Agreement for Delegation of Partial Administrative Authority of Certain

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Federal Clean Air Act Indian Country Programs to the Southern Ute

Indian Tribe by the United States Environmental Protection Agency

This Agreement for Delegation of Partial Administrative Authority (Agreement) between the

Southern Ute Indian Tribe (Tribe or SUIT) and the U.S. Environmental Protection Agency

(EPA), sets forth the legal and procedural basis for the EPA's partial delegation of authority to

the Tribe to assist the EPA in administering the following two federal Clean Air Act (CAA)

programs: (l) the Federal Minor New Source Review Program in Indian country, 40 Code of

FederalRegulations (C.F.R.) Part49, Subpart C, Sections 49.151through 49.164 (EPA Indian

country MNSR Program), and (2) the Federal Implementation Plan for Managing Air Emissions

from True Minor Sources in Indian Country in the Oil and Natural Gas Production and Oil and

Natural Gas Processing Segments of the Oil and Natural Gas Sector,40 C.F.R. Part49, Subpart

C, Sections 49.101 through 49.105 (EPA Indian country Minor Source Oil and Gas FIP).

Together, those two delegated programs comprise the SUIT Indian country MNSR Program.

Purpose

The purpose of this Agreement is to partially delegate certain administrative

responsibilities and authorities of the EPA Indian country MNSR Program and the EPA

Indian country Minor Source Oil and Gas FIP to the Tribe. Upon the effective date of this

Agreement, the EPA delegates to the Tribe the authority to administer the SUIT Indian

country MNSR Program on behalf of the EPA on all lands within the Southern Ute Indian

Reservation (Reservation), with certain exceptions as explained below. For example, the

EPA Indian country MNSR Program states that enforcement of that program is not

delegable to tribes through the administrative delegation process. Further, the Tribe did

not seek administrative delegation of enforcement of either of the two CAA programs.

II.

Legal Authority

The CAA authorizes the EPA to promulgate regulations to protect air quality

within Indian country. See, e.g., sections 301(a) and 301(d)(4) of the Act.

Accordingly, the EPA has promulgated the EPA Indian country MNSR Program

and the EPA Indian country Minor Source Oil and Gas FIP.

Pursuant to 40 C.F.R. section 49.161, the EPA may partially delegate to a Tribe

the authority to assist the EPA in administering the EPA Indian country MNSR

Program.

Pursuant to 40 C.F.R. section 49.103, the EPA may delegate to a Tribe the

authority to assist the EPA in administering the EPA Indian country Minor Source

Oiland Gas FIP.

The Southern Ute Indian Tribe had the authority to submit its administrative

delegation request by virtue of (l) the Southern Ute Indian Tribe/State of

Colorado Environmental Commission's request that the Tribe submit a request for

an administrative delegation of the EPA Indian country MNSR Program and the

EPA Indian country Minor Source Oil and Gas FIP and (2) the Southern Ute

Indian Tribal Council's adoption of a resolution authorizing submittal of the

Tribe's request. Resolution No.20l9-01 of the Southem Ute Indian Tribe/State of

Colorado Environmental Commission (April 24,2019); Resolution No. 2020-052

of the Councilof the Southern Ute Indian Tribe (Apri128,2020).

III.

Pursuant to federal law, EPA regulations, tribal law, and state law, the Tribe has

authority to conduct activities in support of this delegation. Southern Ute and

Colorado Intergovernmenîal Agreement Implementation Act of 2004, Act of

October 18,2004, Pub. L. No. 108-336, 118 Stat. 1354-56 (federal law);40 C.F.R

$ 49. I 6l and 40 C.F.R. $ 49. 103 (EPA regulations); Resolution No. 00-09 of the

Council of the Southem Ute Indian Tribe (Jan. 18, 2000) and Art. l; Art. VII, Sec.

I (n), and Art. X, Sec. 1(c), Constitution of the Southern Ute Indian Tribe of the

Southern Ute Indian Reservation, Colorado (tribal law); and C.R.S. $$ 24-62-101

and25-7-1301 to 1309 (state law).

This Agreement neither creates nor diminishes any authority otherwise established

by tribal or federal law.

Delegated Provisions of the EPA Indian country MNSR Program

Below is the list of the provisions of the EPA Indian country MNSR Program

delegated to the Tribe, pursuant to which the Tribe will assist the EPA in

implementing that program. This delegation includes signature authority.

40 C.F.R. ö 49.151 . Prosram Overview. Under this section, the Tribe will, among other

things, serve as the reviewing authority, receive and process permit applications, and

issue permits or deny permit applications.

40 C.F.R. ô 49-l5,LPqmit ABp[cation Requirements. Under this section, the Tribe will,

among other things, serve as the reviewing authority, receive and process permit

applications, and issue permits or deny permit applications.

40 C.F.R. $ 49.155. Permit Requirements. Under this section, the Tribe will, among other

things, serve as the reviewing authority for issuing permits in compliance with this

provision and administering permits as authorized (e.9., conducting inspections).

40 C.F.R. I 49.156. General Permits and Permits by Rule. Under this section, the Tribe

will, among other things, serve as the reviewing authority for the development, issuance,

and administration of general permits or permits by rule, if any.

40 C.F.R. ö 49.157. Public Participation Requirements. Under this section, the Tribe will,

among other things, serve as the reviewing authority for conducting the required public

participation process.

40 C.F.R. 6 49.158. Svnthetic Minor Source Permits. Under this section, the Tribe will,

among other things, serve as the reviewing authority for purposes of synthetic minor

source permitting.

40 C.F.R. $ 49.159. FinalPermit Issuance and Administrative and Judicial Review. Under

this section, the Tribe will, among other things, serve as the reviewing authority for

purposes of final permit issuance, but not for purposes of administrative or judicial

review.

40 C.F.R. $ 49.160. Registration Program for Minor Sources in Indian Country. Under

this section, the Tribe will, among other things, serve as the reviewing authority for (l)

receiving the Part 1 Registration Forms submitted by owners and operators; (2) receiving

the Part 2 Registration Forms submitted by owners and operators; (3) receiving additional

reports submitted by owners and operators after registration of their sources.

40 C.F.R. { 49.162. Air Ouality Permit bv Rule for New or Modified True Minor Source

Auto Body Repair and Miscellaneous Surface Coating Operations in Indian Country.

Under this section, the Tribe will, among other things, serve as the reviewing authority for

(l) receiving and processing permit applications, and issuing permits or denying permit

applications; and (2) determining compliance with all applicable provisions within the

permit by rule.

40 C.F.R. $ 49.163. Air Oualitv Permit by Rule for New or Modified True Minor Source

Petroleum Dry Cleaning Facilities in Indian Country. Under this section, the Tribe will,

among other things, serve as the reviewing authority for (1) receiving and processing

permit applications, and issuing permits or denying permit applications; and (2)

determining compliance with all applicable provisions within the permit by rule.

40CFR 6 49.164. Air Ou¡litv Permif hv

le for New or Modified True Minor Sorrrce

Gasoline Dispensing Facilities in Indian Country. Under this section, the Tribe will, among

other things, serve as the reviewing authority for (l) receiving and processing permit

applications, and issuing permits or denying permit applications; and (2) determining

compliance with all applicable provisions within the permit by rule.

IV.

Delegated Provisions of the EPA Indian country Minor Source Oil and Gas FIP

Below is the list of the provisions of the EPA Indian country Minor Source Oil and

Gas FIP delegated to SUIT, pursuant to which SUIT will assist the EPA in

implementing that program.

40 C.F.R. $ 49.104. Requirements Regarding Threatened or Endangered Species and

Historic Properties. Under this section, the Tribe will, among other things: (l) serve as the

reviewing authority for receiving documentation submitted by owners and operators to

demonstrate compliance with this provision; (2) provide the determinations of (A)

satisfactory completion of the screening procedures; or (B) submitted documentation is

inadequate and additional information is needed; and (3) serve as the reviewing authority,

providing letters to owners and operators indicating that they have adequately completed

the screening procedures necessary to submit the Part I Registration Form under

$49.160(c)(1)(iv) and begin construction under this FIP.

40 C.F.R. S 49.105. Requirements. Under this section, the Tribe will, among other things

conduct inspections for compliance with the requirements of this provision.

Inspections & Investigations

The Tribe is delegated authority to conduct inspections and investigations on the

Reservation to evaluate compliance with the SUIT Indian country MNSR

Program. For example, the Tribe may conduct compliance inspections of minor

sources of air pollution registered or permitted under the SUIT Indian country

MNSR Program, including but not limited to oil and gas operations, gravel pits,

automobile surface coating, and additional permitted sources. Similarly, the Tribe

may investigate sources it believes may be subject to permitting or registration

under the SUIT Indian country MNSR Program.

Inspections and investigations conducted under this Agreement are authorized

only within the boundaries of the Reservation.

An inspection or investigation by a Tribal inspector is the review of a facilities'

applicable CAA regulatory requirements, the physical observation of conditions,

and the gathering of evidence to document compliance or non-compliance with

applicable requirements. Inspection reports may make recommendations

concerning compliance but these recommendations are not a determination of

compliance with federal law by the Tribe. The EPA will be responsible for frnal

compl iance determinations.

The results of inspections and investigations carried out by Tribal inspectors may

be used by EPA in follow-up compliance monitoring and enforcement actions;

however, the EPA is responsible for subsequent enforcement action. To the extent

practicable, the EPA will coordinate with the Tribe prior to initiating any

enforcement action within the boundaries of the Reservation, in accordance with

established policies, procedures, and agreements.

A 5-year compliance monitoring strategy (CMS) will be developed and updated as

necessary by the Tribe. The CMS will, among other things, describe the types of

compliance monitoring the Tribe will utilize, describe the Tribe's compliance

monitoring strategy in detail (i.e., identify the facilities the Tribe will inspect and

the schedule for those inspections), describe the Tribal inspector positions that are

qualified and authorizedby the Tribe to conduct the inspections, and outline the

Tribe's reporting obligations. The CMS must be submitted to the EPA for

approval. EPA's approval will not be unreasonably withheld.

The Tribe will conduct inspections and report findings in accordance with the

applicable CMS and the Tribe's Inspector Protocol Manual.

In addition to the recordkeeping and reporting requirements described in the

applicable CMS, the Tribe will maintain fìles of compliance monitoring

inspections in the Tribe's Air Records Management System (ARMS). The Tribe

will maintain the files for a period of at least five years from the date of the

inspections. After this period, the Tribe may retain or destroy the files as needed.

The EPA and the Tribe hereby designate the following persons as the contacts for

inspection activities for their respective program:

Southern Ute:

Daniel Powers, Air Quality Division Director

Southern Ute Indian Tribe, Air Quality Division Environmental Program

365 Ouray Drive

P.O. Box 737,M5#84

Ignacio, Colorado 81 137 -0737

Phone: (970) 563-2265

E-mail: dpowers@southernute-nsn.gov

EPA:

Scott Patefield, Branch Manager

Air & Toxics Enforcement Branch (8ECA-AT)

Enforcement and Compliance Assurance Division

U.S. Environmental Protection Agency Region 8

1595 Wynkoop St.

Denver, Colorado 80202

(303) 3 t2-6248

patefi eld.scott@epa. gov

EPA:

Katelyn Bergl

Air & Toxics Enforcement Branch (8ECA-AT)

Enforcement and Compliance Assurance Division

U.S. Environmental Protection Agency Region 8

1595 Wynkoop St.

Denver, Colorado 80202

Office: (303) 312-6147

gov

E-mail: bersl.kate

AND

RSAirReportEnforcement

E-mail: RSAirRenortEn

ent@epa.gov

The EPA Contact and the Tribal Contact will be the primary contacts between the

EPA and the Tribe regarding inspection activities. The contacts may be changed at

any time with written notice to the other party.

Nothing in this Agreement shall prevent the EPA or the Tribe from offering

compliance assistance to a source owner or operator, if appropriate and

practicable. Compliance assistance efforts may include sharing information and

resources regarding legal requirements as well as offering technical assistance or

support.

VI.

Enforcement

Enforcement of the SUIT Indian country MNSR Program will remain the sole

responsibility of EPA Region 8.

The EPA will promptly (within 60 days) confer with the Tribe about any

compliance monitoring information submitted to the EPA pursuant to the CMS to

discuss the Tribe's findings and, if applicable, the Tribe's recommendations

regarding an enforcement response.

If the EPA and the Tribe disagree about the appropriate enforcement response, the

parties will meet promptly (within 60 days) and work in good faith to discuss and,

if possible, resolve, the disagreement. Nothing in this Agreement shall be

interpreted to limit or constrain the EPA's or the Tribe's enforcement discretion.

The EPA, to the extent practicable, will confer with the Tribe prior to initiating

any enforcement action for sources subject to the SUIT Indian country MNSR

Program located within the Reservation.

The EPA will follow all established Federal policies and procedures, including

policies and procedures issued by the Office of Enforcement and Compliance

Assurance (OECA) and EPA Region 8, in the pursuit of enforcement remedies for

violations of the SUIT Indian country MNSR Program.

The EPA will, on an annual basis, provide the Tribe a report on the status of all air

enforcement actions for sources subject to the SUIT Indian country MNSR

Program located within the Reservation.

The Tribe shall retain the primary authority to enforce upon the New Source

Performance Standards (NSPS) under Clean Air Act Section 11 I and the National

Emission Standards for Hazardous Air Pollutants (NESHAP) under Clean Air Act

Section l12, at minor sources, independent of the SUIT Indian country MNSR

Program, so long as the NSPS and NESHAP standards have been incorporated,

unchanged, into the Reservation Air Code, as required by federal law.

VII. Data and Reporting Requirements

Data and information obtained by the Tribe relating to implementation of the

SUIT Indian country MNSR Program shall be reported to the EPA in summary

format, on an annual basis. This summary information shall include summaries of

permit applications, but shall also include complete copies of draft permits.

Upon request by the Tribe, the EPA shall furnish the Tribe requested information

in its files related to implementation of the SUIT Indian country MNSR Program.

Confidential business information submitted to the Tribe must be claimed as such

by the person submitting the information. Information without a proper claim of

confidential business information may be made available to the public without

further notice.

The Tribe must submit to EPA Region 8 such information as the Region may

reasonably require to ascertain whether the Tribe is implementing and

administering the SUIT Indian country MNSR Program in compliance with the

requirements of the CAA and of the EPA Indian country MNSR Program and the

EPA Indian country Minor Source Oil and Gas FIP.

VIII. Additional Provisions

The Tribe has the technical capability and adequate resources to implement the

SUIT Indian country MNSR Program delegated through this Agreement. As

requested by the Tribe, the EPA will strive to provide technical assistance and

financial resources under existing CAA funding mechanisms to enable the Tribe

to maintain suff,rcient technical capability and adequate resources. If the EPA is

not able to provide adequate technical assistance or financial resources, and as a

result the Tribe is not able to maintain technical capability and adequate

resources, the Tribe may suspend or terminate this Agreement pursuant to section

X.E. below, or the EPA may modify, amend or revoke this Agreement pursuant

to section X.C. below.

If the EPA revokes this Agreement in part or in whole due to the EPA not

providing the Tribe with adequate technical assistance or financial resources, the

EPA will explain its role in the revocation in any published notices concerning

the revocation, and the Tribe may apply in the future for delegation to administer

the SUIT Indian Country MNSR Program. If the Tribe suspends or terminates

this Agreement, pursuant to section X.E. below, because the EPA is not able to

provide adequate technical assistance or financial resources, and if the EPA

subsequently resolves those issues, then the Tribe may seek to reinstate this

Agreement (if previously suspended) or apply again for delegation to administer

the SUIT Indian country MNSR Program (if previously terminated).

The Tribe will provide a process to resolve issues arising between a regulated

entity and the Tribe from the Tribe's decisions or actions relating to their

delegated authority under this Agreement, before raising the issue to the EPA

EPA Region I and the Tribe will maintain open communication about the

SUIT Indian country MNSR Program. Should a dispute arise between the EPA

and the Tribe, best efforts should be made for resolution at the staff level. If

staff are unable to resolve the issue, staff will present the issue in writing to

progressively higher levels of management until consensus is reached. If

consensus cannot be reached, the EPA retains final implementation and

enforcement authority for the SUIT Indian country MNSR Program, and may

modify, amend, suspend or revoke this Agreement pursuant to section X.C.

below.

The Tribe will follow all EPA-issued policies, guidance and determinations

involving implementation of the SUIT Indian country MNSR Program and this

Agreement. The EPA will provide the Tribe with copies of these policies,

guidance, and determinations. Where no current EPA policy or guidance

clearly covers a specific situation, the Tribe and EPA Region 8 shall consult

with each other.

Pursuant to 40 C.F.R. section 49.161(c)(l), this Agreement does not delegate the

EPA Administrator's authority to object to the issuance of a minor NSR permit

under the EPA Indian country MNSR Program.

Retention of records. Under the EPA Indian country MNSR Program, where the

Tribe prepares draft or final permits or receives applications for permit revisions

on behalf of the EPA, the records for each draft and final permit or application for

permit revision must be kept by the Tribe for a period not less than 5 years.

This Agreement is effective upon the date it is signed by both the EPA and the

Tribe (the "effective date").

This Agreement creates no right or benefit, substantive or procedural, enforceable

by law or equity by a third party against the Tribe or the EPA, their officers or

employees, or any other person. This Agreement does not direct or apply to any

person other than the Tribe or the EPA.

If any provision of this Agreement is determined to be invalid or prohibited by

law, that provision shall be ineffective only to the extent of such invalidity or

prohibition, without affecting the validity of the remaining provisions of this

Agreement. The Tribe and the EPA agree to meet and negotiate in good faith to

amend this Agreement in order to cure any such legal defect.

For EPA Indian country MNSR Program permit applications submitted to the

EPA and deemed complete by the EPA prior to the effective date of this

Agreement, the EPA will retain authority to process those applications, and to

approve or deny them. For permit applications submitted to the Tribe after the

effective date of this agreement, and which are not in addition or supplementary to

a permit application previously deemed complete by the EPA, the Tribe will be

responsible for implementing all delegated permitting authorities pursuant to this

Agreement, including but not limited to, acting as the reviewing and approval

authority for permit applications and permit issuances. Upon the effective date of

this Agreement, the Tribe will be responsible for implementing all delegated

authorities pursuant to this Agreement for the EPA Indian country MNSR

Program, including the approval of Part I and Part II registrations, pursuant to 40

CFR $ 49.160. However, in instances in which EPA has approved a Part I

registration prior to the effective date of this agreement, the EPA will be

responsible for the subsequent Part II registration approval.

IX.

Funding

The EPA acknowledges that the Tribe's request for partial administrative

delegation of the EPA Indian country MNSR Program and the EPA Indian

country Minor Source Oil and Gas FIP was submitted on condition that the EPA

would provide adequate grant funding to enable the Tribe's administration of the

programs on the Reservation. The Tribe acknowledges that this Agreement is

neither a fiscal nor a funds obligation document and that nothing in this

Agreement obligates the EPA or the Tribe to expend appropriations or to enter

into any contract, assistance agreement or interagency agreement, or to incur other

financial obligations. Further, the Tribe acknowledges that this Agreement does

not exempt transactions between the EPA and the Tribe from EPA policies

goveming competition for assistance agreements and contracts. Any obligation or

expenditure of funds by the EPA will be subject to the availability of

appropriations and the EPA's discretion in making budgetary determinations. All

obligations and expenditures of funds by the Tribe will be subject to the

availability of appropriations and the Tribe's discretion in making budgetary

determinations. Nothing in this Agreement may be construed to give rise to a

claim for compensation for services performed to further the goals of this

Agreement.

Payments to be made and actions to be taken by the EPA pursuant to this

Agreement are subject to the availability of funds appropriated for such purpose.

No provision of the Agreement shall be interpreted as or constitute a commitment

or requirement that the EPA obligate or pay funds in contravention of the AntiDeficiency Act, 3l U.S.C. $ 1341, or any other applicable provision of law.

Agreement Evaluation, Modification, Amendment or Termination

The EPA and the Tribe will engage in an evaluation of this Agreement upon the

request of either party but no more than once per calendar year or at least once

every five years. This evaluation may include, among other things, identification

of level of effort, description of program activities, costs, evaluation of

complaints, and identification of areas for improvement.

This Agreement may be modified to account for any changes to the EPA Indian

country MNSR Program or the EPA Indian country Minor Source Oil and Gas

FIP promulgated after the effective date of this Agreement. Implementation of

new or revised requirements after the effective date of this Agreement will

remain the sole responsibility of the EPA until this Agreement is modified.

Pursuant to 40 C.F.R. sections 49.103(c)Q) and 49.161 (bX4), this Agreement may

be modified, amended, or revoked, in part or in whole, by the EPA Region 8

Regional Administrator or the EPA Administrator, respectively, after EPA

consultation with the Tribe.

The Tribe may, at any time, submit to the EPA Administrator or Region

Regional Administrator a written request for modification or amendment of this

Agreement.

The Tribe may, at any time, suspend or terminate this Agreement by providing

180 days written notice to the EPA Administrator and the EPA Regional

Administrator.

XI.

Signatures

The EPA and SUIT recognize that each reserve all rights, powers, and remedies

now or hereafter existing in law or in equity, by statute, treaty or otherwise.

Nothing in this Agreement is, or shall be construed, to be a waiver of the

sovereignty of the Tribe or the United States. By entering into this Agreement, the

EPA and the Tribe reserve, and do not waive, any jurisdictional claims relating to

proper application of the CAA or any other matter. This Agreement creates no

rights in third parties, including but not limited to the right to judicial review.

This Agreement may be executed in two or more counterparts, each of which shall

be deemed an original, but all of which together shall constitute one and the same

instrument. In the event that any signature is delivered in a ".pdf'data f,rle or any

other electronic format, such signature shall create a valid and binding obligation

of the party signing this Agreement, with the same force and effect as if such

".pdl' signature page or other electronic signature were an original thereof.

IN WITNESS \ryHEREOF, the Parties have executed this Agreement on the date and year

below.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _ REGION 8

Becker,

Kathleen

D¡gitâlly signed by

Becker, Kathleen

Dale:2024.05.23

09:49:39 -06'00'

KC Becker, Regional Administrator, EPA Region 8

Date

SOUTHERN UTE INDIAII

n J

, Chairman

Date

Ute Indian Tribal Council

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.