---
kind: "range"
citation: "40 C.F.R. §§ 49.151–49.161"
title: "40"
from: "49.151"
to: "49.161"
count: 11
url: "https://uscodex.org/cfr/40/49.151..49.161"
---

# §49.151. Program overview.

- (a) **What constitutes the Federal minor new source review (NSR) program in Indian country?** As set forth in this Federal Implementation Plan (FIP), the Federal minor NSR program in Indian country (or “program”) consists of [§§ 49.151 through 49.165](/cfr/40/49.151..49.165.md).
- (b) **What is the purpose of this program?** This program has the following purposes:
  - (1) It satisfies the requirements of section 110(a)(2)(C) of the Act by establishing a pre-construction permitting program for all new and modified minor sources (minor sources) and minor modifications at major sources located in Indian country and by establishing a Federal Implementation Plan ([§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md)) for true minor sources in the oil and natural gas production and natural gas processing segments that are located in Indian country.
  - (2) It establishes a registration system that will allow the reviewing authority to develop and maintain a record of minor source emissions in Indian country.
  - (3) It provides a mechanism for an otherwise major source to voluntarily accept restrictions on its potential to emit to become a synthetic minor source. This mechanism may also be used by an otherwise major source of HAPs to voluntarily accept restrictions on its potential to emit to become a synthetic minor HAP source. Such restrictions must be enforceable as a practical matter.
  - (4) It provides an additional mechanism for case-by-case maximum achievable control technology (MACT) determinations for those major sources of HAPs subject to such determinations under [section 112(g)(2)](/cfr/40/112.md?p=g-2) of the Act.
  - (5) It sets forth the criteria and procedures that the reviewing authority (as defined in [§ 49.152(d)](/cfr/40/49.152.md?p=d)) will use to administer the program.
- (c) **When and where does this program apply?**
  - (1) The provisions of this program apply in all Indian reservation lands where no EPA-approved program is in place and all other areas of Indian country where no EPA-approved program is in place and over which an Indian tribe, or the EPA, has demonstrated that a tribe has jurisdiction, according to the implementation schedule in [paragraphs (c)(1)(i) through (iii)](#c-1-i..c-1-iii) of this section:
    - (i) **Existing major sources.**
      - (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](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md) (or a general permit pursuant to [§ 49.156](/cfr/40/49.156.md), if applicable) prior to beginning construction.
      - (B) If you wish to obtain a synthetic minor source permit pursuant [§ 49.158](/cfr/40/49.158.md) to establish a synthetic minor source and/or a synthetic minor HAP source at your existing major source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.
    - (ii) **Synthetic minor sources.**
      - (A) If you wish to 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](/cfr/40/49.158.md) 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](/cfr/40/49.158.md) prior to beginning construction.
      - (C) If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to [part 71](/cfr/40/part71.md) of this chapter, the reviewing authority has the discretion to require you to submit a permit application for a synthetic minor source permit under this program by September 4, 2012 and pursuant to [§ 49.158](/cfr/40/49.158.md), to require you to submit a permit application for a synthetic minor source permit under this program (pursuant to [§ 49.158](/cfr/40/49.158.md)) at the same time that you apply to renew your [part 71](/cfr/40/part71.md) permit or to allow you to continue to maintain synthetic minor status through your [part 71](/cfr/40/part71.md) permit. If the reviewing authority requires you to obtain a synthetic minor source permit and/or synthetic minor HAP source permit under this program (pursuant to [§ 49.158](/cfr/40/49.158.md)) it also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
      - (D) If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in paragraphs [(c)(1)(ii)(B)](#c-1-ii-B) and [(C)](#c-1-ii-C) of this section, you must submit an application pursuant to [§ 49.158](/cfr/40/49.158.md) for a synthetic minor source permit under this program by September 4, 2012. The reviewing authority has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
    - (iii) **True minor sources.**
      - (A) If you own or operate an existing true minor source in Indian country (as defined in [§ 49.152(d)](/cfr/40/49.152.md?p=d)), you must register your source with the Reviewing Authority in your area by March 1, 2013. If your true minor source is not engaged in an oil and natural gas activity and you commence construction after August 30, 2011, and before September 2, 2014, you must also register your source with the Reviewing Authority in your area within 90 days after the source begins operation. If your true minor source is engaged in an oil and natural gas activity and you commence construction after August 30, 2011, and before October 3, 2016, you must register your source with the Reviewing Authority in your area within 90 days after the source begins operation. You are exempt from these registration requirements if your true minor source is subject to [§ 49.138](/cfr/40/49.138.md).
      - (B) If your true minor source is not engaged in an oil and natural gas activity and you wish to begin construction of a new true minor source or a minor modification at an existing true minor source on or after September 2, 2014, you must first obtain a permit pursuant to §§ [49.154](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md) (or a general permit/permit by rule pursuant to [§ 49.156](/cfr/40/49.156.md), if applicable). If your true minor source is an oil and natural gas source, as defined in [§ 49.102](/cfr/40/49.102.md), and you wish to begin construction of a new true minor source or a minor modification at an existing true minor source on or after October 3, 2016, you must either comply with the Federal Implementation Plan for sources in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector that are located in Indian country ([§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md)) from the day you begin construction or opt out of those requirements pursuant to [§ 49.101(b)(2)](/cfr/40/49.101.md?p=b-2) and instead obtain a minor source permit pursuant to §§ [49.154](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md) before beginning construction. Alternatively, you may be required by the EPA, pursuant to [§ 49.101(b)(3)](/cfr/40/49.101.md?p=b-3), to obtain a minor source permit pursuant to §§ [49.154](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md) before beginning construction. All proposed new sources or modifications of existing sources are also subject to the registration requirements of [§ 49.160](/cfr/40/49.160.md), except for sources that are subject to [§ 49.138](/cfr/40/49.138.md).
  - (2) The provisions of this program or portions of this program cease to apply in an area covered by an EPA-approved Tribal implementation plan on the date that our approval of that implementation plan becomes effective, provided that the implementation plan includes provisions that comply with the requirements of section 110(a)(2)(C) of the Act for the construction and modification of minor sources and minor modifications at major sources. Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.
- (d) **What general provisions apply under this program?** The following general provisions apply to you as an owner/operator of a minor source:
  - (1) If you begin construction of a new source or modification that is subject to this program after the applicable date specified in [paragraph (c)](#c) of this section without applying for and receiving a permit pursuant to this program or complying with the Federal Implementation Plan at [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md) for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector, you will be subject to appropriate enforcement action.
  - (2) If you do not construct or operate your source or modification in accordance with the terms of your minor NSR permit or the Federal Implementation Plan for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector at [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md), you will be subject to appropriate enforcement action.
  - (3) If you are subject to the registration requirements of this program, you must comply with those requirements.
  - (4) Issuance of a permit or compliance with the Federal Implementation Plan for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector at [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md) does not relieve you of the responsibility to comply fully with applicable provisions of any EPA-approved implementation plan or Federal Implementation Plan or any other requirements under applicable law.
  - (5) Nothing in this program prevents a Tribe from administering a minor NSR permit program with different requirements in an approved Tribal Implementation Plan (TIP) as long as the TIP does not interfere with any applicable requirement of the Act.
- (e) **What is the process for issuing permits under this program?** For the reviewing authority to issue a final permit decision under this program (other than a general permit under [§ 49.156](/cfr/40/49.156.md) or a synthetic minor source permit under [§ 49.158](/cfr/40/49.158.md)), all the actions listed in [paragraphs (e)(1) through (8)](#e-1..e-8) of this section need to be completed. The processes for issuing general permits and synthetic minor source permits are set out in [§ 49.156](/cfr/40/49.156.md) and [§ 49.158](/cfr/40/49.158.md), respectively.
  - (1) You must submit a permit application that meets the requirements of [§ 49.154(a)](/cfr/40/49.154.md?p=a).
  - (2) The reviewing authority determines completeness of the permit application as provided in [§ 49.154(b)](/cfr/40/49.154.md?p=b) within 45 days of receiving the application (60 days for minor modifications at major sources).
  - (3) The reviewing authority determines the appropriate emission limitations and permit conditions for your affected emissions units under [§ 49.154(c)](/cfr/40/49.154.md?p=c).
  - (4) The reviewing authority may require you to submit an Air Quality Impact Analysis (AQIA) if it has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD increment violation.
  - (5) If an AQIA is submitted, the reviewing authority determines that the new or modified source will not cause or contribute to a NAAQS or PSD increment violation.
  - (6) The reviewing authority develops a draft permit that meets the permit content requirements of [§ 49.155(a)](/cfr/40/49.155.md?p=a).
  - (7) The reviewing authority provides for public participation, including a 30-day period for public comment, according to the requirements of [§ 49.157](/cfr/40/49.157.md).
  - (8) The reviewing authority either issues a final permit that meets the requirements of [§ 49.155(a)](/cfr/40/49.155.md?p=a) or denies the permit and provides reasons for the denial, within 135 days (or within 1 year for minor modifications at major sources) after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.

# §49.152. Definitions.

- (a) For sources of regulated NSR pollutants in nonattainment areas, the definitions in [§ 49.167](/cfr/40/49.167.md) apply to the extent that they are used in this program (except for terms defined in [paragraph (d)](#d) of this section).
- (b) For sources of regulated NSR pollutants in attainment or unclassifiable areas, the definitions in [§ 52.21](/cfr/40/52.21.md) of this chapter apply to the extent that they are used in this program (except for terms defined in [paragraph (d)](#d) of this section).
- (c) For sources of HAP, the definitions in [§ 63.2](/cfr/40/63.2.md) of this chapter apply to the extent that they are used in this program (except for terms defined in [paragraph (d)](#d) of this section).
- (d) **The following definitions also apply to this program—** Affected emissions units means the following emissions units, as applicable:
  - (1) **For a proposed new minor source, all the emissions units.**
  - (2) For a proposed modification, the new, modified and replacement emissions units involved in the modification.

    Allowable emissions means “allowable emissions” as defined in [§ 52.21(b)(16)](/cfr/40/52.21.md?p=b-16) of this chapter, except that the allowable emissions for any emissions unit are calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

    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.

      Emission limitation means a requirement established by the reviewing authority that limits the quantity, rate or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emissions reduction and any design standard, equipment standard, work practice, operational standard or pollution prevention technique.

      Enforceable as a practical matter means that an emission limitation or other standard is both legally and practicably enforceable as follows:

  - (1) An emission limitation or other standard is legally enforceable if the reviewing authority has the right to enforce it.
  - (2) Practical enforceability for an emission limitation or for other standards (design standards, equipment standards, work practices, operational standards, pollution prevention techniques) in a permit for a source is achieved if the permit's provisions specify:
    - (i) A limitation or standard and the emissions units or activities at the source subject to the limitation or standard;
    - (ii) The time period for the limitation or standard (e.g., hourly, daily, monthly and/or annual limits such as rolling annual limits); and
    - (iii) The method to determine compliance, including appropriate monitoring, recordkeeping, reporting and testing.
  - (3) For rules and general permits that apply to categories of sources, practical enforceability additionally requires that the provisions:
    - (i) Identify the types or categories of sources that are covered by the rule or general permit;
    - (ii) Where coverage is optional, provide for notice to the reviewing authority of the source's election to be covered by the rule or general permit; and
    - (iii) **Specify the enforcement consequences relevant to the rule or general permit.** Environmental Appeals Board means the Board within the EPA described in [§ 1.25(e)](/cfr/40/1.25.md?p=e) of this chapter.

      Indian country, as defined in [18 U.S.C. 1151](/usc/18/1151.md), means the following as applied to this program:

  - (1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent and including rights-of-way running through the reservation; 1
  - (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state; and
  - (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
  - (4) The geographic scope of applicability of this rule is as specified in [§ 49.151(c)(1)](/cfr/40/49.151.md?p=c-1).

    Indian governing body means the governing body of any Tribe, band or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

    Minor modification at a major source means a modification at a major source that does not qualify as a major modification under [§ 49.167](/cfr/40/49.167.md) or [§ 52.21](/cfr/40/52.21.md) of this chapter, as applicable.

    Minor NSR threshold means any of the applicability cutoffs for this program listed in Table 1 of [§ 49.153](/cfr/40/49.153.md).

    Minor source means, for purposes of this rule, a source, not including the exempt emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c), that has the potential to emit regulated NSR pollutants in amounts that are less than the major source thresholds in [§ 49.167](/cfr/40/49.167.md) or [§ 52.21](/cfr/40/52.21.md) of this chapter, as applicable, but equal to or greater than the minor NSR thresholds in [§ 49.153](/cfr/40/49.153.md). The potential to emit includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in [part 51](/cfr/40/part51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter, as applicable.

    Modification means any physical or operational change at a source that would cause an increase in the allowable emissions of a minor source or an increase in the actual emissions (based on the applicable test under the major NSR program) of a major source for any regulated NSR pollutant or that would cause the emission of any regulated NSR pollutant not previously emitted. Allowable emissions of a minor source include fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in [part 51](/cfr/40/part51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter, as applicable. The following exemptions apply:

  - (1) **A physical or operational change does not include routine maintenance, repair or replacement.**
  - (2) An increase in the hours of operation or in the production rate is not considered an operational change unless such change is prohibited under any permit condition that is enforceable as a practical matter.
  - (3) **A change in ownership at a stationary source.**
  - (4) The emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c).

    Potential to emit means the maximum capacity of a source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is enforceable as a practical matter. Secondary emissions, as defined at [§ 52.21(b)(18)](/cfr/40/52.21.md?p=b-18) of this chapter, do not count in determining the potential to emit of a source.

    Reviewing authority means the Administrator or may mean an Indian Tribe in cases where a Tribal agency is assisting EPA with administration of the program through a delegation.

    Startup of production is as defined at [§ 60.5430a](/cfr/40/60.5430a.md).

    Synthetic minor HAP source means a source that otherwise has the potential to emit HAPs in amounts that are at or above those for major sources of HAP in [§ 63.2](/cfr/40/63.2.md) of this chapter, but that has taken a restriction so that its potential to emit is less than such amounts for major sources. Such restrictions must be enforceable as a practical matter.

    Synthetic minor source means a source that otherwise has the potential to emit regulated NSR pollutants in amounts that are at or above those for major sources in [§ 49.167](/cfr/40/49.167.md), [§ 52.21](/cfr/40/52.21.md) or [§ 71.2](/cfr/40/71.2.md) of this chapter, as applicable, but that has taken a restriction so that its potential to emit is less than such amounts for major sources. Such restrictions must be enforceable as a practical matter.

    True minor source means a source, not including the exempt emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c), that emits or has the potential to emit regulated NSR pollutants in amounts that are less than the major source thresholds in [§ 49.167](/cfr/40/49.167.md) or [§ 52.21](/cfr/40/52.21.md) of this chapter, as applicable, but equal to or greater than the minor NSR thresholds in [§ 49.153](/cfr/40/49.153.md), without the need to take an enforceable restriction to reduce its potential to emit to such levels. That is, a true minor source is a minor source that is not a synthetic minor source. The potential to emit includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in [part 51](/cfr/40/part51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter, as applicable.


# §49.153. Applicability.

- (a) **Does this program apply to me?** The requirements of this program apply to you as set out in [paragraphs (a)(1) through (4)](#a-1..a-4) of this section.
  - (1) **New and modified sources.** The applicability of the preconstruction review requirements of this program is determined individually for each regulated NSR pollutant that would be emitted by your new or modified source. For each such pollutant, determine applicability as set out in the relevant paragraph [(a)(1)(i)](#a-1-i) or [(ii)](#a-1-ii) of this section.
    - (i) **New source.** Use the following steps to determine applicability for each regulated NSR pollutant.
      - (A) **Step 1.** Determine whether your proposed source's potential to emit the pollutant that you are evaluating is subject to review under the applicable major NSR program (that is, under [§ 52.21](/cfr/40/52.21.md) of this chapter, under the Federal major NSR program for nonattainment areas in Indian country at [§§ 49.166 through 49.175](/cfr/40/49.166..49.175.md) or under a program approved by the Administrator pursuant to [§ 51.165](/cfr/40/51.165.md) or [§ 51.166](/cfr/40/51.166.md) of this chapter). If not, go to Step 2 ([paragraph (a)(1)(i)(B)](#a-1-i-B) of this section).
      - (B) **Step 2.** Determine whether your proposed source's potential to emit for the pollutant that you are evaluating, (including fugitive emissions, to the extent they are quantifiable, only if the source belongs to one of the source categories listed pursuant to section 302(j) of the Act), is equal to or greater than the corresponding minor NSR threshold in Table 1 of this section. If it is, then you are subject to the pre-construction requirements of this program for that pollutant, except that sources in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector shall instead comply with the requirements of the Federal Implementation Plan at [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md), unless you opt-out of the Federal Implementation Plan pursuant to [§ 49.101(b)(2)](/cfr/40/49.101.md?p=b-2) in which case you are subject to the pre-construction requirements of this program for that pollutant or are required by the EPA to obtain a minor source permit pursuant to [§ 49.101(b)(3)](/cfr/40/49.101.md?p=b-3). If it is not, then proceed to Step 3 ([paragraph (a)(1)(ii)(C)](#a-1-ii-C) of this section).
    - (ii) **Modification at an existing source.** Use the following steps to determine applicability for each regulated NSR pollutant.
      - (A) **Step 1.** For the pollutant being evaluated, determine whether your proposed modification is subject to review under the applicable major NSR program. If the modification at your existing major source does not qualify as a major modification under that program based on the actual-to-projected-actual test, it is considered a minor modification and is subject to the minor NSR program requirements, if the net emissions increase from the actual-to-projected-actual test is equal to or exceeds the minor NSR threshold listed in Table 1 of this section. For a modification at your existing minor source go to Step 2 ([paragraph (a)(1)(ii)(B)](#a-1-ii-B) of this section).
      - (B) **Step 2.** Determine whether the increase in allowable emissions from the proposed modification (calculated using the procedures of [paragraph (b)](#b) of this section) would be equal to or greater than the minor NSR threshold in Table 1 of this section for the pollutant that you are evaluating. If it is, then you are subject to the pre-construction requirements of this program for that pollutant, except oil and natural gas production and natural gas processing sources shall instead comply with the requirements of the Federal Implementation Plan at [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md), unless you opt-out of the Federal Implementation Plan pursuant to [§ 49.101(b)(2)](/cfr/40/49.101.md?p=b-2) in which case you are subject to the pre-construction requirements of this program for that pollutant or are required by the EPA to obtain a minor source permit pursuant to [§ 49.101(b)(3)](/cfr/40/49.101.md?p=b-3). If it is not, then proceed to Step 3 ([paragraph (a)(1)(ii)(C)](#a-1-ii-C) of this section).
      - (C) **Step 3.** If any of the emissions units affected by your proposed modification result in an increase in an annual allowable emissions limit for the pollutant that you are evaluating, the proposed modification is subject to [paragraph (a)(2)](#a-2) of this section. If not, your proposed modification is not subject to this program.
  - (2) **Increase in an emissions unit's annual allowable emissions limit.** If you propose a physical or operational change at your minor or major source that would increase an emissions unit's allowable emissions of a regulated NSR pollutant above its existing annual allowable emissions limit, you must obtain a permit revision to reflect the increase in the limit prior to making the change. For a physical or operational change that is not otherwise subject to review under major NSR or under this program, such increase in the annual allowable emissions limit may be accomplished through an administrative permit revision as provided in [§ 49.159(f)](/cfr/40/49.159.md?p=f).
  - (3) **Synthetic minor source permits.**
    - (i) If you own or operate an existing major source and you wish to obtain a synthetic minor source permit pursuant to [§ 49.158](/cfr/40/49.158.md) to establish a synthetic minor source and/or a synthetic minor HAP source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.
    - (ii) If you wish to 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](/cfr/40/49.158.md) 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 [§ 49.158](/cfr/40/49.158.md) prior to beginning construction.
    - (iv) If you own or operate a synthetic minor source or synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to August 30, 2011) through a permit with enforceable emissions limitations issued pursuant to the operating permit program in [part 71](/cfr/40/part71.md) of this chapter, the reviewing authority has the discretion to require you to apply for a synthetic minor source permit under [§ 49.158](/cfr/40/49.158.md) of this program by September 4, 2012 or at the time of [part 71](/cfr/40/part71.md) permit renewal or allow you to maintain synthetic minor status through your [part 71](/cfr/40/part71.md) permit.
    - (v) For all other synthetic minor sources or synthetic minor HAP sources that obtained synthetic minor status or synthetic minor source permits through a mechanism other than those described in paragraphs [(a)(3)(iii)](#a-3-iii) and [(iv)](#a-3-iv) of this section, you must submit an application for a synthetic minor source permit under this program by September 4, 2012 under [§ 49.158](/cfr/40/49.158.md).
  - (4) **Case-by-case maximum achievable control technology (MACT) determinations.** If you propose to construct or reconstruct a major source of HAPs such that you are subject to a case-by-case MACT determination under section 112(g)(2) of the Act, you may elect to have this determination approved under the provisions of this program (other options for such determinations include a title V permit action or a Notice of MACT Approval under [§ 63.43](/cfr/40/63.43.md) of this chapter). If you elect this option, you still must comply with the requirements of [§ 63.43](/cfr/40/63.43.md) of this chapter that apply to all case-by-case MACT determinations.
- (b) **How do I determine the increase in allowable emissions from a physical or operational change at my source?** Determine the resulting increase in allowable emissions in tons per year (tpy) of each regulated NSR pollutant after considering all increases from the change. A physical or operational change may involve one or more emissions units. The total increase in allowable emissions resulting from your proposed change, including fugitive emissions, to the extent they are quantifiable, only if your source belongs to one of the source categories listed pursuant to section 302(j) of the Act, would be the sum of the following:
  - (1) For each new emissions unit that is to be added, the emissions increase would be the potential to emit of the emissions unit.
  - (2) For each emissions unit with an allowable emissions limit that is to be changed or replaced, the emissions increase would be the allowable emissions of the emissions unit after the change or replacement minus the allowable emissions prior to the change or replacement. However, this may not be a negative value. If the allowable emissions of an emissions unit would be reduced as a result of the change or replacement, use zero in the calculation.
  - (3) For each unpermitted emissions unit (a unit without any enforceable permit conditions) that is to be changed or replaced, the emissions increase is the allowable emissions of the emissions unit after the change or replacement minus the potential to emit prior to the change or replacement. However, this may not be a negative value. If an emissions unit's post-change allowable emissions would be less than its pre-change potential to emit, use zero in the calculation.
- (c) **What emissions units and activities are exempt from this program?** 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)](#c-1..c-12) of this section:
  - (1) **Mobile sources.**
  - (2) Ventilating units for comfort that do not exhaust air pollutants into the ambient air from any manufacturing or other industrial processes
  - (3) **Cooking of food, except for wholesale businesses that both cook and sell cooked food.**
  - (4) **Consumer use of office equipment and products.**
  - (5) **Janitorial services and consumer use of janitorial products.**
  - (6) **Internal combustion engines used for landscaping purposes.**
  - (7) **Bench scale laboratory activities, except for laboratory fume hoods or vents.**
  - (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.

# §49.154. Permit application requirements.


This section applies to you if you are subject to this program under [§ 49.153(a)](/cfr/40/49.153.md?p=a) for the construction of a new minor source, synthetic minor source or a modification at an existing source.

- (a) **What information must my permit application contain?** [Paragraphs (a)(1) through (3)](#a-1..a-3) of this section govern the content of your application.
  - (1) **General provisions for permit applications.** The following provisions apply to permit applications under this program:
    - (i) The reviewing authority may develop permit application forms for your use.
    - (ii) The permit application need not contain information on the exempt emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c).
    - (iii) The permit application for a modification need only include information on the affected emissions units as defined in [§ 49.152(d)](/cfr/40/49.152.md?p=d).
  - (2) **Required permit application content.** Except as specified in paragraphs [(a)(1)(ii)](#a-1-ii) and [(iii)](#a-1-iii) of this section, you must include the information listed in [paragraphs (a)(2)(i) through (ix)](#a-2-i..a-2-ix) of this section in your application for a permit under this program. The reviewing authority may require additional information as needed to process the permit application.
    - (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
    - (ii) **A description of your source's processes and products.**
    - (iii) A list of all affected emissions units (with the exception of the exempt emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c)).
    - (iv) For each new emissions unit that is listed, the potential to emit of each regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source is in one of the source categories listed in [part 51](/cfr/40/part51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter, as applicable), with supporting documentation. In your calculation of the potential to emit for an emissions unit, you must account for any proposed emission limitations.
    - (v) For each modified emissions unit and replacement unit that is listed, the allowable emissions of each regulated NSR pollutant in tpy both before and after the modification (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source belongs to one of the source categories listed in [part 51](/cfr/40/part51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter, as applicable), with supporting documentation. For emissions units that do not have an allowable emissions limit prior to the modification, report the potential to emit. In your calculation of annual allowable emissions for an emissions unit after the modification, you must account for any proposed emission limitations.
    - (vi) **The following information to the extent it is needed to determine or regulate emissions—** Fuels, fuel use, raw materials, production rates and operating schedules.
    - (vii) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities.
    - (viii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.
    - (ix) For each emission point associated with an affected emissions unit, provide stack or vent dimensions and flow information.
  - (3) **Optional permit application content.** At your option, you may propose emission limitations for each affected emissions unit, which may include pollution prevention techniques, air pollution control devices, design standards, equipment standards, work practices, operational standards or a combination thereof. You may include an explanation of why you believe the proposed emission limitations to be appropriate.
- (b) **How is my permit application determined to be complete?** [Paragraphs (b)(1) through (3)](#b-1..b-3) of this section govern the completeness review of your permit application.
  - (1) An application for a permit under this program will be reviewed by the reviewing authority within 45 days of its receipt (60 days for minor modifications at major sources) to determine whether the application contains all the information necessary for processing the application.
  - (2) If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 45 days of receipt of the permit application by the reviewing authority (60 days for minor modifications at major sources). If you do not receive a request for additional information or a notice of complete application postmarked within 45 days of receipt of the permit application by the reviewing authority (60 days for minor modifications at major sources), your application will be deemed complete.
  - (3) If, while processing an application that has been determined to be complete, the reviewing authority determines that additional information is necessary to evaluate or take final action on the application, it may request additional information from you and require your responses within a reasonable time period.
  - (4) Any permit application will be granted or denied no later than 135 days (1 year for minor modifications at major sources) after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
- (c) **How will the reviewing authority determine the emission limitations that will be required in my permit?** After determining that your application is complete, the reviewing authority will conduct a case-by-case control technology review to determine the appropriate level of control, if any, necessary to assure that NAAQS are achieved, as well as the corresponding emission limitations for the affected emissions units at your source.
  - (1) In carrying out this case-by-case control technology review, the reviewing authority will consider the following factors:
    - (i) **Local air quality conditions.**
    - (ii) Typical control technology or other emissions reduction measures used by similar sources in surrounding areas.
    - (iii) **Anticipated economic growth in the area.**
    - (iv) **Cost-effective emission reduction alternatives.**
  - (2) The reviewing authority must require a numerical limit on the quantity, rate or concentration of emissions for each regulated NSR pollutant emitted by each affected emissions unit at your source for which such a limit is technically and economically feasible.
  - (3) The emission limitations required by the reviewing authority may consist of numerical limits on the quantity, rate or concentration of emissions; pollution prevention techniques; design standards; equipment standards; work practices; operational standards; requirements relating to the operation or maintenance of the source or any combination thereof.
  - (4) The emission limitations required by the reviewing authority must assure that each affected emissions unit will comply with all requirements of parts [60](/cfr/40/part60.md), [61](/cfr/40/part61.md) and 63 of this chapter as well as any FIPs or TIPs that apply to the unit.
  - (5) The emission limitations required by the reviewing authority must not be affected in a manner by so much of a stack's height as exceeds good engineering practice or by any other dispersion technique, except as provided in [§ 51.118(b)](/cfr/40/51.118.md?p=b) of this chapter. If the reviewing authority proposes to issue a permit to a source based on a good engineering practice stack height that exceeds the height allowed by § [51.100(ii)(1)](/cfr/40/51.100.md?p=ii-1) or [(2)](/cfr/40/51.100.md?p=ii-2) of this chapter, it must notify the public of the availability of the demonstration study and must provide opportunity for a public hearing according to the requirements of [§ 49.157](/cfr/40/49.157.md) for the draft permit.
- (d) **When may the reviewing authority require an air quality impacts analysis (AQIA)?** [Paragraphs (d)(1) through (3)](#d-1..d-3) of this section govern AQIA requirements under this program.
  - (1) If the reviewing authority has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD increment violation, it may require you to conduct and submit an AQIA.
  - (2) If required, you must conduct the AQIA using the dispersion models and procedures of [part 51](/cfr/40/part51.md), Appendix W of this chapter.
  - (3) If the AQIA reveals that construction of your source or modification would cause or contribute to a NAAQS or PSD increment violation, the reviewing authority must require you to reduce or mitigate such impacts before it can issue you a permit.

# §49.155. Permit requirements.


This section applies to your permit if you are subject to this program under [§ 49.153(a)](/cfr/40/49.153.md?p=a) for construction of a new minor source, synthetic minor source or a modification at an existing source.

- (a) **What information must my permit include?** Your permit must include the requirements in [paragraphs (a)(1) through (7)](#a-1..a-7) of this section.
  - (1) **General requirements.** The permit must include the following elements:
    - (i) The effective date of the permit and the date by which you must commence construction in order for your permit to remain valid (i.e., 18 months after the permit effective date).
    - (ii) **The emissions units subject to the permit and their associated emission limitations.**
    - (iii) Monitoring, recordkeeping, reporting and testing requirements to assure compliance with the emission limitations.
  - (2) **Emission limitations.** The permit must include the emission limitations determined by the reviewing authority under [§ 49.154(c)](/cfr/40/49.154.md?p=c) for each affected emissions unit. In addition, the permit must include an annual allowable emissions limit for each affected emissions unit and for each regulated NSR pollutant emitted by the unit if the unit is issued an enforceable emission limitation lower than the potential to emit of that unit.
  - (3) **Monitoring requirements.** The permit must include monitoring requirements sufficient to assure compliance with the emission limitations and annual allowable emissions limits that apply to the affected emissions units at your source. The reviewing authority may require, as appropriate, any of the requirements in paragraphs [(a)(3)(i)](#a-3-i) and [(ii)](#a-3-ii) of this section.
    - (i) Any emissions monitoring, including analysis procedures, test methods, periodic testing, instrumental monitoring and non-instrumental monitoring. Such monitoring requirements shall assure use of test methods, units, averaging periods and other statistical conventions consistent with the required emission limitations.
    - (ii) As necessary, requirements concerning the use, maintenance and installation of monitoring equipment or methods.
  - (4) **Recordkeeping requirements.** The permit must include recordkeeping requirements sufficient to assure compliance with the emission limitations and monitoring requirements and it must require the elements in paragraphs [(a)(4)(i)](#a-4-i) and [(ii)](#a-4-ii) of this section.
    - (i) Records of required monitoring information that include the information in [paragraphs (a)(4)(i)(A) through (F)](#a-4-i-A..a-4-i-F) of this section, as appropriate.
      - (A) **The location, date and time of sampling or measurements.**
      - (B) **The date(s) analyses were performed.**
      - (C) **The company or entity that performed the analyses.**
      - (D) **The analytical techniques or methods used.**
      - (E) **The results of such analyses.**
      - (F) **The operating conditions existing at the time of sampling or measurement.**
    - (ii) Retention for 5 years of records of all required monitoring data and support information for the monitoring sample, measurement, report or application. Support information may include all calibration and maintenance records, all original strip-chart recordings or digital records for continuous monitoring instrumentation and copies of all reports required by the permit.
  - (5) **Reporting requirements.** The permit must include the reporting requirements in paragraphs [(a)(5)(i)](#a-5-i) and [(ii)](#a-5-ii) of this section.
    - (i) Annual submittal of reports of monitoring required under [paragraph (a)(3)](#a-3) of this section, including the type and frequency of monitoring and a summary of results obtained by monitoring.
    - (ii) Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations and any corrective actions or preventive measures taken. Within the permit, the reviewing authority must define “prompt” in relation to the degree and type of deviation likely to occur and the applicable emission limitations.
  - (6) **Severability clause.** The permit must include a severability clause to ensure the continued validity of the other portions of the permit in the event of a challenge to a portion of the permit.
  - (7) **Additional provisions.** The permit must also contain provisions stating the requirements in [paragraphs (a)(7)(i) through (vii)](#a-7-i..a-7-vii) of this section.
    - (i) You, as the permittee, must comply with all conditions of your permit, including emission limitations that apply to the affected emissions units at your source. Noncompliance with any permit term or condition is a violation of the permit and may constitute a violation of the Act and is grounds for enforcement action and for a permit termination or revocation.
    - (ii) Your permitted source must not cause or contribute to a NAAQS violation or in an attainment area, must not cause or contribute to a PSD increment violation.
    - (iii) It is not a defense for you, as the permittee, in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
    - (iv) The permit may be revised, reopened, revoked and reissued or terminated for cause. The filing of a request by you, as the permittee, for a permit revision, revocation and re-issuance or termination or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.
    - (v) **The permit does not convey any property rights of any sort or any exclusive privilege.**
    - (vi) You, as the permittee, shall furnish to the reviewing authority, within a reasonable time, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing or terminating the permit or to determine compliance with the permit. For any such information claimed to be confidential, you must also submit a claim of confidentiality in accordance with [part 2](/cfr/40/part2.md), [subpart B](/cfr/40/subpartB.md) of this chapter.
    - (vii) Upon presentation of proper credentials, you, as the permittee, must allow a representative of the reviewing authority to:
      - (A) Enter upon your premises where a source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit;
      - (B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit;
      - (C) Inspect, during normal business hours or while the source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit;
      - (D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit or other applicable requirements and
      - (E) **Record any inspection by use of written, electronic, magnetic and photographic media.**
- (b) **Can my permit become invalid?** Your permit becomes invalid if you do not commence construction within 18 months after the effective date of your permit, if you discontinue construction for a period of 18 months or more or if you do not complete construction within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.

# §49.156. General permits and permits by rule.


This section applies to general permits/permits by rule for the purposes of complying with the preconstruction permitting requirements for sources of regulated NSR pollutants under this program.

- (a) **What is a general permit?** A general permit is a preconstruction permit issued by a reviewing authority that may be applied to a number of similar emissions units or sources. The purpose of a general permit is to simplify the permit issuance process for similar facilities so that a reviewing authority's limited resources need not be expended for case-by-case permit development for such facilities. A general permit may be written to address a single emissions unit, a group of the same type of emissions units or an entire minor source.
- (b) **How will the reviewing authority issue general permits?** The reviewing authority will issue general permits as follows:
  - (1) A general permit may be issued for a category of emissions units or sources that are similar in nature, have substantially similar emissions and would be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting and recordkeeping. “Similar in nature” refers to size, processes and operating conditions.
  - (2) A general permit must be issued according to the applicable requirements in [§ 49.154(c)](/cfr/40/49.154.md?p=c), [§ 49.154(d)](/cfr/40/49.154.md?p=d) and [§ 49.155](/cfr/40/49.155.md), the public participation requirements in [§ 49.157](/cfr/40/49.157.md) and the requirements for final permit issuance and administrative and judicial review in [§ 49.159](/cfr/40/49.159.md).
  - (3) Issuance of a general permit is considered final agency action with respect to all aspects of the general permit except its applicability to an individual source. The sole issue that may be appealed after an individual source is approved to construct under a general permit (see [paragraph (e)](#e) of this section) is the applicability of the general permit to that particular source.
- (c) **For what categories will general permits be issued?**
  - (1) The reviewing authority will determine which categories of individual emissions units, groups of similar emissions units or sources are appropriate for general permits in its area.
  - (2) General permits will be issued at the discretion of the reviewing authority.
- (d) **What should the general permit contain?** The general permit must contain the permit elements listed in [§ 49.155(a)](/cfr/40/49.155.md?p=a). In addition, the general permit must contain the information listed in paragraphs [(d)(1)](#d-1) and [(2)](#d-2) of this section. The reviewing authority may specify additional general permit terms and conditions.
  - (1) Identification of the specific category of emissions units or sources to which the general permit applies, including any criteria that your emissions units or source must meet to be eligible for coverage under the general permit.
  - (2) Information required to request coverage under a general permit including, but not limited to, the following:
    - (i) The name and mailing address of the reviewing authority to whom you must submit your application.
    - (ii) The procedure to obtain any standard application forms that the reviewing authority may have developed.
    - (iii) The information that you must provide to the reviewing authority in your application to demonstrate that you are eligible for coverage under the general permit.
    - (iv) **Other application requirements deemed necessary by the reviewing authority.**
- (e) **What are the procedures for obtaining coverage for a source under a general permit?**
  - (1) If your source qualifies for a general permit, you may submit a Request for Coverage under that general permit to the reviewing authority upon the effective date of the general permit, generally 60 days after publication of the general permit in the Federal Register.
  - (2) At the time you submit your request for coverage under a general permit, you must submit a copy of such request to the Tribe in the area where the source is locating.
  - (3) The reviewing authority must act on your request for coverage under the general permit as expeditiously as possible, but it must notify you of the final decision within 90 days of its receipt of your coverage request.
  - (4) Your reviewing authority must comply with a 45-day completeness review period to determine if your request for coverage under a general permit is complete. Therefore, within 30 days after the receipt of your coverage request, your reviewing authority must make an initial request for any additional information necessary to process your coverage request and you must submit such information within 15 days. If you do not submit the requested information within 15 days from the request for additional information and this results in a delay that is beyond the 45-day completeness review period, the 90-day permit issuance period for your general permit will be extended by the additional days you take to submit the requested information beyond the 45-day period. If the reviewing authority fails to notify you within a 30-day period of any additional information necessary to process your coverage request, you will still have 15 days to submit such information and the reviewing authority must still grant or deny your request for coverage under a general permit within the 90-day general permit issuance period and without any time extension.
  - (5) If the reviewing authority determines that your request for coverage under a general permit has all the relevant information and is complete, it will notify you in writing as soon as that determination is made. If you do not receive from the reviewing authority a request for additional information or a notice that your request for coverage under a general permit is complete within the 45-day completeness review period described in [paragraph (4)](#e-4) of this section, your request will be deemed complete.
  - (6) The reviewing authority will send you a letter notifying you of the approval or denial of your request for coverage under a general permit. This letter is a final action for purposes of judicial review (see [40 CFR 49.159](/cfr/40/49.159.md)) only for the issue of whether your source qualifies for coverage under the general permit. If your request for coverage under a general permit is approved, you must post, prominently, a copy of the letter granting such request at the site where your source is locating.
  - (7) If the reviewing authority has sent a letter to you approving your request for coverage under a general permit, you must comply with all conditions and terms of the general permit. You will be subject to enforcement action for failure to obtain a preconstruction permit if you construct the emissions unit(s) or source with general permit approval and your source is later determined not to qualify for the conditions and terms of the general permit.
  - (8) Your permit becomes invalid if you do not commence construction within 18 months after the effective date of your request for coverage under a general permit, if you discontinue construction for a period of 18 months or more or if you do not complete construction within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.
  - (9) Any source eligible to request coverage under a general permit may request to be excluded from the general permit by applying for a permit under [§ 49.154](/cfr/40/49.154.md).
- (f) **Permits by rule overview—**
  - (1) **What is a permit by rule?** A permit by rule is a preconstruction permit issued by a reviewing authority that may be applied to a number of similar emissions units or sources within a designated category. The purpose of a permit by rule is to simplify the permit issuance process for similar facilities so that a reviewing authority's limited resources need not be expended for case-by-case permit development for such facilities. A permit by rule may be written to address a single emissions unit, a group of the same type of emissions units or an entire minor source. A source wishing to operate pursuant to a permit by rule must submit a Notification of Coverage Form to the reviewing authority prior to commencing construction or modification. Once a source submits the Notification of Coverage and the EPA posts it online, the source may commence construction or modification without further action by the reviewing authority.
  - (2) **When and where does a permit by rule apply?** The provisions of a permit by rule established under the authority of this section apply on reservations and other areas of Indian country for which a tribe, or EPA acting in a tribe's stead, has demonstrated that a tribe has jurisdiction and where there is no EPA-approved tribal minor NSR program and according to the following implementation schedule: Sources that qualify for a permit by rule and have completed and submitted to the reviewing authority and the tribe in the affected area that is covered under the permit by rule the required Notification of Coverage may commence construction of a new source or modification of an existing source after the reviewing authority has posted the Notification of Coverage Form online. If your source qualifies for a permit by rule, you may submit a Notification of Coverage Form under that permit by rule upon the effective date of the permit by rule, generally 60 days after publication of the permit by rule in the Federal Register.
  - (3) **How will the reviewing authority issue permits by rule?** The reviewing authority will issue permits by rule as follows:
    - (i) A permit by rule may be issued for a category of emissions units or sources that are similar in nature, have substantially similar emissions and would be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting and recordkeeping. “Similar in nature” refers to size, processes and operating conditions.
    - (ii) A permit by rule must be issued according to the applicable requirements in §§ [49.154(c)](/cfr/40/49.154.md?p=c) and [(d)](/cfr/40/49.154.md?p=d) and [49.155](/cfr/40/49.155.md).
  - (4) **For what source categories will source category permits by rule be issued?**
    - (i) The reviewing authority will determine at its discretion which categories of true minor sources are appropriate for coverage under a permit by rule.
    - (ii) Permits by rule will be issued at the discretion of the reviewing authority. Issuance of a permit by rule is considered final agency action with respect to all aspects of the permit by rule except its applicability to an individual source. Permits by rule for additional source categories may be added in the future following the procedure set forth in paragraph (e)(3)(ii) of this section.
    - (iii) **Permits by rule are currently available for the following source categories—**
      - (A) Auto body repair and miscellaneous surface coating operations ([§ 49.162](/cfr/40/49.162.md)).
      - (B) Petroleum dry cleaning facilities ([§ 49.163](/cfr/40/49.163.md)).
      - (C) Gasoline dispensing facilities ([§ 49.164](/cfr/40/49.164.md)).
  - (5) **What should the permit by rule contain?** A source category permit by rule must include the permit elements listed in [§ 49.155(a)](/cfr/40/49.155.md?p=a).
  - (6) **What procedures must you follow to obtain coverage for your source under a permit by rule?**
    - (i) You must determine whether your source is a true minor source by following the procedures outlined in [§ 49.153](/cfr/40/49.153.md).
    - (ii) If you determine your source is a true minor source, then to be eligible to be covered by the permit you must be willing to accept the terms and conditions of the permit by rule, including emissions limits that are either directly expressed as limits or specified as an operational throughput limit or threshold.
    - (iii) Prior to submitting a completed Notification of Coverage to the reviewing authority notifying the reviewing authority that you are covered under a permit by rule, you must first submit documentation to the EPA (and to the tribe where the source is located/locating) demonstrating that you have completed the screening processes specified for consideration of threatened and endangered species and historic properties and receive a determination from the EPA stating that you have satisfactorily completed these processes. (The processes are contained in the following document: “Procedures to Address Threatened and Endangered Species and Historic Properties for New or Modified True Minor Sources in Indian Country Seeking Air Quality Permits by Rule,” http://www.epa.gov/air/tribal/tribalnsr.html.) Within 30 days of receipt of your documentation, by letter to you, the reviewing authority must provide a determination that: The documentation satisfactorily demonstrates completion of the threatened and endangered species and historic property processes; or the documentation is not adequate and additional information is needed. If the initial submittal is deficient, the reviewing authority will note any such deficiencies and may offer further direction on completing the screening process(es). Once you have addressed the noted deficiencies you must resubmit your threatened and endangered species and historic property screening procedure documentation for review. An additional 15-day review notification period will be used for the reviewing authority to determine whether the ESA/NHPA screening procedures have been satisfied. If they have, the reviewing authority will send you a letter so stating. You must obtain a letter from the reviewing authority indicating that the source has adequately completed the processes regarding threatened and endangered species and historic properties is necessary before you can qualify for coverage under the permit by rule.
    - (iv) If your source qualifies for a permit by rule and you choose to be covered under it, following notification from the EPA that you have satisfactorily completed the threatened and endangered species and historic property processes correctly, you may submit a Notification of Coverage to the reviewing authority beginning upon the effective date of the permit by rule, generally 60 days after publication of the permit by rule in the Federal Register. Submission of the completed Notification of Coverage to the reviewing authority satisfies the registration requirement of [§ 49.160(c)](/cfr/40/49.160.md?p=c)((1)(iii). The necessary forms for submitting a Notification of Coverage are available online at http://www.epa.gov/air/tribal/tribalnsr.html. You must also submit a copy of the Notification of Coverage to the tribe in the area where your source is locating or modifying.
    - (v) Upon receiving your Notification of Coverage, the notification will be posted on the reviewing authority's Web site, which is the relevant EPA Regional Office's Web site unless a tribe has been delegated authority to implement the Federal Minor NSR Program in Indian Country rule. The posting of the Notification of Coverage Form is considered final agency action with respect to the permit by rule's applicability to an individual source. Appeals can only be made regarding the applicability of the permit by rule to an individual source or modification. Appeals must be made to the relevant U.S. Court of Appeals within 60 days of the EPA's final action.
    - (vi) Your source must comply with all terms and conditions of the relevant permit by rule. You will be subject to enforcement action for failure to obtain a preconstruction permit if the emissions unit(s) or source are constructed under coverage of a permit by rule and your source is later determined not to qualify for that permit by rule.
    - (vii) Coverage under a permit by rule becomes invalid if construction is not commenced within 18 months after the date of the posting of the Notification of Coverage under a source category permit by rule, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; construction of each such phase must commence within 18 months of the projected and approved commencement date.
    - (viii) Any source eligible to request coverage under a permit by rule may instead choose to apply for a source specific permit under [§ 49.154](/cfr/40/49.154.md) if they prefer not to be subject to the permit by rule's terms and conditions.

# §49.157. Public participation requirements.


This section applies to the issuance of minor source permits and synthetic minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit.

- (a) **What permit information will be publicly available?** With the exception of any confidential information as defined in [part 2](/cfr/40/part2.md), [subpart B](/cfr/40/subpartB.md) of this chapter, the reviewing authority must make available for public inspection the documents listed in [paragraphs (a)(1) through (6)](#a-1..a-6) of this section. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the source, such as the Tribal environmental office or a local library.
  - (1) **All information submitted as part of your application for a permit.**
  - (2) **Any additional information requested by the reviewing authority.**
  - (3) The reviewing authority's analysis of the application and any additional information you submitted, including (for preconstruction permits and the initial issuance of general permits) the control technology review.
  - (4) For minor source permits and the initial issuance of general permits, the reviewing authority's analysis of the effect of the construction of the minor source or modification on ambient air quality.
  - (5) For coverage of a particular source under a general permit, the reviewing authority's analysis of whether your particular emissions unit or source is within the category of emissions units or sources to which the general permit applies, including whether your emissions unit or source meets any criteria to be eligible for coverage under the general permit.
  - (6) **A copy of the draft permit or the decision to deny the permit with the justification for denial.**
- (b) **How will the public be notified and participate?**
  - (1) Before issuing a permit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs [(b)(1)(i)](#b-1-i) and [(ii)](#b-1-ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit.
    - (i) The reviewing authority must mail a copy of the notice to you, the appropriate Indian governing body and the Tribal, state and local air pollution authorities having jurisdiction adjacent to the area of Indian country potentially impacted by the air pollution source.
    - (ii) Depending on such factors as the nature and size of your source, local air quality considerations and the characteristics of the population in the affected area (e.g., subsistence hunting and fishing or other seasonal cultural practices), the reviewing authority must use appropriate means of notification, such as those listed in [paragraphs (b)(1)(ii)(A) through (E)](#b-1-ii-A..b-1-ii-E) of this section.
      - (A) The reviewing authority may mail or e-mail a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.
      - (B) The reviewing authority may post the notice on its Web site.
      - (C) The reviewing authority may publish the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a Tribal newspaper or newsletter.
      - (D) The reviewing authority may provide copies of the notice for posting at one or more locations in the area affected by the source, such as post offices, trading posts, libraries, Tribal environmental offices, community centers or other gathering places in the community.
      - (E) The reviewing authority may employ other means of notification as appropriate.
  - (2) The notice required pursuant to [paragraph (b)(1)](#b-1) of this section must include the following information at a minimum:
    - (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
    - (ii) The name and address of the reviewing authority processing the permit action;
    - (iii) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the regulated NSR pollutants to be emitted, the affected emissions units and the emission limitations for each affected emissions unit;
    - (iv) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the emissions change involved in the permit action;
    - (v) For synthetic minor source permits, a description of the proposed limitation and its effect on the potential to emit of the source;
    - (vi) Instructions for requesting a public hearing;
    - (vii) The name, address and telephone number of a contact person in the reviewing authority's office from whom additional information may be obtained;
    - (viii) Locations and times of availability of the information (listed in [paragraph (a)](#a) of this section) for public inspection and
    - (ix) A statement that any person may submit written comments, a written request for a public hearing or both, on the draft permit action. The reviewing authority must provide a period of at least 30 days from the date of the public notice for comments and for requests for a public hearing.
- (c) **How will the public comment and will there be a public hearing?**
  - (1) Any person may submit written comments on the draft permit and may request a public hearing. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process and such records must be available to the public.
  - (2) The reviewing authority must extend the public comment period under [paragraph (b)](#b) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
  - (3) A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised at the hearing.
  - (4) The reviewing authority must hold a hearing whenever there is, on the basis of requests, a significant degree of public interest in a draft permit. The reviewing authority may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing.
  - (5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.

# §49.158. Synthetic minor source permits.


You may obtain a synthetic minor source permit under this program to establish a synthetic minor source for purposes of the applicable PSD, nonattainment major NSR or Clean Air Act title V program and/or a synthetic minor HAP source for purposes of [part 63](/cfr/40/part63.md) of the Act or the applicable Clean Air Act title V program. Any source that becomes a synthetic minor source for NSR and title V purposes but has other applicable requirements or becomes a synthetic minor for NSR but is major for title V purposes, remains subject to the applicable title V program. Note that if you propose to construct or modify a synthetic minor source, you are also subject to the preconstruction permitting requirements in §§ [49.154](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md), except for the permit application content and permit application completeness provisions included in [§ 49.154(a)(2)](/cfr/40/49.154.md?p=a-2) and [§ 49.154(b)](/cfr/40/49.154.md?p=b).

- (a) **What information must my synthetic minor source permit application contain?**
  - (1) Your application must include the following information:
    - (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
    - (ii) For each regulated NSR pollutant and/or HAP and for all emissions units to be covered by an emissions limitation, the following information:
      - (A) The proposed emission limitation and a description of its effect on actual emissions or the potential to emit. Proposed emission limitations must have a reasonably short averaging period, taking into consideration the operation of the source and the methods to be used for demonstrating compliance.
      - (B) Proposed testing, monitoring, recordkeeping and reporting requirements to be used to demonstrate and assure compliance with the proposed limitation.
      - (C) **A description of the production processes.**
      - (D) **Identification of the emissions units.**
      - (E) **Type and quantity of fuels and/or raw materials used.**
      - (F) Description and estimated efficiency of air pollution control equipment under present or anticipated operating conditions.
      - (G) Estimates of the current actual emissions and current potential to emit, including all calculations for the estimates.
      - (H) Estimates of the allowable emissions and/or potential to emit that would result from compliance with the proposed limitation, including all calculations for the estimates.
    - (iii) **Any other information specifically requested by the reviewing authority.**
  - (2) Estimates of actual emissions must be based upon actual test data or in the absence of such data, upon procedures acceptable to the reviewing authority. Any emission estimates submitted to the reviewing authority must be verifiable using currently accepted engineering criteria. The following procedures are generally acceptable for estimating emissions from air pollution sources:
    - (i) Source-specific emission tests;
    - (ii) Mass balance calculations;
    - (iii) Published, verifiable emission factors that are applicable to the source;
    - (iv) Other engineering calculations or
    - (v) **Other procedures to estimate emissions specifically approved by the reviewing authority.**
- (b) **What are the procedures for obtaining a synthetic minor source permit?**
  - (1) If you wish to obtain a synthetic minor source permit under this program, you must submit a permit application to the reviewing authority. The application must contain the information specified in [paragraph (a)](#a) of this section.
  - (2) Within 60 days after receipt of an application, the reviewing authority will determine if it contains the information specified in [paragraph (a)](#a) of this section.
  - (3) If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 60 days of receipt of the permit application by the reviewing authority. If you do not receive a request for additional information or a notice of complete application postmarked within 60 days of receipt of the permit application by the reviewing authority, your application will be deemed complete
  - (4) The reviewing authority will prepare a draft synthetic minor source permit that describes the proposed limitation and its effect on the potential to emit of the source.
  - (5) The reviewing authority must provide an opportunity for public participation and public comment on the draft synthetic minor source permit as set out in [§ 49.157](/cfr/40/49.157.md).
  - (6) After the close of the public comment period, the reviewing authority will review all comments received and prepare a final synthetic minor source permit.
  - (7) The final synthetic minor source permit will be granted or denied no later than 1 year after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
  - (8) The final synthetic minor source permit will be issued and will be subject to administrative and judicial review as set out in [§ 49.159](/cfr/40/49.159.md).
- (c) **What are my responsibilities under this program for my source that already has synthetic minor source or synthetic minor HAP source status prior to the effective date of this rule (that is, prior to August 30, 2011)—** ?
  - (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.
  - (2) If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to [part 71](/cfr/40/part71.md) of this chapter, the reviewing authority has the discretion to do any of the following:
    - (i) Allow you to maintain the synthetic minor status for your source through your permit under [part 71](/cfr/40/part71.md) of this chapter, including subsequent renewals of that permit.
    - (ii) Require you to submit an application for a synthetic minor source permit under this program by September 4, 2012, subject to the provisions in paragraphs [(a)](#a) and [(c)(4)(i) through (iii)](#c-4-i..c-4-iii) of this section. The reviewing authority also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
    - (iii) Require you to submit an application for a synthetic minor source permit under this program at the same time that you apply to renew your permit under [part 71](/cfr/40/part71.md) of this chapter, subject to the provisions in paragraphs [(a)](#a) and [(c)(4)(i) through (iii)](#c-4-i..c-4-iii) of this section. The reviewing authority also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
  - (3) If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in paragraphs [(c)(1)](#c-1) and [(c)(2)](#c-2) of this section, you must submit an application for a synthetic minor source permit under this program by September 4, 2012, subject to the provisions in paragraphs [(a)](#a) and [(c)(4)(i) through (iii)](#c-4-i..c-4-iii) of this section
  - (4) If you are required to obtain a synthetic minor source permit under this program for your existing synthetic minor source and/or synthetic minor HAP source, the following provisions apply:
    - (i) After submitting your synthetic minor source permit application, you must respond in a timely manner to any requests from the reviewing authority for additional information.
    - (ii) Provided that you submit your application as required in paragraph [(c)(2)(ii)](#c-2-ii), [(c)(2)(iii)](#c-2-iii) or (c)(3) (as applicable) and any requested additional information as required in [paragraph (c)(4)(i)](#c-4-i) of this section, your source will continue to be considered a synthetic minor source or synthetic minor HAP source (as applicable) until your synthetic minor source permit under this program has been issued. Issuance of your synthetic minor source permit under this program will be in accordance with the applicable requirements in §§ [49.154](/cfr/40/49.154.md) and [49.155](/cfr/40/49.155.md) and all other provisions under this section.
    - (iii) Should you fail to submit your application as required in paragraph [(c)(2)(ii)](#c-2-ii), [(c)(2)(iii)](#c-2-iii) or (c)(3) (as applicable) or any requested additional information as required in [paragraph (c)(4)(i)](#c-4-i) of this section, your source will no longer be considered a synthetic minor source or synthetic minor HAP source (as applicable) and will become subject to all requirements for major sources. In the case of sources subject to section (c)(2)(iii) of this section, the renewed [part 71](/cfr/40/part71.md) permit will not contain enforceable emissions limitations and instead will include applicable major source requirements.

# §49.159. Final permit issuance and administrative and judicial review.

- (a) **How will final action occur and when will my permit become effective?** After decision on a permit, the reviewing authority must notify you of the decision, in writing and if the permit is denied, of the reasons for such denial and the procedures for appeal. The reviewing authority must provide adequate public notice of the final permit decision to ensure that the affected community, general public and any individuals who commented on the draft permit have reasonable access to the decision and supporting materials according to 49.157(b)(1), for synthetic minor sources and minor modifications at major sources and according to one or more of the provisions in [§ 49.157(b)(1)(ii)(A)-(E)](/cfr/40/49.157.md?p=b-1-ii-A..b-1-ii-E) for site-specific permits. A final permit becomes effective 30 days after service of notice of the final permit decision, unless:
  - (1) A later effective date is specified in the permit or
  - (2) Review of the final permit is requested under [paragraph (d)](#d) of this section (in which case the specific terms and conditions of the permit that are the subject of the request for review must be stayed) or
  - (3) The reviewing authority may make the permit effective immediately upon issuance if no comments requested a change in the draft permit or a denial of the permit.
- (b) **For how long will the reviewing authority retain my permit-related records?** The records, including any required applications for each draft and final permit or application for permit revision, must be kept by the reviewing authority for not less than 5 years.
- (c) **What is the administrative record for each final permit?**
  - (1) The reviewing authority must base final permit decisions on an administrative record consisting of:
    - (i) The application and any supporting data furnished by you, the permit applicant;
    - (ii) The draft permit or notice of intent to deny the application;
    - (iii) Other documents in the supporting files for the draft permit that were relied upon in the decision-making;
    - (iv) All comments received during the public comment period, including any extension or reopening;
    - (v) The tape or transcript of any hearing(s) held;
    - (vi) Any written material submitted at such a hearing;
    - (vii) Any new materials placed in the record as a result of the reviewing authority's evaluation of public comments;
    - (viii) The final permit and
    - (ix) Other documents in the supporting files for the final permit that were relied upon in the decision-making.
  - (2) The additional documents required under [paragraph (c)(1)](#c-1) of this section should be added to the record as soon as possible after their receipt or preparation by the reviewing authority. The record must be complete on the date the final permit is issued.
  - (3) Material readily available or published materials that are generally available and that are included in the administrative record under the standards of [paragraph (c)(1)](#c-1) of this section need not be physically included in the same file as the rest of the record as long as it is specifically referred to in that file.
- (d) **Can permit decisions be appealed?**
  - (1) Permit decisions may be appealed under the permit appeal procedures of [40 CFR 124.19](/cfr/40/124.19.md).
  - (2) An appeal under [paragraph (d)(1)](#d-1) of this section is, under section 307(b) of the Act, a prerequisite to seeking judicial review of the final agency action.
- (e) **Can my permit be reopened?** The reviewing authority may reopen an existing, currently-in-effect permit for cause on its own initiative, such as if it contains a material mistake or fails to assure compliance with applicable requirements. However, except for those permit reopenings that do not increase the emissions limitations in the permit, such as permit reopenings that correct typographical, calculation and other errors, all other permit reopenings shall be carried out after the opportunity of public notice and comment and in accordance with one or more of the public participation requirements under [§ 49.157(b)(1)(ii)](/cfr/40/49.157.md?p=b-1-ii).
- (f) **What is an administrative permit revision?** The following provisions govern administrative permit revisions.
  - (1) **An administrative permit revision is a permit revision that makes any of the following changes—**
    - (i) **Corrects typographical errors.**
    - (ii) Identifies a change in the name, address or phone number of any person identified in the permit or provides a similar minor administrative change at the source.
    - (iii) **Requires more frequent monitoring or reporting by the permittee.**
    - (iv) Allows for a change in ownership or operational control of a source where the reviewing authority determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage and liability between the current and new permittee has been submitted to the reviewing authority.
    - (v) Establishes an increase in an emissions unit's annual allowable emissions limit for a regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject to review under major NSR or under this program.
    - (vi) Incorporates any other type of change that the reviewing authority has determined to be similar to those in [paragraphs (f)(1)(i) through (v)](#f-1-i..f-1-v) of this section.
  - (2) An administrative permit revision is not subject to the permit application, issuance, public participation or administrative and judicial review requirements of this program.

# §49.160. Registration program for minor sources in Indian country.

- (a) **Does this section apply to my source?** This section applies to you if you are the owner/operator of a true minor source.
- (b) **What is exempted from this section?** The exemptions in paragraphs [(b)(1)](#b-1) and [(b)(2)](#b-2) of this section apply to the registration program of this section.
  - (1) You are exempt from this registration program if any of the following paragraphs applies to your source:
    - (i) Your source is subject to the registration requirements under [§ 49.138](/cfr/40/49.138.md)—“Rule for the registration of air pollution sources and the reporting of emissions.”
    - (ii) **Your source has a part 71 permit.**
    - (iii) Your source is a synthetic minor source or a synthetic minor HAP source or a minor modification at a major source as defined in [§ 49.152(d)](/cfr/40/49.152.md?p=d).
  - (2) For purposes of determining the potential to emit, allowable or actual emissions of your source, you are not required to include emissions from the exempted emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c).
- (c) **What are the requirements for registering your minor source?** The requirements for registrations are as follows:
  - (1) **Due date.** The due date of your source registration varies according to the following paragraphs:
    - (i) If you own or operate an existing true minor source (as defined in [40 CFR 49.152(d)](/cfr/40/49.152.md?p=d)), you must register your source with the reviewing authority by March 1, 2013.
    - (ii) If your true minor source is not engaged in an oil and natural gas activity, and you commence construction after August 30, 2011, and before September 2, 2014, then you must register your source with the Reviewing Authority within 90 days after the source begins operation. If your new true minor source or minor modification of an existing true minor source is engaged in an oil and natural gas activity, and you commence construction after August 30, 2011, and before October 3, 2016, then you must register your source with the Reviewing Authority within 90 days after the source begins operation.
    - (iii) If your true minor source is not engaged in an oil and natural gas activity, and you commence construction or modification of your source on or after September 2, 2014, and your source is subject to this rule, then you must report your source's actual emissions (if available) as part of your permit application and your permit application information will be used to fulfill the registration requirements described in [paragraph (c)(2)](#c-2) of this section. If your true minor source is engaged in an oil and natural gas activity, and you commence construction or modification of your source on or after October 3, 2016, then you must report your source's actual emissions (if available) as part of your permit application (source-specific permits), unless you are subject to the Federal Implementation Plan under [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md) (where the requirements under [paragraph (c)(1)(iv)](#c-1-iv) of this section shall be met). Your permit application for oil and natural gas production and natural gas processing sources seeking a source-specific permit will be used to fulfill the registration requirements described in [paragraph (c)(2)](#c-2) of this section.
    - (iv) Minor sources complying with [§§ 49.101 through 49.105](/cfr/40/49.101..49.105.md) for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector, as defined in [§ 49.102](/cfr/40/49.102.md), must submit, at least 30 days prior to beginning construction, the [Part 1](/cfr/40/part1.md) Registration Form containing the information in [paragraph (c)(2)](#c-2) of this section. The [Part 2](/cfr/40/part2.md) Registration Form, including emissions information, must be submitted within 60 days after the startup of production as defined in [§ 49.152(d)](/cfr/40/49.152.md?p=d). The source must determine the potential for emissions within 30 days after startup of production.

      The combination of the [Part 1](/cfr/40/part1.md) and [Part 2](/cfr/40/part2.md) Registration Forms submittals satisfies the requirements in [paragraph (c)(2)](#c-2) of this section. These forms are submitted to the EPA instead of the application form required in [paragraph (c)(1)(iii)](#c-1-iii) of this section. The forms are available at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review or from the EPA Regional Offices.

  - (2) **Content.** You must submit all registration information on forms provided by the reviewing authority. Each registration must include the following information, as applicable:
    - (i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
    - (ii) **A description of your source's processes and products.**
    - (iii) A list of all emissions units (with the exception of the exempt emissions units and activities listed in [§ 49.153(c)](/cfr/40/49.153.md?p=c)).
    - (iv) For each emissions unit that is listed, both the allowable and estimated actual annual emissions of each regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source is in one of the source categories listed in [§ 51](/cfr/40/51.md), Appendix S, paragraph II.A.4(iii) or [§ 52.21(b)(1)(iii)](/cfr/40/52.21.md?p=b-1-iii) of this chapter), with supporting documentation.
    - (v) **The following information—** Fuels, fuel use, raw materials, production rates and operating schedules.
    - (vi) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities.
    - (vii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.
    - (viii) **Any other information specifically requested by the reviewing authority.**
  - (3) **Procedure for estimating emissions.** Your registration should include potential to emit or estimates of the allowable and actual emissions, in tpy, of each regulated NSR pollutant for each emissions unit at the source.
    - (i) Estimates of allowable emissions must be consistent with the definition of that term in [§ 49.152(d)](/cfr/40/49.152.md?p=d). Allowable emissions must be calculated based on 8,760 operating hours per year (i.e., operating 24 hours per day, 365 days per year) unless the reviewing authority approves a different number of annual operating hours as the basis for the calculation.
    - (ii) Estimates of actual emissions must take into account equipment, operating conditions and air pollution control measures. For a source that operated during the entire calendar year preceding the initial registration submittal, the reported actual emissions typically should be the annual emissions for the preceding calendar year, calculated using the actual operating hours, production rates, in-place control equipment and types of materials processed, stored or combusted during the preceding calendar year. However, if you believe that the actual emissions in the preceding calendar year are not representative of the emissions that your source will actually emit in coming years, you may submit an estimate of projected actual emissions along with the actual emissions from the preceding calendar year and the rationale for the projected actual emissions. For a source that has not operated for an entire year, the actual emissions are the estimated annual emissions for the current calendar year.
    - (iii) The allowable and actual emission estimates must be based upon actual test data or, in the absence of such data, upon procedures acceptable to the reviewing authority. Any emission estimates submitted to the reviewing authority must be verifiable using currently accepted engineering criteria. The following procedures are generally acceptable for estimating emissions from air pollution sources:
    - (i) Source-specific emission tests;
    - (ii) Mass balance calculations;
    - (iii) Published, verifiable emission factors that are applicable to the source;
    - (iv) Other engineering calculations or
    - (v) **Other procedures to estimate emissions specifically approved by the Regional Administrator.**
  - (4) **Duty to obtain a permit or to comply with the Federal Implementation Plan for sources in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector.** Submitting a registration form does not relieve you of the requirement to obtain any required permit, including a pre-construction permit, or to comply with the Federal Implementation Plan for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector if your source or any physical or operational change at your source would be subject to any minor or major NSR rule.
- (d) **What are the requirements for additional reports?** After you have registered your source, you must submit the following additional reports, when applicable:
  - (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)](#d-1-i) or [(ii)](#d-1-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.
  - (2) **Report of change of ownership.** After your source has been registered, the new owner/operator must report any change of ownership of a source to the reviewing authority in writing within 90 days after the change in ownership is effective.
  - (3) **Report of closure.** Except for regular seasonal closures, after your source has been registered, you must submit a report of closure to the reviewing authority in writing within 90 days after the cessation of all operations at your source.

# §49.161. Administration and delegation of the minor NSR program in Indian country.

- (a) **Who administers a minor NSR program in Indian country?**
  - (1) If the Administrator has approved a TIP that includes a minor NSR program for sources in Indian country that meets the requirements of section 110(a)(2)(C) of the Act and [§§ 51.160 through 51.164](/cfr/40/51.160..51.164.md) of this chapter, the Tribe is the reviewing authority and it will administer the approved minor NSR program under Tribal law.
  - (2) If the Administrator has not approved an implementation plan, the Administrator may delegate the authority to assist EPA with administration of portions of this Federal minor NSR program implemented under Federal authority to a Tribal agency upon request, in accordance with the provisions of [paragraph (b)](#b) of this section. If the Tribal agency has been granted such delegation, it will have the authority to assist EPA according to [paragraph (b)](#b) of this section and it will be the reviewing authority for purposes of the provisions for which it has been granted delegation.
  - (3) If the Administrator has not approved an implementation plan or granted delegation to a Tribal agency, the Administrator is the reviewing authority and will directly administer all aspects of this Federal minor NSR program in Indian country under Federal authority.
- (b) **Delegation of administration of the Federal minor NSR program to Tribes.** This [paragraph (b)](#b) establishes the process by which the Administrator may delegate authority to a Tribal agency, with or without signature authority, to assist EPA with administration of portions of this Federal minor NSR program, in accordance with the provisions in [paragraphs (b)(1) through (8)](#b-1..b-8) of this section. Any Federal requirements under this program that are administered by the delegate Tribal agency will be subject to enforcement by EPA under Federal law. This section provides for administrative delegation of the Federal minor NSR program and does not affect the eligibility criteria under [§ 49.6](/cfr/40/49.6.md) for treatment in the same manner as a state.
  - (1) **Information to be included in the Administrative Delegation Request.** In order to be delegated authority to assist EPA with administration of this FIP permit program for sources, the Tribal agency must submit a request to the Administrator that:
    - (i) Identifies the specific provisions for which delegation is requested;
    - (ii) Identifies the Indian Reservation or other areas of Indian country for which delegation is requested;
    - (iii) Includes a statement by the applicant's legal counsel (or equivalent official) that includes the following information:
      - (A) A statement that the applicant is a Tribe recognized by the Secretary of the Interior;
      - (B) A descriptive statement that is consistent with the type of information described in [§ 49.7(a)(2)](/cfr/40/49.7.md?p=a-2) demonstrating that the applicant is currently carrying out substantial governmental duties and powers over a defined area and
      - (C) A description of the laws of the Tribe that provide adequate authority to administer the Federal rules and provisions for which delegation is requested and
    - (iv) A demonstration that the Tribal agency has the technical capability and adequate resources to administer the FIP provisions for which the delegation is requested.
  - (2) **Delegation of Partial Administrative Authority Agreement.** A Delegation of Partial Administrative Authority Agreement (Agreement) will set forth the terms and conditions of the delegation, will specify the provisions that the delegate Tribal agency will be authorized to implement on behalf of EPA and will be entered into by the Administrator and the delegate Tribal agency. The Agreement will become effective upon the date that both the Administrator and the delegate Tribal agency have signed the Agreement or as otherwise stated in the Agreement. Once the delegation becomes effective, the delegate Tribal agency will be responsible, to the extent specified in the Agreement, for assisting EPA with administration of the provisions of the Federal minor NSR program that are subject to the Agreement.
  - (3) **Publication of notice of the Agreement.** The Administrator will publish a notice in the Federal Register informing the public of any Agreement for a particular area of Indian country. The Administrator also will publish the notice in a newspaper of general circulation in the area affected by the delegation. In addition, the Administrator will mail a copy of the notice to persons on a mailing list developed by the Administrator consisting of those persons who have requested to be placed on such a mailing list.
  - (4) **Revision or revocation of an Agreement.** An Agreement may be modified, amended or revoked, in part or in whole, by the Administrator after consultation with the delegate Tribal agency.
  - (5) **Transmission of information to the Administrator.** When administration of a portion of the Federal minor NSR program in Indian country that includes receipt of permit application materials and preparation of draft permits has been delegated in accordance with the provisions of this section, the delegate Tribal agency must provide to the Administrator a copy of each permit application (including any application for permit revision) and each draft permit. You, the permit applicant, may be required by the delegate Tribal agency to provide a copy of the permit application directly to the Administrator. With the Administrator's consent, the delegate Tribal agency may submit to the Administrator a permit application summary form and any relevant portion of the permit application, in place of the complete permit application. To the extent practicable, the preceding information should be provided in electronic format by the delegate Tribal agency or by you, the permit applicant, as applicable and as requested by the Administrator. The delegate Tribal agency must also submit to the Administrator such information as the Administrator may reasonably require to ascertain whether the delegate Tribal agency is implementing and administering the delegated program in compliance with the requirements of the Act and of this program.
  - (6) **Waiver of information transmission requirements.** The Administrator may waive the requirements of [paragraph (b)(5)](#b-5) of this section for any category of sources (including any class, type or size within such category) by transmitting the waiver in writing to the delegate Tribal agency.
  - (7) **Retention of records.** Where a delegate Tribal agency prepares draft or final permits or receives applications for permit revisions on behalf of EPA, the records for each draft and final permit or application for permit revision must be kept by the delegate Tribal agency for a period not less than 3 years.
  - (8) **Delegation of signature authority.** To receive delegation of signature authority, the legal statement submitted by the Tribal agency pursuant to [paragraph (b)(1)](#b-1) of this section must certify that no applicable provision of Tribal law requires that a minor NSR permit be issued after a certain time if the delegate Tribal agency has failed to take action on the application (or includes any other similar provision providing for default issuance of a permit).
- (c) **Are there any non-delegable elements of the Federal minor NSR program in Indian country?** The following authorities cannot be delegated outside of EPA:
  - (1) **The Administrator's authority to object to the issuance of a minor NSR permit.**
  - (2) **The Administrator's authority to enforce permits issued pursuant to this program.**
- (d) **How will EPA transition its authority to an approved minor NSR program?**
  - (1) The Administrator will suspend the issuance of minor NSR permits under this program promptly upon publication of notice of approval of a Tribal implementation plan with a minor NSR permit program for that area.
  - (2) The Administrator may retain jurisdiction over the permits for which the administrative or judicial review process is not complete and will address this issue in the notice of program approval.
  - (3) After approval of a program for issuing minor NSR permits and the suspension of issuance of minor NSR permits by the Administrator, the Administrator will continue to administer minor NSR permits until permits are issued under the approved Tribal implementation plan program.
  - (4) Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.