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e-CFR data is current as of October 16, 2020

Title 40Chapter ISubchapter BPart 49Subpart C → Subject Group


Title 40: Protection of Environment
PART 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
Subpart C—General Federal Implementation Plan Provisions


Federal Minor New Source Review Program in Indian Country

Source: 76 FR 38788, July 1, 2011, unless otherwise noted.

§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.

(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) 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) of the Act.

(5) It sets forth the criteria and procedures that the reviewing authority (as defined in §49.152(d)) will use to administer the program.

(c) When and where does this program apply? (1) The provisions of this program apply in 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) 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 and 49.155 (or a general permit pursuant to §49.156, if applicable) prior to beginning construction.

(B) If you wish to obtain a synthetic minor source permit pursuant §49.158 to establish a synthetic minor source and/or a synthetic minor HAP source at your existing major source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.

(ii) Synthetic minor sources. (A) If you wish to begin construction of a new synthetic minor source and/or a new synthetic minor HAP source or a modification at an existing synthetic minor source and/or synthetic minor HAP source on or after August 30, 2011, you must obtain a permit pursuant to §49.158 prior to beginning construction.

(B) If your existing synthetic minor source and/or synthetic minor HAP source was established pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or was established under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for this existing synthetic minor source and/or synthetic minor HAP source, on or after August 30, 2011. For these modifications, you need to obtain a permit pursuant to §49.158 prior to beginning construction.

(C) If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to part 71 of this chapter, the reviewing authority has the discretion to require you to submit a permit application for a synthetic minor source permit under this program by September 4, 2012 and pursuant to §49.158, to require you to submit a permit application for a synthetic minor source permit under this program (pursuant to §49.158) at the same time that you apply to renew your part 71 permit or to allow you to continue to maintain synthetic minor status through your part 71 permit. If the reviewing authority requires you to obtain a synthetic minor source permit and/or synthetic minor HAP source permit under this program (pursuant to §49.158) it also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.

(D) If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in paragraphs (c)(1)(ii)(B) and (C) of this section, you must submit an application pursuant to §49.158 for a synthetic minor source permit under this program by September 4, 2012. The reviewing authority has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.

(iii) True minor sources. (A) If you own or operate an existing true minor source in Indian country (as defined in §49.152(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.

(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 and 49.155 (or a general permit/permit by rule pursuant to §49.156, if applicable). If your true minor source is an oil and natural gas source, as defined in §49.102, 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) from the day you begin construction or opt out of those requirements pursuant to §49.101(b)(2) and instead obtain a minor source permit pursuant to §§49.154 and 49.155 before beginning construction. Alternatively, you may be required by the EPA, pursuant to §49.101(b)(3), to obtain a minor source permit pursuant to §§49.154 and 49.155 before beginning construction. All proposed new sources or modifications of existing sources are also subject to the registration requirements of §49.160, except for sources that are subject to §49.138.

(2) The provisions of this program or portions of this program cease to apply in an area covered by an EPA-approved Tribal implementation plan on the date that our approval of that implementation plan becomes effective, provided that the implementation plan includes provisions that comply with the requirements of section 110(a)(2)(C) of the Act for the construction and modification of minor sources and minor modifications at major sources. Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.

(d) What general provisions apply under this program? The following general provisions apply to you as an owner/operator of a minor source:

(1) If you begin construction of a new source or modification that is subject to this program after the applicable date specified in paragraph (c) of this section without applying for and receiving a permit pursuant to this program or complying with the Federal Implementation Plan at §§49.101 through 49.105 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, 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 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 or a synthetic minor source permit under §49.158), all the actions listed in paragraphs (e)(1) through (8) of this section need to be completed. The processes for issuing general permits and synthetic minor source permits are set out in §49.156 and §49.158, respectively.

(1) You must submit a permit application that meets the requirements of §49.154(a).

(2) The reviewing authority determines completeness of the permit application as provided in §49.154(b) 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).

(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).

(7) The reviewing authority provides for public participation, including a 30-day period for public comment, according to the requirements of §49.157.

(8) The reviewing authority either issues a final permit that meets the requirements of §49.155(a) or denies the permit and provides reasons for the denial, 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.

[76 FR 38788, July 1, 2011, as amended at 79 FR 31043, May 30, 2014; 79 FR 34239, June 16, 2014; 80 FR 25090, May 1, 2015; 81 FR 9113, Feb. 24, 2016; 81 FR 35980, June 3, 2016]

§49.152   Definitions.

(a) For sources of regulated NSR pollutants in nonattainment areas, the definitions in §49.167 apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).

(b) For sources of regulated NSR pollutants in attainment or unclassifiable areas, the definitions in §52.21 of this chapter apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).

(c) For sources of HAP, the definitions in §63.2 of this chapter apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).

(d) The following definitions also apply to this program:

Affected emissions units means the following emissions units, as applicable:

(1) For a proposed new minor source, all the emissions units.

(2) For a proposed modification, the new, modified and replacement emissions units involved in the modification.

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

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) of this chapter.

Indian country, as defined in 18 U.S.C. 1151, 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

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

(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state; and

(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

(4) The geographic scope of applicability of this rule is as specified in §49.151(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 or §52.21 of this chapter, as applicable.

Minor NSR threshold means any of the applicability cutoffs for this program listed in Table 1 of §49.153.

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

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

(1) A physical or operational change does not include routine maintenance, repair or replacement.

(2) An increase in the hours of operation or in the production rate is not considered an operational change unless such change is prohibited under any permit condition that is enforceable as a practical matter.

(3) A change in ownership at a stationary source.

(4) The emissions units and activities listed in §49.153(c).

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

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

Startup of production is as defined at §60.5430a.

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

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, §52.21 or §71.2 of this chapter, as applicable, but that has taken a restriction so that its potential to emit is less than such amounts for major sources. Such restrictions must be enforceable as a practical matter.

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

[76 FR 38788, July 1, 2011, as amended at 79 FR 31044, May 30, 2014; 81 FR 35980, June 3, 2016]

§49.153   Applicability.

(a) Does this program apply to me? The requirements of this program apply to you as set out in paragraphs (a)(1) through (4) of this section.

(1) New and modified sources. The applicability of the preconstruction review requirements of this program is determined individually for each regulated NSR pollutant that would be emitted by your new or modified source. For each such pollutant, determine applicability as set out in the relevant paragraph (a)(1)(i) or (ii) of this section.

(i) New source. Use the following steps to determine applicability for each regulated NSR pollutant.

(A) Step 1. Determine whether your proposed source's potential to emit the pollutant that you are evaluating is subject to review under the applicable major NSR program (that is, under §52.21 of this chapter, under the Federal major NSR program for nonattainment areas in Indian country at §§49.166 through 49.175 or under a program approved by the Administrator pursuant to §51.165 or §51.166 of this chapter). If not, go to Step 2 (paragraph (a)(1)(i)(B) of this section).

(B) Step 2. Determine whether 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, unless you opt-out of the Federal Implementation Plan pursuant to §49.101(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). If it is not, then proceed to Step 3 (paragraph (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) of this section).

(B) Step 2. Determine whether the increase in allowable emissions from the proposed modification (calculated using the procedures of paragraph (b) of this section) would be equal to or greater than the minor NSR threshold in Table 1 of this section for the pollutant that you are evaluating. If it is, 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, unless you opt-out of the Federal Implementation Plan pursuant to §49.101(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). If it is not, then proceed to Step 3 (paragraph (a)(1)(ii)(C) of this section).

(C) Step 3. If any of the emissions units affected by your proposed modification result in an increase in an annual allowable emissions limit for the pollutant that you are evaluating, the proposed modification is subject to paragraph (a)(2) of this section. If not, your proposed modification is not subject to this program.

(2) Increase in an emissions unit's annual allowable emissions limit. If you propose a physical or operational change at your minor or major source that would increase an emissions unit's allowable emissions of a regulated NSR pollutant above its existing annual allowable emissions limit, you must obtain a permit revision to reflect the increase in the limit prior to making the change. For a physical or operational change that is not otherwise subject to review under major NSR or under this program, such increase in the annual allowable emissions limit may be accomplished through an administrative permit revision as provided in §49.159(f).

(3) Synthetic minor source permits.

(i) If you own or operate an existing major source and you wish to obtain a synthetic minor source permit pursuant to §49.158 to establish a synthetic minor source and/or a synthetic minor HAP source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.

(ii) If you wish to begin construction of a new synthetic minor source and/or a new synthetic minor HAP source or a modification at an existing synthetic minor source and/or synthetic minor HAP source, on or after August 30, 2011, you must obtain a permit pursuant to §49.158 prior to beginning construction.

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

(iv) If you own or operate a synthetic minor source or synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to August 30, 2011) through a permit with enforceable emissions limitations issued pursuant to the operating permit program in part 71 of this chapter, the reviewing authority has the discretion to require you to apply for a synthetic minor source permit under §49.158 of this program by September 4, 2012 or at the time of part 71 permit renewal or allow you to maintain synthetic minor status through your part 71 permit.

(v) For all other synthetic minor sources or synthetic minor HAP sources that obtained synthetic minor status or synthetic minor source permits through a mechanism other than those described in paragraphs (a)(3)(iii) and (iv) of this section, you must submit an application for a synthetic minor source permit under this program by September 4, 2012 under §49.158.

(4) Case-by-case maximum achievable control technology (MACT) determinations. If you propose to construct or reconstruct a major source of HAPs such that you are subject to a case-by-case MACT determination under section 112(g)(2) of the Act, you may elect to have this determination approved under the provisions of this program (other options for such determinations include a title V permit action or a Notice of MACT Approval under §63.43 of this chapter). If you elect this option, you still must comply with the requirements of §63.43 of this chapter that apply to all case-by-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) 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.

Table 1 to §49.153—Minor NSR Thresholdsa

Regulated NSR pollutantMinor NSR
thresholds for
nonattainment areas
(tpy)
Minor NSR
thresholds for
attainment areas
(tpy)
Carbon monoxide (CO)510
Nitrogen oxides (NOX)5b10
Sulfur dioxide (SO2)510
Volatile Organic Compounds (VOC)2b5
PM510
PM1015
PM2.50.63
Lead0.10.1
FluoridesNA1
Sulfuric acid mistNA2
Hydrogen sulfide (H2S)NA2
Total reduced sulfur (including H2S)NA2
Reduced sulfur compounds (including H2S)NA2
Municipal waste combustor emissionsNA2
Municipal solid waste landfill emissions (measured as nonmethane organic compounds)NA10

aIf part of a Tribe's area of Indian country is designated as attainment and another part as nonattainment, the applicable threshold for a proposed source or modification is determined based on the designation where the source would be located. If the source straddles the two areas, the more stringent thresholds apply.

bIn extreme ozone nonattainment areas, section 182(e)(2) of the Act requires any change at a major source that results in any increase in emissions to be subject to major NSR permitting. In other words, any changes to existing major sources in extreme ozone nonattainment areas are subject to a “0” tpy threshold, but that threshold does not apply to minor sources.

[76 FR 38788, July 1, 2011, as amended at 79 FR 31044, May 30, 2014; 81 FR 35980, June 3, 2016]

§49.154   Permit application requirements.

This section applies to you if you are subject to this program under §49.153(a) for the construction of a new minor source, synthetic minor source or a modification at an existing source.

(a) What information must my permit application contain? Paragraphs (a)(1) through (3) of this section govern the content of your application.

(1) General provisions for permit applications. The following provisions apply to permit applications under this program:

(i) The reviewing authority may develop permit application forms for your use.

(ii) The permit application need not contain information on the exempt emissions units and activities listed in §49.153(c).

(iii) The permit application for a modification need only include information on the affected emissions units as defined in §49.152(d).

(2) Required permit application content. Except as specified in paragraphs (a)(1)(ii) and (iii) of this section, you must include the information listed in paragraphs (a)(2)(i) through (ix) of this section in your application for a permit under this program. The reviewing authority may require additional information as needed to process the permit application.

(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.

(ii) A description of your source's processes and products.

(iii) A list of all affected emissions units (with the exception of the exempt emissions units and activities listed in §49.153(c)).

(iv) For each new emissions unit that is listed, the potential to emit of each regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source is in one of the source categories listed in part 51, Appendix S, paragraph II.A.4(iii) or §52.21(b)(1)(iii) of this chapter, as applicable), with supporting documentation. In your calculation of the potential to emit for an emissions unit, you must account for any proposed emission limitations.

(v) For each modified emissions unit and replacement unit that is listed, the allowable emissions of each regulated NSR pollutant in tpy both before and after the modification (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source belongs to one of the source categories listed in part 51, Appendix S, paragraph II.A.4(iii) or §52.21(b)(1)(iii) of this chapter, as applicable), with supporting documentation. For emissions units that do not have an allowable emissions limit prior to the modification, report the potential to emit. In your calculation of annual allowable emissions for an emissions unit after the modification, you must account for any proposed emission limitations.

(vi) The following information to the extent it is needed to determine or regulate emissions: Fuels, fuel use, raw materials, production rates and operating schedules.

(vii) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities.

(viii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.

(ix) For each emission point associated with an affected emissions unit, provide stack or vent dimensions and flow information.

(3) Optional permit application content. At your option, you may propose emission limitations for each affected emissions unit, which may include pollution prevention techniques, air pollution control devices, design standards, equipment standards, work practices, operational standards or a combination thereof. You may include an explanation of why you believe the proposed emission limitations to be appropriate.

(b) How is my permit application determined to be complete? Paragraphs (b)(1) through (3) of this section govern the completeness review of your permit application.

(1) An application for a permit under this program will be reviewed by the reviewing authority within 45 days of its receipt (60 days for minor modifications at major sources) to determine whether the application contains all the information necessary for processing the application.

(2) If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 45 days of receipt of the permit application by the reviewing authority (60 days for minor modifications at major sources). If you do not receive a request for additional information or a notice of complete application postmarked within 45 days of receipt of the permit application by the reviewing authority (60 days for minor modifications at major sources), your application will be deemed complete.

(3) If, while processing an application that has been determined to be complete, the reviewing authority determines that additional information is necessary to evaluate or take final action on the application, it may request additional information from you and require your responses within a reasonable time period.

(4) Any permit application will be granted or denied no later than 135 days (1 year for minor modifications at major sources) after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.

(c) How will the reviewing authority determine the emission limitations that will be required in my permit? After determining that your application is complete, the reviewing authority will conduct a case-by-case control technology review to determine the appropriate level of control, if any, necessary to assure that NAAQS are achieved, as well as the corresponding emission limitations for the affected emissions units at your source.

(1) In carrying out this case-by-case control technology review, the reviewing authority will consider the following factors:

(i) Local air quality conditions.

(ii) Typical control technology or other emissions reduction measures used by similar sources in surrounding areas.

(iii) Anticipated economic growth in the area.

(iv) Cost-effective emission reduction alternatives.

(2) The reviewing authority must require a numerical limit on the quantity, rate or concentration of emissions for each regulated NSR pollutant emitted by each affected emissions unit at your source for which such a limit is technically and economically feasible.

(3) The emission limitations required by the reviewing authority may consist of numerical limits on the quantity, rate or concentration of emissions; pollution prevention techniques; design standards; equipment standards; work practices; operational standards; requirements relating to the operation or maintenance of the source or any combination thereof.

(4) The emission limitations required by the reviewing authority must assure that each affected emissions unit will comply with all requirements of parts 60, 61 and 63 of this chapter as well as any FIPs or TIPs that apply to the unit.

(5) The emission limitations required by the reviewing authority must not be affected in a manner by so much of a stack's height as exceeds good engineering practice or by any other dispersion technique, except as provided in §51.118(b) of this chapter. If the reviewing authority proposes to issue a permit to a source based on a good engineering practice stack height that exceeds the height allowed by §51.100(ii)(1) or (2) of this chapter, it must notify the public of the availability of the demonstration study and must provide opportunity for a public hearing according to the requirements of §49.157 for the draft permit.

(d) When may the reviewing authority require an air quality impacts analysis (AQIA)? Paragraphs (d)(1) through (3) of this section govern AQIA requirements under this program.

(1) If the reviewing authority has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD increment violation, it may require you to conduct and submit an AQIA.

(2) If required, you must conduct the AQIA using the dispersion models and procedures of part 51, Appendix W of this chapter.

(3) If the AQIA reveals that construction of your source or modification would cause or contribute to a NAAQS or PSD increment violation, the reviewing authority must require you to reduce or mitigate such impacts before it can issue you a permit.

§49.155   Permit requirements.

This section applies to your permit if you are subject to this program under §49.153(a) for construction of a new minor source, synthetic minor source or a modification at an existing source.

(a) What information must my permit include? Your permit must include the requirements in paragraphs (a)(1) through (7) of this section.

(1) General requirements. The permit must include the following elements:

(i) The effective date of the permit and the date by which you must commence construction in order for your permit to remain valid (i.e., 18 months after the permit effective date).

(ii) The emissions units subject to the permit and their associated emission limitations.

(iii) Monitoring, recordkeeping, reporting and testing requirements to assure compliance with the emission limitations.

(2) Emission limitations. The permit must include the emission limitations determined by the reviewing authority under §49.154(c) for each affected emissions unit. In addition, the permit must include an annual allowable emissions limit for each affected emissions unit and for each regulated NSR pollutant emitted by the unit if the unit is issued an enforceable emission limitation lower than the potential to emit of that unit.

(3) Monitoring requirements. The permit must include monitoring requirements sufficient to assure compliance with the emission limitations and annual allowable emissions limits that apply to the affected emissions units at your source. The reviewing authority may require, as appropriate, any of the requirements in paragraphs (a)(3)(i) and (ii) of this section.

(i) Any emissions monitoring, including analysis procedures, test methods, periodic testing, instrumental monitoring and non-instrumental monitoring. Such monitoring requirements shall assure use of test methods, units, averaging periods and other statistical conventions consistent with the required emission limitations.

(ii) As necessary, requirements concerning the use, maintenance and installation of monitoring equipment or methods.

(4) Recordkeeping requirements. The permit must include recordkeeping requirements sufficient to assure compliance with the emission limitations and monitoring requirements and it must require the elements in paragraphs (a)(4)(i) and (ii) of this section.

(i) Records of required monitoring information that include the information in paragraphs (a)(4)(i)(A) through (F) of this section, as appropriate.

(A) The location, date and time of sampling or measurements.

(B) The date(s) analyses were performed.

(C) The company or entity that performed the analyses.

(D) The analytical techniques or methods used.

(E) The results of such analyses.

(F) The operating conditions existing at the time of sampling or measurement.

(ii) Retention for 5 years of records of all required monitoring data and support information for the monitoring sample, measurement, report or application. Support information may include all calibration and maintenance records, all original strip-chart recordings or digital records for continuous monitoring instrumentation and copies of all reports required by the permit.

(5) Reporting requirements. The permit must include the reporting requirements in paragraphs (a)(5)(i) and (ii) of this section.

(i) Annual submittal of reports of monitoring required under paragraph (a)(3) of this section, including the type and frequency of monitoring and a summary of results obtained by monitoring.

(ii) Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations and any corrective actions or preventive measures taken. Within the permit, the reviewing authority must define “prompt” in relation to the degree and type of deviation likely to occur and the applicable emission limitations.

(6) Severability clause. The permit must include a severability clause to ensure the continued validity of the other portions of the permit in the event of a challenge to a portion of the permit.

(7) Additional provisions. The permit must also contain provisions stating the requirements in paragraphs (a)(7)(i) through (vii) of this section.

(i) You, as the permittee, must comply with all conditions of your permit, including emission limitations that apply to the affected emissions units at your source. Noncompliance with any permit term or condition is a violation of the permit and may constitute a violation of the Act and is grounds for enforcement action and for a permit termination or revocation.

(ii) Your permitted source must not cause or contribute to a NAAQS violation or in an attainment area, must not cause or contribute to a PSD increment violation.

(iii) It is not a defense for you, as the permittee, in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

(iv) The permit may be revised, reopened, revoked and reissued or terminated for cause. The filing of a request by you, as the permittee, for a permit revision, revocation and re-issuance or termination or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.

(v) The permit does not convey any property rights of any sort or any exclusive privilege.

(vi) You, as the permittee, shall furnish to the reviewing authority, within a reasonable time, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing or terminating the permit or to determine compliance with the permit. For any such information claimed to be confidential, you must also submit a claim of confidentiality in accordance with part 2, subpart B of this chapter.

(vii) Upon presentation of proper credentials, you, as the permittee, must allow a representative of the reviewing authority to:

(A) Enter upon your premises where a source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit;

(B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit;

(C) Inspect, during normal business hours or while the source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit;

(D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit or other applicable requirements and

(E) Record any inspection by use of written, electronic, magnetic and photographic media.

(b) Can my permit become invalid? Your permit becomes invalid if you do not commence construction within 18 months after the effective date of your permit, if you discontinue construction for a period of 18 months or more or if you do not complete construction within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.

§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), §49.154(d) and §49.155, the public participation requirements in §49.157 and the requirements for final permit issuance and administrative and judicial review in §49.159.

(3) Issuance of a general permit is considered final agency action with respect to all aspects of the general permit except its applicability to an individual source. The sole issue that may be appealed after an individual source is approved to construct under a general permit (see paragraph (e) of this section) is the applicability of the general permit to that particular source.

(c) For what categories will general permits be issued? (1) The reviewing authority will determine which categories of individual emissions units, groups of similar emissions units or sources are appropriate for general permits in its area.

(2) General permits will be issued at the discretion of the reviewing authority.

(d) What should the general permit contain? The general permit must contain the permit elements listed in §49.155(a). In addition, the general permit must contain the information listed in paragraphs (d)(1) and (2) of this section. The reviewing authority may specify additional general permit terms and conditions.

(1) Identification of the specific category of emissions units or sources to which the general permit applies, including any criteria that your emissions units or source must meet to be eligible for coverage under the general permit.

(2) Information required to request coverage under a general permit including, but not limited to, the following:

(i) The name and mailing address of the reviewing authority to whom you must submit your application.

(ii) The procedure to obtain any standard application forms that the reviewing authority may have developed.

(iii) The information that you must provide to the reviewing authority in your application to demonstrate that you are eligible for coverage under the general permit.

(iv) Other application requirements deemed necessary by the reviewing authority.

(e) What are the procedures for obtaining coverage for a source under a general permit? (1) If your source qualifies for a general permit, you may 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) of this section, your request will be deemed complete.

(6) The reviewing authority will send you a letter notifying you of the approval or denial of your request for coverage under a general permit. This letter is a final action for purposes of judicial review (see 40 CFR 49.159) only for the issue of whether your source qualifies for coverage under the general permit. If your request for coverage under a general permit is approved, you must post, prominently, a copy of the letter granting such request at the site where your source is locating.

(7) If the reviewing authority has sent a letter to you approving your request for coverage under a general permit, you must comply with all conditions and terms of the general permit. You will be subject to enforcement action for failure to obtain a preconstruction permit if you construct the emissions unit(s) or source with general permit approval and your source is later determined not to qualify for the conditions and terms of the general permit.

(8) Your permit becomes invalid if you do not commence construction within 18 months after the effective date of your request for coverage under a general permit, if you discontinue construction for a period of 18 months or more or if you do not complete construction within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.

(9) Any source eligible to request coverage under a general permit may request to be excluded from the general permit by applying for a permit under §49.154.

(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) and (d) and 49.155.

(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).

(B) Petroleum dry cleaning facilities (§49.163).

(C) Gasoline dispensing facilities (§49.164).

(5) What should the permit by rule contain? A source category permit by rule must include the permit elements listed in §49.155(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.

(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)((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 if they prefer not to be subject to the permit by rule's terms and conditions.

[76 FR 38788, July 1, 2011, as amended at 80 FR 25090, May 1, 2015]

§49.157   Public participation requirements.

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

(a) What permit information will be publicly available? With the exception of any confidential information as defined in part 2, subpart B of this chapter, the reviewing authority must make available for public inspection the documents listed in paragraphs (a)(1) through (6) of this section. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the source, such as the Tribal environmental office or a local library.

(1) All information submitted as part of your application for a permit.

(2) Any additional information requested by the reviewing authority.

(3) The reviewing authority's analysis of the application and any additional information you submitted, including (for preconstruction permits and the initial issuance of general permits) the control technology review.

(4) For minor source permits and the initial issuance of general permits, the reviewing authority's analysis of the effect of the construction of the minor source or modification on ambient air quality.

(5) For coverage of a particular source under a general permit, the reviewing authority's analysis of whether your particular emissions unit or source is within the category of emissions units or sources to which the general permit applies, including whether your emissions unit or source meets any criteria to be eligible for coverage under the general permit.

(6) A copy of the draft permit or the decision to deny the permit with the justification for denial.

(b) How will the public be notified and participate? (1) Before issuing a permit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs (b)(1)(i) and (ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit.

(i) The reviewing authority must mail a copy of the notice to you, the appropriate Indian governing body and the Tribal, state and local air pollution authorities having jurisdiction adjacent to the area of Indian country potentially impacted by the air pollution source.

(ii) Depending on such factors as the nature and size of your source, local air quality considerations and the characteristics of the population in the affected area (e.g., subsistence hunting and fishing or other seasonal cultural practices), the reviewing authority must use appropriate means of notification, such as those listed in paragraphs (b)(1)(ii)(A) through (E) of this section.

(A) The reviewing authority may mail or e-mail a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.

(B) The reviewing authority may post the notice on its Web site.

(C) The reviewing authority may publish the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a Tribal newspaper or newsletter.

(D) The reviewing authority may provide copies of the notice for posting at one or more locations in the area affected by the source, such as post offices, trading posts, libraries, Tribal environmental offices, community centers or other gathering places in the community.

(E) The reviewing authority may employ other means of notification as appropriate.

(2) The notice required pursuant to paragraph (b)(1) of this section must include the following information at a minimum:

(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.

(ii) The name and address of the reviewing authority processing the permit action;

(iii) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the regulated NSR pollutants to be emitted, the affected emissions units and the emission limitations for each affected emissions unit;

(iv) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the emissions change involved in the permit action;

(v) For synthetic minor source permits, a description of the proposed limitation and its effect on the potential to emit of the source;

(vi) Instructions for requesting a public hearing;

(vii) The name, address and telephone number of a contact person in the reviewing authority's office from whom additional information may be obtained;

(viii) Locations and times of availability of the information (listed in paragraph (a) of this section) for public inspection and

(ix) A statement that any person may submit written comments, a written request for a public hearing or both, on the draft permit action. The reviewing authority must provide a period of at least 30 days from the date of the public notice for comments and for requests for a public hearing.

(c) How will the public comment and will there be a public hearing? (1) Any person may submit written comments on the draft permit and may request a public hearing. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process and such records must be available to the public.

(2) The reviewing authority must extend the public comment period under paragraph (b) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.

(3) A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised at the hearing.

(4) The reviewing authority must hold a hearing whenever there is, on the basis of requests, a significant degree of public interest in a draft permit. The reviewing authority may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing.

(5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.

§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 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 and 49.155, except for the permit application content and permit application completeness provisions included in §49.154(a)(2) and §49.154(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) 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) 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.

(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.

(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 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 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) and (c)(4)(i) through (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 of this chapter, subject to the provisions in paragraphs (a) and (c)(4)(i) through (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) and (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) and (c)(4)(i) through (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)(iii) or (c)(3) (as applicable) and any requested additional information as required in paragraph (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 and 49.155 and all other provisions under this section.

(iii) Should you fail to submit your application as required in paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) or any requested additional information as required in paragraph (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 permit will not contain enforceable emissions limitations and instead will include applicable major source requirements.

[76 FR 38788, July 1, 2011, as amended at 79 FR 31044, May 30, 2014]

§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) 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) 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) 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) 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.

(2) An appeal under paragraph (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).

(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) 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.

[76 FR 38788, July 1, 2011, as amended at 85 FR 51656, Aug. 21, 2020]

§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) and (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—“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).

(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).

(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)), 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) 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 (where the requirements under paragraph (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) of this section.

(iv) Minor sources complying with §§49.101 through 49.105 for the oil and natural gas production and natural gas processing segments of the oil and natural gas sector, as defined in §49.102, must submit, at least 30 days prior to beginning construction, the Part 1 Registration Form containing the information in paragraph (c)(2) of this section. The Part 2 Registration Form, including emissions information, must be submitted within 60 days after the startup of production as defined in §49.152(d). The source must determine the potential for emissions within 30 days after startup of production.

The combination of the Part 1 and Part 2 Registration Forms submittals satisfies the requirements in paragraph (c)(2) of this section. These forms are submitted to the EPA instead of the application form required in paragraph (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)).

(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, Appendix S, paragraph II.A.4(iii) or §52.21(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). 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) or (ii) of this section, as applicable. In either case, the permit application for the new location satisfies the report of relocation requirement.

(i) Where the relocation results in a change in the reviewing authority for your source, you must submit a report of relocation to the current reviewing authority and a permit application to the new reviewing authority.

(ii) Where the reviewing authority remains the same, a report of relocation is fulfilled through the permit application for the new location.

(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.

[76 FR 38788, July 1, 2011, as amended at 79 FR 31045, May 30, 2014; 79 FR 34239, June 16, 2014; 81 FR 9113, Feb. 24, 2016; 81 FR 35981, June 3, 2016; 85 FR 15733, Mar. 19, 2020]

§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 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) of this section. If the Tribal agency has been granted such delegation, it will have the authority to assist EPA according to paragraph (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) 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) 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 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) 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) 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) 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.

§49.162   Air quality permit by rule for new or modified true minor source auto body repair and miscellaneous surface coating operations in Indian country.

(a) Abbreviations and acronyms:

CAA or the Act   Federal Clean Air Act

cc   cubic centimeters

CFR   Code of Federal Regulations

CO   Carbon Monoxide

EPA   United States Environmental Protection Agency

g/L   grams per liter

lb/gal   pounds per gallon

MSDS   Material Safety Data Sheet

NAAQS   National Ambient Air Quality Standards

NOX   Oxides of Nitrogen

NSR   New Source Review

PSD   Prevention of Significant Deterioration

VOC   Volatile Organic Compounds

(b) Definitions for the purposes of this permit by rule—(1) Adhesion promoter means a coating, which is labeled and formulated to be applied to uncoated plastic surfaces to facilitate bonding of subsequent coatings, and on which, a subsequent coating is applied.

(2) Airless and air-assisted airless spray mean any paint spray technology that relies solely on the fluid pressure of the paint to create an atomized paint spray pattern and does not apply any atomizing compressed air to the paint before it leaves the paint nozzle. Air-assisted airless spray uses compressed air to shape and distribute the fan of atomized paint, but still uses fluid pressure to create the atomized paint.

(3) Cause means with respect to the reviewing authority's ability to terminate a permitted source's coverage under a permit by rule that:

(i) The permittee is not in compliance with the provisions of this permit by rule;

(ii) The reviewing authority determines that the emissions resulting from the construction or modification of the permitted source significantly contribute to NAAQS violations, which are not adequately addressed by the requirements in this permit by rule;

(iii) The reviewing authority has reason to believe that the permittee obtained coverage under the permit by rule by fraud or misrepresentation; or

(iv) The permittee failed to disclose a material fact required by the Notification of Coverage or the requirements applicable to the permitted source of which the applicant had or should have had knowledge at the time the permittee submitted the Notification of Coverage.

(4) Clear coating means any coating that contains no pigments and is labeled and formulated for application over a color coating or clear coating.

(5) Cold cleaning solvent makeup means the gallons of gross cold cleaning solvent usage minus the gallons of solvent disposed of as waste solvent.

(6) Construction means any physical change or change in the method of operation including fabrication, erection, installation, demolition, or modification of an affected emissions unit that would result in a change of emissions.

(7) Color coating means any pigmented coating, excluding adhesion promoters, primers, and multi-color coatings, that requires a subsequent clear coating and which is applied over a primer or adhesion promoter. Color coatings include metallic/iridescent color coatings.

(8) Electrostatic application means any method of coating application where an electrostatic attraction is created between the part to be coated and the atomized paint particles.

(9) Freeboard area means the air space in a batch-loaded cold cleaner that extends from the liquid surface to the top of the tank.

(10) Freeboard height means the distance from the top of the solvent to the top of the tank for batch-loaded cold cleaners.

(11) Freeboard ratio means the ratio of the solvent cleaning machine freeboard height to the smaller interior dimension (length, width, or diameter) of the solvent cleaning machine.

(12) Halogenated Hazardous Air Pollutant (HAP) solvent means methylene chloride (CAS No. 75-09-2), perchloroethylene (CAS No. 127-18-4), trichloroethylene (CAS No. 79-01-6), 1,1,1-trichloroethane (CAS No. 71-55-6), carbon tetrachloride (CAS No. 56-23-5), and/or chloroform (CAS No. 67-66-3).

(13) High-volume, low-pressure (HVLP) spray equipment means spray equipment that is permanently labeled as such and used to apply any coating by means of a spray gun which is designed and operated between 0.1 and 10 pounds per square inch gauge (psig) air atomizing pressure measured dynamically at the center of the air cap and at the air horns.

(14) Liquid leak means a VOC-containing liquid leak from the degreaser at a rate of three drops per minute or more or any visible liquid mist.

(15) Multi-color coating means any coating that exhibits more than one color in the dried film after a single application, is packaged in a single container, and hides surface defects on areas of heavy use, and which is applied over a primer or adhesion promoter.

(16) Notification of Coverage means the permit notification that contains all the information required in the standard notification form for this permit by rule.

(17) One-component coating means a coating that is ready for application as it comes out of its container to form an acceptable dry film. A thinner necessary to reduce the viscosity is not considered a component.

(18) Permittee means the owner or operator of a permitted source.

(19) Permitted source means each auto body repair and miscellaneous surface coating operation for which a source submits a complete Notification of Coverage.

(20) Pretreatment coating means any coating that contains a minimum of one-half (0.5) percent acid by weight and not more than 16 percent solids by weight necessary to provide surface etching and is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and adhesion.

(21) Primer means any coating, which is labeled and formulated for application to a substrate to provide:

(i) A bond between the substrate and subsequent coats;

(ii) Corrosion resistance;

(iii) A smooth substrate surface; or

(iv) Resistance to penetration of subsequent coats, and on which a subsequent coating is applied.

Primers may be pigmented.

(22) Responsible official means one of the following:

(i) For a corporation: A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is directly responsible for the overall operation of the permitted source.

(ii) For a partnership or sole proprietorship: A general partner or the proprietor, respectively.

(iii) For a public agency: Either a principal executive officer or ranking elected official, such as a chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(23) Single-stage coating means any pigmented automotive coating, (excluding automotive adhesion promoters, primers and multi-color coatings), specifically labeled and formulated for application without a subsequent clear coating and that are applied over an adhesion promoter, a primer, or a color coating. Single-stage coatings include single-stage metallic/iridescent coatings.

(24) Spray-applied coating operations means coatings that are applied using a hand-held device that creates an atomized mist of coating and deposits the coating on a substrate. For the purposes of this permit by rule, spray-applied coatings do not include the following materials or activities:

(i) Coatings applied from a hand-held device with a paint cup capacity that is equal to or less than 3.0 fluid ounces (89 cc).

(ii) Surface coating application using powder coating, hand-held, non-refillable aerosol containers, or non-atomizing application technology, including, but not limited to, paint brushes, rollers, hand wiping, flow coating, dip coating, electro deposition coating, web coating, coil coating, touch-up markers, or marking pens.

(iii) Thermal spray operations (also known as metalizing, flame spray, plasma arc spray, and electric arc spray, among other names) in which solid metallic or non-metallic material is heated to a molten or semi-molten state and propelled to the work piece or substrate by compressed air or other gas, where a bond is produced upon impact.

(25) Temporary protective coating means any coating which is labeled and formulated for the purpose of temporarily protecting areas from overspray or mechanical damage.

(26) Tire retread adhesive means any adhesive to be applied to the back of pre-cured tread rubber and to the casing and cushion rubber, or to be used to seal buffed tire casings to prevent oxidation while the tire is being prepared for a new tread.

(27) Truck bed liner coating means any coating, excluding color, multi-color, and single stage coatings, labeled and formulated for application to a truck bed to protect it from surface abrasion.

(28) Two-component coating means a coating requiring the addition of a separate reactive resin, commonly known as a catalyst, before application to form an acceptable dry film.

(29) Underbody coating means any coating labeled and formulated for application to wheel wells, the inside of door panels or fenders, the underside of a trunk or hood, or the underside of the motor vehicle.

(30) Uniform finish coating means any coating labeled and formulated for application to the area around a spot repair for the purpose of blending a repaired area's color or clear coat to match the appearance of an adjacent area's existing coating.

(31) Volatile organic compounds or VOC means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions. This does not include the compounds listed in 40 CFR 51.100(s)(1).

(c) Information about this permit by rule. (1) Applicability. Pursuant to the provisions of the Clean Air Act (CAA), subchapter I, part D and 40 CFR part 49, subpart C, this permit authorizes the construction or modification and the operation of the auto body repair and miscellaneous surface coating operation for which a reviewing authority receives a completed Notification of Coverage (permitted source).

(2) Eligibility. To be eligible for coverage under this permit by rule, the permitted source must qualify as a true minor source as defined in 40 CFR 49.152 and satisfied the requirements in 40 CFR 49.156(f)(6)(iii).

(3) Notification of Coverage. Requirements for submitting a Notification of Coverage are contained in paragraph (d)(1) of this section. The information contained in each permitted source's Notification of Coverage is hereby enforceable under this permit by rule.

(4) Termination. Paragraph (d)(6) of this section addresses a reviewing authority's ability to revise, revoke and reissue, or terminate coverage under this permit by rule. It also addresses the reviewing authority's ability to terminate an individual permitted source's coverage under this permit by rule.

(5) Definitions. The terms used herein shall have the meaning as defined in 40 CFR 49.152, unless otherwise defined in paragraph (b) of this section. If a term is not defined, it shall be interpreted in accordance with normal business use.

(d) Permit by rule terms and conditions. The following applies to each permittee and permitted source with respect to only the affected emissions units and any associated air pollution control technologies in that permitted source's Notification of Coverage.

(1) General provisions—(i) Obtaining coverage under this permit by rule. To obtain coverage under this permit by rule, an applicant must submit a completed Notification of Coverage to the appropriate reviewing authority for the area in which the permitted source is or will be located (the Notification of Coverage Form can be found at: http://www.epa.gov/air/tribal/tribalnsr.html). Table 2 contains a list of reviewing authorities and their area of coverage. You must also submit a copy of the Notification of Coverage to the Indian governing body for any area in which the permitted source will operate in Indian country.

(ii) Construction and operation. The permittee shall construct or modify and shall operate the affected emissions units and any associated air pollution control technologies in compliance with this permit by rule and all other applicable federal air quality regulations; and in a manner consistent with representations made by the permittee in the Notification of Coverage.

(iii) Location. This permit by rule only authorizes the permittee to construct or modify and to operate the permitted source in the location listed in the Notification of Coverage for that permitted source.

(iv) Liability. This permit by rule does not release the permittee from any liability for compliance with other applicable federal and tribal environmental laws and regulations, including the CAA.

(v) Severability. The provisions of this permit by rule are severable. If any portion of this permit by rule is held invalid, the remaining terms and conditions of this permit by rule shall remain valid and in force.

(vi) Compliance. The permittee must comply with all provisions of this permit by rule, including emission limitations that apply to the affected emissions units at the permitted source. Noncompliance with any permit by rule provision is a violation of the permit by rule and may constitute a violation of the CAA; is grounds for an enforcement action; and is grounds for the reviewing authority to revoke and terminate the permitted source's coverage under this permit by rule.

(vii) National Ambient Air Quality Standards (NAAQS)/Prevention of Significant Deterioration (PSD) Protection. The 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.

(viii) Unavailable defense. It is not a defense for 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 provisions of this permit by rule.

(ix) Property rights. This permit by rule does not convey any property rights of any sort or any exclusive privilege.

(x) Information requests. You, as the permittee, shall furnish to the reviewing authority, within 30 days unless another timeframe is specified by the EPA, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing, or terminating coverage under the permit by rule or to determine compliance with the permit by rule. For any such information claimed to be confidential, the permittee must submit a claim of confidentiality in accordance with 40 CFR part 2, subpart B.

(xi) Inspection and entry. Upon presentation of proper credentials, the permittee must allow a representative of the reviewing authority to:

(A) Enter upon the premises where a permitted source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit by rule;

(B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit by rule;

(C) Inspect, during normal business hours or while the permitted source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit by rule;

(D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit by rule or other applicable requirements; and

(E) Record any inspection by use of written, electronic, magnetic and photographic media.

(xii) Posting of coverage. The most current Notification of Coverage for the permitted source must be posted prominently at the facility, and each affected emissions unit and any associated air pollution control technology must be labeled with the identification number listed in the Notification of Coverage for that permitted source.

(xiii) Duty to obtain source-specific permit. If the reviewing authority intends to terminate a permitted source's coverage under this permit by rule for cause as provided in §49.162(d)(6), then the permittee shall apply for and obtain a source-specific permit as required by the reviewing authority.

(xiv) Credible evidence. For the purpose of establishing whether the permittee violated or is in violation of any requirement of this permit by rule, nothing shall preclude the use, including the exclusive use, of any credible evidence or information relevant to whether a permitted source would have been in compliance with applicable requirements if the permittee had performed the appropriate performance or compliance test or procedure.

(2) Emission limitations and standards. (i) The permittee shall install, maintain, and operate each affected emissions unit, including any associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions of NSR regulated pollutants and considering the manufacturer's recommended operating procedures at all times, including periods of startup, shutdown, maintenance and malfunction. The reviewing authority will determine whether the permittee is using acceptable operating and maintenance procedures based on information available to the reviewing authority which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the permitted source.

(ii) The permittee shall not use volatile organic compound (VOC) containing materials (e.g., coatings, thinners, and clean-up solvents) in excess of the following amounts (solvent used in a cold cleaning solvent degreaser does not count toward compliance with this limit):

(A) 5,000 gallons per year based on a 12-month rolling total for facilities located in ozone attainment, unclassifiable or attainment/unclassifiable areas; and

(B) 900 gallons per year based on a 12-month rolling total for facilities located in ozone nonattainment areas.

(iii) Total annual cold cleaning solvent makeup shall not exceed 500 gallons in any 12-month period.

(iv) The total combined heat input capacity of all combustion units (such as space heaters or ovens) shall not exceed 10 MMBtu/hr. The combustion units shall only burn natural gas, propane, or butane.

(v) Each combustion unit rated at 2.0 MMBtu/hr or greater located in a serious, severe, or extreme ozone nonattainment area shall meet the following requirements:

(A) NOX emissions shall not exceed 30 ppmdv at 3 percent oxygen or 0.011 lb/MMBtu based on a 15-minute average.

(B) CO emissions shall not exceed 400 ppmdv at 3 percent oxygen or 0.30 lb/MMBtu based on a 15-minute average.

(vi) The capacity of any volatile liquid storage tank shall not exceed 19,812 gallons.

(vii) Except as specified in paragraph (d)(2)(xv) of this section, the VOC content of coatings, as applied, shall not exceed 8.34 pounds of VOC per gallon (999.4 grams of VOC per liter).

(viii) All painters must have certification that they have completed training in the proper spray application of surface coatings and the proper setup and maintenance of spray equipment. The minimum requirements for training and certification are described in paragraph (f) of this section. The spray application of surface coatings by persons who are not certified as having completed the training described in paragraph (f) of this section is prohibited. This condition does not apply to the students of an accredited surface coating training program who are under the direct supervision of an instructor who meets the requirements of this condition.

(ix) All spray-applied coating operations must be applied in a spray booth, preparation station, or mobile enclosure that meets the following standards:

(A) All spray booths, preparation stations, and mobile enclosures must be equipped with an exhaust filter certified by the manufacturer to achieve at least 98 percent capture of paint overspray. The procedure used to demonstrate filter efficiency must be consistent with the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Method 52.1, “Gravimetric and Dust-Spot Procedures for Testing Air-Cleaning Devices Used in General Ventilation for Removing Particulate Matter, June 4, 1992.” The test coating for measuring filter efficiency shall be a high solids bake enamel delivered at a rate of at least 135 grams per minute from a conventional (non-HVLP) air-atomized spray gun operating at 40 pounds per square inch (psi) air pressure; the air flow rate across the filter shall be 150 feet per minute. Owners and operators may use published filter efficiency data provided by filter vendors to demonstrate compliance with this requirement and are not required to perform this measurement. The requirements of this paragraph do not apply to water wash spray booths that are operated and maintained according to the manufacturer's specifications.

(B) Spray booths and preparation stations used to refinish complete motor vehicles or mobile equipment must be fully enclosed with a full roof and four complete walls or complete side curtains, and must be ventilated at negative pressure so that air is drawn into any openings in the booth walls or preparation station curtains. However, if a spray booth is fully enclosed and has seals on all doors and other openings and has an automatic pressure balancing system, it may be operated at up to, but not more than, 0.05 inches water gauge positive pressure.

(C) Spray booths and preparation stations that are used to coat miscellaneous parts and products or vehicle subassemblies must have a full roof, at least three complete walls or complete side curtains, and must be ventilated so that air is drawn into the booth. The walls and roof of a booth may have openings, if needed, to allow for conveyors and parts to pass through the booth during the coating process.

(D) Mobile ventilated enclosures within the site that are used to perform spot repairs must enclose and, if necessary, seal against the surface around the area being coated such that paint overspray is retained within the enclosure and directed to a filter to capture paint overspray.

(E) The exhaust filters of spray booths shall be equipped with pressure gauges that indicate, in inches of water, the static pressure differential across the exhaust filters.

(F) Each spray booth located in a serious, severe, or extreme ozone nonattainment area that uses greater than 4 gallons per day of VOC-containing material shall install add-on controls (with greater than or equal to 90 percent collection efficiency and greater than or equal to 95 percent destruction efficiency) or use material with less than 5 percent VOC by weight or low VOC materials that result in an equivalent emission reduction.

(x) Except for serious, severe, and extreme ozone nonattainment areas, all spray-applied coating operations must be applied with a high volume, low pressure (HVLP) spray gun, electrostatic application, airless spray gun, or air-assisted airless spray gun. An equivalent spray technology may be used if it that has been demonstrated by the spray gun manufacturer to achieve a transfer efficiency comparable to that of an HVLP spray gun and for which the spray gun manufacturer has obtained written approval from the U.S. Environmental Protection Agency (EPA). The requirements of this condition do not apply to spray guns with a cup capacity less than 3.0 fluid ounces (89 cc).

(xi) In serious, severe, and extreme ozone nonattainment areas, all spray-applied coating operations must be applied with an HVLP spray gun, low volume low pressure (LVLP) spray gun, or air brush spray operation. An equivalent spray technology may be used if it has been demonstrated by the spray gun manufacturer to achieve a transfer efficiency comparable to that of an HVLP spray gun and for which the spray gun manufacturer has obtained written approval from the EPA.

(xii) All paint spray gun cleaning must be done so that an atomized mist or spray of gun cleaning solvent and paint residue is not created outside of a container that collects used gun cleaning solvent. Spray gun cleaning may be done with, for example, hand cleaning of parts of the disassembled gun in a container of solvent, by flushing solvent through the gun without atomizing the solvent and paint residue, or by using a fully enclosed spray gun washer. A combination of non-atomizing methods may also be used.

(xiii) All VOC-containing material (e.g., coatings, thinners, and clean-up solvents) shall be stored in closed containers.

(xiv) All waste materials containing VOC (e.g., soiled rags) shall be stored in sealed containers until properly disposed.

(xv) Each permitted source located in a serious, severe, or extreme ozone nonattainment area, shall not apply a coating that has VOC content in excess of the limits listed in the Table 1 below. Compliance with the VOC limits shall be based on VOC content, including any VOC material added to the original coating supplied by the manufacturer, less water.

Table 1—VOC Content Limits

Type of coatingVOC content limits
(grams/liter)
VOC content limits
(lb/gallon)
Adhesion Promoter5404.5
Clear Coating2502.1
Color Coating4203.5
Multi-Color Coating6805.7
Pretreatment6605.5
Primer2502.1
Single-Stage Coating3402.8
Temporary Protective Coating600.5
Truck Bed Liner Coating3102.6
Underbody Coating4303.6
Uniform Finishing Coating5404.5
One or Two-Component Coatings for Plastics1201.0
Tire Retread Adhesive1000.8
Any other coating type or adhesive2502.1

(xvi) For each batch-loaded cold cleaner degreaser, the permittee shall comply with the requirements of paragraph (e) of this section.

(xvii) Each permitted source located in a serious, extreme, or severe ozone nonattainment area, shall use cleaning materials in the batch-loaded cold cleaner degreaser that have a VOC content of less than 25 grams per liter.

(3) Monitoring and testing requirements—(i) Initial performance tests. (A) Within 60 days after achieving the maximum production rate at which the permitted source will operate the affected emissions unit(s), but not later than 180 days after the first day of operation under the permit by rule, the permittee shall perform an initial performance test to verify compliance with the emission limitations in paragraphs (d)(2)(v) and (d)(2)(ix)(F) of this section (including capture efficiency requirements), if applicable. Performance tests shall be performed:

(1) According to a test plan submitted at least 30 days in advance of the test date to the reviewing authority;

(2) While the permitted source is operating under typical operating conditions;

(3) Using test methods from 40 CFR part 60, appendix A. In lieu of the test methods from 40 CFR part 60, appendix A, measurements for NOX and CO may be taken using portable analyzers according to ASTM D6522-00, as incorporated by reference in 40 CFR 63.14(b)(27);

(4) Using Method 5 with a sample volume of at least 31.8 dscf to determine particulate matter concentration; and

(5) Simultaneously for CO and NOX whenever either one needs to be tested.

(B) Compliance with each limit shall be demonstrated by averaging the results of at least three test runs of at least 1 hour duration each, unless the permittee can demonstrate to the satisfaction of the reviewing authority that the result of one of the test runs should be discarded. The test results the permittee submits must contain at least two test runs.

(ii) The permitted source shall demonstrate compliance with the paint overspray capture efficiency requirements of paragraph (d)(2)(ix)(A) of this section using published filter efficiency data provided by filter vendors, as described in paragraph (d)(2)(ix)(A) of this section.

(iii) The permitted source shall install, operate, and maintain an exhaust filter pressure gauge on each spray booth and monitor (in inches of water) the static pressure differential across the exhaust filter at least once per calendar month while the equipment is operating. As necessary, the exhaust filter shall be replaced according to the manufacturer's specifications.

(iv) The exterior of each spray booth, preparation station, or mobile enclosure shall be inspected at least once per calendar month for evidence of overspray. If evidence of overspray is apparent, the permittee shall take corrective action to eliminate overspray from the exterior of each spray booth, preparation station, or mobile enclosure.

(v) Prior to each use, each cold solvent cleaning degreaser shall be inspected for liquid leaks, visible tears, or cracks.

(4) Recordkeeping requirements. (i) The permittee shall maintain all records required to be kept by this permit by rule onsite for at least 5 years from the date of origin of the record, unless otherwise stated.

(ii) The Notification of Coverage and all documentation supporting the notification shall be maintained by the permittee for the duration of time the affected emissions unit(s) is covered under this permit by rule.

(iii) The permittee shall keep records of the VOC-containing materials (including coatings, thinners, and clean-up solvents) as follows:

(A) The name and Material Safety Data Sheet (MSDS) for each VOC-containing material used onsite; and

(B) The gallons of each VOC-containing material used each month and the resulting 12-month rolling total of VOC-containing material used. The 12-month rolling total is defined as the sum of the VOC material used during the current month and the VOC material used for the previous 11 months.

(C) For each permitted source located in a serious, severe, or extreme ozone nonattainment area not complying with the control requirements in paragraph (d)(2)(ix)(F) of this section (add-on controls or low VOC-containing material), the combined daily gallons of VOC-containing material used in all spray booths.

(iv) The permittee shall keep records of the VOC content (g/L or lb/gal) for each coating material used onsite.

(v) For each spray booth, preparation station, and mobile enclosure, the permittee shall maintain records of:

(A) The filter efficiency of the exhaust material;

(B) The monthly exhaust filter pressure gauge readings specified in §49.162(d)(3)(iii);

(C) The date when each exhaust filter is replaced;

(D) Any corrective actions taken to reduce overspray; and

(E) The results of any corrective actions taken.

(vi) The permittee shall maintain documentation from the spray gun manufacturer that each spray gun meets the requirements of paragraphs (d)(2)(x) and (xi) of this section, as applicable. For a spray gray that uses equivalent technology, documentation that the spray gun has been determined by the EPA to achieve a transfer efficiency equivalent to that of an HVLP spray gun is required.

(vii) For each cold cleaning solvent degreaser, the permittee shall:

(A) Maintain records of owner's manuals, or if not available, written maintenance and operating procedures; and

(B) Maintain a log of any actions taken to repair leaks, tears or cracks and the results of the corrective action taken.

(viii) The permittee shall maintain records of the MSDS for each solvent used in a solvent degreaser.

(ix) The permittee shall maintain records of the gallons of cold cleaning solvent makeup used each calendar month and a total of the number of gallons of cold cleaning solvent makeup used in each 12-month period.

(x) The results of each performance test conducted pursuant to paragraph (d)(3)(i) of this section shall be recorded. At a minimum, the permittee shall maintain records of:

(A) The date of each test;

(B) Each test plan;

(C) Any documentation required to approve an alternate test method;

(D) The results of each test;

(E) The name of the company or entity conducting the analysis; and

(F) Test conditions.

(5) Notification and reporting requirements—(i) Notification of construction or modification, and operations. The permittee shall submit a written or electronic notice to the reviewing authority within 30 days from when the permittee begins actual construction, and within 30 days from when the permittee begins initial operations or resumes operations after a modification.

(ii) Notification of change in ownership or operator. If the permitted source changes ownership or operator, then the new owner must submit a written or electronic notice to the reviewing authority within 90 days before or after the change in ownership is effective. In the notice, the new permittee must provide the reviewing authority a written agreement containing a specific date for transfer of ownership, and an effective date on which the new owner assumes partial and/or full coverage and liability under this permit by rule. The submittal must identify the previous owner, and update the name, street address, mailing address, contact information, and any other information about the permitted source if it would change as a result of the change of ownership. The current owner shall ensure that the permitted source remains in compliance with the permit by rule until any such transfer of ownership if effective.

(iii) Notification of closure. The permittee must submit a report of any permanent or indefinite closure to the reviewing authority in writing within 90 days after the cessation of all operations at the permitted source. The notification must identify the owner, the current location, and the last operating location of the permitted source. It is not necessary to submit a report of closure for regular, seasonal closures.

(iv) Annual reports. The permittee shall submit an annual report on or before March 15 of each calendar year to the reviewing authority. The annual report shall cover the period from January 1 to December 31 of the previous calendar year and shall include:

(A) An evaluation of the permitted source's compliance status with the requirements in paragraph (d)(2) of this section;

(B) Summaries of the required monitoring and recordkeeping above in paragraphs (d)(3) and (4) of this section; and

(C) Summaries of deviation reports submitted pursuant to paragraph (d)(5)(v) of this section.

(v) Deviation reports. The permittee shall promptly report to the reviewing authority any deviations as defined at 40 CFR 71.6(a)(3)(iii)(C) from permit by rule requirements including deviations attributable to upset conditions. (For the purposes of this permit by rule, promptly shall be defined to mean: At the time the annual report in §49.162(d)(5)(iv) is submitted.) Deviation reports shall include:

(A) The identity of the affected emissions unit(s) where the deviation occurred;

(B) The nature of the deviation;

(C) The length of time of the deviation;

(D) The probable cause of the deviation; and

(E) Any corrective actions or preventive measures taken as a result of the deviation to minimize emissions from the deviation and to prevent future deviations.

(vi) Performance test reports. The permittee shall submit a test report to the reviewing authority within 45 days after the completion of any required performance test. At a minimum, the test report shall include:

(A) A description of the affected emissions unit and sampling location(s);

(B) The time and date of each test;

(C) A summary of test results, reported in units consistent with the applicable standard;

(D) A description of the test methods and quality assurance procedures used;

(E) A summary of any deviations from the proposed test plan and justification for why the deviation(s) was necessary;

(F) The amount of fuel burned, raw material consumed, and product produced during each test run;

(G) Operating parameters of the affected emissions units and control equipment during each test run;

(H) Sample calculations of equations used to determine test results in the appropriate units; and

(I) The name of the company or entity performing the analysis.

(vii) Reporting and notification address. The permittee shall send all required reports to the reviewing authority at the mailing address specified in paragraph (g) of this section.

(viii) Signature verifying truth, accuracy and completeness. All reports required by this permit by rule shall be signed by a responsible official as to the truth, accuracy and completeness of the information. The report must state that, based on information and belief formed after reasonable inquiry, the statements and information are true, accurate, and complete. If the permittee discovers that any reports or notification submitted to the reviewing authority contain false, inaccurate, or incomplete information, the permittee shall notify the reviewing authority immediately and correct or amend the report as soon as practicable.

(6) Changes to this permit by rule—(i) Revising, reopening, revoking and reissuing, or terminating for cause. The permit by rule may be revised, reopened, revoked and reissued, or terminated for cause. The filing of a request by 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 by rule condition. This provision also applies to the documents incorporated by reference.

(ii) Terminating coverage under this permit by rule. The reviewing authority may terminate coverage under the permit by rule, and thereby terminate that permittee's authorization to construct or modify, and that permitted source's authorization to operate under this permit by rule for cause as defined in paragraph (b) of this section. The reviewing authority may provide the permittee with notice of the intent to terminate, and delay the effective date of the termination to allow the permittee to obtain a source-specific permit as required by the reviewing authority.

(iii) Permit becomes invalid. Authority to construct and operate under this permit by rule becomes invalid if the permittee does not commence construction within 18 months after the notification of coverage is received by the reviewing authority, if the permittee discontinues construction for a period of 18 months or more, or if the permittee does 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, according to 40 CFR 49.156(e)(8).

(e) Standards for batch-loaded cold cleaner degreasers. (1) Each degreaser shall be operated in accordance with the manufacturer's specifications and shall be used with tightly fitting covers that are free of cracks, holes, or other defects. In addition, the cover shall be closed at all times when the degreaser contains solvent, except during parts entry and removal or performing maintenance or monitoring that requires the removal of the cover.

(2) The solvent container shall be free of all liquid leaks. Auxiliary degreaser equipment, such as pumps, water separators, steam traps, or distillation units, shall not have any liquid leaks, visible tears, or cracks. In addition, any liquid leak, visible tear, or crack detected pursuant to the provisions of this condition shall be repaired within 48 hours, or the degreaser shall be drained of all solvent and shut down until replaced or repaired.

(3) All waste solvents shall be stored in properly identified and sealed containers. All associated pressure relief devices shall not allow liquid solvents to drain out.

(4) Solvent flow cleaning shall be done within the freeboard area, and shall be done by a liquid stream rather than a fine, atomized, or shower-type spray. Solvent flow shall be directed downward to avoid turbulence at the air-solvent interface and to prevent liquid solvent from splashing outside of the degreaser.

(5) Degreasing of porous or absorbent materials, such as cloth, leather, wood, or rope is prohibited.

(6) Workspace and ventilation fans shall not be positioned in such a way as to direct airflow near the degreaser openings.

(7) Spills during solvent transfer shall be wiped up immediately and the used wipe rags shall be stored in closed containers that are handled in accordance with paragraph (e)(3) of this section.

(8) Solvent levels shall not exceed the fill line.

(9) The parts to be cleaned shall be racked in a manner that will minimize the drag-out losses.

(10) The freeboard ratio shall be 0.75 or greater. Parts shall be drained immediately after the cleaning until at least 15 seconds have elapsed; or dripping of solvent ceases; or the parts become visibly dry. Parts with blind holes or cavities shall be tipped or rotated before being removed from a degreaser, such that the solvents in the blind holes or cavities are drained in accordance with the above requirements.

(11) Draining or filling of solvent containers shall be performed beneath the liquid solvent surface.

(12) Solvent agitation, where necessary, shall be carried out only by pump recirculation, ultrasonics, a mixer, or by air agitation. Air agitation shall be accomplished under the following conditions:

(i) The air agitation unit shall be equipped with a gauge and a device that limits air pressure into the degreaser to less than two pounds per square inch gauge;

(ii) The cover must remain closed while the air agitation system is in operation; and

(iii) Pump circulation shall be performed without causing splashing.

(13) Airless/Air-tight Cleaning System Requirements—In lieu of meeting the requirements of paragraphs (e)(1) through (12) of this section, the permittee may use an airless/air-tight batch cleaning system provided that all of the following applicable requirements are met:

(i) The equipment is operated in accordance with the manufacturer's specifications and operated with a door or other pressure sealing apparatus that is in place during all cleaning and drying cycles.

(ii) All waste solvents are stored in properly identified and sealed containers.

(iii) All associated pressure relief devices shall not allow liquid solvents to drain out.

(iv) Spills during solvent transfer shall be wiped up immediately, and the used wipe rags shall be stored in closed containers that are handled in accordance with paragraph (e)(3) of this section.

(v) The equipment is maintained in a vapor-tight, leak-free condition and any leak is a violation.

(f) Training and certification requirements for spray-applied surface coating personnel. The owner or operator of the permitted source must ensure and certify that all new and existing personnel, including contract personnel, who spray apply surface coatings are trained in the proper application of surface coatings as required by this permit by rule. The training program must include, at a minimum, the items listed in this paragraph (f). All personnel must be trained no later than 180 days after hiring.

(1) A list of all current personnel by name and job description who are required to be trained.

(2) Hands-on and classroom instruction that addresses, at a minimum, initial and refresher training in the following topics:

(i) Spray gun equipment selection, set up, and operation, including measuring coating viscosity, selecting the proper fluid tip or nozzle, and achieving the proper spray pattern, air pressure and volume, and fluid delivery rate.

(ii) Spray technique for different types of coatings to improve transfer efficiency and minimize coating usage and overspray, including maintaining the correct spray gun distance and angle to the part, using proper banding and overlap, and reducing lead and lag spraying at the beginning and end of each stroke.

(iii) Routine spray booth and filter maintenance, including filter selection and installation.

(iv) Compliance with the requirements of this Permit by Rule.

(3) A description of the methods to be used at the completion of initial or refresher training to demonstrate, document, and provide certification of successful completion of the required training. Owners and operators who can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the training required in paragraph (f)(2) of this section are not required to provide the initial training required by that same paragraph to the painter.

(4) Painter training that was completed within 5 years prior to the date training is required, and that meets the requirements specified in paragraph (f)(2) of this section satisfies this requirement and is valid for a period not to exceed 5 years after the date the training was completed.

(5) Training and certification will be valid for a period not to exceed 5 years after the date the training is completed, and all personnel must receive refresher training that meets the requirements of this §49.162(f) and be re-certified every 5 years.

(g) List of reviewing authorities and areas of coverage.

Table 2—List of Reviewing Authorities and Areas of Coverage

EPA regionAddress for notification of
coverage
Address for all other notification and reportsArea coveredPhone number
Region IEPA New England, 5 Post Office Square, Suite 100, Mail Code OEP05-2, Boston, MA 02109-3912EPA New England, 5 Post Office Square, Suite 100, Mail Code OES04-2, Boston, MA 02109-3912Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont888-372-7341 617-918-1111
Region IIChief, Air Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 25th Floor, New York, NY 10007-1866Chief, Air Compliance Branch, Division of Enforcement and Compliance Assistance, EPA Region 2, 290 Broadway, 21st Floor, New York, NY 10007-1866New Jersey, New York, Puerto Rico, and Virgin Islands877-251-4575
Region IIIOffice of Permits and Air Toxics, 3AP10, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Office of Air Enforcement and Compliance Assurance, 3AP20, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia800-438-2474 215-814-5000
Region IVChief, Air Permits Section, EPA Region 4 APTMD, 61 Forsyth Street, Atlanta, GA 30303Chief, Air & EPCRA Enforcement Branch, EPA Region 4 APTMD, 61 Forsyth Street, SW, Atlanta, GA 30303Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee800-241-1754 404-562-9000
Region VAir Permits Section, Air Programs Branch (AR-18J), EPA Region 5, 77 West Jackson Blvd, Chicago, Illinois 60604Air Enforcement and Compliance Assurance Branch (AE-17J), Air and Radiation Division, EPA Region 5, 77 West Jackson Blvd, Chicago, IL 60604Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin800-621-8431 312-353-2000
Region VIAir and Radiation Division, EPA Region 6, 1201 Elm Street, Suite 500, Mail Code 6AR, Dallas, Texas 75270-2102Compliance and Enforcement Correspondence: Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102Arkansas, Louisiana, New Mexico, Oklahoma, and Texas800-887-6063 or 214-665-2760
Region VIIChief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Chief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Iowa, Kansas, Missouri, and Nebraska800-223-0425 913-551-7003
Region VIIIU.S. Environmental Protection Agency, Region 8, Office of Partnerships and Regulatory Assistance, Tribal Air Permitting Program, 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202U.S. Environmental Protection Agency, Region 8, Office of Enforcement, Compliance & Environmental Justice, Air Toxics and Technical Enforcement Program, 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming800-227-8917 303-312-6312
Region IXChief, Permits Office (Air-3), Air Division, EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105Enforcement Division Director, Attn: Air & TRI Section (ENF-2-1), EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105American Samoa, Arizona, California, Guam, Hawaii, Navajo Nation Nevada, and Northern Mariana Islands866-EPA-9378 415-947-8000
Region XTribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Tribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Alaska, Idaho, Oregon, and Washington800-424-4372 206-553-1200

[80 FR 25091, May 1, 2015, as amended at 84 FR 44227, Aug. 23, 2019]

§49.163   Air quality permit by rule for new or modified true minor source petroleum dry cleaning facilities in Indian country.

(a) Abbreviations and acronyms:

CAA or the Act—Federal Clean Air Act

CFR—Code of Federal Regulations

EPA—United States Environmental Protection Agency

NAAQS—National Ambient Air Quality Standards

NSR—New Source Review

PSD—Prevention of Significant Deterioration

(b) Definitions for the purposes of this permit by rule—(1) Cause means with respect to the reviewing authority's ability to terminate a permitted source's coverage under a permit that:

(i) The permittee is not in compliance with the provisions of this permit by rule;

(ii) The reviewing authority determines that the emissions resulting from the construction or modification of the permitted source significantly contribute to National Ambient Air Quality Standard violations, which are not adequately addressed by the requirements in this permit by rule;

(iii) The reviewing authority has reason to believe that the permittee obtained coverage under the permit by rule by fraud or misrepresentation; or

(iv) The permittee failed to disclose a material fact required by the Notification of Coverage or the requirements applicable to the permitted source of which the applicant had or should have had knowledge at the time the permittee submitted the Notification of Coverage.

(2) Construction means any physical change or change in the method of operation including fabrication, erection, installation, demolition, or modification of an affected emissions unit that would result in a change of emissions.

(3) Notification of Coverage means the permit notification that contains all of the information required in the standard notification form for this permit by rule.

(4) Permittee means the owner or operator of a permitted source.

(5) Permitted source means each petroleum drying cleaning facility for which a source submits a complete Notification of Coverage.

(6) Responsible official means one of the following:

(i) For a corporation: A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is directly responsible for the overall operation of the permitted source.

(ii) For a partnership or sole proprietorship: A general partner or the proprietor, respectively.

(iii) For a public agency: Either a principal executive officer or ranking elected official, such as a chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(7) Solvent recovery dryer means a class of dry cleaning dyers that employs a condenser to condense and recovery solvent vapors evaporated in a closed-loop stream of heated air, together with the piping and ductwork used in the installation of this device.

(c) Information about this permit by rule—(1) Applicability. Pursuant to the provisions of the Clean Air Act (CAA), subchapter I, part D and 40 CFR part 49, subpart C, this permit by rule authorizes the construction or modification and the operation of each stationary petroleum dry cleaning facility for which a reviewing authority receives a completed Notification of Coverage (permitted source).

(2) Eligibility. To be eligible for coverage under this permit by rule, the permitted source must qualify as a true minor source as defined in 40 CFR 49.152 and satisfied the requirements in 40 CFR 49.156(f)(6)(iii).

(3) Notification of Coverage. Requirements for submitting a Notification of Coverage are contained in paragraph (d)(1) of this section. The information contained in each permitted source's Notification of Coverage is hereby enforceable under this permit by rule.

(4) Termination. Paragraph (d)(6) of this section addresses a reviewing authority's ability to revise, revoke and reissue, or terminate coverage under this permit by rule. It also addresses the reviewing authority's ability to terminate an individual permitted source's coverage under this permit by rule.

(5) Definitions. The terms used herein shall have the meaning as defined in 40 CFR 49.152, unless otherwise defined in paragraph (b) of this section. If a term is not defined, it shall be interpreted in accordance with normal business use.

(d) Permit by rule terms and conditions. The following applies to each permittee and permitted source with respect to only the affected emissions units and any associated air pollution control technologies in that permitted source's Notification of Coverage.

(1) General provisions—(i) Obtaining coverage under this permit by rule. To obtain coverage under this permit by rule, an applicant must submit a completed Notification of Coverage to the appropriate reviewing authority for the area in which the permitted source is or will be located (the Notification of Coverage Form can be found at: http://www.epa.gov/air/tribal/tribalnsr.html). Table 1 of paragraph (f) of this section contains a list of reviewing authorities and their area of coverage. You must also submit a copy of the Notification of Coverage to the Indian governing body for any area in which the permitted source will operate.

(ii) Construction and operation. The permittee shall construct or modify and shall operate the affected emissions units and any associated air pollution control technologies in compliance with this permit by rule and all other applicable federal air quality regulations; and in a manner consistent with representations made by the permittee in the Notification of Coverage.

(iii) Locations. This permit by rule only authorizes the permittee to construct or modify and to operate the permitted source at the location listed in the Notification of Coverage for that permitted source.

(iv) Liability. This permit by rule does not release the permittee from any liability for compliance with other applicable federal and tribal environmental laws and regulations, including the CAA.

(v) Severability. The provisions of this permit by rule are severable. If any portion of this permit by rule is held invalid, the remaining terms and conditions of this permit by rule shall remain valid and in force.

(vi) Compliance. The permittee must comply with all provisions of this permit, including emission limitations that apply to the affected emissions units at the permitted source. Noncompliance with any permit by rule provision is a violation of the permit by rule and may constitute a violation of the CAA; is grounds for an enforcement action; and is grounds for the reviewing authority to revoke and terminate the permitted source's coverage under this permit by rule.

(vii) National Ambient Air Quality Standards (NAAQS)/Prevention of Significant Deterioration (PSD) Protection. The 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.

(viii) Unavailable defense. It is not a defense for 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 provisions of this permit by rule.

(ix) Property rights. The permit by rule does not convey any property rights of any sort or any exclusive privilege.

(x) Information requests. You, as the permittee, shall furnish to the reviewing authority, within 30 days unless another timeframe is specified by the EPA, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing, or terminating coverage under the permit by rule or to determine compliance with the permit by rule. For any such information claimed to be confidential, the permittee must submit a claim of confidentiality in accordance with 40 CFR part 2, subpart B.

(xi) Inspection and entry. Upon presentation of proper credentials, the permittee must allow a representative of the reviewing authority to:

(A) Enter upon the premises where a permitted source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit by rule;

(B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit by rule;

(C) Inspect, during normal business hours or while the permitted source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit by rule;

(D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit by rule or other applicable requirements; and

(E) Record any inspection by use of written, electronic, magnetic and photographic media.

(xii) Posting of coverage. The most current Notification of Coverage for the permitted source must be posted prominently at the facility, and each affected emissions unit and any associated air pollution control technology must be labeled with the identification number listed in the Notification of Coverage for that permitted source.

(xiii) Duty to obtain a source-specific permit. If the reviewing authority intends to terminate a permitted source's coverage under this permit by rule for cause as provided in §49.163(d)(6), then the permittee shall apply for and obtain a source-specific permit as required by the reviewing authority.

(xiv) Credible evidence. For the purpose of establishing whether the permittee violated or is in violation of any requirement of this permit by rule, nothing shall preclude the use, including the exclusive use, of any credible evidence or information relevant to whether a permitted source would have been in compliance with applicable requirements if the permittee had performed the appropriate performance or compliance test or procedure.

(2) Emission limitations and standards. (i) The permittee shall install, maintain, and operate each affected emissions unit, including any associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions of NSR regulated pollutants and considering the manufacturer's recommended operating procedures at all times, including periods of startup, shutdown, maintenance and malfunction. The reviewing authority will determine whether the permittee is using acceptable operating and maintenance procedures based on information available to the reviewing authority which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the permitted source.

(ii) The permittee shall not consume more than the amount of petroleum solvent specified below:

(A) 5,600 gallons per year based on a rolling 12-month total for a facility located in an ozone attainment, unclassifiable or attainment/unclassifiable area; or

(B) 1,300 gallons per year based on a rolling 12-month total for a facility located in an ozone nonattainment area.

(iii) If your facility has a total manufacturer's rated dryer capacity equal to or greater than 38 kilograms (84 pounds), then you shall meet the following requirements:

(A) Each petroleum solvent dry cleaning dryer shall be a solvent recovery dryer. The solvent recovery dryer(s) shall be properly installed, operated and maintained according to the manufacturer's specifications.

(B) Each petroleum solvent dry cleaning dryer located in a serious, severe or extreme ozone nonattainment area shall be a closed loop, dry-to-dry machine with a refrigerated condenser (manufacture red on or after October 20, 2000) or with an evaporatively cooled condenser (manufacture red on or after July 9, 2004.)

(iv) The maximum heat input capacity of each fuel combustion unit shall not exceed 10 MMBtu/hour and only natural gas, propane or butane may be used as fuels.

(v) The total heat input capacity of the fuel combustion units shall be equal to or less than 30 MMBtu/hour.

(vi) The capacity of any volatile organic liquid storage tank shall not exceed 19,812 gallons.

(vii) All solvents shall be stored in closed containers.

(viii) Button and lint traps shall be cleaned each working day.

(ix) All washer lint traps, button traps, access doors, and other parts of the equipment where solvent may be exposed to the atmosphere shall be kept closed at all times except when required for proper operation or maintenance.

(x) The still residue, used filtering material, lint, used solvent and all other wastes containing solvent shall be stored in sealed containers until properly disposed.

(xi) If your facility is located in a serious, severe or extreme ozone nonattainment area, then the permittee shall also comply with the additional equipment specifications and operating requirements specified in §49.163(e).

(3) Monitoring and testing requirements. Each petroleum solvent dry cleaning dryer shall be inspected every 15 calendar days for evidence of leaks and all vapor or liquid leaks shall be repaired within the subsequent 15 calendar day period.

(4) Recordkeeping requirements. (i) The permittee shall maintain all records required to be kept by this permit by rule for at least 5 years from the date of origin, unless otherwise stated, either onsite or at a convenient location, such that they can be delivered to the reviewing authority within 24 hours of a request.

(ii) The Notification of Coverage and all documentation supporting the notification shall be maintained by the permittee for the duration of time the affected emissions unit(s) is covered under this permit by rule.

(iii) The permittee shall maintain a log of:

(A) The results of the daily leak inspections, any corrective actions taken to repair leaks, and the results of any corrective actions taken;

(B) Each type of petroleum solvent used at the facility;

(C) The date, type, and amount of solvent (in gallons) added to the solvent tank of each dry cleaning machine; and

(D) The monthly total gallons of petroleum solvent used and the resulting 12-month rolling total of solvent used. The 12-month rolling total is defined as the sum of the gallons of petroleum solvent used during the current month and the gallons of petroleum solvent used for the previous eleven (11) months.

(5) Notification and reporting requirements—(i) Notification of construction or modification, and operations. The permittee shall submit a written or electronic notice to the reviewing authority within 30 days from when the permittee begins actual construction, and within 30 days from when the permittee begins initial operations or resumes operations after modification.

(ii) Notification of change in ownership or operator. If the permitted source changes ownership or operator, then the new owner must submit a written or electronic notice to the reviewing authority within 90 days before or after the change in ownership is effective. In the notice, the new permittee must provide the reviewing authority a written agreement containing a specific date for transfer of ownership, and an effective date on which the new owner assumes partial and/or full coverage and liability under this permit by rule. The submittal must identify the previous owner, and update the name, street address, mailing address, contact information, and any other information about the permitted source if it would change as a result of the change of ownership. The current owner shall ensure that the permitted source remains in compliance with the permit by rule until such transfer of ownership is effective.

(iii) Notification of closure. The permittee must submit a report of any permanent or indefinite closure to the reviewing authority in writing within 90 days after the cessation of all operations at the permitted source. It is not necessary to submit a report of closure for regular, seasonal closures.

(iv) Annual reports. The permittee shall submit an annual report on or before March 15 of each calendar year to the reviewing authority. The annual report shall cover the period from January 1 to December 31 of the previous calendar year and shall include:

(A) An evaluation of the permitted source's compliance status with the requirements in paragraph (d)(2) of this section;

(B) Summaries of the required monitoring and recordkeeping in paragraphs (d)(3) and (4) of this section; and

(C) Summaries of deviation reports submitted pursuant to paragraph (d)(5)(v) of this section.

(v) Deviation reports. The permittee shall promptly report to the reviewing authority any deviations as defined at 40 CFR 71.6(a)(3)(iii)(C) from permit by rule requirements including deviations attributable to upset conditions. (For the purposes of this permit by rule, promptly shall be defined to mean: At the time the annual report in paragraph (d)(5)(iv) of this section is submitted.) Deviation reports shall include:

(A) The identity of affected emissions unit where the deviation occurred.

(B) The nature of the deviation;

(C) The length of time of the deviation;

(D) The probable cause of the deviation; and

(E) Any corrective actions or preventive measures taken as a result of the deviation to minimize emissions from the deviation and to prevent future deviations.

(vi) Reporting and notification address. The permittee shall send all required reports to the reviewing authority at the mailing address specified in paragraph (f) of this section.

(vii) Signature verifying truth, accuracy and completeness. All reports required by this permit by rule shall be signed by a responsible official as to the truth, accuracy and completeness of the information. The report must state that, based on information and belief formed after reasonable inquiry, the statements and information are true, accurate, and complete. If the permittee discovers that any reports or notification submitted to the reviewing authority contain false, inaccurate, or incomplete information, the permittee shall notify the reviewing authority immediately and correct or amend the report as soon as practicable.

(6) Changes to this permit by rule—(i) Revising, reopening, revoking and reissuing, or terminating for cause. The permit by rule may be revised, reopened, revoked and reissued, or terminated for cause. The filing of a request by 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 by rule condition. This provision also applies to the documents incorporated by reference.

(ii) Terminating coverage under this permit by rule. The reviewing authority may terminate coverage under the permit by rule, and thereby terminate that permittee's authorization to construct or modify, and that permitted source's authorization to operate under this permit by rule for cause as defined in paragraph (b) of this section. The reviewing authority may provide the permittee with notice of the intent to terminate, and delay the effective date of the termination to allow the permittee to obtain a source-specific permit.

(iii) Permit becomes invalid. Authority to construct and operate under this permit by rule becomes invalid if the permittee does not commence construction within 18 months after the effective date of the Request for Coverage under the permit by rule, if the permittee discontinues construction for a period of 18 months or more, or if the permittee does 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 according to 40 CFR 49.156(e)(8).

(e) Petroleum dry cleaning facilities in certain nonattainment areas. For facilities located in serious, severe, or extreme ozone nonattainment areas, the permittee shall operate and maintain the solvent dry cleaning system in accordance with the requirements specified below and in accordance with the manufacturer's recommendations:

(1) General specifications. (i) All parts of the dry cleaning system where solvent may be exposed to the atmosphere or workroom shall be kept closed at all times except when access is required for proper operation and maintenance.

(ii) Wastewater evaporators shall be operated to ensure that no liquid solvent or visible emulsion is allowed to vaporize to the atmosphere.

(2) Additional specification for closed-loop machines. (i) A closed-loop machine means dry cleaning equipment in which washing, extraction, and drying is performed within the same single affected emissions unit and which re-circulates and recovers the solvent-laden vapor.

(ii) A closed-loop machine shall not exhaust to the atmosphere or workroom during operation except when the vacuum pump exhausts to maintain a continuous vacuum.

(iii) For any closed-loop machine that is not equipped with a locking mechanism, the operator shall not open the door of a closed-loop machine prior to completion of the drying cycle.

(iv) For any closed-loop machine that is equipped with a locking mechanism, the operator shall not inactivate the locking mechanism and open the door of a closed-loop machine prior to completion of the drying cycle.

(3) Leak check and repair requirements. (i) No less frequently than monthly, the owner or operator shall inspect the dry cleaning system for liquid and vapor leaks, including, but not limited to, the following:

(A) Hose connections, unions, couplings, valves, and flanges;

(B) Machine door gasket and seating of the machine cylinder;

(C) Filter head gasket and seating;

(D) Pumps;

(E) Base tanks and storage containers;

(F) Water separators;

(G) Filter sludge recovery;

(H) Seals and gaskets of distillation unit(s);

(I) Diverter valves;

(J) Saturated lint from lint trap basket;

(K) Button trap lid;

(L) Cartridge or other types of filters;

(M) Seals, gaskets and the diverter valve of the refrigerated condenser;

(N) Exhaust stream ducts;

(O) Lint trap ducts; and

(P) Gaskets and ducts of the carbon adsorber.

(ii) To inspect for a vapor leak, the operator shall use at least one of the following techniques:

(A) Soap bubble technique in accordance with the procedures in EPA Method 21, section 4.3.3—Alternative Screening Procedure;

(B) A non-halogenated hydrocarbon detector;

(C) A portable hydrocarbon analyzer; or

(D) An alternative method approved by the reviewing authority.

(iii) To inspect for a liquid leak, the operator shall visually inspect the equipment for liquid leaking in a visible mist or at the rate of more than one drop every 3 minutes.

(iv) Any liquid leak or vapor leak that has been detected by the operator shall be repaired within 3 working days of detection. If repair parts are not available at the facility, the parts shall be ordered within 2 working days of detecting such a leak and the operator shall provide written notification to the reviewing authority that explains the reason(s) for delaying the leak repair. Such repair parts shall be installed within 5 working days after receipt. A facility with a leak that has not been repaired by the end of the 7th working day after detection shall not operate the dry cleaning equipment, until the leak is repaired.

(f) List of reviewing authorities and areas of coverage.

Table 1—List of Reviewing Authorities and Areas of Coverage

EPA regionAddress for notification of
coverage
Address for all other notifications and reportsArea coveredPhone number
Region IEPA New England, 5 Post Office Square, Suite 100, Mail Code OEP05-2, Boston, MA 02109-3912EPA New England, 5 Post Office Square, Suite 100, Mail Code OES04-2, Boston, MA 02109-3912Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont888-372-7341 617-918-1111
Region IIChief, Air Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 25th Floor, New York, NY 10007-1866Chief, Air Compliance Branch, Division of Enforcement and Compliance Assistance, EPA Region 2, 290 Broadway, 21st Floor, New York, NY 10007-1866New Jersey, New York, Puerto Rico, and Virgin Islands877-251-4575
Region IIIOffice of Permits and Air Toxics, 3AP10, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Office of Air Enforcement and Compliance Assurance, 3AP20, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia800-438-2474 215-814-5000
Region IVChief, Air Permits Section, EPA Region 4 APTMD, 61 Forsyth Street, Atlanta, GA 30303Chief, Air & EPCRA Enforcement Branch, EPA Region 4 APTMD, 61 Forsyth Street SW., Atlanta, GA 30303Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee800-241-1754 404-562-9000
Region VAir Permits Section, Air Programs Branch (AR-18J), EPA Region 5, 77 West Jackson Blvd, Chicago, IL 60604Air Enforcement and Compliance Assurance Branch (AE-17J), Air and Radiation Division, EPA Region 5, 77 West Jackson Blvd, Chicago, IL 60604Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin800-621-8431 312-353-2000
Region VIAir and Radiation Division, EPA Region 6, 1201 Elm Street, Suite 500, Mail Code 6AR Dallas, Texas 75270-2102Compliance and Enforcement Correspondence: Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102Arkansas, Louisiana, New Mexico, Oklahoma, and Texas800-887-6063 or 214-665-2760
Region VIIChief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Chief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Iowa, Kansas, Missouri, and Nebraska800-223-0425 913-551-7003
Region VIIIU.S. Environmental Protection Agency, Region 8, Office of Partnerships and Regulatory Assistance, Tribal Air Permitting Program, 8P-AR, 1595 Wynkoop Street, Denver, CO 80202U.S. Environmental Protection Agency, Region 8, Office of Enforcement, Compliance & Environmental Justice, Air Toxics and Technical Enforcement Program, 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming800-227-8917 303-312-6312
Region IXChief, Permits Office (Air-3), Air Division, EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105Enforcement Division Director, Attn: Air & TRI Section (ENF-2-1), EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105American Samoa, Arizona, California, Guam, Hawaii, Navajo Nation Nevada, and Northern Mariana Islands866-EPA-9378 415-947-8000
Region XTribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Tribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Alaska, Idaho, Oregon, and Washington800-424-4372 206-553-1200

[80 FR 25098, May 1, 2015, as amended at 84 FR 44227, Aug. 23, 2019]

§49.164   Air quality permit by rule for new or modified true minor source gasoline dispensing facilities in Indian country.

(a) Abbreviations and acronyms:

AST   Aboveground Storage Tank

CAA or the Act   Federal Clean Air Act

CFR   Code of Federal Regulations

EPA   United States Environmental Protection Agency

GDF   Gasoline Dispensing Facility

NAAQS   National Ambient Air Quality Standards

NSR   New Source Review

ppm   parts per million

PSD   Prevention of Significant Deterioration

PV   Pressure/Vacuum

VOC   Volatile Organic Compounds

(b) Definitions for the purposes of this permit by rule. (1) Cause means with respect to the reviewing authority's ability to terminate a permitted source's coverage under a permit that:

(i) The permittee is not in compliance with the provisions of this permit by rule;

(ii) The reviewing authority determines that the emissions resulting from the construction or modification of the permitted source significantly contribute to NAAQS violations, which are not adequately addressed by the requirements in this permit by rule;

(iii) The reviewing authority has reasonable cause to believe that the permittee obtained coverage under the permit by rule by fraud or misrepresentation; or

(iv) The permittee failed to disclose a material fact required by the Notification of Coverage or the requirements applicable to the permitted source of which the applicant had or should have had knowledge at the time the permittee submitted the Notification of Coverage.

(2) Construction means any physical change or change in the method of operation including fabrication, erection, installation, demolition, or modification of an affected emissions unit that would result in a change of emissions.

(3) Dual-point vapor balance system means a type of vapor balance system in which the storage tank is equipped with an entry port for a gasoline fill pipe and a separate exit port for a vapor connection.

(4) Emergency engine means any stationary reciprocating internal combustion engine that meets all of the criteria in paragraphs (b)(4)(i) through (iii) of this section. All emergency engines must comply with the requirements specified in 40 CFR 63.6640(f) in order to be considered emergency engines. If the engine does not comply with the requirements specified, then it is not considered to be an emergency engine.

(i) The engine is operated to provide electrical power or mechanical work during an emergency situation. Examples include engines used to produce power for critical networks or equipment (including power supplied to portions of a facility) when electric power from the local utility (or the normal power source, if the facility runs on its own power production) is interrupted, or an engine used to pump water in the case of fire or flood, etc.

(ii) The engine is operated under limited circumstances for situations not included in paragraph (b)(4)(i) of this section, as specified in 40 CFR 63.6640(f).

(iii) The engine operates as part of a financial arrangement with another entity in situations not included in paragraph (b)(4)(i) of this definition only as allowed in 40 CFR 63.6640(f).

(5) Notification of Coverage means the permit notification that contains all the information required in the standard notification form for this permit by rule.

(6) Permittee means the owner or operator of a permitted source.

(7) Permitted source means each gasoline dispensing facility for which a permitted source submits a complete Notification of Coverage.

(8) Responsible official means one of the following:

(i) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is directly responsible for the overall operation of the permitted source;

(ii) For a partnership or sole proprietorship: a general partner or the proprietor, respectively; or

(iii) For a public agency: Either a principal executive officer or ranking elected official, such as a chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(9) Submerged filling means the filling of a gasoline storage tank through a submerged fill pipe whose discharge is no more than 6 inches from the bottom of the tank. Bottom filling of gasoline storage tanks is covered under this submerged filling definition.

(10) Ullage means the volume of a container not occupied by liquid. For example, the ullage of a tank designed primarily for containing liquid is the volume of the tank minus the volume of the liquid it contains.

(11) Vapor balance system means a combination of pipes and hoses that create a closed system between the vapor spaces of an unloading gasoline cargo tank and a receiving storage tank such that vapors displaced from the storage tank are transferred to the gasoline cargo tank being unloaded.

(12) Vapor tight means equipment that allows no loss of vapors. Compliance with vapor-tight requirements can be determined by checking to ensure that the concentration at a potential leak source is not equal to or greater than 100 percent of the lower explosive limit when measured with a combustible gas detector, calibrated with propane, at a distance of 1 inch from the potential leak source.

(c) Information about this permit by rule—(1) Applicability. Pursuant to the provisions of the CAA, subchapter I, part D and 40 CFR part 49, subpart C, this permit authorizes the construction or modification and the operation of each stationary gasoline dispensing facility (GDF) for which a reviewing authority receives a completed Notification of Coverage (permitted source).

(2) Eligibility. To be eligible for coverage under this permit by rule, the permitted source must qualify as a true minor source as defined in 40 CFR 49.152 and satisfied the requirements in 40 CFR 49.156(f)(6)(iii). In addition, coverage under this Permit by Rule is not available in areas located within the geographic boundaries of California.

(3) Notification of Coverage. Requirements for submitting a Notification of Coverage are contained in paragraph (d)(1) of this permit by rule. The information contained in each permitted source's Notification of Coverage is hereby enforceable under this permit by rule.

(4) Termination. Paragraph (d)(6) of this permit by rule addresses a reviewing authority's ability to revise, revoke and reissue, or terminate coverage under this permit by rule. It also addresses the reviewing authority's ability to terminate an individual permitted source's coverage under this permit by rule.

(5) Definitions. The terms used herein shall have the meaning as defined in 40 CFR 49.152, unless otherwise defined in paragraph (b) of this permit by rule. If a term is not defined, it shall be interpreted in accordance with normal business use.

(d) Permit by rule terms and conditions. The following applies to each permittee and permitted source with respect to only the affected emissions units and any associated air pollution control technologies in that permitted source's Notification of Coverage.

(1) General provisions—(i) Obtaining coverage under this permit by rule. To obtain coverage under this permit by rule, an applicant must submit a completed Notification of Coverage to the appropriate reviewing authority for the area in which the permitted source is or will be located (the Notification of Coverage Form can be found at: http://www.epa.gov/air/tribal/tribalnsr.html). Table 1 of paragraph (f) contains a list of reviewing authorities and their area of coverage. You must also submit a copy of the Notification of Coverage to the Indian governing body for any area in which the permitted source will operate. Coverage under this permit by rule is not available in areas within the geographical boundaries of California.

(ii) Construction and operation. The permittee shall construct or modify and shall operate the affected emissions units and any associated air pollution control technologies in compliance with this permit by rule and all other applicable federal air quality regulations; and in a manner consistent with representations made by the permittee in the Notification of Coverage.

(iii) Locations. This permit by rule only authorizes the permittee to construct or modify and to operate the permitted source in the location(s) listed in the Notification of Coverage for that permitted source.

(iv) Liability. This permit by rule does not release the permittee from any liability for compliance with other applicable federal and tribal environmental laws and regulations, including the CAA.

(v) Severability. The provisions of this permit by rule are severable. If any portion of this permit by rule is held invalid, the remaining terms and conditions of this permit by rule shall remain valid and in force.

(vi) Compliance. The permittee must comply with all provisions of this permit by rule, including emission limitations that apply to the affected emissions units at the permitted source. Noncompliance with any permit provision is a violation of this permit by rule and may constitute a violation of CAA; is grounds for an enforcement action; and is grounds for the reviewing authority to revoke and terminate the permitted source's coverage under this permit by rule.

(vii) National Ambient Air Quality Standards (NAAQS)/Prevention of Significant Deterioration (PSD) Protection. The 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.

(viii) Unavailable defense. It is not a defense for 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 provisions of this permit by rule.

(ix) Property rights. This permit by rule does not convey any property rights of any sort or any exclusive privilege.

(x) Information requests. You, as the permittee, shall furnish to the reviewing authority, within 30 days unless another timeframe is specified by the EPA, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing, or terminating coverage under the permit by rule or to determine compliance with the permit by rule. For any such information claimed to be confidential, the permittee must submit a claim of confidentiality in accordance with 40 CFR part 2 subpart B.

(xi) Inspection and entry. Upon presentation of proper credentials, the permittee must allow a representative of the reviewing authority to:

(A) Enter upon the premises where a permitted source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit by rule;

(B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit by rule;

(C) Inspect, during normal business hours or while the permitted source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit by rule;

(D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit by rule or other applicable requirements; and

(E) Record any inspection by use of written, electronic, magnetic and photographic media.

(xii) Posting of coverage. The most current Notification of Coverage for the permitted source, must be posted prominently at the facility, and each affected emissions unit and any associated air pollution control technology must be labeled with the identification number listed in the Notification of Coverage for that permitted source.

(xiii) Duty to obtain source-specific permit. If the reviewing authority intends to terminate a permitted source's coverage under this permit by rule for cause as provided in §49.164(d)(6), then the permittee shall apply for and obtain a source-specific as required by the reviewing authority.

(xiv) Credible evidence. For the purpose of establishing whether the permittee violated or is in violation of any requirement of this permit by rule, nothing shall preclude the use, including the exclusive use, of any credible evidence or information relevant to whether a permitted source would have been in compliance with applicable requirements if the permittee had performed the appropriate performance or compliance test or procedure.

(2) Emission limitations and standards. (i) The permittee shall install, maintain, and operate each affected emissions unit, including any associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions of NSR regulated pollutants and considering the manufacturer's recommended operating procedures at all times, including periods of startup, shutdown, maintenance and malfunction. The reviewing authority will determine whether the permittee is using acceptable operating and maintenance procedures based on information available to the reviewing authority which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the permitted source.

(ii) GDFs located in an ozone attainment, unclassifiable or attainment/unclassifiable area or a marginal or moderate ozone nonattainment area shall limit throughput of gasoline to less than 25,000,000 gallons per year based on a 12-month rolling total.

(iii) GDFs located in a serious, severe or extreme ozone nonattainment area shall limit throughput of gasoline to less than 8,000,000 gallons per year based on a 12-month rolling total.

(iv) You must ensure gasoline is handled in a manner that will minimize vapor releases to the atmosphere. The measures to be taken include:

(A) Minimizing gasoline spills;

(B) Cleaning up spills as expeditiously as practicable. The spill bucket shall be free from standing liquid and debris;

(C) Covering all open gasoline containers and all gasoline storage tank fill-pipes with a gasketed seal when not in use (all portable gasoline containers that meet the requirements of 40 CFR part 59, subpart F meet this requirement);

(D) Minimizing gasoline sent to open waste collection systems that collect and transport gasoline to reclamation and recycling devices, such as oil/water separators; and

(E) To the extent practicable, any other actions necessary to minimize vapor releases to the atmosphere.

(v) Except as specified in paragraph (d)(2)(v)(B) of this section, you must only load gasoline into storage tanks at your facility by utilizing submerged filling, and as specified in this condition. The applicable distances shall be measured from the point in the opening of the submerged fill pipe that is the greatest distance from the bottom of the storage tank.

(A) Submerged fill pipes must be no more than 6 inches from the bottom of the tank.

(B) Submerged fill pipes not meeting the specifications paragraph (d)(2)(v)(A) of this section are allowed if the owner or operator can demonstrate that the liquid level in the tank is always above the entire opening of the fill pipe. Documentation providing such demonstration must be made available onsite for inspection by the reviewing authority.

(vi) Except as provided in paragraph (d)(2)(viii) of this section, each new or modified gasoline storage tank constructed must be equipped with a Stage I dual-point vapor balance system.

(vii) Except as provided in paragraph (d)(2)(viii) of this section, each Stage I dual-point vapor balance system on your gasoline storage tank must meet the design criteria and management practices in paragraph (e) of this section, as applicable.

(viii) The affected emissions units listed below are not required to comply with the control requirements in paragraphs (d)(2)(vi) and (vii) of this section, but must comply with the requirements in paragraph (d)(2)(v) of this section.

(A) Gasoline storage tanks with a capacity of less than 250 gallons.

(B) Gasoline storage tanks with a capacity of less than 2,000 gallons.

(C) Gasoline storage tanks equipped with floating roofs, or the equivalent.

(ix) Cargo tanks unloading at GDFs must not unload gasoline into a storage tank at a GDF unless the following management practices are met:

(A) All hoses in the vapor balance system are properly connected;

(B) The adapters or couplers that attach to the vapor line on the storage tank have closures that seal upon disconnect;

(C) All vapor return hoses, couplers, and adapters used in gasoline delivery are vapor-tight;

(D) All tank truck vapor return equipment is compatible in size and forms a vapor-tight connection with the vapor balance equipment on the GDF storage tank;

(E) All hatches on the tank truck are closed and securely fastened; and

(F) The filling of storage tanks at GDF shall be limited to unloading from vapor-tight gasoline cargo tanks.

(x) Each emergency engine shall:

(A) Be equipped with a non-resettable hour meter;

(B) If using fuel oil, use diesel or biodiesel containing no more than 15 ppm (0.0015 percent) sulfur;

(C) Meet the following certification requirement for compression ignition emergency engines: for model year 2006 and later engines, the engine shall be certified to the standards in 40 CFR part 89.

(D) Meet the following certification requirements for spark ignition emergency engines manufactured on or after January 1, 2009:

(1) Engines greater than 50 hp and less than 130 hp shall be certified to the Phase I standards in 40 CFR 90.103; and

(2) Engines greater than or equal to 130 hp shall be certified to the standards in 40 CFR 1048.

(E) If not required to be certified to the standards in paragraph (d)(2)(x)(C) or (D) of this section:

(1) Follow the manufacturer's emission-related operation and maintenance instructions or develop your own maintenance plan which must provide to the extent practicable for the maintenance and operation of the engine in a manner consistent with good air pollution control practice for minimizing emissions;

(2) Change oil and filter and inspect every hose and belt every 500 hours of operation or annually, whichever comes first; and

(3) Inspect air cleaner or spark plugs, as applicable, every 1,000 hours of operation, or annually, whichever comes first.

(3) Monitoring and testing requirements. (i) For each vapor balance system, the permittee shall perform an initial performance test as prescribed in paragraph (e) of this section and every 3 years thereafter. The performance test shall be conducted within 60 days after achieving the maximum production rate at which the permitted source will operate the affected vapor balance system, but not later than 180 days after the first day of operation after the reviewing authority receives the completed Notification of Coverage.

(ii) The permittee shall monitor monthly gasoline throughput in gallons.

(iii) The permittee shall perform weekly inspections of the vapor control recovery system(s), all pumps, compressors, pipes, hoses, mechanical seals, or other equipment storing, handling, conveying, or controlling VOCs. For sources located in extreme ozone nonattainment areas, these equipment inspections shall be performed daily. The inspections shall be used to determine whether all equipment is in good working order according to any available manufacturer's recommendations and good engineering practices.

(4) Recordkeeping requirements. (i) The permittee shall maintain all records required to be kept onsite by this permit by rule for at least 5 years from the date of origin, unless otherwise stated.

(ii) The Notification of Coverage and all documentation supporting that application shall be maintained by the permittee for the duration of time the affected emissions unit(s) is covered under this permit by rule.

(iii) The permittee shall maintain records of each inspection required by paragraph (d)(3)(iii) of this section. The records shall include a log of:

(A) Identification of the devices inspected;

(B) The date of the inspection;

(C) The results of each inspection;

(D) Any corrective actions taken as a result of the inspection; and

(E) The results of any corrective actions taken.

(iv) For each emergency engine, the permittee shall maintain a log of all maintenance activities conducted and a log of the hours of operation including the date, time, duration, and reason for use.

(v) The permittee shall maintain records on a monthly basis of the fuel throughput and the 12-month rolling total. The 12-month rolling total is defined as the sum of the fuel throughput during the current month and the fuel throughput for the previous 11 months.

(vi) The results of each performance test conducted pursuant to §49.164(d)(3)(i) shall be recorded. At a minimum, the permittee shall maintain records of:

(A) The date of each test;

(B) Each test plan;

(C) Any documentation required to approve an alternate test method;

(D) Test conditions;

(E) The results of each test; and

(F) The name of the company or entity conducting the analysis.

(5) Notification and reporting requirements—(i) Notification of construction or modification, and operations. The permittee shall submit a written or electronic notice to the reviewing authority within 30 days from when the permittee begins actual construction, and within 30 days from when the permittee begins initial operations or resumes operation after a modification.

(ii) Notification of change in ownership or operator. If the permitted source changes ownership or operator, then the new owner must submit a written or electronic notice to the reviewing authority within 90 days before or after the change in ownership is effective. In the notice, the new permittee must provide the reviewing authority a written agreement containing a specific date for transfer of ownership, and an effective date on which the new owner assumes partial and/or full coverage and liability under this permit by rule. The submittal must identify the previous owner, and update the name, street address, mailing address, contact information, and any other information about the permitted source if it would change as a result of the change of ownership. The current owner shall ensure that the permitted source remains in compliance with the permit by rule until any such transfer of ownership is effective.

(iii) Notification of closure. The permittee must submit a report of any permanent or indefinite closure to the reviewing authority in writing within 90 days after the cessation of all operations at the permitted source. The notification must identify the owner, the current location, and the last operating location of the permitted source. It is not necessary to submit a report of closure for regular, seasonal closures.

(iv) Annual reports. The permittee shall submit an annual report on or before March 15 of each calendar year to the reviewing authority. The annual report shall cover the period from January 1 to December 31 of the previous calendar year and shall include:

(A) An evaluation of the permitted source's compliance status with the emission limitations and standards in paragraph (d)(2) of this section;

(B) Summaries of the required monitoring and recordkeeping in paragraphs (d)(3) and (4) of this section; and

(C) Summaries of deviation reports submitted pursuant to paragraph (d)(5)(v) of this section.

(v) Deviation reports. The permittee shall promptly report to the reviewing authority any deviations as defined at 40 CFR 71.6(a)(3)(iii)(C) from the permit by rule requirements including deviations attributable to upset conditions. (For the purposes of this permit by rule, promptly shall be defined to mean: at the time the annual report in paragraph (d)(5)(iv) of this section is submitted.) Deviation reports shall include:

(A) The identity of affected emissions unit where the deviation occurred;

(B) The nature of the deviation;

(C) The length of time of the deviation;

(D) The probable cause of the deviation; and

(E) Any corrective actions or preventive measures taken as a result of the deviation to minimize emissions from the deviation and to prevent future deviations.

(vi) Performance test reports. The permittee shall submit a test report to the reviewing authority within 45 days after the completion of any required performance test. At a minimum, the test report shall include:

(A) A description of the affected emissions unit and sampling location(s);

(B) The time and date of each test;

(C) A summary of test results, reported in units consistent with the applicable standard;

(D) A description of the test methods and quality assurance procedures used;

(E) A summary of any deviations from the proposed test plan and justification for why the deviation(s) was necessary;

(F) Operating parameters of the affected emissions unit and control equipment during each test run;

(G) Sample calculations of equations used to determine test results in the appropriate units; and

(H) The name of the company or entity performing the analysis.

(vii) Reporting and notification address.The permittee shall send all required reports to the reviewing authority at the mailing address specified in paragraph (f) of this section.

(viii) Signature verifying truth, accuracy and completeness. All reports required by this permit by rule shall be signed by a responsible official as to the truth, accuracy and completeness of the information. The report must state that, based on information and belief formed after reasonable inquiry, the statements and information are true, accurate, and complete. If the permittee discovers that any reports or notification submitted to the reviewing authority contain false, inaccurate, or incomplete information, the permittee shall notify the reviewing authority immediately and correct or amend the report as soon as practicable.

(6) Changes to this permit by rule—(i) Revising, reopening, revoking and reissuing, or terminating for cause. The permit by rule may be revised, reopened, revoked and reissued, or terminated for cause. The filing of a request by 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 by rule condition. This provision also applies to the documents incorporated by reference.

(ii) Terminating coverage under this permit by rule. The reviewing authority may terminate coverage under this permit by rule, and thereby terminate that permittee's authorization to construct or modify, and that permitted source's authorization to operate under this permit by rule for cause as defined in paragraph (b) of this section. The reviewing authority may provide the permittee with notice of the intent to terminate, and delay the effective date of the termination to allow the permittee to obtain a source specific permit as required by the reviewing authority.

(iii) Permit becomes invalid. Authority to construct and operate under this permit by rule becomes invalid if the permittee does not commence construction within 18 months after the Notification of Coverage is received by the reviewing authority, if the permittee discontinues construction for a period of 18 months or more, or if the permittee does 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 according to 40 CFR 49.156(e)(8).

(e) Vapor balance system design criteria, management practices, and performance testing. (1) Design criteria and management practices for each vapor balance system:

(i) All vapor connections and lines on the storage tank(s) shall be equipped with closures that seal upon disconnect.

(ii) The vapor line from the gasoline storage tank to the gasoline cargo tank shall be vapor-tight.

(iii) The vapor balance system shall be designed such that the pressure in the tank truck does not exceed 18 inches water pressure or 5.9 inches water vacuum during product transfer.

(iv) The vapor recovery and product adaptors, and the method of connection with the delivery elbow, shall be designed so as to prevent the over-tightening or loosening of fittings during normal delivery operations.

(v) If a gauge well separate from the fill tube is used, it shall be provided with a submerged drop tube that extends no more than 6 inches from the bottom of the storage tank.

(vi) Liquid fill connections for all systems shall be equipped with vapor-tight caps.

(vii) Pressure/vacuum (PV) vent valves shall be installed on the storage tank vent pipes. The pressure specifications for PV vent valves shall be: a positive pressure setting of 2.5 to 6.0 inches of water and a negative pressure setting of 6.0 to 10.0 inches of water. The total leak rate of all PV vent valves at an affected facility, including connections, shall not exceed 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.63 cubic foot per hour at a vacuum of 4 inches of water.

(viii) The vapor balance system shall be capable of meeting the static pressure performance requirement of the following equation: Pf = 2e−500.887/v, where: Pf = minimum allowable final pressure, inches of water, v = total ullage affected by the test, gallons, e = dimensionless constant equal to approximately 2.718, 2 = the initial pressure, inches water.

(ix) For aboveground storage tanks (ASTs) with a capacity greater than 250 gallons and located at a GDF in a serious, severe, or extreme ozone nonattainment area the permittee shall also:

(A) Limit standing loss emissions to less than or equal to 0.57 lbs VOC per 1,000 gallons ullage per day (lbs/1,000 gallons/day), for newly installed tanks.

(B) Limit standing loss emissions to less than or equal to 2.26 lbs VOC per 1,000 gallons ullage per day (lbs/1,000 gallons/day), for modified or reconstructed tanks.

(2) Vapor balance system performance testing:

(i) The permittee shall conduct performance testing to demonstrate compliance with the leak rate and cracking pressure requirements, specified in paragraph (e)(1)(vii) of this section, for pressure-vacuum vent valves installed on your gasoline storage tanks as follows:

(A) According to a test plan submitted at least 30 days in advance of the test date to the reviewing authority; and

(B) Using California Air Resources Board Vapor Recovery Test Procedure TP-201.1E,—Leak Rate and Cracking Pressure of Pressure/Vacuum Vent Valves, adopted October 8, 2003 (see 40 CFR 63.14).

(ii) The permittee shall conduct performance testing to demonstrate compliance with the static pressure performance requirement, specified in paragraph (e)(1)(viii) of this section, for each vapor balance system by conducting a static pressure test on each gasoline storage tank as follows:

(A) According to a test plan submitted at least 30 days in advance of the test date to the reviewing authority;

(B) Using California Air Resources Board Vapor Recovery Test Procedure TP-201.3,—Determination of 2-Inch WC Static Pressure Performance of Vapor Recovery Systems of Dispensing Facilities, adopted April 12, 1996, and amended March 17, 1999 (see 40 CFR 63.14) or Bay Area Air Quality Management District Source Test Procedure ST-30—Static Pressure Integrity Test—Underground Storage Tanks, adopted November 30, 1983, and amended December 21, 1994 (see 40 CFR 63.14); and

(iii) For ASTs subject to §49.164(e)(1)(ix), the ASTs shall be California Air Resources Board certified AST for Standing Loss Control per Vapor Recovery Test Procedures TP-206.1 or TP-206.2.

(f) List of reviewing authorities, and areas of coverage.

Table 1—List of Reviewing Authorities, and Areas of Coverage

EPA regionAddress for notification of coverageAddress for all other notification and reportsArea coveredPhone number
Region IEPA New England, 5 Post Office Square, Suite 100, Mail Code OEP05-2, Boston, MA 02109-3912EPA New England, 5 Post Office Square, Suite 100, Mail Code OES04-2, Boston, MA 02109-3912Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont888-372-7341
617-918-1111
Region IIChief, Air Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 25th Floor, New York, NY 10007-1866Chief, Air Compliance Branch, Division of Enforcement and Compliance Assistance, EPA Region 2, 290 Broadway, 21st Floor, New York, NY 10007-1866New Jersey, New York, Puerto Rico, and Virgin Islands877-251-4575
Region IIIOffice of Permits and Air Toxics, 3AP10, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Office of Air Enforcement and Compliance Assurance, 3AP20, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia800-438-2474
215-814-5000
Region IVChief, Air Permits Section, EPA Region 4 APTMD, 61 Forsyth Street, Atlanta, GA 30303Chief, Air & EPCRA Enforcement Branch, EPA Region 4 APTMD, 61 Forsyth Street, SW, Atlanta, GA 30303Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee800-241-1754
404-562-9000
Region VAir Permits Section, Air Programs Branch (AR-18J), EPA Region 5, 77 West Jackson Blvd, Chicago, IL 60604Air Enforcement and Compliance Assurance Branch (AE-17J), Air and Radiation Division, EPA Region 5, 77 West Jackson Blvd, Chicago, IL 60604Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin800-621-8431
312-353-2000
Region VIAir and Radiation Division, EPA Region 6, 1201 Elm Street, Suite 500, Mail Code 6AR Dallas, Texas 75270-2102Compliance and Enforcement Correspondence: Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102Arkansas, Louisiana, New Mexico, Oklahoma, and Texas800-887-6063 or 214-665-2760
Region VIIChief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Chief, Air Permitting & Compliance Branch, EPA Region 7, 11201 Renner Blvd, Lenexa, KS 66219Iowa, Kansas, Missouri, and Nebraska800-223-0425
913-551-7003
Region VIIIU.S. Environmental Protection Agency, Region 8, Office of Partnerships and Regulatory Assistance, Tribal Air Permitting Program, 8P-AR, 1595 Wynkoop Street, Denver, CO 80202U.S. Environmental Protection Agency, Region 8, Office of Enforcement, Compliance & Environmental Justice, Air Toxics and Technical Enforcement Program, 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming800-227-8917
303-312-6312
Region IXChief, Permits Office (Air-3), Air Division, EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105Enforcement Division Director, Attn: Air & TRI Section (ENF-2-1), EPA Region 9, 75 Hawthorne St, San Francisco, CA 94105American Samoa, Arizona, California, Guam, Hawaii, Navajo Nation Nevada, and Northern Mariana Islands866-EPA-9378
415-947-8000
Region XTribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Tribal Air Permits Coordinator, U.S. EPA, Region 10, AWT-150, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101Alaska, Idaho, Oregon, and Washington800-424-4372
206-553-1200

[80 FR 25102, May 1, 2015, as amended at 84 FR 44227, Aug. 23, 2019]

§49.165   [Reserved]

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