[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Proposed Rules]
[Pages 48880-48894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19926]
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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.
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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: [email protected] 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
[[Page 48881]]
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at 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 [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we'',
``us'', and ``our'' refer to EPA.
Table of Contents
I. Background
II. CAA Requirements and the Role of Indian Tribes
A. What authorities may Indian Tribes obtain under the CAA?
B. What criteria must an Indian Tribe meet to be treated in the
same manner as a State under the CAA?
C. What is a CAA Implementation Plan?
D. What is a Tribal Implementation Plan?
III. Evaluation of the GRIC's Implementation Authorities
A. How did the GRIC demonstrate eligibility to be treated in the
same manner as a State under the CAA?
B. How would the GRIC administer and enforce the TIP?
IV. Evaluation of the GRIC's Tribal Implementation Plan
A. What air quality goals does the GRIC TIP address?
B. What procedural requirements did the GRIC satisfy?
C. What authorities and requirements does the GRIC TIP contain?
1. General Provisions
2. Permit Requirements
3. Enforcement
4. Administrative Appeals and Judicial Review
5. Area Source Emissions Limits
6. Generally Applicable Individual Source Requirements for
Existing and New Sources
7. Source/Category-Specific Emission Limits for Existing and New
Sources
D. What other information has the GRIC submitted to support the
TIP?
1. Emissions Inventory
2. Air Quality Monitoring Network
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
EPA is proposing to approve a TIP submitted by the GRIC for
approval under section 110 of the CAA. The proposed TIP contains
general and emergency authorities; procedures for the preparation,
adoption, and submission of the GRIC's TIP and broader air quality
management plan (AQMP) \1\; provisions adopting the National Ambient
Air Quality Standards (NAAQS) for sulfur dioxide, particulate matter,
nitrogen dioxide, ozone, lead and carbon monoxide, as Tribal standards
\2\; permit requirements for new and existing minor sources of air
pollutants; procedures for civil and criminal enforcement; requirements
and procedures for administrative appeals and judicial review in Tribal
court; requirements for area sources of fugitive dust and fugitive
particulate matter; general prohibitory rules for existing and new
sources; and source category-specific emission limits and standards for
existing and new sources. The Tribe also submitted an inventory of
emission sources on the reservation and information about its air
quality monitoring program to support the TIP.
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\1\ The TIP is one of four regulatory programs that comprise the
AQMP. The other three AQMP programs implement the New Source
Performance Standards (NSPS) under CAA 111; the National Emission
Standards for Hazardous Air Pollutants (NESHAP) under CAA 112; and
title V operating permit requirements. Although the procedural
requirements in the GRIC's AQMP apply to the adoption, submission,
and revision of all AQMP programs, in this action we are proposing
to approve these procedures as part of and only for the purposes of
the TIP.
\2\ To date, GRIC has adopted only those Federal NAAQS that were
effective as of October 2006. This does not alter the applicability,
within the GRIC reservation, of any CAA requirement based on a new
or revised NAAQS that the Tribe has not yet adopted under Tribal
law. Nonetheless, to avoid confusion, we encourage the GRIC to adopt
all new or revised Federal NAAQS as Tribal standards and to submit
them to EPA as revisions to the TIP.
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The Gila River Indian Community is an Indian tribe federally
recognized by the U.S. Secretary of the Interior (see 67 FR 46328, July
12, 2002). The GRIC Department of Environmental Quality (DEQ) was
established by executive order in August 1995 by then-Governor Mary
Thomas. Beginning in 1998, the GRIC DEQ, with assistance from EPA,
began developing a draft AQMP with the goal of submitting it to EPA for
approval under the CAA. On December 6, 2006, the GRIC also submitted a
request that we find the Tribe eligible for TAS pursuant to section
301(d) of the CAA and Title 40, part 49 of the Code of Federal
Regulations (CFR), for the purpose of implementing the AQMP.
Specifically, the GRIC DEQ requested a TAS eligibility determination
for purposes of implementing four CAA programs that together comprise
the AQMP: (1) A Tribal Implementation Plan (TIP) that includes source-
specific rules and a minor source permit program under CAA section 110;
(2) the Federal New Source Performance Standards (NSPS) under CAA
section 111; (3) the Federal National Emissions Standard for Hazardous
Air Pollutants (NESHAP) under CAA section 112; and (4) an operating
permit program under title V of the Act. In addition, the Tribe
requested TAS for receiving notifications as an ``affected State''
under title V of the CAA and submitting recommendations to EPA on air
quality designations under CAA section 107(d). On October 21, 2009, EPA
determined that the Tribe is eligible for TAS for these purposes.\3\
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\3\ EPA has also previously approved the Tribe's applications
for TAS eligibility for tribal water pollution control grants under
Section 106 of the Clean Water Act (CWA) (March 1990), air pollution
control grants under Section 105 of the CAA (March 1999), and non
point source management grants under Section 319 of the CWA
(February 2004).
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The GRIC formally submitted the AQMP to EPA Region 9 on February
21, 2007, and submitted supplemental materials on July 11, 2007, June
22, 2009, and July 17, 2010. Having found that the GRIC is eligible for
TAS to implement these regulatory programs, EPA is now proposing to
approve the Tribe's TIP. We intend to act on the Tribe's title V
operating permit program and request for delegation of the NSPS and
NESHAPs in separate notice and comment processes, as appropriate.
Approval and implementation of the GRIC TIP will be an important
step in ensuring that basic air quality protection is in place to
protect public health and welfare in the GRIC reservation, consistent
with the CAA's overarching goals of protecting air resources throughout
the nation, including air resources in Indian Country.
[[Page 48882]]
II. CAA Requirements and the Role of Indian Tribes
A. What authorities may Indian Tribes obtain under the CAA?
The CAA is implemented in two basic ways.\4\ In the first approach,
EPA is primarily responsible both for setting national standards or
interpreting the requirements of the Act and for implementing the
Federal requirements that are established. In general, this approach is
reserved for programs requiring a high degree of uniformity in their
implementation--e.g., regulation of substances that deplete
stratospheric ozone under Title VI of the Act. See 59 FR 43956 at
43957.
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\4\ For a brief description of some of the many programs
contained in the CAA, see ``Addendum A to Preamble--General
Description of Clean Air Act Programs,'' 59 FR 43956 at 43976
(August 25, 1994) (Indian Tribes: Air Quality Planning and
Management, proposed rule).
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The principal method of CAA implementation, however, is through a
cooperative partnership between the states and EPA. While this
partnership can take several shapes, generally EPA issues national
standards or Federal requirements and the states assume primary
responsibility for implementing these requirements. Prior to assuming
implementation responsibility, states must submit their programs to EPA
and must demonstrate that their programs meet minimum Federal CAA
requirements. Among these requirements is the mandate that states
demonstrate that they have adequate legal authority and resources to
implement the programs. If a State program is approved or if the
authority to implement a Federal program is delegated to a State, EPA
maintains an ongoing oversight role to ensure that the program is
adequately enforced and implemented and to provide technical and policy
assistance. See 59 FR 43956 at 43957.
As part of the 1990 Amendments to the CAA, Congress enacted Section
301(d) authorizing EPA to ``treat Indian tribes as States'' under the
Act so that Tribes may develop and implement CAA programs in the same
manner as States within Tribal reservations or in other areas subject
to Tribal jurisdiction. Section 301(d)(2) of the Act authorizes EPA to
promulgate regulations specifying those provisions of the CAA ``for
which it is appropriate to treat Indian tribes as States.'' 42 U.S.C.
7601(d)(2).
On February 12, 1998, EPA issued a final rule specifying those
provisions of the CAA for which it is appropriate to treat eligible
Indian tribes in the same manner as states, known as the Tribal
Authority Rule (TAR). 63 FR 7254, codified at 40 CFR part 49. As a
general matter, EPA determined in the TAR that it is not appropriate to
treat tribes in the same manner as states for purposes of specific
program submittal and implementation deadlines. This is because, among
other reasons (discussed at 59 FR at 43964-65), although the CAA
contains many provisions mandating the submittal of State plans,
programs, or other requirements by certain dates, the Act does not
similarly require tribes to develop and seek approval of CAA programs.
Thus, tribes are generally not subject to CAA provisions that specify a
deadline by which something must be accomplished, e.g., provisions
mandating the submission of State implementation plans under section
110(a) and Part D of the Act. 40 CFR 49.4. As a result, tribes are also
not subject to the section 179 sanctions and certain other Federal
oversight mechanisms in the Act that are triggered when states fail to
meet these deadlines or when EPA disapproves a program submittal. 40
CFR 49.4(c), (d).
A tribe that meets the eligibility criteria for TAS may, however,
choose to implement a CAA program. A tribe may also submit reasonably
severable portions of a CAA program, if it can demonstrate that its
proposed air program is not integrally related to program elements not
included in the plan submittal and is consistent with applicable
statutory and regulatory requirements. 40 CFR 49.7(c); see also CAA
110(o). This modular approach is intended to give tribes the
flexibility to address their most pressing air quality issues and
acknowledges that tribes often have limited resources with which to
address their environmental concerns. Consistent with the exceptions
listed in 40 CFR 49.4, once submitted, a tribe's proposed air program
will be evaluated in accordance with applicable statutory and
regulatory criteria in a manner similar to the way EPA would review a
similar State submittal. 40 CFR 49.9(h). EPA expects tribes to fully
implement and enforce their approved programs and, as with states, EPA
retains its authority to impose sanctions for failure to implement an
approved air program. See 59 FR 43956 at 43965 (Aug. 25, 1994)
(explaining EPA's rationale for treating Tribes in the same fashion as
States for purposes of mandatory sanctions for nonimplementation of an
approved part D program (CAA 179(a)(4)) and with respect to EPA's
discretionary authority to impose sanctions (CAA 110(m)); 40 CFR 49.4.
B. What criteria must an Indian Tribe meet to be treated in the same
manner as a State under the CAA?
Under section 301(d) of the CAA and the TAR, EPA may treat a tribe
in the same manner as a State for purposes of administering certain CAA
programs or grants if the tribe demonstrates that: (1) It is a
federally-recognized tribe; (2) it has a governing body carrying out
substantial governmental duties and powers; (3) the functions to be
exercised by the tribe pertain to the management and protection of air
resources within the exterior boundaries of the reservation (or other
areas under the tribe's jurisdiction); and (4) it can reasonably be
expected to be capable of carrying out the functions for which it seeks
approval, consistent with the CAA and applicable regulations.
To receive EPA approval of a CAA program, a tribe must, as a
threshold matter, obtain a determination from EPA that it meets these
eligibility requirements. 40 CFR 49.6. As discussed in section III
below, we previously determined that the GRIC meets these eligibility
requirements for purposes of implementing the TIP and other CAA
authorities.
C. What is a CAA Implementation Plan?
Under the CAA, EPA has established NAAQS, or minimum air quality
standards, for six pollutants found in ambient air: carbon monoxide
(CO), lead (Pb), nitrogen dioxide (NO2), ozone
(O3), particulate matter (PM), and sulfur dioxide
(SO2). The NAAQS are based on comprehensive studies of
available ambient air monitoring data, health effects data, and studies
of effects on materials. The primary standards are designed to protect
the public from health risks, including children, people with asthma,
and the elderly. The secondary standards are designed to prevent
unacceptable effects on the public welfare, e.g., damage to crops and
vegetation, buildings and property, and ecosystems.
An implementation plan is a set of programs and regulations
developed by the appropriate regulatory agency to protect public health
and welfare through the attainment and maintenance of the NAAQS. The
regulatory agency is generally free to choose whatever mix of
requirements it determines best suits its specific circumstances so
long as the implementation plan meets applicable requirements and
ensures attainment and maintenance of the NAAQS. These plans can be
developed by states, eligible Indian tribes, or the EPA, depending on
which entity has
[[Page 48883]]
jurisdiction in a particular area. Implementation plans developed by
states are called State Implementation Plans or SIPs. Similarly, plans
developed by eligible Indian tribes are called Tribal Implementation
Plans or TIPs. Occasionally, EPA will develop an implementation plan
for a specific area. This is referred to as a Federal Implementation
Plan or FIP. Following final approval and publication in the Federal
Register, the provisions of a SIP, TIP or FIP become federally
enforceable.
The contents of a typical implementation plan may fall into three
broad categories: (1) Agency-adopted control measures which consist of
prohibitory rules or source-specific requirements (e.g., orders,
consent decrees or permits); (2) agency-submitted ``non-regulatory''
components (e.g., attainment plans, rate of progress plans, emission
inventories, transportation control measures, statutes demonstrating
legal authority, monitoring programs); and (3) additional requirements
promulgated by the EPA (in the absence of a commensurate agency
provision) to satisfy a mandatory Clean Air Act section 110 or part D
requirement. The implementation plan is a living document which can be
revised by the State or eligible Indian Tribe as necessary to address
air pollution problems. Changes to the plan, such as new and/or revised
regulations, that EPA approves following notice and comment rulemaking
become part of the federally-enforceable implementation plan.
A geographic area that meets or does better than a primary standard
is called an attainment area. An area for which there is insufficient
information to determine whether the area meets the NAAQS is called an
unclassifiable area. An area that does not meet a standard, or that
contributes pollution to a nearby area that does not meet a standard,
is called a nonattainment area. An area may be designated attainment or
unclassifiable/attainment for some pollutants and nonattainment for
others.
The CAA requires that the NAAQS be met nationwide and requires
states to adopt SIPs that provide for the implementation, maintenance,
and enforcement of the NAAQS. CAA 110(a). For attainment and
unclassifiable areas, the CAA requires states to submit the basic
program elements specified in section 110(a)(2) necessary to implement
the NAAQS--e.g., enforceable emission limitations and other control
measures (CAA 110(a)(2)(A)), a program to provide for the enforcement
of these measures (CAA 110(a)(2)(C)), and necessary assurances that the
State will have adequate personnel, funding, and authority under State
law to carry out the plan (CAA 110(a)(2)(E)(i)). For nonattainment
areas, in addition to these basic program elements, the CAA requires
states to adopt SIPs containing specific program elements in part D,
Title I of the Act, in accordance with specified deadlines based on the
severity of the air pollution problem.
D. What is a Tribal Implementation Plan?
Section 301(d) of the CAA and the TAR authorize eligible Indian
tribes to implement various CAA programs, including TIPs under section
110 of the Act. TIPs (1) are optional; (2) may be modular; (3) have
flexible submission schedules; and (4) allow for joint tribal and EPA
management.\5\
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\5\ For guidance on development of TIPs, see ``Developing a
Tribal Implementation Plan,'' Office of Air Quality Planning and
Standards, U.S. EPA, October 2002 (EPA 452/R-02-010), http://www.epa.gov/air/tribal/tip2002/index.html.
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1. Optional
The CAA requires each State to adopt a SIP. Unlike states, Indian
tribes are not required to adopt a CAA implementation plan. In the TAR,
we recognized that not all Indian tribes will have the need or the
desire to implement an air pollution control program, and we
specifically determined that it was not appropriate to treat tribes in
the same manner as states for purposes of plan submittal and
implementation deadlines. See 40 CFR 49.4(a) (exempting Tribes from the
plan submittal deadlines for nonattainment areas set out in sections
172(a)(2), 182, 187, 189, and 191 of the Act); see also 59 FR 43956,
43964-67 (Aug. 25, 1994) (proposed TAR preamble) and 63 FR 7254, 7264-
66 (Feb. 12, 1998) (final TAR preamble).
2. Modular
The TAR allows eligible Indian tribes to submit partial elements of
a CAA program, so that they can target their most important air quality
issues without the corresponding burden of developing entire CAA
programs. Under this modular approach, TIP elements that the eligible
Indian tribe submits must be ``reasonably severable'' from program
elements that the tribe chooses not to submit. ``Reasonably severable''
elements are those that are not integrally related to program elements
not included in the TIP. See 40 CFR 49.7(c); see also 59 FR 43956,
43961-69 (Aug. 25, 1994) (proposed TAR preamble) and 63 FR 7254 (Feb.
12, 1998) (final TAR preamble). So, for example, a tribe may choose to
submit a TIP that addresses only specific types of sources and/or
specific air pollutants.
3. Have Flexible Submission Schedules
Neither the CAA nor the TAR requires Indian tribes to develop TIPs.
Therefore, unlike states, Indian tribes are not required to meet the
plan submittal or implementation deadlines specified in the CAA. Indian
tribes may establish their own schedules and priorities for developing
TIP elements (e.g., regulations to limit emissions of a specific air
pollutant) and submitting them to the EPA. Indian tribes will not face
sanctions for failing to submit or for submitting incomplete or
deficient TIPs. See 40 CFR 49.4; 59 FR 43956, 43964-65 (Aug. 25, 1994)
(proposed TAR preamble) and 63 FR 7254 at 7265 (Feb. 12, 1998) (final
TAR preamble).
4. Allow for Joint Tribal and EPA Management
Consistent with the CAA and the TAR, a tribe may revise a TIP and
take on new programs based on changes in tribal need or capacity. In
any case, EPA retains its general authority to directly implement CAA
requirements in Indian Country as necessary or appropriate to protect
tribal air resources. See CAA 301(a), 301(d)(4); 40 CFR 49.11; 59 FR
43956, 43958-61 (Aug. 25, 1994) (proposed TAR preamble explaining EPA's
CAA authorities in Indian Country); 63 FR 7254, 7262-64 (Feb. 12, 1998)
(final TAR preamble). Thus, where a tribe chooses not to adopt a CAA
program or adopts only a partial program, EPA may exercise its
discretionary authority to issue such regulations as are necessary or
appropriate to protect tribal air resources. This type of joint
management allows tribes to focus on their specific air quality needs
while ensuring adequate protection of tribal air resources.
The CAA also authorizes EPA to enforce the regulations in an
approved TIP. CAA 113. We work cooperatively with the Indian Tribe in
exercising this enforcement authority.
III. Evaluation of the GRIC's Implementation Authorities
A. How did the GRIC demonstrate eligibility to be treated in the same
manner as a State under the CAA?
By letter dated November 17, 2006 and submitted to EPA on December
6, 2006, the GRIC requested an EPA determination that the Tribe is
eligible for TAS for the purposes of implementing four CAA programs:
(1) A
[[Page 48884]]
TIP that includes source-specific rules and a minor source permit
program under CAA section 110; (2) the Federal NSPSs under CAA section
111; (3) the Federal NESHAPs under CAA section 112; and (3) an
operating permit program under title V of the Act. In addition, the
Tribe requested TAS for receiving notifications as an ``affected
State'' under title V of the CAA and for submitting recommendations to
EPA on air quality designations under CAA section 107(d). The GRIC
submitted supplemental materials for its TAS eligibility request on
October 6, 2008 and March 18, 2009. EPA notified appropriate
governmental entities and the public of the Tribe's application and
addressed all comments received as part of that process.
On October 21, 2009, based on the information submitted by the
Tribe, and after consideration of all comments received in response to
notice of the Tribe's request, EPA determined that the GRIC met the
eligibility requirements of CAA section 301(d) and 40 CFR 49.6 for
these purposes under the CAA. See Memorandum, ``Gila River Indian
Community: Eligibility Determination under 40 CFR part 49 for Clean Air
Act Sections 107, 110, 111, 112, 114, and Title V,'' signed by Laura
Yoshii, Acting Regional Administrator, EPA Region 9, October 21, 2009
(TAS Decision Document). Specifically, EPA determined that the GRIC had
demonstrated: (1) That it is an Indian tribe recognized by the
Secretary of the Interior (see 67 FR 46328 (July 12, 2002)); (2) that
it has a governing body carrying out substantial governmental duties
and functions; (3) that the functions to be exercised by the Tribe
pertain to the management and protection of air resources within the
exterior boundaries of the Tribe's reservation;\6\ and (4) that the
Tribe is reasonably expected to be capable of carrying out the
functions to be exercised in a manner consistent with the terms and
purposes of the CAA and all applicable regulations.
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\6\ The TAS Decision Document describes the geographic area
within which the Tribe is approved for TAS.
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EPA notified the Tribe of this TAS eligibility determination by
letter the same day. See letter dated October 21, 2009, from Laura
Yoshii, Acting Regional Administrator, EPA Region 9, to the Honorable
William Rhodes, Governor, Gila River Indian Community.
B. How would the GRIC administer and enforce the TIP?
The proposed TIP would be implemented primarily by the GRIC DEQ Air
Quality Program staff and the Tribe's attorneys. Established in 1995,
the GRIC DEQ has grown from an initial staff of six to a staff of 26 in
2009. The Air Quality Program staff has degrees ranging from
Associate's to Master's degrees. They have received extensive training
in TIP development, permit writing and regulatory enforcement.\7\ Since
1995, the staff has also demonstrated considerable capabilities in the
programmatic, administrative, and legal functions of implementing an
air quality program. On January 9, 2003, the GRIC became the first
Tribal Government that EPA recognized as capable of issuing permits
with enforceable limitations on a source's potential to emit, following
case-by-case EPA review.\8\
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\7\ See letter dated November 17, 2006, from William R. Rhodes,
Governor, Gila River Indian Community, to Wayne Nastri, Regional
Administrator, U.S. EPA Region 9 (transmitting TAS application), at
page 10.
\8\ See letter dated January 9, 2003, from Jack Broadbent,
Director, Air Division, U.S. EPA Region 9, to Dr. Patricia Mariella,
Director, Gila River Indian Community DEQ.
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As discussed above in section III.A, EPA evaluated the Tribe's
implementation and enforcement capabilities as part of our
determination that the GRIC is eligible for TAS to implement this TIP
and other CAA programs. Specifically, as part of that determination,
EPA found that the GRIC is reasonably expected to be capable of
implementing and enforcing the TIP and other AQMP programs in a manner
consistent with the terms and purposes of the CAA and all applicable
regulations. See TAS Decision Document. Also as part of that
determination, EPA entered into a Memorandum of Agreement with the GRIC
to facilitate intergovernmental cooperation in addressing criminal
violations of the AQMP. See Memorandum of Agreement Between the Gila
River Indian Community and the U.S. Environmental Protection Agency
Regarding Criminal Enforcement of the Tribal Implementation Plan
Pursuant to the Clean Air Act and 40 CFR part 49, dated October 21,
2009 (Criminal Enforcement MOA).
The GRIC DEQ staff is responsible for inspecting facilities within
the exterior boundary of the reservation and responding to any
complaints received. The GRIC air quality staff, and if needed, the
GRIC tribal police, will assume enforcement activities for the purposes
of compliance with air regulations. Other GRIC agencies will also
provide compliance and enforcement assistance, as appropriate, in
accordance with applicable Tribal and Federal law. See GRIC AQMP, Part
1, Section 2.2.
Part III of the AQMP contains enforcement ordinances that establish
requirements and procedures for civil and criminal enforcement. These
ordinances authorize the GRIC DEQ to issue administrative compliance
orders, assess civil penalties, and take other enforcement actions
against persons who violate requirements of the TIP or other
requirements of the AQMP within the exterior boundaries of the
reservation. These enforcement provisions are discussed further in
Section IV.C.3 of this notice.
IV. Evaluation of the GRIC's Tribal Implementation Plan
A. What air quality goals does the GRIC TIP address?
The Gila River Indian Reservation is located in south-central
Arizona, adjacent to the Phoenix Metropolitan Area, in Pinal and
Maricopa Counties. The entire reservation is designated attainment or
unclassifiable/attainment for the following NAAQS pollutants: Lead
(Pb), carbon monoxide (CO), nitrogen dioxide (NO2), sulfur
dioxide (SO2), particulate matter of 2.5 microns or less
(PM2.5), and ground-level ozone. 40 CFR 81.303. EPA had
initially included the Maricopa County portion of the GRIC reservation
in the Maricopa County CO nonattainment area, but in 2005 we corrected
the nonattainment boundary to exclude the GRIC reservation and
redesignated the reservation to ``nonclassifiable/attainment'' for the
CO NAAQS. See 69 FR 60328 (October 8, 2004)(proposed rule) and 70 FR
11553 (March 9, 2005)(final rule), as corrected by 70 FR 52926
(September 6, 2005). Similarly, EPA had initially included the Maricopa
County portion of the GRIC reservation in the Phoenix metropolitan 1-
hour ozone nonattainment area, but in 2005 we corrected the
nonattainment boundary to exclude the GRIC reservation and redesignated
the reservation to ``unclassifiable/attainment'' for the 1-hour ozone
NAAQS. See 70 FR 13425 (March 21, 2005)(proposed rule) and 70 FR 68339
(November 10, 2005)(final rule).\9\
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\9\ As explained in the final rule, the effect of this action
was to attach the Maricopa County portion of the GRIC reservation to
the pre-existing ``unclassifiable/attainment'' area for the 1-hour
ozone NAAQS that consists of all of those portions of the State of
Arizona (including the rest of the Reservation that lies in Pinal
County) that are not designated as a ``nonattainment'' area or as an
``attainment'' area subject to a maintenance plan. 70 FR 68339 at
68344.
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[[Page 48885]]
More recently, on October 14, 2009, we notified the Governor of
Arizona and affected Arizona tribes, including the GRIC, that EPA was
reviewing the initial recommendation to designate Pinal County as
attainment/unclassifiable for the 2006 annual PM2.5
standard, given recent data indicating violations of the standard in
the Pinal County area. On December 30, 2009, we notified the same
entities that EPA was also initiating a redesignation of Pinal County
to nonattainment for the 1997 annual PM2.5 standard and for
the 1987 24-hour standard for particulate matter of 10 microns or less
(PM10).\10\ We have asked the Tribes in Pinal County,
including the GRIC, to provide recommendations concerning their Indian
country lands.
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\10\ EPA's air quality designations for the 2006 24-hour Fine
Particle (PM2.5) standard were published in the Federal
Register on November 13, 2009. 74 FR 58688.
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The only criteria pollutant for which a portion of the reservation
is currently designated nonattainment is PM10. The northern
portion of the GRIC reservation lies within the Maricopa County
(Phoenix Planning Area) serious PM10 nonattainment area.
Approximately 92,000 acres of the GRIC reservation, along its northern
boundary, were included in the Maricopa County area when it was
originally designated as nonattainment (see 52 FR 29383, August 7,
1987) and reclassified from moderate to serious for the PM10
NAAQS. 61 FR 21372 (May 10, 1996)(reclassification to serious
nonattainment effective June 10, 1996). The remainder of the GRIC
reservation is located in the portion of Pinal County that is currently
designated as unclassifiable/attainment for PM10. 40 CFR
81.303.
While State and local regulatory agencies in the Maricopa County
PM10 nonattainment area have developed SIPs to comply with
the nonattainment area requirements of subpart 4 of Part D, title I of
the CAA, these SIP requirements do not apply within the exterior
boundaries of the GRIC reservation. Rather, the CAA, as amended in
1990, broadly authorizes EPA to protect Tribal air resources by
directly implementing the Act's requirements in Indian Country. CAA
Sec. 301(d)(4); 40 CFR 49.11; 59 FR 43956, 43958-61 (Aug. 25, 1994)
(proposed TAR preamble explaining EPA's CAA authorities in Indian
Country); 63 FR 7254, 7262-64 (Feb. 12, 1998) (final TAR). As discussed
above, section 301(d) of the CAA also authorizes EPA to approve Indian
Tribes to implement their own CAA programs in Indian Country, provided
they meet specified requirements.
The GRIC's TIP rules establish a basic air pollution control
program for the protection of air resources within the GRIC
reservation. The regulations in the TIP are enforceable and function
independently of the PM10 nonattainment area requirements of
subpart 4 of Part D, Title I of the Act and, therefore, are not
integrally related to these plan requirements. As such, the GRIC's plan
submittal is reasonably severable from the PM10
nonattainment area plan elements not included in the submittal,
consistent with 40 CFR 49.7(c). We therefore turn to our evaluation of
the GRIC DEQ's plan submittal in accordance with the applicable
statutory and regulatory requirements.
B. What procedural requirements did the GRIC satisfy?
Section 110(a) of the CAA requires that implementation plans be
adopted by the State after reasonable notice and public hearing. EPA
has promulgated specific procedural requirements for SIP revisions in
40 CFR part 51, subpart F. These requirements include publication of
notices, by prominent advertisement in the relevant geographic area, of
a public hearing on the proposed revisions, a public comment period of
at least 30 days, and an opportunity for a public hearing.
The GRIC DEQ developed the AQMP from 1998 to 2006 in consultation
with EPA Region 9. Following an extensive public comment process, on
December 13, 2006, the GRIC Tribal Council adopted the AQMP under
Tribal Law.\11\ The GRIC formally submitted the AQMP, which includes
the TIP, to EPA Region 9 on February 21, 2007. On July 11, 2007, the
GRIC submitted public process documentation for the AQMP, including
documentation of a duly noticed public hearing held by the GRIC DEQ on
July 20, 2006, in Chandler, Arizona. We find that the GRIC's process
for adopting and submitting the TIP satisfied the procedural
requirements for adoption and submission of implementation plans under
CAA section 110(a) and EPA's implementing regulations.
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\11\ See Gila River Indian Community Ordinance GR-06-06
(December 13, 2006). Although the Ordinance indicates that the
Tribal Council adopted the AQMP on December 6, 2006, we generally
refer to the adoption date as December 13, 2006, consistent with the
date of the GRIC Governor's signature.
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C. What authorities and requirements does the GRIC TIP contain?
The AQMP is comprised of four regulatory programs: (1) A Tribal
implementation plan (TIP) for the implementation, maintenance, and
enforcement of the NAAQS under CAA 110; (2) regulations adopting the
Federal New Source Performance Standards (NSPS) under CAA 111 as Tribal
standards; (3) regulations adopting the Federal National Emission
Standard for Hazardous Air Pollutants (NESHAP) under CAA 112 as Tribal
standards; and (4) a Tribal operating permits program under title V of
the Act.
In this action, we propose to act only on the TIP. We intend to
issue separate Federal Register notices proposing action on the Tribe's
requests for delegation of authority to implement and enforce the
Federal NSPSs and to implement and enforce the Federal NESHAPs,
consistent with applicable CAA and regulatory requirements. The GRIC
DEQ is currently revising its title V permit regulations and has
requested that EPA not act at this time on the title V provisions it
submitted with the AQMP. See Letter dated June 22, 2009, from Margaret
Cook, Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC
Air Quality Management Plan.''
We discuss below each element of the TIP and our evaluation of it
in light of applicable CAA requirements.\12\
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\12\ Throughout this discussion, the term ``Director'' means the
Director of the GRIC DEQ. For ease of reference, we refer to each
section of the TIP as a section of the AQMP, consistent with the
structure of the Tribe's submittal.
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1. General Provisions
Part I of the AQMP, ``General Provisions,'' contains definitions,
general authorities of the Director, procedures for the preparation,
adoption, and submittal of plan elements and revisions, and provisions
adopting Federal NAAQS as Tribal standards.\13\
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\13\ See footnote 2.
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Specifically, Section 1.0 of Part I contains definitions that
generally apply to all AQMP programs, including the TIP.
Section 2.0 establishes the Director's general authorities, which
include the responsibilities for: (1) Consulting with and making
recommendations to the GRIC Governor and Community Council on matters
concerning implementation of the AQMP; (2) encouraging industrial,
commercial, residential and general development of the Community in a
manner that protects and preserves
[[Page 48886]]
air quality; and (3) notifying Community members and other members of
the public on a regular basis of incidences and areas in which the
Tribe's adopted NAAQS were exceeded during the preceding calendar year,
including the health risks associated with such exceedances. GRIC AQMP
Part I, Section 2.1. These provisions satisfy the requirement in CAA
section 110(a)(2)(J) to meet applicable requirements of CAA section 121
(relating to consultation) and section 127 (relating to public
notification), and also satisfy the requirement in CAA section
110(a)(2)(M) to provide for consultation and participation by local
political subdivisions affected by the plan.
In addition, if the Director determines that air pollution in any
area constitutes or may constitute an emergency risk \14\ to the health
of those in the area or if the ambient air quality standards adopted by
the GRIC are likely to be exceeded, the Director must notify the GRIC
Governor. The Governor may then restrain or enjoin any person from
engaging in emissions-generating activity that presents an imminent and
substantial endangerment to the public health or welfare or to the
environment. The Governor may also, to the extent of the Governor's
authority, declare that an emergency exists and prohibit, restrict, or
condition any of the following: motor vehicle traffic; retail,
commercial, manufacturing, governmental, industrial or similar
activity; operation of incinerators and other facilities that emit the
air pollutant of concern; the burning or other consumption of fuels;
the burning of any materials; any and all other activity which
contributes or may contribute to the emergency. Orders of the Governor
issued under this provision are enforceable by the GRIC DEQ and the
GRIC tribal police. GRIC AQMP Part I, Section 2.2. These provisions
meet the requirement in CAA section 110(a)(2)(G) to provide for
authority comparable to the emergency powers in section 303 of the Act.
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\14\ The Director's determination must be based on scientific
data in coordination with the GRIC Office of Emergency Management
(OEM) and consistent with OEM protocol. See AQMP Part I, Section
2.2.A.
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Section 3.0 establishes procedural requirements for preparation,
adoption, submission to EPA, and revision of the AQMP. These
requirements include publication of notices, by prominent advertisement
in the Gila River Indian News and by other appropriate means, a public
comment period of at least 30 days, and a public hearing following
reasonable notice of such hearing.\15\ Section 3.0 also contains
technical support requirements and procedures for parallel processing.
These provisions satisfy the applicable procedural requirements of CAA
section 110(a)(2) and 40 CFR part 51, subpart F.
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\15\ Consistent with 40 CFR 51.102(c), however, the AQMP does
not require a public hearing for any change to an increment of
progress to an approved individual compliance schedule unless the
change is likely to cause the source to be unable to comply with the
final compliance date in the schedule. AQMP Part I, Section
3.2.D(3).
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Finally, Section 4.0 of Part I contains the GRIC DEQ's provisions
adopting Federal primary and secondary standards and measuring methods
for SO2, PM10, PM2.5, CO, ozone (8-
hour), NO2, and Pb as Tribal air quality standards. These
standards and measuring methods are consistent with the Federal NAAQS
that were effective in October 2006, shortly before the GRIC adopted
the AQMP. See 40 CFR 50.4-50.8, 50.10-50.12 (2006). We are proposing to
approve these air quality standards and measurement methods into the
TIP.
We note that several revisions to the Federal NAAQS have become
effective since October 2006,\16\ and that all Federal NAAQS apply
within the GRIC reservation whether or not the Tribe adopts these
standards into the TIP under Tribal law. See footnote 2, above. The
GRIC's TIP provides for progress toward the implementation,
enforcement, and maintenance of the Federal NAAQS by regulating
emissions of NAAQS pollutants within the reservation and establishing
enforceable procedures to determine whether construction or
modification of minor sources will interfere with attainment or
maintenance of the NAAQS, as effective in October 2006. Accordingly, we
are proposing to approve the TIP, including those Federal NAAQS that
the Tribe has adopted under Tribal law, as a program containing
severable elements of a plan under CAA section 110(a) that provides for
the implementation, enforcement, and maintenance of the NAAQS. We note,
however, that EPA retains its discretionary authority under CAA
sections 301(a) and 301(d)(4) to directly implement CAA programs in the
GRIC reservation and to promulgate such Federal implementation plan
provisions as are necessary or appropriate to protect air quality in
the GRIC reservation.
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\16\ See 71 FR 61224, October 17, 2006 (revised standards for
particulate matter, effective December 18, 2006); 73 FR 67051,
November 12, 2008 (revised standards for lead, effective January 12,
2009); 75 FR 2938, January 19, 2010 (proposed rule to revise 8-hour
ozone standards); 75 FR 6474, February 9, 2010 (revised standards
for NO2, effective April 12, 2010); 75 FR 35520, June 22,
2010 (revised standards for SO2, effective August 23,
2010).
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2. Permit Requirements
Part II of the AQMP contains permit requirements for new and
existing sources of air pollution. Specifically, it contains a title V
operating permit program for ``title V sources,'' and a preconstruction
review and operating permit program to regulate ``non-title V sources''
(or ``minor sources'').
a. Title V Permit Requirements
By letter dated June 22, 2009, the GRIC DEQ requested that EPA not
act on the title V operating permit regulations submitted as part of
the AQMP on February 22, 2007. EPA understands that the GRIC DEQ
intends to submit a revised title V operating permit program at a later
date, after adopting revisions to address requirements of the CAA and
implementing regulations.\17\ As such, we are not taking action today
on those elements of Part II of the AQMP that pertain to title V permit
program requirements.\18\ At this time, EPA remains the title V
permitting authority for all title V sources within the exterior
boundaries of the GRIC reservation.
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\17\ EPA has, however, determined that the Tribe is eligible for
TAS to implement a title V permit program (as noted above in Section
III.A). Accordingly, the Tribe's submittal at a later date of a
revised title V permit program need not be accompanied by another
TAS eligibility request.
\18\ These include all regulatory definitions associated with
title V requirements in Section 1.0; title V program applicability
provisions in Section 2.0; the title V permitting regulations in
Section 3.0; and requirements for title V permit revisions in
Section 5.0.
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b. Non-Title V Permit Requirements
Section 110(a)(2)(C) of the Act requires that each implementation
plan include a program to regulate the construction and modification of
stationary sources, including a permit program as required by parts C
and D of title I of the Act, as necessary to assure that the NAAQS are
achieved. Parts C and D, which pertain to prevention of significant
deterioration (PSD) and nonattainment, respectively, address the major
NSR programs for major stationary sources, and the permitting program
for ``nonmajor'' (or ``minor'') stationary sources is addressed by
section 110(a)(2)(C) of the Act. We commonly refer to the latter
program as the ``minor NSR'' program. A minor stationary source is a
source whose ``potential to emit'' is lower than the major source
applicability threshold for a particular pollutant as defined in the
applicable major NSR program.
The requirements that minor source programs must meet to be
approved are outlined in 40 CFR 51.160 through 51.164. These
regulations require states to develop ``legally enforceable
[[Page 48887]]
procedures'' to enable the State ``to determine whether the
construction or modification of a [source] will result in--(1) a
violation of applicable portions of the control strategy; or (2)
interference with attainment or maintenance of a national standard * *
*.'' 40 CFR 51.160(a). The program must identify the types and sizes of
sources subject to review, and the State's plan must discuss the basis
for determining which facilities will be subject to review. 40 CFR
51.160(e).
Every State implementation plan currently contains a minor NSR
program. Minor sources located on the GRIC reservation, however, have
not to date been subject to preconstruction review under the CAA. EPA
has proposed a Federal NSR permit program that would apply to, among
others, minor sources in Indian Country where there is no EPA-approved
permit program under the CAA, but this rulemaking has not yet been
finalized. 71 FR 48696 (August 21, 2006) (proposed rule to implement
NSR in Indian Country).
Although the Act does not require tribes to develop and seek EPA
approval of NSR permit programs, where a tribe decides to do so, EPA
evaluates the program in accordance with applicable statutory and
regulatory criteria in a manner similar to the way EPA would review a
similar State submittal. 40 CFR 49.9(h); 59 FR 43956 at 43965 (Aug. 25,
1994) (proposed TAR preamble); 63 FR 7254 (Feb. 12, 1998) (final TAR
preamble). For the reasons discussed below, we propose to approve the
GRIC's minor NSR program in accordance with the TAR and the criteria
for approval of minor NSR programs at 40 CFR 51.160 through 51.164. It
is important to note, however, that we are proposing to approve this as
a base program suitable to the GRIC's reservation. Other Tribal NSR
programs may differ significantly and should each be evaluated on a
case-by-case basis in light of air quality needs in the relevant area.
The GRIC DEQ's minor NSR permit program, entitled ``Non-Title V
Permit Requirements,'' applies to stationary sources that are neither
``major'' under the Act \19\ nor subject to the requirements of CAA
title V.\20\ AQMP Part II, Section 2.1. For all major sources, major
modifications, and sources otherwise subject to title V on the
reservation, EPA will continue to implement applicable CAA permitting
requirements, including the requirements of parts C and D of title I of
the Act, as appropriate.
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\19\ Section 302(j) of the CAA generally defines ``major
stationary source'' as any stationary source that has the potential
to emit at least 100 tons per year (tpy) of any air pollutant,
unless the statute specifies a different threshold. Part D of title
I of the Act establishes lower major source thresholds based on
severity of air pollution in nonattainment areas. For hazardous air
pollutants (HAP), CAA section 112 defines ``major source'' as a
source that emits or has the potential to emit considering controls,
in the aggregate, 10 tpy or more of any HAP or 25 tpy or more of any
combination of HAP.
\20\ Title V requirements apply to, among other sources, any
major source, any source subject to an NSPS under CAA 111, and any
source subject to a NESHAP under CAA 112. 40 CFR 71.3(a), (b).
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Specifically, the GRIC's minor NSR permit program applies to any
person who proposes to construct, operate, or modify any source that
emits or has the potential to emit ``regulated air pollutants,'' unless
the source or modification is either (1) a major source or major
modification and/or subject to title V of the Act, or (2) exempt from
review as ``de minimis'' under the AQMP. See Part II Sections 2.1.B,
2.1.C, 5.1.A. ``Regulated air pollutant'' is defined as any criteria
pollutant, any air contaminant subject to an NSPS under CAA 111, any
hazardous air pollutant (HAP) listed under CAA 112(b) or
``ultrahazardous'' air pollutant listed under CAA 112(r)(3), or any
class I or II substance listed in CAA section 602.
A stationary source that is not a ``major stationary source'' under
the CAA and that does not operate in conjunction with another facility
or source that is subject to permit requirements may be exempt under
Section 2.1.C from permit requirements as a ``de minimis facility,'' if
the source's ``actual emissions'' \21\ of air pollutants are equal to
or less than all of the following levels:
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\21\ For any emissions unit at a minor source that has not begun
normal operations, ``actual emissions shall be based on applicable
control equipment requirements and projected conditions of
operation.'' AQMP Part II, Section 1.0.D (definitions).
\22\ AQMP Part II, Section 2.1.C(1).
Table 1--``De minimis'' Thresholds in the GRIC's Minor NSR Permit Program \22\
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Any single regulated air pollutant except a 1 ton per year (tpy).
hazardous air pollutant.
----------------------------------------------------------------------------------------------------------------
Any single hazardous air pollutant (HAP), or.. 1000 lbs per year (single HAP), or
Any combination of HAPs....................... 1 tpy (combination of HAPs).
----------------------------------------------------------------------------------------------------------------
Any single ultrahazardous air pollutant, or 300 lbs per year.
any combination of ultrahazardous air
pollutants.
----------------------------------------------------------------------------------------------------------------
In addition, Section 2.1.C(2) identifies several types of minor
sources that are categorically treated as ``de minimis facilities''
and, therefore, exempt from permit requirements. These categorical ``de
minimis facilities'' include agricultural equipment used in normal farm
operations, except for equipment that is subject to requirements of
title V or 40 CFR parts 60 or 61; air-conditioning equipment and
general combustion equipment with aggregated input capacity of less
than 2 MMBtu/hour or, if oil-fired, maximum rated input capacity or
aggregated input capacity of less than 500,000 Btu/hour; stationary
storage tanks used for storing organic liquids with true vapor pressure
of 1.5 psia or less, or that have a capacity of 250 gallons or less;
and portable internal combustion engines that, individually, have a
rating less than 500 horsepower output or operate less than 200 hours
per calendar year.
The GRIC DEQ's supporting documentation demonstrates that these de
minimis facilities are appropriately exempt from permit requirements
based on their insignificant environmental impacts, in accordance with
the criteria set forth in Alabama Power Co. v. Costle, 636 F.2d 323
(D.C. Cir. 1979). See Letter dated June 22, 2009, from Margaret Cook,
Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC
Air Quality Management Plan,'' enclosure entitled ``Minor New Source
Review Demonstration.''
The GRIC DEQ's minor NSR permit program requires each applicant for
a ``non-title V'' permit to submit, among other things, a certified
application containing information about the facility, the industrial
process, the nature and amount of emissions, and any information needed
to determine applicable technology-based emission limitations. In some
cases, the GRIC DEQ may also require the source to
[[Page 48888]]
model its impact on ambient air quality in accordance with 40 CFR part
51, Appendix W.
Importantly, any new minor source that has a ``potential to emit''
(PTE) at or above specified levels, or a modification at an existing
minor source that increases a source's PTE by specified levels, will be
subject to a technology-based emission limitation that reflects the
Best Reasonable and Demonstrated Technology (BRDT), as determined by
the GRIC DEQ on a case-by-case basis. BRDT is defined as ``an emission
limitation or design equipment, work practice or operational standard''
that is ``based on the maximum degree of reduction of each criteria
pollutant or hazardous air pollutant determined on a case-by-case
basis'' or by rule, ``taking into account energy, environmental, and
economic impact, feasibility of achieving the emission limitation for a
particular source, and the existing air quality in the area to be
impacted by the source.'' Part II Section 1.0. The PTE levels (or, for
modifications, PTE increases) at which BRDT applies are identified in
Table 2.
Table 2--PTE Thresholds at Which BRDT Applies in the GRIC's Minor NSR
Permit Program \23\
------------------------------------------------------------------------
------------------------------------------------------------------------
For a new source, any single criteria 75 tpy.
pollutant.
For a new source, any single HAP....... 3 tpy.
For a new source, any combination of 5 tpy.
HAPs.
For a new source, any single or any 300 lbs per year.
combination of ultrahazardous air
pollutants.
For a modification, an increase of any 25 tpy.
single criteria pollutant (that does
not make the source a major source).
For a modification, any single new HAP 3 tpy.
or increase in a HAP already emitted
by the source.
For a modification, an increase in any 5 tpy.
combination of HAPs already emitted by
the source.
------------------------------------------------------------------------
Each non-title V permit is issued for a five-year term and must
include, among other things: (1) Enforceable emissions limitations or
source- or unit-specific requirements that assure maintenance of the
Tribe's adopted ambient air quality standards, protection of public
health, compliance with all applicable control standards, such as BRDT,
NSPSs, NESHAPs, and other requirements of the CAA \24\; (2) monitoring,
testing, reporting, and recordkeeping requirements adequate to evaluate
the source's compliance; (3) a requirement that any revision of an
emission limitation, monitoring, testing, reporting, or recordkeeping
requirement be made in accordance with the permit revision procedures
for non-title V sources at Part II, Section 5.0 of the AQMP; (4) a
requirement to allow the GRIC DEQ or EPA representatives to enter and
inspect the premises at reasonable times; (5) a requirement to submit
an annual compliance certification, and (6) a requirement to submit an
annual emissions report. Part II, Section 4.4.A. A non-title V permit
authorizes both construction and operation of the minor source or
modification.
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\23\ Part II, Sections 4.2.A(2), 4.2.A(3)(c), 4.2.B.
\24\ Generally, a source that is subject to an NSPS under
section 111 or a NESHAP under section 112 of the CAA will be subject
to title V permitting requirements and, therefore, not subject to
GRIC's non-title V permit program. EPA has, however, exempted
certain NESHAP area sources by rule from title V permitting
requirements. In those limited cases where a NESHAP area source is
exempt from title V, such source may be required to obtain a GRIC
non-title V permit that identifies the applicable NESHAP, among
other requirements.
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The permit program establishes administrative procedures for the
GRIC DEQ action on permit applications, including public notice and a
comment period of at least 30 days on all proposed new permits, permit
renewals, and significant permit revisions.\25\ AQMP Part II, section
4.6.A. The program also provides for public hearings on such permit
applications upon written request. The issuance or denial of a non-
title V permit may be appealed administratively to the GRIC DEQ and,
thereafter, judicially to the GRIC Tribal Court. See discussion below
at section IV.C.4, ``Administrative Appeals and Judicial Review.''
Finally, the permit program contains stack height procedures consistent
with the requirements of 40 CFR 51.164; continuous source emissions
monitoring requirements generally consistent with the provisions of 40
CFR part 51, appendix P; requirements for 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.
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\25\ A significant permit revision is, among other things, any
change to a non-title V permit that will result in an increase in
the source's potential to emit a regulated pollutant of more than
either 25 tons per year or certain ``significant'' levels in Section
1.0 of Part II, whichever is less. AQMP Part II, Section 5.5.a(3).
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We propose to approve these procedures as legally enforceable
procedures that establish a base program suitable to the GRIC's
reservation and that satisfy the minimum requirements of CAA section
110(a)(2)(C) and 40 CFR 51.160 through 51.164.
3. Enforcement
Part III of the AQMP contains requirements and procedures for civil
and criminal enforcement against persons who violate AQMP provisions.
Section 1.0 of Part III authorizes the Director to take several
kinds of civil enforcement actions against persons who violate AQMP
requirements. First, if the Director has reasonable cause to believe
that a person has violated or is violating a provision of the AQMP or
any requirement of a permit 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.
[[Page 48889]]
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
dust-generating activities.
Section 1.0 (Open Burning) limits the types of materials that can
be openly burned within the GRIC reservation and requires permits for
open burning of specified materials. Three 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)
[[Page 48890]]
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 non-complying solvents.\26\ If these VOC
limits are exceeded, the rule requires application of specific control
methods that achieve at least 85 percent overall control efficiency or
compliance with certain operating standards. Owners or operators who
choose to use an emissions control system (ECS) to reduce VOC emissions
must provide to the GRIC DEQ for approval an Operation and Maintenance
Plan (O&M Plan), together with the initial application for an operating
permit.
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\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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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.
[[Page 48891]]
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,
well-defined requirements that meet EPA's enforceability requirements
under CAA section 110(a)(2)(A). As described above, the rules contain
test methods and monitoring, recordkeeping, and reporting requirements
adequate to determine compliance; clearly identify the activities that
are subject and those that are exempt from rule requirements; and do
not allow for variations from the rules other than those specified in
limited exemptions. EPA is proposing to approve these rules as elements
of a base TIP suitable to the GRIC's reservation and 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\
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\27\ Section 1.0 incorporates by reference 40 CFR part 63,
subpart RRR, as effective July 1, 2006. Part VII, Section 1.0,
subsection 1.0. Subpart RRR contains emission limits for dioxins,
furans and other hazardous air pollutants that may be formed during
the smelting of aluminum scrap. Subpart RRR also contains testing,
monitoring, recordkeeping, reporting, and labelling requirements to
ensure compliance with the limits and standards.
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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 subject facility may comply with the rule by
installing and operating an approved ECS, provided the owner/operator
can demonstrate to the GRIC DEQ that the control system will achieve a
combined VOC emission capture and control efficiency of at least 81% by
weight. The rule establishes techniques for the application of primers
and topcoats, as well as operational standards for hand-wipe cleaning,
solvent cleaning, and housekeeping. The rule also establishes detailed
recordkeeping and reporting requirements and identifies specific
methods for determining compliance. Certain specified activities are
exempt from the rule--e.g., research and development operations,
chemical milling (except for application of chemical milling maskants),
electronic parts and assemblies (except for cleaning and topcoating of
completed assemblies), and wastewater treatment operations.
Section 3.0 (Nonmetallic Mineral Mining and Processing) regulates
VOC emissions from cutback asphalt operations and particulate matter
(PM-10) emissions from sand and gravel facilities. Specifically, the
rule applies to any commercial and/or industrial nonmetallic mineral
mining or rock product plant, concrete batch plant, hot mix asphalt
plant, or vermiculite and/or perlite processing plant.
First, the rule establishes several general prohibitions, including
a prohibition on the sale, offer for sale, use, or application of the
following materials at facilities covered by the rule: (1) Rapid cure
cutback asphalt, (2) any cutback asphalt material, road oils, or tar
that contains more than 0.5 percent by volume VOCs that evaporate at
500 degrees Fahrenheit or less, or (3) any emulsified asphalt or
emulsified tar containing more than 3.0 percent by volume VOCs that
evaporate at 500 degrees Fahrenheit or less.
Second, the rule establishes specific limitations on visible
emissions and emissions of PM-10 from nonmetallic mineral processing
plants, concrete batch plants, hot mix asphalt plants, and vermiculate
and perlite processing facilities. Any person subject to the rule must
install and operate a wet dust suppression system or other control
method approved by the GRIC DEQ to minimize fugitive dust emissions
from any material handling system, conveyance system transfer point,
screening operation or crusher without a capture and collection system,
and nonmetallic mineral loading/unloading operation, unless the
materials have sufficient moisture content to prevent
[[Page 48892]]
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,
well-defined requirements that meet EPA's enforceability requirements
under CAA section 110(a)(2)(A). As described above, the rules contain
test methods and monitoring, recordkeeping, and reporting requirements
adequate to determine compliance; clearly identify the activities that
are subject and those that are exempt from rule requirements; and do
not allow for variations from the rules other than those specified in
the limited exemptions. EPA is proposing to approve these rules as
elements of a base TIP suitable to the GRIC's reservation and
regulatory capacities. Our TSD contains more information about each of
these rules and suggestions for rule improvement that do not affect our
proposed action.
D. What other information has the GRIC submitted to support the TIP?
1. Emissions Inventory
An emissions inventory is a quantitative list of the amounts and
types of pollutants that are entering the air from the pollution
sources in a given jurisdiction. The inventory may be comprehensive,
looking at all pollutants, or focused on only selected pollutants of
concern. The fundamental elements in an emissions inventory are the
characteristics and locations of the air emissions sources, and the
amounts and types of pollutants emitted. Periodic inventories are used
to track changes in emissions over time, estimate the effectiveness of
emission reduction strategies, and track the progress of air
quality.\28\
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\28\ See ``Developing a Tribal Implementation Plan,'' Office of
Air Quality Planning and Standards, US EPA, October 2002 (EPA 452/R-
02-010), http://www.epa.gov/air/tribal/tip2002/index.html, at
Chapter 3.
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The GRIC DEQ has chosen an annual emission inventory as its
approach to identifying the pollutants emitted and the pollution
sources in its jurisdiction. The most recent emissions inventory that
the GRIC DEQ submitted to EPA uses a baseline year of 2007 and provides
estimates of the VOC, nitrogen oxides (NOX), carbon monoxide
(CO), sulfur oxides (SOX) and PM10 emissions from
point sources, area sources, and mobile sources within the GRIC
reservation. See Letter dated June 22, 2009, from Margaret Cook,
Executive Director, GRIC DEQ, to Laura Yoshii, Acting Regional
Administrator, EPA Region 9, ``Re: Technical Corrections to the GRIC
Air Quality Management Plan,'' enclosure entitled ``2007 Emissions
Inventory Update for the Gila River Indian Community.'' We find that
the method used by the GRIC DEQ to produce the emissions inventory is
acceptable, and that the inventory is comprehensive, accurate, and
current. Table 3 provides a summary of the GRIC emissions inventory.
Table 3--Summary of Emissions (by Pollutant) From Air Pollutant Emission Sources on the GRIC Reservation, 2007
[Tons/year] \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollutant> To determine highest concentrations expected to occur in
the area covered by the network;
To determine representative concentrations in areas of
high population density;
To determine the impact on ambient pollution levels of
significant sources or source categories; and
To determine general background pollution concentration
levels.
EPA's ambient air monitoring regulations in 40 CFR part 58
establish minimum quality assurance requirements and monitor network
design criteria. Effective December 18, 2006, these regulations require
that monitoring organizations submit to EPA, beginning July 1, 2007, an
annual monitoring plan that explains how the siting and operation of
each monitor in the network meets the quality assurance requirements of
40 CFR part 58, among other things. 40 CFR 58.10. Although Indian
Tribes are generally not required to monitor ambient air, Tribes may
choose to do so and, in some cases, may be required by EPA to institute
quality assurance programs that comply with 40 CFR part 58 appendix A
and to insure that the monitoring data they collect is representative
of their respective airsheds. 71 FR 61236 at 61242 (October 17, 2006)
(final rule: revisions to ambient air monitoring regulations).
The GRIC submitted its first annual monitoring network plan
pursuant to the requirements of 40 CFR 58.10 on
[[Page 48893]]
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.
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\29\ On September 12, 2006, the GRIC submitted a Quality
Assurance Project Plan (QAPP) for its ambient air monitoring
program. EPA approved the QAPP for collection of environmental data
on April 13, 2007. See letter dated April 13, 2007, from Eugenia
McNaughton and Sean Hogan, US EPA Region 9, to Leroy Williams, GRIC
DEQ.
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The GRIC's ozone monitoring network is comprised of two State and
Local Air Monitoring Station (SLAMS) monitors in the reservation. See
2006 Annual Network Plan at 7. One of these monitors is located at the
GRIC DEQ building in Sacaton, Arizona, about 40 miles southeast of
Phoenix. The other SLAMS monitor in the ozone monitoring network is at
St. Johns-Gila Crossing North Middle School. Both monitors are
regional/rural scale monitors designed to monitor population exposure
and are long-term trends sites that operate on a seasonal schedule,
from April through October. The areas surrounding both monitors are a
mixture of residential areas and businesses. Id. at 7-9.
The GRIC's PM10 monitoring network consists of one SLAMS
monitoring site located at the Casa Blanca-Va Ki Elementary School. See
2006 Annual Network Plan at 9. This monitor is designed to measure
neighborhood and regional-scale air pollutant concentrations and
operates on a one-in-three-day sampling schedule. The area surrounding
the monitor is a mixture of residential areas, businesses, and
agricultural operations. The GRIC also operates several PM10
Special Purpose Monitor (SPM) stations throughout the reservation and
anticipates adding three continuous PM10 SLAMS monitors to
its PM10 monitoring network, at the Casa Blanca, St. Johns,
and Sacaton sites. Id. at 4, 9-11.
The air quality data collected by the GRIC DEQ are used for a
variety of purposes including: determining compliance with the NAAQS,
determining the location of maximum pollutant concentrations,
determining the effectiveness of air pollution control programs,
evaluating the effects of air pollution on public health, supporting
dispersion models, developing cost-effective pollution control
strategies, and determining air quality trends. See 2006 Annual Network
Plan at 1. The GRIC regularly submits its data to EPA's Air Quality
System (AQS) database.
The GRIC Air Program also monitored for PM2.5 in two
locations in the reservation between 2002 and 2004. On September 21,
2004, EPA Region 9 concurred with the GRIC DEQ's request to discontinue
operation of the PM2.5 monitors based on the low
concentrations of recorded PM2.5 data and a determination
that PM2.5 monitoring in the reservation is not required by
EPA regulations. See letter dated September 21, 2004, from Robert S.
Pallarino, EPA Region 9, to Leroy Williams, GRIC DEQ.
The air quality monitoring network is not part of the TIP but
supports the GRIC's ongoing evaluations of air pollution within the
reservation and efforts to further develop its regulatory programs to
address the Tribe's air quality needs.
V. Proposed Action
Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is proposing
to fully approve the TIP submitted by the GRIC DEQ on February 21,
2007, as supplemented on July 11, 2007, June 22, 2009, and July 17,
2010. The TIP includes general and emergency authorities, ambient air
quality standards, permitting requirements for minor source of air
pollution, enforcement authorities, procedures for administrative
appeals and judicial review in Tribal court, requirements for area
sources of fugitive dust and fugitive particulate matter, general
prohibitory rules, and source category-specific emission limitations
and standards. These provisions establish a base TIP that is suitable
for the GRIC's reservation and regulatory capacities and that meets all
applicable minimum requirements of the CAA and EPA regulations.
We are proposing to act only on those portions of the GRIC AQMP
that constitute a TIP containing severable elements of an
implementation plan under section 110(a) of the CAA, as discussed in
this notice. We are not proposing today to act on those elements of the
GRIC AQMP that address requirements of CAA title V or any other program
under the Act. We intend to take separate action on other CAA programs
submitted by the GRIC DEQ, as appropriate.
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
[[Page 48894]]
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.
[FR Doc. 2010-19926 Filed 8-11-10; 8:45 am]
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