12926 Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules 

when the Agency decides not to use 

available and applicable VCS. 

This action does not involve changes 

to the technical standards related to test 

methods or monitoring methods; thus, 

the requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272) do not apply. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

This proposed rule does not involve 

special consideration of environmental 

justice-related issues as required by 

Executive Order 12898, Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994), because it does not change any 

regulatory requirements. This action 

merely corrects and clarifies existing 

requirements. 

List of Subjects in 40 CFR Part 63 

Administrative practice and 

procedure, Air pollution control, 

Hazardous substances, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: March 1, 2011. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2011–5195 Filed 3–8–11; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


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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. 


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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 federallyrecognized 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, 


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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 


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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.); 


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• 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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