
[Federal Register: September 28, 2009 (Volume 74, Number 186)]
[Rules and Regulations]               
[Page 49327-49330]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se09-11]                         

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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.

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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: mcdonnell.ida@epa.gov.
    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 
mcdonnell.ida@epa.gov.

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.
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    \1\ Potential to emit means the maximum capacity of a stationary 
source to emit any air pollutant under its physical and operational 
design.
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    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
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                                                            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.
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[FR Doc. E9-23259 Filed 9-25-09; 8:45 am]

BILLING CODE 6560-50-P
