[Federal Register Volume 74, Number 186 (Monday, September 28, 2009)]
[Rules and Regulations]
[Pages 49327-49330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23259]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R01-OAR-2009-0305; A-1-FRL-8949-8]
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: [email protected].
3. Fax: (617) 918-0653.
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
[[Page 49328]]
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 (860) 862-6112.
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
(617) 918-1653, fax number (617) 918-0653, e-mail
[email protected].
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 NOX Emissions Limitation Regulation,'' establishing 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. 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\ NOx 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 NOx 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.
---------------------------------------------------------------------------
\1\ Potential to emit means the maximum capacity of a stationary
source to emit any air pollutant under its physical and operational
design.
---------------------------------------------------------------------------
On April 17, 2009, the Tribe submitted a formal revision to the
Mohegan TIP (``Revision''). The Revision includes a monthly NOx
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 NOx 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
[[Page 49329]]
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.
0
Part 49 of chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 49--[AMENDED]
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--[Amended]
0
2. Section 49.201 is amended by revising paragraph (b) and (c) to read
as follows:
Sec. 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
[[Page 49330]]
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
Tribal citation Title/subject effective date EPA approval date Explanations
----------------------------------------------------------------------------------------------------------------
Mohegan Tribal Resolution........ Approval of Amended 02/18/2009 09/29/09 [Insert Mohegan Tribal
2009-28.......................... Tribal Air Program Federal Register Resolution 2009-28
Area Wide NOX page number where includes the
Emission the document ``Area Wide NOx
Limitation begins]. Emission
Regulation. Limitation
Regulation.''
Mohegan Tribal Gaming Authority Confirmation and 2/18/2009 09/29/09 [Insert ...................
Resolution MTGA 2009-07. Approval of Federal Register
Amended Tribal Air page number where
Program ``Area the document
Wide NOX Emission begins].
Limitation
Regulation.''.
Memorandum of Agreement.......... Memorandum of 12/26/06 11/14/07, 72 FR
Agreement dated 63988..
December 26, 2006,
between the
Mohegan Tribe of
Indians of
Connecticut and
the U.S.
Environmental
Protection Agency
Region I.
----------------------------------------------------------------------------------------------------------------
[FR Doc. E9-23259 Filed 9-25-09; 8:45 am]
BILLING CODE 6560-50-P