[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Proposed Rules]
[Pages 33266-33276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13057]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-HQ-OAR-2003-0076; FRL-9818-8]
RIN 2060-AR25


Review of New Sources and Modifications in Indian Country

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing three changes to the New Source Review 
(NSR) program for minor sources and minor modifications at major 
sources in Indian country, which we refer to as the ``Tribal minor NSR 
program.'' First, we propose to expand the list of emissions units and 
activities that are exempt from the Tribal minor NSR program by adding 
several types of low-emitting units and activities. Second, we propose 
to more clearly define the term ``commence construction'' and add the 
term ``begin construction'' to better reflect the regulatory 
requirements associated with construction activities. We believe both 
of these proposed changes would simplify the program, resulting in less 
burdensome implementation without detriment to air quality in Indian 
country. Lastly, we are reconsidering the advance notification period 
for relocation of a true minor source in response to a petition 
received on the final Tribal NSR rule from the American Petroleum 
Institute, the Independent Petroleum Association of America and 
America's Natural Gas Alliance.

DATES: Comments must be received on or before August 5, 2013.
    Public Hearing. If anyone contacts us requesting to speak at a 
public hearing by June 25, 2013, we will hold a public hearing. 
Additional information about the hearing will be published in a 
subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0076, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     Email: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2003-0076.
     Fax: (202) 566-9744.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2003-0076, Air 
and Radiation Docket, Mailcode: 28221T, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Please 
include a total of two copies.
     Hand Delivery: Air and Radiation Docket, EPA/DC, EPA West, 
Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, 
Attention Docket ID No. EPA-HQ-OAR-2003-0076. Such deliveries are only 
accepted during the Docket Center's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0076. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other

[[Page 33267]]

contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses. For additional instructions on submitting comments, 
go to section I.B of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For technical information, contact 
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: 
[email protected].
    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-01), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

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. What should I consider as I prepare my comments for the EPA?
    1. Submitting CBI
    2. Tips for Preparing Your Comments
    C. Where can I get a copy of this document and other related 
information?
    D. How can I find information about a possible public hearing?
    E. What acronyms, abbreviations and units are used in this 
preamble?
II. Purpose
III. Background
    A. What are the general requirements of the minor NSR program?
    B. What is the Tribal NSR rule?
    C. What is the status of the NSR air quality program in Indian 
Country?
IV. Proposed Revisions to the Tribal Minor NSR rule
    A. Emissions Units and Activities Exempted From the Tribal Minor 
NSR Rule
    B. Defining Construction-Related Activities for Permitting 
Purposes
    C. Advance Notification Time Period for Relocation of True Minor 
Sources
V. 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. Determination Under Section 307(d)
VI. Statutory Authority

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this proposed rule include owners 
and operators of emission sources in all industry groups located in 
Indian country, the EPA and tribal governments that are delegated 
administrative authority to assist the EPA with the implementation of 
these federal regulations. 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.
                                        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.

[[Page 33268]]

 
                                          4471  Gasoline station.
                                         54171  Professional,
                                                 Scientific, and
                                                 Technical Services.
                                        562212  Solid Waste Landfill.
                                         72112  Other (natural gas-fired
                                                 boilers).b
                                        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.
b Used NAICS code designated for casino hotels.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be subject to the Tribal 
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 Tribal 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. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI
    Do not submit this information to the EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. Send or deliver information 
identified as CBI only to the following address: Roberto Morales, OAQPS 
Document Control Officer (C404-02), Environmental Protection Agency, 
Research Triangle Park, NC 27711, Attention: Docket ID No. EPA-HQ-OAR-
2003-0076.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. 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 proposed rule will also be available on the World Wide Web. 
Following signature by the EPA Administrator, a copy of this proposed 
rule will be posted in the regulations and standards section of our NSR 
Web site, under Regulations & Standards, at http://www.epa.gov/nsr.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, 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) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

E. 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
FIP Federal Implementation Plan
FR Federal Register
GHG Greenhouse Gas
GP General Permit
HAPs Hazardous Air Pollutants
ICR Information Collection Request
LAER Lowest Achievable Emission Rate
MACT Maximum Achievable Control Technology
MMBTU/hr Million British thermal units per hour
NAAQS National Ambient Air Quality Standard
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
NSR New Source Review
NOX Nitrogen Oxide
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
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
TSD Technical Support Document
tpy Tons Per Year
UMRA Unfunded Mandates Reform Act

II. Purpose

    The purpose of this rule is to propose and seek comment on three 
revisions to the Tribal minor NSR rule \1\ that will streamline 
implementation by adding more exempted units/activities, clarifying 
language related to construction and relocation of true minor sources. 
Specifically, we are proposing to add seven categories of units/
activities that will be listed as exempt from the Tribal minor NSR rule 
because their emissions are deemed insignificant. Listing these 
categories explicitly will mean that many applicants and reviewing 
authorities will not need to calculate potential emissions for 
activities that can be deemed insignificant. In the preamble to the 
Tribal minor NSR rule, we committed to considering the addition

[[Page 33269]]

of exempt units/activities to the list in that final rule, as requested 
by commenters. This proposed rule fulfills that commitment.
---------------------------------------------------------------------------

    \1\ The Tribal minor NSR rule is a component of ``Review of New 
Sources and Modifications in Indian Country, Final Rule'' 76 FR 
38747 (July 1, 2011) (the Tribal minor NSR rule).
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    In the Tribal minor NSR 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 permit effective date. 
In this proposal, we are clarifying this distinction by proposing two 
different terms for those situations--``begin construction'' and 
``commence construction.'' Accordingly, we are also proposing to 
replace ``commence construction'' with ``begin construction,'' in 
certain sections of the regulatory text for consistency. The third 
proposed revision is reconsideration of the 30-day advance notice 
requirement for a true minor source prior to relocation. This is in 
response to a request on the final rule from the American Petroleum 
Institute, the Independent Petroleum Association of America and 
America's Natural Gas Alliance.

III. Background

A. What are the general requirements of the minor NSR program?

    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 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 Prevention of Significant 
Deterioration (PSD) program.
    States must develop minor NSR programs to attain and maintain the 
NAAQS and 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 and, as a result, there is a larger variation of 
requirements 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\ 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 Tribal Authority Rule 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 Tribal NSR rule?

    The ``Review of New Sources and Modifications in Indian country'' 
(i.e., Tribal NSR rule) final rule was published in the Federal 
Register on July 1, 2011 (76 FR 38748), pursuant to sections 301(a) and 
(d) of the Act. This rule established a federal implementation plan 
(FIP) for Indian country that includes two NSR regulations for the 
protection of air resources in Indian country. These two new NSR 
regulations 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 Tribal NSR rule, which we call the 
``Tribal minor NSR rule,'' applies to new and modified minor stationary 
sources (minor sources) and to minor modifications at existing major 
stationary sources (major sources) throughout Indian country where 
there is no EPA-approved plan in place. The second regulation, which we 
refer to as the ``tribal nonattainment major NSR rule,'' applies to new 
and modified major sources in areas of Indian country that are 
designated as not attaining the NAAQS (nonattainment areas). Through 
these two regulations, the Tribal NSR rule ensures 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.
    The Tribal minor NSR rule applies to new and modified minor sources 
and to minor modifications at major sources. New minor sources with a 
PTE equal to or greater than the minor NSR thresholds, or modifications 
at existing minor sources with allowable emissions increases equal to 
or greater than the minor NSR thresholds, must apply for and obtain a 
minor NSR permit prior to beginning construction of the new source or 
modification.
    Under the nonattainment major NSR rule, affected sources are 
required to comply with the provisions of 40 CFR part 51, Appendix S. 
In recent years, Appendix S has primarily been used as a transitional 
rule for nonattainment major NSR permitting in nonattainment areas for 
which state agencies do not have an approved nonattainment major NSR 
program for a particular pollutant in their SIPs. Sources subject to 
the nonattainment major NSR rule must meet requirements for Lowest 
Achievable Emissions Rate (LAER) control technology, emissions offsets 
and compliance certification.
    The effective date of the minor Tribal NSR rule was August 30, 
2001. To facilitate the effective implementation of the Tribal minor 
NSR program, some components of the rule were phased in. Generally, the 
applicability of the preconstruction permitting rules to new synthetic 
minor sources \5\ began on the rule's effective date, August 30, 2011; 
for new or modified true minor sources,\6\ the rules apply 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 the NSR air quality program 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

[[Page 33270]]

attainment areas of Indian country (40 CFR 52.21). There are also no 
tribes currently administering an EPA-approved nonattainment major NSR 
program, so 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, 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 TIPs and seek 
our approval.

IV. Proposed Revisions to the Tribal Minor NSR Rule

    This section discusses the proposed revisions to the Tribal minor 
NSR rule and our rationale for proposing those changes. We solicit 
public comment on the changes being proposed and will consider those 
comments in developing the final rule.

A. Emissions Units and Activities Exempted From the Tribal Minor NSR 
Rule

    In the Tribal minor NSR rule promulgated on July 1, 2011 (76 FR 
38792), we exempted seven emissions units/activities from the Tribal 
minor NSR permitting program pursuant to 40 CFR 49.153(c) because their 
potential emissions are insignificant. Listing units/activities with 
trivial emissions as exempt saves permitting resources because it 
eliminates the need for applicants or permitting agencies to calculate 
the potential emissions to verify they do not exceed minor source 
permitting thresholds. In the preamble to that rule, we referred to 
comments received regarding our originally proposed list of exempt 
units/activities (i.e., the August 21, 2006, proposed rule) and we 
committed to consider additional units/activities for exemption from 
minor NSR permitting, and to propose and seek comment on such revisions 
through a separate rulemaking (76 FR 38759). This proposal fulfills 
that commitment.
    In the Tribal minor NSR rule proposed on August 21, 2006, we listed 
ten categories of units/activities for exemption from minor NSR 
permitting. We received eleven comment letters concerning the list of 
exempted units/activities. Many commenters said the list should be more 
extensive, similar to state source exemption lists from minor NSR 
permitting. The majority of those commenters stated that a longer list 
of exemptions would ``level the playing field'' between sources located 
in Indian country, and those on adjacent lands subject to EPA-approved 
state NSR programs, by treating them more equitably regarding the types 
of minor sources that would be exempt from minor NSR permitting. We 
considered this information in determining whether to modify the 
exemptions list in the existing Tribal minor NSR rule and also reviewed 
unit/activity-exemption lists from many states that also contain Indian 
country.\7\
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    \7\ This review included minor NSR permitting regulations from 
the State of Colorado and the South Coast Air Management District 
since these states/agencies were specifically cited by commenters. 
See Docket ID No. EPA-HQ-OAR-2003-0076 for the listing of state 
regulations reviewed.
---------------------------------------------------------------------------

    We noted several things from our review of state minor source rules 
that apply outside Indian country. One observation is that some state 
regulations do not provide any minimum NSR pollutant emission 
thresholds below which sources are exempt from state minor NSR 
permitting requirements. In those cases, any new source or activity not 
specifically exempted by its state rule is potentially subject to its 
minor NSR permitting program. By contrast, the existing Tribal minor 
NSR rule already contains minor NSR thresholds, thereby providing a 
mechanism for sources to avoid being subject to minor source permitting 
without being specifically listed for exemption. A second observation 
is that many state minor NSR permitting regulations contain language 
specifying that a permitting exemption for a specific source-type does 
not apply if that source is subject to either the requirements of 40 
CFR part 60 NSPS, Part 61 National Emission Standards for Hazardous Air 
Pollutants (NESHAP), or Part 63 MACT (New Source Performance Standards 
(NSPS), NESHAP and MACT programs). By including such language in their 
minor source regulations, the states have attempted to address any 
sources that may have significant emissions and the potential to 
negatively impact ambient air quality. This approach ensures that 
sources that might otherwise be exempt from permitting are subject to 
minor NSR permitting. Since the Tribal minor NSR rule does not contain 
similar language, we have chosen fewer categories than some states, but 
more than others, in the number of source-types exempted. We have taken 
this approach to limit exemptions to fewer source types since, without 
the ``backstop'' of the permitting obligation tied to sources subject 
to NSPS, NESHAP or MACT programs, we might inadvertently exempt non-
trivial sources, potentially degrading air quality in Indian country.
    As a result, we considered a variety of source types and are 
proposing to add units/activities to the exemptions list that are 
expected: (1) to have inherent emissions significantly less than the 
minor NSR thresholds in 40 CFR 49.153, and (2) are expected to be very 
common and sited at many sources such that an exemption from needing to 
calculate PTE to determine applicability would reduce the burden on 
these sources. In essence, we are seeking to strike a balance between 
ensuring that the permitting of minor emission sources is consistent 
with the requirements of the Act, and exempting source categories where 
the permitting process adds administrative burden but offers no 
significant environmental benefit. We believe the sources we propose to 
add to the exempted list have emissions below the relevant 
applicability thresholds due to their operational nature. See 
additional discussion below in the section titled, ``Information 
Obtained from Source Registration under Federal Air Rule for Indian 
Reservations (FARR).''
    We note that for determining applicability, a source's emissions 
are based on PTE and are determined on a source-wide basis and not an 
individual unit basis. For this reason, when considering potential 
units/activities for addition to the exemptions list, which are 
excluded from a source's PTE calculation, we were mindful of the 
possibility that multiple individual units/activities, while perhaps 
individually below the Tribal minor NSR permitting thresholds, could 
collectively exceed those thresholds (e.g., two non-emergency, 
stationary engines at the same facility). For that reason we limited 
the number exempt units/activities to minimize inadvertently exempting 
units/activities that would exceed minor source permitting thresholds 
based on combined potential emissions with other exempted units/
activities at the source.
    Several of the units/activities we are proposing to add to the 
exemptions list are currently exempted under the FARR's air pollution 
source registration program under 40 CFR 49.138.\8\ We

[[Page 33271]]

believe that adding these same units/activities to the Tribal minor NSR 
rule's exemption list would provide consistency in implementing rules 
affecting similar sources in Indian country. We also believe it is 
appropriate to include exemptions contained in the FARR because that 
list was developed with the intent of exempting both (1) the units/
activities with de minimis levels of emissions, and (2) those for which 
a registration requirement would create an unreasonable burden. We are 
proposing to include most units/activities from the FARR that we 
believe have de minimis emissions.
---------------------------------------------------------------------------

    \8\ The FARR is a FIP that applies to air pollution sources on 
Indian reservations in Idaho, Oregon and Washington. The permitting 
for Indian country in these states is under the oversight of EPA 
Region 10.
---------------------------------------------------------------------------

Additional Units/Activities for Exemption
    Based on our review of state lists, and anticipation of lower 
source emissions, we are proposing to add the following units/
activities to the exempt units/activities list:
     Emergency generators, designed solely for the purpose of 
providing electrical power during power outages: in nonattainment 
areas, the total maximum manufacturer's site-rated horsepower of all 
units shall be below 500; in attainment areas, the total maximum 
manufacturer's site-rated horsepower of all units shall be below 1,000. 
The horsepower thresholds were established to ensure that minor NSR 
nitrogen oxide (NOX) thresholds are not exceeded using the 
maximum annual run-time of 500 hours per year, based on EPA's PTE 
guidance.
     Stationary internal combustion engines with a 
manufacturer's site-rated horsepower of less than 50.
     Furnaces or boilers used for space heating exclusively 
using gaseous fuel with a total maximum heat input (i.e., from all 
units combined) of 10 million British thermal units per hour (MMBtu/hr) 
(5 MMBtu/hr in nonattainment areas) or less. Based on our review of 
state regulations, and a determination that the NOX 
emissions threshold of 5 tons/year would not be exceeded, we are 
proposing a maximum fuel usage rate of 10 MMBtu/hr (5 MMBtu/hr in 
nonattainment areas) for these units.
    We are proposing to add the following units/activities to the list 
of sources that are exempt from minor NSR permitting:
     Single family residences and residential buildings with 
four or fewer dwelling units. This would typically include units such 
as furnaces and hot water heaters.
     Air conditioning units used for human comfort that do not 
exhaust air pollutants to the atmosphere from any manufacturing or 
other industrial processes.
     Forestry and silvicultural activities. The FARR defines 
these as activities associated with regeneration, growing, and 
harvesting of trees and timber including, but not limited to, preparing 
sites for new stands of trees to be either planted or allowed to 
regenerate through natural means, road construction and road 
maintenance, fertilization, logging operations, and forest management 
techniques employed to enhance the growth of stands of trees or timber. 
They do not include milling operations.
    Exemptions for air conditioning units and heating units for comfort 
were originally proposed in the August 21, 2006, Tribal minor NSR 
proposed rule. We did not finalize those exemptions, however, because 
we were uncertain at that time how the upcoming greenhouse gas (GHG) 
regulations, then under development, would affect GHG permitting 
thresholds and thus how the outcome of that process might impact those 
activities. We have now completed the GHG Tailoring Rule Step 3 
rulemaking and not lowered GHG permitting applicability thresholds. 
Therefore, we believe these units will not trigger GHG permitting 
requirements and we are proposing to add the exemption for air 
conditioning units (the non-manufacturing/industrial process type) and 
certain units used for space heating to the list of exempted units and 
activities in the Tribal minor NSR rule. If the EPA lowers GHG 
permitting thresholds in the future, we will reevaluate whether these 
exemptions continue to be appropriate.
Revision to the Existing Exempted Units/Activities List
    Lastly, in addition to the proposed additions to the exempted 
units/activities listed above, we are proposing to revise the existing 
exemption criteria for food preparation activities currently specified 
in 40 CFR 49.153(c)(3) such that the current exemption, limited to 
noncommercial cooking of food, will be expanded to include certain 
types of commercial operations. We are proposing the same definition 
that is used in the FARR, i.e., an exemption for the cooking of food 
other than wholesale businesses that both cook and sell cooked food. 
This proposed revision will broaden the current exemption to fast food 
vendors and stand alone restaurants and is being added because we 
believe these sources have de minimis emissions.
Information Obtained From Source Registration Under FARR
    The FARR, under 40 CFR 49.138, requires sources on the covered 
Indian reservations, unless otherwise exempt, to register their 
facility with EPA Region 10 (i.e., the reviewing authority) each year. 
As part of that registration process, the source must submit an 
estimate of its actual emissions (for criteria and other specified 
pollutants). There are 39 Indian reservations located in Idaho, Oregon 
and Washington covered under the FARR. While these 39 reservations 
represent only a portion of Indian country nationwide, we believe the 
source-registration information collected by EPA Region 10 is useful to 
help inform us regarding the source-types potentially subject to minor 
source permitting (note: the FARR requires both minor and major sources 
of NSR pollutants to register).
    For 2011, the most recent registration year completed under the 
FARR, a total of 153 sources located within applicable Indian 
reservations have registered. Nearly all of the registered sources 
perform activities that are potentially covered under one or more EPA 
air rules (i.e., a MACT or NSPS rule) when relevant emissions, or other 
thresholds, are met (i.e., they are industrial sources). This 
information suggests that the list of exemptions in the FARR is 
effective at screening out and reducing unnecessary administrative 
burden on the types of small emission sources we intend to exempt from 
permitting through the proposed revisions to the list in the Tribal 
minor NSR rule and indicates that a relatively short list of exempt 
units/activities can fulfill our objective. Similarly, under the Tribal 
minor NSR rule, units/activities that are not exempt from minor NSR 
permitting based on the exemptions list can still qualify for an 
exemption if their estimated potential emissions are below the 
thresholds contained in 40 CFR 49.153.

B. Defining Construction-Related Activities for Permitting Purposes

    Under the Tribal minor NSR permitting program, the point at which 
construction begins is critical in two instances: 1) For new or 
modified sources that have not obtained a minor NSR permit, 
construction is prohibited until a permit is issued; and 2) For new or 
modified sources that have received a minor NSR permit, construction 
must begin within 18 months of permit issuance for the permit to remain 
valid.
    In the existing Tribal minor NSR rule, the term ``commence 
construction'' is used for both situations described

[[Page 33272]]

above, i.e., where construction is prohibited and also where 
construction must occur within 18 months. In this proposal, we are 
intend to clarify two different terms that are relevant for these two 
different situations as follows:
    1. Construction Prohibited Prior to Permit Issuance--Definition of 
``Begin Construction.''
    The term ``commence construction'' is used in certain sections of 
the existing Tribal minor NSR rule to indicate that construction is 
prohibited prior to obtaining a permit. To make this provision of the 
rule consistent with a similar provision of the major NSR rule, we are 
proposing to replace the term ``commence construction'' with ``begin 
construction'' in those cases where the rule specifies that a permit is 
required before constructing or modifying a source.
    One section of the rule where we are proposing to change ``commence 
construction'' to ``begin construction'' is 40 CFR 
49.151(c)(1)(iii)(B). In addition to this proposed change, we believe 
the regulatory text in this section could be clearer in stating our 
intent to delay the implementation date of the minor NSR permitting 
program for true minor sources, due to resource constraints, until 
September 2, 2014 \9\. Therefore, we are proposing to revise this 
section. We believe that by moving the date at which applicability is 
triggered to the beginning of this section it is clearer that true 
minor sources are not required to obtain a permit unless they begin 
construction on or after the date that is the earlier of: six months 
after a final general permit for that specific source category is 
published in the Federal Register, or September 2, 2014.
---------------------------------------------------------------------------

    \9\ July 1, 2011 Federal Register, 76 FR 38783.
---------------------------------------------------------------------------

    We are also proposing to provide a specific definition for ``begin 
construction.'' The proposed definition for ``begin construction'' is 
based on the definition of ``begin actual construction'' in 40 CFR 
52.21 with some modifications. One proposed modification is a provision 
clarifying that certain preparatory activities are not considered to be 
construction activities, and therefore can be performed prior to 
receiving a permit. The following proposed list of activities is 
generally consistent with what we have historically allowed in our 
site-specific determinations, related to construction activities, under 
the major NSR program: 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. We believe this listing of activities will 
reduce the uncertainty of whether an activity constitutes ``begin 
construction'' under the Tribal minor NSR program.
    2. Construction Necessary after Permit Issuance--Definition of 
``Commence Construction.''
    The existing Tribal minor NSR rule does not define the term 
``commence construction.'' Currently, because that term is not defined 
in the Tribal minor NSR rule, the definition(s) under 40 CFR 52.21 
(i.e., the PSD program) applies. However, while 40 CFR 52.21(b) defines 
``construction \10\'' and ``commence'' it does not expressly define the 
term ``commence construction.'' Therefore, we are proposing a distinct 
definition under the Tribal minor NSR rule for ``commence 
construction'' that will assist in implementing the minor NSR 
provisions.
---------------------------------------------------------------------------

    \10\ The definition of ``construction'' under 40 CFR 52.21(b) 
for major sources carries with it a lengthy history of implementing 
that term under the major source program. The types of sources 
regulated under the major source program are predominantly much more 
complex in nature than those regulated under the Tribal minor NSR 
rule. Therefore, it would be inconsistent with our intent to 
simplify implementation for minor sources or minor modifications, to 
refer to the term used in the major source program.
---------------------------------------------------------------------------

    The definition being proposed for ``commence construction'' for 
purposes of Tribal minor NSR primarily uses terminology from the 
definition of ``commence'' under 40 CFR 52.21 that applies to major 
source NSR. However, similar to the proposed definition of ``begin 
construction,'' this proposed definition also includes the following 
language to clarify the preparatory activities that are not considered 
to be within the scope of commencing construction: 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. The 
list of activities considered to be preparatory, and therefore not 
considered to be commencing construction, is included to clarify that 
these activities do not count when determining whether the source has 
commenced construction by a specified date. In contrast, the activities 
that are substantial, and therefore do count toward determining that a 
source has commenced construction, are activities such as: installation 
of building supports and foundations, paving, laying of underground 
pipe work, construction of permanent storage structures, and activities 
of a similar nature.

C. Advance Notification Time Period for Relocation of True Minor 
Sources

    The Tribal minor NSR rule includes a registration program for true 
minor sources. This program was developed to improve our understanding 
of the types, and number, of minor sources located in Indian country. 
This program requires, under 40 CFR 49.160(c), the owner/operator of 
true minor sources to register their source with their reviewing 
authority. The information submitted as part of that registration 
includes the source's location. If an owner/operator plans to move the 
source to another location, that owner/operator is required under 40 
CFR 49.160(d)(1) to submit a notice of relocation no later than 30 days 
prior to relocating. Among other reasons, this requirement allows us to 
maintain the accuracy of our minor source inventory in Indian country.
    We received a letter on November 4, 2011, from the American 
Petroleum Institute, the Independent Petroleum Association of America 
and America's Natural Gas Alliance (collectively, the Petitioners) 
requesting that we reconsider the 30-day advance notice provision for 
registered sources prior to relocation. The EPA responded to that 
request in a letter dated December 19, 2012, from then EPA 
Administrator Lisa Jackson to the Petitioners, where we agreed to 
reconsider the 30-day notice requirement. We stated in that December 
19, 2012, letter that we would publish a Federal Register notice to 
address the specific issues for which we granted reconsideration and we 
are addressing the 30-day notice issue in this proposed rule.
    The Petitioners claim that the 30-day period is too long a 
timeframe for those sources where facility operations may necessitate a 
need to relocate unexpectedly. The Petitioners also stated their 
understanding that the requirement to provide the notice of relocation 
is for informational purposes and does not require any approval from 
the reviewing authority. Both of these issues are discussed below.
    In response to the 30 day notification issue, we looked at both 
State and Federal rules pertaining to source relocation. Our review of 
state rules showed a range between 10 and 30 days advance notice 
specified for sources prior to relocation. In our major source PSD 
provisions at 52.21(i)(1)(viii)(d), addressing portable sources that 
relocate, we require that notice be

[[Page 33273]]

provided to the Administrator no later than 10 days prior to the 
relocation. Based on this information we are seeking comment on what 
advance notification period between 10 and 30 days is appropriate under 
the provisions of 40 CFR 49.160(d)(1).
    While we agree with the Petitioners statement that there is no 
requirement for advance approval or a permit for relocation of a 
registered source prior to September 2, 2014, we are further clarifying 
and requesting comment on the permit requirements discussed below for 
sources relocating on or after September 2, 2014.
Source Obligation/Permit Requirements for Relocation
    We believe that the types of true minor sources that typically 
relocate are ``portable sources'' such as: hot-mix asphalt plants, rock 
crushing operations and concrete batch plants. These source-types are 
designed to move the entire source from location to location, and, as a 
result, they are normally issued permits containing conditions that 
specify the owner/operator obligations prior to relocating. These 
portable sources can be permitted with either a site-specific permit 
or, if appropriate, through coverage under a general permit. In either 
case, multiple locations can be, and often are, pre-authorized in the 
permit. We also note that any general permits we may develop for such 
portable sources may contain provisions that would address source 
relocation. If the existing permit for a portable source does not 
contain authorization to relocate to a particular location, then the 
source must apply to the appropriate reviewing authority for a permit 
revision or new permits, as appropriate, to provide coverage for that 
additional location(s) and receive that permit before relocating.
    For the relatively infrequent situation where a non-portable source 
is relocated, the owner must apply to the appropriate reviewing 
authority for a permit that covers the new location.
    It's important to note that the above discussion pertains to 
relocation of the entire minor source. If an owner/operator chooses to 
relocate one or more pieces of equipment or emission units associated 
with a source from one source to another, the owner/operator would need 
to work with its reviewing authority (at the new location) to determine 
if such a relocation constitutes a modification under the Tribal minor 
NSR rule and requires a permit.
Timing of Relocation
    A relocating source can be subject to permit requirements depending 
on the date of relocation.\11\ The three main scenarios are as follows:
---------------------------------------------------------------------------

    \11\ The discussion below applies to true minor sources only. 
Synthetic minor sources are less likely to relocate, but if they do, 
we expect their permit conditions will address relocation.
---------------------------------------------------------------------------

     A registered true minor source constructed before 
September 2, 2014, that relocates before September 2, 2014, is not 
required to obtain any approval or permit prior to the relocation. Such 
a source is, however, required to provide advance notification of any 
planned relocation to the reviewing authority in accordance with 40 CR 
49.160(d)(1).
     A true minor source constructed before September 2, 2014, 
that relocates on or after September 2, 2014, must obtain a permit from 
the appropriate reviewing authority prior to relocation if the source 
is subject to the Tribal minor NSR rule.
     A true minor source constructed on or after September 2, 
2014, must obtain a permit for the original location and also for any 
subsequent relocation not specifically pre-authorized in the original 
permit.
    To clarify the notification of relocation requirements further, we 
are proposing revisions to 40 CFR 49.160(d)(1) . We propose to replace 
the last two sentences of the existing regulatory text, addressing NSR 
permitting obligations, with more specific language concerning 
relocation situations. The proposed changes specify that a source 
moving from the jurisdiction of one reviewing authority to another on 
or after September 2, 2014, is required to notify the reviewing 
authority at the existing location and submit a permit application to 
the reviewing authority at the new location. In the case where the 
existing and new locations both fall within the jurisdiction of the 
same reviewing authority, the permit application for the new location 
will fulfill the relocation notification requirement.
    As discussed above, we believe certain sources will hold permits 
that will contain specific conditions addressing requirements for 
relocation. In those cases, the provisions of the existing permit shall 
indicate the necessary notification of relocation requirements instead 
of those contained in 40 CFR 49.160(d)(1).

V. 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 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) because it does not result in an impact 
greater than $100 million in any one year or raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The proposed rule would not create any new requirements under the 
Tribal minor NSR program, but rather would 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 Tribal 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 proposed 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; or (3) a small organization that is any 
not-for-profit enterprise that is independently

[[Page 33274]]

owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed action on 
small entities, I certify that this proposed 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.
    The proposed rule would not create any new requirements under the 
Tribal minor NSR program, and therefore would not impose any additional 
burden on any sources (including small entities). The proposed rule 
would simplify minor source registrations and reduce the number of 
permit applications for some sources required under the existing rule, 
potentially reducing burden for all entities, including small entities. 
We have therefore concluded that this proposed rule will be neutral or 
relieve the regulatory burden for all affected small entities. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local and tribal 
governments, in the aggregate, or the private sector in any 1 year. The 
proposed rule would not create any new requirements under the Tribal 
minor NSR program, but rather would simplify minor source registrations 
and reduce the number of permit applications for some sources, 
potentially reducing burden. Thus, this rule is not subject to the 
requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. As noted 
previously, the effect of the proposed rule would be neutral or relieve 
regulatory burden.

E. Executive Order 13132: Federalism

    This proposed rule 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 proposed rule would revise 
the Tribal minor NSR program, which applies only in Indian country, and 
would 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.
    In the spirit of Executive Order 13132 and consistent with EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
rule from state and local officials.

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

    The EPA has concluded that this proposed rule will have tribal 
implications. However, it will neither impose substantial direct 
compliance costs on tribal governments, nor preempt tribal law. The 
proposed rule will have tribal implications since it would revise the 
Tribal minor NSR program, which applies to both tribally-owned and 
privately-owned sources in Indian country. As with the existing rule, 
the revised rule would 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 
the proposed rule would be to simplify compliance with, and 
administration of, the Tribal minor NSR program, so any impact on 
tribes would be in the form of reduced burden and cost.
    The EPA conducted substantial outreach and consultation with tribal 
officials and other tribal representatives during the development of 
the Tribal minor NSR program, and incorporated tribal views throughout 
the course of developing the program. These outreach efforts were 
summarized in section III.D of the preamble to the final rule (76 FR 
38753). Regarding this proposal, we have presented highlights of the 
proposed changes to tribal environmental staff during a conference call 
with the National Tribal Air Association on February 28, 2013, and 
asked for comments. Regarding the list of exempted units/activities, we 
received a comment letter from one tribe during the comment period 
following proposal of the initial Tribal minor NSR rule and we 
considered those comments again in developing this proposed rule. We 
plan to offer consultation to the tribal governments during the 
proposed rule comment period.
    The EPA specifically solicits additional comment on this proposed 
action from tribal officials.

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 proposed rulemaking does not involve technical standards. 
Therefore, the EPA did not consider the use of any voluntary consensus 
standards.

[[Page 33275]]

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 proposed 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. The proposed rule would simplify minor source 
registrations and permit applications for some sources under the Tribal 
minor NSR program, but would not relax control requirements or result 
in greater emissions under the program. In fact, to the extent that the 
proposed rule might result in improved compliance with the program, it 
could result in emissions reductions in Indian country, which are often 
home to both minority and low-income populations.

K. Determination Under Section 307(d)

    Pursuant to section 307(d)(1)(V) of the CAA, the Administrator 
determines that this action is subject to the provisions of section 
307(d). Section 307(d)(1)(V) provides that the provisions of section 
307(d) apply to ``such other actions as the Administrator may 
determine.''

VI. 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

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

    Dated: May 23, 2013.
Bob Perciasepe,
Acting Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be 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:
0
a. Revising paragraph (c)(1)(i)(A);
0
b. Revising paragraphs (c)(1)(ii)(A) and (B);
0
c. Revising paragraph (c)(1)(iii)(B); and
0
d. Revising paragraph (d)(1).
    The revisions 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 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. Amend Sec.   49.152 in paragraph (d) by adding in alphabetical order 
the definitions for the terms ``Begin construction,'' ``Commence 
construction,'' and ``Forestry or silvicultural activities'' 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, 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, surveying, ordering of

[[Page 33276]]

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.
* * * * *
    Forestry or silvicultural activities means those activities 
associated with regeneration, growing, and harvesting of trees and 
timber including, but not limited to, preparing sites for new stands of 
trees to be either planted or allowed to regenerate through natural 
means, road construction and road maintenance, fertilization, logging 
operations, and forest management techniques employed to enhance the 
growth of stands of trees or timber.
* * * * *
0
4. Section 49.153 is amended by:
0
a. Revising paragraphs (a)(3)(ii) and (iii);
0
b. Revising paragraphs (c) introductory text and (c)(3); and
0
c. Adding paragraphs (c)(8) through (13).
    The revisions and additions 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 (13) 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, 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 exclusively 
use gaseous fuel, with a total maximum heat input (i.e., from all units 
combined) of:
    (i) In nonattainment areas, 5 million British thermal units per 
hour (MMBtu/hr) or less;
    (ii) 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.
    (13) Forestry and silvicultural activities.
* * * * *
0
5. Section 49.158 is amended by revising paragraph (c)(1) to read as 
follows:


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. 2013-13057 Filed 6-3-13; 8:45 am]
BILLING CODE 6560-50-P