UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGION 8
 

1595 Wynkoop Street 

DENVER. CO 80202-1129 

Phone 800-227-8917 

http://www.epa.govlregion08 

Ref: 8P-AR DEC 2 3 2009 

The Honorable Matthew Box 

Chairman, Southern Ute Indian Tribe 

P.O. Box 737 

Ignacio, CO 8t13 7 

Re: Intent to Approve 

Southern Ute Indian Tribe's 

Clean Air Act Title V Program 

Dear Chairman Box: 

Thank you for submitting the Southern Ute Indian Tribe's (Tribe's) 40 C.F.R. part 70 

Clean Air Act (CAA) operating pennit program to the U.S. Environmental Protection Agency 

Region 8 (EPA), on January 20.2009. . 

We have completed our review ofthe Tribe's CAA Title V program and enclosed 

with this letter are findings we have identified that still need to be addressed (see Attachment 

A). We have categorized our comments to identify findings that: 1) mllst be corrected before 

full progmm approval can be granted; and 2) are not considered major findings for program 

approval, but should be addressed to strengthen the permit program. 

EPA is confident that the findings identified in Attachment A can be resolved and 

will ensure a stronger, more effective Title V operating permit program. We intend to work 

with the Tribe to address the ddiciencies in a timely manner so that we can proceed toward 

program approval. 

Prior to publishing a Notice of Proposed Rulemaking in the Federal Register, all 

pertinent corrections must be finalized, induding adoption by the Southern Ute Indian 

Tribe/State of Colorado Environmental Commission, and submitted to EPA. We will then 

review the program changes and publish the notice for a 30-day comment period. Fol1owing 

the closure of the 30-day comment period, EPA will address public comments in orderto 

publish a Notice ofFinal Rulemaking (NFR). 

Also, the Tribe's Treatment in the Same Manner as a State (TAS) regulatory 

application has been determined complete. It is our intention that the flnal TAS decision 

document be signed at the same time as the NFR in 2010. 
As !1\)led in your August ), 2009 lener. the Iribe i:ltl'nJs to incorpnrate by retl?rCllCC 

certain )JC\\ Source Perlcmnance Standards and t<ationa1 Emission Standards for Ha/ardous 

Air Pollutants fcckraI regulations into the Reser\ ation Air (nde. The Tribe plans to rellucst 

delegation fmm EPA for these regulations and we will continue to work with the Tribe on 

this request as a patt of the Title V program process. 

Finally, EPA would like to congratulate the Tribe on having a ~trong. stable air 

program, The Tribe's air program has exhibited responsiveness and professionalism 

throughout this program development and approval process. EPA looks forward to the 

continued program stability and continuity of stafr as the Tribe takes on this one of a kind 

prog.ram. 

Ir you have any qucstions, plca<;c contact me. or have a membc:- or your staff contact 

Callie /\. Videtich, Director. Air Program. at (303) 312-6434. 

Sincerely. 

Carol Rushin 

AClin~. Rt.:gional Administrator 

Llll:lusure 

cc:	 Janclll: Doughty, Director. Der. of Justic<: & Regulatory, Southern Ute Indian Tribe 

Mark Torres, Acting Environmental Director, Southern Gte Indian Tribe 

James Temtt:, Air Program Manager. Southern Ute Indian Tribe 

Brenda JarrelL Air Program. Southern Ute Indian Tribe 

Sam Maynes, General Counsel. Southern Ute Indi:m Tribe 

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Attachment A- Southern· Ute Indian Tribe (Tribe's) Part 70 Permit 

Program Review Findings 

1.	 The following changes must be made to the Tribe's Reservation Air Code 

(RAe) prior to EPA's final Pan 70 Program approval. 

I.	 Add th~ tl)llowing two items to the Trib~'s Pa11 70 Program Fee Demonstration 

pursuant to 40 CFR Part 70.4(b)( 81: 

a.	 Outline the delineation between seIT Air Program and Commission. citing Air 

Pmgram as the "lead agency" in Section 1. 

b.	 Table:2. page 7. shO\....s estimatcd annual cost broken down for tlm~e years.
 

Pursua.nt to 40 eFR 70.4 it should be four ye<lrs
 

')	 Include national1y-stand:1rdizcd fOnllS for Acid Rain portions of permit applicmions 

and compliance plans. These forms are required by regulation under title IV ot'the 

Clean Air Act ('AA), to be available along with Tribe's permitting applications. 

3.	 The following Part 70 definitions have been omitted from the Tribe's RAC'. Please 

add the following tenns defined in 40 eFR Part 70.2: 

a.	 "Act'" 

b.	 "Applicable requirement"' 

c.	 "D~signated Representative" 

d.	 "Part 70 program" 

e.	 "Permit moditlcation" 

f.	 "Permitting authority" (if this tt:nn is adopted. should replace "The Trihe"
 

throughout the RAe)
 

4.	 l'he following RAe definitions should be moditied to more c::lose:y represent the 

detlnitions in 40 CFR Part 70. Be]o\v are suggested revisions [0 RAe uefinitions 

based on .:to eFR 70.2: 

:l. "/\l'fected source" shall have the meaning given tll it in the regulations 

promulgated under title IV of the Act. 

b.	 "Draft Permit" means a versillll or an operuting permit that the Tribe offers for 

public participation under 2-109 and affected program review under .2-108. 

c.	 "Emissions allowable under the permiC' means: (el) any t~d.erally entorceabk 

perlll!t term or condition that establishes an emission limitation (including a work 

practice standard) determined at issuance or renewal to be required by an 

applicable requirement; or (b) any tederally enforceable emissions cap that a 

source has assumed to avoid an applicable requirement to ,vhieh it othef\vise 

would be subject. 

d.	 "Emissions unit" means any part or activity ofa stationary source that emits or has 

the potential to emit allY regulated air pollutant or any pollutant listed under 

section 112(b) of the CAA. This ,em1 is not meant to alter or affect the ddinition 

of the term "unit" t~lf purposes of tirle IV of the Act. 
e. "Final Permit" means the version of an operating permit issued by the Tribe that 

has completed all revievv procedures required by 40 eFR Parts 70.7 and 70,8. 

f. '";,,1ajor Source (b)" means a major stationary source under § 302 ufthe CAA. 

42 eSc. §7602. that directly emits or has the potential to cmit 100 TPY or more 

of any regulated air pollutant (including any major source offugitive emissions of 

any such pollutant. as determined by mle by the Administrator). The fugitivc 

emissions of a stationary soun;e shall 110t be considered in detennining whether it 

is il major stationary source for the purposes of 302(j) of the CAA, unless the 

source belongs to one ofthe following categories of stationary sources. 

g. '"Operating pennie and "pernliC (unless the context suggests otherwise) means 

any permit or g.roup of pennits covering a source that is issued. renewed. 

modi lied. or revised pursuant to this code. or any pem1it issued. renewed. 

amended. or revised to a Pali 70 source pursuant to 40 CFR Part 70. 

h. "Part 70 source" means all sources subject to 40 CFR Part 70. 

1.	 "Potential to emit"' means the maximum capacity of a stationary source to emit 

any air poJ]utant under its physical and operational design. Any physical or 

operational limitatinn on the capacity of a source to emit an air pollutant. 

inc\uclint! air pollution control equipment and restrictions on hours of operation or 

on the type or amount of matcrial combusted. stored. or processed. shall be treated 

a:; pan of its design if the limitation is federally enforceable. This tenn does not 

alter or alIcet the use of this term f(JI" any other purposes under the Act. or the tCn11 

"capacity tZlCtor" as llsed in title IV ofthc Act or the regulations promulgated 

thercunder. 

.I.	 "Stationary Source" means any building. structure. facility. or installation that 

emits or may emit any regulated air pollutant or any pollutant listed under sedion 

1I2(b) of the Act. 

5.	 Ddinc the lem1 "unit'" per the Acid Rain provisions found at 40 eFR 72.:'. This 

definition is used throughout the RAe as a tenl1 used to describe an "emission unit." 

For cJariJication purposes please change any use of the teml "unit'" to "emission unit" 

""hen describing non Acid Rain provision(s). 

<1.	 Please rel1WVC RAe 2-104(2)(iii) as the cOITesponding Citation in40 erR 70..1(b)(3) 

has been reserved aDd is no longer applicable. 

7.	 fhe following 40 erR provisions have been omitted ii'o111 the Tribe's RAC and are 

req uircd t(ll' progr<U11 approval: 

a.	 70.4(dH3)(xiJ*- Approvals of Alternative Operating Scenarios (A05) 

b. 70.6(aH 1Hiii)- Applicable Tmpkmentation Plans 

c, 70.7(a)(3)- Action on an Application 

J.	 70.7(a)(S)- Actinn on Application 

e.	 70. 7(a)(6)- Action on Application 

f.	 70.7(c)(2)- Permit Renew'al and Expiration 

g.	 70.7(g)- Reopening Jl)f Cause 

h.	 70.7(g)(5)- Reopening for Cause 

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l. 70. 7( g)( 5)(i)- Reopening t(lr Cause 

I· 70.7(g)(5)(ii)- Reopening for Cause 

k. 70.8( c)(.1)· EPA Objection 

8.	 EPA re~ommends adding a petmit condition requiting pem1ittee to comply with all 

federally enforceable pem'llt conditions as well as ·'tribe only" conditions. See 

suggesteu RAe language: 

RAe 2-110(3 )(a) the perminee shall comply with all tenns and conditions of the 

permit: nonct)mpliance with any tederally enforceable or tribe only pennit 

~onditiol1s constitutes a violation ol'this code and the C1\A. and any pennit 

noncompliance constitutes growlds for cnf<m:emcnt action, permit termination. 

revocation and reissuance. or revision or f()r denial of a permit renewal 

application. 

9.	 Please add the language "or other authorized represenHltive" to R.AC :2-110(9)(h) as 

EPA will still need access to these facilities for inspection, 

10. Th~ reference in the 11r5t sentence ofRAC 2-110(9)(d) should refer to 

RAe 2-106(4)(1). not (k). 

II. The Ll!1guag~ ill RAe 2-11 O( 1O)(cI) cannot be limircd. There may be scemu'ios where 

the Tribe does !lot wunt to extend all application shield even if the source asks for ie 

See suggested RAe language: 

RAe 2-11000 Hal Except as provided ill this code. thefribe. may expressly 

incluue in an operating pelmit a provision stating that compliance \,>'ith the 

conditions of the pem1it shaH be deemed compliance with any applicable 

requirements as of the date of permit issum1ce. provided that: 

12. RAe 2-1100 O)(d) and RAe 2-1 I 0(10)(e) appear to be inconsisknt. 

13. RAe 2-110(10)(1) must be taken out. The pemlit shield does not ('xtend past permit 

expiration (see 40 CFR 70.6 for reference). 

14. R/\C 2-110(10)((;)( il indicates the Tribe may also execute CAA 3C3. 42 U.s.C. S 

7603 concerning emergency orders (see also 70.6(t)(3)(i)). lJnfnmmately. this can 

not be delegated per the CAA. thus "'and the Tribe" should be removed from thc code. 

15. RAe 2-11 O( c)(iii) implies tribal auth-Jrity to carry OLlt CAA 114. Hnwcwr. there is 

no inherent legal authority based on the Tribc's legal opinion. The Tribe should 

demonstrate CAA 114 authority in the Tribe's legal opinion as wdl as include 

prm:edures for implementation ofCAA 114 in the RA.C'. 

16.	 Move notilication procedures at RAe 2-108(3 )(h) to RAe 2-1 08(:::') <.\s item (c).•mel 

have the current item (c) become (d) as part of the transmittal ofpenllit action to the 

Administrator and Atl'ccted States (see 40 CFR 70,8(11)(2) ttl!' ret~rcnce).

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17.	 The RA..C definition of "emission limitation or emission standard" at RAe 1-103(20} 

includes the addition of the tenn ··instantaneous.'· The addition of this term changes 

the CAA definitions at section 302(k). In order to add the tel1n "instantaneous" to thc 

RAC definition, the Tribe \vQuld have to attribute the tCl111 to an EPA approved TIP. 

If the Tribe has no intention ofdevcloping a TIP for this purpose, please remove. 

18. The t{)Uuwing RAe pro\'isions should be modified to more closely represent 

40 CFR Part 70 provisions. Below are the 40 CFR Part 70 citations that correlate 10 

the Ri\(' pnl\ isions that requires modificatilHl: 

a. Adel the Ltst sentence from 70.3(d} to RAe 2-110(1 )(e). 

b. Add the Acid Rain provision outLnLx! in 70.4(b}( 15) to Ri\C 2-11 O( 8). 

c. lncorponne 70.5(3)( 1) into R:\C' 2-106(2)(a). 

d. :\.dd last sentence ti'om 7Cl.5(al(l)(ii) to RAC' 2-10()(2)(c). 

c. Add recentl;. promulgated 70.5(c)(3)tiiil* to R:\C 2-1ll6(4}(cl:iv). 

1'. Add recently promulgated 70.5(c)(7)* to RAe 2-106(4)(j). 

g. Add thc ,\cid Rain and Altemativc Operating Scenario provisions outlined in 

70.5(c)(8}(v) to RAC 2-106(4}(1). 

h. Add the pennit duration provision from 70.6(a)(2) imo RAe 2-110(1 Ha). 

L Use language from 70.6(af(3)(A) to avoid the current monitoring limitations in 

RAe 2·110(5)(<1). 

j. Add the Acid Rain provision outlined in 70.6( a)(4) to RAe 2-11 O( 1). 

k. Add the last paragraph of70.6(a)(6)(v) regarding conJidentiality to 

RAe 2-110(7)(e). 

L Add recently promulgated 70.6(a)(9)(iii)* to RAC 1-110(8)(b)(ii). 

m. Add the last paragraph from 70.6(b)(2) to RAe 2-II0(3)(t). 

n. Add the reference to in the tirst sentence of70.6(c)(1) to RAe 2-110(9)(a). 

n. Add tlk' "one change of location" for portahle sources from 70.6(e) to 

RAe 2-1 ]5(1) and RAe 1·10)(46). 

p. Add the Acid R~lin pn\\ision 1i'om 70.6(t)(3 )(iii) to RAe 2-1 lO( IO)(c), 

q. Add the Acid Rain pnl\ision from 70.7(3)(2) to RAe 2-107(3. 

r. Add permit renewal procedures from 70.7(c)(l )(ii) to RAe 2- 07(6) 

s. /\dd !he Acid Rain provision from 70.7(d)(]) to RAe 103(3). 

t. Add the Acid Kain provision Il'om 70.7(e) to RAe 1-103(3). 

Ll. Add the permitting failsa1e from 70.8(1.')(4) to RA.C 2·108(4)(h). 

*Recently promulgated in Federal Register! Vol. 74 No, 1921 Tuesday, October 6. 2009 

h\tp:jV\.y,\~.gQi:!.J!&~/fedrgstr!EPA_:bJI~l2Q09.LQ~J.QQ~r!Dav...:..Q§/a23 794.pdf 

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E. The following changes should be mad~ to the Tribe's Reservation Air 

Code (RAe) to strengthen the Part 70 Program. 

1.	 The tollmving 40 eFR Part 70 definitions haw been omitted from the Tribe's RAe. 

Please add the following tcnns defined in 40 CFR Part 70.2: 

u.	 Alternative operating scenario (AO$)* 

b.	 Approved replicable methodology (ARM)* 

..,	 The follO\ving RA.C provisions should be moditied to more closely represent the 

40 eFR Part 70 provisions. Below are the 40 erR Part 70 citations that correlate to 

the RAe provisions that require modification: 

3.	 Add more details about from 71. JJ(k) to RA.C 2-1 07( 5). 

h.	 Add recently promulgated 70.6(a)( 1)* to RAe 2-110(1 )(d). 

c. Add tll\;.' teml AOS instead ofsccnal"io per 70.6(a)(9) to RAe 2-1 10(8)(b). 

d, Add JanglingI;' hom 70.7k)(2)(R)(ii)to RAe 2-111(~)(a).

"'Recently promulgated in Federal Register' Vol. 7.+ No. lq2i Tuesday. October 6.2009 

http://\\\\\\.:~~~,~!ll~gr.gBllJ:J) -AIJV2(}09i _\	 ( )etaher/Da\"-()6/a2 7\)4. rdf

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