E7-22221. Approval and Promulgation of Air Quality Implementation Plans; Mohegan Tribe of Indians of Connecticut

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a Tribal Implementation Plan (TIP) 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:

Effective Date: This rule is effective on December 14, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2005-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, 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 through www.regulations.gov or in hard copy at the 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.

Copies of the documents relevant to this action 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 [phone].

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 [phone], fax number [phone], e-mail [e-mail].

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 and Purpose

II. Final Action

III. Statutory and Executive Order Reviews

I. Background and Purpose

On September 6, 2007 (72 FR 51204) EPA published a Notice of Proposed Rulemaking (NPR) for the Mohegan Tribe of Indians of Connecticut.

The NPR proposed approval of the Mohegan Tribal Implementation Plan (TIP) consisting of a tribal ordinance, entitled “Area Wide NO_X Emissions Limitation Regulation,” that establishes a limit on nitrogen oxide (NO_X) emissions from stationary sources owned by the Mohegan Tribal Gaming Authority and located within the external boundaries of the Mohegan Reservation. The formal TIP was submitted by Mohegan Tribe of Indians of Connecticut on May 4, 2005 and amended on August 22, 2007.

Other specific requirements of the Tribal Implementation Plan and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

II. Final Action

EPA is approving the Mohegan Tribal Implementation Plan that was submitted by the Mohegan Tribe of Indians of Connecticut on May 4, 2005, and amended on August 22, 2007 for limiting NO_X emissions from stationary sources owned by the Mohegan Tribal Gaming Authority to 49 TPY.

III. 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 Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 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.)

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 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 January 14, 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 25, 2007.

Robert W. Varney,

Regional Administrator, EPA New England.

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 D—Implementation Plans for Tribes-Region I

2. Subpart D of Part 49 is amended by adding an undesignated center heading and § 49.201 as follows:

Implementation Plan for the Mohegan Tribe of Indians, Connecticut.

§ 49.201

Identification of plan.

(a) Purpose and scope. This section contains the implementation plan for the Mohegan Tribe of Indians, Connecticut. This plan consists of an area wide NO_X emission limitation regulation submitted by the Mohegan Tribe on May 4, 2005, applicable to the reservation of The Mohegan Tribe of Indians of Connecticut.

(b) Incorporation by reference. (1) Material listed in paragraph (c) of this section with an EPA approval date prior to November 14, 2007, 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 I 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 November 14, 2007.

(3) Copies of the materials incorporated by reference may be inspected at the New England Regional Office of EPA at One Congress Street, Suite 1100, Boston, MA 02114-2023; 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 Mohegan Tribe of Indians of Connecticut Regulations

Tribal citation	Title/subject	Tribal effective date	EPA approval date	Explanations
Mohegan Tribal Ordinance 2005-01	Area Wide NOX Emission Limitation Regulation	04/28/05	11/14/07 [Insert Federal Register page number where the document begins]
Mohegan Tribal Resolution 2005-19	Amending Mohegan Tribal Ordinance 2005-01	05/23/05	11/14/07 [Insert Federal Register page number where the document begins]
Mohegan Tribal Resolution 2007-28	Amending Mohegan Tribal Ordinance 2005-01	08/22/07	11/14/07 [Insert Federal Register page number where the document begins]
Mohegan Tribal Resolution 2005-17	Approving the “Area Wide NOX Emission Limitation Regulation Tribal NOX Regulations.”	04/28/05	11/14/07 [Insert Federal Register page number where the document begins]
Mohegan Tribal Resolution 2005-16	Authorizing civil penalties up to $25,000 per violation	04/28/05	11/14/07	[Insert Federal Register page number where the document begins]
Memorandum of Agreement	Memorandum of Agreement dated December 26, 2006, between the Mohegan Tribe of Indians of Connecticut and the U.S. Environmental Protection Agency Region I	12/26/06	11/14/07 [Insert Federal Register page number where the document begins]