Region 5 conducted an inspection of SMSC Tribal facilities in July 2011 and confirmed that three new generators  each somewhat larger than a semi-truck trailer  had been installed on poured concrete pads in the location where the Tribe intends them to be permanently located. The Tribe had also erected permanent steel scaffolding. The scaffolding supports long, metal tubing through which electrical cables will run to transmit power from the generators to the hotel/casino complex. The Tribe had already installed the long runs of metal tubing that are permanent elements of the emissions source. On the basis of these facts, Region 5 has concluded that Shakopee has begun actual construction of a major modification to an existing major air emissions source without a PSD preconstruction permit in violation of 40 C.F.R. § 52.21(a)(2)(iii).
Negotiations with the Tribe
EPA began discussions with the Tribe in an effort to resolve these violations in 2009. By September 2009, EPA thought it had reached agreement with the Tribe which would have required the Tribe to apply for PSD preconstruction permits for the approximately thirty existing generators. EPA then planned to set emissions limits and issue after-the-fact PSD construction permits. EPA would then incorporate the emissions limits established during the PSD permitting process into the TribeÂs Part 71 operating permit. Shortly thereafter, the Tribe changed course. Rather than agreeing to apply for a PSD per