[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR49.22]

[Page 732-734]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 49_TRIBAL CLEAN AIR ACT AUTHORITY--Table of Contents
 
                       Subpart A_Tribal Authority
 
Sec. 49.22  Federal implementation plan for Tri-Cities landfill, Salt 
River Pima-Maricopa Indian Community.

    (a) Applicability. This section applies to the owner or operator of 
the project located on the Reservation of the Salt River Pima Maricopa 
Indian Community (SRPMIC) in Arizona, including any new owner or 
operator in the event of a change in ownership of the project.
    (b) Definitions. The following definitions apply to this section. 
Except as specifically defined herein, terms used in this section retain 
the meaning accorded them under the Clean Air Act.
    Actual emissions means the actual rate of emissions of a pollutant 
from an emissions unit as determined in paragraphs (1)-(3) of this 
definition:
    (1) In general, actual emissions as of a particular date shall equal 
the average rate, in tons per year, at which the unit actually emitted 
the pollutant during a two-year period which precedes the particular 
date and which is representative of normal source operation. EPA shall 
allow the use of a different time period upon a determination that it is 
more representative of normal source operation. Actual emissions shall 
be calculated using the unit's actual operating hours, production rates, 
and types of materials processed, stored, or combusted during the 
selected time period.
    (2) EPA may presume that the source-specific allowable emissions for 
the unit are equivalent to the actual emissions of the unit.
    (3) For any emissions unit which has not begun normal operations on 
the particular date, actual emissions shall equal the potential to emit 
of the unit on that date.
    Begin actual 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 of underground 
pipework, and construction of permanent storage structures. With respect 
to a change in method of operating this term refers to those on-site 
activities other than preparatory activities which mark the initiation 
of the change.
    Building, structure, facility, or installation means all of the 
pollutant-emitting activities which belong to the same industrial 
grouping, are located on one or more contiguous or adjacent properties, 
and are under the control of the same person (or persons under common 
control) except the activities of any vessel. Pollutant-emitting 
activities shall be considered as part of the same industrial grouping 
if they belong to the same Major Group (i.e., which have the same two-
digit code) as described in the Standard Industrial Classification 
Manual, 1972, as amended by the 1977 Supplement (U.S. Government 
Printing Office stock numbers 4101-0065 and 003-005-00176-0, 
respectively).
    Commence as applied to construction of a major stationary source or 
major modification means that the owner or operator has all necessary 
preconstruction approvals or permits and either has: (1) Begun, or 
caused to begin, a continuous program of actual on-site construction of 
the source, to be completed within a reasonable time; or
    (2) 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

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construction of the source to be completed within a reasonable time.
    Construction means any physical change or change in the method of 
operation (including fabrication, erection, installation, demolition, or 
modification of an emissions unit) which would result in a change in 
actual emissions.
    EPA means United States Environmental Protection Agency, Region 9.
    Fugitive emissions means those emissions which could not reasonably 
pass through a stack, chimney, vent, or other functionally equivalent 
opening.
    Lowest achievable emission rate means the more stringent rate of 
emissions based on the following:
    (1) The most stringent emissions limitation which is contained in 
any State, Tribal, or federal implementation plan for such class or 
category of stationary source, unless the owner or operator of the 
project demonstrates that such limitations are not achievable; or
    (2) The most stringent emissions limitation which is achieved in 
practice by such class or category of stationary sources. This 
limitation, when applied to a modification, means the lowest achievable 
emissions rate for the new or modified emissions units within a 
stationary source. In no event shall the application of the term permit 
a proposed new or modified stationary source to emit any pollutant in 
excess of the amount allowable under an applicable new source standard 
of performance.
    Major stationary source means a stationary source of air pollutants 
which emits, or has the potential to emit, 100 tons per year or more of 
any pollutant subject to regulation under the Act. The fugitive 
emissions of a stationary source shall not be included in determining 
for any of the purposes of this project whether it is a major stationary 
source.
    Potential to emit means the maximum capacity of a stationary 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 only if the 
limitation or the effect it would have on emissions is federally 
enforceable. Secondary emissions do not count in determining the 
potential to emit of a stationary source.
    Project means the construction of electricity-generating engines 
owned and operated by the Salt River Project at the Tri-Cities landfill, 
which are fueled by collected landfill gas.
    Secondary emissions means emissions which would occur as a result of 
the construction or operation of a major stationary source, but do not 
come from the major stationary source itself. For the purpose of this 
section, secondary emissions must be specific, well defined, 
quantifiable, and impact the same general area as the stationary source 
which causes the secondary emissions. Secondary emissions include 
emissions from any offsite support facility which would not be 
constructed or increase its emissions except as a result of the 
construction of operation of the major stationary source. Secondary 
emissions do not include any emissions which come directly from a mobile 
source such as emissions from the tailpipe of a motor vehicle, from a 
train, or from a vessel.
    Stationary source means any building, structure, facility, or 
installation which emits or may emit any air pollutant subject to 
regulation under the Clean Air Act.
    (c) Requirement to submit an application. The owner or operator of 
the project shall submit an application for a permit to construct to EPA 
which contains all information necessary to perform any analysis or make 
any determination as required by this Federal Implementation Plan.
    (d) Source obligations. (1) The owner or operator of the project 
shall not begin actual construction on the project without obtaining a 
nonattainment New Source Review permit regulating emissions of air 
pollutants. The EPA Region 9 Regional Administrator has the authority to 
issue such a permit. Any permit issued by EPA shall ensure that the 
project meets the following requirements:
    (i) By the time the project is to commence operation, the owner or 
operator

[[Page 734]]

of the project must have obtained sufficient reductions in actual 
emissions from existing facilities within the same nonattainment area 
which satisfy the requirements of section 173 of the Clean Air Act, to 
offset the potential to emit of the project;
    (ii) The owner or operator of the project must comply with the 
lowest achievable emissions rate;
    (iii) The owner or operator of the project must demonstrate that all 
major stationary sources owned or operated by such person (or by any 
entity controlling, controlled by, or under common control with such 
person) located on the reservation of the SRPMIC are subject to emission 
limitations and are in compliance, or on a schedule for compliance, with 
all applicable emission limitations and standards under the Act; and
    (iv) The owner or operator of the project has provided an analysis 
of alternative sites, sizes, production processes, and environmental 
control techniques for the proposed source which demonstrates that 
benefits of the proposed source significantly outweigh the environmental 
and social costs imposed as a result of its location or construction.
    (2) If the owner or operator constructs or operates the project not 
in accordance with the application submitted pursuant to this section or 
with the terms of any approval to construct, or if the owner or operator 
subject to this section commences construction after January 24 , 2000 
without applying for and receiving approval under this section, then the 
owner or operator shall be subject to appropriate enforcement action.
    (3) Approval to construct shall become invalid if construction is 
not commenced within 18 months after receipt of such approval, if 
construction is discontinued for a period of 18 months or more, or if 
construction is not completed within a reasonable time. The 
Administrator may extend the 18-month period upon a satisfactory showing 
that an extension is justified.
    (4) Approval to construct shall not relieve any owner or operator of 
the responsibility to comply fully with applicable provisions of the 
Federal implementation plan and any other requirements under Tribal or 
Federal law.
    (e) Public participation. (1) When issuing a permit for the project, 
the EPA Region 9 Regional Administrator shall follow the procedures for 
decision making for PSD permits contained in 40 CFR part 124, including 
the requirements for public notice, consideration of and response to 
public comment, and the opportunity for public hearing.
    (2) Within 30 days after the EPA Region 9 Regional Administrator has 
issued a final permit decision, any person who filed comments on the 
draft permit or participated in the public hearing, if one has been 
held, may petition the Environmental Appeals Board to review any 
condition of the permit. Review of the permit decision will be governed 
by the regulations for review of PSD permits contained in 40 CFR part 
124.

[64 FR 65663, Nov. 23, 1999]

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