[Federal Register Volume 85, Number 175 (Wednesday, September 9, 2020)]
[Proposed Rules]
[Pages 55628-55635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18397]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R01-OAR-2020-0374; FRL-10014-00-Region 1]
Approval and Promulgation of Air Quality Implementation Plan;
Mashantucket Pequot Tribal Nation
AGENCY: Environmental Protection Agency (EPA).
[[Page 55629]]
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve
the Mashantucket Pequot Tribal Nation's (MPTN 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 two CAA regulatory programs that comprise
the Tribe's Clean Air Program (CAP). EPA approved the Tribe for
treatment in the same manner as a State (Treatment as State or TAS) for
purposes of administering New Source Review (NSR) and Title V operating
permits under the CAA on July 10, 2008. In this action we propose to
act only on those portions of MPTN's CAP that constitute a TIP
containing severable elements of an implementation plan under CAA
section 110(a). The proposed TIP includes permitting requirements for
major and minor sources of air pollution. The purpose of the proposed
TIP is to enable the Tribe to attain and maintain the National Ambient
Air Quality Standards (NAAQS) within the exterior boundaries of its
reservation by establishing a federally enforceable preconstruction
permitting program.
DATES: Written comments must be received on or before October 9, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2020-0374 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional
Office, Air and Radiation Division, 5 Post Office Square--Suite 100,
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 a.m. to 4:30 p.m., excluding
legal holidays and facility closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Patrick Bird, Air Permits, Toxics and
Indoor Programs Branch, U.S. Environmental Protection Agency, Region 1,
5 Post Office Square, Mail Code: 05-2, Boston, MA 02109-0287.
Telephone: 617-918-1287. Fax: 617-918-0287. Email:
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. CAA Requirements and the Role of Indian Tribes
III. Evaluation of the MPTN's Implementation Authorities
IV. Evaluation of the MPTN's Tribal Implementation Plan
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. Background
EPA is proposing to approve a TIP submitted by the MPTN for
approval under section 110 of the CAA. The proposed TIP addresses
attainment and maintenance of the National Ambient Air Quality
Standards (NAAQS) by establishing a federally enforceable
preconstruction permitting program within the exterior boundaries of
the Tribe's reservation. It also allows for sources that otherwise
would have the potential to emit hazardous air pollutants or regulated
NSR pollutants in amounts at or above those for major sources to
request federally enforceable permit limitations that restrict
emissions to below those of a major source.
The MPTN is an Indian Tribe federally recognized in 1983 by
Congressional legislation (Pub. L. 98-134, 9, Oct. 1St, 1983 97 Stat
855, Title 25 U.S.C.A. Sec. 1751-1760). The Secretary of the Interior
recognizes the ``Mashantucket Pequot Tribe of Connecticut'' (73 FR
18553, 18554, April 4, 2008). MPTN's CAP was established by Tribal
Council Resolution in 2005 (TCR102600-01 of 02). Beginning in 2005, the
MPTN, with assistance from EPA, began developing a draft permitting
program with the goal of submitting it to EPA for approval under the
CAA. On May 4, 2005, the MPTN submitted a request that we find the
Tribe eligible for TAS pursuant to Sec. 301(d) of the CAA and Title
40, part 49 of the Code of Federal Regulations (CFR), for the purpose
of implementing its CAA permitting program.
Specifically, the MPTN requested a TAS eligibility determination
for purposes of implementing two CAA programs that together comprise
the CAP: (1) A Tribal Implementation Plan (TIP) that includes source-
specific rules \1\ and major and minor source permit programs under CAA
section 110; and (2) an operating permit program under title V of the
Act. In addition, the Tribe requested TAS for receiving notifications
under title V of the CAA and submitting recommendations to EPA on air
quality designations under CAA section 107(d). On July 10, 2008, EPA
determined that the Tribe is eligible for TAS for these purposes.
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\1\ The Tribe's actual TIP submittal did not include source-
specific rules, so that is not part of our action.
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The MPTN formally submitted the applicable elements of its TIP to
EPA Region 1 on December 7, 2018. Having found that the MPTN 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 in separate notice and comment
processes, as appropriate.
Approval and implementation of the MPTN TIP will be an important
step in ensuring that basic air quality protection is in place to
protect public health and welfare in the MPTN reservation, consistent
with the CAA's overarching goals of protecting air resources throughout
the nation, including air resources in Indian Country.
II. CAA Requirements and the Role of Indian Tribes
A. How did the 1990 CAA Amendments include Indian Tribes?
Under the 1990 amendments to the 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
[[Page 55630]]
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. See 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. 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 state submittal. See 40 CFR 49.9(h). 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. See 40 CFR 49.7(a)(6) and 49.8.
B. 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.
C. 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 must 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. 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. Evaluation of the MPTN's Implementation Authorities
A. How did the MPTN demonstrate eligibility to be treated in the same
manner as a State under the CAA?
By letter dated May 4, 2005 and submitted to EPA, the MPTN
requested an EPA determination that the Tribe is eligible for TAS for
the purposes of implementing two CAA programs: (1) A TIP that includes
source-specific \2\ rules and major and minor source permit programs
under CAA section 110; and (2) an operating permit program under title
V of the Act. In addition, the Tribe requested TAS for receiving
notifications under title V of the CAA and for submitting
recommendations to EPA on air quality designations under CAA section
107(d). EPA notified appropriate governmental entities and the public
of the Tribe's application and addressed all comments received as part
of that process.
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\2\ As noted earlier, the Tribe's actual TIP submittal did not
include source-specific rules.
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On July 10, 2008, 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 MPTN met the
eligibility requirements of CAA section 301(d) and 40 CFR 49.6 for
these purposes under the CAA. This determination nullified TCR011195-01
of 03 authorizing interim measures until the Tribe could establish TAS.
TCR102500-01 of 02 enacted the MPTN's Clean Air Act creating a Tribal
Air Quality Program to administer the CAA, and TCR 102600-02 of 02
approved a TIP that addressed a single pollutant of concern, nitrogen
oxides (NOX). TCR091605-01 repealed TCR102600-02 of 02 and
approved a TIP to address all criteria pollutants through a minor
source preconstruction permitting program. TCR060806-06 of 14 adopted a
``Global Policy for Air Permitting'' that specified the use of best
available control technology
[[Page 55631]]
(BACT) for sources of air pollution. TCR100809-02 of 02 approved EPA
grant funding for the purpose of further developing the TIP to include
both minor and major sources of air pollution.
The EPA drafted a decision document entitled ``Mashantucket Pequot
Tribal Nation of Connecticut: Eligibility Determination under 40 CFR
part 49 for Clean Air Act Minor and Major New Source Review and Title V
Operating Permit Programs'' (TAS Decision Document, included in the
docket of this rulemaking), which was dated June 30, 2008, and signed
by Robert W. Varney, Regional Administrator, EPA Region 1 on July 10,
2008. The EPA determined that the MPTN had demonstrated: (1) That it is
an Indian Tribe recognized in 1983 by Congressional legislation (Pub.
L. 98-134, 9, Oct. 1st, 1983 97 Stat 855, Title 25 U.S.C.A. Sec. 1751-
1760) and by the Secretary of the Interior (73 FR 18553, 18554 (Apr. 4,
2008)); (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;
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.
B. How would the MPTN administer and enforce the TIP?
The proposed TIP would be implemented primarily by the MPTN Air
Quality Program (AQP) staff and the Tribe's legal counsel. According to
the MPTN TIP submittal, AQP staff has received extensive training in
TIP development, permit writing and regulatory enforcement and has also
demonstrated considerable capabilities in the programmatic,
administrative, and legal functions of implementing an air quality
program. The MPTN is currently one of only two Tribal Governments that
EPA Region 1 has recognized as capable of issuing permits with
enforceable limitations on a source's potential to emit.
As discussed above in section III.A, EPA evaluated the Tribe's
implementation and enforcement capabilities as part of our
determination that the MPTN is eligible for TAS to implement this TIP
and other CAA programs. As part of that determination, EPA found that
the MPTN is reasonably expected to be capable of implementing and
enforcing the TIP and other CAA programs in a manner consistent with
the terms and purposes of the CAA and all applicable regulations.
The MTPN staff is responsible for inspecting facilities within the
exterior boundary of the reservation and responding to any complaints
received. AQP staff, and if needed, the MPTN tribal law enforcement
authorities, will assume enforcement activities for the purposes of
compliance with air regulations. Other MPTN agencies will also provide
compliance and enforcement assistance, as appropriate, in accordance
with applicable Tribal and Federal law.
The MPTN's AQP oversees the enforcement of the TIP and establishes
requirements and procedures for civil and criminal enforcement. The
MPTN AQP has the authority 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 CAA within the exterior boundaries of the reservation. A violation
by the owner or operator of any emission limitation, emission standard
or any other condition contained in a permit shall subject the owner or
operator to any or all enforcement penalties, including permit
revocation, available under the CAA. No subsequent permit will be
issued until violations have been resolved to the satisfaction of the
AQP.
Furthermore, EPA Region 1 and the MPTN have a memorandum of
agreement between the two agencies outlining general terms for the
cooperation of criminal enforcement matters as provided by section
113(c) of the CAA, 42 U.S. C. 7413(c). The agreement, entitled
``Memorandum of Agreement Between the Mashantucket Pequot Tribe of
Connecticut and the U.S. Environmental Protection Agency Region I (a
copy of which is provided in the docket of this action) provides
procedures of communication as they relate to investigative leads of
potential criminal enforcement matters concerning non-Native Americans
and Native Americans.
IV. Evaluation of the MPTN's Tribal Implementation Plan
The MPTN TIP establishes a preconstruction permitting program for
new and modified stationary sources within the Tribe's jurisdiction by:
(1) Providing a mechanism to issue preconstruction air permits to major
and minor sources of criteria air pollutants; (2) providing a mechanism
for an otherwise major source to voluntarily accept emission
limitations to restrict its potential to emit (PTE) and become a
synthetic minor source; (3) providing the option for major stationary
sources, seeking to minimize permitting complexities associated with
major new source review, to establish a plantwide applicability
limitation (PAL) within an actual emissions PAL permit; and (4) setting
forth the criteria and procedures that the AQP will use to administer
the program. Requirements of this TIP are applicable to any person who
owns, operates, seeks to construct or plans to modify a stationary
source of air pollutants located within the exterior boundaries of
MPTN.
A. Does the MPTN TIP meet all CAA requirements?
The MPTN's CAP is comprised of two regulatory programs: (1) A
Tribal implementation plan (TIP) for the implementation, maintenance,
and enforcement of the NAAQS under CAA 110; and (2) a Tribal operating
permits program under title V of the Act. As stated earlier, in this
action we propose to act only on the TIP.
Pursuant to section 110 of the Clean Air Act (42 U.S.C. Section
7410), the TIP portion of the program addresses attainment and
maintenance of the NAAQS by establishing a federally enforceable
preconstruction permitting program for major and minor source of air
pollution. Consistent with authorities approved by EPA in the MPTN TAS
for CAA section 110 permitting programs and EPA's Federal Minor New
Source Review Program in Indian Country (See 40 CFR 49.151), it also
allows for sources that otherwise would have the potential to emit
hazardous air pollutants in amounts at or above those for major sources
(40 CFR 63.2) to request federal enforceable permit limitations that
restrict emissions to below those of a major source. Subtitle 12.2 of
the Tribe's regulations contains those elements specific to the TIP.
This Subtitle, with definitions contained in Subtitle 12.1, Section 4,
meets the minimum program requirements for implementation plans for
review of new sources and modifications specified at 40 CFR 51.160
through 51.166.
1. EPA's Evaluation of the MPTN Minor NSR Program
The purpose of the MPTN's minor new source review permitting
requirements is to establish a preconstruction permitting program, for
new minor sources and minor modifications at stationary sources. 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 55632]]
procedures'' to enable a 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.'' See 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. See 40 CFR
51.160(e).
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 in which EPA would
review a similar state submittal. See 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 MPTN
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
program as a base program suitable to the MPTN's reservation.
Section 110(a)(2)(C) of the Act (42 U.S.C. Section 7410(a)(2)(C))
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. In this application,
MPTN is establishing a preconstruction permitting program for new minor
sources and minor modifications at stationary sources. In addition,
MPTN is establishing a mechanism for an otherwise major source to
voluntarily accept restrictions on its potential to emit to become a
synthetic minor source. This mechanism may also be used by an otherwise
major hazardous air pollutant (HAP) source to voluntarily accept
restrictions on its potential to emit to become a synthetic minor HAP
source. 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.
(a) Applicability: Owners and operators of stationary sources must
apply for and be granted a permit prior to the beginning of actual
construction. This applies to new minor NSR sources, existing sources
seeking to undertake a minor modification, and any existing source
proposing a physical or operational change at a permitted source that
would increase allowable emissions of a regulated NSR pollutant above
its existing annual allowable emissions limit.
(b) Minor NSR Source Permits: No person shall begin actual
construction of any new minor NSR source without first obtaining a
permit to construct. Applications for permits must include facility
information, a listing of each emissions unit, detailed unit specific
information for all affected emissions units, a description and
characterization of the total facility emissions, and if required by
the AQP an air quality impact analysis in accordance with 40 CFR part
51, Appendix W.
(c) General Permits: A general permit must include the following
elements: (1) Identification of the specific category of emissions
units or sources to which the general permit applies, (2) information
required by applicants requesting coverage under a general permit, (3)
the effective date(s) of the general permit and rules concerning
renewing coverage under the general permit, (4) monitoring, reporting
and recordkeeping as applicable, (5) additional permit provisions as
applicable, and (6) the fee required for processing the request for
general permit coverage.
(d) Synthetic Minor Source Permits: This provision is applicable to
any owner or operator of a stationary source requesting a synthetic
minor source permit to establish emissions limitations that limit the
source's potential to emit to below major source thresholds. A source
that is issued a permit and becomes a synthetic minor source under this
section but remains a major source for title V purposes continues to be
subject to the applicable title V program provisions. In addition, a
synthetic minor source is subject to all applicable tribal rules,
regulations, emissions standards and other requirements.
As noted earlier, 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 MPTN'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 MPTN'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 MPTN's minor new source review permitting requirements apply to
stationary sources that are not major NSR sources and have the
potential to emit the following Regulated NSR pollutants at or above
the following annual ton per year thresholds:
(a) Nitrogen oxides (NOX), 10
(b) Volatile Organic Compounds, 5
(c) Carbon monoxide (CO), 10
(d) Sulfur dioxide (SO2), 10
(e) Particulate Matter, 10
(f) PM10, 5
(g) PM2.5, 3
(h) Lead, 0.1
(i) Fluorides, 1
(j) Sulfuric acid mist, 2
(k) Hydrogen sulfide (H2S), 2
(l) Reduced sulfur compounds (incl. H2S), 2
(m) Municipal waste combustor emissions, 2
(n) Municipal solid waste landfill emissions, 10 (as nonmethane organic
compounds)
(o) Any other limit that may become applicable in the event that an
attainment designation for Mashantucket is changed by the
Administrator.
We note that the MPTN's minor NSR thresholds for NOX and
VOC are slightly higher than the thresholds in Part 49, i.e., 10 tpy as
opposed to 5 tpy for NOX and 5 tpy as opposed to 2 tpy for
VOC. EPA is proposing to approve these differences as they are
consistent with EPA's intent to allow Tribes to fashion programs based
on their particular circumstances. In EPA's preamble to 40 CFR part 49,
EPA stated the following about Tribes' minor NSR programs and the
requirements of 40 CFR part 49.
[W]e seek to establish a flexible preconstruction permitting
program for minor sources in Indian country that is comparable to
similar programs in neighboring states in order to create a more level
regulatory playing field for owners and operators within and outside of
Indian country. See 76 FR 38748 at 38754 (July 1, 2011). This final
[[Page 55633]]
rulemaking is not intended to establish a new set of minimum criteria
that a Tribe or a state would need to follow in developing its own
minor source permitting program. Rather, these rules simply represent
how we will implement the program in Indian country in the absence of
an EPA-approved Tribal implementation plan. However, if a Tribe is
developing its own program, this can serve as one example of a program
that meets the objectives and requirements of the Act. 76 FR 38748 at
38754 (July 1, 2011).
This final minor source permitting program addresses, on a national
level, many environmental and regulatory issues that are specific to
Indian country. We understand that different Tribes may face different
issues and may therefore, like states developing SIPs, choose to
develop TIPs tailored to their individual Tribal circumstances and
needs. This rule will allow Tribes to develop their own TIPs,
consistent with the overarching requirement that the Tribe ensure that
the TIP will not interfere with any applicable requirement of the CAA.
76 FR 38748 at 38754 (July 1, 2011).
Finally, we note that the State of Connecticut's SIP-approved minor
new source review threshold is 15 tons per year for covered pollutants.
The MPTN's minor NSR permit program requires each applicant for a
minor new source review 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.
The permit program establishes administrative procedures for action
on permit applications, including public notice and a comment period of
at least 30 days. The program also provides for an opportunity for
public hearings on such permit applications. The issuance or denial of
a permit may be appealed administratively and, thereafter, judicially
to the Tribal Court.
We propose to approve these procedures as legally enforceable
procedures that establish a base program suitable to the MPTN's
reservation and that satisfy the minimum requirements of CAA section
110(a)(2)(C) and 40 CFR 51.160 through 51.164. Note that we are not
approving into the TIP the administrative appeal and judicial review
procedures in Tribal Court, although they nonetheless remain a valid
and important part of the MPTN's permitting program.
2. EPA's Evaluation of the MPTN Major NSR Programs
a. Nonattainment New Source Review: MPTN proposes to implement the
nonattainment major new source review program as set forth in sections
171 through 193 of the CAA (42 U.S.C. Sections 7501-7515). It requires
that major NSR sources subject to this program comply with the
provisions and requirement of 40 CR Part 51 (Appendix S) and the
requirements of Section 173(c)(1) of the CAA (42 U.S.C. Section
7503(c)(1)), which requires the application of lowest achievable
emissions reductions and emissions offsets for new major sources and
major modifications for pollutants (and precursors of those pollutants)
designated as nonattainment in the geographic area the facility is
located in. At present, MPTN is designated as serious nonattainment for
the 2008 ozone NAAQS and marginal nonattainment for the 2015 ozone
NAAQS.
The AQP will use the criteria and procedures stipulated within
Appendix S to issue, administer and enforce permits subject to the TIP.
It should be noted that some important provisions of Appendix S are
paraphrased in various paragraphs of the application; however, the full
provisions of Appendix S, as may be amended from time to time, are
incorporated by reference into the Tribe's regulations. For the
purposes of the Tribe's application, the term State Implementation Plan
(SIP) as used in Appendix S means Tribal Implementation Plan (TIP) and
the term ``State'' shall mean the Tribe (MPTN), Tribal or, as
applicable, Mashantucket. In addition, the requirements of Sec.
173(c)(1) of the CAA are also incorporated by reference into the
Tribe's regulations. The provisions (Chapter 3, Sec. 2. Applicability)
apply to major NSR sources and major modifications if, for the
applicable regulated NSR pollutant evaluated, Mashantucket is currently
designated as a nonattainment area under 40 CFR Sec.81.307. Under NSR,
the MPTN AQP will issue, administer and enforce permits subject to the
TIP by following the provisions stipulated within 40 CFR part 51,
Appendix S. In accordance with section 173(a)(4) of the Act (42 U.S.C.
Section 7503(a)(4), the AQP shall not issue a permit or permits to a
stationary source to which the requirements of the part apply if the
reviewing authority has determined that the applicable implementation
plan is not being adequately implemented for the nonattainment area in
which the proposed source is to be constructed or modified. In
accordance with section 173(a)(3) of the CAA and 40 CFR 51 Appendix S,
the TIP requires that a permit applicant certify that all existing
major sources owned or operated by the applicant (or any entity
controlling, controlled by, or under common control with the applicant)
in Mashantucket are in compliance with all applicable emission
limitations and standards under the Act (or are in compliance with an
expeditious schedule which is Federally enforceable or contained in a
court decree).
b. Prevention of Significant Deterioration: MPTN proposes in the
TIP to implement the prevention of significant deterioration (PSD)
program as set forth in Sections 160 through 169B of the Act (42 U.S.C.
Sections 7470-7492). This requires that major NSR sources subject to
this program comply with the provisions and requirement of 40 CFR
52.21. While some of the important provisions of 40 CFR 52.21 are
paraphrased in various paragraphs in the Tribe's application, the
provisions of 40 CFR 52.21 are incorporated into the Tribe's
regulations by reference, as the federal regulations may be amended
from time to time. The following paragraphs of 40 CFR 52.21 do not
apply for the purposes of the Tribe's program: Paragraph (a)(1);
Paragraph (g); Paragraph (s), Paragraph (t); and Paragraph (u). In
addition, the AQP will use the criteria and procedures stipulated
within 40 CFR 52.21 to issue, administer and enforce permits subject to
the TIP. Pursuant to 40 CFR 52.21(g)(1), MPTN shall be considered a
Class II area. An application for PSD permits shall contain all the
following information: (1) Control technology evaluation in accordance
with 40 CFR 52.21(j), (2) a source impact analysis in accordance with
40 CFR 52.21(k)(1), (3) an air quality analysis in accordance with 40
CFR 52.21(m), (4) source information required in accordance with 40 CFR
52.21 (n), (5) additional impact analyses required pursuant to 40 CFR
52.21 (o), and (6) a demonstration showing that all stationary sources
with MPTN exterior boundaries are subject to emissions limitations and
are in compliance, or on schedule for compliance which is federally
enforceable or contained in a court decree, with all applicable
emission limitations and standards under the CAA.
The major source permit program establishes administrative
procedures for action on permit applications, including public notice
and a comment period of at least 30 days. The program also provides for
an opportunity for public hearings on such permit
[[Page 55634]]
applications. The issuance or denial of a permit may be appealed
administratively and, thereafter, judicially to the Tribal Court. Note
that we are not approving into the TIP the administrative appeal and
judicial review procedures in Tribal Court, although they nonetheless
remain a valid and important part of the MPTN's permitting program.
3. EPA's Evaluation of the Tribe's Public Participation Requirements
The MPTN's TIP meets the CAA's requirements for public
participation in the permitting process. The AQP regulations provide
for an opportunity for public comment prior to permit issuance on all
draft permits and the associated public record, except for sources
seeking coverage under a general permit and for administrative permit
revisions. However, the AQP in its discretion may determine that public
participation is warranted for these actions also.
The MTPN's public participation requirements include at a minimum
the following: Availability, in the area affected by the air pollution
source, of the draft permit and associated public record, for public
inspection; public notice, describing the availability of the documents
for review and the opportunity to comment; a comment period, no less
than thirty (30) days commencing upon the date of notice publication; a
thirty (30) day period for EPA to review commencing upon the date a
copy of the required notice is provided to the Administrator through
the appropriate Regional Office; and if requested by a member of the
public or if the AQP determines that comments received were significant
and warrant such, a public hearing for tentative approval of the permit
shall be held with appropriate notice provided.
The MTPN TIP allows for under limited circumstances administrative
permit revisions for minor and major sources of air pollution.
Administrative permit revisions are not subject to the permit
application, issuance, public participation, or administrative and
judicial review requirements. Circumstances that would allow for
administrative permit revisions include: (1) The correction of
typographical errors; (2) changes in the name, address or phone number
of any person identified in the permit or similar minor administrative
change at the source; (3) changes in ownership or operational control
of a source; (4) requirements related to more frequent monitoring or
reporting by the permittee; (5) increases in an emissions unit's annual
allowable emissions limit for a regulated NSR pollutant, when the
action that necessitates such increase is not otherwise subject to
minor or major source permitting requirements; (6) the establishment of
an emission limitation for a replacement unit when the construction of
which does not trigger the need for a new permit; or (7) any other type
of change that the AQP has determined to be similar to the
circumstances references above. We note that similar provisions related
to administrative permit revisions at minor and major sources of air
pollution exist within the EPA's Federal Minor New Source Review
Program in Indian Country. See 40 CFR 49.159(f) and 49.153(a)(2)
B. What procedural requirements did the MPTN satisfy?
Section 110(a) of the CAA requires that implementation plans be
adopted by a 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 MPTN
developed its CAA programs in consultation with EPA Region 1 starting
in 2005. Following an extensive public comment process, the MPTN Tribal
Council codified the CAP under Tribal Law. The program includes both
the TIP, which only applies to permitting programs under Section 110 of
the CAA, 42 U.S.C Section 7410, and other ``tribal only rules'' that
are not intended to be federally enforceable, and the program was made
available for a 30-day public comment period that included the
opportunity for the public to request a hearing. No public hearing was
requested, and all comments received have been addressed, provided to
EPA and posted as part of the public record. The program was then
adopted to provide for sound regulation and control of sources of air
pollution in Mashantucket to ensure the health, safety and general
welfare of all Tribe's members, residents, employees, and guests. The
administration of the Tribe's program furthers the Tribe's sovereignty
and self-government. We find that the MPTN'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.
Specifically, MPTN's TIP submittal has fulfilled the following
requirements: (1) a formal letter of submittal from the Tribe's
Chairman requesting EPA approval of the plan in a letter dated Dec. 7,
2018 from Rodney A. Butler, MPTN, Council Chairman, to Alexandra D.
Dunn, Region Administrator, EPA New England Region 1 (Cover Letter),
(2) evidence that the Tribe has adopted the plan in the Tribal code or
body of regulations to include the date of adoption or final issuance
as well as the effective date of the plan (TCR101118-05 of 05) in
Attachment 1, (3) evidence that the Tribe has the necessary legal
authority under tribal law to adopt and implement the plan, (4) a copy
of the actual regulation, or document submitted for approval and
incorporation by reference into the plan (Attachment 3), (5) evidence
that the Tribe followed all the procedural requirements of the Tribe's
laws and constitution in conducting and completing the adoption/
issuance of the plan (Article II and IV MPTN constitution), (6)
evidence that the public notice was given of the proposed change
consistent with procedures approved by EPA, including the date of
publication of such notice (Attachment 4, Exhibits A, B, C, D and E),
(7) certification that public hearings were held in accordance with
information provided in the public notice and the Tribe's laws and
constitution (Attachment 4, Exhibit C), and (8) compilation of public
comments and the Tribe's response thereto (Attachment 4, Exhibit H,
Attachment 5).
V. Proposed Action
EPA is proposing to approve the Mashantucket Pequot Tribal Nation's
Tribal Implementation Plan under the Clean Air Act to regulate air
pollution within the exterior boundaries of the Tribe's reservation. In
this action we propose to act only on those portions of MPTN's CAP that
constitute a TIP containing severable elements of an implementation
plan under CAA section 110(a). The proposed TIP includes permitting
requirements for major and minor sources of air pollution.
Specifically, we are proposing to approve the following sections of the
MPTN's air quality regulations. Title 12, Subtitle 12.1, Sec. 2--
Applicability (with effective date); Title 12, Subtitle 12.1, Sec. 4--
Definitions; and Title 12, Subtitle 12.2--New Source Review--MPTN TIP.
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
[[Page 55635]]
comments to this proposed rule by following the instructions listed in
the ADDRESSES section of this Federal Register.
VI. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the MPTN rules discussed in section III. and IV. of this
preamble. The EPA has made, and will continue to make, these documents
generally available through https://www.regulations.gov and at the EPA
Region 1 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
TIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing TIP submissions, EPA's role is to approve tribal
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves tribal law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by tribal law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not expected to be an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
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 (59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Indians,
Intergovernmental relations, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 18, 2020.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2020-18397 Filed 9-8-20; 8:45 am]
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