2011-7110. Approval and Promulgation of Gila River Indian Community's Tribal Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Air Planning Office, Environmental Protection Agency, Region 9 Office, 75 Hawthorne Street, San Francisco, CA 94105-3901, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we”, “us”, and “our” refer to EPA.

Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 2011. Under CAA section 307(d)(7)(b), only an objection to this final action that was raised with reasonable specificity during the public comment period can be raised during judicial review. This section also authorizes the convening of a proceeding for reconsideration in specified circumstances. Filing a petition requesting that the Administrator reconsider this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

I. Summary of the Proposed Action

The GRIC reservation is located in south-central Arizona, adjacent to the Phoenix Metropolitan Area, in Pinal and Maricopa Counties. On August 12, 2010 (75 FR 48880), EPA proposed to approve a TIP submitted by the GRIC on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in the proposal. The TIP includes general and emergency authorities, ambient air quality standards, permitting requirements for minor sources of air pollution, enforcement authorities, procedures for administrative appeals and judicial review in Tribal court, requirements for area sources of fugitive dust and fugitive particulate matter, general prohibitory rules, and source category-specific emission limitations and standards.

The TIP is one of four regulatory programs that comprise the GRIC's Air Quality Management Plan (AQMP).^[1] We proposed to approve only those portions of the GRIC AQMP that constitute a TIP containing severable elements of an implementation plan under section 110 of the CAA, as discussed in this notice and in our August 12, 2010 proposal. These severable plan elements establish a base TIP that is suitable for the GRIC's reservation and regulatory capacities and that meets all applicable minimum requirements of the CAA, the Tribal Authority Rule in 40 CFR part 49 (TAR), and other applicable CAA regulations.

For a more detailed description of the TIP, our evaluation of the TIP and supplemental information, and our rationale for our proposed action, please see the August 12, 2010 proposed rule and related Technical Support Document, both of which can be found in the docket for today's action.

II. EPA's Response to Comments

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

III. Final Action

Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is fully approving the TIP submitted by the GRIC DEQ on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in our August 12, 2010 proposal (75 FR 48880). For the reasons set forth in this document and in the August 12, 2010 proposed rule, we conclude that the TIP meets the applicable requirements of CAA section 110, EPA's implementing regulations, CAA section 301(d) and the TAR in 40 CFR part 49. The TIP includes the following severable elements of an implementation plan under section 110 of the CAA:

• General authorities that satisfy the requirement in CAA section 110(a)(2)(J) to meet applicable requirements of CAA section 121 (relating to consultation) and section 127 (relating to public notification), and that also satisfy the requirement in CAA section 110(a)(2)(M) to provide for consultation and participation by local political subdivisions affected by the plan;
• Emergency powers that satisfy the requirement in CAA section 110(a)(2)(G) to provide for authority comparable to the emergency powers in section 303 of the Act;
• Procedural requirements for preparation, adoption, submission to EPA, and revision of the TIP that satisfy the applicable requirements of CAA section 110(a)(2) and 40 CFR part 51, subpart F;
• Air quality standards and measurement methods that are consistent with the National Ambient Air Quality Standards in 40 CFR 50.4 through 50.8 and 50.10 through 50.12, as effective in October 2006;
• Legally enforceable procedures to regulate the construction, modification, and operation of “non-title V sources” (“minor sources”) that establish a base program suitable to the GRIC's reservation and that satisfy the minimum requirements of CAA section 110(a)(2)(C) and 40 CFR 51.160 through 51.164;
• Requirements and procedures for enforcement consistent with CAA section 110(a)(2)(C) that provide necessary assurances that the Tribe will have adequate authority under Tribal law to carry out the TIP, as required by CAA section 110(a)(2)(E)(i);
• Requirements and procedures for administrative appeals, final administrative decisions, and judicial review of final administrative decisions that establish adequate procedures for review of the Director's decisions under the TIP and that satisfy the applicable requirements of CAA sections 110(a)(2)(C) and 110(a)(2)(E)(i); and
• Area source emission limits, general prohibitory rules, and source category-specific emission limitations that satisfy EPA's enforceability requirements under CAA section 110(a)(2)(A).

EPA is approving these provisions as elements of a base TIP under CAA section 110 that is suitable to the GRIC's reservation and regulatory capacities. We are not acting today on those elements of the GRIC AQMP that address requirements of CAA title V or any other program under the Act. We intend to take separate action on other CAA programs submitted by the GRIC DEQ, as appropriate.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action approves laws of an eligible Indian tribe as meeting Federal requirements and imposes no additional requirements beyond those imposed by Tribal law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because this rule approves pre-existing requirements under Tribal law and does not impose any additional enforceable duty beyond that required by Tribal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” EPA has concluded that this rule will have tribal implications in that it will have substantial direct effects on the GRIC. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. EPA is approving the GRIC's TIP at the request of the Tribe. Tribal law will not be preempted as the GRIC has already incorporated the TIP into Tribal Law on December 13, 2006. The Tribe has applied for, and fully supports, the approval of the TIP. This approval makes the TIP federally enforceable.

EPA worked and consulted with officials of the GRIC early in the process of developing these regulations to permit them to have meaningful and timely input into their development. In order to administer an approved TIP, tribes must be determined eligible (40 CFR part 49) for Treatment as State (TAS) for the purpose of administering a TIP. During the TAS eligibility process, the Tribe and EPA worked together to ensure that the appropriate information was submitted to EPA. GRIC and EPA also worked together throughout the process of development and Tribal adoption of the TIP. The Tribe and EPA also entered into a criminal enforcement MOA.

This action does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action approves Tribal rules implementing a TIP over areas within the exterior boundaries of the Gila River Indian Community's reservation, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing TIP submissions, EPA's role is to approve an eligible tribe's submission, provided that it meets the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the tribe to use voluntary consensus standards (VCS), EPA has no authority to disapprove a TIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a TIP submission, to use VCS in place of a TIP provision that otherwise satisfies the requirements of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 49

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

Dated: January 19, 2011.

Jared Blumenfeld,

Regional Administrator, Region IX.

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

PART 49—[AMENDED]

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

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

Subpart L—Implementation Plans for Tribes—Region IX

2. Subpart L of part 49 is amended by adding an undesignated center heading and § 49.5511 to read as follows:

Implementation Plan for the Gila River Indian Community

§ 49.5511

Identification of plan.

(a) Purpose and scope. This section contains the approved implementation plan for the Gila River Indian Community dated August 2008. The plan consists of programs and procedures that cover general and emergency authorities, ambient air quality standards, permitting requirements for minor sources of air pollution, enforcement authorities, procedures for administrative appeals and judicial review in Tribal court, requirements for area sources of fugitive dust and fugitive particulate matter, general prohibitory rules, and source category-specific emission limitations and standards.

(b) Incorporation by reference.

(1) Material listed in paragraph (c) of this section was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register.

(2) EPA Region IX certifies that the rules/regulations provided by EPA in the TIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated tribal rules/regulations which have been approved as part of the Tribal Implementation Plan as of January 19, 2011.

(3) Copies of the materials incorporated by reference may be inspected at the Region IX Office of EPA at 75 Hawthorne Street, San Francisco, CA 94105-3901 or call 415-947-4192; the U.S. Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket and Information Center, MC 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or call 202-566-1742; and the National Archives and Records Administration. For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

(c) EPA-approved regulations.

EPA-Approved Gila River Indian Community Tribal Regulations

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

(d) Nonregulatory.

Name of nonregulatory TIP provision	Tribal submittal date	EPA approval date	Explanations
Gila River Indian Community, Tribal Implementation Plan, Introductory Materials	June 22, 2009	3/28/11 [INSERT FEDERAL REGISTER PAGE NUMBER WHERE THE DOCUMENT BEGINS]
Technical Amendments to Part II of the 2006 Air Quality Management Program Plan, Title 17 Chapter 9 of the Gila River Indian Community Law and Order Code	June 22, 2009	3/28/11 [INSERT FEDERAL REGISTER PAGE NUMBER WHERE THE DOCUMENT BEGINS]	Minor NSR program support documents.
Minor New Source Review Demonstration	June 22, 2009	3/28/11 [INSERT FEDERAL REGISTER PAGE NUMBER WHERE THE DOCUMENT BEGINS]	Minor NSR program support documents.
Letter from Margaret Cook, Executive Director, GRIC DEQ, to Deborah Jordan, Air Division Director, EPA Region 9, Re: Gila River Indian Community Tribal Implementation Plan	July 17, 2010	3/28/11 [INSERT FEDERAL REGISTER PAGE NUMBER WHERE THE DOCUMENT BEGINS]	Letter discussing intent of citizen suit provisions in Part III.

Footnotes

1.  The other three AQMP programs implement the New Source Performance Standards (NSPS) under CAA 111; the National Emission Standards for Hazardous Air Pollutants (NESHAP) under CAA 112; and title V operating permit requirements. We are not acting today on these other elements of the GRIC AQMP.