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[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Proposed Rules]
[Pages 12926-12931]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5342]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R08-OAR-2011-0015; FRL-9277-9]

Clean Air Act Proposed Interim Approval of Title V Operating 
Permits Program; Southern Ute Indian Tribe

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes interim approval of the Title V Operating 
Permits Program submitted by the Southern Ute Indian Tribe (Tribe). The 
Tribe's Title V Operating Permit Program (Title V Program) was 
submitted for the purpose of administering a tribal program for issuing 
operating permits to all major stationary sources, and certain other 
sources on the Southern Ute Indian Reservation (Reservation).

DATES: Comments on this proposed action must be received on or before 
April 8, 2011. Comments should be addressed to the contact indicated 
below.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0015, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: lebow-aal.deborah@epa.gov and 
north.alexis@epa.gov.
     Mail: Deborah Lebow Aal, Acting Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Deborah Lebow Aal, Acting Director, Air 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries 
are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0015. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Alexis North, Air Program, Mailcode 
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-7005, or north.alexis@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The word Act or initials CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The word Commission means the joint Southern Ute Indian Tribe/
State of Colorado Environmental Commission.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The word Title V Program means the Tribe's Application for 
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating 
Permit Program dated

[[Page 12927]]

January 14, 2009 and the subsequent Supplement to Application for 
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating 
Permit Program dated September 28, 2010.
    (v) The word Tribe means the Southern Ute Indian Tribe, unless the 
context indicates otherwise.

Table of Contents

I. General Information
    A. What Should I Consider as I Prepare My Comments for EPA?
    1. Submitting CBI
    2. Tips for Preparing Your Comments
II. What is Being Addressed in This Document?
III. Evaluation of the Tribe's Authorities
    A. Current Tribal Authority
    B. Reasonably Severable Title V Program Elements
    C. Criminal Enforcement Memorandum of Understanding
IV. Evaluation of the Tribe's Title V Program Elements
    A. Analysis of the Tribe's Title V Program Submission pursuant 
to 40 CFR 70.4(b)
    1. Complete Title V Program Description
    2. Regulations Compromising the Title V Program
    3. Legal Opinion
    4. Relevant Title V Program Documentation
    5. Compliance Tracking
    6. Application Completeness Determination
    7. Fee Demonstration
    8. Statement of Adequate Personnel
    9. Submission Commitment
    10. Failure to Issue Permit in a Timely Manner
    11. Transition Plan
    12. Off Permit Changes
    13. Expeditious Permit Revisions and/or Modifications Review
    14. Tribe Only Revisions
    15. Permit Changes Subject to Title I and IV of the Act
    16. Permit Content and Permit Issuance, Renewal, Re-openings and 
Revisions
    B. Options for Approval/Disapproval and Implications
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What is being addressed in this document?

    Under Title V of the Clean Air Act (the Act or CAA) as amended 
(1990), EPA has promulgated rules that define the minimum elements of 
an interim approval of a Title V operating permits program for state 
and tribal permitting authorities. The corresponding standards and 
procedures by which the EPA will approve, oversee, and withdraw 
approval of state and tribal Title V operating permits programs can be 
found at 57 FR 32250 (July 21, 1992) and 63 FR 1322 (January 10, 2000) 
and codified at 40 CFR part 70.
    In addition, as part of the 1990 Amendments to the CAA, Congress 
enacted Section 301(d) authorizing EPA to ``treat Indian tribes as 
states'' under the Act so that tribes may develop and implement CAA 
programs in a similar manner as states within tribal reservations or in 
other areas subject to tribal jurisdiction. Section 301(d)(2) of the 
Act authorizes EPA to promulgate regulations specifying those 
provisions of the CAA ``for which it is appropriate to treat Indian 
tribes as States.'' 42 U.S.C. 7601(d)(2).
    On February 12, 1998, EPA issued a final rule specifying those 
provisions of the CAA for which it is appropriate to treat eligible 
Indian tribes in a similar manner as states, known as the Tribal 
Authority Rule (TAR). 63 FR 7254, codified at 40 CFR part 49. As a 
general matter, EPA determined in the TAR that it is not appropriate to 
treat Indian tribes in a similar manner as states for purposes of 
specific CAA program submittal and implementation deadlines. This is 
because, among other reasons (discussed at 59 FR at 43,964-65), 
although the CAA contains many provisions mandating the submittal of 
state plans, programs, or other requirements by certain dates, the Act 
does not similarly require Indian tribes to develop and seek approval 
of CAA programs.
    Thus, Indian tribes are generally not subject to CAA provisions 
that specify a deadline by which something must be accomplished, e.g., 
provisions mandating the submission of state Title V operating permits 
programs under sections 502(d)(1), 502(d)(2)(B), and 502(d)(3)of the 
Act. 40 CFR 49.4.
    A tribe that meets the eligibility criteria for treatment in a 
similar manner as a state (TAS) may, however, choose to implement a CAA 
program. A tribe may also submit reasonably severable portions of a CAA 
program, if it can demonstrate that its proposed air program is not 
integrally related to program elements not included in the plan 
submittal and is consistent with applicable statutory and regulatory 
requirements. 40 CFR 49.7(c); see also CAA section 110(o). This modular 
approach is intended to give Indian tribes the flexibility to address 
their most pressing air quality issues and acknowledges that Indian 
tribes often have limited resources with which to address their 
environmental concerns. Consistent with the exceptions listed in 40 CFR 
49.4, once submitted, an Indian tribe's proposed air program will be 
evaluated in accordance with applicable statutory and regulatory 
criteria in a manner similar to the way EPA would review a similar 
state submittal. 40 CFR 49.9(h).
    EPA expects Indian tribes to fully implement and enforce their 
approved CAA programs and, as with states, EPA retains its authority to 
impose sanctions for failure to implement an approved air program. See 
59 FR 43,956 at 43,965 (Aug. 25, 1994) (explaining EPA's rationale for 
treating Indian tribes in a similar fashion as states for purposes of 
mandatory sanctions for failure to adequately implement an approved 
part D program (CAA 179(a)(4)) and with respect to EPA's discretionary 
authority to impose sanctions (CAA 110(m)); 40 CFR 49.3.

[[Page 12928]]

    The CAA allows Indian tribes to develop and submit Title V 
operating permit programs to EPA at their own discretion. The EPA's 
Title V operating permit program review occurs pursuant to section 502 
of the Act and the part 70 regulations, which together outline criteria 
for interim approval, full approval or disapproval. The Tribe has 
requested such approval and this action is in response to that request.

III. Evaluation of the Tribe's Authorities

    The EPA completed a review of the Tribe's current and pending 
authority to regulate air pollution sources located within the exterior 
boundaries of the Reservation. Under section 301(d) of the CAA and the 
TAR, EPA may treat a tribe in a similar manner as a state for purposes 
of administering certain CAA programs or grants if the tribe 
demonstrates that: (1) It is a federally-recognized tribe; (2) it has a 
governing body carrying out substantial governmental duties and powers; 
(3) the functions to be exercised by the tribe pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation (or in other areas under the tribe's 
jurisdiction); and (4) it can reasonably be expected to be capable, in 
EPA's judgment, of carrying out the functions for which it seeks 
approval, consistent with the CAA and applicable regulations. The 
sections below outline the details of EPA's review of the Tribe's 
authorities.

A. Current Tribal Authority

    In July 1998 the Southern Ute Indian Tribe applied for TAS seeking 
approval to administer a CAA Title V air quality operating permit 
program throughout the Reservation. The State of Colorado challenged 
the Tribe's CAA TAS application, asserting that the Act of May 21, 
1984, Public Law 98-290, 25 U.S.C. 668, which defined the boundaries of 
the Reservation, established the State's jurisdiction to regulate non-
Indian-owned air pollution sources located on fee lands within the 
Reservation. The Tribe and the State, while continuing to disagree over 
who has jurisdiction over these sources, formed the Southern Ute Indian 
Tribe/State of Colorado Environmental Commission (Commission), and 
executed an intergovernmental agreement (IGA) on December 13, 1999, to 
establish a single air quality program applicable to all lands within 
the exterior boundaries of the Reservation.
    In general, the IGA allows for the Tribe to implement and 
administer CAA programs, on a Reservation-wide basis, through the joint 
Commission. It also provides that the State will support the Tribe's 
CAA TAS application as long as it is consistent with the IGA. Congress 
then passed the Southern Ute and Colorado Intergovernmental Agreement 
Implementation Act of 2004, Pub. L. No. 108-336 on October 18, 2004, 
which codifies the basic framework of the IGA, and authorizes EPA to 
grant TAS authority to the Tribe for air programs submitted under CAA 
section 301(d). The Tribe has previously received TAS approval on April 
26, 2000, for the purposes of grant funding under CAA Section 105.
    On January 20, 2009, the Tribe submitted its CAA program TAS 
Application together with the Tribe's initial Title V Program. On July 
14, 2009, EPA found the Tribe's CAA program TAS application to be 
administratively complete. This finding means the Tribe's CAA program 
TAS application satisfied the four necessary elements outlined above 
that the Tribe must demonstrate as part of the TAR. EPA will continue 
to review the Tribe's TAS application per 40 CFR 49.9(b). At the 
conclusion of this comment period, the Region will make a determination 
on the Tribe's CAA program TAS application prior to the final 
rulemaking for the Tribe's Title V Program.

B. Reasonably Severable Title V Program Elements

    As previously discussed in Section II above, the TAR allows for 
Indian tribes to seek approval of partial elements of CAA programs as 
long as those portions are determined to be reasonably severable 
elements. 40 CFR 49.7(c). For the purposes of the Tribe's Title V 
Program it has been determined that the Acid Rain Program at Title IV 
of the CAA is severable. At this time, there are no Acid Rain emission 
sources located within the exterior boundaries of the Reservation, nor 
are there any pending applications for sources. In addition, it has 
been determined that underlying federal regulations at CAA sections 111 
(Standards of Performance for New Stationary Sources) and 112 (National 
Emissions Standards for Hazardous Air Pollutants) are also reasonably 
severable. However, the Tribe has committed in a letter to EPA to 
incorporate by reference these standards and requirements into the 
Reservations Air Code and pursue authorization from EPA for those CAA 
programs. These delegations are not part of this action and will occur 
at a later date.

C. Criminal Enforcement Memorandum of Understanding

    The TAR provides for a federal role in criminal enforcement of a 
tribal program when the CAA or its implementing regulations mandate 
criminal enforcement authority and the applicant tribe is precluded 
from exercising such authority. 40 CFR 49.7(a)(6) and 49.8. In these 
circumstances, the TAR allows EPA to approve a tribal application if 
the tribe enters into a Memorandum of Agreement with EPA that provides 
for the Federal government to exercise primary criminal enforcement 
responsibility. Id. These provisions of the TAR recognize that federal 
law places certain limitations on tribal criminal jurisdiction and 
sanctions. The IGA reached between the Tribe and the State of Colorado 
contemplates that EPA will exercise criminal enforcement within the 
Reservation boundary for air pollution violations.
    On February 10, 2009, the Tribe and EPA entered into a Memorandum 
of Agreement (MOA) which provides a procedure by which the Tribe will 
supply potential investigative leads to the federal government in an 
appropriate and timely manner when the Tribe is precluded from 
asserting criminal enforcement authority.

IV. Evaluation of the Tribe's Title V Program Elements

    EPA conducted a thorough review of the Tribe's Title V Program 
according to 40 CFR 70.4(b) Elements of the initial program submission. 
It was critical that the Tribe's Title V Program address each of the 16 
elements outlined in 40 CFR 70.4(b). Upon review, EPA concluded that 
the 16 elements found at 40 CFR 70.4(b) were addressed by the Tribe's 
Title V Program.

A. Analysis of the Tribe's Title V Program Submission per 40 CFR 
70.4(b)

1. Complete Title V Program Description
    The Southern Ute Indian Tribe submitted an initial and a 
supplemental Title V Program to EPA on January 20, 2009 and September 
28, 2010 respectively. The Title V Program submittals include a legal 
opinion from the Tribe's legal counsel stating that the laws of the 
Tribe and Southern Ute Indian Tribe/State of Colorado Environmental 
Commission provide adequate legal authority to carry out all aspects of 
the Title V Program, and a description of how the Tribe intends to 
implement the Title V Program.
    EPA comments noting deficiencies in the Tribe's initial January 20, 
2009 Title V Program submittal were sent to the Tribe in a letter dated 
December 23,

[[Page 12929]]

2009. The deficiencies were segregated into those that require 
corrective action prior to Title V Program approval, and those that, if 
addressed, would serve to strengthen the Title V Program, but were not 
necessary for approval.
    In the September 28, 2010 supplemental Title V Program application, 
the Tribe addressed the deficiencies that required corrective action 
prior to Title V Program approval as well as those that served to 
strengthen the Title V Program. EPA has reviewed these changes and has 
determined that they are adequate to allow for Title V Program interim 
approval pursuant to 40 CFR 70.4(a). Upon review of the Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, a few minor 
errors were discovered that do not impact the Tribe's ability to 
implement the Title V Program but must be addressed. The Title V 
Program meets the minimum requirements of 40 CFR 70.4(d).
2. Regulations Comprising the Title V Program
    The Tribe's Title V Program, including the operating permit 
regulations (Supplement to Application for Approval of the Southern Ute 
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 
28, 2010, Tab 5, Reservation Air Code, Articles I and II), meets the 
requirements of 40 CFR 70.4(b)(2) including evidence of procedurally 
correct adoption of the Tribe's Reservation Air Code as well as public 
notice and comments on its adoption. Additionally, the Tribe's Title V 
Program satisfies the requirements outlined in 40 CFR 70.2 and 70.3 
with respect to applicability; 40 CFR 70.4, 70.5, and 70.6 with respect 
to permit content including operational flexibility; 40 CFR 70.5 with 
respect to complete application forms and criteria which define 
insignificant activities; 40 CFR 70.7 with respect to public 
participation and minor permit modifications; 40 CFR 70.8 with respect 
to permit review by EPA and affected states; 40 CFR 70.9 with respect 
to demonstrating adequate fees will be collected to cover the Title V 
Program costs; 40 CFR 70.10 with respect to federal oversight and 
sanctions; and 40 CFR 70.11 with respect to requirements for 
enforcement authority.
3. Legal Opinion
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(3). The Tribe's Independent Legal Counsel, Maynes, Bradford, 
Shipps & Sheftel, LLP Attorneys at Law, submitted an initial and a 
supplemental legal opinion in both the initial and supplemental Title V 
Program applications (Application for Approval of the Southern Ute 
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 
14, 2009 and Supplement to Application for Approval of the Southern Ute 
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 
28, 2010). The signature of the Tribe's legal counsel, Sam Maynes of 
Maynes, Bradford, Shipps & Sheftel, LLP Attorneys at Law, has full 
authority to independently represent the Tribe in court on all matters 
pertaining to the Tribe's Title V Program. The legal opinion includes a 
demonstration of adequate legal authority to carry out the requirements 
of this part, including authority to carry out those activities listed 
at 40 CFR 70.4(b)(3)(i) through (xiii).
4. Relevant Title V Program Documentation
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(4). The Tribe submitted extensive application forms 
(Application for Approval of the Southern Ute Indian Tribe's 40 CFR 
Part 70 Operating Permit Program dated January 14, 2009, Tab 4, Program 
Forms) for review as well as comprehensive instructions for each form.
5. Compliance Tracking
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(5). The Tribe submitted multiple compliance assurance 
procedures and guidelines (Application for Approval of the Southern Ute 
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 
14, 2009, Tab 5, Compliance Tracking).
6. Application Completeness Determination
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(6). The Tribe's Reservation Air Code (Supplement to Application 
for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 
Operating Permit Program dated September 28, 2010, Tab 5, Reservation 
Air Code) Article II, Sections 2-106(3) and 2-107(1)(a) demonstrates 
adequate authority and procedures to determine within 60 days of 
receipt whether applications (including renewal applications) are 
complete, to request such other information as needed to process the 
application, and to take final action on complete applications within 
18 months of the date of its submittal, except for initial permit 
applications, for which the part 70 permitting authority may take up to 
3 years from the effective date of the Title V Program to take final 
action on the application, as provided for in 40 CFR 70.4(b)(11)(ii).
7. Fee Demonstration
    The Tribe's Title V Program included a fee accounting including 
projected fee collection and programmatic costs (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 11, Revised 
Fee Demonstration, Figure 1 page 8 and Table 2 page 9) that set fees 
above the presumptive minimum set forth in 40 CFR 70.9. Specific fee 
provisions included $50.00 + CPI (Consumer Price Index) for all fee 
pollutants released in a calendar year pursuant to the Reservation Air 
Code (Supplement to Application for Approval of the Southern Ute Indian 
Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 
2010, Tab 5, Reservation Air Code), Article II, Section 2-119. The 
Tribe's Title V Program clearly demonstrates a fee schedule that 
results in the collection and retention of revenues sufficient to cover 
the Title V Program costs. In addition, the fee schedule contains an 
initial accounting of how required fee revenues are sufficient to cover 
Title V Program costs.
8. Statement of Adequate Personnel
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(8). The Tribe submitted a statement that adequate personnel and 
funding have been made available to develop, administer, and enforce 
the Title V Program (Supplement to Application for Approval of the 
Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program 
dated September 28, 2010, Tab 10, 40 CFR 70.4(b)(8)). In addition, the 
Tribe has provided a supplemental staffing plan (January 4, 2011 email 
from Brenda Jarrell) that outlines a staff of six individuals including 
a senior level engineering position.
9. Submission Commitment
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(9). The Tribe submitted a commitment (Application for Approval 
of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit 
Program dated January 14, 2009, Tab 9, 40 CFR 70.4(b)(9)) to submit, at 
least annually to the Administrator, information regarding the Tribe's 
enforcement activities including, but not limited to, the number of 
civil, judicial and administrative enforcement actions either commenced 
or concluded; the

[[Page 12930]]

penalties, fines, and sentences obtained in those actions; and the 
number of administrative orders issued.
10. Failure To Issue Permit in a Timely Manner
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(10). The Tribe's Reservation Air Code (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 5, 
Reservation Air Code) Article II, Sections 2-106 and 2-107 are 
consistent with requirements outlined in 40 CFR 70.5(a)(2) and 70.6(f).
11. Transition Plan
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(11). The Tribe submitted a comprehensive Revised Transition 
Plan (Supplement to Application for Approval of the Southern Ute Indian 
Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 
2010, Tab 12, Revised Transition Plan) which outlines a plan and 
schedule for submittal and final action on initial permit applications 
for all part 70 sources within the exterior boundaries of the 
Reservation.
12. Off Permit Changes
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(12). The Tribe's Reservation Air Code (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 5, 
Reservation Air Code) Article II, Sections 2-110, 2-111 and 2-116 are 
provisions allowing for changes within a permitted facility without 
requiring a permit revision, if the changes are not modifications under 
any provision of title I of the Act and the changes do not exceed the 
emissions allowable under the Part 70 permit, provided the facility 
provides written notification as required in 40 CFR 70.4(b)(12).
13. Expeditious Permit Revisions and/or Modifications Review
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(13). The Tribe's Reservation Air Code (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 5, 
Reservation Air Code) Article II, Section 2-111 provides for adequate, 
streamlined and reasonable procedures for expedited review of permit 
revisions or modifications.
14. Tribe Only Revisions
    The Tribe's Title V Program does not allow changes that are not 
addressed or prohibited as described in 40 CFR 70.4(b)(14). Thus, this 
section does not apply to the Tribe's Title V Program.
15. Permit Changes Subject to Title I and IV of the Act
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(15). The Tribe's Reservation Air Code (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 5, 
Reservation Air Code) Article II, Section 2-116(2) prohibits sources 
from making, without a permit revision, changes that are not addressed 
or prohibited by the part 70 permit, if such changes are subject to any 
requirements under title IV of the Act or are modifications under any 
provision of title I of the Act.
16. Permit Content and Permit Issuance, Renewal, Re-Openings and 
Revisions
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(16). The Tribe's Reservation Air Code (Supplement to 
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 
70 Operating Permit Program dated September 28, 2010, Tab 5, 
Reservation Air Code) Article II, Sections 2-107, 2-110 and 2-112 
requires the Tribe's Title V Program to implement the requirements of 
40 CFR 70.6 and 70.7.

B. Options for Approval/Disapproval and Implications

    The EPA is proposing to grant interim approval to the Tribe's Title 
V Program. The Tribe must make the following changes to the Reservation 
Air Code (Supplement to Application for Approval of the Southern Ute 
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 
28, 2010, Tab 5, Reservation Air Code) in order to receive full Title V 
Program approval.
    (1) Modify the ``Emission unit'' definition to include pollutants 
listed under 112(b) of the Act; and
    (2) Modify the ``Major source'' definition to include the updated 
definition for purposes of regulating greenhouses gasses as part of the 
Prevention of Significant Deterioration/Title V Greenhouse Gas 
Tailoring Rule (GHG Tailoring Rule). See 75 FR 106 at 31514-31608 (June 
3, 2010); and
    The correction to the ``Emission unit'' definition is intended to 
clarify and make the Tribe's program consistent. The Tribe has the 
authority to regulate pollutants listed under 112(b) of the Act through 
their ``Major source'' and ``Regulated air pollutant'' definitions. 
Accordingly, the ``Emission Unit'' definition should include 112(b) 
pollutants to have consistent definitions in the Title V Program.
    The correction to the ``Major source'' definition is intended to 
narrow the sources that will require Title V review for greenhouse 
gasses (GHGs) after July 1, 2011. With this modification, the Tribe is 
afforded flexibility to issue Title V operating permits to sources with 
GHG emissions in a manner consistent with the Federal regulations as 
set out in the GHG Tailoring Rule.
    This proposed interim approval, which may not be renewed, would 
extend for a period of up to two years. Permits issued under a Title V 
operating permits program with interim approval have full standing with 
respect to part 70, and the one year time period for submittal of 
permit applications by subject sources begins upon interim approval, as 
does the three-year time period for processing the initial permit 
applications.
    The Tribe shall submit to EPA changes to the Title V Program 
addressing the deficiencies specified in the interim approval no later 
than 8 months prior to the expiration of the interim approval. 40 CFR 
70.4(f)(2). The EPA can disapprove the Tribe's Title V Program if the 
specified changes are not made within the specified timeframe.

V. What action is EPA taking?

    EPA is providing an opportunity for public comment on our intent to 
grant interim approval to the Southern Ute Indian Tribe's Title V 
Program.

VI. Statutory and Executive Order Reviews

    Today's action merely proposes EPA's intent to grant interim 
approval to the Tribe's Title V Program and does not impose additional 
requirements beyond those imposed by tribal law. For that reason, this 
action:
     Does ensure ``meaningful and timely input by tribal 
officials in the development of regulatory policies that have tribal 
implications'' as required in Executive Order 13175, entitled 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000).
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 12931]]

     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    Dated: March 2, 2011.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2011-5342 Filed 3-8-11; 8:45 am]
BILLING CODE 6560-50-P
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