[Federal Register Volume 72, Number 172 (Thursday, September 6, 2007)]
[Proposed Rules]
[Pages 51204-51208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17535]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R01-OAR-2005-TR-0001; A-1-FRL-8463-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Mohegan Tribe of Indians of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a Tribal Implementation Plan 
submitted by the Mohegan Tribe of Indians of Connecticut. The TIP 
establishes an enforceable cap on nitrogen oxide emissions from 
stationary sources owned by the Mohegan Tribal Gaming Authority and 
located within the external boundaries of the Mohegan Reservation. This 
action is intended to help attain the National Ambient Air Quality 
Standards (NAAQS) for ground-level ozone. This action is being taken in 
accordance with the Clean Air Act.

DATES: Written comments must be received on or before October 9, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2005-TR-0001 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0653.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2005-TR-0001'', 
Dan Brown, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (mail code CAP), 
Boston, MA 02114-2023.
    5. Hand Delivery or Courier: Deliver your comments to: Dan Brown,

[[Page 51205]]

Manager, Air Permits, Toxics and Indoor Air Unit, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, 11th floor, (CAP), Boston, MA 
02114-2023 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, 8:30 to 4:30, excluding 
legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2005-TR-0001. 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 through http://www.regulations.gov, or e-mail, information that you consider to be 
CBI or otherwise protected. The http://www.regulations.gov Web site is 
an ``anonymous access'' systems, 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 
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.
    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 Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100, Boston, MA. EPA requests that if at 
all possible, you contact the contact 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 legal holidays.
    In addition to the publicly available docket materials available 
for inspection electronically in the Federal Docket Management System 
at http://www.regulations.gov, and the hard copy available at the 
Regional Office, which are identified in the ADDRESSES section of this 
Federal Register, copies of the Tribe's submittal and EPA's technical 
support document are also available for public inspection during normal 
business hours, by appointment at the Mohegan Tribe, Mohegan 
Environmental Protection Department, 49 Sandy Desert Road, Uncasville, 
CT 06382, telephone number (860) 862-6112.

FOR FURTHER INFORMATION CONTACT: Ida E. McDonnell, Air Permits, Toxics 
and Indoor Air Unit, Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, One Congress 
Street, 11th floor, (CAP), Boston, MA 02114-2023, telephone number 
(617) 918-1653, fax number (617) 918-0653, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Organization of this document. 
The following outline is provided to aid in locating information in 
this preamble.

I. Background to This Rulemaking
II. CAA Requirements and the Role of the Tribes
    1. How did the 1990 CAA Amendments include the tribes?
    2. What criteria must a tribe demonstrate to be treated in the 
same manner as a state under the CAA?
    3. What is an implementation plan for criteria air pollutants 
and what must it contain?
III. Analysis of the Mohegan TIP
    1. Are the Mohegans eligible to run their CAA air program?
    2. Does the Mohegan TIP meet all CAA requirements?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background to This Rulemaking

    On May 4, 2005, the Mohegan Tribe of Indians of Connecticut (the 
Tribe) submitted a Tribal Implementation Plan (Mohegan TIP) for 
approval by the EPA under the Clean Air Act (CAA). The Mohegan TIP 
consists of a tribal ordinance, entitled ``Area Wide NOX 
Emissions Limitation Regulation,'' that establishes a limit on nitrogen 
oxide (NOX) emissions from stationary sources owned by the 
Mohegan Tribal Gaming Authority and located within the external 
boundaries of the Mohegan Reservation. On August 22, 2007, the Tribe 
submitted an amendment to the Mohegan TIP.

II. CAA Requirements and the Role of the Tribes

1. How did the 1990 CAA Amendments include the tribes?

    Under the 1990 Amendments to the Clean Air Act (CAA), the EPA may 
approve eligible tribes to administer certain provisions of the CAA. 
Pursuant to Section 301(d)(2) of the CAA, EPA promulgated the Tribal 
Authority Rule (TAR) on February 12, 1998 (63 FR 7254). The TAR 
specifies the CAA provisions for which it is appropriate to treat 
tribes in the same manner as states, the eligibility criteria the 
tribes must meet if they choose to seek such treatment, and the 
procedure by which EPA reviews a tribe's request for an eligibility 
determination.
    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 plan submittal and implementation deadlines for NAAQS-
related requirements. 40 CFR 49.4. Thus, tribes are generally not 
subject to CAA provisions which specify a deadline by which something 
must be accomplished. So, for example, provisions mandating the 
submission of state implementation plans do not apply to the tribes. 
Furthermore, under the TAR (40 CFR 49.7(c)), a tribe may choose to 
implement reasonably severable portions of the various CAA programs, as 
long as it can demonstrate that its proposed air program is not 
integrally related to program elements that are not included in the 
plan submittal and is consistent with applicable statutory and 
regulatory requirements. So, for example, a tribe may choose to submit 
a TIP that uses a limited set of methods to control just one or two air 
pollutants. This modular approach is intended to give tribes the 
flexibility to address their most pressing air resource 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 49.8(h).

[[Page 51206]]

EPA expects tribes to fully implement and enforce their approved 
programs and, as with states, EPA retains its discretionary authority 
to impose sanctions for failure to implement an air program.
    Where the provisions of the act or implementing regulations 
governing the program for which the tribe seeks approval require 
criminal enforcement authority, the tribe may enter into a memorandum 
of agreement with the appropriate EPA Region to provide for criminal 
enforcement by EPA. 40 CFR 49.7(a)(6), 49.8.

2. What criteria must a tribe demonstrate to be treated in the same 
manner as a state under the CAA?

    Under Section 301(d) of the Clean Air Act, 42 U.S.C. 7601, and the 
TAR (at 40 CFR 49.6), 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 federally recognized; (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 tribe's 
reservation or within non-reservation 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.

3. What is an implementation plan for criteria air pollutants and what 
must it contain?

    Implementation plans are a set of programs and regulations 
submitted by states and, if they so choose, by tribes, that outline a 
definite plan by which the state or tribe intends to help attain or 
maintain NAAQS. NAAQS have been established for the following six 
pollutants: Ozone; carbon monoxide; particulate matter; sulfur dioxide; 
lead; and nitrogen dioxide. The EPA calls these pollutants ``criteria 
pollutants'' because the original standards were based on information 
in air quality criteria documents developed for pollutants that 
``endanger the public health or welfare''. Once approved by EPA, 
implementation plans become enforceable as a matter of federal law.
    Implementation plans are governed by Section 110 of the CAA, 42 
U.S.C. 7410. Under Sections 110(o) and 301(d) of the CAA and the TAR 
(40 CFR 49.9(h)), any TIP submitted to EPA shall be reviewed in 
accordance with the provisions for review of state implementation plans 
(SIPs) set forth in CAA Section 110. Thus, the TIP must include not 
only the substantive rules by which the tribe proposes to help achieve 
NAAQS, but also provide assurances that the tribe will have adequate 
personnel, funding, and authority to administer the plan, as required 
by CAA Section 110(a)(2)(E), and requirements governing conflicts of 
interest, as required by CAA Section 128.\1\ Under Section 128, 
implementation plans must contain requirements that (1) any ``board or 
body'' that approves permits or enforcement orders have at least a 
majority of members who represent the public interest and do not derive 
any significant portion of their income from persons subject to the 
permits or orders and (2) conflicts of interest are disclosed. EPA does 
not intend to read Section 128 to limit a tribe's flexibility in 
creating a regulatory infrastructure that ensures an adequate 
separation between the regulator and the regulated entity (59 FR 43956, 
43964 (Aug. 25, 1994)).
    EPA will evaluate the elements submitted in each TIP on a case-by-
case basis to ensure the selected program is reasonably severable under 
the CAA, and that the TIP has control measures that adequately address 
the specific types of pollution of concern on the reservation. Once EPA 
approves the TIP, its provisions are enforceable by the tribe, by EPA, 
and by citizens. As with SIPs, EPA maintains an ongoing oversight role 
to ensure the approved TIP is adequately implemented and enforced and 
to provide technical and policy assistance. An important aspect of 
EPA's oversight role is that EPA retains legal authority to bring an 
enforcement action against a source violating the approved TIP.

III. Analysis of the Mohegan TIP

1. Are the Mohegans eligible to run their CAA air program?

    On December 29, 2006, EPA determined that the Mohegan Tribe of 
Indians of Connecticut has demonstrated that it is eligible to be 
treated in the same manner as a state for the limited purpose of 
administering the Mohegan TIP and other similar programs to regulate 
minor sources of air pollution under Section 110 of the Act (42 U.S.C. 
7410) within the Mohegan Reservation, as those boundaries existed on 
May 4, 2005 and as described in the revision to the Tribe's eligibility 
application submitted August 16, 2006. EPA's analysis of the Tribe's 
eligibility and its final determination of the Tribe's jurisdictional 
assertion under the TAR may be found in the electronic docket for this 
action.

2. Does the Mohegan TIP meet all CAA requirements?

    As described below, we are satisfied that the Mohegan TIP 
adequately addresses the requirements of CAA Section 110(a)(2)(C). 
Under CAA Section 110(k), EPA determined the Mohegan TIP was complete 
on July 6, 2005, using the completeness criteria set forth in Appendix 
V of 40 CFR Part 51. As part of this completeness determination, we 
noted that the application included a description of how the Tribe 
intends to implement the TIP and provided evidence that the Area Wide 
NOX Emissions Limitation Regulation (NOX 
Regulation) and other necessary tribal laws were properly adopted. In 
accordance with CAA Section 110(a), the Tribe issued a public notice 
soliciting comments on its proposed TIP on February 25, 2005, held a 
public hearing on March 28, 2005 at the Mohegan Reservation in 
Uncasville, CT, and closed the public comment period on March 30, 2005 
with no comments received. On August 22, 2007, the Tribe submitted an 
amendment to the NOX Regulation described below.
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    \1\ See Section 110(a)(2)(E) of the Act, 42 U.S.C. 
7410(a)(2)(E), which requires all implementation plans to contain 
the requirements described in Section 128 of the Act, 42 U.S.C. 
7428. Tribal implementation plans must comply with Section 128, as 
neither Section 110(a)(2)(E) nor Section 128 of the Act are listed 
in the TAR as provisions that are inapplicable to tribes seeking TIP 
approval under the Act. See 40 CFR 49.4. EPA explicitly contemplated 
the applicability of Section 128 in the preamble to the proposed 
TAR. See 59 FR 43956, 43964 (Aug. 25, 1994).
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    Stationary sources owned by the Mohegan Tribal Gaming Authority 
have the potential to emit \2\ NOX in major source amounts, 
but have actual emissions that are below the major source thresholds. 
The primary objective for this rulemaking is to create a mechanism by 
which the emission limit for stationary sources owned by the Mohegan 
Tribal Gaming Authority located within the exterior boundaries of the 
Mohegan Reservation is enforceable as a practical matter. The Mohegan 
TIP is the equivalent of a permit that keeps the sources in ``synthetic 
minor'' status and ensures that the source is legally prohibited from 
operating as a major source. In other words, even though units owned by 
the Mohegan Tribal Gaming Authority have the potential to emit 
NOX in major source amounts, they will be considered minor 
sources and will avoid triggering CAA major source requirements because 
the units

[[Page 51207]]

collectively will be subject to an enforceable emissions limitation. 
Actual NOX emissions from these units have never approached 
the major source thresholds. When the Tribe first submitted the 
NOX Regulation, the cap on NOX emissions in 
effect under the regulation was 99 tons per year (TPY). The Tribe 
subsequently amended the NOX Regulation to lower that cap to 
49 TPY, because the Tribe has chosen to enforce a limit below the 
threshold for major sources of NOX applicable in the Greater 
Connecticut air quality planning area outside of and surrounding the 
Tribe's reservation. In accordance with CAA Section 110(a)(2)(B), the 
NOX ordinance also contains monitoring, recordkeeping, 
reporting, and testing requirements as needed to assure compliance with 
the synthetic minor limit.
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    \2\ Potential to emit means the maximum capacity of a stationary 
source to emit any air pollutant under its physical and operational 
design.
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    The Mohegan TIP will be administered primarily by the Mohegan 
Environmental Protection Department and enforced via the Gaming 
Disputes Court, a tribal court with exclusive jurisdiction over 
disputes arising out of or in connection with any action of the Mohegan 
Tribal Gaming Authority. Under the NOX Regulation, the 
Administrator of the Mohegan Environmental Protection Department may 
issue a citation requiring an individual to appear before the Gaming 
Disputes Court for a judicial hearing on an alleged violation of the 
NOX Regulation or, in emergencies, petition the Court for a 
cease and desist order. After hearing, the Gaming Disputes Court may 
issue final orders imposing injunctive relief and/or civil penalties of 
up to $25,000 per violation per day. In addition, the Mohegan Tribe of 
Indians of Connecticut and the U.S. Environmental Protection Agency 
have entered into a Memorandum of Agreement by which, for the purposes 
of criminal enforcement, the Tribe will provide potential investigative 
leads to EPA and/or other appropriate Federal agencies, as agreed to by 
the parties, in an appropriate and timely manner.
    As noted above, CAA Section 110(a)(2)(E) requires an implementation 
plan to ``provide * * * necessary assurances that the [applicant] * * * 
will have adequate personnel, funding, and authority under [tribal] law 
to carry out such implementation plan.'' The Tribal Application 
contains such assurances and cites a provision of the MEPD Ordinance 
requiring the Tribal Council to ``provide such funding to the 
Department that will ensure that the Department can, at a minimum, 
appropriately develop, implement, monitor, and enforce the Tribal 
Implementation Plan and any other environmental programs approved by 
the Tribal Council.''
    To demonstrate compliance with CAA Section 128, the Tribe 
submitted, as part of the Mohegan TIP, the Mohegan Tribal Ethics 
Ordinance. Under Section 4, Standard E of the Ethics Ordinance, 
``public officials,'' or persons holding elected or appointed office, 
are prohibited from having or subsequently acquiring any ``direct or 
indirect financial or other economic interests'' that are in conflict 
with interests of the Tribe. Under Standard F, if required to act on a 
matter in which the public official has a personal economic interest 
(e.g., the Tribe wishes to purchase a parcel of land in which the 
public official has an interest), the public official must disclose 
such interest and abstain from participating in the deliberation and 
decision making process.\3\ According to the Tribe, the Ethics 
Ordinance applies to the judges of the Gaming Disputes Court.
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    \3\ Section 5 of the Ethics Ordinance requires members of the 
Tribal Council and the Council of Elders and appointed public 
officials with fiscal responsibilities to file annual economic 
disclosure statements. An example disclosure statement is on file 
with EPA Region I. However, the Mohegan ``board or body'' at issue 
here is covered by neither category and, thus, not required to file 
such statements.
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    Given the structure of the NOX Regulation, the Ethics 
Ordinance need only apply to the judges of the Gaming Disputes Court 
and not to the MEPD Administrator. First, under the NOX 
Regulation, the MEPD Administrator is authorized only to issue a 
citation requiring an alleged violator to appear before the Court or to 
petition the Court for a cease and desist order. Enforcement orders for 
both civil penalties and injunctive relief are issued only by the 
Court. In other words, the Court is the ``board or body'' that 
ultimately ``approves * * * enforcement orders.'' Second, while the 
MEPD Administrator must approve emissions factors to be used in 
calculating NOX emissions, as well as any construction or 
modification of NOX sources, both of which resemble the 
grant of a permit, the NOX Regulation requires the 
Administrator to give approval whenever specified standards are met. 
Because this duty to approve is nondiscretionary, the MEPD 
Administrator need not be, and is not, subject to the Ethics Ordinance.

IV. Proposed Action

    EPA is proposing to approve the Mohegan TIP that was submitted on 
May 4, 2005, and amended on August 22, 2007 for limiting NOX 
emissions from stationary sources owned by the Mohegan Tribal Gaming 
Authority to 49 TPY. EPA is soliciting public comments on the issues 
discussed in this notice or on other relevant matters. These comments 
will be considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register.

V. 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 
merely approves tribal law 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).
    Since this rule simply approves pre-existing tribal law, it does 
not result in any direct costs or preemption of tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000). Nonetheless, 
EPA has consulted extensively with the Mohegan Tribe concerning this 
proposed TIP approval. 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), because it merely approves a tribal rule 
implementing a federal standard within the exterior boundaries of the 
Tribe's reservation, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This rule also is not subject to

[[Page 51208]]

Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks''(62 FR 19885, April 13, 1997), because 
it approves a tribal rule implementing a Federal standard.
    In reviewing TIP submissions, EPA's role is to approve tribal 
choices, provided that they meet 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 submission that otherwise 
satisfies the provisions 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 note) 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.)

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Indians, Intergovernmental relations, Reporting 
and recordkeeping requirements.

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

    Dated: August 27, 2007.
Robert W. Varney,
Regional Administrator, EPA New England.
 [FR Doc. E7-17535 Filed 9-5-07; 8:45 am]
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