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 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for us to approve State programs under the Act as covering Indian country where there has not been an explicit Draft Do not cite, copy, or distribute February 14, 2006 79 Arizona Public Service Co. v. EPA, 211 F. 3d 1280 ( D. C. Cir. 2000), cert.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 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 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 tribe, fails to adopt a program or adopts an inadequate program. See, for example,

sections 110( c)( 1), 502( d)( 3), and 502( i)( 4) of the Act. These provisions exist in part to ensure that the benefits of the Act would be realized throughout the United States,

whether or not local governments choose to participate in implementing the Act.

Especially in light of the problems associated with transport of air pollution across State and tribal boundaries, it follows that Congress intended that we have the authority to operate a Federal program in the absence of an adequately implemented EPA approved program. See, for example, 59 FR 43958 61, August 25, 1994; 62 FR 13750, March 21,

1997; and 63 FR 7262 64, February 12, 1998.

This interpretation is most evident from Congress= grant of authority to the EPA under section 301( d)( 4) of the Act. Section 301( d)( 4) authorizes the Administrator to directly administer provisions of the Act so as to achieve the appropriate purpose where tribal implementation of those provisions is inappropriate or administratively infeasible.

We determined that it is inappropriate to subject tribes, among other things, to the mandatory submittal deadlines and to the related Federal oversight mechanisms in section 110( c)( 1) of the Act, which are triggered when we make a finding that States have failed to meet required deadlines or disapprove a plan submittal. See 40 CFR 49.4( d).

By determining that tribes should not be treated similarly to States for purposes of the specific FIP obligation under section 110( c)( 1) of the Act, we are not relieved of the general obligation under the Act to ensure the protection of air quality throughout the Nation, including throughout Indian country. Rather, consistent with the provisions of sections 301( a) and 301( d)( 4) of the Act, we expressed our intent to promulgate without Draft Do not cite, copy, or distribute February 14, 2006 81 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 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. Draft Do not cite, copy, or distribute February 14, 2006 82 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.

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 Draft Do not cite, copy, or distribute February 14, 2006 83 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 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 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. Draft Do not cite, copy, or distribute February 14, 2006 84 implementation of an important air quality program and may develop their own capacity to manage such programs in the future should they choose to do so. Proposed 40 CFR 49.160 and 49.172 of the minor and major NSR rules, respectively, provide tribal governments the option of seeking delegation from us of the administration of the Federal NSR program, or aspects of the program, for their area of Indian country. Such administrative delegation is to be distinguished from the TAS process under the TAR whereby tribes seek approval to run programs under tribal law. Tribes would not need to seek TAS under the TAR in order to request delegation of administration of aspects of these Federal NSR programs. Tribes would, however, need to provide the relevant application information described in those sections. In addition, program functions delegated under proposed 40 CFR 49.160 or 49.172 would remain part of the relevant FIP administered under Federal law. The delegate tribal agency would simply assist EPA with administration of the program to the extent of the functions delegated.

We have well established processes for delegating our Federal authority to States for administering Federal rules under the Act, including conducting new source review under 40 CFR 52.21( u), and issuing Federal operating permits under 40 CFR 71.4( j) and 71.10. The process we would follow to delegate the administration of the Federal NSR program to a tribal agency is similar to the process we follow to delegate the administration of Federal programs to States. Prior to finalizing any delegation agreement with a tribal agency, we would consult with other Federal, State, tribal, or local governmental entities, or other governmental agencies in the area, as appropriate.

Although sections 110( o) and 301( d) of the Act and the TAR authorize us to review and Draft Do not cite, copy, or distribute February 14, 2006 85 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 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. Draft Do not cite, copy, or distribute February 14, 2006 86 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 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 Draft Do not cite, copy, or distribute February 14, 2006 87 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 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 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. Draft Do not cite, copy, or distribute February 14, 2006 88 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).

Today= s proposed rulemaking would provide a mechanism to change State permits issued to major sources of regulated NSR pollutants in nonattainment areas of Indian country to Federal major NSR permits. If you own or operate a major stationary source with a State Draft Do not cite, copy, or distribute February 14, 2006 89 issued nonattainment major NSR permit, you must apply to convert the permit to a Federal permit under this program within 1 year of the effective date of this program. In this case, you would not be subject to any additional requirements under this program. See proposed 40 CFR 49.168( b).

The requirements contained in these State issued permits have been relied on for protection of attainment and maintenance of air quality in these nonattainment areas. We believe that transforming the State permits in to Federal major NSR permits for major sources in Indian country is appropriate to protect air quality in Indian country, as the tribes take on the effort to develop and/ or run their own programs VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866, ( 58 FR 51735, October 4, 1993), we must determine whether the regulatory action is " significant" and therefore subject to Office of Management and Budget ( OMB) review and the requirements of the Executive Order.

The Executive Order defines a " significant regulatory action" as one that is likely to result in a rule that may:

( 1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

( 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; Draft Do not cite, copy, or distribute February 14, 2006 90 ( 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, the OMB has notified us that it considers this a Asignificant regulatory action@ within the meaning of the Executive Order.

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)

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, Draft Do not cite, copy, or distribute February 14, 2006 91 records, or processes should be inspected.

The major nonattainment NSR rule would have little impact on existing major stationary sources in Indian country because it would only affect such owners and operators if they propose a major modification; none are expected. The proposed rule would only result in an administrative change for new major sources in Indian country because, although the regulatory mechanism to issue permits is not yet available in the form of either a Federal nonattainment NSR rule or a TIP, we would be required to implement the program in Indian country, and would otherwise have to do source specific FIP. As a result, there would no new or additional burden on industry.

With regard to the minor source permitting rule, the average capital cost per facility for the one time activities is $ 13,088 per source; annualized, this cost is $ 1,863 per year per source. The total of the various annualized and recurring costs is an average of $ 7,598 per year per source. The annual reporting and record keeping cost burden is a total annualized capital/ startup costs of $ 77,000, and total annual costs ( operation and maintenance) of $ 235,000.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency.

This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; Draft Do not cite, copy, or distribute February 14, 2006 92 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 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 Draft Do not cite, copy, or distribute February 14, 2006 93 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)

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 of a city, county,

town, school district or special district with a population of less than 50,000; and ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field. Today= s proposed rule only potentially affects small businesses, not small governments or small organizations.

The proposed rule potentially affects six types of stationary sources in Indian country:

1. New and modified minor sources of regulated NSR pollutants;

2. Sources of regulated NSR pollutants choosing to accept enforceable emission Draft Do not cite, copy, or distribute February 14, 2006 94 limitations to avoid major source regulations ( synthetic minors);

3. Sources of HAP choosing to accept enforceable emission limitations to avoid major source regulations ( synthetic minor HAP sources);

4. Minor modifications to major sources of regulated NSR pollutants;

5. New major sources of regulated NSR pollutants in nonattainment areas; and 6. 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 sources would have to be permitted through a source specific FIP. The proposed rule would provide a regulatory mechanism for permitting such sources. No change in control costs is expected because the compliance requirements are expected to be unchanged by the proposed rule.

New and modifying major sources could potentially experience cost savings compared to baseline conditions because the permitting process may be less uncertain under the proposed rule. Choosing to accept enforceable emission limitations ( become a synthetic minor) is entirely optional and could result in a cost savings to those firms choosing this option. For these three 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 Draft Do not cite, copy, or distribute February 14, 2006 95 modified minor sources and minor modifications at major sources. To analyze potential impacts to small companies owning such sources, we first estimated the number of new sources that would be sited in Indian country over the period 2004 through 2010, the time period selected for the analysis. Generally, data on minor sources in Indian country is very limited. We conducted an exhaustive search for information available from EPA databases, the Small Business Administration, and EPA Regional Offices. We also encouraged the tribes to participate in the rulemaking, and inquired whether tribes had any information on minor sources but no data were received. We concluded that the information in 11 tribal emissions inventories maintained by EPA/ OAQPS provided the best characterization of the types of minor sources that currently exist and the types of new minor sources that might be sited in Indian country in the future. We collected data from the Economic Census ( 1997) on the number of establishments of each type in each State, and allocated the establishments to Indian country based on tribes= share of State income. Then, we projected the number of new minor sources of each type that would be created in Indian country by applying the estimated growth rate for American Indian/ Alaska Native ( AI/ AN) population in each State to the estimated baseline number of sources in Indian country in the State. Over the period from promulgation ( 2004)

through 2010, we estimate that 288 new minor sources will be created in Indian country.

We used data from financial databases to compute the share of companies in each sector that are owned by small businesses ( based on the Small Business Administration small business size definitions at 13 CFR part 121). Assuming that the same share of new minor sources will be owned by small businesses, we estimate that 164 new minor source Draft Do not cite, copy, or distribute February 14, 2006 96 facilities, owned by 143 small businesses, will be created in Indian country 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 three will be owned by small businesses. Table 3 below summarizes the estimated numbers of affected facilities and small businesses.

Table 3. Projected Number of Affected Small Businesses and Estimated Costs Incurred by Small Businesses, 2004 through 2010.

Source type Projected number of sources owned by small businesses Estimated number of small businesses Estimated costs incurred by small businesses ($ million) a New Minor Sources 164 143 $ 2.63 Modified Minor Sources 62 51 $ 0.97 Minor Modifications at 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 Draft Do not cite, copy, or distribute February 14, 2006 97 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 projected to perform minor modifications during the period 2006 through 2012 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, 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 Draft Do not cite, copy, or distribute February 14, 2006 98 in expenditures to State, local, and tribal governments, in aggregate, or to the private sector, of $ 100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly,

most cost effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, we must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

We have determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The maximum total annual cost of this proposed rule for any 1 year has been estimated to be $ 312,000. Thus,

today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, we have determined that this proposed rule contains no regulatory Draft Do not cite, copy, or distribute February 14, 2006 99 requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's proposed rule is not subject to the requirements of section 203 of the UMRA.

The proposed rule does not require that any tribe accept delegation or develop their own permitting program; thus, it does not impose any burden on small tribes. We recognize, however, that some small tribes may choose to assist EPA with administration of the minor NSR program on their reservations. We thus analyzed the costs to small tribes if they did make this choice, using small tribes that have chosen to develop their own air programs as examples of the types of tribes that might choose to assist EPA with administration of the minor new source permitting program. We found that the cost per tribal member was less than $ 1 per year, and represented less than 0.01 percent of the per capita income of tribal members. Thus, if the costs of developing and implementing a permitting program for new minor sources were borne by the tribes= members, it would not be a significant burden to them.

E. Executive Order 13132: Federalism Executive Order 13132 ( 64 FR 43255, August 10, 1999), requires us to develop an accountable process to ensure 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 Draft Do not cite, copy, or distribute February 14, 2006 100 various levels of government.@

Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or we consult with State and local officials early in the process of developing the proposed regulation. We also may not issue a regulation that has federalism implications and that preempts State law,

unless we consult with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Pursuant to the terms of Executive Order 13132, it has been determined that this proposed rule does not have " federalism implications" because it does not meet the necessary criteria. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.

In the spirit of Executive Order 13132, and consistent with our policy to promote communications between us and State and local governments, we specifically solicit comment on this proposed rule from State and local officials. We felt it was important to ensure that the State and local air pollution control agencies and small business concerns had an opportunity to interact with development of this rule. To that end, we had two meetings with the STAPPA/ ALAPCO to present the draft preamble and rule. We also Draft Do not cite, copy, or distribute February 14, 2006 101 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 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 Draft Do not cite, copy, or distribute February 14, 2006 102 with tribal leaders.

As a result of this feedback we developed a consultation/ outreach plan which included three meetings held at the reservations of the Menominee Tribe in Wisconsin, the Mohegan Tribe in Connecticut, and the Chehalis Tribe in Washington. A fourth meeting was held in conjunction with the Institute of Tribal Environmental Professionals= ( ITEP)

anniversary meeting in Flagstaff, Arizona. In addition to conducting these national meetings, we also visited tribal environmental staff on tribal lands, where time and travel permitted. Over 30 tribes attended these meetings. We have also provided outreach to the tribes in numerous national and regional forums including the National Tribal Forums put on by the Institute of Tribal Environmental Professionals, two National Tribal Air Association meetings, and at meetings with tribal consortia, such as the National Tribal Environmental Council, United Southern and Eastern Tribes, Inter Tribal Environmental Council, Inter Tribal Council of Arizona, and others.

In addition to the meetings, we also have an ongoing workgroup of tribal environmental staff that has worked with us on developing these rules. We propose to continue with this consultation and outreach process until we promulgate this rulemaking package.

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 Draft Do not cite, copy, or distribute February 14, 2006 103 believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives that we considered.

We interpret Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5 501 of the Executive Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it does not establish environmental standards based on an assessment of health or safety risks. Furthermore, this proposed rule has been determined not to be " economically significant" as defined under Executive Order 12866.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply,

Distribution, or Use This proposed rule is not a 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. 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 Draft Do not cite, copy, or distribute February 14, 2006 104 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 105 of 187 105 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 106 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 107 ( 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 108 ( 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 109 ( d) What general provisions apply under this program? The following general provisions apply under this program:

( 1) ) If you13 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 13 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 110 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 111 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 112 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 113 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; 14 ( 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 14 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 114 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 115 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 116 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 117 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 118 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 119 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 120 ( 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 121 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 Do not quote, cite, copy, or distribute outside the agency. February 14, 2006 122 Draft Do 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 ' 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 128 ( 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 129 ( 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 130 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 131 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 132 ( 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 133 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 134 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 135 ( 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 136 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 137 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 138 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 139 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 140 ( 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 141 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 142 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 143 ( 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 144 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 145 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 146 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 147 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 148 ( 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 149 ( 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 150 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 151 ( 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 152 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 153 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 154 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 155 ( 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 156 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 157 ( 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.