48880

Proposed Rules Federal Register

Vol. 75, No. 155

Thursday, August 12, 2010

This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 300

[REG-1 39343-08]

RIN 1545-BI71

User Fees Relating to Enrollment and

Preparer Tax Identification Numbers;

Correction

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Correction to notice of proposed

rulemaking and notice of a public

hearing.

SUMMARY: This document contains a

correction to a notice of proposed

rulemaking and notice of a public

hearing (REG-139343-08) that was

published in the Federal Register on

Friday, July 23, 2010 (75 FR 43110). The

proposed regulations contain proposed

amendments to regulations relating to

the imposition of certain user fees on

certain tax practitioners. The proposed

regulations establish a new user fee for

individuals who apply for or renew a

preparer tax identification number.

FOR FURTHER INFORMATION CONTACT:

Emily M. Lesniak, (202) 622-4940 (not

a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The notice of proposed rulemaking

and notice of a public hearing that is the

subject of this document is under

section 6109 of the Internal Revenue

Code.

Need for Correction

As published, the notice of proposed

rulemaking and notice of a public

hearing (REG-139343-08) contains an

error that is misleading and is in need

of clarification.

Correction to Publication

Accordingly, the notice of proposed

rulemaking and notice of a public

hearing which was the subject of FR

Doc. 2010-18198 is corrected as follows:

On page 43110, column 1, in the

heading, line 5, the language "RIN 1545-

B171" is corrected to read "RIN 1545-

B171".

LaNita VanDyke,

Branch Chief, Publications and Regulations

Branch, Legal Processing Division, Associate

Chief Counsel (Procedure and

Administration).

[FR Doc. 2010-19881 Filed 8-11-10; 8:45 am]

BILLING CODE 4830-01-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 49

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

Approval and Promulgation of Gila

River Indian Community's Tribal

Implementation Plan

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) proposes to approve the

Gila River Indian Community's (GRIC or

the Tribe) Tribal Implementation Plan

(TIP) under the Clean Air Act (CAA) to

regulate air pollution within the exterior

boundaries of the Tribe's reservation.

The proposed TIP is one of four CAA

regulatory programs that comprise the

Tribe's Air Quality Management Plan

(AQMP). EPA approved the Tribe for

treatment in the same manner as a State

(Treatment as State or TAS) for

purposes of administering the AQMP

and other CAA authorities on October

21, 2009. In this action we propose to

act only on those portions of the AQMP

that constitute a TIP containing

severable elements of an

implementation plan under CAA

section 110(a). The proposed TIP

includes general and emergency

authorities, ambient air quality

standards, permitting requirements for

minor sources of air pollution,

enforcement authorities, procedures for

administrative appeals and judicial

review in Tribal court, requirements for

area sources of fugitive dust and fugitive

particulate matter, general prohibitory

rules, and source category-specific

emission limitations. The purpose of the

proposed TIP is to implement, maintain,

and enforce the National Ambient Air

Quality Standards (NAAQS) in the GRIC

reservation. The intended effect of

today's proposed action is to make the

GRIC TIP federally enforceable.

DATES: Comments must be received on

or before September 13, 2010.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-R09-

OAR-2007-0296, by one of the

following methods:

* http://www.regulations.gov: Follow

the on-line instructions for submitting

comments.

* E-mail: tax.wienke@epa.gov

" Fax:415-947-3579

* Mail: Wienke Tax, Air Planning

Office, Environmental Protection

Agency, Region 9 Office, 75 Hawthorne

Street, San Francisco, CA 94105-3901.

* Hand Delivery: Wienke Tax, Air

Planning Office, Environmental

Protection Agency, Region 9 Office, 75

Hawthorne Street, San Francisco, CA

94105-3901. Such deliveries are only

accepted during the Regional Office's

normal hours of operation. The Regional

Office's official hours of business are

Monday through Friday, 8 to 4:55

excluding Federal holidays.

Instructions: Direct your comments to

Docket ID No. EPA-R09-OAR-2007-

0296. EPA's policy is that all comments

received will be included in the public

docket without change and may be

made available online at http://

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit information that you

consider to be CBI or otherwise

protected through http://

www.regulations.gov or e-mail. The

http://www.regulations.gov Web site is

an "anonymous access" system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an e-mail comment directly

to EPA without going through http://

www.regulations.gov your e-mail

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

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disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses. For additional information

about EPA's public docket visit the EPA

Docket Center homepage at http://

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

Docket: All documents in the

electronic docket are listed in the

http://www.regulations.gov index.

Although listed in the index, some

information is not publicly available,

i.e., CBI or other information whose

disclosure is restricted by statute.

certain other material, such as

copyrighted material, is not placed on

the Internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically in http://

www.regulations.gov or in hard copy at

the Air Planning Office, U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco, California, 94105-3901. EPA

requests that if at all possible, you

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to

schedule your inspection. The Regional

Office's official hours of business are

Monday through Friday, 8:30 to 4:30,

excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Air Planning Office,

Environmental Protection Agency,

Region 9 Office, 75 Hawthorne Street,

San Francisco, CA 94105-3901, (415)

947-4192 or tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms

"we, "us", and "our" refer to EPA.

Table of Contents

I. Background

II. CAA Requirements and the Role of Indian

Tribes

A. What authorities may Indian Tribes

obtain under the CAA?

B. What criteria must an Indian Tribe meet

to be treated in the same manner as a State under the CAA?

C. What is a CAA Implementation Plan?

D. What is a Tribal Implementation Plan?

11. Evaluation of the GRIC's Implementation

Authorities

A. How did the GRIC demonstrate

eligibility to be treated in the same

manner as a State under the CAA?

B. How would the GRIC administer and

enforce the TIP?

IV. Evaluation of the GRIC's Tribal

Implementation Plan

A. What air quality goals does the GRIC

TIP address?

B. What procedural requirements did the

GRIC satisfy?

C. What authorities and requirements does

the GRIC TIP contain?

1. General Provisions

2. Permit Requirements

3. Enforcement

4. Administrative Appeals and Judicial

Review

5. Area Source Emissions Limits

6. Generally Applicable Individual Source

Requirements for Existing and New

Sources

7. Source/Category-Specific Emission

Limits for Existing and New Sources

D. What other information has the GRIC

submitted to support the TIP?

1. Emissions Inventory

2. Air Quality Monitoring Network

V. Proposed Action

VI. Statutory and Executive Order Reviews

I. Background

EPA is proposing to approve a TIP

submitted by the GRIC for approval

under section 110 of the CAA. The

proposed TIP contains general and

emergency authorities; procedures for

the preparation, adoption, and

submission of the GRIC's TIP and

broader air quality management plan

(AQMP) 1; provisions adopting the

National Ambient Air Quality Standards

(NAAQS) for sulfur dioxide, particulate

matter, nitrogen dioxide, ozone, lead

and carbon monoxide, as Tribal

standards 2; permit requirements for

new and existing minor sources of air

pollutants; procedures for civil and

criminal enforcement; requirements and

procedures for administrative appeals

and judicial review in Tribal court;

requirements for area sources of fugitive

dust and fugitive particulate matter;

general prohibitory rules for existing

and new sources; and source categoryspecific emission limits and standards

for existing and new sources. The Tribe

also submitted an inventory of emission

sources on the reservation and

information about its air quality

monitoring program to support the TIP.

The Gila River Indian Community is

an Indian tribe federally recognized by

the U.S. Secretary of the Interior (see 67

1 The TIP is one of four regulatory programs that

comprise the AQMP. The other three AQMP

programs implement the New Source Performance

Standards (NSPS) under CAA 111; the National

Emission Standards for Hazardous Air Pollutants

(NESHAP) under CAA 112; and title V operating

permit requirements. Although the procedural

requirements in the GRIC's AQMP apply to the

adoption, submission, and revision of all AQMP

programs, in this action we are proposing to

approve these procedures as part of and only for the

purposes of the TIP.

2 To date, GRIC has adopted only those Federal

NAAQS that were effective as of October 2006. This

does not alter the applicability, within the GRIC

reservation, of any CAA requirement based on a

new or revised NAAQS that the Tribe has not yet

adopted under Tribal law. Nonetheless, to avoid

confusion, we encourage the GRIC to adopt all new

or revised Federal NAAQS as Tribal standards and

to submit them to EPA as revisions to the TIP.

FR 46328, July 12, 2002). The GRIC

Department of Environmental Quality

(DEQ) was established by executive

order in August 1995 by then-Governor

Mary Thomas. Beginning in 1998, the

GRIC DEQ, with assistance from EPA,

began developing a draft AQMP with

the goal of submitting it to EPA for

approval under the CAA. On December

6, 2006, the GRIC also submitted a

request that we find the Tribe eligible

for TAS pursuant to section 301(d) of

the CAA and Title 40, part 49 of the

Code of Federal Regulations (CFR), for

the purpose of implementing the

AQMP. Specifically, the GRIC DEQ

requested a TAS eligibility

determination for purposes of

implementing four CAA programs that

together comprise the AQMP: (1) A

Tribal Implementation Plan (TIP) that

includes source-specific rules and a

minor source permit program under

CAA section 110; (2) the Federal New

Source Performance Standards (NSPS)

under CAA section 111; (3) the Federal

National Emissions Standard for

Hazardous Air Pollutants (NESHAP)

under CAA section 112; and (4) an

operating permit program under title V

of the Act. In addition, the Tribe

requested TAS for receiving

notifications as an "affected State" under

title V of the CAA and submitting

recommendations to EPA on air quality

designations under CAA section 107(d).

On October 21, 2009, EPA determined

that the Tribe is eligible for TAS for

these purposes.

3

The GRIC formally submitted the

AQMP to EPA Region 9 on February 21,

2007, and submitted supplemental

materials on July 11, 2007, June 22,

2009, and July 17, 2010. Having found

that the GRIC is eligible for TAS to

implement these regulatory programs,

EPA is now proposing to approve the

Tribe's TIP. We intend to act on the

Tribe's title V operating permit program

and request for delegation of the NSPS

and NESHAPs in separate notice and

comment processes, as appropriate.

Approval and implementation of the

GRIC TIP will be an important step in

ensuring that basic air quality protection

is in place to protect public health and

welfare in the GRIC reservation,

consistent with the CAA's overarching

goals of protecting air resources

throughout the nation, including air

resources in Indian Country.

3 EPA has also previously approved the Tribe's

applications for TAS eligibility for tribal water

pollution control grants under Section 106 of the

Clean Water Act (CWA) (March 1990), air pollution

control grants under Section 105 of the CAA (March

1999), and non point source management grants

under Section 319 of the CWA (February 2004).

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II. CAA Requirements and the Role of

Indian Tribes

A. What authorities may Indian Tribes

obtain under the CAA?

The CAA is implemented in two basic

ways. 4 In the first approach, EPA is

primarily responsible both for setting

national standards or interpreting the

requirements of the Act and for

implementing the Federal requirements

that are established. In general, this

approach is reserved for programs

requiring a high degree of uniformity in

their implementation-e.g., regulation

of substances that deplete stratospheric

ozone under Title VI of the Act. See 59

FR 43956 at 43957.

The principal method of CAA

implementation, however, is through a

cooperative partnership between the

states and EPA. While this partnership

can take several shapes, generally EPA

issues national standards or Federal

requirements and the states assume

primary responsibility for implementing

these requirements. Prior to assuming

implementation responsibility, states

must submit their programs to EPA and

must demonstrate that their programs

meet minimum Federal CAA

requirements. Among these

requirements is the mandate that states

demonstrate that they have adequate

legal authority and resources to

implement the programs. If a State

program is approved or if the authority

to implement a Federal program is

delegated to a State, EPA maintains an

ongoing oversight role to ensure that the

program is adequately enforced and

implemented and to provide technical

and policy assistance. See 59 FR 43956

at 43957.

As part of the 1990 Amendments to

the CAA, Congress enacted Section

301(d) authorizing EPA to "treat Indian

tribes as States" under the Act so that

Tribes may develop and implement

CAA programs in the same manner as

States within Tribal reservations or in

other areas subject to Tribal jurisdiction.

Section 301(d)(2) of the Act authorizes

EPA to promulgate regulations

specifying those provisions of the CAA

"for which it is appropriate to treat

Indian tribes as States." 42 U.S.C.

7601(d)(2).

On February 12, 1998, EPA issued a

final rule specifying those provisions of

the CAA for which it is appropriate to

treat eligible Indian tribes in the same

manner as states, known as the Tribal

4 For a brief description of some of the many

programs contained in the CAA, see "Addendum A

to Preamble-General Description of Clean Air Act

Programs," 59 FR 43956 at 43976 (August 25, 1994)

(Indian Tribes: Air Quality Planning and

Management, proposed rule).

Authority Rule (TAR). 63 FR 7254,

codified at 40 CFR part 49. As a general

matter, EPA determined in the TAR that

it is not appropriate to treat tribes in the

same manner as states for purposes of

specific program submittal and

implementation deadlines. This is

because, among other reasons

(discussed at 59 FR at 43964-65),

although the CAA contains many

provisions mandating the submittal of

State plans, programs, or other

requirements by certain dates, the Act

does not similarly require tribes to

develop and seek approval of CAA

programs. Thus, tribes are generally not

subject to CAA provisions that specify

a deadline by which something must be

accomplished, e.g., provisions

mandating the submission of State

implementation plans under section

110(a) and Part D of the Act. 40 CFR

49.4. As a result, tribes are also not

subject to the section 179 sanctions and

certain other Federal oversight

mechanisms in the Act that are triggered

when states fail to meet these deadlines

or when EPA disapproves a program

submittal. 40 CFR 49.4(c), (d).

A tribe that meets the eligibility

criteria for TAS may, however, choose

to implement a CAA program. A tribe

may also submit reasonably severable

portions of a CAA program, if it can

demonstrate that its proposed air

program is not integrally related to

program elements not included in the

plan submittal and is consistent with

applicable statutory and regulatory

requirements. 40 CFR 49.7(c); see also

CAA 110(o). This modular approach is

intended to give tribes the flexibility to

address their most pressing air quality

issues and acknowledges that tribes

often have limited resources with which

to address their environmental

concerns. Consistent with the

exceptions listed in 40 CFR 49.4, once

submitted, a tribe's proposed air

program will be evaluated in accordance

with applicable statutory and regulatory

criteria in a manner similar to the way

EPA would review a similar State

submittal. 40 CFR 49.9(h). EPA expects

tribes to fully implement and enforce

their approved programs and, as with

states, EPA retains its authority to

impose sanctions for failure to

implement an approved air program.

See 59 FR 43956 at 43965 (Aug. 25,

1994) (explaining EPA's rationale for

treating Tribes in the same fashion as

States for purposes of mandatory

sanctions for nonimplementation of an

approved part D program (CAA

179(a)(4)) and with respect to EPA's

discretionary authority to impose

sanctions (CAA 110(m)); 40 CFR 49.4.

B. What criteria must an Indian Tribe

meet to be treated in the same manner

as a State under the CAA?

Under section 301(d) of the CAA and

the TAR, EPA may treat a tribe in the

same manner as a State for purposes of

administering certain CAA programs or

grants if the tribe demonstrates that: (1)

It is a federally-recognized tribe; (2) it

has a governing body carrying out

substantial governmental duties and

powers; (3) the functions to be exercised

by the tribe pertain to the management

and protection of air resources within

the exterior boundaries of the

reservation (or other areas under the

tribe's jurisdiction); and (4) it can

reasonably be expected to be capable of

carrying out the functions for which it

seeks approval, consistent with the CAA

and applicable regulations.

To receive EPA approval of a CAA

program, a tribe must, as a threshold

matter, obtain a determination from EPA

that it meets these eligibility

requirements. 40 CFR 49.6. As

discussed in section III below, we

previously determined that the GRIC

meets these eligibility requirements for

purposes of implementing the TIP and

other CAA authorities.

C. What is a CAA Implementation Plan?

Under the CAA, EPA has established

NAAQS, or minimum air quality

standards, for six pollutants found in

ambient air: carbon monoxide (CO), lead

(Pb), nitrogen dioxide (NO 2), ozone (03),

particulate matter (PM), and sulfur

dioxide (SO 2). The NAAQS are based on

comprehensive studies of available

ambient air monitoring data, health

effects data, and studies of effects on

materials. The primary standards are

designed to protect the public from

health risks, including children, people

with asthma, and the elderly. The

secondary standards are designed to

prevent unacceptable effects on the

public welfare, e.g., damage to crops

and vegetation, buildings and property,

and ecosystems.

An implementation plan is a set of

programs and regulations developed by

the appropriate regulatory agency to

protect public health and welfare

through the attainment and

maintenance of the NAAQS. The

regulatory agency is generally free to

choose whatever mix of requirements it

determines best suits its specific

circumstances so long as the

implementation plan meets applicable

requirements and ensures attainment

and maintenance of the NAAQS. These

plans can be developed by states,

eligible Indian tribes, or the EPA,

depending on which entity has

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jurisdiction in a particular area.

Implementation plans developed by

states are called State Implementation

Plans or SIPs. Similarly, plans

developed by eligible Indian tribes are

called Tribal Implementation Plans or

TIPs. Occasionally, EPA will develop an

implementation plan for a specific area.

This is referred to as a Federal

Implementation Plan or FIP. Following

final approval and publication in the

Federal Register, the provisions of a

SIP, TIP or FIP become federally

enforceable.

The contents of a typical

implementation plan may fall into three

broad categories: (1) Agency-adopted

control measures which consist of

prohibitory rules or source-specific

requirements (e.g., orders, consent

decrees or permits); (2) agencysubmitted "non-regulatory" components

(e.g., attainment plans, rate of progress

plans, emission inventories,

transportation control measures, statutes

demonstrating legal authority,

monitoring programs); and (3)

additional requirements promulgated by

the EPA (in the absence of a

commensurate agency provision) to

satisfy a mandatory Clean Air Act

section 110 or part D requirement. The

implementation plan is a living

document which can be revised by the

State or eligible Indian Tribe as

necessary to address air pollution

problems. Changes to the plan, such as

new and/or revised regulations, that

EPA approves following notice and

comment rulemaking become part of the

federally-enforceable implementation

plan.

A geographic area that meets or does

better than a primary standard is called

an attainment area. An area for which

there is insufficient information to

determine whether the area meets the

NAAQS is called an unclassifiable area.

An area that does not meet a standard,

or that contributes pollution to a nearby

area that does not meet a standard, is

called a nonattainment area. An area

may be designated attainment or

unclassifiable/attainment for some

pollutants and nonattainment for others.

The CAA requires that the NAAQS be

met nationwide and requires states to

adopt SIPs that provide for the

implementation, maintenance, and

enforcement of the NAAQS. CAA

110(a). For attainment and

unclassifiable areas, the CAA requires

states to submit the basic program

elements specified in section 110(a)(2)

necessary to implement the NAAQSe.g., enforceable emission limitations

and other control measures (CAA

110(a)(2)(A)), a program to provide for

the enforcement of these measures (CAA

110(a)(2)(C)), and necessary assurances

that the State will have adequate

personnel, funding, and authority under

State law to carry out the plan (CAA

110(a)(2)(E) (i)). For nonattainment areas,

in addition to these basic program

elements, the CAA requires states to

adopt SIPs containing specific program

elements in part D, Title I of the Act, in

accordance with specified deadlines

based on the severity of the air pollution

problem.

D. What is a Tribal Implementation

Plan?

Section 301(d) of the CAA and the

TAR authorize eligible Indian tribes to

implement various CAA programs,

including TIPs under section 110 of the

Act. TIPs (1) are optional; (2) may be

modular; (3) have flexible submission

schedules; and (4) allow for joint tribal

and EPA management. 5

1. Optional

The CAA requires each State to adopt

a SIP. Unlike states, Indian tribes are not

required to adopt a CAA

implementation plan. In the TAR, we

recognized that not all Indian tribes will

have the need or the desire to

implement an air pollution control

program, and we specifically

determined that it was not appropriate

to treat tribes in the same manner as

states for purposes of plan submittal and

implementation deadlines. See 40 CFR

49.4(a) (exempting Tribes from the plan

submittal deadlines for nonattainment

areas set out in sections 172(a)(2), 182,

187, 189, and 191 of the Act); see also

59 FR 43956, 43964-67 (Aug. 25, 1994)

(proposed TAR preamble) and 63 FR

7254, 7264-66 (Feb. 12, 1998) (final

TAR preamble).

2. Modular

The TAR allows eligible Indian tribes

to submit partial elements of a CAA

program, so that they can target their

most important air quality issues

without the corresponding burden of

developing entire CAA programs. Under

this modular approach, TIP elements

that the eligible Indian tribe submits

must be "reasonably severable" from

program elements that the tribe chooses

not to submit. "Reasonably severable"

elements are those that are not integrally

related to program elements not

included in the TIP. See 40 CFR 49.7(c);

see also 59 FR 43956, 43961-69 (Aug.

25, 1994) (proposed TAR preamble) and

63 FR 7254 (Feb. 12, 1998) (final TAR

5 For guidance on development of TIPs, see

"Developing a Tribal Implementation Plan," Office

of Air Quality Planning and Standards, U.S. EPA,

October 2002 (EPA 452/R-02-010), http://

www. epa.govlairltriballtip2002/index.html.

preamble). So, for example, a tribe may

choose to submit a TIP that addresses

only specific types of sources and/or

specific air pollutants.

3. Have Flexible Submission Schedules

Neither the CAA nor the TAR requires

Indian tribes to develop TIPs. Therefore,

unlike states, Indian tribes are not

required to meet the plan submittal or

implementation deadlines specified in

the CAA. Indian tribes may establish

their own schedules and priorities for

developing TIP elements (e.g.,

regulations to limit emissions of a

specific air pollutant) and submitting

them to the EPA. Indian tribes will not

face sanctions for failing to submit or for

submitting incomplete or deficient TIPs.

See 40 CFR 49.4; 59 FR 43956, 43964-

65 (Aug. 25, 1994) (proposed TAR

preamble) and 63 FR 7254 at 7265 (Feb.

12, 1998) (final TAR preamble).

4. Allow for Joint Tribal and EPA

Management

Consistent with the CAA and the

TAR, a tribe may revise a TIP and take

on new programs based on changes in

tribal need or capacity. In any case, EPA

retains its general authority to directly

implement CAA requirements in Indian

Country as necessary or appropriate to

protect tribal air resources. See CAA

301(a), 301(d)(4); 40 CFR 49.11; 59 FR

43956, 43958-61 (Aug. 25, 1994)

(proposed TAR preamble explaining

EPA's CAA authorities in Indian

Country); 63 FR 7254, 7262-64 (Feb. 12,

1998) (final TAR preamble). Thus,

where a tribe chooses not to adopt a

CAA program or adopts only a partial

program, EPA may exercise its

discretionary authority to issue such

regulations as are necessary or

appropriate to protect tribal air

resources. This type of joint

management allows tribes to focus on

their specific air quality needs while

ensuring adequate protection of tribal

air resources.

The CAA also authorizes EPA to

enforce the regulations in an approved

TIP. CAA 113. We work cooperatively

with the Indian Tribe in exercising this

enforcement authority.

III. Evaluation of the GRIC's

Implementation Authorities

A. How did the GRIC demonstrate

eligibility to be treated in the same

manner as a State under the CAA?

By letter dated November 17, 2006

and submitted to EPA on December 6,

2006, the GRIC requested an EPA

determination that the Tribe is eligible

for TAS for the purposes of

implementing four CAA programs: (1) A

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TIP that includes source-specific rules

and a minor source permit program

under CAA section 110; (2) the Federal

NSPSs under CAA section 111; (3) the

Federal NESHAPs under CAA section

112; and (3) an operating permit

program under title V of the Act. In

addition, the Tribe requested TAS for

receiving notifications as an "affected

State" under title V of the CAA and for

submitting recommendations to EPA on

air quality designations under CAA

section 107(d). The GRIC submitted

supplemental materials for its TAS

eligibility request on October 6, 2008

and March 18, 2009. EPA notified

appropriate governmental entities and

the public of the Tribe's application and

addressed all comments received as part

of that process.

On October 21, 2009, based on the

information submitted by the Tribe, and

after consideration of all comments

received in response to notice of the

Tribe's request, EPA determined that the

GRIC met the eligibility requirements of

CAA section 301(d) and 40 CFR 49.6 for

these purposes under the CAA. See

Memorandum, "Gila River Indian

Community: Eligibility Determination

under 40 CFR part 49 for Clean Air Act

Sections 107, 110, 111, 112, 114, and

Title V," signed by Laura Yoshii, Acting

Regional Administrator, EPA Region 9,

October 21, 2009 (TAS Decision

Document). Specifically, EPA

determined that the GRIC had

demonstrated: (1) That it is an Indian

tribe recognized by the Secretary of the

Interior (see 67 FR 46328 (July 12,

2002)); (2) that it has a governing body

carrying out substantial governmental

duties and functions; (3) that the

functions to be exercised by the Tribe

pertain to the management and

protection of air resources within the

exterior boundaries of the Tribe's

reservation;6 and (4) that the Tribe is

reasonably expected to be capable of

carrying out the functions to be

exercised in a manner consistent with

the terms and purposes of the CAA and

all applicable regulations.

EPA notified the Tribe of this TAS

eligibility determination by letter the

same day. See letter dated October 21,

2009, from Laura Yoshii, Acting

Regional Administrator, EPA Region 9,

to the Honorable William Rhodes,

Governor, Gila River Indian

Community.

6 The TAS Decision Document describes the

geographic area within which the Tribe is approved

for TAS.

B. How would the GRIC administer and

enforce the TIP?

The proposed TIP would be

implemented primarily by the GRIC

DEQ Air Quality Program staff and the

Tribe's attorneys. Established in 1995,

the GRIC DEQ has grown from an initial

staff of six to a staff of 26 in 2009. The

Air Quality Program staff has degrees

ranging from Associate's to Master's

degrees. They have received extensive

training in TIP development, permit

writing and regulatory enforcement. 7

Since 1995, the staff has also

demonstrated considerable capabilities

in the programmatic, administrative,

and legal functions of implementing an

air quality program. On January 9, 2003,

the GRIC became the first Tribal

Government that EPA recognized as

capable of issuing permits with

enforceable limitations on a source's

potential to emit, following case-by-case

EPA review. 8

As discussed above in section III.A,

EPA evaluated the Tribe's

implementation and enforcement

capabilities as part of our determination

that the GRIC is eligible for TAS to

implement this TIP and other CAA

programs. Specifically, as part of that

determination, EPA found that the GRIC

is reasonably expected to be capable of

implementing and enforcing the TIP and

other AQMP programs in a manner

consistent with the terms and purposes

of the CAA and all applicable

regulations. See TAS Decision

Document. Also as part of that

determination, EPA entered into a

Memorandum of Agreement with the

GRIC to facilitate intergovernmental

cooperation in addressing criminal

violations of the AQMP. See

Memorandum of Agreement Between

the Gila River Indian Community and

the U.S. Environmental Protection

Agency Regarding Criminal

Enforcement of the Tribal

Implementation Plan Pursuant to the

Clean Air Act and 40 CFR part 49, dated

October 21, 2009 (Criminal Enforcement

MOA).

The GRIC DEQ staff is responsible for

inspecting facilities within the exterior

boundary of the reservation and

responding to any complaints received.

The GRIC air quality staff, and if

needed, the GRIC tribal police, will

assume enforcement activities for the

7 See letter dated November 17, 2006, from

William R. Rhodes, Governor, Gila River Indian

Community, to Wayne Nastri, Regional

Administrator, U.S. EPA Region 9 (transmitting

TAS application), at page 10.

8 See letter dated January 9, 2003, from Jack

Broadbent, Director, Air Division, U.S. EPA Region

9, to Dr. Patricia Mariella, Director, Gila River

Indian Community DEQ.

purposes of compliance with air

regulations. Other GRIC agencies will

also provide compliance and

enforcement assistance, as appropriate,

in accordance with applicable Tribal

and Federal law. See GRIC AQMP, Part

1, Section 2.2.

Part III of the AQMP contains

enforcement ordinances that establish

requirements and procedures for civil

and criminal enforcement. These

ordinances authorize the GRIC DEQ to

issue administrative compliance orders,

assess civil penalties, and take other

enforcement actions against persons

who violate requirements of the TIP or

other requirements of the AQMP within

the exterior boundaries of the

reservation. These enforcement

provisions are discussed further in

Section IV.C.3 of this notice.

IV. Evaluation of the GRIC's Tribal

Implementation Plan

A. What air quality goals does the GRIC

TIP address?

The Gila River Indian Reservation is

located in south-central Arizona,

adjacent to the Phoenix Metropolitan

Area, in Pinal and Maricopa Counties.

The entire reservation is designated

attainment or unclassifiable/attainment

for the following NAAQS pollutants:

Lead (Pb), carbon monoxide (CO),

nitrogen dioxide (NO2), sulfur dioxide

(SO2), particulate matter of 2.5 microns

or less (PM2.

5), and ground-level ozone.

40 CFR 81.303. EPA had initially

included the Maricopa County portion

of the GRIC reservation in the Maricopa

County CO nonattainment area, but in

2005 we corrected the nonattainment

boundary to exclude the GRIC

reservation and redesignated the

reservation to "nonclassifiable/

attainment" for the CO NAAQS. See 69

FR 60328 (October 8, 2004)(proposed

rule) and 70 FR 11553 (March 9,

2005)(final rule), as corrected by 70 FR

52926 (September 6, 2005). Similarly,

EPA had initially included the Maricopa

County portion of the GRIC reservation

in the Phoenix metropolitan 1-hour

ozone nonattainment area, but in 2005

we corrected the nonattainment

boundary to exclude the GRIC

reservation and redesignated the

reservation to "unclassifiable/

attainment" for the 1-hour ozone

NAAQS. See 70 FR 13425 (March 21,

2005)(proposed rule) and 70 FR 68339

(November 10, 2005)(final rule).9

9

As explained in the final rule, the effect of this

action was to attach the Maricopa County portion

of the GRIC reservation to the pre-existing

"unclassifiable/attainment" area for the 1-hour

ozone NAAQS that consists of all of those portions

of the State of Arizona (including the rest of the

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More recently, on October 14, 2009,

we notified the Governor of Arizona and

affected Arizona tribes, including the

GRIC, that EPA was reviewing the initial

recommendation to designate Pinal

County as attainment/unclassifiable for

the 2006 annual PM 2.

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 PM 2.5 standard and for the 1987

24-hour standard for particulate matter

of 10 microns or less (PM1o).10 We have

asked the Tribes in Pinal County,

including the GRIC, to provide

recommendations concerning their

Indian country lands.

The only criteria pollutant for which

a portion of the reservation is currently

designated nonattainment is PM 1o. The

northern portion of the GRIC reservation

lies within the Maricopa County

(Phoenix Planning Area) serious PM 10

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 PMo 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 PM 10.40 CFR 81.303.

While State and local regulatory

agencies in the Maricopa County PM 10

nonattainment area have developed SIPs

to comply with the nonattainment area

requirements of subpart 4 of Part D, title

I of the CAA, these SIP requirements do

not apply within the exterior boundaries

of the GRIC reservation. Rather, the

CAA, as amended in 1990, broadly

authorizes EPA to protect Tribal air

resources by directly implementing the

Act's requirements in Indian Country.

CAA § 301(d)(4); 40 CFR 49.11; 59 FR

43956, 43958-61 (Aug. 25, 1994)

(proposed TAR preamble explaining

EPA's CAA authorities in Indian

Country); 63 FR 7254, 7262-64 (Feb. 12,

1998) (final TAR). As discussed above,

section 301(d) of the CAA also

authorizes EPA to approve Indian Tribes

Reservation that lies in Pinal County) that are not

designated as a "nonattainment" area or as an

"attainment" area subject to a maintenance plan. 70

FR 68339 at 68344.

10 EPA's air quality designations for the 2006 24-

hoar Fine Particle (PM2.5) standard were published

in the Federal Register on November 13, 2009. 74

FR 58688.

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 PM1 o

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 PMo nonattainment

area plan elements not included in the

submittal, consistent with 40 CFR

49.7(c). We therefore turn to our

evaluation of the GRIC DEQ's plan

submittal in accordance with the

applicable statutory and regulatory

requirements.

B. What procedural requirements did

the GRIC satisfy?

Section 110(a) of the CAA requires

that implementation plans be adopted

by the State after reasonable notice and

public hearing. EPA has promulgated

specific procedural requirements for SIP

revisions in 40 CFR part 51, subpart F.

These requirements include publication

of notices, by prominent advertisement

in the relevant geographic area, of a

public hearing on the proposed

revisions, a public comment period of at

least 30 days, and an opportunity for a

public hearing.

The GRIC DEQ developed the AQMP

from 1998 to 2006 in consultation with

EPA Region 9. Following an extensive

public comment process, on December

13, 2006, the GRIC Tribal Council

adopted the AQMP under Tribal Law."

The GRIC formally submitted the

AQMP, which includes the TIP, to EPA

Region 9 on February 21, 2007. On July

11, 2007, the GRIC submitted public

process documentation for the AQMP,

including documentation of a duly

noticed public hearing held by the GRIC

DEQ on July 20, 2006, in Chandler,

Arizona. We find that the GRIC's

process for adopting and submitting the

TIP satisfied the procedural

requirements for adoption and

submission of implementation plans

under CAA section 110(a) and EPA's

implementing regulations.

11 See Gila River Indian Community Ordinance

GR-06-06 (December 13, 2006). Although the

Ordinance indicates that the Tribal Council adopted

the AQMP on December 6, 2006, we generally refer

to the adoption date as December 13, 2006,

consistent with the date of the GRIC Governor's

signature.

C. What authorities and requirements

does the GRIC TIP contain?

The AQMP is comprised of four

regulatory programs: (1) A Tribal

implementation plan (TIP) for the

implementation, maintenance, and

enforcement of the NAAQS under CAA

110; (2) regulations adopting the Federal

New Source Performance Standards

(NSPS) under CAA 111 as Tribal

standards; (3) regulations adopting the

Federal National Emission Standard for

Hazardous Air Pollutants (NESHAP)

under CAA 112 as Tribal standards; and

(4) a Tribal operating permits program

under title V of the Act.

In this action, we propose to act only

on the TIP. We intend to issue separate

Federal Register notices proposing

action on the Tribe's requests for

delegation of authority to implement

and enforce the Federal NSPSs and to

implement and enforce the Federal

NESHAPs, consistent with applicable

CAA and regulatory requirements. The

GRIC DEQ is currently revising its title

V permit regulations and has requested

that EPA not act at this time on the title

V provisions it submitted with the

AQMP. See Letter dated June 22, 2009,

from Margaret Cook, Executive Director,

GRIC DEQ, to Laura Yoshii, Acting

Regional Administrator, EPA Region 9,

"Re: Technical Corrections to the GRIC

Air Quality Management Plan."

We discuss below each element of the

TIP and our evaluation of it in light of

applicable CAA requirements.12

1. General Provisions

Part I of the AQMP, "General

Provisions," contains definitions,

general authorities of the Director,

procedures for the preparation,

adoption, and submittal of plan

elements and revisions, and provisions

adopting Federal NAAQS as Tribal

standards. 13

Specifically, Section 1.0 of Part I

contains definitions that generally apply

to all AQMP programs, including the

TIP.

Section 2.0 establishes the Director's

general authorities, which include the

responsibilities for: (1) Consulting with

and making recommendations to the

GRIC Governor and Community Council

on matters concerning implementation

of the AQMP; (2) encouraging

industrial, commercial, residential and

general development of the Community

in a manner that protects and preserves

12 Throughout this discussion, the term "Director"

means the Director of the GRIC DEQ. For ease of

reference, we refer to each section of the TIP as a

section of the AQMP, consistent with the structure

of the Tribe's submittal.

13 See footnote 2.

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air quality; and (3) notifying Community

members and other members of the

public on a regular basis of incidences

and areas in which the Tribe's adopted

NAAQS were exceeded during the

preceding calendar year, including the

health risks associated with such

exceedances. GRIC AQMP Part I,

Section 2.1. These provisions satisfy the

requirement in CAA section 110(a)(2)(J)

to meet applicable requirements of CAA

section 121 (relating to consultation)

and section 127 (relating to public

notification), and also satisfy the

requirement in CAA section

110(a)(2)(M) to provide for consultation

and participation by local political

subdivisions affected by the plan.

In addition, if the Director determines

that air pollution in any area constitutes

or may constitute an emergency risk 14

to the health of those in the area or if

the ambient air quality standards

adopted by the GRIC are likely to be

exceeded, the Director must notify the

GRIC Governor. The Governor may then

restrain or enjoin any person from

engaging in emissions-generating

activity that presents an imminent and

substantial endangerment to the public

health or welfare or to the environment.

The Governor may also, to the extent of

the Governor's authority, declare that an

emergency exists and prohibit, restrict,

or condition any of the following: motor

vehicle traffic; retail, commercial,

manufacturing, governmental, industrial

or similar activity; operation of

incinerators and other facilities that

emit the air pollutant of concern; the

burning or other consumption of fuels;

the burning of any materials; any and all

other activity which contributes or may

contribute to the emergency. Orders of

the Governor issued under this

provision are enforceable by the GRIC

DEQ and the GRIC tribal police. GRIC

AQMP Part I, Section 2.2. These

provisions meet the requirement in CAA

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

authority comparable to the emergency

powers in section 303 of the Act.

Section 3.0 establishes procedural

requirements for preparation, adoption,

submission to EPA, and revision of the

AQMP. These requirements include

publication of notices, by prominent

advertisement in the Gila River Indian

News and by other appropriate means,

a public comment period of at least 30

days, and a public hearing following

reasonable notice of such hearing. 15

14 The Director's determination must be based on

scientific data in coordination with the GRIC Office

of Emergency Management (OEM) and consistent

with OEM protocol. See AQMP Part I, Section

2.2.A.

15 Consistent with 40 CFR 51.102(c), however, the

AQMP does not require a public hearing for any

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

SO 2, PM10 , PM 2., CO, ozone (8-hour),

NO 2, and Pb as Tribal air quality

standards. These standards and

measuring methods are consistent with

the Federal NAAQS that were effective

in October 2006, shortly before the GRIC

adopted the AQMP. See 40 CFR 50.4-

50.8, 50.10-50.12 (2006). We are

proposing to approve these air quality

standards and measurement methods

into the TIP.

We note that several revisions to the

Federal NAAQS have become effective

since October 2006,16 and that all

Federal NAAQS apply within the GRIC

reservation whether or not the Tribe

adopts these standards into the TIP

under Tribal law. See footnote 2, above.

The GRIC's TIP provides for progress

toward the implementation,

enforcement, and maintenance of the

Federal NAAQS by regulating emissions

of NAAQS pollutants within the

reservation and establishing enforceable

procedures to determine whether

construction or modification of minor

sources will interfere with attainment or

maintenance of the NAAQS, as effective

in October 2006. Accordingly, we are

proposing to approve the TIP, including

those Federal NAAQS that the Tribe has

adopted under Tribal law, as a program

containing severable elements of a plan

under CAA section 110(a) that provides

for the implementation, enforcement,

and maintenance of the NAAQS. We

note, however, that EPA retains its

discretionary authority under CAA

sections 301(a) and 301(d)(4) to directly

implement CAA programs in the GRIC

reservation and to promulgate such

Federal implementation plan provisions

as are necessary or appropriate to

protect air quality in the GRIC

reservation.

change to an increment of progress to an approved

individual compliance schedule unless the change

is likely to cause the source to be unable to comply

with the final compliance date in the schedule.

AQMP Part I, Section 3.2.D(3).

16 See 71 FR 61224, October 17, 2006 (revised

standards for particulate matter, effective December

18, 2006); 73 FR 67051, November 12, 2008 (revised

standards for lead, effective January 12, 2009); 75

FR 2938, January 19, 2010 (proposed rule to revise

8-hour ozone standards); 75 FR 6474, February 9,

2010 (revised standards for NO2 effective April 12,

2010); 75 FR 35520, June 22, 2010 (revised

standards for SO2, effective August 23, 2010).

2. Permit Requirements

Part II of the AQMP contains permit

requirements for new and existing

sources of air pollution. Specifically, it

contains a title V operating permit

program for "title V sources," and a

preconstruction review and operating

permit program to regulate "non-title V

sources" (or "minor sources").

a. Title V Permit Requirements

By letter dated June 22, 2009, the

GRIC DEQ requested that EPA not act on

the title V operating permit regulations

submitted as part of the AQMP on

February 22, 2007. EPA understands

that the GRIC DEQ intends to submit a

revised title V operating permit program

at a later date, after adopting revisions

to address requirements of the CAA and

implementing regulations.17 As such,

we are not taking action today on those

elements of Part II of the AQMP that

pertain to title V permit program

requirements.' 8 At this time, EPA

remains the title V permitting authority

for all title V sources within the exterior

boundaries of the GRIC reservation.

b. Non-Title V Permit Requirements

Section 110(a)(2)(C) of the Act

requires that each implementation plan

include a program to regulate the

construction and modification of

stationary sources, including a permit

program as required by parts C and D of

title I of the Act, as necessary to assure

that the NAAQS are achieved. Parts C

and D, which pertain to prevention of

significant deterioration (PSD) and

nonattainment, respectively, address the

major NSR programs for major

stationary sources, and the permitting

program for "nonmajor" (or "minor")

stationary sources is addressed by

section 110(a)(2)(C) of the Act. We

commonly refer to the latter program as

the "minor NSR" program. A minor

stationary source is a source whose

"potential to emit" is lower than the

major source applicability threshold for

a particular pollutant as defined in the

applicable major NSR program.

The requirements that minor source

programs must meet to be approved are

outlined in 40 CFR 51.160 through

51.164. These regulations require states

to develop "legally enforceable

17 EPA has, however, determined that the Tribe is

eligible for TAS to implement a title V permit

program (as noted above in Section ILA).

Accordingly, the Tribe's submittal at a later date of a revised title V permit program need not be

accompanied by another TAS eligibility request.

18 These include all regulatory definitions

associated with title V requirements in Section 1.0;

title V program applicability provisions in Section

2.0; the title V permitting regulations in Section 3.0;

and requirements for title V permit revisions in

Section 5.0.

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procedures" to enable the State "to

determine whether the construction or

modification of a [source] will result

in-(1) a violation of applicable portions

of the control strategy; or (2)

interference with attainment or

maintenance of a national standard

* * *." 40 CFR 51.160(a). The program

must identify the types and sizes of

sources subject to review, and the

State's plan must discuss the basis for

determining which facilities will be

subject to review. 40 CFR 51.160(e).

Every State implementation plan

currently contains a minor NSR

program. Minor sources located on the

GRIC reservation, however, have not to

date been subject to preconstruction

review under the CAA. EPA has

proposed a Federal NSR permit program

that would apply to, among others,

minor sources in Indian Country where

there is no EPA-approved permit

program under the CAA, but this

rulemaking has not yet been finalized.

71 FR 48696 (August 21, 2006)

(proposed rule to implement NSR in

Indian Country).

Although the Act does not require

tribes to develop and seek EPA approval

of NSR permit programs, where a tribe

decides to do so, EPA evaluates the

program in accordance with applicable

statutory and regulatory criteria in a

manner similar to the way EPA would

review a similar State submittal. 40 CFR

49.9(h); 59 FR 43956 at 43965 (Aug. 25,

1994) (proposed TAR preamble); 63 FR

7254 (Feb. 12, 1998) (final TAR

preamble). For the reasons discussed

below, we propose to approve the

GRIC's minor NSR program in

accordance with the TAR and the

criteria for approval of minor NSR

programs at 40 CFR 51.160 through

51.164. It is important to note, however,

that we are proposing to approve this as

a base program suitable to the GRIC's

reservation. Other Tribal NSR programs

may differ significantly and should each

be evaluated on a case-by-case basis in

light of air quality needs in the relevant

area.

The GRIC DEQ's minor NSR permit

program, entitled "Non-Title V Permit

Requirements," applies to stationary

sources that are neither "major" under

the Act 19 nor subject to the

requirements of CAA title V.20 AQMP

Part II, Section 2.1. For all major

sources, major modifications, and

sources otherwise subject to title V on

the reservation, EPA will continue to

implement applicable CAA permitting

requirements, including the

requirements of parts C and D of title I

of the Act, as appropriate.

Specifically, the GRIC's minor NSR

permit program applies to any person

who proposes to construct, operate, or

modify any source that emits or has the

potential to emit "regulated air

pollutants," unless the source or

modification is either (1) a major source

or major modification and/or subject to

title V of the Act, or (2) exempt from

review as "de minimis" under the

AQMP. See Part II Sections 2.1.B, 2.1.C,

5.1.A. "Regulated air pollutant" is

defined as any criteria pollutant, any air

contaminant subject to an NSPS under

CAA 111, any hazardous air pollutant

(HAP) listed under CAA 112(b) or "ultrahazardous" air pollutant listed

under CAA 112(r)(3), or any class I or

II substance listed in CAA section 602.

A stationary source that is not a "major stationary source" under the

CAA and that does not operate in

conjunction with another facility or

source that is subject to permit

requirements may be exempt under

Section 2.1.C from permit requirements

as a "de minimis facility," if the source's

"actual emissions" 21 of air pollutants

are equal to or less than all of the

following levels:

TABLE 1-"DE MINIMIS" THRESHOLDS IN THE GRIC's MINOR NSR PERMIT PROGRAM 2 2

Any single regulated air pollutant except a hazardous air pollutant ............................................................. 1 ton per year (tpy).

Any single hazardous air pollutant (HAP), or ....................................................................................1000 lbs per year (single HAP), or

A ny com bination of H A Ps ..................................................................................................1 tpy (com bination of H A P s).

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

facilities" and, therefore, exempt from

permit requirements. These categorical

"de minimis facilities" include

agricultural equipment used in normal

farm operations, except for equipment

that is subject to requirements of title V

or 40 CFR parts 60 or 61; airconditioning equipment and general

combustion equipment with aggregated

input capacity of less than 2 MMBtu/

hour or, if oil-fired, maximum rated

input capacity or aggregated input

capacity of less than 500,000 Btu/hour;

stationary storage tanks used for storing

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 aft pollution in nonattainment

areas. For hazardous air pollutants (HAP), CAA

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

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).

DEQ, to Laura Yoshii, Acting Regional

Administrator, EPA Region 9, "Re:

Technical Corrections to the GRIC Air

Quality Management Plan," enclosure

entitled "Minor New Source Review

Demonstration."

The GRIC DEQ's minor NSR permit

program requires each applicant for a "non-title V" permit to submit, among

other things, a certified application

containing information about the

facility, the industrial process, the

nature and amount of emissions, and

any information needed to determine

applicable technology-based emission

limitations. In some cases, the GRIC

DEQ may also require the source to

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 AOMP Part I1 Section 2.1.C(1).

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model its impact on ambient air quality

in accordance with 40 CFR part 51,

Appendix W.

Importantly, any new minor source

that has a "potential to emit" (PTE) at or

above specified levels, or a modification

at an existing minor source that

increases a source's PTE by specified

levels, will be subject to a technologybased emission limitation that reflects

the Best Reasonable and Demonstrated

Technology (BRDT), as determined by

the GRIC DEQ on a case-by-case basis.

BRDT is defined as "an emission

limitation or design equipment, work

practice or operational standard" that is

"based on the maximum degree of

reduction of each criteria pollutant or

hazardous air pollutant determined on a

case-by-case basis" or by rule, "taking

into account energy, environmental, and

economic impact, feasibility of

achieving the emission limitation for a

particular source, and the existing air

quality in the area to be impacted by the

source." Part II Section 1.0. The PTE

levels (or, for modifications, PTE

increases) at which BRDT applies are

identified in Table 2.

TABLE 2-PTE THRESHOLDS AT WHICH BRDT APPLIES IN THE GRIC's MINOR NSR PERMIT PROGRAM 2 3

For a new source, any single criteria pollutant ............................................................................................................................

For a new source, any single HAP ..............................................................................................................................................

For a new source, any com bination of HAPs ..............................................................................................................................

For a new source, any single or any com bination of ultrahazardous air pollutants ....................................................................

For a modification, an increase of any single criteria pollutant (that does not make the source a major source) .....................

For a modification, any single new HAP or increase in a HAP already em itted by the source .................................................

For a modification, an increase in any com bination of HAPs already emitted by the source ....................................................

75 tpy.

3 tpy.

5 tpy.

300 lbs per year.

25 tpy.

3 tpy.

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 unitspecific requirements that assure

maintenance of the Tribe's adopted

ambient air quality standards,

protection of public health, compliance

with all applicable control standards,

such as BRDT, NSPSs, NESHAPs, and

other requirements of the CAA 24; (2)

monitoring, testing, reporting, and

recordkeeping requirements adequate to

evaluate the source's compliance; (3) a

requirement that any revision of an

emission limitation, monitoring, testing,

reporting, or recordkeeping requirement

be made in accordance with the permit

revision procedures for non-title V

sources at Part II, Section 5.0 of the

AQMP; (4) a requirement to allow the

GRIC DEQ or EPA representatives to

enter and inspect the premises at

reasonable times; (5) a requirement to

submit an annual compliance

certification, and (6) a requirement to

submit an annual emissions report. Part

II, Section 4.4.A. A non-title V permit

authorizes both construction and

operation of the minor source or

modification.

The permit program establishes

administrative procedures for the GRIC

DEQ action on permit applications,

including public notice and a comment

period of at least 30 days on all

proposed new permits, permit renewals,

and significant permit revisions. 25

AQMP Part II, section 4.6.A. The

program also provides for public

23 Part 1I, 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

hearings on such permit applications

upon written request. The issuance or

denial of a non-title V permit may be

appealed administratively to the GRIC

DEQ and, thereafter, judicially to the

GRIC Tribal Court. See discussion below

at section IV.C.4, "Administrative

Appeals and Judicial Review." Finally,

the permit program contains stack

height procedures consistent with the

requirements of 40 CFR 51.164;

continuous source emissions monitoring

requirements generally consistent with

the provisions of 40 CFR part 51,

appendix P; requirements for the

treatment of confidential information;

and permit fee provisions. AQMP Part

II, sections 6.0, 9.0, 10.0, and 11.0. Our

Technical Support Document (TSD)

contains more information about these

provisions and suggestions for

improvement that do not affect our

proposed action.

We propose to approve these

procedures as legally enforceable

procedures that establish a base program

suitable to the GRIC's reservation and

that satisfy the minimum requirements

of CAA section 110(a)(2)(C) and 40 CFR

51.160 through 51.164.

3. Enforcement

Part III of the AQMP contains

requirements and procedures for civil

and criminal enforcement against

persons who violate AQMP provisions.

Section 1.0 of Part III authorizes the

Director to take several kinds of civil

enforcement actions against persons

who violate AQMP requirements. First,

from title V permitting requirements. In those

limited cases where a NESHAP area source is

exempt from title V, such source may be required

to obtain a GRIC non-title V permit that identifies

the applicable NESHAP, among other requirements.

25A significant permit revision is, among other

things, any change to a non-title V permit that will

if the Director has reasonable cause to

believe that a person has violated or is

violating a provision of the AQMP or

any requirement of a permit issued

under Part II, the Director may issue an

administrative compliance order (ACO)

requiring compliance as expeditiously

as practicable but no later than 1 year

after the date the ACO was issued. An

ACO becomes final and enforceable in

the Community Court, unless within 30

days after receipt of the ACO, the

alleged violator requests a hearing

before an administrative law judge (ALJ)

in accordance with the provisions of

Part IV of the AQMP. If a hearing is

requested, the ACO does not become

final until the ALJ has issued a

recommended decision and the Director

has issued a final decision on the

appeal.

Second, the Director may assess an

administrative civil penalty of up to

$5,000 per day per violation, and/or the

GRIC Community Court may issue a

civil judicial penalty of up to $10,000

per day per violation, to any person

found to be in violation of an ordinance,

an ACO, or any provision of a permit

issued under Part II. Each day of a

failure to perform any act or duty for

which a civil penalty may be assessed

constitutes a separate offense. The

Director is required to consider

specified factors in assessing civil

penalties, such as the size of the

business, the economic impact of the

penalty on the business, and the

violator's good faith efforts to comply.

result in an increase in the source's potential to

emit a regulated pollutant of more than either 25

tons per year or certain "significant" levels in

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

II, Section 5.5.a(3).

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Third, at the request of the GRIC

Director, the GRIC General Counsel may

file an action for a temporary restraining

order, a preliminary injunction, a

permanent injunction, or any other

relief provided for by law if the Director

has reasonable cause to believe that: (1)

A person has violated or is violating any

provision of an ordinance, an order

requiring compliance with an

ordinance, or any provision of a permit;

(2) a person has violated or is violating

an effective compliance order; or (3) a

person is creating an imminent and

substantial endangerment to public

health or the environment.

Finally, the Director may deny a

request for a permit if the applicant is

incapable of meeting the requirements

of an ordinance, and the Director may

revoke a permit issued by DEQ based on

a finding of noncompliance with

material conditions in the permit or

when continued operation would

violate an ordinance or create a

consistent pattern of imminent and

substantial endangerment to public

health or the environment. Any such

denial or revocation of a permit by the

Director may be appealed to an ALJ and

thereafter to the Community Court, in

accordance with the appeal provisions

in Part IV of the AQMP. These

provisions provide for enforcement of

the measures contained in the TIP, as

required by CAA section 110(a)(2)(C),

and provide necessary assurances that

the Tribe will have adequate authority

under Tribal law to carry out the TIP,

as required by CAA section

110(a) (2) (E)(i).

Section 2.0 of Part III establishes

procedures for criminal enforcement

and referral of certain criminal matters

to EPA. Specifically, Section 2.1

requires the GRIC's General Counsel to

consult with the appropriate Federal

agencies and, as appropriate, refer for

Federal prosecution any person who has

willfully or knowingly violated an

AQMP provision or a permit issued

under Part II. The procedures for the

GRIC DEQ's referral of potential

criminal violations to the appropriate

Federal agencies, for possible criminal

prosecution under Section 113(c) of the

CAA, are outlined in the Criminal

Enforcement MOA discussed above in

Section III.B of this notice.

Section 3.0 of Part III contains citizen

suit provisions. By letter dated July 17,

2010, the GRIC DEQ requested that EPA

not act on these provisions as part of the

TIP. The GRIC clarified that these

provisions, which remain effective

under Tribal law, are not intended to

alter the Tribe's liability to civil suit

based on established principles of Tribal

sovereign immunity and the provisions

of the CAA, nor are they intended to

limit any existing Federal jurisdiction

under the CAA. See letter dated July 17,

2010 from Margaret Cook, Executive

Director, GRIC DEQ, to Deborah Jordan,

Air Division Director, EPA Region 9,

"Re: Gila River Indian Community

Tribal Implementation Plan." Nothing in

our proposed action alters the effect of

the citizen suit provisions of CAA

section 304 as they may apply to the

Tribe consistent with established

principles of Tribal sovereign immunity.

4. Administrative Appeals and Judicial

Review

Part IV of the AQMP contains

requirements and procedures for

administrative appeals, final

administrative decisions, and judicial

review of final administrative decisions.

Section 1.0 states that the provisions

of Part IV apply to "all appealable

agency actions," which are: (1) The

issuance or denial of an air quality

permit; (2) a significant revision to an

air quality permit; (3) failure of the GRIC

DEQ to act on an air quality permit in

a timely manner or as required by the

provisions of Part II; (4) revocation of an

air quality permit; (5) the issuance of a

compliance order; or (6) the imposition,

by order, of an administrative civil

penalty. Section 2.0 contains relevant

definitions.

Section 3.0 establishes procedures for

administrative appeals. Specifically, any

party whose legal rights, duties, or

privileges were determined by an "appealable agency action" may file a

notice of appeal with the DEQ within 30

days after receiving notice of the action

from the DEQ. Any other party who will

be adversely affected by the issuance or

denial of a permit and who exercised

any right to comment on the action may

also file such a notice of appeal,

provided that the grounds for appeal are

limited to issues raised in that party's

comment. Within 5 business days of

DEQ's receipt of a notice of appeal

containing the required information, the

Director must provide specific

information regarding the notice to the

GRIC Governor's office, after which the

Governor must assign an ALJ to the

matter and schedule a hearing, in

accordance with specified timeframes.

Section 3.0 also authorizes the ALJ to

schedule a pre-hearing conference in

accordance with specified criteria, and

establishes procedures and evidentiary

requirements for the hearing.

Section 4.0 of Part IV establishes

requirements and procedures for the

Director's final administrative decision

following the hearing and the ALJ's

issuance of a recommended decision.

The Director may accept, reject or

modify the ALJ's recommended

decision, but prior to rejecting or

modifying the recommendation, the

Director must consult with and obtain

the written consent of the GRIC

Governor or his/her designee. The

Director's decision becomes final

unless, within 35 days, a party appeals

the final decision judicially.

Section 5.0 establishes requirements

and procedures for judicial review of

final administrative decisions,

jurisdiction over which is vested in the

GRIC Community Court. Except in cases

where trial de novo is appropriate or

justice demands the admission of new

or additional evidence, judicial review

is limited to the administrative record

before the court. Section 5.0 specifies

the GRIC Community Court's authorities

and the limits on those authorities. For

example, the court may stay the

Director's final decision in whole or in

part for substantial good cause, pending

final disposition of the case, and may

ultimately modify, affirm, or reverse the

decision. The court may not, however,

reverse a finding of fact by the Director

unless it is "clearly erroneous" and may

not reverse the Director's final

administrative decision unless it has "no

substantial evidentiary basis in the

record or is erroneous as a matter of

law." Part IV, Section 5.7. Decisions of

the GRIC Community Court may be

further appealed to the GRIC Court of

Appeals.

These provisions establish adequate

procedures for review of the Director's

decisions under the TIP. Our finding

applies only to this TIP under section

110 of the Act and does not apply to

other CAA programs submitted by the

Tribe, each of which we will evaluate

separately in accordance with

applicable CAA and regulatory

requirements.

5. Area Source Emission Limits

Part V of the AQMP contains two

rules that regulate air pollution from

specific types of area sources. The

purpose of these rules is to reduce

emissions of particulate matter from

open burning and fugitive dustgenerating activities.

Section 1.0 (Open Burning) limits the

types of materials that can be openly

burned within the GRIC reservation and

requires permits for open burning of

specified materials. Three types of fires

are allowed only if the GRIC DEQ issues

an open burn permit: (1) Residential

fires to dispose of yard waste, except for

materials that generate toxic fumes; (2)

commercial fires to dispose of vegetative

waste resulting from land clearing,

commercial development or other large

scale permitted fires; and (3)

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agricultural fires for weed control or

abatement, clearing fields or the

disposal of other naturally grown

products, except for materials that

generate toxic fumes. The rule requires:

(1) that any person seeking an open

burn permit submit to the DEQ an

application with specific information,

(2) identifies types of conditions that the

DEQ may include in a permit, and (3)

contains specific criteria for the DEQ's

grant or denial of an open burn permit.

The rule categorically prohibits open

burning of certain materials, such as

garbage resulting from the processing,

storage, service or consumption of food;

asphalt shingles; tar paper; plastic and

rubber products; petroleum products;

transformer oils; hazardous material

containers; tires; construction and

demolition debris; and asbestos

containing materials. Certain other types

of open fires are exempted from the

rule-e.g., fires used only for the

domestic cooking of food, fires used for

cultural, religious or ceremonial

purposes, and fires used only for

providing warmth.

Section 2.0 (General Requirements for

Fugitive Dust-Producing Activities)

regulates fugitive dust and fugitive

particulate matter emissions from

earthmoving, land clearing, and

demolition activities, construction sites,

unpaved parking lots at industrial

plants, and other activities that generate

dust. The rule prohibits all owners/

operators of sources of fugitive dust or

fugitive particulate matter emissions, as

well as owners/operators of certain

unpaved parking lots and haul/access

roads, from allowing visible emissions

to exceed 20 percent opacity at any

time.

Under this rule, two types of permit

applications must be accompanied by a

dust control plan. First, any person

required to obtain an earthmoving

permit under the rule must submit a

dust control plan and obtain the GRIC

DEQ's approval before commencing any

dust generating operation. An

earthmoving permit is required for any

source owner/operator seeking to

conduct certain earthmoving operations,

except for normal farming practices.

Second, any person who is required to

obtain a title V permit, a non-title V

permit, or a general permit under Part

II of the AQMP must submit a dust

control plan and obtain the GRIC DEQ's

approval before commencing dust

generating operations. A proposed dust

control plan must contain specific

information, including an illustration of

the entire project site boundaries and

acres to be disturbed, the expected

duration of the project, and control

measures or combinations thereof to be

applied to all actual and potential

fugitive dust-generating operations.

In addition to the requirements for

dust control plans, the rule establishes

specific control measures and work

practices for specified dust-generating

operations, which apply to the specified

activities independent of any approved

dust control plans. The rule also

contains detailed test methods and

recordkeeping requirements to ensure

that compliance with the required

control measures, work practice

standards, and any approved dust

control plans can be verified. Certain

specified activities and individuals are

exempted from the rule-i.e., owners

and occupants of single family

residences, owners or managers of

residential buildings with four or less

units, normal farming practices, and

public roads owned or maintained by

any Federal, tribal, or local government.

We have determined that Part V of the

AQMP contains specific, well-defined

requirements that meet EPA's

enforceability requirements under CAA

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

above, the rules contain test methods

and recordkeeping requirements

adequate to determine compliance;

clearly identify the activities that are

subject and those that are exempt from

rule requirements; and do not allow for

variations from the rules other than

those specified in limited exemptions.

EPA is proposing to approve these rules

as elements of a base TIP suitable to the

GRIC's reservation and regulatory

capacities. Our TSD contains more

information about each of these rules

and suggestions for rule improvement

that do not affect our proposed action.

6. Generally Applicable Individual

Source Requirements for Existing and

New Sources

Part VI of the AQMP contains three

rules that regulate visible emissions,

volatile organic compound (VOC)

emissions, and degreasing and solvent

metal cleaning operations. The purpose

of these rules is to reduce visible

emissions and emissions of particulate

matter and gaseous organic compounds.

Section 1.0 (Visible Emissions)

generally prohibits the discharge of any

air contaminant into the ambient air

from any single source of emissions,

other than uncombined water, in excess

of 20 percent opacity. Compliance is

determined by observations of visible

emissions conducted in accordance

with EPA Test Method 9 (40 CFR part

60, appendix A), except that for

purposes of measuring visible emissions

from intermittent sources, at least

twelve (12) rather than twenty-four (24)

consecutive readings are required at 15-

second intervals for the averaging time.

Part VI, Section 1.0, subsection 4.0. The

rule provides limited exceptions for

certain activities or equipment, such as

the charging or back-charging of an

electric arc furnace for which

construction commenced prior to

February 2, 1963, and for equipment or

processes used to train individuals in

opacity observations.

Section 2.0 (VOC Usage, Storage and

Handling) generally limits the discharge

of VOC emissions from operations

involving the usage, storage, transfer or

disposal of VOC-containing materials.

For example, the rule prohibits the

discharge of more than 15 pounds of

VOCs a day from any device in an

operation involving heat, and prohibits

the discharge of more than 40 pounds of

VOCs a day from any device in an

operation involving the use of noncomplying solvents.26 If these VOC

limits are exceeded, the rule requires

application of specific control methods

that achieve at least 85 percent overall

control efficiency or compliance with

certain operating standards. Owners or

operators who choose to use an

emissions control system (ECS) to

reduce VOC emissions must provide to

the GRIC DEQ for approval an Operation

and Maintenance Plan (O&M Plan),

together with the initial application for

an operating permit.

The rule establishes detailed control

techniques and operational standards

for the handling, storage and disposal of

VOC-containing materials, monitoring

and inspection requirements,

recordkeeping and reporting

requirements, and specific test methods.

Certain specified facilities and activities

are exempt from the rule-e.g., organic

solvent manufacturing facilities and the

overland transport of organic solvents

and VOC-containing materials; the

spraying or other employment of

insecticides, pesticides, or herbicides;

and metal processing operations such as

foundries, smelters, melting or roasting

of metal, ore, or dross. Part VI, Section

2.0, subsection 1.2.

Section 3.0 (Degreasing and Solvent

Metal Cleaning) establishes equipment

specifications and operating standards

for degreasing and solvent metal

cleaning operations. The rule applies to

all new and existing solvent cleaning

operations that use VOCs, including

cold cleaning, open-top vapor

degreasing, and conveyorized

degreasing operations.

26 The rule defines "non-complying solvent" as a

solvent that exceeds the applicable percentage

composition limit for any of four specific chemical

groupings. Section 2.0, subsection 2.0 (definitions).

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Specifically, Section 3.0 establishes

generally applicable solvent handling

requirements, operating and signage

requirements, and equipment

specifications for solvent cleaning

operations. The rule also contains

equipment specifications and operating

standards specific to owners and

operators of cold cleaning degreasers,

open-top vapor degreasers, and

conveyorized degreasers. Any owner or

operator of a solvent cleaning business

in operation on or after November 1,

2004 must submit an O&M Plan for an

ECS to the GRIC DEQ. An owner/

operator of an open-top vapor degreaser

or conveyorized degreaser may, in lieu

of meeting certain equipment

specifications, meet the requirements of

the rule through the use of an ECS.

The rule establishes specific

monitoring, reporting, and

recordkeeping requirements and test

methods for determining compliance.

Additionally, upon startup of a new

solvent cleaner, replacement of an

existing solvent cleaner with a different

model, change of a control device used

on a solvent cleaner, or upon request by

the GRIC DEQ, the owner of any solvent

cleaner must perform tests and submit

a compliance certification to the GRIC

DEQ. Certain specified activities are

exempt from the rule-e.g., solvent

cleaning operations specifically

regulated by another rule in Part VI;

laundering and housekeeping supplies

and activities; and cleaning solutions

containing 20 percent or less VOC by

either weight or volume.

We have determined that Part VI of

the AQMP contains specific, welldefined requirements that meet EPA's

enforceability requirements under CAA

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

above, the rules contain test methods

and monitoring, recordkeeping, and

reporting requirements adequate to

determine compliance; clearly identify

the activities that are subject and those

that are exempt from rule requirements;

and do not allow for variations from the

rules other than those specified in

limited exemptions. EPA is proposing to

approve these rules as elements of a

base TIP suitable to the GRIC's

reservation and regulatory capacities.

Our TSD contains more information

about each of these rules and

suggestions for rule improvement that

do not affect our proposed action.

7. Source/Category-Specific Emission

Limits for Existing and New Sources

Part VII of the AQMP contains three

rules that regulate secondary aluminum

production facilities, aerospace

manufacturing and rework operations,

and nonmetallic mineral mining and

processing operations. The purpose of

these rules is to reduce visible

emissions and emissions of VOCs and

particulate matter from these operations.

Section 1.0 (Secondary Aluminum

Production) applies to all new, existing

and modified secondary aluminium

production facilities. The requirements

of Section 1.0 are in addition to the

requirements of the Federal NESHAP for

Secondary Aluminum Production at 40

CFR part 63, subpart RRR, which are

incorporated by reference into the

rule.27

Specifically, Section 1.0 prohibits any

person from causing, allowing or

permitting the discharge into the

atmosphere of any air contaminant,

other than uncombined water, in excess

of 20 percent opacity from any emission

source at a secondary aluminium

production facility. The rule also

requires that the owner/operator of any

source subject to the rule propose a VOC

baseline emission rate (in tpy) as part of

its initial permit application to the GRIC

DEQ, and to demonstrate annually by

February 15 that total VOC emissions in

the preceding calendar year were

reduced by at least three percent of the

VOC baseline emission rate. This

demonstration is required for five

consecutive years after issuance of the

source's initial permit, for a total VOC

reduction of at least 15 percent from the

VOC baseline emission rate.

Additionally, the rule requires any

owner/operator using an ECS to reduce

emissions to submit an O&M plan for

approval to the GRIC DEQ. It also

requires any person engaged in

incinerating, adsorbing, or otherwise

processing organic materials to properly

install, maintain, calibrate, and operate

monitoring devices to determine

whether air pollution control equipment

is functioning properly. Finally, the rule

establishes recordkeeping requirements

and test methods for determining

compliance.

Section 2.0 (Aerospace Manufacturing

and Rework Operations) applies to any

aerospace manufacturing or rework

facility whose plantwide PTE exceeds

10 pounds of VOCs per day. The rule

establishes VOC content limits for

primers, topcoats, chemical milling

maskants, and specialty coatings. In lieu

of meeting the applicable coating limits

in the rule, an owner/operator of a

27 Section 1.0 incorporates by reference 40 CFR

part 63, subpart RRR, as effective July 1, 2006. Part

VII, Section 1.0, subsection 1.0. Subpart RRR

contains emission limits for dioxins, furans and

other hazardous air pollutants that may be formed

during the smelting of aluminum scrap. Subpart

RRR also contains testing, monitoring,

recordkeeping, reporting, and labelling

requirements to ensure compliance with the limits

and standards.

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 (PM10) emissions from sand and gravel

facilities. Specifically, the rule applies

to any commercial and/or industrial

nonmetallic mineral mining or rock

product plant, concrete batch plant, hot

mix asphalt plant, or vermiculite and/or

perlite processing plant.

First, the rule establishes several

general prohibitions, including a

prohibition on the sale, offer for sale,

use, or application of the following

materials at facilities covered by the

rule: (1) Rapid cure cutback asphalt, (2)

any cutback asphalt material, road oils,

or tar that contains more than 0.5

percent by volume VOCs that evaporate

at 500 degrees Fahrenheit or less, or (3)

any emulsified asphalt or emulsified tar

containing more than 3.0 percent by

volume VOCs that evaporate at 500

degrees Fahrenheit or less.

Second, the rule establishes specific

limitations on visible emissions and

emissions of PM-10 from nonmetallic

mineral processing plants, concrete

batch plants, hot mix asphalt plants,

and vermiculate and perlite processing

facilities. Any person subject to the rule

must install and operate a wet dust

suppression system or other control

method approved by the GRIC DEQ to

minimize fugitive dust emissions from

any material handling system,

conveyance system transfer point,

screening operation or crusher without

a capture and collection system, and

nonmetallic mineral loading/unloading

operation, unless the materials have

sufficient moisture content to prevent

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visible emissions in excess of the limits

in the rule.

Third, any owner/operator using an

ECS to reduce emissions must submit an

O&M Plan for approval to the GRIC

DEQ, together with the initial

application for an operating permit. The

O&M Plan must contain specific

conditions and procedures to ensure

proper operation of the ECS, and the

owner/operator must fully comply with

each submitted O&M Plan, unless

notified otherwise in writing by the

GRIC DEQ.

Finally, the rule establishes detailed

monitoring, reporting and

recordkeeping requirements, as well as

specific methods for determining

compliance with the PM-10 emission

limitations and opacity limitations in

the rule.

We have determined that Part VII of

the AQMP contains specific, welldefined requirements that meet EPA's

enforceability requirements under CAA

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

above, the rules contain test methods

and monitoring, recordkeeping, and

reporting requirements adequate to

determine compliance; clearly identify

the activities that are subject and those

that are exempt from rule requirements;

and do not allow for variations from the

rules other than those specified in the

limited exemptions. EPA is proposing to

approve these rules as elements of a

base TIP suitable to the GRIC's

reservation and regulatory capacities.

Our TSD contains more information

about each of these rules and

suggestions for rule improvement that

do not affect our proposed action.

D. What other information has the GRIC

submitted to support the TIP?

1. Emissions Inventory

An emissions inventory is a

quantitative list of the amounts and

types of pollutants that are entering the

air from the pollution sources in a given

jurisdiction. The inventory may be

comprehensive, looking at all

pollutants, or focused on only selected

pollutants of concern. The fundamental

elements in an emissions inventory are

the characteristics and locations of the

air emissions sources, and the amounts

and types of pollutants emitted.

Periodic inventories are used to track

changes in emissions over time,

TABLE 3-SUMMARY OF EMISSIONS (BY POLLUTANT) FROM AIR POLLUTANT

RESERVATION, 2007

estimate the effectiveness of emission

reduction strategies, and track the

progress of air quality.28

The GRIC DEQ has chosen an annual

emission inventory as its approach to

identifying the pollutants emitted and

the pollution sources in its jurisdiction.

The most recent emissions inventory

that the GRIC DEQ submitted to EPA

uses a baseline year of 2007 and

provides estimates of the VOC, nitrogen

oxides (NOx), carbon monoxide (CO),

sulfur oxides (SOx) and PM10 emissions

from point sources, area sources, and

mobile sources within the GRIC

reservation. See Letter dated June 22,

2009, from Margaret Cook, Executive

Director, GRIC DEQ, to Laura Yoshii,

Acting Regional Administrator, EPA

Region 9, "Re: Technical Corrections to

the GRIC Air Quality Management

Plan," enclosure entitled "2007

Emissions Inventory Update for the Gila

River Indian Community." We find that

the method used by the GRIC DEQ to

produce the emissions inventory is

acceptable, and that the inventory is

comprehensive, accurate, and current.

Table 3 provides a summary of the GRIC

emissions inventory.

EMISSION SOURCES ON THE GRIC

[Tons/year] a

Pollutant-Source PM-10 CO NOx VOC SOx

P o in t ............................................................................................................................. 1 0 4 8 1 6 1 1 7 5 1 4 2 3 1

M o b ile ................................................................................................................3 8 6 10 ,5 8 8 2 0 5 5 9 2 9 3 7

A re a ..................................................................................................................

7 5 9 6 3 5 2 5 6 0

T o ta l ...................................................................................................................... 2 1 9 3 10 ,8 1 2 2 2 8 2 1 1 2 7 6 8

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

An air quality monitoring network

consists of one or more sites where

instruments are located to measure the

concentrations of pollutants in the air at

regular intervals. Meteorological

stations often are part of an air quality

monitoring network. Data collected by

the monitoring network can be used to

identify changes in air quality and to

determine whether the area meets the

NAAQS for the criteria pollutants.

An air quality monitoring network

should be designed to meet at least one

28 See "Developing a Tribal Implementation Plan,"

Office of Air Quality Planning and Standards, US

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

EPA, October 2002 (EPA 452/R-02-010), http://

monitoring plan that explains how the

siting and operation of each monitor in

the network meets the quality assurance

requirements of 40 CFR part 58, among

other things. 40 CFR 58.10. Although

Indian Tribes are generally not required

to monitor ambient air, Tribes may

choose to do so and, in some cases, may

be required by EPA to institute quality

assurance programs that comply with 40

CFR part 58 appendix A and to insure

that the monitoring data they collect is

representative of their respective

airsheds. 71 FR 61236 at 61242 (October

17, 2006) (final rule: revisions to

ambient air monitoring regulations).

The GRIC submitted its first annual

monitoring network plan pursuant to

the requirements of 40 CFR 58.10 on

www.epa.govlairltriballtip2002/index.html, at

Chapter 3.

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December 19, 2007.29 See Gila River

Indian Community Department of

Environmental Quality, Air Quality

Program, 2006 Tribal Ambient Air

Monitoring Network Review (2006

Annual Network Plan). The 2006

Annual Network Plan describes the

Tribe's ozone and PM10 monitoring

networks and how each monitor in

these networks meets the Tribe's

monitoring objectives consistent with

the quality assurance requirements of 40

CFR part 58. EPA reviewed and

approved the GRIC's 2006 Annual

Network Plan on May 9, 2008. See letter

dated May 9, 2008, from Sean Hogan,

Air Quality Analysis Office, US EPA

Region 9, to Leroy Williams, Air Quality

Program, GRIC DEQ.

The GRIC's ozone monitoring network

is comprised of two State and Local Air

Monitoring Station (SLAMS) monitors

in the reservation. See 2006 Annual

Network Plan at 7. One of these

monitors is located at the GRIC DEQ

building in Sacaton, Arizona, about 40

miles southeast of Phoenix. The other

SLAMS monitor in the ozone

monitoring network is at St. Johns-Gila

Crossing North Middle School. Both

monitors are regional/rural scale

monitors designed to monitor

population exposure and are long-term

trends sites that operate on a seasonal

schedule, from April through October.

The areas surrounding both monitors

are a mixture of residential areas and

businesses. Id. at 7-9.

The GRIC's PM10 monitoring network

consists of one SLAMS monitoring site

located at the Casa Blanca-Va Ki

Elementary School. See 2006 Annual

Network Plan at 9. This monitor is

designed to measure neighborhood and

regional-scale air pollutant

concentrations and operates on a one-inthree-day sampling schedule. The area

surrounding the monitor is a mixture of

residential areas, businesses, and

agricultural operations. The GRIC also

operates several PM1o Special Purpose

Monitor (SPM) stations throughout the

reservation and anticipates adding three

continuous PM10 SLAMS monitors to its

PM10 monitoring network, at the Casa

Blanca, St. Johns, and Sacaton sites. Id.

at 4, 9-11.

The air quality data collected by the

GRIC DEQ are used for a variety of

purposes including: determining

compliance with the NAAQS,

determining the location of maximum

29 On September 12, 2006, the GRIC submitted a

Quality Assurance Project Plan (QAPP) for its

ambient air monitoring program. EPA approved the

QAPP for collection of environmental data on April

13, 2007. See letter dated April 13, 2007, from

Eugenia McNaughton and Sean Hogan, US EPA

Region 9, to Leroy Williams, GRIC DEQ.

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 PM 2.

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 PM 2.

5

monitors based on the low

concentrations of recorded PM 2.

5 data

and a determination that PM 2.5

monitoring in the reservation is not

required by EPA regulations. See letter

dated September 21, 2004, from Robert

S. Pallarino, EPA Region 9, to Leroy

Williams, GRIC DEQ.

The air quality monitoring network is

not part of the TIP but supports the

GRIC's ongoing evaluations of air

pollution within the reservation and

efforts to further develop its regulatory

programs to address the Tribe's air

quality needs.

V. Proposed Action

Under CAA sections 110(o), 110(k)(3)

and 301(d), EPA is proposing to fully

approve the TIP submitted by the GRIC

DEQ on February 21, 2007, as

supplemented on July 11, 2007, June 22,

2009, and July 17, 2010. The TIP

includes general and emergency

authorities, ambient air quality

standards, permitting requirements for

minor source of air pollution,

enforcement authorities, procedures for

administrative appeals and judicial

review in Tribal court, requirements for

area sources of fugitive dust and fugitive

particulate matter, general prohibitory

rules, and source category-specific

emission limitations and standards.

These provisions establish a base TIP

that is suitable for the GRIC's

reservation and regulatory capacities

and that meets all applicable minimum

requirements of the CAA and EPA

regulations.

We are proposing to act only on those

portions of the GRIC AQMP that

constitute a TIP containing severable

elements of an implementation plan

under section 110(a) of the CAA, as

discussed in this notice. We are not

proposing today to act on those

elements of the GRIC AQMP that

address requirements of CAA title V or

any other program under the Act. We

intend to take separate action on other

CAA programs submitted by the GRIC

DEQ, as appropriate.

VI. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735 (October 4, 1993)), this proposed

action is not a "significant regulatory

action" and therefore is not subject to

review by the Office of Management and

Budget. For this reason, this action is

also not subject to Executive Order

13211, "Actions Concerning Regulations

That Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355 (May

22, 2001)). This proposed action merely

proposes to approve laws of an eligible

Indian tribe as meeting Federal

requirements and imposes no additional

requirements beyond those imposed by

Tribal law. Accordingly, the

Administrator certifies that this

proposed rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601,

et seq.). Because this rule proposes to

approve pre-existing requirements

under Tribal law and does not impose

any additional enforceable duty beyond

that required by Tribal law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104-4).

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." EPA has concluded that

this proposed rule will have tribal

implications in that it will have

substantial direct effects on the GRIC.

However, it will neither impose

substantial direct compliance costs on

tribal governments, nor preempt tribal

law. EPA is proposing to approve the

GRIC's TIP at the request of the Tribe.

Tribal law will not be preempted as the

GRIC incorporated the TIP into Tribal

Law on December 13, 2006. The Tribe

has applied for, and fully supports, the

proposed approval of the TIP. If it is

finally approved, the TIP will become

federally enforceable.

EPA worked and consulted with

officials of the GRIC DEQ early in the

process of developing this proposed

regulation to permit them to have

meaningful and timely input into its

development. In order to administer an

approved TIP, tribes must be

determined eligible (40 CFR part 49) for

TAS for the purpose of administering a

TIP. During the TAS eligibility process,

the Tribe and EPA worked together to

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ensure that the appropriate information

was submitted to EPA. The GRIC and

EPA also worked together throughout

the process of development and Tribal

adoption of the TIP. The Tribe and EPA

also entered into a criminal enforcement

MOA.

This action also does not have

Federalism implications because it does

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255

(August 10, 1999)). This action merely

proposes to approve a Tribal rule

implementing a TIP covering areas

within the exterior boundaries of the

GRIC reservation, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This proposed rule does

not provide EPA with the discretionary

authority to address, as appropriate,

disproportionate human health or

environmental effects, using practicable

and legally permissible methods, under

Executive Order 12898, "Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations" (59 FR 7629,

February 16, 1994). This proposed rule

also is not subject to Executive Order

13045 "Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885 (April 23, 1997)),

because it is not economically

significant.

The requirements of section 12(d) of

the National Technology Transfer and

Advancement Act (NTTAA) of 1995 (15

U.S.C. 272) do not apply to this

proposed rule. In reviewing TIP

submissions, the EPA's role is to

approve an eligible tribe's submission,

provided that it meets the criteria of the

Clean Air Act. In this context, in the

absence of a prior existing requirement

for the Tribe to use voluntary consensus

standards (VCS), the EPA has no

authority to disapprove a TIP

submission for failure to use VCS. It

would thus be inconsistent with

applicable law for the EPA, when it

reviews a TIP submission, to use VCS in

place of a TIP submission that otherwise

satisfies the provisions of the Clean Air

Act. Thus, the requirements of section

12(d) of the NTTAA do not apply. This

proposed rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

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

List of Subjects in 40 CFR Part 49

Environmental protection, Air

pollution control, Carbon monoxide,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter,

Reporting and recordkeeping

requirements, Sulfur oxides, Volatile

organic compounds.

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

Dated: July 29, 2010.

Jeff Scott,

Acting Regional Administrator, EPA Region

IX.

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ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0009; FRL9187-7]

Approval and Promulgation of Air

Quality Implementation Plans; New

Mexico; Revisions to Emissions

Inventory Reporting Requirements,

and General Provisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing to

approve revisions to the New Mexico

State Implementation Plan (SIP). These

revisions concern two separate actions.

First, we are proposing to approve

revisions to regulations on Emissions

Inventories (Els) submitted by stationary

sources of air pollutants. Els are critical

for the efforts of State, local, and federal

agencies to attain and maintain the

National Ambient Air Quality Standards

that EPA has established for criteria

pollutants such as ozone, particulate

matter, and carbon monoxide. The

revisions add new definitions, modify

existing definitions, and require

stationary sources of air pollutants

located in New Mexico outside of

Bernalillo County to report emissions

location information, PM 2.

5 emissions,

and ammonia emissions to New Mexico

Environment Department (NMED). The

revisions also allow NMED to require

speciation of hazardous air pollutants

for emissions reporting. Second, we are

proposing to approve revisions to the

General Provisions of the NMAC (20.2.1

NMAC-Ceneral Provisions). We are

proposing to add a new definition for

Significant Figures into the New Mexico

SIP. EPA is proposing to approve these

two actions pursuant to section 110 of

the Federal Clean Air Act.

DATES: Written comments must be

received on or before September 13,

2010.

ADDRESSES: Comments may be mailed to

Mr. Guy Donaldson, Chief, Air Planning

Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue,

Suite 1200, Dallas, Texas 75202-2733.

Comments may also be submitted

electronically or through hand delivery/

courier by following the detailed

instructions in the Addresses section of

the direct final rule located in the rules

section of this Federal Register.

FOR FURTHER INFORMATION CONTACT: Mr.

Emad Shahin for Emission Inventory

inquiries, Air Planning Section (6PD-L),

Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202-2733, telephone

214-665-6717; fax number 214-665-

7263; e-mail address

shahin.emad@epa.gov, and Mr. Alan

Shar for General Provisions inquiries,

Air Planning Section (6PD-L),

telephone 214-665-6691; fax number

214-665-7263; e-mail address

shar.alan@epa.gov.

SUPPLEMENTARY INFORMATION: In the

final rules section of this Federal

Register, EPA is approving the State's

SIP submittal as a direct final rule

without prior proposal because the

Agency views this as a noncontroversial

submittal and anticipates no adverse

comments. A detailed rationale for the

approval is set forth in the direct final

rule. If no relevant adverse comments

are received in response to this action,

no further activity is contemplated. If

EPA receives adverse comments, the

direct final rule will be withdrawn and

all public comments received will be

addressed in a subsequent final rule

based on this proposed rule. EPA will

not institute a second comment period.

Any parties interested in commenting

on this action should do so at this time.

Please note that if EPA receives adverse

comment on an amendment, paragraph,

or section of this rule and if that

provision may be severed from the

remainder of the rule, EPA may adopt

as final those provisions of the rule that

are not the subject of an adverse

comment.

For additional information, see the

direct final rule, which is located in the

rules section of this Federal Register.

Dated: August 3, 2010.

Al Armendariz,

Regional Administrator, Region 6.

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