Review of New Sources and Modifications in Indian Country-Amendments to the Federal Indian Country Minor New Source Review Rule, 31035-31045 [2014-11499]
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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations
Dated: May 27, 2014.
Lynn B. Mahaffie,
Senior Director, Policy Coordination,
Development, and Accreditation Service,
delegated the authority to perform the
functions and duties of the Assistant
Secretary for Postsecondary Education.
[FR Doc. 2014–12582 Filed 5–29–14; 8:45 am]
BILLING CODE 4000–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 49
[EPA–HQ–OAR–2003–0076; FRL–9909–78–
OAR]
RIN 2060–AR25
Review of New Sources and
Modifications in Indian Country—
Amendments to the Federal Indian
Country Minor New Source Review
Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is issuing final
amendments to the federal minor New
Source Review (NSR) program in Indian
country. We refer to this NSR rule as the
‘‘federal Indian country minor NSR
program.’’ We are amending this rule in
two ways. First, we are expanding the
list of emissions units and activities that
are exempt from the federal Indian
country minor NSR program by adding
several types of low-emitting units and
activities. Second, we have clarified
construction-related terms by defining
‘‘commence construction’’ and ‘‘begin
construction’’ to better reflect the
regulatory requirements associated with
construction activities. We believe both
of these changes will simplify the
program, and result in less burdensome
implementation without detriment to air
quality in Indian country. Finally, we
have reconsidered the advance
notification period for relocation of a
true minor source in response to a
petition on the rule from the American
SUMMARY:
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Industry .....................................................
14:58 May 29, 2014
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
C. What acronyms, abbreviations and units
are used in this preamble?
II. Purpose
III. Background
A. What are the general requirements for
the minor NSR program in Indian
country?
NAICS a
Category
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Petroleum Institute, the Independent
Petroleum Association of America and
America’s Natural Gas Alliance, but we
are not changing that provision.
DATES: The final rule is effective on June
30, 2014.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2003–0076. All
documents in the docket are listed in
the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air and Radiation Docket, EPA/DC,
William Jefferson Clinton West
Building, Room 3334, 1301 Constitution
Avenue NW., Washington, DC 20460.
The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the Air and
Radiation Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: Mr.
Greg Nizich, Air Quality Policy
Division, Office of Air Quality Planning
and Standards (C504–03),
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number (919) 541–
3078; fax number (919) 541–5509; email
address: nizich.greg@epa.gov.
SUPPLEMENTARY INFORMATION: The
information in this Supplementary
Information section of this preamble is
organized as follows:
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21111
211111
211112
212321
22111
221210
22132
23899
311119
3116
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B. What is the Indian country NSR rule?
C. What is the status of NSR air quality
programs in Indian country?
IV. What final action is the EPA taking on
amendments to the federal Indian
country minor NSR rule?
A. What additional emissions units and
activities are exempted from the federal
Indian country minor NSR rule?
B. How are construction-related activities
defined for permitting purposes?
C. What is the deadline for advance
notification to the reviewing authority
for a true minor sources that is
relocating?
V. Summary of Significant Comments and
Responses
A. Emissions Unit and Activity
Exemptions
B. Definition of Begin Construction
C. Source Relocation
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
VII. Statutory Authority
I. General Information
A. Does this action apply to me?
Entities potentially affected by this
final rule include owners and operators
of emission sources in all industry
groups planning to locate or located in
Indian country. Categories and entities
potentially affected by this action are
expected to include:
Examples of regulated entities
Oil and Gas Production/Operations.
Crude Petroleum and Natural Gas Extraction.
Natural Gas Liquid Extraction.
Sand and Gravel Mining.
Electric Power Generation.
Natural Gas Distribution.
Sewage Treatment Facilities.
Sand and Shot Blasting Operations.
Animal Food Manufacturing.
Beef Cattle Complex, Slaughter House and Meat Packing Plant.
Sawmills.
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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations
NAICS a
Category
Federal government ..................................
321212
32191
323110
324121
3251
32711
32732
3279
331511
3323
332812
3329
33311
33711
42451
42471
4471
54171
562212
72112
811121
924110
State/local/tribal government ....................
924110
a North
Softwood Veneer and Plywood Manufacturing.
Millwork (wood products manufacturing).
Printing Operations (lithographic).
Asphalt Hot Mix.
Chemical Preparation.
Clay and Ceramics operations (kilns).
Concrete Batching Plant.
Fiber Glass Operations.
Casting Foundry (Iron).
Fabricated Structural Metal.
Surface Coating Operations.
Fabricated Metal Products.
Machinery Manufacturing.
Wood Kitchen Cabinet manufacturing.
Grain Elevator.
Gasoline Bulk Plant.
Gasoline Station.
Professional, Scientific, and Technical Services.
Solid Waste Landfill.
Casinos).
Auto Body Refinishing.
Administration of Air and Water Resources and Solid Waste Management Programs.
Administration of Air and Water Resources and Solid Waste Management Programs.
American Industry Classification System.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
subject to the federal Indian country
minor NSR program, and therefore
potentially affected by this action. To
determine whether your facility is
affected by this action, you should
examine the applicability criteria in 40
CFR 49.151 through 49.161 (i.e., the
federal Indian country minor NSR rule).
If you have any questions regarding the
applicability of this action to a
particular entity, contact the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this final
rule will also be available on the World
Wide Web. Following signature by the
EPA Administrator, a copy of this final
rule will be posted in the regulations
and standards section of the EPA’s NSR
home page located at https://
www.epa.gov/nsr.
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Examples of regulated entities
GP General Permit
HAPs Hazardous Air Pollutants
HP Horsepower
LAER Lowest Achievable Emission Rate
MMBTU/hr Million British thermal units
per hour
NAAQS National Ambient Air Quality
Standard(s)
NESHAP National Emission Standards for
Hazardous Air Pollutants
NTTAA National Technology Transfer and
Advancement Act
OMB Office of Management and Budget
ppm Parts per million
PSD Prevention of Significant Deterioration
PTE Potential to Emit
RFA Regulatory Flexibility Act
SBA Small Business Administration
SIP State Implementation Plan
TIP Tribal Implementation Plan
tpy Tons per year
UMRA Unfunded Mandates Reform Act
C. What acronyms, abbreviations and
units are used in this preamble?
The following acronyms,
abbreviations and units are used in this
preamble:
II. Purpose
The purpose of this rulemaking is to
revise certain provisions in the federal
Indian country minor NSR rule 1 (the
Rule) to streamline implementation by
expanding the list of appropriately
exempted units/activities and clarifying
language related to source construction.
Specifically, we are adding five
categories to the list of units/activities
that are exempt from the federal Indian
country minor NSR rule, and revising
another category, because their
emissions are deemed insignificant.
BACT Best Available Control Technology
CAA or Act Clean Air Act
EPA U.S. Environmental Protection Agency
FARR Federal Air Rule for Indian
Reservations
FR Federal Register
1 The federal Indian country minor NSR rule is a
component of ‘‘Review of New Sources and
Modifications in Indian Country,’’ Final rule 76 FR
38747 (July 1, 2011) that applies to new and
modified minor sources and minor modifications at
major sources.
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Listing these categories explicitly for
exemptions means that many applicants
and reviewing authorities will not need
to calculate potential emissions for
those activities.
In the Rule, the term ‘‘commence
construction’’ is used in two different
contexts, i.e., the provisions governing
construction prohibition, and also the
provisions specifying that construction
must occur within 18 months of the
final permit issuance date. We are
clarifying this distinction by adding two
separate definitions for those situations:
‘‘begin construction’’ and ‘‘commence
construction.’’ Further, we are replacing
‘‘commence construction’’ with ‘‘begin
construction’’ in certain sections of the
regulatory text for consistency with the
new definitions. Finally, this rule
reaffirms the 30-day advance
notification requirement for relocation
of true minor sources after
reconsideration of this provision.
III. Background
A. What are the general requirements
for the minor NSR program in Indian
country?
Section 110(a)(2)(C) of the Clean Air
Act (Act) requires that every state
implementation plan (SIP) include a
program to regulate the construction
and modification of stationary sources,
including a permit program as required
in parts C and D of title I of the Act, to
ensure attainment and maintenance of
the National Ambient Air Quality
Standards (NAAQS). The permitting
program for minor sources is addressed
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by section 110(a)(2)(C) of the Act, which
we commonly refer to as the minor NSR
program. A minor source means a
source that has a potential to emit (PTE)
lower than the major NSR applicability
threshold for a particular pollutant as
defined in the applicable nonattainment
major NSR program or any regulated
NSR pollutant with respect to the
Prevention of Significant Deterioration
(PSD) program.
States must develop minor NSR
programs designed to attain and
maintain the NAAQS in a manner most
suitable for the circumstances of the
particular state. The federal
requirements for state minor NSR
programs are outlined in 40 CFR 51.160
through 51.164. These federal
requirements for minor NSR programs
are considerably less prescriptive than
those for major sources to facilitate the
development of programs that best
reflect a state’s chosen approach to
achieving the required result. As a
result, the requirements vary
substantially across the state minor NSR
programs.
Furthermore, sections 301(a) and
301(d)(4) of the Act, as implemented
through the Tribal Authority Rule 2
(TAR), provide the EPA with a broad
degree of discretion in developing a
program to regulate new and modified
minor sources in Indian country.
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B. What is the Indian country NSR rule?
The ‘‘Review of New Sources and
Modifications in Indian country’’ (i.e.,
Indian country NSR rule) final rule was
established under the authority of
sections 301(a) and (d) of the Act and
the TAR and published in the Federal
Register on July 1, 2011 (76 FR 38748).
This rule established a federal
implementation plan (FIP) for Indian
country that includes two NSR
programs for the protection of air
resources in Indian country. These two
new NSR programs work together with
the pre-existing PSD program at 40 CFR
52.213 and the title V operating permits
program at 40 CFR part 71 4 to provide
a comprehensive permitting program for
Indian country to ensure that air quality
in Indian country will be protected in
the manner intended by the Act.
One regulation created by the Indian
country NSR rule, which we refer to as
the ‘‘federal Indian country minor NSR
rule,’’ is codified at 40 CFR 49.151–
49.161 and applies to new and modified
minor sources and to minor
modifications at existing major sources
throughout Indian country where there
is no EPA-approved plan in place. The
second regulation, which we refer to as
the ‘‘Indian country nonattainment
major NSR rule,’’ is codified at 40 CFR
49.166–49.173 and applies to new and
modified major sources in areas of
Indian country that are designated as
not attaining the NAAQS
(nonattainment areas). The Indian
country NSR rules ensure that Indian
country will be protected in the manner
intended by the Act by establishing a
preconstruction permitting program for
new or modified minor sources, minor
modifications at major sources, and new
major sources and major modifications
in nonattainment areas.
Under the federal Indian country
minor NSR rule, new minor sources
with a PTE equal to or greater than the
minor NSR thresholds and
modifications at existing minor sources,
as well as minor modifications at major
sources, with allowable emissions
increases equal to or greater than the
minor NSR thresholds, must apply for
and obtain a minor NSR permit prior to
beginning construction of the new
source or modification. The effective
date of the federal Indian country minor
NSR rule was August 30, 2011. To
facilitate the effective implementation of
the federal Indian country minor NSR
program, some components of the rule
were phased in. Generally, the
applicability of the preconstruction
permitting rules to new synthetic minor
sources 5 began on the rule’s effective
date, August 30, 2011; for new or
modified true minor sources and minor
modifications at major sources,6 the rule
2 The TAR is comprised of Subpart A of 40 CFR
part 49, which is titled ‘‘Indian Country: Air
Quality Planning and Management’’.
3 The PSD program is a preconstruction
permitting program that applies to new major
stationary sources (major sources) and major
modifications in areas attaining the NAAQS,
including attainment areas in Indian country.
4 Title V of the Act requires all new and existing
major sources in the United States to obtain and
comply with an operating permit that brings
together all of the source’s applicable requirements
under the Act. All states, numerous local areas and
one tribe have approved title V permitting programs
under the regulations at 40 CFR part 70. The EPA
implements the part 71 federal program in Indian
country and other areas that are not covered by an
approved part 70 program. Currently, one tribe has
been delegated authority to assist the EPA with
administration of the federal part 71 program.
5 40 CFR 49.152 defines ‘‘synthetic minor source’’
as a source that otherwise has the potential to emit
regulated NSR pollutants in amounts that are at or
above those for major sources in section 49.167,
section 52.21 or section 71.2 of chapter 40, as
applicable, but that has taken a restriction so that
its PTE is less than such amounts for major sources.
Such restrictions must be enforceable as a practical
matter.
6 40 CFR 49.152 defines ‘‘true minor source’’ as
a source, not including the exempt emissions units
and activities listed in section 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 section 49.167 or section 52.21
of Chapter 40, as applicable, but equal to or greater
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applies beginning the earlier of
September 2, 2014, or 6 months after the
publication of a final general permit for
that source category in the Federal
Register (40 CFR 49.151(c)(1)(iii)(B)). In
addition, existing true minor sources in
Indian country were required to register
with their reviewing authority by March
1, 2013.
C. What is the status of NSR air quality
programs in Indian country?
No tribe is currently administering an
EPA-approved PSD program. Therefore,
the EPA has been implementing a FIP to
issue PSD permits for major sources in
attainment areas of Indian country (40
CFR 52.21). There are also no tribes
currently administering an EPAapproved nonattainment major NSR
program, so the EPA is the reviewing
authority under a FIP (40 CFR 49.166
through 49.175). Only a few tribes are
administering EPA-approved minor
NSR programs. Accordingly, the EPA
administers minor NSR programs in
most areas of Indian country under a
FIP (40 CFR 49.151 through 49.165).
Sections 301(d) and 110(o) of the Act
provide eligible tribes the opportunity
to develop their own tribal programs
and we encourage eligible tribes to
develop their own minor and
nonattainment major NSR programs, as
well as a PSD major source program, for
incorporation into tribal
implementation plans (TIPs). Tribes
may use the tribal NSR FIP program as
a model if they choose to develop their
own EPA-approved TIPs.
IV. What final action is the EPA taking
on amendments to the federal Indian
country minor NSR rule?
This section discusses the final
amendments to the federal Indian
country minor NSR rule and our
rationale for those amendments.
A. What additional emissions units and
activities are exempted from the federal
Indian country minor NSR rule?
This final rule adds five categories
(and also expands one category) to the
current list of units/activities that are
exempt from the existing federal Indian
country minor NSR rule. We are adding
these units/activities to 40 CFR
49.153(c) because their potential
emissions are insignificant and
generally well below the minor source
thresholds. These additional
exemptions will reduce regulatory
burden by eliminating the need for
applicants and/or permitting agencies to
than the minor NSR thresholds in section 49.153,
without the need to take an enforceable restriction
to reduce its PTE to such levels.
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calculate their potential emissions to
verify that minor source permitting
thresholds are not triggered. Adding
these exemption categories fulfills the
commitment we made in the preamble
to the federal Indian country minor NSR
rule (July 1, 2011; 76 FR 38759) to
assess whether to add other activities to
the list of exempted units/activities.
The following units/activities are
being added to the exempt category list
under 40 CFR 49.153(c):
• Emergency generators used solely to
provide electrical power during power
outages: in attainment areas the total
site-rated horsepower rating shall be
below 1,000; in nonattainment areas
classified Serious or lower, the total
site-rated horsepower shall be below
500. In areas classified Severe or
Extreme, no exemption applies.
• Stationary internal combustion
engines with a horsepower rating less
than 50.
• Furnaces or boilers used for space
heating that use only gaseous fuel with
a total maximum heat input (i.e., from
all units combined) at or below: in
attainment areas, 10 million British
thermal units per hour (MMBtu/hr); in
nonattainment areas classified as
Serious or lower, 5 MMBtu/hr; and in
nonattainment areas classified as Severe
or Extreme, 2 MMBtu/hr.
• Single family residences and
residential buildings with four or fewer
dwelling units.
• Air conditioning units used for
human comfort that do not exhaust air
pollutants to the atmosphere from any
manufacturing or other industrial
processes.
Also, we are modifying the existing
exemption for food preparation, as we
proposed, to include the cooking of food
by other than wholesale businesses that
both cook and sell cooked food. Lastly,
we have decided not to finalize the
proposed exemption category for
forestry and silvicultural activities for
the reasons explained under section V
below.
B. How are construction-related
activities defined for permitting
purposes?
This final rule adds definitions for the
terms ‘‘begin construction’’ and
‘‘commence construction’’ with only a
minor change to the definitions we
proposed. These definitions were
proposed to better distinguish those
situations where activity is prohibited
without a permit from those situations
where construction needs to occur
within a specified period of time after
permit issuance to maintain a valid
permit. The only change being made to
the proposed definitions in the final
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rule is that the term ‘‘grading’’ is being
added to the list of activities that are
allowed without a permit within the
definition of ‘‘begin construction.’’ We
discuss this change further under the
public comments discussion in section
V of this preamble. We are also
finalizing the changes we proposed
without revision to use ‘‘begin
construction,’’ rather than ‘‘commence
construction,’’ in those sections of the
federal Indian country minor NSR rule
where the regulatory text addresses
actions that are prohibited prior to
permit issuance. This makes our use of
‘‘commence construction’’ more
consistent with the EPA’s major NSR
program, and, thus minimizing any
potential confusion.
Also, we are finalizing the revised
regulatory text in 40 CFR
49.151(c)(1)(iii)(B) clarifying our intent
that true minor sources are not required
to obtain a permit unless construction of
such source, or modification, occurs on
or after the date that is the earlier of 6
months after a final general permit for
that specific source category is
published in the Federal Register, or
September 2, 2014.7
C. What is the deadline for advance
notification to the reviewing authority
for a true minor source that is
relocating?
We requested public comment on the
relocation provision under 40 CFR
49.160(d)(1) that requires the owner/
operator of a true minor source to notify
the relevant reviewing authority in
writing 30 days prior to relocating an
existing source. Specifically, we sought
comment on possibly reducing the
advance notification period from 30
days to as few as 10 days. After
reviewing the public comments received
on this topic, we have decided to retain
the 30-day advance notification period
since a clear basis for reducing the
notification period was not provided,
and because several reasons for
retaining the current 30-day period were
given. In the process of reviewing the
comments addressing the advance
notification provision, we did become
aware that relocation of individual
pieces of equipment, rather than entire
sources, can occur often in certain
industries, and therefore we provide
further discussion addressing those
situations in section V of this preamble.
7 The Federal Register dated January 14, 2014,
proposed to extend the true minor source
permitting deadline for oil and natural gas sources
between 12 and 18 months after the current
deadline of September 2, 2014 (79 FR 2517). This
means the true minor source permitting deadline
for this category of sources could be extended from
between September 2, 2015 and March 2, 2016.
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Finally, to better clarify advance
notification requirements when a source
relocation results in a change in the
reviewing authority (e.g., the source
moves from a reservation in EPA Region
8 to a reservation in EPA Region 6), we
are finalizing the proposed changes to
40 CFR 49.160(d)(1) specifying that a
source must notify both the existing and
new reviewing authorities in that case.
V. Summary of Significant Comments
and Responses
The EPA provided a 60-day review
and comment period on this
rulemaking, which closed on August 5,
2013. We received seven comment
letters (two industry letters, one state/
local agency letter, three tribal letters
and one private citizen letter) on the
proposed amendments. The subsections
that follow provide the significant
comments and responses. The Response
to Comments document that contains a
summary of all comments received on
the proposed amendments and the
responses to those comments, is
available in the docket.
A. Emissions Unit and Activity
Exemptions
1. Overall Comment on Exemptions
Comment: One state/local commenter
appreciates that additional exemptions
may be needed; however, the
commenter expressed an overall
concern (that applies broadly to several
of the exemption categories proposed)
that the exemptions are inconsistent
with their region’s air quality rules. The
commenter believes that exempting
these sources from permitting will
provide a competitive advantage to
sources in Indian country compared to
sources on non-tribal lands.
The commenter cites a specific
concern with the competitive advantage
issue in light of the EPA’s recent
proposed ‘‘detachment’’ of Morongo
Indian country from California’s South
Coast Air Basin and the lowering of the
classification of the Morongo
reservation from Extreme to Serious
ozone nonattainment (Note: the
proposed reclassification identified by
the commenter was finalized on
September 23, 2013 (78 FR 58189)). The
commenter states that the Morongo
lands are located directly upwind from
the Coachella Valley, a Severe ozone
nonattainment area, and therefore the
commenter is concerned that exempting
certain sources from permitting in
Indian country will result in negative air
quality impacts thereby delaying
attainment of the NAAQS in downwind
airsheds for both non-tribal lands and
certain tribal areas.
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The commenter urges the EPA to
adopt requirements specific to areas of
Indian country that are classified as
either Severe or Extreme ozone
nonattainment areas, just as the EPA has
adopted lower minor NSR emission
thresholds in the existing rule for
nonattainment areas as opposed to
attainment areas.
Response: Prior to the August 30,
2011, effective date of the federal Indian
country minor NSR rule, codified in 40
CFR part 49, promulgated July 1, 2011
(76 FR 38748), there were no emission
reduction requirements for new minor
sources within areas of Indian country
such as the Morongo Reservation. We
point this out to highlight that the
federal Indian country minor NSR rule
has already reduced any potential
competitive advantage cited by the
commenter by requiring preconstruction permits for sources (with
emissions above permitting thresholds)
where prior to August 30, 2011, there
were no such requirements.
As discussed in the July 1, 2011, final
rule, while section 182(e)(2) of the Act
specifies an emissions increase
threshold of ‘‘0’’ tons/year (tpy) for
existing major sources in Extreme ozone
nonattainment areas, we do not believe
these thresholds are appropriate for
minor sources and operators within
Indian country. Nonetheless, we are
mindful of the need to protect the
NAAQS and, as discussed later in
comment responses related to
exemptions for emergency generators
and boilers/furnaces, we have made
some revisions to the exemption criteria
in the final rule amendments.
2. Exemption for Emergency Generators
Comment: One state/local commenter
expressed concern with the proposed
exemption threshold for emergency
generators under 500 horsepower (HP)
in nonattainment areas and asserted it
would create an imbalance between
tribal lands and the surrounding nontribal areas classified as Severe or
Extreme nonattainment for ozone. Air
quality regulations that apply to sources
within the commenter’s jurisdiction
specify emission limits for nitrogen
oxide (NOX) and particulate matter (PM)
for all engines over 50 HP. The
commenter believes engines on tribal
lands, which would be exempt from
permitting under the EPA’s proposed
criteria, would emit NOX in amounts
above the 0.8 tpy and 1.8 tpy levels that
new and older model engines,
respectively, must meet under the state
air district’s Best Available Control
Technology (BACT) requirements. The
commenter states that these types of
engines are controllable and contribute
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to ozone and therefore should be subject
to NSR permitting.
The commenter also cited a report
from the World Health Organization 8
that declared diesel PM to be a human
carcinogen. The commenter states that
emissions from three standby generators
(approximately 900 HP in total) can
create cancer risks exceeding 25 in a
million, even if operated only 50 hours/
year. The commenter elaborates that a
500 HP emergency generator, operating
for 500 hours/year, would create even
higher risk (than the engines totaling
900 HP in the earlier example) due to its
longer operating period, and therefore
PM should be controlled from these
units and they should be subject to NSR
since the EPA’s source-specific rules are
not applicable to these units.
Response: One of our objectives for
proposing activities/units for exemption
was to reduce burden on source owners.
We believe that emergency generators
with horsepower ratings below the
exemption thresholds will
predominately have emissions below
the minor source permitting thresholds
and therefore the proposed exemption
would potentially save source owners
the effort of estimating their emissions
solely to demonstrate that emissions are
well below the permitting threshold.
However, we also recognize the
commenter’s concerns regarding the
impacts of sources in Indian country to
portions of the South Coast Air Basin
that are classified Severe or Extreme
nonattainment for ozone. We are
required by title I of the Act to ensure
attainment and maintenance of the
NAAQS. Accordingly, after considering
the comment, we believe that an
exemption for emergency generators is
not appropriate in ozone nonattainment
areas classified Severe or Extreme, and
we have revised exemption language in
the final rule accordingly. As finalized,
the total site-rated 500 HP exemption for
emergency generators in ozone
nonattainment areas will only apply in
ozone nonattainment areas classified
Serious or lower. The site-rated 1,000
HP exemption proposed for attainment
areas remains unchanged in this final
rule.
3. Exemption for Boilers and Furnaces
Comment: One state/local commenter
believes that boilers and/or furnaces
below the proposed heat input rates
should not be exempt from minor NSR
permitting in ozone nonattainment areas
classified as Severe or higher because it
would provide a competitive advantage
8 Press release dated June 12, 2012. See
www.iarc.fr/en/media-centre/pr/2012/pdfs/pr213_
E.pdf.
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31039
to sources locating in Indian country.
The commenter explains that the South
Coast Air Quality Management District’s
(SCAQMD) air quality rules require
controls for NOX at levels below the
proposed exemption rates of 5 million
Btu/hr for nonattainment areas; 10
million Btu/hr for attainment areas. The
commenter refers to SCAQMD’s NOX
emission limits of 9 ppm for natural gas
boilers having heat input rates between
2 million Btu/hr and 5 million Btu/hr to
be met by January 1, 2012. In addition
to that requirement, natural gas
industrial furnaces must meet an
emissions limit of 30 ppm (Rule 1147)
and NOX controls for fan-type central
furnaces under 175,000 Btu/hr are
required as well (Rule 1111). The
commenter states that the permitting
exemption under Rule 219(b)(2) applies
only to boilers and furnaces under 2
million Btu/hr.
Response: We believe the commenter
raises a valid concern regarding the
potential impacts to portions of the
South Coast Air Basin classified as
Severe or Extreme ozone nonattainment
areas that are adjacent to/downwind
from Indian country. In certain cases the
proposed exemption could make it more
difficult for downwind non-Indian
country areas to achieve attainment of
the NAAQS, which would be contrary
to the requirements of title I of the Act.
To minimize the likelihood of this
occurring in the areas with higher ozone
nonattainment classifications, we are
finalizing a lower heat input rate (than
the proposed 5 million Btu/hr which
would have applied in all
nonattainment areas) for Severe and
Extreme ozone nonattainment areas.
The heat input rate exemption for
nonattainment areas in the final rule is
specified as follows: for nonattainment
areas classified Serious and lower, the
exemption rate is heat input rates at or
below 5 million Btu/hr; for ozone
nonattainment areas classified as Severe
or Extreme, the exemption level is a
heat input rate at or below 2 million
Btu/hr. The heat input rate exemption
proposed for attainment areas remains
unchanged.
4. Exemption for Forestry/Silvicultural
Activities
Comment: One tribal commenter
supports this proposed exemption. The
commenter states the view that while
emissions from road construction and
maintenance are of particular concern
(Note: while the commenter did not
specify, we assume the comment is
referring to activities related to the
proposed exemption category), ‘‘such
emissions do not rise to a level requiring
their removal from the list of proposed
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exemptions.’’ The commenter further
states that permitting requirements for
road construction and maintenance will
impact timely repair and maintenance
of roads on the commenter’s lands. The
commenter also mentions that open
burning, a potential source of emissions
on their lands, is regulated by the
Bureau of Indian Affairs. Therefore the
commenter believes the proposed
exemption for forestry and silvicultural
activities is reasonable and will save
permitting resources.
One state/local commenter requests
that the proposed exemption category be
modified or deleted. The commenter
voices concern with significant
emissions from road construction and
maintenance, and logging activities. The
commenter also expresses concern with
the potential for multiple pieces of
equipment to collectively exceed the
minor source thresholds, such as
engines associated with wood chippers,
a consideration the EPA noted in
identifying units/activities to propose
for exemption (June 4, 2013; 78 FR
33270). The commenter urges the EPA
to delete the proposed exemption and
instead rely on the attainment and
nonattainment area NOX thresholds (10
tpy and 5 tpy, respectively) to determine
when a permit must be obtained. As an
alternative, the commenter suggests that
specific types of equipment could be
exempted instead of the entire category
if the EPA determines them to have de
minimis emissions.
Response: One reason we proposed
the forestry/silvicultural category for
exemption was to be consistent with the
exemptions list in the Federal Air Rule
for Indian Reservations, which applies
in Indian country in the Northwest. A
second reason we proposed this
category for exemption was that we
believed all emissions within the
category would be de minimis in nature.
Therefore, subjecting them to NSR
permitting would provide little
environmental benefit. Both
commenters express some concern with
the emissions associated with forestry
and silvicultural activities, and one
commenter identifies a situation where
emissions could exceed de minimis
levels.
Upon considering available
information, we have concluded that a
category-wide exemption is not the most
appropriate approach to managing
emissions for forestry and silvicultural
activities. This conclusion is based on
our recognizing the broad range of
activities and potential emissions
sources that could be part of this
category and the potential to
inadvertently exclude units with
significant emissions. Due to the broad
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nature of activities under this category,
we believe that there might be cases
where permitting of certain emission
units is needed to protect air quality,
which would be precluded under a
category-wide exemption. Based on that
concern, we believe it is more
appropriate to use the emission
thresholds in the existing rule (e.g.,
NOX: 10 tpy and 5 tpy in attainment and
nonattainment areas, respectively) to
determine source permitting
requirements and not have a broad,
category-wide exemption. Therefore the
exemption for forestry and silvicultural
activities is not included in the final
amendments.
B. Definition of Begin Construction
Comment: One industry association
commenter notes that the proposed
definition of ‘‘begin construction’’ lists
certain activities that can be conducted
before the source has obtained a
permit.9 The commenter states that the
list is more restrictive than the Agency’s
long standing approach to permissible
activities. The commenter refers to a
policy memo addressing activities
allowed without a permit 10 and states
that the EPA should not deviate from
previously established policies.
Response: We agree with the
commenter. Our intent was to include
the same list of activities in the
proposed definition that have been
historically allowed under the EPA
policy prior to obtaining a permit. We
inadvertently omitted the term
‘‘grading’’ from the list in the proposed
definition. We have added grading to
the activities allowed under the
definition of ‘‘begin construction’’ in the
final rule to maintain consistency with
the existing EPA policy.
C. Source Relocation
1. 30-Day Advance Notification
Provision
Comment: One tribal commenter
believes that at least 30 days notice is
warranted for relocation of a nonportable source since a new permit may
be required, and, in that case, the
permitting authority will need sufficient
time to process the application and
issue a permit. The commenter
elaborates that for a portable source, a
9 The list we proposed includes the following
activities: Engineering and design planning,
geotechnical investigation (surface and subsurface
explorations), clearing, surveying, ordering of
equipment and materials, storing of equipment or
setting up temporary trailers to house construction
management or staff and contractor personnel.
10 Memorandum from Reich, Edward E., OAQPS,
to DeSpain, Robert R., EPA Region VII, titled
‘‘Construction Activities Prior to Issuance of a PSD
Permit with Respect to ‘‘Begin Actual
Construction,’’ March 28, 1986.
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10-day notice requirement may be
sufficient since its permit will likely
include pre-approved new locations.
The commenter agrees with the EPA’s
interpretation that these time periods
apply where an entire source is
relocated, noting that relocation of one
or more pieces of equipment or
emission units requires consultation
with the source’s reviewing authority to
determine if a modification will occur
under the federal Indian country minor
NSR rule.
Another tribal commenter believes
that, based on their permitting
experience, in situations where a
registered source relocates to a new,
previously unapproved location, the
permitting authority should have at
least 30 days to review the relocation
request. The commenter states that this
time period is needed for tribal and
historic preservation reviews to be
performed.
One industry association commenter
reiterates comments made in its petition
for reconsideration on the July 1, 2011,
final federal Indian country minor NSR
rule stating that sources often relocate
on short notice and occasionally change
a previously planned relocation with
little advance warning. The commenter
states that the 30-day advance notice
requirement is incompatible with oil
and gas sector operations. In a
subsequent teleconference, the
commenter clarified that their primary
concern involves relocation of one or
more pieces of equipment or emissions
units and not entire sources.11 In
response to the EPA’s request for
comment on the notification provision,
the commenter agrees with the EPA’s
statement that there is no requirement
for advance approval, or a permit, for a
registered source that relocates prior to
September 2, 2014. The commenter
suggests that, in those cases, there is no
need or value to an advance notification
as long as the source continues to
comply with its permit. The commenter
elaborates that there will be sufficient
opportunity after relocation to notify the
EPA of any change. The commenter
offers that one possible approach is the
one used under 40 CFR 63.9(j), and
could be adopted in the tribal rule.12
The commenter also references the
recently promulgated oil and gas sector
11 See memorandum titled Summary of
Discussion from the October 23, 2013,
Teleconference between API Representatives and
the Environmental Protection Agency on Source
Relocation under the Tribal Minor NSR Rule. Nov
13, 2013. Docket number EPA–HQ–OAR–2003–
0076–0188.
12 This section allows sources to submit changes
to previously provided information within 15 days
after the change occurs.
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New Source Performance Standards
(NSPS) which allows for a lag time
between source startup and the
determination of whether controls are
required.
Response: We specifically requested
comment on the case where the source
relocates before September 2, 2014 (i.e.,
where no permit is required). As
discussed in the preamble for the
proposed amendments (78 FR 33723), a
true minor source that relocates in that
situation does not need prior approval
from its reviewing authority. The
notification provision simply specifies
advance notification in that case.
However, it was not clear in some tribal
comments if they were addressing the
situation where relocation occurs before
September 2, 2014, or on or after that
date, since the need for a permit was
mentioned by commenters. For that
latter case, as stated in the proposal, a
previously unpermitted portable source
(e.g., a hot-mix asphalt plant) that
relocates on or after September 2, 2014,
will be required to obtain a permit prior
to relocation, and we believe that any
such permit will contain provisions
addressing any future relocation. In this
case of relocation on/after September 2,
2014, the permit application fulfills the
advance notification requirement. In
addition, we believe in cases where a
permit is required the permitting
process addresses the tribal and historic
preservation obligations cited by the
commenters. Because none of the
commenters presented examples of a
situation where the 30-day advance
notification provision justifies a
reduction, we are retaining the 30-day
notification period. In the additional
discussion below, we are clarifying that
the advance notice relocation provision
is intended to apply to entire sources
and not individual pieces of equipment
or emissions units.
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2. Permitting Issues Related to Source
Relocation
Comment: One industry association
commenter referenced the EPA’s
discussion in the proposed rule
preamble addressing permitting
obligations for true minor sources that
relocate (78 FR 33273). The commenter
disagrees with the EPA’s statement that
a true minor source constructed before
September 2, 2014, that relocates after
that date will have to obtain a permit.
The commenter states that relocation is
not tantamount to a modification of
such a source and therefore the need for
a permit is not triggered. The
commenter clarified in a subsequent
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teleconference 13 that most of the
situations addressed in the comments
involve relocation or replacement of
single pieces of equipment, not entire
facilities, in the oil and gas sector.
Further, the commenter disagrees
with the EPA’s statement in the
proposed rule preamble that a true
minor source constructed after
September 2, 2014, must obtain a permit
for the original location and any
subsequent relocation not specifically
pre-authorized in the original permit.
The commenter believes the EPA should
clarify that permit conditions listing
specific sites for relocation are not
required. The commenter states that this
approach would be particularly
important for general permits where the
ability to relocate would have to be
based on generic criteria. The
commenter believes no other approach
would work with a general permit.
Response: The registration program
and relocation provisions in 40 CFR
49.160(d)(1) apply to an entire true
minor source, and are not applicable to
an individual piece of equipment that is
merely a part of the true minor source.
The registration program is used for
developing an inventory of emissions
throughout Indian country to help us
manage and protect air quality. We
understand from the commenter that in
oil and gas sector operations moving a
single piece of equipment from one
facility to another, or replacing a piece
of equipment with a new one, can occur
on a regular basis. For clarification
purposes, we believe it would be
beneficial to both sources and reviewing
authorities for us to list the different
situations involving a piece of
equipment (a unit) that we believe will
be most common, and specify the
outcome with respect to minor NSR
permitting. While we have listed
expected outcomes below, the source
owner/operator should still verify with
its reviewing authority that the
‘‘matching’’ situation listed below, and
its stated outcome, applies to its case:
(1) A unit at a permitted source is
replaced ‘‘in kind’’ (i.e., the replacement
unit is of the same size, capacity,
horsepower, etc. as the existing unit)—
The owner/operator should notify the
reviewing authority as specified in its
permit. If the existing permit conditions
do not address equipment replacement/
relocation, then the source should send
a notification letter to its reviewing
authority no later than 60 days
following replacement of the unit.
(2) A unit at a registered but
unpermitted source is replaced in
kind—No new notification to the
reviewing authority is required since
this unit is already part of the inventory.
(3) A unit is moved within the
boundary of a permitted or registered
source—No new notification to the
reviewing authority required, unless
otherwise specified in the permit.
(4) A unit planned for addition (i.e.,
not replacement) at either a permitted or
registered source, with PTE above the
minor NSR thresholds—The owner/
operator of the true minor source must
first obtain a minor source permit before
installing the unit at the new location
beginning on September 2, 2014.14
(5) One or more units (with combined
PTE between the minor and major
source thresholds) that are relocated to
an entirely new location (i.e., a
greenfield facility)—(a) Prior to
September 2, 2014, the owner/operator
of the true minor source must register
with its reviewing authority within 90
days of beginning operation at the new
location in accordance with 40 CFR
49.160(c)(1)(ii); (b) On or after
September 2, 2014, the owner/operator
of the true minor source must obtain a
minor NSR permit from the reviewing
authority at the new location before
beginning construction.
(6) A unit moved from one registered
source to another registered source
before the September 2, 2014,
permitting deadline—The source must
notify the reviewing authority of
removal of the unit from the originating
source (to update its inventory) and also
notify the reviewing authority of the
addition of the unit at the destination
source within 60 days following the
change in location.
13 See memorandum titled Summary of
Discussion from the October 23, 2013,
Teleconference between API Representatives and
the Environmental Protection Agency on Source
Relocation under the Tribal Minor NSR Rule.
November 13, 2013. Docket number EPA–HQ–
OAR–2003–0076–0188.
14 The EPA published a notice of proposed
rulemaking in the Federal Register on January 14,
2014 (79 FR 2546). Within that document we asked
for comment on extending the true minor source
permitting deadline from September 2, 2014, to
between September 2, 2015, and March 2, 2016, for
oil and natural gas production sources.
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3. Other Comments on Permitting
Comment: One industry association
commenter states that, in the existing
federal Indian country minor NSR rule,
true minor sources constructed or
modified after August 30, 2011, are
required to obtain a permit. The
commenter notes that the EPA proposed
to revise this applicability date until
September 2, 2014, and the commenter
supports this change.
Response: We believe the commenter
may have misinterpreted the existing
requirements within 49.151(c)(1)(iii).
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Our intent under the existing rule has
always been that true minor sources do
not need a permit if they begin
construction before September 2, 2014.
We proposed changes to the regulatory
text on June 4, 2013, that are intended
to clarify the nature of this deadline. We
are finalizing these proposed changes to
the regulatory text to make this intent
clear.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The action
will not create any new requirements
under the federal Indian country minor
NSR program, but rather will simplify
minor source registrations and permit
applications for some sources,
potentially reducing burden. The Office
of Management and Budget (OMB) has
previously approved the information
collection requirements contained in the
existing regulations for the federal
Indian country minor NSR program (40
CFR 49.151 through 49.161) under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and has
assigned OMB control number 2060–
0003. The OMB control numbers for the
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedures 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 action on small entities,
small entity is defined as: (1) A small
business as defined in the U.S. Small
Business Administration size standards
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at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise that is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this final action on small
entities, I certify that this final action
will not have a significant economic
impact on a substantial number of small
entities. In determining whether a rule
has a significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities, since the primary purpose of
the regulatory flexibility analysis is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the rule
on small entities.’’ 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule
will not have a significant economic
impact on a substantial number of small
entities if the rule relieves regulatory
burden, or otherwise has a positive
economic effect, on all of the small
entities subject to the rule.
This final action will not create any
new requirements under the federal
Indian country minor NSR program, and
therefore would not impose any
additional burden on any sources
(including small entities). This final
action will simplify minor source
registrations and reduce the burden of
applicability determinations for some
sources compared to the existing rule,
potentially reducing burden for all
entities, including small entities. We
have therefore concluded that this final
rule will be neutral or relieve the
regulatory burden for all affected small
entities.
D. Unfunded Mandates Reform Act
This action contains no federal
mandate under the provisions of Title II
of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1531–1538 for state,
local and tribal governments, in the
aggregate, or the private sector in any 1
year. This action will not create any
new requirements under the federal
Indian country minor NSR program, but
rather will simplify minor source
registrations and reduce the burden of
applicability determinations for some
sources. Therefore, this action is not
subject to the requirements of sections
202 or 205 of UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
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uniquely affect small governments. As
noted previously, the effect of this final
rule will be neutral or relieve regulatory
burden.
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 final rule
will revise the federal Indian country
minor NSR program, which applies only
in Indian country, and will not,
therefore, affect the relationship
between the national government and
the states or the distribution of power
and responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Subject to the Executive Order 13175
(65 FR 67249, November 9, 2000), the
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 the 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 final
rule will have tribal implications.
However, it will neither impose
substantial direct compliance costs on
tribal governments, nor preempt tribal
law. This final rule will have tribal
implications since it revises the federal
Indian country minor NSR program,
which applies to both tribally-owned
and privately-owned sources in Indian
country. As with the existing rule, the
revised rule will be implemented by the
EPA, or a delegate tribal agency
assisting the EPA with administration of
the rules, until replaced by an EPAapproved tribal implementation plan.
The effect of this final rule will be to
simplify compliance with, and
administration of, the federal Indian
country minor NSR program, so any
impact on tribes would be in the form
of reduced burden and cost.
Prior to proposing the rule
amendments, we presented highlights of
the expected changes to tribal
environmental staff during a conference
call with the National Tribal Air
Association on February 28, 2013, and
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asked for comments. Following
signature of the proposed amendments
on May 23, 2013, the EPA mailed letters
to over 560 tribal leaders to offer
consultation. In addition, to help
facilitate the tribes’ decision concerning
our offer of consultation, we held
conference calls on June 17 and 20,
2013, with tribal environmental officials
where we provided an overview of the
proposed changes and answered any
questions. We did not receive any
requests for consultation from tribal
governments. Lastly, we have taken into
account the comments submitted from
three tribes on the proposed
amendments and fully considered those
comments in finalizing the amendments
in today’s rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and 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 subject to Executive
Order 13211 (66 FR 28355, May 22,
2001), because it is not a significant
regulatory action under Executive Order
12866.
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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
the 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 the EPA to
provide Congress, through the OMB,
explanations when the agency decides
not to use available and applicable
voluntary consensus standards.
This rulemaking does not involve
technical standards. Therefore, the EPA
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has not considered 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 does not affect the level of
protection provided to human health or
the environment. This final rule will
simplify minor source registrations and
permit applications for some sources
under the federal Indian country minor
NSR program, but will not relax control
requirements or result in greater
emissions under the program.
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 on the
date of publication, i.e., on June 30,
2014.
L. Judicial Review
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 July 29, 2014. Any
such judicial review is limited to only
those objections that are raised with
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31043
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.
VII. Statutory Authority
The statutory authority for this action
is provided by sections 101, 110, 112,
114, 116 and 301 of the CAA as
amended (42 U.S.C. 7401, 7410, 7412,
7414, 7416 and 7601).
List of Subjects in 40 CFR Part 49
Environmental protection,
Administrative practices and
procedures, Air pollution control,
Indians, Intergovernmental relations,
Reporting and recordkeeping
requirements.
Dated: May 9, 2014.
Gina McCarthy,
EPA Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as set
forth below.
PART 49—INDIAN COUNTRY: AIR
QUALITY PLANNING AND
MANAGEMENT
1. The authority citation for part 49
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart C—[Amended]
2. Section 49.151 is amended by
revising paragraphs (c)(1)(i)(A),
(c)(1)(ii)(A) and (B), (c)(1)(iii)(B), and
(d)(1) to read as follows:
■
§ 49.151
Program overview.
*
*
*
*
*
(c) * * *
(1) * * *
(i) * * *
(A) If you wish to begin construction
of a minor modification at an existing
major source on or after August 30,
2011, you must obtain a permit
pursuant to §§ 49.154 and 49.155 (or a
general permit pursuant to § 49.156, if
applicable) prior to beginning
construction.
*
*
*
*
*
(ii) * * *
(A) If you wish to begin construction
of a new synthetic minor source and/or
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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations
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
§ 49.158 prior to beginning 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 August 30,
2011. For these modifications, you need
to obtain a permit pursuant to § 49.158
prior to beginning construction.
*
*
*
*
*
(iii) * * *
(B) If you wish to begin construction
of a new true minor source or a
modification at an existing true minor
source on or after 6 months from the
date of publication in the Federal
Register of a final general permit for that
source category, or September 2, 2014,
whichever is earlier, you must first
obtain a permit pursuant to §§ 49.154
and 49.155 (or a general permit
pursuant to § 49.156, if applicable). The
proposed new source or modification
will also be subject to the registration
requirements of § 49.160, except for
sources that are subject to § 49.138.
*
*
*
*
*
(d) * * *
(1) If you begin 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.
*
*
*
*
*
■ 3. Section 49.152(d) is amended by
adding in alphabetical order definitions
for ‘‘Begin construction’’ and
‘‘Commence construction’’ to read as
follows:
§ 49.152
Definitions.
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*
*
*
*
(d) * * *
Begin construction means, in general,
initiation of physical on-site
construction activities on an emissions
unit which are of a permanent nature.
Such activities include, but are not
limited to, installation of building
supports and foundations, laying
underground pipework and
construction of permanent storage
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structures. With respect to a change in
method of operations, this term refers to
those on-site activities other than
preparatory activities which mark the
initiation of the change. The following
preparatory activities are excluded:
Engineering and design planning,
geotechnical investigation (surface and
subsurface explorations), clearing,
grading, surveying, ordering of
equipment and materials, storing of
equipment or setting up temporary
trailers to house construction
management or staff and contractor
personnel.
Commence construction means, as
applied to a new minor stationary
source or minor modification at an
existing stationary source subject to this
subpart, that the owner or operator has
all necessary preconstruction approvals
or permits and either has:
(i) Begun on-site activities including,
but not limited to, installing building
supports and foundations, laying
underground piping or erecting/
installing permanent storage structures.
The following preparatory activities are
excluded: Engineering and design
planning, geotechnical investigation
(surface and subsurface explorations),
clearing, grading, surveying, ordering of
equipment and materials, storing of
equipment or setting up temporary
trailers to house construction
management or staff and contractor
personnel; or
(ii) Entered into binding agreements
or contractual obligations, which cannot
be cancelled or modified without
substantial loss to the owner or
operator, to undertake a program of
actual construction of the source to be
completed within a reasonable time.
*
*
*
*
*
■ 4. Section § 49.153 is amended by:
■ a. Revising paragraphs (a)(3)(ii) and
(iii) and (c) introductory text and (c)(3);
and
■ b. Adding paragraphs (c)(8) through
(12) to read as follows:
§ 49.153
Applicability.
(a) * * *
(3) * * *
(ii) If you wish to begin 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 § 49.158 prior to beginning
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
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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 August 30, 2011.
For these modifications, you need to
obtain a permit pursuant to § 49.158
prior to beginning construction.
*
*
*
*
*
(c) What emissions units and
activities are exempt from this program?
At a source that is otherwise subject to
this program, this program does not
apply to the following emissions units
and activities that are listed in
paragraphs (c)(1) through (12) of this
section:
*
*
*
*
*
(3) Cooking of food, except for
wholesale businesses that both cook and
sell cooked food.
*
*
*
*
*
(8) Single family residences and
residential buildings with four or fewer
dwelling units.
(9) Emergency generators, designed
solely for the purpose of providing
electrical power during power outages:
(i) In nonattainment areas classified as
serious or lower, the total maximum
manufacturer’s site-rated horsepower of
all units shall be below 500;
(ii) In attainment areas, the total
maximum manufacturer’s site-rated
horsepower of all units shall be below
1,000.
(10) Stationary internal combustion
engines with a manufacturer’s site-rated
horsepower of less than 50.
(11) Furnaces or boilers used for space
heating that use only gaseous fuel, with
a total maximum heat input (i.e., from
all units combined) of:
(i) In nonattainment areas classified as
Serious or lower, 5 million British
thermal units per hour (MMBtu/hr) or
less;
(ii) In nonattainment areas classified
as Severe or Extreme, 2 million British
thermal units per hour (MMBtu/hr) or
less;
(iii) In attainment areas, 10 MMBtu/hr
or less.
(12) Air conditioning units used for
human comfort that do not exhaust air
pollutants in the atmosphere from any
manufacturing or other industrial
processes.
*
*
*
*
*
■ 5. Section 49.158 is amended by
revising paragraph (c)(1) to read as
follows:
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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Rules and Regulations
§ 49.158
Synthetic minor source permits.
*
*
*
*
*
(c) * * *
(1) 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 August 30, 2011.
For these modifications, you need to
obtain a permit pursuant to § 49.158
before you begin construction.
*
*
*
*
*
6. Section 49.160 is amended by
revising paragraph (d)(1) to read as
follows:
■
§ 49.160 Registration program for minor
sources in Indian country.
*
*
*
*
*
(d) * * *
(1) Report of relocation. After your
source has been registered, you must
report any relocation of your source to
the reviewing authority in writing no
later than 30 days prior to the relocation
of the source. Unless otherwise
specified in an existing permit, a report
of relocation shall be provided as
specified in paragraph (d)(1)(i) or (ii) of
this section, as applicable. In either
case, the permit application for the new
location satisfies the report of relocation
requirement.
(i) Where the relocation results in a
change in the reviewing authority for
your source, you must submit a report
of relocation to the current reviewing
authority and a permit application to
the new reviewing authority.
(ii) Where the reviewing authority
remains the same, a report of relocation
is fulfilled through the permit
application for the new location.
*
*
*
*
*
[FR Doc. 2014–11499 Filed 5–29–14; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[Docket No. EPA–R02–OAR–2014–0182;
FRL–9911–56–Region 2]
Approval and Promulgation of
Implementation Plans; Carbon
Monoxide Maintenance Plan,
Conformity Budgets, Emissions
Inventories; State of New York
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the New York State
Department of Environmental
Conservation. This revision establishes
an updated ten-year carbon monoxide
(CO) maintenance plan for the New
York portion of the New York-Northern
New Jersey-Long Island (NYCMA) CO
area which includes the following seven
counties: Bronx, Kings, Nassau, New
York, Queens, Richmond and
Westchester. In addition, EPA is
approving a revision to the CO motor
vehicle emissions budgets for New York
and revisions to the 2007 Attainment/
Base Year emissions inventory.
The New York portion of the NYCMA
CO area was redesignated to attainment
of the CO National Ambient Air Quality
Standard (NAAQS) on April 19, 2002
and maintenance plans were also
approved at that time. By this action,
EPA is approving the second
maintenance plan for this area because
it provides for continued attainment for
an additional ten years of the CO
NAAQS. The intended effect of this
rulemaking is to approve a SIP revision
that will insure continued maintenance
of the CO NAAQS.
DATES: Effective Date: This rule is
effective on June 30, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R02–OAR–2014–0182. All
documents in the docket are listed in
the https://www.regulations.gov Web
site. Although listed in the electronic
docket, some information is not publicly
available, i.e., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy for public inspection during
SUMMARY:
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31045
normal business hours at the Air
Programs Branch, Environmental
Protection Agency, Region II, 290
Broadway, New York, New York 10007–
1866. This Docket Facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
Docket telephone number is 212–637–
4249.
If
you have questions concerning today’s
final action, please contact Henry
Feingersh, Air Programs Branch,
Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New
York 10007–1866, telephone number
(212) 637–3382, fax number (212) 637–
3901, email feingersh.henry@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. What action is EPA taking?
EPA is approving New York’s SIP
revision updating their existing ten-year
carbon monoxide (CO) maintenance
plan with another ten-year plan for the
New York portion of the New YorkNorthern New Jersey-Long Island
(NYCMA) CO area which includes the
following seven counties: Bronx, Kings,
Nassau, New York, Queens, Richmond
and Westchester. The reader is referred
to the March 25, 2014 (79 FR 16265)
proposal for details on this rulemaking.
II. What comments did EPA receive on
its proposal and what are EPA’s
responses?
EPA received one comment that
supports our proposed approval of the
updated CO maintenance plan. EPA is
approving the New York SIP revision
request.
III. What is EPA’s final action?
EPA is approving New York’s SIP
revision updating their existing ten-year
CO maintenance plan for the New York
portion of the New York-Northern New
Jersey-Long Island (NYCMA) CO area.
EPA is also approving the 2007 CO base
year emissions inventory and the CO
motor vehicle emissions budgets all
dated May 9, 2013.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
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Agencies
[Federal Register Volume 79, Number 104 (Friday, May 30, 2014)]
[Rules and Regulations]
[Pages 31035-31045]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11499]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2003-0076; FRL-9909-78-OAR]
RIN 2060-AR25
Review of New Sources and Modifications in Indian Country--
Amendments to the Federal Indian Country Minor New Source Review Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is issuing final
amendments to the federal minor New Source Review (NSR) program in
Indian country. We refer to this NSR rule as the ``federal Indian
country minor NSR program.'' We are amending this rule in two ways.
First, we are expanding the list of emissions units and activities that
are exempt from the federal Indian country minor NSR program by adding
several types of low-emitting units and activities. Second, we have
clarified construction-related terms by defining ``commence
construction'' and ``begin construction'' to better reflect the
regulatory requirements associated with construction activities. We
believe both of these changes will simplify the program, and result in
less burdensome implementation without detriment to air quality in
Indian country. Finally, we have reconsidered the advance notification
period for relocation of a true minor source in response to a petition
on the rule from the American Petroleum Institute, the Independent
Petroleum Association of America and America's Natural Gas Alliance,
but we are not changing that provision.
DATES: The final rule is effective on June 30, 2014.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2003-0076. All documents in the docket are
listed in the www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the Air and
Radiation Docket, EPA/DC, William Jefferson Clinton West Building, Room
3334, 1301 Constitution Avenue NW., Washington, DC 20460. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Greg Nizich, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-3078; fax number (919) 541-5509;
email address: nizich.greg@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this Supplementary
Information section of this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. What acronyms, abbreviations and units are used in this
preamble?
II. Purpose
III. Background
A. What are the general requirements for the minor NSR program
in Indian country?
B. What is the Indian country NSR rule?
C. What is the status of NSR air quality programs in Indian
country?
IV. What final action is the EPA taking on amendments to the federal
Indian country minor NSR rule?
A. What additional emissions units and activities are exempted
from the federal Indian country minor NSR rule?
B. How are construction-related activities defined for
permitting purposes?
C. What is the deadline for advance notification to the
reviewing authority for a true minor sources that is relocating?
V. Summary of Significant Comments and Responses
A. Emissions Unit and Activity Exemptions
B. Definition of Begin Construction
C. Source Relocation
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
VII. Statutory Authority
I. General Information
A. Does this action apply to me?
Entities potentially affected by this final rule include owners and
operators of emission sources in all industry groups planning to locate
or located in Indian country. Categories and entities potentially
affected by this action are expected to include:
------------------------------------------------------------------------
Examples of regulated
Category NAICS \a\ entities
------------------------------------------------------------------------
Industry....................... 21111 Oil and Gas Production/
Operations.
211111 Crude Petroleum and
Natural Gas
Extraction.
211112 Natural Gas Liquid
Extraction.
212321 Sand and Gravel Mining.
22111 Electric Power
Generation.
221210 Natural Gas
Distribution.
22132 Sewage Treatment
Facilities.
23899 Sand and Shot Blasting
Operations.
311119 Animal Food
Manufacturing.
3116 Beef Cattle Complex,
Slaughter House and
Meat Packing Plant.
321113 Sawmills.
[[Page 31036]]
321212 Softwood Veneer and
Plywood Manufacturing.
32191 Millwork (wood products
manufacturing).
323110 Printing Operations
(lithographic).
324121 Asphalt Hot Mix.
3251 Chemical Preparation.
32711 Clay and Ceramics
operations (kilns).
32732 Concrete Batching
Plant.
3279 Fiber Glass Operations.
331511 Casting Foundry (Iron).
3323 Fabricated Structural
Metal.
332812 Surface Coating
Operations.
3329 Fabricated Metal
Products.
33311 Machinery
Manufacturing.
33711 Wood Kitchen Cabinet
manufacturing.
42451 Grain Elevator.
42471 Gasoline Bulk Plant.
4471 Gasoline Station.
54171 Professional,
Scientific, and
Technical Services.
562212 Solid Waste Landfill.
72112 Casinos).
811121 Auto Body Refinishing.
Federal government............. 924110 Administration of Air
and Water Resources
and Solid Waste
Management Programs.
State/local/tribal government.. 924110 Administration of Air
and Water Resources
and Solid Waste
Management Programs.
------------------------------------------------------------------------
\a\ North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be subject to the
federal Indian country minor NSR program, and therefore potentially
affected by this action. To determine whether your facility is affected
by this action, you should examine the applicability criteria in 40 CFR
49.151 through 49.161 (i.e., the federal Indian country minor NSR
rule). If you have any questions regarding the applicability of this
action to a particular entity, contact the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final rule will also be available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this final rule will be
posted in the regulations and standards section of the EPA's NSR home
page located at https://www.epa.gov/nsr.
C. What acronyms, abbreviations and units are used in this preamble?
The following acronyms, abbreviations and units are used in this
preamble:
BACT Best Available Control Technology
CAA or Act Clean Air Act
EPA U.S. Environmental Protection Agency
FARR Federal Air Rule for Indian Reservations
FR Federal Register
GP General Permit
HAPs Hazardous Air Pollutants
HP Horsepower
LAER Lowest Achievable Emission Rate
MMBTU/hr Million British thermal units per hour
NAAQS National Ambient Air Quality Standard(s)
NESHAP National Emission Standards for Hazardous Air Pollutants
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
ppm Parts per million
PSD Prevention of Significant Deterioration
PTE Potential to Emit
RFA Regulatory Flexibility Act
SBA Small Business Administration
SIP State Implementation Plan
TIP Tribal Implementation Plan
tpy Tons per year
UMRA Unfunded Mandates Reform Act
II. Purpose
The purpose of this rulemaking is to revise certain provisions in
the federal Indian country minor NSR rule \1\ (the Rule) to streamline
implementation by expanding the list of appropriately exempted units/
activities and clarifying language related to source construction.
Specifically, we are adding five categories to the list of units/
activities that are exempt from the federal Indian country minor NSR
rule, and revising another category, because their emissions are deemed
insignificant. Listing these categories explicitly for exemptions means
that many applicants and reviewing authorities will not need to
calculate potential emissions for those activities.
---------------------------------------------------------------------------
\1\ The federal Indian country minor NSR rule is a component of
``Review of New Sources and Modifications in Indian Country,'' Final
rule 76 FR 38747 (July 1, 2011) that applies to new and modified
minor sources and minor modifications at major sources.
---------------------------------------------------------------------------
In the Rule, the term ``commence construction'' is used in two
different contexts, i.e., the provisions governing construction
prohibition, and also the provisions specifying that construction must
occur within 18 months of the final permit issuance date. We are
clarifying this distinction by adding two separate definitions for
those situations: ``begin construction'' and ``commence construction.''
Further, we are replacing ``commence construction'' with ``begin
construction'' in certain sections of the regulatory text for
consistency with the new definitions. Finally, this rule reaffirms the
30-day advance notification requirement for relocation of true minor
sources after reconsideration of this provision.
III. Background
A. What are the general requirements for the minor NSR program in
Indian country?
Section 110(a)(2)(C) of the Clean Air Act (Act) requires that every
state implementation plan (SIP) include a program to regulate the
construction and modification of stationary sources, including a permit
program as required in parts C and D of title I of the Act, to ensure
attainment and maintenance of the National Ambient Air Quality
Standards (NAAQS). The permitting program for minor sources is
addressed
[[Page 31037]]
by section 110(a)(2)(C) of the Act, which we commonly refer to as the
minor NSR program. A minor source means a source that has a potential
to emit (PTE) lower than the major NSR applicability threshold for a
particular pollutant as defined in the applicable nonattainment major
NSR program or any regulated NSR pollutant with respect to the
Prevention of Significant Deterioration (PSD) program.
States must develop minor NSR programs designed to attain and
maintain the NAAQS in a manner most suitable for the circumstances of
the particular state. The federal requirements for state minor NSR
programs are outlined in 40 CFR 51.160 through 51.164. These federal
requirements for minor NSR programs are considerably less prescriptive
than those for major sources to facilitate the development of programs
that best reflect a state's chosen approach to achieving the required
result. As a result, the requirements vary substantially across the
state minor NSR programs.
Furthermore, sections 301(a) and 301(d)(4) of the Act, as
implemented through the Tribal Authority Rule \2\ (TAR), provide the
EPA with a broad degree of discretion in developing a program to
regulate new and modified minor sources in Indian country.
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\2\ The TAR is comprised of Subpart A of 40 CFR part 49, which
is titled ``Indian Country: Air Quality Planning and Management''.
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B. What is the Indian country NSR rule?
The ``Review of New Sources and Modifications in Indian country''
(i.e., Indian country NSR rule) final rule was established under the
authority of sections 301(a) and (d) of the Act and the TAR and
published in the Federal Register on July 1, 2011 (76 FR 38748). This
rule established a federal implementation plan (FIP) for Indian country
that includes two NSR programs for the protection of air resources in
Indian country. These two new NSR programs work together with the pre-
existing PSD program at 40 CFR 52.21\3\ and the title V operating
permits program at 40 CFR part 71 \4\ to provide a comprehensive
permitting program for Indian country to ensure that air quality in
Indian country will be protected in the manner intended by the Act.
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\3\ The PSD program is a preconstruction permitting program that
applies to new major stationary sources (major sources) and major
modifications in areas attaining the NAAQS, including attainment
areas in Indian country.
\4\ Title V of the Act requires all new and existing major
sources in the United States to obtain and comply with an operating
permit that brings together all of the source's applicable
requirements under the Act. All states, numerous local areas and one
tribe have approved title V permitting programs under the
regulations at 40 CFR part 70. The EPA implements the part 71
federal program in Indian country and other areas that are not
covered by an approved part 70 program. Currently, one tribe has
been delegated authority to assist the EPA with administration of
the federal part 71 program.
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One regulation created by the Indian country NSR rule, which we
refer to as the ``federal Indian country minor NSR rule,'' is codified
at 40 CFR 49.151-49.161 and applies to new and modified minor sources
and to minor modifications at existing major sources throughout Indian
country where there is no EPA-approved plan in place. The second
regulation, which we refer to as the ``Indian country nonattainment
major NSR rule,'' is codified at 40 CFR 49.166-49.173 and applies to
new and modified major sources in areas of Indian country that are
designated as not attaining the NAAQS (nonattainment areas). The Indian
country NSR rules ensure that Indian country will be protected in the
manner intended by the Act by establishing a preconstruction permitting
program for new or modified minor sources, minor modifications at major
sources, and new major sources and major modifications in nonattainment
areas.
Under the federal Indian country minor NSR rule, new minor sources
with a PTE equal to or greater than the minor NSR thresholds and
modifications at existing minor sources, as well as minor modifications
at major sources, with allowable emissions increases equal to or
greater than the minor NSR thresholds, must apply for and obtain a
minor NSR permit prior to beginning construction of the new source or
modification. The effective date of the federal Indian country minor
NSR rule was August 30, 2011. To facilitate the effective
implementation of the federal Indian country minor NSR program, some
components of the rule were phased in. Generally, the applicability of
the preconstruction permitting rules to new synthetic minor sources \5\
began on the rule's effective date, August 30, 2011; for new or
modified true minor sources and minor modifications at major
sources,\6\ the rule applies beginning the earlier of September 2,
2014, or 6 months after the publication of a final general permit for
that source category in the Federal Register (40 CFR
49.151(c)(1)(iii)(B)). In addition, existing true minor sources in
Indian country were required to register with their reviewing authority
by March 1, 2013.
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\5\ 40 CFR 49.152 defines ``synthetic minor source'' as a source
that otherwise has the potential to emit regulated NSR pollutants in
amounts that are at or above those for major sources in section
49.167, section 52.21 or section 71.2 of chapter 40, as applicable,
but that has taken a restriction so that its PTE is less than such
amounts for major sources. Such restrictions must be enforceable as
a practical matter.
\6\ 40 CFR 49.152 defines ``true minor source'' as a source, not
including the exempt emissions units and activities listed in
section 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 section 49.167 or section 52.21 of Chapter 40, as
applicable, but equal to or greater than the minor NSR thresholds in
section 49.153, without the need to take an enforceable restriction
to reduce its PTE to such levels.
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C. What is the status of NSR air quality programs in Indian country?
No tribe is currently administering an EPA-approved PSD program.
Therefore, the EPA has been implementing a FIP to issue PSD permits for
major sources in attainment areas of Indian country (40 CFR 52.21).
There are also no tribes currently administering an EPA-approved
nonattainment major NSR program, so the EPA is the reviewing authority
under a FIP (40 CFR 49.166 through 49.175). Only a few tribes are
administering EPA-approved minor NSR programs. Accordingly, the EPA
administers minor NSR programs in most areas of Indian country under a
FIP (40 CFR 49.151 through 49.165).
Sections 301(d) and 110(o) of the Act provide eligible tribes the
opportunity to develop their own tribal programs and we encourage
eligible tribes to develop their own minor and nonattainment major NSR
programs, as well as a PSD major source program, for incorporation into
tribal implementation plans (TIPs). Tribes may use the tribal NSR FIP
program as a model if they choose to develop their own EPA-approved
TIPs.
IV. What final action is the EPA taking on amendments to the federal
Indian country minor NSR rule?
This section discusses the final amendments to the federal Indian
country minor NSR rule and our rationale for those amendments.
A. What additional emissions units and activities are exempted from the
federal Indian country minor NSR rule?
This final rule adds five categories (and also expands one
category) to the current list of units/activities that are exempt from
the existing federal Indian country minor NSR rule. We are adding these
units/activities to 40 CFR 49.153(c) because their potential emissions
are insignificant and generally well below the minor source thresholds.
These additional exemptions will reduce regulatory burden by
eliminating the need for applicants and/or permitting agencies to
[[Page 31038]]
calculate their potential emissions to verify that minor source
permitting thresholds are not triggered. Adding these exemption
categories fulfills the commitment we made in the preamble to the
federal Indian country minor NSR rule (July 1, 2011; 76 FR 38759) to
assess whether to add other activities to the list of exempted units/
activities.
The following units/activities are being added to the exempt
category list under 40 CFR 49.153(c):
Emergency generators used solely to provide electrical
power during power outages: in attainment areas the total site-rated
horsepower rating shall be below 1,000; in nonattainment areas
classified Serious or lower, the total site-rated horsepower shall be
below 500. In areas classified Severe or Extreme, no exemption applies.
Stationary internal combustion engines with a horsepower
rating less than 50.
Furnaces or boilers used for space heating that use only
gaseous fuel with a total maximum heat input (i.e., from all units
combined) at or below: in attainment areas, 10 million British thermal
units per hour (MMBtu/hr); in nonattainment areas classified as Serious
or lower, 5 MMBtu/hr; and in nonattainment areas classified as Severe
or Extreme, 2 MMBtu/hr.
Single family residences and residential buildings with
four or fewer dwelling units.
Air conditioning units used for human comfort that do not
exhaust air pollutants to the atmosphere from any manufacturing or
other industrial processes.
Also, we are modifying the existing exemption for food preparation,
as we proposed, to include the cooking of food by other than wholesale
businesses that both cook and sell cooked food. Lastly, we have decided
not to finalize the proposed exemption category for forestry and
silvicultural activities for the reasons explained under section V
below.
B. How are construction-related activities defined for permitting
purposes?
This final rule adds definitions for the terms ``begin
construction'' and ``commence construction'' with only a minor change
to the definitions we proposed. These definitions were proposed to
better distinguish those situations where activity is prohibited
without a permit from those situations where construction needs to
occur within a specified period of time after permit issuance to
maintain a valid permit. The only change being made to the proposed
definitions in the final rule is that the term ``grading'' is being
added to the list of activities that are allowed without a permit
within the definition of ``begin construction.'' We discuss this change
further under the public comments discussion in section V of this
preamble. We are also finalizing the changes we proposed without
revision to use ``begin construction,'' rather than ``commence
construction,'' in those sections of the federal Indian country minor
NSR rule where the regulatory text addresses actions that are
prohibited prior to permit issuance. This makes our use of ``commence
construction'' more consistent with the EPA's major NSR program, and,
thus minimizing any potential confusion.
Also, we are finalizing the revised regulatory text in 40 CFR
49.151(c)(1)(iii)(B) clarifying our intent that true minor sources are
not required to obtain a permit unless construction of such source, or
modification, occurs on or after the date that is the earlier of 6
months after a final general permit for that specific source category
is published in the Federal Register, or September 2, 2014.\7\
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\7\ The Federal Register dated January 14, 2014, proposed to
extend the true minor source permitting deadline for oil and natural
gas sources between 12 and 18 months after the current deadline of
September 2, 2014 (79 FR 2517). This means the true minor source
permitting deadline for this category of sources could be extended
from between September 2, 2015 and March 2, 2016.
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C. What is the deadline for advance notification to the reviewing
authority for a true minor source that is relocating?
We requested public comment on the relocation provision under 40
CFR 49.160(d)(1) that requires the owner/operator of a true minor
source to notify the relevant reviewing authority in writing 30 days
prior to relocating an existing source. Specifically, we sought comment
on possibly reducing the advance notification period from 30 days to as
few as 10 days. After reviewing the public comments received on this
topic, we have decided to retain the 30-day advance notification period
since a clear basis for reducing the notification period was not
provided, and because several reasons for retaining the current 30-day
period were given. In the process of reviewing the comments addressing
the advance notification provision, we did become aware that relocation
of individual pieces of equipment, rather than entire sources, can
occur often in certain industries, and therefore we provide further
discussion addressing those situations in section V of this preamble.
Finally, to better clarify advance notification requirements when a
source relocation results in a change in the reviewing authority (e.g.,
the source moves from a reservation in EPA Region 8 to a reservation in
EPA Region 6), we are finalizing the proposed changes to 40 CFR
49.160(d)(1) specifying that a source must notify both the existing and
new reviewing authorities in that case.
V. Summary of Significant Comments and Responses
The EPA provided a 60-day review and comment period on this
rulemaking, which closed on August 5, 2013. We received seven comment
letters (two industry letters, one state/local agency letter, three
tribal letters and one private citizen letter) on the proposed
amendments. The subsections that follow provide the significant
comments and responses. The Response to Comments document that contains
a summary of all comments received on the proposed amendments and the
responses to those comments, is available in the docket.
A. Emissions Unit and Activity Exemptions
1. Overall Comment on Exemptions
Comment: One state/local commenter appreciates that additional
exemptions may be needed; however, the commenter expressed an overall
concern (that applies broadly to several of the exemption categories
proposed) that the exemptions are inconsistent with their region's air
quality rules. The commenter believes that exempting these sources from
permitting will provide a competitive advantage to sources in Indian
country compared to sources on non-tribal lands.
The commenter cites a specific concern with the competitive
advantage issue in light of the EPA's recent proposed ``detachment'' of
Morongo Indian country from California's South Coast Air Basin and the
lowering of the classification of the Morongo reservation from Extreme
to Serious ozone nonattainment (Note: the proposed reclassification
identified by the commenter was finalized on September 23, 2013 (78 FR
58189)). The commenter states that the Morongo lands are located
directly upwind from the Coachella Valley, a Severe ozone nonattainment
area, and therefore the commenter is concerned that exempting certain
sources from permitting in Indian country will result in negative air
quality impacts thereby delaying attainment of the NAAQS in downwind
airsheds for both non-tribal lands and certain tribal areas.
[[Page 31039]]
The commenter urges the EPA to adopt requirements specific to areas
of Indian country that are classified as either Severe or Extreme ozone
nonattainment areas, just as the EPA has adopted lower minor NSR
emission thresholds in the existing rule for nonattainment areas as
opposed to attainment areas.
Response: Prior to the August 30, 2011, effective date of the
federal Indian country minor NSR rule, codified in 40 CFR part 49,
promulgated July 1, 2011 (76 FR 38748), there were no emission
reduction requirements for new minor sources within areas of Indian
country such as the Morongo Reservation. We point this out to highlight
that the federal Indian country minor NSR rule has already reduced any
potential competitive advantage cited by the commenter by requiring
pre-construction permits for sources (with emissions above permitting
thresholds) where prior to August 30, 2011, there were no such
requirements.
As discussed in the July 1, 2011, final rule, while section
182(e)(2) of the Act specifies an emissions increase threshold of ``0''
tons/year (tpy) for existing major sources in Extreme ozone
nonattainment areas, we do not believe these thresholds are appropriate
for minor sources and operators within Indian country. Nonetheless, we
are mindful of the need to protect the NAAQS and, as discussed later in
comment responses related to exemptions for emergency generators and
boilers/furnaces, we have made some revisions to the exemption criteria
in the final rule amendments.
2. Exemption for Emergency Generators
Comment: One state/local commenter expressed concern with the
proposed exemption threshold for emergency generators under 500
horsepower (HP) in nonattainment areas and asserted it would create an
imbalance between tribal lands and the surrounding non-tribal areas
classified as Severe or Extreme nonattainment for ozone. Air quality
regulations that apply to sources within the commenter's jurisdiction
specify emission limits for nitrogen oxide (NOX) and
particulate matter (PM) for all engines over 50 HP. The commenter
believes engines on tribal lands, which would be exempt from permitting
under the EPA's proposed criteria, would emit NOX in amounts
above the 0.8 tpy and 1.8 tpy levels that new and older model engines,
respectively, must meet under the state air district's Best Available
Control Technology (BACT) requirements. The commenter states that these
types of engines are controllable and contribute to ozone and therefore
should be subject to NSR permitting.
The commenter also cited a report from the World Health
Organization \8\ that declared diesel PM to be a human carcinogen. The
commenter states that emissions from three standby generators
(approximately 900 HP in total) can create cancer risks exceeding 25 in
a million, even if operated only 50 hours/year. The commenter
elaborates that a 500 HP emergency generator, operating for 500 hours/
year, would create even higher risk (than the engines totaling 900 HP
in the earlier example) due to its longer operating period, and
therefore PM should be controlled from these units and they should be
subject to NSR since the EPA's source-specific rules are not applicable
to these units.
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\8\ Press release dated June 12, 2012. See www.iarc.fr/en/media-
centre/pr/2012/pdfs/pr213_E.pdf.
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Response: One of our objectives for proposing activities/units for
exemption was to reduce burden on source owners. We believe that
emergency generators with horsepower ratings below the exemption
thresholds will predominately have emissions below the minor source
permitting thresholds and therefore the proposed exemption would
potentially save source owners the effort of estimating their emissions
solely to demonstrate that emissions are well below the permitting
threshold.
However, we also recognize the commenter's concerns regarding the
impacts of sources in Indian country to portions of the South Coast Air
Basin that are classified Severe or Extreme nonattainment for ozone. We
are required by title I of the Act to ensure attainment and maintenance
of the NAAQS. Accordingly, after considering the comment, we believe
that an exemption for emergency generators is not appropriate in ozone
nonattainment areas classified Severe or Extreme, and we have revised
exemption language in the final rule accordingly. As finalized, the
total site-rated 500 HP exemption for emergency generators in ozone
nonattainment areas will only apply in ozone nonattainment areas
classified Serious or lower. The site-rated 1,000 HP exemption proposed
for attainment areas remains unchanged in this final rule.
3. Exemption for Boilers and Furnaces
Comment: One state/local commenter believes that boilers and/or
furnaces below the proposed heat input rates should not be exempt from
minor NSR permitting in ozone nonattainment areas classified as Severe
or higher because it would provide a competitive advantage to sources
locating in Indian country. The commenter explains that the South Coast
Air Quality Management District's (SCAQMD) air quality rules require
controls for NOX at levels below the proposed exemption
rates of 5 million Btu/hr for nonattainment areas; 10 million Btu/hr
for attainment areas. The commenter refers to SCAQMD's NOX
emission limits of 9 ppm for natural gas boilers having heat input
rates between 2 million Btu/hr and 5 million Btu/hr to be met by
January 1, 2012. In addition to that requirement, natural gas
industrial furnaces must meet an emissions limit of 30 ppm (Rule 1147)
and NOX controls for fan-type central furnaces under 175,000
Btu/hr are required as well (Rule 1111). The commenter states that the
permitting exemption under Rule 219(b)(2) applies only to boilers and
furnaces under 2 million Btu/hr.
Response: We believe the commenter raises a valid concern regarding
the potential impacts to portions of the South Coast Air Basin
classified as Severe or Extreme ozone nonattainment areas that are
adjacent to/downwind from Indian country. In certain cases the proposed
exemption could make it more difficult for downwind non-Indian country
areas to achieve attainment of the NAAQS, which would be contrary to
the requirements of title I of the Act. To minimize the likelihood of
this occurring in the areas with higher ozone nonattainment
classifications, we are finalizing a lower heat input rate (than the
proposed 5 million Btu/hr which would have applied in all nonattainment
areas) for Severe and Extreme ozone nonattainment areas. The heat input
rate exemption for nonattainment areas in the final rule is specified
as follows: for nonattainment areas classified Serious and lower, the
exemption rate is heat input rates at or below 5 million Btu/hr; for
ozone nonattainment areas classified as Severe or Extreme, the
exemption level is a heat input rate at or below 2 million Btu/hr. The
heat input rate exemption proposed for attainment areas remains
unchanged.
4. Exemption for Forestry/Silvicultural Activities
Comment: One tribal commenter supports this proposed exemption. The
commenter states the view that while emissions from road construction
and maintenance are of particular concern (Note: while the commenter
did not specify, we assume the comment is referring to activities
related to the proposed exemption category), ``such emissions do not
rise to a level requiring their removal from the list of proposed
[[Page 31040]]
exemptions.'' The commenter further states that permitting requirements
for road construction and maintenance will impact timely repair and
maintenance of roads on the commenter's lands. The commenter also
mentions that open burning, a potential source of emissions on their
lands, is regulated by the Bureau of Indian Affairs. Therefore the
commenter believes the proposed exemption for forestry and
silvicultural activities is reasonable and will save permitting
resources.
One state/local commenter requests that the proposed exemption
category be modified or deleted. The commenter voices concern with
significant emissions from road construction and maintenance, and
logging activities. The commenter also expresses concern with the
potential for multiple pieces of equipment to collectively exceed the
minor source thresholds, such as engines associated with wood chippers,
a consideration the EPA noted in identifying units/activities to
propose for exemption (June 4, 2013; 78 FR 33270). The commenter urges
the EPA to delete the proposed exemption and instead rely on the
attainment and nonattainment area NOX thresholds (10 tpy and
5 tpy, respectively) to determine when a permit must be obtained. As an
alternative, the commenter suggests that specific types of equipment
could be exempted instead of the entire category if the EPA determines
them to have de minimis emissions.
Response: One reason we proposed the forestry/silvicultural
category for exemption was to be consistent with the exemptions list in
the Federal Air Rule for Indian Reservations, which applies in Indian
country in the Northwest. A second reason we proposed this category for
exemption was that we believed all emissions within the category would
be de minimis in nature. Therefore, subjecting them to NSR permitting
would provide little environmental benefit. Both commenters express
some concern with the emissions associated with forestry and
silvicultural activities, and one commenter identifies a situation
where emissions could exceed de minimis levels.
Upon considering available information, we have concluded that a
category-wide exemption is not the most appropriate approach to
managing emissions for forestry and silvicultural activities. This
conclusion is based on our recognizing the broad range of activities
and potential emissions sources that could be part of this category and
the potential to inadvertently exclude units with significant
emissions. Due to the broad nature of activities under this category,
we believe that there might be cases where permitting of certain
emission units is needed to protect air quality, which would be
precluded under a category-wide exemption. Based on that concern, we
believe it is more appropriate to use the emission thresholds in the
existing rule (e.g., NOX: 10 tpy and 5 tpy in attainment and
nonattainment areas, respectively) to determine source permitting
requirements and not have a broad, category-wide exemption. Therefore
the exemption for forestry and silvicultural activities is not included
in the final amendments.
B. Definition of Begin Construction
Comment: One industry association commenter notes that the proposed
definition of ``begin construction'' lists certain activities that can
be conducted before the source has obtained a permit.\9\ The commenter
states that the list is more restrictive than the Agency's long
standing approach to permissible activities. The commenter refers to a
policy memo addressing activities allowed without a permit \10\ and
states that the EPA should not deviate from previously established
policies.
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\9\ The list we proposed includes the following activities:
Engineering and design planning, geotechnical investigation (surface
and subsurface explorations), clearing, surveying, ordering of
equipment and materials, storing of equipment or setting up
temporary trailers to house construction management or staff and
contractor personnel.
\10\ Memorandum from Reich, Edward E., OAQPS, to DeSpain, Robert
R., EPA Region VII, titled ``Construction Activities Prior to
Issuance of a PSD Permit with Respect to ``Begin Actual
Construction,'' March 28, 1986.
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Response: We agree with the commenter. Our intent was to include
the same list of activities in the proposed definition that have been
historically allowed under the EPA policy prior to obtaining a permit.
We inadvertently omitted the term ``grading'' from the list in the
proposed definition. We have added grading to the activities allowed
under the definition of ``begin construction'' in the final rule to
maintain consistency with the existing EPA policy.
C. Source Relocation
1. 30-Day Advance Notification Provision
Comment: One tribal commenter believes that at least 30 days notice
is warranted for relocation of a non-portable source since a new permit
may be required, and, in that case, the permitting authority will need
sufficient time to process the application and issue a permit. The
commenter elaborates that for a portable source, a 10-day notice
requirement may be sufficient since its permit will likely include pre-
approved new locations. The commenter agrees with the EPA's
interpretation that these time periods apply where an entire source is
relocated, noting that relocation of one or more pieces of equipment or
emission units requires consultation with the source's reviewing
authority to determine if a modification will occur under the federal
Indian country minor NSR rule.
Another tribal commenter believes that, based on their permitting
experience, in situations where a registered source relocates to a new,
previously unapproved location, the permitting authority should have at
least 30 days to review the relocation request. The commenter states
that this time period is needed for tribal and historic preservation
reviews to be performed.
One industry association commenter reiterates comments made in its
petition for reconsideration on the July 1, 2011, final federal Indian
country minor NSR rule stating that sources often relocate on short
notice and occasionally change a previously planned relocation with
little advance warning. The commenter states that the 30-day advance
notice requirement is incompatible with oil and gas sector operations.
In a subsequent teleconference, the commenter clarified that their
primary concern involves relocation of one or more pieces of equipment
or emissions units and not entire sources.\11\ In response to the EPA's
request for comment on the notification provision, the commenter agrees
with the EPA's statement that there is no requirement for advance
approval, or a permit, for a registered source that relocates prior to
September 2, 2014. The commenter suggests that, in those cases, there
is no need or value to an advance notification as long as the source
continues to comply with its permit. The commenter elaborates that
there will be sufficient opportunity after relocation to notify the EPA
of any change. The commenter offers that one possible approach is the
one used under 40 CFR 63.9(j), and could be adopted in the tribal
rule.\12\ The commenter also references the recently promulgated oil
and gas sector
[[Page 31041]]
New Source Performance Standards (NSPS) which allows for a lag time
between source startup and the determination of whether controls are
required.
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\11\ See memorandum titled Summary of Discussion from the
October 23, 2013, Teleconference between API Representatives and the
Environmental Protection Agency on Source Relocation under the
Tribal Minor NSR Rule. Nov 13, 2013. Docket number EPA-HQ-OAR-2003-
0076-0188.
\12\ This section allows sources to submit changes to previously
provided information within 15 days after the change occurs.
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Response: We specifically requested comment on the case where the
source relocates before September 2, 2014 (i.e., where no permit is
required). As discussed in the preamble for the proposed amendments (78
FR 33723), a true minor source that relocates in that situation does
not need prior approval from its reviewing authority. The notification
provision simply specifies advance notification in that case. However,
it was not clear in some tribal comments if they were addressing the
situation where relocation occurs before September 2, 2014, or on or
after that date, since the need for a permit was mentioned by
commenters. For that latter case, as stated in the proposal, a
previously unpermitted portable source (e.g., a hot-mix asphalt plant)
that relocates on or after September 2, 2014, will be required to
obtain a permit prior to relocation, and we believe that any such
permit will contain provisions addressing any future relocation. In
this case of relocation on/after September 2, 2014, the permit
application fulfills the advance notification requirement. In addition,
we believe in cases where a permit is required the permitting process
addresses the tribal and historic preservation obligations cited by the
commenters. Because none of the commenters presented examples of a
situation where the 30-day advance notification provision justifies a
reduction, we are retaining the 30-day notification period. In the
additional discussion below, we are clarifying that the advance notice
relocation provision is intended to apply to entire sources and not
individual pieces of equipment or emissions units.
2. Permitting Issues Related to Source Relocation
Comment: One industry association commenter referenced the EPA's
discussion in the proposed rule preamble addressing permitting
obligations for true minor sources that relocate (78 FR 33273). The
commenter disagrees with the EPA's statement that a true minor source
constructed before September 2, 2014, that relocates after that date
will have to obtain a permit. The commenter states that relocation is
not tantamount to a modification of such a source and therefore the
need for a permit is not triggered. The commenter clarified in a
subsequent teleconference \13\ that most of the situations addressed in
the comments involve relocation or replacement of single pieces of
equipment, not entire facilities, in the oil and gas sector.
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\13\ See memorandum titled Summary of Discussion from the
October 23, 2013, Teleconference between API Representatives and the
Environmental Protection Agency on Source Relocation under the
Tribal Minor NSR Rule. November 13, 2013. Docket number EPA-HQ-OAR-
2003-0076-0188.
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Further, the commenter disagrees with the EPA's statement in the
proposed rule preamble that a true minor source constructed after
September 2, 2014, must obtain a permit for the original location and
any subsequent relocation not specifically pre-authorized in the
original permit. The commenter believes the EPA should clarify that
permit conditions listing specific sites for relocation are not
required. The commenter states that this approach would be particularly
important for general permits where the ability to relocate would have
to be based on generic criteria. The commenter believes no other
approach would work with a general permit.
Response: The registration program and relocation provisions in 40
CFR 49.160(d)(1) apply to an entire true minor source, and are not
applicable to an individual piece of equipment that is merely a part of
the true minor source. The registration program is used for developing
an inventory of emissions throughout Indian country to help us manage
and protect air quality. We understand from the commenter that in oil
and gas sector operations moving a single piece of equipment from one
facility to another, or replacing a piece of equipment with a new one,
can occur on a regular basis. For clarification purposes, we believe it
would be beneficial to both sources and reviewing authorities for us to
list the different situations involving a piece of equipment (a unit)
that we believe will be most common, and specify the outcome with
respect to minor NSR permitting. While we have listed expected outcomes
below, the source owner/operator should still verify with its reviewing
authority that the ``matching'' situation listed below, and its stated
outcome, applies to its case:
(1) A unit at a permitted source is replaced ``in kind'' (i.e., the
replacement unit is of the same size, capacity, horsepower, etc. as the
existing unit)--The owner/operator should notify the reviewing
authority as specified in its permit. If the existing permit conditions
do not address equipment replacement/relocation, then the source should
send a notification letter to its reviewing authority no later than 60
days following replacement of the unit.
(2) A unit at a registered but unpermitted source is replaced in
kind--No new notification to the reviewing authority is required since
this unit is already part of the inventory.
(3) A unit is moved within the boundary of a permitted or
registered source--No new notification to the reviewing authority
required, unless otherwise specified in the permit.
(4) A unit planned for addition (i.e., not replacement) at either a
permitted or registered source, with PTE above the minor NSR
thresholds--The owner/operator of the true minor source must first
obtain a minor source permit before installing the unit at the new
location beginning on September 2, 2014.\14\
---------------------------------------------------------------------------
\14\ The EPA published a notice of proposed rulemaking in the
Federal Register on January 14, 2014 (79 FR 2546). Within that
document we asked for comment on extending the true minor source
permitting deadline from September 2, 2014, to between September 2,
2015, and March 2, 2016, for oil and natural gas production sources.
---------------------------------------------------------------------------
(5) One or more units (with combined PTE between the minor and
major source thresholds) that are relocated to an entirely new location
(i.e., a greenfield facility)--(a) Prior to September 2, 2014, the
owner/operator of the true minor source must register with its
reviewing authority within 90 days of beginning operation at the new
location in accordance with 40 CFR 49.160(c)(1)(ii); (b) On or after
September 2, 2014, the owner/operator of the true minor source must
obtain a minor NSR permit from the reviewing authority at the new
location before beginning construction.
(6) A unit moved from one registered source to another registered
source before the September 2, 2014, permitting deadline--The source
must notify the reviewing authority of removal of the unit from the
originating source (to update its inventory) and also notify the
reviewing authority of the addition of the unit at the destination
source within 60 days following the change in location.
3. Other Comments on Permitting
Comment: One industry association commenter states that, in the
existing federal Indian country minor NSR rule, true minor sources
constructed or modified after August 30, 2011, are required to obtain a
permit. The commenter notes that the EPA proposed to revise this
applicability date until September 2, 2014, and the commenter supports
this change.
Response: We believe the commenter may have misinterpreted the
existing requirements within 49.151(c)(1)(iii).
[[Page 31042]]
Our intent under the existing rule has always been that true minor
sources do not need a permit if they begin construction before
September 2, 2014. We proposed changes to the regulatory text on June
4, 2013, that are intended to clarify the nature of this deadline. We
are finalizing these proposed changes to the regulatory text to make
this intent clear.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. The action will not create any new requirements under the federal
Indian country minor NSR program, but rather will simplify minor source
registrations and permit applications for some sources, potentially
reducing burden. The Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations for the federal Indian country minor NSR
program (40 CFR 49.151 through 49.161) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003. The OMB control numbers for the EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
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 action on small
entities, small entity is defined as: (1) A small business as defined
in the U.S. Small Business Administration size standards at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final action on
small entities, I certify that this final action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic
effect, on all of the small entities subject to the rule.
This final action will not create any new requirements under the
federal Indian country minor NSR program, and therefore would not
impose any additional burden on any sources (including small entities).
This final action will simplify minor source registrations and reduce
the burden of applicability determinations for some sources compared to
the existing rule, potentially reducing burden for all entities,
including small entities. We have therefore concluded that this final
rule will be neutral or relieve the regulatory burden for all affected
small entities.
D. Unfunded Mandates Reform Act
This action contains no federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for state, local and tribal governments, in the aggregate, or the
private sector in any 1 year. This action will not create any new
requirements under the federal Indian country minor NSR program, but
rather will simplify minor source registrations and reduce the burden
of applicability determinations for some sources. Therefore, this
action is not subject to the requirements of sections 202 or 205 of
UMRA.
This action 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. As noted
previously, the effect of this final rule will be neutral or relieve
regulatory burden.
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 final rule will revise the
federal Indian country minor NSR program, which applies only in Indian
country, and will not, therefore, affect the relationship between the
national government and the states or the distribution of power and
responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000), the 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 the 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 final rule will have tribal
implications. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt tribal law. This
final rule will have tribal implications since it revises the federal
Indian country minor NSR program, which applies to both tribally-owned
and privately-owned sources in Indian country. As with the existing
rule, the revised rule will be implemented by the EPA, or a delegate
tribal agency assisting the EPA with administration of the rules, until
replaced by an EPA-approved tribal implementation plan. The effect of
this final rule will be to simplify compliance with, and administration
of, the federal Indian country minor NSR program, so any impact on
tribes would be in the form of reduced burden and cost.
Prior to proposing the rule amendments, we presented highlights of
the expected changes to tribal environmental staff during a conference
call with the National Tribal Air Association on February 28, 2013, and
[[Page 31043]]
asked for comments. Following signature of the proposed amendments on
May 23, 2013, the EPA mailed letters to over 560 tribal leaders to
offer consultation. In addition, to help facilitate the tribes'
decision concerning our offer of consultation, we held conference calls
on June 17 and 20, 2013, with tribal environmental officials where we
provided an overview of the proposed changes and answered any
questions. We did not receive any requests for consultation from tribal
governments. Lastly, we have taken into account the comments submitted
from three tribes on the proposed amendments and fully considered those
comments in finalizing the amendments in today's rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and 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 subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
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 the 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 the EPA to
provide Congress, through the OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
the EPA has not considered 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 does not
affect the level of protection provided to human health or the
environment. This final rule will simplify minor source registrations
and permit applications for some sources under the federal Indian
country minor NSR program, but will not relax control requirements or
result in greater emissions under the program.
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 on the date of publication, i.e.,
on June 30, 2014.
L. Judicial Review
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 July 29, 2014. 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.
VII. Statutory Authority
The statutory authority for this action is provided by sections
101, 110, 112, 114, 116 and 301 of the CAA as amended (42 U.S.C. 7401,
7410, 7412, 7414, 7416 and 7601).
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practices and procedures,
Air pollution control, Indians, Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: May 9, 2014.
Gina McCarthy,
EPA Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
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. Section 49.151 is amended by revising paragraphs (c)(1)(i)(A),
(c)(1)(ii)(A) and (B), (c)(1)(iii)(B), and (d)(1) to read as follows:
Sec. 49.151 Program overview.
* * * * *
(c) * * *
(1) * * *
(i) * * *
(A) If you wish to begin 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 beginning
construction.
* * * * *
(ii) * * *
(A) If you wish to begin construction of a new synthetic minor
source and/or
[[Page 31044]]
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 beginning 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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
prior to beginning construction.
* * * * *
(iii) * * *
(B) If you wish to begin construction of a new true minor source or
a modification at an existing true minor source on or after 6 months
from the date of publication in the Federal Register of a final general
permit for that source category, or September 2, 2014, whichever is
earlier, you must first obtain a permit pursuant to Sec. Sec. 49.154
and 49.155 (or a general permit pursuant to Sec. 49.156, if
applicable). 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.
* * * * *
(d) * * *
(1) If you begin 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.
* * * * *
0
3. Section 49.152(d) is amended by adding in alphabetical order
definitions for ``Begin construction'' and ``Commence construction'' to
read as follows:
Sec. 49.152 Definitions.
* * * * *
(d) * * *
Begin construction means, in general, initiation of physical on-
site construction activities on an emissions unit which are of a
permanent nature. Such activities include, but are not limited to,
installation of building supports and foundations, laying underground
pipework and construction of permanent storage structures. With respect
to a change in method of operations, this term refers to those on-site
activities other than preparatory activities which mark the initiation
of the change. The following preparatory activities are excluded:
Engineering and design planning, geotechnical investigation (surface
and subsurface explorations), clearing, grading, surveying, ordering of
equipment and materials, storing of equipment or setting up temporary
trailers to house construction management or staff and contractor
personnel.
Commence construction means, as applied to a new minor stationary
source or minor modification at an existing stationary source subject
to this subpart, that the owner or operator has all necessary
preconstruction approvals or permits and either has:
(i) Begun on-site activities including, but not limited to,
installing building supports and foundations, laying underground piping
or erecting/installing permanent storage structures. The following
preparatory activities are excluded: Engineering and design planning,
geotechnical investigation (surface and subsurface explorations),
clearing, grading, surveying, ordering of equipment and materials,
storing of equipment or setting up temporary trailers to house
construction management or staff and contractor personnel; or
(ii) Entered into binding agreements or contractual obligations,
which cannot be cancelled or modified without substantial loss to the
owner or operator, to undertake a program of actual construction of the
source to be completed within a reasonable time.
* * * * *
0
4. Section Sec. 49.153 is amended by:
0
a. Revising paragraphs (a)(3)(ii) and (iii) and (c) introductory text
and (c)(3); and
0
b. Adding paragraphs (c)(8) through (12) to read as follows:
Sec. 49.153 Applicability.
(a) * * *
(3) * * *
(ii) If you wish to begin 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 beginning 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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
prior to beginning construction.
* * * * *
(c) What emissions units and activities are exempt from this
program? At a source that is otherwise subject to this program, this
program does not apply to the following emissions units and activities
that are listed in paragraphs (c)(1) through (12) of this section:
* * * * *
(3) Cooking of food, except for wholesale businesses that both cook
and sell cooked food.
* * * * *
(8) Single family residences and residential buildings with four or
fewer dwelling units.
(9) Emergency generators, designed solely for the purpose of
providing electrical power during power outages:
(i) In nonattainment areas classified as serious or lower, the
total maximum manufacturer's site-rated horsepower of all units shall
be below 500;
(ii) In attainment areas, the total maximum manufacturer's site-
rated horsepower of all units shall be below 1,000.
(10) Stationary internal combustion engines with a manufacturer's
site-rated horsepower of less than 50.
(11) Furnaces or boilers used for space heating that use only
gaseous fuel, with a total maximum heat input (i.e., from all units
combined) of:
(i) In nonattainment areas classified as Serious or lower, 5
million British thermal units per hour (MMBtu/hr) or less;
(ii) In nonattainment areas classified as Severe or Extreme, 2
million British thermal units per hour (MMBtu/hr) or less;
(iii) In attainment areas, 10 MMBtu/hr or less.
(12) Air conditioning units used for human comfort that do not
exhaust air pollutants in the atmosphere from any manufacturing or
other industrial processes.
* * * * *
0
5. Section 49.158 is amended by revising paragraph (c)(1) to read as
follows:
[[Page 31045]]
Sec. 49.158 Synthetic minor source permits.
* * * * *
(c) * * *
(1) 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 August 30, 2011. For these
modifications, you need to obtain a permit pursuant to Sec. 49.158
before you begin construction.
* * * * *
0
6. Section 49.160 is amended by revising paragraph (d)(1) to read as
follows:
Sec. 49.160 Registration program for minor sources in Indian country.
* * * * *
(d) * * *
(1) Report of relocation. After your source has been registered,
you must report any relocation of your source to the reviewing
authority in writing no later than 30 days prior to the relocation of
the source. Unless otherwise specified in an existing permit, a report
of relocation shall be provided as specified in paragraph (d)(1)(i) or
(ii) of this section, as applicable. In either case, the permit
application for the new location satisfies the report of relocation
requirement.
(i) Where the relocation results in a change in the reviewing
authority for your source, you must submit a report of relocation to
the current reviewing authority and a permit application to the new
reviewing authority.
(ii) Where the reviewing authority remains the same, a report of
relocation is fulfilled through the permit application for the new
location.
* * * * *
[FR Doc. 2014-11499 Filed 5-29-14; 8:45 am]
BILLING CODE 6560-50-P