Proposed Rule2023-00552
Approval and Promulgation of Air Quality Implementation Plan; Mohegan Tribe of Indians of Connecticut
Primary source
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Published
January 13, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve amendments to the Mohegan Tribe of Indians of Connecticut (the Mohegan Tribe, Mohegans, 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. 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) under the CAA on December 26, 2006. The proposed TIP includes permitting requirements for minor sources of air pollution not covered by the Tribe's existing federally approved TIP. 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 new elements to its federally enforceable preconstruction air permitting program.
Full Text
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<title>Federal Register, Volume 88 Issue 9 (Friday, January 13, 2023)</title>
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[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Proposed Rules]
[Pages 2298-2303]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00552]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R01-OAR-2022-0961, FRL-10562-01-R1]
Approval and Promulgation of Air Quality Implementation Plan;
Mohegan Tribe of Indians of Connecticut
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve amendments to the Mohegan Tribe of Indians of Connecticut (the
Mohegan Tribe, Mohegans, 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. 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) under the CAA on
December 26, 2006. The proposed TIP includes permitting requirements
for minor sources of air pollution not covered by the Tribe's existing
federally approved TIP. 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 new elements to its federally enforceable preconstruction
air permitting program.
DATES: Written comments must be received on or before February 13,
2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2022-0961 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#531a20363d313621347d1e3237363f3a3d36133623327d343c25"><span class="__cf_email__" data-cfemail="b1f8c2d4dfd3d4c3d69ffcd0d5d4ddd8dfd4f1d4c1d09fd6dec7">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. Publicly
available docket materials are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
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: Madeline Isenberg, Air Permits, Toxics
and Indoor Programs Branch, EPA Region 1, 5 Post Office Square (Mail
Code: 05-2), Boston, MA, 02109-3912, telephone number (617) 918-1271,
email: <a href="/cdn-cgi/l/email-protection#a9e0daccc7cbccdbce87e4c8cdccc5c0c7cce9ccd9c887cec6df"><span class="__cf_email__" data-cfemail="652c16000b070017024b28040100090c0b00250015044b020a13">[email protected]</span></a>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. CAA Requirements and the Role of Indian Tribes
II. Background on the Mohegan Tribe and CAA Requirements
III. Background on Mohegan Tribe's TIP
IV. Overview of the Mohegan Tribe's July 2022 TIP Revision
V. EPA's Evaluation of the Mohegan Tribe's July 2022 TIP Revision
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. 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 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. For example, provisions mandating the submission
of state implementation plans do not apply to the Tribes. Furthermore,
under the TAR at 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
[[Page 2299]]
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 the 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.'' 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 at
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 it 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 (August 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.
II. Background on the Mohegan Tribe and CAA Requirements
The Mohegan Tribe of Indians of Connecticut is an Indian Tribe
federally recognized on March 7, 1994, by Congressional legislation
(Pub. L. 103-377, October 19, 1994.). The Secretary of the Interior
recognizes the ``Mohegan Tribe of Connecticut'' (86 FR 7554 January 29,
2021). On May 4, 2005, the Mohegan Tribe of Indians of Connecticut
submitted a request that we find the Tribe eligible for TAS pursuant to
Sec. 301(d)(2) of the CAA and Title 42, part 49 of the Code of Federal
Regulations (CFR), for the purpose of implementing its CAA permitting
program. The Mohegans also submitted for EPA approval its tribal
implementation plan (``TIP'') on May 4, 2005.
The Tribe requested a TAS eligibility determination pursuant to the
CAA and the TAR for the purpose of administering its TIP within
reservation lands. The operative portion of the Mohegan TIP was the
Tribe's Area Wide NO<INF>X</INF> Emission Limitation Regulation.
Based on the information submitted by the Tribe and after
consideration of comments received in response to notice of the Tribe's
TAS request, EPA determined that the Mohegan Tribe met the TAS
eligibility requirements for the purpose of administering and enforcing
a TIP and similar air pollution control programs for minor sources
under section 110 of the Act. See CAA 301(d)(2) and 40 CFR 49.9(g).
The EPA drafted a decision document titled ``Mohegan Tribe of
Indians of Connecticut: Eligibility Determination Under 40 CFR part 49
for a Clean Air Act Tribal Implementation Plan'' (TAS Decision
Document, included in the docket of this rulemaking), which was dated
December 20, 2006, and signed by Robert W. Varney, Regional
Administrator, EPA Region 1 on December 26, 2006.
III. Background on Mohegan Tribe's TIP
The Mohegan Tribe's TIP, submitted on May 4, 2005, and amended on
August 22, 2007, consisted of a tribal ordinance, entitled ``Area Wide
NO<INF>X</INF> Emissions Limitation Regulation,'' which established a
limit on nitrogen oxide (``NO<INF>X</INF>'') emissions from stationary
sources owned by the Mohegan Tribal Gaming Authority and located within
the external boundaries of the Mohegan Reservation in Connecticut. The
TIP was intended to function as a federally enforceable synthetic minor
limit to keep the six boilers at the Mohegan Sun Casino from triggering
major source NSR and Title V operating permit requirements for major
sources. EPA granted approval of the Mohegan TIP in a final rule
published on November 14, 2007 (72 FR 63988).
The Mohegan Environmental Protection Department (MEPD) assumes
responsibility for administering the Mohegan TIP. The MEPD was
established by Resolution of the Tribal Council on December 18, 2002,
pursuant to the Council's constitutional authority to promote the
health and general welfare of the Tribe and to
[[Page 2300]]
establish a basic departmental structure for the executive branch. The
MEPD is an executive department of the Office of the Chief of Staff to
the Chairman of the Tribal Council and reports monthly to the Chief of
Staff and quarterly to the Tribal Council. See Ordinance 2002-12
(``MEPD Ordinance'') (Tribal Application, Exhibit 11) sections 2 and 5;
Tribal Application, Exhibit 5 (chart depicting governmental structure).
The MEPD is ``charged with the development, administration and
enforcement of the Tribal Implementation Plan enacted pursuant to the
Clean Air Act and any such other environmental program approved by the
Tribal Council.'' See MEPD Ordinance, section 3. In particular, the
MEPD Administrator has authority to develop and promulgate guidance,
rules, and regulations to implement tribal environmental programs, with
Tribal Council approval; to enforce environmental and natural resource
rules and regulations; to promulgate reasonable and appropriate
enforceable policies and procedures and a schedule of civil/criminal
penalties to be assessed for violations of the MEPD's rules and
regulations, with Tribal Council approval; and, where the Tribe is
precluded from asserting criminal enforcement authority, to execute
agreed upon procedures concerning alleged criminal violations. See MEPD
Ordinance section 4.
Furthermore, EPA Region 1 and the Mohegan Tribe of Indians of
Connecticut have entered into a memorandum of agreement with each other
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 Mohegan
Tribe of Indians of Connecticut and the U.S. Environmental Protection
Agency Region 1 (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.
The Tribe submitted a revision to its TIP on April 17, 2009. The
revision included a monthly NO<INF>X</INF> emissions limitation for new
emission units, namely uncontrolled diesel generators and controlled
diesel generators. The revisions also vested the Administrator of the
MEPD with enforcement authority for violations of the Mohegan TIP.
Specifically, the revisions provided 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 revisions, any entity
or individual whose legal rights are affected by any decision of the
Administrator regarding 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. EPA approved the revision of the
Mohegan TIP on September 28, 2009 (74 FR 49327).
IV. Overview of the Mohegan Tribe's July 2022 TIP Revision
The Mohegans submitted a TIP revision to EPA on July 28, 2022, to
establish and set forth the criteria and procedures that the MEPD
Administrator (as defined in section 5-302-A) will use to administer a
preconstruction permitting program for new and modified minor sources
and minor modifications at stationary sources. The revised program also
includes the addition of a source registration program for new and
existing sources and provisions to obtain an area-wide limit for
existing sources. The revisions also outline a process by which the
Mohegan Tribe can establish permit by rules, and the Tribe has adopted
one permit by rule into their body of regulations for gasoline
dispensing facilities as part of these revisions. The Tribe's revisions
include procedures for public notification and participation regarding
permitting activities and provisions to allow for, in limited
circumstances, administrative permit revisions. Elements of the Tribe's
revised TIP are discussed in greater detail below.
NSR Preconstruction Permitting Program
The Tribe's NSR preconstruction permitting program sets
applicability for emissions increases at new and modified existing
sources through emissions thresholds at Table 1 to section 5-303-A.
Sources with an emissions increase in excess of the thresholds are
required to submit a permit application consistent with the procedures
of Appendix A of Article XIII-A. The Tribe may issue a permit
containing all required elements as described in Appendix B of Article
XIII-A, including such items as general requirements, emission limits,
monitoring, recordkeeping, and reporting requirements. Public notice of
draft permit decisions made by the Tribe are to be noticed for public
review in accordance with the Tribe's public participation requirements
at section 5-309-A.
Source Registration
Source registration requirements are detailed in section 5-303-
A(a)(1) and Appendix D. Due dates to register vary between existing
true minor sources, existing synthetic minor source subject to the
Mohegan's Area Wide Limitations for NOx Emissions rule, and new true
minor sources. Content requirements are detailed for all registration
information on forms provided by the MEPD Administrator. The procedure
for estimating emissions outlines how registrations should include
potential to emit or estimates of the allowable and actual emissions,
in tons per year, of each regulated NSR pollutant for each emission
unit at the source. After the source has been registered, additional
reporting of relocation, change of ownership, and closure are required
and detailed in Appendix D.
Area Wide Limits
Procedures for establishing area-wide limits for existing sources
(i.e., synthetic minor sources) are detailed in section 5-303-A.
Substantive requirements in Appendix C of the Mohegan's minor NSR
program contain provisions for the Tribe to establish permits for
sources seeking area wide limits that contain adequate testing,
monitoring, record-keeping, and reporting requirements to be used to
demonstrate and assure compliance with proposed limitations.
Permit by Rule Provisions and Adoption of Gasoline Dispense Permit by
Rule
Section 5-303-A(1) outlines the process by which the Tribe approves
general permits/permits by rule for the purpose of complying with the
preconstruction permitting requirements for specific source categories'
emissions of regulated NSR pollutants under this program. This section
includes a description of the Tribe's authority and procedure for
adopting permit by rules, applicability, permit issuance, determination
of permit by rule source categories, permit by rule content, and
obtaining coverage under a permit by rule.
Included in the Tribe's program is a permit by rule for new or
modified true minor source gasoline dispensing facilities, detailed in
Appendix E. Information about this permit by rule includes
applicability, eligibility, notification of coverage, termination, and
definitions. Permit by rule terms and conditions include general
[[Page 2301]]
provisions, which covers construction and operation, locations,
liability, severability, compliance, NAAQS/prevention of significant
deterioration protection, unavailable defense, property rights,
information requirements, inspection and entry, posting of coverage,
duty to obtain a source-specific permit, and credible evidence.
Emission limitations and standards, monitoring and testing
requirements, and record keeping requirements are also stated in the
permit by rule. Notification and reporting requirements include
notifications on change in ownership or operator, notification of
closure, annual reports, deviation reports, and performance test
reports, all of which require a signature verifying truth, accuracy and
completeness of the report.
Public Notice and Participation Provisions
Section 5-309-A. applies to the issuance of minor source permits,
synthetic minor source permits, the initial issuance of permits by
rule, and to coverage of a particular source under an established
permit by rule. The MEPD Administrator shall provide public
notification and participation of tentative determinations regarding
permit applications, providing a copy to EPA Region 1 and to all other
air pollution control agencies having jurisdiction in the region in
which such new or modified installation will be located. The Tribe's
rule also establishes procedures for requesting a public hearing on
tentative determinations and notice of final permit decisions.
Provisions for Permit Revisions
The TIP contains provisions for a permit to be revised, reopened,
revoked, and reissued, or terminated for cause. The filing of a request
by the permittee for a revision, revocation and re-issuance, or
termination, or of a notification of planned changes or anticipated
noncompliance of an individual permit does not stay or affect any
condition contained in a permit by rule. Administrative permit
revisions are governed by the provisions stated in section 5-314-A.
Interaction With Previously Approved Mohegan TIP
The previously approved Mohegan TIP established an enforceable cap
of nitrogen oxide emissions from stationary sources owned by the
Mohegan Tribal Gaming Authority and located within the external
boundaries of the Mohegan Reservation. The Mohegan Tribe's July 2022
TIP revision addresses all regulated NSR pollutants for all tribal
sources, except for NO<INF>X</INF> at sources regulated under Article
XIII of the existing TIP, by establishing a federally enforceable
preconstruction permitting program within the exterior boundaries of
the Tribe's reservation. This distinction in applicability is discussed
in the introductory paragraph to Article XIII-A of the Tribe's July
2022 submittal.
V. EPA's Evaluation of the Mohegan Tribe's July 2022 TIP Revision
EPA has evaluated the Mohegan Tribe's revised TIP submittal; in the
following sections we provide our assessment of the Tribe's program
with respect to Clean Air Act requirements. The purpose of the Tribe's
minor NSR 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
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 (August 25, 1994) (proposed TAR preamble); 63 FR 7254 (February
12, 1998) (final TAR preamble).
For the reasons discussed below, we propose to approve the Mohegan
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. The
Tribe's regulation, while structured differently, remains consistent
with requirements in EPA's Federal Minor New Source Review Program in
Indian Country. See 40 CFR 49.151 through 49.164. EPA's analysis of the
various elements of the Mohegan's TIP Revision are described in more
detail below.
NSR Preconstruction Permitting Program
Section 110(a)(2)(C) of the Act (42 U.S.C. 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 TIP revision,
the Mohegan Tribe is establishing a preconstruction permitting program
for new minor sources and minor modifications at stationary sources.
Parts C and D of the CAA, which pertain to prevention of significant
deterioration (PSD) and nonattainment NSR, 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'', as defined in section 5-302-A(d),
is lower than the major source thresholds, also defined within section
5-302-A(d) of the tribe's regulation, of 50 tons per year or more for
NO<INF>X</INF> or VOC, and 100 tons per year or more for any other
regulated NSR pollutant.
The Mohegan's NSR program applies to new true minor NSR sources and
modifications at existing sources. Section 5-303-A(b)(1)(i)-(ii) of the
Tribe's regulation describes the way in which these sources would
calculate whether an emissions increase at a new true minor source or a
modification at existing source would need to obtain a permit prior to
beginning construction of the new source or modification. If a permit
is required, section 5-306-A of the tribe's regulation directs
prospective permittees to follow provisions within Appendix A for
specific requirements on what information must be in a permit
application. 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 MEPD Administrator an air quality impact analysis in accordance
with 40 CFR part 51, appendix W.
Appendix B of the Mohegan TIP includes details on permit content,
which includes authorities to impose emission limitations, monitoring
requirements, reporting requirements and recordkeeping requirements.
EPA finds that the requirements of the Mohegan's minor NSR program
follow
[[Page 2302]]
the procedures to determine applicability, permit application
requirements, and permit requirements in EPA's Federal Minor New Source
Review Program in Indian Country at 40 CFR 49.153 through 49.155.
The Mohegan's minor NSR 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 (tpy) thresholds:
(a) Nitrogen oxides (NO<INF>X</INF>), 5 tpy
(b) Volatile Organic Compounds, 2 tpy
(c) Carbon monoxide (CO), 10 tpy
(d) Sulfur dioxide (SO<INF>2</INF>), 10 tpy
(e) Particulate Matter, 10 tpy
(f) PM<INF>10</INF>, 5 tpy
(g) PM<INF>2.5</INF>, 3 tpy
(h) Lead, 0.1 tpy
(i) Fluorides, 1 tpy
(j) Sulfuric acid mist, 2 tpy
Source Registration
The Tribe's requirements for existing true minor sources, existing
synthetic minor sources for NO<INF>X</INF> covered by Article XIII, and
new true minor sources and modified sources provide for reasonable and
enforceable measures for the Tribe to account for all applicable
sources within their jurisdiction. Existing sources must register with
the MEPD Administrator within 60 days of the enactment of the TIP, and
new sources and modified sources must register with the MEPD
Administrator as part of their permit application. EPA finds this
source registration program to account for all potentially subject
sources with clear guidance in regulation on how to register with the
MEPD Administrator.
Area Wide Limits
The Tribe has adopted synthetic minor source permitting provisions
that, while structured differently, are substantively identical to
EPA's rule at 40 CFR 49.158. The Mohegan's area-wide limit requirements
apply to both NSR pollutants and hazardous air pollutants (HAPs)
consistent with EPA's Tribal Minor NSR rule in Indian Country. EPA find
the requirements within Appendix C of the Mohegan's minor NSR program
to adequately establish the necessary testing, monitoring,
recordkeeping, and reporting requirements to ensure compliance with
proposed limitation.
Permit by Rule Provisions and Adoption of Gasoline Dispense PBR
The Tribe has developed regulatory procedures to adopt permit by
rules consistent with EPA's own procedures to adopt permit by rules
within 40 CFR 49.156. The Tribe has also adopted a permit by rule for
new or modified true minor source gasoline dispensing facilities which
is identical to EPA's own air quality permit by rule for new or
modified true minor source gasoline dispensing facilities in Indian
country at 40 CFR 49.164.
Public Notice and Participation Requirements
The Tribe has adopted public notice and participation requirements
that are consistent with EPA's rule at 40 CFR 49.157. The Mohegan
Tribe'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 publication; a thirty
(30) day period for EPA to review commencing upon the date a copy of
the required notice is provided to EPA; and if requested by a member of
the public, a public hearing relating to tentative approval of the
permit shall be held with appropriate notice provided.
B. What procedural requirements did the Mohegan Tribe 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.
We find that the Mohegan's process for adopting and submitting the
TIP satisfies the procedural requirements for adoption and submission
of implementation plans under CAA section 110(a) and EPA's implementing
regulations.
Specifically, the Mohegan'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
July 28, 2022 from James Gessner, Jr., Chairman, to Patrick Bird, Air
Permits, Toxics, and Indoor Programs Branch Manager, EPA New England
Region 1 (Cover Letter), (2) evidence that the Tribe has adopted the
plan in the Tribal code or body of regulations including the date of
adoption or final issuance as well as the effective date of the plan,
(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, (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 (Exhibit
A), (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, (7) certification that public hearings
were held in accordance with information provided in the public notice
and the Tribe's laws and constitution, and (8) compilation of public
comments and the Tribe's responses thereto.
VI. Proposed Action
EPA is proposing to approve the Mohegan Tribe of Indians of
Connecticut's Tribal Implementation Plan under the Clean Air Act to
regulate air pollution within the exterior boundaries of the Tribe's
reservation. The proposed TIP includes minor NSR preconstruction
permitting requirements and allows for sources that would otherwise be
major to take restrictions on their potential to emit to below major
source thresholds. Specifically, we are proposing to approve Resolution
No. 2022-31 which incorporates Article XIII-A. EPA is soliciting public
comments on the issues discussed in this document 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 this proposed rulemaking by following
the instructions listed in the ADDRESSES section of this Federal
Register.
VII. 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 Mohegan Tribe's Resolution No. 2022-31, which
incorporates Article XIII-A and establishes a minor NSR preconstruction
permitting program and allows for sources that would otherwise be major
to take restrictions on their potential to emit to below major source
thresholds. The EPA has made, and will continue to make, these
documents generally available through https://
[[Page 2303]]
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).
VIII. 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. See 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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: January 9, 2023.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2023-00552 Filed 1-12-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.