(C),
tribes would only need to show that their laws provide adequate
capacity and authority to carry out the delegated activities. For
example, where a tribe seeks administrative delegation for permit
issuing activities of the Federal program, the tribe may, among other
things, need to show it has in place an appropriate agency with legal
authority to review applications and issue permits on behalf of the
delegate tribal government. For these administratively delegated
programs, Federal program requirements will continue to be subject to
enforcement by us, not the delegate tribal agency, under Federal law.
Administrative appeals of permitting decisions would also continue to
be made directly to the EAB under our administrative procedures with
any subsequent judicial review to be conducted in Federal court. In the
proposed rules we make it clear that we will not delegate enforcement
or appeal components of the program to tribal agencies.
In order to be delegated authority to administer the proposed rules
for a particular area of Indian country, the authorized representative
of a tribal agency must demonstrate that it has the authority and
technical capability to carry out the provisions of the rules for which
delegation is requested. When delegation is approved, a Partial
Delegation of Administrative Authority Agreement between the
Administrator and the tribal agency will set forth the terms and
conditions of the delegation, and will also specify the rules and
provisions that the tribal agency is authorized to implement. Once the
delegation becomes effective, the tribal agency will have the authority
under the Act, to the extent specified in the Agreement, to administer
the rules in effect for the particular area of Indian country, and to
act on behalf of the Administrator. The Federal requirements
administered by the delegate tribal agency will be subject to
enforcement by us under Federal law.
When we have delegated administration of the portion of the Federal
minor or major NSR program that includes receipt of permit application
materials and preparation of draft permits, the delegate tribal agency
must provide us a copy of each permit application (including any
application for permit revision) and each draft permit.\11\ In any such
delegation, we retain the authority to object to the issuance of any
permit that we determine not to be in compliance with the requirements
under the program or other requirements pursuant to regulations under
the Act. For any such objections, we will outline the reasons for the
objection in writing, and we will provide a copy of the written
statement to the permit applicant. The delegate tribal agency may not
issue a permit if we object to its issuance in writing. The delegate
tribal agency may submit a revised draft permit to us in response to
the objection. However, if it does not do so within 90 days, we will
issue or deny the permit in accordance with the requirements of the
Federal minor or major NSR program, as applicable.
---------------------------------------------------------------------------
\11\ The proposed minor and major NSR programs provide that the
delegate tribal agency may require the applicant to provide a copy
of the permit application directly to us. In addition, with our
consent, the delegate tribal agency may submit to us a permit
application summary form and any relevant portion of the permit
application.
---------------------------------------------------------------------------
C. What happens to permits previously issued by States to sources in
Indian country?
As discussed previously, section 301(d) of the Act recognizes the
authority of eligible tribes to implement the Act throughout their
reservations and other areas under their jurisdiction. Historically,
sources in some areas of Indian country may have received permits from
States operating EPA-approved programs. However, States generally lack
jurisdiction under the Act over these facilities and generally were not
authorized under the Act to issue such permits in Indian country. We
also recognize that just as it required many years to develop State and
Federal programs to cover lands subject to State jurisdiction, it will
also require time to develop tribal and Federal programs to cover areas
of Indian country.
We have also mentioned before that we will ``promulgate without
unreasonable delay such Federal implementation plan provisions as are
necessary or appropriate to protect air quality, consistent with the
provisions of sections 301(a) and 301(d)(4) [of the Act], if a tribe
does not submit a tribal implementation plan. * * *'' See 40 CFR
49.11(a). Today's proposed rulemaking would provide a mechanism to
change State permits issued to major sources of regulated NSR
pollutants in nonattainment areas of Indian country to Federal major
NSR permits. If you own or operate a major stationary source with a
State-issued nonattainment major NSR permit, you must apply to convert
the permit to a Federal permit under this program within 1 year of the
effective date of this program. In this case, you would not be subject
to any additional requirements under this program. See proposed 40 CFR
49.168(b).
The requirements contained in these State-issued permits have been
relied on for protection of attainment and
[[Page 48723]]
maintenance of air quality in these nonattainment areas. We believe
that transforming the State permits in to Federal major NSR permits for
major sources in Indian country is appropriate to protect air quality
in Indian country, as the tribes take on the effort to develop and/or
run their own programs.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993), we
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this is a ``significant regulatory action''. We have
submitted this action to OMB for review. Changes made in response to
OMB suggestions or recommendations will be documented in the public
record.
B. Paperwork Reduction Act
The information collection requirements in the proposed amendments
have been submitted for approval to OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq. The Information Collection Request (ICR)
document prepared by EPA has been assigned OMB Control Number 2060-0003
(EPA ICR No. 1230.13).
Certain records and reports are necessary for the tribal agency (or
the EPA Administrator in non-delegated areas), for example, to: (1)
Confirm the compliance status of stationary sources, identify any
stationary sources not subject to the standards, and identify
stationary sources subject to the rules; and (2) ensure that the
stationary source control requirements are being achieved. The
information would be used by the EPA or tribal enforcement personnel to
(1) Identify stationary sources subject to the rules, (2) ensure that
appropriate control technology is being properly applied, and (3)
ensure that the emission control devices are being properly operated
and maintained on a continuous basis. Based on the reported
information, the delegate tribes can decide which plants, records, or
processes should be inspected.
The major nonattainment NSR rule would have little impact on
existing major stationary sources in Indian country because it would
only affect such owners and operators if they propose a major
modification; none are expected. The proposed rule would only result in
an administrative change for new major sources in Indian country
because, although the regulatory mechanism to issue permits is not yet
available in the form of either a Federal nonattainment NSR rule or a
TIP, we would be required to implement the program in Indian country,
and would otherwise have to do source-specific FIP. As a result, there
would no new or additional burden on industry.
With regard to the minor source permitting rule, the average
capital cost per facility for the one-time activities is $13,088 per
source; annualized, this cost is $1,863 per year per source. The total
of the various annualized and recurring costs is an average of $7,598
per year per source. The annual reporting and record keeping cost
burden is a total annualized capital/startup costs of $77,000, and
total annual costs (operation and maintenance) of $235,000.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's rules are listed in 40 CFR part 9 and 48 CFR chapter 15.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number EPA-HQ-OAR-2003-0075. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after August 21, 2006, a comment to OMB is best
assured of having its full effect if OMB receives it by September 20,
2006. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, ``small entity'' is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government or
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. Today's proposed rule only
potentially affects small businesses, not small governments or small
organizations.
The proposed rule potentially affects six types of stationary
sources in Indian Country:
New and modified minor sources of regulated NSR
pollutants;
[[Page 48724]]
Sources of regulated NSR pollutants choosing to accept
enforceable emission limitations to avoid major source regulations
(synthetic minors);
Sources of HAP choosing to accept enforceable emission
limitations to avoid major source regulations (synthetic minors);
Minor modifications to major sources of regulated NSR
pollutants;
New major sources of regulated NSR pollutants in
nonattainment areas; and
Major modifications to major sources of regulated NSR
pollutants in nonattainment areas.
The second, third, fifth, and sixth types of sources are projected
to incur no incremental costs or to experience cost savings due to the
proposed rule. The rule results in only an administrative change for
new major sources in nonattainment areas. In the absence of the
proposed rule, there is no regulatory mechanism to issue permits. We
would be required to implement the program in Indian country, and such
new major sources would have to be permitted through a source-specific
FIP. The proposed rule would provide a regulatory mechanism for
permitting such sources; because the compliance requirements are
expected to be unchanged by the proposed rule, no change in control
costs is expected. Because the permitting process may be less uncertain
under the proposed rule, new and modifying major sources could
potentially experience cost savings compared to baseline conditions.
Choosing to accept enforceable emission limitations (become a synthetic
minor) is entirely optional; rational firms would only make this choice
if it resulted in a cost savings. For these four types of sources,
therefore, no adverse economic impacts are expected to any businesses,
including small businesses.
The screening assessment therefore focused on costs and impacts for
new and modified minor sources and minor modifications at major
sources. To analyze potential impacts to small companies owning such
sources, we first estimated the number of new sources that would be
sited in Indian country over the period 2004 through 2010, the time
period selected for the analysis.\12\ Generally, data on minor sources
in Indian country is very limited. We conducted an exhaustive search
for information available from EPA databases, the Small Business
Administration, and EPA Regional Offices. We also encouraged the tribes
to participate in the rulemaking, and inquired whether tribes had any
information on minor sources but no data were received. We concluded
that the information in 11 tribal emissions inventories maintained by
EPA/OAQPS provided the best characterization of the types of minor
sources that currently exist and the types of new minor sources that
might be sited in Indian country in the future. We collected data from
the Economic Census (1997) on the number of establishments of each type
in each State, and allocated the establishments to Indian country based
on tribes' share of State income. Then, we projected the number of new
minor sources of each type that would be created in Indian country by
applying the estimated growth rate for American Indian/Alaska Native
(AI/AN) population in each State to the estimated baseline number of
sources in Indian country in the State. Over the period from
promulgation (2004) through (2010), we estimate that 288 new minor
sources will be created in Indian country. We used data from financial
databases to compute the share of companies in each sector that are
owned by small businesses (based on the Small Business Administration
small business size definitions at 13 CFR part 121). Assuming that the
same share of new minor sources will be owned by small businesses, we
estimate that 164 new minor source facilities, owned by 143 small
businesses, will be created in Indian country during the period.
Additionally, we project that 112 modifications to existing minor
sources will occur during the period 2004 through 2010. Of these, we
estimate that 51 small businesses will own 62 existing minor sources
undergoing modifications during the period.
---------------------------------------------------------------------------
\12\ Based upon our evaluation of current Tribal emission
inventories and the application of updated growth rates, we have
determined that the analysis has not changed significantly to date;
therefore, the May, 2003 analysis for the period 2004-2010 remains
valid for the EIA, the associated ICR supporting statement and this
RFA. This analysis will be updated for the final rulemaking.
---------------------------------------------------------------------------
Finally, we estimate that one major source in Indian country will
make a minor modification to its operations each year. Thus, we
estimate that seven minor modifications to existing major sources will
occur over the period 2004 to 2010. Of these, we estimate that 3 of
these major sources will be owned by 3 small businesses.
Table 3 below summarizes the estimated numbers of affected
facilities and small businesses.
Table 3.--Projected Number of Affected Small Businesses and Estimated Costs Incurred by Small Businesses
[2004 through 2010]
----------------------------------------------------------------------------------------------------------------
Estimated costs
Projected number of Estimated number of incurred by small
Source type sources owned by small small businesses businesses ($ million)
businesses \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 impacts on small businesses,
we compared the estimated costs of compliance for each type of source
in each sector with typical small business sales in each sector.
Based on the screening analysis of impacts on small entities, we
certify that this action will not have a significant economic impact on
a substantial number of small entities. Our analysis estimates that, of
the projected 164 new minor source facilities owned by 143 small
businesses, two (a natural gas compressor station and a landfill) will
experience costs greater than 1 percent of sales and none will
experience costs exceeding 3 percent of sales due to the proposed rule.
Of the estimated 62 existing minor source facilities owned
[[Page 48725]]
by 51 small businesses projected to perform minor modifications that
result in emissions increases greater than the minor NSR thresholds in
Table 1, three may experience costs approximately equal to 1 percent of
sales; none experience costs exceeding 3 percent of sales. The three
major source facilities owned by small businesses projected to perform
minor modifications during the period 2004 through 2010 will incur only
the costs of obtaining a minor source permit, which represent a very
small share of baseline company sales. Therefore, of these 229
potentially affected facilities owned by an estimated 197 small
businesses, only 5 are projected to incur costs exceeding 1 percent of
company sales, and none is projected to incur costs greater than 3
percent of company sales. Thus, the proposed rule will not impose a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, we
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
aggregate, or to the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires us to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows us to adopt an alternative other than the least-
costly, most cost-effective, or least-burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before we establish any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, we must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of our regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
We have determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any 1 year. The maximum total annual cost of this
proposed rule for any 1 year has been estimated to be $312,000. Thus,
today's proposed rule is not subject to the requirements of sections
202 and 205 of the UMRA. In addition, we have determined that this
proposed rule contains no regulatory requirements that might
significantly or uniquely affect small governments because it contains
no requirements that apply to such governments or impose obligations
upon them. Therefore, today's proposed rule is not subject to the
requirements of section 203 of the UMRA.
The proposed rule does not require that any tribe accept delegation
or develop their own permitting program; thus, it does not impose any
burden on small tribes. We recognize, however, that some small tribes
may choose to assist EPA with administration of the minor NSR program
on their reservations. We thus analyzed the costs to small tribes if
they did make this choice, using small tribes that have chosen to
develop their own air programs as examples of the types of tribes that
might choose to assist EPA with administration of the minor new source
permitting program. We found that the cost per tribal member was less
than $1 per year, and represented less than 0.01 percent of the per
capita income of tribal members. Thus, if the costs of developing and
implementing a permitting program for new minor sources were borne by
the tribes' members, it would not be a significant burden to them.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999), requires us
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless we consult
with State and local officials early in the process of developing the
proposed regulation.
This proposed rule does not have federalism implications. It would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Pursuant to the terms of
Executive Order 13132, it has been determined that this proposed rule
does not have ``federalism implications'' because it does not meet the
necessary criteria. Thus, the requirements of section 6 of the
Executive Order do not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with our
policy to promote communications between us and State and local
governments, we specifically solicit comment on this proposed rule from
State and local officials. We felt it was important to ensure that the
State and local air pollution control agencies and small business
concerns had an opportunity to interact with development of this rule.
To that end, we had two meetings with the STAPPA/ALAPCO to present the
draft preamble and rule. We also met with the National Federation of
Independent Business and provided outreach material through the small
business ombudsman's office to get input from the small businesses that
might be affected by this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 6, 2000), requires us
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.''
The EPA has concluded that this rule will have tribal implications,
since it provides two preconstruction air permitting rules for
stationary sources in Indian Country. These rules will be
[[Page 48726]]
implemented by EPA, or a delegate tribal agency assisting EPA with
administration of the rules, until replaced by an EPA-approved tribal
implementation plan. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
The EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. In undertaking this rulemaking effort we
wanted to ensure that the tribes were included in the rulemaking
process from the beginning of the rule development effort. On June 24,
2002, we sent letters to tribal leaders seeking their input on how we
could best consult with the tribes on the rulemaking effort.
We received responses from 75 tribes. Of these 75 tribes, 69
designated an environmental staff member to work with us on developing
the rule. Aside from the staff designated to help with the rulemaking
process, many tribal leaders wished to be kept informed of the rule
development. Many of the tribal leaders indicated that they wished to
be kept informed through e-mail, meetings with the EPA Regional
Offices, newsletters, and Web sites. However, 53 percent of the tribal
leaders also requested direct phone calls or conference calls to
discuss the subject. Only 16 percent of the respondents requested face-
to-face consultation. Even among the tribes requesting face-to-face
consultation, there was some degree of latitude, with only six tribes
requesting senior EPA staff to meet with tribal leaders.
As a result of this feedback we developed a consultation/outreach
plan which included three meetings held at the reservations of the
Menominee Tribe in Wisconsin, the Mohegan Tribe in Connecticut, and the
Chehalis Tribe in Washington. A fourth meeting was held in conjunction
with the Institute of Tribal Environmental Professionals' (ITEP)
anniversary meeting in Flagstaff, Arizona. In addition to conducting
these national meetings, we also visited tribal environmental staff on
tribal lands, where time and travel permitted. Over 30 tribes attended
these meetings. We have also provided outreach to the tribes in
numerous national and regional forums including the National Tribal
Forums put on by the Institute of Tribal Environmental Professionals,
two National Tribal Air Association meetings, and at meetings with
tribal consortia, such as the National Tribal Environmental Council,
United Southern and Eastern Tribes, Inter Tribal Environmental Council,
Inter Tribal Council of Arizona, and others.
In addition to the meetings, we also have an ongoing workgroup of
tribal environmental staff that has worked with us on developing these
rules. We propose to continue with this consultation and outreach
process until we promulgate this rulemaking package. EPA specifically
solicits additional comment on this proposed rule from tribal
officials.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives that we considered.
We interpret Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it does not establish
environmental standards based on an assessment of health or safety
risks. Furthermore, this proposed rule has been determined not to be
``economically significant'' as defined under Executive Order 12866.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211,``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
I. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health environmental effects of its programs, policies, and activities
on minorities and low-income populations.
The EPA believes that the two preconstruction air quality
regulations proposed in this FIP should not raise any environmental
justice issues. These regulations would provide regulatory certainty
and fill a regulatory gap in Indian Country and result in emissions
reductions from sources complying with these regulations. Consequently,
the regulations should result in some health benefits to persons living
in Indian Country, many of whom live in low-income and minority
communities. Therefore, we believe that these regulations would not
have a disproportionate adverse effect on the health or safety of
minority or low income populations.
J. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs us to use voluntary consensus standards (VCS) in our regulatory
and procurement activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The VCS are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) developed or adopted by one or more
voluntary consensus bodies. The NTTAA directs us to provide Congress,
through annual reports to OMB, with explanations when we do not use
available and applicable VCS.
This proposed rule does not involve technical standards. Therefore,
we are not considering the use of any voluntary consensus standards.
VII. Statutory Authority
The statutory authority for this proposed action is provided by
sections 101, 110, 112, 114, 116, and 301 of the Act as amended (42
U.S.C. 7401, 7410, 7412, 7414, 7416, and 7601).
List of Subjects
40 CFR Part 49
Administrative practices and procedures, Air pollution control,
Environmental protection, Indians, Intergovernmental relations,
Reporting and recordkeeping requirements.
40 CFR Part 51
Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.
[[Page 48727]]
Dated: August 9, 2006.
Stephen L. Johnson,
Administrator.
For the reasons cited in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 49--[AMENDED]
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--[Amended]
2. Subpart C of Part 49 is amended by adding an undesignated center
heading and Sec. Sec. 49.151 through 49.160, and adding and reserving
Sec. Sec. 49.161 through 49.165 to read as follows:
Federal Minor New Source Review Program in Indian Country
Sec. 49.151 Program overview.
(a) What constitutes the Federal minor new source review (NSR)
program in Indian country? As set forth in this Federal Implementation
Plan (FIP), the Federal minor NSR program in Indian country (or
``program'') consists of Sec. Sec. 49.151 through 49.165.
(b) What is the purpose of this program? This program has the
following purposes:
(1) It establishes a preconstruction permitting program for new and
modified minor stationary sources (minor sources) and minor
modifications at major stationary sources located in Indian country to
meet the requirements of section 110(a)(2)(C) of the Act.
(2) It also provides a mechanism for an otherwise major stationary
source to voluntarily accept restrictions on its potential to emit to
become a synthetic minor source. This mechanism also may be used by an
otherwise major source of Hazardous Air Pollutants (HAPs) to
voluntarily accept restrictions on its potential to emit to become a
synthetic minor HAP source. Such restrictions must be enforceable as a
practical matter.
(3) It sets forth the criteria and procedures that the reviewing
authority (as defined in Sec. 49.152(d)) will use to administer the
program.
(c) When and where does this program apply? (1) The provisions of
this program apply in Indian country where there is no EPA-approved
minor NSR program, beginning on [60 days from publication of final
rule].
(2) The provisions of this program cease to apply in an area
covered by an EPA-approved implementation plan on the date that our
approval of that implementation plan becomes effective, provided that
the implementation plan includes provisions that comply with the
requirements of section 110(a)(2)(C) of the Act for the construction
and modification of minor sources and minor modifications at major
stationary sources.
(d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a stationary
source:
(1) If you propose to construct a new minor source, a modification
at an existing minor source, or a minor modification at an existing
major stationary source that would be subject to this program, you must
obtain a minor NSR permit under this program before beginning actual
construction. If you commence construction after the effective date of
this program without applying for and receiving a permit pursuant to
this program, you will be subject to appropriate enforcement action.
(2) If you construct or operate your source or modification not in
accordance with the terms of your minor NSR permit, you will be subject
to appropriate enforcement action.
(3) Issuance of a permit does not relieve you of the responsibility
to comply fully with applicable provisions of any EPA-approved
implementation plan or FIP and any other requirements under applicable
law.
(4) Nothing in this program prevents a tribe from administering a
minor NSR permit program with more stringent requirements in an
approved Tribal Implementation Plan (TIP).
(e) What is the process for issuing permits under this program? For
the reviewing authority to issue a final permit decision under this
program (other than a general permit under Sec. 49.156), all the
actions listed in paragraphs (e)(1) through (8) of this section need to
be completed. This paragraph (e) does not apply to general permits.
(1) You must submit a permit application that meets the
requirements of Sec. 49.154(a).
(2) The reviewing authority determines completeness of the permit
application as provided in Sec. 49.154(b).
(3) The reviewing authority determines the appropriate emission
limitations for your affected emissions units under Sec. 49.154(c).
(4) In those rare instances where the reviewing authority has
reason to be concerned that the construction of your minor source or
modification would cause or contribute to a NAAQS or Prevention of
Significant Deterioration (PSD) increment violation, you must submit an
air quality analysis upon request by the reviewing authority.
(5) The reviewing authority determines that the new or modified
source will not cause or contribute to a NAAQS or PSD increment
violation.
(6) The reviewing authority develops a draft permit that meets the
permit content requirements of Sec. 49.155(a).
(7) The reviewing authority provides for public participation
according to the requirements of Sec. 49.157.
(8) The reviewing authority either issues a final permit that meets
the requirements of Sec. 49.155(a), or denies the permit and provides
reasons for the denial.
Sec. 49.152 Definitions.
(a) For sources of regulated NSR pollutants in nonattainment areas,
the definitions in Sec. 49.167 apply to the extent that they are used
in this program (except for terms defined in paragraph (d) of this
section).
(b) For sources of regulated NSR pollutants in attainment or
unclassifiable areas, the definitions in Sec. 52.21 of this chapter
apply to the extent that they are used in this program (except for
terms defined in paragraph (d) of this section).
(c) For sources of HAP, the definitions in Sec. 63.2 of this
chapter apply to the extent that they are used in this program (except
for terms defined in paragraph (d) of this section).
(d) The following definitions also apply to this program: Affected
emissions units means the following emissions units, as applicable:
(1) For a proposed new minor source, all the emissions units.
(2) For a proposed modification, the new, modified, and replacement
emissions units involved in the modification.
(3) For an existing minor source applying for a minor source PAL,
all the emissions units that emit the PAL pollutant. However, such
units are considered affected emissions units only for the PAL
pollutant.
Allowable emissions means ``allowable emissions'' as defined in
Sec. 52.21(b)(16) of this chapter, except that the allowable emissions
for any emissions unit are calculated considering any emission
limitations that are enforceable as a practical matter on the emissions
unit's potential to emit.
Emission limitation means a requirement established by the
reviewing authority which limits the quantity, rate, or concentration
of emissions of air pollutants on a continuous basis, including any
requirement relating to the operation or
[[Page 48728]]
maintenance of a source to assure continuous emissions reduction, and
any design standard, equipment standard, work practice, operational
standard, or pollution prevention technique.
Enforceable as a practical matter means that an emission limitation
is both legally and practically enforceable as follows:
(1) An emission limitation is ``legally enforceable'' if the
reviewing authority has the right to enforce it.
(2) Practical enforceability for an emission limitation in a permit
for a source is achieved if the permit's provisions specify:
(i) A limitation and the emissions unit(s) at the source subject to
the limitation;
(ii) The time period for the limitation (e.g., hourly, daily,
monthly, and/or annual limits such as rolling annual limits); and
(iii) The method to determine compliance, including appropriate
monitoring, recordkeeping, reporting, and testing.
(3) For rules and general permits that apply to categories of
sources, practicable enforceability additionally requires that the
provisions:
(i) Identify the types or categories of sources that are covered by
the rule or general permit;
(ii) Where coverage is optional, provide for notice to the
reviewing authority of the source's election to be covered by the rule
or general permit; and
(iii) Specify the enforcement consequences relevant to the rule or
general permit.
Environmental Appeals Board means the Board within the EPA
described in Sec. 1.25(e) of this chapter.
Indian country, as defined in 18 U.S.C. 1151, means the following:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation; \1\
---------------------------------------------------------------------------
\1\ Under this definition, EPA treats as reservations trust
lands validly set aside for the use of a tribe even if the trust
lands have not been formally designated as a reservation.
---------------------------------------------------------------------------
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
Indian governing body means the governing body of any tribe, band,
or group of Indians subject to the jurisdiction of the United States
and recognized by the United States as possessing power of self-
government.
Minor modification at a major stationary source means a
modification at a major stationary source that does not qualify as a
major modification under Sec. 49.167 or Sec. 52.21 of this chapter,
as applicable.
Minor NSR threshold means any of the applicability cutoffs for this
program listed in Table 1 of Sec. 49.153.
Minor source plantwide applicability limitation (PAL) means a
source-wide limitation on allowable emissions of a regulated NSR
pollutant, expressed in tons per year, that is established for a minor
source in a permit issued under Sec. 49.155 and that is enforceable as
a practical matter.
Minor stationary source or minor source means a source that emits
or has the potential to emit regulated NSR pollutants in amounts that
are less than the major stationary source levels in Sec. 49.167 or
Sec. 52.21 of this chapter, as applicable. The term ``minor stationary
source'' applies independently to each regulated NSR pollutant that the
source has the potential to emit.
Modification means any physical or operational change at a source
that would cause an increase in the allowable emissions of the affected
emissions units for any regulated NSR pollutant or that would cause the
emission of any regulated NSR pollutant not previously emitted. The
following exemptions apply:
(1) A physical or operational change does not include routine
maintenance, repair, or replacement.
(2) An increase in the hours of operation or in the production rate
is not considered an operational change unless such increase is
prohibited under any federally-enforceable permit condition or other
permit condition that is enforceable as a practical matter.
(3) A change in ownership at a source is not considered a
modification.
Potential to emit means the maximum capacity of a source to emit a
pollutant under its physical and operational design. Any physical or
operational limitation on the capacity of the source to emit a
pollutant, including air pollution control equipment and restrictions
on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated as part of its design if the
limitation or the effect it would have on emissions is federally
enforceable or enforceable as a practical matter. Secondary emissions,
as defined at Sec. 52.21(b)(18) of this chapter, do not count in
determining the potential to emit of a source.
Reviewing authority means the Administrator, and may mean an Indian
tribe in cases where a tribal agency is assisting EPA with
administration of the program through a delegation.
Synthetic minor HAP source means a source that otherwise has the
potential to emit HAPs in amounts that are at or above those for major
sources of HAP in Sec. 63.2 of this chapter, but that has taken a
restriction so that its potential to emit is less than such amounts for
major sources. Such restrictions must be enforceable as a practical
matter.
Synthetic minor source means a source that otherwise has the
potential to emit regulated NSR pollutants in amounts that are at or
above those for major stationary sources in Sec. 49.167 or Sec. 52.21
of this chapter, as applicable, but that has taken a restriction so
that its potential to emit is less than such amounts for major
stationary sources. Such restrictions must be enforceable as a
practical matter. The term ``synthetic minor source'' applies
independently for each regulated NSR pollutant that the source has the
potential to emit.
Sec. 49.153 Applicability.
(a) Does this program apply to me? The requirements of this program
apply to you as set out in paragraphs (a)(1) through (5) of this
section.
(1) New and modified sources. The applicability of the
preconstruction review requirements of this program is determined
individually for each regulated NSR pollutant that would be emitted by
your new or modified source. For each such pollutant, determine
applicability as set out in the relevant paragraph (a)(1)(i) or (ii) of
this section. Flowcharts 1 through 6 of this section are provided as
aids for making these applicability determinations.
(i) New source. Use the following steps to determine applicability
for each regulated NSR pollutant. Flowchart 2 of this section addresses
attainment and unclassifiable pollutants; Flowchart 4 of this section
addresses nonattainment pollutants.
(A) Step 1. For the pollutant being evaluated, determine whether
your proposed source is subject to review under the applicable major
NSR program (that is, under Sec. 52.21 of this chapter, under the
Federal major NSR program for nonattainment areas in Indian country at
Sec. Sec. 49.166 through 49.75, or under a program approved by the
Administrator pursuant to Sec. 51.165 or Sec. 51.166 of this
chapter). If not, go to Step 2 (paragraph (a)(1)(i)(B) of this
section).
[[Page 48729]]
(B) Step 2. Determine whether the source's potential to emit the
pollutant that you are evaluating is greater than or equal to the
corresponding minor NSR threshold in Table 1 of this section. If it is,
you are subject to the preconstruction requirements of this program for
that pollutant.
(ii) Modification at an existing source. If you propose to make a
physical or operational change at an existing source, determine whether
the change qualifies as a modification (as defined in Sec. 49.152)
using the procedures in paragraph (b) of this section to determine the
increase in allowable emissions. If the change is a modification, use
the following steps to determine applicability for each regulated NSR
pollutant. Flowchart 3 of this section addresses attainment and
unclassifiable pollutants; Flowchart 5 of this section addresses
nonattainment pollutants. Flowchart 6 addresses minor NSR
applicability. Note that if the physical or operational change is not a
modification under this program, it may still be subject to some
requirements under this program; See paragraphs (a)(2) through (5) of
this section.
(A) Step 1. For the pollutant being evaluated, determine whether
your proposed modification is subject to review under the applicable
major NSR program. If not, go to Step 2 (paragraph (a)(1)(ii)(B) of
this section).
(B) Step 2. Does your existing source have a minor source PAL for
the pollutant that you are evaluating? If so, you are subject to the
preconstruction requirements of this program for that pollutant. If
not, go to Step 3 (paragraph (a)(1)(ii)(C) of this section).
(C) Step 3. Determine whether the increase in allowable emissions
from the proposed modification (calculated using the procedures of
paragraph (b) of this section) would be greater than or equal to the
minor NSR threshold in Table 1 of this section for the pollutant that
you are evaluating. If it is, you are subject to the preconstruction
requirements of this program for that pollutant. If not, go to Step 4
(paragraph (a)(1)(ii)(D) of this section).
(D) Step 4. If any of the emissions units affected by your proposed
modification currently has an annual allowable emissions limit for the
pollutant that you are evaluating, determine whether the modification
would increase any such unit's allowable emissions above its existing
limit. If so, the proposed modification is subject to paragraph (a)(2)
of this section. If not, your proposed modification is not subject to
this program.
(2) Increase in an emissions unit's annual allowable emissions
limit. If you propose a physical or operational change at your minor or
major stationary source that would increase an emissions unit's
allowable emissions of a regulated NSR pollutant above its existing
annual allowable emissions limit, you must obtain an increase in the
limit prior to making the change. For a physical or operational change
that is not otherwise subject to review under major NSR or under this
program, such increase in the annual allowable emissions limit can be
accomplished through an administrative permit revision as provided in
Sec. 49.159(f).
(3) Synthetic minor permits. If you propose to establish a
synthetic minor source or synthetic minor HAP source, you must apply
for a permit under Sec. 49.158. Additionally, if you currently own or
operate such a source that was established by maintaining your actual
emissions at less than 50 percent of the relevant major source
threshold, you must obtain a synthetic minor permit under this program
according to the requirements of Sec. 49.158.
(4) Minor source PALs. If you propose to establish a minor source
PAL for your existing minor source, you must apply for a permit under
Sec. 49.154.
(5) Case-by-case maximum achievable control technology (MACT)
determinations. If you propose to construct or reconstruct a major
source of HAPs such that you are subject to a case-by-case MACT
determination under section 112(g)(2) of the Act, you may elect to have
this determination approved under the provisions of this program.
(Other options for such determinations include a title V permit action
or a Notice of MACT Approval under Sec. 63.43 of this chapter.) If you
elect this option, you still must comply with the requirements of Sec.
63.43 of this chapter that apply to all case-by-case MACT
determinations.
(b) How do I determine the increase in allowable emissions from a
physical or operational change at my source? Determine the resulting
increase in allowable emissions in tons per year (tpy) of each
regulated NSR pollutant after considering all increases and decreases
from the change according to paragraph (b)(1) or (2) of this section,
as applicable. A physical or operational change may involve one or more
emissions units.
(1) For a change at a minor source with a minor source PAL, the
emissions increase would be the PAL level after the change minus the
PAL level prior to the change.
(2) For other changes, the total increase in allowable emissions
resulting from your proposed change would be the sum of the following:
(i) For each new emissions unit that is to be added, the emissions
increase would be the potential to emit of the emissions unit.
(ii) For each emissions unit with an allowable emissions limit that
is to be changed or replaced, the emissions increase would be the
allowable emissions of the emissions unit after the change or
replacement minus the allowable emissions prior to the change or
replacement. This may be a negative value for an emissions unit if the
allowable emissions of the unit would be reduced as a result of the
change or replacement.
(iii) For each unpermitted emissions unit that is to be changed or
replaced, the emissions increase is the allowable emissions of the
emissions unit after the change or replacement minus the potential to
emit prior to the change or replacement. This may be a negative value
for an emissions unit if its post-change allowable emissions would be
less than its pre-change potential to emit.
(c) What emissions units and activities are exempt from this
program? This program does not apply to the following emissions units
and activities at a source that are listed in paragraphs (c)(1) through
(10) of this section.
(1) Mobile sources.
(2) Air-conditioning units used for comfort that are not subject to
applicable requirements under title VI of the Act and do not exhaust
air pollutants into the ambient air from any manufacturing or other
industrial process.
(3) Ventilating units used for comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial process.
(4) Heating units used for comfort that do not provide heat for any
manufacturing or other industrial process.
(5) Noncommercial food preparation.
(6) Consumer use of office equipment and products.
(7) Janitorial services and consumer use of janitorial products.
(8) Internal combustion engines used for landscaping purposes.
(9) Bench scale laboratory activities, except for laboratory fume
hoods or vents.
(10) Any emissions unit or activity that does not emit or have the
potential to emit a regulated NSR pollutant or HAP, so long as that
emissions unit or activity is not part of a process unit that emits or
has the potential to emit a regulated NSR pollutant or HAP.
[[Page 48730]]
Table 1 to Sec. 49.153. Minor NSR Thresholds.\1\
----------------------------------------------------------------------------------------------------------------
Minor NSR thresholds for
nonattainment areas (tpy) Minor NSR
Regulated NSR pollutant -------------------------------- thresholds for
Extreme ozone attainment areas
areas Other areas (tpy)
----------------------------------------------------------------------------------------------------------------
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 NA NA 10
nonmethane organic compounds).............................
----------------------------------------------------------------------------------------------------------------
\1\ If part of a tribe's area of Indian country is designated as attainment and another part as nonattainment,
the applicable threshold for a proposed source or modification is determined based on the designation where
the source would be located. If the source straddles the two areas, the more stringent thresholds would apply.
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Sec. 49.154 Permit application requirements.
This section applies to you if you are subject to this program
under Sec. 49.153(a)(1) for the construction of new minor sources or
modifications at existing sources. (As an alternative, you may apply
for a general permit under Sec. 49.156 if an applicable general permit
is available for your source type.) In addition, this section applies
to you if you wish to establish a minor source PAL for your existing
minor source (See Sec. 49.153(a)(4)). See Sec. 49.158(a) for
synthetic minor permit application requirements.
(a) What information must my permit application contain? Paragraphs
(a)(1) through (3) of this section govern the content of your
application.
(1) General provisions for permit applications. The following
provisions apply to permit applications under this program:
(i) The reviewing authority may develop permit application forms
for your use.
(ii) The permit application need not contain information on the
exempt emissions units and activities listed in Sec. 49.153(c).
(iii) The permit application for a modification need only include
information on the affected emissions units as defined in Sec.
49.152(d).
(2) Required permit application content. Except as specified in
paragraphs (a)(1)(ii) and (iii) of this section, you must include the
information listed in paragraphs (a)(2)(i) through (ix) of this section
in your application for a permit under this program. The reviewing
authority may require additional information as needed to process the
permit application.
(i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
(ii) A description of your source's processes and products.
(iii) A list of all affected emissions units (with the exception of
the exempt emissions units and activities listed in Sec. 49.153(c)).
(iv) For each new emissions unit that is listed, the potential to
emit of each regulated NSR pollutant in tpy (including fugitive
emissions, to the extent that they are quantifiable), with supporting
documentation. In your calculation of the potential to emit for an
emissions unit, you must account for any proposed emission limitations.
(v) For each modified emissions unit and replacement unit that is
listed, the allowable emissions of each regulated NSR pollutant in tpy
both before and after the modification (including fugitive emissions,
to the extent that they are quantifiable), with supporting
documentation. For emissions units that do not have an allowable
emissions limit prior to the modification, report the potential to
emit. In your calculation of annual allowable emissions for an
emissions unit after the modification, you must account for any
proposed emission limitations.
(vi) The following information to the extent it is needed to
determine or regulate emissions: fuels, fuel use, raw materials,
production rates, and operating schedules.
(vii) Identification and description of any existing air pollution
control equipment and compliance monitoring devices or activities.
(viii) Any existing limitations on source operation affecting
emissions or any work practice standards, where applicable, for all NSR
regulated pollutants at the source.
(ix) For each emission point associated with an affected emissions
unit, provide stack or vent dimensions and flow information.
(3) Optional permit application content. At your option, you may
propose the following:
(i) Emission limitations for each affected emissions unit, which
may include pollution prevention techniques, air pollution control
devices, design standards, equipment standards, work practices,
operational standards, or a combination thereof. You may include an
explanation of why you believe the proposed emission limitations to be
appropriate.
(ii) A minor source PAL, which is a source-wide annual allowable
emissions limit, for one or more of the regulated NSR pollutants
emitted by your source.
(b) How is my permit application determined to be complete?
Paragraphs (b)(1) through (3) of this section govern the completeness
review of your permit application.
(1) An application for a permit under this program will be reviewed
by the reviewing authority within 45 days of its receipt to determine
whether the application contains all the information necessary for
processing the application. You should contact the reviewing authority
to find out the date of receipt of the application.
(2) If the reviewing authority determines that the application is
not complete, it will request additional information from you as
necessary to process the application. If the reviewing authority
determines that the application is complete, it may notify you in
writing. If you do not receive a request for additional information or
a notice of complete application from the reviewing authority within 50
days of its receipt of your application, your application will be
deemed complete.
(3) If, while processing an application that has been determined to
be complete, the reviewing authority determines that additional
information is necessary to evaluate or take final action on the
application, it may request additional information from you and require
your responses within a reasonable time period.
(c) How will the reviewing authority determine the emission
limitations that will be required in my permit? After determining that
your application is complete, the reviewing authority will conduct a
case-by-case control technology review to determine the appropriate
level of control, if any, necessary to assure that NAAQS are achieved,
as well as the corresponding emission limitations for the affected
emissions units at your source.
(1) In carrying out this case-by-case review, the reviewing
authority will consider the following factors:
(i) Local air quality conditions.
(ii) Typical control technology or other emissions reduction
measures used by similar sources in surrounding areas.
(iii) Anticipated economic growth in the area.
(iv) Cost-effective emission reduction alternatives.
(2) The reviewing authority must require an emission limit (i.e., a
limit on the quantity, rate, or concentration of emissions) for each
affected emissions unit at your source for which such a limit is
technically and economically feasible.
(3) The emission limitations required by the reviewing authority
may consist of emission limits, pollution prevention techniques, design
standards, equipment standards, work practice standards, operational
standards, or any combination thereof.
(4) The emission limitations required by the reviewing authority
must assure that each affected emissions unit will comply with all
requirements of parts 60, 61, and 63 of this chapter that apply to the
unit.
(5) The emission limitations required by the reviewing authority
must not be affected in any manner by so much of a stack's height as
exceeds good engineering practice or by any other dispersion technique,
except as provided in Sec. 51.118(b) of this chapter. If the reviewing
authority proposes to issue a permit to a source based on a good
engineering practice stack height that exceeds the height allowed by
Sec. 51.100(ii)(1) or (2) of this chapter, it
[[Page 48738]]
must notify the public of the availability of the demonstration study
and must provide opportunity for a public hearing according to the
requirements of Sec. 49.157 for the draft permit.
(d) When may the reviewing authority require an air quality impacts
analysis (AQIA)? Paragraphs (d)(1) through (3) of this section govern
AQIA requirements under this program.
(1) In those rare instances where the reviewing authority has
reason to be concerned that the construction of your minor source or
modification would cause or contribute to a NAAQS or PSD increment
violation, it may require you to conduct and submit an AQIA.
(2) If required, you must conduct the AQIA using the dispersion
models and procedures of part 51, Appendix W of this chapter.
(3) If the AQIA reveals that construction of your source or
modification would cause or contribute to a NAAQS or PSD increment
violation, the reviewing authority must require you to reduce such
impacts before it can issue you a permit.
Sec. 49.155 Permit requirements.
This section applies to your permit if you are subject to this
program under Sec. 49.153(a)(1) for construction of new minor sources
or modifications at existing sources, unless you applied for a general
permit under Sec. 49.156 (where an applicable general permit is
available for your source type). In addition, this section applies to
your permit if you wish to establish a minor source PAL for your
existing minor source (See Sec. 49.153(a)(4))
(a) What information must my permit include? Your permit must
include the requirements in paragraphs (a)(1) through (7) of this
section.
(1) General requirements. The following elements must be included
in your permit:
(i) The effective date of the permit and the date by which you must
commence construction in order for your permit to remain valid (i.e.,
18 months after the permit effective date).
(ii) The emissions units subject to the permit and their associated
emission limitations.
(iii) Monitoring, recordkeeping, reporting, and testing
requirements to assure compliance with the emission limitations.
(2) Emission limitations. The permit must include the emission
limitations determined by the reviewing authority under Sec. 49.154(c)
for each affected emissions unit. In addition, the permit must address
limits on annual allowable emissions as set out in paragraphs (a)(2)(i)
and (ii) of this section.
(i) New minor sources. For new minor sources, limits on annual
allowable emissions in tpy must be included in the permit as follows:
(A) The reviewing authority may include minor source PALs for one
or more regulated NSR pollutants, if you requested such PALs.
(B) Otherwise, the reviewing authority must include an annual
allowable emissions limit for each affected emissions unit, for each
regulated NSR pollutant emitted by the unit that is not subject to a
minor source PAL.
(ii) Existing minor sources. For existing minor sources, limits on
annual allowable emissions in tpy must be included in the permit as
follows:
(A) The reviewing authority may include minor source PALs for one
or more regulated NSR pollutants, if you requested such PALs.
(B) For a modification, the reviewing authority must include an
annual allowable emissions limit for each affected emissions unit, for
each regulated NSR pollutant emitted by the unit that is not subject to
a minor source PAL.
(C) If you apply for a minor source PAL for one or more regulated
NSR pollutants for your existing source at a time when you are not also
proposing a modification, no annual allowable emissions limits are
required for the regulated NSR pollutants that are not subject to a
PAL.
(3) Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with the emission
limitations that apply to the affected emissions units at your source.
The reviewing authority may require, as appropriate, any of the
requirements in paragraphs (a)(3)(i) through (iii) of this section.
(i) Any emissions monitoring, including analysis procedures, test
methods, periodic testing, instrumental monitoring, and non-
instrumental monitoring. Such monitoring requirements shall assure use
of test methods, units, averaging periods, and other statistical
conventions consistent with the required emission limitations.
(ii) As necessary, requirements concerning the use, maintenance,
and installation of monitoring equipment or methods.
(iii) If the permit includes a minor source PAL for a pollutant at
your minor source, monitoring to determine the actual emissions from
your source for each month and the total actual emissions for each 12-
month period, rolled monthly, for that pollutant.
(4) Recordkeeping requirements. The permit must include
recordkeeping requirements sufficient to assure compliance with the
emission limitations and monitoring requirements, and must require the
elements in paragraphs (a)(4)(i) and (ii) of this section.
(i) Records of required monitoring information that include the
information in paragraphs (a)(4)(i)(A) through (F) of this section, as
appropriate.
(A) The location, date, and time of sampling or measurements.
(B) The date(s) analyses were performed.
(C) The company or entity that performed the analyses.
(D) The analytical techniques or methods used.
(E) The results of such analyses.
(F) The operating conditions existing at the time of sampling or
measurement.
(ii) Retention for 5 years of records of all required monitoring
data and support information for the monitoring sample, measurement,
report, or application. Support information may include all calibration
and maintenance records, all original strip-chart recordings or digital
records for continuous monitoring instrumentation, copies of all
reports required by the permit, and for sources with a minor source PAL
for a pollutant, the actual emissions determined for each month and the
total actual emissions for each 12-month period, rolled monthly, for
that pollutant.
(5) Reporting requirements The permit must include the reporting
requirements in paragraphs (a)(5)(i) and (ii) of this section.
(i) Annual submittal of reports of monitoring required under
paragraph (a)(3) of this section, including the type and frequency of
monitoring, and a summary of results obtained by monitoring.
(ii) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit, the probable cause of such deviations, and any corrective
actions or preventive measures taken. Within the permit, the reviewing
authority must define ``prompt'' in relation to the degree and type of
deviation likely to occur and the applicable emission limitations.
(6) Severability clause. The permit must include a severability
clause to ensure the continued validity of the other portions of the
permit in the event of a challenge to a portion of the permit.
(7) Additional provisions. The permit must also contain provisions
stating the requirements in paragraphs (a)(7)(i) through (vii) of this
section.
[[Page 48739]]
(i) You, as the permittee, must comply with all conditions of your
permit, including emission limitations that apply to the affected
emissions units at your source. Noncompliance with any permit term or
condition is a violation of the permit and may constitute a violation
of the Act and is grounds for enforcement action and for a permit
termination or revocation.
(ii) Your permitted source must not cause or contribute to a NAAQS
violation or, in an attainment area, must not cause or contribute to a
PSD increment violation.
(iii) It is not a defense for you, as the permittee, in an
enforcement action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with the
conditions of this permit.
(iv) The permit may be revised, reopened, revoked and reissued, or
terminated for cause. The filing of a request by you, as the permittee,
for a permit revision, revocation and re-issuance, or termination, or
of a notification of planned changes or anticipated noncompliance does
not stay any permit condition.
(v) The permit does not convey any property rights of any sort or
any exclusive privilege.
(vi) You, as the permittee, shall furnish to the reviewing
authority, within a reasonable time, any information that the reviewing
authority may request in writing to determine whether cause exists for
revising, revoking and reissuing, or terminating the permit or to
determine compliance with the permit. For any such information claimed
to be confidential, you must also submit a claim of confidentiality in
accordance with part 2, subpart B of this chapter.
(vii) Inspection and entry provisions requiring that upon
presentation of proper credentials, you, as the permittee, must allow a
representative of the reviewing authority to:
(A) Enter upon your premises where a source is located or
emissions-related activity is conducted, or where records are required
to be kept under the conditions of the permit;
(B) Have access to and copy, at reasonable times, any records that
are required to be kept under the conditions of the permit;
(C) Inspect, during normal business hours or while the source is in
operation, any facilities, equipment (including monitoring and air
pollution control equipment), practices, or operations regulated or
required under the permit;
(D) Sample or monitor, at reasonable times, substances or
parameters for the purpose of assuring compliance with the permit or
other applicable requirements; and
(E) Record any inspection by use of written, electronic, magnetic
and photographic media.
(b) Can my permit become invalid? Your permit becomes invalid if
you do not commence construction within 18 months after the effective
date of your permit, if you discontinue construction for a period of 18
months or more, or if you do not complete construction within a
reasonable time. The reviewing authority may extend the 18-month period
upon a satisfactory showing that an extension is justified. This
provision does not apply to the time period between construction of the
approved phases of a phased construction project; you must commence
construction of each such phase within 18 months of the projected and
approved commencement date.
Sec. 49.156 General permits.
This section applies to general permits for the purposes of
complying with the preconstruction permitting requirements for sources
of regulated NSR pollutants under this program.
(a) What is a general permit? A general permit is a preconstruction
permit issued by a reviewing authority that may be applied to a number
of similar emissions units or sources. The purpose of a general permit
is to simplify the permit application and issuance process for similar
facilities so that a reviewing authority's limited resources need not
be expended for case-by-case permit development for such facilities. A
general permit may be written to address a single emissions unit, a
group of the same type of emissions units, or an entire minor source.
(b) How will the reviewing authority issue general permits? The
reviewing authority will issue general permits as follows:
(1) A general permit may be issued for a category of emissions
units or sources that are similar in nature, have substantially similar
emissions, and would be subject to the same or substantially similar
requirements governing operations, emissions, monitoring, reporting,
and recordkeeping. ``Similar in nature'' refers to size, processes, and
operating conditions.
(2) A general permit must be issued according to the requirements
for public participation in Sec. 49.157 and the requirements for final
permit issuance and administrative and judicial review in Sec. 49.159.
(3) Issuance of a general permit is considered final agency action
with respect to all aspects of the general permit except its
applicability to an individual source. The sole issue that may be
appealed after an individual source is approved to construct under a
general permit (See paragraph (e) of this section) is the applicability
of the general permit to that particular source.
(c) For what categories will general permits be issued? (1) The
reviewing authority will determine which categories of individual
emissions units, groups of similar emissions units, or sources are
appropriate for general permits in its area.
(2) General permits will be issued at the discretion of the
reviewing authority. However, the following are some common categories
of emissions units or sources for which general permits may be
developed:
(i) Autobody repair shops.
(ii) Concrete batching plants.
(iii) Dry cleaners.
(iv) Gas stations.
(v) Gas distribution facilities.
(vi) General purpose internal combustion engines.
(vii) Hot mix asphalt facilities.
(viii) Heating units.
(ix) Nonmetallic mineral processing plants.
(x) Rock crushing facilities.
(xi) Surface coating operations.
(xii) Solvent cleaning operations.
(xiii) Graphic arts operations.
(xiv) Grain elevators.
(xv) Tank batteries in oil and gas production operations that are
not part of a larger source.
(xvi) Small to medium compressor stations.
(xvii) Small to medium transmission stations.
(xviii) Dehydrators that are not a part of a larger source.
(xix) Compressor engines.
(d) What should the general permit contain? The general permit must
contain the permit elements listed in Sec. 49.155(a). In addition, the
general permit must contain the information listed in paragraphs (d)(1)
and (2) of this section. The reviewing authority may specify additional
general permit terms and conditions.
(1) Identification of the specific category of emissions units or
sources to which the general permit applies, including any criteria
that your emissions units or source must meet to be eligible for
coverage under the general permit.
(2) Information required to apply for coverage under a general
permit including, but not limited to, the following:
[[Page 48740]]
(i) The name and mailing address of the reviewing authority to whom
you must submit your application.
(ii) The procedure to obtain any standard application forms that
the reviewing authority may have developed.
(iii) The information that you must provide to the reviewing
authority in your application to demonstrate that you are eligible for
coverage under the general permit.
(iv) Other application requirements deemed necessary by the
reviewing authority.
(e) How is my source issued a general permit? (1) If your source
qualifies for a general permit, you may apply to the reviewing
authority for coverage under the general permit.
(2) The reviewing authority must act on your application for
coverage under the general permit as expeditiously as possible, but it
must notify you of the final decision within 90 days.
(3) Without repeating the public participation procedures required
in Sec. 49.157, the reviewing authority may grant or deny your request
for approval to construct under a general permit. The reviewing
authority must send you a letter approving or disapproving the request
to construct under a general permit. Such a letter is a final permit
action for purposes of judicial review (See Sec. 49.159) only for the
issue of whether your source qualifies for the general permit. You must
post a prominent notice at your source of the letter of approval to
construct under the general permit.
(4) If the reviewing authority has sent a letter approving the
general permit for your source, you must comply with all conditions and
terms of the general permit. You will be subject to enforcement action
for failure to obtain a preconstruction permit if you construct the
emissions unit(s) or source with general permit approval and your
source is later determined not to qualify for the conditions and terms
of the general permit.
(5) Any source covered under a letter approving the general permit
may request to be excluded from the general permit by applying for a
permit under Sec. 49.154.
Sec. 49.157 Public participation requirements.
This section applies to the issuance of preconstruction permits,
synthetic minor permits, and the initial issuance of general permits.
It does not apply to decisions regarding whether a specific source is
eligible for coverage under a general permit.
(a) What permit information will be publicly available? With the
exception of any confidential information as defined in part 2, subpart
B of this chapter, the reviewing authority must make available for
public inspection the documents listed in paragraphs (a)(1) through (5)
of this section. The reviewing authority must make such information
available for public inspection at the appropriate EPA Regional Office
and in at least one location in the area affected by the source, such
as the tribal environmental office or a local library.
(1) All information submitted as part of an application for a
permit.
(2) Any additional information requested by the reviewing
authority.
(3) The reviewing authority's analysis of the application and any
additional information submitted by the source, including (for
preconstruction and general permits) the control technology review.
(4) For preconstruction and general permits, the reviewing
authority's analysis of the effect of the construction of the minor
source or modification on ambient air quality.
(5) A copy of the draft permit or the decision to deny the permit
with the justification for denial.
(b) How will the public be notified and participate? (1) Before
issuing a permit under this program, the reviewing authority must
prepare a draft permit and must provide adequate public notice to
ensure that the affected community and the general public have
reasonable access to the application and draft permit information, as
set out in paragraphs (b)(1)(i) and (ii) of this section The public
notice must provide an opportunity for public comment and notice of a
public hearing, if any, on the draft permit.
(i) The reviewing authority must mail a copy of the notice to you,
the appropriate Indian governing body, and the tribal, State, and local
air pollution authorities having jurisdiction in areas outside of the
area of Indian country potentially impacted by the air pollution
source.
(ii) Depending on such factors as the nature and size of your
source, local air quality considerations, and the characteristics of
the population in the affected area, the reviewing authority must use
appropriate means of notification, such as those listed in paragraphs
(b)(1)(ii)(A) through (E) of this section.
(A) The reviewing authority may mail or e-mail a copy of the notice
to persons on a mailing list developed by the reviewing authority
consisting of those persons who have requested to be placed on such a
mailing list.
(B) The reviewing authority may post the notice on its Web site.
(C) The reviewing authority may publish the notice in a newspaper
of general circulation in the area affected by the source. Where
possible, the notice may also be published in a tribal newspaper or
newsletter.
(D) The reviewing authority may provide copies of the notice for
posting at one or more locations in the area affected by the source,
such as Post Offices, trading posts, libraries, tribal environmental
offices, community centers, or other gathering places in the community.
(E) The reviewing authority may employ other means of notification
as appropriate.
(2) The notice required pursuant to paragraph (b)(1) of this
section must include the following information at a minimum:
(i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
(ii) The name and address of the reviewing authority processing the
permit action;
(iii) For preconstruction permits (including general permits), the
regulated NSR pollutants to be emitted, the affected emissions units,
and the emission limitations for each affected emissions unit;
(iv) For preconstruction permits, the emissions change involved in
the permit action;
(v) For synthetic minor permits, a description of the proposed
limitation and its effect on the potential to emit of the source;
(vi) Instructions for requesting a public hearing;
(vii) The name, address, and telephone number of a contact person
in the reviewing authority's office from whom additional information
may be obtained;
(viii) Locations and times of availability of the information
(listed in paragraph (a) of this section) for public inspection; and
(ix) A statement that any person may submit written comments, a
written request for a public hearing, or both, on the draft permit
action. The reviewing authority must provide a period of at least 30
days from the date of the public notice for comments, and for requests
for a public hearing.
(c) How will the public comment, and will there be a public
hearing? (1) Any person may submit written comments on the draft permit
and may request a public hearing. These comments must raise any
reasonably ascertainable issue
[[Page 48741]]
with supporting arguments by the close of the public comment period
(including any public hearing). The reviewing authority must consider
all comments in making the final decision. The reviewing authority must
keep a record of the commenters and of the issues raised during the
public participation process, and such records must be available to the
public.
(2) The reviewing authority must extend the public comment period
under paragraph (b) of this section to the close of any public hearing
under this section. The hearing officer may also extend the comment
period by so stating at the hearing.
(3) A request for a public hearing must be in writing and must
state the nature of the issues proposed to be raised at the hearing.
(4) The reviewing authority must hold a hearing whenever there is,
on the basis of requests, a significant degree of public interest in a
draft permit. The reviewing authority may also hold a public hearing at
its discretion, whenever, for instance, such a hearing might clarify
one or more issues involved in the permit decision. The reviewing
authority must provide notice of any public hearing at least 30 days
prior to the date of the hearing. Public notice of the hearing may be
concurrent with that of the draft permit, and the two notices may be
combined. Reasonable limits may be set upon the time allowed for oral
statements at the hearing.
(5) The reviewing authority must make a tape recording or written
transcript of any hearing available to the public.
Sec. 49.158 Synthetic minor permits.
You may obtain a synthetic minor permit under this program to
establish a synthetic minor source and/or a synthetic minor HAP source.
Note that if you propose to construct or modify a synthetic minor
source, you are also subject to the preconstruction permitting
requirements in Sec. Sec. 49.154 and 49.155.
(a) What information must my synthetic minor permit application
contain? (1) Your application must include the following information:
(i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
(ii) For each regulated NSR pollutant and/or HAP and for all
emissions units to be covered by an emissions limitation, the following
information:
(A) The proposed emission limitation and a description of its
effect on actual emissions or the potential to emit. Proposed emission
limitations must have a reasonably short averaging period, taking into
consideration the operation of the source and the methods to be used
for demonstrating compliance.
(B) Proposed testing, monitoring, recordkeeping, and reporting
requirements to be used to demonstrate and assure compliance with the
proposed limitation.
(C) A description of the production processes.
(D) Identification of the emissions units.
(E) Type and quantity of fuels and/or raw materials used.
(F) Description and estimated efficiency of air pollution control
equipment under present or anticipated operating conditions.
(G) Estimates of the current actual emissions and current potential
to emit, including all calculations for the estimates.
(H) Estimates of the allowable emissions and/or potential to emit
that would result from compliance with the proposed limitation,
including all calculations for the estimates.
(iii) Any other information specifically requested by the reviewing
authority.
(2) Estimates of actual emissions must be based upon actual test
data, or in the absence of such data, upon procedures acceptable to the
reviewing authority. Any emission estimates submitted to the reviewing
authority must be verifiable using currently accepted engineering
criteria. The following procedures are generally acceptable for
estimating emissions from air pollution sources:
(i) Source-specific emission tests;
(ii) Mass balance calculations;
(iii) Published, verifiable emission factors that are applicable to
the source;
(iv) Other engineering calculations; or
(v) Other procedures to estimate emissions specifically approved by
the reviewing authority.
(b) What are the procedures for obtaining a synthetic minor permit?
(1) If you wish to obtain a synthetic minor permit under this program,
you must submit a permit application to the reviewing authority. The
application must contain the information specified in paragraph (a) of
this section. If the reviewing authority has developed application
forms for such permits, you must use those forms.
(2) Within 60 days after receipt of an application, the reviewing
authority will determine if it contains the information specified in
paragraph (a) of this section and, if so, will determine it complete
for the purpose of preparing a draft synthetic minor permit. You should
contact the reviewing authority to find out the date of receipt of the
application.
(3) If the reviewing authority determines that the application is
not complete, it will request additional information from you as
necessary to process the application. If the reviewing authority
determines that the application is complete, it may notify you in
writing. If you do not receive a request for additional information or
a notice of complete application from the reviewing authority within 65
days of its receipt of your application, your application will be
deemed complete.
(4) The reviewing authority will prepare a draft synthetic minor
permit that describes the proposed limitation and its effect on the
potential to emit of the source.
(5) The reviewing authority must provide an opportunity for public
participation and public comment on the draft synthetic minor permit as
set out in Sec. 49.157.
(6) After the close of the public comment period, the reviewing
authority will review all comments received and prepare a final
synthetic minor permit.
(7) The final synthetic minor permit will be issued and will be
subject to administrative and judicial review as set out in Sec.
49.159.
(c) What are my responsibilities under this program for my existing
synthetic minor source or synthetic minor HAP source? If you have an
existing synthetic minor source or synthetic minor HAP source, you are
subject to either paragraph (c)(1) or paragraph (c)(2) of this section,
as follows:
(1) If your synthetic minor status is established through a permit
or other document that is enforceable as a practical matter, you do not
need to do anything. You may use the mechanism established in this
program according to the requirements of paragraphs (a) and (b) of this
section to replace your existing synthetic minor permit when it
expires.
(2) If you have achieved your existing synthetic minor status by
maintaining your actual emissions at less than 50 percent of the
relevant major source threshold, you must obtain a synthetic minor
permit under this program according to the requirements of paragraphs
(a) and (b) of this section. The following provisions apply:
(i) You must apply for a synthetic minor permit by [1 year and 60
days after publication of final rule], and you must respond in a timely
manner to any requests from the reviewing authority for additional
information.
[[Page 48742]]
(ii) Provided that you submit your application and any requested
additional information as indicated in paragraph (c)(2)(i) of this
section, your source will continue to be considered a synthetic minor
source or synthetic minor HAP source (as applicable) until your
synthetic minor permit under this program has been issued.
(iii) Should you fail to submit your application and any requested
additional information as indicated in paragraph (c)(2)(i) of this
section, your source will no longer be considered a synthetic minor
source or synthetic minor HAP source (as applicable), and will
immediately become subject to all requirements for major sources.
Sec. 49.159 Final permit issuance and administrative and judicial
review.
(a) How will final action occur, and when will my permit become
effective? After decision on a permit, the reviewing authority must
notify you of the decision, in writing, and if the permit is denied, of
the reasons for such denial. If the reviewing authority issues a final
permit to you, it must make a copy of the permit available at all of
the locations where the draft permit was made available. In addition,
the reviewing authority must provide adequate public notice of the
final permit decision to ensure that the affected community, general
public, and any individuals who commented on the draft permit have
reasonable access to the decision and supporting materials. A final
permit becomes effective 30 days after permit issuance, unless:
(1) A later effective date is specified in the permit; or
(2) Review of the final permit is requested under paragraph (d) of
this section (in which case the specific terms and conditions of the
permit that may be the subject of the request for review must be
stayed); or
(3) The reviewing authority may make the permit effective
immediately upon issuance if no comments requested a change in the
draft permit or a denial of the permit.
(b) For how long will the reviewing authority retain my permit-
related records? The records, including any required applications for
each draft and final permit or application for permit revision, must be
kept by the reviewing authority for not less than 5 years.
(c) What is the administrative record for each final permit? (1)
The reviewing authority must base final permit decisions on an
administrative record consisting of:
(i) The application and any supporting data furnished by the
applicant;
(ii) The draft permit or notice of intent to deny the application;
(iii) Other documents in the supporting files for the draft permit
that were relied upon in the decisionmaking;
(iv) All comments received during the public comment period,
including any extension or reopening;
(v) The tape or transcript of any hearing(s) held;
(vi) Any written material submitted at such a hearing;
(vii) Any new materials placed in the record as a result of the
reviewing authority's evaluation of public comments;
(viii) The final permit; and
(ix) Other documents in the supporting files for the final permit
that were relied upon in the decisionmaking.
(2) The additional documents required under paragraph (c)(1) of
this section should be added to the record as soon as possible after
their receipt or publication by the reviewing authority. The record
must be complete on the date the final permit is issued.
(3) Material readily available or published materials that are
generally available and that are included in the administrative record
under the standards of paragraph (c)(1) of this section need not be
physically included in the same file as the rest of the record as long
as it is specifically referred to in the that file.
(d) Can permit decisions be appealed? Permit decisions may be
appealed according to the following provisions:
(1) The Administrator delegates authority to the Environmental
Appeals Board (the Board) to issue final decisions in permit appeals
filed under this program, including informal appeals of denials of
requests for modification, revocation and re-issuance, or termination
of permits under paragraph (e)(2) of this section. An appeal directed
to the Administrator, rather than to the Board, will be forwarded to
the Board for consideration. This delegation does not preclude the
Board from referring an appeal or a motion under this program to the
Administrator when the Board, in its discretion, deems it appropriate
to do so. When an appeal or motion is referred to the Administrator by
the Board, all parties shall be so notified and the provisions of this
program referring to the Board shall be interpreted as referring to the
Administrator.
(2) Within 30 days after a final permit decision has been issued,
any person who filed comments on the draft permit or participated in
the public hearing may petition the Board to review any condition of
the permit decision. Any person who failed to file comments and failed
to participate in the public hearing on the draft permit may petition
for administrative review only to the extent that the changes from the
draft to the final permit or other new grounds were not reasonably
foreseeable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins when the reviewing authority has fulfilled the notice
requirements for the final permit decision, unless a later date is
specified in that notice.
(3) The petition must include a statement of the reasons supporting
the review, including a demonstration that any issues identified were
raised during the public comment period (including any public hearing)
to the extent required by these regulations, unless the petitioner
demonstrates that it was impracticable to raise such objections within
such period or unless the grounds for such objection arose after such
period, and, when appropriate, a showing that the condition in question
is based on:
(i) A finding of fact or conclusion of law that is clearly
erroneous; or
(ii) An exercise of discretion or an important policy consideration
that the Board should, in its discretion, review.
(4) The Board may also decide on its own initiative to review any
condition of any permit issued under this program.
(5) Within a reasonable time following the filing of the petition
for review, the Board must issue an order either granting or denying
the petition for review. To the extent review is denied, the conditions
of the final permit decision become final agency action. If the Board
grants review in response to requests under paragraph (d)(2) or (4) of
this section, public notice must be given as provided in
Sec. 49.157(b). Public notice must set forth a briefing schedule for
the appeal and must state that any interested person may file an amicus
brief. If the Board denies review, the permit applicant and the
person(s) requesting review must be notified through means that are
adequate to assure reasonable access to the decision, which may include
mailing a notice to each.
(6) A petition to the Board under paragraph (d)(2) of this section
is, under 42 U.S.C. 307(b), a prerequisite to seeking judicial review
of the final agency action.
(7) For purposes of judicial review, final agency action occurs
when a final permit is issued or denied by the reviewing authority and
agency review procedures are exhausted. A final
[[Page 48743]]
permit decision must be issued by the reviewing authority:
(i) When the Board issues notice to the parties that review has
been denied;
(ii) When the Board issues a decision on the merits of the appeal
and the decision does not include a remand of the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Board's remand order specifically provides
that appeal of the remand decision will be required to exhaust
administrative remedies.
(8) Motions to reconsider a final order must be filed within 10
days after service of the final order. Every such motion must set forth
the matters claimed to have been erroneously decided and the nature of
the alleged errors. Motions for reconsideration under this provision
must be directed to, and decided by, the Board. Motions for
reconsideration directed to the Administrator, rather than to the
Board, will be forwarded to the Board for consideration, except in
cases in which the Board has deferred to the Administrator and the
Administrator has issued the final order. A motion for reconsideration
must not stay the effective date of the final order unless specifically
so ordered by the Board.
(9) For purposes of this section, time periods are computed as
follows:
(i) Any time period scheduled to begin on the occurrence of an act
or event must begin on the day after the act or event.
(ii) Any time period scheduled to begin before the occurrence of an
act or event must be computed so that the period ends on the day before
the act or event, except as otherwise provided.
(iii) If the final day of any time period falls on a weekend or
legal holiday, the time period must be extended to the next working
day.
(iv) Whenever a party or interested person has the right or is
required to act within a prescribed period after the service of notice
or other paper upon him or her by mail, 3 days must be added to the
prescribed time.
(e) Can my permit be reopened? Your permit can be reopened
according to the following procedures:
(1) Any person (including the permittee) may petition the reviewing
authority to reopen a permit for cause, and the reviewing authority may
commence a permit reopening on its own initiative. The reviewing
authority may not reopen a permit for cause unless it contains a
material mistake or fails to assure compliance with applicable
requirements. All requests must be in writing and must contain reasons
supporting the request.
(2) If the reviewing authority decides the request is not
justified, the reviewing authority must send the requestor a brief
written response giving a reason for the decision. Denials of requests
for revision, revocation and re-issuance, or termination are not
subject to public notice, comment, or hearings. Denials by the
reviewing authority may be informally appealed to the Board by a letter
briefly setting forth the relevant facts. The Board may direct the
reviewing authority to begin revision, revocation and re-issuance, or
termination proceedings under paragraph (e)(3) of this section. The
appeal must be considered denied if the Board takes no action within 60
days after receiving it. This informal appeal is, under 42 U.S.C. 307,
a prerequisite to seeking judicial review of EPA action in denying a
request for revision, revocation and re-issuance, or termination.
(3) If the reviewing authority decides the request is justified and
that cause exists to revise, revoke and reissue or terminate a permit,
it shall initiate proceedings to reopen the permit.
(f) What is an administrative permit revision? The following
provisions govern administrative permit revisions.
(1) An administrative permit revision is a permit revision that
makes any of the following changes:
(i) Corrects typographical errors.
(ii) Identifies a change in the name, address, or phone number of
any person identified in the permit, or provides a similar minor
administrative change at the source.
(iii) Requires more frequent monitoring or reporting by the
permittee.
(iv) Allows for a change in ownership or operational control of a
source where the reviewing authority determines that no other change in
the permit is necessary, provided that a written agreement containing a
specific date for transfer of permit responsibility, coverage, and
liability between the current and new permittee has been submitted to
the reviewing authority.
(v) Establishes an increase in an emissions unit's annual allowable
emissions limit for a regulated NSR pollutant, when the action that
necessitates such increase is not otherwise subject to review under
major NSR or under this program.
(vi) Incorporates any other type of change that the reviewing
authority has determined to be similar to those in paragraphs (f)(1)(i)
through (v) of this section.
(2) An administrative permit revision is not subject to the permit
application, issuance, public participation, or administrative and
judicial review requirements of this program.
Sec. 49.160 Administration and delegation of the minor NSR program in
Indian country.
(a) Who administers a minor NSR program in Indian country? (1) If
the Administrator has approved a TIP that includes a minor NSR program
for sources in Indian country that meets the requirements of section
110(a)(2)(C) of the Act and Sec. Sec. 51.160 through 51.164 of this
chapter, the tribe is the reviewing authority and will administer the
approved minor NSR program under tribal law.
(2) If the Administrator has not approved an implementation plan,
the Administrator may delegate the authority to assist EPA with
administration of portions of this Federal minor NSR program
implemented under Federal authority to a tribal agency upon request, in
accordance with the provisions of paragraph (b) of this section. If the
tribal agency has been granted such delegation, it will have the
authority to assist EPA according to paragraph (b) of this section.
(3) If the Administrator has not approved an implementation plan or
granted delegation to a tribal agency, the Administrator is the
reviewing authority and will directly administer all aspects of this
Federal minor NSR program in Indian country under Federal authority.
(b) Delegation of administration of the Federal minor NSR program
to tribes. This paragraph (b) establishes the process by which the
Administrator may delegate authority to a tribal agency, with or
without signature authority, to assist EPA with administration of
portions of this Federal minor NSR program, in accordance with the
provisions in paragraphs (b)(1) through (8) of this section. Any
Federal requirements under this program that are administered by the
delegate tribal agency will be subject to enforcement by EPA under
Federal law. This section provides for administrative delegation of the
Federal minor NSR program and does not affect the eligibility criteria
under Sec. 49.6 for treatment in the same manner as a State.
(1) Information to be included in the Administrative Delegation
Request. In order to be delegated authority to assist EPA with
administration of this FIP permit program for sources, the tribal
agency must submit a request to the Administrator that:
(i) Identifies the specific provisions for which delegation is
requested;
[[Page 48744]]
(ii) Identifies the Indian Reservation or other areas of Indian
country for which delegation is requested;
(iii) Includes a statement by the applicant's legal counsel (or
equivalent official) that includes the following information:
(A) A statement that the applicant is a tribe recognized by the
Secretary of the Interior;
(B) A descriptive statement that is consistent with the type of
information described in Sec. 49.7(a)(2) demonstrating that the
applicant is currently carrying out substantial governmental duties and
powers over a defined area; and
(C) A description of the laws of the tribe that provide adequate
authority to administer the Federal rules and provisions for which
delegation is requested; and
(iv) Demonstrates that the tribal agency has the technical
capability and adequate resources to administer the FIP provisions for
which the delegation is requested.
(2) Delegation of Partial Administrative Authority Agreement. A
Delegation of Partial Administrative Authority Agreement (Agreement)
will set forth the terms and conditions of the delegation, will specify
the provisions that the delegate tribal agency will be authorized to
implement on behalf of EPA, and will be entered into by the
Administrator and the delegate tribal agency. The Agreement will become
effective upon the date that both the Administrator and the delegate
tribal agency have signed the Agreement or as otherwise stated in the
Agreement. Once the delegation becomes effective, the delegate tribal
agency will be responsible, to the extent specified in the Agreement,
for assisting EPA with administration of the provisions of the Federal
minor NSR program that are subject to the Agreement.
(3) Publication of notice of the Agreement. The Administrator will
publish a notice in the Federal Register informing the public of any
Agreement for a particular area of Indian country. The Administrator
also will publish the notice in a newspaper of general circulation in
the area affected by the delegation. In addition, the Administrator
will mail a copy of the notice to persons on a mailing list developed
by the Administrator consisting of those persons who have requested to
be placed on such a mailing list.
(4) Revision or revocation of an Agreement. An Agreement may be
modified, amended, or revoked, in part or in whole, by the
Administrator after consultation with the delegate tribal agency.
(5) Transmission of information to the Administrator. When
administration of a portion of the Federal minor NSR program in Indian
country that includes receipt of permit application materials and
preparation of draft permits has been delegated in accordance with the
provisions of this section, the delegate tribal agency must provide to
the Administrator a copy of each permit application (including any
application for permit revision) and each draft permit. The applicant
may be required by the delegate tribal agency to provide a copy of the
permit application directly to the Administrator. With the
Administrator's consent, the delegate tribal agency may submit to the
Administrator a permit application summary form and any relevant
portion of the permit application, in place of the complete permit
application. To the extent practicable, the preceding information
should be provided in electronic format as requested by the
Administrator.
(6) Waiver of information transmission requirements. The
Administrator may waive the requirements of paragraph (b)(5) of this
section for any category of sources (including any class, type, or size
within such category) by transmitting the waiver in writing to the
delegate tribal agency.
(7) Retention of records. Where a delegate tribal agency prepares
draft or final permits or receives applications for permit revisions on
behalf of EPA, the records for each draft and final permit or
application for permit revision must be kept by the delegate tribal
agency for a period not less than 5 years. The delegate tribal agency
must also submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether the delegate
tribal agency is implementing and administering the delegated program
in compliance with the requirements of the Act and of this program.
(8) Delegation of signature authority. To receive delegation of
signature authority, the legal statement submitted by the tribal agency
pursuant to paragraph (b)(1) of this section must certify that no
applicable provision of tribal law requires that a minor NSR permit be
issued after a certain time if the delegate tribal agency has failed to
take action on the application (or includes any other similar provision
providing for default issuance of a permit).
(c) Are there any non-delegable elements of the Federal minor NSR
program in Indian country? The following authorities cannot be
delegated outside of EPA:
(1) The Administrator's authority to object to the issuance of a
minor NSR permit.
(2) The Administrator's authority to enforce, revoke, or terminate
permits issued pursuant to this program.
(d) How will EPA transition its authority to an approved minor NSR
program? (1) The Administrator will suspend the issuance of minor NSR
permits under this program promptly upon publication of notice of
approval of an implementation plan with a minor NSR permit program for
that area.
(2) The Administrator may retain jurisdiction over the permits for
which the administrative or judicial review process is not complete and
will address this issue in the notice of program approval.
(3) After approval of a program for issuing minor NSR permits and
the suspension of issuance of minor NSR permits by the Administrator,
the Administrator will continue to administer minor NSR permits until
permits are issued under the approved implementation plan program.
Sec. Sec. 49.161-49.165 [Reserved]
3. Subpart C of Part 49 is amended by adding an undesignated center
heading and Sec. Sec. 49.166 through 49.173, and adding and reserving
Sec. Sec. 49.174 and 49.175 to read as follows:
Federal Major New Source Review Program for Nonattainment Areas in
Indian Country
Sec. 49.166 Program overview.
(a) What constitutes the Federal major new source review (NSR)
program for nonattainment areas in Indian country? As set forth in this
Federal Implementation Plan (FIP), the Federal major NSR program for
nonattainment areas in Indian country (or ``program'') consists of
Sec. Sec. 49.166 through 49.175.
(b) What is the purpose of this program? This program has the
following purposes:
(1) It establishes a preconstruction permitting program for new
major stationary sources and major modifications at existing major
stationary sources located in nonattainment areas in Indian country to
meet the requirements of part D of title I of the Act.
(2) It requires that major stationary sources subject to this
program comply with the provisions and requirements of part 51,
appendix S of this chapter (appendix S). Additionally, it sets forth
the criteria and procedures in appendix S that the reviewing authority
(as defined in Sec. 49.167) will use to approve permits under this
program. Note that for the purposes of this program, the
[[Page 48745]]
term ``SIP'' as used in appendix S means any EPA-approved
implementation plan, including a Tribal Implementation Plan (TIP).
While some of the important provisions of appendix S are paraphrased in
various paragraphs of this program to highlight them, the provisions of
appendix S govern.
(3) It also sets forth procedures for appealing a permit issued
under this program as provided in Sec. 49.172.
(c) When and where does this program apply? (1) The provisions of
this program apply to new major stationary sources and major
modifications at existing major stationary sources located in
nonattainment areas in Indian country where there is no EPA-approved
nonattainment major NSR program beginning on [date 60 days from date of
publication of final rule]. The provisions of this program apply only
to stationary sources and modifications that are major for the
regulated NSR pollutant(s) for which the area is designated
nonattainment.
(2) The provisions of this program cease to apply in an area
covered by an EPA-approved implementation plan on the date that our
approval of that plan becomes effective, provided that the plan
includes provisions that comply with the requirements of part D of
title I of the Act and Sec. 51.165 of this chapter for the
construction of new major stationary sources and major modifications at
existing major stationary sources in nonattainment areas.
(d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a stationary
source:
(1) If you propose to construct a new major stationary source or a
major modification at an existing major stationary source in a
nonattainment area in Indian country, you must obtain a major NSR
permit under this program before beginning actual construction. If you
commence construction after the effective date of this program without
applying for and receiving a permit pursuant to this program, you will
be subject to appropriate enforcement action.
(2) If you do not construct or operate your source or modification
in accordance with the terms of your major NSR permit issued under this
program, you will be subject to appropriate enforcement action.
(3) Issuance of a permit under this program does not relieve you of
the responsibility to comply fully with applicable provisions of any
EPA-approved implementation plan or FIP and any other requirements
under applicable law.
(4) Nothing in this program prevents a tribe from administering a
major NSR permit program with more stringent requirements in an
approved TIP.
Sec. 49.167 Definitions.
For the purposes of this program, the definitions in paragraph II.A
of appendix S to part 51 of this chapter apply, unless otherwise
stated. The following definitions also apply to this program:
Allowable emissions means ``allowable emissions'' as defined in
paragraph II.A.11 of appendix S to part 51 of this chapter, except that
the allowable emissions for any emissions unit are calculated
considering any emission limitations that are enforceable as a
practical matter on the emissions unit's potential to emit.
Enforceable as a practical matter means that an emission limitation
or other standard is both legally and practically enforceable as
follows:
(1) An emission limitation or other standard is ``legally
enforceable'' if the reviewing authority has the right to enforce it.
(2) Practical enforceability for an emission limitation or for
other standards (design standards, equipment standards, work practices,
operational standards, pollution prevention techniques) in a permit for
a stationary source is achieved if the permit's provisions specify:
(i) A limitation or standard and the emissions units or activities
at the stationary source subject to the limitation or standard;
(ii) The time period for the limitation or standard (e.g., hourly,
daily, monthly, and/or annual limits such as rolling annual limits);
and
(iii) The method to determine compliance, including appropriate
monitoring, recordkeeping, reporting, and testing.
(3) For rules and general permits that apply to categories of
stationary sources, practicable enforceability additionally requires
that the provisions:
(i) Identify the types or categories of sources that are covered by
the rule or general permit;
(ii) Where coverage is optional, provide for notice to the
reviewing authority of the source's election to be covered by the rule
or general permit; and
(iii) Specify the enforcement consequences relevant to the rule or
general permit.
Environmental Appeals Board means the Board within the EPA
described in Sec. 1.25(e) of this chapter.
Indian country, as defined in 18 U.S.C. 1151, means the following:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation;\2\
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\2\ Under this definition, EPA treats as reservations trust
lands validly set aside for the use of a tribe even if the trust
lands have not been formally designated as a reservation.
---------------------------------------------------------------------------
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
Indian governing body means the governing body of any tribe, band,
or group of Indians subject to the jurisdiction of the United States
and recognized by the United States as possessing power of self-
government.
Regulated NSR pollutant, for purposes of this program, means the
following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air quality standard
has been promulgated; or
(3) Any pollutant that is a constituent or precursor of a general
pollutant listed under paragraphs (1) or (2) of this definition,
provided that a constituent or precursor pollutant may only be
regulated under NSR as part of regulation of the general pollutant.
Reviewing authority means the Administrator and may mean an Indian
tribe in cases where a tribal agency is assisting EPA with
administration of the program through a delegation under Sec. 49.173.
Synthetic minor HAP source means a stationary source that otherwise
has the potential to emit HAPs in amounts that are at or above those
for major sources of HAP in Sec. 63.2 of this chapter, but that has
taken a restriction such that its potential to emit is less than such
amounts for major sources. Such restrictions must be enforceable as a
practical matter.
Synthetic minor source means a stationary source that otherwise has
the potential to emit regulated NSR pollutants in amounts that are at
or above those for major stationary sources in appendix S to part 51 of
this chapter, but that has taken a restriction such that its potential
to emit is less than such
[[Page 48746]]
amounts for major stationary sources. Such restrictions must be
enforceable as a practical matter. The term ``synthetic minor source''
applies independently for each regulated NSR pollutant that the
stationary source has the potential to emit.
Sec. 49.168 Does this program apply to me?
(a) In a nonattainment area in Indian country, the requirements of
this program apply to you under either of the following circumstances:
(1) If you propose to construct a new major stationary source (as
defined in paragraph II.A.4 of appendix S to part 51 of this chapter)
of the nonattainment pollutant.
(2) If you propose to construct a major modification at your
existing major stationary source (as defined in paragraph II.A.5 of
appendix S to part 51 of this chapter), where your source is a major
stationary source of the nonattainment pollutant and the proposed
modification is a major modification for the nonattainment pollutant.
(b) If you own or operate a major stationary source with a State-
issued nonattainment major NSR permit, you must apply to convert such
permit to a Federal permit under this program by [date 1 year and 60
days from date of publication of final rule]. In this case, you would
not be subject to any additional requirements under this program.
(c) If you propose to establish a synthetic minor source or
synthetic minor HAP source, or to construct a minor modification at
your major stationary source, you will have to comply with the
requirements of the Federal minor NSR program in Indian country at
Sec. Sec. 49.51 through 49.165 or other EPA-approved minor NSR program,
as applicable.
Sec. 49.169 Permit approval criteria.
(a) What are the general criteria for permit approval? The general
review criteria for permits are provided in paragraph II.B of appendix
S to part 51 of this chapter. In summary, that paragraph basically
requires the reviewing authority to ensure that the proposed new major
stationary source or major modification would meet all applicable
emission requirements in the EPA-approved implementation plan or FIP,
any applicable NSPS in part 60 of this chapter, and any applicable
NESHAP in part 61 or part 63 of this chapter, before a permit can be
issued.
(b) What are the program-specific criteria for permit approval? The
approval criteria or conditions for obtaining a major NSR permit for
major stationary sources and major modifications locating in
nonattainment areas are given in paragraph IV.A of appendix S to part
51 of this chapter. In summary, these are the following:
(1) The lowest achievable emission rate (LAER) requirement for any
NSR pollutant subject to this program.
(2) Certification that all existing major stationary sources owned
or operated by you in the same State as the proposed source or
modification are in compliance or under a compliance schedule.
(3) Emissions reductions (offsets) requirement for any source or
modification subject to this program.
(4) A demonstration that the emission offsets will provide a net
air quality benefit in the affected area.
Sec. 49.170 Emission offset requirement exemption.
An Indian governing body may seek an exemption from the emission
offset requirement (See Sec. 49.169(b)(3)) for major stationary
sources and major modifications subject to this program that are
located within the tribe(s Indian country pursuant to the following
options:
(a) Section 173(a)(1)(B) Economic Development Zone (EDZ) option.
Under section 173(a)(1)(B) of the Act, major stationary sources and
major modifications subject to this program may be exempted from the
offset requirement if they are located in a zone targeted for economic
development by the Administrator, in consultation with the Department
of Housing and Urban Development (HUD). Under the EDZ option, the
Administrator would waive the offset requirement for such sources and
modifications, provided that:
(1) The new major stationary source or major modification is
located in a geographical area which meets the criteria for an EDZ, and
the Administrator has approved a request from a tribe and declared the
area an EDZ; and
(2) The State/tribe demonstrates that the new permitted emissions
are consistent with the achievement of reasonable further progress
pursuant to section 172(c)(4) of the Act, and will not interfere with
attainment of the applicable NAAQS by the applicable attainment date.
(b) Appendix S, paragraph VI option. Pursuant to paragraph VI of
appendix S to part 51 of this chapter, for a new major stationary
source or major modification locating in a nonattainment area for which
the attainment date has not yet passed, such source or modification
would be exempt from all requirements of this program, including the
offset requirement, provided all the following conditions are met:
(1) The new major stationary source or major modification complies
with any applicable EPA-approved implementation plan or FIP emission
limitations.
(2) The new major stationary source or major modification will not
interfere with the attainment date for a regulated NSR pollutant.
(3) The Administrator has determined that conditions specified in
paragraphs (b)(1) and (2) of this section are satisfied and such
determination is published in the Federal Register.
Sec. 49.171 Public participation requirements.
(a) What permit information will be publicly available? With the
exception of any confidential information as defined in part 2, subpart
B of this chapter, the reviewing authority must make available for
public inspection the documents listed in paragraphs (a)(1) through (4)
of this section. The reviewing authority must make such information
available for public inspection at the appropriate EPA Regional Office
and in at least one location in the area affected by the stationary
source, such as the tribal environmental office or a local library.
(1) All information submitted as part of an application for a
permit.
(2) Any additional information requested by the reviewing
authority.
(3) The reviewing authority's analysis of the application and any
additional information submitted by you, including the LAER analysis
and, where applicable, the analysis of your emissions reductions
(offsets) and your demonstration of a net air quality benefit in the
affected area.
(4) A copy of the draft permit or the decision to deny the permit
with the justification for denial.
(b) How will the public be notified and participate? (1) Before
issuing a permit under this program, the reviewing authority must
prepare a draft permit and must provide adequate public notice to
ensure that the affected community and the general public have
reasonable access to the application and draft permit information, as
set out in paragraphs (b)(1)(i) and (ii) of this section. The public
notice must provide an opportunity for public comment and notice of a
public hearing, if any, on the draft permit.
(i) The reviewing authority must mail a copy of the notice to you,
the appropriate Indian governing body, and the tribal, State, and local
air pollution authorities having jurisdiction in areas outside of the
area of Indian country
[[Page 48747]]
potentially impacted by the air pollution source.
(ii) Depending on such factors as the nature and size of your
stationary source, local air quality considerations, and the
characteristics of the population in the affected area, the reviewing
authority must use appropriate means of notification, such as those
listed in paragraphs (b)(1)(ii)(A) through (E) of this section.
(A) The reviewing authority may mail or e-mail a copy of the notice
to persons on a mailing list developed by the reviewing authority
consisting of those persons who have requested to be placed on such a
mailing list.
(B) The reviewing authority may post the notice on its Web site.
(C) The reviewing authority may publish the notice in a newspaper
of general circulation in the area affected by the source. Where
possible, the notice may also be published in a tribal newspaper or
newsletter.
(D) The reviewing authority may provide copies of the notice for
posting at one or more locations in the area affected by the source,
such as Post Offices, trading posts, libraries, tribal environmental
offices, community centers, or other gathering places in the community.
(E) The reviewing authority may employ other means of notification
as appropriate.
(2) The notice required pursuant to paragraph (b)(1) of this
section must include the following information at a minimum:
(i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
(ii) The name and address of the reviewing authority processing the
permit action;
(iii) The regulated NSR pollutants to be emitted, the affected
emissions units, and the emission limitations for each affected
emissions unit;
(iv) The emissions change involved in the permit action;
(v) Instructions for requesting a public hearing;
(vi) The name, address, and telephone number of a contact person in
the reviewing authority's office from whom additional information may
be obtained;
(vii) Locations and times of availability of the information
(listed in paragraph (a) of this section) for public inspection; and
(viii) A statement that any person may submit written comments, a
written request for a public hearing, or both, on the draft permit
action. The reviewing authority must provide a period of at least 30
days from the date of the public notice for comments, and for requests
for a public hearing.
(c) How will the public comment, and will there be a public
hearing? (1) Any person may submit written comments on the draft permit
and may request a public hearing. These comments must raise any
reasonably ascertainable issue with supporting arguments by the close
of the public comment period (including any public hearing). The
reviewing authority must consider all comments in making the final
decision. The reviewing authority must keep a record of the commenters
and of the issues raised during the public participation process, and
such records must be available to the public.
(2) The reviewing authority must extend the public comment period
under paragraph (b) of this section to the close of any public hearing
under this section. The hearing officer may also extend the comment
period by so stating at the hearing.
(3) A request for a public hearing must be in writing and must
state the nature of the issues proposed to be raised at the hearing.
(4) The reviewing authority must hold a hearing whenever there is,
on the basis of requests, a significant degree of public interest in a
draft permit. The reviewing authority may also hold a public hearing at
its discretion, whenever, for instance, such a hearing might clarify
one or more issues involved in the permit decision. The reviewing
authority must provide notice of any public hearing at least 30 days
prior to the date of the hearing. Public notice of the hearing may be
concurrent with that of the draft permit, and the two notices may be
combined. Reasonable limits may be set upon the time allowed for oral
statements at the hearing.
(5) The reviewing authority must make a tape recording or written
transcript of any hearing available to the public.
Sec. 49.172 Final permit issuance and administrative and judicial
review.
(a) How will final action occur, and when will my permit become
effective? After decision on a permit, the reviewing authority must
notify you of the decision, in writing, and if the permit is denied, of
the reasons for such denial. If the reviewing authority issues a final
permit to you, it must make a copy of the permit available at any
location where the draft permit was made available. In addition, the
reviewing authority must provide adequate public notice of the final
permit decision to ensure that the affected community, general public,
and any individuals who commented on the draft permit have reasonable
access to the decision and supporting materials. A final permit becomes
effective 30 days after permit issuance, unless:
(1) A later effective date is specified in the permit; or
(2) Review of the final permit is requested under paragraph (d) of
this section (in which case the specific terms and conditions of the
permit that may be the subject of the request for review must be
stayed); or
(3) The draft permit was subjected to a public comment period and
no comments requested a change in the draft permit or a denial of the
permit, in which case the reviewing authority may make the permit
effective immediately upon issuance.
(b) For how long will the reviewing authority retain my permit-
related records? The records, including any required applications for
each draft and final permit or application for permit revision, must be
kept by the reviewing authority for not less than 5 years.
(c) What is the administrative record for each final permit? (1)
The reviewing authority must base final permit decisions on an
administrative record consisting of:
(i) All comments received during any public comment period,
including any extension or reopening;
(ii) The tape or transcript of any hearing(s) held;
(iii) Any written material submitted at such a hearing;
(iv) Any new materials placed in the record as a result of the
reviewing authority's evaluation of public comments;
(v) Other documents in the supporting files for the permit that
were relied upon in the decisionmaking;
(vi) The final permit;
(vii) The application and any supporting data furnished by the
applicant;
(viii) The draft permit or notice of intent to deny the application
or to terminate the permit; and
(ix) Other documents in the supporting files for the draft permit
that were relied upon in the decisionmaking.
(2) The additional documents required under paragraph (c)(1) of
this section should be added to the record as soon as possible after
their receipt or publication by the reviewing authority. The record
must be complete on the date the final permit is issued.
(3) Material readily available or published materials that are
generally available and that are included in the administrative record
under the standards of paragraph (c)(1) of this
[[Page 48748]]
section need not be physically included in the same file as the rest of
the record as long as it is specifically referred to in that file.
(d) Can permit decisions be appealed? Permit decisions may be
appealed according to the following provisions:
(1) The Administrator delegates authority to the Environmental
Appeals Board (the Board) to issue final decisions in permit appeals
filed under this program, including informal appeals of denials of
requests for modification, revocation and re-issuance, or termination
of permits under paragraph (e)(2) of this section. An appeal directed
to the Administrator, rather than to the Board, will be forwarded to
the Board for consideration. This delegation does not preclude the
Board from referring an appeal or a motion under this program to the
Administrator when the Board, in its discretion, deems it appropriate
to do so. When an appeal or motion is referred to the Administrator by
the Board, all parties shall be so notified and the provisions of this
program referring to the Board shall be interpreted as referring to the
Administrator.
(2) Within 30 days after a final permit decision has been issued,
any person who filed comments on the draft permit or participated in
the public hearing may petition the Board to review any condition of
the permit decision. Any person who failed to file comments and failed
to participate in the public hearing on the draft permit may petition
for administrative review only to the extent that the changes from the
draft to the final permit or other new grounds were not reasonably
foreseeable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins when the reviewing authority has fulfilled the notice
requirements for the final permit decision, unless a later date is
specified in that notice.
(3) The petition must include a statement of the reasons supporting
the review, including a demonstration that any issues identified were
raised during the public comment period (including any public hearing)
to the extent required by these regulations, unless the petitioner
demonstrates that it was impracticable to raise such objections within
such period or unless the grounds for such objection arose after such
period, and, when appropriate, a showing that the condition in question
is based on:
(i) A finding of fact or conclusion of law that is clearly
erroneous; or
(ii) An exercise of discretion or an important policy consideration
that the Board should, in its discretion, review.
(4) The Board may also decide on its own initiative to review any
condition of any permit issued under this program.
(5) Within a reasonable time following the filing of the petition
for review, the Board must issue an order either granting or denying
the petition for review. To the extent review is denied, the conditions
of the final permit decision become final agency action. If the Board
grants review in response to requests under paragraph (d)(2) or (4) of
this section, public notice must be given as provided in Sec.
49.171(b). Public notice must set forth a briefing schedule for the
appeal and must state that any interested person may file an amicus
brief. If the Board denies review, the permit applicant and the
person(s) requesting review must be notified through means that are
adequate to assure reasonable access to the decision, which may include
mailing a notice to each.
(6) A petition to the Board under paragraph (d)(2) of this section
is, under 42 U.S.C. 307(b), a prerequisite to seeking judicial review
of the final agency action.
(7) For purposes of judicial review, final agency action occurs
when a final permit is issued or denied by the reviewing authority and
agency review procedures are exhausted. A final permit decision must be
issued by the reviewing authority:
(i) When the Board issues notice to the parties that review has
been denied;
(ii) When the Board issues a decision on the merits of the appeal
and the decision does not include a remand of the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Board's remand order specifically provides
that appeal of the remand decision will be required to exhaust
administrative remedies.
(8) Notice of any final agency action on a permit shall promptly be
published in the Federal Register.
(9) Motions to reconsider a final order must be filed within 10
days after service of the final order. Every such motion must set forth
the matters claimed to have been erroneously decided and the nature of
the alleged errors. Motions for reconsideration under this provision
must be directed to, and decided by, the Board. Motions for
reconsideration directed to the Administrator, rather than to the
Board, will be forwarded to the Board for consideration, except in
cases in which the Board has deferred to the Administrator and the
Administrator has issued the final order. A motion for reconsideration
must not stay the effective date of the final order unless specifically
so ordered by the Board.
(10) For purposes of this section, time periods are computed as
follows:
(i) Any time period scheduled to begin on the occurrence of an act
or event must begin on the day after the act or event.
(ii) Any time period scheduled to begin before the occurrence of an
act or event must be computed so that the period ends on the day before
the act or event, except as otherwise provided.
(iii) If the final day of any time period falls on a weekend or
legal holiday, the time period must be extended to the next working
day.
(iv) Whenever a party or interested person has the right or is
required to act within a prescribed period after the service of notice
or other paper upon him or her by mail, 3 days must be added to the
prescribed time.
(e) Can my permit be reopened? Your permit can be reopened
according to the following procedures:
(1) Any person (including the permittee) may petition the reviewing
authority to reopen a permit for cause, and the reviewing authority may
commence a permit reopening on its own initiative. The reviewing
authority may not reopen a permit for cause unless it contains a
material mistake or fails to assure compliance with applicable
requirements. All requests must be in writing and must contain reasons
supporting the request.
(2) If the reviewing authority decides the request is not
justified, the reviewing authority must send the requestor a brief
written response giving a reason for the decision. Denials of requests
for revision, revocation and re-issuance, or termination are not
subject to public notice, comment, or hearings. Denials by the
reviewing authority may be informally appealed to the Board by a letter
briefly setting forth the relevant facts. The Board may direct the
reviewing authority to begin revision, revocation and re-issuance, or
termination proceedings under paragraph (e)(3) of this section. The
appeal must be considered denied if the Board takes no action within 60
days after receiving it. This informal appeal is, under 42 U.S.C. 307,
a prerequisite to seeking judicial review of EPA action in denying a
request for revision, revocation and re-issuance, or termination.
(3) If the reviewing authority decides the request is justified and
that cause exists to revise, revoke and reissue or
[[Page 48749]]
terminate a permit, it shall initiate proceedings to reopen the permit.
Sec. 49.173 Administration and delegation of the nonattainment major
NSR program in Indian country.
(a) Who administers a nonattainment major NSR Program in Indian
Country? (1) If the Administrator has approved a TIP that includes a
major NSR program for stationary sources in nonattainment areas of
Indian country that meets the requirements of part D of title I of the
Act and Sec. 51.165 of this chapter, the tribe is the reviewing
authority and will administer the approved major NSR program under
tribal law.
(2) If the Administrator has not approved an implementation plan,
the Administrator may delegate the authority to assist EPA with
administration of portions of this Federal nonattainment major NSR
program implemented under Federal authority to a tribal agency upon
request, in accordance with the provisions of paragraph (b) of this
section. If the tribal agency has been granted such delegation, it will
have the authority to assist EPA according to paragraph (b) of this
section.
(3) If the Administrator has not approved an implementation plan or
granted delegation to a tribal agency, the Administrator is the
reviewing authority and will directly administer all aspects of this
Federal nonattainment major NSR program in Indian country under Federal
authority.
(b) Delegation of administration of the Federal nonattainment major
NSR program to tribes. This paragraph (b) establishes the process by
which the Administrator may delegate authority to a tribal agency, with
or without signature authority, to assist EPA with administration of
portions of this Federal nonattainment major NSR program, in accordance
with the provisions in paragraphs (b)(1) through (8) of this section.
Any Federal requirements under this program that are administered by
the delegate tribal agency will be subject to enforcement by EPA under
Federal law. This section provides for administrative delegation of the
Federal nonattainment major NSR program and does not affect the
eligibility criteria under Sec. 49.6 for treatment in the same manner
as a State.
(1) Information to be included in the Administrative Delegation
Request. In order to be delegated authority to assist EPA with
administration of this FIP permit program for stationary sources, the
tribal agency must submit a request to the Administrator that:
(i) Identifies the specific provisions for which delegation is
requested;
(ii) Identifies the Indian Reservation or other areas of Indian
country for which delegation is requested;
(iii) Includes a statement by the applicant's legal counsel (or
equivalent official) that includes the following information:
(A) A statement that the applicant is a tribe recognized by the
Secretary of the Interior;
(B) A descriptive statement that is consistent with the type of
information described in Sec. 49.7(a)(2) demonstrating that the
applicant is currently carrying out substantial governmental duties and
powers over a defined area; and
(C) A description of the laws of the tribe that provide adequate
authority to administer the Federal rules and provisions for which
delegation is requested; and
(iv) Demonstrates that the tribal agency has the technical
capability and adequate resources to administer the FIP provisions for
which the delegation is requested.
(2) Delegation of Partial Administrative Authority Agreement. A
Delegation of Partial Administrative Authority Agreement (Agreement)
will set forth the terms and conditions of the delegation, will specify
the provisions that the delegate tribal agency will be authorized to
implement on behalf of EPA, and will be entered into by the
Administrator and the delegate tribal agency. The Agreement will become
effective upon the date that both the Administrator and the delegate
tribal agency have signed the Agreement or as otherwise stated in the
Agreement. Once the delegation becomes effective, the delegate tribal
agency will be responsible, to the extent specified in the Agreement,
for assisting EPA with administration of the provisions of the Federal
nonattainment major NSR program that are subject to the Agreement.
(3) Publication of notice of the Agreement. The Administrator will
publish a notice in the Federal Register informing the public of any
Agreement for a particular area of Indian country. The Administrator
also will publish the notice in a newspaper of general circulation in
the area affected by the delegation. In addition, the Administrator
will mail a copy of the notice to persons on a mailing list developed
by the Administrator consisting of those persons who have requested to
be placed on such a mailing list.
(4) Revision or revocation of an Agreement. An Agreement may be
modified, amended, or revoked, in part or in whole, by the
Administrator after consultation with the delegate tribal agency.
(5) Transmission of information to the Administrator. When
administration of a portion of the Federal nonattainment major NSR
program in Indian country that includes receipt of permit application
materials and preparation of draft permits has been delegated in
accordance with the provisions of this section, the delegate tribal
agency must provide to the Administrator a copy of each permit
application (including any application for permit revision) and each
draft permit. The applicant may be required by the delegate tribal
agency to provide a copy of the permit application directly to the
Administrator. With the Administrator's consent, the delegate tribal
agency may submit to the Administrator a permit application summary
form and any relevant portion of the permit application, in place of
the complete permit application. To the extent practicable, the
preceding information should be provided in electronic format as
requested by the Administrator.
(6) Waiver of information transmission requirements. The
Administrator may waive the requirements of paragraph (b)(5) of this
section for any category of stationary sources (including any class,
type, or size within such category) by transmitting the waiver in
writing to the delegate tribal agency.
(7) Retention of records. Where a delegate tribal agency prepares
draft or final permits or receives applications for permit revisions on
behalf of EPA, the records for each draft and final permit or
application for permit revision must be kept by the delegate tribal
agency for a period not less than 5 years. The delegate tribal agency
must also submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether the delegate
tribal agency is implementing and administering the delegated program
in compliance with the requirements of the Act and of this program.
(8) Delegation of signature authority. To receive delegation of
signature authority, the legal statement submitted by the tribal agency
pursuant to paragraph (b)(1) of this section must certify that no
applicable provision of tribal law requires that a major NSR permit be
issued after a certain time if the delegate tribal agency has failed to
take action on the application (or includes any other similar provision
providing for default issuance of a permit).
(c) Are there any non-delegable elements of the Federal
nonattainment major NSR program in Indian country?
[[Page 48750]]
The following authorities cannot be delegated outside of EPA:
(1) The Administrator's authority to object to the issuance of a
major NSR permit.
(2) The Administrator's authority to enforce, revoke, or terminate
permits issued pursuant to this program.
(d) How will EPA transition its authority to an approved
nonattainment major NSR program? (1) The Administrator will suspend the
issuance of nonattainment major NSR permits under this program promptly
upon publication of notice of approval of an implementation plan with a
major NSR permit program for nonattainment areas.
(2) The Administrator may retain jurisdiction over the permits for
which the administrative or judicial review process is not complete and
will address this issue in the notice of program approval.
(3) After approval of a program for issuing nonattainment major NSR
permits and the suspension of issuance of nonattainment major NSR
permits by the Administrator, the Administrator will continue to
administer nonattainment major NSR permits until permits are issued
under the approved implementation plan program.
Sec. Sec. 49.174-49.175 [Reserved]
PART 51--[AMENDED]
4. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Appendix S to Part 51--[Amended]
5. Appendix S to Part 51 is amended by revising paragraph II.B to
read as follows:
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
II. * * *
B. Review of all sources for emission limitation compliance. The
reviewing authority must examine each proposed major new source and
proposed major modification \1\ to determine if such a source will
meet all applicable emission requirements in the SIP, any applicable
new source performance standard in 40 CFR part 60, or any national
emission standard for hazardous air pollutants in 40 CFR part 61 or
part 63. If the reviewing authority determines that the proposed
major new source cannot meet the applicable emission requirements,
the permit to construct must be denied.
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\1\ Hereafter the term source will be used to denote both any
source and any modification.
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* * * * *
[FR Doc. 06-6926 Filed 8-18-06; 8:45 am]
BILLING CODE 6560-50-P