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February
14,
2006
1
6560­
50­

ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
49
[
Docket
ID
No.
OAR­
2003­
0076
(
A­
2002­
17);
FRL­
]
RIN
2060­
AH37
Review
of
New
Sources
and
Modifications
in
Indian
Country
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rules.

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
and
adjacent
to
Indian
country.
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
implementation
plan
for
an
area
of
Indian
country.

In
today=
s
rulemaking,
we1
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.
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
1
In
this
preamble
the
term
Awe@
refers
to
the
EPA
and
the
term
Ayou@
refers
to
stationary
sources
of
air
pollution
and
their
owners
and
operators.
Draft
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not
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or
distribute
February
14,
2006
2
modifications
located
in
areas
of
Indian
country
that
are
designated
as
not
attaining
the
National
Ambient
Air
Quality
Standards
(
NAAQS)
(
nonattainment
major
NSR
rule).

Under
the
latter
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).
These
proposed
rules
would
provide
additional
regulatory
tools
for
us
to
use
in
implementing
the
Act
in
Indian
country.
However,
in
any
area
within
Indian
country
with
an
EPA­
approved
NSR
permitting
program
for
minor
or
major
sources,
the
proposed
rules
would
not
apply.

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
Asynthetic
minor
sources.@

Such
synthetic
minor
sources
would
include
sources
that
emit
hazardous
air
pollutants
(
HAP)
so
that
they
would
not
be
subject
to
major
source
regulations
under
40
CFR
part
63.
Any
limitations
on
PTE
must
be
enforceable
as
a
practical
matter
(
that
is,
legally
and
practically
enforceable).

Sources
subject
to
the
nonattainment
major
NSR
rule
would
be
subject
to
Draft
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or
distribute
February
14,
2006
3
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.

DATES:
Comments.
Submit
comments
on
or
before
[
INSERT
DATE
60
DAYS
AFTER
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].
"
Under
the
Paperwork
Reduction
Act,
comments
on
the
information
collection
provisions
must
be
received
by
OMB
on
or
before
[
INSERT
DATE
30
DAYS
AFTER
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER]."

ADDRESSES:
Comments.
Submit
your
comments,
identified
by
Docket
ID
No.
OAR­

2003­
0076,
by
one
of
the
following
methods:

$
Federal
eRulemaking
Portal:
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.
OAR­
2003­
0076,
U.
S.
Environmental
Protection
Agency,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Avenue,
Northwest,

Mailcode:
6102T,
Washington,
DC
20460.

$
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.
OAR­
2003­
0076.
Such
deliveries
are
only
accepted
during
the
Docket=
s
normal
hours
of
operation,
and
special
arrangements
should
be
Draft
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or
distribute
February
14,
2006
4
made
for
deliveries
of
boxed
information.

Instructions.
Direct
your
comments
to
Docket
ID
No.
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
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
www.
regulations.
gov
or
e­
mail.
The
www.
regulations.
gov
website
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
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
information
about
EPA's
public
docket
visit
the
EPA
Docket
Center
homepage
at
http://
www.
epa.
gov/
epahome/
dockets.
htm.
"
For
additional
instructions
on
submitting
comments,
go
to
I
C
&
D
of
the
SUPPLEMENTARY
INFORMATION
section
of
this
document."}
Draft
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not
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copy,
or
distribute
February
14,
2006
5
Docket:
All
documents
in
the
docket
are
listed
in
the
www.
regulations.
gov
index.

Although
listed
in
the
index,
some
information
is
not
publicly
available,
e.
g.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
will
be
publicly
available
only
in
hard
copy.
Publicly
available
docket
materials
are
available
either
electronically
in
www.
regulations.
gov
or
in
hard
copy
at
the
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:
Raj
Rao,
Information
Transfer
and
Program
Integration
Division
(
C339­
03),
U.
S.
EPA
Office
of
Air
Quality
Planning
and
Standards,
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.

SUPPLEMENTARY
INFORMATION:

The
information
presented
in
this
preamble
is
organized
as
follows:

I.
General
Information
A.
What
are
the
regulated
entities?
B.
Where
can
I
get
a
copy
of
this
document
and
other
related
information?
C.
How
should
I
submit
Confidential
Business
Information
(
CBI)
to
the
Agency?
D.
What
should
I
consider
as
I
prepare
my
comments
for
the
EPA?
E.
How
can
I
find
information
about
a
possible
hearing?
II.
Purpose
III.
Background
A.
The
New
Source
Review
(
NSR)
Program
1.
What
are
the
general
requirements
of
the
major
NSR
program?
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
6
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
Asynthetic
minor
sources@
subject
to
this
rule?
10.
How
would
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
7
C.
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1966
(
SBREFA),
5
U.
S.
C.
601
et
seq.
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.
National
Technology
Transfer
Advancement
Act
VII.
Statutory
Authority
I.
General
Information
A.
What
are
the
regulated
entities?

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:

Category
NAICSa
Examples
of
regulated
entities
Industry..............................
4471
Gasoline
station
storage
tanks
and
refueling.

5614
Lumber
manufacturer
support.

21211
Coal
mining.

31332
Surface
coating
operation.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
8
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
9
421320
Concrete
batching
plant.

422510
Grain
elevator.

422710
Crude
oil
storage
and
distribution.

422710
Gasoline
bulk
plant.

486110
Crude
oil
storage
and
distribution.

486210
Natural
gas
compressor
station.

562212
Solid
waste
landfill.

811121
Automobile
refinishing
shop.

812320
Dry
cleaner.

Federal
government
............
924110
Administration
of
Air
and
Water
Resources
and
Solid
Waste
Management
Programs
State/
local/
tribal
government.........................
924110
Administration
of
Air
and
Water
Resources
and
Solid
Waste
Management
Programs
a
North
American
Industry
Classification
System.

This
table
is
not
intended
to
be
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.
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
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
10
located
at
http://
www.
epa.
gov/
nsr.

C.
How
should
I
submit
Confidential
Business
Information
(
CBI)
to
the
Agency?

Do
not
submit
this
information
to
EPA
through
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.
OAR­
2003­
0076.

D.
What
should
I
consider
as
I
prepare
my
comments
for
the
EPA?

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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
11
$
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.

$
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.

E.
How
can
I
find
information
about
a
possible
hearing?

Persons
interested
in
inquiring
if
a
hearing
is
to
be
held
should
contact
Ms.
Pam
Long,
New
Source
Review
Group,
Air
Quality
Policy
Division
(
C339­
03),
U.
S.
EPA,

Research
Triangle
Park,
NC
27711,
telephone
number
(
919)
541­
0641.
If
a
hearing
is
to
be
held,
persons
interested
in
presenting
oral
testimony
should
notify
Ms.
Long
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.

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
Clean
Air
Act
as
amended
in
1990
(
the
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
12
Act)
by
establishing
a
permitting
program
for
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
sources2
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.

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
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
13
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
Amajor
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
14
(
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
emissions3
at
the
source,
the
net
emissions
increase
must
be
significant
(
equal
to
or
above
the
significance
levels
defined
in
40
CFR
52.21(
b)(
23)).

Major
sources
and
major
modifications
subject
to
nonattainment
major
NSR
must
apply
state­
of­
the­
art
emissions
control
technologies,
including
any
pollution
prevention
measures,
to
achieve
the
LAER.
The
LAER
is
based
on
the
most
stringent
emission
limitation
in
the
implementation
plan
of
any
State,
or
achieved
in
practice,
for
the
source
category
under
review.

Each
major
source
subject
to
nonattainment
major
NSR
must
also
Aoffset@
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
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
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).
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
15
51.165(
a)(
3).

Additionally,
each
major
nonattainment
NSR
permit
applicant
must
also
conduct
an
analysis
of
Aalternative
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.
As
noted
above,
parts
C
and
D
address
the
major
NSR
program
for
major
stationary
sources,
and
the
permitting
program
for
minor
stationary
sources
is
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
16
addressed
by
section
110(
a)(
2)(
C)
of
the
Act.
We
commonly
refer
to
the
latter
program
as
the
Aminor
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.

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
Anonmajor@
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
17
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
Asynthetic
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
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
18
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.

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
websites.
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
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February
14,
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19
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
to
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
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20
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
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
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
Draft
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February
14,
2006
21
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
Aany
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
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February
14,
2006
22
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
Amodification@
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
Amodification@
for
purposes
of
the
new
source
performance
standards
(
NSPS)
program)
to
define
Amodification@
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
Amodification@
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
Amodification,@
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
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February
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2006
23
not
believe
that
the
recent
decision
of
the
D.
C.
Circuit
Court
of
Appeals
applies
to
minor
NSR
programs.

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
below,
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
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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
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.
Draft
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Table
1.
Minor
NSR
Thresholds
Minor
NSR
thresholds
for
nonattainment
areas
(
tpy)

Regulated
NSR
pollutant
Extreme
ozone
areas
Other
areas
Minor
NSR
thresholds
for
attainment
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
Non
Methane
Organic
Compounds)
NA
NA
10
The
selected
minor
NSR
thresholds
distinguish
between
minor
stationary
sources
of
regulated
NSR
pollutants
located
in
nonattainment
versus
attainment
areas
and
by
Draft
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February
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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
final1999
NEI,
extrapolated
to
2001.
More
on
the
1999
NEI
can
be
found
at
http://
www.
epa.
gov/
ttn/
chief/
net/
1999inventory.
html.
Draft
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27
Table
2.
Distribution
of
Sources
and
Emissions
under
Proposed
Minor
NSR
Thresholds
Total
facilities
Unregulated
minor
sources
Minor
sources
Major
sources
Pollutant
No.
(
x103)
TPY
(
x106)
%
of
total
%
of
TPY
%
of
total
%
of
TPY
%
of
total
%
of
TPY
CO
28.9
4.43
65
0.8
29
11
6
88
SO2
21.2
13.90
76
0.1
16
1
8
99
PM10
33.9
1.69
65
1.3
32
22
4
76
PM2.5
33.8
1.33
59
0.8
38
23
3
76
Ozone
­
VOC
43.3
1.60
42
1.1
53
41
5
58
Ozone
­
NOX
30.5
7.93
53
0.4
36
6
11
93
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
labeled
Aunregulated
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
Aminor
sources@
column
gives
the
same
information
for
sources
that
fall
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
AAnalysis
of
the
Proposed
Minor
NSR
Thresholds@
in
the
docket
for
this
rulemaking.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
28
between
the
minor
NSR
threshold
and
the
major
NSR
threshold,
while
the
Amajor
sources@

column
addresses
sources
that
exceed
the
major
NSR
threshold.

We
believe
that
Table
2
provides
excellent
evidence
that
sources
with
emissions
below
the
proposed
minor
NSR
thresholds
will
be
inconsequential
to
attainment
and
maintenance
of
the
NAAQS.
For
each
pollutant,
only
around
1
percent
(
or
less)
of
total
emissions
would
be
exempt
from
review
under
the
minor
NSR
program.
At
the
same
time,
the
proposed
thresholds
will
promote
a
cost­
effective
program.
According
to
Table
2,
anywhere
from
42
percent
to
76
percent
of
sources
(
depending
on
the
pollutant)
would
be
too
small
to
be
subject
to
preconstruction
review.

We
believe
that
the
proposed
minor
NSR
thresholds
provide
a
reasonable
approach
to
determining
the
applicability
of
the
minor
NSR
program.
These
thresholds
would
prevent
stationary
sources
that
make
negligible
contributions
to
pollution
from
being
regulated
under
this
rule.
However,
this
would
not
affect
the
applicability
of
other
requirements,
such
as
those
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
29
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,
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
30
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
Ageneral
permit,@
if
eligible,
as
noted
below).
In
addition
to
basic
information
identifying
and
describing
your
source,
your
application
must
include
a
list
of
all
affected
emissions
units.

AAffected
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
above).

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,
you
must
include
fugitive
emissions,
to
the
extent
that
they
are
Draft
Do
not
cite,
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or
distribute
February
14,
2006
31
quantifiable.
7
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
7
We
are
considering
a
notice
of
proposed
rulemaking
to
address
when
fugitive
emissions
must
be
accounted
for
in
determining
NSR
applicability.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
32
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
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.

As
noted
above,
if
your
source
is
in
a
source
category
covered
by
a
Ageneral
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
33
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
Acontrol
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
34
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
above
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
Apollution
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
35
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
Draft
Do
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distribute
February
14,
2006
36
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
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.
Draft
Do
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February
14,
2006
37
6.
When
are
modifications
subject
to
this
rule?

As
discussed
above
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
above
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
Draft
Do
not
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copy,
or
distribute
February
14,
2006
38
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
above
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
above),
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
Draft
Do
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February
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2006
39
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
Aproject
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
Draft
Do
not
cite,
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or
distribute
February
14,
2006
40
program
in
the
following
circumstances:

$
If
your
minor
source
has
a
permit
with
a
minor
source
PAL
in
tpy
(
Option
B
above
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
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
Draft
Do
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February
14,
2006
41
(
see
proposed
40
CFR
49.159(
f)).

Flowcharts
to
aid
in
determining
major
and
minor
NSR
applicability
are
presented
below
in
Figures
1
through
5.
These
flowcharts
illustrate
the
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.
Draft
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February
14,
2006
42
Draft
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or
distribute
February
14,
2006
43
Draft
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or
distribute
February
14,
2006
44
Draft
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not
cite,
copy,
or
distribute
February
14,
2006
45
Draft
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or
distribute
February
14,
2006
46
Draft
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February
14,
2006
47
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.

7.
Why
do
we
believe
that
an
allowable­
to­
allowable
test
is
appropriate
for
minor
Draft
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14,
2006
48
sources?

As
discussed
above,
we
are
proposing
an
Aallowable­
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
Draft
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14,
2006
49
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.
Draft
Do
not
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February
14,
2006
50
As
discussed
above
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
above
in
the
second
step
for
determining
if
a
proposed
modification
is
subject
to
minor
NSR,
we
are
proposing
to
allow
Aproject
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
Asignificant@
(
that
is,
equal
to
or
greater
than
the
major
NSR
threshold),
the
second
step
in
the
process
is
Acontemporaneous
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
Amajor
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
and
controversial
aspect
of
the
major
NSR
program.
Draft
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not
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February
14,
2006
51
While
major
sources
are
accustomed
to
contemporaneous
netting
and
have
built
the
capacity
to
track
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
Draft
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not
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February
14,
2006
52
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
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
plans.
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,
as
discussed
below.

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
Draft
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not
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or
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February
14,
2006
53
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
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.
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
Draft
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not
cite,
copy,
or
distribute
February
14,
2006
54
sources.

9.
How
are
Asynthetic
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
Asynthetic
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.
8
However,
as
the
memo
8
John
S.
Seitz
and
Eric
V.
Schaeffer.
Policy
memo.
APotential
to
Emit
Transition
Policy
for
Part
71
Implementation
in
Indian
Country.@
March
7,
1999.
Draft
Do
not
cite,
copy,
or
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February
14,
2006
55
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.

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
an
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
Draft
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February
14,
2006
56
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
include
using
a
title
V
permit,

applying
for
and
obtaining
a
Notice
of
MACT
Approval,
and
Aany
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
Aother
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
Draft
Do
not
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February
14,
2006
57
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
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58
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
website.

$
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
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59
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
Anotice
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
websites,
as
well
as
mailed
or
emailed
to
concerned
parties,
will
provide
more
Aprominent
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
Aenforceable
emission
limitations@
and
other
control
measures,
means,
or
techniques
Y
as
well
as
schedules
and
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60
timetables
for
compliance.@
Section
110(
a)(
2)(
F)
additionally
requires
that
a
permitting
program
may
require
Athe
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
Aperiodic
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
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
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2006
61
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
Aprompt@
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
Ageneral
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
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62
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.
ASimilar
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
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2006
63
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
criteria
set
out
above.
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?
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2006
64
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
below,
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
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
above
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
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February
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2006
65
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.

As
noted
above,
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,
which
we
will
discuss
below.
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,
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February
14,
2006
66
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
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67
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
caseloads
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
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14,
2006
68
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
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
to
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).
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2006
69
Appendix
S
is
entitled
AEmission
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
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February
14,
2006
70
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)
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71
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.
9
9
For
example,
see
the
letter
from
Bill
Grantham,
National
Tribal
Environmental
Council,
to
docket
OAR­
2003­
0079,
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)
A...
sufficient
offsetting
emissions
reductions
have
been
obtained
...@
or
(
B)
A
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
HUD,
as
a
zone
to
which
economic
development
should
be
targeted,
that
emissions
of
such
pollutant
resulting
from
the
proposed
new
or
modified
major
stationary
source
will
not
cause
or
contribute
to
emissions
levels
which
exceed
the
allowance
for
such
pollutant
for
such
area
from
new
or
modified
major
stationary
sources
under
section
172(
c).@
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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
and
if
we
should
consider
any
other
criteria
for
identifying
parts
of
Indian
country
as
EDZs.

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.
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74
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
above
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
outlined
above
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
75
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
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
76
Aemission
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
Aany
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
EPAapproved
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
77
tribes
are
unable,
or
choose
not,
to
develop
a
nonattainment
NSR
program
in
a
TIP,
we
will
implement
the
program
where
necessary
or
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
78
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.
10
See
63
FR
7254­
7259,
59
FR
43958­
43960,

10
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)
(
AGenerally
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
79
Arizona
Public
Service
Co.
v.
EPA,
211
F.
3d
1280
(
D.
C.
Cir.
2000),
cert.
den.,
532
U.
S.

970
(
2001).

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
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
80
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
81
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
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
EPAapproved
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
82
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
AIndian
country@
when
there
is
no
approved
tribal
program);
Id.
at
80
(
noting
that
criminal
sanctions
are
to
be
levied
by
the
EPA,
Aconsistent
with
the
Federal
government=
s
general
authority
in
Indian
country@);
Id.

at
79
(
the
purpose
of
section
301(
d)
is
to
Aimprove
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.
Draft
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not
cite,
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or
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14,
2006
83
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.
11
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.

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
11
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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14,
2006
84
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
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14,
2006
85
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
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
above,
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
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not
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14,
2006
86
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
nonreservation
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
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February
14,
2006
87
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.
12
In
any
such
delegation,
we
retain
the
authority
to
object
to
the
issuance
of
any
permit
that
we
12
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,
in
place
of
the
complete
permit
application.
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February
14,
2006
88
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.

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
Apromulgate
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).
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14,
2006
89
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
Stateissued
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
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
Draft
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February
14,
2006
90
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
Asignificant
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
us
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)
Draft
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February
14,
2006
91
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
Draft
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or
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February
14,
2006
92
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.

For
comments
on
our
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,
we
have
established
a
public
docket
for
this
ICR
under
docket
ID
number
OAR­
2003­
0075.
The
public
docket
is
available
for
viewing
at
the
Air
Docket
in
the
EPA
Docket
Center
(
EPA/
DC),
EPA
West,
Room
B­

102,
1301
Constitution
Avenue,
Northwest,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,

excluding
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566­
1744.
An
electronic
version
of
the
public
docket
is
available
through
the
EPA
Dockets
(
EDOCKET)

at
http://
www.
epa.
gov/
edocket.
Use
EDOCKET
to
submit
or
view
public
comments,

access
the
index
listing
of
the
contents
of
the
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
Asearch,@
then
key
in
the
docket
ID
number
OAR­
2003­
0075).
Also,
you
can
send
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14,
2006
93
comments
to
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget,
725
17th
Street,
Northwest,
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
[
INSERT
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER],
a
comment
to
the
OMB
is
best
assured
of
having
full
effect
if
OMB
receives
it
by
[
INSERT
DATE
30
DAYS
AFTER
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].
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),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1966
(
SBREFA),
5
U.
S.
C.
601
et
seq
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,

Asmall
entity@
is
defined
as:
(
1)
a
small
business
whose
parent
company
has
fewer
than
500
employees;
(
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.
Draft
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February
14,
2006
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The
proposed
rule
potentially
affects
six
types
of
stationary
sources
in
Indian
Country:

$
New
and
modified
minor
sources
of
regulated
NSR
pollutants;

$
Sources
of
regulated
NSR
pollutants
choosing
to
accept
enforceable
emission
limitations
to
avoid
major
source
regulations
(
synthetic
minors);

$
Sources
of
HAP
choosing
to
accept
enforceable
emission
limitations
to
avoid
major
source
regulations
(
synthetic
minors);

$
Minor
modifications
to
major
sources
of
regulated
NSR
pollutants;

$
New
major
sources
of
regulated
NSR
pollutants
in
nonattainment
areas;

and
$
Major
modifications
to
major
sources
of
regulated
NSR
pollutants
in
nonattainment
areas.

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
Draft
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February
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2006
95
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
analysis13.
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
13
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.
Draft
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February
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2006
96
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.

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
2
below
summarizes
the
estimated
numbers
of
affected
facilities
and
small
businesses.

Table
2.
Projected
number
of
affected
small
businesses
and
estimated
costs
incurred
by
small
businesses,
2004
through
2010.

Projected
number
Estimated
Number
Estimated
Costs
Draft
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2006
97
Source
type
of
Sources
owned
by
small
businesses
of
Small
businesses
Incurred
by
Small
Businesses
($
million)
a
New
Minor
Sources
164
143
$
2.68
Modified
Minor
Sources
62
51
$
0.97
Minor
Modifications
to
Major
Sources
3
3
$
0.02
Total
229
197
$
3.62
a
Based
on
Year
2000
dollars.

To
conduct
our
screening
analysis
of
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
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
98
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
99
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
100
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
Ameaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.@
APolicies
that
have
federalism
implications@
is
defined
in
the
Executive
Order
to
include
regulations
that
have
Asubstantial
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
101
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
Ameaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.@

This
proposed
rule
does
have
tribal
implications.
In
undertaking
this
rulemaking
Draft
Do
not
cite,
copy,
or
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February
14,
2006
102
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
email,
meetings
with
the
EPA
Regional
Offices,
newsletters,

and
websites.
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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
103
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.

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
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
104
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
Asignificant
energy
action"@
as
defined
in
Executive
Order
13211,
AActions
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.
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
105
J.
National
Technology
Transfer
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
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).
Draft
Do
not
cite,
copy,
or
distribute
February
14,
2006
Review
of
New
Sources
and
Modifications
in
Indian
Country
Page
106
of
188
106
List
of
Subjects
40
CFR
Part
49
Administrative
practices
and
procedures,
Air
pollution
control,
Environmental
protection,
Indians,
Intergovernmental
relations,
Reporting
and
recordkeeping
requirements.

40
CFR
Part
51
Administrative
practices
and
procedures,
Air
pollution
control,
Environmental
protection,
Intergovernmental
relations.

Dated:

Stephen
L.
Johnson
Administrator.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
107
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
B
[
AMENDED]

1.
The
authority
citation
for
part
49
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401,
et
seq.

Subpart
C
B
[
AMENDED]

2.
Subpart
C
of
Part
49
is
amended
by
adding
an
undesignated
center
heading,
a
table
of
contents,
and
''
49.151
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?
(
b)
What
is
the
purpose
of
this
program?
(
c)
When
and
where
does
this
program
apply?
(
d)
What
general
provisions
apply
under
this
program?
(
e)
What
is
the
process
for
issuing
permits
under
this
program?

'
49.152
Definitions
'
49.153
Applicability
(
a)
Does
this
program
apply
to
me?
(
b)
How
do
I
determine
the
increase
in
allowable
emissions
from
a
physical
or
operational
change
at
my
source?
(
c)
What
emissions
units
and
activities
are
exempt
from
this
program?
Table
1
to
'
49.153.
Minor
NSR
thresholds
Flowchart
1
to
'
49.153.
New
Source
Review
Flowchart
Flowchart
2
to
'
49.153.
New
SS
in
an
Attainment
or
Unclassifiable
Area
Flowchart
3
to
'
49.153.
Modification
at
an
Existing
SS
in
an
Attainment
or
Unclassifiable
Area
Flowchart
4
to
'
49.153.
New
SS
in
a
Nonattainment
Area
Flowchart
5
to
'
49.153.
Modification
at
an
Existing
SS
in
a
Nonattainment
Area
'
49.154
Permit
application
requirements
(
a)
What
information
must
my
permit
application
contain?
(
b)
How
is
my
permit
application
determined
to
be
complete?
(
c)
How
will
the
reviewing
authority
determine
the
emission
limitations
that
will
be
required
in
my
permit?
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
108
(
d)
When
may
the
reviewing
authority
require
an
air
quality
impacts
analysis
(
AQIA)?

'
49.155
Permit
requirements
(
a)
What
information
must
my
permit
include?
(
b)
Can
my
permit
become
invalid?

'
49.156
General
permits
(
a)
What
is
a
general
permit?
(
b)
How
will
the
reviewing
authority
issue
general
permits?
(
c)
For
what
categories
will
general
permits
be
issued?
(
d)
What
should
the
general
permit
contain?
(
e)
How
is
my
source
issued
a
general
permit?

'
49.157
Public
participation
requirements
(
a)
What
permit
information
will
be
publicly
available?
(
b)
How
will
the
public
be
notified
and
participate?
(
c)
How
will
the
public
comment,
and
will
there
be
a
public
hearing?

'
49.158
Synthetic
minor
permits
(
a)
What
information
must
my
synthetic
minor
permit
application
contain?
(
b)
What
are
the
procedures
for
obtaining
a
synthetic
minor
permit?
(
c)
What
are
my
responsibilities
under
this
program
for
my
existing
synthetic
minor
source
or
synthetic
minor
HAP
source?

'
49.159
Final
permit
issuance
and
administrative
and
judicial
review
(
a)
How
will
final
action
occur,
and
when
will
my
permit
become
effective?
(
b)
For
how
long
will
the
reviewing
authority
retain
my
permit­
related
records?
(
c)
What
is
the
administrative
record
for
each
final
permit?
(
d)
Can
permit
decisions
be
appealed?
(
e)
Can
my
permit
be
reopened?
(
f)
What
is
an
administrative
permit
revision?

'
49.160
Administration
and
delegation
of
the
minor
NSR
program
in
Indian
country
(
a)
Who
administers
a
minor
NSR
program
in
Indian
country?
(
b)
Delegation
of
administration
of
the
Federal
minor
NSR
program
to
tribes
(
c)
Are
there
any
non­
delegable
elements
of
the
Federal
minor
NSR
program
in
Indian
country?
(
d)
How
will
EPA
transition
its
authority
to
an
approved
minor
NSR
program?

''
49.161­
49.165
[
Reserved]

'
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
Aprogram@)
consists
of
''
49.151
through
49.165.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
109
(
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
'
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
EPAapproved
minor
NSR
program,
beginning
on
[
in
final
rule
insert
date
60
days
after
promulgation].

(
2)
The
provisions
of
this
program
cease
to
apply
in
an
area
covered
by
an
EPAapproved
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
110
(
d)
What
general
provisions
apply
under
this
program?
The
following
general
provisions
apply
under
this
program:

(
1)
)
If
you14
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
'
49.156),
all
the
actions
listed
below
in
paragraphs
(
e)(
1)
through
(
8)
of
this
section
14
In
this
regulation,
the
term
Ayou@
refers
to
owners
and
operators
of
sources
of
air
pollution.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
111
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
'
49.154(
a).

(
2)
The
reviewing
authority
determines
completeness
of
the
permit
application
as
provided
in
'
49.154(
b).

(
3)
The
reviewing
authority
determines
the
appropriate
emission
limitations
for
your
affected
emissions
units
under
'
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
'
49.155(
a).

(
7)
The
reviewing
authority
provides
for
public
participation
according
to
the
requirements
of
'
49.157.

(
8)
The
reviewing
authority
either
issues
a
final
permit
that
meets
the
requirements
of
'
49.155(
a),
or
denies
the
permit
and
provides
reasons
for
the
denial.

'
49.152
Definitions.

(
a)
For
sources
of
regulated
NSR
pollutants
in
nonattainment
areas,
the
definitions
in
'
49.167
apply
to
the
extent
that
they
are
used
in
this
program
(
except
for
terms
defined
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
112
below
in
paragraph
(
d)
of
this
section).

(
b)
For
sources
of
regulated
NSR
pollutants
in
attainment
or
unclassifiable
areas,

the
definitions
in
'
52.21
of
this
chapter
apply
to
the
extent
that
they
are
used
in
this
program
(
except
for
terms
defined
below
in
paragraph
(
d)
of
this
section).

(
c)
For
sources
of
HAP,
the
definitions
in
'
63.2
of
this
chapter
apply
to
the
extent
that
they
are
used
in
this
program
(
except
for
terms
defined
below
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
Aallowable
emissions@
as
defined
in
'
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
maintenance
of
a
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
113
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
Alegally
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
'
1.25(
e)
of
this
chapter.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
114
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;
15
(
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
'
49.167
or
'
52.21
of
this
chapter,
as
applicable.

Minor
NSR
threshold
means
any
of
the
applicability
cutoffs
for
this
program
listed
in
Table
1
of
'
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
'
49.155
and
that
is
15
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
115
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
'
49.167
or
'
52.21
of
this
chapter,
as
applicable.
The
term
Aminor
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
federallyenforceable
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
Draft
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quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
116
have
on
emissions
is
federally
enforceable
or
enforceable
as
a
practical
matter.
Secondary
emissions,
as
defined
at
'
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
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
'
49.167
or
'
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
Asynthetic
minor
source@

applies
independently
for
each
regulated
NSR
pollutant
that
the
source
has
the
potential
to
emit.

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
'
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.

'
49.153
Applicability.

(
a)
Does
this
program
apply
to
me?
The
requirements
of
this
program
apply
to
you
as
set
out
below
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
Draft
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not
quote,
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copy,
or
distribute
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the
agency.
February
14,
2006
117
that
would
be
emitted
by
your
new
or
modified
source.
For
each
such
pollutant,

determine
applicability
as
set
out
below
in
the
relevant
paragraph
(
a)(
1)(
i)
or
(
ii)
of
this
section.
Flowcharts
1
through
5
of
this
section
are
provided
as
aids
for
making
these
applicability
determinations.

(
i)
New
source.
Follow
the
steps
below
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
'
52.21
of
this
chapter,
under
the
Federal
major
NSR
program
for
nonattainment
areas
in
Indian
country
at
''
49.166
through
49.75,
or
under
a
program
approved
by
the
Administrator
pursuant
to
'
51.165
or
'
51.166
of
this
chapter).
If
not,
go
to
Step
2
(
paragraph
(
a)(
1)(
i)(
B)
of
this
section).

(
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
'
49.152)
using
the
procedures
in
paragraph
(
b)
of
this
section
to
determine
the
increase
in
allowable
emissions.
If
the
change
is
a
modification,
follow
the
steps
below
to
determine
applicability
for
each
regulated
NSR
pollutant.
Flowchart
3
Draft
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not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
118
of
this
section
addresses
attainment
and
unclassifiable
pollutants;
Flowchart
5
of
this
section
addresses
nonattainment
pollutants.
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
Draft
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not
quote,
cite,
copy,
or
distribute
outside
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agency.
February
14,
2006
119
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
'
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
'
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
'
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
'
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
'
63.43
of
this
chapter.)
If
you
elect
this
option,
you
still
must
comply
with
the
requirements
of
'
63.43
of
this
chapter
that
apply
to
all
case­
by
Draft
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or
distribute
outside
the
agency.
February
14,
2006
120
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
less
than
its
pre­
change
potential
to
emit.
Draft
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February
14,
2006
121
(
c)
What
emissions
units
and
activities
are
exempt
from
this
program?

This
program
does
not
apply
to
the
emissions
units
and
activities
at
a
source
that
are
listed
below
in
paragraphs
(
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.
Draft
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not
quote,
cite,
copy,
or
distribute
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the
agency.
February
14,
2006
122
Table
1
to
'
49.153.
Minor
NSR
thresholds.
a
Minor
NSR
thresholds
for
nonattainment
areas
(
tpy)

Regulated
NSR
pollutant
Extreme
ozone
areas
Other
areas
Minor
NSR
thresholds
for
attainment
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
nonmethane
organic
compounds)
NA
NA
10
a
If
part
of
a
tribe=
s
area
of
Indian
country
is
designated
as
attainment
and
another
part
as
nonattainment,
the
applicable
threshold
for
a
proposed
source
or
modification
is
determined
based
on
the
designation
where
the
source
would
be
located.
If
the
source
straddles
the
two
areas,
the
more
stringent
thresholds
would
apply.
Draft
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not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
123
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
124
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
125
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
126
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
127
Draft
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not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
128
'
49.154
Permit
application
requirements.

This
section
applies
to
you
if
you
are
subject
to
this
program
under
'
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
'
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
'
49.153(
a)(
4)).

See
'
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
'
49.153(
c).

(
iii)
The
permit
application
for
a
modification
need
only
include
information
on
the
affected
emissions
units
as
defined
in
'
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
below
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
129
(
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
'
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
130
(
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,
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
131
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
132
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
'
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
'
51.100(
ii)(
1)
or
(
2)

of
this
chapter,
it
must
notify
the
public
of
the
availability
of
the
demonstration
study
and
must
provide
opportunity
for
a
public
hearing
according
to
the
requirements
of
'
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
133
(
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.

'
49.155
Permit
requirements.

This
section
applies
to
your
permit
if
you
are
subject
to
this
program
under
'
49.153(
a)(
1)
for
construction
of
new
minor
sources
or
modifications
at
existing
sources,

unless
you
applied
for
a
general
permit
under
'
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
'
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
'
49.154(
c)
for
each
affected
emissions
unit.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
134
In
addition,
the
permit
must
address
limits
on
annual
allowable
emissions
as
set
out
below
in
''
49.155(
a)(
2)(
i)
and
(
ii).

(
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
135
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
below
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
136
(
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
Aprompt@
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
137
requirements
in
paragraphs
(
a)(
7)(
i)
through
(
vii)
of
this
section.

(
i)
You,
as
the
permittee,
must
comply
with
all
conditions
of
your
permit,

including
emission
limitations
that
apply
to
the
affected
emissions
units
at
your
source.

Noncompliance
with
any
permit
term
or
condition
is
a
violation
of
the
permit
and
may
constitute
a
violation
of
the
Act
and
is
grounds
for
enforcement
action
and
for
a
permit
termination
or
revocation.

(
ii)
Your
permitted
source
must
not
cause
or
contribute
to
a
NAAQS
violation
or,

in
an
attainment
area,
must
not
cause
or
contribute
to
a
PSD
increment
violation.

(
iii)
It
is
not
a
defense
for
you,
as
the
permittee,
in
an
enforcement
action
that
it
would
have
been
necessary
to
halt
or
reduce
the
permitted
activity
in
order
to
maintain
compliance
with
the
conditions
of
this
permit.

(
iv)
The
permit
may
be
revised,
reopened,
revoked
and
reissued,
or
terminated
for
cause.
The
filing
of
a
request
by
you,
as
the
permittee,
for
a
permit
revision,
revocation
and
re­
issuance,
or
termination,
or
of
a
notification
of
planned
changes
or
anticipated
noncompliance
does
not
stay
any
permit
condition.

(
v)
The
permit
does
not
convey
any
property
rights
of
any
sort
or
any
exclusive
privilege.

(
vi)
You,
as
the
permittee,
shall
furnish
to
the
reviewing
authority,
within
a
reasonable
time,
any
information
that
the
reviewing
authority
may
request
in
writing
to
determine
whether
cause
exists
for
revising,
revoking
and
reissuing,
or
terminating
the
permit
or
to
determine
compliance
with
the
permit.
For
any
such
information
claimed
to
be
confidential,
you
must
also
submit
a
claim
of
confidentiality
in
accordance
with
part
2,
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
138
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
139
construction
project;
you
must
commence
construction
of
each
such
phase
within
18
months
of
the
projected
and
approved
commencement
date.

'
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.
ASimilar
in
nature@
refers
to
size,
processes,
and
operating
conditions.

(
2)
A
general
permit
must
be
issued
according
to
the
requirements
for
public
participation
in
'
49.157
and
the
requirements
for
final
permit
issuance
and
administrative
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
140
and
judicial
review
in
'
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,
some
common
categories
of
emissions
units
or
sources
for
which
general
permits
may
be
developed
include
those
listed
below:

(
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
141
(
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)
Pigging
stations
that
are
not
a
part
of
a
larger
source.

(
xx)
Compressor
engines.

(
d)
What
should
the
general
permit
contain?
The
general
permit
must
contain
the
permit
elements
listed
in
'
49.155(
a).
In
addition,
the
general
permit
must
contain
the
information
listed
below
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:

(
i)
The
name
and
mailing
address
of
the
reviewing
authority
to
whom
you
must
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
142
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
'
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
'
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
143
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
'
49.154.

'
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
below
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
144
(
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
below
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
below
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
website.

(
C)
The
reviewing
authority
may
publish
the
notice
in
a
newspaper
of
general
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
145
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
146
reviewing
authority=
s
office
from
whom
additional
information
may
be
obtained;

(
viii)
Locations
and
times
of
availability
of
the
information
(
listed
above
in
paragraph
(
a)
of
this
section)
for
public
inspection;
and
(
ix)
A
statement
that
any
person
may
submit
written
comments,
a
written
request
for
a
public
hearing,
or
both,
on
the
draft
permit
action.
The
reviewing
authority
must
provide
a
period
of
at
least
30
days
from
the
date
of
the
public
notice
for
comments,
and
for
requests
for
a
public
hearing.

(
c)
How
will
the
public
comment,
and
will
there
be
a
public
hearing?

(
1)
Any
person
may
submit
written
comments
on
the
draft
permit
and
may
request
a
public
hearing.
These
comments
must
raise
any
reasonably
ascertainable
issue
with
supporting
arguments
by
the
close
of
the
public
comment
period
(
including
any
public
hearing).
The
reviewing
authority
must
consider
all
comments
in
making
the
final
decision.
The
reviewing
authority
must
keep
a
record
of
the
commenters
and
of
the
issues
raised
during
the
public
participation
process,
and
such
records
must
be
available
to
the
public.

(
2)
The
reviewing
authority
must
extend
the
public
comment
period
under
paragraph
(
b)
of
this
section
to
the
close
of
any
public
hearing
under
this
section.
The
hearing
officer
may
also
extend
the
comment
period
by
so
stating
at
the
hearing.

(
3)
A
request
for
a
public
hearing
must
be
in
writing
and
must
state
the
nature
of
the
issues
proposed
to
be
raised
at
the
hearing.

(
4)
The
reviewing
authority
must
hold
a
hearing
whenever
there
is,
on
the
basis
of
requests,
a
significant
degree
of
public
interest
in
a
draft
permit.
The
reviewing
authority
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
147
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.

'
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
''
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
148
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
149
(
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
'
49.157.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
150
(
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
'
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
set
out
below:

(
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
[
in
final
rule
insert
date
1
year
and
60
days
after
promulgation],
and
you
must
respond
in
a
timely
manner
to
any
requests
from
the
reviewing
authority
for
additional
information.

(
ii)
Provided
that
you
submit
your
application
and
any
requested
additional
information
as
indicated
above
in
paragraph
(
c)(
2)(
i)
of
this
section,
your
source
will
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
151
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
above
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.

'
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
152
(
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
153
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
154
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
'
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)
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
155
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)
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
156
(
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
157
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
158
(
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.

'
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
''
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
159
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
below
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
'
49.6
for
treatment
in
the
same
manner
as
a
State.

(
1)
Information
to
be
included
in
the
Administrative
Delegation
Request.
In
order
to
be
delegated
authority
to
assist
EPA
with
administration
of
this
FIP
permit
program
for
sources,
the
tribal
agency
must
submit
a
request
to
the
Administrator
that:

(
i)
Identifies
the
specific
provisions
for
which
delegation
is
requested;

(
ii)
Identifies
the
Indian
Reservation
or
other
areas
of
Indian
country
for
which
delegation
is
requested;

(
iii)
Includes
a
statement
by
the
applicant=
s
legal
counsel
(
or
equivalent
official)

that
includes
the
following
information:

(
A)
A
statement
that
the
applicant
is
a
tribe
recognized
by
the
Secretary
of
the
Interior;

(
B)
A
descriptive
statement
that
is
consistent
with
the
type
of
information
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
160
described
in
'
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
161
(
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
162
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
163
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.

''
49.161­
49.165
[
Reserved]

3.
Subpart
C
of
Part
49
is
amended
by
adding
an
undesignated
center
heading,
a
table
of
contents,
and
''
49.166
through
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?
(
b)
What
is
the
purpose
of
this
program?
(
c)
When
and
where
does
this
program
apply?
(
d)
What
general
provisions
apply
under
this
program?

'
49.167
Definitions
'
49.168
Does
this
program
apply
to
me?

'
49.169
Permit
approval
criteria
(
a)
What
are
the
general
criteria
for
permit
approval?
(
b)
What
are
the
program­
specific
criteria
for
permit
approval?

'
49.170
Emission
offset
requirement
exemption
(
a)
Section
173(
a)(
1)(
B)
Economic
Development
Zone
(
EDZ)
option
(
b)
Appendix
S,
paragraph
VI
option
'
49.171
Public
participation
requirements
(
a)
What
permit
information
will
be
publicly
available?
(
b)
How
will
the
public
be
notified
and
participate?
(
c)
How
will
the
public
comment,
and
will
there
be
a
public
hearing?

'
49.172
Final
permit
issuance
and
administrative
and
judicial
review
(
a)
How
will
final
action
occur,
and
when
will
my
permit
become
effective?
(
b)
For
how
long
will
the
reviewing
authority
retain
my
permit­
related
records?
(
c)
What
is
the
administrative
record
for
each
final
permit?
(
d)
Can
permit
decisions
be
appealed?
(
e)
Can
my
permit
be
reopened?
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
164
'
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?
(
b)
Delegation
of
administration
of
the
Federal
nonattainment
major
NSR
program
to
tribes
(
c)
Are
there
any
non­
delegable
elements
of
the
Federal
nonattainment
major
NSR
program
in
Indian
country?
(
d)
How
will
EPA
transition
its
authority
to
an
approved
nonattainment
major
NSR
program?

''
49.174­
49.175
[
Reserved]

'
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
Aprogram@)
consists
of
''
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
'
49.167)
will
use
to
approve
permits
under
this
program.
Note
that
for
the
purposes
of
this
program,
the
term
ASIP@
as
used
in
appendix
S
means
any
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
165
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
'
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
[
in
final
rule
insert
date
60
days
after
promulgation].
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
EPAapproved
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
'
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
under
this
program:
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
166
(
1)
If
you16
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.

'
49.167
Definitions.

For
the
purposes
of
this
program,
the
definitions
in
paragraph
II.
A
of
appendix
S
apply,
unless
otherwise
stated.
The
following
definitions
also
apply
to
this
program:

Allowable
emissions
means
Aallowable
emissions@
as
defined
in
paragraph
II.
A.
11
of
appendix
S,
except
that
the
allowable
emissions
for
any
emissions
unit
are
calculated
considering
any
emission
limitations
that
are
enforceable
as
a
practical
matter
on
the
16
In
this
regulation,
the
term
Ayou@
refers
to
owners
and
operators
of
stationary
sources
of
air
pollution
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
167
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
Alegally
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
168
Environmental
Appeals
Board
means
the
Board
within
the
EPA
described
in
'
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;
17
(
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
17
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
169
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
'
49.173.

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,
but
that
has
taken
a
restriction
such
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
Asynthetic
minor
source@
applies
independently
for
each
regulated
NSR
pollutant
that
the
stationary
source
has
the
potential
to
emit
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
'
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.

'
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)
of
the
nonattainment
pollutant.

(
2)
If
you
propose
to
construct
a
major
modification
at
your
existing
major
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
170
stationary
source
(
as
defined
in
paragraph
II.
A.
5
of
appendix
S),
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
[
in
final
rule
insert
date
1
year
and
60
days
after
promulgation].
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
''
49.51
to
49.165
or
other
EPA­
approved
minor
NSR
program,
as
applicable.

'
49.169
Permit
approval
criteria.

(
a)
What
are
the
general
criteria
for
permit
approval?
The
general
review
criteria
for
permits
are
provided
in
paragraph
II.
B
of
appendix
S.
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
EPAapproved
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
171
major
modifications
locating
in
nonattainment
areas
are
given
in
paragraph
IV.
A
of
appendix
S.
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.

'
49.170
Emission
offset
requirement
exemption.

An
Indian
governing
body
may
seek
an
exemption
from
the
emission
offset
requirement
[
see
'
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,
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
172
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,

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
above
in
paragraphs
(
b)(
1)
and
(
2)
of
this
section
are
satisfied
and
such
determination
is
published
in
the
Federal
Register.

'
49.171
Public
participation
requirements.

(
a)
What
permit
information
will
be
publicly
available?
With
the
exception
of
any
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
173
confidential
information
as
defined
in
part
2,
subpart
B
of
this
chapter,
the
reviewing
authority
must
make
available
for
public
inspection
the
documents
listed
below
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
below
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
174
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
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
below
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
website.

(
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:
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
175
(
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
above
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
176
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.

'
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
177
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;
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
178
(
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
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
179
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:
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
180
(
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
'
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
181
(
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.
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
182
(
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
183
the
permit.

'
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
'
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
184
EPA
with
administration
of
portions
of
this
Federal
nonattainment
major
NSR
program,
in
accordance
with
the
provisions
below
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
'
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
'
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
185
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
186
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
187
authority,
the
legal
statement
submitted
by
the
tribal
agency
pursuant
to
paragraph
(
b)(
1)

of
this
section
must
certify
that
no
applicable
provision
of
tribal
law
requires
that
a
major
NSR
permit
be
issued
after
a
certain
time
if
the
delegate
tribal
agency
has
failed
to
take
action
on
the
application
(
or
includes
any
other
similar
provision
providing
for
default
issuance
of
a
permit).

(
c)
Are
there
any
non­
delegable
elements
of
the
Federal
nonattainment
major
NSR
program
in
Indian
country?
The
following
authorities
cannot
be
delegated
outside
of
EPA:

(
1)
The
Administrator's
authority
to
object
to
the
issuance
of
a
major
NSR
permit.

(
2)
The
Administrator=
s
authority
to
enforce,
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
Draft
Do
not
quote,
cite,
copy,
or
distribute
outside
the
agency.
February
14,
2006
188
are
issued
under
the
approved
implementation
plan
program.

''
49.174­
49.175
[
Reserved]

PART
51
B
[
AMENDED]

1.
The
authority
citation
for
part
51
continues
to
read
as
follows:

Authority:
23
U.
S.
C.
101;
42
U.
S.
C.
7401B7671
q.

Appendix
S
to
Part
51
B
[
Amended]

2.
Appendix
S
to
Part
51
is
amended
by
revising
paragraph
II.
B
to
read
as
follows:

Appendix
S
to
Part
51
B
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
modification18
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.
*
*

*

18
Hereafter
the
term
source
will
be
used
to
denote
both
any
source
and
any
modification.
