                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                  REGION III
                               1650 Arch Street
                       Philadelphia, Pennsylvania  19103

DATE:
SUBJECT:     Technical Support Document (TSD) for the State of West Virginia State Implementation Plan for Section 110(a)(2) Infrastructure Requirements for the 2010 1-Hour Nitrogen Dioxide (NO2) National Ambient Air Quality Standards

FROM:	Ellen Schmitt, Environmental Scientist 		/s/    9/24/2013
                        Office of Air Program Planning

TO:		File

THRU:	Cristina Fernandez,      			 /s/    9/24/2013
		Associate Director, Office of Air Program Planning

A.   INTRODUCTION

      The Environmental Protection Agency (EPA) is taking action on the State of West Virginia's State Implementation Plan (SIP) revision submitted by West Virginia through the West Virginia Department of Environmental Protection (WVDEP) to meet the Clean Air Act (CAA) section 110(a)(2) requirements for the revised 2010 1-hour Nitrogen Dioxide (NO2) national ambient air quality standards (NAAQS).

B.  BACKGROUND

      EPA first set standards for NO2 in 1971, setting both a primary standard (to protect health) and a secondary standard (to protect the public welfare) at 0.053 parts per billion (53 ppb), averaged annually.  The Agency reviewed the standards twice since that time, but chose not to revise the annual standards at the conclusion of each review.  On January 22, 2010, EPA established an additional primary standard at 100 ppb, averaged over one hour.

      In addition to establishing an averaging time and level, EPA also set a new "form" for the standard.  The form is the air quality statistic used to determine if an area meets the standard.  The form for the 1-hour NO2 standard is the 3-year average of the 98th percentile of the annual distribution of daily maximum 1-hour average concentrations.

      On January 20, 2012, EPA designated all areas of the country "unclassifiable/attainment" for the 2010 NO2 NAAQS, based on the existing community-wide monitoring network.  As previously mentioned, EPA established a one hour standard of 100 ppb for NO2 on January 22, 2010.  On March 20, 2012, EPA took final action to retain the current secondary NAAQS for NO2, 53 ppb averaged over a year, to address direct effects on vegetation.

      Pursuant to section 110(a) of the CAA, states are required to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within a shorter period as EPA may prescribe.  More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs and section 110(a)(2) lists specific elements that states must meet for ``infrastructure'' SIP requirements related to a newly established or revised NAAQS.  These requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS.

      Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances.  In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect the content of the submission.  The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

      This proposed rulemaking pertains to the Clean Air Act requirements for the 2010 1-hour NO2 NAAQS infrastructure SIP.

C.  EPA REQUIREMENTS

      For the 2010 1-hour NO2 NAAQS, states must provide SIP submissions, or provide certification that the existing SIP contains provisions addressing relevant infrastructure SIP elements from sections 110(a)(2)(A) through (M) of the CAA.

D.  STATE'S SUBMITTAL

      On December 13, 2012, EPA received a submittal from West Virginia to address the requirements of section 110(a)(2) of the CAA for the 2010 NO2 NAAQS.  This submittal addressed the following infrastructure elements, or portions thereof, that EPA is proposing to approve:  section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA.  EPA will take separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 2010 NO2 NAAQS as they relate to  West Virginia's permit program for Prevention of Significant Deterioration (PSD), as required by part C of Title I of the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J).  EPA will also take separate action on CAA section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS as it relates to CAA section 128, "State Boards."

E.  EVALUATION OF STATE SUBMITTAL

1.  Section 110(a)(2)(A)

      West Virginia has established laws and regulations applicable to the 2010 NO2 NAAQS that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA.  The Secretary of WVDEP (hereafter the Secretary) holds the legislative authority to promulgate regulations concerning air pollution control in accordance with the Administrative Procedures Act (W.Va. Code section 29A3-1 et seq.) and W.Va. Code sections 22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17).  EPA also notes that the WV SIP includes the following provisions related to nitrogen oxides:

    *    45CSR11 - "Prevention of Air Pollution Emergency Episodes"
    *    45CSR13 - "Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Temporary Permits, General Permits, and Procedures for Evaluation"

    *    45CSR14 - "Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration"

    *    45CSR19 - "Permits for Construction and Major Modification of Major Stationary Sources of Air   Pollution Which Cause or Contribute to Nonattainment"

    *    45CSR39 - "Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine Particulate Matter and Nitrogen Oxides"

    *    45CSR40 - "Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport of  Ozone and Nitrogen Oxides"

    *       West Virginia's EPA-approved regional haze SIP (which includes best available retrofit technology (BART) rates).  See 77 FR 16937 (Mar. 23, 2012).

	Additionally, the EPA-approved operating permit program is applicable to NO2 emission limitations and control measures.  45CSR30 ("Requirements for Operating Permits"), the EPA-approved operating program (66 FR 50325) pursuant to Title V of the CAA, includes all the enforceable emission limitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14, and 45CSR19, as well as additional West Virginia measures, 45CSR16 "Standards of Performance for New Stationary Sources" and 45CSR18 "Control of Air Pollution from Combustion of Solid Waste," which are not included in the West Virginia SIP.

      On May 9, 2013, EPA finalized a narrow disapproval of West Virginia SIP submittals for the PSD and Clean Air Act section 110 infrastructure elements related to PSD.  The West Virginia PSD submittal did not properly address condensable emissions of particulate matter within the definition of "regulated NSR pollutant."  There are no sanctions associated with this disapproval; however, EPA is required to promulgate a Federal Implementation Plan within two years of final disapproval if the definition of "regulated NSR pollutant" is not corrected.  EPA anticipates acting on West Virginia's expected submission of this revised definition within the two year time frame prior to EPA's federal implementation plan obligation on this very narrow issue.

      In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during Startup, Shutdown, and Malfunction (SSM) of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown"), and the Agency is addressing such state regulations in a separate rulemaking.  See 78 FR 12460.  In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

      Also in this action, EPA is not proposing to approve or disapprove any existing West Virginia rules with regard to director's discretion or variance provisions.  EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and the Agency is taking separate action to address such state regulations.  See 78 FR 12460.  In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

      EPA is proposing to determine that the State of West Virginia has met its obligations pursuant to section 110(a)(2)(A) of the CAA.

2.  Section 110(a)(2)(B)

      The Secretary of WVDEP has the authority under W.Va. Code sections 22-5-4(a)(1) & (3) "to develop ways and means for the regulation and control of pollution of the air of the state" and "conduct such studies and research relating to air pollution and its control and abatement."

      WVDEP informs EPA of planned changes to monitoring sites by providing adequate prior notification.  Pursuant to 40 CFR 58.10, WVDEP submits to EPA, on an annual basis, a monitoring network plan, which describes how West Virginia is complying with monitoring requirements and explains any changes to the monitoring network.  West Virginia's 2011 Annual Air Quality Monitoring Network Design Plan was submitted to EPA on June 22, 2011, and was consequently approved by EPA on December 6, 2011.  EPA approved West Virginia's 2012 Annual Air Quality Monitoring Network Design Plan on February 21, 2013.

      No monitoring of NO2 is required in West Virginia since it has no NO2 nonattainment areas and is well below the thresholds of criteria to establish NO2 monitoring.

      As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and CAA section 110(a)(2)(B), WVDEP collects and reports to EPA ambient air quality data.  West Virginia submits to EPA quarterly reports of air quality data to comply with the requirements of 40 CFR 58.16.  The air quality data is reviewed, edited, validated, and entered into the EPA air quality system (AQS) for updating pursuant to prescribed AQS procedures, and is certified annually as required under 40 CFR 58.15.

      EPA concludes that West Virginia's monitoring network and data system satisfy the requirements of CAA section 110(a)(2)(B) for the 2010 NO2 NAAQS.

3.  Section 110(a)(2)(C)

      The Secretary has the statutory authority to enforce control measures for the 2010 NO2 NAAQS, pursuant to W.Va. Code sections 22-1-3(a), 22-5-4(a)(4), 22-5-4(a)(5), 22-5-4(a)(9), 22-5-4(a)(16), 22-5-4(a)(17), 22-5-5, and 22-5-6.  West Virginia has an established legal framework and ability to provide for the enforcement of the measures described in the CAA section 110(a)(2)(A) infrastructure element, contained in the SIP-approved regulations:  45CSR13, 45CSR14, and 45CSR19, as well as in the EPA-approved Title V program codified in 45CSR30.  The provisions described meet the requirements for enforcement of measures described in section 110(a)(2)(C) of the CAA, which EPA is proposing to approve.

      EPA will take separate action on the portion of section 110(a)(2)(C) of the CAA for the 2010 NO2 NAAQS as it relates to West Virginia's PSD program as required by part C of Title I of the CAA.  EPA has approved West Virginia's PSD program with the narrow exception of the definition of regulated NSR pollutant for its failure to include condensables.  See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013).

      West Virginia has an adequate minor source permitting program approved in the West Virginia SIP for minor sources and minor modifications to ensure the NAAQS are achieved.  See 45CSR13.

      EPA is proposing to determine that the state of West Virginia has met its obligations pursuant to section 110(a)(2)(C) of the CAA, with the exception of the required PSD permit component on which EPA will take separate action.

4.  Section 110(a)(2)(D)(i)(I)

      Section 110(a)(2)(D)(i)(I) of the Clean Air Act prohibits any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in any other state with respect to any primary or secondary NAAQS, or interfere with maintenance by any other state with respect to any primary or secondary NAAQS.  In this action, EPA is proposing to approve the 110(a)(2)(D)(i)(I) portion of the West Virginia SIP submission and determine that the existing West Virginia SIP contains provisions sufficient to satisfy all of the requirements of 110(a)(2)(D)(i)(I) for the NO2 NAAQS.  EPA reviewed West Virginia's December 13, 2012 infrastructure SIP submittal for the 2010 NO2 NAAQS and based on that review and EPA's review of relevant air quality data, EPA is proposing to determine that West Virginia's SIP includes adequate provisions to prohibit sources or other emission activities within the State from emitting nitrogen oxides (NOx) in amounts that will contribute significantly to nonattainment or interfere with maintenance by any other state with respect specifically to the NO2 NAAQS.  NO2  is a component of NOx.

      The EPA-approved West Virginia SIP includes requirements for emissions limits on NOx including the following (see 40 CFR Part 52, Subpart XX, Section 52.2520(c)):

   *    45CSR11 - "Prevention of Air Pollution Emergency Episodes" (which contains episode criteria, methods of measurement, preplanned reduction strategies and emission reduction plan requirements for sources of NO2 emissions in West Virginia)

   *    45CSR13 - "Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Temporary Permits, General Permits, and Procedures for Evaluation"

   *    45CSR14 - "Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration" (ensures that no new or modified NO2 emitting source significantly degrades the existing air quality)

   *    45CSR19 - "Permits for Construction and Major Modification of Major Stationary Sources of Air   Pollution Which Cause or Contribute to Nonattainment"

   *    45CSR29 - "Rule Requiring the Submission of Emission Statements for Volatile Organic Compound Emissions and Oxides of Nitrogen Emissions"

   *    45CSR39 - "Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine Particulate Matter and Nitrogen Oxides"

   *    45CSR40 - "Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport of  Ozone and Nitrogen Oxides"

   * West Virginia's EPA-approved regional haze SIP (which includes best available retrofit technology (BART) rates). See (77 FR 16937, Mar. 23, 2012).

      In addition, all major stationary sources of NO2 are subject to the SIP-approved requirements for PSD and NSR which provide preconstruction review and permitting requirements in attainment and nonattainment areas and which help ensure that no new or modified NO2 emitting source will cause or contribute to any potential exceedances of the NO2 NAAQS.   See 45CSR14 and 45CSR19.

      On February 17, 2012 (77 FR 9532), EPA promulgated a rule that established air quality designations for all areas of the country for the 2010 NO2 NAAQS based on air quality monitoring data for the period 2008-2010.  Based upon this 2008-2010 air quality monitoring data, EPA determined that no area of the country is violating the 2010 NO2 NAAQS.  While there are no NO2 monitors in WV, EPA reviewed NO2 air quality monitoring data for monitors within a 50 kilometer radius from the State, including monitors in Virginia, Ohio, Kentucky and Pennsylvania.  EPA selected fifty kilometers from West Virginia for reviewing design values at monitors because 50 kilometers is the standard distance for modeling analysis in EPA's Guideline on Air Quality Models (Appendix W to 40 CFR Part 51) and EPA is acting consistent with that Guideline.  The most recent design values (DVs) that are computed using quality-assured and certified ambient air monitoring data using the Federal Reference method or equivalent data is reported by states, tribes and local agencies to EPA's Air Quality System (AQS).  Data for 2008-2010, 2009-2011 and 2010-2012 for monitors in states surrounding or bordering West Virginia within 50 kilometers of West Virginia are in Table 1 below and show that the DVs are well below the NAAQS for NO2.  The level of the 1-hour NAAQS for NO2 is 100 parts per billion (ppb) and the form is the 3-year average of the annual 98[th] percentile of the daily 1-hour maximum.  In the states surrounding and bordering West Virginia within the 50 kilometers reviewed by EPA, there are no areas with design values for 2008-2010, 2009-2011 and 2010-2012 that exceed the 2010 NO2 NAAQS.  For example, the highest DV for 2009-2011 and 2010-2012 is 53 (Allegheny County, PA), well below the 100 ppb NAAQS.  See Table 1 below for DVs surrounding and bordering West Virginia within 50 kilometers of West Virginia.

       Table 1.  Design Values Surrounding and Bordering West Virginia
                                     State
                                    County
                                     Site
                           2008-2010
Final DV (ppb)
                           2009-2011
Final DV (ppb)
                           2010-2012
Final DV (ppb)
                                      KY
                                     Boyd
                                   210190017
                                      38
                                      34
                                      32
                                      OH
                                    Athens
                                   390090004
                                      27
                                      24
                                      23
                                      PA
                                   Allegheny
                                   420030008
                                      55
                                      44
                                      44
                                      PA
                                   Allegheny
                                   420030010
                                      55
                                      53
                                      53
                                      PA
                                    Beaver
                                   420070014
                                      43
                                      42
                                      40
                                      PA
                                  Washington
                                   421250005
                                      40
                                      38
                                      38
                                      VA
                                    Loudoun
                                   511071005
                                      40
                                      41
                                      39
                                      VA
                                Prince William
                                   511530009
                                      30
                                      28
                                      28
                                      VA
                                    Roanoke
                                   511611004
                                      38
                                      39
                                      39
                                      VA
                                  Rockingham
                                   511650003
                                      41
                                      40
                                      39

      Based on this air quality monitoring data analysis and EPA's review of NOx emission trends within West Virginia, EPA does not expect NOx emissions in West Virginia to increase significantly.  A review of the National Emissions Inventory (NEI) data shows a reduction of over 53,938 tons per year of total NOx emissions in West Virginia from 2008 to 2011.  EPA's analysis of the air quality monitoring data and emission trends (in addition to West Virginia's SIP provisions) also demonstrate that NO2 emissions are not increasing significantly in the states surrounding West Virginia.  EPA therefore does not expect monitors identified in the table above which all have DVs well below the NO2 NAAQS to have difficulty maintaining the NAAQS for NO2.  This data thus also supports EPA's proposed conclusion that West Virginia emission sources are not significantly contributing to nonattainment in another state for the NO2 NAAQS and are not interfering with maintenance of the NO2 NAAQS in another state.  For all these reasons, EPA proposes to find that West Virginia's federally enforceable SIP provisions with NOx emission limits for NOx emission sources contain adequate provisions to ensure West Virginia emission sources will not significantly contribute to nonattainment or interfere with maintenance in another state with respect to the NO2 NAAQS.

      Based upon EPA's review of the air quality data and the State's submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(D)(i)(I) with respect to the 2010 NO2 NAAQS.

5.  Section 110(a)(2)(D)(i)(II)

      As mentioned previously for 110(a)(2)(C), EPA will take separate action on the portion of section 110(a)(2)(D)(i)(II) (prong 3) of the CAA for the 2010 NO2 NAAQS as it relates to West Virginia's PSD program as required by part C of Title I of the CAA.  No nonattainment areas for the 2010 NO2 NAAQS currently exist in West Virginia.

      Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures to protect visibility required to be included in another state's SIP.  On March 23, 2012, EPA granted limited approval and limited disapproval of West Virginia's regional haze SIP.  See 77 FR 16937.  Although West Virginia's regional haze SIP has not been fully approved, EPA believes that the infrastructure SIP submission together with previously approved SIP provisions, specifically those provisions that require electric generating units (EGUs) to comply with the Clean Air Interstate Rule (CAIR) and the additional measures in the regional haze SIP addressing BART and reasonable progress requirements for other sources or pollutants, are adequate to demonstrate compliance with prong 4.  Thus, EPA is proposing to fully approve this aspect of the submission.

      West Virginia's regional haze SIP relied on West Virginia's previous incorporation of the CAIR into the EPA-approved SIP for West Virginia as an alternative to the requirement that the regional haze SIPs provide for source-specific BART emission limits for SO2 and NOx emissions from EGUs.  At the time the West Virginia regional haze SIP was being developed, the State's reliance on CAIR was fully consistent with EPA's regulations.  CAIR, as originally promulgated, requires significant reductions in emissions of SO2 and NOx to limit the interstate transport of these pollutants, and EPA's determination that states could rely on CAIR as an alternative to requiring BART for CAIR-subject EGUs had specifically been upheld in Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006).  Moreover, the states with Class I areas affected by emissions from sources in West Virginia had adopted reasonable progress goals for visibility protection that were consistent with the EGU emission limits resulting from CAIR.

      In 2008, however, the D.C. Circuit remanded CAIR back to EPA.  See North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).  The court found CAIR to be inconsistent with the requirements of the CAA, see North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur because it found that "allowing CAIR to remain in effect until it is replaced by a rule consistent with [the court's] opinion would at least temporarily preserve the environmental values covered by CAIR." North Carolina, 550 F.3d at 1178.

      After the remand of CAIR by the D.C. Circuit and the promulgation by EPA of a new rule  -  the Cross State Air Pollution Rule (CSAPR)  -  to replace CAIR, EPA issued a limited disapproval of West Virginia's regional haze SIP (and other states' regional haze SIPs that relied similarly on CAIR) because EPA believed that full approval of the SIP was not appropriate in light of the court's remand of CAIR and the uncertain but limited remaining period of operation of CAIR.  EPA finalized a limited approval of the West Virginia regional haze SIP, indicating that except for its reliance on CAIR, the SIP met CAA requirements for the first planning period of the regional haze program.  See (77 FR 16937, March 23, 2012).  EPA also finalized a limited FIP for West Virginia, which merely substituted reliance on EPA's more recent CSAPR NOx and SO2 trading programs for EGUs for the SIP's reliance on CAIR.  See (77 FR 33642, June 7, 2012).

      Since the above-described developments with regard to West Virginia's regional haze SIP, the situation has changed.  In August 2012, the D.C. Circuit issued a decision to vacate CSAPR.  EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013).  On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review this D.C. Circuit decision.  However, at this time the D.C. Circuit decision remains in place, and EPA is acting in accordance with the decision unless and until the EME Homer City decision is reversed or otherwise modified by the Supreme Court.  The D.C. Circuit decision ordered EPA to "continue administering CAIR pending the promulgation of a valid replacement."   Thus, EPA has been ordered by the court to develop a new rule, and to continue implementing CAIR in the meantime, and the D.C. Circuit opinion makes clear that after promulgating that new rule EPA must provide states an opportunity to draft and submit SIPs to implement that rule.  Implementation of CAIR thus cannot be replaced until EPA has promulgated a final rule through a notice-and-comment rulemaking process; states have had an opportunity to draft and submit SIPs; EPA has reviewed the SIPs to determine if they can be approved; and EPA has taken action on the SIPs, including promulgating a FIP, if appropriate.

      Based on the current direction from the court to continue administering CAIR, EPA believes that it is appropriate to rely on CAIR emission reductions as permanent and enforceable for purposes of assessing the adequacy of West Virginia's infrastructure SIP with respect to prong 4 while a valid replacement rule is developed and until implementation plans complying with any new rule are submitted by the states and acted upon by EPA or until any subsequent litigation or Supreme Court review provides different direction regarding CAIR and CSAPR.  In addition, following resolution of the Supreme Court's review of EME Homer City and its decision on CSAPR, EPA will reconsider the limited disapproval of West Virginia's regional haze SIP and proceed with further rulemaking action as necessary.

      As neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia SIP, CAIR remains part of the EPA-approved SIP and can be considered in determining whether the SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i).  EPA is proposing to approve the infrastructure SIP submission with respect to prong 4 because West Virginia's regional haze SIP which EPA has given a limited approval in combination with its SIP provisions to implement CAIR adequately prevent sources in West Virginia from interfering with measures adopted by other states to protect visibility during the first planning period.  While EPA is not at this time proposing to change the March 23, 2012, limited approval and limited disapproval of West Virginia's regional haze SIP, EPA will reconsider appropriate action regarding West Virginia's regional haze SIP as necessary.

6.  Section 110(a)(2)(D)(ii)

      According to the submittal, the State has adequate provisions ensuring future compliance with the requirements of sections 126 (interstate pollution) and 115 (international air pollution) of the CAA as may be necessary.  W.VA Code section 45CSR14-17, regarding public review procedures, requires notification to other states of potential impacts from a source, meeting its obligations pursuant to CAA Section 126(a).  There are no pending actions pursuant to Sections 126(b), or (c), or 115 of the CAA applicable to West Virginia for NO2.

      EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(D)(ii).

7.  Section 110(a)(2)(E)(i) and (iii)

      As required under W.Va. Code section 22-5-4(a)(8), WVDEP has demonstrated it has adequate personnel to carry out the implementation plan with respect to the 2010 NO2 NAAQS requirements.  At present, a staff of approximately 90 full time employees is employed at WVDEP's Division of Air Quality (DAQ).  West Virginia's Air Director supervises the air monitoring, compliance and enforcement, hazardous waste, permitting and planning sections, as well as three regional DAQ offices, and answers to the Secretary.  DAQ believes its funding sources are sufficient to provide adequate personnel for those purposes and does not anticipate any changes in resources considered necessary during 5 years following SIP submittal.

      The Air Pollution Control Act of West Virginia (APCA) provides adequate funding under W.Va. Code sections 22-1-10(a) and 22-5-4(a)(17) to carry out the West Virginia SIP.  W.Va. Code section 22-5-12 sets forth the statutory operating permit requirements for stationary sources under Title V of the CAA.  EPA approved rule 45CSR30 establishes fees sufficient to cover the direct and indirect costs of administering the air pollution control planning process and Title V operating permit program and to support the air pollution control program authorized by statute.  The APCA also authorizes the establishment of fees to cover non-Title V permitting costs under 45CSR22 "Air Quality Management Fee Program."  Additionally, the air quality program receives revenue from fines and penalties (Air Pollution Control Fund), federal funds under sections 105 and 103 of the CAA and state general appropriations.

      The APCA, under W.Va. Code section 22-5-1, declares the State's policy "to fulfill its primary responsibility for assuring air quality" pursuant to the CAA.  The Secretary is authorized under W.Va. Code sections 22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent the State in any and all matters pertaining to the implementation plan.  The Secretary has the authority under W.Va. Code section 22-5-4(a)(16) "to do all things necessary and convenient to prepare and submit a plan or plans for the implementation, maintenance and enforcement of the Federal Clean Air Act."  The Secretary is not prohibited by any provision of federal or State law from carrying out the implementation plan or portion thereof.

      The Secretary has the authority under W.Va. Code sections 22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act (W.Va. Code section 29A3-1 et seq.).  Approximately forty rules revised under the auspices of the APCA are currently in effect and codified at Title 45 of the Code of State Rules, including the ambient air quality standards for NO2 and other criteria pollutants contained in 45CSR8.  West Virginia has an EPA approved air permitting program for both major and minor facilities under State rules 45CSR13, 45CSR14 (with the narrow exception for the definition of regulated NSR pollutant as previously described which is not relevant for the requirements in this element), 45CSR19 and 45CSR30 (as applicable).

      West Virginia has not relied on any local or regional agency for the implementation of any state implementation plan provision for the 2010 1-hour NO2 NAAQS and the State will retain primacy with respect to any future plan that relies on local or regional governments, agencies, or instrumentalities.

      EPA finds that West Virginia satisfies the requirements described in CAA section 110(a)(2)(E)(i) and (iii).

      As to CAA section 110(a)(2)(E)(ii), EPA will take later separate action on this portion of section 110(a)(2)(E) for the 2010 NO2 NAAQS as it relates to CAA section 128, "State Boards."

8.  Section 110(a)(2)(F)

      W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to require the installation, maintenance and replacement of equipment, and the implementation of other necessary steps by owners or operators of stationary sources to monitor and report emissions of NO2 from such sources as the Secretary may prescribe, through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance orders.  Pursuant to 40 CFR part 51, subpart A, "Air Emission Reporting Rule" (AERR), DAQ's emissions inventory program provides source-specific emissions data to EPA.

      In accordance with the emission reports and recordkeeping requirements set forth in 40 CFR 51.211, W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to require periodic reports on the nature and amounts of emissions and emissions-related data from owners or operators of stationary sources (monitoring data) of NO2 emissions through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR39, and via compliance orders.  Pursuant to W.Va. Code section 22-5-4(a)(14), the Secretary is authorized to require such information as the Secretary may require in a form or manner prescribed by the Secretary (emissions inventory program).  As required, DAQ periodically reports emission inventory information to EPA.

      W.Va. Code section 22-1-6(d)(3) authorizes the Secretary to "investigate for violations of statutes or rules which the department is charged with enforcing."  W.Va. Code section 22-5-4(a)(3) authorizes the Secretary to correlate periodic emissions reports with any NO2 emission limitations or standards established pursuant to 45CSR11, 45CSR13, 45CSR14, 45CSR19, 45CSR30 or the CAA.  As set forth in W.Va. Code section 22-5-10, the Secretary makes available at reasonable times for public inspection the periodic emissions reported under W.Va. Code sections 22-5-4(a)(14) & (15).  The Secretary has the responsibility of making all records, reports or information obtained by the WVDEP or referred to at public hearings under the provisions of the APCA, available to the public, except to the extent the records, reports or information are protected by confidentiality.  The types of records WVDEP routinely provides access to include notifications, inspection reports, notices of violation, enforcement orders, applications, permit review letters, sample results, monitoring reports, permits, approvals and denials that would relate to section 110(a)(2)(F) of the CAA.  WVDEP generally makes information available for public access through its website, but also makes hard copy reports available upon written request.

      Based upon EPA's review of the above referenced provisions, EPA finds West Virginia's SIP revision meets the obligations of CAA section 110(a)(2)(F).

9.  Section 110(a)(2)(G)

      West Virginia has authority comparable to that in section 303 of the CAA and adequate contingency plans to implement such authority.  Section 303 of the CAA provides authority to the EPA's Administrator to restrain any source from causing or contributing to emissions which present an "imminent and substantial endangerment to public health or welfare, or the environment."  W.Va. Code section 22-5-5 authorizes the Secretary to issue an order to cease and desist any activity that violates the APCA.  The Secretary may also suspend, modify or revoke a source's permit.  Under W.Va. Code section 22-5-6, the Secretary may also institute lawsuits for civil penalties.  Additionally, W.Va. Code section 22-5-7 authorizes the Secretary to seek applications for injunctive relief and W.Va. Code section 22-5-8 authorizes the Secretary, with the written authorization of the Governor, to shut down a source of NO2 emissions, thereby preventing the emission of air pollutants which substantially contributes to an emergency that requires immediate action to protect public health.  As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm accuracy of any information considered while executing authority under W.Va. Code sections 22-5-5, 22-5-6, 22-5-7 or 22-5-8.

      West Virginia's SIP-approved rule 45CSR11 provides a mechanism to prevent the buildup of air pollutant concentrations during periods of adverse meteorological conditions in which air pollutants may accumulate, thereby preventing the occurrence of an emergency due to the effects of these pollutants on health.  West Virginia has established 3 levels of pollutant concentration levels and specific emission reduction plans will be developed which will be initiated at each criteria stage to prevent further deterioration of the air supply to any air quality region or substantial portion thereof.

      Pursuant to 40 CFR 51.152(c), West Virginia does not need to develop episode contingency plans as it is classified as a Priority III Region for NO2.

      EPA finds that West Virginia has met the requirements of section 110(a)(2)(G) of the CAA.

10.  Section 110(a)(2)(H)

      EPA finds that West Virginia has demonstrated that it has adequate authority to satisfy CAA Section 110(a)(2)(H).  West Virginia has adequate authority to address revisions to SIPs, as set forth in 40 CFR 51.104.  Specifically, W.Va. Code section 22-5-4(a)(16) authorizes the Secretary to do all things necessary and convenient to prepare and submit a plan for the implementation, maintenance and enforcement of the CAA.  WVDEP has historically revised, and will continue to revise, its NAAQS rules as necessary to take account of revisions of the national primary or secondary ambient air quality standards or improved or more expeditious methods of attaining the standards.  West Virginia has promulgated various versions of the rule 45CSR8 "Ambient Air Quality Standards" to take account of revisions of, and maintain, the primary and secondary NAAQS.

      Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that West Virginia has met its obligations pursuant to 110(a)(2)(H).

11.  Section 110(a)(2)(I):

      EPA does not expect infrastructure SIP submissions to address this element.  Nonattainment area plans required under part D of Title I of the CAA are required on a different schedule from the CAA section 110(a)(2) infrastructure elements and, thus, will be reviewed and acted upon through a separate process.

12.  Section 110(a)(2)(J)

      As mentioned previously for 110(a)(2)(C), EPA will take separate action on the portion of section 110(a)(2)(J) of the CAA for the 2010 1-hour NO2 NAAQS as it relates to West Virginia's PSD program as required by part C of Title I of the CAA.

		West Virginia satisfies the applicable requirements of section 121 of the CAA.  The APCA provides adequate authority under W.Va. Code section 22-5-4(a)(2) for West Virginia's practices of consultation with local governments, organizations and Land Managers for purposes of air pollution control.  WVDEP also consults with such entities regarding implementation plans for air quality maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and prevention of significant deterioration.  For the 2010 NO2 NAAQS, West Virginia's permitting program includes three SIP-approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule 45CSR14 (77 FR 63736) (with the exception of the definition of regulated NSR pollutant as explained previously which is not relevant to the requirements for this element), and major NSR rule 45CSR19 (71 FR 64468).  West Virginia also has an approved Title V operating permit program (66 FR 50325).

      W.Va. Code section 22-4-(a)(10) authorizes the WVDEP's DAQ to notify the public of imminent and serious hazards to public health.  W.Va. Code section 22-1-12 provides authority for the public notification of NAAQS violations and education efforts as required by CAA section 127.  Each year, WVDEP issues a comprehensive Air Quality Annual Report, which compares monitored air quality data with the NAAQS and tracks the Air Quality Index.  The Air Quality Annual Report contains emissions information and air quality highlights from the previous year, provides public awareness of criteria pollutants and their effects on health, and provides educational website links to tips that improve air quality, links to technical websites and outreach efforts.

      With regard to the visibility protection aspect of 110(a)(2)(J), EPA recognizes that states are subject to visibility and regional haze program requirements under part C of Title I of the CAA (which includes sections 169A and 169B).  In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C of Title I do not change.  Thus, EPA finds that there are no applicable visibility obligations under part C "triggered" under section 110(a)(2)(J) when a new NAAQS becomes effective.  West Virginia has submitted SIP revisions to satisfy the requirements of the CAA Section 169A and 169B, and the regional haze and BART rules contained in 40 CFR 51.308.  On March 23, 2012, EPA published a final rulemaking regarding West Virginia's regional haze program, consisting of a limited approval and a limited disapproval.  See 77 FR 16937.  In EPA's view, the current status of West Virginia's regional haze SIP as having not been fully approved is not a bar to full approval of the infrastructure SIP submission with respect to the visibility protection aspect of 110(a)(2)(J), and EPA is proposing to fully approve the infrastructure SIP for this aspect.  While EPA is not at this time proposing to change the March 23, 2012 limited approval and limited disapproval of West Virginia's regional haze SIP itself, EPA will reconsider  the approval status of the regional haze SIP in a separate action as necessary after the Supreme Court reviews the EME Homer City decision as discussed previously.

      EPA is proposing to determine that the State has met its obligations pursuant to CAA Section 110(a)(2)(J) (except for the portion of this element related to PSD upon which EPA will take separate action as discussed previously in further detail).

13.  Section 110(a)(2)(K)

      EPA proposes to find that West Virginia has the authority and technical capability to conduct air quality modeling in order to assess the effect on ambient air quality relevant pollutant emissions.  W.Va. Code sections 2-5-4(a)(1) & (3) authorize the Secretary to "develop ways and means for the regulation and control of pollution of the air of the state" and "conduct such studies and research relating to air pollution and its control and abatement."  Inherent in West Virginia's authority to meet the NAAQS and to conduct studies and research is the obligation for WVDEP to perform modeling as required under the CAA to demonstrate attainment of the NAAQS, as prescribed by the EPA's Administrator.  WVDEP's DAQ employs one full time technical employee who is responsible for air quality modeling.  West Virginia will perform modeling, as required under the CAA to demonstrate attainment of the 2010 1-hour NO2 NAAQS.  Any air quality modeling to be conducted in West Virginia with respect to the NO2 NAAQS may employ source-oriented dispersion models such as AERMOD.

      Also, West Virginia can provide relevant ambient air quality data as part of the permitting and NAAQS interpretation process.  W.Va. Code sections 22-5-10, 22-5-4(a)(2) and 22-5-4(a)(16) authorize the Secretary to submit, upon request by the EPA's Administrator, modeling data predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS.  West Virginia will submit to EPA current and future air quality modeling data as part of its relevant SIP submissions and through Federal grant commitments or in other ways that EPA may request.

      Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that  West Virginia has met its obligations pursuant to CAA section 110(a)(2)(K).

14.  Section 110(a)(2)(L)

      West Virginia's program permit fees are contained in the SIP-approved major NSR rule 45CSR19.  See 71 FR 64468.  Program permit fees are also contained in West Virginia's PSD rule, on which, as mentioned previously, EPA has taken separate action.  West Virginia's approved Title V operating permit program, which satisfies the fee determination and certification requirements set forth in 40 CFR 70.9, are contained in 45CSR30.  See 66 FR 50325.  The collected fees in West Virginia have been sufficient to cover the costs of permit review and implementation and enforcement of permit terms and conditions.

      Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(L).

15.  Section 110(a)(2)(M)

      The Secretary has the authority under W.Va. Code section 22-5-4(a)(16) "to do all things necessary and convenient to prepare and submit a plan or plans for the implementation, maintenance and enforcement of the Federal Clean Air Act."  Under this statute, and pursuant to the General Plan Requirements set forth in 40 CFR 51.240, the WVDEP's DAQ is the organization authorized to develop, implement and enforce the West Virginia SIP.  W.Va. Code section 22-5-4(a)(2) authorizes the Secretary to advise, consult, and cooperate with local political subdivisions affected by the implementation plan.  West Virginia consults with local governments, organizations and Land Managers with respect to SIP development.  DAQ also consults with such entities regarding implementation plans for air quality maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and PSD.

      In accordance with the federal procedural requirements at 40 CFR 51.102, any plan or plan revision, or individual compliance schedule, prepared by DAQ is subject to a 30 day public notice period with public hearing, or in cases where there is little anticipated public interest, the opportunity for a public hearing.  State rules which contain such public notice procedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30.  The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SIP.

      Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(M).

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

      EPA has analyzed West Virginia's infrastructure submittal for the 2010 1-hour NO2 NAAQS and the Agency proposes to conclude that West Virginia's submittal meets the requirements of section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the CAA.  EPA will take separate action on the portions of section 110(a)(2) infrastructure elements for the 2010 NO2 NAAQS as they relate to the West Virginia's PSD program, as required by part C of Title I of the CAA, including portions of section 110(a)(2)(C), (D) and (J).  EPA will take later separate action on section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS as it relates to section 128, "State Boards."

      It is recommended that a notice of proposed rulemaking be prepared approving West Virginia's infrastructure submittal, or the portions thereof identified herein, for the 2010 1-hour NO2 NAAQS.


[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Rules and Regulations]
[Pages 59758-59762]
[FR Doc No: 2012-23972]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 272

[EPA-R10-RCRA-2011-0973; FRL-9707-1]

Idaho: Incorporation by Reference of Approved State Hazardous
Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Resource Conservation and Recovery Act, as amended,
(RCRA), allows the Environmental Protection Agency (EPA) to authorize
State hazardous waste management programs if the EPA finds that such
programs are equivalent to and consistent with the Federal RCRA program
and if such programs provide adequate enforcement of compliance. The
regulations are used by the EPA to codify its decision to authorize
individual State programs and incorporate by reference those provisions
of the State statutes and regulations that are subject to the EPA's
RCRA inspection and enforcement authorities as authorized provisions of
the State's program. This direct final rule revises the codification of
the authorized Idaho hazardous waste management program and
incorporates by reference authorized provisions of the State's rules
and regulations.

DATES: This rule is effective November 30, 2012, unless the EPA
receives adverse comment on this regulation by the close of business
October 31, 2012. If the EPA receives such comments, the EPA will
publish a timely withdrawal of this direct final rule in the Federal
Register informing the public that the rule will not take effect and a
separate document in the proposed rules section of this Federal
Register will serve as a proposal to codify Idaho's authorized
hazardous waste management program. The Director of the Federal
Register approves this incorporation by reference as of November 30,
2012 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2011-0973 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Nina Kocourek, U.S. EPA, Region 10, 1200 Sixth
Avenue, Suite 900, Mail Stop AWT-122, Seattle, WA 98101.
     Hand Delivery: Nina Kocourek, U.S. EPA, Region 10, 1200
Sixth Avenue, Suite 900, Mail Stop AWT-122, Seattle, WA 98101. Such
deliveries are only accepted during the normal business hours of
operation; special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2011-0973.
    The EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
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 www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means the EPA will not know your identity or contact information unless
you provide it in the body of your comment. If you send an email
comment directly to the EPA without going through www.regulations.gov
your email address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, the 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 the
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, the 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 the 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
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 EPA Region 10 Library,
1200 Sixth Avenue, Suite 900, Seattle, WA 98101. The EPA Region 10
Library is open from 9:00 a.m. to noon, and 1:00 to 4:00 p.m. Monday
through Friday, excluding legal holidays. The EPA Region 10 Library
telephone number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. EPA, Region 10,
1200 Sixth Avenue, Suite 900, Mail Stop AWT-122, Seattle, WA 98101,
email<EMAIL_ADDRESS>phone number<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Incorporation by Reference

A. What is codification?

    Codification is the process of including the rules and regulations
that comprise the State's authorized hazardous waste management program
in the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, 42
U.S.C. 6926(b), allows the Environmental Protection Agency to authorize
State hazardous waste management programs. The State regulations
authorized by the EPA supplant the federal regulations concerning the
same matter with the result that after authorization the EPA enforces
the authorized regulations. Infrequently, State statutory language
which acts to regulate a matter is also authorized by the EPA with the
consequence that the EPA enforces the authorized statutory provision.
The EPA does not authorize State enforcement authorities and does not
authorize State procedural requirements. EPA codifies the authorized
State program in 40 CFR part 272 and incorporates by reference State
statutes and regulations that make up the approved program which is
Federally enforceable. The EPA retains independent enforcement
authority pursuant to sections 3007, 3008, 3013 and 7003 of RCRA, 42
U.S.C. 6927, 6928, 6934 and 6973 and any other applicable statutory and
regulatory provisions.
    This action codifies the EPA's authorization of revisions to
Idaho's hazardous waste management program. This direct final action
codifies the State program in effect at the time the EPA authorized
revisions to the Idaho hazardous waste management program in a final
rule effective July 11, 2012 (77 FR 34229, June 11, 2012). Notice and
an opportunity for comment regarding those revisions to the authorized
State program were provided to the public at the time those revisions
were proposed. The EPA is not reopening its decision to authorize
changes to the State's program nor is the EPA requesting comment on
those revisions.

B. What is the history of the authorization and codification of Idaho's
hazardous waste management program?

    Idaho initially received final authorization for its hazardous
waste management program effective April 9, 1990 (55 FR 11015, March
26, 1990). Subsequently, the EPA authorized revisions to the State's
program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10,
1992 (57 FR 24757, June 11, 1992), June 11, 1995 (60 FR 18549, April
12, 1995), January 19, 1999 (63 FR 56086, October 21, 1998), July 1,
2002 (67 FR 44069, July 1, 2002), March 10, 2004 (69 FR 11322, March
10, 2004), July 22, 2005 (70 FR 42273, July 22, 2005), February 26,
2007 (72 FR 8283, February 26, 2007), December 23, 2008 (73 FR 78647,
December 23, 2008), and July 11, 2012 (77 FR 34229, June 11, 2012). The
EPA first codified Idaho's authorized hazardous waste management
program effective February 4, 1991 (55 FR 50327, December 6, 1990), and
updated the codification of Idaho's program effective June 5, 1992 (57
FR 11580, April 6, 1992), August 10, 1992 (57 FR 24757, June 11, 1992),
August 24, 1999 (64 FR 34133, June 25, 1999), March 8, 2005 (70 FR
11132, March 8, 2005), April 20, 2006 (71 FR 20341, April 20, 2006),
April 6, 2010 (75 FR 17309, April 6, 2010). In this action, the EPA is
revising subpart N of 40 CFR part 272, to include the most recent
authorization revision effective July 11, 2012 (77 FR 34229, June 11,
2012).

C. What codification decisions have we made in this rule?

    This action incorporates by reference the authorized revisions to
the Idaho hazardous waste management program by revising subpart N of
40 CFR part 272. Previously, 40 CFR 272.651, incorporated by reference
Idaho's authorized hazardous waste management program, as amended,
through 2008. Section 272.651 also referenced the demonstration of
adequate enforcement authority, including procedural and enforcement
provisions, which provided the legal basis for the State's
implementation of the hazardous waste management program. In addition,
Section 272.651 referenced the Memorandum of Agreement, the Attorney
General's Statement and the Program Description which were evaluated as
part of the approval process of the hazardous waste management program
in accordance with Subtitle C of RCRA. This action updates those
demonstrations of adequate enforcement authority, including procedural
and enforcement provisions, which provide the legal basis for the
State's implementation of the hazardous waste management program, as
well as the Memorandum of Agreement, the Attorney General's Statement
and the Program Description, all of which were evaluated as part of the
approval process for the program revision effective on July 11, 2012
(77 FR 34229, June 11, 2012).

D. What is the effect of idaho's codification on enforcement?

    The EPA retains its independent enforcement authority under
statutory provisions, including but not limited to, sections 3007,
3008, 3013 and 7003 of RCRA, and any other applicable statutory and
regulatory provisions, to undertake inspections and enforcement actions
and to issue orders in all authorized States. With respect to
enforcement actions, the EPA will rely on Federal sanctions, Federal
inspection authorities, and Federal procedures rather than the State
analogues to these provisions. Therefore, the EPA is not incorporating
by reference Idaho's inspection and enforcement authorities nor are
those authorities part of Idaho's approved State program which operates
in lieu of the Federal program. The EPA lists Idaho's authorities for
informational purposes, and because the EPA considered them in
determining the adequacy of Idaho's enforcement authorities. This
action revises this listing for informational purposes where these
authorities have changed under Idaho's revisions to State law and were
considered by the EPA in determining the adequacy of Idaho's
enforcement authorities. Idaho's authority to inspect and enforce the
State's hazardous waste management program requirements continues to
operate independently under State law.

E. What State provisions are not part of the codification?

    The public is reminded that some provisions of Idaho's hazardous
waste management program are not part of the federally authorized State
program.
    These non-authorized provisions include:
    (1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
    (2) Federal rules for which Idaho is not authorized, which have
been incorporated into the State regulations because of the way the
State adopted federal regulations by reference; and
    (3) State procedural and enforcement authorities which are
necessary to establish the ability of the program to enforce compliance
but which do not supplant the Federal statutory enforcement and
procedural authorities.
    State provisions that are ``broader in scope'' than the federal
program are not incorporated by reference in 40 CFR part 272. For
reference and clarity, 40 CFR 272.651(c)(3) lists the Idaho regulatory
provisions which are ``broader in scope'' than the federal program and
which are not part of the authorized program being incorporated by
reference. While ``broader in scope'' provisions are not part of the
authorized program and cannot be enforced by the EPA, the State may
enforce such provisions under State law.

F. What will be the effect of the proposed codification on Federal HSWA
requirements?

    With respect to any requirement(s) pursuant to the Hazardous and
Solid Waste Amendments of 1984 (HSWA) for which the State has not yet
been authorized and which the EPA has identified as taking effect
immediately in States with authorized hazardous waste management
programs, the EPA will enforce those Federal HSWA standards until the
State is authorized for those provisions.
    This codification does not affect Federal HSWA requirements for
which the State is not authorized. The EPA has authority to implement
HSWA requirements in all States, including States with authorized
hazardous waste management programs, until the States become authorized
for such requirements or prohibitions unless the EPA has identified the
HSWA requirement(s) as an optional or as a less stringent requirement
of the Federal Rules program. A HSWA requirement or prohibition, unless
identified by the EPA as optional or as less stringent, supersedes any
less stringent or inconsistent State provision which may have been
previously authorized by the EPA (50 FR 28702, July 15, 1985).
    Some existing State requirements may be similar to the HSWA
requirements implemented by the EPA. However, until the EPA authorizes
those State requirements, the EPA enforces the HSWA requirements and
not the State analogs.

II. Statutory and Executive Order Reviews

    This direct final action codifies revisions to the EPA-authorized
hazardous waste management program in Idaho pursuant to RCRA section
3006 and imposes no requirements other than those imposed by State law.
This action complies with applicable executive orders and statutory
provisions as follows:

1. Executive Order 12866 and 13563
    This action will codify revisions to the federally approved
hazardous waste management program in Idaho. This type of action is
exempt from review under Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993) and EO 13563 (76 FR 3821, January 21, 2011).
2. Paperwork Reduction Act
    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This direct final rule does not
establish or modify any information or recordkeeping requirements for
the regulated community.
3. Regulatory Flexibility Act
    The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et
seq., generally requires Federal agencies 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 impacts of
this direct final rule on small entities, small entity is defined as:
(1) A small business, as codified in the Small Business Size
Regulations at 13 CFR part 121; (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. The
EPA has determined that this direct final action will not have a
significant impact on small entities because the action will only have
the effect of codifying authorized pre-existing State law requirements.
After considering the economic impacts of this action, I certify that
this action will not have a significant economic impact on a
substantial number of small entities.
4. Unfunded Mandates Reform Act
    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities.
5. 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. This action addresses the
codification of the authorized State hazardous waste management program
in Idaho. Codification is the process of including the rules and
regulations that comprise the State's authorized hazardous waste
management program in the CFR. Thus, Executive Order 13132 does not
apply to this action.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
    This action does not have tribal implications, as specified in
Executive Order 13175. This action addresses the codification of the
authorized State hazardous waste management program in Idaho.
Codification is the process of including the rules and regulations that
comprise the State's authorized hazardous waste management program in
the CFR. Thus, the EPA has determined that Executive Order 13175 does
not apply to this rule.
7. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
    The EPA interprets Executive Order (EO) 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 EO has the potential to influence the regulation. This
action is not subject to EO 13045 because it codifies an approved state
program into the CFR. Codification is the process of including the
rules and regulations that comprise the State's authorized hazardous
waste management program in the CFR.
8. Executive Order 13211: Actions 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'' as
defined under Executive Order 12866.
9. National Technology Transfer and Advancement Act
    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272) directs the 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 bodies. The NTTAA directs the EPA to
provide Congress, through the OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. The
EPA has determined that this action does not involve ``technical
standards'' as defined by the NTTAA. Therefore, the EPA did not
considering the use of any voluntary consensus standards.
10. 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.
    The EPA has determined that this 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 action addresses codifying a revision of the
authorized hazardous waste management program in the State of Idaho.
The EPA has determined that the action is not subject to Executive
Order 12898.

11. Congressional Review Act
    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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 document and other required information to the U.S. Senate, the
U.S. House of Representatives, and the Comptroller General of the
United States prior to publication 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). This action will be effective November 30, 2012.

List of Subjects in 40 CFR Part 272

    Environmental protection, Hazardous materials transportation,
Hazardous waste, Incorporation by reference, Intergovernmental
relations, Water pollution control, Water supply.

    Authority:  This action is issued under the authority of
Sections 2002(a), 3006 and 7004(b) of the Solid Waste and Disposal
Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: July 24, 2012.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.

    For the reasons set forth in the preamble, the EPA amends 40 CFR
part 272 as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

0
1. The authority citation for part 272 continues to read as follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

0
2. Section 272.651 is revised to read as follows:

Sec.  272.651  Idaho State-Administered Program: Final Authorization.

    (a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Idaho
has final authorization for the following elements as submitted to the
EPA in Idaho's base program application for final authorization which
was approved by the EPA effective on April 9, 1990. Subsequent program
revision applications were approved by the EPA effective on June 5,
1992, August 10, 1992, June 11, 1995, January 19, 1999, July 1, 2002,
March 10, 2004, July 22, 2005, February 26, 2007, December 23, 2008,
and July 11, 2012.
    (b) The State of Idaho has primary responsibility for enforcing its
hazardous waste management program. However, the EPA retains the
authority to exercise its inspection and enforcement authorities in
accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C.
6927, 6928, 6934, 6973, and any other applicable statutory and
regulatory provisions, regardless of whether the State has taken its
own actions, as well as in accordance with other statutory and
regulatory provisions.
    (c) State Statutes and Regulations. (1) The Idaho statutes and
regulations cited in this paragraph are incorporated by reference as
part of the hazardous waste management program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
    (i) The binder entitled ``EPA-Approved Idaho Statutory and
Regulatory Requirements Applicable to the Hazardous Waste Management
Program'', dated July 2012.
    (ii) [Reserved]
    (2) The EPA considered the following statutes and regulations in
evaluating the State program but is not incorporating them herein for
enforcement purposes:
    (i) Idaho Code containing the General Laws of Idaho Annotated,
Title 39, Chapter 44, ``Hazardous Waste Management'', published in 2002
by the Michie Company, Law Publishers, Charlottesville, Virginia:
sections 39-4401; 39-4402; 39-4404; 39-4405 with exception of 39-
4405(9); 39-4406; 39-4407; 39-4408(4); 39-4409(2) except first
sentence; 39-4409(3); 39-4409(4) only first sentence; 39-4410; 39-
4411(1); 39-4411(3); 39-4411(6); 39-4412; 39-4413; 39-4414; 39-4415;
39-4416; 39-4417; 39-4418; 39-4419; 39-4420; 39-4421; 39-4422; 39-
4423(3); and 39-4426.
    (ii) Idaho Code containing the General Laws of Idaho Annotated,
Title 39, Chapter 58, ``Hazardous Waste Facility Siting Act'',
published in 2002 by the Michie Company, Law Publishers,
Charlottesville, Virginia: sections 39-5801; 39-5802; 39-5804; 39-5805;
39-5806; 39-5807; 39-5809; 39-5810; 39-5811; 39-5812; 39-5813(2); 39-
5814; 39-5816; 39-5817; and 39-5818(1).
    (iii) Idaho Code containing the General Laws of Idaho Annotated,
Volume 2, Title 9, Chapter 3, ``Public Writings'', published in 2010 by
the Michie Company, Law Publishers, Charlottesville, Virginia: sections
9-337 et seq.; 9-338; 9-339; 9-340A; 9-340B; 9-340C; 9-340D; 9-340E; 9-
340F; 9-340G; 9-340H; 9-341; 9-342A; 9-343; and 9-344.
    (iv) Idaho Department of Environmental Quality Rules and
Regulations, Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5,
``Rules and Standards for Hazardous Waste'', published in April 2011:
sections <IP_ADDRESS>; <IP_ADDRESS>6.02; <IP_ADDRESS>6.03;
<IP_ADDRESS>6.04; <IP_ADDRESS>6.05; <IP_ADDRESS>0; <IP_ADDRESS>0;
<IP_ADDRESS>6; <IP_ADDRESS>7; and <IP_ADDRESS>9.
    (3) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the authorized
program, are not incorporated by reference, and are not federally
enforceable:
    (i) Idaho Code containing the General Laws of Idaho Annotated,
Title 39, Chapter 44, ``Hazardous Waste Management'', published in 2002
by the Michie Company, Law Publishers, Charlottesville, Virginia:
sections 39-4403(6); 39-4403(14); 39-4403(17) only the second and third
sentences; 39-4405(9); 39-4409(1) only the fourth and fifth sentences;
39-4409(7); 39-4423(2); 39-4427B; 39-4427C; 39-4427D; 39-4428; 39-4429;
39-4430; 39-4431; and 39-4432.
    (ii) 2010 Cumulative Pocket Supplement to the Idaho Code (I.C.),
containing, Title 39, Chapters 44 ``Hazardous Waste Management'',
published in 2010 by the Michie Company, Law Publishers,
Charlottesville, Virginia: section 39-4427.
    (iii) Idaho Code containing the General Laws of Idaho Annotated,
Title 39, Chapter 58, ``Hazardous Waste Siting Act'', published in 2002
by the Michie Company, Law Publishers Charlottesville, Virginia:
section 39-5813(3).
    (iv) Idaho Department of Environmental Quality Rules and
Regulations, Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5,
``Rules and Standards for Hazardous Waste'', published in April 2011:
sections <IP_ADDRESS> only the fourth sentence; <IP_ADDRESS>5;
<IP_ADDRESS>0; and <IP_ADDRESS>0.
    (4) Memorandum of Agreement. The Memorandum of Agreement between
the EPA Region 10 and the State of Idaho (IDEQ), signed by the EPA
Regional Administrator on August 1, 2001, although not incorporated by
reference, is referenced as part of the authorized hazardous waste
management program under subtitle C of RCRA, 42 U.S.C. 6921, et seq.
    (5) Statement of Legal Authority. The ``Attorney General's
Statement for Final Authorization,'' signed by the Attorney

General of Idaho on July 5, 1988, and revisions, supplements and
addenda to that Statement, dated July 3, 1989, February 13, 1992,
December 29, 1994, September 16, 1996, October 3, 1997, April 6, 2001,
September 11, 2002, September 22, 2004, June 13, 2006, September 29,
2006, June 23, 2008, and October 14, 2011, including clarification
letter dated July 12, 2012, although not incorporated by reference, are
referenced as part of the authorized hazardous waste management program
under subtitle C of RCRA, 42 U.S.C. 6921, et seq.
    (6) Program Description. The Program Description and any other
materials submitted as part of the original application or as
supplements thereto, although not incorporated by reference, are
referenced as part of the authorized hazardous waste management program
under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

0
3. Appendix A to part 272 is amended by revising the listing for
``Idaho'' to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

Idaho

    (a) The statutory provisions include:
    Idaho Code containing the General Laws of Idaho Annotated, Title
39, Chapter 44, ``Hazardous Waste Management'', published in 2002 by
the Michie Company, Law Publishers: sections 39-4403 except for 39-
4403(6), 39-4403(14), and the second and third sentences of 39-
4403(17); 39-4408(1); 39-4408(2); 39-4408(3); 39-4409(1) except the
fourth and fifth sentences; 39-4409(2) only first sentence; 39-
4409(4) except the first sentence; 39-4409(5); 39-4409(6); 39-
4409(8); 39-4411(2); 39-4411(4); 39-4411(5); 39-4423(1); and 39-
4424.
    Idaho Code containing the General Laws of Idaho Annotated, Title
39, Chapter 58, ``Hazardous Waste Facility Siting Act'', published
in 2002 by the Michie Company, Law Publishers: sections 39-5803; 39-
5808; 39-5813(1); and 39-5818(2).
    Copies of the Idaho statutes that are incorporated by reference
are available from Michie Company, Law Publishers, 1 Town Hall
Square, Charlottesville, VA 22906-7587.
    (b) The regulatory provisions include:
    Idaho Department of Environmental Quality Rules and Regulations,
Idaho Administrative Code, IDAPA 58, Title 1, Chapter 5, ``Rules and
Standards for Hazardous Waste'', published in April 2011: sections
<IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>;
<IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>;
<IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS> with the exception of the
fourth sentence; <IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>;
<IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>; <IP_ADDRESS>6.01; and
<IP_ADDRESS>8.
* * * * *
[FR Doc. 2012-23972 Filed 9-28-12; 8:45 am]
BILLING CODE 6560-50-P


Meetings and Consultations Held with the Ute Indian Tribe Concerning at Least Partly the
Development of a Federal Implementation Plan for New, Modified and Existing Oil and Natural Gas Sources on the Uintah and Ouray Indian Reservation
                           (Last Updated 03/16/2021)

Meeting Type
Date
Location
Attendees
Docketed  -  EPA-R08-OAR-2015-0709
Consultation
7/22/15
U&O Reservation, Fort Duchesne, UT
     Chairman Shaun Chapoose, Ute Indian Tribe
     Vice Chairman Edred Secakuku, Ute Indian Tribe
     Councilman Tony Small, Ute Indian Tribe
     Councilman Bruce Ignacio, Ute Indian Tribe
     Councilman Ron Wopsock, Ute Indian Tribe
     Minnie Grant, Ute Director Air Quality Division
     Mike Natchees, Ute Air Quality Division Staff
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Shaun McGrath, EPA, Region 8 Regional Administrator
     Alfreda Mitre, EPA, Region 8
     Carl Daly, EPA, Region 8
     Phil Strobel, EPA, Region 8
     Cindy Beeler, EPA, Region 8
     Carol Russell, EPA, Region 8
     Gary Kleeman, EPA, Region 8
     Elyana Sutin, EPA, Region 8 (by phone)

Stakeholder meetings
9/3/15 and 9/17/15
EPA Offices, Region 8, Denver, CO
Four separate meetings led jointly by EPA, Ute Indian Tribe and Utah Department of Environmental Quality with stakeholders as follows:
     Oil and natural gas industry owners and operators (and representativeness) active in the Uinta Basin;
     Environmental groups,
     Local elected county officials; and
     Federal land managers.

Consultation
12/17/15
Conference call
     Vice Chairman Edred Secakuku, Ute Indian Tribe
     Councilman Bruce Ignacio, Ute Indian Tribe
     Councilman Ron Wopsock, Ute Indian Tribe
     Councilman Tony Small, Ute Indian Tribe
     Minnie Grant, Air Quality Director, Ute Indian Tribe
     Mike Natchez, Air Program, Ute Indian Tribe
     Jeremy Paterson, Fredericks Peebles & Morgan LLP, Partner
     Tom Fredericks, Fredericks Peebles & Morgan LLP, Sr. Partner
     Shaun McGrath, EPA, Region 8, Regional Administrator
     Joan Card, EPA, Region 8
     Darcy O'Connor, EPA, Region 8
     Alfreda Mitre, EPA, Region 8
     Callie Videtich, EPA, Region 8
     Carl Daly, EPA, Region 8
     Deirdre Rothery, EPA, Region 8
     Cindy Beeler, EPA, Region 8
     Jody Ostendorf, EPA, Region 8
     Elyana Sutin, EPA, Region 8
     Michael Boydston, EPA, Region 8
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards

Consultation
2/22/16
EPA Offices, Region 8, Denver, CO
     Vice Chairman Edred Secakaku, Ute Indian Tribe
     Councilman Tony Small, Ute Indian Tribe
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Callie Videtich, EPA, Region 8
     Alfreda Mitre, EPA, Region 8
     Carl Daly, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Jody Ostendorf, EPA, Region 8
     Joe Goffman, EPA, Office of Air and Radiation (by phone)
     William Niebling, EPA, Office of Air and Radiation (by phone)
     Debbie Jordan, EPA, Office of Air and Radiation (by phone)
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards (by phone)
     Laura McKelvey, EPA, Office of Air Quality, Planning and Standards (by phone)
     Pat Childers, EPA, Office of Air and Radiation (by phone)
     Andrew Byrne, EPA, Office of International and Tribal Affairs (by phone)

Tribally-convened stakeholder meeting
3/22/17
Ute Indian Tribe's Ute Energy Office, Denver, CO
    Chairman Shaun Chapoose, Ute Indian Tribe
    Vice Chairman Edred Secakuku, Ute Indian Tribe
    Jeremy Patterson, Frederick, Peebles & Morgan LLP, Partner
    Katie Frayler, Frederick, Peebles & Morgan LLP, Associate
    Tom Fredericks, Frederick, Peebles & Morgan LLP, Sr. Partner
    Monica Morales, EPA, Region 8
    Martin Hestmark, EPA, Region 8
    Carl Daly, EPA, Region 8
    Cindy Beeler, EPA, Region 8
    Gail Fallon, EPA, Region 8
    Chris Dresser, EPA, Region 8
    Claudia Smith, EPA, Region 8
    Chris Del Hierro, Crescent Point Energy
    Doug Henderer, Newfield Production Company
    Bob Hammer, Newfield Production Company
    Chad Schlichtemeier, Anadarko Petroleum Company
    Jason Rauen, EOG Resources
    Karen Pratt, XTO Energy
    Jim Martin, Beatty & Wozniak, P.C.

Tribally-convened stakeholder meeting
6/1-2/17
Offices of Beatty and Wozniak, Denver, CO
     Jim Martin, Beatty & Wozniak
     Doug Henderer, Newfield Exploration Company
     Bob Hammer, Newfield Exploration Company
     Karen Pratt, XTO Energy
     Chris Del Hierro, Crescent Point Energy
     Chris Martinez, Crescent Point Energy
     Mark Smith, EOG Resources
     Chad Schlichtemeier, Anadarko Petroleum Corporation
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Martin Hestmark, EPA, Region 8
     Chris Dresser, EPA, Region 8
     Carl Daly, EPA, Region 8
     Mike Boydston, EPA, Region 8
     Monica Morales, EPA, Region 8
     Gail Fallon, EPA, Region 8
     Cindy Beeler, EPA, Region 8
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards

Consultation
11/13/17
Renaissance Denver Stapleton Hotel, Denver, CO
     Vice Chairman Tony Small, Ute Indian Tribe
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Tom Fredericks, Fredericks Peebles & Morgan LLP, Sr. Partner
     Doug Benevento, EPA, Region 8, Regional Administrator
     Martin Hestmark, EPA, Region 8
     Kimberly Varilek, EPA, Region 8
     Carl Daly, EPA, Region 8
     Mike Boydston, EPA, Region 8
     Monica Morales, EPA, Region 8

Consultation
3/22/18
EPA Offices, Region 8, Denver, CO
     Chairman Luke Duncan, Ute Tribal Business Committee
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Katie Frayler, Fredericks Peebles & Morgan LLP, Associate
     Minnie Grant, Air Quality Director, Ute Indian Tribe (by phone)
     Sonja Willie, Asst. Director of Energy & Minerals, Ute Indian Tribe (by phone)
     Doug Benevento, EPA, Region 8, Regional Administrator
     Carl Daly, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Mike Boydston, EPA, Region 8
     Monica Morales, EPA, Region 8
     Martin Hestmark, EPA, Region 8
     Kimberly Varilek, EPA, Region 8
     Scott Patefield, EPA, Region 8

Consultation
4/26/18
Conference call
     Shaun Chapoose, Ute Tribal Business Committee
     Minnie Grant, Ute Indian Tribe Air Coordinator
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Katie Frayler, Fredericks Peebles & Morgan LLP, Associate
     Carl Daly, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Mike Boydston, EPA, Region 8
     Monica Morales, EPA, Region 8
     Gail Fallon, EPA, Region 8
     Jason Deardorff, EPA, Region 8
     Jonathan Skinner-Thompson, EPA, Office of General Counsel
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards
     Mike Koerber, EPA, Office of Air Quality, Planning and Standards
     Laura McKelvey, EPA, Office of Air Quality, Planning and Standards
Docket  -  EPA - HQ - OAR - 2014 - 0606-0079
Corrected Info  -  Docket - EPA - HQ - OAR - 2014 - 0606-0082
Consultation
8/17/18
EPA Offices, Region 8, Denver, CO
     Amy Cesspooch, Ute Indian Tribe
     Marie Kaufusi, Ute Indian Tribe
     Sal Wopsock, Ute Indian Tribe
     Mike Natchees, Ute Indian Tribe
     Lonnie Favel, Ute Indian Tribe
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Katie Frayler, Fredericks Peebles & Morgan LLP, Associate
     Doug Benevento, EPA, Region 8, Regional Administrator
     Martin Hestmark, EPA, Region 8
     Kimberly Varilek, EPA, Region 8
     Carl Daly, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Mike Boydston, EPA, Region 8
     Monica Morales, EPA, Region 8
     Gail Fallon, EPA, Region 8
     Jason Deardorff, EPA, Region 8
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards (by video conference)
     Mike Koerber, EPA, Office of Air Quality, Planning and Standards (by video conference)
     Laura McKelvey, EPA, Office of Air Quality, Planning and Standards (by video conference)
     Toni Colon, EPA, Office of Air Quality, Planning and Standards (by video conference)
Docket - EPA - HQ - OAR - 2014 - 0606-0094
Consultation
11/14/18

EPA Offices, Region 8, Denver, CO
     Councilman Sal Wopsock, Ute Business Committee
     Vice Chair Tony Small, Ute Business Committee
     Reannin Stewart, Administrative Assistant, Ute Indian Tribe
     Luanna Thompson, Assistant, Ute Indian Tribe
     Minnie Grant, Air Quality Director, Ute Indian Tribe (by phone)
     Amy Cesspooch, Ute Indian Tribe (by phone)
     Mike Natchees, Air Program, Ute Indian Tribe
     Marie Kaufusi, Air Program, Ute Indian Tribe
     Lonnie Favel, Air Program, Ute Indian Tribe
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Katie Frayler, Fredericks Peebles & Morgan LLP, Associate
     Tom Fredericks, Fredericks Peebles & Morgan LLP, Sr. Partner
     Mike Boydston, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Chris Dresser, EPA, Region 8
     Carl Daly, EPA, Region 8
     Kim Varilek, EPA, Region 8
     Monica Morales, EPA, Region 8
     Chris Stoneman, EPA, Office of Air Quality, Planning and Standards (by phone)

Meeting
12/6/18
EPA Offices, Washington, DC
     Bill Wehrum, EPA, Office of Air and Radiation, Assistant Administrator
     Chad McIntosh, EPA, Office of International and Tribal Affairs, Assistant Administrator
     Pat Childers, EPA, Office of Air and Radiation
     Mike Koerber, EPA, Office of Air Quality, Planning and Standards (by phone)
     Doug Benevento, EPA, Region 8, Regional Administrator (by phone)
     Monica Morales, EPA, Region 8 (by phone)
     Gail Fallon, EPA, Region 8 (by phone)
     Carl Daly, EPA, Region 8 (by phone)
     Martin Hestmark, EPA, Region 8 (by phone)
     Kimberly Varilek, EPA, Region 8 (by phone)
     Chairman Duncan, Ute Indian Tribe
     Councilman Shaun Chapoose, Ute Indian Tribe
     Councilman Edred Secakuku, Ute Indian Tribe
     Councilman Sal Wopsock, Ute Indian Tribe
     Reannin Stewart, Ute Indian Tribe
     Luana Thompson, Ute Indian Tribe
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Rollie Wilson, Fredericks, Peebles & Morgan LLP, Partner
Docket - EPA - HQ - OAR - 2014 - 0606-0100
Meeting
2/11/19
EPA Offices, Washington, DC
     Councilman Shaun Chapoose, Ute Indian Tribe
     Mike Natchees, Ute Indian Tribe Energy and Minerals Department, Acting Air Coordinator
     Mari Pawninnee, Ute Indian Tribe, Tribal Secretary
     Rollie Wilson, Fredericks, Peebles & Morgan LLP, Partner
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Clint Woods, EPA, Office of Air and Radiation
     Pat Childers, EPA, Office of Air and Radiation
     Felicia Wright, EPA, Office of International and Tribal Affairs
     Martin Dieu, EPA, Office of International and Tribal Affairs
     Mike Koerber, EPA, Office of Air Quality, Planning and Standards (by phone)
     Carl Daly, EPA, Region 8 (by phone)
     Megan Garvey, EPA, Region 8 (by phone)
     Mike Boydston, EPA, Region 8 (by phone)
     Kim Varilek, EPA, Region 8 (by phone)
Docket - EPA - HQ - OAR - 2014 - 0606-0101
Consultation
2/28/19
U&O Reservation, Fort Duchesne, UT
     Councilman Ron Wopsock, Ute Business Committee
     Councilman Sal Wopsock, Ute Business Committee
     Councilman Shaun Chapoose, Ute Business Committee
     Councilman Edred Secakaku, Ute Business Committee
     Vice Chair Tony Small, Ute Business Committee
     Mike Natchees, Ute Indian Tribe Energy and Minerals Department
     Lonnie Favel, Ute Indian Tribe Energy and Minerals Department
     Marie Kafusi, Ute Indian Tribe Energy and Minerals Department
     Sonja Willie, Acting Dir. Ute Indian Tribe Energy and Minerals Department
     Members of Ute Indian Tribe's Natural Resources Department
     Jeremy Patterson, Fredericks, Peebles & Morgan LLP, Partner
     Katie Frayler, Fredericks, Peebles & Morgan LLP, Associate (by phone)
     Doug Benevento, EPA, Region 8, Regional Administrator
     Mike Boydston, EPA, Region 8
     Claudia Smith, EPA, Region 8
     Chris Dresser, EPA, Region 8
     Carl Daly, EPA, Region 8 (by phone)
     Kim Varilek, EPA, Region 8
     Monica Morales, EPA, Region 8
     Martin Hestmark, EPA, Region 8
     Megan Garvey, EPA, Region 8
     Jason Deardorff, EPA, Region 8

Tribally-requested meeting
3/6/19
EPA Offices, Washington, DC
     Rollie Wilson, Fredericks Peebles & Morgan LLP, Partner
     Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
     Chairman Luke Duncan, Ute Indian Tribe
     Vice Chairman Tony Small, Ute Indian Tribe
     Council Member Edred Secakuku, Ute Indian Tribe
     Luana Thompson, Assistant, Ute Indian Tribe
     Reannin Stewart, Assistant, Ute Indian Tribe
     Jane Nishida, EPA, Office of International and Tribal Affairs
     Mike Koerber, EPA, Office of Air Quality, Planning and Standards (by phone)
     Deb Thomas, Region 8 Deputy Regional Administrator (by phone)
     Martin Hestmark, EPA, Region 8 (by phone)
     Monica Morales, EPA, Region 8 (by phone)
     Megan Garvey, EPA, Region 8 (by phone)
     Mike Boydston, EPA, Region 8 (by phone)
     Kim Varilek, EPA, Region 8 (by phone)

Tribally-requested meeting
3/13/19
EPA Offices, Washington, DC
    Vice-Chairman Tony Small, Ute Business Committee
    Rollie Wilson, Fredericks Peebles & Morgan LLP, Partner
    Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
    Clint Woods, EPA, Office of Air and Radiation
    Megan Garvey, EPA, Region 8 (by phone)
    Martin Hestmark, EPA, Region 8 (by phone)
    Carl Daly, EPA, Region 8 (by phone)

Tribally-requested meeting
3/18/19
EPA, Region 8 Offices, Denver, CO
 Councilman Sal Wopsock, Ute Business Committee
 Councilman Edred Secakuku, Ute Business Committee
 Reannin Stewart, Assistant, Ute Indian Tribe
 Jeremy Patterson, Fredericks Peebles & Morgan LLP, Partner
 Tom Fredericks, Fredericks Peebles & Morgan LLP, Sr. Partner
 Katie Frayler, Fredericks Peebles & Morgan LLP, Associate
 Mike Natchees, Ute Indian Tribe Energy and Minerals Department
 Lonnie Favel, Ute Indian Tribe Energy and Minerals Department
 Marie Kaufusi, Ute Indian Tribe Energy and Minerals Department
 Brian Joffe, Deputy Regional Counsel, EPA, Region 8
 K.C. Schefski, Regional Counsel, EPA, Region 8
 Doug Benevento, EPA, Region 8, Regional Administrator
 Megan Garvey, EPA, Region 8
 Chris Dresser, EPA, Region 8
 Carl Daly, EPA, Region 8
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Martin Hestmark, EPA, Region 8

Consultation
4/2/19
U&O Reservation, Fort Duchesne, UT
 Chairman Luke Duncan, Ute Indian Tribe
 Councilman Shaun Chapoose, Ute Business Committee
 Councilman Ron Wopsock, Ute Business Committee
 Councilman Edred Secakuku, Ute Business Committee
 Reannin Stewart, Assistant, Ute Indian Tribe
 Kirby Arrive, Executive Director, Ute Indian Tribe
 Mike Natchees, Ute Indian Tribe Energy and Minerals Department
 Marie Kaufusi, Ute Indian Tribe Energy and Minerals Department
 Amy Cesspooch, Ute Indian Tribe Energy and Minerals Department
 Sonja Willie, Acting Natural Resources Director, Ute Indian Tribe
 Jeremy Patterson, Fredericks Peebles & Patterson LLP, Partner
 Katie Frayler, Fredericks Peebles & Patterson LLP, Associate (by video conference)
 Carl Daly, EPA, Region 8
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Martin Hestmark, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8
 Chris Dresser, EPA, Region 8

Tribally-requested meeting
4/15/19
EPA, Region 8 Offices, Denver, CO
 Jeremy Patterson, Fredericks Peebles & Patterson LLP, Partner (by phone)
 Katie Frayler, Fredericks Peebles & Patterson LLP, Associate (by phone)
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8
 Chris Dresser, EPA, Region 8

Tribally-requested meeting
9/5/19
Teleconference
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8
 Chris Dresser, EPA, Region 8
 Carl Daly, EPA, Region 8
 Mike Natchees, Ute Indian Tribe Air Quality Program
 Jeremy Patterson, Fredericks Peebles & Patterson LLP, Partner
 Katie Frayler, Fredericks Peebles & Patterson LLP, Associate

Consultation
2/5/20
U&O Reservation, Fort Duchesne, UT
 Chairman Luke Duncan, Ute Indian Tribe
 Councilman Shaun Chapoose, Ute Business Committee
 Councilman Ron Wopsock, Ute Business Committee
 Councilman Edred Secakuku, Ute Business Committee
 Reannin Stewart, Assistant, Ute Indian Tribe
 Kirby Arrive, Executive Director, Ute Indian Tribe
 Mike Natchees, Ute Indian Tribe Air Quality Program
 Marie Kaufusi, Ute Indian Tribe Air Quality Program
 Amy Cesspooch, Ute Indian Tribe Air Quality Program
 Sonja Willie, Acting Natural Resources Director, Ute Indian Tribe
 Jeremy Patterson, Fredericks Peebles & Patterson LLP, Partner
 Katie Frayler, Fredericks Peebles & Patterson LLP, Associate (by video conference)
 Greg Sopkin, EPA, Region 8
 Jagadeesan Sethuraman, EPA, Region 8
 Carl Daly, EPA, Region 8
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Gail Fallon, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8
 Chris Dresser, EPA, Region 8

Informational Meeting
1/12/21
Video Conference
 Chairman Luke Duncan, Ute Indian Tribe
 Councilman Shaun Chapoose, Ute Business Committee
 Councilman Ron Wopsock, Ute Business Committee
 Councilman Edred Secakuku, Ute Business Committee
 Reannin Stewart, Assistant, Ute Indian Tribe
 Mike Natchees, Ute Indian Tribe Air Quality Program
 Marie Kaufusi, Ute Indian Tribe Air Quality Program
 Amy Cesspooch, Ute Indian Tribe Air Quality Program
 Jeremy Patterson, Patterson Earnhart Real Bird & Wilson, LLP, Partner
 Katie Frayler, Patterson Earnhart Real Bird & Wilson, LLP, Associate
 Carl Daly, EPA, Region 8
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Gail Fallon, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8

Meeting (FIP status update during consultation on other issues)
10/6/2021
Video Conference
 Ute Tribe participants
 Monica Morales, EPA, Region 8
 Mike Boydston, EPA, Region 8
 Paul Logan, EPA, Region 8
 Everett Volk, EPA, Region 8

Meeting (Post-OMB EO 12866 Interagency Review Final FIP Update)
6/21/2022
Teleconference (MS Teams)
 Jeremy Patterson, Patterson Earnhart Real Bird & Wilson, LLP, Partner
 Mike Natchees, Ute Indian Tribe Air Quality Program
 Kim Varilek, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8

Consultation
8/2/2022
Teleconference (MS Teams)
 Chairman Shaun Chapoose, Ute Indian Tribe
 Councilman Christopher Tabee, Ute Business Committee
 Councilman Ron Wopsock, Ute Business Committee
 Councilman Edred Secakuku, Ute Business Committee
 Reannin Stewart, Assistant, Ute Indian Tribe
 Mike Natchees, Ute Indian Tribe Air Quality Program
 Marie Kaufusi, Ute Indian Tribe Air Quality Program
 Amy Cesspooch, Ute Indian Tribe Air Quality Program
 Thomasina Real Bird, Patterson Earnhart, Real Bird & Wilson, LLP, Partner
 Linda Cooper, Patterson Earnhart, Real Bird & Wilson, LLP, Partner
 Jeremy Patterson, Patterson Earnhart Real Bird & Wilson, LLP, Partner
 Kim Varilek, EPA, Region 8
 Monica Morales, EPA, Region 8
 Gail Fallon, EPA, Region 8
 Claudia Smith, EPA, Region 8
 Mike Boydston, EPA, Region 8