Approval and Promulgation of Gila River Indian Community's Tribal Implementation Plan, 48880-48894 [2010-19926]
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Proposed Rules
Federal Register
Vol. 75, No. 155
Thursday, August 12, 2010
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hearing which was the subject of FR
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On page 43110, column 1, in the
heading, line 5, the language ‘‘RIN 1545–
B171’’ is corrected to read ‘‘RIN 1545–
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DEPARTMENT OF THE TREASURY
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Branch Chief, Publications and Regulations
Branch, Legal Processing Division, Associate
Chief Counsel (Procedure and
Administration).
Internal Revenue Service
[FR Doc. 2010–19881 Filed 8–11–10; 8:45 am]
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BILLING CODE 4830–01–P
[REG–139343–08]
RIN 1545–BI71
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Correction
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AGENCY
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[EPA–R09–OAR–2007–0296, FRL–9188–9]
Approval and Promulgation of Gila
River Indian Community’s Tribal
Implementation Plan
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
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,
SUMMARY:
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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:
• https://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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
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Federal Register / Vol. 75, No. 155 / Thursday, August 12, 2010 / Proposed Rules
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 https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the
electronic docket are listed in the
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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 https://
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.
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
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?
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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 categoryspecific 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.
The Gila River Indian Community is
an Indian tribe federally recognized by
the U.S. Secretary of the Interior (see 67
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.
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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
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.
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).
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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.
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
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).
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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.
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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
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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) agencysubmitted ‘‘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
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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
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
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), https://
www.epa.gov/air/tribal/tip2002/.
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48883
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
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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.
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.
6 The TAS Decision Document describes the
geographic area within which the Tribe is approved
for TAS.
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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
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
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.
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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
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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.
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 § 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
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.
10 EPA’s air quality designations for the 2006 24hour Fine Particle (PM2.5) standard were published
in the Federal Register on November 13, 2009. 74
FR 58688.
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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.
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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
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
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
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.
13 See footnote 2.
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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.
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
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.
15 Consistent with 40 CFR 51.102(c), however, the
AQMP does not require a public hearing for any
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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.
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.
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).
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).
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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.
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
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.
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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
48887
requirements of parts C and D of title I
of the Act, as appropriate.
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:
TABLE 1—‘‘DE MINIMIS’’ THRESHOLDS IN THE GRIC’S MINOR NSR PERMIT PROGRAM 22
1 ton per year (tpy).
Any single hazardous air pollutant (HAP), or ................................................................................................
Any combination of HAPs .............................................................................................................................
1000 lbs per year (single HAP), or
1 tpy (combination of HAPs).
Any single ultrahazardous air pollutant, or any combination of ultrahazardous air pollutants .....................
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300 lbs per year.
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; airconditioning 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
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).
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).
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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 technologybased 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
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For
For
For
For
For
For
For
a
a
a
a
a
a
a
new source, any single criteria pollutant ............................................................................................................................
new source, any single HAP ..............................................................................................................................................
new source, any combination of HAPs ..............................................................................................................................
new source, any single or any combination of ultrahazardous air pollutants ....................................................................
modification, an increase of any single criteria pollutant (that does not make the source a major source) .....................
modification, any single new HAP or increase in a HAP already emitted by the source .................................................
modification, an increase in any 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 unitspecific 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.
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
23 Part
II, Sections 4.2.A(2), 4.2.A(3)(c), 4.2.B.
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
24 Generally,
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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.
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,
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.
25 A significant permit revision is, among other
things, any change to a non-title V permit that will
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75 tpy.
3 tpy.
5 tpy.
300 lbs per year.
25 tpy.
3 tpy.
5 tpy.
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.
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).
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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
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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
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48889
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 dustgenerating 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)
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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
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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-
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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 noncomplying 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.
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.
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).
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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, welldefined 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
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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
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
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.
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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
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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, welldefined 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
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‰Source
PM–10
CO
NOX
VOC
SOX
Point .............................................................................................................................
Mobile ..........................................................................................................................
Area ..............................................................................................................................
1048
386
759
161
10,588
63
175
2055
52
142
929
56
31
37
0
Total ......................................................................................................................
2193
10,812
2282
1127
68
a From
Table 4–1, 2007 Emissions Inventory Update for the Gila River Indian Community. Totals may not be precise due to rounding.
The emissions inventory 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.
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2. Air Quality Monitoring Network
An air quality monitoring network
consists of one or more sites where
instruments are located to measure the
concentrations of pollutants in the air at
regular intervals. Meteorological
stations often are part of an air quality
monitoring network. Data collected by
the monitoring network can be used to
identify changes in air quality and to
determine whether the area meets the
NAAQS for the criteria pollutants.
An air quality monitoring network
should be designed to meet at least one
28 See ‘‘Developing a Tribal Implementation Plan,’’
Office of Air Quality Planning and Standards, US
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of the following basic monitoring
objectives:
• 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
EPA, October 2002 (EPA 452/R–02–010), https://
www.epa.gov/air/tribal/tip2002/, at
Chapter 3.
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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.
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-inthree-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
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.
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pollutant concentrations, determining
the effectiveness of air pollution control
programs, evaluating the effects of air
pollution on public health, supporting
dispersion models, developing costeffective 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.
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48893
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
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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,
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Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
[FR Doc. 2010–19926 Filed 8–11–10; 8:45 am]
Comments may be mailed to
Mr. Guy Donaldson, Chief, Air Planning
Section (6PD–L), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
Comments may also be submitted
electronically or through hand delivery/
courier by following the detailed
instructions in the Addresses section of
the direct final rule located in the rules
section of this Federal Register.
BILLING CODE 6560–50–P
FOR FURTHER INFORMATION CONTACT:
Authority: 42 U.S.C. 7401 et seq.
Dated: July 29, 2010.
Jeff Scott,
Acting Regional Administrator, EPA Region
IX.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2005–NM–0009; FRL–
9187–7]
Approval and Promulgation of Air
Quality Implementation Plans; New
Mexico; Revisions to Emissions
Inventory Reporting Requirements,
and General Provisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to
approve revisions to the New Mexico
State Implementation Plan (SIP). These
revisions concern two separate actions.
First, we are proposing to approve
revisions to regulations on Emissions
Inventories (EIs) submitted by stationary
sources of air pollutants. EIs are critical
for the efforts of State, local, and federal
agencies to attain and maintain the
National Ambient Air Quality Standards
that EPA has established for criteria
pollutants such as ozone, particulate
matter, and carbon monoxide. The
revisions add new definitions, modify
existing definitions, and require
stationary sources of air pollutants
located in New Mexico outside of
Bernalillo County to report emissions
location information, PM2.5 emissions,
and ammonia emissions to New Mexico
Environment Department (NMED). The
revisions also allow NMED to require
speciation of hazardous air pollutants
for emissions reporting. Second, we are
proposing to approve revisions to the
General Provisions of the NMAC (20.2.1
NMAC—General Provisions). We are
proposing to add a new definition for
Significant Figures into the New Mexico
SIP. EPA is proposing to approve these
two actions pursuant to section 110 of
the Federal Clean Air Act.
DATES: Written comments must be
received on or before September 13,
2010.
SUMMARY:
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ADDRESSES:
Mr.
Emad Shahin for Emission Inventory
inquiries, Air Planning Section (6PD–L),
Environmental Protection Agency,
Region 6, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202–2733, telephone
214–665–6717; fax number 214–665–
7263; e-mail address
shahin.emad@epa.gov, and Mr. Alan
Shar for General Provisions inquiries,
Air Planning Section (6PD–L),
telephone 214–665–6691; fax number
214–665–7263; e-mail address
shar.alan@epa.gov.
In the
final rules section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no relevant adverse comments
are received in response to this action,
no further activity is contemplated. If
EPA receives adverse comments, the
direct final rule will be withdrawn and
all public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
For additional information, see the
direct final rule, which is located in the
rules section of this Federal Register.
SUPPLEMENTARY INFORMATION:
Dated: August 3, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010–19820 Filed 8–11–10; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Proposed Rules]
[Pages 48880-48894]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19926]
=======================================================================
-----------------------------------------------------------------------
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:
https://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
https://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 https://www.regulations.gov or e-mail. The https://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 https://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 https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
https://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 https://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.
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\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.
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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\
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\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).
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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.
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\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).
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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\
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\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), https://www.epa.gov/air/tribal/tip2002/.
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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.
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\6\ The TAS Decision Document describes the geographic area
within which the Tribe is approved for TAS.
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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\
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\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.
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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\
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\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.
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[[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.
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\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.
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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.
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\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.
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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\
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\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.
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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\
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\13\ See footnote 2.
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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.
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\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.
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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.
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\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).
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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.
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\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).
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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.
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\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.
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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.
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\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).
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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:
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\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.
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\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.
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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
