Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 15267 

State regulation State effective date EPA approved date Comments 

Subchapter 45, ‘‘Motor Vehicle Emission Repair Facility Registration.’’ November 19, 2009 ........... March 15, 2012 [insert FR page citation].

Title 13, Chapter 21: 

* * * * * * * 

Subchapter 15, ‘‘New Jersey Licensed Motor 

Vehicle Dealers.’’ Sections 15.8 and 15.12.

November 19, 2009 ........... March 15, 2012 [insert FR page citation].

* * * * * * * 

Title 39, Chapter 8 Subchapters 1, 2 and 3 .. July 1, 2010 ........................ March 15, 2012 [insert FR page citation].

[FR Doc. 2012–6208 Filed 3–14–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 70 

[EPA–R08–OAR–2011–0015; FRL–9646–8] 

Clean Air Act Full Approval of Title V 

Operating Permits Program; Southern 

Ute Indian Tribe 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is promulgating full 

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: This final rule is effective March 

15, 2012, and is applicable beginning 

March 2, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2011–0015. 

All documents in the docket are listed 

in the 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. Publiclyavailable docket materials are available 

either electronically in 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 

8ENF–AT, 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 

January 14, 2009, 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 and the 

Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012. 

(v) The word Tribe means the 

Southern Ute Indian Tribe, unless the 

context indicates otherwise. 

Table of Contents 

I. Background 

II. Response to Comments 

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. Summary of EPA’s March 9, 2011 

Proposed Interim Approval 

B. 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 

V. What action is EPA taking today? 

VI. Statutory and Executive Order Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. Background 

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 a full 


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15268 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 

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 

are 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, the regulations authorize eligible 

Indian tribes to have the same rights and 

responsibilities as States under the 

CAA; however, EPA also 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 § 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). 

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 operating permit program 

approval and this action is in response 

to that request. 

II. Response to Comments 

EPA did not receive any comments on 

our March 9, 2011 Federal Register 

notice proposing interim approval of the 

Tribe’s Title V Program. 

III. Evaluation of the Tribe’s 

Authorities 

The EPA completed a review of the 

Tribe’s 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. 40 CFR 49.6. 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, Public Law 

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 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 means the Tribe’s CAA 

program TAS application contains the 

basic information needed for EPA to 

make a TAS eligibility determination. 

On March 2, 2012, EPA issued its 

determination finding that the Tribe is 

eligible for TAS for the purposes of 

approval of the title V program. 

B. Reasonably Severable Title V 

Program Elements 

As previously discussed in Section I 

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, that is, not 

integrally related to program elements 


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Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 15269 

1 If direct implementation authority for CAA 

sections 111 and 112 and the Acid Rain Program 

was a necessary element of an approvable title V 

program, EPA would find each of these authorities 

to be a severable element of such a program. 

that are not included in the plan 

submittal, and are consistent with 

applicable statutory and regulatory 

requirements. 40 CFR 49.7(c). Each 

submittal is evaluated for adequacy by 

EPA on a case-by-case basis. 

In the March 9, 2011 proposed 

interim approval, we stated that the 

underlying Federal regulations at CAA 

sections 111 (Standards of Performance 

for New Stationary Sources), 112 

(National Emissions Standards for 

Hazardous Air Pollutants) and the Acid 

Rain Program at title IV of the CAA were 

reasonably severable elements of a title 

V program. At that time, the Region’s 

view was that the authority to 

implement and enforce these 

regulations independent of title V, as 

contrasted with the authority to include 

the requirements that apply to a 

particular source in that source’s title V 

permit and to enforce those 

requirements, is a necessary part of an 

approvable title V program. 

After careful consideration, we find 

that, where, as is the case here, the title 

V permitting authority has the ability to 

include all applicable requirements in a 

title V permit and to enforce all 

requirements of a permit, the authority 

to implement CAA sections 111 and 112 

as well as the Acid Rain Program 

directly (i.e., independently of title V) is 

not a necessary element of an 

approvable title V program and 

therefore does not require severing 

pursuant to 40 CFR 49.7(c). While we 

believe that it is convenient in a number 

of respects for a permitting authority to 

have the authority to implement and 

enforce the Acid Rain Program and 

other underlying regulations outside of 

the context of an approved title V 

program, we are not, at this juncture, 

concluding that such authority is a 

necessary element of an approvable title 

V program. 

Thus, it is not necessary to sever these 

CAA requirements in the context of 

approving the Tribe’s Title V Program.1

Nevertheless, we note that the Tribe has 

submitted a letter to EPA expressing its 

intent to incorporate CAA section 111 

and 112 requirements into the 

Reservation Air Code and pursue 

authorization from EPA to implement 

and enforce those CAA programs. 

C. Criminal Enforcement Memorandum 

of Agreement 

The TAR provides for a Federal role 

in criminal enforcement of a 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 (MOA) 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. In 

this instance, 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 this basis, on February 10, 2009, 

the Tribe and EPA entered into a 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. Evaluations of the Tribe’s Title V 

Program Elements 

EPA conducted a thorough review of 

the Tribe’s Title V Program original and 

subsequent supplemental applications 

(Application for Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permit Program dated 

January 14, 2009; Supplement to 

Application for Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permit Program dated 

September 28, 2010; Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012) according to 40 CFR 70.4(b) 

Elements of the initial program 

submission. Upon review of those 

applications, EPA concluded that the 16 

elements found at 40 CFR 70.4(b) were 

adequately addressed by the Tribe’s 

Title V Program. 

A. Summary of EPA’s March 9, 2011 

Proposed Interim Approval of the 

Tribe’s Title V Program 

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, 

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 

reviewed these changes and determined 

that they were adequate to allow for 

Title V Program interim approval 

pursuant to 40 CFR 70.4(a). 

The EPA’s March 9, 2011 proposed 

interim approval Federal Register 

notice outlined two changes to the 

Tribe’s Program to be made in order for 

a final full approval to be granted. Those 

two changes were: 

Æ Modify the ‘‘emission unit’’ 

definition to include pollutants listed 

under 112(b) of the Act; and 

Æ Modify the ‘‘major source’’ 

definition to include the updated 

definition for purposes of regulating 

greenhouses gases 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). 

Since the publishing of the March 9, 

2011 proposed interim approval in the 

Federal Register, the Tribe has made the 

recommended changes above to its 

Program and resubmitted the Title V 

Program to the EPA (Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012). Thus, the Title V Program meets 

the minimum requirements of 40 CFR 

70.4(b). 

B. Analysis of the Tribe’s Title V 

Program Submission per 40 CFR 70.4(b) 

1. Complete Title V Program Description 

The Tribe’s Title V Program meets the 

requirements of 40 CFR 70.4(b)(1). The 

Tribe submitted a complete program 

description (Application for Approval of 

the Southern Ute Indian Tribe’s 40 CFR 

Part 70 Operating Permit Program dated 

January 14, 2009, Tab 1, Program 

Description) which describes how the 

Tribe intends to carry out its 

responsibilities under part 70. 


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15270 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 

2CO2e is a measure of the global warming 

potential of GHGs. Pursuant to the GHG Tailoring 

Rule, Table A–1 to subpart A of 40 CFR part 98— 

Global Warming Potentials (74 FR 56395) should be 

used in calculating CO2e for purposes of 

determining whether a source’s emissions exceed 

the major source threshold for title V. See 

Prevention of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule, 75 FR 31522. 

2. Regulations Comprising the Title V 

Program 

The Tribe’s Title V Program, with the 

operating permit regulations 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, 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. 

The Tribe’s Title V Program satisfies the 

requirements outlined in 40 CFR 70.4 

and all other relevant sections of part 

70. 

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 signatory of 

the legal opinion, 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 part 70, including 

authority to carry out those activities 

listed at 40 CFR 70.4(b)(3)(i) through 

(xiii). 

EPA notes that the Tribe’s program 

provides for appropriate review of final 

permit actions, consistent with 40 CFR 

§ 70.4(b)(3)(x), by providing that final 

permit actions of the Commission are 

reviewable in the United States Court of 

Appeals for the Tenth Circuit. See Pub. 

L. 108–336; Resolution No. 2008–01 

dated January 31, 2008, Procedural 

Rules of the Southern Ute Indian Tribe/ 

State of Colorado Environmental 

Commission, Section V. C.; see also 63 

FR at 7261–62. 

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 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, 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, 

consistent with 40 CFR 70.4(b)(11)(ii). 

7. Fee Demonstration 

The Tribe’s Title V Program includes 

a fee accounting, which includes 

projected fee collection and 

programmatic costs (Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012, Tab 10 Revised Fee 

Demonstration Figure 1 page 6 and 

Table 2 page 7) that set fees above the 

presumptive minimum set forth in 

section 70.9. 

The Tribe’s Title V Program requires 

that part 70 sources pay $50 per ton of 

fee pollutant (not including greenhouse 

gases (GHGs)) for the first year of permit 

issuance and then $50 per ton plus any 

percentage increase necessary to reflect 

any increase in the Consumer Price 

Index (CPI) each year thereafter. The 

Tribe has adequately shown in the Fee 

Demonstration, that $50 per ton is 

sufficient to cover the permit program 

costs and that any fees generated will be 

used exclusively for permit program 

costs. The $50 per ton is a slight 

increase from the current annual part 71 

fees, $47.11 per ton. EPA notes that 

although the Tribe’s Title V Program 

does not assess fees for GHGs, the fee 

structure is expected to be adequate to 

cover all program costs, provided that 

GHG sources below the threshold of 40 

CFR part 70 are not subject to the 

program. The Tribe will review resource 

needs for GHG-emitting sources in its 

fee structure if necessary and EPA will 

work with the Tribe if it requests 

assistance in establishing title V fees 

related to GHG emissions. 

8. Statement of Adequate Personnel 

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)). This 

demonstration, however, does not 

include permit issuance to GHG sources 

at 100 tpy. In addition, the Tribe has 

provided a supplemental staffing plan 

(January 4, 2011 email from Brenda 

Jarrell) that outlines a staff of six 

individuals. Those staff resumes can be 

found in Tab 11 of the Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permit Program. 

EPA has reviewed the Tribe’s 

statement and staffing plan and 

concludes they are adequate. EPA notes 

that the Tribe’s Title V Program does not 

cover sources below the threshold of 40 

CFR part 70 (i.e., only those sources that 

emit at least 100 tpy on a mass basis and 

100,000 tpy on a Carbon Dioxide 

equivalent (CO2e) 2 basis will be treated 

as a major source subject to title V 

permitting as a result of GHG 

emissions). Accordingly, applicability of 

the Tribe’s Title V Program is consistent 

with GHG permitting requirements. See 

75 FR 82254 (December 30, 2010) (Title 

V GHG Narrowing Rule). We conclude 

that the Tribe’s Title V Program meets 

the requirements of 40 CFR 70.4(b)(8). 

9. Submission Commitment 

The Tribe’s Title V Program meets the 

requirements of 40 CFR 70.4(b)(9). The 

Tribe submitted a commitment 


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Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 15271 

(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 

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 

relevant provisions of the Tribe’s 

Reservation Air Code (Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012, Tab 6, 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’s comprehensive Revised 

Transition Plan (Application for Full 

Approval of the Southern Ute Indian 

Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012, Tab 9, Revised Transition Plan) 

outlines a plan and schedule for 

submittal and final action on initial 

permit applications for all part 70 

(previously part 71) sources within the 

exterior boundaries of the Reservation. 

Currently, EPA Region 8 has issued 44 

part 71 permits on the Southern Ute 

Indian Reservation. Transfer of primary 

responsibility for permits is outlined in 

the Tribe’s Revised Transition Plan. 

According to the Tribe’s Code, this Title 

V Program ‘‘shall become effective upon 

the date of the approval by the 

Administrator of the Tribe’s application 

for treatment as a state and part 70 

program approval.’’ (Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012, Tab 6, Reservation Air Code, 

Article II, Part I, 2–102). 

Thus, upon signature of this Federal 

Register notice and the separate TAS 

application, the Tribe will begin the 

process of contacting all part 71 sources 

and informing them of when each 

source is expected to submit a part 70 

permit application per the Tribe’s 

transition plan (Application for Full 

Approval of the Southern Ute Indian 

Tribe’s 40 CFR Part 70 Operating 

Permits Program dated January 30, 

2012, Tab 9, Revised Transition Plan). 

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 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, Reservation Air 

Code) contains provisions, Article II, 

Sections 2–110, 2–111 and 2–116, 

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 section 70.4(b)(12) consistent with 40 

CFR 70.4(b)(12)(i) through (iii). 

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 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, 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 

that are 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 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, Reservation Air 

Code) Article II, Section 2–116(2) 

prohibits sources from making, without 

a permit revision, changes that are not 

addressed or that are 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 

(Application for Full Approval of the 

Southern Ute Indian Tribe’s 40 CFR Part 

70 Operating Permits Program dated 

January 30, 2012, Tab 6, 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. 

V. What action is EPA taking today? 

EPA is promulgating a full approval 

rather than a full interim approval 

because the issues identified in the 

proposed interim approval have been 

addressed. Thus, the EPA is moving to 

a full approval in today’s action. 

The Title V Program issues identified 

in the EPA’s March 9, 2011 proposed 

interim approval were addressed. The 

Tribe’s updated RAC became effective 

on August 8, 2011. An Application for 

Full Approval of the Southern Ute 

Indian Tribe’s 40 CFR Part 70 Operating 

Permits Program was submitted to the 

EPA on January 30, 2012 for final 

action. The following changes were 

made to the Tribe’s Title V Program, 

effective August 8, 2011: 

(1) The ‘‘emission unit’’ definition in 

the RAC (found at RAC Section 1– 

103(26)) was modified to include 

pollutants listed under section 112(b) of 

the CAA (42 U.S.C. 7412(b)); 

(2) The ‘‘major source’’ definition in 

the RAC (found at RAC Section 1– 

103(38)) was modified to include the 

code of Federal regulations’ updated 

definitions of ‘‘major source’’ and 

‘‘subject to regulation’’ (found at RAC 

Section 1–103(65)) for purposes of 

addressing greenhouse gases as part of 

EPA’s Prevention of Signification 

Deterioration/Title V Greenhouse Gas 

Tailoring Rule (GHG Tailoring Rule). 

See 75 FR 106 at 31514–31608 (June 3, 

2010). 

The change to the ‘‘emission unit’’ 

definition clarified and made the Tribe’s 

Title V Program consistent with 40 CFR 

part 70. Although the Tribe has the 

authority to regulate pollutants listed 

under 112(b) of the Act through its 

‘‘major source’’ and ‘‘regulated air 

pollutant’’ definitions, to be consistent, 

the ‘‘emission unit’’ definition should 

include 112(b) pollutants as well. 

The change to the ‘‘major source’’ 

definition narrowed the number of 

sources requiring Title V review for 

greenhouse gases (GHGs) after July 1, 

2011, by raising the major source 

threshold from 100 tons per year (tpy) 

to 100,000 tpy for GHGs. With this 

modification, the Tribe will be issuing 

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. 


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15272 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 

VI. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden. The 

information collection requirements in 

the Title V Program are all mandated by 

40 CFR part 70. The Office of 

Management and Budget (OMB) 

previously approved the information 

collection requirements specified in 40 

CFR part 70 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0243. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure 

Act, or any other statute, unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impact 

of this final rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

EPA’s action in approving the Tribe’s 

Title V Program does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for state, local and tribal governments, 

in the aggregate, or the private sector in 

any one year. Thus, this action is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will 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. The Title V 

Program primarily affects private 

industry and does not impose 

significant economic costs on state or 

local governments. Thus, Executive 

Order 13132 does not apply to this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

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 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

will have tribal implications in that it 

will result in responsibility for issuing 

title V permits being transferred from 

EPA to the Tribe in that it will result in 

responsibility for issuing title V permits 

being transferred from EPA to the Tribe. 

However, it will neither impose 

substantial direct compliance costs on 

tribal governments, nor preempt Tribal 

law. EPA’s action in approving the Title 

V Program will make the requirements 

of the Title V Program enforceable 

under Federal law. 

EPA consulted with tribal officials 

early in the process of developing this 

action to permit them to have 

meaningful and timely input into its 

development. Government to 

Government consultation occurred on 

November 3, 2010 between Region 8 

Administrator, James B. Martin and then 

Chairman Matthew Box. Additionally, 

routine staff level conference calls and 

meetings have been held consistently 

throughout the review process. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets E.O. 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the E.O. has the potential to influence 

the regulation. This action is not subject 

to E.O. 13045 because it approves the 

Title V Program submitted by the 

Southern Ute Indian Tribe and thus 

does not concern health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (E.O.) 12898 (59 FR 

7629 (Feb. 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, 


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Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Rules and Regulations 15273 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

action will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This final action approves 

the Title V Program submitted by the 

Southern Ute Indian Tribe and thus 

transfers responsibility for issuing title 

V permits from EPA to the Tribe. 

K. Congressional Review Act (CRA) 

The CRA, 5 U.S.C. 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. The EPA will submit a 

report containing this final rule and 

other required information to the United 

States Senate, the United States House 

of Representatives, and the Comptroller 

General of the United States prior to 

publication of the final 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). The final rule will 

be effective upon approval by the 

Region 8 Administrator. 

Dated: March 7, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

40 CFR part 70 is amended as follows: 

PART 70—[AMENDED] 

■ 1. The authority citation for part 70 

continues to read as follows: 

Authority: 42 U.S.C. sections 7401, et seq. 

■ 2. In appendix A to part 70, in 

alphabetical order (after South Dakota 

and before Tennessee), add the entry for 

Southern Ute Indian Tribe to read as 

follows: 

Appendix A to Part 70—Approval 

Status of State and Local Operating 

Permits Programs 

* * * * * 

Southern Ute Indian Tribe 

(a) The Southern Ute Indian Tribe 

submitted an operating permits program on 

January 20, 2009 with supplements on 

September 28, 2010 and January 30, 2012; 

full approval effective on March 2, 2012. 

(b) [Reserved]. 

* * * * * 

[FR Doc. 2012–6205 Filed 3–14–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R06–RCRA–2012–0054; FRL–9647–7] 

Oklahoma: Final Authorization of State 

Hazardous Waste Management 

Program Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Immediate final rule. 

SUMMARY: Oklahoma has applied to the 

EPA for Final authorization of the 

changes to its hazardous waste program 

under the Resource Conservation and 

Recovery Act (RCRA). EPA has 

determined that these changes satisfy all 

requirements needed to qualify for Final 

authorization, and is authorizing the 

State’s changes through this immediate 

final action. The EPA is publishing this 

rule to authorize the changes without a 

prior proposal because we believe this 

action is not controversial and do not 

expect comments that oppose it. Unless 

we receive written comments which 

oppose this authorization during the 

comment period, the decision to 

authorize Oklahoma’s changes to its 

hazardous waste program will take 

effect. If we receive comments that 

oppose this action, we will publish a 

document in the Federal Register 

withdrawing this rule before it takes 

effect, and a separate document in the 

proposed rules section of this Federal 

Register will serve as a proposal to 

authorize the changes. 

DATES: This final authorization will 

become effective on May 14, 2012 

unless the EPA receives adverse written 

comment by April 16, 2012. If the EPA 

receives such comment, it will publish 

a timely withdrawal of this immediate 

final rule in the Federal Register and 

inform the public that this authorization 

will not take effect. 

ADDRESSES: Submit your comments by 

one of the following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Email: patterson.alima@epa.gov. 

3. Mail: Alima Patterson, Region 6, 

Regional Authorization Coordinator, 

State/Tribal Oversight Section (6PD–O), 

Multimedia Planning and Permitting 

Division, EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733. 

4. Hand Delivery or Courier. Deliver 

your comments to Alima Patterson, 

Region 6, Regional Authorization 

Coordinator, State/Tribal Oversight 

Section (6PD–O), Multimedia Planning 

and Permitting Division, EPA Region 6, 

1445 Ross Avenue, Dallas, Texas 75202– 

2733. 

Instructions: Do not submit 

information that you consider to be CBI 

or otherwise protected through 

regulations.gov, or email. The Federal 

regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means the 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 the EPA without 

going through 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, the 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 the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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. 

You can view and copy Oklahoma’s 

application and associated publicly 

available materials from 8:30 a.m. to 

4 p.m. Monday through Friday at the 

following locations: Oklahoma 

Department of Environmental Quality, 

707 North Robinson, Oklahoma City, 

Oklahoma 73101–1677, (405) 702–7180 

and EPA, Region 6, 1445 Ross Avenue, 

Dallas, Texas 75202–2733, phone 

number (214) 665–8533. Interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least two 

weeks in advance. 

FOR FURTHER INFORMATION CONTACT: 

Alima Patterson, Region 6, Regional 

Authorization Coordinator, State/Tribal 

Oversight Section (6PD–O), Multimedia 

Planning and Permitting Division, (214) 

665–8533, EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733, and 

Email address patterson.alima@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to State programs 

necessary? 

States which have received final 

authorization from the EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 


sroberts on DSK5SPTVN1PROD with RULES