E9-23259. Approval and Promulgation of Air Quality Implementation Plans; Mohegan Tribe of Indians of Connecticut

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a Tribal Implementation Plan (“TIP”) submitted by the Mohegan Tribe of Indians of Connecticut (“the Tribe”). This revision adds new emission units to the Tribe's TIP, while maintaining 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. The revision also provides the Administrator of The Mohegan Environmental Protection Department with enforcement authority for violations of the Mohegan TIP and establishes a right of appeal to the Director of Regulation and Compliance and the Mohegan courts. 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:

This direct final rule will be effective November 27, 2009, unless EPA receives adverse comments by October 28, 2009. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R01-OAR-2009-0305 by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: “Docket Identification Number EPA-R01-OAR-2009-0305,” Ida McDonnell, 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: Ida 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. 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-2009-0305. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at 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 www.regulations.gov, or e-mail, information that you consider to be CBI or otherwise protected. The www.regulations.gov website is an “anonymous access” system, 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 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 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 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.

In addition, 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 [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, it means U.S. EPA, Region 1.

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: The Mohegan Tribe of Indians of Connecticut (“the Tribe”) submitted a Tribal Implementation Plan (“Mohegan TIP”) consisting of a tribal ordinance, entitled “Area Wide NO_X Emissions Limitation Regulation,” establishing 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 TIP was submitted by the Tribe on May 4, 2005 and amended on August 22, 2007. EPA granted approval of the Mohegan TIP in a rulemaking published on November 14, 2007 (72 FR 63988).

Stationary sources owned by the Mohegan Tribal Gaming Authority have the potential to emit ^[1] NO x in major source amounts, but have actual emissions that are below the major source thresholds. The Mohegan TIP is 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 NO_x in major source amounts, they will be considered minor sources and will avoid triggering CAA major source requirements because the units collectively will be subject to an enforceable emissions limitation.

On April 17, 2009, the Tribe submitted a formal revision to the Mohegan TIP (“Revision”). The Revision includes a monthly NO x emissions limitation for new emission units, namely uncontrolled diesel generators and controlled diesel generators. The Revision also removes the classification for emergency diesel generators, as these emission units constitute uncontrolled diesel generators. The Revision contains monitoring, recordkeeping, reporting, and testing requirements for the new emission units, as needed to assure compliance with the synthetic minor limit. The inclusion of these units does not result in any increase in potential emissions at the facility because the Area Wide Limitation for NO x Emissions remains at 49 tons per year for each twelve-month rolling year.

The Revision also vests the Administrator of The Mohegan Environmental Protection Department with enforcement authority for violations of the Mohegan TIP. Specifically, the Revision provides the Administrator with the authority to assess civil penalties of up to $25,000 per violation per day, as well as to issue cease and desist orders, for violations of the Mohegan TIP. The Mohegan Gaming Disputes Court formerly had the authority to perform these functions. Under the Revision, any entity or individual whose legal rights are affected by any decision of the Administrator regarding the enforcement of the Mohegan TIP may appeal the decision to the Director of Regulation and Compliance, and may subsequently appeal any decision of the Director of Regulation and Compliance to the Mohegan Tribal Court or Mohegan Gaming Disputes Court (“Mohegan Courts”), as appropriate.

II. Final Action: EPA is approving the Mohegan Tribal Implementation Plan Revision, submitted by the Mohegan Tribe of Indians of Connecticut on April 17, 2009. The Revision incorporates new emission units with associated monitoring, recordkeeping and reporting provisions for the facility owned by the Mohegan Tribal Gaming Authority. The Revision also vests the Administrator of The Mohegan Environmental Protection Department with enforcement authority for violations of the Mohegan TIP and establishes a right of appeal to the Director of Regulation and Compliance and the Mohegan Courts.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the Proposed Rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the Mohegan TIP revision should relevant adverse comments be filed. This rule will be effective November 27, 2009 without further notice unless the Agency receives relevant adverse comments by October 28, 2009.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 27, 2009 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. 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 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 action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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). 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 revision.

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

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 November 27, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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: August 13, 2009.

Ira Leighton,

Acting 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—[Amended]

2. Section 49.201 is amended by revising paragraph (b) and (c) to read as follows:

§ 49.201

Identification of plan.

* * * * *

(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. Entries in paragraph (c) of this section with EPA approval dates after August 13, 2009, will be incorporated by reference in the next update to the TIP compilation.

(2) EPA Region 1 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 August 13, 2009.

(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. If you wish to obtain material from the EPA Regional Office, please call 617-918-1653; for materials from the docket in EPA Headquarters Library, please call the Office of Air and Radiation docket at 202-566-1742. 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 Resolution 2009-28	Approval of Amended Tribal Air Program Area Wide NOX Emission Limitation Regulation	02/18/2009	09/29/09 [Insert Federal Register page number where the document begins]	Mohegan Tribal Resolution 2009-28 includes the “Area Wide NOx Emission Limitation Regulation.”
Mohegan Tribal Gaming Authority Resolution MTGA 2009-07	Confirmation and Approval of Amended Tribal Air Program “Area Wide NOX Emission Limitation Regulation.”	2/18/2009	09/29/09 [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, 72 FR 63988.

Footnotes

1.  Potential to emit means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design.