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 (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a Tribal implementation plan (TIP) 

submitted by the Gila River Indian Community (GRIC or Tribe) on 

February 21, 2007, as supplemented and amended on July 11, 2007, 

June 22, 2009, and July 17, 2010, and as described in our August 

12, 2010 proposal (75 FR 48880). The TIP includes general and 

emergency authorities, ambient air quality standards, permitting 

requirements for minor sources of air pollution, enforcement 

authorities, procedures for administrative appeals and judicial 

review in Tribal court, requirements for area sources of 

fugitive dust and fugitive particulate matter, general 

prohibitory rules, and source category-specific emission 

limitations 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 Clean Air Act (CAA or Act) and EPA regulations. The effect 

of this action is to make the approved portions of the GRIC TIP 
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federally enforceable under the CAA and to further protect air 

quality within the exterior boundaries of the GRIC reservation. 

DATES: This final rule is effective [INSERT DATE 30 DAYS FROM 

DATE OF PUBLICATION IN FEDERAL REGISTER]. The incorporation by 

reference of certain publications listed in the rule is approved 

by the Director of the Federal Register as of [INSERT DATE 30 

DAYS FROM DATE OF PUBLICATION IN FEDERAL REGISTER]. 

ADDRESSES: EPA has established a docket for this action under 

EPA-R09-OAR-2007-0296. Generally, documents in the docket for 

this action are available electronically 

at http://www.regulations.gov or in hard copy at EPA Region IX, 

75 Hawthorne Street, San Francisco, California. While all 

documents in the docket are listed at http://www.regulations.gov, 

some information may be publicly available only at the hard copy 

location (e.g., copyrighted material, large maps, multi-volume 

reports) and some may not be available in either location (e.g., 

confidential business information (CBI)). To inspect the hard 

copy materials, please schedule an appointment during normal 

business hours with the contact listed in the FOR FURTHER 

INFORMATION CONTACT section. 

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.
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SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we”, “us”, and “our” refer to EPA. 

Judicial Review 

 Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [FEDERAL 

REGISTER OFFICE: INSERT DATE 60 DAYS FROM DATE OF PUBLICATION IN 

THE FEDERAL REGISTER]. Under CAA section 307(d)(7)(b), only an 

objection to this final action that was raised with reasonable 

specificity during the public comment period can be raised 

during judicial review. This section also authorizes the 

convening of a proceeding for reconsideration in specified 

circumstances. Filing a petition requesting that the 

Administrator reconsider this final rule does not affect the 

finality of this action for the purposes of judicial review nor 

does it extend the time within which a petition for judicial 

review may be filed, and shall not postpone the effectiveness of 

such rule or action. This action may not be challenged later in 

proceedings to enforce its requirements. (See CAA section 

307(b)(2).) 

I. Summary of the Proposed Action 

The GRIC reservation is located in south-central Arizona, 

adjacent to the Phoenix Metropolitan Area, in Pinal and Maricopa 

Counties. On August 12, 2010 (75 FR 48880), EPA proposed to 
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approve a TIP submitted by the GRIC on February 21, 2007, as 

supplemented and amended on July 11, 2007, June 22, 2009, and 

July 17, 2010, and as described in the proposal. The TIP 

includes general and emergency authorities, ambient air quality 

standards, permitting requirements for minor sources of air 

pollution, enforcement authorities, procedures for 

administrative appeals and judicial review in Tribal court, 

requirements for area sources of fugitive dust and fugitive 

particulate matter, general prohibitory rules, and source 

category-specific emission limitations and standards. 

The TIP is one of four regulatory programs that comprise 

the GRIC’s Air Quality Management Plan (AQMP).1 We proposed to 

approve only those portions of the GRIC AQMP that constitute a 

TIP containing severable elements of an implementation plan 

under section 110 of the CAA, as discussed in this notice and in 

our August 12, 2010 proposal. These severable plan elements 

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, the Tribal Authority Rule in 40 CFR 

part 49 (TAR), and other applicable CAA regulations. 

 

1 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. We are not 

acting today on these other elements of the GRIC AQMP. 
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 For a more detailed description of the TIP, our evaluation 

of the TIP and supplemental information, and our rationale for 

our proposed action, please see the August 12, 2010 proposed 

rule and related Technical Support Document, both of which can 

be found in the docket for today’s action. 

II. EPA's Response to Comments 

 Our August 12, 2010 proposed rule provided for a 30-day 

comment period, which ended on September 13, 2010. We received 

two public comment letters expressing only support for our 

proposed action. The two letters of support that we received 

can be found in the docket for today’s action. 

III. Final Action 

Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is 

fully approving the TIP submitted by the GRIC DEQ on February 21, 

2007, as supplemented and amended on July 11, 2007, June 22, 

2009, and July 17, 2010, and as described in our August 12, 2010 

proposal (75 FR 48880). For the reasons set forth in this 

document and in the August 12, 2010 proposed rule, we conclude 

that the TIP meets the applicable requirements of CAA section 

110, EPA’s implementing regulations, CAA section 301(d) and the 

TAR in 40 CFR part 49. The TIP includes the following severable 

elements of an implementation plan under section 110 of the CAA: 

• General authorities that satisfy the requirement in CAA 

section 110(a)(2)(J) to meet applicable requirements of 
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CAA section 121 (relating to consultation) and section 

127 (relating to public notification), and that 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; 

• Emergency powers that satisfy the requirement in CAA 

section 110(a)(2)(G) to provide for authority comparable 

to the emergency powers in section 303 of the Act; 

• Procedural requirements for preparation, adoption, 

submission to EPA, and revision of the TIP that satisfy 

the applicable requirements of CAA section 110(a)(2) and 

40 CFR part 51, subpart F; 

• Air quality standards and measurement methods that are 

consistent with the National Ambient Air Quality 

Standards in 40 CFR sections 50.4 through 50.8 and 50.10 

through 50.12, as effective in October 2006; 

• Legally enforceable procedures to regulate the 

construction, modification, and operation of “non-title V 

sources” (“minor sources”) 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; 

• Requirements and procedures for enforcement consistent 

with CAA section 110(a)(2)(C) that provide necessary 
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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); 

• Requirements and procedures for administrative appeals, 

final administrative decisions, and judicial review of 

final administrative decisions that establish adequate 

procedures for review of the Director’s decisions under 

the TIP and that satisfy the applicable requirements of 

CAA sections 110(a)(2)(C) and 110(a)(2)(E)(i); and 

• Area source emission limits, general prohibitory rules, 

and source category-specific emission limitations that 

satisfy EPA’s enforceability requirements under CAA 

section 110(a)(2)(A). 

EPA is approving these provisions as elements of a base TIP 

under CAA section 110 that is suitable to the GRIC’s reservation 

and regulatory capacities. We are not acting today 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. 

IV. Statutory and Executive Order Reviews 

 Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is not a “significant regulatory action” and 

therefore is not subject to review by the Office of Management 
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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 action approves 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 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 approves pre-existing 

requirements under Tribal law and does not impose any additional 

enforceable duty beyond that required by Tribal law, it does not 

contain any unfunded mandate or significantly or uniquely affect 

small governments, as described in the Unfunded Mandates Reform 

Act of 1995 (Pub. L. 104-4). 

 Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (59 FR 22951, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” EPA has concluded that this 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 
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tribal law. EPA is approving the GRIC's TIP at the request of 

the Tribe. Tribal law will not be preempted as the GRIC has 

already incorporated the TIP into Tribal Law on December 13, 

2006. The Tribe has applied for, and fully supports, the 

approval of the TIP. This approval makes the TIP federally 

enforceable. 

 EPA worked and consulted with officials of the GRIC early in 

the process of developing these regulations to permit them to 

have meaningful and timely input into their development. In 

order to administer an approved TIP, tribes must be determined 

eligible (40 CFR part 49) for Treatment as State (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. 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 does not have Federalism implications because 

it does not have substantial direct effects on the States, on 

the relationship between the national government and the States, 

or on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132 (64 FR 43255, August 10, 1999). This action approves 

Tribal rules implementing a TIP over areas within the exterior 
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boundaries of the Gila River Indian Community’s reservation, and 

does not alter the relationship or the distribution of power and 

responsibilities established in the Clean Air Act. This action 

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 action 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. 

 In reviewing TIP submissions, EPA’s role is to approve an 

eligible tribe’s submission, provided that it meets the criteria 

of the Clean Air Act. In this context, in the absence of a prior 

existing requirement for the tribe to use voluntary consensus 

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

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

with applicable law for EPA, when it reviews a TIP submission, 

to use VCS in place of a TIP provision that otherwise satisfies 

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

section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule 

does not impose an information collection burden under the 
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provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 

3501 et seq.). 

 The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule 

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this action and other 

required information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). 
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List of Subjects in 40 CFR Part 49 

Environmental protection, Administrative practice and 

procedure, Air pollution control, Carbon monoxide, Incorporation 

by reference, Indians, Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile organic compounds. 

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

____January 19, 2011__________ __/s/_Jared Blumenfeld____ 

 Jared Blumenfeld 

Dated: Regional Administrator, 

 Region IX. 
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 Part 49 of chapter I, title 40 of the Code of Federal 

Regulations is amended as follows: 

PART 49--[AMENDED] 

1. The authority citation for part 49 continues to read as 

follows: 

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

2. Subpart L of Part 49 is amended by adding an undesignated 

center heading and Sec. 49.5511 as follows: 

Subpart L--Implementation Plans for Tribes--Region IX 

Implementation Plan for the Gila River Indian Community 

Sec. 49.5511 Identification of plan. 

(a) Purpose and scope. This section contains the approved 

implementation plan for the Gila River Indian Community dated 

August 2008. The plan consists of programs and procedures that 

cover general and emergency authorities, ambient air quality 

standards, permitting requirements for minor sources of air 

pollution, enforcement authorities, procedures for 

administrative appeals and judicial review in Tribal court, 

requirements for area sources of fugitive dust and fugitive 

particulate matter, general prohibitory rules, and source 

category-specific emission limitations and standards. 

(b) Incorporation by reference. 
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(1) Material listed in paragraph (c) of this section was 

approved for incorporation by reference by the Director of the 

Federal Register in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. Material is incorporated as it exists on the date 

of the approval, and notice of any change in the material will 

be published in the Federal Register. 

(2) EPA Region IX certifies that the rules/regulations provided 

by EPA in the TIP compilation at the addresses in paragraph 

(b)(3) of this section are an exact duplicate of the officially 

promulgated tribal rules/regulations which have been approved as 

part of the Tribal Implementation Plan as of [INSERT DATE 30 

DAYS FROM DATE OF PUBLICATION IN FEDERAL REGISTER]. 

(3) Copies of the materials incorporated by reference may be 

inspected at the Region IX Office of EPA at 75 Hawthorne Street, 

San Francisco, CA 94105-3901; the U.S. Environmental Protection 

Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket and 

Information Center, MC 2822T, 1200 Pennsylvania Avenue, NW., 

Washington, DC 20460 and the National Archives and Records 

Administration. For information on the availability of this 

material at NARA, call 202-741-6030, or go to: 

http://www.archives.gov/federal_register/code_of_federal_regulat

ions/ibr_locations.html.

(c) EPA-approved regulations. 
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EPA-Approved Gila River Indian Community Tribal Regulations 

Tribal 

citation Title/subject 

Tribal 

effective 

date 

EPA 

approval 

date Explanations

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part I, 

sections 1-3 

Definitions, 

general 

authorities, 

procedures for 

preparation, 

adoption, and 

submittal of 

plan elements 

and revisions 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part I, 

section 4 

Air Quality 

Standards 

Note: 

several 

revisions to 

the NAAQS 

have 

occurred 

since the 

adoption of 

the TIP. 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part II 

Permit 

Requirements for 

Minor Sources 

Title V 

regulations 

are not 

approved 

into the 

TIP. 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part III 

Civil and 

Criminal 

Enforcement 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part IV 

Administrative 

appeals, final 

administrative 

decisions, and 

judicial review 

of final 

administrative 

decisions 
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Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part V 

Area source 

emissions limits 

(open burning 

and fugitive 

dust) 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part VI 

Individual 

source 

requirements for 

existing and new 

sources 

Gila River 

Indian 

Community, 

Tribal 

Implementation 

Plan, Part VII 

Source/categoryspecific 

emission limits 

for existing and 

new sources