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Response to Comments 



                                       























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    Review of New Sources and Modifications in Indian Country - Amendments

                             Response to Comments







                            New Source Review Group
                          Air Quality Policy Division
                  Office of Air Quality Policy and Standards
                     U. S. Environmental Protection Agency
                       Research Triangle Park, NC  27711
                                       
                                       
                                       
                                  April 2014
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                               TABLE OF CONTENTS

LIST OF ACRONYMS AND ABBREVIATIONS	iii
LIST OF UNITS	iii
1	INTRODUCTION	1
1.1	Background	1
1.2	The Commenters	1
2	Summarized Comments on the Proposed Amendments and Responses	3
2.1	Minor NSR Rule Overview	3
2.2	Units/activities Exempted from Permitting	3
2.2.1	Exemption for Emergency Generators	4
2.2.2	Exemption for Boilers and Furnaces	6
2.2.3	Proposed exemption for Forestry/Silvicultural Activities	7
2.3	Suggestions for Other Exemptions	8
2.3.1	Other Categories Proposed for Exemption	9
2.4	Construction Related Terms	10
2.4.1	General Comments on Construction Terms	10
2.4.2	Definition of Begin Construction	10
2.4.3	Definition of Commence Construction	10
2.5	Source Relocation	11
2.5.1	30-Day Advance Notification Provision	11
2.5.2	Permitting Issues related to Source Relocation	12
2.6	Other Comments on Permitting	14
2.7	Miscellaneous Comments	15
2.7.1	Rulemaking Process	15
2.7.2	General Permits	15
2.7.3	Environmental Appeals Board	16


                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
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LIST OF ACRONYMS AND ABBREVIATIONS

Act
Clean Air Act (42 U.S.C. 7401 - 7671q)
BACT
Best available control technology 
CAA
Clean Air Act (42 U.S.C. 7401 - 7671q)
CFR
Code of Federal Regulations
CO
Carbon monoxide
EAB
Environmental Appeals Board
EPA
U. S. Environmental Protection Agency
FARR
Federal Air Rule for Indian Reservations
FBIR
Fort Berthold Indian Reservation
FIP
Federal Implementation Plan 
FR
Federal Register
NAAQS
National Ambient Air Quality Standards
NOx
Nitrogen oxides
NSPS
New Source Performance Standard
NSR
New Source Review
PSD
Prevention of Significant Deterioration
PTE
Potential to emit
SCAQMD
South Coast Air Quality Management District
SIP
State Implementation Plan
U.S.C.
United States Code

LIST OF UNITS


ppm
Parts per million
tpy
Tons per year




























                                       
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INTRODUCTION	
Background 
     
	On July 1, 2011, the U. S. Environmental Protection Agency (EPA or we) finalized a rulemaking titled Review of New Sources and Modifications in Indian Country, which created a Federal Implementation Plan (FIP) for Indian country. The FIP included two basic air quality regulations for the protection of communities in Indian country. The two rules are elements of the New Source Review (NSR) program. The first rule applies to minor stationary sources (minor sources) and minor modifications at major stationary sources (major sources) in Indian country (Indian country minor NSR rule). The second rule applies to all new major sources and major modifications located in areas of Indian country that are designated as not attaining the National Ambient Air Quality Standards (NAAQS) (nonattainment major NSR rule). On June 4, 2013, proposed amendments to the first rule were published in the Federal Register.  The minor NSR rule is hereinafter referred to as the "Indian country minor NSR rule". 

	We proposed the following amendments:

	1) To reconsider the 30 day advance notification provision for true minor sources that relocate.

	2) To add seven activities/categories to the list exempt from permitting.

	3) To clarify terms related to the construction of a new source/emissions unit and related permitting requirements by adding definitions for "commence construction" and "begin construction." 

	We intend that these changes will make the Indian country minor NSR rule clearer and easier to implement for reviewing authorities and sources within Indian country. This document presents a summary of the public comments on the proposed amendments, along with our responses to those comments. The document supports the final rule amendments for the Indian country minor NSR rule.
The Commenters  

     The public comment period ended on August 4, 2013. We received seven sets of comments on the proposed amendments. The commenters can be broken down by general type as follows: 3 tribal and tribal association commenters, 1 state/local air agency, 2 industry and industry association commenters and 1 private citizen. The commenters are listed in Table 1 below.


 
                         Table 1.  List of Commenters
                                       
                                DOCKET ID [a] 
                              COMMENT DESCRIPTION
                               TYPE OF COMMENTER
                                     0178
Comment submitted by Luke Martone 
Private Citizen 
                                     0180
Comment submitted by James M. Olguin, Vice-Chairman, Southern Ute Indian Tribal Council 
Tribe 
                                     0181
Comment submitted by Barbara Baird, Chief Deputy Counsel, South Coast Air Quality Management District 
State/Local Air Agency
                                     0182
Comment submitted by Matthew Todd, Senior Policy Advisor, American Petroleum Institute 
Industry Association
                                     0183
Comment submitted by Stephen B. Etsitty, Executive Director, Navajo Nation Environmental Protection Agency 
Tribe
                                     0184
Comment submitted by Julie Simpson, Air Quality Program Manager, Nez Perce Tribe
Tribe
                                     0186
Comment submitted by Jennifer Biever, on behalf of Cameron Cuch, V.P. of Government Affairs, Crescent Point Energy 
Industry 
                                     0187
Summary of 9/5/13 call between the South Coast Air Quality Management District and EPA on proposed exemptions 
State/Local Air Agency
                                     0188
Summary of 10/23/13 teleconference between API and the EPA on source relocation
Industry Association
a  Docket ID identifies commenters found in Docket No. EPA-HQ-OAR-2003-0076 by document number.

Summarized Comments on the Proposed Amendments and Responses
Minor NSR Rule Overview

	The Indian country minor NSR rule applies to new and modified minor sources and to minor modifications at major sources. New minor sources with a PTE equal to or greater than the minor NSR thresholds, or modifications at existing minor sources with allowable emissions increases equal to or greater than the minor NSR thresholds, must apply for and obtain a minor NSR permit prior to beginning construction of the new source or modification. 

	The effective date of the Indian country minor NSR rule was August 30, 2011. To facilitate the effective implementation of the Tribal minor NSR program, some components of the rule were phased in. Generally, the applicability of the preconstruction permitting rules to new synthetic minor sources began on the rule's effective date, August 30, 2011; for new or modified true minor sources, the rules generally apply beginning September 2, 2014. In addition, existing true minor sources were required to register with their reviewing authority by March 1, 2013. 

Units/activities Exempted from Permitting

Comment:

	One private citizen (0178) supports the proposed exemptions for units and activities that are exempted under the Federal Air Rule for Indian Reservations (FARR) as well as proposed exemptions for other classifications. One tribal commenter (0180) supports the changes as they appear to reduce regulatory burden for minor sources without significantly reducing environmental protection.

Response:

	We appreciate the support for the proposed exemptions. We have made some revisions to 
the proposed exemption categories as discussed below.
	
 Comment:
	
	One state/local commenter (0181) appreciates that additional exemptions may be needed, however they expressed an overall concern (that applies broadly to several of the exemption categories proposed) that the exemptions are inconsistent with their region's air quality rules. The commenter believes that exempting these sources from permitting will provide a competitive advantage to sources in Indian country compared to sources on non-Tribal lands. 

	The commenter cites a specific concern with the competitive advantage issue in light of the EPA's recent proposed "detachment" of Morongo Indian country from California's South Coast Air Basin and the lowering of the classification of the Morongo reservation from Extreme to Serious ozone nonattainment (Note: the proposed reclassification identified by the commenter was finalized on September 23, 2013 (78 FR 58189). The commenter states that the Morongo lands are located directly upwind from the Coachella Valley, a Severe ozone nonattainment area, and therefore the commenter is concerned that exempting certain sources from permitting in Indian country will result in negative air quality impacts thereby delaying attainment of the NAAQS in downwind airsheds for both non-tribal lands and certain tribal areas. 

	The commenter urges EPA to adopt requirements specifically for areas of Indian country that are classified as either Severe or Extreme ozone nonattainment areas, just as the EPA has adopted lower minor NSR emission thresholds in the existing rule for nonattainment areas as opposed to attainment areas. 

Response:

	Prior to the August 30, 2011 effective date of the Indian country minor NSR rule, codified in 40 CFR, part 49, promulgated July 1, 2011 (76 FR 38748), there were no emission reduction requirements for new minor sources within areas of Indian country such as the Morongo Reservation. We point this out to highlight that the Indian country minor NSR rule has already reduced any potential competitive advantage cited by the commenter by requiring pre-construction permits on sources (with emissions above permitting thresholds) where prior to August 30, 2011, there were no such requirements. 
  	
	As discussed in the July 1, 2011 final rule, while section 182(e)(2) of the Act specifies an emissions increase threshold of "0" tons/year (tpy) for existing major sources in Extreme ozone nonattainment areas, we do not believe these thresholds are appropriate for minor sources and operators within Indian country. Nonetheless, we are mindful of the need to protect the NAAQS and, as discussed in comment responses related to exemptions for emergency generators and boilers/furnaces in sections 2.2.1 and 2.2.2 of this document, respectively, we have made some revisions to the exemption criteria in the final rule amendments.

Exemption for Emergency Generators

Comments:

	One private citizen (0179) recommends that EPA maintain the exemption sizes of 500 horsepower (HP) maximum manufacturer site-rated HP in nonattainment areas, and 1,000 HP in attainment areas for residential and healthcare related purposes only, but lower the exemption sizes to 400 HP and 800 HP for non-residential and non-healthcare related purposes, respectively. The commenter did not provide any additional details regarding this recommendation.
	
Response:

	Since the commenter did not provide any rationale for lowering the exemption sizes for emergency generators used for non-residential or non-healthcare related purposes, we were unable to evaluate the details of this recommendation. Therefore, no changes were made in response to this comment. 
      
  Comment:

	One tribal commenter (0183) supports the emergency generator exemption. The commenter notes that the emissions at the proposed sizes are well below the minor source emissions thresholds and states that exempting the identified units from permitting will save resources by eliminating the need for applicants and permitting agencies to calculate potential to emit. 

Response:

      We appreciate support for the proposed exemption.

Comment:

	One state/local commenter (0181) expressed concern with the proposed exemption threshold for emergency generators under 500 horsepower (HP) in nonattainment areas and asserted it would create an imbalance between tribal lands and the surrounding non-tribal areas classified as Severe or Extreme nonattainment for ozone. Air quality regulations that apply to sources within the commenter's jurisdiction specify emission limits for NOx and particulate matter (PM) for all engines over 50 HP. The commenter believes engines on tribal lands, which would be exempt from permitting under the EPA's proposed criteria, would emit NOx in amounts above the 0.8 tpy and 1.8 tpy levels that new and older model engines, respectively, must meet under the state air district's Best Available Control Technology (BACT) requirements. The commenter states that these types of engines are controllable and contribute to ozone and therefore should be subject to NSR permitting. 

	The commenter also cited a report from the World Health Organization that declared diesel PM to be a human carcinogen. The commenter states that emissions from three standby generators (approximately 900 HP in total) can create cancer risks exceeding 25 in a million, even if operated only 50 hours/year.  The commenter elaborates that a 500 HP emergency generator, operating for 500 hours/year, would create even higher risk (than the engines totaling 900 HP in the earlier example) due to its longer operating period, and therefore PM should be controlled from these units and they should be subject to NSR since the EPA's source-specific rules are not applicable to these units.

Response:

      One of our objectives for proposing activities/units for exemption was to reduce burden on source owners. We believe that emergency generators with horsepower ratings below the exemption sizes will predominately have emissions below the minor source permitting thresholds and therefore the proposed exemption would potentially save source owners the effort of estimating their emissions solely to demonstrate that emissions are well below the permitting threshold.
      
      However, we also recognize the commenter's concerns regarding the impacts of sources to portions of the South Coast Air Basin that are classified Severe or Extreme for ozone. We are required by title I of the Act to ensure attainment and maintenance of the NAAQS. Accordingly, after considering the comment, we believe that an exemption for emergency generators is not appropriate in ozone nonattainment areas classified Severe or Extreme, and we have revised exemption language in the final rule accordingly. As finalized, the total site-rated 500 HP exemption for emergency generators in ozone nonattainment areas will only apply in ozone nonattainment areas classified Serious or lower. The site-rated 1,000 HP exemption proposed for attainment areas remains unchanged in this final rule.  
Exemption for Boilers and Furnaces

Comment:

	One tribal commenter (0183) supports the proposed exemption category for boilers and furnaces, but is not sure any such units are located on their tribal lands. The commenter believes the exemptions are reasonable and will save resources by eliminating the need for applicants and permitting agencies to calculate PTE.

Response:

	We appreciate support for the proposed exemption.

Comment:

	One state/local commenter (0181) believes that boilers and/or furnaces below the proposed heat input rates should not be exempt from minor NSR permitting in ozone nonattainment areas classified as Severe or higher because it would provide a competitive advance to sources locating in Indian country. The commenter explains that the SCAQMD air quality rules require controls for NOx at levels below the proposed exemption rates of 5 million Btu/hr for nonattainment areas; 10 million Btu/hr for attainment areas. The commenter refers to the SCAQMD's NOx emission limits of 9 ppm for natural gas boilers having heat rates between 2 million Btu/hr and 5 million Btu/hr to be met by January 1, 2012. In addition to that requirement, natural gas industrial furnaces must meet an emissions limit of 30 ppm (Rule 1147) and NOx controls for fan-type central furnaces under 175,000 Btu/hr are required as well (Rule 1111). The commenter states that the permitting exemption under Rule 219(b) (2) applies only to boilers and furnaces under 2 million Btu/hr.

Response:

	We believe the commenter raises a valid concern regarding the potential impacts to portions of the South Coast Air Basin classified as Severe or Extreme ozone nonattainment areas that are adjacent to/downwind from Indian country. In certain cases the proposed exemption could make it more difficult for downwind non- Indian country areas to achieve attainment of the NAAQS, which would be contrary to the requirements of title I of the Act. To minimize the likelihood of this occurring in the areas with higher ozone nonattainment classifications, we are finalizing a lower heat input rate (than the proposed 5 million Btu/hr which would have applied in all nonattainment areas) for Severe and Extreme ozone nonattainment areas. The heat input rate exemption for nonattainment areas in the final rule is specified as follows: for nonattainment areas classified Serious and lower, the exemption rate is heat input rates at or below 5 million Btu/hr; for ozone nonattainment areas classified as Severe or Extreme, the exemption level is a heat input rate at or below 2 million Btu/hr. The heat input rate exemption proposed for attainment areas remains unchanged.

Proposed exemption for Forestry/Silvicultural Activities

Comment:

	One tribal commenter (0183) supports this proposed exemption. The commenter states the view that emissions from road construction and maintenance are of particular concern (note: while the commenter didn't specify, we assume the comment is referring to activities related to the proposed exemption category), "such emissions do not rise to a level requiring their removal from the list of proposed exemptions." The commenter further states that permitting requirements for road construction and maintenance will impact timely repair and maintenance of roads on the commenter's lands. The commenter also mentions that open burning, a potential source of emissions on their lands, is regulated by the Bureau of Indian Affairs. Therefore the commenter believes the proposed exemption for forestry and silvicultural activities is reasonable and will save permitting resources.

	One state/local commenter (0181) requests that the proposed exemption category be modified or deleted. The commenter voices concern with significant emissions from road construction and maintenance, and logging activities. The commenter also expresses concern with the potential for multiple pieces of equipment to collectively exceed the minor source thresholds, such as engines associated with wood chippers, a consideration EPA noted in identifying units/activities to propose for exemption (78 FR 33270). The commenter urges the EPA to delete the proposed exemption and instead rely on the attainment and nonattainment NOx thresholds (10 tpy and 5 tpy, respectively) to determine when a permit must be obtained. As an alternative, the commenter suggests that specific types of equipment could be exempted instead of the entire category if the EPA determines them to have de minimis emissions.

Response:

	One reason we proposed the forestry/silvicultural category for exemption was to be consistent with the exemptions list in the FARR, which applies in Indian country in the Northwest. A second reason we proposed this category for exemption was that we believed all emissions within the category would be de minimis in nature. Therefore, subjecting them to NSR permitting would provide little environmental benefit. Both commenters express some concern with the emissions associated with forestry and silvicultural activities, and one commenter identifies a situation where emissions could exceed de minimis levels. 

	Upon considering available information, we have concluded that a category-wide exemption is not the most appropriate approach to managing emissions for forestry and silvicultural activities. This conclusion is based on our recognizing the broad range of activities and potential emissions sources that could be part of this category and the potential to inadvertently exclude units with significant emissions. Due to the broad nature of activities under this category, we believe that there might be cases where permitting of certain emission units is needed to protect air quality, which would be precluded under a category wide exemption. Based on that concern, we believe it is more appropriate to use the emission thresholds in the existing rule (e.g., NOx: 10 tpy and 5 tpy in attainment and nonattainment areas respectively) to determine source permitting requirements and not have a broad, category-wide exemption. Therefore the exemption for forestry and silvicultural activities is not included in the final amendments.
Recommendations for Other Exemptions

Comment:

	One industry commenter (0186) states that it operates methanol and glycol storage tanks below 250 gallons in Tribal airsheds. The commenter believes that given the small sizes of these tanks they should be added to the list of exempted emissions. The commenter states that emissions from these units are insignificant and that similar units, often in much greater sizes, are considered insignificant for Title V purposes

Response:

	We agree with the commenter that emissions from such tanks are of a de minimis level. However, we chose exemption categories based on more than that single criterion. In this case, we believe that the types of tanks cited by the commenter would be found, generally, in the following situations: 1) the tank is located at a well, with no other equipment present besides the necessary piping, valves and controllers at the well, and the minor source permitting thresholds would be sufficient exclude a tank at this location from permitting; or 2) the tank is located with several other pieces of equipment (e.g., glycol storage tank with a glycol dehydrator and a condensate tank) that collectively exceed the minor source permitting threshold, and must obtain a permit prior to construction. Due to the different facility configurations where these tanks could be found, we believe the minor source permitting thresholds are the appropriate way to decide permit requirements. For this reason we have not added these units to the exemption list as suggested by the commenter.  

Comment:

	One industry association commenter (0182) states that many member companies operate facilities with one significant emissions source, such as a compressor, that is accompanied by other insignificant auxiliary equipment, such as a tank or heater. The commenter recommends that the EPA consider an additional exemption based on a general PTE threshold for the insignificant auxiliary equipment at such a location. The commenter believes this would alleviate the equipment database maintenance and reporting requirements for these activities. The commenter believes this exemption would be consistent with the EPA's goal to limit permitting burden for minor emitting units expected to be very common.

Response:

	The commenter is suggesting that we exempt certain emission units from permitting at a facility whose potential emissions have been shown to exceed the minor source permitting thresholds. The minor source permitting thresholds in the Indian country minor NSR rule were developed to identify those facilities that should be subject to permitting for the purposes of attaining or maintaining the NAAQS, as required by Section 110(a)(2)(C) of the Act. Once a facility's PTE has been evaluated and found to exceed the minor NSR thresholds the source is required to obtain a permit. At that point, we believe the determination of emission control requirements, recordkeeping and reporting should be made by the reviewing authority on a case-by-case basis. Also insignificant activities could also be exempted. We do not believe that applying an individual emissions unit PTE exemption is appropriate for those cases.
Other Categories Proposed for Exemption

Comment:

	One tribal commenter (0183) supported the proposed exemptions for engines below 50 HP; single family residences/residential dwellings; air condition units used for comfort; and cooking of food. The commenter believes that permitting of these sources would be unnecessarily burdensome for applicants and permitting agencies.

Response:

	We appreciate support for the four exemption categories cited by the commenter. We have finalized these exemptions as proposed.
	
Construction Related Terms
General Comments on Construction Terms

Comment:

	One tribal commenter (0183) supports the proposed clarifications for "commence construction" and "begin construction" and believes that using different terms for the distinct permitting milestones provides clarity. The commenter also supports the specific definitions proposed and finds it helpful that they specify activities that are allowed before a permit has been issued.

Response:

	We appreciate support for the proposed clarifications. 
Definition of Begin Construction

Comment:

	One industry association commenter (0182) notes that the proposed definition of "begin construction" lists certain activities that can be conducted before the source has obtained a permit.  The commenter states that the list is more restrictive than the Agency's long standing approach to permissible activities. The commenter refers to a policy memo addressing activities allowed without a permit and states that the EPA should not deviate from previously established policies.

Response:

	We agree with the commenter. Our intent was to include the same list of activities in the proposed definition that have been historically allowed under EPA policy prior to obtaining a permit. We inadvertently omitted the term "grading" from the list in the proposed definition. We have added grading to the activities allowed under the definition of "begin construction" in the final rule to maintain consistency with existing EPA policy.

Definition of Commence Construction

Comment:

	One industry association commenter (0182) refers to the recently promulgated FIP for the Fort Berthold Indian Reservation (FBIR) and notes that under that rule, construction begins on the date on which well completion operations are initiated (78 FR 17836). The commenter requests that the definition from the FBIR FIP also be used in the Indian country minor NSR rule for facilities in the oil and gas exploration and production sector.

Response:

	The FBIR FIP cited by the commenter does not address preconstruction permitting requirements. Instead, it specifies emission reduction measures for oil and gas production activities within the FBIR. The well completion milestone under the FBIR FIP establishes the date when emission controls must be in operation, it does not identify or establish a deadline for permitting. By contrast, the Indian country minor NSR rule is a preconstruction program. It would not be appropriate to use the same definition in both rules since they serve different purposes. No changes related to this comment were made to the definition of commence construction in the final rule.
Source Relocation
30-Day Advance Notification Provision

Comment:

	One tribal commenter (0183) believes that at least 30 days notice is warranted for relocation of a non-portable source since a new permit may be required, and in that case, the permitting authority (i.e., reviewing authority) will need sufficient time to process the application and issue a permit. The commenter elaborates that for a portable source, a 10-day notice requirement may be sufficient since its permit will likely include pre-approved new locations. The commenter agrees with the EPA's interpretation that these time periods apply where an entire source is relocated, noting that relocation of one or more pieces of equipment or emission units requires consultation with the source's reviewing authority to determine if a modification will occur under the federal Indian country minor NSR rule.

	Another tribal commenter (0184) believes that, based on their permitting experience, in situations where a registered source relocates to a new, previously unapproved location, the permitting authority should have at least 30 days to review the relocation request. The commenter states that this time period is needed for tribal and historic preservation office reviews to be performed.

	One industry association commenter (0182) reiterates comments made in its petition for reconsideration on the July 1, 2011, final federal Indian country minor NSR rule stating that sources often relocate on short notice and occasionally change a previously planned relocation with little advance warning. The commenter states that the 30-day advance notice requirement is incompatible with oil and gas sector operations. In a subsequent teleconference, the commenter clarified that their primary concern involves relocation of one or more pieces of equipment or emissions units and not entire sources. In response to the EPA's request for comment on the notification provision, the commenter agrees with the EPA's statement that there is no requirement for advance approval, or a permit, for a registered source that relocates prior to September 2, 2014. The commenter suggests that, in those cases, there is no need or value to an advance notification as long as the source continues to comply with its permit. The commenter elaborates that there will be sufficient opportunity after relocation to notify the EPA of any change. The commenter offers that one possible approach is the one used under 40 CFR 63.9(j), and could be adopted in the Tribal rule. The commenter also references the recently promulgated oil and gas sector NSPS which allows for a lag time between source start-up and the determination of whether controls are required.

Response:

      We specifically requested comment on the case where the source relocates before September 2, 2014 (i.e., where no permit is required). As we discussed in the preamble for the proposed amendments (78 FR 33723), a true minor source that relocates in that situation does not need prior approval from its reviewing authority. . The notification provision simply specifies advance notification in that case. However, it was not clear in some tribal comments if they were addressing the situation where relocation occurs before September 2, 2014, or on or after that date, since the need for a permit was mentioned by commenters. For that latter case, as stated in the proposal, a previously unpermitted portable source (e.g., a hot-mix asphalt plant) that relocates on or after September 2, 2014, will be required to obtain a permit prior to relocation, and we believe that any such permit will contain provisions addressing any future relocation. In this case of relocation on/after September 2, 2014, the permit application fulfills the advance notification requirement. In addition, we believe in cases where a permit is required the permitting process addresses the tribal and historic preservation obligations cited by the commenters. Because none of the commenters presented examples of a situation where the 30-day advance notification provision justifies a reduction, we are retaining the 30-day notification period.  In the additional discussion in section 2.5.2, we are clarifying that the advance notice relocation provision is intended to apply to entire sources and not individual pieces of equipment or emissions units.
Permitting Issues related to Source Relocation

Comment:

	 One industry association commenter (0182) referenced the EPA's discussion in the proposed rule preamble addressing permitting obligations for true minor sources that relocate (78 FR 33273). The commenter disagrees with the EPA's statement that a true minor source constructed before September 2, 2014 that relocates after that date will have to obtain a permit. The commenter states that relocation is not tantamount to a modification of such a source and therefore the need for a permit is not triggered. The commenter clarified in a subsequent teleconference that most of the situations addressed in the comments involve relocation or replacement of a single piece of equipment, not entire facilities.

	Further, the commenter disagrees with EPA's statement in the proposed rule preamble that a true minor source constructed after Sept 2, 2014 must obtain a permit for the original location and any subsequent relocation not specifically pre-authorized in the original permit. The commenter believes the EPA should clarify that permit conditions listing specific sites for relocation are not required. The commenter states that this approach would be particularly important for general permits where the ability to relocate would have to be based on generic criteria. The commenter believes no other approach would work with a general permit.

Response:

      The registration program and relocation provisions in 40 CFR 49.160(d)(1) apply to an entire true minor source, they are not applicable to an individual piece of equipment that is merely a part of the true minor source. The registration program is used in developing an inventory of emissions throughout Indian country to help us manage and protect air quality. We understand from the commenter that moving a single piece of equipment from one facility to another, or replacing a piece of equipment with a new one, can occur on a regular basis. For clarification purposes, we believe it would be beneficial to both sources and reviewing authorities for us to list the different situations involving a piece of equipment that we believe will be most common, and specify the outcome with respect to minor NSR permitting. While we have listed expected outcomes below, the source should still verify with its reviewing authority that the "matching" situation listed below, and its stated outcome, applies to its case:
      
      1) A unit at a permitted source is replaced "in kind" (i.e., the replacement unit is of the same size, capacity, horsepower, etc. as the existing unit)  -  The owner/operator should notify the reviewing authority as specified in its permit. If the existing permit conditions do not address equipment replacement/relocation then the source should send a notification letter to its reviewing authority no later than 60 days following replacement of the unit.
      
      2) A unit at a registered but unpermitted source is replaced in kind - No new notification required since this unit would already be part of the inventory.
      
      3) A unit is moved within the boundary of a permitted or registered source - No new notification to the reviewing authority required, unless otherwise specified in the permit.
      
      4) A unit planned for addition (i.e., not replacement) at either a permitted or registered source, with PTE above the minor NSR thresholds  -  The owner/operator of the true minor source must first obtain a minor source permit before installing the unit at the new location beginning on September 2, 2014.
      
      5) One or more units (with combined PTE between the minor and major source thresholds) that are relocated to an entirely new location (i.e., a greenfield facility)  -  a) Prior to September 2, 2014, the owner/operator of the true minor source must notify its reviewing authority within 90 days of beginning operation at the new location in accordance with 40 CFR 49.160(c)(1)(ii); b) On or after September 2, 2014, the owner/operator of the true minor source must obtain a minor NSR permit from the reviewing authority at the new location before beginning construction.
      
      6) A unit moved from one registered source to another registered source before the September 2, 2014 permitting deadline  -  The source must notify the reviewing authority of removal of the unit from the originating source (to update its inventory) and also notify the reviewing authority of the addition of the unit at the new source within 60 days following the change in location.
      
      Note: We are not addressing any comments pertaining to general permits in this document since the proposed amendments did not address general permits.

Comment:

	One industry commenter (0186) expressed concern with impacts to drilling schedules created by the permitting process (up to 6 months for individual permits) and believes the EPA should allow oil and gas operators to transfer an approved minor source permit to a new location, within the same basin or "general area," as long as construction hasn't commenced.  The commenter states that such a transfer would be done without reopening the permit and further delaying the oil and gas development. The commenter believes the EPA could require notice of such a transfer 10 to 30 days prior to the source commencing construction at the new location, thus saving time and resources for all parties. 

Response:

	We believe it would be appropriate to address situations such as those cited by the commenter on a case-by-case basis. We believe that oil and/or gas basins are too varied in terms of size, terrain, proximity to other emission units and other parameters to develop any generalized criteria that could allow preapproval of locations beyond the single location authorized under the initial permit.
Other Comments on Permitting

Comment:

	One industry association commenter (0182) states that, in the existing federal Indian country minor NSR rule, true minor sources constructed or modified after August 30, 2011, are required to obtain a permit.  The commenter notes that the EPA proposed to revise this applicability date until September 2, 2014, and the commenter supports this change.

Response:

	We believe the commenter may have misinterpreted the existing requirements within 49.151(c)(1)(iii). Our intent under the existing rule has always been that true minor sources do not need a permit if they commence construction before September 2, 2014. We proposed changes to the regulatory text on June 4, 2013, that are intended to clarify the nature of this deadline.  We are finalizing these proposed changes to the regulatory text to make this intent clear.
Miscellaneous Comments
Rulemaking Process

Comment:

	One private citizen (0178) references the discussion in the proposed rule preamble (78 FR 33270), and characterizes EPA's consideration of burden in the permitting process for various source types, as looking at the "cost/benefit" of the regulation. The commenter opines that such an analysis is inappropriate on existing regulations. The commenter elaborates that cost should be considered in amending a regulation, but it should not be as prominent a factor as it appears to be in the proposed rulemaking.

Response:

	The units/activities proposed for addition to the exemption list were identified primarily based on their low emission potential. A cost analysis was not generated or used to select the exemption categories.
General Permits

Comment:

	One industry association commenter (0182) cites applicability provisions for obtaining a permit (note: these are under 49.151(c)(1)(iii)(B)), and expresses concern related to coverage under a general permit to meet those dates. The commenter states that the EPA should allow coverage immediately after the effective date of the general permit rather than requiring the source to wait six months after publication in the Federal Register to seek coverage. Alternatively, the commenter suggests, the EPA could push back the September 2, 2014 permitting deadline to a reasonable period after general permit publication.

	The industry association commenter also states that the current rule allows sources to apply for coverage under a general permit no earlier than 6 months after a general permit is published in the Federal Register. The commenter believes that, based on the availability of the general permit, the EPA would need to publish the final general permit for the oil and gas sector in the Federal Register no later than December 2, 2013, to provide affected sources sufficient time to obtain coverage by September 2, 2014. The commenter opines that failure to make the general permit available in a timely fashion will require all oil and gas sector sources to obtain site-specific permits, and that this outcome would be a waste of time and resources. The commenter states that the EPA should make it clear that sources are deemed covered if the EPA fails to respond to a general permit request.

	One industry commenter (0186) recommends that the EPA engage industry stakeholders and tribes early in the general permit development process (i.e., prior to proposal of a draft general permit) to accurately consider the scope, impacts and other criteria of oil and gas sources as well as to make sure Tribal interests are met.

Response:

      Requirements related to coverage under the general permit were not part of the amendments proposed on June 4, 2013. However, a notice of proposed rulemaking related to general permits for minor sources in Indian country was published in the Federal Register on January 14, 2014. That notice asks for comment on extending the permitting deadline for true minor oil and gas sector sources between 12 and 18 months beyond the deadline cited by the industry association commenter. 
Environmental Appeals Board

	Comment:

	One industry commenter ((0186) notes that an individual minor source permit could take up to six months for approval. Since the commenter anticipates a need for up to 50 true minor source permits annually, these "delays" are economically significant and the commenter is concerned about the EPA's resources and ability to meet permit issuance deadlines. The commenter continues that in addition to the review and issuance time period, the Environmental Appeals Board (EAB) review process can also be invoked, adding further delay (up to two years in total) before permitted operations could begin. The commenter believes this process is inefficient, inappropriate, and unnecessary for minor sources and requests that the EAB review process be eliminated for true and synthetic minor NSR permits. As an alternative, the commenter requests that a more expeditious review process be established that includes the elimination of the automatic "stay" for minor and synthetic NSR permits while awaiting EAB review.

Response:

	The EAB review process was not part of the amendments proposed on June 4, 2013.
