to enforcement by EPA 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.\38\ In any such
delegation, we retain the authority to object to the issuance of any
permit that we determine not to be in compliance with the requirements
under the program or other requirements pursuant to regulations under
the Act. For any such objections, we will outline the reasons for the
objection in writing and we will provide a copy of the written
statement to the permit applicant. The delegate Tribal agency may not
issue a permit if we object to its issuance in writing. The delegate
Tribal agency may submit a revised draft permit to us in response to
the objection. However, if it does not do so within 90 days, we will
issue or deny the permit in accordance with the requirements of the
Federal minor or major NSR program, as applicable.
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    \38\ 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.
---------------------------------------------------------------------------

    We did not receive any comments expressly supporting our delegation
provisions. However, a number of commenters opined that when a Tribe
has administrative delegation of the program, enforcement authority
should be delegated to the Tribes as well. These comments are addressed
in section VII.B of this preamble.
    Other commenters oppose delegation of the program to the Tribes.
One of these commenters believed that

delegation demonstrations will be approved by EPA based on their
administrative completeness, rather than on their technical merit and
thus recommends that any delegation be contingent upon an approved TIP.
Another commenter maintained that only the TAS process should be used
to delegate authority of environmental programs to Tribes to avoid
jurisdictional conflicts between EPA, Tribes and the state (especially
in Oklahoma because there have been, according to the commenter,
significant problems there with Tribes providing adequate jurisdiction
of lands they claim) and to avoid confusion for the regulated
community. The commenter suggested that if the administrative
delegation process is included in the final NSR program, it should
include a Federal Register public notice and comment provision. Another
commenter believed that because EPA has not made any jurisdictional
determinations in connection with the proposed FIP, delegation of
authority to Tribes to assist in administering the FIP violates the
plain requirements of the Act.
    As described previously, EPA continues to believe that the CAA
authorizes us to use the administrative delegation approach to assist
EPA in carrying out implementation of our Federal program. See CAA
section 301(a).\39\ The EPA believes that the administrative delegation
provisions provide additional flexibility for implementation of the
Federal rules and establish an appropriate means for Tribal involvement
in EPA's Federal implementation of CAA requirements.
---------------------------------------------------------------------------

    \39\ 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. This
authority supports EPA's finalization of 40 CFR 49.161 and 49.173 of
the minor and major NSR rules, respectively, which provide for
partial administrative delegations to tribal agencies. However,
nothing in the final rules requires us to delegate administration of
any aspect of the federal program to a tribal agency.
---------------------------------------------------------------------------

    As described above, delegation of the authority to assist EPA with
administration of elements of the Federal NSR programs is a process
that is distinct from approval of Tribal eligibility and Tribal
programs under CAA section 301(d) and the TAR. To the extent the
commenters are concerned that administrative delegation acts as an
approval of Tribal authority, EPA reiterates that irrespective of any
such delegation, the minor NSR and nonattainment major NSR programs
established here will continue to operate under Federal authority
subject to EPA appeal procedures before EPA's Environmental Appeals
Board and to enforcement solely by EPA. The administrative delegation
provision simply allows EPA to delegate certain functions to qualified
Tribes that may then assist EPA with administration of the programs.
    EPA also notes that because the minor and nonattainment major NSR
programs will continue to operate under Federal authority (irrespective
of administrative delegation of any functions to qualified Tribes),
none of the jurisdictional issues raised in the comments should arise.
Indeed, as described elsewhere, EPA's well-established Federal
authority to implement CAA programs in Indian country in the absence of
an EPA-approved program should provide jurisdictional certainty to all
sources covered by these programs. Similarly, issues of Tribal
jurisdiction over covered sources should not arise since no showing or
finding of such jurisdiction is needed for administration of the
Federal programs.
    As noted in EPA's proposal of the minor NSR and nonattainment major
NSR rules, EPA also intends to consult with other Federal, state,
Tribal or local governmental entities or other governmental agencies in
the area, prior to finalizing a delegation agreement with a Tribal
agency. Although the CAA does not require such consultations or any
specific process, to approve administrative delegations, EPA believes
that this approach provides an appropriate opportunity for such
governmental entities to express views regarding the potential
delegation agreement and will assist EPA in identifying any
unanticipated issues.
    The EPA also notes that our establishment of criteria for the
delegation provisions of the minor and nonattainment major NSR rules
for Tribes seeking to assist EPA with administration of the Federal
programs does not change the criteria EPA would evaluate in reviewing
and acting upon Tribal applications for TAS under CAA section 301(d)
and the TAR. CAA section 301(d) and the TAR at 40 CFR 49.6 and 49.7
establish the criteria Tribes must demonstrate and the types of
information to be included in Tribal applications, to obtain TAS
eligibility to administer Tribal programs under Tribal law.
    Although the TAS and delegation criteria overlap in certain
respects, they also contain significant differences, most notably in
the required demonstration of authority. Tribes seeking TAS eligibility
to administer approved Tribal regulatory programs under Tribal law must
demonstrate their relevant authority, including appropriate enforcement
authority, to regulate air quality in the areas to be covered by the
program. See 40 CFR 49.6(c) and 49.7(a)(3). By contrast, because the
minor and nonattainment major NSR programs will, in all circumstances,
operate under Federal authority, Tribes requesting to assist EPA
through administrative delegation need not demonstrate Congressionally-
delegated authority over air resources within the exterior boundaries
of their reservations or authority over non-reservations areas of
Indian country. Instead, such Tribes would only need to show that their
laws provide adequate capacity and authority to carry out the delegated
activities. These distinctions between the TAS and administrative
delegation requirements are important and EPA reiterates that nothing
in either process is intended to affect the criteria and requirements
for the other.

C. What happens to permits previously issued by states to sources in
Indian country?

    In the past, sources in some areas of Indian country may have
received permits from states. 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. See
sections III.B and VI.A. of this preamble for more information.
Therefore, this final rulemaking provides 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 source with a state-issued nonattainment
major NSR permit, you must apply to convert the permit to a Federal
permit under this program within 1 year of the effective date of this
program. See final 40 CFR 49.168(b). We believe that transforming the
state permits into Federal major NSR permits for major sources in
Indian country is appropriate to protect air quality in Indian country.
    A couple of commenters believed that the permit reapplication
process set out in the proposed 40 CFR 49.158(c)(1) and 49.168(b) seems
unnecessarily complex and thus these commenters argued that these
permits should be transferred ``en masse'' from one agency to the other
with a simple notification to the operator of the transfer or
jurisdiction. One of these commenters added that if EPA feels that the
``en masse'' transfer methods are impracticable, then the source should
be able to transfer the permit by submitting a transfer request (not a
complete application) with a copy of the permit to both agencies, while
the other commenter stressed that sources with state minor NSR permits
should be

grandfathered into the Indian country program and not required to
conduct minor NSR permitting.
    On the other hand, one commenter maintained that while previous
state permit conditions may be appropriate to be included in the new
Federal permit, this should not be automatic. The commenter also stated
that government-to-government consultation between EPA and the affected
Tribe must take place during this process. Furthermore, two commenters
pointed out that the proposal did not discuss what enforcement
mechanism would be used if a source failed to convert a state permit to
a Federal permit in the given time frame and thus one of these
commenters recommended that EPA should consider using Tribal courts for
this purpose since the infraction would occur on Tribal lands and
within Tribal jurisdiction.
    After considering these comments, we believe that transforming
state nonattainment major NSR permits into Federal nonattainment major
NSR permits in Indian country is appropriate to protect air quality in
Indian country. However, we do not believe that these permits should be
transferred ``en masse'' from one agency to another or be automatically
transferred because we need to determine if the permit complies with
the applicable requirements under the NSR program. If it does not, a
new permit with appropriate requirements would have to be public
noticed and issued. If a source fails to obtain a required Federal
permit by the established timeline and/or does not meet the applicable
requirements under this rule, it may be subject to potential
enforcement action. We also believe that since any failure of a source
to convert a state permit into a Federal permit would be a violation of
this rule, the violation is of the Federal requirement and thus
administratively enforceable by EPA and in Federal court, not Tribal
court. Because these programs are operated under Federal authority,
there is no finding (and no need for a finding) of Tribal jurisdiction.

VII. Implementation Issues

A. Are Tribes allowed to collect fees for NSR permitting?

    Many Tribal commenters suggested that the NSR program should
include a mechanism that allows Tribes or the EPA to collect fees to
offset the costs of the program, especially when a Tribe has been given
delegation of the program. Two of these commenters pointed out that
Tribes that do accept delegation of the program will need resources,
such as funds to train and support personnel who will be reviewing and
commenting on the permitting applications and funds for providing
technical assistance to businesses regarding compliance issues. Some of
these commenters also indicated that EPA should provide funding for
Tribal implementation of the NSR program, for example, through
cooperative agreements and grants.
    The Agency is aware of and concerned about the resource needs of
the rule, but the CAA does not give the Agency explicit authority to
charge permit fees for pre-construction permitting. However, under a
delegation agreement, EPA and the delegated Tribe could, as
appropriate, establish mechanisms to fund the work by Tribal staff,
that may include Federal funding assistance through cooperative
agreements and grants and/or user fees and charges established by the
Tribe [under Tribal law] for the purpose of funding its administrative
activities on behalf of EPA (See Federal Implementation Plans Under the
Clean Air Act for Indian Reservations in Idaho, Oregon and Washington
(70 FR 18080)). In addition, Tribes that develop TIPs can charge for
permits under their authority. Furthermore, the final rule includes a
number of mechanisms to address concerns regarding the resource burden,
including: Encouraging delegation of the program through trainings
(face-to-face training sessions and through ITEP training) and
developing and using general permits.

B. Who retains enforcement authority in Indian country?

    Numerous Tribal commenters recommended that administrative
delegation of the program to Tribes should include enforcement
authority. Where they were specific, most of these commenters specified
delegation of civil enforcement authority (including the ability to
collect civil penalties to help support the program), but a number of
commenters also favored delegation of criminal enforcement authority.
In addition, commenters stated that by declining to administratively
delegate enforcement (whether civil or criminal) of Federal permits to
Tribes, EPA is acting inconsistently with other delegations which, in
the commenters' view, withhold only criminal enforcement, but include
civil enforcement. Other commenters also added that Tribes should be
allowed to negotiate the level of enforcement authority on a case-by-
case basis. We disagree with these commenters.
    The EPA believes that these commenters mistake the distinction
between approvals of Tribal programs under Tribal law provided for in
the TAR and the administrative delegations at issue here. Where EPA
approves an eligible Tribe for TAS under CAA section 301(d) and the
TAR, EPA will continue to review the applicant Tribe's authority,
including its authority to enforce, in an appropriate Tribal forum, any
approved Tribal program operated under Tribal law. In such
circumstances, EPA has recognized that certain limitations on Tribal
criminal authority should not constitute a bar to Tribal program
approval and has determined to fill any gap in Tribal criminal
authority by retaining primary criminal enforcement at the Federal
level for all circumstances in which a Tribe is precluded from
exercising such authority. See 40 CFR 49.7(a)(6), 49.8. In such
situations EPA would, however, generally expect the applicant Tribe to
demonstrate authority to pursue appropriate civil enforcement under
Tribal law of any approved Tribal program.
    By contrast, any permits issued under the Federal NSR programs
(even where issued by a Tribe acting on EPA's behalf pursuant to a
delegation agreement) remain Federal in character and continue to be
enforceable (whether civilly or criminally) in Federal court. EPA does
not believe that it would be appropriate to delegate enforcement of a
Federal permit in Federal court to an Indian Tribe assisting EPA with
administration of the NSR program. Indeed, in similar circumstances EPA
has consistently withheld enforcement in Federal court from any
administratively delegated entity, whether a state or a Tribe. For
instance, under certain other CAA programs (e.g., EPA's major source
operating permit program under 40 CFR part 70 and EPA's PSD program
under 40 CFR 52.21) EPA may, in appropriate circumstances, delegate
administration of elements of the program to non-Federal entities.
However, while such entities may pursue enforcement in their own courts
of parallel non-Federal air quality requirements, enforcement of the
Federal permit in Federal court will always be retained and conducted
by EPA.\40\ See also 40 CFR 49.122; 70 FR 18074, 18080-81, April 8,
2005 (discussing EPA's similar approach to administrative delegation in
the context

of FIPs for Indian reservations in the Pacific Northwest).
---------------------------------------------------------------------------

    \40\ Most states have sought and obtained EPA approval to
administer their own minor and nonattainment major NSR programs
administered under state law. To the extent the commenters believe
that states are pursuing enforcement of NSR programs, EPA notes that
such enforcement is likely being taken pursuant to State law under
such approved state programs.
---------------------------------------------------------------------------

    The EPA's approach to administrative delegation of the Federal NSR
programs is thus consistent with other administrative delegation
regulations and with EPA's approach to approval of Tribal programs
under the TAR. The EPA notes that Tribes interested in enforcing NSR
permits issued in their areas may continue to seek TAS eligibility and
program approval pursuant to established procedures under the TAR.
Indeed, EPA expects that the approach to administrative delegation of
elements of the Federal NSR program may benefit such Tribes by
providing opportunities for Tribes that are building air quality
programs to gain experience by assisting EPA with administration of the
Federal rules without needing to first develop Tribal air programs
under Tribal law. To the extent such Tribes do subsequently obtain TAS
eligibility and NSR program approval, their approved Tribal programs
under Tribal law would replace the relevant Federal rule. In addition,
EPA recognizes that some Tribes may choose not to develop air programs
under Tribal law, but may still want to participate in air quality
management in their areas of Indian country. Administrative delegation
of elements of the Federal rules may provide an appropriate opportunity
for such Tribal involvement.
    Consequently, EPA believes the distinction between delegation of
administration of aspects of the Federal NSR rules and approval of
eligible Tribal programs under CAA section 301(d) and the TAR is
significant and warrants EPA's retention of Federal enforcement of
Federal NSR permits in Federal court. The EPA also believes that this
approach does not create any inconsistency with its treatment of Tribal
programs under the TAR or with EPA's approach to administrative
delegations of other CAA programs to Tribes and states.

C. What is the implementation schedule for the final rules?

    At proposal we stated that all the provisions of these final rules
will be effective 60 days from publication of the final rule based on
the information we had at the time about the number of sources that
might need to seek permits under the minor NSR program. In the
proposal, we noted that the data on minor sources in Indian country
were very limited, but we projected that 288 new minor sources and 112
modifications will be required to obtain permits during the first six
years of implementation of the minor NSR program (71 FR at 48724).
Since then, however, the Agency has obtained additional information
about sources in Indian country and the Agency now estimates that
several thousand new and modified minor sources will be created in
Indian country during the first six years following issuance of this
rule (see section VIII of this preamble for more information about the
projected number of new and modified sources that might be subject to
this program).
    Furthermore, a few commenters believed that neither EPA nor Tribal
agencies had adequate resources to implement the NSR program without
significant permitting delays. One commenter in particular was very
concerned about the workload EPA Regions will have, especially those
Regions that oversee large areas of Indian country, given EPA's
presupposition that few, if any, Tribes will be prepared to pursue
delegation of the responsibility to implement these requirements.
    Therefore, upon review of our updated estimate of the projected
number of covered sources and the comments we received pertaining to
this issue, we agree that it would be very challenging for us, as the
reviewing authority until a Tribe requests delegation or obtains
approval of a TIP, to implement all elements of the final rules
simultaneously beginning on the rules' effective date. We currently
experience resource constraints and these rules will create new
workload for the Agency, especially for those EPA Regions where EPA, as
the reviewing authority, would oversee a large number of Tribes.
Consequently, to ensure timely permit issuance, we have decided to
delay the implementation date of the minor NSR permitting requirement
for true minor sources for a period of 36 months after this rule's
effective date, that is, September 2, 2014. The implementation dates of
other parts of the program depending on the type of source being
permitted are as follows:
    Existing major sources.
     If you wish to commence construction of a minor
modification at an existing major source on or after the effective date
of the final rule (that is, on or after August 30, 2011), you must
obtain a permit pursuant to 40 CFR 49.154 and 49.155 (or a general
permit pursuant to 40 CFR 49.156, if applicable) prior to commencing
construction.
     If you wish to obtain a synthetic minor source permit
pursuant to 40 CFR 49.158 to establish a synthetic minor source and/or
a synthetic minor HAP source at your existing major source, you may
submit a synthetic minor source permit application on or after August
30, 2011. However, if your permit application for a synthetic minor
source and/or synthetic minor HAP source pursuant to the FIPs for
reservations in Idaho, Oregon and Washington has been determined
complete prior to August 30, 2011 you do not need to apply for a
synthetic minor source permit under this program.
    Synthetic minor sources.
     If you wish to commence construction of a new synthetic
minor source and/or a new synthetic minor HAP source \41\ or a
modification at an existing synthetic minor source and/or synthetic
minor HAP source on or after the effective date of the final rule (that
is, on or after August 30, 2011), you must obtain a permit pursuant to
40 CFR 49.158 prior to commencing construction.
---------------------------------------------------------------------------

    \41\ EPA's historic policy is ``that facilities may switch to
area source status [in this case through a synthetic minor permit]
at any time until ``the first compliance'' of the standard. The
``first compliance date'' is defined as the first date a source must
comply with an emission limitation or other substantive regulatory
requirement (i.e., leak detection and repair programs, work practice
measures, housekeeping measures, etc * * *, but not a notice
requirement) in the applicable MACT standard. Facilities that are
major sources for HAPs on the ``first compliance date'' are required
to comply permanently with the MACT standard to ensure that maximum
achievable reductions in toxic emissions are achieved and
maintained.'' Memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, U.S. EPA, ``Potential to Emit for
MACT Standards--Guidance on Timing Issues'' (May 16, 1995). EPA
continues to believe that this policy best reflects the way Congress
intended the MACT program to function. As a result, if you own or
operate a major source subject to a MACT standard for which the
initial compliance date has already passed, you cannot become a
synthetic minor source for purposes of or otherwise avoid continuing
to comply with that particular MACT standard.
---------------------------------------------------------------------------

     If your existing synthetic minor source and/or synthetic
minor HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to 40 CFR 49.158 prior to
commencing construction.
     If your existing synthetic minor source and/or synthetic
minor HAP source was established under a permit with enforceable
emissions limitations

issued pursuant to the part 71 program, the reviewing authority has the
discretion to require you to submit a permit application for a
synthetic minor source permit under this program within 1 year after
the effective date of the final rule (that is, by September 4, 2012,
and pursuant to 40 CFR 49.158), to require you to submit a permit
application for a synthetic minor source permit under this program
(pursuant to 40 CFR 49.158) at the same time that you apply to renew
your part 71 permit or to allow you to continue to maintain synthetic
minor status through your part 71 permit. If the reviewing authority
requires you to obtain a synthetic minor source permit and/or a
synthetic minor HAP source permit under this program (pursuant to 40
CFR 49.158), it also has the discretion to require any additional
requirements, including control technology requirements, based on the
specific circumstances of the source.
     If your existing synthetic minor source and/or synthetic
minor HAP source was established through a mechanism other than those
described in the preceding paragraphs, you must submit an application
pursuant to 40 CFR 49.158 for a synthetic minor source permit within 1
year after the effective date of the final rule, that is, by September
4, 2012. The reviewing authority has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
    True minor sources.
     If you own or operate an existing true minor source in
Indian country (as defined in 40 CFR 49.152(d)), you must register your
source with your reviewing authority in your area within 18 months
after the effective date of this program, that is, by March 1, 2013. If
your true minor source commences construction in the time period after
the effective date of this rule and September 2, 2014, you must also
register your source with the reviewing authority in your area within
90 days after the source begins operation. You are exempt from this
registration requirement if your source is subject to 40 CFR 49.138--
``Rule for the registration of air pollution sources and the reporting
of emissions.''
     If you wish to commence construction of a new true minor
source or a modification at an existing true minor source that is
subject to this program, you must obtain a permit pursuant to 40 CFR
49.154 and 49.155 (or a general permit pursuant to 40 CFR 49.156, if
applicable) by the earlier of 6 months after the general permit for a
source category is published in the Federal Register or on or after 36
months from the effective date of this rule, that is, September 2,
2014. The proposed new source or modification will be subject to the
registration requirements of 40 CFR 49.160, except for sources that are
subject to the registration requirements of 40 CFR 49.138--``Rule for
the registration of air pollution sources and the reporting of
emissions.''

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it raises novel
legal or policy issues arising out of legal mandates, the President's
priorities or the principles set forth in the Executive Order.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011) and any changes made in response to OMB
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis of the potential costs and
impacts associated with this action. This rule is not considered
economically significant because EPA estimates the total annualized
costs of the rule to be substantially lower than $100 million.
    Given that during the first three years following the rule's
effective date, all new and modified sources are either required to
register or request coverage under the general permit available for
their source category (unless the source decides to apply for a site-
specific permit at the time the source had to request coverage under
that general permit), the EPA estimates lower bound \42\ total
annualized costs of the rule to be $4.6 million, including $2.3 million
for industry and $2.3 million for the Agency ($2008) while upper bound
\42\ total annualized costs of this rule are estimated to be
approximately $4.7 million per year, including $2.4 million for
industry and $2.3 million for the Agency ($2008). After the first 36
months, total annualized costs for true minor sources would increase,
since all new and modified true minor sources will have to apply for a
site-specific permit or request coverage under a general permit.
However, EPA believes that costs for sources choosing to request
coverage under a general permit would remain low, as would cost for the
Agency. This analysis is contained in the EIA for this final rule. A
copy of the analysis is available in the docket for this action.
---------------------------------------------------------------------------

    \42\ ``Lower Bound'' costs in the Economic Impact Analysis (EIA)
of this rule only include monitoring, recordkeeping and reporting
costs computed under the conservative assumption that all facilities
choose site-specific permitting (cost burden for development and
implementation of general permits is unknown at this time). Under
the ``Upper Bound'' cost estimates some facilities area assumed to
be subject to BACT.
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
    The information collection requirements resulting from this final
rule are associated with certain records and reports that 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, (2) identify any stationary sources not subject to
the standards and identify stationary sources subject to the rules, and
(3) 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 (or the EPA Administrator in
non-delegated areas) can decide which plants, records or processes
should be inspected.
    The nonattainment major NSR rule would have little impact on
existing major sources in Indian country because it would only affect
such owners and operators if they propose a major modification and only
one is expected during the first 6 years after promulgation (See the
Economic Impact Analysis in the docket for this action for more
information). In addition, the final 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 major NSR rule or a TIP,
we are already required to implement the program in Indian country and
have developed source-specific FIPs to do so. As a result, there would
be no new or additional burden on industry.
    With regard to the minor source permitting rule (including new
minor

sources, minor modifications at minor sources, minor modifications at
major sources and new synthetic minor sources), it is estimated that
4,326 new or modified facilities will be affected for the first 3 years
after promulgation of the rule.
    Minor sources will incur approximately 47,220 hours in monitoring,
recordkeeping and reporting burden, incurring an estimated $549,402
($2008) in burden during this 36 month period to complete registration
or request coverage under a general permit. In addition, 32,970
existing true and synthetic minor sources will incur a one-time burden
of 169,590 hours or an estimated $2.1 million, to complete registration
for true minor sources and to secure new permits for existing synthetic
minor sources. The Agency is estimated to incur 76,550 hours or $6.91
million ($2008) in burden to administer the minor source program during
the first 3 years after rule promulgation. This Agency burden does not
include costs associated with development and implementation of new
general permits, as these costs are not known at this time. Burden is
defined at 5 CFR 1320.3(b).
    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 EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.

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 this final rule on small
entities, ``small entity'' is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government or
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities potentially regulated by this final rule in Indian country
are:
     New and modified minor sources of regulated NSR
pollutants;
     Sources of regulated NSR pollutants choosing to accept
enforceable emission limitations to avoid major source regulations
(synthetic minors);
     Sources of HAP choosing to accept enforceable emission
limitations to avoid major source regulations (synthetic minors);
     Minor modifications to major sources of regulated NSR
pollutants;
     New major sources of regulated NSR pollutants in
nonattainment areas; and
     Major modifications to major sources of regulated NSR
pollutants in nonattainment areas.
    We have determined that the new major sources and major
modifications at existing major sources in nonattainment areas will
incur no incremental costs or will experience cost savings due to the
final rule because the rule only changes the regulatory mechanism in
which these sources can request a permit (it does not change the
compliance requirements). The costs of the source-specific FIP (the
alternative mechanism in the absence of this rule) would have been
comparable to the estimated costs of complying with this rule. In
addition, since the permitting process may be less uncertain under the
final rule, new and modifying major sources could potentially
experience cost savings compared to baseline conditions.
    Therefore, the screening assessment focused on costs for new and
modified minor sources, minor modifications at major sources and
synthetic minor 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 of 2011
through 2016. However, since data on minor sources in Indian country
are generally very limited, we conducted an exhaustive search for
information currently available from EPA databases, the Small Business
Administration and EPA Regional Offices. We then collected data from
the Economic Census (2002) 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 6-year period after
the effective date of the rule (2011 through 2016), we estimate that
7,606 new minor sources will be created in Indian country.
    Based on our analysis,\43\, EPA also estimates that fewer than 20
percent of new minor sources in Indian country (20 percent of 7,606)
will be owned by small businesses. Thus, we estimate that 1,521 new
minor source facilities will be created in Indian country by small
businesses during the first 6 years after promulgation. Additionally,
we project that 197 of the total estimated 984 minor modifications to
existing minor sources during the period 2011 through 2016 will occur
at facilities owned by small businesses. Furthermore, we estimate that
10 synthetic minor sources owned by small businesses will be created
during the period 2011 through 2016.
---------------------------------------------------------------------------

    \43\ 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 121.201). We also examined the share of
existing major and synthetic minor sources in Indian country that
are owned by small businesses.
---------------------------------------------------------------------------

    Finally, we estimate that 2 of the 12 major sources in Indian
country that make a minor modification to their operations between 2011
and 2016 will be owned by small businesses. Table 2 summarizes the
estimated number of affected facilities and small businesses and table
3 disaggregates this information by source category (NAICS code).

         Table 2--Projected Number of Affected Small Businesses
                         [2011 through 2016] \a\
------------------------------------------------------------------------
                                                        Projected number
                                                           of new and
                      Source type                       modified sources
                                                         owned by small
                                                           businesses
------------------------------------------------------------------------
New Minor Sources.....................................             1,521
Modified Minor Sources................................               197
Synthetic Minor Sources...............................                10
Minor Modifications to Major Sources..................                 2
                                                       -----------------

    Total.............................................             1,730
------------------------------------------------------------------------
\a\ Based on Year 2008 dollars.

                                      Table 3--Source Categories for Projected Number of Affected Small Businesses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Minor        Total projected
                NAICS                     Sector description        New minor      Modified minor    Synthetic minor  modifications to  small businesses
                                                                     sources           sources           sources        major sources       by sector
--------------------------------------------------------------------------------------------------------------------------------------------------------
324121...............................  Asphalt hot mix........                 1  ................  ................  ................                 1
811121...............................  Auto body refinishing..                 4                 6  ................  ................                10
3116.................................  Beef Cattle Complex,                    1  ................  ................  ................                 1
                                        Slaughter House and
                                        Meat Packing Plant.
3251.................................  Chemical preparation...                 1  ................  ................  ................                 1
32711................................  Clay and ceramics                       4                 1  ................  ................                 5
                                        operations (kilns).
327320...............................  Concrete batching plant                 1  ................  ................  ................                 1
211111...............................  Crude Petroleum and                 1,402               150                 3                 2             1,557
                                        Natural Gas Extraction.
22111................................  Electric power                          1  ................  ................  ................                 1
                                        generation.
3329.................................  Fabricated metal         ................                 1  ................  ................                 1
                                        products.
3323.................................  Fabricated structural    ................                 1  ................  ................                 1
                                        metal.
4471.................................  Gasoline station                       19                 7  ................  ................                26
                                        (storage tanks,
                                        refueling).
424510...............................  Grain Elevator.........                 2                 1  ................  ................                 3
33311................................  Machinery manufacturing  ................                 3  ................  ................                 3
221210...............................  Natural Gas                             1                 1  ................  ................                 2
                                        Distribution.
21111................................  Oil and gas production/                 1  ................  ................  ................                 1
                                        operations.
72112................................  Other (natural gas-                    11                10                 7  ................                28
                                        fired boilers) \a\.
323110...............................  Printing operations                     3                 1  ................  ................                 4
                                        (lithographic).
54171................................  Professional,                           3                 1  ................  ................                 4
                                        Scientific and
                                        Technical Services.
212321...............................  Sand and Gravel Mining.                 1                 1  ................  ................                 2
238990...............................  Sand and shot blasting                  3                 1  ................  ................                 4
                                        operations.
321113...............................  Sawmills...............                 1                 1  ................  ................                 2
221320...............................  Sewage treatment                        1  ................  ................  ................                 1
                                        facilities.
562212...............................  Solid Waste Landfill...                 1  ................  ................  ................                 1
332812...............................  Surface coating                         5                 3  ................  ................                 8
                                        operations.
                                       Other (costs not                       54                 8  ................  ................                62
                                        estimated) \b\.
                                                               -----------------------------------------------------------------------------------------
    Total............................  .......................             1,521               197                10                 2             1,730
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ For small business analysis, used NAICS code designated for casino hotels. However, the projected new and modified sources listed under ``other
  (natural gas-fired boilers)'' include not only boilers at casino hotels, but also new sources listed as ``boilers'' and new Tribal government
  facilities assumed to have natural gas-fired boilers.
\b\ Includes source categories such as crematories, restaurants, car dealers and social assistance.

    To conduct our screening analysis of impacts \44\ 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.
---------------------------------------------------------------------------

    \44\ This small entity impact assessment does not reflect the
final revisions to the rule's provisions. At the time this analysis
was conducted, we planned to delay the implementation date of the
rule for true minor sources that might be subject to the minor NSR
program for a period of 18 months from the rule's effective date (60
days after the final rule is published). However, to address
commenters' concerns about EPA's ability to implement this NSR
permitting program in a timely manner and to provide additional time
for EPA Regions to prepare for their duties as the Federal
permitting authority, including the development of additional
permitting tools, we have extended the implementation date of the
rule for true minor sources to 36 months from the effective date of
this final rule. In addition, sources eligible to seek coverage
under a general permit will be subject to that general permit 4
months after the general permit is effective (6 months after the
general permit is published in the Federal Register) unless the
source decides to apply for a site-specific permit at the time the
source had to request coverage under that general permit. Therefore,
since we are reducing the permitting requirements during the initial
36-month period after the effective date of the rule, we expect the
actual impacts to be lower than those reported here.
---------------------------------------------------------------------------

    Our analysis estimates that small businesses investing in new minor
source facilities, minor modifications to existing minor sources, minor
modifications to existing major sources and new synthetic minor sources
over the period 2011 through 2016 will incur costs that are less than 1
percent of average small company sales revenues for most sectors, but
small companies choosing to invest in new auto body refinishing plants,
concrete batching plants, sawmills, solid waste landfills, sand and
gravel mines and sand and shot blasting operations have the potential
to incur costs between 1 percent and 3 percent of sales under upper
bound cost estimates. The EPA estimates that at most 20 new and
modified sources would be owned by small businesses in these sectors
(new auto body refinishing plants, concrete batching plants, sawmills,
solid waste landfills, sand and gravel mines and sand and shot blasting
operations) during the first 6 years following the effective date of
the rule. Because this is a small number of facilities and because EPA
believes that very few new sources will incur upper bound costs, this
is considered an over-estimate of the potential small business impacts.
Thus, EPA does not believe that the rule will impose significant
economic impacts on a substantial number of small businesses owning new
or modified minor sources.
    Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA has tried to
reduce the impact of this rule on small entities. We are not requiring
existing minor sources to obtain a permit once the rule is effective,
but we are requiring them to register within 18 months after the rule's
effective date or 90 days after the source begins operation. In
addition, we are delaying the implementation of the rule for new and
modified minor sources to the earlier of 4 months after the effective
date of a general permit (6 months after the final permit is published)
or 36 months after the rule's effective date, that is, September 2,
2014, to provide adequate time for the regulated entities and us, the
reviewing authority, to prepare for the implementation of this rule.

D. Unfunded Mandates Reform Act

    This 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 EPA cost estimates lower bound total annualized costs of the
rule to be $4.6 million, including $2.3 million for industry and $2.3
million for the Agency ($2008) while upper bound total annualized costs
of this rule were estimated to be approximately $4.7 million per year,
including $2.4 million for industry and $2.3 million for the Agency
($2008). After the first three years following the rule's effective
date, total annualized costs for true minor sources would increase
since all new and modified true minor sources will have to apply for a
site-specific permit or request coverage under a general permit.
However, EPA believes that costs for sources choosing to request
coverage under a general permit would remain low, as would cost for the
Agency. Agency costs do not include the costs of developing general
permits, as these costs are unknown at this time. Thus, this rule is
not subject to the requirements of sections 202 or 205 of the Unfunded
Mandates Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule has no
requirements applicable to small governments and as such does not
impose obligations upon them.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will 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. This rule has no requirements
applicable to states. Thus, Executive Order 13132 does not apply to
this rule.
    In the spirit of Executive Order 13132 and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on the proposed rule
from state and local officials. To that end, we had two meetings with
the STAPPA/ALAPCO \45\ to present the draft preamble and rule. We also
met with the National Federation of Independent Business and provided
outreach material through EPA's Small Business Ombudsman's office to
get input from the small businesses that might be affected by this
rule.
---------------------------------------------------------------------------

    \45\ This organization has since changed its name to the
National Association of Clean Air Agencies (NACAA).
---------------------------------------------------------------------------

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has Tribal 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 Tribal governments or EPA
consults with Tribal officials early in the process of developing the
proposed regulation and develops a Tribal summary impact statement.
    The EPA has concluded that this action will have Tribal
implications. However, it will neither impose substantial direct
compliance costs on Tribal governments, nor preempt Tribal law. This
action provides two preconstruction air permitting rules for stationary
sources in Indian Country, but these rules will neither impose
substantial direct compliance costs on Tribal governments nor preempt
Tribal law because these rules will be implemented by EPA or a delegate
Tribal agency that has requested to assist EPA with administration of
the rules, until replaced by an EPA-approved Tribal implementation
plan. Nonetheless, EPA conducted substantial outreach and consultation
with Tribal officials and other Tribal representatives and has
incorporated Tribal views, throughout the course of developing these
rules. See section III.D of this final rule preamble for more details
on our Tribal outreach and consultation efforts.

G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern 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
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (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. The number of projected new sources in the energy sector due to
this rule is a small share (about 1 percent) of the total number of
energy sector facilities nationwide. Therefore, EPA does not believe
that this action will have a significant effect on energy production.
In addition, EPA's cost analysis, presented in the Economic Impact
Analysis (EIA), estimates the total annualized cost of the rule will be
substantially less than the $100 million cost and/or benefits trigger
identified in EO 12866 and thus this action is not considered an
``economically significant regulatory action.'' With the final rule not
being a economically significant regulatory action, it is not
considered a significant energy action.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
    The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations (which
are persons living in Indian country) without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Indeed, EPA believes that the two preconstruction air
quality regulations in this FIP would provide regulatory certainty and
fill a regulatory gap in Indian country and result in emissions
reductions from sources complying with these regulations. Consequently,
the regulations are expected to result in health benefits to persons
living in Indian country, many of whom live in low-income and minority
communities.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective 60 days from the date of
publication, i.e., on August 30, 2011.
    Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit by August 30, 2011 Any such judicial
review is limited to only those objections that are raised with
reasonable specificity in timely comments. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
Under section 307(b)(2) of the Act, the requirements of this final
action may not be challenged later in civil or criminal proceedings
brought by us to enforce these requirements.

IX. Statutory Authority

    The statutory authority for this action is provided by sections
101, 110, 112, 114, 116 and 301 of the Act as amended (42. U.S.C. 7401,
7410, 7412, 7414, 7416 and 7601).

List of Subjects

40 CFR Part 49

    Administrative practices and procedures, Air pollution control,
Environmental protection, Indians, Intergovernmental relations,
Reporting and recordkeeping requirements.

40 CFR Part 51

    Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.

    Dated: June 10, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons cited in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

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

Subpart C--[AMENDED]

0
2. Add an undesignated center heading and Sec. Sec.  49.151 through
49.161 to subpart C to read as follows:

Federal Minor New Source Review Program in Indian Country

* * * * *
Sec.
49.151 Program overview.
49.152 Definitions.
49.153 Applicability.
49.154 Permit application requirements.
49.155 Permit requirements.
49.156 General permits.
49.157 Public participation requirements.
49.158 Synthetic minor source permits.
49.159 Final permit issuance and administrative and judicial review.
49.160 Registration program for minor sources in Indian country.
49.161 Administration and delegation of the minor NSR program in
Indian country.
* * * * *

Sec.  49.151  Program overview.

    (a) What constitutes the Federal minor new source review (NSR)
program in Indian country? As set forth in this Federal Implementation
Plan (FIP), the Federal minor NSR program in Indian country (or
``program'') consists of Sec. Sec.  49.151 through 49.165.

    (b) What is the purpose of this program? This program has the
following purposes:
    (1) It establishes a preconstruction permitting program for new and
modified minor sources (minor sources) and minor modifications at major
sources located in Indian country to meet the requirements of section
110(a)(2)(C) of the Act.
    (2) It establishes a registration system that will allow the
reviewing authority to develop and maintain a record of minor source
emissions in Indian country.
    (3) It provides a mechanism for an otherwise major source to
voluntarily accept restrictions on its potential to emit to become a
synthetic minor source. This mechanism may also be used by an otherwise
major source of 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.
    (4) It provides an additional mechanism for case-by-case maximum
achievable control technology (MACT) determinations for those major
sources of HAPs subject to such determinations under section 112(g)(2)
of the Act.
    (5) It sets forth the criteria and procedures that the reviewing
authority (as defined in Sec.  49.152(d)) will use to administer the
program.
    (c) When and where does this program apply?
    (1) The provisions of this program apply in Indian country where
there is no EPA-approved minor NSR program, according to the following
implementation schedule:
    (i) Existing major sources.
    (A) If you wish to commence construction of a minor modification at
an existing major source on or after August 30, 2011, you must obtain a
permit pursuant to Sec. Sec.  49.154 and 49.155 (or a general permit
pursuant to Sec.  49.156, if applicable) prior to commencing
construction.
    (B) If you wish to obtain a synthetic minor source permit pursuant
Sec.  49.158 to establish a synthetic minor source and/or a synthetic
minor HAP source at your existing major source, you may submit a
synthetic minor source permit application on or after August 30, 2011.
However, if your permit application for a synthetic minor source and/or
synthetic minor HAP source pursuant to the FIPs for reservations in
Idaho, Oregon and Washington has been determined complete prior to
August 30, 2011, you do not need to apply for a synthetic minor source
permit under this program.
    (ii) Synthetic minor sources.
    (A) If you wish to commence construction of a new synthetic minor
source and/or a new synthetic minor HAP source or a modification at an
existing synthetic minor source and/or synthetic minor HAP source on or
after August 30, 2011, you must obtain a permit pursuant to Sec.
49.158 prior to commencing construction.
    (B) If your existing synthetic minor source and/or synthetic minor
HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec.  49.158 prior to
commencing construction.
    (C) If your existing synthetic minor source and/or synthetic minor
HAP source was established under a permit with enforceable emissions
limitations issued pursuant to part 71 of this chapter, the reviewing
authority has the discretion to require you to submit a permit
application for a synthetic minor source permit under this program by
September 4, 2012 and pursuant to Sec.  49.158, to require you to
submit a permit application for a synthetic minor source permit under
this program (pursuant to Sec.  49.158) at the same time that you apply
to renew your part 71 permit or to allow you to continue to maintain
synthetic minor status through your part 71 permit. If the reviewing
authority requires you to obtain a synthetic minor source permit and/or
synthetic minor HAP source permit under this program (pursuant to Sec.
49.158) it also has the discretion to require any additional
requirements, including control technology requirements, based on the
specific circumstances of the source.
    (D) If your existing synthetic minor source and/or synthetic minor
HAP source was established through a mechanism other than those
described in paragraphs (c)(1)(ii)(B) and (C) of this section, you must
submit an application pursuant to Sec.  49.158 for a synthetic minor
source permit under this program by September 4, 2012. The reviewing
authority has the discretion to require any additional requirements,
including control technology requirements, based on the specific
circumstances of the source.
    (iii) True minor sources.
    (A) If you own or operate an existing true minor source in Indian
country (as defined in 40 CFR 49.152(d)), you must register your source
with your reviewing authority in your area within 18 months after the
effective date of this program, that is, by March 1, 2013. If your true
minor source commences construction in the time period after the
effective date of this rule and September 2, 2014, you must also
register your source with the reviewing authority in your area within
90 days after the source begins operation. You are exempt from this
registration requirement if your source is subject to Sec.  49.138--
``Rule for the registration of air pollution sources and the reporting
of emissions.''
    (B) If you wish to commence construction of a new true minor source
or a modification at an existing true minor source that is subject to
this program, you must obtain a permit pursuant to Sec. Sec.  49.154
and 49.155 (or a general permit pursuant to Sec.  49.156, if
applicable) by the earlier of 6 months after the general permit for a
source category is published in the Federal Register or on or after 36
months from the effective date of this rule, that is, September 2,
2014. The proposed new source or modification will also be subject to
the registration requirements of Sec.  49.160, except for sources that
are subject to Sec.  49.138.
    (2) The provisions of this program or portions of this program
cease to apply in an area covered by an EPA-approved Tribal
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 sources. Permits previously
issued under this program will remain in effect and be enforceable as a
practical matter until and unless the Tribe issues new permits to these
sources based on the provisions of the EPA-approved Tribal
implementation plan.
    (d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a minor source:
    (1) If you commence construction of a new source or modification
that is subject to this program after the applicable date specified in
paragraph (c) of this section without applying for and receiving a
permit pursuant to this program, you will be subject to appropriate
enforcement action.
    (2) If you do not construct or operate your source or modification
in accordance with the terms of your

minor NSR permit, you will be subject to appropriate enforcement
action.
    (3) If you are subject to the registration requirements of this
program, you must comply with those requirements.
    (4) 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.
    (5) Nothing in this program prevents a Tribe from administering a
minor NSR permit program with different requirements in an approved
Tribal Implementation Plan (TIP) as long as the TIP does not interfere
with any applicable requirement of the Act.
    (e) What is the process for issuing permits under this program? For
the reviewing authority to issue a final permit decision under this
program (other than a general permit under Sec.  49.156 or a synthetic
minor source permit under Sec.  49.158), all the actions listed in
paragraphs (e)(1) through (8) of this section need to be completed. The
processes for issuing general permits and synthetic minor source
permits are set out in Sec.  49.156 and Sec.  49.158, respectively.
    (1) You must submit a permit application that meets the
requirements of Sec.  49.154(a).
    (2) The reviewing authority determines completeness of the permit
application as provided in Sec.  49.154(b) within 45 days of receiving
the application (60 days for minor modifications at major sources).
    (3) The reviewing authority determines the appropriate emission
limitations and permit conditions for your affected emissions units
under Sec.  49.154(c).
    (4) The reviewing authority may require you to submit an Air
Quality Impact Analysis (AQIA) if it 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.
    (5) If an AQIA is submitted, the reviewing authority determines
that the new or modified source will not cause or contribute to a NAAQS
or PSD increment violation.
    (6) The reviewing authority develops a draft permit that meets the
permit content requirements of Sec.  49.155(a).
    (7) The reviewing authority provides for public participation,
including a 30-day period for public comment, according to the
requirements of Sec.  49.157.
    (8) The reviewing authority either issues a final permit that meets
the requirements of Sec.  49.155(a) or denies the permit and provides
reasons for the denial, within 135 days (or within 1 year for minor
modifications at major sources) after the date the application is
deemed complete and all additional information necessary to make an
informed decision has been provided.

Sec.  49.152  Definitions.

    (a) For sources of regulated NSR pollutants in nonattainment areas,
the definitions in Sec.  49.167 apply to the extent that they are used
in this program (except for terms defined in paragraph (d) of this
section).
    (b) For sources of regulated NSR pollutants in attainment or
unclassifiable areas, the definitions in Sec.  52.21 of this chapter
apply to the extent that they are used in this program (except for
terms defined in paragraph (d) of this section).
    (c) For sources of HAP, the definitions in Sec.  63.2 of this
chapter apply to the extent that they are used in this program (except
for terms defined in paragraph (d) of this section).
    (d) The following definitions also apply to this program:
    Affected emissions units means the following emissions units, as
applicable:
    (1) For a proposed new minor source, all the emissions units.
    (2) For a proposed modification, the new, modified and replacement
emissions units involved in the modification.
    Allowable emissions means ``allowable emissions'' as defined in
Sec.  52.21(b)(16) of this chapter, except that the allowable emissions
for any emissions unit are calculated considering any emission
limitations that are enforceable as a practical matter on the emissions
unit's potential to emit.
    Emission limitation means a requirement established by the
reviewing authority that 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 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
or other standard is both legally and practicably enforceable as
follows:
    (1) An emission limitation or other standard is legally enforceable
if the reviewing authority has the right to enforce it.
    (2) Practical enforceability for an emission limitation or for
other standards (design standards, equipment standards, work practices,
operational standards, pollution prevention techniques) in a permit for
a source is achieved if the permit's provisions specify:
    (i) A limitation or standard and the emissions units or activities
at the source subject to the limitation or standard;
    (ii) The time period for the limitation or standard (e.g., hourly,
daily, monthly and/or annual limits such as rolling annual limits); and
    (iii) The method to determine compliance, including appropriate
monitoring, recordkeeping, reporting and testing.
    (3) For rules and general permits that apply to categories of
sources, practical enforceability additionally requires that the
provisions:
    (i) Identify the types or categories of sources that are covered by
the rule or general permit;
    (ii) Where coverage is optional, provide for notice to the
reviewing authority of the source's election to be covered by the rule
or general permit; and
    (iii) Specify the enforcement consequences relevant to the rule or
general permit.
    Environmental Appeals Board means the Board within the EPA
described in Sec.  1.25(e) of this chapter.
    Indian country, as defined in 18 U.S.C. 1151, means the following:
    (1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent and including rights-of-way running through the
reservation; \1\
---------------------------------------------------------------------------

    \1\ Under this definition, EPA treats as reservations trust
lands validly set aside for the use of a tribe even if the trust
lands have not been formally designated as a reservation.
---------------------------------------------------------------------------

    (2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof and whether within or without the limits of a state;
and
    (3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
    Indian governing body means the governing body of any Tribe, band
or group of Indians subject to the jurisdiction of the United States
and recognized by the United States as possessing power of self-
government.
    Minor modification at a major source means a modification at a
major source that does not qualify as a major modification under Sec.
49.167 or Sec.  52.21 of this chapter, as applicable.

    Minor NSR threshold means any of the applicability cutoffs for this
program listed in Table 1 of Sec.  49.153.
    Minor source means, for purposes of this rule, a source, not
including the exempt emissions units and activities listed in Sec.
49.153(c), that has the potential to emit regulated NSR pollutants in
amounts that are less than the major source thresholds in Sec.  49.167
or Sec.  52.21 of this chapter, as applicable, but equal to or greater
than the minor NSR thresholds in Sec.  49.153. The potential to emit
includes fugitive emissions, to the extent that they are quantifiable,
only if the source belongs to one of the source categories listed in
part 51, Appendix S, paragraph II.A.4(iii) or Sec.  52.21(b)(1)(iii) of
this chapter, as applicable.
    Modification means any physical or operational change at a source
that would cause an increase in the allowable emissions of a minor
source or an increase in the actual emissions (based on the applicable
test under the major NSR program) of a major source for any regulated
NSR pollutant or that would cause the emission of any regulated NSR
pollutant not previously emitted. Allowable emissions of a minor source
include fugitive emissions, to the extent that they are quantifiable,
only if the source belongs to one of the source categories listed in
part 51, Appendix S, paragraph II.A.4(iii) or Sec.  52.21(b)(1)(iii) of
this chapter, as applicable. 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 change is
prohibited under any permit condition that is enforceable as a
practical matter.
    (3) A change in ownership at a stationary source.
    (4) The emissions units and activities listed in Sec.  49.153(c).
    Potential to emit means the maximum capacity of a source to emit a
pollutant under its physical and operational design. Any physical or
operational limitation on the capacity of the source to emit a
pollutant, including air pollution control equipment and restrictions
on hours of operation or on the type or amount of material combusted,
stored or processed, shall be treated as part of its design if the
limitation or the effect it would have on emissions is enforceable as a
practical matter. Secondary emissions, as defined at Sec.  52.21(b)(18)
of this chapter, do not count in determining the potential to emit of a
source.
    Reviewing authority means the Administrator or may mean an Indian
Tribe in cases where a Tribal agency is assisting EPA with
administration of the program through a delegation.
    Synthetic minor HAP source means a source that otherwise has the
potential to emit HAPs in amounts that are at or above those for major
sources of HAP in Sec.  63.2 of this chapter, but that has taken a
restriction so that its potential to emit is less than such amounts for
major sources. Such restrictions must be enforceable as a practical
matter.
    Synthetic minor source means a source that otherwise has the
potential to emit regulated NSR pollutants in amounts that are at or
above those for major sources in Sec.  49.167, Sec.  52.21 or Sec.
71.2 of this chapter, as applicable, 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.
    True minor source means a source, not including the exempt
emissions units and activities listed in Sec.  49.153(c), that emits or
has the potential to emit regulated NSR pollutants in amounts that are
less than the major source thresholds in Sec.  49.167 or Sec.  52.21 of
this chapter, as applicable, but equal to or greater than the minor NSR
thresholds in Sec.  49.153, without the need to take an enforceable
restriction to reduce its potential to emit to such levels. That is, a
true minor source is a minor source that is not a synthetic minor
source. The potential to emit includes fugitive emissions, to the
extent that they are quantifiable, only if the source belongs to one of
the source categories listed in part 51, Appendix S, paragraph
II.A.4(iii) or Sec.  52.21(b)(1)(iii) of this chapter, as applicable.

Sec.  49.153  Applicability.

    (a) Does this program apply to me? The requirements of this program
apply to you as set out in paragraphs (a)(1) through (4) of this
section.
    (1) New and modified sources. The applicability of the
preconstruction review requirements of this program is determined
individually for each regulated NSR pollutant that would be emitted by
your new or modified source. For each such pollutant, determine
applicability as set out in the relevant paragraph (a)(1)(i) or (ii) of
this section.
    (i) New source. Use the following steps to determine applicability
for each regulated NSR pollutant.
    (A) Step 1. Determine whether your proposed source's potential to
emit the pollutant that you are evaluating is subject to review under
the applicable major NSR program (that is, under Sec.  52.21 of this
chapter, under the Federal major NSR program for nonattainment areas in
Indian country at Sec. Sec.  49.166 through 49.175 or under a program
approved by the Administrator pursuant to Sec.  51.165 or Sec.  51.166
of this chapter). If not, go to Step 2 (paragraph (a)(1)(i)(B) of this
section).
    (B) Step 2. Determine whether your proposed source's potential to
emit the pollutant that you are evaluating, (including fugitive
emissions, to the extent they are quantifiable, only if the source
belongs to one of the source categories listed pursuant to section
302(j) of the Act), is equal to or greater than 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. Use the following steps to
determine applicability for each regulated NSR pollutant.
    (A) Step 1. For the pollutant being evaluated, determine whether
your proposed modification is subject to review under the applicable
major NSR program. If the modification at your existing major source
does not qualify as a major modification under that program based on
the actual-to-projected-actual test, it is considered a minor
modification and is subject to the minor NSR program requirements, if
the net emissions increase from the actual-to-projected-actual test is
equal to or exceeds the minor NSR threshold listed in Table 1 of this
section. For a modification at your existing minor source go to Step 2
(paragraph (a)(1)(ii)(B) of this section).
    (B) Step 2. Determine whether the increase in allowable emissions
from the proposed modification (calculated using the procedures of
paragraph (b) of this section) would be equal to or greater than 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 3
(paragraph (a)(1)(ii)(C) of this section).
    (C) Step 3. If any of the emissions units affected by your proposed
modification result in an increase in an annual allowable emissions
limit for the pollutant that you are evaluating, the proposed
modification is subject to paragraph (a)(2) of this section. If not,
your proposed modification is not subject to this program.
    (2) Increase in an emissions unit's annual allowable emissions
limit. If you propose a physical or operational change at your minor or
major 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 a permit revision to reflect the 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 may be
accomplished through an administrative permit revision as provided in
Sec.  49.159(f).
    (3) Synthetic minor source permits.
    (i) If you own or operate an existing major source and you wish to
obtain a synthetic minor source permit pursuant to Sec.  49.158 to
establish a synthetic minor source and/or a synthetic minor HAP source,
you may submit a synthetic minor source permit application on or after
August 30, 2011. However, if your permit application for a synthetic
minor source and/or synthetic minor HAP source pursuant to the FIPs for
reservations in Idaho, Oregon and Washington has been determined
complete prior to August 30, 2011, you do not need to apply for a
synthetic minor source permit under this program.
    (ii) If you wish to commence construction of a new synthetic minor
source and/or a new synthetic minor HAP source or a modification at an
existing synthetic minor source and/or synthetic minor HAP source, on
or after August 30, 2011, you must obtain a permit pursuant to Sec.
49.158 prior to commencing construction.
    (iii) If you own or operate a synthetic minor source or synthetic
minor HAP source that was established prior to the effective date of
this rule (that is, prior to August 30, 2011) pursuant to the FIPs
applicable to the Indian reservations in Idaho, Oregon and Washington
or under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec.  49.158 prior to
commencing construction.
    (iv) If you own or operate a synthetic minor source or synthetic
minor HAP source that was established prior to the effective date of
this rule (that is, prior to August 30, 2011) through a permit with
enforceable emissions limitations issued pursuant to the operating
permit program in part 71 of this chapter, the reviewing authority has
the discretion to require you to apply for a synthetic minor source
permit under Sec.  49.158 of this program by September 4, 2012 or at
the time of part 71 permit renewal or allow you to maintain synthetic
minor status through your part 71 permit.
    (v) For all other synthetic minor sources or synthetic minor HAP
sources that obtained synthetic minor status or synthetic minor source
permits through a mechanism other than those described in paragraphs
(a)(3)(iii) and (iv) of this section, you must submit an application
for a synthetic minor source permit under this program by September 4,
2012 under Sec.  49.158.
    (4) Case-by-case maximum achievable control technology (MACT)
determinations. If you propose to construct or reconstruct a major
source of HAPs such that you are subject to a case-by-case MACT
determination under section 112(g)(2) of the Act, you may elect to have
this determination approved under the provisions of this program (other
options for such determinations include a title V permit action or a
Notice of MACT Approval under Sec.  63.43 of this chapter). If you
elect this option, you still must comply with the requirements of Sec.
63.43 of this chapter that apply to all case-by-case MACT
determinations.
    (b) How do I determine the increase in allowable emissions from a
physical or operational change at my source? Determine the resulting
increase in allowable emissions in tons per year (tpy) of each
regulated NSR pollutant after considering all increases from the
change. A physical or operational change may involve one or more
emissions units. The total increase in allowable emissions resulting
from your proposed change, including fugitive emissions, to the extent
they are quantifiable, only if your source belongs to one of the source
categories listed pursuant to section 302(j) of the Act, would be the
sum of the following:
    (1) For each new emissions unit that is to be added, the emissions
increase would be the potential to emit of the emissions unit.
    (2) 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. However, this may not be a negative value. If the
allowable emissions of an emissions unit would be reduced as a result
of the change or replacement, use zero in the calculation.
    (3) For each unpermitted emissions unit (a unit without any
enforceable permit conditions) 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. However, this may not be a negative value.
If an emissions unit's post-change allowable emissions would be less
than its pre-change potential to emit, use zero in the calculation.
    (c) What emissions units and activities are exempt from this
program?
    This program does not apply to the following emissions units and
activities at a source that are listed in paragraphs (c)(1) through (7)
of this section.
    (1) Mobile sources.
    (2) Ventilating units for comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial processes
    (3) Noncommercial food preparation.
    (4) Consumer use of office equipment and products.
    (5) Janitorial services and consumer use of janitorial products.
    (6) Internal combustion engines used for landscaping purposes.
    (7) Bench scale laboratory activities, except for laboratory fume
hoods or vents.

            Table 1 to Sec.   49.153--Minor NSR Thresholds a
------------------------------------------------------------------------
                                       Minor NSR           Minor NSR
                                    thresholds for      thresholds for
     Regulated NSR pollutant         nonattainment     attainment areas
                                     areas  (tpy)            (tpy)
------------------------------------------------------------------------
Carbon monoxide (CO)............                   5                  10
Nitrogen oxides (NOX)...........               5 \b\                  10
Sulfur dioxide (SO2)............                   5                  10
Volatile Organic Compounds (VOC)               2 \b\                   5

PM..............................                   5                  10
PM10............................                   1                   5
PM2.5...........................                 0.6                   3
Lead............................                 0.1                 0.1
Fluorides.......................                  NA                   1
Sulfuric acid mist..............                  NA                   2
Hydrogen sulfide (H2S)..........                  NA                   2
Total reduced sulfur (including                   NA                   2
 H2S)...........................
Reduced sulfur compounds                          NA                   2
 (including H2S)................
Municipal waste combustor                         NA                   2
 emissions......................
Municipal solid waste landfill                    NA                  10
 emissions (measured as
 nonmethane organic compounds)..
------------------------------------------------------------------------
\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 apply.
\b\ In extreme ozone nonattainment areas, section 182(e)(2) of the Act
  requires any change at a major source that results in any increase in
  emissions to be subject to major NSR permitting. In other words, any
  changes to existing major sources in extreme ozone nonattainment areas
  are subject to a ``0'' tpy threshold, but that threshold does not
  apply to minor sources.

Sec.  49.154  Permit application requirements.

    This section applies to you if you are subject to this program
under Sec.  49.153(a) for the construction of a new minor source,
synthetic minor source or a modification at an existing source.
    (a) What information must my permit application contain? Paragraphs
(a)(1) through (3) of this section govern the content of your
application.
    (1) General provisions for permit applications. The following
provisions apply to permit applications under this program:
    (i) The reviewing authority may develop permit application forms
for your use.
    (ii) The permit application need not contain information on the
exempt emissions units and activities listed in Sec.  49.153(c).
    (iii) The permit application for a modification need only include
information on the affected emissions units as defined in Sec.
49.152(d).
    (2) Required permit application content. Except as specified in
paragraphs (a)(1)(ii) and (iii) of this section, you must include the
information listed in paragraphs (a)(2)(i) through (ix) of this section
in your application for a permit under this program. The reviewing
authority may require additional information as needed to process the
permit application.
    (i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
    (ii) A description of your source's processes and products.
    (iii) A list of all affected emissions units (with the exception of
the exempt emissions units and activities listed in Sec.  49.153(c)).
    (iv) For each new emissions unit that is listed, the potential to
emit of each regulated NSR pollutant in tpy (including fugitive
emissions, to the extent that they are quantifiable, if the emissions
unit or source is in one of the source categories listed in part 51,
Appendix S, paragraph II.A.4(iii) or Sec.  52.21(b)(1)(iii) of this
chapter, as applicable), 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, if the emissions unit or
source belongs to one of the source categories listed in part 51,
Appendix S, paragraph II.A.4(iii) or Sec.  52.21(b)(1)(iii) of this
chapter, as applicable), with supporting documentation. For emissions
units that do not have an allowable emissions limit prior to the
modification, report the potential to emit. In your calculation of
annual allowable emissions for an emissions unit after the
modification, you must account for any proposed emission limitations.
    (vi) The following information to the extent it is needed to
determine or regulate emissions: Fuels, fuel use, raw materials,
production rates and operating schedules.
    (vii) Identification and description of any existing air pollution
control equipment and compliance monitoring devices or activities.
    (viii) Any existing limitations on source operation affecting
emissions or any work practice standards, where applicable, for all NSR
regulated pollutants at the source.
    (ix) For each emission point associated with an affected emissions
unit, provide stack or vent dimensions and flow information.
    (3) Optional permit application content. At your option, you may
propose 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.
    (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 (60 days for
minor modifications at major sources) to determine whether the
application contains all the information necessary for processing 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 will notify you in
writing. The reviewing

authority's completeness determination or request for additional
information should be postmarked within 45 days of receipt of the
permit application by the reviewing authority (60 days for minor
modifications at major sources). If you do not receive a request for
additional information or a notice of complete application postmarked
within 45 days of receipt of the permit application by the reviewing
authority (60 days for minor modifications at major sources), 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.
    (4) Any permit application will be granted or denied no later than
135 days (1 year for minor modifications at major sources) after the
date the application is deemed complete and all additional information
necessary to make an informed decision has been provided.
    (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 control technology 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 a numerical limit on the
quantity, rate or concentration of emissions for each regulated NSR
pollutant emitted by 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 numerical limits on the quantity, rate or concentration
of emissions; pollution prevention techniques; design standards;
equipment standards; work practices; operational standards;
requirements relating to the operation or maintenance of the source 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 as well as any FIPs
or TIPs that apply to the unit.
    (5) The emission limitations required by the reviewing authority
must not be affected in a manner by so much of a stack's height as
exceeds good engineering practice or by any other dispersion technique,
except as provided in Sec.  51.118(b) of this chapter. If the reviewing
authority proposes to issue a permit to a source based on a good
engineering practice stack height that exceeds the height allowed by
Sec.  51.100(ii)(1) or (2) of this chapter, it must notify the public
of the availability of the demonstration study and must provide
opportunity for a public hearing according to the requirements of Sec.
49.157 for the draft permit.
    (d) When may the reviewing authority require an air quality impacts
analysis (AQIA)? Paragraphs (d)(1) through (3) of this section govern
AQIA requirements under this program.
    (1) If the reviewing authority has reason to be concerned that the
construction of your minor source or modification would cause or
contribute to a NAAQS or PSD increment violation, it may require you to
conduct and submit an AQIA.
    (2) If required, you must conduct the AQIA using the dispersion
models and procedures of part 51, Appendix W of this chapter.
    (3) If the AQIA reveals that construction of your source or
modification would cause or contribute to a NAAQS or PSD increment
violation, the reviewing authority must require you to reduce or
mitigate such impacts before it can issue you a permit.

Sec.  49.155  Permit requirements.

    This section applies to your permit if you are subject to this
program under Sec.  49.153(a) for construction of a new minor source,
synthetic minor source or a modification at an existing source.
    (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 permit must include the following
elements:
    (i) The effective date of the permit and the date by which you must
commence construction in order for your permit to remain valid (i.e.,
18 months after the permit effective date).
    (ii) The emissions units subject to the permit and their associated
emission limitations.
    (iii) Monitoring, recordkeeping, reporting and testing requirements
to assure compliance with the emission limitations.
    (2) Emission limitations. The permit must include the emission
limitations determined by the reviewing authority under Sec.  49.154(c)
for each affected emissions unit. In addition, the permit must include
an annual allowable emissions limit for each affected emissions unit
and for each regulated NSR pollutant emitted by the unit if the unit is
issued an enforceable emission limitation lower than the potential to
emit of that unit.
    (3) Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with the emission
limitations and annual allowable emissions limits that apply to the
affected emissions units at your source. The reviewing authority may
require, as appropriate, any of the requirements in paragraphs
(a)(3)(i) and (ii) 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.
    (4) Recordkeeping requirements. The permit must include
recordkeeping requirements sufficient to assure compliance with the
emission limitations and monitoring requirements and it must require
the elements in paragraphs (a)(4)(i) and (ii) of this section.
    (i) Records of required monitoring information that include the
information in paragraphs (a)(4)(i)(A) through (F) of this section, as
appropriate.
    (A) The location, date and time of sampling or measurements.
    (B) The date(s) analyses were performed.
    (C) The company or entity that performed the analyses.
    (D) The analytical techniques or methods used.
    (E) The results of such analyses.
    (F) The operating conditions existing at the time of sampling or
measurement.
    (ii) Retention for 5 years of records of all required monitoring
data and

support information for the monitoring sample, measurement, report or
application. Support information may include all calibration and
maintenance records, all original strip-chart recordings or digital
records for continuous monitoring instrumentation and copies of all
reports required by the permit.
    (5) Reporting requirements. The permit must include the reporting
requirements in paragraphs (a)(5)(i) and (ii) of this section.
    (i) Annual submittal of reports of monitoring required under
paragraph (a)(3) of this section, including the type and frequency of
monitoring and a summary of results obtained by monitoring.
    (ii) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit, the probable cause of such deviations and any corrective
actions or preventive measures taken. Within the permit, the reviewing
authority must define ``prompt'' in relation to the degree and type of
deviation likely to occur and the applicable emission limitations.
    (6) Severability clause. The permit must include a severability
clause to ensure the continued validity of the other portions of the
permit in the event of a challenge to a portion of the permit.
    (7) Additional provisions. The permit must also contain provisions
stating the requirements in paragraphs (a)(7)(i) through (vii) of this
section.
    (i) You, as the permittee, must comply with all conditions of your
permit, including emission limitations that apply to the affected
emissions units at your source. Noncompliance with any permit term or
condition is a violation of the permit and may constitute a violation
of the Act and is grounds for enforcement action and for a permit
termination or revocation.
    (ii) Your permitted source must not cause or contribute to a NAAQS
violation or in an attainment area, must not cause or contribute to a
PSD increment violation.
    (iii) It is not a defense for you, as the permittee, in an
enforcement action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with the
conditions of this permit.
    (iv) The permit may be revised, reopened, revoked and reissued or
terminated for cause. The filing of a request by you, as the permittee,
for a permit revision, revocation and re-issuance or termination or of
a notification of planned changes or anticipated noncompliance does not
stay any permit condition.
    (v) The permit does not convey any property rights of any sort or
any exclusive privilege.
    (vi) You, as the permittee, shall furnish to the reviewing
authority, within a reasonable time, any information that the reviewing
authority may request in writing to determine whether cause exists for
revising, revoking and reissuing or terminating the permit or to
determine compliance with the permit. For any such information claimed
to be confidential, you must also submit a claim of confidentiality in
accordance with part 2, subpart B of this chapter.
    (vii) Upon presentation of proper credentials, you, as the
permittee, must allow a representative of the reviewing authority to:
    (A) Enter upon your premises where a source is located or
emissions-related activity is conducted or where records are required
to be kept under the conditions of the permit;
    (B) Have access to and copy, at reasonable times, any records that
are required to be kept under the conditions of the permit;
    (C) Inspect, during normal business hours or while the source is in
operation, any facilities, equipment (including monitoring and air
pollution control equipment), practices or operations regulated or
required under the permit;
    (D) Sample or monitor, at reasonable times, substances or
parameters for the purpose of assuring compliance with the permit or
other applicable requirements and
    (E) Record any inspection by use of written, electronic, magnetic
and photographic media.
    (b) Can my permit become invalid? Your permit becomes invalid if
you do not commence construction within 18 months after the effective
date of your permit, if you discontinue construction for a period of 18
months or more or if you do not complete construction within a
reasonable time. The reviewing authority may extend the 18-month period
upon a satisfactory showing that an extension is justified. This
provision does not apply to the time period between construction of the
approved phases of a phased construction project; you must commence
construction of each such phase within 18 months of the projected and
approved commencement date.

Sec.  49.156  General permits.

    This section applies to general permits for the purposes of
complying with the preconstruction permitting requirements for sources
of regulated NSR pollutants under this program.
    (a) What is a general permit? A general permit is a preconstruction
permit issued by a reviewing authority that may be applied to a number
of similar emissions units or sources. The purpose of a general permit
is to simplify the permit issuance process for similar facilities so
that a reviewing authority's limited resources need not be expended for
case-by-case permit development for such facilities. A general permit
may be written to address a single emissions unit, a group of the same
type of emissions units or an entire minor source.
    (b) How will the reviewing authority issue general permits? The
reviewing authority will issue general permits as follows:
    (1) A general permit may be issued for a category of emissions
units or sources that are similar in nature, have substantially similar
emissions and would be subject to the same or substantially similar
requirements governing operations, emissions, monitoring, reporting and
recordkeeping. ``Similar in nature'' refers to size, processes and
operating conditions.
    (2) A general permit must be issued according to the applicable
requirements in Sec.  49.154(c), Sec.  49.154(d) and Sec.  49.155, the
public participation requirements in Sec.  49.157 and the requirements
for final permit issuance and administrative and judicial review in
Sec.  49.159.
    (3) Issuance of a general permit is considered final agency action
with respect to all aspects of the general permit except its
applicability to an individual source. The sole issue that may be
appealed after an individual source is approved to construct under a
general permit (see paragraph (e) of this section) is the applicability
of the general permit to that particular source.
    (c) For what categories will general permits be issued?
    (1) The reviewing authority will determine which categories of
individual emissions units, groups of similar emissions units or
sources are appropriate for general permits in its area.
    (2) General permits will be issued at the discretion of the
reviewing authority.
    (d) What should the general permit contain? The general permit must
contain the permit elements listed in Sec.  49.155(a). In addition, the
general permit must contain the information listed in paragraphs (d)(1)
and (2) of this section. The reviewing authority may specify additional
general permit terms and conditions.

    (1) Identification of the specific category of emissions units or
sources to which the general permit applies, including any criteria
that your emissions units or source must meet to be eligible for
coverage under the general permit.
    (2) Information required to request 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 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) What are the procedures for obtaining coverage for a source
under a general permit?
    (1) If your source qualifies for a general permit, you may request
coverage under that general permit to the reviewing authority 4 months
after the effective date of the general permit, that is, 6 months after
publication of the general permit in the Federal Register.
    (2) At the time you submit your request for coverage under a
general permit, you must submit a copy of such request to the Tribe in
the area where the source is locating.
    (3) The reviewing authority must act on your request for coverage
under the general permit as expeditiously as possible, but it must
notify you of the final decision within 90 days of its receipt of your
coverage request.
    (4) Your reviewing authority must comply with a 45-day completeness
review period to determine if your request for coverage under a general
permit is complete. Therefore, within 30 days after the receipt of your
coverage request, your reviewing authority must make an initial request
for any additional information necessary to process your coverage
request and you must submit such information within 15 days. If you do
not submit the requested information within 15 days from the request
for additional information and this results in a delay that is beyond
the 45-day completeness review period, the 90-day permit issuance
period for your general permit will be extended by the additional days
you take to submit the requested information beyond the 45-day period.
If the reviewing authority fails to notify you within a 30-day period
of any additional information necessary to process your coverage
request, you will still have 15 days to submit such information and the
reviewing authority must still grant or deny your request for coverage
under a general permit within the 90-day general permit issuance period
and without any time extension.
    (5) If the reviewing authority determines that your request for
coverage under a general permit has all the relevant information and is
complete, it will notify you in writing as soon as that determination
is made. If you do not receive from the reviewing authority a request
for additional information or a notice that your request for coverage
under a general permit is complete within the 45-day completeness
review period described in paragraph (4) of this section, your request
will be deemed complete.
    (6) The reviewing authority will send you a letter notifying you of
the approval or denial of your request for coverage under a general
permit. This letter is a final action for purposes of judicial review
(see 40 CFR 49.159) only for the issue of whether your source qualifies
for coverage under the general permit. If your request for coverage
under a general permit is approved, you must post, prominently, a copy
of the letter granting such request at the site where your source is
locating.
    (7) If the reviewing authority has sent a letter to you approving
your request for coverage under a general permit, you must comply with
all conditions and terms of the general permit. You will be subject to
enforcement action for failure to obtain a preconstruction permit if
you construct the emissions unit(s) or source with general permit
approval and your source is later determined not to qualify for the
conditions and terms of the general permit.
    (8) Your permit becomes invalid if you do not commence construction
within 18 months after the effective date of your request for coverage
under a general permit, if you discontinue construction for a period of
18 months or more or if you do not complete construction within a
reasonable time. The reviewing authority may extend the 18-month period
upon a satisfactory showing that an extension is justified. This
provision does not apply to the time period between construction of the
approved phases of a phased construction project; you must commence
construction of each such phase within 18 months of the projected and
approved commencement date.
    (9) Any source eligible to request coverage under a general permit
may request to be excluded from the general permit by applying for a
permit under Sec.  49.154.

Sec.  49.157  Public participation requirements.

    This section applies to the issuance of minor source permits and
synthetic minor source permits, the initial issuance of general permits
and coverage of a particular source under a general permit.
    (a) What permit information will be publicly available? With the
exception of any confidential information as defined in part 2, subpart
B of this chapter, the reviewing authority must make available for
public inspection the documents listed in paragraphs (a)(1) through (6)
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 your 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 you submitted, including (for preconstruction
permits and the initial issuance of general permits) the control
technology review.
    (4) For minor source permits and the initial issuance of general
permits, the reviewing authority's analysis of the effect of the
construction of the minor source or modification on ambient air
quality.
    (5) For coverage of a particular source under a general permit, the
reviewing authority's analysis of whether your particular emissions
unit or source is within the category of emissions units or sources to
which the general permit applies, including whether your emissions unit
or source meets any criteria to be eligible for coverage under the
general permit.
    (6) A copy of the draft permit or the decision to deny the permit
with the justification for denial.
    (b) How will the public be notified and participate?
    (1) Before issuing a permit under this program, the reviewing
authority must prepare a draft permit and must provide adequate public
notice to ensure that the affected community and the general public
have reasonable access to the application and draft permit information,
as set out in paragraphs (b)(1)(i) and (ii) of this section. The public
notice must provide an opportunity for public comment and notice of a
public hearing, if any, on the draft permit.

    (i) The reviewing authority must mail a copy of the notice to you,
the appropriate Indian governing body and the Tribal, state and local
air pollution authorities having jurisdiction adjacent to 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 (e.g., subsistence hunting and fishing
or other seasonal cultural practices), the reviewing authority must use
appropriate means of notification, such as those listed in paragraphs
(b)(1)(ii)(A) through (E) of this section.
    (A) The reviewing authority may mail or e-mail a copy of the notice
to persons on a mailing list developed by the reviewing authority
consisting of those persons who have requested to be placed on such a
mailing list.
    (B) The reviewing authority may post the notice on its Web site.
    (C) The reviewing authority may publish the notice in a newspaper
of general circulation in the area affected by the source. Where
possible, the notice may also be published in a Tribal newspaper or
newsletter.
    (D) The reviewing authority may provide copies of the notice for
posting at one or more locations in the area affected by the source,
such as post offices, trading posts, libraries, Tribal environmental
offices, community centers or other gathering places in the community.
    (E) The reviewing authority may employ other means of notification
as appropriate.
    (2) The notice required pursuant to paragraph (b)(1) of this
section must include the following information at a minimum:
    (i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
    (ii) The name and address of the reviewing authority processing the
permit action;
    (iii) For minor source permits, the initial issuance of general
permits and coverage of a particular source under a general permit, the
regulated NSR pollutants to be emitted, the affected emissions units
and the emission limitations for each affected emissions unit;
    (iv) For minor source permits, the initial issuance of general
permits and coverage of a particular source under a general permit, the
emissions change involved in the permit action;
    (v) For synthetic minor source permits, a description of the
proposed limitation and its effect on the potential to emit of the
source;
    (vi) Instructions for requesting a public hearing;
    (vii) The name, address and telephone number of a contact person in
the reviewing authority's office from whom additional information may
be obtained;
    (viii) Locations and times of availability of the information
(listed in paragraph (a) of this section) for public inspection and
    (ix) A statement that any person may submit written comments, a
written request for a public hearing or both, on the draft permit
action. The reviewing authority must provide a period of at least 30
days from the date of the public notice for comments and for requests
for a public hearing.
    (c) How will the public comment and will there be a public hearing?
    (1) Any person may submit written comments on the draft permit and
may request a public hearing. These comments must raise any reasonably
ascertainable issue with supporting arguments by the close of the
public comment period (including any public hearing). The reviewing
authority must consider all comments in making the final decision. The
reviewing authority must keep a record of the commenters and of the
issues raised during the public participation process and such records
must be available to the public.
    (2) The reviewing authority must extend the public comment period
under paragraph (b) of this section to the close of any public hearing
under this section. The hearing officer may also extend the comment
period by so stating at the hearing.
    (3) A request for a public hearing must be in writing and must
state the nature of the issues proposed to be raised at the hearing.
    (4) The reviewing authority must hold a hearing whenever there is,
on the basis of requests, a significant degree of public interest in a
draft permit. The reviewing authority may also hold a public hearing at
its discretion, whenever, for instance, such a hearing might clarify
one or more issues involved in the permit decision. The reviewing
authority must provide notice of any public hearing at least 30 days
prior to the date of the hearing. Public notice of the hearing may be
concurrent with that of the draft permit and the two notices may be
combined. Reasonable limits may be set upon the time allowed for oral
statements at the hearing.
    (5) The reviewing authority must make a tape recording or written
transcript of any hearing available to the public.

Sec.  49.158  Synthetic minor source permits.

    You may obtain a synthetic minor source permit under this program
to establish a synthetic minor source for purposes of the applicable