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Southern Ute Indian Tribe/State of Colorado Environmental Commission’s
Reservation Air Code
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Revised: October 29, 2025
Table of Contents
ARTICLE I. GENERAL PROVISIONS ....................................................................................... 1
1-101. Declaration of Policy. ...................................................................................................... 1
1-102. Authority.......................................................................................................................... 1
1-103. Definitions. ...................................................................................................................... 1
1-104. Administration. .............................................................................................................. 17
1-105. Investigations and Information Requests. ..................................................................... 17
1-106. Air Pollution Emergencies Endangering Public Health or Welfare on the
Reservation. .............................................................................................................................. 19
1-107. Enforcement................................................................................................................... 19
1-108. Severability and Preservation of Rights. ....................................................................... 20
ARTICLE II. AIR QUALITY CONTROL PROGRAMS .......................................................... 21
PART 1. TITLE V OPERATING PERMIT PROGRAM ........................................................... 21
2-101. Program Overview......................................................................................................... 21
2-102. Effective Date. ............................................................................................................... 21
2-103. Permit Program Definitions. .......................................................................................... 21
2-104. Applicability. ................................................................................................................. 21
2-106. Permit Applications. ...................................................................................................... 23
2-107. Action on Permit Applications ...................................................................................... 28
2-108. Review by the Administrator and Affected Programs................................................... 31
2-109. Public Notice and Participation. .................................................................................... 34
2-110. Permit Content. .............................................................................................................. 36
2-111. Permit Revisions. ........................................................................................................... 45
2-112. Permit Reopenings, Revocations and Reissuances, and Terminations. ........................ 48
2-113. Permit Transfers. ........................................................................................................... 51
2-114. General Permits. ............................................................................................................ 51
2-115. Portable Source Permits................................................................................................. 52
2-116. Facility Changes Allowed Without Permit Revisions. .................................................. 52
2-117. Reserved......................................................................................................................... 54
2-118. Fee Requirement and Payment. ..................................................................................... 54
2-119. Fee Schedule. ................................................................................................................. 57
2-120. Reduction in Permit Fees. .............................................................................................. 58
2-121. Enforcement Authority. ................................................................................................. 58
2-122. Compliance Tracking. ................................................................................................... 60
2-123. Enforcement Reporting.................................................................................................. 61
2-124. Confidentiality. .............................................................................................................. 61
2-125. Program Revision. ......................................................................................................... 62
PART 2. NEW SOURCE PERFORMANCE STANDARDS .................................................... 63
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3-101. Introduction to Incorporation of Standards of Performance for New Stationary
Sources. ..................................................................................................................................... 63
3-102. Incorporation of NSPS by reference. ............................................................................ 63
PART 3. NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 66
4-101. Introduction to Incorporation of National Emission Standards for Hazardous Air
Pollutants................................................................................................................................... 66
4-102. Incorporation of NESHAP by Reference. .................................................................... 66
4-103. Incorporation of NESHAP for Source Categories by Reference. ................................ 67
History and Amendments ............................................................................................................. 70
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ARTICLE I. GENERAL PROVISIONS
1-101. Declaration of Policy.
The Southern Ute Indian Tribe/State of Colorado Environmental Commission finds and declares
that it is the policy of this Commission, in accordance with the charge given this Commission by
the Tribe and State in the Intergovernmental Agreement Between the Southern Ute Indian Tribe
and the State of Colorado Concerning Air Quality Control on the Southern Ute Indian
Reservation, (1) to protect and improve the air quality on the Reservation, for the benefit of the
health and welfare of the residents of the Reservation and the Reservation environment, in a
manner that reflects the particular interests of the Tribe and other entities operating on the
Reservation, yet remains compatible with State air quality goals; (2) to take into account, in the
establishment of the Reservation Air Program, the specific environmental, economic, geographic
and cultural needs of the Reservation; and (3) to establish a single comprehensive air quality
program applicable to all lands within the exterior boundaries of the Southern Ute Indian
Reservation.
1-102. Authority.
This Air Quality Code is adopted pursuant to the authority vested in the Southern Ute Indian
Tribe/State of Colorado Environmental Commission by (1) the Intergovernmental Agreement
Between the Southern Ute Indian Tribe and the State of Colorado Concerning Air Quality
Control on the Southern Ute Indian Reservation dated December 13, 1999, (2) tribal law
(Resolution of the Council of the Southern Ute Indian Tribe # 00-09), (3) State law
(C.R.S. § 24-62-101), and (4) as recognized in federal law (Act of October 18, 2004, Pub. L. No.
108-336, 118 Stat.1354).
1-103. Definitions.
(1)
“Acid rain source” means an affected unit as defined in regulations promulgated
under title IV of the Clean Air Act, namely, a unit that is subject to acid rain
emission reduction requirements under title IV of the Clean Air Act.
(2)
“Actual emissions” means for purposes of calculating emissions fees pursuant to
§ 2-119 of this code, the amount of emissions, including fugitive emissions from a
source that is calculated by using:
(a)
The actual rate of emissions in Tons Per Year (TPY) of any fee pollutant
emitted from a title V source over the preceding calendar year or any other
period determined by the Tribe to be more representative of normal
operation and consistent with the fee schedule adopted by the Tribe and
approved by the Administrator; and
(b)
The unit’s actual operating hours, production rates, and in-place control
equipment, types of materials processed, stored, or combusted during the
preceding calendar year or other period used for this calculation; and
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(c)
(3)
Shall not include emissions of any one fee pollutant in excess of four
thousand (4,000) TPY, or any emissions that come from insignificant
activities not required in a permit application pursuant to § 2-106(4) of this
code.
“Administrative permit revision” means a permit revision that:
(a)
Corrects typographical errors;
(b)
Requires more frequent monitoring or reporting by the permittee;
(c)
Indicates a change in ownership or operational control of a source,
provided that:
(i)
A written agreement, containing a specific date for transfer of
permit responsibility, coverage, and liability between the current
and new permittee, has been submitted to the Tribe, and the Tribe
has determined that no other change in the permit is necessary;
(ii)
The new owners have submitted the application information
required in § 2-106(4) of this code;
(iii)
No grounds exist for permit reopening, revocation and reissuance,
or termination, pursuant to § 2-112 of this code; and
(d)
Incorporates into the permit the requirements from preconstruction review
permits issued pursuant to an EPA approved pre-construction permitting
program, provided that the issuance of such preconstruction review
permit(s) complies with the procedural and compliance requirements of
this code; or
(e)
Any other type of change which has been determined by the Tribe and the
Administrator to be similar to those in this definition.
(f)
Administrative permit amendments for purposes of the acid rain portion of
the permit shall be governed by regulations promulgated under title IV of
the Act.
(4)
“Administrator” means the Administrator of the United States Environmental
Protection Agency (EPA) or his or her designee.
(5)
“Affected program” means all tribal, state, and local air pollution control
programs:
(a)
Whose air quality may be affected and that are contiguous to the
Reservation, or
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(b)
That are within 50 miles of the permitted source.
(6)
“Affected source” shall have the meaning given to it in the regulations
promulgated under title IV of the Act.
(7)
“Air pollutant” means any air pollution agent or combination of such agents
including any physical, chemical, biological, radioactive (including source
material, special nuclear material, and byproduct material) substance or matter
which is emitted into or otherwise enters the ambient air. Such term includes any
precursors to the formation of any air pollutant to the extent the Administrator of
EPA has identified such precursor or precursors for the particular purpose for
which the term “air pollutant” is used.
(8)
“Air pollution” means the presence in the ambient air of one or more air
pollutants or combinations thereof in sufficient quantities, which either alone or in
connection with other substances, by reason of their concentration and duration, is
or tends to be injurious to human, plant or animal life, causes damage to property,
unreasonably interferes with the comfortable enjoyment of life or property of a
substantial part of a community, obscures visibility, or in any way degrades the
quality of the ambient air.
(9)
“Air pollution control equipment” means any device, equipment, process or
combination thereof, the operation of which would limit, capture, reduce, confine,
or otherwise control regulated air pollutants, or convert for the purposes of
control, any regulated air pollutant to another form, another chemical, or another
physical state. This includes, but is not limited to, sulfur recovery units,
baghouses, precipitators, scrubbers, cyclones, water sprays, catalytic converters,
flares, thermal oxidizers and steam or water injection.
(10)
“Alternative operating scenario (AOS)” means a scenario authorized in a part
70 permit that involves a change at the part 70 source for a particular emissions
unit, and that either results in the unit being subject to one or more applicable
requirements which differ from those applicable to the emissions unit prior to
implementation of the change or renders inapplicable one or more requirements
previously applicable to the emissions unit prior to implementation of the
change.
(11)
“Applicable requirement” means all of the following as they apply to emissions
units at a Part 70 source (including requirements that have been promulgated by
EPA through rulemaking at the time of permit issuance but that have future
compliance dates):
(a)
All requirements of this code as they apply to emissions units at a source
located within the Reservation boundaries. These include requirements
that have been promulgated or approved by the Commission through
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rulemaking at the time of permit issuance but that have future compliance
dates;
(b)
Any standard or other requirement provided for in the applicable
implementation plan approved or promulgated by EPA through
rulemaking under title I of the Act that implements the relevant
requirements of the Act, including any revisions to that plan promulgated
in 40 CFR Part 52;
(c)
Any term or condition of any preconstruction permits issued pursuant to
regulations approved or promulgated through rulemaking under title I,
including Parts C or D, of the Act;
(d)
Any standard or other requirement under Section 111 of the Act, including
Section 111(d);
(e)
Any standard or other requirement under Section 112 of the Act, including
any requirement concerning accident prevention under Section 112(r)(7)
of the Act;
(f)
Any standard or other requirement of the acid rain program under title IV
of the Act or the regulations promulgated thereunder;
(g)
Any requirements established pursuant to Section 504(b) or Section
114(a)(3) of the Act;
(h)
Any standard or other requirement under Section 126(a)(1) and (c) of the
Act;
(i)
Any standard or other requirement governing solid waste incineration,
under Section 129 of the Act;
(j)
Any standard or other requirement for consumer and commercial products,
under Section 183(e) of the Act;
(k)
Any standard or other requirement for tank vessels under Section 183(f) of
the Act;
(l)
Any standard or other requirement of the regulations promulgated to
protect stratospheric ozone under title VI of the Act, unless the
Administrator has determined that such requirements need not be
contained in a title V permit; and
(m)
Any national ambient air quality standard or increment or visibility
requirement under Part C of title I of the Act, but only as it would apply to
temporary sources permitted pursuant to Section 504(e) of the Act.
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(12)
“Approved replicable methodology (ARM)” means part 70 permit terms that:
(a)
Specify a protocol which is consistent with and implements an applicable
requirement, or requirement of this code, such that the protocol is based on
sound scientific and/or mathematical principles and provides reproducible
results using the same inputs; and
(b)
Require the results of that protocol to be recorded and used for assuring
compliance with such applicable requirement, any other applicable
requirement implicated by implementation of the ARM, or requirement of
this code, including where an ARM is used for determining applicability
of a specific requirement to a particular change.
(13)
“Clean Air Act” or “Act” means 42 U.S.C. § 7401 et seq., as amended.
(14)
“Code of Federal Regulations” or “CFR” means a codification of the general
and permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government.
(15)
“Commission” means the Southern Ute Indian Tribe/State of Colorado
Environmental Commission.
(16)
“Commence Operation” means, for a new source, when it conducts the activity
that it was designed and permitted for (e.g., producing cement or generating
electricity).
(17)
“Commission’s Procedural Rules” means the Procedural Rules of the Southern
Ute Indian Tribe/State of Colorado Environmental Commission.
(18)
“Compliance plan” means either a statement that the source will comply with all
applicable requirements or, where applicable, a schedule and description of the
method or methods for compliance and certification by the owner or operator that
the source is in compliance with all applicable requirements.
(19)
“Consumer Price Index” means for any calendar year, the average of the
Consumer Price Index for all-urban consumers, or such revision of the Consumer
Price Index for all-urban consumers, or such revisions of the Consumer Price
Index that is most consistent with the Consumer Price Index for the most recent
calendar year, as published by the U.S. Department of Labor as of the close of 12month period ending on August 31 of each calendar year.
(20)
“Designated representative” shall have the meaning given to it in Section
402(26) of the Act and the regulations promulgated thereunder.
(21)
“Deviation” means any situation in which an emissions unit fails to meet a permit
term or condition. A deviation is not always a violation. A deviation can be
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determined by observation or through review of data obtained from any testing,
monitoring, or recordkeeping established in accordance with § 2-110(5) and (6) of
this code. For a situation lasting more than 24 hours which constitutes a deviation,
each 24 hour period is considered a separate deviation. Included in the meaning of
deviation are any of the following:
(a)
A situation where emissions exceed an emission limitation or standard;
(b)
A situation where process or emissions control device parameter values
indicate that an emission limitation or standard has not been met;
(c)
A situation in which observations or data collected demonstrates
noncompliance with an emission limitation or standard or any work
practice or operating condition required by the permit;
(d)
A situation in which an exceedance or an excursion, as defined in 40 CFR
Part 64 occurs.
(22)
“Draft Permit” means a version of an operating permit that the Tribe offers for
public participation under § 2-109 of this code and affected program review under
§ 2-108 of this code.
(23)
Reserved
(24)
“Emission limitation” and “emission standard” means a requirement
established by the Commission or the Administrator which limits the quantity,
rate, concentration, or the visible observations of emissions of air pollutants on a
continuous basis, including any requirement relating to the operation or
maintenance of a source to assure continuous emissions reduction, and any
design, equipment, work practice or operational standard promulgated under this
code or the Clean Air Act.
(25)
“Emissions allowable under the permit” means:
(26)
(a)
Any federally enforceable permit term or condition that establishes an
emission limitation (including a work practice standard) determined at
issuance or renewal to be required by an applicable requirement; or
(b)
Any federally enforceable emissions cap that a source has assumed to
avoid an applicable requirement to which it otherwise would be subject.
“Emissions unit” means any part or activity of a stationary source that emits or
has the potential to emit any regulated air pollutant or any pollutant listed under
Section 112(b) of the Clean Air Act, 42 U.S.C § 7412(b). This term is not meant
to alter or affect the definition of the term “unit” for purposes of title IV of the
Act.
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(27)
“Environmental Protection Agency” or “EPA” or “USEPA” means the United
States Environmental Protection Agency.
(28)
“Excess emissions” means emissions of an air pollutant in excess of any
applicable emission standard.
(29)
“Federally enforceable” means all limitations and conditions which are
enforceable by the Administrator, including those requirements developed
pursuant to 40 CFR Parts 60-61, 40 CFR Part 63, requirements within an
approved Southern Ute Tribal Implementation Plan, and any permit requirements
established pursuant to 40 CFR § 52.21 or under regulations approved pursuant to
40 CFR Part 51, Subpart I, including 40 CFR §§ 50.165 and 51.166.
(30)
“Fee Pollutant” means any regulated air pollutant as defined in this section
except:
(a)
Carbon monoxide;
(b)
Any pollutant that is a regulated air pollutant solely because it is a Class I
or II substance subject to a standard established by or promulgated under
title VI of the Clean Air Act;
(c)
Any pollutant that is a regulated air pollutant solely because it is subject to
a standard or regulation under § 112(r) of the Clean Air Act,
42 U.S.C. § 7412(r); or
(d)
Emissions from insignificant activities and insignificant emissions not
required to be listed or calculated in a permit application pursuant to
§ 2-106(4) of this code.
(31)
“Final permit” means the version of an operating permit issued by the Tribe that
has met all requirements of this code.
(32)
“Fugitive emissions” means those emissions which could not reasonably pass
through a stack, chimney, vent, or other functionally-equivalent opening.
(33)
“General permit” means a Part 70 permit that meets the requirements of
§70.6(d).
(34)
“Hazardous air pollutant” means a federally listed hazardous air pollutant
pursuant to Section 112 of the Clean Air Act.
(35)
“IGA or Intergovernmental Agreement” means the Intergovernmental
Agreement between the Southern Ute Indian Tribe and the State of Colorado
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Concerning Air Quality Control on the Southern Ute Indian Reservation, entered
into by the Tribe and State on December 13, 1999.
(36)
“Insignificant activities” means any of the following types of activities:
(a)
Mobile sources;
(b)
Air conditioning units used for human comfort that are not subject to
applicable requirements under title IV of the Act and do not exhaust air
pollutants into the ambient air from any manufacturing or other industrial
process;
(c)
Ventilating units used for human comfort that do not exhaust air pollutants
into the ambient air from any manufacturing or other industrial process;
(d)
Heating units used for human comfort that do not provide heat for any
manufacturing or other industrial process;
(e)
Noncommercial food preparation;
(f)
Consumer use of office equipment and products;
(g)
Janitorial services and consumer use of janitorial products; and
(h)
Internal combustion engines used for landscaping purposes.
(37)
“Insignificant emissions” means, for regulated air pollutants other than
hazardous air pollutants, a potential to emit for any single emissions unit not
exceeding 2 tons per year and, for hazardous air pollutants, a potential to emit for
any single emissions unit not exceeding 1,000 pounds per year or the de minimis
level established under § 112(g) of the Clean Air Act, whichever is less.
(38)
“Major source” means any stationary source (or any group of stationary sources
that are located on one or more continuous or adjacent properties and are under
common control of the same person (or persons under common control))
belonging to a single major industrial grouping and that are described in
paragraph (a), (b), or (c) of this definition. For the purposes of defining “major
source,” a stationary source or group of stationary sources shall be considered part
of a single industrial grouping if all of the pollutant emitting activities at such
source or group of sources on contiguous or adjacent properties belong to the
same Major Group (i.e., all have the same two-digit code) as described in the
Standard Industrial Classification Manual, 1987. For onshore activities belonging
to Standard Industrial Classification (SIC) Major Group 13: Oil and Gas
Extraction, pollutant emitting activities shall be considered adjacent if they are
located on the same surface site; or if they are located on surface sites that are
located within 1⁄4 mile of one another (measured from the center of the equipment
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on the surface site) and they share equipment. Shared equipment includes, but is
not limited to, produced fluids storage tanks, phase separators, natural gas
dehydrators or emissions control devices. Surface site, as used in the introductory
text of this definition, has the same meaning as in 40 CFR 63.761.
(a)
(b)
A major source under § 112(a)(1) of
42 U.S.C. § 7412(a)(1), which is defined as:
the
Clean
Air
Act,
(i)
For pollutants other than radionuclides, any stationary source or
group of stationary sources located within a contiguous area and
under common control that emits or has the potential to emit, in the
aggregate, 10 TPY or more of any one hazardous air pollutant, 25
TPY or more of any combination of hazardous air pollutants which
have been listed pursuant to § 112(b) of the Clean Air Act, 42
U.S.C. § 7412(b), or such lesser quantity as the Administrator may
establish by rule. Notwithstanding the preceding sentence,
hazardous emissions from any oil or gas exploration or production
well (with its associated equipment) and hazardous emissions from
any pipeline compressor or pump station shall not be aggregated
with hazardous emissions from other similar units, whether or not
such units are in a contiguous area or under common control, to
determine whether such units or stations are major sources;
(ii)
For radionuclides, “major source” shall have the meaning specified
by the Administrator by rule.
A major stationary source of air pollutants as defined in § 302 of the Clean
Air Act, 42 U.S.C. § 7602, that directly emits, or has the potential to emit,
100 TPY or more of any air pollutant subject to regulation (including any
major source of fugitive emissions of any such pollutant, as determined by
rule by the Administrator). The fugitive emissions of a stationary source
shall not be considered in determining whether it is a major stationary
source for the purposes of 302(j) of the Clean Air Act, unless the source
belongs to one of the following categories of stationary sources:
(i)
Coal cleaning plants (with thermal dryers);
(ii)
Kraft pulp mills;
(iii)
Portland cement plants;
(iv)
Primary zinc smelters;
(v)
Iron and steel mills;
(vi)
Primary aluminum ore reduction plants;
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(vii)
Primary copper smelters;
(viii) Municipal incinerators capable of charging more than 250 tons of
refuse per day;
(ix)
Hydrofluoric, sulfuric, or nitric acid plants;
(x)
Petroleum refineries;
(xi)
Lime plants;
(xii)
Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv)
Sulfur recovery plants;
(xv)
Carbon black plants (furnace process);
(xvi)
Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix)
Secondary metal production plants;
(xx)
Chemical process plants;
(xxi)
Fossil-fuel boilers (or combination thereof) totaling more than 250
million British thermal units (MMBtu) per hour heat input;
(xxii) Petroleum storage and transfer units with a total storage capacity
exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil fuel-fired steam electric plants of more than 250 MMBtu per
hour heat input;
(xxvii) Any other stationary source category, which as of August 7, 1980
is being regulated under Section 111 or 112 of the Act.
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(c)
A major stationary source as defined in Part D of title I of the Clean Air
Act, including:
(i)
For ozone nonattainment areas, sources with the potential to emit
100 TPY or more of volatile organic compounds or nitrogen oxides
in areas classified as “marginal” or “moderate,” 50 TPY or more in
areas classified as “serious,” 25 TPY or more in areas classified as
“severe,” and 10 TPY or more in areas classified as “extreme”;
provided that the references in this subsection to 100, 50, 25, and
10 TPY of nitrogen oxides shall not apply with respect to any
source for which the Administrator has made a finding, under
§§ 182(f)(1) or (2) of the Clean Air Act, 42 U.S.C. §§ 7511a(f)(1)(2), that requirements under § 182(f) of the Clean Air Act do not
apply;
(ii)
For ozone transport regions established pursuant to § 184 of the
Clean Air Act, 42 U.S.C. § 7511c, sources with the potential to
emit 50 TPY or more of volatile organic compounds;
(iii)
For carbon monoxide nonattainment areas that are classified as
“serious,” and in which stationary sources contribute significantly
to carbon monoxide levels as determined under rules issued by the
Administrator, sources with the potential to emit 50 TPY or more
of carbon monoxide; and
(iv)
For particulate matter (PM-10) nonattainment areas classified as
“serious,” sources with the potential to emit 70 TPY or more of
PM-10.
(39)
“Maintenance” means work that is done regularly to keep a machine, building,
or piece of air pollution control equipment, process equipment, or process in good
condition and working order for continued operation.
(40)
“Minor permit revision” means a permit revision that:
(a)
Does not violate any applicable requirement;
(b)
Does not involve significant permit revisions to existing monitoring,
reporting, or recordkeeping requirements in the permit;
(c)
Does not require or change a case-by-case determination of an emission
limitation or other standard, or a source-specific determination for
temporary sources of ambient impacts, or a visibility or increment
analysis;
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(d)
Does not seek to establish or change a permit term or condition for which
there is no corresponding underlying applicable requirement and that the
permittee has assumed to avoid an applicable requirement to which the
source would otherwise be subject, including any federally enforceable
emissions cap assumed to avoid classification as a modification under title
I of the Clean Air Act and any alternative emissions limit approved
pursuant to regulations promulgated under § 112(i)(5) of the Clean Air
Act, and 42 U.S.C. § 7412(i)(5);
(e)
Is not a title I modification; and
(f)
Is not required to be processed as a significant permit revision pursuant to
§ 2-111(4) of this code;
(g)
Notwithstanding the criteria listed in paragraphs (a)-(f), a minor permit
revision may include permit revisions involving the use of economic
incentives, marketable permits, emissions trading, and other similar
approaches to the extent that such minor permit revision procedures are
provided in the implementation plans or in applicable requirements
promulgated by the Administrator.
(41)
“National ambient air quality standard” or “NAAQS” means the ambient air
pollutant concentration limits established by the Administrator pursuant to § 109
(42 U.S.C. § 7409) of the Clean Air Act.
(42)
“Operating permit” and “permit” (unless the context suggests otherwise)
means any permit or group of permits covering a source that is issued, renewed,
modified, or revised pursuant to this code, or any permit issued, renewed,
amended, revised to a Part 70 source pursuant to 40 CFR Part 70 .
(43)
“Owner or Operator” means any person who owns, leases, operates, controls, or
supervises a stationary source.
(44)
“Part 70 program” means a program approved by the Administrator under
40 CFR Part 70.
(45)
“Part 70 source” means all sources subject to 40 CFR Part 70.
(46)
“Permit program costs” means all reasonable direct and indirect costs related to
developing and implementing the operating permit program established under this
code, including, but not limited to, costs of the following activities:
(a)
Preparing generally applicable regulations or guidance regarding the
permit program or its implementation or enforcement;
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(b)
Reviewing and acting on any application for a permit issuance, revision,
or renewal, including the development of applicable requirements as part
of the processing of such applications;
(c)
General administrative costs of running the operating permit program,
including the supporting and tracking of permit applications, compliance
certification, and related data entry;
(d)
Implementing and enforcing the terms of any operating permit, including
adequate resources to determine which sources are subject to the program,
but not including any court costs or other costs associated with a court
enforcement action;
(e)
Emissions and ambient monitoring;
(f)
Modeling, analyses, or demonstrations; and
(g)
Preparing inventories and tracking emissions.
(47)
“Permit revision” means a revision to an operating permit that constitutes a
significant permit revision, a minor permit revision, or an administrative permit
revision, as defined in this code.
(48)
“Permittee” means the owner, operator, or responsible official at a permitted
source, as identified in any permit application or revision.
(49)
“Person” means any person, public or private corporation, company, partnership,
firm, association or society of persons, trust, estate, the United States, or a state
and any political subdivision, program, or agency thereof, the Tribe and any
department, division, program, enterprise, company, or political subdivision
thereof, and any other recognized legal entity.
(50)
“Portable source” (excluding non-road engines) means any stationary source
that is capable of being transported and operated in more than one location.
Examples include, but are not limited to, asphalt batch plants and aggregate
crushers that commonly and by usual practice are moved from one site to another.
A portable source must meet all the permitting requirements for stationary
sources. A source will not be considered portable if it remains on one site for
more than two years.
(51)
“Potential to emit” means the maximum capacity of a stationary source to emit
any air pollutant under its physical and operational design. Any physical or
operational limitation on the capacity of a source to emit an air pollutant,
including air pollution control equipment and restrictions on hours of operation or
on the type or amount of material combusted, stored, or processed, shall be treated
as part of its design if the limitation is federally enforceable. This term does not
13
alter or affect the use of this term for any other purposes under the Act, or the
term “capacity factor” as used in title IV of the Act or the regulations promulgated
thereunder.
(52)
“Proposed permit” means the version of an operating permit that the Tribe
proposes to issue and forwards to the Administrator for review in compliance with
§ 2-108 of this code.
(53)
“Public Law No. 108-336” or “ P.L. 108-336” means the Southern Ute and
Colorado Intergovernmental Agreement Implementation Act of 2004 (i.e., Act of
October 18, 2004, Pub. L. No. 108-336, 118 Stat.1354), in which Congress
provided for the implementation and enforcement of air quality control programs
under the Clean Air Act and other air quality programs developed in accordance
with the IGA.
(54)
“Regulated air pollutant” means the following:
(a)
Nitrogen oxides or any volatile organic compounds;
(b)
Any pollutant for which a national ambient air quality standard has been
promulgated;
(c)
Any pollutant that is subject to any standard promulgated under § 111 of
the Clean Air Act, 42 U.S.C. § 7411;
(d)
Any pollutant subject to any standard promulgated or any other
requirements established under § 112 of the Clean Air Act,
42 U.S.C. § 7412, including but not limited to the following:
(e)
(i)
Any pollutant for which the requirements of § 112(g)(2) of the
Clean Air Act have been met, but only with respect to the
individual source subject to a § 112(g)(2) requirement;
(ii)
Any pollutant subject to requirements under § 112(j) of the Clean
Air Act, provided that if the Administrator fails to promulgate a
standard by the date established pursuant to § 112(e) of the Clean
Air Act, any pollutant for which a subject source would be major
shall be considered to be regulated on the date 18 months after the
applicable date established pursuant to § 112(e) of the Clean Air
Act; and
(iii)
Any regulated substance subject to requirements under § 112(r) of
the Clean Air Act.
Any Class I or II substance subject to any standard promulgated under or
established by title VI of the Clean Air Act.
14
(55)
“Renewal” means the process by which an operating permit is reissued at the end
of its term.
(56)
“Reservation” means the Southern Ute Indian Reservation.
(57)
“Responsible official” means one of the following:
(a)
For a corporation: a president, secretary, treasurer, or vice-president of the
corporation in charge of a principal business function, or any other person
who performs similar policy or decision-making functions for the
corporation, or a duly authorized representative of such person if the
representative is responsible for the overall operation of one or more
manufacturing, production, or operating facilities applying for or subject
to an operating permit and either:
(i)
The facilities employ more than 250 persons or have gross annual
sales or expenditures exceeding $25 million (in second quarter
1980 dollars), or
(ii)
The delegation of authority to such representative is approved in
advance by the Tribe.
(b)
For a partnership or sole proprietorship: a general partner or the proprietor,
respectively.
(c)
For a Federal, Tribal, State, Municipal, or other Public Agency: a principal
executive officer or ranking elected official. For the purposes of this code,
a principal executive officer of a federal agency includes the chief
executive officer having responsibility for the overall operations of a
principal geographic unit of the agency (e.g., a Regional Administrator of
the U.S. Environmental Protection Agency).
(d)
For an acid rain source: the designated representative (as defined in
§ 402(26) of the Clean Air Act, 42 U.S.C. § 7651a(26)), and in so far as
actions, standards, requirements, or prohibitions under title IV of the
Clean Air Act or the regulations promulgated thereunder are concerned,
and for any other purposes under 40 CFR Parts 70 and 71.
(58)
“Schedule of compliance” means a schedule of remedial measures, including an
enforceable sequence of actions or operations, leading to compliance with an
applicable implementation plan, emission standard, emission limitation or
emission prohibition.
(59)
“Section 502(b)(10) changes” means changes that contravene an express permit
term but that are authorized under § 502(b)(10) of the Clean Air Act,
15
42 U.S.C. § 7661a(b)(10). Such changes do not include changes that would
violate applicable requirements or contravene operating permit terms and
conditions that are: monitoring (including test methods), recordkeeping, reporting,
or compliance certification requirements.
(60)
“Shutdown” means the cessation of operation of any air pollution control
equipment, process equipment, or process, for any purpose.
(61)
“Significant permit revision” means:
(a)
Any revision to an operating permit that does not meet the definitions for
an administrative permit revision or a minor permit revision;
(b)
Any revision that would result in any significant change to existing
monitoring permit terms or conditions and any relaxation to existing
recordkeeping, or permit reporting terms or conditions;
(c)
Any revision for which action on the application would, in the judgment
of the Tribe, require decisions to be made on significant or complex
issues;
(d)
Any revision that would be required if the existing operating permit
specifically prohibits the proposed change; and
(e)
Changes in ownership that do not meet the criteria for Section (c) of the
definition of an administrative permit revision.
(62)
“Similar sources” means sources that are generally similar in terms of
operations, processes, and emissions, subject to the same or substantially similar
requirements, and not subject to case-by-case standards or requirements.
(63)
“Startup” means the setting into operation of any air pollution control
equipment, process equipment, or process, for any purpose.
(64)
“Stationary Source” or “Source” means any building, structure, facility, or
installation that emits or may emit any regulated air pollutant or any pollutant
listed under Section 112(b) of the Act except those emissions resulting directly
from an internal combustion engine for transportation purposes or from a nonroad
engine or nonroad vehicle as defined in § 216 of the Clean Air Act.
(65)
“Subject to regulation” means, for any air pollutant, that the pollutant is subject
to either a provision in the Clean Air Act, or a nationally-applicable regulation
codified by the Administrator in subchapter C of chapter I of Code of Federal
Regulations Title 40 (i.e., 40 C.F.R. Part 70), that requires actual control of the
quantity of emissions of that pollutant, and that such a control requirement has
16
taken effect and is operative to control, limit or restrict the quantity of emissions
of that pollutant released from the regulated activity. Except that:
(a)
Greenhouse gases (GHGs), the air pollutant defined in
40 C.F.R. § 86.1818–12(a) as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation unless, as of July 1, 2011, the GHG emissions are at a
stationary source emitting or having the potential to emit 100,000 tpy CO2
equivalent emissions.
(b)
The term tpy CO2 equivalent emissions (CO2 e) shall represent an amount
of GHGs emitted, and shall be computed by multiplying the mass amount
of emissions (tpy), for each of the six greenhouse gases in the pollutant
GHGs, by the gas's associated global warming potential published at Table
A–1 to subpart A of part 98 of chapter I of Code of Federal Regulations
Title 40 (i.e., 40 C.F.R. 98 (Table A-1)) —Global Warming Potentials,
and summing the resultant value for each to compute a tpy CO2e.
(66)
“Temporary source” (excluding non-road engines) means any source that is
situated in one location for less than one year, after which it will be dismantled
and removed from the site. Any temporary source located at one location for
longer than one year will be deemed a stationary source and must meet the
requirements for stationary source permitting in this code.
(67)
“Tribe” means the Southern Ute Indian Tribe, which is the permitting authority.
(68)
"Unit" means a fossil fuel-fired combustion device, for purposes of title IV of the
Act.
(69)
“Volatile Organic Compounds” means the same as that term is defined by the
Administrator at 40 CFR Part 51.
1-104. Administration.
Pursuant to the authorities cited above, the Southern Ute Indian Tribe is responsible for
the administration, implementation and enforcement of this code, subject to the
Commission’s review of appealable administrative actions by the Tribe.
1-105. Investigations and Information Requests.
(1) For the purpose (i) of developing or assisting in the development of any
implementation plan, any standard of performance, or any emission standard, (ii) of
determining whether any person is in violation of any such standard or any
requirement of such a plan, or (iii) carrying out any provision of this Code –
17
(a)
The Tribe may require any person, on a one-time, periodic or continuous
basis, who owns or operates any emission source, who the Tribe believes
may have information related to the purposes set forth in this Code, or
who is subject to any requirement of this Code to—
(i)
Establish and maintain records and reports; install, use, and
maintain monitoring equipment; use audit procedures or methods;
keep records on control equipment parameters, production
variables or other indirect data when direct monitoring of
emissions is impractical, as determined by the Tribe;
(ii)
Sample emissions (in accordance with such procedures or
methods, at such locations, at such intervals, during such periods
and in such manner as the Tribe shall prescribe);
(iii)
Submit compliance certifications in accordance with subsection (3)
of this section; and
(iv)
Provide such other information as the Tribe may reasonably
require relating to emissions of the source or to any investigation
authorized by this Code;
(b)
The Tribe, through its authorized representatives, upon presentation of
credentials, has the power to enter and inspect any property, premises, or
place for the purpose of investigating any actual, suspected, or potential
source of air pollution or ascertaining compliance with any requirement of
this Code or any order or permit, or term or condition thereof, issued or
promulgated pursuant to this Code; and the Tribe may, at reasonable
times, have access to and copy any record, inspect any monitoring
equipment or method, or sample any emissions required pursuant to this
Code. Any information relating to secret processes or methods of
manufacture or production obtained in the course of the inspection or
investigation may be kept confidential in accordance with 2-124; except
that emission data shall not be withheld from the Tribe as confidential.
The Tribe shall promptly furnish a duplicate of any analytical report or
observation of an air pollutant to the person who is suspected of causing
such air pollution.
(c)
The Tribe shall in the case of any person who is the owner or operator of a
major stationary source, and may, in the case of any other person, require
enhanced monitoring and submission of compliance certifications.
Compliance certifications shall include (A) identification of the applicable
requirement that is the basis of the certification, (B) the method used for
determining the compliance status of the source, (C) the compliance
status, (D) whether compliance is continuous or intermittent, and (E) such
other facts as the Tribe may require. Submission of a compliance
18
certification shall in no way limit the Tribe’s authorities to investigate or
otherwise implement this Code.
1-106. Air Pollution Emergencies Endangering Public Health or Welfare on the
Reservation.
(1) Whenever the Tribe determines, after investigation, that any person is either
engaging in any activity involving a significant risk of air pollution or is discharging
or causing to be discharged into the atmosphere, directly or indirectly, any air
pollutants and such activity or discharge either (1) constitutes a clear, present, and
immediate danger to the environment or to the health of the public, or that any such
activity or discharge of air pollutants, if permitted to continue unabated, will result in
a condition of clear, present, and immediate danger to the health of the public, or (2)
does not constitute a clear, present, and immediate danger to the health of the public,
but is of such a nature as to cause extreme discomfort or that it is an immediate
danger to the welfare of the public because such pollutants make habitation of
residences or the conduct of businesses subjected to the pollutants extremely
unhealthy or disruptive, the Tribe shall:
(2)
(a)
Issue a written cease-and-desist order to said person requiring immediate
discontinuance of such activity or the discharge of such pollutant into the
atmosphere, and, upon receipt of such order, such person shall
immediately discontinue such activity or discharge; or
(b)
Apply to the United States District Court for the District of Colorado, in
accordance with the IGA and Public Law No. 108-336, for a temporary
restraining order, temporary injunction, or permanent injunction as
provided for in the federal rules of civil procedure; or
(c)
Both issue such a cease-and-desist order and apply for any such
restraining order or injunction.
Other Incidental Powers. The Tribe may exercise all incidental powers
necessary to carry out the purposes of this Code.
1-107. Enforcement.
In accordance with the IGA and Public Law No. 108-336, the Tribe and Commission shall
enforce compliance with this Code including, if necessary, through a civil action for declaratory
or injunctive relief, or for other orders in aid of enforcement, in the United States District Court
for the District of Colorado. Appealable administrative actions taken by the Tribe shall be
subject to review in accordance with the adjudicatory procedures contained in the Commission’s
Procedural Rules.
19
1-108. Severability and Preservation of Rights.
(1)
Severability. If any provision of this code, or the application of any provision of
this code to any person or circumstance, is held invalid, the remainder of this code
and the application of such provision to other persons or circumstances shall
remain unaffected.
(2)
Preservation of rights. It is the purpose of this code to provide additional and
cumulative remedies to prevent, abate, and control air pollution on the Southern
Ute Indian Reservation. Nothing contained in this code shall be construed to
abridge or alter rights of action or remedies in equity under the common law or
statutory law, nor shall any provisions of this part or any act done by virtue
thereof be construed as preventing the Tribe, Commission, or individuals from the
exercise of their rights under the common law or statutory law to suppress
nuisances or to abate pollution, provided however, no action shall be inconsistent
with the CAA and this code.
20
ARTICLE II. AIR QUALITY CONTROL PROGRAMS
PART 1. TITLE V OPERATING PERMIT PROGRAM
2-101. Program Overview.
The purpose of this part is to establish an air quality permitting program consistent with the
requirements of title V of the Clean Air Act (42 U.S.C. 7661-7661f et. seq.), its implementing
regulations at 40 CFR Part 70, and regulations applicable to treatment of Indian Tribes in the
same manner as States for purposes of tribal administration of Clean Air Act programs (40 CFR
Part 49).
2-102. Effective Date.
This title V Operating Permit 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.
2-103. Permit Program Definitions.
Except as specifically provided in this section, terms used in this part retain the meaning
accorded them under the applicable requirements of the Clean Air Act (42 U.S.C. § 7401 et seq.)
and its implementing regulations.
2-104. Applicability.
(1)
Permit Required. Except as provided in subsection 2 below, the following
facilities are required to obtain an operating permit under this section:
(a)
Any major source;
(b)
Any source, including an area source, subject to a standard, limitation, or
other requirement under Section 111 of the Clean Air Act, except all
sources and source categories that would be required to obtain a permit
solely because they are subject to Part 60, subpart AAA - Standards of
Performance for New Residential Wood Heaters; and all sources and
source categories that would be required to obtain a permit solely because
they are subject to Part 61, subpart M – National Emission Standards for
Hazardous Air Pollutants for asbestos, § 61.145, Standard for Demolition
and Renovation;
(c)
Facilities with a source subject to 40 CFR Part 63 or any other standard or
other requirement under Section 112 of the Federal Clean Air Act, except
that a source is not required to obtain a permit solely because it is subject
to rules or requirements under Section 112(r) of the Clean Air Act;
21
(2)
(d)
Any acid rain source; or
(e)
Facilities in a source category designated by EPA as subject to the
requirements of 40 CFR Part 70.
Exemptions.
(a)
(b)
(3)
The following sources are exempted from the requirement to obtain an
operating permit:
(i)
All sources listed in this code that are not major sources, acid
rain sources, or solid waste incineration units required to obtain
a permit pursuant to Section 129(e) of the Clean Air Act, may be
exempted by the Tribe from the obligation to obtain a Part 70
permit until such time as the Administrator completes a
rulemaking to determine how the program should be structured
for non-major sources and the appropriateness of any permanent
exemptions in addition to those provided for in paragraph (1)(b)
of this section.
(ii)
In the case of non-major sources subject to a standard or other
requirement under either Section 111 or Section 112 of the
Clean Air Act after July 21, 1992 publication, the Administrator
will determine whether to exempt any or all such applicable
sources from the requirement to obtain a Part 70 permit at the
time that the new standard is promulgated.
No Part 70 source may operate after the effective date of this code without
a valid permit issued under this code unless:
(i)
The Part 70 source has submitted a timely and complete
application for permit issuance or renewal consistent with § 2-106
of this code; or
(ii)
The Tribe fails to issue or disapprove a renewal permit before the
end of the prior permit term, in which case, that permit shall not
expire and all its terms and conditions shall remain in effect until
the renewal permit has been issued or disapproved.
Cease of Operations. The ability to operate under this section shall cease if (1)
the Tribe takes final action to deny the applicant a permit or (2) the applicant fails
to submit by the deadline specified in writing by the Tribe any additional
information identified as being needed to process the application.
22
2-105. Certification.
Any application, form, report, compliance certification, or other document submitted by the
applicant or permittee pursuant to this code shall contain a certification by a responsible official
of truth, accuracy, and completeness. This certification and any other certification required
under this code shall state that, based on information and belief formed after reasonable inquiry,
the statements and information in the document are true, accurate, and complete.
2-106. Permit Applications.
(1)
Duty to Apply. For each Part 70 source, the owner or operator shall submit to the
Tribe a timely and complete permit application in accordance with this code.
(2)
Timely Application. Consistent with 40 CFR 70.5(a)(1), a timely application for
a source applying for an operating permit is:
(3)
(a)
For Part 70 sources that commence operation after Part 70 program
approval by USEPA Region VIII, one that is submitted within one year
after the source commences operation as a Part 70 source;
(b)
For renewal applications, one that is submitted at least 6 months but not
more than 18 months before the date of permit expiration;
(c)
For a source subject to the requirements of § 112(g) of the Clean Air Act
or required to have a permit under the preconstruction review program
under Part C or D of title I of the Act after Part 70 program approval by
USEPA Region VIII, one that is submitted within one year of
commencing operation. Where an existing part 70 permit would prohibit
such construction or change in operation, the source must obtain a permit
revision before commencing operation;
(d)
The permittee shall notify the Tribe of an initial or revised New Source
Review (NSR) permit, that is not issued by the Tribe, within thirty (30)
calendar days of the effective date of that permit. The requirements of the
NSR permit shall be incorporated into the operating permit according to
the administrative permit revision process in RAC § 2-111(2) unless
additional applicable requirements are triggered by the change in which
case a permit revision application must be submitted according to the
minor permit revision process in RAC § 2-111(3) or the significant permit
revision process in RAC § 2-111(4). Permit applications are to be
submitted according to the timelines established in RAC § 2-106(2).
Complete Application.
(a)
To be determined complete, an application must provide all information
required pursuant to this code, except that an application for permit
23
revision need supply only such information as is related to the proposed
change.
(4)
(b)
A source’s ability to operate without a permit pursuant to this code shall
be in effect from the date a timely application is submitted until final
action is taken on the application, provided that the application is
determined to be complete under this code and the applicant adequately
submits any requested additional information by deadlines specified by the
Tribe.
(c)
The submittal of a complete application shall not affect the requirement
that any source have a preconstruction permit under title I of the Act.
Application Content. All applications shall be made on the most current forms
provided by the Tribe and according to the instructions provided by the Tribe, and
shall include the following information:
(a)
The date of the application;
(b)
The applicant’s name and address (and, if different, plant name and
address); the names and addresses of the owner(s), the responsible
official(s), and the operator(s) of the source; any subsidiaries or parent
companies; the company’s state of incorporation or principal registration
to do business; and the names and telephone numbers of the owners’
agent(s) and the plant site manager/contact;
(c)
The exact location of the source identified by latitude and longitude, or by
UTM coordinates, and legal description that includes Township – Section
– Range and is shown on a map, such as the 7.5 minute Topographic
Quadrangle map published by the United States Geological Survey or the
most detailed map available;
(d)
A description of the source’s processes and products (by Standard
Industrial Classification Code), including any associated with alternative
scenarios identified by the applicant;
(e)
The following emissions-related information, including all calculations
and computations on which such information is based:
(i)
All emissions of regulated air pollutants for which the source is
major and all emissions of regulated air pollutants, including
fugitive emissions for the source and for each emissions unit;
(ii)
A process flow sheet of all components of the facility that would
be involved in routine operations and emissions;
24
(iii)
Identification and description of all emissions points in sufficient
detail to establish the basis for fees and applicability of
requirements of this code;
(iv)
Emissions rates in tons per year (TPY) and in such terms as are
necessary to establish compliance consistent with the applicable
standard reference test method. For emissions units subject to an
annual emissions cap, TPY can be reported as part of the aggregate
emissions associated with the cap, except where more specific
information is needed, including where necessary to determine
and/or assure compliance with an applicable requirement;
(v)
Specific information such as that regarding fuels, fuel use, raw
materials, or production rates, to the extent needed to determine or
regulate emissions;
(vi)
Identification and full description of all air pollution control
equipment and compliance monitoring devices or activities;
(vii)
The maximum and standard operating schedules of the source, and
any work practice standards or limitations on source operation
which affect emissions of regulated air pollutants;
(viii) An operational plan defining the measures to be taken to mitigate
source emissions during startups, maintenance, shutdowns, and
emergencies;
(f)
(ix)
Other relevant information as the Tribe may reasonably require or
which are required by any applicable requirements;
(x)
Additional information related to the emissions of air pollutants to
verify which requirements are applicable to the source; and
(xi)
For each reasonably anticipated alternative operating scenario
identified by the applicant, all of the information required in
paragraphs (i) through (x) above, as well as additional information
determined to be necessary by the Tribe to define such alternative
operating scenarios identified by the source pursuant to this code;
For insignificant activities which are exempted because of size or
production rate, a list of insignificant activities at the source and any
information necessary to determine applicable air pollution control
requirements and, for insignificant emissions, a listing of such emissions
in sufficient detail to identify the emission unit and indicate that the
exemption applies. Similar emission units, including similar capacities or
sizes, may be listed under a single description. No additional information
25
is required at the time of application, but the Tribe may request additional
information during application processing;
(g)
The following information concerning applicable air pollution control
requirements:
(i)
Citation and description of all applicable requirements,
(ii)
Description of or reference to any applicable test method for
determining compliance with each applicable requirement, and
(h)
Explanation of any proposed exemptions from otherwise applicable
requirements.
(i)
Other specific information that may be necessary to implement and
enforce other applicable requirements of this code or the Clean Air Act or
to determine the applicability of such requirements, including information
necessary to collect any fees owed under this code;
(j)
Additional information as determined to be necessary by the Tribe to
define proposed AOSs identified by the source pursuant to § 2-110(8)(b)
of this code or to define permit terms and conditions implementing any
AOS under § 2-110(8)(b) or implementing § 2-116 or § 2-110(8)(c) of this
code. The permit application shall include documentation demonstrating
that the source has obtained all authorization(s) required under the
applicable requirements relevant to any proposed AOSs, or a certification
that the source has submitted all relevant materials to the appropriate
permitting authority for obtaining such authorization(s);
(k)
Compliance certification by a responsible official consistent with this code
including:
(i)
A certification of the source’s compliance status for each
applicable requirement;
(ii)
A statement of methods used for determining compliance,
including a description of monitoring, recordkeeping, and
reporting requirements and test methods;
(iii)
A schedule for submission of compliance certifications during the
permit term, to be submitted no less frequently than annually; and
(iv)
A statement indicating the source’s compliance status with any
applicable monitoring and compliance certification requirements of
the Clean Air Act;
26
(l)
(5)
A compliance plan and schedule that contain:
(i)
A description of the compliance status of the source with respect to
all applicable requirements;
(ii)
For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply
with such requirements, and for requirements for which the source
is not in compliance at the time of permit issuance, a narrative
description of how the source will achieve compliance with such
requirements;
(iii)
For applicable requirements that will become effective during the
permit term, a statement that the source will meet such
requirements on a timely basis;
(iv)
A compliance schedule for sources that are not in compliance with
all applicable requirements at the time of permit issuance,
including a remedial measures schedule, with an enforceable
sequence of actions with milestones, leading to compliance with
such applicable requirements, provided that the compliance
schedule shall be at least as stringent as that contained in any
consent decree or administrative order to which the source is
subject, and the obligations of any consent decree or administrative
order shall not be in any way diminished by the compliance
schedule, and that any such compliance schedule shall be
supplemental to, and shall not sanction noncompliance with, the
applicable requirements on which it is based; and
(v)
A schedule for submission of certified progress reports no less
frequently than every 6 months for sources required to have a
schedule of compliance to remedy a violation.
(vi)
The compliance plan content requirements specified in this
paragraph shall apply and be included in the acid rain portion of a
compliance plan for an affected source, except as specifically
superseded by regulations promulgated under title IV of the Act
with regard to the schedule and method(s) the source will use to
achieve compliance with the acid rain emissions limitations.
(vii)
For applicable requirements that will become effective upon
implementation of an AOS, a statement that the source will meet
such requirements upon implementation of an AOS.
Duty to Supplement and Correct. Any applicant who fails to submit any
relevant facts or who has submitted incorrect information in a permit application
27
or in a supplemental submittal shall, upon becoming aware of such failure or
incorrect submittal, promptly submit such supplementary facts or corrected
information. In addition, an applicant shall provide further information as
necessary to address any requirements that become applicable to the source after
the date it filed a complete application but prior to release of a draft permit.
2-107. Action on Permit Applications
(1)
Completeness Determinations.
(a)
Within 60 days of receiving an application for a permit, significant
revision, or renewal, the Tribe shall determine whether the application is
complete or incomplete under §2-106 of this code. Within 30 days of
receiving an application for a minor permit revision, the Tribe shall
determine whether the application is complete or incomplete under §2-106
of this code. The Tribe shall promptly notify the applicant of its
completeness or incompleteness determination by electronic mail with
delivery and read receipts. An incompleteness notice shall also state what
additional information or points of clarification are necessary for the
application to be determined complete and shall provide a deadline for the
applicant to respond to the incompleteness notice. If the Tribe has issued
an incompleteness determination and requested additional information, the
deadline for making a completeness or incompleteness determination shall
be no later than 60 days after receipt of the additional information
submitted in support of a permit, significant revision, or renewal, and 30
days for information supporting a minor permit revision.
(b)
For an initial permit, renewal permit or significant permit revision, if the
Tribe does not request additional information or otherwise notify the
applicant of incompleteness within 60 days of receiving an application or
requested additional information, the application shall be deemed
complete.
(c)
For a minor permit revision, if the Tribe does not request additional
information or otherwise notify the applicant of incompleteness within 30
days of receipt an application or requested additional information, the
application shall be deemed complete.
(2)
Federal Review. The Tribe shall submit a copy of the permit application, draft
permit, statement of basis, and final permit to the Administrator for review.
(3)
Statement of Basis. The Tribe shall prepare a statement of basis for every draft
permit subject to this section. The statement of basis shall briefly describe the
legal and factual basis for the draft permit conditions (including references to the
applicable statutory or regulatory provisions) or, in the case of notices of intent to
deny or terminate, reasons supporting the initial decision. The statement of basis
28
shall be sent to the applicant, Administrator, and to any other person who requests
it.
(4)
(5)
Final Action. The Tribe shall take final action on all permit applications as
specified in the paragraphs below:
(a)
For applications for permits authorizing early reductions and/or alternative
emissions limitations consistent with § 112(i)(5) of the Clean Air Act,
42 U.S.C. § 7412(i)(5), the Tribe shall take final action on applications
within 9 months of receipt of the complete application;
(b)
For initial and renewal permits, the Tribe shall take final action within 18
months after an application is determined or deemed complete.
(c)
For administrative permit revisions, the Tribe shall take final action within
60 days upon receipt of the complete revision request, including any
supplemental information requested by the Tribe.
(d)
For minor permit revisions, the Tribe shall take final action within 90 days
after the application is determined or deemed complete.
(e)
For significant permit revisions, the Tribe shall take final action within 9
months after the application is determined or deemed complete.
Issuance. A permit, permit revision, or permit renewal shall only be issued if all
of the following conditions have been met:
(a)
The Tribe has received a complete application;
(b)
Except for administrative permit revisions, the Tribe has complied with
the requirements for notifying and responding to affected programs under
§ 2-108 of this code;
(c)
Except for administrative and minor permit revisions, the Tribe has
complied with the requirements for public participation procedures under
§ 2-109 of this code;
(d)
The conditions of the permit provide for compliance with all applicable
requirements including the requirements of this code; and
(e)
The Administrator has received a copy of the proposed permit and any
notices required under this code, and has not objected to issuance of the
permit within the time period allowed.
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(6)
Decision and Notification.
(a)
The Tribe shall grant or disapprove the permit, permit revision, or permit
renewal, based on information contained in the Tribe’s administrative
record.
(b)
The administrative record for any final permit shall consist of:
(i)
All comments received during any public comment period,
including any extension or reopening;
(ii)
The tape or transcript of any hearing(s) held;
(iii)
Any written material submitted at such a hearing;
(iv)
The response to comments and any new materials placed in the
record;
(v)
Other documents contained in the supporting file for the permit;
(vi)
The final permit;
(vii)
The application and any supporting data furnished by the
applicant;
(viii) The draft permit or notice of intent to deny the application or to
terminate the permit;
(ix)
The statement of basis for the draft permit;
(x)
All documents cited in the statement of basis;
(xi)
Other documents contained in the supporting file for the draft
permit.
(c)
The additional documents required under paragraph (b) of this section
should be added to the record as soon as possible after their receipt or
publication by the Tribe. The record shall be complete on the date the
final permit is issued.
(d)
Material readily available at the Tribe, or published materials which are
generally available and which are included in the administrative record
under the standards of § 2-109(6) of this code need not be physically
included in the same file as the rest of the record as long as it is
specifically referred to in the statement of basis or in the response to
comments.
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(e)
(7)
If the Tribe disapproves a permit, permit revision, or permit renewal, the
Tribe shall notify the applicant by electronic mail with delivery and read
receipts of the action taken and the reasons therefor. If the Tribe grants a
permit, permit revision, or permit renewal, the Tribe shall mail the permit,
permit revision, or permit renewal, including all terms and conditions, to
the applicant by electronic mail with delivery and read receipts.
Renewal and Expiration.
(a)
Permits being renewed are subject to the same procedures, including those
for public participation and affected program and EPA review, as those
that apply to initial permit issuance.
(b)
Permit expiration terminates the source's right to operate unless a timely
and complete renewal application has been submitted consistent with
§ 2-104(2)(b) and § 2-106 of this code.
(c)
If the Tribe fails to act in a timely way on a permit renewal, EPA may
invoke its authority under Section 505(e) of the Act to terminate or revoke
and reissue the permit.
(8)
Non-action. No permit, revision, or renewal shall be issued by failure of the
Tribe to act on an application.
(9)
Prioritization of Certain Applications. Where reasonably possible, the Tribe
shall give priority to taking action on applications for construction or modification
under title I, parts C and D of the Act.
2-108. Review by the Administrator and Affected Programs.
(1)
Applicability. The Tribe shall not issue any final operating permit, revision, or
renewal for any source until the Administrator has had an opportunity to review
the proposed permit as required under this section. Permits for source categories
waived by the Administrator from this requirement and any permit terms or
conditions which are not required under the Clean Air Act or under any of its
applicable requirements are not subject to Administrator review or approval.
(2)
Transmittal.
(a)
Within 5 days after an application has been deemed complete, the Tribe
shall transmit a copy of the complete permit application (including the
compliance plan and all additional materials submitted by the applicant)
directly to the Administrator. To the extent practicable, the preceding
information shall be provided in a computer readable format compatible
with the Administrator’s national database management system. The
Tribe shall also provide to the Administrator a copy of each draft permit,
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each statement of basis, each proposed permit, each final operating permit,
and any other relevant information requested by the Administrator.
(3)
(b)
The Tribe shall provide notice of each draft permit under this section to
every affected program on or before the time that the Tribe provides such
notice to the public under § 2-109 of this code, except to the extent that
minor permit revision procedures authorize different notice procedures.
(c)
The Tribe, as part of the submittal of a proposed permit to the
Administrator (or as soon as possible after the submittal for minor permit
revision procedures under § 2-111(3) of this code), shall notify the
Administrator and any affected program in writing of any refusal by the
Tribe to accept all recommendations for the proposed permit that the
affected program submitted during the public or affected program review
period. The notice shall include the Tribe’s reasons for not accepting any
such recommendation.
The Tribe is not required to accept
recommendations that are not based on federally enforceable applicable
requirements or this code.
(d)
The Tribe shall keep for 5 years such records and submit to the
Administrator such information as the Administrator may reasonably
require to ascertain whether this program complies with the requirements
of the Clean Air Act, 40 CFR Part 70, or related applicable requirements.
Responses to Objections.
(a)
No permit for which an application must be transmitted to the
Administrator under this section shall be issued by the Tribe if the
Administrator determines that issuance of the proposed permit would not
be in compliance with applicable requirements, including this code, and so
objects to its issuance in writing within 45 days of receipt of the proposed
permit and all necessary supporting information.
(b)
Any EPA objection under paragraph (a) of this section shall include a
statement of the Administrator's reasons for objection and a description of
the terms and conditions that the permit must include to respond to the
objections. The Administrator will provide the permit applicant a copy of
the objection.
(c)
Failure of the Tribe to do any of the following also shall constitute
grounds for an objection:
(i)
Comply with § 2-108(2)(a) or (b);
(ii)
Submit any information necessary to review adequately the
proposed permit; or
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(iii)
(d)
(4)
Process the permit under the procedures of § 2-109 of this code
except for minor permit revisions (i.e., the procedures approved to
meet 40 CFR Part 70.7(h)).
Unless the following requirements are waived by the Administrator
pursuant to § 505(d) of the Clean Air Act, 42 U.S.C. § 7661d(d):
(i)
The Tribe shall respond in writing to any objection by the
Administrator to the issuance of a permit, pursuant to § 505(b) of
the Clean Air Act, 42 U.S.C. § 7661d(b), and this code;
(ii)
Upon receipt of an objection by the Administrator under § 505(b)
of the Clean Air Act, 42 U.S.C. § 7661d(b), the Tribe may not
issue the permit unless it is revised and issued in accordance with
subsection (4) of this section; and
(iii)
If the Tribe has issued a permit before receipt of an objection by
the Administrator under § 505(b)(2) of the Clean Air Act,
42 U.S.C. § 7661d(b)(2), the Tribe may issue a revised permit in
accordance with subsection (4) of this section.
Issuance or Denial.
(a)
The Tribe shall, within 90 days after the date of an objection under
§ 505(b) of the Clean Air Act, 42 U.S.C. § 7661d(b), submit to the
Administrator a proposed permit revised to meet the objection. The Tribe
may request a 90-day extension for this submittal, in accordance with
§ 505(e) of the Clean Air Act, 42 U.S.C. § 7661d(e).
(b)
If the Administrator finds that cause exists to terminate, modify, or revoke
and reissue a permit pursuant to § 2-112 of this code, the Administrator
will notify the Tribe and the permittee of such finding in writing.
(c)
If the Administrator notifies the Tribe that cause exists to terminate,
modify, or revoke and reissue a permit, the Tribe forward to the
Administrator a proposed determination of termination, modification, or
revocation and reissuance, as appropriate, within 90 days after receipt of
such notification, the Administrator will issue or deny the permit in
accordance with the requirements of the Federal program promulgated
under title V of the Act.
(d)
If the Tribe fails to submit a proposed determination pursuant to paragraph
(c) of this section or fails to resolve any objection pursuant to paragraph
(a) of this section, the Administrator will terminate, modify, or revoke and
reissue the permit after taking the following actions:
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(i)
Providing at least 30 days' notice to the permittee in writing of the
reasons for any such action. This notice may be given during the
procedures in paragraphs (a) through (c) of this section.
(ii)
Providing the permittee an opportunity for comment on the
Administrator's proposed action and an opportunity for a hearing.
2-109. Public Notice and Participation.
(1)
Applicability. Proceedings for all initial permit issuances, significant permit
revisions, renewals, reopenings, revocations, and terminations, shall include
public notice and provide an opportunity for public comment. The Tribe may
hold a public hearing for draft permits, proposals to suspend, reopen, revoke, or
terminate a permit, or for any reason the Tribe deems appropriate, and shall hold
such a hearing in the event of significant public interest.
(2)
Timing. The Tribe shall provide 30 days for public comment and shall give
notice of any public hearing at least 30 days in advance of the hearing.
(3)
Scope and Content of Notice. Public notice, whether for comment or hearing
shall be given by publication in a newspaper of general circulation in the area
where the source is located (e.g., the Southern Ute Tribal Drum, the Durango
Herald, the Pine River Times, the Pagosa Sun, the Farmington Daily Times, or the
Cortez Journal) or in a state publication designed to give general public notice, to
persons on a mailing list developed by the Tribe, including those who request in
writing to be on the list, and by other means if necessary to assure adequate notice
to the affected public. The notice shall identify the affected facility; the name and
address of the permittee; the name and address of the Tribe’s Air Quality
Program; the activity or activities involved in the permit action; the emissions
change involved in any permit revision; the name, address, and telephone number
of a person from whom interested persons may obtain additional information,
including copies of the draft permit, the application, and relevant supporting
materials; a brief description of the comment procedures required by this part; and
as appropriate the time and place of any hearing that may be held, including a
statement of procedures to request a hearing (unless a hearing has already been
scheduled). Additionally, the Tribe shall provide such notice and opportunity for
participation by affected programs as is provided for in § 2-108 of this code.
(4)
Hearings. Public hearings shall be held on the Reservation. The time, date, and
place of the hearing shall be determined by the Tribe. The Tribe shall appoint a
hearing officer. A transcript of the hearing shall be made upon request at the
expense of the person requesting the transcript. At the hearing, all interested
persons shall be given a reasonable chance to submit data, views or arguments
orally or in writing and to examine witnesses testifying at the hearing.
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(5)
Recordkeeping. The Tribe shall keep a record of commenters involved and
issues raised during the public participation process and any other information
requested by the Administrator so that the Administrator may fulfill his or her
obligation under § 505(b)(2) of the Clean Air Act, 42 U.S.C. § 7661d(b)(2), to
determine whether a citizen petition may be granted. Such records shall be
available to the public upon request.
(6)
Response to Comments.
(7)
(a)
At the time any final permit decision is issued, the Tribe shall issue a
response to public comments.
(b)
Any documents cited in the response to comments shall be included in the
administrative record for the final permit decision. If new points are
raised or new material is supplied during the public comment period, the
Tribe may document the response to those matters by adding new
materials to the administrative record.
(c)
The Tribe shall notify in writing any affected program of any refusal to
accept recommendations for the permit that the affected program
submitted during the public comment and affected program review
periods.
Public Petitions to the Administrator.
(a)
If the Administrator does not object in writing under § 2-108(3) of this
code, any person may petition the Administrator within 60 days after
expiration of the Administrator’s 45-day review period to make such
objection.
(b)
Any such petition shall be based only on objections to the permit that were
raised with reasonable specificity during the public comment periods
provided for above, unless the petitioner demonstrates that it was
impracticable to raise such objections within such periods, or unless the
grounds for such objection arose after such periods.
(c)
If the Administrator objects to a permit as a result of a petition filed under
this subsection, the Tribe shall not issue the permit until the
Administrator’s objection has been resolved, except that a petition for
review does not stay the effectiveness of a permit or its requirements if the
permit was issued after the end of the 45-day review period and before the
Administrator’s objection.
(d)
Pending resolution of any public petition to the Administrator under this
subsection, the relevant source will not be in violation of the requirement
to submit a timely and complete application.
35
(8)
Administrative Review. An applicant, any person who participated in the public
comment process and is aggrieved by a final action or inaction of the Tribe under
this code, and any other person who could obtain judicial review of that action
under applicable law, may appeal to the Commission in accordance with this code
and the Commission’s Procedural Rules. Solely for the purpose of obtaining
administrative review before the Commission for failure to take final action, final
permit action shall include the failure of the Tribe to take final action on an
application for a permit, permit renewal, or permit revision (including a minor
permit revision) within the time specified in this code. The opportunity for
administrative review described in this section shall be the exclusive means for
obtaining review of the terms and conditions of permits. Petitions for
administrative review must be filed no later than 60 days after the final permit
action. Notwithstanding the preceding requirement, petitions for administrative
review of final permit actions can be filed after the deadline designated by the
Commission, only if they are based solely on grounds arising after the deadline
for administrative review. Such petitions shall be filed no later than 60 days after
the new grounds for review arise. If the final permit action being challenged is the
Tribe’s failure to take final action, a petition for administrative review may be
filed any time before the Tribe denies the permit or issues the final permit.
2-110. Permit Content.
(1)
Standard Requirements. Each operating permit shall include the following:
(a)
The date of issuance and the permit term, which shall be for a fixed term
of 5 years in the case of affected sources and all other sources
(notwithstanding this requirement, the Tribe shall issue permits for solid
waste incineration units combusting municipal waste subject to standards
under Section 129(e) of the Act for a period not to exceed 12 years and
shall review such permits at least every 5 years);
(b)
For major sources, all applicable requirements for all relevant emissions
units in the major source and, for non-major sources subject to this code,
all applicable requirements applicable to emissions units that cause the
source to be subject to this code;
(c)
Fugitive emissions from a Part 70 source, which shall be included in the
same manner as stack emissions, regardless of whether the source
category in question is included in the list of sources contained in the
definition of major source;
(d)
Emission limitations and standards, including those operational
requirements and limitations that assure compliance with all applicable
requirements at the time of permit issuance. Such requirements and
limitations may include ARMs identified by the source in its part 70
36
permit application as approved by the Tribe, provided that no ARM shall
contravene any terms needed to comply with any otherwise applicable
requirement or requirement of this code or circumvent any applicable
requirement that would apply as a result of implementing the ARM.
(e)
(f)
(i)
The permit shall specify and reference the origin of and authority
for each term or condition and identify any difference in form as
compared to the applicable requirement upon which the term or
condition is based.
(ii)
The permit shall state that, where an applicable requirement of the
Clean Air Act is more stringent than an applicable requirement of
regulations promulgated under title IV of the Clean Air Act, both
provisions shall be incorporated into the permit and shall be
enforceable by the Tribe and Administrator.
(iii)
If an applicable implementation plan allows a determination of an
alternative emission limit at a part 70 source, equivalent to that
contained in the plan, to be made in the permit issuance, renewal,
or significant modification process, and the Tribe elects to use such
process, any permit containing such equivalency determination
shall contain provisions to ensure that any resulting emissions limit
has been demonstrated to be quantifiable, accountable,
enforceable, and based on replicable procedures.
A permit condition prohibiting emissions exceeding any allowances that
the source lawfully holds under title IV of the Act or the regulations
promulgated thereunder.
(i)
No permit revision shall be required for increases in emissions that
are authorized by allowances acquired pursuant to the acid rain
program, provided that such increases do not require a permit
revision under any other applicable requirement.
(ii)
No limit shall be placed on the number of allowances held by the
source. The source may not, however, use allowances as a defense
to noncompliance with any other applicable requirement.
(iii)
Any such allowance shall be accounted for according to the
procedures established in regulations promulgated under title IV of
the Act.
A severability clause to ensure the continued validity of the various permit
requirements in the event of a challenge to any portions of the permit;
37
(g)
A provision specifying the conditions under which the permit will be
reopened prior to expiration pursuant to § 2-112 of this code; and
(h)
A provision to ensure that the permittee pays fees to the Tribe consistent
with the annual fee schedule in § 2-119 of this code.
(2)
Commission and Federal Requirements. Permits shall be issued containing all
applicable requirements, including requirements from both the Commission and
from federal program regulations requirements. This situation may arise, for
example, when a permittee is subject to more than one program under the Clean
Air Act and the Commission has chosen to implement only some but not all of the
programs to which the permittee is subject.
(3)
Required Statements. Each operating permit shall include provisions stating the
following:
(a)
The permittee shall comply with all terms and conditions of the permit;
noncompliance with federally enforceable or Commission-only permit
conditions constitutes a violation of this code and the Clean Air Act, and
any permit noncompliance constitutes grounds for enforcement action,
permit termination, revocation and reissuance, or revision or for denial of
a permit renewal application;
(b)
It shall not be a defense for a permittee in an enforcement action that it
would have been necessary to halt or reduce the permitted activity in order
to maintain compliance with the conditions of the permit;
(c)
The permit may be modified, reopened and revised, revoked and reissued,
or terminated for cause in accordance with § 2-112 of this code;
(d)
The filing by the permittee of a request for a permit revision, reissuance,
or termination, or of a notification of planned changes or anticipated
noncompliance shall not stay any permit condition;
(e)
The permit does not convey any property rights of any sort, or any
exclusive privilege;
(f)
All permit terms and conditions which are required under the Clean Air
Act or under any of its applicable requirements, including any provisions
designed to limit a source’s potential to emit, are enforceable by the
Administrator and citizens under the Clean Air Act, except that the permit
shall specifically designate as not being federally enforceable under the
Clean Air Act any terms or conditions included in the permit that are not
required under the Clean Air Act or under any of its applicable
requirements. Terms and conditions so designated are not subject to the
38
requirements of §§ 2-108, 2-111, 2-112, other than those contained in this
paragraph (f) of this section; and
(g)
The issuance of a permit, or the filing or approval of a compliance plan,
does not relieve any person from civil or criminal liability for failure to
comply with the provisions of this code and the Clean Air Act, applicable
regulations thereunder, and any other applicable law or regulation.
(4)
Hazardous Air Pollutant Requirements. Each operating permit for sources of
hazardous air pollutants shall include the elements required under the Clean Air
Act and its applicable regulations.
(5)
Monitoring Requirements. Each operating permit shall include the following
requirements:
(6)
(a)
All monitoring requirements and analysis procedures or test methods
required under applicable monitoring and testing requirements, including
40 CFR Part 64, and any other procedures and methods promulgated by
the Administrator pursuant to § 114(a)(3) or 504(b) of the Clean Air Act
or by the Commission. If more than one monitoring or testing
requirement applies, the permit may specify a streamlined set of
monitoring or testing provisions provided that the specified monitoring or
testing is adequate to assure compliance at least to the same extent as the
monitoring or testing applicable requirements that are not included in the
permit as a result of such streamlining;
(b)
Where the applicable requirement does not require periodic testing or
instrumental or non-instrumental monitoring (which may consist of
recordkeeping designed to serve as monitoring), periodic monitoring
sufficient to yield reliable data from the relevant time periods that are
representative of the source’s compliance with its permit, as reported
pursuant to § 2-110(7) of this code, provided that such monitoring
requirements shall assure use of terms, test methods, units, averaging
periods, and other statistical conventions consistent with the applicable
requirement. Recordkeeping provisions may be sufficient to meet the
requirements of this paragraph; and
(c)
As necessary, requirements concerning the use, maintenance, and, when
appropriate, installation of monitoring equipment or methods.
Recordkeeping Requirements.
(a)
The permit shall require recordkeeping sufficient to assure and verify
compliance with the terms and conditions of the permit, including
incorporation of all applicable recordkeeping requirements, and shall
require, where applicable, recordkeeping of:
39
(b)
(7)
(i)
The date, place as defined in the permit, and time of sampling or
measurements;
(ii)
The date(s) analyses were performed;
(iii)
The company or entity that performed the analyses;
(iv)
The analytical techniques or methods used;
(v)
The results of such analyses; and
(vi)
The operating conditions existing at the time of sampling or
measurement.
Records of all monitoring data and support information shall be retained
for a period of at least 5 years from the date of the monitoring sample,
measurement, report, or application and shall be kept at the location
specified in the permit or elsewhere, if agreed upon in writing by the
Tribe. Support information includes all calibration and maintenance
records and all back-up recordings for continuous monitoring
instrumentation, and copies of all reports required by the permit.
Reporting Requirements. The permit shall require reporting sufficient to assure
and verify compliance with the terms and conditions of the permit and all
applicable requirements, including incorporation of all applicable reporting
requirements and:
(a)
Submittal of reports of any required monitoring at least every 6 months,
which reports shall be certified by a responsible official consistent with
§ 2-105 of this code and shall clearly identify all instances of deviations
from permit requirements, including emergencies;
(b)
Prompt reporting of all deviations from permit requirements (including
emergencies), including the date, time, duration, and probable cause of
such deviations, the quantity and pollutant type of excess emissions
resulting from the deviation, and any preventative, mitigation, or
corrective actions or measures taken. Where the underlying applicable
requirement contains a definition of “prompt” or otherwise specifies a
time frame for reporting deviations, that definition or time frame shall
govern. Where the underlying applicable requirement fails to address the
time frame for reporting deviations, reports of deviations shall be
submitted based on the following schedule:
(i)
For emissions of a hazardous air pollutant or a toxic air pollutant
(as identified in an applicable regulation) that continue for more
40
than an hour in excess of permit requirements, the report must be
made by telephone, verbal, or facsimile communication by the
close of business the next working day, upon discovery of the
occurrence, and in writing within 10 working days from the
occurrence;
(8)
(ii)
For emissions of any regulated air pollutant, excluding those listed
in § 2-110(7)(b)(i) of this code, that continue for more than 2 hours
in excess of permit requirements, the report must be made by
telephone, verbal, or facsimile communication by the close of
business the next working day, upon discovery of the occurrence,
and in writing within 10 working days from the occurrence;
(iii)
Or all other deviations from permit requirements, the report shall
be contained in the report submitted in accordance with the time
frame given in § 2-110(7)(a) of this code.
(c)
A permit may contain a more stringent reporting requirement than
required by § 2-110(7)(b) of this code.
(d)
For purposes of this section, the term “deviation” shall have the meaning
prescribed in § 1-103(21) of this code.
(e)
When requested by the Tribe in writing and within the period specified by
the Tribe, the permittee shall furnish to the Tribe copies of records
required by the permit to be maintained, and any information that the
Tribe may deem necessary to determine whether cause exists for
reopening and revising, revoking and reissuing, or terminating the permit
or to determine compliance with the permit. Upon request, the permittee
shall also furnish to the Tribe copies of records required to be kept by the
permit or, for information claimed to be confidential, the permittee may
furnish such records directly to the Administrator along with a claim of
confidentiality.
Operational Flexibility Requirements. Each operating permit shall include the
following:
(a)
A provision stating that no permit revision shall be required for changes
that are provided for in the permit under any approved economic
incentives, marketable permits, emissions trading, and other similar
programs or processes;
(b)
Terms and conditions for reasonably anticipated AOSs identified by the
source in its application as approved by the Tribe. Such terms and
conditions:
41
(c)
(i)
Shall require the source, contemporaneously with making a change
from one operating scenario to another, to record in a log at the
permitted facility a record of the AOS under which it is operating;
(ii)
May extend the permit shield described in paragraph (10) of this
section to all terms and conditions under each such AOS; and
(iii)
Must ensure that the terms and conditions of each AOS meet all
applicable requirements and the requirements of this code. The
Tribe shall not approve a proposed AOS into the part 70 permit
until the source has obtained all authorizations required under any
applicable requirement relevant to that AOS.
Terms and conditions identified in the application and approved by the
Tribe for the trading of emissions increases and decreases within the
permitted facility, provided that such trading shall be authorized solely for
the purpose of complying with a federally enforceable emissions cap
established in the permit independent of otherwise applicable
requirements, and provided further that such terms and conditions shall:
(i)
Be issued only to the extent that the applicable requirements
provide for trading such increases and decreases without a case-bycase approval;
(ii)
Require compliance with all applicable requirements and include
all terms and conditions required under this section to determine
compliance, provided that the applicant shall include in the
application proposed replicable procedures and permit terms that
ensure the emissions trades are quantifiable and enforceable, and
the Tribe shall not include in the emissions trading provisions any
emissions units for which emissions are not quantifiable or for
which there are no replicable procedures to enforce the emissions
trades; and
(iii)
Require for each such proposed change that the permittee provide
written notification to the Tribe and the Administrator at least 7
days in advance thereof, which notice the permittee and Tribe shall
attach to their copies of the relevant permit. Such notice shall
specify when the proposed change will occur; shall describe the
proposed change, including the resulting emissions changes and
the pollutants emitted subject to the emissions trade, and how the
change will comply with the terms and conditions of the permit;
and shall specify the provisions of this code with which the source
will comply in making the change.
42
(d)
(9)
Provisions prohibiting sources from making, without a permit revision,
changes that are not addressed or prohibited by the part 70 permit, if such
changes are subject to any requirements under title IV of the Act or are
modifications under any provision of title I of the Act.
Compliance Requirements. Each operating permit shall include the following
requirements:
(a)
Consistent with §§ 2-110(5), (6), and (7), compliance certification, testing,
monitoring, reporting, and recordkeeping requirements sufficient to assure
compliance with the terms of the permit. Any document (including
reports) required by a Part 70 permit shall contain a certification by a
responsible official that meets the requirements of § 2-105 of this code;
(b)
Upon presentation of credentials and other documents as may be required
by law, the permittee shall allow authorized representatives of the Tribe or
other authorized representative to perform the following:
(c)
(i)
Enter the permittee’s premises where a source is located or an
emissions related activity is conducted, or where records must be
kept under the conditions of the permit;
(ii)
Have access to and copy, at reasonable times, any records that
must be kept under the conditions of the permit;
(iii)
Inspect, at reasonable times, any facilities, equipment (including
monitoring and air pollution control equipment), practices, or
operations regulated or required under the permit; and
(iv)
Sample or monitor, at reasonable times, any substances or
parameters for the purpose of assuring compliance with the permit
or applicable requirements as authorized by the Clean Air Act;
Annual submittal of compliance certifications to the Tribe and the
Administrator, which shall certify the source’s compliance status with all
permit terms and conditions and all applicable requirements relevant to the
source, including those related to emission limitations, standards, or work
practices, and shall include:
(i)
The identification of each term or condition of the permit that is
the basis of the certification;
(ii)
The compliance status of the source;
(iii)
Whether compliance was continuous or intermittent;
43
(d)
(10)
(iv)
The method(s) used for determining the compliance status of the
source, currently and during the reporting period identified in the
permit. Such methods shall include, at a minimum, the methods
required under § 2-110(5) through § 2-110(7) of this code;
(v)
An identification of each deviation, which shall be taken into
account in the compliance certification, and an identification as
possible exceptions to compliance of any periods during which
compliance is required and in which an excursion or exceedance as
defined under 40 CFR Part 64 occurred; and
(vi)
Such other information as the Tribe may require to determine the
compliance status of the source, and such additional requirements
as may be specified pursuant to §§ 114 and/or 504(b) of the Clean
Air Act, 42 U.S.C. §§ 7414, 7661c(b);
Consistent with § 2-106(4)(l) of this code, for sources to which that
provision applies:
(i)
A compliance schedule; and
(ii)
A requirement that such sources submit progress reports at least
semiannually, or at a more frequent period if specified in the
applicable requirement or by the Tribe, which progress reports
shall contain:
(A)
Dates for achieving the activities, milestones, or
compliance required in the compliance schedule, and dates
when such activities, milestones, or compliance were
achieved; and
(B)
An explanation of why any dates in the compliance
schedule were not or will not be met, and any preventive or
corrective measures adopted; and
(e)
When required, the permittee shall submit such reports using the most
recent forms and documents provided by the Tribe.
(f)
Such additional compliance requirements as the Tribe may specify.
Permit Shield.
(a)
Except as provided in this code, the Tribe may expressly include in an
operating permit a provision stating that compliance with the conditions of
the permit shall be deemed compliance with any applicable requirements
as of the date of permit issuance, provided that:
44
(i)
Such applicable requirements are included and specifically
identified in the permit; or
(ii)
The Tribe, in acting on the permit application or revision,
determines in writing that other requirements specifically
identified are not applicable to the source, and the permit includes
the determination or a concise summary thereof.
(b)
An operating permit that does not expressly state that a permit shield
exists for a specific provision shall be presumed not to provide such a
shield for that provision.
(c)
Nothing in this section or in any operating permit shall alter or affect the
following:
(d)
(i)
The provisions of § 303 of the Clean Air Act, 42 U.S.C. § 7603
concerning emergency powers, including the authority of the
Administrator under those sections;
(ii)
The liability of an owner or operator of a source for any violation
of applicable requirements prior to or at the time of permit
issuance;
(iii)
The applicable requirements of the acid rain program, consistent
with Section 408(a) of the Act; or
(iv)
The ability of the Administrator to obtain information from a
source pursuant to § 114 of the Clean Air Act, 42 U.S.C. § 7414.
The permit shield shall not extend to § 2-110(8) changes, off-permit, and
502(b)(10) changes under § 2-116 of this code, or minor permit revisions
under § 2-111(3) of this code, or permit terms or conditions for which
notice has been given to reopen or revoke all or part under § 2-112 of this
code.
2-111. Permit Revisions.
The permittee must apply for any changes made to the permit that do not fall under
§ 2-116 of this code.
(1)
Hazardous Air Pollutant Sources. Any permit revision concerning the
hazardous air pollutant portion of a permit shall be governed by this code and
§ 112 of the Clean Air Act, 42 U.S.C. § 7412.
45
(2)
(3)
Administrative Permit Revisions.
(a)
The Tribe may incorporate administrative permit revisions as defined in
§ 1-103(3) of this code without providing notice to the public or affected
programs, provided that the Tribe designates any such permit revision as
having been made pursuant to this subsection. The Tribe shall submit a
copy of the revised permit to the Administrator.
(b)
The Tribe shall take no more than 60 days from receipt of a request for an
administrative permit revision to take final action on such request.
(c)
The permittee may implement an administrative permit revision
immediately upon submittal of the request for the administrative revision.
(d)
The Tribe may, upon taking final action granting a request for an
administrative permit revision allow coverage by the permit shield in
§ 2-110(10) for administrative permit revisions made pursuant to RAC 1103(3)(d) which meet the relevant requirements for significant permit
revisions.
Minor Permit Revisions.
(a)
Application: A permittee may apply to the Tribe for a minor permit
revision as defined in § 1-103(40) of this code in compliance with
§ 2-106(4) of this code, provided that such application shall include:
(i)
A request for a minor permit revision;
(ii)
A description of the change, the emissions resulting from the
change, and any new applicable requirements that will apply if the
change occurs;
(iii)
If changes are requested to the permit language, the permittee’s
suggested draft permit changes;
(iv)
Certification by a responsible official, consistent with § 2-105 of
this code, that the proposed revision meets the criteria for use of
minor permit revision procedures and a request that such
procedures be used;
(v)
Completed forms for the Tribe to use to notify the Administrator
and affected programs as required under § 2-108 of this code; and
(vi)
If the requested permit revision would affect existing compliance
plans or schedules, related progress reports, or certification of
compliance requirements, and an outline of such effects.
46
(b)
Limitation: A permittee shall not submit multiple minor permit revision
applications that may conceal a larger revision that would not constitute a
minor permit revision. The Tribe may require that multiple related minor
permit revision applications be submitted as a single significant permit
revision application. A permit modification for purposes of the acid rain
portion of the permit shall be governed by regulations promulgated under
title IV of the Act.
(c)
Completeness: The Tribe shall, within 30 days after receipt of an
application for a minor permit revision, review such application for
completeness. The Tribe shall notify the applicant of that determination
by electronic mail with delivery and read receipts, provided that any
incompleteness notice shall also state what additional information or
points of clarification are necessary for the application to be determined
complete. Unless the Tribe determines that such an application is not
complete, requests additional information, or otherwise notifies the
applicant of incompleteness within that time period, the application shall
be deemed complete.
(d)
EPA and Affected Program Review: Within 5 working days after receipt
of notification by the Tribe that a minor permit revision application has
been determined complete, the Tribe shall send any notice required under
§ 2-108(2) of this code to the Administrator and affected programs.
Within 5 days after completion of the preceding review process, the Tribe
shall send to the Administrator any notice required under § 2-108(3)(b) of
this code.
(e)
Permittee’s Ability to Make Change: The permittee may make the change
proposed in its minor permit revision application immediately after it files
such application, provided, however, for sources that have previously
utilized this provision during the term of the permit and, on two or more
occasions have failed to file a complete application, may thereafter make
the change only after the application is deemed complete. After the
permittee makes the change and until the Tribe takes any of the actions
specified in the following subsection, the permittee must comply with both
the applicable requirements governing the change and the proposed permit
terms and conditions. During this period, the permittee need not comply
with the existing permit terms and conditions it seeks to modify. If the
permittee fails to comply with its proposed permit terms and conditions
during this period, however, the existing permit terms and conditions it
seeks to modify may be enforced against it. The filing of a minor permit
revision application does not authorize construction or modification of a
source under the NSR preconstruction permit program. It is the
permittee’s responsibility to determine if a preconstruction permit is
47
required prior
reconstruction.
(f)
(4)
to
commencing
construction,
modification,
or
Timetable: The Tribe may not issue a final minor permit revision until
after the end of the Administrator’s 45-day review period of the proposed
permit revision, or until the Administrator has notified the Tribe that the
Administrator will not object to issuance of the permit revision, whichever
is first. Within 90 days after receipt of a complete minor permit revision
application, or within 15 days after the end of the Administrator’s 45-day
review period, whichever is later, the Tribe shall:
(i)
Issue the minor permit revision as proposed;
(ii)
Disapprove the minor permit revision application;
(iii)
Determine that the requested revision does not constitute a minor
permit revision and should be reviewed as a proposed significant
permit revision; or
(iv)
Revise the draft permit revision and transmit to the Administrator
the new proposed permit revision as required by § 2-108(2) of this
code.
Significant Permit Revisions.
(a)
Significant permit revisions as defined in § 1-103(61) of this code shall
meet all requirements of this code for permit issuance and renewal,
including those for applications, review by the Administrator and affected
programs, and public participation.
(b)
The Tribe shall complete the review of the majority of significant permit
revision applications within 9 months after such applications are
determined to be complete. Significant permit revision applications shall
be considered in the order in which they are determined to be complete,
based on the order of receipt.
2-112. Permit Reopenings, Revocations and Reissuances, and Terminations.
(1)
Action by the Tribe.
(a)
Reopening and Revocation and Reissuance Standards: The Tribe shall
reopen and revise all permits issued under this code for any of the reasons
listed in paragraphs (i) through (iv) of this subsection. Alternatively, the
Tribe may revoke and reissue permits for the reasons listed in paragraphs
(iii) and (iv) of this subsection:
48
(i)
Additional requirements under the Clean Air Act become
applicable to a major source with a remaining permit term of 3 or
more years, provided that the Tribe shall revise such permits to
incorporate such additional requirements no later than 18 months
after promulgation of such requirements, and no such reopening is
required if the effective date of the requirement is later than the
permit expiration date unless the original permit or any of its terms
or conditions have been extended past the permit expiration date
pursuant to § 2-104(2)(b)(iii) of this code;
(ii)
Additional requirements (including excess emissions requirements)
become applicable to an affected source under the acid rain
program. Upon approval by the Administrator, excess emissions
offset plans shall be deemed to be incorporated into the permit;
(iii)
The Tribe or the Administrator determines that the permit contains
a material mistake or that inaccurate statements were made in
establishing the terms or conditions of the permit; or
(iv)
The Tribe or the Administrator determines that the permit must be
revised or revoked and reissued to assure compliance with
applicable requirements.
(b)
Reopening and Revocation and Reissuance Limitations: Proceedings to
reopen and revise, or revoke and reissue, a permit shall comply with the
procedural requirements for initial permit issuance, and shall affect only
those parts of the permit for which cause to reopen and revise, or revoke
and reissue, exists. Units for which permit conditions have been revoked
shall not be operated until permit reissuance. Reopenings shall be made as
expeditiously as practicable.
(c)
Termination: A permit, or an authorization to operate under a general
permit, may be terminated when:
(i)
The permittee fails to meet the requirements of an approved
compliance plan;
(ii)
The permittee has been in significant or repetitious noncompliance
with the operating permit terms or conditions;
(iii)
The applicant or permittee has exhibited a history of willful
disregard for environmental laws of any tribal or state authority, or
of the United States;
49
(d)
(iv)
The applicant or permittee has knowingly misrepresented a
material fact in any application, record, report, plan, or other
document filed or required to be maintained under the permit;
(v)
The permittee falsifies, tampers with, or renders inaccurate any
monitoring device or method required to be maintained under the
permit;
(vi)
The permittee fails to pay fees required under § 2-118 and § 2-119,
of this code; or
(vii)
The Administrator has found that cause exists to terminate the
permit.
Notification: In addition to providing notice of intent to terminate a
permit, the Tribe shall provide a notice of intent to a permittee to reopen
or revoke and reissue a permit. Notice shall be provided by electronic
mail with delivery and read receipts at least 30 days before the date on
which the permit is to be reopened, revoked, or terminated, except that the
Tribe may provide less advance notice in the case of an emergency. The
notice shall state that the permittee may, within 30 days of receipt, or in
less time in the case of an emergency, submit comments or request a
hearing on the proposed permit action.
(2)
Action by the Administrator: Within 90 days, or longer if the Administrator
extends this period, after receipt of written notification that the Administrator has
found that cause exists to terminate, modify, or revoke and reissue a permit, the
Tribe shall forward to the Administrator a proposed determination of termination,
modification, or revocation and reissuance, as appropriate. Within 90 days from
receipt of an objection by the Administrator to a proposed determination, the
Tribe shall address and act upon such objection.
(3)
Revocation and Termination: Revocation or termination of a permit by the Tribe
terminates the permittee’s right to operate.
(4)
Voluntary Discontinuation: Upon request by the permittee, the Tribe shall
permanently discontinue an operating permit. Permit discontinuance terminates
the permittee’s right to operate as a Part 70 source under the permit. The Tribe
shall confirm the permit discontinuance by electronic mail with delivery and read
receipts to the permittee.
(4) Preconstruction Limitation: Nothing in this section shall be construed to alter any
applicable preconstruction requirements under § 165 of the Clean Air Act,
42 U.S.C. § 7475.
50
2-113. Permit Transfers.
A permit shall not be transferable, by operation of law or otherwise, from one location to
another or from one source to another, except that a permit may be transferred from one
location to another in the case of a portable source that has notified the Tribe in advance
of the transfer, pursuant to this code. A permit for a source may be transferred from one
person to another if the Tribe finds that the transferee is capable of operating the source
in compliance with the permit and the requirements of this code. This transfer must be
accomplished through an administrative permit revision as defined in § 1-103(3) of this
code.
2-114. General Permits.
(1)
(2)
Issuance.
(a)
The Tribe may, after notice and opportunity for public participation and
review by the Administrator and affected programs, issue a general permit
covering numerous similar sources.
(b)
Any general permit shall comply with all requirements applicable to other
operating permits and shall identify criteria by which sources may qualify
for the general permit.
Application.
(a)
(b)
(3)
The owner or operator of a Part 70 source that would qualify for a general
permit must:
(i)
Apply to the Tribe for coverage under the terms of the general
permit; or
(ii)
Apply for an operating permit consistent with § 2-106 of this code.
The Tribe may, in the general permit, provide for applications which
deviate from the requirements of § 2-106 of this code, provided that such
applications meet the requirements of title V of the Clean Air Act and
include all information necessary to determine qualification for, and to
assure compliance with, the general permit.
Review and Operation.
(a)
The Tribe shall authorize qualifying sources that apply for coverage under
a general permit to operate under the terms and conditions of such general
permit.
51
(b)
The Tribe may grant a request for authorization to operate under a general
permit without repeating the public participation procedures required
under § 2-109 of this code.
(c)
Authorization to operate under a general permit shall not be granted for
acid rain sources unless otherwise provided in regulations promulgated
under title IV of the Clean Air Act.
(d)
Notwithstanding § 2-110(10) of this code, the permittee shall be subject to
enforcement action for operation without an operating permit if the source
is later determined not to qualify for the conditions and terms of the
general permit.
2-115. Portable Source Permits.
(1)
Authorization. The Tribe may issue permits for portable sources that authorize
emissions from similar operations by the same source owner or operator at
multiple locations and authorize such sources to relocate without undergoing a
major permit revision.
(2)
Acid Rain Source. No acid rain source shall be permitted as a portable source.
(3)
Limitations. Permits issued pursuant to this section shall include conditions to
assure that:
(a)
The source is installed at all locations in a manner conforming with the
permit;
(b)
The source shall comply with all applicable requirements and all other
provisions of this code at all authorized locations;
(c)
The owner or operator shall notify the Tribe in writing at least 10 days in
advance of each change in location, provided that such notice shall include
a legal description of where the source is to be relocated and how long, to
the best of the owner or operator’s knowledge, it will be located there; and
(d)
Emissions from the source shall not, at any location, result in or contribute
to an exceedance of a national ambient air quality standard or increment or
visibility requirement under Part C of title I of the Clean Air Act.
2-116. Facility Changes Allowed Without Permit Revisions.
In addition to changes authorized pursuant to § 2-110(8) of this code, any permittee may make
the following facility changes without a permit revision:
(1)
Section 502(b)(10) Changes.
52
(2)
(a)
The permittee may make Clean Air Act § 502(b)(10) changes without
applying for a permit revision if those changes are not modifications under
title I of the Clean Air Act and do not cause the facility to exceed
emissions allowable under the permit (whether expressed as a rate of
emissions or in terms of total emissions).
(b)
For each proposed § 502(b)(10) change, the permittee shall provide
written notification to the Tribe and the Administrator at least 7 days in
advance of the proposed change. Such notice shall state when the change
will occur and shall describe the change, any resulting emissions change,
and the inapplicability of any permit term or condition.
(c)
Upon receiving notice of a proposed § 502(b)(10) change pursuant to the
preceding provision, the Tribe shall promptly determine whether the
proposed change qualifies as a § 502(b)(10) change and whether the notice
meets the requirements of the preceding paragraph, and shall promptly
notify the permittee of this determination.
(d)
If the proposed change and the notice is sufficient, the permittee and Tribe
shall attach each such notice to their copy of the relevant permit. If the
change is determined not to qualify or the notice is not sufficient, the
original terms of the permit remain fully enforceable.
Off-Permit Changes.
(a)
Permittees are allowed to make, without a permit revision, changes that
are not addressed or prohibited by the operating permit, if:
(i)
Each such change meets all applicable requirements and shall not
violate any existing permit term or condition;
(ii)
Such changes are not subject to any requirements under title IV of
the Clean Air Act and are not modifications under title I of the
Clean Air Act;
(iii)
Such changes are not subject to permit revision procedures under
§ 2-111 of this code; and
(iv)
The permittee provides contemporaneous written notice to the
Tribe and the Administrator of each such change, except for
changes that qualify as insignificant activities. Such notice shall
state when the change occurred and shall describe the change, any
resulting emissions change, pollutants emitted, and any applicable
requirement that would apply as a result of the change.
53
(b)
The permittee shall keep a record describing changes made at the source
that result in emissions of any regulated air pollutant subject to an
applicable requirement, but not otherwise regulated under the permit, and
the emissions resulting from those changes.
2-117. Reserved.
2-118. Fee Requirement and Payment.
(1)
(2)
Initial Fees.
(a)
Part 70 sources that begin operation after the Tribe’s program has been
approved shall complete and submit a fee calculation work sheet, provided
by the Tribe, during the first year of operation. Fee payment of the full
amount must accompany each initial fee calculation work sheet.
(b)
The fee calculation work sheet shall require the source to submit a report
based on the emissions inventory for the preceding calendar year and to
compute fees owed based on those emissions. For sources that have been
issued Part 70 permits, emissions shall be computed using compliance
methods required by the most recent permit. If actual emissions cannot be
determined using the compliance methods in the permit, the actual
emissions should be determined using federally recognized procedures. If
a source commenced operation during the preceding calendar year, the
source shall estimate its emissions for the current calendar year. In such a
case, fees for the source shall be based on the total emissions estimated.
(c)
The initial fee calculation worksheet shall be certified by a responsible
official consistent with § 2-105 of this code.
Annual Fees. An annual operating permit emission fee shall be paid to the Tribe
by each owner or operator of a Part 70 source.
(a)
(b)
Such fee shall be assessed:
(i)
For a major source, for all emissions units; and
(ii)
For all other sources, for emissions units that cause the source to
be subject to this code.
The first annual fee to be paid shall be determined and paid as follows:
(i)
For sources that begin operation after the effective date of this
code, and for sources that become subject to a permit requirement
pursuant to title V of the Clean Air Act through promulgation of
the Administrator after the effective date of this code, the first
54
annual fee shall be based on the applicable minimum fee or the per
ton fee based on the emissions inventory for the first year of
operation, whichever is greater. The first annual fee shall be due on
the anniversary date of the initial fee calculation work sheet at the
time the initial permit application is submitted pursuant to § 2118(1) of this code.
(ii)
(c)
If no emissions inventory is available, the first annual fee shall be
based on estimated emissions using approved estimation methods.
All annual emission fees other than the first shall be due to the Tribe each
year on the date specified in the permit. The fee shall be based on the
emissions inventory for the preceding operating year or the applicable
minimum fee, whichever is greater. All annual fee calculation worksheets
shall be certified by a responsible official consistent with § 2-105 of this
code.
(i)
The permittee shall submit the initial fee calculation work sheet
using the most recent form provided by the Tribe.
(3)
Other Fees. The Tribe may establish a schedule of other fees necessary to ensure
that fees cover program costs, as required, including but not limited to, for
example, a registration fee.
(4)
Payment Form, Processing, and Use.
(5)
(a)
Fee payments due under this section shall be remitted in the form of a
money order, bank draft, certified check, corporate check, or electronic
funds transfer payable to the Southern Ute Indian Tribe and sent or
delivered to the Tribe by the United States Postal Service, c/o
Environmental Programs Division Part 70 Program, P.O. Box 737 MS#84,
Ignacio, Colorado 81137; or by common carriers (such as UPS or FedEx)
c/o Environmental Programs Division Part 70 Program, 398 Ouray Drive,
Ignacio, Colorado 81137.
(b)
Upon receipt of fee payments due under this section, such payments shall
be used for the administration of the Title V Operating Permit Program.
(c)
Fee payments collected under this section shall not be utilized for any
purpose not authorized under the Clean Air Act.
Nonpayment.
(a)
Failure to remit the full fee required by the due dates specified in this
section constitutes a violation of this code and may subject the owner or
55
operator to enforcement actions under this code, including, but not limited
to, civil penalties for each day of noncompliance.
(6)
(b)
The Tribe shall not issue a final permit or permit revision until all fees,
interest and penalties assessed against a source under this section are paid.
(c)
An initial or renewal application shall not be found complete unless the
source has paid all fees owed.
Penalty and Interest Assessment.
(a)
The Tribe shall assess interest on payments which are received later than
the date due. The interest rate shall be the sum of the federal short-term
rate determined by the Secretary of the Treasury in accordance with
Section 6621(a)(2) of the International Revenue Code of 1986, plus 3
percentage points.
(b)
The Tribe shall assess a penalty charge of 50 percent of the fee amount if
the fee is not paid within 30 days of the payment due date.
(c)
If a source underpays the fee owed, except as provided in paragraph (6)(d)
of this section, the Tribe shall assess a penalty charge of 50 percent on the
amount by which the fee was underpaid. Interest shall also be assessed,
computed under paragraph (6)(a) of this section, on the amount by which
the fee was underpaid.
(d)
If a source bases its initial fee calculation on estimated emissions from the
source’s current or preceding calendar year and underpays its fee based on
an underestimation of these emissions, the Tribe shall assess a penalty
charge of 50 percent on certain of these underpayments, according to the
following provisions:
(i)
The penalty charge shall be assessed whenever a source’s
underpayment exceeds the underpayment penalty cutoff
established in paragraph (6)(d)(iii) of this section. The penalty
amount shall be 50 percent of the portion of the underpayment
which is in excess of the underpayment penalty cutoff.
(ii)
Where a source is subject to a penalty for underpayment pursuant
to paragraph (6)(d)(i) of this section, interest as computed under
paragraph (6)(a) of this section shall be assessed on that portion of
the underpayment which is in excess of the underpayment penalty
cutoff established in paragraph (6)(d)(iii) of this section.
(iii)
The underpayment penalty cutoff for a source shall be the sum of
the following:
56
(A)
50 percent of the portion of the initial fee amount which
was calculated from estimated emissions of HAP listed
pursuant to § 112(b) of the Clean Air Act, and
(B)
20 percent of the portion of initial fee amount which was
calculated from estimated emissions of the remainder of the
fee pollutants.
2-119. Fee Schedule.
(1)
(2)
Emission and Minimum Fees.
(a)
Initial Emission Fees: Unless otherwise set pursuant to this section,
annual emission fees for all sources required to have operating permits
under this code shall be $50.00 per ton of emissions for all fee pollutants,
including fugitive emissions, adjusted pursuant to paragraphs (c) and (d)
of this section.
(b)
Initial Minimum Fees: The Tribe may set, pursuant to this section,
minimum fees for all sources required to have an operating permit under
this code.
(c)
Adjustments to Fees: The Tribe may alter or adjust the above emission
and minimum fees in dollars per ton in the interest of program
administration and/or to ensure that fees paid under this code are sufficient
to cover permit program costs, as those costs or the number or types of
permitted sources may change over time. All adjustments to fees must be
approved by the Commission.
(d)
Indexing: The emission and minimum fees set under the preceding
subsections shall be adjusted at the beginning of each calendar year to
reflect any percentage increase by which the Consumer Price Index for the
most recent year exceeds the Consumer Price Index for the year the
Tribe’s Title V Operating Permit Program was approved.
Fee Calculation.
(a)
Subtotal annual fees shall be calculated by multiplying the applicable
emission fee set pursuant to § 2-119(1) of this code times the total tons of
actual emissions for each fee pollutant. In lieu of actual emissions, annual
fees may be calculated based on the potential to emit for each fee
pollutant. Emissions of any regulated air pollutant that already are
included in the fee calculation under a category of regulated pollutant,
such as a federally listed hazardous air pollutant that is already accounted
57
for as a VOC or as PM10, shall be counted only once in determining the
source’s actual emissions.
(b)
(3)
(4)
The total annual fee due under this section shall be the greater of the
applicable minimum fee or the sum of subtotal annual fees for all fee
pollutants emitted from the source. The applicable minimum fee shall only
be established, upon approval of the Commission, if necessary for the
program to remain self-sustaining.
Fee Assessment Errors.
(a)
If the Tribe determines that a source has completed the fee calculation
work sheet incorrectly, the Tribe shall bill the applicant for the corrected
fee or credit overpayments to the source’s account.
(b)
Each source notified by the Tribe of additional amounts due shall remit
full payment within 30 days of receipt of an invoice from the Tribe.
(c)
An owner or operator of a Part 70 source who thinks that the assessed fee
is in error shall provide a written explanation of the alleged error to the
Tribe along with the assessed fee. The Tribe shall, within 90 days of
receipt of the correspondence, review the data to determine whether the
assessed fee was in error. If an error was made, the overpayment shall be
credited to the account of the Part 70 source.
Fee Demonstration.
The Tribe shall provide a demonstration to the
Administrator that the fee schedule established pursuant to this section, in
conjunction with any application fees established by the Tribe pursuant to this
section, will result in the collection and retention of fees in an amount sufficient
to cover permit program costs. Such demonstration shall also contain an initial
accounting (and periodic updates as required by the Administrator) of how
required fee revenues are used solely to cover permit program costs.
2-120. Reduction in Permit Fees.
The Tribe may reduce any fee required under this code to take into account the financial
resources of small business sources.
2-121. Enforcement Authority.
Pursuant to the enforcement authority enumerated in P.L. 108-336 and applicable
provisions of the Clean Air Act, the Tribe has the following authority to prevent and
address violations of this code by Part 70 sources:
(1)
Civil Action. To bring a civil action for declaratory or injunctive relief
immediately and effectively against any person who fails to comply with terms of
58
a permit or any program requirement, including permit conditions, or is
presenting an imminent and substantial endangerment to the public health or
welfare, or the environment; without the necessity of a prior revocation of the
permit.
(2)
Civil Penalties and Damages. To assess or sue to recover in court civil penalties
or recover civil damages according to the following:
(a)
Civil penalties or damages assessed, sought, or agreed upon by the Tribe
under this section shall be appropriate to the violation;
(b)
These penalties or damages shall be separately recoverable in an amount
not to exceed $10,000 per day per violation;
(c)
Civil penalties or damages shall be recoverable for the violation of any
applicable requirement; any permit condition; any fee or filing
requirement; any duty to allow or carry out inspection, entry, or
monitoring activities; or any regulation or orders issued by the Tribe.
Mental state shall not be included as an element of proof for civil
violations.
(d)
In determining the amount of any civil penalty, the following factors shall
be considered:
(i)
The violator's compliance history;
(ii)
Good-faith efforts on behalf of the violator to comply;
(iii)
Payment by the violator of penalties previously assessed for the
same violation;
(iv)
Duration of the violation;
(v)
Economic benefit of noncompliance to the violator;
(vi)
Impact on, or threat to, the public health or welfare or the
environment as a result of the violation;
(vii)
Malfeasance; and
(viii) Whether legal and factual theories were advanced for purposes of
delay.
(e)
In addition to the factors set forth above, the following circumstances shall
be considered as grounds for reducing or eliminating civil penalties:
59
(i)
The voluntary and complete disclosure by the violator of such
violation in a timely fashion after discovery of the noncompliance;
(ii)
Full and prompt cooperation by the violator following disclosure
of the violation including, when appropriate, entering into a legally
enforceable commitment to undertake compliance and remedial
efforts;
(iii)
The existence and scope of a regularized and comprehensive
environmental compliance program or an environmental audit
program;
(iv)
Substantial economic impact of a penalty on the violator;
(v)
Nonfeasance; and
(vi)
Other mitigating factors.
(f)
The imposition of civil penalties may be deferred or suspended where
appropriate based on consideration of the factors set forth above.
(g)
Notwithstanding any other provision in this section, no action for civil
enforcement of this program may be taken where a permit renewal has
been issued for the source and the source conducts its operations in
compliance with the permit terms.
(3)
Criminal Enforcement. In accordance with the IGA and federal law, EPA will
exercise criminal enforcement jurisdiction over any persons on all lands within
the Reservation boundaries for violations of the Reservation Air Program.
(4)
Burden of Proof. The burden of proof and degree of knowledge or intent
required for establishing violations under this § 2-121 shall be no greater than the
burden of proof or degree of knowledge or intent required under the Clean Air
Act.
2-122. Compliance Tracking.
(1)
Generally. The Tribe shall compile and maintain for at least five years all
information received pursuant to § 2-110(7) of this code as necessary and
appropriate to determine ongoing compliance by Part 70 sources with this code
and the Clean Air Act, and shall provide any such information or compilation
thereof to the Administrator when so requested by the Administrator.
(2)
Agreement. The Tribe may enter into an agreement with the Administrator
concerning provision of the compliance tracking information compiled pursuant
to this section.
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2-123. Enforcement Reporting.
(1)
(2)
Requirement. The Tribe shall record and submit to the Administrator at least
annually beginning no later than one year after the effective date of this code
information regarding the Tribe’s enforcement activities taken pursuant to this
code including but not limited to the following:
(a)
The number of civil administrative and judicial enforcement actions either
commenced or concluded;
(b)
The penalties and damages obtained in those actions; and
(c)
The number of administrative orders issued.
Method. The Tribe shall consult with the Administrator regarding the preferred
method for recording information required to be recorded pursuant to this section.
2-124. Confidentiality.
(1)
Submittal. An applicant or permittee who submits material to the Tribe under a
claim of confidentiality:
(a)
May submit the material separately;
(b)
Shall precisely identify the material for which the confidentiality claim is
asserted; and
(c)
Shall provide sufficient supporting information to allow evaluation of that
claim.
(2)
Eligibility. All confidentiality claims made regarding material submitted to the
Tribe under this code shall be evaluated under 40 CFR § 2(B). Information which
is emission data, a standard or limitation, or is collected pursuant to
§ 211(b)(2)(A) of the Clean Air Act is not eligible for confidential treatment, as
provided in 40 CFR § 2.301(e).
(3)
Submittal to Administrator. The Tribe may require or permit an applicant or
permittee to submit directly to the Commission or Administrator a copy of such
material for which a confidentiality claim is asserted and shall be evaluated under
40 CFR § 70.5(a)(3).
(4)
Public Record. All materials submitted to the Tribe under this code, except to
the extent determined confidential pursuant to this section, and all operating
permits, are public records and not entitled to protection under § 114(c) of the
Clean Air Act, 42 U.S.C. § 7414(c). A copy of each permit application,
61
compliance plan (including the schedule of compliance), emissions or compliance
monitoring report, certification, and each permit issued under this code, shall be
available to the public. If an applicant or permittee is required to submit
information entitled to protection from disclosure under this code, the applicant or
permittee may submit such information separately.
(5)
Sharing of Information. Any information obtained or used in the administration
of this program shall be available to EPA upon request without restriction and in a
form specified by the administrator, including computer-readable files to the
extent practicable.
2-125. Program Revision.
Pursuant to the Commission’s Procedural Rules, the Commission shall review this code
no less than once every five years to make any necessary changes.
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PART 2. NEW SOURCE PERFORMANCE STANDARDS
3-101. Introduction to Incorporation of Standards of Performance for New Stationary
Sources.
This Part incorporates as part of the Reservation Air Program certain standards of performance
established by the United States Environmental Protection Agency pursuant to section 111 of the
Clean Air Act (42 U.S.C. § 7411) to regulate criteria pollutant emissions from specific categories
of new sources. The purpose of the incorporation is to enable the Southern Ute Indian Tribe and
the Southern Ute Indian Tribe/State of Colorado Environmental Commission to exercise
authority with respect to the incorporated regulations as published and found in 40 C.F.R. Part
60.
3-102. Incorporation of NSPS by reference.
The following EPA regulations on Standards of Performance for New Stationary Sources and
designated appendices, published as of July 31, 2025, not including any later amendments, are
adopted by the Commission and incorporated by reference into this Reservation Air Code. All
new sources of air pollution shall comply with the standards, criteria, and requirements set forth
in the incorporated regulations and appendices. For the purpose of this Part, the term “new
sources” means any stationary source, the construction or modification of which is commenced
after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of
performance under federal law which will be applicable to such source. For the purpose of this
Part, the word “Administrator” as used in the incorporated regulations means the Tribe, except
for those aspects of the incorporated regulations which cannot be delegated to the Tribe, in which
case, “Administrator” means both the Administrator of the Environmental Protection Agency or
his authorized representative and the Tribe.
40 C.F.R. Part 60, Subpart A
General Provisions
40 C.F.R. Part 60, Subpart D
Standards of Performance for Fossil-Fuel-Fired Steam
Generators for Which Construction is Commenced After
August 17, 1971
40 C.F.R. Part 60, Subpart Da
Standards of Performance for Electric Utility Steam
Generating Units for Which Construction is Commenced
After September 18, 1978
40 C.F.R. Part 60, Subpart Db
Standards of Performance for Industrial-CommercialInstitutional Steam Generating Units
40 C.F.R. Part 60, Subpart Dc
Standards of Performance for Small IndustrialCommercial-Institutional Steam Generating Units
40 C.F.R. Part 60, Subpart I
Standards of Performance for Hot Mix Asphalt Facilities
63
40 C.F.R. Part 60, Subpart K
Standards of Performance for Storage Vessels for
Petroleum Liquids for Which Construction, Reconstruction,
or Modification Commenced After June 11, 1973, and Prior
to May 19, 1978
40 C.F.R. Part 60, Subpart Ka
Standards of Performance for Storage Vessels for
Petroleum Liquids for Which Construction, Reconstruction,
or Modification Commenced After May 18, 1978, and Prior
to July 23, 1984
40 C.F.R. Part 60, Subpart Kb
Standards of Performance for Volatile Organic Liquid
Storage Vessels (Including Petroleum Liquid Storage
Vessels) for Which Construction, Reconstruction, or
Modification Commenced After July 23, 1984
40 C.F.R. Part 60, Subpart GG
Standards of Performance for Stationary Gas Turbines
40 C.F.R. Part 60, Subpart VV
Standards of Performance for Equipment Leaks of VOC in
the Synthetic Organic Chemicals Manufacturing Industry
for Which Construction, Reconstruction, or Modification
Commenced After January 5, 1981, and on or Before
November 7, 2006
40 C.F.R. Part 60, Subpart KKK
Standards of Performance for Equipment Leaks of VOC
from Onshore Natural Gas Processing Plants for Which
Construction, Reconstruction, or Modification Commenced
After January 20, 1984, and on or Before August 23, 2011
40 C.F.R. Part 60, Subpart LLL
Standards of Performance for SO2 Emissions from Onshore
Natural Gas Processing for Which Construction,
Reconstruction, or Modification Commenced After January
20, 1984, and on or Before August 23, 2011
40 C.F.R. Part 60, Subpart OOO
Standards of Performance for Nonmetallic Mineral
Processing Plants
40 C.F.R. Part 60, Subpart WWW
Standards of Performance for Municipal Solid Waste
Landfills
40 C.F.R. Part 60, Subpart CCCC
Standards of Performance for Commercial and Industrial
Solid Waste Incineration Units for Which Construction is
Commenced After November 30, 1999 or for Which
Modification or Reconstruction is Commenced on or After
June 1, 2001
64
40 C.F.R. Part 60, Subpart EEEE
Standards of Performance for Other Solid Waste
Incineration Units for Which Construction is Commenced
After December 9, 2004, or for Which Modification or
Reconstruction is Commenced on or After June 16, 2006
40 C.F.R. Part 60, Subpart IIII
Standards of Performance for Stationary Compression
Ignition Internal Combustion Engines
40 C.F.R. Part 60, Subpart JJJJ
Standards of Performance for Stationary Spark Ignition
Internal Combustion Engines
40 C.F.R. Part 60, Subpart KKKK
Standards of Performance for Stationary Combustion
Turbines
40 C.F.R. Part 60, Subpart OOOO
Standards of Performance for Crude Oil and Natural Gas
Production, Transmission and Distribution for which
Construction, Modification or Reconstruction Commenced
after August 23, 2011, and on or before September 18,
2015
40 C.F.R. Part 60, Subpart OOOOa Standards of Performance for Crude Oil and Natural gas
Facilities for which Construction, Modification or
Reconstruction Commenced After September 18, 2015, and
On or Before December 6, 2022
40 C.F.R. Part 60, Subpart OOOOb Standards of Performance for Crude Oil and Natural Gas
Facilities for which Construction, Modification or
Reconstruction Commenced After December 6, 2022
40 CFR part 60, Appendix A - Test Methods
40 CFR part 60, Appendix B - Performance Specifications
40 CFR part 60, Appendix C - Determination of Emission Rate Change
40 CFR part 60, Appendix D - Required Emission Inventory Information
40 CFR part 60, Appendix F - Quality Assurance Procedures
40 CFR part 60, Appendix I - Removable Label and Owner’s Manual
65
PART 3. NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR
POLLUTANTS
4-101. Introduction to Incorporation of National Emission Standards for Hazardous Air
Pollutants.
This Part incorporates as part of the Reservation Air Program certain National Emission
Standards for Hazardous Air Pollutants (NESHAP) established by the United States
Environmental Protection Agency pursuant to section 112 of the Clean Air Act (42 U.S.C. §
7412) which regulate hazardous air pollutant emissions of new and existing sources. The
purpose of the incorporation is to enable the Southern Ute Indian Tribe and the Southern Ute
Indian Tribe/State of Colorado Environmental Commission to exercise authority with respect to
the incorporated standards. Included among the federal regulations incorporated herein are
certain National Emission Standards for Hazardous Air Pollutants as published and found in 40
C.F.R. Part 61, and certain National Emission Standards for Hazardous Air Pollutants for Source
Categories as published and found in 40 C.F.R. Part 63.
4-102. Incorporation of NESHAP by Reference.
The following United States Environmental Protection Agency regulations on National Emission
Standards for Hazardous Air Pollutants, published as of November 9, 2022, not including any
later amendments, are adopted by the Commission and incorporated by reference into this
Reservation Air Code. All new and existing sources of air pollution shall comply with the
standards, criteria, and requirements set forth in the incorporated regulations. For the purpose of
this Part, the word “Administrator” as used in the incorporated regulations means both the
Administrator of the Environmental Protection Agency or his authorized representative and the
Tribe.
40 C.F.R. Part 61, Subpart A
General Provisions
40 C.F.R. Part 61, Subpart M
National Emission Standard for Asbestos
40 C.F.R. Part 61, Subpart V
National Emission Standard for Equipment Leaks (Fugitive
Emission Sources)
(1)
Incorporation of Appendices. The following appendices as revised and
published as of November 9, 2022, not including any later amendments, are
adopted by the Commission and incorporated by reference into this Reservation
Air Code. Copies of the incorporated appendices can be obtained from the
Southern Ute Indian Tribe, Air Quality Program, P.O. Box 737 MS#84, Ignacio,
Colorado 81137.
40 C.F.R. Part 61, Appendix A -
Compliance Status Information
40 C.F.R. Part 61, Appendix B -
Test Methods
66
40 C.F.R. Part 61, Appendix C -
Quality Assurance Procedures
4-103. Incorporation of NESHAP for Source Categories by Reference.
The following United States Environmental Protection Agency regulations on National Emission
Standards for Hazardous Air Pollutants for Source Categories, published as of November 9,
2022, not including any later amendments, are adopted and incorporated by reference into this
Reservation Air Code. All new and existing sources of air pollution shall comply with the
standards, criteria, and requirements set forth in the incorporated regulations. For the purpose of
this Part, the word “Administrator” as used in the incorporated regulations means both the
Administrator of the Environmental Protection Agency or his authorized representative and the
Tribe.
40 C.F.R. Part 63, Subpart A
General Provisions
40 C.F.R. Part 63, Subpart B
Requirements for Control Technology Determinations for
Major Sources in Accordance With Clean Air Act Sections,
Sections 112(g) and 112(j)
40 C.F.R. Part 63, Subpart C
List of Hazardous Air Pollutants, Petitions Process, Lesser
Quantity Designations, Source Category List
40 C.F.R. Part 63, Subpart N
National Emission Standards for Chromium Emissions
from Hard and Decorative Chromium Electroplating and
Chromium Anodizing Tanks
40 C.F.R. Part 63, Subpart Q
National Emission Standards for Hazardous Air Pollutants
for Industrial Process Cooling Towers
40 C.F.R. Part 63, Subpart HH
National Emission Standards for Hazardous Air Pollutants
from Oil and Natural Gas Production Facilities
40 C.F.R. Part 63, Subpart OO
National Emission Standards for Tanks - Level 1
40 C.F.R. Part 63, Subpart HHH
National Emission Standards for Hazardous Air Pollutants
from Natural Gas Transmission and Storage Facilities
40 C.F.R. Part 63, Subpart AAAA
National Emission Standards for Hazardous Air Pollutants:
Municipal Solid Waste Landfills
40 C.F.R. Part 63, Subpart YYYY
National Emission Standards for Hazardous Air Pollutants
for Stationary Combustion Turbines
40 C.F.R. Part 63, Subpart ZZZZ
National Emissions Standards for Hazardous Air Pollutants
for Stationary Reciprocating Internal Combustion Engines
67
40 C.F.R. Part 63, Subpart DDDDD National Emission Standards for Hazardous Air Pollutants
for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters
40 C.F.R. Part 63, Subpart GGGGG National Emission Standards for Hazardous Air Pollutants:
Site Remediation
40 C.F.R. Part 63, Subpart CCCCCC National Emission Standards for Hazardous Air Pollutants
for Source Category: Gasoline Dispensing Facilities
40 C.F.R. Part 63, Subpart JJJJJJ
(1)
National Emission Standards for Hazardous Air Pollutants
for Industrial, Commercial, and Institutional Boilers Area
Sources
Incorporation of Appendices. The following appendices, published as of
November 9 , 2022, not including any later amendments, are adopted by the
Commission and incorporated by reference into this Reservation Air Code.
Copies of the incorporated appendices can be obtained from the Southern Ute
Indian Tribe, Air Quality Program, P.O. Box 737 MS#84, Ignacio, Colorado
81137.
40 C.F.R. Part 63, Appendix A -
Test Methods
40 C.F.R. Part 63, Appendix C -
Determination of the Fraction Biodegraded
(Fbio) in a Biological Treatment Unit
40 C.F.R. Part 63, Appendix D -
Alternative Validation Procedure for EPA
Waste and Wastewater Methods
68
69
History and Amendments
•
Article I and Article II, Part I approved by Southern Ute Indian Tribe/State of Colorado
Environmental Commission on November 12, 2008.
•
Amended June 14, 2010.
•
Amended August 8, 2011.
•
Effective date of Article I and Article II, Part I: March 2, 2012 (77 Fed. Reg. 15267
(2012)), upon approval by EPA.
•
Article I and Article II amended to add certain CAA Section 111 NSPS and CAA Section
112 NESHAP provisions as Article II, Part 2 and Part 3, respectfully; and to correct
formatting, spacing, typographical errors and incorrect reference citations. The
amendments were approved by EPA on September 3, 2013 and delegation for Tribe to
implement and enforce NSPS and NESHAP was granted effective September 6, 2013 (78
Fed. Reg. 40635 (2013)). The amendments were adopted by Southern Ute Indian
Tribe/State of Colorado Environmental Commission as non-controversial revisions on
November 14, 2012 through a direct final rulemaking and became effective on January
28, 2013.
•
Article 2, Part 1 amended to include CAA Section 113 civil penalty assessment criteria
under the enforcement authority of RAC 2-121, reword specific regulatory language for
clarification, and correct typographical errors and incorrect reference citations. The
amendments were adopted by the Southern Ute Indian Tribe/State of Colorado
Environmental Commission as non-controversial revisions on June 3, 2014 through a
direct final rulemaking and became effective on August 23, 2014. The amendments were
approved by EPA on July 16, 2014.
•
Article 1 amended to include CAA Section 114 investigation and information request
authority under RAC 1-105 and cease and desist authority for air pollution emergencies
endangering public health or welfare on the Reservation under RAC 1-106. The
amendments were adopted by the Southern Ute Indian Tribe/State of Colorado
Environmental Commission as non-controversial revisions on October 19, 2015 through
a direct final rule making and became effective December 26, 2015. The amendments
were approved by EPA on January 28, 2016.
•
Amended: January 17, 2022:
Article II, Part 2
Removed language limiting the Tribe’s 40 C.F.R. 60 enforcement primacy
to only Tribally permitted sources.
70
Incorporated 40 C.F.R. 60, Subpart OOOOa. Subpart OOOOa became
effective on August 2, 2016.
o Article II, Part 3:
•
Removed language limiting the Tribe’s 40 C.F.R. 63 enforcement primacy
to only Tribally permitted sources.
Incorporated 40 C.F.R. 63, Subpart DDDDD, Subpart GGGGG, Subpart
CCCCCC, and Subpart JJJJJJ.
Amended: September 15, 2023
o Article I:
Amended to update definition of “Major Source” for consistency with
federal regulations.
Amended to correct one incorrect citation reference.
o Article II: Part 1:
•
Amended to require permittee to use most recent forms developed by the
Tribe when submitting applications and to eliminate the requirement for
the submittal of hard copy written forms.
Amended to remove the certified mail requirements for notification of
completeness determinations on permit applications.
Removed citations referencing the original Title V transition program.
Amended to include a 30-day notification to the Tribe of initial or revised
NSR permits and to clarify time frame for which a Title V permit revision
application shall be submitted following issuance of an initial or revised
NSR permit.
Amended to require permittee to use the most recent forms developed by
the Tribe when submitting initial and annual fee calculation work sheets.
Amended: September 29, 2024
o Amended RAC Article I and Article II: Part 1 to remove Title V operating permit
program provisions based upon the EPA affirmative defense authorities of 40
CFR §70.6(g) following EPA’s finalization on July 21, 2023, of the rulemaking
titled “Removal of Title V Emergency Affirmative Defense Provisions from State
71
Operating Permit Programs and Federal Operating Permit Program”.
Associated revisions include:
Article I:
•
Article II: Part 1:
•
•
Removal of the definition of “Emergency to remove language
analogous to §70.6(g)(1).
Removed RAC section 2-117, “Emergency Situations to remove
permit provisions analogous to §70.6(g)(2).
Amended: October 29, 2025
o Article II, Part 3, Section 3-102, Incorporation of NSPS by Reference:
•
Added New Source Performance Standard Subpart OOOOb,
unchanged, and as published as of July 31, 2025.
•
Amended “published as of” date from November 9, 2022 to July
31, 2025.
•
Amended the effective end date of NSPS Subpart OOOOa to
December 6, 2022.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.