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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Improving air quality
EPA's Processing Times for
New Source Air Permits in
Indian Country Have Improved,
but Many Still Exceed
Regulatory Time Frames
Report No. 20-P-O146
April 22, 2020
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Report Contributors: Kevin Good
Jim Hatfield
Erica Hauck
Andrea Martinez
Abbreviations
C.F.R.
Code of Federal Regulations
EPA
U.S. Environmental Protection Agency
ETEP
EPA-Tribal Environmental Plan
NAAQS
National Ambient Air Quality Standards
NSR
New Source Review
OAQPS
Office of Air Quality Planning and Standards
OAR
Office of Air and Radiation
OECA
Office of Enforcement and Compliance Assurance
OIG
Office of Inspector General
PSD
Prevention of Significant Deterioration
Cover Image: Map of the ten EPA regions showing Indian Country in green.
(OIG graphic made with data from the U.S. Census Bureau)
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Washington, D.C. 20460
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Learn more about our OIG Hotline.
EPA Office of Inspector General
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Washington, D.C. 20460
(202) 566-2391
www.epa.gov/oiq
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* *. U.S. Environmental Protection Agency 20-P-0146
§ mmj \ Office of Inspector General Apnl 22 2020
U32J1
At a Glance
Why We Did This Project
We conducted this audit to
determine the U.S.
Environmental Protection
Agency's progress in
implementing a Clean Air Act
preconstruction permitting
program, called New Source
Review, for new sources of
emissions and modifications to
existing sources of emissions in
Indian Country.
In 2011, the EPA issued
regulations for developing
permits that contain emission
limitations for new and modified
facilities in Indian Country,
referred to as the tribal NSR
rule. These regulations provide
authority for the EPA to issue
permits for smaller sources of
emissions, called minor
sources, in Indian Country
where tribes do not conduct
such permitting themselves.
The tribal NSR rule set
regulatory time frames that
range from 90 to 365 days for
processing minor-source
permits, depending on the
permit type. We assessed
whether the EPA had met
these time frames for permit
applications received from
2011 to August-October 2018.
This report addresses the
following:
• Improving air quality.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
EPA's Processing Times for New Source Air Permits
in Indian Country Have Improved, but Many Still
Exceed Regulatory Time Frames
What We Found
Of the tribal minor-source-NSR permits that the
EPA issued between 2011 and August to
October 2018, 62 percent exceeded the
applicable regulatory time frame. In addition, more
than half of the permits still in process exceeded
the applicable time frame. However, since 2011,
the average number of days it has taken the EPA
to issue two types of minor-source permits has
declined. Further, the EPA processed permits for
Delays in processing
tribal-NSR permits could
impact construction
projects and increase the
risk that existing facilities
awaiting a permit could be
emitting more pollution
than would be allowed if
they were operating under
an approved permit.
the construction of new facilities faster than it
processed permits for existing facilities. Processing permits for new facility
construction is more critical since delays could have negative economic impacts
on industry and tribal communities.
The main causes of permitting delays included time-consuming back-and-forth
communication between the applicant and the EPA during the application
process, as well as competing and limited resources. In April 2018, staff and
managers from EPA headquarters and regions met to identify ways to make the
NSR permitting process more efficient, but they have not implemented all the
recommendations from that meeting. The EPA began tracking processing times
in the summer of 2018.
In addition, not all EPA regions were accurately documenting the date that
applications were deemed complete, which is the basis for computing processing
time frames. Without accurate application completion dates, the Agency cannot
accurately assess the timeliness of permitting actions. We also found that the
EPA does not have a systematic approach to identify non-filers, which are
facilities on tribal lands that need an NSR permit but have not applied for one.
Recommendations and Planned Agency Corrective Actions
We recommend that the EPA (1) establish a permit tracking system that is
accessible to both applicants and the EPA, (2) develop guidance for the EPA
regions on how to properly determine the date an application is considered to be
complete for tracking purposes, (3) develop a strategy to periodically coordinate
with tribes to identify potential non-filers, and (4) develop a strategy to conduct
outreach to industry to educate facilities on their permitting responsibilities. The
Agency agreed with our recommendations and provided acceptable corrective
actions and completion dates.
List of OIG reports.
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S ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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PRO**4,
THE INSPECTOR GENERAL
April 22, 2020
MEMORANDUM
SUBJECT: EPA's Processing Times for New Source Air Permits in Indian Country Have Improved,
but Many Still Exceed Regulatory Time Frames
Report No. 20-P-0146
FROM: Sean W. O'Donnell
TO: Ann Idsal, Principal Deputy Assistant Administrator
Office of Air and Radiation
This is our report on the subject audit conducted by the Office of Inspector General of the
U.S. Environmental Protection Agency. The project number for this audit was OA&E-FY18-0267. This
report contains findings that describe the problems the OIG has identified and corrective actions the OIG
recommends.
The Office of Air and Radiation has primary responsibility for the subjects discussed in this report.
In accordance with EPA Manual 2750, your Office provided acceptable corrective actions and milestone
dates in response to OIG recommendations. All recommendations are resolved and no final response to
this report is required. However, if you submit a response, it will be posted on the OIG's website, along
with our memorandum commenting on your response. Your response should be provided as an Adobe
PDF file that complies with the accessibility requirements of Section 508 of the Rehabilitation Act of
1973, as amended. The final response should not contain data that you do not want to be released to the
public. If your response contains such data, you should identify the data for redaction or removal along
with corresponding justification.
We will post this report to our website at www.epa.gov/oig.
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EPA's Processing Times for New Source Air
Permits in Indian Country Have Improved,
but Many Still Exceed Regulatory Time Frames
20-P-0146
Table of C
Chapters
1 Introduction 1
Purpose 1
Background 1
Responsible Offices 7
Scope and Methodology 7
Prior Report 8
2 EPA Improved Timeliness of Its Minor-Source Permits,
but Majority Still Exceeded Regulatory Time Frames 9
Majority of Permits Issued by EPA Exceeded Regulatory Time Frames 9
EPA Emphasized Issuing Permits for New Construction and
Decreased Processing Times for Minor Sources Overall 12
Over Half of Pending Permits Exceeded Regulatory Time Frames 15
Several Factors Delayed Permit Processing, and Processing Times
Were Not Tracked to Assess Timeliness 15
Tribal Communities and Facilities Could Be Affected
by Permitting Delays 17
EPA Actions to Improve NSR Permitting Efficiencies 17
Conclusions 18
Recommendations 19
Agency Response and OIG Assessment 19
3 All Regions Did Not Determine and Document Application
Completion Dates in Accordance with Regulations 20
Requirements for Determining Application Completion Date 20
Regions 6 and 9 Determined and Documented Improper
Application Completion Dates 20
Using Wrong Application Completion Date Results in
Inaccurate Assessment of Permit Processing Timeliness 21
Conclusions 22
Recommendation 22
Agency Response and OIG Assessment 22
- continued -
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EPA's Processing Times for New Source Air
Permits in Indian Country Have Improved,
but Many Still Exceed Regulatory Time Frames
20-P-0146
4 EPA Does Not Take Regular Actions to Identify Non-Filers
or Conduct Outreach to Industry 23
EPA Can Coordinate with Tribes to Identify Non-Filers Through
EPA-Tribal Environmental Plans 23
EPA Has Not Conducted Continued Outreach to Industry 24
Tribes, States, and External Parties Have Provided EPA
with Tips About Non-Filers 24
Conclusions 25
Recommendations 25
Agency Response and OIG Assessment 25
Status of Recommendations and Potential Monetary Benefits 26
Appendices
A Details on Scope and Methodology 27
B Agency Response to Draft Report 31
C Distribution 35
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Chapter 1
Introduction
Purpose
The Office of Inspector General for the U.S. Environmental Protection Agency
conducted this audit to determine the EPA's progress in implementing a Clean Air
Act preconstruction permitting program called New Source Review for new
sources of emissions and modifications to existing sources of emissions in Indian
Country. Specifically, we sought to determine:
1. The number of NSR permit applications that have been
received and processed.
2. The number of NSR applications that are pending approval
and reasons for any delays.
3. The procedures or systems in place for identifying sources
that are potentially subject to NSR permit requirements but
have not submitted a permit application.
Background
NSR is a preconstruction air permitting program under the Clean Air Act that
requires owners and operators of industrial facilities to install modern pollution
control equipment when the facilities are built or when making a change to
existing facilities that significantly increases emissions, as defined by the
applicable regulations. The program requires the owner or operator to obtain a
permit from the applicable permitting authority before construction begins. The
purpose of the NSR program is to protect public health and the environment by
ensuring that air quality:
• Does not worsen where the air is currently unhealthy to breathe, that is, in
nonattainment areas, which are areas not in attainment with the National
Ambient Air Quality Standards. The NAAQS are health-based standards
that the Clean Air Act requires the EPA to establish for pollutants that are
common in outdoor air, that are considered harmful to public health and
the environment, and that come from numerous and diverse sources.
• Is not significantly degraded where the air is currently clean, that is, in
attainment areas, which are areas that are in attainment with the NAAQS.
As shown in Figure 1, the EPA administers NSR through three different types of
permits, each with a different set of requirements depending on whether the
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facility is a major or minor source of air pollution and is located or locating in an
area that is in attainment or nonattainment with the NAAQS. A major source is a
facility that has the potential to emit regulated pollutants equal to or above certain
emission thresholds.1 A minor source is a facility that emits pollutants above a
certain level but below the major source thresholds.2
Figure 1: Types of permits issued under the NSR program
The NSR program is the umbrella program under which the following permits fall.
Prevention-of-significant-
deterioration, or PSD,
permits.
These permits are issued for
the construction of a new
major source or a major
modification to an existing
source in areas that are in
attainment with the NAAQS.
Nona ttainmen t-NSR
permits.
These permits are issued for
the construction of a new
major source or a major
modification to an existing
source in an area that is not
in attainment with one or
more of the NAAQS.
Minor-source-NSR
permits.
These permits are issued for
the construction of a new
minor source or minor
modification to an existing
source, both in areas that
are in attainment or
nonattainment with the
Source: OIG analysis.
The pollutants regulated by NSR include those that are covered by the NAAQS.
Table 1 lists the NAAQS pollutants and their impact
Table 1: Health impacts of NAAQS pollutants
Pollutant
Health impacts
Ozone
Exposure can cause coughing or a sore or scratchy throat; inflame and damage the
airways; and aggravate lung diseases such as asthma, emphysema, and chronic
bronchitis.
Particulate
Matter
Exposure is linked to a variety of problems, including decreased lung function, increased
respiratory problems, and premature death in people with heart and lung disease.
Carbon
Monoxide
Exposure to very high levels can cause dizziness, confusion, unconsciousness, and death.
Short-term exposure to elevated levels may result in reduced oxygen to the heart
accompanied by chest pain.
Sulfur
Dioxide
Short-term exposure can harm the respiratory system and make breathing difficult.
Lead
Exposure can adversely affect the nervous system, kidney function, immune system,
reproductive and developmental systems, the cardiovascular system, and the oxygen-
carrying capacity of the blood. It can also contribute to behavioral problems, learning
deficits, and lowered IQ in infants and young children.
Nitrogen
Dioxide
Short periods of exposure can cause irritation of airways in the respiratory system and
aggravate respiratory diseases, particularly asthma. Longer exposures can contribute to
the development of asthma and potentially increase susceptibility to respiratory infections.
Source: The EPA.
1 For major sources in nonattainment areas, the major source threshold is generally 100 tons per year of a regulated
pollutant but can be lower for areas with severe pollution problems. For major sources in attainment areas, the
threshold is 100 tons per year of a regulated pollutant for facilities within 28 specific industry classes and 250 tons
per year of a regulated pollutant for all other facilities.
2 Under the 2011 tribal minor-source NSR rule, a minor source is a source, not including the exempt emissions units
and activities listed in 40 C.F.R. § 49.153(c), that has the potential to emit regulated NSR pollutants in amounts that
are less than the major source thresholds in 40 C.F.R. § 49.167 or § 52.21, as applicable, but equal to or greater than
the minor-source NSR thresholds in 40 C.F.R. § 49.153.
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2011 Tribal NSR Rules
In 2011, the EPA issued two rules establishing a federal program for issuing
nonattainment-NSR permits and minor-source-NSR permits in Indian Country.3
Under these rules, a source owner or operator must apply for a permit before
bui lding a new faci lity or expanding an existing one if the facility increases
emissions above any of the thresholds included in the rules. One of the goals of the
rules was to develop a minor-source permitting program that is comparable to
those implemented by the states. Such a program would provide industries in
Indian Country the same permitting opportunities as industries have in the states.
Prior to these rules, the EPA had requirements in place just for PSD permits in
Indian Country.
Tribes can implement the NSR permitting requirements on their lands if they have
an EPA-approved program to do so. The EPA is responsible for issuing NSR
permits in Indian Country where an approved tribal program does not exist, which
includes most of Indian Country. As of November 2018, when we conducted this
assessment, out of 573 federally-recognized tribes, only two had authority to issue
NSR permits for minor sources. The EPA was responsible for all other permitting
in Indian Country. Figure 2 shows the locations of Indian Country within the ten
EPA regions.
Figure 2: Indian Country within the EPA regions
•Source: OIG map developed with data from the U.S. Census Bureau.
Note: The numbers represent the ten EPA regions. Green areas represent Indian Country, This
map provides a basic understanding of the location of Indian Country in the different EPA
regions. It is not intended as a legal representation.
3 Indian Country includes but is not limited to tribal reservation lands. Specifically, Indian Country means (1) all land
within limits of any Indian reservation under the jurisdiction of the U.S. government notwithstanding the issuance of
any patent and including rights-of-way running through the 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. 18 U.S.C. § 1151; 40 C.F.R. § 171.3. The U.S.
Court of Appeals for the District of Columbia, in Oklahoma Department of Environmental Quality v. EPA, 740 F.3d
185 (D.C. Cir. 2014), issued a decision preventing the EPA from implementing the tribal NSR rule for nonreservation
areas of Indian Country until a tribe, or the EPA on behalf of a tribe, demonstrates tribal authority over those areas.
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Tribal Minor-Source NSR Rule
The tribal minor-source NSR rule applies to new or modified industrial facilities
with a potential to emit equal to or more than the minor NSR thresholds but less
than the major NSR thresholds. It also applies to minor modifications at existing
major sources. The rule established several types of permits for minor sources,
described in Figure 3.
Figure 3: Types of tribal NSR minor-source permits
Synthetic-
minor
permits
Sources that would otherwise be major sources based on their potential to
emit can voluntarily take enforceable emission limitations so that their
potential to emit is less than the major source threshold. Under the tribal minor
source NSR rule, synthetic-minor permits can be issued for both regulated
NSR pollutants and hazardous air pollutants.3 The rule allowed facilities built
before August 30, 2011, to apply for synthetic-minor permits. In general, these
existing facilities had to apply for a permit by September 4, 2012.b
Site-specific
permits
Site-specific permits include a case-by-case control technology review and, at
the discretion of the region, an Air Quality Impacts Analysis (air dispersion
modeling) to assess air quality impacts from air pollutant emissions from the
facility. These types of permits can apply to new or modified minor sources
and to minor modifications at a major source.
General
permits
General permits can be applied to many similar equipment types or facilities.
The purpose of a general permit is to simplify the permit issuance process for
facilities that have similar emissions units and emissions and would be subject
to similar requirements governing operations, emissions, monitoring,
reporting, and recordkeeping.
Source: The EPA.
a Although the NSR program does not regulate hazardous air pollutants, the 2011 tribal minor-
source NSR rule allows a major hazardous air pollutant source to obtain federally enforceable
limits on its potential to emit to not be subject to the major source maximum achievable control
technology regulations under 40 C.F.R. Part 63.
b For facilities built before August 30, 2011, that were already permitted as synthetic minor
facilities in a 40 C.F.R. Part 71 operating permit, the permitting authorities (i.e., the EPA regions)
had the discretion to allow the facilities to apply for a synthetic-minor permit at the time they
renewed their Part 71 operating permit, rather than by September 4, 2012, under 40 C.F.R.
§ 49.158.
Tribal Major-Source NSR Rule
The tribal major-source NSR rule establishes a preconstruction permitting
program for new major sources or major sources that make significant
modifications in areas of Indian Country that do not meet the NAAQS. These
types of permits are referred to as nonattainment-NSR permits. Requirements for
nonattainment-NSR permits include the following:
• Installing emissions controls. These controls have to meet the lowest
achievable emission rate, which is the most stringent emission limitation
for a category or class of facility that has been achieved in practice or is
contained in any state's implementation plan. A state implementation plan
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is an EPA-approved plan that is made up of various air pollution control
measures and activities that a state will implement to meet the NAAQS.
• Obtaining emissions offsets. New or modified major sources contributing
to increased emissions must obtain emissions reductions from other
sources that are equal to or greater than the new proposed emissions.
• Certifying compliance. Each permit applicant must certify that all other
facilities owned or operated by the applicant in the same state as the new
or modified source comply with all applicable emission limitations and
standards under the Clean Air Act.
In conjunction with the PSD permit requirements that were in place before 2011,
the provisions of the 2011 rules for minor-source permits and nonattainment-NSR
permits ensured that all types of new and modified sources in Indian Country
would be subject to permitting requirements.
Permit Processing Time Frames
The 2011 tribal minor NSR rule established specific time frames for processing
minor-source permits. This includes time frames for (1) reviewing the permit
applications for completeness and (2) how quickly the EPA issues or denies a
final permit based either on the date the application was deemed complete (for
synthetic-minor permits, site-specific-minor permits, and permits for minor
modifications at major sources) or when the request for coverage was received
(for general permits). For synthetic-minor permits and permits for minor
modifications at major sources, the EPA is to issue or deny the final permit within
one year of determining the application to be complete and within 135 days for
site-specific-minor-source permits. For general permits, the EPA must grant or
deny the request for coverage within 90 days of receipt.
The tribal minor NSR rule includes specific provisions for when a permit
application is to be deemed complete, which apply to synthetic-minor, site-
specific-minor, and minor-modification-at-major-source permits. After receiving
an application for one of these types of permits, the EPA is to notify the applicant
either that the Agency has determined the application to be complete or that the
Agency is requesting additional information. This notification should be
postmarked within 60 days of receipt of the permit application, or 45 days for
site-specific-minor permits. If the EPA does not request additional information or
send a notice of application completeness within this time frame, then the
application will be deemed complete after 60 days, or 45 days for site-specific
minor sources.
The EPA does not provide such specific requirements for nonattainment- NSR
and PSD sources. The only requirement is that PSD permits should be issued
within one year of the date the EPA determines the application to be complete.
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There are no specific statutory or regulatory time frame requirements for
nonattainment-NSR permits. Table 2 shows the time frames for each type of
permit, along with the statutory or regulatory basis for the different time frames.
Table 2: Regulatory and statutory review times for types of permits
Permit type
Source type
EPA review of
application and
determination of
completeness
Final decision time frame
Applicable statute
or regulation
PSD—major
sources
New major source
N/A
One year to grant or deny
permit after the date of
complete application.
Clean Air Act § 165(c)
Major modification
N/A
One year to grant or deny
permit after the date of
complete application.
Clean Air Act § 165(c)
Nonattainment
—major source
New major source
N/A
N/A
Clean Air Act § 173
40 C.F.R. §49.166
Major modification
N/A
N/A
Clean Air Act § 173
40 C.F.R. §49.166
Synthetic minor,
Indian Country
Synthetic minor
source
60 days
One year to grant or deny
permit after the date the
application is deemed
complete and all additional
information necessary to
make an informed decision
has been provided.
40 C.F.R.
§ 49.158(b)(2) and
§ 49.158(b)(7)
Minor
modification at
a major source,
Indian Country
Major source
seeking a minor
modification
60 days
One year to grant or deny
permit after the date the
application is deemed
complete and all additional
information necessary to
make an informed decision
has been provided.
40 C.F.R.
§ 49.154(b)(1) and
§ 49.154(b)(4)
Site-specific
minor, Indian
Country
Minor source
45 days
135 days to grant or deny
permit after the date the
application is deemed
complete and all additional
information necessary to
make an informed decision
has been provided.
40 C.F.R.
§ 49.154(b)(1) and
§ 49.154(b)(4)
General permit,
Indian Country
Minor source
45 days
90 days to grant or deny
request for coverage under
the general permit from the
date of receipt of the
request.
40 C.F.R.
§ 49.156(e)(3) and
§ 49.156(e)(4)
Source: OIG analysis of the Clean Air Act and 40 C.F.R. Part 49.
Efforts to Improve Efficiency of NSR Program
The 1'Y 2018-2022 U.S. EPA Strategic Plan includes an Agency priority goal to
accelerate permitting-related decisions, which includes modernizing the Agency's
permitting practices to increase the timeliness of reviews and decisions. To
accomplish this, the Plan states that the EPA would employ business process
improvement strategies, such as Lean. The EPA defines Lean as "a set of
principles and methods used to identify and eliminate waste in any process." In
April 2018, the Office of Air Quality Planning and Standards, commonly known
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as the OAQPS, led a Lean workshop to streamline the NSR permitting process
with the initial goal of issuing the permits within six months of receiving an
application. This goal was later revised to one year to align with most regulatory
and statutory NSR permitting time frames. The workshop was focused on all
EPA-issued NSR permits, not just tribal-NSR permits. The event participants
included staff from the OAQPS and EPA regions and resulted in eight
recommendations to improve the NSR permitting process. The OAQPS is
responsible for establishing workgroups to implement the recommendations and
action items resulting from the Lean workshop.
Responsible Offices
The OAQPS, within the EPA's Office of Air and Radiation, is responsible for
oversight of the tribal NSR program, while the regional offices are responsible for
issuing individual tribal-NSR permits. The EPA's Office of Enforcement and
Compliance Assurance, along with the EPA regions' enforcement offices, are
responsible for assuring compliance with the permitting requirements and taking
appropriate enforcement action when those requirements are not met.
Scope and Methodology
We conducted our performance audit from August 2018 through February 2020 in
accordance with generally accepted government auditing standards. Those
standards require that we obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our objectives. We
believe the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
To address our overall objective, we requested tribal-NSR permitting data from
all EPA regions for each permit ever issued by the Agency. This included dates
for the following: permit application received, application deemed complete,
public comment period, and final permit issued. We verified all dates using
permitting documentation, including permit applications, final permits, notices for
public comment periods, and technical support documents. Using the verified
dates, we then calculated the time elapsed between the date the application was
deemed complete (for general permits, the date the request for coverage was
requested) and the date the final permit was issued, and we compared that to the
applicable regulatory time frames. We conducted this analysis for all permits with
applications received in 2011 or later. This included permitting actions for
synthetic-minor, site-specific-minor, minor-modifications-at-major-sources, and
general permits under the tribal NSR program, as provided to the OIG by each
EPA region that had issued tribal-NSR permits. Our analysis included appealed
permits but did not include administrative revisions, withdrawn permits, or
permits that are no longer in effect. The analysis was conducted as of the date we
obtained data from the individual regions, as shown in Table 3. Thus, the cut-off
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date for the time frame of our analyses varied slightly by region. At the time we
conducted our analyses, Regions 1-4 had not issued any tribal-NSR permits.
Table 3: Dates regions provided requested data
Region
Date data was obtained
Region 5
9/26/18
Region 6
8/23/18
Region 7
10/18/18
Region 8
10/9/18
Region 9
8/28/18
Region 10
9/27/18
Source: OIG analysis of data obtained from EPA regions.
In addition, we interviewed EPA staff and managers in the OAQPS on multiple
occasions, as well as staff in the Office of the Administrator's Office of
Continuous Improvement and OECA. We also interviewed EPA regional
managers and staff in Regions 5-10 to discuss their implementation of the tribal-
NSR permitting program, the results of our analysis about the timeliness of tribal-
NSR permits, and actions they took to identify facilities that need to obtain a
permit but have not (that is, non-filers). In addition, we interviewed
representatives from three tribes. These tribes are larger and have more
infrastructure than many other tribes, and thus they may not be representative of
all tribes. For more details on our methodology, see Appendix A.
Prior Report
In June 2012, the U.S. Government Accountability Office issued a report on NSR
titled, Air Pollution: EPA Needs Better Information on New Source Review
Permits (GAO-12-590). The report was related to the NSR air permitting program
in general and was not specific to the EPA's tribal NSR program. The
Government Accountability Office reported that the EPA did not have complete
information on NSR permits issued to fossil fuel electricity generating units, and
that the EPA did not have complete or centralized information on permits. The
Government Accountability Office recommended that the EPA, among other
actions, consider ways to develop a centralized source of data on NSR permits
issued to electricity-generating units to enhance oversight of NSR permitting and
enforcement. The EPA expressed its commitment to filling gaps in its data
systems but disagreed with the action the Government Accountability Office
recommended and did not implement the recommendation.
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Chapter 2
EPA Improved Timeliness of Its
Minor-Source Permits, but Majority Still
Exceeded Regulatory Time Frames
From 2011 through August-October 2018, the EPA issued 91 minor-source
permits, 61.5 percent of which were not issued within the applicable regulatory
time frame. During this same period, the EPA decreased the processing time to
issue permits for synthetic and site-specific minor sources. However, as of
August-October 2018, when the regions provided their data to the OIG, more
than half of the pending permits had already exceeded the regulatory time frame.
Thus, while the processing times overall have improved since 2011, the EPA was
still not issuing the majority of minor-source permits within the regulatory time
frames. Permits that are not issued within the regulatory time frame can have a
negative financial impact on tribal communities and facilities and permits for
construction of new sources are most susceptible to these effects. We found that
permits for new construction sources were more likely to meet the regulatory time
frames than permits for existing sources, indicating that the EPA has prioritized
issuing permits for these types of facilities.
The EPA regions have exceeded the regulatory time frame for issuing permits for
several reasons, including:
1. Applicants submitting incomplete applications.
2. A learning curve in the initial years of the tribal NSR program.
3. Lack of priority and resources to implement the program.
The EPA can increase the number of permits that are issued within the regulatory
time frame by implementing a tracking system that is accessible to the EPA and
permit applicants and improving the permit application process.
Majority of Permits Issued by EPA Exceeded Regulatory Time Frames
From the time the tribal minor-source NSR rule went into effect in 2011 until the
dates we conducted our analysis for each region in 2018, the EPA issued
91 minor-source permits. All these permits were issued in Regions 5-10. The
number and type of permits issued varied by region, as shown in Figure 4.
Region 8 issued 44 minor-source permits, the most of any region and nearly half
of the total minor-source permits issued by the EPA. By comparison, Region 7
issued two minor-source permits.
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Figure 4: Type and number of permits issued by EPA Regions 5-10
Region b
Region /
Region 8
Region 9
Region 10
Region 6
Synthetic General
minor
Site- Minor
specific modification
at a major
source
Source: OIG analysis of permit data.
From 2011 through August-October 2018, the EPA
regions did not process and issue 61.5 percent of
minor-source permits within the regulatory time
frames specified in the tribal minor-source NSR
regulations. The EPA issued 91 minor-source
permits during this time frame, and 56 of these
permits exceeded the applicable regulatory
processing time frame. Table 4 shows, by permit
type, the number of permits issued and the percent
of permits that exceeded the applicable regulatory
time frame.
Permits that exceeded the
regulatory time frame
56 of 91 tribal minor NSR permits were not issued
within the required regulatory time frame.
Source: OIG analysis of permit data.
Table 4: Average permit processing times for minor-source permits
Permit type
Permits
issued
Percentage of permits that
exceeded regulatory time frame
Synthetic minor
53
69.8%
Site-specific minor
13
53.9
Minor modification at a major source
2
100
General3
23
43.5
All minor source permits
91
61.5%
Source: OIG analysis of permit data.
a For general permits, this represents the time between when the request for coverage was
received and when the request was approved.
In addition to the minor-source permits discussed above, there were two major-
source-PSD permits issued by Region 9 in tribal areas. Both were issued within
the one-year regulatory time frame for major-source permits. We only counted
permits whose applications were received in or after 2011 and were the first PSD
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permit issued to the facility. We also did not count permits that were for
administrative revisions.
Average Time Taken to Issue Tribal Minor-Source Permits by Region
The regions varied in the time it took to issue permits. When looking at the
average number of days it took the regions to process minor-source permits, only
the following regions met the respective time frames:
• Region 5 met the regulatory time frame for synthetic-minor-source permits.
• Region 9 met the regulatory time frame for site-specific-minor-source
permits.
• Region 8 met the regulatory time frame for general permits.
We analyzed minor-source permits issued by the regions to identify outliers in
terms of processing time by permit type. Outliers are permits that took an
exceptionally long time to issue and differ significantly from the processing time
of other permits. Outliers for synthetic-minor-source and general permits took
longer than 1,811 and 441 days, respectively, to process. We identified two
synthetic-minor-source permits issued by Regions 6 and 7 that were outliers. We
did not identify any outliers for site-specific-minor-source permits, but we did
identify four outliers for general permits, all issued by Region 10. Figures 5, 6,
and 7 show, by permit type, the average processing time for each region. The
figures to the right show the average processing times with the outliers removed,
if applicable. The red line in each figure indicates the applicable regulatory time
frame for the number of days between the application being deemed complete and
the final permit being issued.
Figure 5: Average number of days from application being deemed complete to permit issuance for
synthetic-minor permits by region, with outliers (left) and with outliers removed (right)3'b
a) 500
oi 1500
' 1000
E 500-
10
Region
Region
Source: OIG analysis of permit data.
a A region is not shown if it did not issue any tribal-minor-NSR-synthetic-minor permits.
b The red line indicates the 365-day regulatory time frame for synthetic minors.
Region
10
Limit
365-day regulatory time frame
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Figure 6: Average number of days from application being deemed complete to permit issuance for
site-specific-minor permits, by region3'b
Region
Limit
- 135-day regulatory time frame
Region
Source: OIG analysis of permit data.
a A region is not shown if it did not issue any site-specific-tribal-minor-NSR permits.
b The red line indicates the 135-day regulatory time frame for site-specific-minor sources.
Figure 7: Average number of days from request for coverage to request granted for general
permits, by region, with outliers (left) and with outliers removed (right)3'b
Region
90-day regulatory time frame
8 9 10 8 9 10
Region Region
Source: OIG analysis of permit data.
a A region is not shown if it did not issue any general permits.
b The red line indicates the 90-day regulatory time frame for general permits.
EPA Emphasized Issuing Permits for New Construction and
Decreased Processing Times for Minor Sources Overall
Our analysis found that the EPA emphasized issuing permits for the construction
of new facilities. While there were still some that exceeded the regulatory time
frames, a greater percentage of these met the regulatory time frames compared to
permits for existing sources with and without construction projects. In addition,
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the EPA improved its processing times between 2011 and 2017 for synthetic-
minor-source and site-specific-minor-source permits.
Permits for New Construction Were More Likely to Be Issued Within
Regulatory Time Frames
Permits for new construction were more likely to be issued within the regulatory
time frames than permits for existing facilities. Figure 8 shows the percentage of
permits that exceeded the applicable regulatory time frame for three different
categories of permits: permits involving construction of a new source; permits
involving construction at an existing facility;4 and permits for an existing facility
with no construction, such as facilities taking synthetic-minor-source status.
Figure 8: Percentage of permits exceeding the applicable regulatory time frame,
by construction status
Existing facilities Existing facilities
with construction no construction
Construction of
new facilities
aa
50% ¦ ¦ 83% ¦
KJKJ
4 of 22 permits for
construction of a new
facility exceeded the
regulatory time frame
8 of 16 permits for
construction at an existing
facility exceeded the
regulatory time frame
44 of 53 permits for an
existing facility with no
construction exceeded the
regulatory time frame
Source: OIG analysis of permit data.
In addition, we found that of all the permits that exceeded the regulatory time
frames, those for construction of new facilities accounted for 7 percent, those for
modifications at existing facilities accounted for 14 percent, and those for existing
facilities with no construction accounted for the remaining 79 percent, as shown
in Figure 9. This suggests that the EPA emphasized issuing permits that involved
new construction. Processing permits for new facility construction is more critical
since delays could have negative economic impacts on industry and tribal
communities. Figure 10 shows the number of permitting actions that exceeded
regulatory time frames and whether they involved new construction for each
permit type.
4 We included any permit that was for new construction at an existing facility and did not determine whether it met
the definition of "modification" per the regulations for the purpose of this construction-related analysis.
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Figure 9: Percentage of issued permits that exceeded regulatory time frames by
construction status
Reason for permit
Existing facility with construction
Construction of a new facility
Existing facility (no construction)
Source: OIG analysis of permit data.
Figure 10: Number of issued permits that exceeded regulatory time frames by
permit type and whether they involved construction
General site- Minor Synthetic
specific modification minor
at a major
source
Source: OIG analysis of permit data.
Reason for permit
Existing facility with construction
Construction of a new facility
Existing facility (no construction)
EPA Decreased Number of Processing Days to Issue Synthetic-
Minor-Source and Site-Specific-Minor-Source Permits From 2011
Through 2017
Although most minor-source permits issued since
the start of the tribal minor-source NSR program
did not meet regulatory processing time frames,
the EPA decreased the processing time for both
synthetic-minor-source and site-specific-minor-
source permits. From 2011 through 2017, the last
year for which we had a full year's data, the
processing time for synthetic-minor-source
permits decreased by an average of 119 days per
year. Over the same period, the processing time
Synthetic
Site-
specific
g. .i
+-»
-------
for site-specific-minor-source permits decreased by an average of 87 days per
year. When the outliers for general permits are removed, there was not a
statistically significant decrease in processing time for these types of permits from
2011 through 2017.
Over Half of Pending Permits Exceeded Regulatory Time Frames
Although the EPA is issuing permits more quickly, we found that more than half
of the permits pending at the time of our review exceeded the regulatory time
frame. As of the dates when we obtained data from the regions in the fall of 2019,
there were 20 pending permitting actions for minor-source permits. All the
pending permits were received in 2016 and 2018, except for one that was received
in 2014. Seventeen applications had already been deemed complete, and we were
thus able to conduct timeliness analyses for those actions. We found that ten of
the 17 permits, all synthetic-minor-source permits, had already exceeded the
regulatory permitting time frame.
There was no significant statistical difference when comparing the percentage of
issued permits (from 2011 through 2018) that exceeded the regulatory time frame
to the pending permits that had already exceeded the regulatory time frame. This
suggests that, although the processing time has decreased, the percentage of
permits that are not being issued within the regulatory time frame has not
improved for minor-source permits. There was also one pending major-source-
PSD permit in Region 10, which was within the regulatory permitting time frame.
Several Factors Delayed Permit Processing, and Processing Times
Were Not Tracked to Assess Timeliness
Three key factors contributed to delays in permit processing times: (1) back-and-
forth between regions and applicants to obtain a full application, (2) a learning
curve in the early years of the program, and (3) competing priorities and
resources. In addition, from the start of the program until 2018, the OAQPS did
not have a centralized and comprehensive system to conduct oversight of the
permit issuance process, including tracking the timeliness of permit processing
from completed application to permit issuance.
Obtaining Complete Applications Is Often Time-Consuming and Can
Lead to Delays
The application process was one of the issues identified at the EPA's Lean NSR
event for improvement in April 2018. One area of the process that can take a long
time is obtaining required information from applicants. Regions spent a
considerable amount of time, sometimes months, communicating with the
applicant to obtain all the needed information to determine an application to be
complete and develop a draft permit. Some of this back-and-forth occurred
because some facilities are small operations and the staff could be unfamiliar with
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permitting requirements. In one instance, the EPA requested additional
information from an applicant on multiple occasions over an eight-month period.
Overall, it took nine months before the region considered the application to be
complete. A representative from another company told us that it was not as
responsive as it could have been to the EPA's request for additional information
since it was an existing facility seeking a synthetic-minor-source permit and there
was no urgency.
Regions Faced Learning Curve in Initial Years of Program
Regions told us that in the beginning of the program, the regulatory time frames
were not met because there was a learning curve in implementing the new
program, which is supported by our data. The regions told us that one reason for
the delays was because they were waiting for guidance from the OAQPS on how
to handle new issues or needed to work through novel situations. One example the
regions provided was determining when to conduct modeling for site-specific-
minor- source permits, as the regulations leave that largely up to the discretion of
the permitting authority. At a meeting on June 19, 2019, regional managers told
us that they recently started a workgroup to share ideas about modeling and
develop consistent practices across the regions. They also told us in this meeting
that they did not need written guidance from the OAQPS on this topic.
Regions Lacked Resources to Prioritize Tribal-NSR Permits
Competing priorities within the regions have contributed to permits exceeding
regulatory time frames. For example, according to one of the regional section
chiefs for the Air Permits Program, the region paused its tribal-NSR permitting
program from 2012 to 2014 to prioritize issuing greenhouse gas permits in one of
the region's states. That state did not take delegation of the greenhouse gas
program from the EPA and large construction projects were awaiting permits. In
addition, the EPA's Lean event briefing documents cited competing priorities as a
root cause for permitting delays for the entire NSR permitting program. Regions 6
through 10 told us they experienced workload issues, limited resources (including
staff), or competing priorities. For example, Region 8 told us that due to limited
staff, it had to focus on permits for new construction before other permits. The
Region has since acquired two additional staff to develop permits.
EPA Has Not Comprehensively Tracked Processing of Minor-Source
Permits
The OAQPS has not tracked the timeliness of permitting actions from application
completion to permit issuance in a consistent or comprehensive manner. From the
start of the program until mid-2018, the OAQPS did not have a centralized and
comprehensive database to conduct oversight of the permit issuance process. The
OAQPS uses a database called the OAR Tribal System to track tribal permits.
However, that database does not track permit timeliness from application
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completion to permit issuance, nor do all the regions input data into the system in
a comprehensive and accurate manner. In 2018, the OAQPS started collecting
permitting information in a permit tracker database, which was developed to
address an overarching permit timeliness initiative in the Office of Continuous
Improvement. This database does track permit timeliness, but only for permits
issued after the database was implemented.
According to a program specialist in the OAQPS, the Office recently allocated
$500,000 to develop the Electronic Permit System for EPA-issued permits,
specific components of which are still being determined. This system, still in the
early stages of development, could serve as a comprehensive tracking system that
could be viewed by EPA personnel, applicants, and eventually the public.
Tribal Communities and Facilities Could Be Affected by Permitting
Delays
For permitting that involves new construction or modifications to existing
facilities, delays in meeting the regulatory time frames can postpone construction,
financially affecting both industry and the tribes. For example, some tribes rely on
royalty payments from industry, such as oil and natural gas development, and not
receiving a permit on time could impact the availability of royalties necessary for
developing and funding tribal programs such as social services. Moreover, one oil
and natural gas industry consultant we spoke to said that if delays are significant,
facilities could respond by moving their development outside of the tribal
boundary. In the FY 2018-2022 U.S. EPA Strategic Plan, the EPA committed to
improving the timeliness of permitting actions to create certainty for industry and
increase economic prosperity.
In addition, permitting actions that exceed regulatory time frames increase the risk
that facilities awaiting a permit could be emitting more pollution than would be
allowed if they were operating under an approved permit. We did not identify or
assess whether that occurred.
EPA Actions to Improve NSR Permitting Efficiencies
Staff from EPA regions and the OAQPS met in April 2018 at a Lean event to
improve the efficiency of the NSR program. The participants were divided into
four workgroups, two of which were particularly relevant to our review:
(1) Process Delays and (2) Technology and Knowledge. Each workgroup
developed recommendations along with action items or steps to implement the
recommendations. Most of the participants were from Regions 2, 4, 6, 8, and 9,
with Regions 6, 8, and 9 all having issued tribal-NSR permits. The OAQPS is
ultimately responsible for establishing workgroups to implement the
recommendations and action items resulting from the Lean efforts.
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One of the Technology and Knowledge workgroup's recommendations focused
on expanding the capabilities for the Electronic Permit System. Based on our
discussions with the OAQPS, many of the key action items for the Technology
and Knowledge workgroup have been completed, including determining the needs
of the system, meeting with and acquiring a cost estimate for the system, and
briefing and receiving approval for funding from senior management. In
June 2019, the OAQPS told us that $500,000 had been approved for the
development of the Electronic Permit System for EPA-issued permits and that
development of the system is currently underway.
The Process Delays workgroup from the Lean event made a recommendation
intended to improve the quality of applications received by the regions and reduce
the processing time for NSR permits. Key actions items to be completed involve
standardizing and implementing pre-application meetings, developing a standard
pre-application meeting agenda or standard operating procedure, and updating
regional websites to provide recommendations for pre-application meetings. In
June 2019, the OAQPS told us the workgroup's recommendation and action items
have not been fully implemented, although some regions have started to
implement them. For example, a Region 8 manager told us that the Region posted
a notice on its permitting website to encourage applicants to set up a pre-
application meeting, and the Region has since seen an increase in such meetings.
Based on our discussions with the regions, receiving a complete application from
a permit applicant is a critical element in reducing the processing time of
permitting actions. The pre-application meeting is a mechanism the regions can
use to help increase the completeness of the application. Regions 6 and 9 told us
that the OAQPS could help the regions receive more complete applications by
developing guidance or improving application instructions for the applicants.
Conclusions
While the EPA has reduced the amount of time it takes to issue synthetic-minor-
source and site-specific-minor-source permits in Indian Country, the average
processing time still exceeds the regulatory time frames. The EPA has identified
actions that it can take to improve permitting efficiencies, but the Agency still
needs to fully implement some of these actions. The EPA should implement a
tracking system that is accessible to both EPA staff and permit applicants, as well
as a strategy to improve the application process and permitting timeliness for
tribal-NSR permits, taking into consideration the findings and recommendations
from the Agency's previous Lean efforts. Improved processing times will help
provide economic certainty for both industry and tribal communities.
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Recommendations
We recommend that the assistant administrator for Air and Radiation:
1. Implement a system that is accessible to both the EPA and the applicants
to track the processing of all tribal-New-Source-Review permits and key
permit dates, including application received, application completed, draft
permit issued, public comment period (if applicable), and final permit
issuance.
2. Establish and implement an oversight process to verify that the regions
update the tribal-New-Source-Review permit tracking system on a
periodic basis with the correct and required information.
3. Develop and implement a strategy to improve the application process and
permitting timeliness for tribal-New-Source-Review permits, taking into
consideration the findings and recommendations from the Lean event. The
strategy should include procedures to measure results.
Agency Response and OIG Assessment
The Agency agreed with Recommendations 1, 2, and 3. Regarding
Recommendation 1, the Agency stated that it is developing a system for tracking
permit applications to which applicants will be able to directly submit
applications. In a subsequent email, Agency staff clarified that applicants will also
be able to access the system to track the progress of their applications. We believe
that this planned corrective action meets the intent of our recommendation, and
the associated completion date is acceptable. Regarding Recommendations 2 and
3, the Agency provided acceptable planned corrective actions with completion
dates. Recommendations 1-3 are considered resolved with corrective actions
pending. See Appendix B for the Agency's response to the draft report.
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Chapter 3
All Regions Did Not Determine and Document
Application Completion Dates
in Accordance with Regulations
While most of the regions properly determined application completion dates,
Regions 6 and 9 used improper dates for at least some of the permits they issued
under the tribal minor-source NSR program. We found that the OAQPS had not
issued guidance to the regions instructing them how to accurately determine and
document the correct application completion date. Assessing the timeliness of
permitting actions starts once the EPA determines the application to be complete.
If the application completion date is not applied correctly, the EPA cannot
accurately assess timeliness of permitting actions in accordance with the
regulations. The EPA should develop guidance for the regions on how to
accurately determine and document the application completion date that should be
used for tracking and assessing the timeliness of the permit issuance process.
Requirements for Determining Application Completion Date
The EPA is to notify a permit applicant in writing that it has determined the
application to be either complete or incomplete and is requesting additional
information. As stated in the 2011 tribal NSR rule, the notification is to occur
within 45 days of receipt of an application for a site-specific-minor-source permit
and within 60 days of receipt of an application for a synthetic-minor-source
permit or a permit for a minor modification at a major source. If the EPA does not
send notification to the facility within that time frame, the application defaults to
completeness for the purpose of tracking timeliness. If it defaults to completeness,
the default application completion date is either 45 or 60 days after receipt of the
application, depending on type of permit.
The OAQPS had not issued any guidance instructing regions how to determine
and document application completion dates to demonstrate compliance with the
rule's requirements.
Regions 6 and 9 Determined and Documented Improper Application
Completion Dates
We identified two regions that were not determining and documenting the
application completion date in accordance with the regulations. For the five
synthetic-minor-source permits that Region 6 issued, it documented the
application completion date as the date the draft permit was made available for
public comment. Region 9 similarly documented the application completion date
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as the date the proposed draft permit was issued to the applicant for four of the six
minor-source permits it issued, excluding general permits.
For the application completion date to coincide with the public notice of a draft
permit or draft permit issuance date, the region would have to first notify the
applicant in writing, within 45 or 60 days of receipt of the application depending
on the type of permit, that the initial application was incomplete. Additionally, the
region would have to issue the draft permit or public notice on the same day it
received the missing information. However, written notification of completion
was not issued for the permits we identified in Regions 6 and 9. Thus, the
application completion date should have defaulted to 45 or 60 days, depending on
permit type, after the application was received, which would have been earlier
than the draft permit date or public notice date for all the instances we identified.
A Region 6 manager told us that the Region did not issue application
completeness letters to the five facilities we identified because the tribal NSR
program was essentially on hold during that time while the region prioritized
issuing greenhouse-gas permits for the State of Texas. When the staff returned to
the tribal-NSR permits, they worked with the applicants to obtain needed
information and did not worry about sending application completeness letters.
Region 6 considered the applications to be complete when the draft permits were
made available for public comment. Region 6 told us that it has been issuing
application completeness letters since 2017.
Region 9 staff told us the Region was advised by EPA headquarters to enter the
draft permit issuance date as the application completion date when entering dates
for historical permits in the Air Permit Tracker Database if written determination
of application completeness could not be found.
Using Wrong Application Completion Date Results in Inaccurate
Assessment of Permit Processing Timeliness
The EPA cannot accurately assess timeliness of permitting actions, in accordance
with the regulations, if the application completion date is not determined and
documented correctly. Using the public notice or draft permit date as the
application completion date would make the permitting process seem much
shorter than if the correct date—that is, the date the application defaulted to
completeness—was used to assess timeliness. For Region 6, the average
processing time when using the public notice date is 53 days, compared to
983 days, or more than two-and-a-half years, when the correct application
completion date is used. For Region 9, the average processing time when using
the draft permit date is 192 days, compared to 1,158 days—more than three
years—when the correct application completion date is used.
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Conclusions
Regions 6 and 9 both inappropriately determined and documented the application
completion date for at least a portion of their minor-source permits. The
application completeness date is crucial to tracking and assessing the timeliness of
tribal-NSR permits, since the regulatory time frames are based on when an
application is deemed complete. The EPA should develop guidance for the
regions to help assure they accurately determine and document the application
completion date for purposes of tracking and assessing the timeliness of the
permit issuance process.
Recommendation
We recommend that the assistant administrator for Air and Radiation:
4. Provide guidance to the regions on how to accurately determine and
document the application completion date that should be used for tracking
the tribal-New-Source-Review permitting process and assessing
timeliness.
Agency Response and OIG Assessment
The Agency agreed with Recommendation 4 and provided an acceptable planned
corrective action and completion date. Recommendation 4 is considered resolved
with corrective actions pending. See Appendix B for the Agency's response to the
draft report. In addition, Region 6 provided technical comments, which we
incorporated as applicable.
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Chapter 4
EPA Does Not Take Regular Actions to Identify
Non-Filers or Conduct Outreach to Industry
Regions 5 and 10 said that they take regular steps to identify facilities in Indian
Country that could be subject to NSR permitting requirements but have not
applied for a permit, known as "non-filers." The remaining four regions that had
issued tribal-NSR permits said that they do not. Regions 7 and 8 told us that they
conduct limited searches for non-filers while out in the field conducting
inspections at known facilities. In addition, Region 7 told us that it has
occasionally used satellite imagery and business journals to look for non-filers.
All the regions told us that they communicate with the tribes in their regions, and
the regions relied on tribes to inform them about facilities that needed a permit.
Tribal authorities from the three tribes we interviewed said that they were able to
assist the EPA with identifying facilities that could need permits. Two of the three
tribes told us that they communicate with the facilities on their reservation and
share information as needed with the EPA. One tribe told us that the EPA needs to
provide guidance on how it wants the tribes to assist them in identifying non-
filers.
In addition, EPA headquarters does not take steps to identify non-filers. An
OAQPS manager told us that looking for non-filers is a compliance issue. Thus,
OECA would have primary responsibility for this activity. However, OECA staff
and managers told us that they do not look for facilities in Indian Country that
need tribal-NSR permits because that activity is not among the EPA's national
enforcement priorities, which is what OECA focuses its resources on. Thus,
neither the OAQPS nor OECA are undertaking activities specifically to identify
non-filers.
EPA Can Coordinate with Tribes to Identify Non-Filers Through
EPA-Tribal Environmental Plans
One way the EPA can coordinate with tribes to identify non-filers is through the
development of EPA-Tribal Environmental Plans, or ETEPs. ETEPs are plans that
the EPA develops in partnership with each tribe that lay out environmental
priorities for all types of environmental media, including air. The plans contain
inventories of all known emitting facilities on the tribes' lands. The then acting
director of Region 5's Enforcement and Compliance Assurance Division told us
that developing ETEPs with tribes has helped the Region learn about new
facilities on tribal lands. The director said that the tribes can provide information
about facilities that the Region was previously unaware of through this process,
but the Region has not identified any facilities needing a tribal-NSR permit
through this process to date. The director of Region 9's Enforcement and
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Compliance Assurance Division told us that the Region is currently using the
ETEP with one tribe to identify sources that could need tribal-minor-source
permits. The ETEPs are one way that all regions can better partner with tribes to
learn about previously unknown facilities that could need an NSR permit,
especially given the regions' limited resources.
EPA Has Not Conducted Continued Outreach to Industry
The EPA has not conducted continued outreach to industry to help assure that
facilities are aware of their permitting responsibilities. Two of the regions told us
that they conducted outreach to industry groups at the start of the program to
inform them of the 2011 rule and new requirements. OAQPS staff told us that
they conducted outreach to the tribes when the rule was passed, so that tribes
could contact facilities about the new requirements. However, neither the OAQPS
nor the regions told us about any recent outreach to industry. The OAQPS and
Region 6 recently included information on the tribal NSR program during an air
training for tribes, which was not aimed at industry. This is important because
according to regional staff, some of the facilities that need a minor-source permit
are small facilities without environmental staff and might not have previous
experience with environmental regulations.
Tribes, States, and External Parties Have Provided EPA with Tips
About Non-Filers
Staff and managers from five out of the six regions we interviewed told us that
they had received tips from tribal authorities, state agencies, or external parties
about facilities operating without a tribal-NSR permit in Indian Country. These
tips have identified at least five facilities since 2011 that required a tribal-NSR
permit but did not have one.
Regions 5 and 7 were notified about facilities that had a state-issued permit but
needed a permit issued by the EPA, since facilities that operated in Indian
Country with a state-issued permit prior to the 2011 tribal NSR rule needed to
apply for a federal permit by September 4, 2012. Region 5 became aware of two
facilities from its tribal and state outreach, and Region 7 was notified by the State
of Nebraska. Region 10 had two enforcement cases as a result of facilities not
obtaining a tribal-NSR permit. One of these cases resulted from a complaint by an
external party. In September 2019, staff and managers from Region 8 and OECA
told us that they were jointly pursuing an enforcement case against a facility that
allegedly started construction prior to obtaining a tribal-NSR permit. A Region 8
manager told us that before the issuance of the facility's synthetic-minor-source
permit, it was considered a major PSD source as there was not a federally
enforceable requirement in place to reduce volatile organic compounds emissions.
This facility was brought to the EPA's attention by an external party.
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Conclusions
The EPA does not have a systematic process to look for non-filers, instead relying
primarily on tribes, other external parties, and intermittent actions to identify
facilities in Indian Country without tribal-NSR permits that are potentially subject
to permitting requirements. In addition, the EPA does not conduct outreach to
inform smaller facilities of the permitting requirements. The fact that external
entities have provided the EPA with tips about at least five non-filers indicates
that there could be other facilities operating without the required permit.
We believe this warrants the EPA to develop a plan to periodically coordinate
with tribes to identify facilities that could be operating without a required permit.
One way the EPA could accomplish this is by coordinating with tribes about non-
filers through the existing ETEP development process. In addition, because some
non-filer facilities could be smaller and are unaware of the tribal-NSR permitting
requirements, the EPA should develop a plan to conduct outreach to industry
groups, so that they understand their responsibilities under the tribal NSR
program.
Recommendations
We recommend that the assistant administrator for Air and Radiation:
5. Develop and implement a plan, in consultation with the Office of
Enforcement and Compliance Assurance and the EPA regions, to
periodically coordinate with tribes to identify facilities that are operating
in Indian Country without the required tribal-New-Source-Review permit.
6. Develop and implement a plan, in consultation with the Office of
Enforcement and Compliance Assurance and the EPA regions, to
periodically conduct outreach to industry groups to educate them on the
tribal-New-Source-Review permit requirements for facilities that are
constructed or modified in Indian Country.
Agency Response and OIG Assessment
The Agency concurred with Recommendations 5 and 6 and provided acceptable
planned corrective actions and completion dates. Recommendations 5 and 6 are
considered resolved with corrective actions pending. See Appendix B for the
Agency's response to the draft report.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
Potential
Monetary
Benefits
(in $000s)
1
19
Implement a system that is accessible to both the EPA and the
applicants to track the processing of all tribal-New-Source-
Review permits and key permit dates, including application
received, application completed, draft permit issued, public
comment period (if applicable), and final permit issuance.
R
Assistant Administrator for
Air and Radiation
9/30/21
2
19
Establish and implement an oversight process to verify that the
regions update the tribal-New-Source-Review permit tracking
system on a periodic basis with the correct and required
information.
R
Assistant Administrator for
Air and Radiation
3/31/22
3
19
Develop and implement a strategy to improve the application
process and permitting timeliness for tribal-New-Source-Review
permits, taking into consideration the findings and
recommendations from the Lean event. The strategy should
include procedures to measure results.
R
Assistant Administrator for
Air and Radiation
6/30/22
4
22
Provide guidance to the regions on how to accurately determine
and document the application completion date that should be
used for tracking the tribal-New-Source-Review permitting
process and assessing timeliness.
R
Assistant Administrator for
Air and Radiation
9/30/21
5
25
Develop and implement a plan, in consultation with the Office of
Enforcement and Compliance Assurance and the EPA regions,
to periodically coordinate with tribes to identify facilities that are
operating in Indian Country without the required tribal-New-
Source-Review permit.
R
Assistant Administrator for
Air and Radiation
9/30/22
6
25
Develop and implement a plan, in consultation with the Office of
Enforcement and Compliance Assurance and the EPA regions,
to periodically conduct outreach to industry groups to educate
them on the tribal-New-Source-Review permit requirements for
facilities that are constructed or modified in Indian Country.
R
Assistant Administrator for
Air and Radiation
9/30/22
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Details on Scope and Methodology
To address our objectives, we identified and reviewed applicable statutes, regulations, policies,
and guidance, including:
• Clean Air Act.
o PartC of Title 1 (PSD),
o Part D of Title 1 (nonattainment NSR).
o Section 110(a)(2)(C) (minor NSR).
• EPA regional websites on tribal and permitting programs.
• FY 2018-2022 U.S. EPA Strategic Plan.
• Regulations, policies, procedures, and guidance related to developing and processing
tribal-NSR permits, including the following:
o Review of New Sources and Modifications in Indian Country, 76 Fed. Reg. 38748
(July 1, 2011) (codified at 40 C.F.R. Parts 49 and 51).
o General Permits and Permits by Rule for the Federal Minor New Source Review
Program in Indian Country for Five Source Categories, 80 Fed. Reg. 25068
(May 1, 2015) (codified at 40 C.F.R. Part 49).
o General Permits and Permits by Rule for the Federal Minor New Source Review
Program in Indian Country for Six Source Categories, 81 Fed. Reg. 70944
(October 14, 2016) (codified at 40 C.F.R. Part 49).
o Federal Implementation Plan for True Minor Sources in Indian Country in the Oil
and Natural Gas Production and Natural Gas Processing Segments of the Oil and
Natural Gas Sector; Amendments to the Federal Minor New Source Review
Program in Indian Country To Address Requirements for True Minor Sources in
the Oil and Natural Gas Sector, 81 Fed. Reg. 35944 (June 3, 2016) (codified at 40
C.F.R. Part 49).
o Federal Implementation Plans Under the Clean Air Act for Indian Reservations in
Idaho, Oregon and Washington, 70 Fed. Reg. 18074 (April 8, 2005) (codified at
40 C.F.R. Parts 9 and 49).
o 40 C.F.R. § 52.21.
o 40 C.F.R. Part 124 Procedures for Decisionmaking,
o 40 C.F.R. Part 51, App. S.
o 40 C.F.R. §§51.160.
o Indian Tribes: Air Quality Planning and Management, 63 Fed. Reg. 7254
(February 12, 1998) (codified at 40 C.F.R. Parts 9, 35, 49, 50, and 81).
o Presidential Memorandum for the Administrator of the Environmental Protection
Agency (April 12, 2018).
o Timely Processing of Prevention of Significant Deterioration (PSD) Permits when
EPA or a PSD-Delegated Air Agency Issues the Permit, EPA Office of Air Quality
Planning and Standards (October 15, 2012 memorandum),
o Federal Minor New Source Review Program In Indian Country: Application for
New Construction. EPA Form No. 5900-248.
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o Federal Minor New Source Review Program In Indian Country: Application For
Synthetic Minor Limit. EPA Form No. 5900-246.
o Tribal New Source Review Implementation Manual (May 2012).
• Regional policies and procedures related to issuing tribal-NSR permits.
Timeliness Analysis
To conduct our timeliness analysis, we requested data from each EPA region for all facilities,
including major and minor sources, that were issued permits through the EPA's tribal NSR
program, or whose permit applications were pending at the time of our data request. For each
permitting action, we requested the following information:
• Tribe or reservation name.
• Type of permit (e.g., PSD, NSR, minor NSR, modification, etc., and site-specific, general
permit, administrative etc.).
• Date the application or request was received.
• Date application or request was deemed complete.
• Date of public comment period (if one was held).
• Date of permit issuance or request granted for a general permit.
• A link to the documents or docket for the permit, if available.
We received data from EPA Regions 5-10 between August 23 and October 18, 2018. Regions
1-4 had not issued tribal-NSR permits. We conducted our analyses for each of the individual
regions as of the date we obtained their data. For example, our analysis included permits that
were pending as of the date we obtained the data from the region, regardless of whether the final
permit was later issued. Table 3 in the report outlines the dates the regions provided our
requested data.
We verified the regions' data for each date and public comment period with supporting
documentation found in the online permit docket or on the regions' websites. When information
could not be found from those sources, we asked the regions for documentation. We only used
the information that was verified by supporting documentation such as final permits, technical
support documents, letters to applicants concerning the proposed draft permit, notice of issuance
of draft permits, letters of application completeness determination, request for coverage
documentation (for general permits), and public notice documentation.
Application Completeness Determination
For the application completion date, we found it was necessary to develop a methodology for
what date to use, based on the regulations in 40 C.F.R. §§ 49.151-49.158 for minor sources,
because we often were unable to find documentation to verify this date. We shared our
methodology with the OIG Office of Counsel along with an OAQPS manager to get their
feedback on our planned methodology.
We used the approach described in Table A-l for synthetic-minor-source, minor-modification-at-
major-source, and site-specific-minor-source permits.
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Table A-1: Approach for determining application completion date
Letter of determination of
application completion
In cases where the EPA notified a facility in writing within 60 days (or 45
days for site-specific-minor permits) after receiving the application that it
considered the application to be complete (and we were able to obtain
that documentation), we used the date of the written communication as
the application completion date for our analyses. If a letter was sent after
the 60- or 45-day window, we used the date the application would have
defaulted to completeness, per the regulations (i.e., 60 days after
application received for synthetic-minor and minor-modification permits
and 45 days after application received for site-specific minor sources).
Letter of determination of
application incompletion
In cases where the EPA notified a facility in writing within 60 days (or 45
days for site-specific-minor permits) after receiving an application that it
needed additional information, the date the Agency received all the
necessary information was used as the completion date, as long as we
were able to obtain the applicable documentation. If we were not able to
obtain documentation of the request for additional information or of when
the additional information was obtained, or if the notification was sent
after the 45- or 60-day window, we used the date the application would
have defaulted to completeness, per the regulations.
No documentation of
determination of application
being complete or
incomplete
In cases where we were unable to obtain documentation of written
notification of application completeness or request for additional
information, we used the date the application would have defaulted to
completeness, per the regulations.
Source: OIG analysis.
For general permits, the regulatory time frame is the time between when the request for coverage
is received and when it is granted. Hence, we used the date of receipt of the request for coverage
rather than the application completion date for our analyses.
Permit Status Determination
We then determined which permits were original permitting actions versus revisions; which were
active versus inactive; and which were withdrawn, appealed, or terminated. We reviewed
regional notes and permit documentation, along with a facility's permit history, to categorize a
permit's status. The information we needed was usually found in the permit summary of the final
or draft permit, or the permit's technical support document.
Our timeliness analysis focused on original permits, which are the first permit of that type issued
to a facility, and revisions to an existing permit for the purposes of a modification at a facility, as
the regulatory time frames apply only to these actions. When there was an action to revise an
existing permit at a facility that did not involve modification at the facility, we categorized that
as a revision. We did not conduct timeliness analyses on revised permits, as the regulatory time
frames do not apply to them. Table A-2 summarizes our permit status definitions.
Table A-2: Permit status definitions
Permit type
Description
Original
The first permit of its type at a facility or a revision to an existing permit that involved modification at
a facility.
Revision
The permit revises a prior permit of its type and does not involve modification at a facility.
Active
The current permit that is in effect.
Inactive
The permit is not in effect due to being revised or terminated.
Source: OIG analysis.
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Timeliness Calculations
Once all dates had been verified and the status of each permit determined, we conducted
timeliness calculations for each original and pending permit based on the applicable regulatory
or statutory time frames, as laid out in Table 2 in Chapter 1 of this report. For these assessments,
we excluded permit revisions, withdrawn permits or applications, terminated permits, and
permits with applications received before 2011. We did include appealed permits.
For all permits except general permits, we calculated the number of days elapsed between the
application completion date and the final permit issued date. We then compared that to the
applicable regulatory time frame to determine if the time frame was met.
For general permits, we calculated the number of days elapsed between the date the request for
coverage was received and the date the request was granted. We then compared that to the
applicable regulatory time frame to determine if the time frame was met.
For pending permits, we could only conduct timeliness analyses on applications that already had
an application completion date. For these pending permits, we calculated the time elapsed
between the application completion date and the date we obtained the data from the region. We
then compared that to the applicable regulatory time frame to determine if the time frame had
already been exceeded.
We also used the number of days elapsed for each permit to conduct analyses at the regional and
national levels, such as the average number of days elapsed for each type of permit. We repeated
this assessment after outliers were identified and removed. Outliers were any permit that had a
significantly higher processing time when compared to the other permits. We also completed an
assessment of the difference in the number of days it took to issue permits over time. To conduct
this assessment, we generated a linear trendline for each permit type.
Assessment of Construction Status
To assess the timeliness of permits with new construction versus those that involved existing
facilities, we reviewed each permit (or supporting permit documentation) and categorized it as
one of the following:
• Construction of a new facility.
• Construction project at an existing facility.
• Existing facility (no construction).
We then calculated how many of the permits within each construction status exceeded the
applicable regulatory time frames.
We also reviewed the construction status for permits that exceeded their applicable regulatory
time frames and determined how many of them were in each construction status category.
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Appendix B
Agency Response to Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHI N GTO N. D.C. 20460
March 6, 2020
OFFICE OF
AIR ANO
RADIATION
MEMORANDUM
SUBJECT: Comments on Draft Report: "EPA's Processing Times for New Source Air Per-
mits in Indian Country Have Improved but Many Still Exceed Regulatory Time
The Office of Air and Radiation (OAR) welcomes the opportunity to review and comment on
the Office of the Inspector General's (OIG) report titled EPA's Processing Times for New
Source Air Permits in Indian Country Have Improved but Many Still Exceed Regulatory
Time Frames (Draft Report).
On June 10, 2011, the EPA issued a Federal Implementation Plan (FIP) to ensure that Clean Air
Act permitting requirements are applied consistently to facilities in Indian country. The FIP
included the tribal minor New Source Review (NSR) rule that applies to new and modified
small facilities or to minor modifications at large facilities in all Indian country. This rule
allowed source owners to obtain different types of permits for minor sources, with their
associated permit processing deadlines or timeframes.
We appreciate the OIG audit team's comprehensive investigation of these permit processing
timeframes between 2011 and the second half of 2018, and the recognition that since 2011 the
average number of days it has taken the EPA to issue two types of minor source permits has
decreased. We agree with the finding of the draft report that the main causes of permitting delays
are time-consuming back-and-forth between the applicant and the EPA during the application
process, as well as limited resources in the Regional offices and competing priorities.
We agree that permit issuance on a timely basis will streamline and improve the efficacy of
the tribal minor NSR program. To that end, we appreciate the recommendations for
improvement that the OIG has offered, and we will work towards implementing them. OAR's
responses to the OIG ' s specific recommendations follow:
20-P-0146 31
Anne L. Idsal
Principal Deputy Assistant Administrator
TO:
Kevin Christensen
Assistant Inspector General
Office of Audit and Evaluation
Office of the Inspector General
-------
Recommendation 1: Implement a system that is accessibleto both the EPA and the applicants
to track the processing of all Tribal New Source Review permits and key permit dates
including the application received, application complete, draft permit issued, public
comment period (if applicable) and final permit issuance.
Response 1: OAR agrees and will implement the following corrective action:
OAR's Office of Air Quality Planning and Standards (OAQPS) has already begun work on
the Electronic Permit System (EPS), which will include a module to receive and process
applications for the EPA-issued tribal new source review permits. Specifically, this module
will allow sources to submit electronic applications for tribal minor NSR permits and then
allow the EPA staff to process those applications in EPS. The system will allow the EPA
staff to update the status of the application and permit to reflect when the application is
complete, the draft permit is issued, the beginning and ending of the public comment period,
and the issuance of the final permit and response to public comments document. We anticipate
having a workable version of the EPA-issued permit module ready in FY2021, Q2 and a
finished product by the end of FY21.
Planned Completion Date: FY21, Q4 for a finished product of the EPA-issued permit
module of EPS for tribal NSR permits.
OIG Response 1: The Agency concurred with the recommendation. In a subsequent email,
Agency staff clarified that in addition to submitting applications directly to the Electronic
Permit System, applicants will also be able to access the system to track permitting
progress. Based on this, the Agency provided acceptable planned corrective actions and
completion dates. Recommendation 1 is resolved.
Recommendation 2: Establish and implement an oversight process to verify that the
Regional offices update the permit tracking system on a periodic basis.
Response 2: OAR agrees and will implement the following corrective action:
Upon completion of the EPS, OAQPS will work with the Regional offices to establish an
oversight process to ensure complete, consistent and timely entry of data into the EPS.
Planned Completion Date: FY22, Q2 for development of oversight process.
OIG Response 2: The Agency concurred with the recommendation and provided
acceptable planned corrective actions and completion dates. Recommendation 2 is resolved.
Recommendation 3: Develop and implement a strategy to improve the application process
and permitting timelines for Tribal New Source Review permits, taking into consideration the
findings and recommendations from the LEAN event. The strategy should include procedures
to measure results.
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Response 3: OAR agrees and will implement the following corrective act ion:
As discussed during the LEAN Kaizen event, OAQPS is currently working with the Regional
offices on various actions to improve the application process and permitting timelines for all
NSR permits, including tribal minor NSR permits. These actions include: (1) standardizing
the permitting procedures and application forms used by the agency to streamline the permit
application process, and (2) tracking the effectiveness of the implementation of this and other
improvement actions identified at the LEAN event using permit tracking flow boards and
performance boards in every Region that issues NSR permits. In addition, we will also draft
an education and communication strategy to reduce time-consuming back-and-forth activity
between the permit applicants and the EPA during the application process.
Planned Completion Date: FY22, Q3 for standardizing the permitting procedures and
application forms and to establish the education and communication strategy for improving
the permit application process.
OIG Response 3: The Agency concurred with the recommendation and provided
acceptable planned corrective actions and completion dates. Recommendation 3 is resolved.
Recommendation 4: Provide guidance to the Regions on how to accurately determine and
document the application complete date that should be used for tracking the permitting
process and assessing timeliness.
Response 4: OAR agrees and will implement the following corrective action:
OAQPS will meet with the Regional offices that issue NSR permits to determine how they
are currently determining completeness of NSR permit applications. Based on this input,
OAQPS will then work with the Regions to standardize criteria to be used for determining
permit application complete date and its application to permitting actions. Furthermore,
OAQPS will periodically evaluate if the Regions are implementing the criteria consistently.
Planned Completion Date: FY21, Q4 for final criteria.
OIG Response 4: The Agency concurred with the recommendation and provided
acceptable planned corrective actions and completion dates. Recommendation 4 is resolved.
Recommendation 5: Develop and implement a plan, in consultation with the Office of
Enforcement and Compliance Assurance (OECA) and the Regions, to periodically coordinate
with Tribes to identify facilities that are operating in Indian country without the required
Tribal New Source Review permit.
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Response 5: OAR agrees and will implement the following corrective action:
OAQPS will work with OECA, the Regional offices and Tribes to develop a plan to identify
facilities that may be subject to this program.
Planned Completion Date: FY22, Q4 for a final implementation plan.
OIG Response 5: The Agency concurred with the recommendation and provided
acceptable planned corrective actions and completion dates. Recommendation 5 is resolved.
Recommendation 6: Develop and implement a plan, in consultation with OECA and the
Regional offices, to periodically conduct outreach to industry groups to educate them on the
Tribal New Source Review permit requirements for facilities that are constructed or modified
in Indian country.
Response 6: OAR agrees and will implement the following corrective action:
OAQPS will work with OECA, the Regional offices and Tribes to develop a plan to inform
industry groups located in Indian country about the tribal minor NSR permit requirements that
might be applicable to them.
Planned Completion Date: FY22, Q4 for a final implementation plan.
OIG Response 6: The Agency concurred with the recommendation and provided
acceptable planned corrective actions and completion dates. Recommendation 6 is resolved.
Finally, we wish to point out that Regions 9 and 10 are mislabeled on the cover page
and on page 4.
If you have any questions regard in g this response, please contact Mike Jones,
OAQPS/OAR Audit Liaison, at (919) 541-0528.
cc: James Hatfield
Peter T sirigotis
Mike Koerber
Scott Mathias
Anna Wood
Juan Santiago
Raj Rao
Jessica Montanez
Marc Vincent
Mike Jones
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Appendix C
Distribution
The Administrator
Assistant Deputy Administrator
Associate Deputy Administrator
Chief of Staff
Deputy Chief of Staff/Operations
Assistant Administrator for Air and Radiation
Assistant Administrator for Enforcement and Compliance Assurance
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Director, Office of Continuous Improvement, Office of the Administrator
Regional Administrators, Regions 5-10
Principal Deputy Assistant Administrator for Air and Radiation
Deputy Assistant Administrators for Air and Radiation
Director, Office of Air Quality Planning and Standards, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of Enforcement and Compliance Assurance
Audit Follow-Up Coordinator, Office of Air Quality Planning and Standards, Office of Air and
Radiation
Audit Follow-Up Coordinators, Regions 5-10
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