NOTE—NTAA recommends that you begin your Tribe’s comment letter with introductory
remarks regarding the signatory’s position with the Tribe and include somewhere in the letter a
description of the Tribe’s physical environment and any particular concerns the Tribe has with
respect to this proposed rule. The more individualized the letter, the greater its potential impact.
Please also review the attached “Snapshot Analysis” which is intended to help you in developing
specific comments about the proposed rule. Feel free to add you own arguments, objections, or
support for various aspects of the proposal.
Attention Docket ID No. EPA-HQ-OAR-2011-0151
U.S. Environmental Protection Agency
Mailcode: 28221T
1200 Pennsylvania Ave., NW
Washington, DC 20460
Subject:
Comments and Recommendations regarding the Proposed General Permits
and Permits by Rule for the Federal Minor New Sources Review Program in Indian
Country
To Whom It May Concern:
The [Name of Tribe] is pleased to submit these comments regarding the U.S.
Environmental Protection Agency’s (EPA)’s proposed General Permits and Permits by Rule for
the Federal Minor New Sources Review Program in Indian Country (hereinafter “Proposed
Rule”).
Introduction
The [NAME OF TRIBE] approves generally of the Proposed Rule. The General Permits for the
six source categories are necessary and will help further close the regulatory gap that has existed
for a very long time in Indian Country regarding minor source emissions. However, the [NAME
OF TRIBE] finds it necessary to provide EPA with its comments and recommendations
regarding the issues: posting of permit coverage, revising Approval of a Request for General
Permit coverage, terminating Approval of a Request for General Permit coverage, setback
requirements, emissions limitations framework, Endangered Species Act (ESA) and National
Historic Preservation Act (NHPA), Permits by Rule, synthetic minor sources, application review
period, and tribal consultation.
Posting of Permit Coverage
Title 40 C.F.R. §49.156(e)(6) provides only that a copy of the letter granting a request for
coverage must be posted at each source. However, the Proposed Rule provides that for each
source covered by one of the rule’s six source categories:
1. The General Permit (Sections 1 through 6) and the most current Approval of the
Request for coverage for the permitted source must be posted; and
2. Each affected emissions unit and any associated air pollution control technology must
be labeled with the identification number listed in the Approval of the Request for
General Permit coverage for that permitted source.1
The [NAME OF TRIBE] finds that posting the additional information, as required under the
General Permits, is reasonable and provides information about the source that would not
otherwise be made readily available if following the regulations only. Further, the action should
neither be a costly or time-consuming requirement for a source to meet.
Revising Approval of a Request for General Permit Coverage
EPA provides that there may instances when a reviewing authority may need to revise its
Approval of a Request for General Permit coverage such as when a source misidentifies an
equipment identification number in its request.2 The General Permit provisions at 40 C.F.R. §
49.156(b)(2)3 reference 40 C.F.R. §49.159 which addresses a reviewing authority’s ability to
reopen or administratively amend permits, but these provisions fail to indicate clearly how they
apply to a previously issued Approval of a Request for General Permit coverage.4 As such, EPA
proposes to incorporate the approval into the General Permit to insure that reviewing authorities
can also make revisions to a previously issued Approval of a Request for General Permit
coverage.5 The [NAME OF TRIBE] finds EPA’s proposal reasonable although at a later date,
EPA should strongly consider amending 40 C.F.R. §49.156 to include a provision that
specifically allows for revisions to a previously issued Approval of a Request for General Permit
coverage.
Terminating Approval of a Request for General Permit Coverage
Section 6 of the General Permit for each of the six source categories provides that a reviewing
authority may terminate a previously issued Approval of a Request for General Permit coverage. 6
EPA finds that a reviewing authority has this right although the General Permit provisions at 40
C.F.R. §49.156 specify that only permits may be terminated. The [NAME OF TRIBE] agrees
with EPA’s finding and that it is a logical extension of what was intended under the regulations.
However, at its earliest convenience, EPA should amend 40 C.F.R. §49.156 to provide
1
See Proposed Rule at 41854.
Id. at 41855.
3
Id. (Proposed Rule incorrectly cites 40 C.F.R. §51.156(b)(2)).
4
Id.
5
Id.
6
See generally General Air Quality Permit for New or Modified True Minor Sources at
http://www.epa.gov/air/tribal/tribalnsrgp2.html (last visited on August 10, 2014).
2
specifically for termination of a previously issued Approval of a Request for General Permit
coverage.
Setback Requirements
EPA proposes a setback requirement for concrete batch plants,7 boilers,8 stationary spark and
compression ignition engines,9 and sawmills.10
EPA seeks comments on the types of buildings for which the setback requirements should be
established, offering schools and nursing homes as examples of possible building types.11 The
[NAME OF TRIBE] finds providing setback requirements for these buildings is appropriate,
but that the requirements should also be applied to community centers, health care facilities, and
hospitals. Further, the setback requirements should also be applied to other physical locations
such as agricultural fields, ball fields, parks, locations designated for cultural and subsistence
activities, and waterways.
Further, the [NAME OF TRIBE] agrees with the concept of setback requirements and their
purpose. However, EPA must consider carefully each Indian Tribe’s sovereign right to manage
and oversee land use within its own boundaries. Approaches to zoning vary among Tribes.
Some Tribes may not provide for setback requirements whereas others may have setback
requirements that are less restrictive than those under the Proposed Rule. While the [NAME OF
TRIBE] sees the value of including setback requirements in the Proposed Rule, our
organization recommends that EPA insert a provision allowing a Tribe to obtain a partial or full
waiver from the requirements based on its sovereign right to manage and oversee land use
matters within its boundaries. For example, a Tribe might seek a partial waiver from the type of
buildings and/or locations for which the Propose Rule establishes setback requirements or could
seek a full waiver from all aspects of the setback requirements.
Emissions Limitations Framework
Title 40 C.F.R. §49.155(a)(2) provides that a permit must include:
[A]n 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.
The General Permits under the Proposed Rule represent emissions limitations as
production limits, capacity limits, or annual tons per year (tpy), or a combination thereof.
7
Concrete batch plants would have to locate at least 150 feet from the nearest property boundary and 1,000 feet
from the nearest residence. Id. at 41859.
8
The exhaust from each boiler or heater would have to locate at least 50 feet from the nearest property boundary
and 150 from any adjacent residential or commercial establishment or place of public assembly. Id. at 41861.
9
Stationary spark and compression ignition engines would have to locate at least 150 feet from the nearest
property boundary and 1,000 feet from the nearest residence. Id. at 41863.
10
Sawmills would have to locate at least 150 feet from the nearest property boundary and 1,000 feet from the
nearest residence. Id. at 41867.
11
Id. at 41856.
1. Production Limits. The Proposed Rule provides production limits for concrete
batch plants as a surrogate for emissions limitations because there is a direct
correlation between the amount of material processed and pollution emitted.12
Further, facilities currently track information about the material that they process, 13
meaning that their monitoring of compliance with the emissions limitations would
unlikely be very costly, at least not as costly as requiring the facilities to track and
analyze their emissions, many for the first time.
The [NAME OF TRIBE] supports the proposed production limits for concrete batch plants as
surrogates for emissions limitations under the Proposed Rule. However, the [NAME OF
TRIBE] has concerns that the Proposed Rule does not provide for different production limits for
facilities located in attainment and nonattainment areas for particulate matter (PM). The
[NAME OF TRIBE] recommends that EPA look at this issue more closely, taking stock of
where concrete batch facilities are located in Indian Country and the effect of their emissions on
Indian Tribes, particularly those located in PM nonattainment areas.
2. Capacity Limits. The Proposed Rule provides capacity limits for boilers, and
stationary compression ignition and spark ignition engines, as a surrogate for
emissions limitations under the Proposed Rule.14
There are a myriad of capacity limits under the General Permit for boilers and process heaters
depending on their size; and whether the process heaters and the process heaters and boilers
combined are located in ozone attainment (or unclassifiable) or nonattainment (marginal,
moderate, or serious; severe; or extreme) areas.15 The [NAME OF TRIBE] agrees with this
approach, particularly with respect to having lower capacity limits for process heaters and
process heaters and boilers combined located in ozone nonattainment areas, and although we
cannot speak to the specificity of each capacity limit proposed. Further, the [NAME OF
TRIBE] is amenable to EPA’s thoughts about finalizing two boiler general permits, one for
smaller, simpler sources that would use capacity limits; and one for larger, more complex
sources that would use tpy limitations and require additional monitoring and recordkeeping.16
We invite a conversation with EPA on this matter.
The General Permit for stationary spark ignition engines provides different capacity
limits for emergency and non-emergency engine sources.17 The General Permit for stationary
compression ignition engines does the same but further differentiates the capacity limits for
engines based on their location in ozone attainment, unclassifiable, or attainment/unclassifiable
12
Id.
Id.
14
Id.
15
See General Air Quality Permit for New or Modified True Minor Sources Boilers in Indian Country at
http://www.epa.gov/air/tribal/pdfs/gp2/boilers_permit_version_revised_1_0.pdf (last visited on August 10, 2014).
16
See Proposed Rule at 41861.
17
See General Air Quality Permit for New or Modified True Minor Sources Stationary Spark Ignition Engines in
Indian Country at http://www.epa.gov/air/tribal/pdfs/gp2/engines_(si)_permit_version_1_0.pdf (last visited on
August 10, 2014).
13
areas or marginal/moderate ozone nonattainment areas.18 The [NAME OF TRIBE] cannot
comment with any specificity regarding the proposed capacity limit numbers for either source
category, but we agree with the approach under the General Permit for stationary compression
ignition engines that varies capacity limits numbers based on an engine’s location in an ozone
attainment or nonattainment area. The [NAME OF TRIBE] also seeks an explanation from
EPA as to why the General Permit for stationary spark ignition engines does not use a similar
approach.
3. Annual TPY. The Proposed Rule provides tpy emission limitations for graphic arts
and printing operations and sawmills.19
The General Permit for graphic arts and printing operations includes an upper emission
limitation of 25 tpy of VOC from an individual printing press and an overall total tpy emissions
limitations for all printing lines at a facility which become more stringent as the classification of
an ozone nonattainment area increases.20 Further, facilities are required to monitor their material
usage and perform material balance calculations using an EPA calculator to assure their
compliance with the tpy limitations.21 EPA’s rationale for not proposing surrogate throughput
limits for graphic arts and printing operations is because of the diversity of printing lines and
solvents with different VOC contents that a facility may use.22 The [NAME OF TRIBE] agrees
with this approach, particularly with respect to increasing the overall tpy emissions limitations
for all printing lines at a facility based on the increasing classification of the ozone
nonattainment area in which the facility is located.
The General Permit for sawmills provides an emission limitation for a sawmill facility of 25
million board feet on a 12-month rolling total and a total tpy VOC emissions limitations for a
facility regardless of its location.23 The tpy emission limitations become more stringent as the
classification of an ozone nonattainment area increases from marginal to extreme.24 Further,
facilities need to monitor their board-foot production of each wood species and perform emission
factor calculations using an EPA calculator and emissions factors for the wood species to assure
their compliance with the tpy limitations.25 Like the graphic arts and printing operations source
category, EPA did not propose surrogate throughput limits for sawmills because they are apt to
18
See General Air Quality Permit for New or Modified True Minor Sources Stationary Compression Ignition Engines
in Indian Country at http://www.epa.gov/air/tribal/pdfs/gp2/engines_(ci)_permit_version_1_0.pdf (last visited on
August 10, 2014).
19
See Proposed Rule at 41856.
20
See General Air Quality Permit for New or Modified True Minor Sources Graphic Arts and Printing Operations in
Indian Country at
http://www.epa.gov/air/tribal/pdfs/gp2/graphic_arts_printing_operations_permit_version_1_0.pdf (last visited
on August 10, 2014).
21
Id.
22
See Proposed Rule at 41865.
23
See General Air Quality Permit for New or Modified True Minor Sources Sawmill Facilities in Indian Country at
http://www.epa.gov/air/tribal/pdfs/gp2/sawmills_permit_version_1_0.pdf (last visited on August 10, 2014).
24
Id.
25
Id.
use a diversity of wood species which also have varying degrees of emissions.26 The [NAME
OF TRIBE] agrees with this approach, particularly with respect to increasing the overall tpy
VOC emissions limitations based on the increasing classification of the ozone nonattainment
area in which the facility is located.
Endangered Species Act and National Historic Preservation Act
EPA proposes to require minor sources to comply with the ESA and NHPA.27 Permit applicants
would be required to identify and assess the effects of their facilities through the lenses of the
ESA and NHPA and conduct outreach to relevant expert resources agencies, before they could
submit a request for coverage under a General Permit.28
The [NAME OF TRIBE] has concerns about the ability of permit applicants to meet the
compliance requirements of the ESA and NPHA. Not only could time be a factor for permit
applicants, but they might not have the in-house expertise to comply with the ESA and NHPA
requirements and might have to pay a consultant or some other person to do so. As such, this
process could be costly. The [NAME OF TRIBE] wishes to know from EPA whether it has
assessed the time and cost impacts to a permit applicant in complying with the ESA and NHPA.
This could affect how the [NAME OF TRIBE] ultimately view such compliance requirements
for permit applicants.
Permits by Rule
The Proposed Rule provides a Permits by Rule approach for the graphic arts and printing
operations source category.29 EPA finds that this source category emits one pollutant primarily
(e.g., VOCs), has the least variation in pieces of equipment, and the compliance requirements are
straightforward and verifiable.30
The [NAME OF TRIBE] agrees with EPA that there are valid reasons for using the Permits by
Rule approach for the graphic arts and printing operations source category. As EPA notes, this
approach provides a significant time savings for minor sources and reviewing authorities due to
its streamlined approach.31 A minor source would be required only to notify the reviewing
authority that it meets the eligibility criteria for the permit and permit conditions without having
to submit a completed application for review and approval. In turn, the reviewing authority
would not be required to conduct an in depth review of a permit application to evaluate whether
a source meets the permit requirements, having to receive confirmation from the source only that
it meets all of the regulatory criteria that make it eligible for coverage under a Permits by Rule.
Nevertheless, the [NAME OF TRIBE] has concerns that the Permits by Rule approach
does not provide the public, and more specifically, Indian Tribes, with an opportunity for public
26
See Proposed Rule at 41867.
Id. at 41857.
28
Id.
29
Id. at 41868.
30
Id.
31
Id. at 41852.
27
notice and comment about a minor source’s proposed permit coverage. The [NAME OF
TRIBE] prefers that EPA provide a notice and comment period for the Permits by Rule
approach, or at least provide a prescribed consultation process for Tribes. The [NAME OF
TRIBE] understands that this could negatively affect the streamlined approach of the Permits by
Rule approach, but Tribes must be given an opportunity to comment as part of this process if
only to recognize that they are sovereign nations with certain rights set forth by the U.S.
Constitution, treaties, and longstanding legal precedence. The [NAME OF TRIBE] welcomes
an opportunity to discuss this matter with EPA. Otherwise, the [NAME OF TRIBE] must
support using a General Permit approach for the graphic arts and printing operations source
category.
Synthetic Minor Sources
EPA proposes a hybrid approach for the graphic arts and printing operations source category by
which the Permits by Rule would be used for true minor sources and General Permits for major
sources, which through enforceable emission limitations, would become synthetic minor
sources.32 Apart from our concerns earlier expressed about the Permits by Rule approach not
providing for public notice and comment, the [NAME OF TRIBE] finds value in allowing
otherwise major sources to become synthetic minor sources in order to help reduce VOC
emission. Further, it would help such sources avoid meeting the arduous requirements of the
Title V/Prevention of Significant Deterioration programs.
Application Review Period
Title 40 C.F.R. §49.156(e)(4) provides that a reviewing authority must take final action on a
request for a General Permit within 90 days of receiving a completed request. EPA proposes to
amend this section to shorten this period to 45 days for the proposed General Permit for the
graphic arts and printing operations source category. 33 The [NAME OF TRIBE] finds nothing
inherently wrong with shortening the application review period to 45 days based on the type and
number of pollutants emitted by this source category.
Tribal Consultation
EPA provides that the Proposed Rule has Tribal implications.”34 The [NAME OF TRIBE]
finds this to be correct and appreciate EPA’s acknowledgment of it. However, the [NAME OF
TRIBE] takes exception to EPA’s claim that the Proposed Rule will “not impose duties or
responsibilities on tribes.” What EPA neglects to recognize is that a number of Indian Tribes
own and operate facilities covered under some of the source categories identified under the
Proposed Rule. For example, the Confederated Tribes of Warm Springs Reservation of Oregon,
Menominee Indian Tribe, and White Mountain Apache Tribe own and operate sawmills; and the
Fort McDowell Yavapai Nation owns and operates a concrete batch plant. As such, the
Proposed Rule will impose duties or responsibilities on some Tribes that will have to insure that
32
Id. at 41849.
Id.
34
Id. at 41870.
33
their facilities comply with the emissions limitations and other requirements of the Proposed
Rule. The [NAME OF TRIBE] recommends that EPA review more closely the number of
Tribes that own and operate facilities represented by the source categories covered under the
Proposed Rule in order to determine the extent of the duties and responsibilities imposed on such
Tribes.
Conclusion
The [NAME OF TRIBE] is pleased to provide the aforementioned comments and
recommendations regarding the Proposed Rule. Please contact us if you have any questions or
need clarification.
NOTE—If appropriate, provide a staff contact whom EPA may contact if it has questions.