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[Federal Register Volume 76, Number 59 (Monday, March 28, 2011)]
[Rules and Regulations]
[Pages 17028-17032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7110]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2007-0296, FRL-9259-9]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a Tribal implementation plan (TIP) submitted 
by the Gila River Indian Community (GRIC or Tribe) on February 21, 
2007, as supplemented and amended on July 11, 2007, June 22, 2009, and 
July 17, 2010, and as described in our August 12, 2010 proposal. The 
TIP includes general and emergency authorities, ambient air quality 
standards, permitting requirements for minor sources of air pollution, 
enforcement authorities, procedures for administrative appeals and 
judicial review in Tribal court, requirements for area sources of 
fugitive dust and fugitive particulate matter, general prohibitory 
rules, and source category-specific emission limitations and standards. 
These provisions establish a base TIP that is suitable for the GRIC's 
reservation and regulatory capacities and that meets all applicable 
minimum requirements of the Clean Air Act (CAA or Act) and EPA 
regulations. The effect of this action is to make the approved portions 
of the GRIC TIP federally enforceable under the CAA and to further 
protect air quality within the exterior boundaries of the GRIC 
reservation.

DATES: This final rule is effective April 27, 2011. The incorporation 
by reference of certain publications listed in the rule is approved by 
the Director of the Federal Register as of April 27, 2011.

ADDRESSES: EPA has established a docket for this action under EPA-R09-
OAR-2007-0296. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While 
all documents in the docket are listed at http://www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps, multi-volume reports) 
and some may not be available in either location (e.g., confidential 
business information (CBI)). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 27, 2011. Under CAA 
section 307(d)(7)(b), only an objection to this final action that was 
raised with reasonable specificity during the public comment period can 
be raised during judicial review. This section also authorizes the 
convening of a proceeding for reconsideration in specified 
circumstances. Filing a petition requesting that the Administrator 
reconsider this final rule does not affect the finality of this action

[[Page 17029]]

for the purposes of judicial review nor does it extend the time within 
which a petition for judicial review may be filed, and shall not 
postpone the effectiveness of such rule or action. This action may not 
be challenged later in proceedings to enforce its requirements. (See 
CAA section 307(b)(2).)

I. Summary of the Proposed Action

    The GRIC reservation is located in south-central Arizona, adjacent 
to the Phoenix Metropolitan Area, in Pinal and Maricopa Counties. On 
August 12, 2010 (75 FR 48880), EPA proposed to approve a TIP submitted 
by the GRIC on February 21, 2007, as supplemented and amended on July 
11, 2007, June 22, 2009, and July 17, 2010, and as described in the 
proposal. The TIP includes general and emergency authorities, ambient 
air quality standards, permitting requirements for minor sources of air 
pollution, enforcement authorities, procedures for administrative 
appeals and judicial review in Tribal court, requirements for area 
sources of fugitive dust and fugitive particulate matter, general 
prohibitory rules, and source category-specific emission limitations 
and standards.
    The TIP is one of four regulatory programs that comprise the GRIC's 
Air Quality Management Plan (AQMP).\1\ We proposed to approve only 
those portions of the GRIC AQMP that constitute a TIP containing 
severable elements of an implementation plan under section 110 of the 
CAA, as discussed in this notice and in our August 12, 2010 proposal. 
These severable plan elements establish a base TIP that is suitable for 
the GRIC's reservation and regulatory capacities and that meets all 
applicable minimum requirements of the CAA, the Tribal Authority Rule 
in 40 CFR part 49 (TAR), and other applicable CAA regulations.
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    \1\ The other three AQMP programs implement the New Source 
Performance Standards (NSPS) under CAA 111; the National Emission 
Standards for Hazardous Air Pollutants (NESHAP) under CAA 112; and 
title V operating permit requirements. We are not acting today on 
these other elements of the GRIC AQMP.
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    For a more detailed description of the TIP, our evaluation of the 
TIP and supplemental information, and our rationale for our proposed 
action, please see the August 12, 2010 proposed rule and related 
Technical Support Document, both of which can be found in the docket 
for today's action.

II. EPA's Response to Comments

    Our August 12, 2010 proposed rule provided for a 30-day comment 
period, which ended on September 13, 2010. We received two public 
comment letters expressing only support for our proposed action. The 
two letters of support that we received can be found in the docket for 
today's action.

III. Final Action

    Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is fully 
approving the TIP submitted by the GRIC DEQ on February 21, 2007, as 
supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 
2010, and as described in our August 12, 2010 proposal (75 FR 48880). 
For the reasons set forth in this document and in the August 12, 2010 
proposed rule, we conclude that the TIP meets the applicable 
requirements of CAA section 110, EPA's implementing regulations, CAA 
section 301(d) and the TAR in 40 CFR part 49. The TIP includes the 
following severable elements of an implementation plan under section 
110 of the CAA:
     General authorities that satisfy the requirement in CAA 
section 110(a)(2)(J) to meet applicable requirements of CAA section 121 
(relating to consultation) and section 127 (relating to public 
notification), and that also satisfy the requirement in CAA section 
110(a)(2)(M) to provide for consultation and participation by local 
political subdivisions affected by the plan;
     Emergency powers that satisfy the requirement in CAA 
section 110(a)(2)(G) to provide for authority comparable to the 
emergency powers in section 303 of the Act;
     Procedural requirements for preparation, adoption, 
submission to EPA, and revision of the TIP that satisfy the applicable 
requirements of CAA section 110(a)(2) and 40 CFR part 51, subpart F;
     Air quality standards and measurement methods that are 
consistent with the National Ambient Air Quality Standards in 40 CFR 
50.4 through 50.8 and 50.10 through 50.12, as effective in October 
2006;
     Legally enforceable procedures to regulate the 
construction, modification, and operation of ``non-title V sources'' 
(``minor sources'') that establish a base program suitable to the 
GRIC's reservation and that satisfy the minimum requirements of CAA 
section 110(a)(2)(C) and 40 CFR 51.160 through 51.164;
     Requirements and procedures for enforcement consistent 
with CAA section 110(a)(2)(C) that provide necessary assurances that 
the Tribe will have adequate authority under Tribal law to carry out 
the TIP, as required by CAA section 110(a)(2)(E)(i);
     Requirements and procedures for administrative appeals, 
final administrative decisions, and judicial review of final 
administrative decisions that establish adequate procedures for review 
of the Director's decisions under the TIP and that satisfy the 
applicable requirements of CAA sections 110(a)(2)(C) and 
110(a)(2)(E)(i); and
     Area source emission limits, general prohibitory rules, 
and source category-specific emission limitations that satisfy EPA's 
enforceability requirements under CAA section 110(a)(2)(A).
    EPA is approving these provisions as elements of a base TIP under 
CAA section 110 that is suitable to the GRIC's reservation and 
regulatory capacities. We are not acting today on those elements of the 
GRIC AQMP that address requirements of CAA title V or any other program 
under the Act. We intend to take separate action on other CAA programs 
submitted by the GRIC DEQ, as appropriate.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
approves laws of an eligible Indian tribe as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by Tribal law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.). Because this rule approves pre-existing requirements 
under Tribal law and does not impose any additional enforceable duty 
beyond that required by Tribal law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' EPA has concluded that this 
rule will have tribal implications in that it will have substantial 
direct effects on the GRIC. However, it will neither impose substantial 
direct compliance costs on tribal governments, nor preempt tribal law. 
EPA is

[[Page 17030]]

approving the GRIC's TIP at the request of the Tribe. Tribal law will 
not be preempted as the GRIC has already incorporated the TIP into 
Tribal Law on December 13, 2006. The Tribe has applied for, and fully 
supports, the approval of the TIP. This approval makes the TIP 
federally enforceable.
    EPA worked and consulted with officials of the GRIC early in the 
process of developing these regulations to permit them to have 
meaningful and timely input into their development. In order to 
administer an approved TIP, tribes must be determined eligible (40 CFR 
part 49) for Treatment as State (TAS) for the purpose of administering 
a TIP. During the TAS eligibility process, the Tribe and EPA worked 
together to ensure that the appropriate information was submitted to 
EPA. GRIC and EPA also worked together throughout the process of 
development and Tribal adoption of the TIP. The Tribe and EPA also 
entered into a criminal enforcement MOA.
    This action does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action approves Tribal rules implementing a TIP over areas within 
the exterior boundaries of the Gila River Indian Community's 
reservation, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
action does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (59 FR 
7629, February 16, 1994). This action also is not subject to Executive 
Order 13045 ``Protection of Children from Environmental Health Risks 
and Safety Risks'' (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    In reviewing TIP submissions, EPA's role is to approve an eligible 
tribe's submission, provided that it meets the criteria of the Clean 
Air Act. In this context, in the absence of a prior existing 
requirement for the tribe to use voluntary consensus standards (VCS), 
EPA has no authority to disapprove a TIP submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a TIP submission, to use VCS in place of a TIP provision that 
otherwise satisfies the requirements of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Incorporation by reference, 
Indians, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: January 19, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 49 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

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

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

0
2. Subpart L of part 49 is amended by adding an undesignated center 
heading and Sec.  49.5511 to read as follows:
Implementation Plan for the Gila River Indian Community

Sec.  49.5511  Identification of plan.

    (a) Purpose and scope. This section contains the approved 
implementation plan for the Gila River Indian Community dated August 
2008. The plan consists of programs and procedures that cover general 
and emergency authorities, ambient air quality standards, permitting 
requirements for minor sources of air pollution, enforcement 
authorities, procedures for administrative appeals and judicial review 
in Tribal court, requirements for area sources of fugitive dust and 
fugitive particulate matter, general prohibitory rules, and source 
category-specific emission limitations and standards.
    (b) Incorporation by reference.
    (1) Material listed in paragraph (c) of this section was approved 
for incorporation by reference by the Director of the Federal Register 
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is 
incorporated as it exists on the date of the approval, and notice of 
any change in the material will be published in the Federal Register.
    (2) EPA Region IX certifies that the rules/regulations provided by 
EPA in the TIP compilation at the addresses in paragraph (b)(3) of this 
section are an exact duplicate of the officially promulgated tribal 
rules/regulations which have been approved as part of the Tribal 
Implementation Plan as of January 19, 2011.
    (3) Copies of the materials incorporated by reference may be 
inspected at the Region IX Office of EPA at 75 Hawthorne Street, San 
Francisco, CA 94105-3901 or call 415-947-4192; the U.S. Environmental 
Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket 
and Information Center, MC 2822T, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460 or call 202-566-1742; and the National Archives 
and Records Administration. For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (c) EPA-approved regulations.

[[Page 17031]]

                           EPA-Approved Gila River Indian Community Tribal Regulations
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                                                     Tribal effective
        Tribal citation            Title/subject           date           EPA approval date       Explanations
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Gila River Indian Community,     Definitions,       August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      General                               FEDERAL REGISTER PAGE
 Part I, General Provisions,      Authority,                            NUMBER WHERE THE
 Sections 1-3.                    Procedures for                        DOCUMENT BEGINS].
                                  Preparation,
                                  Adoption, and
                                  Submittal of the
                                  Air Quality
                                  Management
                                  Program.
Gila River Indian Community,     Adoption of        August 20, 2008..  3/28/11 [INSERT         Note: several
 Tribal Implementation Plan,      National Ambient                      FEDERAL REGISTER PAGE   revisions to the
 Part I, General Provisions,      Air Quality                           NUMBER WHERE THE        NAAQS have
 Section 4.                       Standards as                          DOCUMENT BEGINS].       occurred since
                                  Community                                                     the adoption of
                                  Standards.                                                    the TIP.
Gila River Indian Community,     Definitions,       August 20, 2008..  3/29/11 [INSERT         Title V
 Tribal Implementation Plan,      Applicability of                      FEDERAL REGISTER PAGE   regulations are
 Part II, Permit Requirements.    Permit                                NUMBER WHERE THE        not approved
                                  Requirements,                         DOCUMENT BEGINS].       into the TIP.
                                  Non-Title V
                                  Permit
                                  Requirements,
                                  Permit Revisions
                                  at a Non-Title V
                                  Source,
                                  Continuous
                                  Emissions
                                  Monitoring,
                                  Stack Height
                                  Limitation,
                                  Confidentiality
                                  of Information,
                                  Permit Fees.
Gila River Indian Community,     Civil              August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      Enforcement,                          FEDERAL REGISTER PAGE
 Part III, Enforcement            Criminal                              NUMBER WHERE THE
 Ordinances.                      Enforcement,                          DOCUMENT BEGINS].
                                  Citizen Suits.
Gila River Indian Community,     General            August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      Provisions,                           FEDERAL REGISTER PAGE
 Part IV, Administrative          Definitions,                          NUMBER WHERE THE
 Appeals.                         Administrative                        DOCUMENT BEGINS].
                                  Appeals
                                  Procedures,
                                  Final
                                  Administrative
                                  Decision:
                                  Review, Judicial
                                  Review of Final
                                  Administrative
                                  Decisions.
Gila River Indian Community,     Open Burning,      August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      General                               FEDERAL REGISTER PAGE
 Part V, Area Source Emission     Requirements for                      NUMBER WHERE THE
 Limits, Sections 1-2.            Fugitive Dust-                        DOCUMENT BEGINS].
                                  Producing
                                  Activities.
Gila River Indian Community,     Visible            August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      Emissions; VOC                        FEDERAL REGISTER PAGE
 Part VI, Generally Applicable    Usage, Storage,                       NUMBER WHERE THE
 Individual Source Requirements   and Handling;                         DOCUMENT BEGINS].
 for Existing and New Sources,    Degreasing and
 Sections 1-3.                    Solvent Metal
                                  Cleaning.
Gila River Indian Community,     Secondary          August 20, 2008..  3/28/11 [INSERT         .................
 Tribal Implementation Plan,      Aluminum                              FEDERAL REGISTER PAGE
 Part VII, Source/Category        Production,                           NUMBER WHERE THE
 Specific Emission Limits for     Aerospace                             DOCUMENT BEGINS].
 Existing and New Sources,        Manufacturing
 Sections 1-3.                    and Rework
                                  Operations,
                                  Nonmetallic
                                  Mineral Mining
                                  and Processing.
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     (d) Nonregulatory.

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 Name of nonregulatory TIP provision    Tribal submittal date      EPA approval date           Explanations
----------------------------------------------------------------------------------------------------------------
Gila River Indian Community, Tribal    June 22, 2009..........  3/28/11 [INSERT FEDERAL  .......................
 Implementation Plan, Introductory                               REGISTER PAGE NUMBER
 Materials.                                                      WHERE THE DOCUMENT
                                                                 BEGINS].
Technical Amendments to Part II of     June 22, 2009..........  3/28/11 [INSERT FEDERAL  Minor NSR program
 the 2006 Air Quality Management                                 REGISTER PAGE NUMBER     support documents.
 Program Plan, Title 17 Chapter 9 of                             WHERE THE DOCUMENT
 the Gila River Indian Community Law                             BEGINS].
 and Order Code.

[[Page 17032]]

 
Minor New Source Review Demonstration  June 22, 2009..........  3/28/11 [INSERT FEDERAL  Minor NSR program
                                                                 REGISTER PAGE NUMBER     support documents.
                                                                 WHERE THE DOCUMENT
                                                                 BEGINS].
Letter from Margaret Cook, Executive   July 17, 2010..........  3/28/11 [INSERT FEDERAL  Letter discussing
 Director, GRIC DEQ, to Deborah                                  REGISTER PAGE NUMBER     intent of citizen suit
 Jordan, Air Division Director, EPA                              WHERE THE DOCUMENT       provisions in Part
 Region 9, Re: Gila River Indian                                 BEGINS].                 III.
 Community Tribal Implementation Plan.
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[FR Doc. 2011-7110 Filed 3-25-11; 8:45 am]
BILLING CODE 6560-50-P
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