ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 49 

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

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 
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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 [Insert date 30 

days from date of publication in Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID No.

EPA-R09-OAR-2007-0296, by one of the following methods: 

• www.regulations.gov: Follow the on-line instructions for 

submitting comments. 

• Email: 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, 8:00 to 4:55 excluding Federal holidays. 
3

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 www.regulations.gov, including any personal 

information provided, unless the comment includes information 

claimed to be Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Do not 

submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. 

The www.regulations.gov website is an “anonymous access” syste

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 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 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 

m, 
4

public docket visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm.

DOCKET: All documents in the electronic docket are listed in 

the http://www.regulations.gov index. Although listed in the 

index, some information is not publicly available, i.e., CBI or 

other information whose disclosure is restricted by statute. 

certain other material, such as copyrighted material, is not 

placed on the Internet and will be publicly available only in 

hard copy form. Publicly available docket materials are 

available either electronically in 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 
5

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 
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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 standards2; permit requirements for 

 

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 
7

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. 

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 

 

Federal NAAQS as Tribal standards and to submit them to EPA as 

revisions to the TIP. 
8

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 

 

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). 
9

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. 

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 

 

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). 
10

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 
11

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 
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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 
13

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. 
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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 

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 
15

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., 
16

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

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 

 

5

 For guidance on development of TIPs, see “Developing a Tribal 

Implementation Plan,” Office of Air Quality Planning and 

Standards, US EPA, October 2002 (EPA 452/R-02-010), 

http://www.epa.gov/air/tribal/tip2002/index.html. 
17

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 
18

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 
19

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 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 
20

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 

reservation6; 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 

 

6

 The TAS Decision Document describes the geographic area within 

which the Tribe is approved for TAS. 
21

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 

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 

 

7

 See letter dated November 17, 2006, from William R. Rhodes, 

Governor, Gila River Indian Community, to Wayne Nastri, Regional 

Administrator, US EPA Region 9 (transmitting TAS application), 

at page 10. 

8 See letter dated January 9, 2003, from Jack Broadbent, Director, 

Air Division, US EPA Region 9, to Dr. Patricia Mariella, 

Director, Gila River Indian Community DEQ. 
22

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 C.F.R 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 
23

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 southcentral 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 
24

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 

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. 

 

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. 

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. 
25

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 
26

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 
27

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. 

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. 

 

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. 
28

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

 

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. 
29

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 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 risk14 to 

 

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.
30

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 emissionsgenerating 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 
31

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.

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 

 

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). 

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 
32

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. 

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 

 

standards for NO2, effective April 12, 2010); 75 FR 35520, June 

22, 2010 (revised standards for SO2, effective August 23, 2010). 
33

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 

 

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. 
34

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 

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 
35

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-
36

Title V Permit Requirements,” applies to stationary sources that 

are neither “major” under the Act19 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. 

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 

 

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). 
37

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 

Program22

Any single regulated air pollutant 

except a hazardous air pollutant 

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 

300 lbs per year 

In addition, Section 2.1.C(2) identifies several types of 

minor sources that are categorically treated as “de minimis 

 

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) 
38

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 
39

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 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-bycase 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-bycase 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 
40

Minor NSR Permit Program23

For a new source, any single 

criteria pollutant 

75 tpy 

For a new source, any single HAP 3 tpy 

For a new source, any combination of 

HAPs 

5 tpy 

For a new source, any single or any 

combination of ultrahazardous air 

pollutants 

300 lbs per year 

For a modification, an increase of 

any single criteria pollutant (that 

does not make the source a major 

source) 

25 tpy 

For a modification, any single new 

HAP or increase in a HAP already 

emitted by the source 

3 tpy 

For a modification, an increase in 

any combination of HAPs already 

emitted by the source 

5 tpy 

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 CAA24; (2) monitoring, testing, reporting, 

 

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. 
41

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 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 

 

25 A significant permit revision is, among other things, any 

change to a non-title V permit that will result in an increase 

in the source's potential to emit a regulated pollutant of more 

than either 25 tons per year or certain "significant" levels in 

Section 1.0 of Part II, whichever is less. AQMP Part II, 

Section 5.5.a(3). 
42

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, 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 
43

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. 

 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 
44

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. 
45

Specifically, Section 2.1 requires the GRIC’s General Counsel to 

consult with the appropriate federal agencies and, as 

appropriate, refer for federal prosecution any person who has 

willfully or knowingly violated an AQMP provision or a permit 

issued under Part II. The procedures for the GRIC DEQ’s 

referral of potential criminal violations to the appropriate 

federal agencies, for possible criminal prosecution under 

Section 113(c) of the CAA, are outlined in the Criminal 

Enforcement MOA discussed above in Section III.B of this notice. 

Section 3.0 of Part III contains citizen suit provisions. 

By letter dated July 17, 2010, the GRIC DEQ requested that EPA 

not act on these provisions as part of the TIP. The GRIC 

clarified that these provisions, which remain effective under 

Tribal law, are not intended to alter the Tribe’s liability to 

civil suit based on established principles of Tribal sovereign 

immunity and the provisions of the CAA, nor are they intended to 

limit any existing Federal jurisdiction under the CAA. See 

letter dated July 17, 2010 from Margaret Cook, Executive 

Director, GRIC DEQ, to Deborah Jordan, Air Division Director, 

EPA Region 9, “Re: Gila River Indian Community Tribal 

Implementation Plan.” Nothing in our proposed action alters the 

effect of the citizen suit provisions of CAA section 304 as they 

may apply to the Tribe consistent with established principles of 

Tribal sovereign immunity. 
46

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 
47

specific information regarding the notice to the GRIC Governor’s 

office, after which the Governor must assign an ALJ to the 

matter and schedule a hearing, in accordance with specified 

timeframes. Section 3.0 also authorizes the ALJ to schedule a 

pre-hearing conference in accordance with specified criteria, 

and establishes procedures and evidentiary requirements for the 

hearing. 

 Section 4.0 of Part IV establishes requirements and 

procedures for the Director’s final administrative decision 

following the hearing and the ALJ’s issuance of a recommended 

decision. The Director may accept, reject or modify the ALJ’s 

recommended decision, but prior to rejecting or modifying the 

recommendation, the Director must consult with and obtain the 

written consent of the GRIC Governor or his/her designee. The 

Director’s decision becomes final unless, within 35 days, a 

party appeals the final decision judicially. 

 Section 5.0 establishes requirements and procedures for 

judicial review of final administrative decisions, jurisdiction 

over which is vested in the GRIC Community Court. Except in 

cases where trial de novo is appropriate or justice demands the 

admission of new or additional evidence, judicial review is 

limited to the administrative record before the court. Section 

5.0 specifies the GRIC Community Court’s authorities and the 

limits on those authorities. For example, the court may stay 
48

the Director’s final decision in whole or in part for 

substantial good cause, pending final disposition of the case, 

and may ultimately modify, affirm, or reverse the decision. The 

court may not, however, reverse a finding of fact by the 

Director unless it is “clearly erroneous” and may not reverse 

the Director’s final administrative decision unless it has “no 

substantial evidentiary basis in the record or is erroneous as a 

matter of law.” Part IV, Section 5.7. Decisions of the GRIC 

Community Court may be further appealed to the GRIC Court of 

Appeals. 

 These provisions establish adequate procedures for review 

of the Director’s decisions under the TIP. Our finding applies 

only to this TIP under section 110 of the Act and does not apply 

to other CAA programs submitted by the Tribe, each of which we 

will evaluate separately in accordance with applicable CAA and 

regulatory requirements. 

5. Area Source Emission Limits 

 Part V of the AQMP contains two rules that regulate air 

pollution from specific types of area sources. The purpose of 

these rules is to reduce emissions of particulate matter from 

open burning and fugitive dust-generating activities. 

Section 1.0 (Open Burning) limits the types of materials 

that can be openly burned within the GRIC reservation and 

requires permits for open burning of specified materials. Three 
49

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) 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-
50

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 
51

be applied to all actual and potential fugitive dust-generating 

operations. 

In addition to the requirements for dust control plans, the 

rule establishes specific control measures and work practices 

for specified dust-generating operations, which apply to the 

specified activities independent of any approved dust control 

plans. The rule also contains detailed test methods and 

recordkeeping requirements to ensure that compliance with the 

required control measures, work practice standards, and any 

approved dust control plans can be verified. Certain specified 

activities and individuals are exempted from the rule – i.e., 

owners and occupants of single family residences, owners or 

managers of residential buildings with four or less units, 

normal farming practices, and public roads owned or maintained 

by any federal, tribal, or local government. 

We have determined that Part V of the AQMP contains 

specific, well-defined requirements that meet EPA’s 

enforceability requirements under CAA section 110(a)(2)(A). As 

described above, the rules contain test methods and 

recordkeeping requirements adequate to determine compliance; 

clearly identify the activities that are subject and those that 

are exempt from rule requirements; and do not allow for 

variations from the rules other than those specified in limited 

exemptions. EPA is proposing to approve these rules as elements 
52

of a base TIP suitable to the GRIC’s reservation and regulatory 

capacities. Our TSD contains more information about each of 

these rules and suggestions for rule improvement that do not 

affect our proposed action. 

6. Generally Applicable Individual Source Requirements for 

Existing and New Sources 

Part VI of the AQMP contains three rules that regulate 

visible emissions, volatile organic compound (VOC) emissions, 

and degreasing and solvent metal cleaning operations. The 

purpose of these rules is to reduce visible emissions and 

emissions of particulate matter and gaseous organic compounds. 

Section 1.0 (Visible Emissions) generally prohibits the 

discharge of any air contaminant into the ambient air from any 

single source of emissions, other than uncombined water, in 

excess of 20 percent opacity. Compliance is determined by 

observations of visible emissions conducted in accordance with 

EPA Test Method 9 (40 CFR part 60, appendix A), except that for 

purposes of measuring visible emissions from intermittent 

sources, at least twelve (12) rather than twenty-four (24) 

consecutive readings are required at 15-second intervals for the 

averaging time. Part VI, Section 1.0, subsection 4.0. The rule 

provides limited exceptions for certain activities or equipment, 

such as the charging or back-charging of an electric arc furnace 

for which construction commenced prior to February 2, 1963, and 
53

for equipment or processes used to train individuals in opacity 

observations. 

Section 2.0 (VOC Usage, Storage and Handling) generally 

limits the discharge of VOC emissions from operations involving 

the usage, storage, transfer or disposal of VOC-containing 

materials. For example, the rule prohibits the discharge of 

more than 15 pounds of VOCs a day from any device in an 

operation involving heat, and prohibits the discharge of more 

than 40 pounds of VOCs a day from any device in an operation 

involving the use of non-complying solvents.26 If these VOC 

limits are exceeded, the rule requires application of specific 

control methods that achieve at least 85 percent overall control 

efficiency or compliance with certain operating standards. 

Owners or operators who choose to use an emissions control 

system (ECS) to reduce VOC emissions must provide to the GRIC 

DEQ for approval an Operation and Maintenance Plan (O&M Plan), 

together with the initial application for an operating permit. 

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 

 

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). 
54

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. 

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 
55

of meeting certain equipment specifications, meet the 

requirements of the rule through the use of an ECS. 

The rule establishes specific monitoring, reporting, and 

recordkeeping requirements and test methods for determining 

compliance. Additionally, upon startup of a new solvent cleaner, 

replacement of an existing solvent cleaner with a different 

model, change of a control device used on a solvent cleaner, or 

upon request by the GRIC DEQ, the owner of any solvent cleaner 

must perform tests and submit a compliance certification to the 

GRIC DEQ. Certain specified activities are exempt from the rule 

– e.g., solvent cleaning operations specifically regulated by 

another rule in Part VI; laundering and housekeeping supplies 

and activities; and cleaning solutions containing 20 percent or 

less VOC by either weight or volume. 

We have determined that Part VI of the AQMP contains 

specific, well-defined requirements that meet EPA’s 

enforceability requirements under CAA section 110(a)(2)(A). As 

described above, the rules contain test methods and monitoring, 

recordkeeping, and reporting requirements adequate to determine 

compliance; clearly identify the activities that are subject and 

those that are exempt from rule requirements; and do not allow 

for variations from the rules other than those specified in 

limited exemptions. EPA is proposing to approve these rules as 

elements of a base TIP suitable to the GRIC’s reservation and 
56

regulatory capacities. Our TSD contains more information about 

each of these rules and suggestions for rule improvement that do 

not affect our proposed action. 

7. Source/Category-Specific Emission Limits for Existing and New 

Sources 

 Part VII of the AQMP contains three rules that regulate 

secondary aluminum production facilities, aerospace 

manufacturing and rework operations, and nonmetallic mineral 

mining and processing operations. The purpose of these rules is 

to reduce visible emissions and emissions of VOCs and 

particulate matter from these operations. 

Section 1.0 (Secondary Aluminum Production) applies to all 

new, existing and modified secondary aluminium production 

facilities. The requirements of Section 1.0 are in addition to 

the requirements of the Federal NESHAP for Secondary Aluminum 

Production at 40 CFR part 63, subpart RRR, which are 

incorporated by reference into the rule.27

Specifically, Section 1.0 prohibits any person from causing, 

allowing or permitting the discharge into the atmosphere of any 

 

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. 
57

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 
58

establishes VOC content limits for primers, topcoats, chemical 

milling maskants, and specialty coatings. In lieu of meeting 

the applicable coating limits in the rule, an owner/operator of 

a subject facility may comply with the rule by installing and 

operating an approved ECS, provided the owner/operator can 

demonstrate to the GRIC DEQ that the control system will achieve 

a combined VOC emission capture and control efficiency of at 

least 81% by weight. The rule establishes techniques for the 

application of primers and topcoats, as well as operational 

standards for hand-wipe cleaning, solvent cleaning, and 

housekeeping. The rule also establishes detailed recordkeeping 

and reporting requirements and identifies specific methods for 

determining compliance. Certain specified activities are exempt 

from the rule – e.g., research and development operations, 

chemical milling (except for application of chemical milling 

maskants), electronic parts and assemblies (except for cleaning 

and topcoating of completed assemblies), and wastewater 

treatment operations. 

 Section 3.0 (Nonmetallic Mineral Mining and Processing) 

regulates VOC emissions from cutback asphalt operations and 

particulate matter (PM-10) emissions from sand and gravel 

facilities. Specifically, the rule applies to any commercial 

and/or industrial nonmetallic mineral mining or rock product 
59

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 visible emissions in excess of the limits in the rule. 

Third, any owner/operator using an ECS to reduce emissions 
60

must submit an O&M Plan for approval to the GRIC DEQ, together 

with the initial application for an operating permit. The O&M 

Plan must contain specific conditions and procedures to ensure 

proper operation of the ECS, and the owner/operator must fully 

comply with each submitted O&M Plan, unless notified otherwise 

in writing by the GRIC DEQ. 

Finally, the rule establishes detailed monitoring, 

reporting and recordkeeping requirements, as well as specific 

methods for determining compliance with the PM-10 emission 

limitations and opacity limitations in the rule. 

We have determined that Part VII of the AQMP contains 

specific, well-defined requirements that meet EPA’s 

enforceability requirements under CAA section 110(a)(2)(A). As 

described above, the rules contain test methods and monitoring, 

recordkeeping, and reporting requirements adequate to determine 

compliance; clearly identify the activities that are subject and 

those that are exempt from rule requirements; and do not allow 

for variations from the rules other than those specified in the 

limited exemptions. EPA is proposing to approve these rules as 

elements of a base TIP suitable to the GRIC’s reservation and 

regulatory capacities. Our TSD contains more information about 

each of these rules and suggestions for rule improvement that do 

not affect our proposed action. 

D. What Other Information has the GRIC Submitted to Support the 
61

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, 

 

28 See “Developing a Tribal Implementation Plan,” Office of Air 

Quality Planning and Standards, US EPA, October 2002 (EPA 452/R02-010), http://www.epa.gov/air/tribal/tip2002/index.html, at 

Chapter 3. 
62

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 1048 161 175 142 31

Mobile 386 10,588 2055 929 37

Area 759 63 52 56 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. 

2. Air Quality Monitoring Network 
63

 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 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, 
64

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 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 

 

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. 
65

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-in-three-day 

sampling schedule. The area surrounding the monitor is a 

mixture of residential areas, businesses, and agricultural 

operations. The GRIC also operates several PM10 Special Purpose 

Monitor (SPM) stations throughout the reservation and 

anticipates adding three continuous PM10 SLAMS monitors to its 

PM10 monitoring network, at the Casa Blanca, St. Johns, and 

Sacaton sites. Id. at 4, 9-11. 
66

The air quality data collected by the GRIC DEQ are used for 

a variety of purposes including: determining compliance with the 

NAAQS, determining the location of maximum pollutant 

concentrations, determining the effectiveness of air pollution 

control programs, evaluating the effects of air pollution on 

public health, supporting dispersion models, developing 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 
67

proposing to fully approve the TIP submitted by the GRIC DEQ on 

February 21, 2007, as supplemented on July 11, 2007, June 22, 

2009, and July 17, 2010. The TIP includes general and emergency 

authorities, ambient air quality standards, permitting 

requirements for minor source of air pollution, enforcement 

authorities, procedures for administrative appeals and judicial 

review in Tribal court, requirements for area sources of 

fugitive dust and fugitive particulate matter, general 

prohibitory rules, and source category-specific emission 

limitations and standards. These provisions establish a base 

TIP that is suitable for the GRIC’s reservation and regulatory 

capacities and that meets all applicable minimum requirements of 

the CAA and EPA regulations. 

We are proposing to act only on those portions of the GRIC 

AQMP that constitute a TIP containing severable elements of an 

implementation plan under section 110(a) of the CAA, as 

discussed in this notice. We are not proposing today to act on 

those elements of the GRIC AQMP that address requirements of CAA 

title V or any other program under the Act. We intend to take 

separate action on other CAA programs submitted by the GRIC DEQ, 

as appropriate. 

VI. Statutory and Executive Order Reviews
68

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 preexisting 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 
69

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 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 
70

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 
71

requirement for the Tribe to use voluntary consensus standards 

(VCS), the EPA has no authority to disapprove a TIP submission 

for failure to use VCS. It would thus be inconsistent with 

applicable law for the EPA, when it reviews a TIP submission, to 

use VCS in place of a TIP submission that otherwise satisfies 

the provisions of the Clean Air Act. Thus, the requirements of 

section 12(d) of the NTTAA do not apply. This proposed rule does 

not impose an information collection burden under the provisions 

of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). 

List of Subjects in 40 CFR Part 49

Environmental protection, Air pollution control, Carbon 

monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and recordkeeping requirements, 

Sulfur oxides, Volatile organic compounds. 

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

_____________________ ____/s/________________________ 

Dated: Jeff Scott 

 Acting Regional Administrator, 

 EPA Region IX.