E7-17535. Approval and Promulgation of Air Quality Implementation Plans; Mohegan Tribe of Indians of Connecticut

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R01-OAR-2005-TR-0001 by one of the following methods:

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

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

3. Fax: [phone].

4. Mail: “Docket Identification Number EPA-R01-OAR-2005-TR-0001”, Dan Brown, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023.

5. Hand Delivery or Courier: Deliver your comments to: Dan Brown, Manager, Air Permits, Toxics and Indoor Air Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAP), Boston, MA 02114-2023 Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-2005-TR-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov,, or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding legal holidays.

In addition to the publicly available docket materials available for inspection electronically in the Federal Docket Management System at http://www.regulations.gov,, and the hard copy available at the Regional Office, which are identified in the ADDRESSES section of this Federal Register, copies of the Tribe's submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Mohegan Tribe, Mohegan Environmental Protection Department, 49 Sandy Desert Road, Uncasville, CT 06382, telephone number [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 to This Rulemaking

II. CAA Requirements and the Role of the Tribes

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

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

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

III. Analysis of the Mohegan TIP

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

2. Does the Mohegan TIP meet all CAA requirements?

IV. Proposed Action

V. Statutory and Executive Order Reviews

I. Background to This Rulemaking

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

II. CAA Requirements and the Role of the Tribes

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

Under the 1990 Amendments to the Clean Air Act (CAA), the EPA may approve eligible tribes to administer certain provisions of the CAA. Pursuant to Section 301(d)(2) of the CAA, EPA promulgated the Tribal Authority Rule (TAR) on February 12, 1998 (63 FR 7254). The TAR specifies the CAA provisions for which it is appropriate to treat tribes in the same manner as states, the eligibility criteria the tribes must meet if they choose to seek such treatment, and the procedure by which EPA reviews a tribe's request for an eligibility determination.

As a general matter, EPA determined in the TAR that it is not appropriate to treat tribes in the same manner as states for purposes of specific plan submittal and implementation deadlines for NAAQS-related requirements. 40 CFR 49.4. Thus, tribes are generally not subject to CAA provisions which specify a deadline by which something must be accomplished. So, for example, provisions mandating the submission of state implementation plans do not apply to the tribes. Furthermore, under the TAR (40 CFR 49.7(c)), a tribe may choose to implement reasonably severable portions of the various CAA programs, as long as it can demonstrate that its proposed air program is not integrally related to program elements that are not included in the plan submittal and is consistent with applicable statutory and regulatory requirements. So, for example, a tribe may choose to submit a TIP that uses a limited set of methods to control just one or two air pollutants. This modular approach is intended to give tribes the flexibility to address their most pressing air resource issues and acknowledges that tribes often have limited resources with which to address their environmental concerns. Consistent with the exceptions listed in 40 CFR 49.4, once submitted, a tribe's proposed air program will be evaluated in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal. 40 CFR 49.8(h). EPA expects tribes to fully implement and enforce their approved programs and, as with states, EPA retains its discretionary authority to impose sanctions for failure to implement an air program.

Where the provisions of the act or implementing regulations governing the program for which the tribe seeks approval require criminal enforcement authority, the tribe may enter into a memorandum of agreement with the appropriate EPA Region to provide for criminal enforcement by EPA. 40 CFR 49.7(a)(6), 49.8.

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

Under Section 301(d) of the Clean Air Act, 42 U.S.C. 7601, and the TAR (at 40 CFR 49.6), EPA may treat a tribe in the same manner as a state for purposes of administering certain CAA programs or grants if the tribe demonstrates that (1) it is federally recognized; (2) it has a governing body carrying out substantial governmental duties and powers; (3) the functions to be exercised by the tribe pertain to the management and protection of air resources within the tribe's reservation or within non-reservation areas under the tribe's jurisdiction; and (4) it can reasonably be expected to be capable of carrying out the functions for which it seeks approval.

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

Implementation plans are a set of programs and regulations submitted by states and, if they so choose, by tribes, that outline a definite plan by which the state or tribe intends to help attain or maintain NAAQS. NAAQS have been established for the following six pollutants: Ozone; carbon monoxide; particulate matter; sulfur dioxide; lead; and nitrogen dioxide. The EPA calls these pollutants “criteria pollutants” because the original standards were based on information in air quality criteria documents developed for pollutants that “endanger the public health or welfare”. Once approved by EPA, implementation plans become enforceable as a matter of federal law.

Implementation plans are governed by Section 110 of the CAA, 42 U.S.C. 7410. Under Sections 110(o) and 301(d) of the CAA and the TAR (40 CFR 49.9(h)), any TIP submitted to EPA shall be reviewed in accordance with the provisions for review of state implementation plans (SIPs) set forth in CAA Section 110. Thus, the TIP must include not only the substantive rules by which the tribe proposes to help achieve NAAQS, but also provide assurances that the tribe will have adequate personnel, funding, and authority to administer the plan, as required by CAA Section 110(a)(2)(E), and requirements governing conflicts of interest, as required by CAA Section 128.^[1] Under Section 128, implementation plans must contain requirements that (1) any “board or body” that approves permits or enforcement orders have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to the permits or orders and (2) conflicts of interest are disclosed. EPA does not intend to read Section 128 to limit a tribe's flexibility in creating a regulatory infrastructure that ensures an adequate separation between the regulator and the regulated entity (59 FR 43956, 43964 (Aug. 25, 1994)).

EPA will evaluate the elements submitted in each TIP on a case-by-case basis to ensure the selected program is reasonably severable under the CAA, and that the TIP has control measures that adequately address the specific types of pollution of concern on the reservation. Once EPA approves the TIP, its provisions are enforceable by the tribe, by EPA, and by citizens. As with SIPs, EPA maintains an ongoing oversight role to ensure the approved TIP is adequately implemented and enforced and to provide technical and policy assistance. An important aspect of EPA's oversight role is that EPA retains legal authority to bring an enforcement action against a source violating the approved TIP.

III. Analysis of the Mohegan TIP

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

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

2. Does the Mohegan TIP meet all CAA requirements?

As described below, we are satisfied that the Mohegan TIP adequately addresses the requirements of CAA Section 110(a)(2)(C). Under CAA Section 110(k), EPA determined the Mohegan TIP was complete on July 6, 2005, using the completeness criteria set forth in Appendix V of 40 CFR Part 51. As part of this completeness determination, we noted that the application included a description of how the Tribe intends to implement the TIP and provided evidence that the Area Wide NO_X Emissions Limitation Regulation (NO_X Regulation) and other necessary tribal laws were properly adopted. In accordance with CAA Section 110(a), the Tribe issued a public notice soliciting comments on its proposed TIP on February 25, 2005, held a public hearing on March 28, 2005 at the Mohegan Reservation in Uncasville, CT, and closed the public comment period on March 30, 2005 with no comments received. On August 22, 2007, the Tribe submitted an amendment to the NO_X Regulation described below.

Stationary sources owned by the Mohegan Tribal Gaming Authority have the potential to emit ^[2] NO_X in major source amounts, but have actual emissions that are below the major source thresholds. The primary objective for this rulemaking is to create a mechanism by which the emission limit for stationary sources owned by the Mohegan Tribal Gaming Authority located within the exterior boundaries of the Mohegan Reservation is enforceable as a practical matter. The Mohegan TIP is the equivalent of a permit that keeps the sources in “synthetic minor” status and ensures that the source is legally prohibited from operating as a major source. In other words, even though units owned by the Mohegan Tribal Gaming Authority have the potential to emit 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. Actual NO_X emissions from these units have never approached the major source thresholds. When the Tribe first submitted the NO_X Regulation, the cap on NO_X emissions in effect under the regulation was 99 tons per year (TPY). The Tribe subsequently amended the NO_X Regulation to lower that cap to 49 TPY, because the Tribe has chosen to enforce a limit below the threshold for major sources of NO_X applicable in the Greater Connecticut air quality planning area outside of and surrounding the Tribe's reservation. In accordance with CAA Section 110(a)(2)(B), the NO_X ordinance also contains monitoring, recordkeeping, reporting, and testing requirements as needed to assure compliance with the synthetic minor limit.

The Mohegan TIP will be administered primarily by the Mohegan Environmental Protection Department and enforced via the Gaming Disputes Court, a tribal court with exclusive jurisdiction over disputes arising out of or in connection with any action of the Mohegan Tribal Gaming Authority. Under the NO_X Regulation, the Administrator of the Mohegan Environmental Protection Department may issue a citation requiring an individual to appear before the Gaming Disputes Court for a judicial hearing on an alleged violation of the NO_X Regulation or, in emergencies, petition the Court for a cease and desist order. After hearing, the Gaming Disputes Court may issue final orders imposing injunctive relief and/or civil penalties of up to $25,000 per violation per day. In addition, the Mohegan Tribe of Indians of Connecticut and the U.S. Environmental Protection Agency have entered into a Memorandum of Agreement by which, for the purposes of criminal enforcement, the Tribe will provide potential investigative leads to EPA and/or other appropriate Federal agencies, as agreed to by the parties, in an appropriate and timely manner.

As noted above, CAA Section 110(a)(2)(E) requires an implementation plan to “provide * * * necessary assurances that the [applicant] * * * will have adequate personnel, funding, and authority under [tribal] law to carry out such implementation plan.” The Tribal Application contains such assurances and cites a provision of the MEPD Ordinance requiring the Tribal Council to “provide such funding to the Department that will ensure that the Department can, at a minimum, appropriately develop, implement, monitor, and enforce the Tribal Implementation Plan and any other environmental programs approved by the Tribal Council.”

To demonstrate compliance with CAA Section 128, the Tribe submitted, as part of the Mohegan TIP, the Mohegan Tribal Ethics Ordinance. Under Section 4, Standard E of the Ethics Ordinance, “public officials,” or persons holding elected or appointed office, are prohibited from having or subsequently acquiring any “direct or indirect financial or other economic interests” that are in conflict with interests of the Tribe. Under Standard F, if required to act on a matter in which the public official has a personal economic interest (e.g., the Tribe wishes to purchase a parcel of land in which the public official has an interest), the public official must disclose such interest and abstain from participating in the deliberation and decision making process.^[3] According to the Tribe, the Ethics Ordinance applies to the judges of the Gaming Disputes Court.

Given the structure of the NO_X Regulation, the Ethics Ordinance need only apply to the judges of the Gaming Disputes Court and not to the MEPD Administrator. First, under the NO_X Regulation, the MEPD Administrator is authorized only to issue a citation requiring an alleged violator to appear before the Court or to petition the Court for a cease and desist order. Enforcement orders for both civil penalties and injunctive relief are issued only by the Court. In other words, the Court is the “board or body” that ultimately “approves * * * enforcement orders.” Second, while the MEPD Administrator must approve emissions factors to be used in calculating NO_X emissions, as well as any construction or modification of NO_X sources, both of which resemble the grant of a permit, the NO_X Regulation requires the Administrator to give approval whenever specified standards are met. Because this duty to approve is nondiscretionary, the MEPD Administrator need not be, and is not, subject to the Ethics Ordinance.

IV. Proposed Action

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

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves tribal law as meeting Federal requirements and imposes no additional requirements beyond those imposed by tribal law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under tribal law and does not impose any additional enforceable duty beyond that required by tribal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Since this rule simply approves pre-existing tribal law, it does not result in any direct costs or preemption of tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Nonetheless, EPA has consulted extensively with the Mohegan Tribe concerning this proposed TIP approval. This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a tribal rule implementing a federal standard within the exterior boundaries of the Tribe's reservation, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks”(62 FR 19885, April 13, 1997), because it approves a tribal rule implementing a Federal standard.

In reviewing TIP submissions, EPA's role is to approve tribal choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the Tribe to use voluntary consensus standards (VCS), EPA has no authority to disapprove a TIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a TIP submission, to use VCS in place of a TIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

List of Subjects in 40 CFR Part 49

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

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

Dated: August 27, 2007.

Robert W. Varney,

Regional Administrator, EPA New England.

Footnotes

1.  See Section 110(a)(2)(E) of the Act, 42 U.S.C. 7410(a)(2)(E), which requires all implementation plans to contain the requirements described in Section 128 of the Act, 42 U.S.C. 7428. Tribal implementation plans must comply with Section 128, as neither Section 110(a)(2)(E) nor Section 128 of the Act are listed in the TAR as provisions that are inapplicable to tribes seeking TIP approval under the Act. See 40 CFR 49.4. EPA explicitly contemplated the applicability of Section 128 in the preamble to the proposed TAR. See 59 FR 43956, 43964 (Aug. 25, 1994).

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

3.  Section 5 of the Ethics Ordinance requires members of the Tribal Council and the Council of Elders and appointed public officials with fiscal responsibilities to file annual economic disclosure statements. An example disclosure statement is on file with EPA Region I. However, the Mohegan “board or body” at issue here is covered by neither category and, thus, not required to file such statements.