E7-23718. Approval and Promulgation of Saint Regis Mohawk's Tribal Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving the St. Regis Mohawk Tribe (SRMT) Tribal Implementation Plan (TIP). The SRMT TIP contains programs to address ambient air quality standards, emissions inventory, permitting, synthetic minor facilities, source surveillance, open burning, enforcement, review of state permits, and regional haze planning. EPA's action makes the approvable portions of the SRMT TIP, as discussed in this action, federally enforceable. The approvable portions of the TIP are equivalent to current EPA regulations, procedures, or ambient air quality standards. The intended effect of the approved TIP is to protect air quality and population within the exterior boundaries of the SRMT Reservation.

DATES:

Effective Date: This rule is effective on January 9, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2004-TR-0001. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 through www.regulations.gov or in hard copy at the Environmental Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT:

Gavin Lau, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007, [phone].

SUPPLEMENTARY INFORMATION:

On August 14, 2007 (72 FR 45397), EPA published a proposal for the approval of portions of the SRMT TIP. The final action makes federally enforceable the portions of the SRMT TIP that contain programs to address: Ambient air quality standards for sulfur dioxide (SO2), particulate matter (PM10 and PM2.5), nitrogen dioxide (NO2), and ozone (O3); emissions inventory; permitting; synthetic minor facilities; source surveillance; open burning; enforcement; review of state permits; and regional haze planning. EPA is not approving ambient air quality standards in the SRMT TIP for fluoride and metals since they are not equivalent to EPA ambient air quality standards.

The SRMT is a federally recognized Indian tribe recognized by the U.S. Secretary of the Interior. Beginning in 2001, with assistance from EPA, the Tribe began developing a TIP with the goal of protecting the population within the Reservation from air pollution by controlling or abating existing and new sources. Under the provisions of the Clean Air Act (CAA or Act) and EPA's regulations, Indian tribes must meet eligibility criteria spelled out in the Act and the Tribal Authority Rule (TAR), in order to be treated in the same manner as a state for the purpose of developing an implementation plan. These criteria are: (1) The Tribe is federally recognized; (2) the Tribe has a governing body that carries out substantial duties and powers; (3) the functions the Tribe applied for carrying out pertain to the management and protection of air resources within the exterior boundaries of the reservation (or other areas within the Tribe's jurisdiction); and, (4) the Tribe is reasonably expected to be capable of performing the functions the Tribe applied to carry out in a manner consistent with the terms and purposes of the Act and all applicable regulations. On March 5, 2003, EPA determined that the SRMT met the criteria in the Act and TAR, for treatment in the same manner as a state for the purpose of developing and implementing a TIP. The SRMT did not request an eligibility determination for the area known as the Hogansburg Triangle and EPA made no determination with respect to that area.

To support the approval of the TIP, in a Tribal Council Resolution dated December 3, 1999, the SRMT Tribal Council gave the SRMT Environmental Division authority to administer CAA programs on behalf of the tribe. The SRMT adopted the rules comprising the TIP into Tribal Law and entered into a Memorandum of Agreement with EPA Region 2 and EPA's Criminal Investigation Division concerning the criminal enforcement of air pollution rules and regulations. The SRMT Police and Conservation Officers will assume enforcement activities for the purpose of compliance with air regulations. The Peacemakers Court-Civil Disobedience Division will be the arbitrator of all summons and complaints filed under the TIP. The SRMT will refer to the appropriate EPA or U.S. Department of Justice Office alleged criminal violations when alleged violators are non-Indian as well as all alleged criminal activity where the fine is greater than $5,000 or the penalty would require imprisonment for more than one year.

Other specific details concerning the TIP and rationale for EPA's action are explained in the proposed rule and will not be restated here.

Comments: No adverse comments were received; one supportive comment was received.

Conclusion: EPA is approving portions of the SRMT TIP and making them federally enforceable. The approved sections of the TIP contain programs to address: Ambient air quality standards for SO₂, PM, NO₂, and O₃; emissions inventory; permitting; synthetic minor facilities; source surveillance; open burning; enforcement; review of state permits; and regional haze planning. The approved portions of the TIP will help protect air quality within the exterior boundaries of the SRMT Reservation in accordance with Federal requirements.

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” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” EPA has concluded that this rule will have tribal implications in that it will have substantial direct effects on the SRMT. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. EPA is approving the SRMT's TIP at the request of the Tribe. Tribal law will not be preempted as the SRMT has already incorporated the TIP into Tribal Law on October 3, 2002. 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 SRMT early in the process of developing this regulation to permit them to have meaningful and timely input into its development. In order to administer an approved TIP, tribes must be determined eligible (40 CFR part 49) for TAS for the purpose of administering a TIP. During the TAS eligibility process, the Tribe and EPA worked together to ensure that the appropriate information was submitted to EPA. SRMT and EPA also worked together throughout the process of development and Tribal adoption of the TIP. The Tribe and EPA also entered into an enforcement MOA. This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255 (August 10, 1999)). This action approves a Tribal rule implementing a TIP over areas within the exterior boundaries of the St. Regis Mohawk Reservation, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885 (April 23, 1997)), because it is approves a tribal plan implementing Federally equivalent standards.

In reviewing SIP submissions, EPA(s role is to approve state 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 State 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.).

The Congressional Review Act, 5 U.S.C. section 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 rule 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).

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 February 8, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 section 307(b)(2).)

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

Dated: October 22, 2007.

Alan J. Steinberg,

Regional Administrator, Region 2.

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.

2. Subpart E of Part 49 is amended by adding an undesignated center heading and § 49.471 as follows:

Subpart E—Implementation Plans for Tribes—Region II

Implementation Plan for the Saint Regis Mohawk Tribe

§ 49.471

Identification of plan.

(a) Purpose and scope. This section contains the approved implementation plan for the St. Regis Mohawk Tribe dated February 2004. The plan consists of programs and procedures that cover public participation, plan revisions, ambient air quality standards, emissions inventory, permitting, synthetic minor facilities, source surveillance, open burning, enforcement, review of state permits, regional haze planning, and reporting.

(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 II 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 December 10, 2007.

(3) Copies of the materials incorporated by reference may be inspected at the Region II Office of EPA at 290 Broadway, 25th Floor, New York, NY 10007-1866; 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 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 St. Regis Mohawk Tribe Regulations

Tribal citation	Title/subject	Tribal effective date	EPA approval date	Explanations
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 5	Definitions	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 9	Air Quality Standards	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]	Subsections 9.6 and 9.7 are not part of the Federally approved TIP.
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 11	General Permit Requirements	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 12	Permits for Minor Facilities	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 13	Synthetic Minor Facilities	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
St. Regis Mohawk Tribe, Tribal Implementation Plan, version 3, Section 14	Source Surveillance	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
TCR-2002-59	Tribal Burn Regulation	February 2004	December 10, 2007 [Insert Federal Register page number where the document begins]
Memorandum of Agreement	Memorandum of Agreement dated November 20, 2003, between the St. Regis Mohawk Tribe and the U.S. Environmental Protection Agency Region II	11/20/2003	December 10, 2007 [Insert Federal Register page number where the document begins]