[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Rules and Regulations]
[Pages 15267-15273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6205]


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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.

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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. Publicly-
available 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 
<a href="/cdn-cgi/l/email-protection#b0dedfc2c4d89ed1dcd5c8d9c3f0d5c0d19ed7dfc6"><span class="__cf_email__" data-cfemail="345a5b46405c1a5558514c5d47745144551a535b42">[email protected]</span></a>.

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

[[Page 15268]]

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 Sec.  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

[[Page 15269]]

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.
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    \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.
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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:
    [cir] Modify the ``emission unit'' definition to include pollutants 
listed under 112(b) of the Act; and
    [cir] 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.

[[Page 15270]]

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 Sec.  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 (CO<INF>2</INF>e) \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).
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    \2\ CO<INF>2</INF>e 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 CO<INF>2</INF>e 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.
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9. Submission Commitment
    The Tribe's Title V Program meets the requirements of 40 CFR 
70.4(b)(9). The Tribe submitted a commitment

[[Page 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.

[[Page 15272]]

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,

[[Page 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]

0
1. The authority citation for part 70 continues to read as follows:

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


0
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


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