
[Federal Register: August 12, 2010 (Volume 75, Number 155)]
[Proposed Rules]               
[Page 48880-48894]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au10-16]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2007-0296, FRL-9188-9]

 
Approval and Promulgation of Gila River Indian Community's Tribal 
Implementation Plan

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
the Gila River Indian Community's (GRIC or the Tribe) Tribal 
Implementation Plan (TIP) under the Clean Air Act (CAA) to regulate air 
pollution within the exterior boundaries of the Tribe's reservation. 
The proposed TIP is one of four CAA regulatory programs that comprise 
the Tribe's Air Quality Management Plan (AQMP). EPA approved the Tribe 
for treatment in the same manner as a State (Treatment as State or TAS) 
for purposes of administering the AQMP and other CAA authorities on 
October 21, 2009. In this action we propose to act only on those 
portions of the AQMP that constitute a TIP containing severable 
elements of an implementation plan under CAA section 110(a). The 
proposed TIP includes general and emergency authorities, ambient air 
quality standards, permitting requirements for minor sources of air 
pollution, enforcement authorities, procedures for administrative 
appeals and judicial review in Tribal court, requirements for area 
sources of fugitive dust and fugitive particulate matter, general 
prohibitory rules, and source category-specific emission limitations. 
The purpose of the proposed TIP is to implement, maintain, and enforce 
the National Ambient Air Quality Standards (NAAQS) in the GRIC 
reservation. The intended effect of today's proposed action is to make 
the GRIC TIP federally enforceable.

DATES: Comments must be received on or before September 13, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2007-0296, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: tax.wienke@epa.gov
     Fax: 415-947-3579
     Mail: Wienke Tax, Air Planning Office, Environmental 
Protection Agency, Region 9 Office, 75 Hawthorne Street, San Francisco, 
CA 94105-3901.
     Hand Delivery: Wienke Tax, Air Planning Office, 
Environmental Protection Agency, Region 9 Office, 75 Hawthorne Street, 
San Francisco, CA 94105-3901. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8 to 4:55 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-
2007-0296. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any

[[Page 48881]]

disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://
www.regulations.gov or in hard copy at the Air Planning Office, U.S. 
Environmental Protection Agency, Region 9, 75 Hawthorne Street, San 
Francisco, California, 94105-3901. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office, 
Environmental Protection Agency, Region 9 Office, 75 Hawthorne Street, 
San Francisco, CA 94105-3901, (415) 947-4192 or tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we'', 
``us'', and ``our'' refer to EPA.

Table of Contents

I. Background
II. CAA Requirements and the Role of Indian Tribes
    A. What authorities may Indian Tribes obtain under the CAA?
    B. What criteria must an Indian Tribe meet to be treated in the 
same manner as a State under the CAA?
    C. What is a CAA Implementation Plan?
    D. What is a Tribal Implementation Plan?
III. Evaluation of the GRIC's Implementation Authorities
    A. How did the GRIC demonstrate eligibility to be treated in the 
same manner as a State under the CAA?
    B. How would the GRIC administer and enforce the TIP?
IV. Evaluation of the GRIC's Tribal Implementation Plan
    A. What air quality goals does the GRIC TIP address?
    B. What procedural requirements did the GRIC satisfy?
    C. What authorities and requirements does the GRIC TIP contain?
    1. General Provisions
    2. Permit Requirements
    3. Enforcement
    4. Administrative Appeals and Judicial Review
    5. Area Source Emissions Limits
    6. Generally Applicable Individual Source Requirements for 
Existing and New Sources
    7. Source/Category-Specific Emission Limits for Existing and New 
Sources
    D. What other information has the GRIC submitted to support the 
TIP?
    1. Emissions Inventory
    2. Air Quality Monitoring Network
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    EPA is proposing to approve a TIP submitted by the GRIC for 
approval under section 110 of the CAA. The proposed TIP contains 
general and emergency authorities; procedures for the preparation, 
adoption, and submission of the GRIC's TIP and broader air quality 
management plan (AQMP) \1\; provisions adopting the National Ambient 
Air Quality Standards (NAAQS) for sulfur dioxide, particulate matter, 
nitrogen dioxide, ozone, lead and carbon monoxide, as Tribal standards 
\2\; permit requirements for new and existing minor sources of air 
pollutants; procedures for civil and criminal enforcement; requirements 
and procedures for administrative appeals and judicial review in Tribal 
court; requirements for area sources of fugitive dust and fugitive 
particulate matter; general prohibitory rules for existing and new 
sources; and source category-specific emission limits and standards for 
existing and new sources. The Tribe also submitted an inventory of 
emission sources on the reservation and information about its air 
quality monitoring program to support the TIP.
---------------------------------------------------------------------------

    \1\ The TIP is one of four regulatory programs that comprise the 
AQMP. The other three AQMP programs implement the New Source 
Performance Standards (NSPS) under CAA 111; the National Emission 
Standards for Hazardous Air Pollutants (NESHAP) under CAA 112; and 
title V operating permit requirements. Although the procedural 
requirements in the GRIC's AQMP apply to the adoption, submission, 
and revision of all AQMP programs, in this action we are proposing 
to approve these procedures as part of and only for the purposes of 
the TIP.
    \2\ To date, GRIC has adopted only those Federal NAAQS that were 
effective as of October 2006. This does not alter the applicability, 
within the GRIC reservation, of any CAA requirement based on a new 
or revised NAAQS that the Tribe has not yet adopted under Tribal 
law. Nonetheless, to avoid confusion, we encourage the GRIC to adopt 
all new or revised Federal NAAQS as Tribal standards and to submit 
them to EPA as revisions to the TIP.
---------------------------------------------------------------------------

    The Gila River Indian Community is an Indian tribe federally 
recognized by the U.S. Secretary of the Interior (see 67 FR 46328, July 
12, 2002). The GRIC Department of Environmental Quality (DEQ) was 
established by executive order in August 1995 by then-Governor Mary 
Thomas. Beginning in 1998, the GRIC DEQ, with assistance from EPA, 
began developing a draft AQMP with the goal of submitting it to EPA for 
approval under the CAA. On December 6, 2006, the GRIC also submitted a 
request that we find the Tribe eligible for TAS pursuant to section 
301(d) of the CAA and Title 40, part 49 of the Code of Federal 
Regulations (CFR), for the purpose of implementing the AQMP. 
Specifically, the GRIC DEQ requested a TAS eligibility determination 
for purposes of implementing four CAA programs that together comprise 
the AQMP: (1) A Tribal Implementation Plan (TIP) that includes source-
specific rules and a minor source permit program under CAA section 110; 
(2) the Federal New Source Performance Standards (NSPS) under CAA 
section 111; (3) the Federal National Emissions Standard for Hazardous 
Air Pollutants (NESHAP) under CAA section 112; and (4) an operating 
permit program under title V of the Act. In addition, the Tribe 
requested TAS for receiving notifications as an ``affected State'' 
under title V of the CAA and submitting recommendations to EPA on air 
quality designations under CAA section 107(d). On October 21, 2009, EPA 
determined that the Tribe is eligible for TAS for these purposes.\3\
---------------------------------------------------------------------------

    \3\ EPA has also previously approved the Tribe's applications 
for TAS eligibility for tribal water pollution control grants under 
Section 106 of the Clean Water Act (CWA) (March 1990), air pollution 
control grants under Section 105 of the CAA (March 1999), and non 
point source management grants under Section 319 of the CWA 
(February 2004).
---------------------------------------------------------------------------

    The GRIC formally submitted the AQMP to EPA Region 9 on February 
21, 2007, and submitted supplemental materials on July 11, 2007, June 
22, 2009, and July 17, 2010. Having found that the GRIC is eligible for 
TAS to implement these regulatory programs, EPA is now proposing to 
approve the Tribe's TIP. We intend to act on the Tribe's title V 
operating permit program and request for delegation of the NSPS and 
NESHAPs in separate notice and comment processes, as appropriate.
    Approval and implementation of the GRIC TIP will be an important 
step in ensuring that basic air quality protection is in place to 
protect public health and welfare in the GRIC reservation, consistent 
with the CAA's overarching goals of protecting air resources throughout 
the nation, including air resources in Indian Country.

[[Page 48882]]

II. CAA Requirements and the Role of Indian Tribes

A. What authorities may Indian Tribes obtain under the CAA?

    The CAA is implemented in two basic ways.\4\ In the first approach, 
EPA is primarily responsible both for setting national standards or 
interpreting the requirements of the Act and for implementing the 
Federal requirements that are established. In general, this approach is 
reserved for programs requiring a high degree of uniformity in their 
implementation--e.g., regulation of substances that deplete 
stratospheric ozone under Title VI of the Act. See 59 FR 43956 at 
43957.
---------------------------------------------------------------------------

    \4\ For a brief description of some of the many programs 
contained in the CAA, see ``Addendum A to Preamble--General 
Description of Clean Air Act Programs,'' 59 FR 43956 at 43976 
(August 25, 1994) (Indian Tribes: Air Quality Planning and 
Management, proposed rule).
---------------------------------------------------------------------------

    The principal method of CAA implementation, however, is through a 
cooperative partnership between the states and EPA. While this 
partnership can take several shapes, generally EPA issues national 
standards or Federal requirements and the states assume primary 
responsibility for implementing these requirements. Prior to assuming 
implementation responsibility, states must submit their programs to EPA 
and must demonstrate that their programs meet minimum Federal CAA 
requirements. Among these requirements is the mandate that states 
demonstrate that they have adequate legal authority and resources to 
implement the programs. If a State program is approved or if the 
authority to implement a Federal program is delegated to a State, EPA 
maintains an ongoing oversight role to ensure that the program is 
adequately enforced and implemented and to provide technical and policy 
assistance. See 59 FR 43956 at 43957.
    As part of the 1990 Amendments to the CAA, Congress enacted Section 
301(d) authorizing EPA to ``treat Indian tribes as States'' under the 
Act so that Tribes may develop and implement CAA programs in the same 
manner as States within Tribal reservations or in other areas subject 
to Tribal jurisdiction. Section 301(d)(2) of the Act authorizes EPA to 
promulgate regulations specifying those provisions of the CAA ``for 
which it is appropriate to treat Indian tribes as States.'' 42 U.S.C. 
7601(d)(2).
    On February 12, 1998, EPA issued a final rule specifying those 
provisions of the CAA for which it is appropriate to treat eligible 
Indian tribes in the same manner as states, known as the Tribal 
Authority Rule (TAR). 63 FR 7254, codified at 40 CFR part 49. As a 
general matter, EPA determined in the TAR that it is not appropriate to 
treat tribes in the same manner as states for purposes of specific 
program submittal and implementation deadlines. This is because, among 
other reasons (discussed at 59 FR at 43964-65), although the CAA 
contains many provisions mandating the submittal of State plans, 
programs, or other requirements by certain dates, the Act does not 
similarly require tribes to develop and seek approval of CAA programs. 
Thus, tribes are generally not subject to CAA provisions that specify a 
deadline by which something must be accomplished, e.g., provisions 
mandating the submission of State implementation plans under section 
110(a) and Part D of the Act. 40 CFR 49.4. As a result, tribes are also 
not subject to the section 179 sanctions and certain other Federal 
oversight mechanisms in the Act that are triggered when states fail to 
meet these deadlines or when EPA disapproves a program submittal. 40 
CFR 49.4(c), (d).
    A tribe that meets the eligibility criteria for TAS may, however, 
choose to implement a CAA program. A tribe may also submit reasonably 
severable portions of a CAA program, if it can demonstrate that its 
proposed air program is not integrally related to program elements not 
included in the plan submittal and is consistent with applicable 
statutory and regulatory requirements. 40 CFR 49.7(c); see also CAA 
110(o). This modular approach is intended to give tribes the 
flexibility to address their most pressing air quality issues and 
acknowledges that tribes often have limited resources with which to 
address their environmental concerns. Consistent with the exceptions 
listed in 40 CFR 49.4, once submitted, a tribe's proposed air program 
will be evaluated in accordance with applicable statutory and 
regulatory criteria in a manner similar to the way EPA would review a 
similar State submittal. 40 CFR 49.9(h). EPA expects tribes to fully 
implement and enforce their approved programs and, as with states, EPA 
retains its authority to impose sanctions for failure to implement an 
approved air program. See 59 FR 43956 at 43965 (Aug. 25, 1994) 
(explaining EPA's rationale for treating Tribes in the same fashion as 
States for purposes of mandatory sanctions for nonimplementation of an 
approved part D program (CAA 179(a)(4)) and with respect to EPA's 
discretionary authority to impose sanctions (CAA 110(m)); 40 CFR 49.4.

B. What criteria must an Indian Tribe meet to be treated in the same 
manner as a State under the CAA?

    Under section 301(d) of the CAA and the TAR, EPA may treat a tribe 
in the same manner as a State for purposes of administering certain CAA 
programs or grants if the tribe demonstrates that: (1) It is a 
federally-recognized tribe; (2) it has a governing body carrying out 
substantial governmental duties and powers; (3) the functions to be 
exercised by the tribe pertain to the management and protection of air 
resources within the exterior boundaries of the reservation (or other 
areas under the tribe's jurisdiction); and (4) it can reasonably be 
expected to be capable of carrying out the functions for which it seeks 
approval, consistent with the CAA and applicable regulations.
    To receive EPA approval of a CAA program, a tribe must, as a 
threshold matter, obtain a determination from EPA that it meets these 
eligibility requirements. 40 CFR 49.6. As discussed in section III 
below, we previously determined that the GRIC meets these eligibility 
requirements for purposes of implementing the TIP and other CAA 
authorities.

C. What is a CAA Implementation Plan?

    Under the CAA, EPA has established NAAQS, or minimum air quality 
standards, for six pollutants found in ambient air: carbon monoxide 
(CO), lead (Pb), nitrogen dioxide (NO2), ozone 
(O3), particulate matter (PM), and sulfur dioxide 
(SO2). The NAAQS are based on comprehensive studies of 
available ambient air monitoring data, health effects data, and studies 
of effects on materials. The primary standards are designed to protect 
the public from health risks, including children, people with asthma, 
and the elderly. The secondary standards are designed to prevent 
unacceptable effects on the public welfare, e.g., damage to crops and 
vegetation, buildings and property, and ecosystems.
    An implementation plan is a set of programs and regulations 
developed by the appropriate regulatory agency to protect public health 
and welfare through the attainment and maintenance of the NAAQS. The 
regulatory agency is generally free to choose whatever mix of 
requirements it determines best suits its specific circumstances so 
long as the implementation plan meets applicable requirements and 
ensures attainment and maintenance of the NAAQS. These plans can be 
developed by states, eligible Indian tribes, or the EPA, depending on 
which entity has

[[Page 48883]]

jurisdiction in a particular area. Implementation plans developed by 
states are called State Implementation Plans or SIPs. Similarly, plans 
developed by eligible Indian tribes are called Tribal Implementation 
Plans or TIPs. Occasionally, EPA will develop an implementation plan 
for a specific area. This is referred to as a Federal Implementation 
Plan or FIP. Following final approval and publication in the Federal 
Register, the provisions of a SIP, TIP or FIP become federally 
enforceable.
    The contents of a typical implementation plan may fall into three 
broad categories: (1) Agency-adopted control measures which consist of 
prohibitory rules or source-specific requirements (e.g., orders, 
consent decrees or permits); (2) agency-submitted ``non-regulatory'' 
components (e.g., attainment plans, rate of progress plans, emission 
inventories, transportation control measures, statutes demonstrating 
legal authority, monitoring programs); and (3) additional requirements 
promulgated by the EPA (in the absence of a commensurate agency 
provision) to satisfy a mandatory Clean Air Act section 110 or part D 
requirement. The implementation plan is a living document which can be 
revised by the State or eligible Indian Tribe as necessary to address 
air pollution problems. Changes to the plan, such as new and/or revised 
regulations, that EPA approves following notice and comment rulemaking 
become part of the federally-enforceable implementation plan.
    A geographic area that meets or does better than a primary standard 
is called an attainment area. An area for which there is insufficient 
information to determine whether the area meets the NAAQS is called an 
unclassifiable area. An area that does not meet a standard, or that 
contributes pollution to a nearby area that does not meet a standard, 
is called a nonattainment area. An area may be designated attainment or 
unclassifiable/attainment for some pollutants and nonattainment for 
others.
    The CAA requires that the NAAQS be met nationwide and requires 
states to adopt SIPs that provide for the implementation, maintenance, 
and enforcement of the NAAQS. CAA 110(a). For attainment and 
unclassifiable areas, the CAA requires states to submit the basic 
program elements specified in section 110(a)(2) necessary to implement 
the NAAQS--e.g., enforceable emission limitations and other control 
measures (CAA 110(a)(2)(A)), a program to provide for the enforcement 
of these measures (CAA 110(a)(2)(C)), and necessary assurances that the 
State will have adequate personnel, funding, and authority under State 
law to carry out the plan (CAA 110(a)(2)(E)(i)). For nonattainment 
areas, in addition to these basic program elements, the CAA requires 
states to adopt SIPs containing specific program elements in part D, 
Title I of the Act, in accordance with specified deadlines based on the 
severity of the air pollution problem.

D. What is a Tribal Implementation Plan?

    Section 301(d) of the CAA and the TAR authorize eligible Indian 
tribes to implement various CAA programs, including TIPs under section 
110 of the Act. TIPs (1) are optional; (2) may be modular; (3) have 
flexible submission schedules; and (4) allow for joint tribal and EPA 
management.\5\
---------------------------------------------------------------------------

    \5\ For guidance on development of TIPs, see ``Developing a 
Tribal Implementation Plan,'' Office of Air Quality Planning and 
Standards, U.S. EPA, October 2002 (EPA 452/R-02-010), http://
www.epa.gov/air/tribal/tip2002/index.html.
---------------------------------------------------------------------------

1. Optional
    The CAA requires each State to adopt a SIP. Unlike states, Indian 
tribes are not required to adopt a CAA implementation plan. In the TAR, 
we recognized that not all Indian tribes will have the need or the 
desire to implement an air pollution control program, and we 
specifically determined that it was not appropriate to treat tribes in 
the same manner as states for purposes of plan submittal and 
implementation deadlines. See 40 CFR 49.4(a) (exempting Tribes from the 
plan submittal deadlines for nonattainment areas set out in sections 
172(a)(2), 182, 187, 189, and 191 of the Act); see also 59 FR 43956, 
43964-67 (Aug. 25, 1994) (proposed TAR preamble) and 63 FR 7254, 7264-
66 (Feb. 12, 1998) (final TAR preamble).
2. Modular
    The TAR allows eligible Indian tribes to submit partial elements of 
a CAA program, so that they can target their most important air quality 
issues without the corresponding burden of developing entire CAA 
programs. Under this modular approach, TIP elements that the eligible 
Indian tribe submits must be ``reasonably severable'' from program 
elements that the tribe chooses not to submit. ``Reasonably severable'' 
elements are those that are not integrally related to program elements 
not included in the TIP. See 40 CFR 49.7(c); see also 59 FR 43956, 
43961-69 (Aug. 25, 1994) (proposed TAR preamble) and 63 FR 7254 (Feb. 
12, 1998) (final TAR preamble). So, for example, a tribe may choose to 
submit a TIP that addresses only specific types of sources and/or 
specific air pollutants.
3. Have Flexible Submission Schedules
    Neither the CAA nor the TAR requires Indian tribes to develop TIPs. 
Therefore, unlike states, Indian tribes are not required to meet the 
plan submittal or implementation deadlines specified in the CAA. Indian 
tribes may establish their own schedules and priorities for developing 
TIP elements (e.g., regulations to limit emissions of a specific air 
pollutant) and submitting them to the EPA. Indian tribes will not face 
sanctions for failing to submit or for submitting incomplete or 
deficient TIPs. See 40 CFR 49.4; 59 FR 43956, 43964-65 (Aug. 25, 1994) 
(proposed TAR preamble) and 63 FR 7254 at 7265 (Feb. 12, 1998) (final 
TAR preamble).
4. Allow for Joint Tribal and EPA Management
    Consistent with the CAA and the TAR, a tribe may revise a TIP and 
take on new programs based on changes in tribal need or capacity. In 
any case, EPA retains its general authority to directly implement CAA 
requirements in Indian Country as necessary or appropriate to protect 
tribal air resources. See CAA 301(a), 301(d)(4); 40 CFR 49.11; 59 FR 
43956, 43958-61 (Aug. 25, 1994) (proposed TAR preamble explaining EPA's 
CAA authorities in Indian Country); 63 FR 7254, 7262-64 (Feb. 12, 1998) 
(final TAR preamble). Thus, where a tribe chooses not to adopt a CAA 
program or adopts only a partial program, EPA may exercise its 
discretionary authority to issue such regulations as are necessary or 
appropriate to protect tribal air resources. This type of joint 
management allows tribes to focus on their specific air quality needs 
while ensuring adequate protection of tribal air resources.
    The CAA also authorizes EPA to enforce the regulations in an 
approved TIP. CAA 113. We work cooperatively with the Indian Tribe in 
exercising this enforcement authority.

III. Evaluation of the GRIC's Implementation Authorities

A. How did the GRIC demonstrate eligibility to be treated in the same 
manner as a State under the CAA?

    By letter dated November 17, 2006 and submitted to EPA on December 
6, 2006, the GRIC requested an EPA determination that the Tribe is 
eligible for TAS for the purposes of implementing four CAA programs: 
(1) A

[[Page 48884]]

TIP that includes source-specific rules and a minor source permit 
program under CAA section 110; (2) the Federal NSPSs under CAA section 
111; (3) the Federal NESHAPs under CAA section 112; and (3) an 
operating permit program under title V of the Act. In addition, the 
Tribe requested TAS for receiving notifications as an ``affected 
State'' under title V of the CAA and for submitting recommendations to 
EPA on air quality designations under CAA section 107(d). The GRIC 
submitted supplemental materials for its TAS eligibility request on 
October 6, 2008 and March 18, 2009. EPA notified appropriate 
governmental entities and the public of the Tribe's application and 
addressed all comments received as part of that process.
    On October 21, 2009, based on the information submitted by the 
Tribe, and after consideration of all comments received in response to 
notice of the Tribe's request, EPA determined that the GRIC met the 
eligibility requirements of CAA section 301(d) and 40 CFR 49.6 for 
these purposes under the CAA. See Memorandum, ``Gila River Indian 
Community: Eligibility Determination under 40 CFR part 49 for Clean Air 
Act Sections 107, 110, 111, 112, 114, and Title V,'' signed by Laura 
Yoshii, Acting Regional Administrator, EPA Region 9, October 21, 2009 
(TAS Decision Document). Specifically, EPA determined that the GRIC had 
demonstrated: (1) That it is an Indian tribe recognized by the 
Secretary of the Interior (see 67 FR 46328 (July 12, 2002)); (2) that 
it has a governing body carrying out substantial governmental duties 
and functions; (3) that the functions to be exercised by the Tribe 
pertain to the management and protection of air resources within the 
exterior boundaries of the Tribe's reservation;\6\ and (4) that the 
Tribe is reasonably expected to be capable of carrying out the 
functions to be exercised in a manner consistent with the terms and 
purposes of the CAA and all applicable regulations.
---------------------------------------------------------------------------

    \6\ The TAS Decision Document describes the geographic area 
within which the Tribe is approved for TAS.
---------------------------------------------------------------------------

    EPA notified the Tribe of this TAS eligibility determination by 
letter the same day. See letter dated October 21, 2009, from Laura 
Yoshii, Acting Regional Administrator, EPA Region 9, to the Honorable 
William Rhodes, Governor, Gila River Indian Community.

B. How would the GRIC administer and enforce the TIP?

    The proposed TIP would be implemented primarily by the GRIC DEQ Air 
Quality Program staff and the Tribe's attorneys. Established in 1995, 
the GRIC DEQ has grown from an initial staff of six to a staff of 26 in 
2009. The Air Quality Program staff has degrees ranging from 
Associate's to Master's degrees. They have received extensive training 
in TIP development, permit writing and regulatory enforcement.\7\ Since 
1995, the staff has also demonstrated considerable capabilities in the 
programmatic, administrative, and legal functions of implementing an 
air quality program. On January 9, 2003, the GRIC became the first 
Tribal Government that EPA recognized as capable of issuing permits 
with enforceable limitations on a source's potential to emit, following 
case-by-case EPA review.\8\
---------------------------------------------------------------------------

    \7\ See letter dated November 17, 2006, from William R. Rhodes, 
Governor, Gila River Indian Community, to Wayne Nastri, Regional 
Administrator, U.S. EPA Region 9 (transmitting TAS application), at 
page 10.
    \8\ See letter dated January 9, 2003, from Jack Broadbent, 
Director, Air Division, U.S. EPA Region 9, to Dr. Patricia Mariella, 
Director, Gila River Indian Community DEQ.
---------------------------------------------------------------------------

    As discussed above in section III.A, EPA evaluated the Tribe's 
implementation and enforcement capabilities as part of our 
determination that the GRIC is eligible for TAS to implement this TIP 
and other CAA programs. Specifically, as part of that determination, 
EPA found that the GRIC is reasonably expected to be capable of 
implementing and enforcing the TIP and other AQMP programs in a manner 
consistent with the terms and purposes of the CAA and all applicable 
regulations. See TAS Decision Document. Also as part of that 
determination, EPA entered into a Memorandum of Agreement with the GRIC 
to facilitate intergovernmental cooperation in addressing criminal 
violations of the AQMP. See Memorandum of Agreement Between the Gila 
River Indian Community and the U.S. Environmental Protection Agency 
Regarding Criminal Enforcement of the Tribal Implementation Plan 
Pursuant to the Clean Air Act and 40 CFR part 49, dated October 21, 
2009 (Criminal Enforcement MOA).
    The GRIC DEQ staff is responsible for inspecting facilities within 
the exterior boundary of the reservation and responding to any 
complaints received. The GRIC air quality staff, and if needed, the 
GRIC tribal police, will assume enforcement activities for the purposes 
of compliance with air regulations. Other GRIC agencies will also 
provide compliance and enforcement assistance, as appropriate, in 
accordance with applicable Tribal and Federal law. See GRIC AQMP, Part 
1, Section 2.2.
    Part III of the AQMP contains enforcement ordinances that establish 
requirements and procedures for civil and criminal enforcement. These 
ordinances authorize the GRIC DEQ to issue administrative compliance 
orders, assess civil penalties, and take other enforcement actions 
against persons who violate requirements of the TIP or other 
requirements of the AQMP within the exterior boundaries of the 
reservation. These enforcement provisions are discussed further in 
Section IV.C.3 of this notice.

IV. Evaluation of the GRIC's Tribal Implementation Plan

A. What air quality goals does the GRIC TIP address?

    The Gila River Indian Reservation is located in south-central 
Arizona, adjacent to the Phoenix Metropolitan Area, in Pinal and 
Maricopa Counties. The entire reservation is designated attainment or 
unclassifiable/attainment for the following NAAQS pollutants: Lead 
(Pb), carbon monoxide (CO), nitrogen dioxide (NO2), sulfur 
dioxide (SO2), particulate matter of 2.5 microns or less 
(PM2.5), and ground-level ozone. 40 CFR 81.303. EPA had 
initially included the Maricopa County portion of the GRIC reservation 
in the Maricopa County CO nonattainment area, but in 2005 we corrected 
the nonattainment boundary to exclude the GRIC reservation and 
redesignated the reservation to ``nonclassifiable/attainment'' for the 
CO NAAQS. See 69 FR 60328 (October 8, 2004)(proposed rule) and 70 FR 
11553 (March 9, 2005)(final rule), as corrected by 70 FR 52926 
(September 6, 2005). Similarly, EPA had initially included the Maricopa 
County portion of the GRIC reservation in the Phoenix metropolitan 1-
hour ozone nonattainment area, but in 2005 we corrected the 
nonattainment boundary to exclude the GRIC reservation and redesignated 
the reservation to ``unclassifiable/attainment'' for the 1-hour ozone 
NAAQS. See 70 FR 13425 (March 21, 2005)(proposed rule) and 70 FR 68339 
(November 10, 2005)(final rule).\9\
---------------------------------------------------------------------------

    \9\ As explained in the final rule, the effect of this action 
was to attach the Maricopa County portion of the GRIC reservation to 
the pre-existing ``unclassifiable/attainment'' area for the 1-hour 
ozone NAAQS that consists of all of those portions of the State of 
Arizona (including the rest of the Reservation that lies in Pinal 
County) that are not designated as a ``nonattainment'' area or as an 
``attainment'' area subject to a maintenance plan. 70 FR 68339 at 
68344.

---------------------------------------------------------------------------

[[Page 48885]]

    More recently, on October 14, 2009, we notified the Governor of 
Arizona and affected Arizona tribes, including the GRIC, that EPA was 
reviewing the initial recommendation to designate Pinal County as 
attainment/unclassifiable for the 2006 annual PM2.5 
standard, given recent data indicating violations of the standard in 
the Pinal County area. On December 30, 2009, we notified the same 
entities that EPA was also initiating a redesignation of Pinal County 
to nonattainment for the 1997 annual PM2.5 standard and for 
the 1987 24-hour standard for particulate matter of 10 microns or less 
(PM10).\10\ We have asked the Tribes in Pinal County, 
including the GRIC, to provide recommendations concerning their Indian 
country lands.
---------------------------------------------------------------------------

    \10\ EPA's air quality designations for the 2006 24-hour Fine 
Particle (PM2.5) standard were published in the Federal 
Register on November 13, 2009. 74 FR 58688.
---------------------------------------------------------------------------

    The only criteria pollutant for which a portion of the reservation 
is currently designated nonattainment is PM10. The northern 
portion of the GRIC reservation lies within the Maricopa County 
(Phoenix Planning Area) serious PM10 nonattainment area. 
Approximately 92,000 acres of the GRIC reservation, along its northern 
boundary, were included in the Maricopa County area when it was 
originally designated as nonattainment (see 52 FR 29383, August 7, 
1987) and reclassified from moderate to serious for the PM10 
NAAQS. 61 FR 21372 (May 10, 1996)(reclassification to serious 
nonattainment effective June 10, 1996). The remainder of the GRIC 
reservation is located in the portion of Pinal County that is currently 
designated as unclassifiable/attainment for PM10. 40 CFR 
81.303.
    While State and local regulatory agencies in the Maricopa County 
PM10 nonattainment area have developed SIPs to comply with 
the nonattainment area requirements of subpart 4 of Part D, title I of 
the CAA, these SIP requirements do not apply within the exterior 
boundaries of the GRIC reservation. Rather, the CAA, as amended in 
1990, broadly authorizes EPA to protect Tribal air resources by 
directly implementing the Act's requirements in Indian Country. CAA 
Sec.  301(d)(4); 40 CFR 49.11; 59 FR 43956, 43958-61 (Aug. 25, 1994) 
(proposed TAR preamble explaining EPA's CAA authorities in Indian 
Country); 63 FR 7254, 7262-64 (Feb. 12, 1998) (final TAR). As discussed 
above, section 301(d) of the CAA also authorizes EPA to approve Indian 
Tribes to implement their own CAA programs in Indian Country, provided 
they meet specified requirements.
    The GRIC's TIP rules establish a basic air pollution control 
program for the protection of air resources within the GRIC 
reservation. The regulations in the TIP are enforceable and function 
independently of the PM10 nonattainment area requirements of 
subpart 4 of Part D, Title I of the Act and, therefore, are not 
integrally related to these plan requirements. As such, the GRIC's plan 
submittal is reasonably severable from the PM10 
nonattainment area plan elements not included in the submittal, 
consistent with 40 CFR 49.7(c). We therefore turn to our evaluation of 
the GRIC DEQ's plan submittal in accordance with the applicable 
statutory and regulatory requirements.

B. What procedural requirements did the GRIC satisfy?

    Section 110(a) of the CAA requires that implementation plans be 
adopted by the State after reasonable notice and public hearing. EPA 
has promulgated specific procedural requirements for SIP revisions in 
40 CFR part 51, subpart F. These requirements include publication of 
notices, by prominent advertisement in the relevant geographic area, of 
a public hearing on the proposed revisions, a public comment period of 
at least 30 days, and an opportunity for a public hearing.
    The GRIC DEQ developed the AQMP from 1998 to 2006 in consultation 
with EPA Region 9. Following an extensive public comment process, on 
December 13, 2006, the GRIC Tribal Council adopted the AQMP under 
Tribal Law.\11\ The GRIC formally submitted the AQMP, which includes 
the TIP, to EPA Region 9 on February 21, 2007. On July 11, 2007, the 
GRIC submitted public process documentation for the AQMP, including 
documentation of a duly noticed public hearing held by the GRIC DEQ on 
July 20, 2006, in Chandler, Arizona. We find that the GRIC's process 
for adopting and submitting the TIP satisfied the procedural 
requirements for adoption and submission of implementation plans under 
CAA section 110(a) and EPA's implementing regulations.
---------------------------------------------------------------------------

    \11\ See Gila River Indian Community Ordinance GR-06-06 
(December 13, 2006). Although the Ordinance indicates that the 
Tribal Council adopted the AQMP on December 6, 2006, we generally 
refer to the adoption date as December 13, 2006, consistent with the 
date of the GRIC Governor's signature.
---------------------------------------------------------------------------

C. What authorities and requirements does the GRIC TIP contain?

    The AQMP is comprised of four regulatory programs: (1) A Tribal 
implementation plan (TIP) for the implementation, maintenance, and 
enforcement of the NAAQS under CAA 110; (2) regulations adopting the 
Federal New Source Performance Standards (NSPS) under CAA 111 as Tribal 
standards; (3) regulations adopting the Federal National Emission 
Standard for Hazardous Air Pollutants (NESHAP) under CAA 112 as Tribal 
standards; and (4) a Tribal operating permits program under title V of 
the Act.
    In this action, we propose to act only on the TIP. We intend to 
issue separate Federal Register notices proposing action on the Tribe's 
requests for delegation of authority to implement and enforce the 
Federal NSPSs and to implement and enforce the Federal NESHAPs, 
consistent with applicable CAA and regulatory requirements. The GRIC 
DEQ is currently revising its title V permit regulations and has 
requested that EPA not act at this time on the title V provisions it 
submitted with the AQMP. See Letter dated June 22, 2009, from Margaret 
Cook, Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional 
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC 
Air Quality Management Plan.''
    We discuss below each element of the TIP and our evaluation of it 
in light of applicable CAA requirements.\12\
---------------------------------------------------------------------------

    \12\ Throughout this discussion, the term ``Director'' means the 
Director of the GRIC DEQ. For ease of reference, we refer to each 
section of the TIP as a section of the AQMP, consistent with the 
structure of the Tribe's submittal.
---------------------------------------------------------------------------

1. General Provisions
    Part I of the AQMP, ``General Provisions,'' contains definitions, 
general authorities of the Director, procedures for the preparation, 
adoption, and submittal of plan elements and revisions, and provisions 
adopting Federal NAAQS as Tribal standards.\13\
---------------------------------------------------------------------------

    \13\ See footnote 2.
---------------------------------------------------------------------------

    Specifically, Section 1.0 of Part I contains definitions that 
generally apply to all AQMP programs, including the TIP.
    Section 2.0 establishes the Director's general authorities, which 
include the responsibilities for: (1) Consulting with and making 
recommendations to the GRIC Governor and Community Council on matters 
concerning implementation of the AQMP; (2) encouraging industrial, 
commercial, residential and general development of the Community in a 
manner that protects and preserves

[[Page 48886]]

air quality; and (3) notifying Community members and other members of 
the public on a regular basis of incidences and areas in which the 
Tribe's adopted NAAQS were exceeded during the preceding calendar year, 
including the health risks associated with such exceedances. GRIC AQMP 
Part I, Section 2.1. These provisions satisfy the requirement in CAA 
section 110(a)(2)(J) to meet applicable requirements of CAA section 121 
(relating to consultation) and section 127 (relating to public 
notification), and also satisfy the requirement in CAA section 
110(a)(2)(M) to provide for consultation and participation by local 
political subdivisions affected by the plan.
    In addition, if the Director determines that air pollution in any 
area constitutes or may constitute an emergency risk \14\ to the health 
of those in the area or if the ambient air quality standards adopted by 
the GRIC are likely to be exceeded, the Director must notify the GRIC 
Governor. The Governor may then restrain or enjoin any person from 
engaging in emissions-generating activity that presents an imminent and 
substantial endangerment to the public health or welfare or to the 
environment. The Governor may also, to the extent of the Governor's 
authority, declare that an emergency exists and prohibit, restrict, or 
condition any of the following: motor vehicle traffic; retail, 
commercial, manufacturing, governmental, industrial or similar 
activity; operation of incinerators and other facilities that emit the 
air pollutant of concern; the burning or other consumption of fuels; 
the burning of any materials; any and all other activity which 
contributes or may contribute to the emergency. Orders of the Governor 
issued under this provision are enforceable by the GRIC DEQ and the 
GRIC tribal police. GRIC AQMP Part I, Section 2.2. These provisions 
meet the requirement in CAA section 110(a)(2)(G) to provide for 
authority comparable to the emergency powers in section 303 of the Act.
---------------------------------------------------------------------------

    \14\ The Director's determination must be based on scientific 
data in coordination with the GRIC Office of Emergency Management 
(OEM) and consistent with OEM protocol. See AQMP Part I, Section 
2.2.A.
---------------------------------------------------------------------------

    Section 3.0 establishes procedural requirements for preparation, 
adoption, submission to EPA, and revision of the AQMP. These 
requirements include publication of notices, by prominent advertisement 
in the Gila River Indian News and by other appropriate means, a public 
comment period of at least 30 days, and a public hearing following 
reasonable notice of such hearing.\15\ Section 3.0 also contains 
technical support requirements and procedures for parallel processing. 
These provisions satisfy the applicable procedural requirements of CAA 
section 110(a)(2) and 40 CFR part 51, subpart F.
---------------------------------------------------------------------------

    \15\ Consistent with 40 CFR 51.102(c), however, the AQMP does 
not require a public hearing for any change to an increment of 
progress to an approved individual compliance schedule unless the 
change is likely to cause the source to be unable to comply with the 
final compliance date in the schedule. AQMP Part I, Section 
3.2.D(3).
---------------------------------------------------------------------------

    Finally, Section 4.0 of Part I contains the GRIC DEQ's provisions 
adopting Federal primary and secondary standards and measuring methods 
for SO2, PM10, PM2.5, CO, ozone (8-
hour), NO2, and Pb as Tribal air quality standards. These 
standards and measuring methods are consistent with the Federal NAAQS 
that were effective in October 2006, shortly before the GRIC adopted 
the AQMP. See 40 CFR 50.4-50.8, 50.10-50.12 (2006). We are proposing to 
approve these air quality standards and measurement methods into the 
TIP.
    We note that several revisions to the Federal NAAQS have become 
effective since October 2006,\16\ and that all Federal NAAQS apply 
within the GRIC reservation whether or not the Tribe adopts these 
standards into the TIP under Tribal law. See footnote 2, above. The 
GRIC's TIP provides for progress toward the implementation, 
enforcement, and maintenance of the Federal NAAQS by regulating 
emissions of NAAQS pollutants within the reservation and establishing 
enforceable procedures to determine whether construction or 
modification of minor sources will interfere with attainment or 
maintenance of the NAAQS, as effective in October 2006. Accordingly, we 
are proposing to approve the TIP, including those Federal NAAQS that 
the Tribe has adopted under Tribal law, as a program containing 
severable elements of a plan under CAA section 110(a) that provides for 
the implementation, enforcement, and maintenance of the NAAQS. We note, 
however, that EPA retains its discretionary authority under CAA 
sections 301(a) and 301(d)(4) to directly implement CAA programs in the 
GRIC reservation and to promulgate such Federal implementation plan 
provisions as are necessary or appropriate to protect air quality in 
the GRIC reservation.
---------------------------------------------------------------------------

    \16\ See 71 FR 61224, October 17, 2006 (revised standards for 
particulate matter, effective December 18, 2006); 73 FR 67051, 
November 12, 2008 (revised standards for lead, effective January 12, 
2009); 75 FR 2938, January 19, 2010 (proposed rule to revise 8-hour 
ozone standards); 75 FR 6474, February 9, 2010 (revised standards 
for NO2, effective April 12, 2010); 75 FR 35520, June 22, 
2010 (revised standards for SO2, effective August 23, 
2010).
---------------------------------------------------------------------------

2. Permit Requirements
    Part II of the AQMP contains permit requirements for new and 
existing sources of air pollution. Specifically, it contains a title V 
operating permit program for ``title V sources,'' and a preconstruction 
review and operating permit program to regulate ``non-title V sources'' 
(or ``minor sources'').
a. Title V Permit Requirements
    By letter dated June 22, 2009, the GRIC DEQ requested that EPA not 
act on the title V operating permit regulations submitted as part of 
the AQMP on February 22, 2007. EPA understands that the GRIC DEQ 
intends to submit a revised title V operating permit program at a later 
date, after adopting revisions to address requirements of the CAA and 
implementing regulations.\17\ As such, we are not taking action today 
on those elements of Part II of the AQMP that pertain to title V permit 
program requirements.\18\ At this time, EPA remains the title V 
permitting authority for all title V sources within the exterior 
boundaries of the GRIC reservation.
---------------------------------------------------------------------------

    \17\ EPA has, however, determined that the Tribe is eligible for 
TAS to implement a title V permit program (as noted above in Section 
III.A). Accordingly, the Tribe's submittal at a later date of a 
revised title V permit program need not be accompanied by another 
TAS eligibility request.
    \18\ These include all regulatory definitions associated with 
title V requirements in Section 1.0; title V program applicability 
provisions in Section 2.0; the title V permitting regulations in 
Section 3.0; and requirements for title V permit revisions in 
Section 5.0.
---------------------------------------------------------------------------

b. Non-Title V Permit Requirements
    Section 110(a)(2)(C) of the Act requires that each implementation 
plan include a program to regulate the construction and modification of 
stationary sources, including a permit program as required by parts C 
and D of title I of the Act, as necessary to assure that the NAAQS are 
achieved. Parts C and D, which pertain to prevention of significant 
deterioration (PSD) and nonattainment, respectively, address the major 
NSR programs for major stationary sources, and the permitting program 
for ``nonmajor'' (or ``minor'') stationary sources is addressed by 
section 110(a)(2)(C) of the Act. We commonly refer to the latter 
program as the ``minor NSR'' program. A minor stationary source is a 
source whose ``potential to emit'' is lower than the major source 
applicability threshold for a particular pollutant as defined in the 
applicable major NSR program.
    The requirements that minor source programs must meet to be 
approved are outlined in 40 CFR 51.160 through 51.164. These 
regulations require states to develop ``legally enforceable

[[Page 48887]]

procedures'' to enable the State ``to determine whether the 
construction or modification of a [source] will result in--(1) a 
violation of applicable portions of the control strategy; or (2) 
interference with attainment or maintenance of a national standard * * 
*.'' 40 CFR 51.160(a). The program must identify the types and sizes of 
sources subject to review, and the State's plan must discuss the basis 
for determining which facilities will be subject to review. 40 CFR 
51.160(e).
    Every State implementation plan currently contains a minor NSR 
program. Minor sources located on the GRIC reservation, however, have 
not to date been subject to preconstruction review under the CAA. EPA 
has proposed a Federal NSR permit program that would apply to, among 
others, minor sources in Indian Country where there is no EPA-approved 
permit program under the CAA, but this rulemaking has not yet been 
finalized. 71 FR 48696 (August 21, 2006) (proposed rule to implement 
NSR in Indian Country).
    Although the Act does not require tribes to develop and seek EPA 
approval of NSR permit programs, where a tribe decides to do so, EPA 
evaluates the program in accordance with applicable statutory and 
regulatory criteria in a manner similar to the way EPA would review a 
similar State submittal. 40 CFR 49.9(h); 59 FR 43956 at 43965 (Aug. 25, 
1994) (proposed TAR preamble); 63 FR 7254 (Feb. 12, 1998) (final TAR 
preamble). For the reasons discussed below, we propose to approve the 
GRIC's minor NSR program in accordance with the TAR and the criteria 
for approval of minor NSR programs at 40 CFR 51.160 through 51.164. It 
is important to note, however, that we are proposing to approve this as 
a base program suitable to the GRIC's reservation. Other Tribal NSR 
programs may differ significantly and should each be evaluated on a 
case-by-case basis in light of air quality needs in the relevant area.
    The GRIC DEQ's minor NSR permit program, entitled ``Non-Title V 
Permit Requirements,'' applies to stationary sources that are neither 
``major'' under the Act \19\ nor subject to the requirements of CAA 
title V.\20\ AQMP Part II, Section 2.1. For all major sources, major 
modifications, and sources otherwise subject to title V on the 
reservation, EPA will continue to implement applicable CAA permitting 
requirements, including the requirements of parts C and D of title I of 
the Act, as appropriate.
---------------------------------------------------------------------------

    \19\ Section 302(j) of the CAA generally defines ``major 
stationary source'' as any stationary source that has the potential 
to emit at least 100 tons per year (tpy) of any air pollutant, 
unless the statute specifies a different threshold. Part D of title 
I of the Act establishes lower major source thresholds based on 
severity of air pollution in nonattainment areas. For hazardous air 
pollutants (HAP), CAA section 112 defines ``major source'' as a 
source that emits or has the potential to emit considering controls, 
in the aggregate, 10 tpy or more of any HAP or 25 tpy or more of any 
combination of HAP.
    \20\ Title V requirements apply to, among other sources, any 
major source, any source subject to an NSPS under CAA 111, and any 
source subject to a NESHAP under CAA 112. 40 CFR 71.3(a), (b).
---------------------------------------------------------------------------

    Specifically, the GRIC's minor NSR permit program applies to any 
person who proposes to construct, operate, or modify any source that 
emits or has the potential to emit ``regulated air pollutants,'' unless 
the source or modification is either (1) a major source or major 
modification and/or subject to title V of the Act, or (2) exempt from 
review as ``de minimis'' under the AQMP. See Part II Sections 2.1.B, 
2.1.C, 5.1.A. ``Regulated air pollutant'' is defined as any criteria 
pollutant, any air contaminant subject to an NSPS under CAA 111, any 
hazardous air pollutant (HAP) listed under CAA 112(b) or 
``ultrahazardous'' air pollutant listed under CAA 112(r)(3), or any 
class I or II substance listed in CAA section 602.
    A stationary source that is not a ``major stationary source'' under 
the CAA and that does not operate in conjunction with another facility 
or source that is subject to permit requirements may be exempt under 
Section 2.1.C from permit requirements as a ``de minimis facility,'' if 
the source's ``actual emissions'' \21\ of air pollutants are equal to 
or less than all of the following levels:
---------------------------------------------------------------------------

    \21\ For any emissions unit at a minor source that has not begun 
normal operations, ``actual emissions shall be based on applicable 
control equipment requirements and projected conditions of 
operation.'' AQMP Part II, Section 1.0.D (definitions).
    \22\ AQMP Part II, Section 2.1.C(1).

                 Table 1--``De minimis'' Thresholds in the GRIC's Minor NSR Permit Program \22\
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Any single regulated air pollutant except a     1 ton per year (tpy).
 hazardous air pollutant.
----------------------------------------------------------------------------------------------------------------
Any single hazardous air pollutant (HAP), or..  1000 lbs per year (single HAP), or
Any combination of HAPs.......................  1 tpy (combination of HAPs).
----------------------------------------------------------------------------------------------------------------
Any single ultrahazardous air pollutant, or     300 lbs per year.
 any combination of ultrahazardous air
 pollutants.
----------------------------------------------------------------------------------------------------------------

    In addition, Section 2.1.C(2) identifies several types of minor 
sources that are categorically treated as ``de minimis facilities'' 
and, therefore, exempt from permit requirements. These categorical ``de 
minimis facilities'' include agricultural equipment used in normal farm 
operations, except for equipment that is subject to requirements of 
title V or 40 CFR parts 60 or 61; air-conditioning equipment and 
general combustion equipment with aggregated input capacity of less 
than 2 MMBtu/hour or, if oil-fired, maximum rated input capacity or 
aggregated input capacity of less than 500,000 Btu/hour; stationary 
storage tanks used for storing organic liquids with true vapor pressure 
of 1.5 psia or less, or that have a capacity of 250 gallons or less; 
and portable internal combustion engines that, individually, have a 
rating less than 500 horsepower output or operate less than 200 hours 
per calendar year.
    The GRIC DEQ's supporting documentation demonstrates that these de 
minimis facilities are appropriately exempt from permit requirements 
based on their insignificant environmental impacts, in accordance with 
the criteria set forth in Alabama Power Co. v. Costle, 636 F.2d 323 
(D.C. Cir. 1979). See Letter dated June 22, 2009, from Margaret Cook, 
Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional 
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC 
Air Quality Management Plan,'' enclosure entitled ``Minor New Source 
Review Demonstration.''
    The GRIC DEQ's minor NSR permit program requires each applicant for 
a ``non-title V'' permit to submit, among other things, a certified 
application containing information about the facility, the industrial 
process, the nature and amount of emissions, and any information needed 
to determine applicable technology-based emission limitations. In some 
cases, the GRIC DEQ may also require the source to

[[Page 48888]]

model its impact on ambient air quality in accordance with 40 CFR part 
51, Appendix W.
    Importantly, any new minor source that has a ``potential to emit'' 
(PTE) at or above specified levels, or a modification at an existing 
minor source that increases a source's PTE by specified levels, will be 
subject to a technology-based emission limitation that reflects the 
Best Reasonable and Demonstrated Technology (BRDT), as determined by 
the GRIC DEQ on a case-by-case basis. BRDT is defined as ``an emission 
limitation or design equipment, work practice or operational standard'' 
that is ``based on the maximum degree of reduction of each criteria 
pollutant or hazardous air pollutant determined on a case-by-case 
basis'' or by rule, ``taking into account energy, environmental, and 
economic impact, feasibility of achieving the emission limitation for a 
particular source, and the existing air quality in the area to be 
impacted by the source.'' Part II Section 1.0. The PTE levels (or, for 
modifications, PTE increases) at which BRDT applies are identified in 
Table 2.

  Table 2--PTE Thresholds at Which BRDT Applies in the GRIC's Minor NSR
                           Permit Program \23\
------------------------------------------------------------------------

------------------------------------------------------------------------
For a new source, any single criteria    75 tpy.
 pollutant.
For a new source, any single HAP.......  3 tpy.
For a new source, any combination of     5 tpy.
 HAPs.
For a new source, any single or any      300 lbs per year.
 combination of ultrahazardous air
 pollutants.
For a modification, an increase of any   25 tpy.
 single criteria pollutant (that does
 not make the source a major source).
For a modification, any single new HAP   3 tpy.
 or increase in a HAP already emitted
 by the source.
For a modification, an increase in any   5 tpy.
 combination of HAPs already emitted by
 the source.
------------------------------------------------------------------------

    Each non-title V permit is issued for a five-year term and must 
include, among other things: (1) Enforceable emissions limitations or 
source- or unit-specific requirements that assure maintenance of the 
Tribe's adopted ambient air quality standards, protection of public 
health, compliance with all applicable control standards, such as BRDT, 
NSPSs, NESHAPs, and other requirements of the CAA \24\; (2) monitoring, 
testing, reporting, and recordkeeping requirements adequate to evaluate 
the source's compliance; (3) a requirement that any revision of an 
emission limitation, monitoring, testing, reporting, or recordkeeping 
requirement be made in accordance with the permit revision procedures 
for non-title V sources at Part II, Section 5.0 of the AQMP; (4) a 
requirement to allow the GRIC DEQ or EPA representatives to enter and 
inspect the premises at reasonable times; (5) a requirement to submit 
an annual compliance certification, and (6) a requirement to submit an 
annual emissions report. Part II, Section 4.4.A. A non-title V permit 
authorizes both construction and operation of the minor source or 
modification.
---------------------------------------------------------------------------

    \23\ Part II, Sections 4.2.A(2), 4.2.A(3)(c), 4.2.B.
    \24\ Generally, a source that is subject to an NSPS under 
section 111 or a NESHAP under section 112 of the CAA will be subject 
to title V permitting requirements and, therefore, not subject to 
GRIC's non-title V permit program. EPA has, however, exempted 
certain NESHAP area sources by rule from title V permitting 
requirements. In those limited cases where a NESHAP area source is 
exempt from title V, such source may be required to obtain a GRIC 
non-title V permit that identifies the applicable NESHAP, among 
other requirements.
---------------------------------------------------------------------------

    The permit program establishes administrative procedures for the 
GRIC DEQ action on permit applications, including public notice and a 
comment period of at least 30 days on all proposed new permits, permit 
renewals, and significant permit revisions.\25\ AQMP Part II, section 
4.6.A. The program also provides for public hearings on such permit 
applications upon written request. The issuance or denial of a non-
title V permit may be appealed administratively to the GRIC DEQ and, 
thereafter, judicially to the GRIC Tribal Court. See discussion below 
at section IV.C.4, ``Administrative Appeals and Judicial Review.'' 
Finally, the permit program contains stack height procedures consistent 
with the requirements of 40 CFR 51.164; continuous source emissions 
monitoring requirements generally consistent with the provisions of 40 
CFR part 51, appendix P; requirements for the treatment of confidential 
information; and permit fee provisions. AQMP Part II, sections 6.0, 
9.0, 10.0, and 11.0. Our Technical Support Document (TSD) contains more 
information about these provisions and suggestions for improvement that 
do not affect our proposed action.
---------------------------------------------------------------------------

    \25\ A significant permit revision is, among other things, any 
change to a non-title V permit that will result in an increase in 
the source's potential to emit a regulated pollutant of more than 
either 25 tons per year or certain ``significant'' levels in Section 
1.0 of Part II, whichever is less. AQMP Part II, Section 5.5.a(3).
---------------------------------------------------------------------------

    We propose to approve these procedures as legally enforceable 
procedures that establish a base program suitable to the GRIC's 
reservation and that satisfy the minimum requirements of CAA section 
110(a)(2)(C) and 40 CFR 51.160 through 51.164.
3. Enforcement
    Part III of the AQMP contains requirements and procedures for civil 
and criminal enforcement against persons who violate AQMP provisions.
    Section 1.0 of Part III authorizes the Director to take several 
kinds of civil enforcement actions against persons who violate AQMP 
requirements. First, if the Director has reasonable cause to believe 
that a person has violated or is violating a provision of the AQMP or 
any requirement of a permit issued under Part II, the Director may 
issue an administrative compliance order (ACO) requiring compliance as 
expeditiously as practicable but no later than 1 year after the date 
the ACO was issued. An ACO becomes final and enforceable in the 
Community Court, unless within 30 days after receipt of the ACO, the 
alleged violator requests a hearing before an administrative law judge 
(ALJ) in accordance with the provisions of Part IV of the AQMP. If a 
hearing is requested, the ACO does not become final until the ALJ has 
issued a recommended decision and the Director has issued a final 
decision on the appeal.
    Second, the Director may assess an administrative civil penalty of 
up to $5,000 per day per violation, and/or the GRIC Community Court may 
issue a civil judicial penalty of up to $10,000 per day per violation, 
to any person found to be in violation of an ordinance, an ACO, or any 
provision of a permit issued under Part II. Each day of a failure to 
perform any act or duty for which a civil penalty may be assessed 
constitutes a separate offense. The Director is required to consider 
specified factors in assessing civil penalties, such as the size of the 
business, the economic impact of the penalty on the business, and the 
violator's good faith efforts to comply.

[[Page 48889]]

    Third, at the request of the GRIC Director, the GRIC General 
Counsel may file an action for a temporary restraining order, a 
preliminary injunction, a permanent injunction, or any other relief 
provided for by law if the Director has reasonable cause to believe 
that: (1) A person has violated or is violating any provision of an 
ordinance, an order requiring compliance with an ordinance, or any 
provision of a permit; (2) a person has violated or is violating an 
effective compliance order; or (3) a person is creating an imminent and 
substantial endangerment to public health or the environment.
    Finally, the Director may deny a request for a permit if the 
applicant is incapable of meeting the requirements of an ordinance, and 
the Director may revoke a permit issued by DEQ based on a finding of 
noncompliance with material conditions in the permit or when continued 
operation would violate an ordinance or create a consistent pattern of 
imminent and substantial endangerment to public health or the 
environment. Any such denial or revocation of a permit by the Director 
may be appealed to an ALJ and thereafter to the Community Court, in 
accordance with the appeal provisions in Part IV of the AQMP. These 
provisions provide for enforcement of the measures contained in the 
TIP, as required by CAA section 110(a)(2)(C), and provide necessary 
assurances that the Tribe will have adequate authority under Tribal law 
to carry out the TIP, as required by CAA section 110(a)(2)(E)(i).
    Section 2.0 of Part III establishes procedures for criminal 
enforcement and referral of certain criminal matters to EPA. 
Specifically, Section 2.1 requires the GRIC's General Counsel to 
consult with the appropriate Federal agencies and, as appropriate, 
refer for Federal prosecution any person who has willfully or knowingly 
violated an AQMP provision or a permit issued under Part II. The 
procedures for the GRIC DEQ's referral of potential criminal violations 
to the appropriate Federal agencies, for possible criminal prosecution 
under Section 113(c) of the CAA, are outlined in the Criminal 
Enforcement MOA discussed above in Section III.B of this notice.
    Section 3.0 of Part III contains citizen suit provisions. By letter 
dated July 17, 2010, the GRIC DEQ requested that EPA not act on these 
provisions as part of the TIP. The GRIC clarified that these 
provisions, which remain effective under Tribal law, are not intended 
to alter the Tribe's liability to civil suit based on established 
principles of Tribal sovereign immunity and the provisions of the CAA, 
nor are they intended to limit any existing Federal jurisdiction under 
the CAA. See letter dated July 17, 2010 from Margaret Cook, Executive 
Director, GRIC DEQ, to Deborah Jordan, Air Division Director, EPA 
Region 9, ``Re: Gila River Indian Community Tribal Implementation 
Plan.'' Nothing in our proposed action alters the effect of the citizen 
suit provisions of CAA section 304 as they may apply to the Tribe 
consistent with established principles of Tribal sovereign immunity.
4. Administrative Appeals and Judicial Review
    Part IV of the AQMP contains requirements and procedures for 
administrative appeals, final administrative decisions, and judicial 
review of final administrative decisions.
    Section 1.0 states that the provisions of Part IV apply to ``all 
appealable agency actions,'' which are: (1) The issuance or denial of 
an air quality permit; (2) a significant revision to an air quality 
permit; (3) failure of the GRIC DEQ to act on an air quality permit in 
a timely manner or as required by the provisions of Part II; (4) 
revocation of an air quality permit; (5) the issuance of a compliance 
order; or (6) the imposition, by order, of an administrative civil 
penalty. Section 2.0 contains relevant definitions.
    Section 3.0 establishes procedures for administrative appeals. 
Specifically, any party whose legal rights, duties, or privileges were 
determined by an ``appealable agency action'' may file a notice of 
appeal with the DEQ within 30 days after receiving notice of the action 
from the DEQ. Any other party who will be adversely affected by the 
issuance or denial of a permit and who exercised any right to comment 
on the action may also file such a notice of appeal, provided that the 
grounds for appeal are limited to issues raised in that party's 
comment. Within 5 business days of DEQ's receipt of a notice of appeal 
containing the required information, the Director must provide specific 
information regarding the notice to the GRIC Governor's office, after 
which the Governor must assign an ALJ to the matter and schedule a 
hearing, in accordance with specified timeframes. Section 3.0 also 
authorizes the ALJ to schedule a pre-hearing conference in accordance 
with specified criteria, and establishes procedures and evidentiary 
requirements for the hearing.
    Section 4.0 of Part IV establishes requirements and procedures for 
the Director's final administrative decision following the hearing and 
the ALJ's issuance of a recommended decision. The Director may accept, 
reject or modify the ALJ's recommended decision, but prior to rejecting 
or modifying the recommendation, the Director must consult with and 
obtain the written consent of the GRIC Governor or his/her designee. 
The Director's decision becomes final unless, within 35 days, a party 
appeals the final decision judicially.
    Section 5.0 establishes requirements and procedures for judicial 
review of final administrative decisions, jurisdiction over which is 
vested in the GRIC Community Court. Except in cases where trial de novo 
is appropriate or justice demands the admission of new or additional 
evidence, judicial review is limited to the administrative record 
before the court. Section 5.0 specifies the GRIC Community Court's 
authorities and the limits on those authorities. For example, the court 
may stay the Director's final decision in whole or in part for 
substantial good cause, pending final disposition of the case, and may 
ultimately modify, affirm, or reverse the decision. The court may not, 
however, reverse a finding of fact by the Director unless it is 
``clearly erroneous'' and may not reverse the Director's final 
administrative decision unless it has ``no substantial evidentiary 
basis in the record or is erroneous as a matter of law.'' Part IV, 
Section 5.7. Decisions of the GRIC Community Court may be further 
appealed to the GRIC Court of Appeals.
    These provisions establish adequate procedures for review of the 
Director's decisions under the TIP. Our finding applies only to this 
TIP under section 110 of the Act and does not apply to other CAA 
programs submitted by the Tribe, each of which we will evaluate 
separately in accordance with applicable CAA and regulatory 
requirements.
5. Area Source Emission Limits
    Part V of the AQMP contains two rules that regulate air pollution 
from specific types of area sources. The purpose of these rules is to 
reduce emissions of particulate matter from open burning and fugitive 
dust-generating activities.
    Section 1.0 (Open Burning) limits the types of materials that can 
be openly burned within the GRIC reservation and requires permits for 
open burning of specified materials. Three types of fires are allowed 
only if the GRIC DEQ issues an open burn permit: (1) Residential fires 
to dispose of yard waste, except for materials that generate toxic 
fumes; (2) commercial fires to dispose of vegetative waste resulting 
from land clearing, commercial development or other large scale 
permitted fires; and (3)

[[Page 48890]]

agricultural fires for weed control or abatement, clearing fields or 
the disposal of other naturally grown products, except for materials 
that generate toxic fumes. The rule requires: (1) that any person 
seeking an open burn permit submit to the DEQ an application with 
specific information, (2) identifies types of conditions that the DEQ 
may include in a permit, and (3) contains specific criteria for the 
DEQ's grant or denial of an open burn permit.
    The rule categorically prohibits open burning of certain materials, 
such as garbage resulting from the processing, storage, service or 
consumption of food; asphalt shingles; tar paper; plastic and rubber 
products; petroleum products; transformer oils; hazardous material 
containers; tires; construction and demolition debris; and asbestos 
containing materials. Certain other types of open fires are exempted 
from the rule--e.g., fires used only for the domestic cooking of food, 
fires used for cultural, religious or ceremonial purposes, and fires 
used only for providing warmth.
    Section 2.0 (General Requirements for Fugitive Dust-Producing 
Activities) regulates fugitive dust and fugitive particulate matter 
emissions from earthmoving, land clearing, and demolition activities, 
construction sites, unpaved parking lots at industrial plants, and 
other activities that generate dust. The rule prohibits all owners/
operators of sources of fugitive dust or fugitive particulate matter 
emissions, as well as owners/operators of certain unpaved parking lots 
and haul/access roads, from allowing visible emissions to exceed 20 
percent opacity at any time.
    Under this rule, two types of permit applications must be 
accompanied by a dust control plan. First, any person required to 
obtain an earthmoving permit under the rule must submit a dust control 
plan and obtain the GRIC DEQ's approval before commencing any dust 
generating operation. An earthmoving permit is required for any source 
owner/operator seeking to conduct certain earthmoving operations, 
except for normal farming practices. Second, any person who is required 
to obtain a title V permit, a non-title V permit, or a general permit 
under Part II of the AQMP must submit a dust control plan and obtain 
the GRIC DEQ's approval before commencing dust generating operations. A 
proposed dust control plan must contain specific information, including 
an illustration of the entire project site boundaries and acres to be 
disturbed, the expected duration of the project, and control measures 
or combinations thereof to be applied to all actual and potential 
fugitive dust-generating operations.
    In addition to the requirements for dust control plans, the rule 
establishes specific control measures and work practices for specified 
dust-generating operations, which apply to the specified activities 
independent of any approved dust control plans. The rule also contains 
detailed test methods and recordkeeping requirements to ensure that 
compliance with the required control measures, work practice standards, 
and any approved dust control plans can be verified. Certain specified 
activities and individuals are exempted from the rule--i.e., owners and 
occupants of single family residences, owners or managers of 
residential buildings with four or less units, normal farming 
practices, and public roads owned or maintained by any Federal, tribal, 
or local government.
    We have determined that Part V of the AQMP contains specific, well-
defined requirements that meet EPA's enforceability requirements under 
CAA section 110(a)(2)(A). As described above, the rules contain test 
methods and recordkeeping requirements adequate to determine 
compliance; clearly identify the activities that are subject and those 
that are exempt from rule requirements; and do not allow for variations 
from the rules other than those specified in limited exemptions. EPA is 
proposing to approve these rules as elements of a base TIP suitable to 
the GRIC's reservation and regulatory capacities. Our TSD contains more 
information about each of these rules and suggestions for rule 
improvement that do not affect our proposed action.
6. Generally Applicable Individual Source Requirements for Existing and 
New Sources
    Part VI of the AQMP contains three rules that regulate visible 
emissions, volatile organic compound (VOC) emissions, and degreasing 
and solvent metal cleaning operations. The purpose of these rules is to 
reduce visible emissions and emissions of particulate matter and 
gaseous organic compounds.
    Section 1.0 (Visible Emissions) generally prohibits the discharge 
of any air contaminant into the ambient air from any single source of 
emissions, other than uncombined water, in excess of 20 percent 
opacity. Compliance is determined by observations of visible emissions 
conducted in accordance with EPA Test Method 9 (40 CFR part 60, 
appendix A), except that for purposes of measuring visible emissions 
from intermittent sources, at least twelve (12) rather than twenty-four 
(24) consecutive readings are required at 15-second intervals for the 
averaging time. Part VI, Section 1.0, subsection 4.0. The rule provides 
limited exceptions for certain activities or equipment, such as the 
charging or back-charging of an electric arc furnace for which 
construction commenced prior to February 2, 1963, and for equipment or 
processes used to train individuals in opacity observations.
    Section 2.0 (VOC Usage, Storage and Handling) generally limits the 
discharge of VOC emissions from operations involving the usage, 
storage, transfer or disposal of VOC-containing materials. For example, 
the rule prohibits the discharge of more than 15 pounds of VOCs a day 
from any device in an operation involving heat, and prohibits the 
discharge of more than 40 pounds of VOCs a day from any device in an 
operation involving the use of non-complying solvents.\26\ If these VOC 
limits are exceeded, the rule requires application of specific control 
methods that achieve at least 85 percent overall control efficiency or 
compliance with certain operating standards. Owners or operators who 
choose to use an emissions control system (ECS) to reduce VOC emissions 
must provide to the GRIC DEQ for approval an Operation and Maintenance 
Plan (O&M Plan), together with the initial application for an operating 
permit.
---------------------------------------------------------------------------

    \26\ The rule defines ``non-complying solvent'' as a solvent 
that exceeds the applicable percentage composition limit for any of 
four specific chemical groupings. Section 2.0, subsection 2.0 
(definitions).
---------------------------------------------------------------------------

    The rule establishes detailed control techniques and operational 
standards for the handling, storage and disposal of VOC-containing 
materials, monitoring and inspection requirements, recordkeeping and 
reporting requirements, and specific test methods. Certain specified 
facilities and activities are exempt from the rule--e.g., organic 
solvent manufacturing facilities and the overland transport of organic 
solvents and VOC-containing materials; the spraying or other employment 
of insecticides, pesticides, or herbicides; and metal processing 
operations such as foundries, smelters, melting or roasting of metal, 
ore, or dross. Part VI, Section 2.0, subsection 1.2.
    Section 3.0 (Degreasing and Solvent Metal Cleaning) establishes 
equipment specifications and operating standards for degreasing and 
solvent metal cleaning operations. The rule applies to all new and 
existing solvent cleaning operations that use VOCs, including cold 
cleaning, open-top vapor degreasing, and conveyorized degreasing 
operations.

[[Page 48891]]

    Specifically, Section 3.0 establishes generally applicable solvent 
handling requirements, operating and signage requirements, and 
equipment specifications for solvent cleaning operations. The rule also 
contains equipment specifications and operating standards specific to 
owners and operators of cold cleaning degreasers, open-top vapor 
degreasers, and conveyorized degreasers. Any owner or operator of a 
solvent cleaning business in operation on or after November 1, 2004 
must submit an O&M Plan for an ECS to the GRIC DEQ. An owner/operator 
of an open-top vapor degreaser or conveyorized degreaser may, in lieu 
of meeting certain equipment specifications, meet the requirements of 
the rule through the use of an ECS.
    The rule establishes specific monitoring, reporting, and 
recordkeeping requirements and test methods for determining compliance. 
Additionally, upon startup of a new solvent cleaner, replacement of an 
existing solvent cleaner with a different model, change of a control 
device used on a solvent cleaner, or upon request by the GRIC DEQ, the 
owner of any solvent cleaner must perform tests and submit a compliance 
certification to the GRIC DEQ. Certain specified activities are exempt 
from the rule--e.g., solvent cleaning operations specifically regulated 
by another rule in Part VI; laundering and housekeeping supplies and 
activities; and cleaning solutions containing 20 percent or less VOC by 
either weight or volume.
    We have determined that Part VI of the AQMP contains specific, 
well-defined requirements that meet EPA's enforceability requirements 
under CAA section 110(a)(2)(A). As described above, the rules contain 
test methods and monitoring, recordkeeping, and reporting requirements 
adequate to determine compliance; clearly identify the activities that 
are subject and those that are exempt from rule requirements; and do 
not allow for variations from the rules other than those specified in 
limited exemptions. EPA is proposing to approve these rules as elements 
of a base TIP suitable to the GRIC's reservation and regulatory 
capacities. Our TSD contains more information about each of these rules 
and suggestions for rule improvement that do not affect our proposed 
action.
7. Source/Category-Specific Emission Limits for Existing and New 
Sources
    Part VII of the AQMP contains three rules that regulate secondary 
aluminum production facilities, aerospace manufacturing and rework 
operations, and nonmetallic mineral mining and processing operations. 
The purpose of these rules is to reduce visible emissions and emissions 
of VOCs and particulate matter from these operations.
    Section 1.0 (Secondary Aluminum Production) applies to all new, 
existing and modified secondary aluminium production facilities. The 
requirements of Section 1.0 are in addition to the requirements of the 
Federal NESHAP for Secondary Aluminum Production at 40 CFR part 63, 
subpart RRR, which are incorporated by reference into the rule.\27\
---------------------------------------------------------------------------

    \27\ Section 1.0 incorporates by reference 40 CFR part 63, 
subpart RRR, as effective July 1, 2006. Part VII, Section 1.0, 
subsection 1.0. Subpart RRR contains emission limits for dioxins, 
furans and other hazardous air pollutants that may be formed during 
the smelting of aluminum scrap. Subpart RRR also contains testing, 
monitoring, recordkeeping, reporting, and labelling requirements to 
ensure compliance with the limits and standards.
---------------------------------------------------------------------------

    Specifically, Section 1.0 prohibits any person from causing, 
allowing or permitting the discharge into the atmosphere of any air 
contaminant, other than uncombined water, in excess of 20 percent 
opacity from any emission source at a secondary aluminium production 
facility. The rule also requires that the owner/operator of any source 
subject to the rule propose a VOC baseline emission rate (in tpy) as 
part of its initial permit application to the GRIC DEQ, and to 
demonstrate annually by February 15 that total VOC emissions in the 
preceding calendar year were reduced by at least three percent of the 
VOC baseline emission rate. This demonstration is required for five 
consecutive years after issuance of the source's initial permit, for a 
total VOC reduction of at least 15 percent from the VOC baseline 
emission rate.
    Additionally, the rule requires any owner/operator using an ECS to 
reduce emissions to submit an O&M plan for approval to the GRIC DEQ. It 
also requires any person engaged in incinerating, adsorbing, or 
otherwise processing organic materials to properly install, maintain, 
calibrate, and operate monitoring devices to determine whether air 
pollution control equipment is functioning properly. Finally, the rule 
establishes recordkeeping requirements and test methods for determining 
compliance.
    Section 2.0 (Aerospace Manufacturing and Rework Operations) applies 
to any aerospace manufacturing or rework facility whose plantwide PTE 
exceeds 10 pounds of VOCs per day. The rule establishes VOC content 
limits for primers, topcoats, chemical milling maskants, and specialty 
coatings. In lieu of meeting the applicable coating limits in the rule, 
an owner/operator of a subject facility may comply with the rule by 
installing and operating an approved ECS, provided the owner/operator 
can demonstrate to the GRIC DEQ that the control system will achieve a 
combined VOC emission capture and control efficiency of at least 81% by 
weight. The rule establishes techniques for the application of primers 
and topcoats, as well as operational standards for hand-wipe cleaning, 
solvent cleaning, and housekeeping. The rule also establishes detailed 
recordkeeping and reporting requirements and identifies specific 
methods for determining compliance. Certain specified activities are 
exempt from the rule--e.g., research and development operations, 
chemical milling (except for application of chemical milling maskants), 
electronic parts and assemblies (except for cleaning and topcoating of 
completed assemblies), and wastewater treatment operations.
    Section 3.0 (Nonmetallic Mineral Mining and Processing) regulates 
VOC emissions from cutback asphalt operations and particulate matter 
(PM-10) emissions from sand and gravel facilities. Specifically, the 
rule applies to any commercial and/or industrial nonmetallic mineral 
mining or rock product plant, concrete batch plant, hot mix asphalt 
plant, or vermiculite and/or perlite processing plant.
    First, the rule establishes several general prohibitions, including 
a prohibition on the sale, offer for sale, use, or application of the 
following materials at facilities covered by the rule: (1) Rapid cure 
cutback asphalt, (2) any cutback asphalt material, road oils, or tar 
that contains more than 0.5 percent by volume VOCs that evaporate at 
500 degrees Fahrenheit or less, or (3) any emulsified asphalt or 
emulsified tar containing more than 3.0 percent by volume VOCs that 
evaporate at 500 degrees Fahrenheit or less.
    Second, the rule establishes specific limitations on visible 
emissions and emissions of PM-10 from nonmetallic mineral processing 
plants, concrete batch plants, hot mix asphalt plants, and vermiculate 
and perlite processing facilities. Any person subject to the rule must 
install and operate a wet dust suppression system or other control 
method approved by the GRIC DEQ to minimize fugitive dust emissions 
from any material handling system, conveyance system transfer point, 
screening operation or crusher without a capture and collection system, 
and nonmetallic mineral loading/unloading operation, unless the 
materials have sufficient moisture content to prevent

[[Page 48892]]

visible emissions in excess of the limits in the rule.
    Third, any owner/operator using an ECS to reduce emissions must 
submit an O&M Plan for approval to the GRIC DEQ, together with the 
initial application for an operating permit. The O&M Plan must contain 
specific conditions and procedures to ensure proper operation of the 
ECS, and the owner/operator must fully comply with each submitted O&M 
Plan, unless notified otherwise in writing by the GRIC DEQ.
    Finally, the rule establishes detailed monitoring, reporting and 
recordkeeping requirements, as well as specific methods for determining 
compliance with the PM-10 emission limitations and opacity limitations 
in the rule.
    We have determined that Part VII of the AQMP contains specific, 
well-defined requirements that meet EPA's enforceability requirements 
under CAA section 110(a)(2)(A). As described above, the rules contain 
test methods and monitoring, recordkeeping, and reporting requirements 
adequate to determine compliance; clearly identify the activities that 
are subject and those that are exempt from rule requirements; and do 
not allow for variations from the rules other than those specified in 
the limited exemptions. EPA is proposing to approve these rules as 
elements of a base TIP suitable to the GRIC's reservation and 
regulatory capacities. Our TSD contains more information about each of 
these rules and suggestions for rule improvement that do not affect our 
proposed action.

D. What other information has the GRIC submitted to support the TIP?

1. Emissions Inventory
    An emissions inventory is a quantitative list of the amounts and 
types of pollutants that are entering the air from the pollution 
sources in a given jurisdiction. The inventory may be comprehensive, 
looking at all pollutants, or focused on only selected pollutants of 
concern. The fundamental elements in an emissions inventory are the 
characteristics and locations of the air emissions sources, and the 
amounts and types of pollutants emitted. Periodic inventories are used 
to track changes in emissions over time, estimate the effectiveness of 
emission reduction strategies, and track the progress of air 
quality.\28\
---------------------------------------------------------------------------

    \28\ See ``Developing a Tribal Implementation Plan,'' Office of 
Air Quality Planning and Standards, US EPA, October 2002 (EPA 452/R-
02-010), http://www.epa.gov/air/tribal/tip2002/index.html, at 
Chapter 3.
---------------------------------------------------------------------------

    The GRIC DEQ has chosen an annual emission inventory as its 
approach to identifying the pollutants emitted and the pollution 
sources in its jurisdiction. The most recent emissions inventory that 
the GRIC DEQ submitted to EPA uses a baseline year of 2007 and provides 
estimates of the VOC, nitrogen oxides (NOX), carbon monoxide 
(CO), sulfur oxides (SOX) and PM10 emissions from 
point sources, area sources, and mobile sources within the GRIC 
reservation. See Letter dated June 22, 2009, from Margaret Cook, 
Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional 
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC 
Air Quality Management Plan,'' enclosure entitled ``2007 Emissions 
Inventory Update for the Gila River Indian Community.'' We find that 
the method used by the GRIC DEQ to produce the emissions inventory is 
acceptable, and that the inventory is comprehensive, accurate, and 
current. Table 3 provides a summary of the GRIC emissions inventory.

                     Table 3--Summary of Emissions (by Pollutant) From Air Pollutant Emission Sources on the GRIC Reservation, 2007
                                                                     [Tons/year] \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Pollutant> To determine highest concentrations expected to occur in 
the area covered by the network;
     To determine representative concentrations in areas of 
high population density;
     To determine the impact on ambient pollution levels of 
significant sources or source categories; and
     To determine general background pollution concentration 
levels.
    EPA's ambient air monitoring regulations in 40 CFR part 58 
establish minimum quality assurance requirements and monitor network 
design criteria. Effective December 18, 2006, these regulations require 
that monitoring organizations submit to EPA, beginning July 1, 2007, an 
annual monitoring plan that explains how the siting and operation of 
each monitor in the network meets the quality assurance requirements of 
40 CFR part 58, among other things. 40 CFR 58.10. Although Indian 
Tribes are generally not required to monitor ambient air, Tribes may 
choose to do so and, in some cases, may be required by EPA to institute 
quality assurance programs that comply with 40 CFR part 58 appendix A 
and to insure that the monitoring data they collect is representative 
of their respective airsheds. 71 FR 61236 at 61242 (October 17, 2006) 
(final rule: revisions to ambient air monitoring regulations).
    The GRIC submitted its first annual monitoring network plan 
pursuant to the requirements of 40 CFR 58.10 on

[[Page 48893]]

December 19, 2007.\29\ See Gila River Indian Community Department of 
Environmental Quality, Air Quality Program, 2006 Tribal Ambient Air 
Monitoring Network Review (2006 Annual Network Plan). The 2006 Annual 
Network Plan describes the Tribe's ozone and PM10 monitoring 
networks and how each monitor in these networks meets the Tribe's 
monitoring objectives consistent with the quality assurance 
requirements of 40 CFR part 58. EPA reviewed and approved the GRIC's 
2006 Annual Network Plan on May 9, 2008. See letter dated May 9, 2008, 
from Sean Hogan, Air Quality Analysis Office, US EPA Region 9, to Leroy 
Williams, Air Quality Program, GRIC DEQ.
---------------------------------------------------------------------------

    \29\ On September 12, 2006, the GRIC submitted a Quality 
Assurance Project Plan (QAPP) for its ambient air monitoring 
program. EPA approved the QAPP for collection of environmental data 
on April 13, 2007. See letter dated April 13, 2007, from Eugenia 
McNaughton and Sean Hogan, US EPA Region 9, to Leroy Williams, GRIC 
DEQ.
---------------------------------------------------------------------------

    The GRIC's ozone monitoring network is comprised of two State and 
Local Air Monitoring Station (SLAMS) monitors in the reservation. See 
2006 Annual Network Plan at 7. One of these monitors is located at the 
GRIC DEQ building in Sacaton, Arizona, about 40 miles southeast of 
Phoenix. The other SLAMS monitor in the ozone monitoring network is at 
St. Johns-Gila Crossing North Middle School. Both monitors are 
regional/rural scale monitors designed to monitor population exposure 
and are long-term trends sites that operate on a seasonal schedule, 
from April through October. The areas surrounding both monitors are a 
mixture of residential areas and businesses. Id. at 7-9.
    The GRIC's PM10 monitoring network consists of one SLAMS 
monitoring site located at the Casa Blanca-Va Ki Elementary School. See 
2006 Annual Network Plan at 9. This monitor is designed to measure 
neighborhood and regional-scale air pollutant concentrations and 
operates on a one-in-three-day sampling schedule. The area surrounding 
the monitor is a mixture of residential areas, businesses, and 
agricultural operations. The GRIC also operates several PM10 
Special Purpose Monitor (SPM) stations throughout the reservation and 
anticipates adding three continuous PM10 SLAMS monitors to 
its PM10 monitoring network, at the Casa Blanca, St. Johns, 
and Sacaton sites. Id. at 4, 9-11.
    The air quality data collected by the GRIC DEQ are used for a 
variety of purposes including: determining compliance with the NAAQS, 
determining the location of maximum pollutant concentrations, 
determining the effectiveness of air pollution control programs, 
evaluating the effects of air pollution on public health, supporting 
dispersion models, developing cost-effective pollution control 
strategies, and determining air quality trends. See 2006 Annual Network 
Plan at 1. The GRIC regularly submits its data to EPA's Air Quality 
System (AQS) database.
    The GRIC Air Program also monitored for PM2.5 in two 
locations in the reservation between 2002 and 2004. On September 21, 
2004, EPA Region 9 concurred with the GRIC DEQ's request to discontinue 
operation of the PM2.5 monitors based on the low 
concentrations of recorded PM2.5 data and a determination 
that PM2.5 monitoring in the reservation is not required by 
EPA regulations. See letter dated September 21, 2004, from Robert S. 
Pallarino, EPA Region 9, to Leroy Williams, GRIC DEQ.
    The air quality monitoring network is not part of the TIP but 
supports the GRIC's ongoing evaluations of air pollution within the 
reservation and efforts to further develop its regulatory programs to 
address the Tribe's air quality needs.

V. Proposed Action

    Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is proposing 
to fully approve the TIP submitted by the GRIC DEQ on February 21, 
2007, as supplemented on July 11, 2007, June 22, 2009, and July 17, 
2010. The TIP includes general and emergency authorities, ambient air 
quality standards, permitting requirements for minor source of air 
pollution, enforcement authorities, procedures for administrative 
appeals and judicial review in Tribal court, requirements for area 
sources of fugitive dust and fugitive particulate matter, general 
prohibitory rules, and source category-specific emission limitations 
and standards. These provisions establish a base TIP that is suitable 
for the GRIC's reservation and regulatory capacities and that meets all 
applicable minimum requirements of the CAA and EPA regulations.
    We are proposing to act only on those portions of the GRIC AQMP 
that constitute a TIP containing severable elements of an 
implementation plan under section 110(a) of the CAA, as discussed in 
this notice. We are not proposing today to act on those elements of the 
GRIC AQMP that address requirements of CAA title V or any other program 
under the Act. We intend to take separate action on other CAA programs 
submitted by the GRIC DEQ, as appropriate.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This proposed action merely proposes to approve laws of an eligible 
Indian tribe as meeting Federal requirements and imposes no additional 
requirements beyond those imposed by Tribal law. Accordingly, the 
Administrator certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because 
this rule proposes to approve pre-existing requirements under Tribal 
law and does not impose any additional enforceable duty beyond that 
required by Tribal law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' EPA has concluded that this 
proposed rule will have tribal implications in that it will have 
substantial direct effects on the GRIC. However, it will neither impose 
substantial direct compliance costs on tribal governments, nor preempt 
tribal law. EPA is proposing to approve the GRIC's TIP at the request 
of the Tribe. Tribal law will not be preempted as the GRIC incorporated 
the TIP into Tribal Law on December 13, 2006. The Tribe has applied 
for, and fully supports, the proposed approval of the TIP. If it is 
finally approved, the TIP will become federally enforceable.
    EPA worked and consulted with officials of the GRIC DEQ early in 
the process of developing this proposed regulation to permit them to 
have meaningful and timely input into its development. In order to 
administer an approved TIP, tribes must be determined eligible (40 CFR 
part 49) for TAS for the purpose of administering a TIP. During the TAS 
eligibility process, the Tribe and EPA worked together to

[[Page 48894]]

ensure that the appropriate information was submitted to EPA. The GRIC 
and EPA also worked together throughout the process of development and 
Tribal adoption of the TIP. The Tribe and EPA also entered into a 
criminal enforcement MOA.
    This action also does not have Federalism implications because it 
does 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 (64 FR 43255 (August 
10, 1999)). This action merely proposes to approve a Tribal rule 
implementing a TIP covering areas within the exterior boundaries of the 
GRIC reservation, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This proposed rule does not provide EPA with the discretionary 
authority to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, February 16, 1994). This proposed rule also 
is not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885 (April 23, 
1997)), because it is not economically significant.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) do not 
apply to this proposed rule. In reviewing TIP submissions, the EPA's 
role is to approve an eligible tribe's submission, provided that it 
meets the criteria of the Clean Air Act. In this context, in the 
absence of a prior existing requirement for the Tribe to use voluntary 
consensus standards (VCS), the EPA has no authority to disapprove a TIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for the EPA, when it reviews a TIP submission, to use 
VCS in place of a TIP submission that otherwise satisfies the 
provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the NTTAA do not apply. This proposed rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

List of Subjects in 40 CFR Part 49

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: July 29, 2010.
Jeff Scott,
Acting Regional Administrator, EPA Region IX.
[FR Doc. 2010-19926 Filed 8-11-10; 8:45 am]
BILLING CODE 6560-50-P

