

[Federal Register: December 10, 2007 (Volume 72, Number 236)]
[Rules and Regulations]               
[Page 69618-69621]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de07-24]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R02-OAR-2004-TR-0001; FRL-8488-9]

 
Approval and Promulgation of Saint Regis Mohawk's Tribal 
Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving the St. Regis Mohawk Tribe (SRMT) Tribal 
Implementation Plan (TIP). The SRMT TIP contains programs to address 
ambient air quality standards, emissions inventory, permitting, 
synthetic minor facilities, source surveillance, open burning, 
enforcement, review of state permits, and regional haze planning. EPA's 
action makes the approvable portions of the SRMT TIP, as discussed in 
this action, federally enforceable. The approvable portions of the TIP 
are equivalent to current EPA regulations, procedures, or ambient air 
quality standards. The intended effect of the approved TIP is to 
protect air quality and population within the exterior boundaries of 
the SRMT Reservation.

DATES: Effective Date: This rule is effective on January 9, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2004-TR-0001. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, e.g., 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 
http://www.regulations.gov or in hard copy at the Environmental Protection 

Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. This Docket Facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007, (212) 637-3708.

SUPPLEMENTARY INFORMATION: On August 14, 2007 (72 FR 45397), EPA 
published a proposal for the approval of portions of the SRMT TIP. The 
final action makes federally enforceable the portions of the SRMT TIP 
that contain programs to address: Ambient air quality standards for 
sulfur dioxide (SO2), particulate matter (PM10 
and PM2.5), nitrogen dioxide (NO2), and ozone 
(O3); emissions inventory; permitting; synthetic minor 
facilities; source surveillance; open burning; enforcement; review of 
state permits; and regional haze planning. EPA is not approving ambient 
air quality standards in the SRMT TIP for fluoride and metals since 
they are not equivalent to EPA ambient air quality standards.
    The SRMT is a federally recognized Indian tribe recognized by the 
U.S. Secretary of the Interior. Beginning in 2001, with assistance from 
EPA, the Tribe began developing a TIP with the goal of protecting the 
population within the Reservation from air pollution by controlling or 
abating existing and new sources. Under the provisions of the Clean Air 
Act (CAA or Act) and EPA's regulations, Indian tribes must meet 
eligibility criteria spelled out in the Act and the Tribal Authority 
Rule (TAR), in order to be treated in the same manner as a state for 
the purpose of developing an implementation plan. These criteria are: 
(1) The Tribe is federally recognized; (2) the Tribe has a governing 
body that carries out substantial duties and powers; (3) the functions 
the Tribe applied for carrying out pertain to the management and 
protection of air

[[Page 69619]]

resources within the exterior boundaries of the reservation (or other 
areas within the Tribe's jurisdiction); and, (4) the Tribe is 
reasonably expected to be capable of performing the functions the Tribe 
applied to carry out in a manner consistent with the terms and purposes 
of the Act and all applicable regulations. On March 5, 2003, EPA 
determined that the SRMT met the criteria in the Act and TAR, for 
treatment in the same manner as a state for the purpose of developing 
and implementing a TIP. The SRMT did not request an eligibility 
determination for the area known as the Hogansburg Triangle and EPA 
made no determination with respect to that area.
    To support the approval of the TIP, in a Tribal Council Resolution 
dated December 3, 1999, the SRMT Tribal Council gave the SRMT 
Environmental Division authority to administer CAA programs on behalf 
of the tribe. The SRMT adopted the rules comprising the TIP into Tribal 
Law and entered into a Memorandum of Agreement with EPA Region 2 and 
EPA's Criminal Investigation Division concerning the criminal 
enforcement of air pollution rules and regulations. The SRMT Police and 
Conservation Officers will assume enforcement activities for the 
purpose of compliance with air regulations. The Peacemakers Court-Civil 
Disobedience Division will be the arbitrator of all summons and 
complaints filed under the TIP. The SRMT will refer to the appropriate 
EPA or U.S. Department of Justice Office alleged criminal violations 
when alleged violators are non-Indian as well as all alleged criminal 
activity where the fine is greater than $5,000 or the penalty would 
require imprisonment for more than one year.
    Other specific details concerning the TIP and rationale for EPA's 
action are explained in the proposed rule and will not be restated 
here.
    Comments: No adverse comments were received; one supportive comment 
was received.
    Conclusion: EPA is approving portions of the SRMT TIP and making 
them federally enforceable. The approved sections of the TIP contain 
programs to address: Ambient air quality standards for SO2, 
PM, NO2, and O3; emissions inventory; permitting; 
synthetic minor facilities; source surveillance; open burning; 
enforcement; review of state permits; and regional haze planning. The 
approved portions of the TIP will help protect air quality within the 
exterior boundaries of the SRMT Reservation in accordance with Federal 
requirements.

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 approves laws of an eligible Indian tribe 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).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' EPA has concluded that this 
rule will have tribal implications in that it will have substantial 
direct effects on the SRMT. However, it will neither impose substantial 
direct compliance costs on tribal governments, nor preempt tribal law. 
EPA is approving the SRMT's TIP at the request of the Tribe. Tribal law 
will not be preempted as the SRMT has already incorporated the TIP into 
Tribal Law on October 3, 2002. The Tribe has applied for, and fully 
supports, the approval of the TIP. This approval makes the TIP 
federally enforceable.
    EPA worked and consulted with officials of the SRMT early in the 
process of developing this regulation to permit them to have meaningful 
and timely input into its development. In order to administer an 
approved TIP, tribes must be determined eligible (40 CFR part 49) for 
TAS for the purpose of administering a TIP. During the TAS eligibility 
process, the Tribe and EPA worked together to ensure that the 
appropriate information was submitted to EPA. SRMT and EPA also worked 
together throughout the process of development and Tribal adoption of 
the TIP. The Tribe and EPA also entered into an enforcement MOA. 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)). 
This action approves a Tribal rule implementing a TIP over areas within 
the exterior boundaries of the St. Regis Mohawk Reservation, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This proposed rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885 (April 
23, 1997)), because it is approves a tribal plan implementing Federally 
equivalent standards.
    In reviewing SIP submissions, EPA(s role is to approve state 
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 
State 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.).
    The Congressional Review Act, 5 U.S.C. section 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 
rule 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).

[[Page 69620]]

    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 February 8, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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. 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: October 22, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.

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.


0
2. Subpart E of Part 49 is amended by adding an undesignated center 
heading and Sec.  49.471 as follows:

Subpart E--Implementation Plans for Tribes--Region II

Implementation Plan for the Saint Regis Mohawk Tribe


Sec.  49.471  Identification of plan.

    (a) Purpose and scope. This section contains the approved 
implementation plan for the St. Regis Mohawk Tribe dated February 2004. 
The plan consists of programs and procedures that cover public 
participation, plan revisions, ambient air quality standards, emissions 
inventory, permitting, synthetic minor facilities, source surveillance, 
open burning, enforcement, review of state permits, regional haze 
planning, and reporting.
    (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.
    (2) EPA Region II 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 December 10, 2007.
    (3) Copies of the materials incorporated by reference may be 
inspected at the Region II Office of EPA at 290 Broadway, 25th Floor, 
New York, NY 10007-1866; 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. 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 St. Regis Mohawk Tribe Regulations
----------------------------------------------------------------------------------------------------------------
                                                       Tribal effective
         Tribal citation             Title/subject           date          EPA approval date     Explanations
----------------------------------------------------------------------------------------------------------------
St. Regis Mohawk Tribe, Tribal    Definitions.......  February 2004.....  December 10, 2007   ..................
 Implementation Plan, version 3,                                           [Insert Federal
 Section 5.                                                                Register page
                                                                           number where the
                                                                           document begins].
St. Regis Mohawk Tribe, Tribal    Air Quality         February 2004.....  December 10, 2007   Subsections 9.6
 Implementation Plan, version 3,   Standards.                              [Insert Federal     and 9.7 are not
 Section 9.                                                                Register page       part of the
                                                                           number where the    Federally
                                                                           document begins].   approved TIP.
St. Regis Mohawk Tribe, Tribal    General Permit      February 2004.....  December 10, 2007   ..................
 Implementation Plan, version 3,   Requirements.                           [Insert Federal
 Section 11.                                                               Register page
                                                                           number where the
                                                                           document begins].
St. Regis Mohawk Tribe, Tribal    Permits for Minor   February 2004.....  December 10, 2007   ..................
 Implementation Plan, version 3,   Facilities.                             [Insert Federal
 Section 12.                                                               Register page
                                                                           number where the
                                                                           document begins].
St. Regis Mohawk Tribe, Tribal    Synthetic Minor     February 2004.....  December 10, 2007   ..................
 Implementation Plan, version 3,   Facilities.                             [Insert Federal
 Section 13.                                                               Register page
                                                                           number where the
                                                                           document begins].
St. Regis Mohawk Tribe, Tribal    Source              February 2004.....  December 10, 2007   ..................
 Implementation Plan, version 3,   Surveillance.                           [Insert Federal
 Section 14.                                                               Register page
                                                                           number where the
                                                                           document begins].
TCR-2002-59.....................  Tribal Burn         February 2004.....  December 10, 2007   ..................
                                   Regulation.                             [Insert Federal
                                                                           Register page
                                                                           number where the
                                                                           document begins].

[[Page 69621]]


Memorandum of Agreement.........  Memorandum of       11/20/2003........  December 10, 2007   ..................
                                   Agreement dated                         [Insert Federal
                                   November 20,                            Register page
                                   2003, between the                       number where the
                                   St. Regis Mohawk                        document begins].
                                   Tribe and the
                                   U.S.
                                   Environmental
                                   Protection Agency
                                   Region II.
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 [FR Doc. E7-23718 Filed 12-7-07; 8:45 am]

BILLING CODE 6560-50-P
