UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGION 8
 

1595 Wynkoop Street 

DENVER, CO 80202-1129 

Phone 8()()"227-8917 

http://www.epa.gov/region08 

OCT J 2009 

MEMORANDUM 

SUBJECT:	 Partial Assessment of the Southern Ute Indian Tribe's Title V Program Submittal 

FROM:	 Cynthia J. Reynolds, DirectorCV.Yh.~\) - //" 

Air & Toxics Technical Enforce~nt Pr#nimU~

TO:	 Callie A. Videtich, Director 

Air Program 

The Region 8 Air & Taxies Technical Enforcement Program recommends approval of the 

"Enforcement" portion of the Southern Ute Indian Tribe's Title V Program Submittal (Tribe's 

Submittal). The Oft1ce of Enforcement and Compliance Assurance (OECA) has also concurred on 

the enforcement provisions of the submittal. Using the Part 70 Operating Permits Program Review 

Checklist for Tribal Programs (Checklist) as guidance for our regional review, it was determined that 

the Tribe's Submittal incorporates the requirements outlined in Checklist Section VIII. Compliance 

Tracking and Enforcement Provision and Checklist Attachment F, Enforcement Authority 

Requirements. 

Checklist Section VIII requires mechanisms for compliance tracking and enforcement 

reporting. Checklist Attachment F requires verification of authority to address specific violations. It 

is the determination ofthe Air &.Toxics Technical Enforcement Program and OECA that all 

requirements outlined in both Checklist Section Vill and Attachment Fhave been met, and thus, we 

recommend approval ofthc Tribe's SubmittaL 

Both Robert Dresdner, the AED Title V Program point of contact, and Ron Rutherford of 

OECA have reviewed the enforcement related portions ofthe Southern Ute Tribes Title V program 

and did not see any unaddressed issues or deficiencies that would preclude a program approval from 

Region 8. 

S Printed on Recycled Paper 
VIII. COMPLIANCE TRACKING AND ENFORCEMENT PROVISIONS 

Does the program submittal contain the following? 

[Yes] RAC 2-122 A. Compliance Tracking - A complete description of the compliance tracking 

and enforcement program, or reference to any agreement the permitting 

authority has with EPA that provides this information. [70.4(b)(5)] 

[Yes] RAC 2-123.RAC 2-123(2) states will 

work with Administrator on method for 

recording information required, needs to 

be AFS, the Tribe recognizes this in the 

"Compliance Assurance and Mutual 

Settlement Agreement Handbook" 2.2.1 

B. Enforcement Reporting - A commitment from the permitting authority to 

submit, at least annually, to EPA information regarding enforcement 

activities, including reporting, as a minimum, the following: NOTE: The 

mechanism that should be used for recording this information is the AIRS 

Facility Subsystem/Aerometric Information Retrieval System (AFS/AIRS). 

[70.4(b)(9)] 

[Yes] RAC 2-123(1)(a) (MOU no crimina! 

enforcement for the Tribe) 

1. The number of criminal and civil, judicial and administrative enforcement 

actions either commenced or concluded. 

[Yes] RAC 2-123(1)(b) 2. The penalties, fines, and sentences obtained in those actions. 

[Yes] RAC 2-123(1)(c) 3. The number of administrative orders issued. 

[Yes] RAC 2-121 see also attachment F C. The enforcement authority requirements as specified in Attachment F. 
InIlIIE.'F 

EIMICE.EIIT.lTIllm IEIUIHEMEm 

NOTE: The TAR, as finalized does not require Tribes to have criminal enforcement authority. 

A.	 Does the program provide the following enforcement authority to address 

violations of program requirements by permitted sources? 

[Yes] RAC 2-121(1) 1. Authority to restrain or enjoin immediately and effectively any 

person by order or by suit in court from engaging in any activity in 

violation of a permit that is presenting an imminent and substantial 

endangerment to the public health or welfare or the environment. 

[70.11(a)(1)] 

[Yes] RAC 2-121{1} 2. Authority to seek injunctive relief in court to enjoin any violation of 

any program requirement, including permit conditions, without the 

necessity of a prior revocation of the permit. [70.11 (a)(2)l 

[Yes] RAC 2-121(2) 3. Authority to assess or sue to recover in court civil penalties and to 

seek criminal remedies, including fines, according to the following: 

[70.11 (a)(3)] 

a. Civil penalties are recoverable: 

[Yes] RAC 2-121 (2)(c) (1) For the violation of any applicable requirement; any 

permit condition; any fee or filing requirement; any 

duty to allow or carry out inspection, entry of 

monitoring activities or, any regulation or orders 

issued by the permitting authority. 
[YesJ RAC 2-121(2)(b) (2) In a maximum amount of not less than $10,000 per 

day per violation. 

[YesJ RAC 2-121(2)(c) b. Mental state is not allowed as an element of proof for civil 

violations. NOTE: The permitting authority must impose 

strict liability for civil violations. 

c. Criminal Fines are recoverable: 

[N/AJ MOU between Tribe and EPA maintains 

criminal authority with EPA. 

(1) Against any person who knowingly violates any 

applicable requirement; any permit condition; 

or any fee or filing requirement. 

[N/AJ MOU_Rf:)Jween Tribe and EPA maintains 

criminal authority with EPA. 

(2) Against any person who knowingly makes any 

false material statement, representation· or 

certification in any forms, in any notice or 

report required by a permit, or who knowingly 

renders inaccurate any required monitoring 

device or method. 

[N/A] MOU between Tribe and EPA maintains 

criminal authority with EPA. 

(3) In a maximum amount not less than $10,000 per day 

per violation. 

[YesJ RAC 2-121(4) B. Is the burden of proof and degree of knowledge or intent required for 

establishing violations, as described under item # A. 3. above, no greater 

than the burden of proof or degree of knowledge or intent required under 

the Act? [70.11 (b)]