[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Rules and Regulations]
[Pages 15267-15273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6205]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[EPA-R08-OAR-2011-0015; FRL-9646-8]
Clean Air Act Full Approval of Title V Operating Permits Program;
Southern Ute Indian Tribe
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating full approval of the Title V Operating
Permits Program submitted by the Southern Ute Indian Tribe (Tribe). The
Tribe's Title V Operating Permit Program (Title V Program) was
submitted for the purpose of administering a tribal program for issuing
operating permits to all major stationary sources, and certain other
sources on the Southern Ute Indian Reservation (Reservation).
DATES: This final rule is effective March 15, 2012, and is applicable
beginning March 2, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2011-0015.
All documents in the docket are listed in the www.regulations.gov
index. Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly-
available docket materials are available either electronically in
www.regulations.gov or in hard copy at the Air Program, Environmental
Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver,
Colorado 80202-1129. EPA requests that if at all possible, you contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Alexis North, Air Program, Mailcode
8ENF-AT, Environmental Protection Agency, Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129, (303) 312-7005, or
[email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The word Act or initials CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The word Commission means the joint Southern Ute Indian Tribe/
State of Colorado Environmental Commission.
(iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iv) the word Title V Program means the Tribe's Application for
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permit Program dated January 14, 2009, the subsequent Supplement to
Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part
70 Operating Permit Program dated September 28, 2010 and the
Application for Full Approval of the Southern Ute Indian Tribe's 40 CFR
Part 70 Operating Permits Program dated January 30, 2012.
(v) The word Tribe means the Southern Ute Indian Tribe, unless the
context indicates otherwise.
Table of Contents
I. Background
II. Response to Comments
III. Evaluation of the Tribe's Authorities
A. Current Tribal Authority
B. Reasonably Severable Title V Program Elements
C. Criminal Enforcement Memorandum of Understanding
IV. Evaluation of the Tribe's Title V Program Elements
A. Summary of EPA's March 9, 2011 Proposed Interim Approval
B. Analysis of the Tribe's Title V Program Submission Pursuant
to 40 CFR 70.4(b)
1. Complete Title V Program Description
2. Regulations Compromising the Title V Program
3. Legal Opinion
4. Relevant Title V Program Documentation
5. Compliance Tracking
6. Application Completeness Determination
7. Fee Demonstration
8. Statement of Adequate Personnel
9. Submission Commitment
10. Failure To Issue Permit in a Timely Manner
11. Transition Plan
12. Off Permit Changes
13. Expeditious Permit Revisions and/or Modifications Review
14. Tribe Only Revisions
15. Permit Changes Subject to Title I and IV of the Act
16. Permit Content and Permit Issuance, Renewal, Re-Openings and
Revisions
V. What action is EPA taking today?
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. Background
Under Title V of the Clean Air Act (the Act or CAA) as amended
(1990), EPA has promulgated rules that define the minimum elements of a
full
[[Page 15268]]
approval of a Title V operating permits program for state and tribal
permitting authorities. The corresponding standards and procedures by
which the EPA will approve, oversee, and withdraw approval of state and
tribal title V operating permits programs can be found at 57 FR 32250
(July 21, 1992) and 63 FR 1322 (January 10, 2000) and are codified at
40 CFR part 70.
In addition, as part of the 1990 Amendments to the CAA, Congress
enacted Section 301(d) authorizing EPA to ``treat Indian tribes as
states'' under the Act so that tribes may develop and implement CAA
programs in a similar manner as states within tribal reservations or in
other areas subject to tribal jurisdiction. Section 301(d)(2) of the
Act authorizes EPA to promulgate regulations specifying those
provisions of the CAA ``for which it is appropriate to treat Indian
tribes as States.'' 42 U.S.C. 7601(d)(2).
On February 12, 1998, EPA issued a final rule specifying those
provisions of the CAA for which it is appropriate to treat eligible
Indian tribes in a similar manner as states, known as the Tribal
Authority Rule (TAR). 63 FR 7254, codified at 40 CFR part 49. As a
general matter, the regulations authorize eligible Indian tribes to
have the same rights and responsibilities as States under the CAA;
however, EPA also determined in the TAR that it is not appropriate to
treat Indian tribes in a similar manner as states for purposes of
specific CAA program submittal and implementation deadlines. This is
because, among other reasons (discussed at 59 FR at 43,964-65),
although the CAA contains many provisions mandating the submittal of
state plans, programs, or other requirements by certain dates, the Act
does not similarly require Indian tribes to develop and seek approval
of CAA programs.
Thus, Indian tribes are generally not subject to CAA provisions
that specify a deadline by which something must be accomplished, e.g.,
provisions mandating the submission of state title V operating permits
programs under sections 502(d)(1), 502(d)(2)(B), and 502(d)(3)of the
Act. 40 CFR 49.4.
A tribe that meets the eligibility criteria for treatment in a
similar manner as a state (TAS) may, however, choose to implement a CAA
program. A tribe may also submit reasonably severable portions of a CAA
program, if it can demonstrate that its proposed air program is not
integrally related to program elements not included in the plan
submittal and is consistent with applicable statutory and regulatory
requirements. 40 CFR 49.7(c); see also CAA Sec. 110(o). This modular
approach is intended to give Indian tribes the flexibility to address
their most pressing air quality issues and acknowledges that Indian
tribes often have limited resources with which to address their
environmental concerns. Consistent with the exceptions listed in 40 CFR
49.4, once submitted, an Indian tribe's proposed air program will be
evaluated in accordance with applicable statutory and regulatory
criteria in a manner similar to the way EPA would review a similar
state submittal. 40 CFR 49.9(h).
EPA expects Indian tribes to fully implement and enforce their
approved CAA programs and, as with states, EPA retains its authority to
impose sanctions for failure to implement an approved air program. See
59 FR 43,956 at 43,965 (Aug. 25, 1994).
The CAA allows Indian tribes to develop and submit title V
operating permit programs to EPA at their own discretion. The EPA's
title V operating permit program review occurs pursuant to section 502
of the Act and the part 70 regulations, which together outline criteria
for interim approval, full approval or disapproval. The Tribe has
requested operating permit program approval and this action is in
response to that request.
II. Response to Comments
EPA did not receive any comments on our March 9, 2011 Federal
Register notice proposing interim approval of the Tribe's Title V
Program.
III. Evaluation of the Tribe's Authorities
The EPA completed a review of the Tribe's authority to regulate air
pollution sources located within the exterior boundaries of the
Reservation. Under section 301(d) of the CAA and the TAR, EPA may treat
a tribe in a similar manner as a state for purposes of administering
certain CAA programs or grants if the tribe demonstrates that: (1) It
is a federally-recognized tribe; (2) it has a governing body carrying
out substantial governmental duties and powers; (3) the functions to be
exercised by the tribe pertain to the management and protection of air
resources within the exterior boundaries of the reservation (or in
other areas under the tribe's jurisdiction); and (4) it can reasonably
be expected to be capable, in EPA's judgment, of carrying out the
functions for which it seeks approval, consistent with the CAA and
applicable regulations. 40 CFR 49.6. The sections below outline the
details of EPA's review of the Tribe's authorities.
A. Current Tribal Authority
In July 1998 the Southern Ute Indian Tribe applied for TAS seeking
approval to administer a CAA title V air quality operating permit
program throughout the Reservation. The State of Colorado challenged
the Tribe's CAA TAS application, asserting that the Act of May 21,
1984, Public Law 98-290, 25 U.S.C. 668, which defined the boundaries of
the Reservation, established the State's jurisdiction to regulate non-
Indian-owned air pollution sources located on fee lands within the
Reservation. The Tribe and the State, while continuing to disagree over
who has jurisdiction over these sources, formed the Southern Ute Indian
Tribe/State of Colorado Environmental Commission (Commission), and
executed an intergovernmental agreement (IGA) on December 13, 1999, to
establish a single air quality program applicable to all lands within
the exterior boundaries of the Reservation.
In general, the IGA allows for the Tribe to implement and
administer CAA programs, on a Reservation-wide basis, through the joint
Commission. It also provides that the State will support the Tribe's
CAA TAS application as long as it is consistent with the IGA. Congress
then passed the Southern Ute and Colorado Intergovernmental Agreement
Implementation Act of 2004, Public Law 108-336 on October 18, 2004,
which codifies the basic framework of the IGA, and authorizes EPA to
grant TAS authority to the Tribe for air programs submitted under CAA
section 301(d). The Tribe has previously received TAS approval on April
26, 2000, for the purposes of grant funding under CAA Section 105.
On January 20, 2009, the Tribe submitted its CAA TAS application
together with the Tribe's initial Title V Program. On July 14, 2009,
EPA found the Tribe's CAA program TAS application to be
administratively complete. This means the Tribe's CAA program TAS
application contains the basic information needed for EPA to make a TAS
eligibility determination.
On March 2, 2012, EPA issued its determination finding that the
Tribe is eligible for TAS for the purposes of approval of the title V
program.
B. Reasonably Severable Title V Program Elements
As previously discussed in Section I above, the TAR allows for
Indian tribes to seek approval of partial elements of CAA programs as
long as those portions are determined to be reasonably severable
elements, that is, not integrally related to program elements
[[Page 15269]]
that are not included in the plan submittal, and are consistent with
applicable statutory and regulatory requirements. 40 CFR 49.7(c). Each
submittal is evaluated for adequacy by EPA on a case-by-case basis.
In the March 9, 2011 proposed interim approval, we stated that the
underlying Federal regulations at CAA sections 111 (Standards of
Performance for New Stationary Sources), 112 (National Emissions
Standards for Hazardous Air Pollutants) and the Acid Rain Program at
title IV of the CAA were reasonably severable elements of a title V
program. At that time, the Region's view was that the authority to
implement and enforce these regulations independent of title V, as
contrasted with the authority to include the requirements that apply to
a particular source in that source's title V permit and to enforce
those requirements, is a necessary part of an approvable title V
program.
After careful consideration, we find that, where, as is the case
here, the title V permitting authority has the ability to include all
applicable requirements in a title V permit and to enforce all
requirements of a permit, the authority to implement CAA sections 111
and 112 as well as the Acid Rain Program directly (i.e., independently
of title V) is not a necessary element of an approvable title V program
and therefore does not require severing pursuant to 40 CFR 49.7(c).
While we believe that it is convenient in a number of respects for a
permitting authority to have the authority to implement and enforce the
Acid Rain Program and other underlying regulations outside of the
context of an approved title V program, we are not, at this juncture,
concluding that such authority is a necessary element of an approvable
title V program.
Thus, it is not necessary to sever these CAA requirements in the
context of approving the Tribe's Title V Program.\1\ Nevertheless, we
note that the Tribe has submitted a letter to EPA expressing its intent
to incorporate CAA section 111 and 112 requirements into the
Reservation Air Code and pursue authorization from EPA to implement and
enforce those CAA programs.
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\1\ If direct implementation authority for CAA sections 111 and
112 and the Acid Rain Program was a necessary element of an
approvable title V program, EPA would find each of these authorities
to be a severable element of such a program.
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C. Criminal Enforcement Memorandum of Agreement
The TAR provides for a Federal role in criminal enforcement of a
program when the CAA or its implementing regulations mandate criminal
enforcement authority and the applicant tribe is precluded from
exercising such authority. 40 CFR 49.7(a)(6) and 49.8. In these
circumstances, the TAR allows EPA to approve a tribal application if
the tribe enters into a Memorandum of Agreement (MOA) with EPA that
provides for the Federal government to exercise primary criminal
enforcement responsibility. Id. These provisions of the TAR recognize
that Federal law places certain limitations on tribal criminal
jurisdiction and sanctions. In this instance, the IGA reached between
the Tribe and the State of Colorado contemplates that EPA will exercise
criminal enforcement within the Reservation boundary for air pollution
violations.
On this basis, on February 10, 2009, the Tribe and EPA entered into
a MOA which provides a procedure by which the Tribe will supply
potential investigative leads to the Federal government in an
appropriate and timely manner when the Tribe is precluded from
asserting criminal enforcement authority.
IV. Evaluations of the Tribe's Title V Program Elements
EPA conducted a thorough review of the Tribe's Title V Program
original and subsequent supplemental applications (Application for
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permit Program dated January 14, 2009; Supplement to Application for
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permit Program dated September 28, 2010; Application for Full Approval
of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permits
Program dated January 30, 2012) according to 40 CFR 70.4(b) Elements of
the initial program submission. Upon review of those applications, EPA
concluded that the 16 elements found at 40 CFR 70.4(b) were adequately
addressed by the Tribe's Title V Program.
A. Summary of EPA's March 9, 2011 Proposed Interim Approval of the
Tribe's Title V Program
The Southern Ute Indian Tribe submitted an initial and a
supplemental Title V Program to EPA on January 20, 2009 and September
28, 2010 respectively. The Title V Program submittals include a legal
opinion from the Tribe's legal counsel stating that the laws of the
Tribe and Southern Ute Indian Tribe/State of Colorado Environmental
Commission provide adequate legal authority to carry out all aspects of
the Title V Program, and a description of how the Tribe intends to
implement the Title V Program.
EPA comments noting deficiencies in the Tribe's initial January 20,
2009 Title V Program submittal were sent to the Tribe in a letter dated
December 23, 2009. The deficiencies were segregated into those that
require corrective action prior to Title V Program approval, and those
that, if addressed, would serve to strengthen the Title V Program, but
were not necessary for approval.
In the September 28, 2010 supplemental Title V Program application,
the Tribe addressed the deficiencies that required corrective action
prior to Title V Program approval as well as those that served to
strengthen the Title V Program. EPA reviewed these changes and
determined that they were adequate to allow for Title V Program interim
approval pursuant to 40 CFR 70.4(a).
The EPA's March 9, 2011 proposed interim approval Federal Register
notice outlined two changes to the Tribe's Program to be made in order
for a final full approval to be granted. Those two changes were:
[cir] Modify the ``emission unit'' definition to include pollutants
listed under 112(b) of the Act; and
[cir] Modify the ``major source'' definition to include the updated
definition for purposes of regulating greenhouses gases as part of the
Prevention of Significant Deterioration/Title V Greenhouse Gas
Tailoring Rule (GHG Tailoring Rule). See 75 FR 106 at 31514-31608 (June
3, 2010).
Since the publishing of the March 9, 2011 proposed interim approval in
the Federal Register, the Tribe has made the recommended changes above
to its Program and resubmitted the Title V Program to the EPA
(Application for Full Approval of the Southern Ute Indian Tribe's 40
CFR Part 70 Operating Permits Program dated January 30, 2012). Thus,
the Title V Program meets the minimum requirements of 40 CFR 70.4(b).
B. Analysis of the Tribe's Title V Program Submission per 40 CFR
70.4(b)
1. Complete Title V Program Description
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(1). The Tribe submitted a complete program description
(Application for Approval of the Southern Ute Indian Tribe's 40 CFR
Part 70 Operating Permit Program dated January 14, 2009, Tab 1, Program
Description) which describes how the Tribe intends to carry out its
responsibilities under part 70.
[[Page 15270]]
2. Regulations Comprising the Title V Program
The Tribe's Title V Program, with the operating permit regulations
(Application for Full Approval of the Southern Ute Indian Tribe's 40
CFR Part 70 Operating Permits Program dated January 30, 2012, Tab 6,
Reservation Air Code, Articles I and II), meets the requirements of 40
CFR 70.4(b)(2) including evidence of procedurally correct adoption of
the Tribe's Reservation Air Code as well as public notice and comments
on its adoption. The Tribe's Title V Program satisfies the requirements
outlined in 40 CFR 70.4 and all other relevant sections of part 70.
3. Legal Opinion
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(3). The Tribe's independent legal counsel, Maynes, Bradford,
Shipps & Sheftel, LLP Attorneys at Law, submitted an initial and a
supplemental legal opinion in both the initial and supplemental Title V
Program applications (Application for Approval of the Southern Ute
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January
14, 2009 and Supplement to Application for Approval of the Southern Ute
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September
28, 2010). The signatory of the legal opinion, the Tribe's legal
counsel, Sam Maynes of Maynes, Bradford, Shipps & Sheftel, LLP
Attorneys at Law, has full authority to independently represent the
Tribe in court on all matters pertaining to the Tribe's Title V
Program. The legal opinion includes a demonstration of adequate legal
authority to carry out the requirements of part 70, including authority
to carry out those activities listed at 40 CFR 70.4(b)(3)(i) through
(xiii).
EPA notes that the Tribe's program provides for appropriate review
of final permit actions, consistent with 40 CFR Sec. 70.4(b)(3)(x), by
providing that final permit actions of the Commission are reviewable in
the United States Court of Appeals for the Tenth Circuit. See Pub. L.
108-336; Resolution No. 2008-01 dated January 31, 2008, Procedural
Rules of the Southern Ute Indian Tribe/State of Colorado Environmental
Commission, Section V. C.; see also 63 FR at 7261-62.
4. Relevant Title V Program Documentation
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(4). The Tribe submitted extensive application forms
(Application for Approval of the Southern Ute Indian Tribe's 40 CFR
Part 70 Operating Permit Program dated January 14, 2009, Tab 4, Program
Forms) for review as well as comprehensive instructions for each form.
5. Compliance Tracking
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(5). The Tribe submitted multiple compliance assurance
procedures and guidelines (Application for Approval of the Southern Ute
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January
14, 2009, Tab 5, Compliance Tracking).
6. Application Completeness Determination
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(6). The Tribe's Reservation Air Code (Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permits Program dated January 30, 2012, Tab 6, Reservation Air Code)
Article II, Sections 2-106(3) and 2-107(1)(a) demonstrates adequate
authority and procedures to determine within 60 days of receipt whether
applications (including renewal applications) are complete, to request
such other information as needed to process the application, and to
take final action on complete applications within 18 months of the date
of its submittal, except for initial permit applications, for which the
part 70 permitting authority may take up to 3 years from the effective
date of the Title V Program to take final action on the application,
consistent with 40 CFR 70.4(b)(11)(ii).
7. Fee Demonstration
The Tribe's Title V Program includes a fee accounting, which
includes projected fee collection and programmatic costs (Application
for Full Approval of the Southern Ute Indian Tribe's 40 CFR Part 70
Operating Permits Program dated January 30, 2012, Tab 10 Revised Fee
Demonstration Figure 1 page 6 and Table 2 page 7) that set fees above
the presumptive minimum set forth in section 70.9.
The Tribe's Title V Program requires that part 70 sources pay $50
per ton of fee pollutant (not including greenhouse gases (GHGs)) for
the first year of permit issuance and then $50 per ton plus any
percentage increase necessary to reflect any increase in the Consumer
Price Index (CPI) each year thereafter. The Tribe has adequately shown
in the Fee Demonstration, that $50 per ton is sufficient to cover the
permit program costs and that any fees generated will be used
exclusively for permit program costs. The $50 per ton is a slight
increase from the current annual part 71 fees, $47.11 per ton. EPA
notes that although the Tribe's Title V Program does not assess fees
for GHGs, the fee structure is expected to be adequate to cover all
program costs, provided that GHG sources below the threshold of 40 CFR
part 70 are not subject to the program. The Tribe will review resource
needs for GHG-emitting sources in its fee structure if necessary and
EPA will work with the Tribe if it requests assistance in establishing
title V fees related to GHG emissions.
8. Statement of Adequate Personnel
The Tribe submitted a statement that adequate personnel and funding
have been made available to develop, administer, and enforce the Title
V Program (Supplement to Application for Approval of the Southern Ute
Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September
28, 2010, Tab 10, 40 CFR 70.4(b)(8)). This demonstration, however, does
not include permit issuance to GHG sources at 100 tpy. In addition, the
Tribe has provided a supplemental staffing plan (January 4, 2011 email
from Brenda Jarrell) that outlines a staff of six individuals. Those
staff resumes can be found in Tab 11 of the Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permit Program.
EPA has reviewed the Tribe's statement and staffing plan and
concludes they are adequate. EPA notes that the Tribe's Title V Program
does not cover sources below the threshold of 40 CFR part 70 (i.e.,
only those sources that emit at least 100 tpy on a mass basis and
100,000 tpy on a Carbon Dioxide equivalent (CO2e) \2\ basis
will be treated as a major source subject to title V permitting as a
result of GHG emissions). Accordingly, applicability of the Tribe's
Title V Program is consistent with GHG permitting requirements. See 75
FR 82254 (December 30, 2010) (Title V GHG Narrowing Rule). We conclude
that the Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(8).
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\2\ CO2e is a measure of the global warming potential
of GHGs. Pursuant to the GHG Tailoring Rule, Table A-1 to subpart A
of 40 CFR part 98--Global Warming Potentials (74 FR 56395) should be
used in calculating CO2e for purposes of determining
whether a source's emissions exceed the major source threshold for
title V. See Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule, 75 FR 31522.
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9. Submission Commitment
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(9). The Tribe submitted a commitment
[[Page 15271]]
(Application for Approval of the Southern Ute Indian Tribe's 40 CFR
Part 70 Operating Permit Program dated January 14, 2009, Tab 9, 40 CFR
70.4(b)(9)) to submit, at least annually to the Administrator,
information regarding the Tribe's enforcement activities including, but
not limited to, the number of civil, judicial and administrative
enforcement actions either commenced or concluded; the penalties,
fines, and sentences obtained in those actions; and the number of
administrative orders issued.
10. Failure To Issue Permit in a Timely Manner
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(10). The relevant provisions of the Tribe's Reservation Air
Code (Application for Full Approval of the Southern Ute Indian Tribe's
40 CFR Part 70 Operating Permits Program dated January 30, 2012, Tab 6,
Reservation Air Code) Article II, Sections 2-106 and 2-107 are
consistent with requirements outlined in 40 CFR 70.5(a)(2) and 70.6(f).
11. Transition Plan
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(11). The Tribe's comprehensive Revised Transition Plan
(Application for Full Approval of the Southern Ute Indian Tribe's 40
CFR Part 70 Operating Permits Program dated January 30, 2012, Tab 9,
Revised Transition Plan) outlines a plan and schedule for submittal and
final action on initial permit applications for all part 70 (previously
part 71) sources within the exterior boundaries of the Reservation.
Currently, EPA Region 8 has issued 44 part 71 permits on the
Southern Ute Indian Reservation. Transfer of primary responsibility for
permits is outlined in the Tribe's Revised Transition Plan. According
to the Tribe's Code, this Title V Program ``shall become effective upon
the date of the approval by the Administrator of the Tribe's
application for treatment as a state and part 70 program approval.''
(Application for Full Approval of the Southern Ute Indian Tribe's 40
CFR Part 70 Operating Permits Program dated January 30, 2012, Tab 6,
Reservation Air Code, Article II, Part I, 2-102).
Thus, upon signature of this Federal Register notice and the
separate TAS application, the Tribe will begin the process of
contacting all part 71 sources and informing them of when each source
is expected to submit a part 70 permit application per the Tribe's
transition plan (Application for Full Approval of the Southern Ute
Indian Tribe's 40 CFR Part 70 Operating Permits Program dated January
30, 2012, Tab 9, Revised Transition Plan).
12. Off Permit Changes
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(12). The Tribe's Reservation Air Code (Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permits Program dated January 30, 2012, Tab 6, Reservation Air Code)
contains provisions, Article II, Sections 2-110, 2-111 and 2-116,
allowing for changes within a permitted facility without requiring a
permit revision, if the changes are not modifications under any
provision of title I of the Act and the changes do not exceed the
emissions allowable under the part 70 permit, provided the facility
provides written notification as required in section 70.4(b)(12)
consistent with 40 CFR 70.4(b)(12)(i) through (iii).
13. Expeditious Permit Revisions and/or Modifications Review
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(13). The Tribe's Reservation Air Code (Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permits Program dated January 30, 2012, Tab 6, Reservation Air Code)
Article II, Section 2-111 provides for adequate, streamlined and
reasonable procedures for expedited review of permit revisions or
modifications.
14. Tribe Only Revisions
The Tribe's Title V Program does not allow changes that are not
addressed or that are prohibited as described in 40 CFR 70.4(b)(14).
Thus, this section does not apply to the Tribe's Title V Program.
15. Permit Changes Subject to Title I and IV of the Act
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(15). The Tribe's Reservation Air Code (Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permits Program dated January 30, 2012, Tab 6, Reservation Air Code)
Article II, Section 2-116(2) prohibits sources from making, without a
permit revision, changes that are not addressed or that are prohibited
by the part 70 permit, if such changes are subject to any requirements
under title IV of the Act or are modifications under any provision of
title I of the Act.
16. Permit Content and Permit Issuance, Renewal, Re-openings and
Revisions
The Tribe's Title V Program meets the requirements of 40 CFR
70.4(b)(16). The Tribe's Reservation Air Code (Application for Full
Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating
Permits Program dated January 30, 2012, Tab 6, Reservation Air Code)
Article II, Sections 2-107, 2-110 and 2-112 requires the Tribe's Title
V Program to implement the requirements of 40 CFR 70.6 and 70.7.
V. What action is EPA taking today?
EPA is promulgating a full approval rather than a full interim
approval because the issues identified in the proposed interim approval
have been addressed. Thus, the EPA is moving to a full approval in
today's action.
The Title V Program issues identified in the EPA's March 9, 2011
proposed interim approval were addressed. The Tribe's updated RAC
became effective on August 8, 2011. An Application for Full Approval of
the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permits
Program was submitted to the EPA on January 30, 2012 for final action.
The following changes were made to the Tribe's Title V Program,
effective August 8, 2011:
(1) The ``emission unit'' definition in the RAC (found at RAC
Section 1-103(26)) was modified to include pollutants listed under
section 112(b) of the CAA (42 U.S.C. 7412(b));
(2) The ``major source'' definition in the RAC (found at RAC
Section 1-103(38)) was modified to include the code of Federal
regulations' updated definitions of ``major source'' and ``subject to
regulation'' (found at RAC Section 1-103(65)) for purposes of
addressing greenhouse gases as part of EPA's Prevention of
Signification Deterioration/Title V Greenhouse Gas Tailoring Rule (GHG
Tailoring Rule). See 75 FR 106 at 31514-31608 (June 3, 2010).
The change to the ``emission unit'' definition clarified and made
the Tribe's Title V Program consistent with 40 CFR part 70. Although
the Tribe has the authority to regulate pollutants listed under 112(b)
of the Act through its ``major source'' and ``regulated air pollutant''
definitions, to be consistent, the ``emission unit'' definition should
include 112(b) pollutants as well.
The change to the ``major source'' definition narrowed the number
of sources requiring Title V review for greenhouse gases (GHGs) after
July 1, 2011, by raising the major source threshold from 100 tons per
year (tpy) to 100,000 tpy for GHGs. With this modification, the Tribe
will be issuing Title V operating permits to sources with GHG emissions
in a manner consistent with the Federal regulations as set out in the
GHG Tailoring Rule.
[[Page 15272]]
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden.
The information collection requirements in the Title V Program are all
mandated by 40 CFR part 70. The Office of Management and Budget (OMB)
previously approved the information collection requirements specified
in 40 CFR part 70 under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0243.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act, or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations
and small governmental jurisdictions.
For purposes of assessing the impact of this final rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act (UMRA)
EPA's action in approving the Tribe's Title V Program does not
contain a Federal mandate that may result in expenditures of $100
million or more for state, local and tribal governments, in the
aggregate, or the private sector in any one year. Thus, this action is
not subject to the requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The Title V Program primarily
affects private industry and does not impose significant economic costs
on state or local governments. Thus, Executive Order 13132 does not
apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action will have tribal implications in
that it will result in responsibility for issuing title V permits being
transferred from EPA to the Tribe in that it will result in
responsibility for issuing title V permits being transferred from EPA
to the Tribe. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law. EPA's
action in approving the Title V Program will make the requirements of
the Title V Program enforceable under Federal law.
EPA consulted with tribal officials early in the process of
developing this action to permit them to have meaningful and timely
input into its development. Government to Government consultation
occurred on November 3, 2010 between Region 8 Administrator, James B.
Martin and then Chairman Matthew Box. Additionally, routine staff level
conference calls and meetings have been held consistently throughout
the review process.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the E.O. has the
potential to influence the regulation. This action is not subject to
E.O. 13045 because it approves the Title V Program submitted by the
Southern Ute Indian Tribe and thus does not concern health or safety
risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on environmental justice. Its main
provision directs Federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs,
[[Page 15273]]
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This final action approves the Title V Program submitted
by the Southern Ute Indian Tribe and thus transfers responsibility for
issuing title V permits from EPA to the Tribe.
K. Congressional Review Act (CRA)
The CRA, 5 U.S.C. 801, et seq., as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, generally provides that,
before a rule may take effect, the agency promulgating the rule must
submit a rule report, which includes a copy of the rule, to each House
of the Congress and to the Comptroller General of the United States.
The EPA will submit a report containing this final rule and other
required information to the United States Senate, the United States
House of Representatives, and the Comptroller General of the United
States prior to publication of the final rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). The final rule will be effective upon approval by the
Region 8 Administrator.
Dated: March 7, 2012.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. sections 7401, et seq.
0
2. In appendix A to part 70, in alphabetical order (after South Dakota
and before Tennessee), add the entry for Southern Ute Indian Tribe to
read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Southern Ute Indian Tribe
(a) The Southern Ute Indian Tribe submitted an operating permits
program on January 20, 2009 with supplements on September 28, 2010
and January 30, 2012; full approval effective on March 2, 2012.
(b) [Reserved].
* * * * *
[FR Doc. 2012-6205 Filed 3-14-12; 8:45 am]
BILLING CODE 6560-50-P