# Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Asouthern_ute%3Abb7113f1eb117f0e

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

12926

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

when the Agency decides not to use
available and applicable VCS.
This action does not involve changes
to the technical standards related to test
methods or monitoring methods; thus,
the requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272) do not apply.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
This proposed rule does not involve
special consideration of environmental
justice-related issues as required by
Executive Order 12898, Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations (59 FR 7629, February 16,
1994), because it does not change any
regulatory requirements. This action
merely corrects and clarifies existing
requirements.
List of Subjects in 40 CFR Part 63
Administrative practice and
procedure, Air pollution control,
Hazardous substances, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements.
Dated: March 1, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011–5195 Filed 3–8–11; 8:45 am]
BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION
AGENCY

erowe on DSK5CLS3C1PROD with PROPOSALS-1

40 CFR Part 70
[EPA–R08–OAR–2011–0015; FRL–9277–9]

Clean Air Act Proposed Interim
Approval of Title V Operating Permits
Program; Southern Ute Indian Tribe
AGENCY: Environmental Protection

Agency (EPA).
ACTION: Proposed rule.

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

SUMMARY: The EPA proposes interim

approval of the Title V Operating
Permits Program submitted by the
Southern Ute Indian Tribe (Tribe). The
Tribe’s Title V Operating Permit
Program (Title V Program) was
submitted for the purpose of
administering a tribal program for
issuing operating permits to all major
stationary sources, and certain other
sources on the Southern Ute Indian
Reservation (Reservation).
DATES: Comments on this proposed
action must be received on or before
April 8, 2011. Comments should be
addressed to the contact indicated
below.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2011–0015, by one of the
following methods:
• http://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: lebow-aal.deborah@epa.gov
and north.alexis@epa.gov.
• Mail: Deborah Lebow Aal, Acting
Director, Air Program, Environmental
Protection Agency (EPA), Region 8,
Mailcode 8P–AR, 1595 Wynkoop Street,
Denver, Colorado 80202–1129.
• Hand Delivery: Deborah Lebow Aal,
Acting Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mailcode 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129. Such deliveries are only
accepted Monday through Friday, 8 a.m.
to 4:30 p.m., excluding Federal
holidays. Special arrangements should
be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2011–
0015. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at http://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through http://
www.regulations.gov or e-mail. The
http://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA, without going through http://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment

PO 00000

Frm 00040

Fmt 4702

Sfmt 4702

that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at http://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the http://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly-available docket
materials are available either
electronically in http://
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Alexis North, Air Program, Mailcode
8P–AR, Environmental Protection
Agency, Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202–1129,
(303) 312–7005, or
north.alexis@epa.gov.
SUPPLEMENTARY INFORMATION:

Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The word Act or initials CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
(ii) The word Commission means the
joint Southern Ute Indian Tribe/State of
Colorado Environmental Commission.
(iii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iv) The word Title V Program means
the Tribe’s Application for Approval of
the Southern Ute Indian Tribe’s 40 CFR
Part 70 Operating Permit Program dated

E:\FR\FM\09MRP1.SGM

09MRP1

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules
January 14, 2009 and the subsequent
Supplement to Application for Approval
of the Southern Ute Indian Tribe’s 40
CFR Part 70 Operating Permit Program
dated September 28, 2010.
(v) The word Tribe means the
Southern Ute Indian Tribe, unless the
context indicates otherwise.
Table of Contents
I. General Information
A. What Should I Consider as I Prepare My
Comments for EPA?
1. Submitting CBI
2. Tips for Preparing Your Comments
II. What is Being Addressed in This
Document?
III. Evaluation of the Tribe’s Authorities
A. Current Tribal Authority
B. Reasonably Severable Title V Program
Elements
C. Criminal Enforcement Memorandum of
Understanding
IV. Evaluation of the Tribe’s Title V Program
Elements
A. Analysis of the Tribe’s Title V Program
Submission pursuant to 40 CFR 70.4(b)
1. Complete Title V Program Description
2. Regulations Compromising the Title V
Program
3. Legal Opinion
4. Relevant Title V Program Documentation
5. Compliance Tracking
6. Application Completeness
Determination
7. Fee Demonstration
8. Statement of Adequate Personnel
9. Submission Commitment
10. Failure to Issue Permit in a Timely
Manner
11. Transition Plan
12. Off Permit Changes
13. Expeditious Permit Revisions and/or
Modifications Review
14. Tribe Only Revisions
15. Permit Changes Subject to Title I and
IV of the Act
16. Permit Content and Permit Issuance,
Renewal, Re-openings and Revisions
B. Options for Approval/Disapproval and
Implications
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

erowe on DSK5CLS3C1PROD with PROPOSALS-1

I. General Information
A. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through http://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD ROM that
you mail to EPA, mark the outside of the
disk or CD ROM as CBI and then
identify electronically within the disk or
CD ROM the specific information that is
claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
a. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
b. Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
c. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
d. Describe any assumptions and
provide any technical information and/
or data that you used.
e. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
f. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
g. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
h. Make sure to submit your
comments by the comment period
deadline identified.
II. What is being addressed in this
document?
Under Title V of the Clean Air Act
(the Act or CAA) as amended (1990),
EPA has promulgated rules that define
the minimum elements of an interim
approval of a Title V operating permits
program for state and tribal permitting
authorities. The corresponding
standards and procedures by which the
EPA will approve, oversee, and
withdraw approval of state and tribal
Title V operating permits programs can
be found at 57 FR 32250 (July 21, 1992)
and 63 FR 1322 (January 10, 2000) and
codified at 40 CFR part 70.
In addition, as part of the 1990
Amendments to the CAA, Congress
enacted Section 301(d) authorizing EPA
to ‘‘treat Indian tribes as states’’ under
the Act so that tribes may develop and
implement CAA programs in a similar
manner as states within tribal
reservations or in other areas subject to
tribal jurisdiction. Section 301(d)(2) of
the Act authorizes EPA to promulgate
regulations specifying those provisions
of the CAA ‘‘for which it is appropriate
to treat Indian tribes as States.’’ 42
U.S.C. 7601(d)(2).
On February 12, 1998, EPA issued a
final rule specifying those provisions of
the CAA for which it is appropriate to

PO 00000

Frm 00041

Fmt 4702

Sfmt 4702

12927

treat eligible Indian tribes in a similar
manner as states, known as the Tribal
Authority Rule (TAR). 63 FR 7254,
codified at 40 CFR part 49. As a general
matter, EPA determined in the TAR that
it is not appropriate to treat Indian
tribes in a similar manner as states for
purposes of specific CAA program
submittal and implementation
deadlines. This is because, among other
reasons (discussed at 59 FR at 43,964–
65), although the CAA contains many
provisions mandating the submittal of
state plans, programs, or other
requirements by certain dates, the Act
does not similarly require Indian tribes
to develop and seek approval of CAA
programs.
Thus, Indian tribes are generally not
subject to CAA provisions that specify
a deadline by which something must be
accomplished, e.g., provisions
mandating the submission of state Title
V operating permits programs under
sections 502(d)(1), 502(d)(2)(B), and
502(d)(3)of the Act. 40 CFR 49.4.
A tribe that meets the eligibility
criteria for treatment in a similar
manner as a state (TAS) may, however,
choose to implement a CAA program. A
tribe may also submit reasonably
severable portions of a CAA program, if
it can demonstrate that its proposed air
program is not integrally related to
program elements not included in the
plan submittal and is consistent with
applicable statutory and regulatory
requirements. 40 CFR 49.7(c); see also
CAA section 110(o). This modular
approach is intended to give Indian
tribes the flexibility to address their
most pressing air quality issues and
acknowledges that Indian tribes often
have limited resources with which to
address their environmental concerns.
Consistent with the exceptions listed in
40 CFR 49.4, once submitted, an Indian
tribe’s proposed air program will be
evaluated in accordance with applicable
statutory and regulatory criteria in a
manner similar to the way EPA would
review a similar state submittal. 40 CFR
49.9(h).
EPA expects Indian tribes to fully
implement and enforce their approved
CAA programs and, as with states, EPA
retains its authority to impose sanctions
for failure to implement an approved air
program. See 59 FR 43,956 at 43,965
(Aug. 25, 1994) (explaining EPA’s
rationale for treating Indian tribes in a
similar fashion as states for purposes of
mandatory sanctions for failure to
adequately implement an approved part
D program (CAA 179(a)(4)) and with
respect to EPA’s discretionary authority
to impose sanctions (CAA 110(m)); 40
CFR 49.3.

E:\FR\FM\09MRP1.SGM

09MRP1

12928

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

The CAA allows Indian tribes to
develop and submit Title V operating
permit programs to EPA at their own
discretion. The EPA’s Title V operating
permit program review occurs pursuant
to section 502 of the Act and the part
70 regulations, which together outline
criteria for interim approval, full
approval or disapproval. The Tribe has
requested such approval and this action
is in response to that request.

erowe on DSK5CLS3C1PROD with PROPOSALS-1

III. Evaluation of the Tribe’s
Authorities
The EPA completed a review of the
Tribe’s current and pending authority to
regulate air pollution sources located
within the exterior boundaries of the
Reservation. Under section 301(d) of the
CAA and the TAR, EPA may treat a tribe
in a similar manner as a state for
purposes of administering certain CAA
programs or grants if the tribe
demonstrates that: (1) It is a federallyrecognized tribe; (2) it has a governing
body carrying out substantial
governmental duties and powers; (3) the
functions to be exercised by the tribe
pertain to the management and
protection of air resources within the
exterior boundaries of the reservation
(or in other areas under the tribe’s
jurisdiction); and (4) it can reasonably
be expected to be capable, in EPA’s
judgment, of carrying out the functions
for which it seeks approval, consistent
with the CAA and applicable
regulations. The sections below outline
the details of EPA’s review of the Tribe’s
authorities.
A. Current Tribal Authority
In July 1998 the Southern Ute Indian
Tribe applied for TAS seeking approval
to administer a CAA Title V air quality
operating permit program throughout
the Reservation. The State of Colorado
challenged the Tribe’s CAA TAS
application, asserting that the Act of
May 21, 1984, Public Law 98–290, 25
U.S.C. 668, which defined the
boundaries of the Reservation,
established the State’s jurisdiction to
regulate non-Indian-owned air pollution
sources located on fee lands within the
Reservation. The Tribe and the State,
while continuing to disagree over who
has jurisdiction over these sources,
formed the Southern Ute Indian Tribe/
State of Colorado Environmental
Commission (Commission), and
executed an intergovernmental
agreement (IGA) on December 13, 1999,
to establish a single air quality program
applicable to all lands within the
exterior boundaries of the Reservation.
In general, the IGA allows for the
Tribe to implement and administer CAA
programs, on a Reservation-wide basis,

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

through the joint Commission. It also
provides that the State will support the
Tribe’s CAA TAS application as long as
it is consistent with the IGA. Congress
then passed the Southern Ute and
Colorado Intergovernmental Agreement
Implementation Act of 2004, Pub. L. No.
108–336 on October 18, 2004, which
codifies the basic framework of the IGA,
and authorizes EPA to grant TAS
authority to the Tribe for air programs
submitted under CAA section 301(d).
The Tribe has previously received TAS
approval on April 26, 2000, for the
purposes of grant funding under CAA
Section 105.
On January 20, 2009, the Tribe
submitted its CAA program TAS
Application together with the Tribe’s
initial Title V Program. On July 14,
2009, EPA found the Tribe’s CAA
program TAS application to be
administratively complete. This finding
means the Tribe’s CAA program TAS
application satisfied the four necessary
elements outlined above that the Tribe
must demonstrate as part of the TAR.
EPA will continue to review the Tribe’s
TAS application per 40 CFR 49.9(b). At
the conclusion of this comment period,
the Region will make a determination
on the Tribe’s CAA program TAS
application prior to the final rulemaking
for the Tribe’s Title V Program.
B. Reasonably Severable Title V
Program Elements
As previously discussed in Section II
above, the TAR allows for Indian tribes
to seek approval of partial elements of
CAA programs as long as those portions
are determined to be reasonably
severable elements. 40 CFR 49.7(c). For
the purposes of the Tribe’s Title V
Program it has been determined that the
Acid Rain Program at Title IV of the
CAA is severable. At this time, there are
no Acid Rain emission sources located
within the exterior boundaries of the
Reservation, nor are there any pending
applications for sources. In addition, it
has been determined that underlying
federal regulations at CAA sections 111
(Standards of Performance for New
Stationary Sources) and 112 (National
Emissions Standards for Hazardous Air
Pollutants) are also reasonably
severable. However, the Tribe has
committed in a letter to EPA to
incorporate by reference these standards
and requirements into the Reservations
Air Code and pursue authorization from
EPA for those CAA programs. These
delegations are not part of this action
and will occur at a later date.

PO 00000

Frm 00042

Fmt 4702

Sfmt 4702

C. Criminal Enforcement Memorandum
of Understanding
The TAR provides for a federal role in
criminal enforcement of a tribal program
when the CAA or its implementing
regulations mandate criminal
enforcement authority and the applicant
tribe is precluded from exercising such
authority. 40 CFR 49.7(a)(6) and 49.8. In
these circumstances, the TAR allows
EPA to approve a tribal application if
the tribe enters into a Memorandum of
Agreement with EPA that provides for
the Federal government to exercise
primary criminal enforcement
responsibility. Id. These provisions of
the TAR recognize that federal law
places certain limitations on tribal
criminal jurisdiction and sanctions. The
IGA reached between the Tribe and the
State of Colorado contemplates that EPA
will exercise criminal enforcement
within the Reservation boundary for air
pollution violations.
On February 10, 2009, the Tribe and
EPA entered into a Memorandum of
Agreement (MOA) which provides a
procedure by which the Tribe will
supply potential investigative leads to
the federal government in an
appropriate and timely manner when
the Tribe is precluded from asserting
criminal enforcement authority.
IV. Evaluation of the Tribe’s Title V
Program Elements
EPA conducted a thorough review of
the Tribe’s Title V Program according to
40 CFR 70.4(b) Elements of the initial
program submission. It was critical that
the Tribe’s Title V Program address each
of the 16 elements outlined in 40 CFR
70.4(b). Upon review, EPA concluded
that the 16 elements found at 40 CFR
70.4(b) were addressed by the Tribe’s
Title V Program.
A. Analysis of the Tribe’s Title V
Program Submission per 40 CFR 70.4(b)
1. Complete Title V Program Description
The Southern Ute Indian Tribe
submitted an initial and a supplemental
Title V Program to EPA on January 20,
2009 and September 28, 2010
respectively. The Title V Program
submittals include a legal opinion from
the Tribe’s legal counsel stating that the
laws of the Tribe and Southern Ute
Indian Tribe/State of Colorado
Environmental Commission provide
adequate legal authority to carry out all
aspects of the Title V Program, and a
description of how the Tribe intends to
implement the Title V Program.
EPA comments noting deficiencies in
the Tribe’s initial January 20, 2009 Title
V Program submittal were sent to the
Tribe in a letter dated December 23,

E:\FR\FM\09MRP1.SGM

09MRP1

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

erowe on DSK5CLS3C1PROD with PROPOSALS-1

2009. The deficiencies were segregated
into those that require corrective action
prior to Title V Program approval, and
those that, if addressed, would serve to
strengthen the Title V Program, but were
not necessary for approval.
In the September 28, 2010
supplemental Title V Program
application, the Tribe addressed the
deficiencies that required corrective
action prior to Title V Program approval
as well as those that served to
strengthen the Title V Program. EPA has
reviewed these changes and has
determined that they are adequate to
allow for Title V Program interim
approval pursuant to 40 CFR 70.4(a).
Upon review of the Supplement to
Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
September 28, 2010, a few minor errors
were discovered that do not impact the
Tribe’s ability to implement the Title V
Program but must be addressed. The
Title V Program meets the minimum
requirements of 40 CFR 70.4(d).
2. Regulations Comprising the Title V
Program
The Tribe’s Title V Program,
including the operating permit
regulations (Supplement to Application
for Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code, Articles I and
II), meets the requirements of 40 CFR
70.4(b)(2) including evidence of
procedurally correct adoption of the
Tribe’s Reservation Air Code as well as
public notice and comments on its
adoption. Additionally, the Tribe’s Title
V Program satisfies the requirements
outlined in 40 CFR 70.2 and 70.3 with
respect to applicability; 40 CFR 70.4,
70.5, and 70.6 with respect to permit
content including operational
flexibility; 40 CFR 70.5 with respect to
complete application forms and criteria
which define insignificant activities; 40
CFR 70.7 with respect to public
participation and minor permit
modifications; 40 CFR 70.8 with respect
to permit review by EPA and affected
states; 40 CFR 70.9 with respect to
demonstrating adequate fees will be
collected to cover the Title V Program
costs; 40 CFR 70.10 with respect to
federal oversight and sanctions; and 40
CFR 70.11 with respect to requirements
for enforcement authority.
3. Legal Opinion
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(3). The
Tribe’s Independent Legal Counsel,
Maynes, Bradford, Shipps & Sheftel,
LLP Attorneys at Law, submitted an

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

initial and a supplemental legal opinion
in both the initial and supplemental
Title V Program applications
(Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
January 14, 2009 and Supplement to
Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
September 28, 2010). The signature of
the Tribe’s legal counsel, Sam Maynes
of Maynes, Bradford, Shipps & Sheftel,
LLP Attorneys at Law, has full authority
to independently represent the Tribe in
court on all matters pertaining to the
Tribe’s Title V Program. The legal
opinion includes a demonstration of
adequate legal authority to carry out the
requirements of this part, including
authority to carry out those activities
listed at 40 CFR 70.4(b)(3)(i) through
(xiii).
4. Relevant Title V Program
Documentation
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(4). The
Tribe submitted extensive application
forms (Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
January 14, 2009, Tab 4, Program Forms)
for review as well as comprehensive
instructions for each form.
5. Compliance Tracking
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(5). The
Tribe submitted multiple compliance
assurance procedures and guidelines
(Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
January 14, 2009, Tab 5, Compliance
Tracking).
6. Application Completeness
Determination
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(6). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Sections 2–106(3) and 2–107(1)(a)
demonstrates adequate authority and
procedures to determine within 60 days
of receipt whether applications
(including renewal applications) are
complete, to request such other
information as needed to process the
application, and to take final action on
complete applications within 18 months
of the date of its submittal, except for
initial permit applications, for which
the part 70 permitting authority may

PO 00000

Frm 00043

Fmt 4702

Sfmt 4702

12929

take up to 3 years from the effective date
of the Title V Program to take final
action on the application, as provided
for in 40 CFR 70.4(b)(11)(ii).
7. Fee Demonstration
The Tribe’s Title V Program included
a fee accounting including projected fee
collection and programmatic costs
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
11, Revised Fee Demonstration, Figure 1
page 8 and Table 2 page 9) that set fees
above the presumptive minimum set
forth in 40 CFR 70.9. Specific fee
provisions included $50.00 + CPI
(Consumer Price Index) for all fee
pollutants released in a calendar year
pursuant to the Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code), Article II,
Section 2–119. The Tribe’s Title V
Program clearly demonstrates a fee
schedule that results in the collection
and retention of revenues sufficient to
cover the Title V Program costs. In
addition, the fee schedule contains an
initial accounting of how required fee
revenues are sufficient to cover Title V
Program costs.
8. Statement of Adequate Personnel
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(8). The
Tribe submitted a statement that
adequate personnel and funding have
been made available to develop,
administer, and enforce the Title V
Program (Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
10, 40 CFR 70.4(b)(8)). In addition, the
Tribe has provided a supplemental
staffing plan (January 4, 2011 email
from Brenda Jarrell) that outlines a staff
of six individuals including a senior
level engineering position.
9. Submission Commitment
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(9). The
Tribe submitted a commitment
(Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
January 14, 2009, Tab 9, 40 CFR
70.4(b)(9)) to submit, at least annually to
the Administrator, information
regarding the Tribe’s enforcement
activities including, but not limited to,
the number of civil, judicial and
administrative enforcement actions
either commenced or concluded; the

E:\FR\FM\09MRP1.SGM

09MRP1

12930

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

penalties, fines, and sentences obtained
in those actions; and the number of
administrative orders issued.
10. Failure To Issue Permit in a Timely
Manner
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(10). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Sections 2–106 and 2–107 are consistent
with requirements outlined in 40 CFR
70.5(a)(2) and 70.6(f).
11. Transition Plan
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(11). The
Tribe submitted a comprehensive
Revised Transition Plan (Supplement to
Application for Approval of the
Southern Ute Indian Tribe’s 40 CFR Part
70 Operating Permit Program dated
September 28, 2010, Tab 12, Revised
Transition Plan) which outlines a plan
and schedule for submittal and final
action on initial permit applications for
all part 70 sources within the exterior
boundaries of the Reservation.
12. Off Permit Changes
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(12). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Sections 2–110, 2–111 and 2–116 are
provisions allowing for changes within
a permitted facility without requiring a
permit revision, if the changes are not
modifications under any provision of
title I of the Act and the changes do not
exceed the emissions allowable under
the Part 70 permit, provided the facility
provides written notification as required
in 40 CFR 70.4(b)(12).

erowe on DSK5CLS3C1PROD with PROPOSALS-1

13. Expeditious Permit Revisions and/or
Modifications Review
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(13). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Section 2–111 provides for adequate,
streamlined and reasonable procedures
for expedited review of permit revisions
or modifications.

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

14. Tribe Only Revisions
The Tribe’s Title V Program does not
allow changes that are not addressed or
prohibited as described in 40 CFR
70.4(b)(14). Thus, this section does not
apply to the Tribe’s Title V Program.
15. Permit Changes Subject to Title I
and IV of the Act
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(15). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Section 2–116(2) prohibits 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.
16. Permit Content and Permit Issuance,
Renewal, Re-Openings and Revisions
The Tribe’s Title V Program meets the
requirements of 40 CFR 70.4(b)(16). The
Tribe’s Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) Article II,
Sections 2–107, 2–110 and 2–112
requires the Tribe’s Title V Program to
implement the requirements of 40 CFR
70.6 and 70.7.
B. Options for Approval/Disapproval
and Implications
The EPA is proposing to grant interim
approval to the Tribe’s Title V Program.
The Tribe must make the following
changes to the Reservation Air Code
(Supplement to Application for
Approval of the Southern Ute Indian
Tribe’s 40 CFR Part 70 Operating Permit
Program dated September 28, 2010, Tab
5, Reservation Air Code) in order to
receive full Title V Program approval.
(1) Modify the ‘‘Emission unit’’
definition to include pollutants listed
under 112(b) of the Act; and
(2) Modify the ‘‘Major source’’
definition to include the updated
definition for purposes of regulating
greenhouses gasses as part of the
Prevention of Significant Deterioration/
Title V Greenhouse Gas Tailoring Rule
(GHG Tailoring Rule). See 75 FR 106 at
31514–31608 (June 3, 2010); and
The correction to the ‘‘Emission unit’’
definition is intended to clarify and
make the Tribe’s program consistent.
The Tribe has the authority to regulate
pollutants listed under 112(b) of the Act

PO 00000

Frm 00044

Fmt 4702

Sfmt 4702

through their ‘‘Major source’’ and
‘‘Regulated air pollutant’’ definitions.
Accordingly, the ‘‘Emission Unit’’
definition should include 112(b)
pollutants to have consistent definitions
in the Title V Program.
The correction to the ‘‘Major source’’
definition is intended to narrow the
sources that will require Title V review
for greenhouse gasses (GHGs) after July
1, 2011. With this modification, the
Tribe is afforded flexibility to issue Title
V operating permits to sources with
GHG emissions in a manner consistent
with the Federal regulations as set out
in the GHG Tailoring Rule.
This proposed interim approval,
which may not be renewed, would
extend for a period of up to two years.
Permits issued under a Title V operating
permits program with interim approval
have full standing with respect to part
70, and the one year time period for
submittal of permit applications by
subject sources begins upon interim
approval, as does the three-year time
period for processing the initial permit
applications.
The Tribe shall submit to EPA
changes to the Title V Program
addressing the deficiencies specified in
the interim approval no later than 8
months prior to the expiration of the
interim approval. 40 CFR 70.4(f)(2). The
EPA can disapprove the Tribe’s Title V
Program if the specified changes are not
made within the specified timeframe.
V. What action is EPA taking?
EPA is providing an opportunity for
public comment on our intent to grant
interim approval to the Southern Ute
Indian Tribe’s Title V Program.
VI. Statutory and Executive Order
Reviews
Today’s action merely proposes EPA’s
intent to grant interim approval to the
Tribe’s Title V Program and does not
impose additional requirements beyond
those imposed by tribal law. For that
reason, this action:
• Does ensure ‘‘meaningful and
timely input by tribal officials in the
development of regulatory policies that
have tribal implications’’ as required in
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000).
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);

E:\FR\FM\09MRP1.SGM

09MRP1

Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Proposed Rules

erowe on DSK5CLS3C1PROD with PROPOSALS-1

• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);

VerDate Mar<15>2010

15:03 Mar 08, 2011

Jkt 223001

• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and

PO 00000

Frm 00045

Fmt 4702

Sfmt 9990

12931

• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
Dated: March 2, 2011.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2011–5342 Filed 3–8–11; 8:45 am]
BILLING CODE 6560–50–P

E:\FR\FM\09MRP1.SGM

09MRP1

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Asouthern_ute%3Abb7113f1eb117f0e. Public record. Not legal advice.