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[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Rules and Regulations]
[Pages 40635-40638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16327]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60, 61, and 63

[EPA-R08-OAR-2012-0764; FRL-9828-6]

Delegation of Authority to the Southern Ute Indian Tribe To 
Implement and Enforce National Emissions Standards for Hazardous Air 
Pollutants and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking final action to approve the Southern Ute Indian 
Tribe's (SUIT) July 3, 2012 request for delegation of authority to 
implement and enforce National Emissions Standards for Hazardous Air 
Pollutants (NESHAP) and New Source Performance Standards (NSPS). This 
request establishes and requires SUIT to administer a NSPS and NESHAPs 
program per EPA regulations. The delegation is facilitated by SUIT's 
treatment ``in the same manner as a state'' (TAS) document, per CAA 
requirements.

DATES: This rule is effective on September 6, 2013 without further 
notice, unless EPA receives adverse comment by August 7, 2013. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0764, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: olson.kyle@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection

[[Page 40636]]

Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129. Such deliveries are only accepted Monday through 
Friday, 8:00 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 EPA-R08-OAR-2012-0764. 
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 
email. 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 email comment directly to EPA, without going through http://www.regulations.gov, your email 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 instructions on submitting comments, go to 
Section I. General Information of the SUPPLEMENTARY INFORMATION section 
of this document.
    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 
at http://www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 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, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kyle Olson, Air Program, Mailcode 8P-
AR, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, (303) 312-6002 or 
olson.kyle@epa.gov.

SUPPLEMENTARY INFORMATION: EPA is taking final action to approve the 
Southern Ute Indian Tribe's (SUIT) July 3, 2012 request for delegation 
of authority to implement and enforce National Emissions Standards for 
Hazardous Air Pollutants (NESHAP) and New Source Performance Standards 
(NSPS). This request establishes and requires SUIT to administer a NSPS 
and NESHAPs program per EPA regulations. SUIT met the requirements of 
Clean Air Act (CAA) sections 111(c) and 112(l) and 40 CFR subpart E for 
full approval to administer CAA 111 and CAA 112 programs entirely due 
to its prior approval of its CAA Title V Part 70 Permitting Program. 
The delegation is facilitated by SUIT's treatment ``in the same manner 
as a state'' (TAS) document, per CAA section 301(d)(2). This action is 
being taken under CAA sections 111 and 112.

Table of Contents

I. General Information
II. Delegation of Authority to SUIT
III. Final Action
IV. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to 
certain words or initials as follows: (i) The words or initials Act 
or CAA mean or refer to the Clean Air Act, unless the context 
indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The word NESHAP means or refers to National Emissions 
Standards for Hazardous Air Pollutants.
    (iv) The word NSPS means or refers to the New Source Performance 
Standards.
    (v) The word SUIT means or refers to the Southern Ute Indian 
Tribe.
    (vi) The word TAS means or refers to Treatment As a State

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 email. 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. Delegation of Authority to SUIT

    CAA sections 111(c)(1) and 112(l), as amended, authorize EPA to 
delegate authority to any state or tribal agency which submits adequate 
regulatory procedures for implementation and enforcement of the NSPS 
and NESHAP. The NSPS are codified in 40 CFR part 60 and the NESHAP are 
codified in 40 CFR part 63. Delegation confers primary responsibility 
for implementation and enforcement to the respective tribal agency; 
however, EPA also retains the concurrent authority to enforce the 
standards.
    With a July 3, 2012 letter, the Chairman of the Southern Ute Indian 
Tribe requested delegation of authority for NSPS and NESHAP, 
promulgated in Parts 2 and 3 of the SUIT Reservation Air Program. EPA's 
review of SUIT's

[[Page 40637]]

program determined that it contained adequate and effective procedures 
for the implementation and enforcement of these federal standards. 
Therefore, on November 27, 2012, EPA Region 8 notified SUIT that, 
pending publication in the Federal Register, the Tribe is authorized to 
accept delegation of NSPS and NESHAP standards with the following 
letter:

``The Honorable Jimmy R. Newton Jr., Chairman
The Southern Ute Indian Tribe
P.O. Box 737
Ignacio, Colorado 81137-0737

Re: Clean Air Act (CAA) 111 and 112, New Source Performance 
Standards (NSPS) and National Emission Standards for Hazardous Air 
Pollutants (NESHAP) Program Approval

Dear Chairman Newton:

    I am pleased to inform you that, because the Southern Ute Indian 
Tribe has an approved CAA Title V permitting program, the EPA finds 
that the Tribe has the authority to carry out NSPS (CAA 111) and 
NESHAP (CAA 112) regulatory activities, and that the Tribe can begin 
requesting delegation of specific NSPS & NESHAP standards. The 
Tribe's treatment ``in the same manner as a state'' document has 
been updated to reflect this new Program approval (per CAA section 
301(d)(2) and 40 CFR 49.6.)
    NSPS establishes maximum emission levels for new stationary 
sources, and NESHAPs address the control of hazardous air pollutants 
through Maximum Achievable Control Technology (MACT) standards and 
related programs that enhance and support the NESHAP program. The 
Tribe is also granted automatic delegation of NESHAP (CAA 112) 
standards through incorporation by reference of the standards when 
they are adopted unchanged into the Reservation Air Code (RAC) from 
the federal standards. A request for delegation of specific NSPS 
(CAA 111) standards will require a letter to the EPA. After such 
request the EPA would publish a Federal Register notice containing 
the letter of request and an updated Code of Federal Regulations 
(CFR) table, and the EPA would respond by letter to the Tribe.
    To approve future requests for delegation of NSPS and NESHAPS 
regulations the EPA will provide public notice through publication 
in the Federal Register as a direct final rule. A direct final rule 
makes CAA 111 and CAA 112 delegations effective the day of 
publication. However, should the EPA receive any adverse comments on 
the direct final rule, the delegation will be reconsidered.
    For more information on this approval, please contact Carl Daly, 
Director of Region 8's Air Program at (303) 312-6416.
Sincerely,

James B. Martin
Regional Administrator''

III. Summary of Final Action

    We are approving delegation of the CAA 111 and 112 programs (NSPS 
and NESHAP, respectively) to SUIT. We are approving this rule because 
the authority for this delegation is based entirely on SUIT's previous 
approval of the Part 70 permitting program [EPA-R08-OAR-2011-0015; FRL-
9277-9]

IV. Statutory and Executive Order Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves Tribal law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by Tribal law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq). Because 
this rule approves pre-existing requirements and does not impose any 
additional enforceable duty, it 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).
    This action also does not have federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a Tribal 
rule implementing a Federal standard.
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires us to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications''. ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal Government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes''. Under Section 5(b) of Executive 
Order 13175, we may not issue a regulation that has tribal 
implications, that imposes substantial direct compliance costs, and 
that is not required by statute, unless the Federal Government provides 
the funds necessary to pay the direct compliance costs incurred by 
tribal governments, or we consult with tribal officials early in the 
process of developing the proposed regulation. Under Section 5(c) of 
Executive Order 13175, we may not issue a regulation that has tribal 
implications and that preempts tribal law, unless the Agency consults 
with tribal officials early in the process of developing the proposed 
regulation. While we conclude that this action will have tribal 
implications, this action is not a regulation and merely approves a 
Tribal rule implementing a federal standard. This action does not alter 
the relationship or the distribution of power and responsibilities 
established in the Clean Air Act except as regards implementation of 
CAA 111 and 112. This action will neither impose substantial direct 
compliance costs on tribal governments, nor preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq, as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 3, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules

[[Page 40638]]

section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 60, 61, and 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Ammonium sulfate plants, Batteries, 
Beverages, Carbon monoxide, Cement industry, Chemicals, Coal, Copper, 
Dry cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, 
Glass and glass products, Grains, Graphic arts industry, Heaters, 
Household appliances, Insulation, Intergovernmental relations, Iron, 
Labeling, Lead, Lime, Metallic and nonmetallic mineral processing 
plants, Metals, Motor vehicles, National Emissions Standards for 
Hazardous Air Pollutants, Natural gas, New Source Performance 
Standards, Nitric acid plants, Nitrogen dioxide, Paper and paper 
products industry, Particulate matter, Paving and roofing materials, 
Petroleum, Phosphate, Plastics materials and synthetics, Polymers, 
Reporting and recordkeeping requirements, Sewage disposal, Steel, 
Sulfur oxides, Sulfuric acid plants, Tires, Tribal, Urethane, Vinyl, 
Volatile organic compounds, Waste treatment and disposal, Zinc.

    Dated: May 30, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-16327 Filed 7-5-13; 8:45 am]
BILLING CODE 6560-50-P
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