Approval and Promulgation of Saint Regis Mohawk's Tribal Implementation Plan, 45397-45404 [E7-15921]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Proposed Rules]
[Pages 45397-45404]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15921]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[Docket No. EPA-R02-OAR-2004-TR-0001, FRL-8453-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the proposed St. Regis Mohawk Tribe's (SRMT or the 
Tribe) tribal implementation plan (TIP) to improve air quality within 
the exterior boundaries of the St. Regis Mohawk Reservation (the 
Reservation) that are in accordance with federal requirements. EPA 
previously approved the Tribe for treatment-in-the-same-manner-as-a-
state (TAS) under the Clean Air Act (Act) for purposes of administering 
a TIP on March 5, 2003. The proposed TIP establishes Tribal ambient air 
quality standards; includes an emissions inventory; provides 
regulations for permitting, source surveillance, open burning and 
enforcement; and defines the Tribe's program for review of state 
permits and regional haze planning. This action will make federally 
enforceable the approvable portions of the SRMT's proposed TIP.

DATES: Comments must be received on or before September 13, 2007.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R02-OAR-
2004-TR-0001, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Werner.Raymond@epa.gov.
     Fax: 212-637-3901.
     Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. 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 Federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2004-
TR-0001. EPA's policy is that all comments

[[Page 45398]]

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 information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or e-mail. The www.regulations.gov Web site 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 or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/
epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3708 or Lau.Gavin@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. EPA Action Being Proposed Today
II. Introduction
III. Background
    A. What is the Clean Air Act and its relationship to Indian 
tribes?
    1. What is an implementation plan?
    2. How do Tribal Implementation Plans compare to State 
Implementation Plans?
IV. Tribal Implementation Plan Requirements
    What is required for the approval of a Tribal Implementation 
Plan?
V. St. Regis Mohawk Tribe's TIP Submittal
    A. What did EPA determine in finding the St. Regis Mohawk Tribe 
Eligible for TAS?
    B. What authority does the St. Regis Mohawk Tribe Environment 
Division have?
    C. What role does EPA have in criminal enforcement?
    D. When did SRMT adopt the Tribal Implementation Plan under 
Tribal Law?
    E. What is included in the SRMT TIP submittal?
    1. Ambient Air Quality Standards
    2. Emissions Inventory
    3. Permits
    4. Source Surveillance
    5. Open Burning
    6. Enforcement
    7. Review of State Permits
    8. Regional Haze Planning
VI. What EPA action is being taken today?

I. EPA Action Being Proposed Today

    EPA is proposing approval of the St. Regis Mohawk Tribe's TIP 
submission which contains programs to address: Ambient air quality 
standards for sulfur dioxide (SO2), particulate matter (PM), 
nitrogen dioxide (NO2), ozone (O3), fluoride, and 
heavy metals; Emissions Inventory; Permitting; Synthetic Minor 
Facilities; Source Surveillance; Open Burning; Enforcement; Review of 
State Permits; and Regional Haze Planning.

II. Introduction

    The St. Regis Mohawk Tribe (SRMT) is an Indian tribe federally 
recognized by the U.S. Secretary of the Interior. See 70 FR 71194, 
71196 (November 25, 2005). Beginning in 2001, the SRMT, with assistance 
from EPA, began developing a draft TIP and its various elements with 
the goal of eventually submitting the TIP to EPA for approval. On 
December 10, 2001, the SRMT requested that EPA find the Tribe eligible 
for TAS, pursuant to section 301(d) of the Clean Air Act and Title 40 
part 49 of the Code of Federal Regulations (CFR), for the purpose of 
developing and carrying out a TIP. On March 5, 2003, EPA determined 
that the Tribe is eligible for TAS for that purpose. Having found that 
the SRMT is eligible for TAS, EPA is now proposing approval of the 
Tribe's TIP. The Tribe did not apply for TAS eligibility for the area 
known as the Hogansburg Triangle, and EPA made no determination with 
respect to that area. Therefore, the proposed TIP would not apply to 
the Hogansburg Triangle. The St. Regis Mohawk Tribe Tribal 
Implementation Plan, revision 003, was formally submitted to EPA on 
February 26, 2004.
    The SRMT's TIP has been developed to protect the Reservation 
populace from air pollution by controlling or abating existing and new 
sources. The TIP includes ambient air quality standards for 
SO2, PM, NO2, O3, fluoride, and heavy 
metals. Other programs in the TIP include emissions inventory, 
permitting, synthetic minor facilities, source surveillance, open 
burning, enforcement, review of state permits, and regional haze 
planning.

III. Background

A. What is the Clean Air Act and its Relationship to Indian tribes?

    The Clean Air Act (Act) was originally passed in 1970 and has been 
the subject of substantial amendments, most recently in 1990. Among 
other things, the Act: Requires the EPA to establish National Ambient 
Air Quality Standards (NAAQS) for certain pollutants; requires the EPA 
to develop programs to address specific air quality problems; 
establishes the EPA's enforcement authority; and provides for air 
quality research. As part of the 1990 amendments, Congress added 
section 301(d) to the Act authorizing EPA to treat eligible Indian 
tribes in the same manner as states and directing EPA to promulgate 
regulations specifying those provisions of the Act for which TAS is 
appropriate. In February of 1998, EPA implemented this requirement by 
promulgating the Tribal Authority Rule (TAR) (63 FR 7254 (February 12, 
1998), codified at 40 CFR part 49). EPA included relevant provisions 
relating to implementation plans among the provisions for which TAS is 
appropriate (exceptions are identified in 40 CFR 49.4).
    Under the provisions of the Act and EPA's regulations, Indian 
tribes must demonstrate that they meet the eligibility criteria in 
section 301(d) of the Act and the TAR in order to be treated in the 
same manner as a state. The eligibility criteria are: (1) The Indian 
tribe is federally-recognized; (2) the Indian tribe has a governing 
body carrying out substantial governmental duties and powers; (3) the 
functions the Indian tribe is applying to carry out pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation (or other areas within the Indian tribe's 
jurisdiction); and, (4) the Indian tribe is reasonably expected to be 
capable of performing the functions the Indian tribe is applying to 
carry out in a manner consistent with the terms and purposes of the Act 
and all applicable regulations.
1. What is an implementation plan?
    An implementation plan is a set of programs and regulations 
developed by the appropriate regulatory agency in order to assure 
healthy air quality through the attainment and maintenance of the 
NAAQS. These plans can be developed by states, eligible Indian tribes, 
or the EPA, depending on the entity with jurisdiction and EPA approval 
in a particular area. For states, such plans, once approved by EPA, are 
referred to as State Implementation Plans or SIPs.

[[Page 45399]]

Similarly, for eligible Indian tribes these plans, once approved, are 
called Tribal Implementation Plans or TIPs. Occasionally, EPA will 
develop an implementation plan for a specific area or source. This is 
referred to as a Federal Implementation Plan or a FIP. Once final 
approval is published in the Federal Register, the provisions of an 
implementation plan become federally enforceable. An applicable 
implementation plan may be comprised of both TIPs and FIPs and/or SIPs 
and FIPs.
    The contents of a typical implementation plan may fall into three 
categories: (1) Agency-adopted control measures, which consist of 
rules, regulations or source-specific requirements (e.g., orders, 
consent decrees or permits); (2) agency-submitted ``non-regulatory'' 
components (e.g., attainment plans, rate of progress plans, emission 
inventories, transportation control measures, statutes demonstrating 
legal authority, monitoring programs); and (3) additional requirements 
promulgated by the EPA (in the absence of a commensurate agency 
provision) to satisfy a mandatory Clean Air Act section 110 or part D 
requirement. The implementation plan is a living document which can be 
revised by the state or eligible Indian tribe as necessary to address 
air pollution problems. Accordingly, the EPA from time to time must 
take action on implementation plan revisions which may contain new and/
or revised regulations that will become part of the implementation 
plan.
    Upon submittal to EPA, the Agency reviews implementation plans for 
conformance with federal policies and regulations. If the 
implementation plan conforms, the State's or eligible Indian tribe's 
regulations become federally enforceable upon EPA approval. The 
codification is usually accomplished by first announcing the EPA's 
findings in the Federal Register through a Proposed Rulemaking, with an 
appropriate public comment period. After evaluating comments received 
on the proposal, a Final Rulemaking Action will be published by EPA, 
which will incorporate the implementation plan, if approved, into the 
CFR.
2. How do Tribal Implementation Plans compare to State Implementation 
Plans?
    The Act requires each state to develop, adopt, and submit an 
implementation plan for EPA approval into the SIP. Several sections of 
Title I of the Act provide structured schedules and mandatory 
requirements for SIP preparation and contents. These are further 
developed in 40 CFR part 51. The SIP program reflects each state's 
particular needs and air quality issues. At a minimum, SIPs must meet 
minimum federal standards. If a state fails to submit an approvable SIP 
within the schedules provided in the Act, sanctions can be imposed on 
the state, and if the state still does not submit an approvable 
implementation plan, the EPA is required to develop and enforce a FIP 
to implement the applicable Act requirements for that state.
    Sections 110 and 301(d) of the Act and EPA's implementing 
regulation at 40 CFR part 49 provide for tribal implementation of 
various Act programs including TIPs. Eligible Indian tribes can choose 
to implement certain Act programs by developing and adopting a TIP and 
submitting the TIP to EPA for approval. TIPs: (1) Are optional; (2) may 
be modular; (3) have flexible submission schedules; and (4) allow for 
joint tribal and EPA management as appropriate.
     Optional--The Act requires each state to develop, adopt 
and submit a proposed SIP for EPA approval. Unlike states, Indian 
tribes are not required to adopt an implementation plan. In the TAR, 
the EPA recognized that not all Indian tribes will have the need or the 
desire for an air pollution control program, and EPA specifically 
determined that it was not appropriate to treat tribes in the same 
manner as states for purposes of plan submittal and implementation 
deadlines. See 40 CFR 49.4.
     Modular--The TAR offers eligible Indian tribes the 
flexibility to include in a TIP only those implementation plan elements 
that address their specific air quality needs and that they have the 
capacity to manage. Under this modular approach, the TIP elements the 
eligible Indian tribe adopts must be ``reasonably severable'' from the 
package of elements that can be included in a whole TIP. ``Reasonably 
severable'' means that the parts or elements selected for the TIP are 
not necessarily connected or interdependent to parts that are not 
included in the TIP, and are consistent with applicable Act and 
regulatory requirements. TIPs are fundamentally different than SIPs 
because while the Act requires States to prepare an implementation plan 
that meets all of the requirements of section 110 of the Act, an Indian 
tribe may adopt TIP provisions that address only some elements of 
section 110.
     Have Flexible Submission Schedules--Neither the Act nor 
the TAR requires Indian tribes to develop TIPs. Therefore, unlike 
states, Indian tribes are not required to meet the implementation plan 
submission deadlines or attainment dates specified in the Act. Indian 
tribes can establish their own schedules and priorities for developing 
TIP elements (e.g., regulations to limit emissions of a specific air 
pollutant) and submitting them to the EPA. Indian tribes will not face 
sanctions for failing to submit or for submitting incomplete or 
deficient implementation plans. See 40 CFR 49.4.
     Allow for Joint Tribal and EPA Management--Consistent with 
the Act and the TAR, eligible Indian tribes can revise a TIP to include 
appropriate new programs or return programs to EPA for Federal 
implementation as necessary or appropriate based on changes in tribal 
need or capacity. The EPA may regulate emission sources that the Indian 
tribe chooses not to include in a TIP if it is necessary or appropriate 
to adequately protect air quality. This type of joint management is 
expected to result in a program fully protective of tribal air 
resources.

IV. Tribal Implementation Plan Requirements

What is required for the approval of a Tribal Implementation Plan?

    For a tribe to receive EPA approval of a TIP, the tribe must, among 
other things:
     Obtain a determination from EPA that the tribe is eligible 
for TAS for purposes of the TIP;
     Submit to EPA a TIP that satisfies requirements of the Act 
and relevant regulations that apply to the plan elements and functions 
the tribe seeks to carry out.
    To be found eligible for TAS for the purpose of carrying out an 
implementation plan under the Act, the tribe must meet the requirements 
of section 301(d) of the Act and 40 CFR 49.6:
     The Indian tribe must be federally recognized;
     The Indian tribe must have a governing body carrying out 
substantial governmental duties and powers over a defined area;
     The functions to be exercised by the tribe must pertain to 
the management and protection of air resources within the exterior 
boundaries of the tribe's reservation or other areas within the tribe's 
jurisdiction;
     The Indian tribe must be reasonably expected to be 
capable, in the EPA Regional Administrator's judgment, of carrying out 
the functions to be exercised in a manner consistent with the terms and 
purposes of the Act and all applicable regulations.
    The following technical elements may be included in a TIP:

[[Page 45400]]

     A list of regulated pollutants affected by the plan;
     Locations of affected sources and the air quality 
designation (i.e., attainment, unclassifiable, nonattainment) of the 
source location;
     Projected estimates of changes in current actual emissions 
from affected sources;
     Modeling information (i.e., input and output data, 
justification of models used, data and assumptions used);
     Documentation that the plan contains emission limitations, 
work practice standards, and recordkeeping/reporting requirements;
     Regulations.
    The TAR allows tribes to develop, adopt, and submit an 
implementation plan for approval as a TIP in a modular fashion, so it 
may not be necessary to meet all of the requirements identified above.
    The EPA has the authority, under the Act, to enforce the 
regulations in an approved TIP. The EPA will work cooperatively with 
the Indian tribe in exercising its enforcement authority. The EPA 
recognizes that, in certain circumstances, eligible Indian tribes have 
limited criminal enforcement authority. The TAR specifically provides 
that such limitations on an Indian tribe's criminal enforcement 
authority do not prevent a TIP from being approved. Where 
implementation of the TIP requires criminal enforcement authority, and 
to the extent a tribe is precluded from asserting such authority, the 
federal government will exercise primary criminal enforcement 
responsibility. A memorandum of agreement between an Indian tribe and 
the EPA is an appropriate way to address circumstances in which the 
tribe is incapable of exercising applicable enforcement requirements as 
described in 40 CFR 49.7(a)(6) and 40 CFR 49.8. The memorandum of 
agreement shall include a process by which the tribe will provide 
potential investigative leads to EPA and/or other appropriate federal 
agencies in an appropriate and timely manner.

V. St. Regis Mohawk Tribe's TIP Submittal

A. What did EPA determine in finding the St. Regis Mohawk Tribe 
Eligible for TAS?

    On December 10, 2001, SRMT requested an EPA determination under the 
provisions of 40 CFR 49.7 that the Tribe is eligible for TAS for the 
purpose of developing a TIP for air quality. On March 5, 2003, EPA 
determined that the Tribe meets the eligibility requirements of section 
301(d) of the Act and 40 CFR 49.6 for the purposes of developing and 
carrying out an implementation plan under the Act. As noted above, the 
Tribe did not request an eligibility determination for the area known 
as the Hogansburg Triangle, and EPA made no determination with respect 
to that area. This proposed TIP approval pertains only to lands within 
the exterior boundaries of the St. Regis Mohawk Reservation covered by 
the March 3, 2003 determination and thus does not apply to the 
Hogansburg Triangle.
    The TAS determination fully addressed the four criteria of 49 CFR 
49.6. In summary: (1) The Indian tribe must be federally recognized: 
The U.S. Secretary of the Interior has recognized SRMT. See 70 FR 
71194, 71196 (November 25, 2005);
    (2) The Indian tribe must have a governing body carrying out 
substantial governmental duties and powers over a defined area: The 
SRMT governing body is embodied in its Tribal Council. The Tribal 
government enacts laws and legislation within the jurisdiction of the 
SRMT Reservation. The Tribal government administers health, education, 
environmental, and welfare programs. EPA determined that the Tribe has 
a governing body carrying out substantial duties and powers under the 
provisions of 40 CFR 49.6 and made a similar determination in a 
previous TAS eligibility determination for the purposes of section 105 
and section 505(a)(2) of the Act;
    (3) The functions to be exercised by the tribe must pertain to the 
management and protection of air resources within the exterior 
boundaries of the tribe's reservation or other areas within the tribe's 
jurisdiction: The SRMT applied for TAS, and EPA found the Tribe 
eligible, for lands within the exterior boundaries of the St. Regis 
Mohawk Reservation, excluding the area known as the Hogansburg 
Triangle. New York State was given the opportunity to review the TAS 
application and to provide any comments on the Reservation boundaries, 
pursuant to 40 CFR 49.7. The Reservation is located in the northern 
portion of New York adjacent to the St. Lawrence River. The specific 
Reservation boundaries, and the exclusion of the Hogansburg Triangle 
area, were described in the Tribe's December 10, 2001 application and 
referenced in EPA's TAS eligibility determination; and,
    (4) The Indian tribe must be reasonably expected to be capable, in 
the EPA Regional Administrator's judgment, of carrying out the 
functions to be exercised in a manner consistent with the terms and 
purposes of the Act and all applicable regulations: SRMT's TAS 
application contains substantial information regarding the Tribe's 
capability to carry out the functions in the proposed TIP. As discussed 
fully in the TAS decision, EPA considered this information in 
determining that the Tribe meets this requirement for TAS eligibility. 
In particular, SRMT's Air Quality Program has staff with degrees 
ranging from an Associates Science to a Masters Degree. They have 
received extensive training including but not limited to training in 
TIP development and permit issuance. The staff has also demonstrated 
considerable capabilities in the programmatic, administrative, and 
legal spheres since 1990. The TIP will be implemented by Air Quality 
Program staff, Conservation Officers, Environmental Lawyers, and an on-
site legal advisor, with technical support through EPA Region 2 and 
EPA's Tribal Air Monitoring center in Las Vegas. All SRMT agencies, 
including but not limited to the Tribal Police Force, will assist in 
compliance activities and (as appropriate) the enforcement of the TIP 
in accordance with applicable law.
    Based on information submitted by the Tribe, summarized above, 
other relevant information, and our knowledge of the Tribe's programs, 
EPA determined that the SRMT met all requirements for TAS eligibility. 
The determination and cover letter were sent to the Tribal Council with 
a courtesy copy to New York State.
    In addition to the approval for TAS for the purpose of developing a 
TIP for air quality, the Tribe was deemed eligible for the purpose of 
establishing a minor source permitting program in a separate 
determination on March 25, 2001.

B. What authority does the St. Regis Mohawk Tribe Environment Division 
have?

    The SRMT Tribal Council gave the SRMT Environment Division Clean 
Air Quality Program authority to administer Clean Air Act programs on 
behalf of the Tribe in a Tribal Council Resolution (TCR 99-43) dated 
December 3, 1999. This Resolution authorizes the Air Quality Program to 
submit applications for Federal assistance and to administer Clean Air 
Act programs, as allowed under the Act and EPA's regulations.

C. What role does EPA have in criminal enforcement?

    Consistent with 49 CFR 49.7(a)(6) and 49 CFR 49.8, on November 20, 
2003, the SRMT entered into a Memorandum of Agreement (MOA) with the 
EPA Region 2 and EPA's Criminal Investigations Division concerning 
criminal enforcement of air pollution rules and

[[Page 45401]]

regulations. Under the terms of this agreement, the SRMT and its 
agencies would refer to the appropriate EPA or U.S. Department of 
Justice Office alleged criminal violations of the Act where the alleged 
violator is a non-Indian as well as all alleged criminal activity where 
the potential fine is greater than $5,000 or the penalty would require 
imprisonment for more than one year in accordance with 25 U.S.C. 1302. 
Criminal enforcement issues relating to implementation of the TIP 
outside of this agreement may be pursued, as appropriate, by SRMT's 
Environmental Conservation Officers and Tribal Officers.

D. When did SRMT adopt the Tribal Implementation Plan under Tribal Law?

    The SRMT developed and proposed rules comprising the proposed TIP 
to its Tribal community in 2002. A public notice announcing 
availability of the proposed TIP and inviting public comments was 
published in the local newspaper (Watertown Daily Times on June 29, 
2002). In addition, the SRMT has posted the proposed TIP on the Tribe's 
Web site and for public review at the Tribal environmental health 
center. The comments received from the public review on the proposed 
TIP were minor. Based on the comments received, revisions were made to 
the proposed TIP. The St. Regis Tribal Council adopted the rules 
comprising the proposed TIP on October 3, 2002 (TCR 2002-183) as part 
of Tribal Law, and it became effective under Tribal Law 30 days 
thereafter. In order to satisfy the public hearing requirements of 40 
CFR 51.102, the Tribe offered the opportunity for a public hearing upon 
request. The notice of opportunity was published on April 5, 2007 in 
the Indian Times and the proposed TIP was made available at the SRMT 
Environmental Division and on their Web site. The notice indicated that 
a public hearing would be held on May 16, 2007, upon request. EPA and 
New York State Department of Environmental Conservation (NYSDEC) were 
notified of the opportunity for a public hearing by the Tribe on April 
11, 2007. SRMT provided EPA a package, dated May 16, 2007, which 
included copies of the public notice of the availability of the 
proposed TIP for comment, e-mails reserving and confirming a location 
for the public hearing, and a letter notifying NYSDEC of the 
opportunity for a public hearing. No requests for a public hearing were 
made nor were any comments received. All comments and responses made 
concerning the proposed TIP during the comment periods are on file with 
the SRMT Environmental Division (ED) and EPA. EPA found that the Tribe 
satisfied public hearing requirements.

E. What is included in the SRMT TIP submittal?

    The SRMT TIP submittal includes ambient air quality standards for 
sulfur dioxide, particulate matter, nitrogen dioxide, ozone, fluoride, 
and heavy metals, and provisions for emissions inventory, permitting 
for major sources and for synthetic minor facilities, source 
surveillance, open burning, enforcement, review of state permits, and 
regional haze planning.
1. Ambient Air Quality Standards
    EPA has established primary and secondary National Ambient Air 
Quality Standards (NAAQS) for six common air pollutants: CO, lead, 
NO2, ozone, particulate matter, and SO2. Most 
pollutants regulated by the NAAQS have two limits. The ``primary'' 
standard is designed to protect the public--including children, people 
with asthma, and the elderly--from health risks. The ``secondary'' 
standard is to prevent unacceptable effects on the public welfare, 
e.g., damage to crops and vegetation, buildings and property, and 
ecosystems.
    SRMT established ambient threshold standards and measuring methods 
in section 9 of the proposed TIP for the following air pollutants:

------------------------------------------------------------------------
          Pollutant                 Threshold         Measuring method
------------------------------------------------------------------------
SO2 primary standard........  Annual 0.030 ppm....  40 CFR part 50 App A
                              24-hr 0.14 ppm......   or 40 CFR part 53.
SO2 secondary standard......  3-hr 0.5 ppm........  40 CFR part 50 App A
                                                     or 40 CFR part 53.
PM10 primary and secondary    Annual 50 [mu]g/m\3\  40 CFR part 50 App J
 standard.                    24 hr 150 [mu]g/       or 40 CFR part 53.
                               m\3\..
PM2.5 primary and secondary   Annual mean 15.0      40 CFR part 50 App
 standard.                     [mu]g/m\3\.           L.
                              24 hr 65 [mu]g/m\3\.
NO2 primary and secondary     Annual mean 0.053     40 CFR part 50 App F
 standard.                     ppm.                  or 40 CFR part 53.
O3 1 hr primary and           0.12 ppm............  40 CFR part 50 App D
 secondary standard.                                 or 40 CFR part 53.
O3 8 hr primary and           0.08 ppm annual 4th   40 CFR part 50 App D
 secondary standard.           highest daily         or 40 CFR part 53.
                               maximum.
Fluoride forage standard....  Growing season--10    None.
                               ppm.
                              60 day--15 ppm......
                              30 day--20 ppm......
Fluoride ambient standard...  12 hr--1.13 ppb.....  Methods set by SRMT
                              24 hr--0.88 ppb.....   Environment
                              1 wk--0.50 ppb......   Division.
                              1 mo--0.25 ppb......
Heavy Metals standard.......  ....................  40 CFR part 50 App
                                                     B.
    Beryllium...............  4.2x10-\4\ [mu]g/
                               m\3\.
    Cadmium.................  2.4x10-\2\ [mu]g/
                               m\3\.
    Chromium................  1.2 [mu]g/m\3\.
    Lead....................  7.5x10-\1\ [mu]g/
                               m\3\.
    Nickel..................  4.0x10-\3\ [mu]g/
                               m\3\.
    Zinc....................  50.0 [mu]g/m\3\.
------------------------------------------------------------------------

    The Act requires the NAAQS to be met everywhere. Accordingly, the 
SRMT standards and measuring methods for SO2, PM, 
NO2, and O3, which are the same as the EPA 
standards, are approvable for incorporation into the TIP. The EPA is 
proposing to approve the SRMT air quality standards and measurement 
methods included in the proposed TIP for these pollutants. The 
standards for fluoride, beryllium, cadmium, chromium, nickel and zinc 
in the SRMT's proposed TIP are unique. These pollutants are listed in 
the Act as hazardous air pollutants. While EPA has standards regulating 
the emissions of these pollutants from stationary sources,

[[Page 45402]]

the Agency has not established ambient standards for hazardous air 
pollutants. Consequently, EPA is not proposing to incorporate the 
fluoride and heavy metal standards into the federally approved TIP. EPA 
is also not proposing to approve the SRMT standard for lead, as the 
standard in the proposed SRMT TIP are not equivalent to EPA's ambient 
air quality standard. EPA is proposing to approve into the proposed TIP 
the other ambient air quality standards and test methods. Measurements 
for approvable standards will be made in accordance with the techniques 
listed in 40 CFR part 50, appendix A, D, F, J, L, or by equivalent 
methods designated in accordance with 40 CFR part 53.
2. Emissions Inventory
    An emissions inventory is a quantitative list of the amounts and 
types of pollutants that are entering the air from each source in a 
given area. The inventory may be comprehensive, looking at all 
pollutants, or focused on only selected pollutants of concern. The 
fundamental elements in an emissions inventory are the characteristics 
and locations of the air emissions sources, as well as the amounts and 
types of pollutants emitted. Periodic inventories are used to track 
changes in emissions over time, estimate the effectiveness of emission 
reduction strategies, and track the progress of air quality.
    The SRMT has chosen periodic emission inventories as its approach 
to listing the pollutants emitted by sources. An initial emissions 
inventory titled Emission Inventory Report was submitted to EPA on 
December 30, 1999 utilizing a baseline year of 1995 and including 
sources within the St. Regis Mohawk Reservation's exterior boundaries. 
The boundaries for the emissions inventory did not include the area 
known as the Hogansburg Triangle. There is currently no timetable for 
updating the emissions inventory. The EPA finds that the method used by 
SRMT to produce the emissions inventory is acceptable and is proposing 
to approve the emissions inventory. The SRMT emissions inventory and 
the Tribe's process are based on guidance established in EPA's 
Procedures for Emission Inventory Preparation Volumes I-V, U.S. EPA Air 
Pollution-42 (AP-42), Emissions Inventory Improvement Program Volumes 
I-VII, and MOBILE 5/6.
3. Permits
    Owners and/or operators of existing or proposed sources of air 
contaminants within the exterior boundaries of SRMT are required to 
submit applications and obtain permits from the SRMT Air Quality 
Program for the operation of such sources. However, owners and/or 
operators of major stationary sources subject to 40 CFR part 71 and 
located within the area covered by this proposed TIP must continue to 
obtain a title V permit from the EPA, in accordance with part 71.
    Permitting procedures for minor sources are specified in sections 
11 and 12 of the SRMT proposed TIP. Applications for construction and 
operating permits for minor sources must be obtained from the SRMT ED. 
The SRMT Air Quality Program will make a determination of facility 
status within 60 days of receipt of a complete application. A 30-day 
period for public comment and EPA review will be provided prior to 
final action by SRMT. The Air Quality Program will publish a notice of 
complete applications. Minor sources are required to seek renewal of 
the SRMT permit every 5 years from the date of original issuance. 
Owners or operators of affected facilities must submit their 
applications for renewal no later than 180 days before the date of 
expiration.
    The issuance of construction permits follows the procedures listed 
in 40 CFR 51.160-51.163. Construction permits require that proposed 
facilities or activities do not lead to any subsequent exceedence of 
SRMT ambient air quality standards or NAAQS. Air quality modeling, in 
accordance to 40 CFR part 51, appendix W, is required for facilities or 
activities that will emit more than 20 tons per year (tpy) of 
PM10, or 40 tpy of SO2, NOX, or 
O3. Permits will be issued if the SRMT Air Quality Program 
determines that Reasonably Available Control Technology will be applied 
and the applicant has adequately demonstrated that reasonable further 
progress toward the attainment of air quality standards is not 
impaired. The Air Quality Program may modify the production/process 
rate, hours of operation, or other permit conditions in order to create 
enforceable permit conditions. Violations of permit conditions will 
lead to enforcement penalties that include permit revocation. EPA is 
proposing to approve the conditions and procedures the SRMT has 
established for its minor source permitting program.
    Section 13 of the proposed TIP provides for permits to synthetic 
minor sources. Owners or operators of stationary sources that would 
otherwise be major sources but whose permits limit operation or 
emissions with pollution control devices to less than major source 
thresholds may request and accept Tribally- and Federally-enforceable 
emission limits sufficient to allow the source to be considered 
``synthetic minor sources.'' A synthetic minor source is not subject to 
the Clean Air Act Title V--Federal Operating Permit Program, unless it 
is subject to that rule for any reason other than being a major source. 
EPA is proposing approval of the SRMT's synthetic minor source permit 
program.
4. Source Surveillance
    Section 14 of the SRMT TIP addresses source surveillance. Source 
surveillance includes: (1) Emission reports and recordkeeping; (2) 
testing; (3) enforcement, inspection and complaints; (4) continuous 
emissions monitoring; and (5) quality assurance/quality control plans. 
In summary, the proposed TIP requires the following:
    Emission reports and recordkeeping--Emission reports are to include 
facility, emission point, and process level information. These reports 
should be submitted on March 1 each year based on one of the following 
methods: Stack samples or other emission measurements; material balance 
using knowledge of the process; AP-42 emission factors; or best 
engineering judgment (including manufacturer's guarantees). All 
required records must be maintained on-site for a period of five years, 
and the owners or operators must make them available to representatives 
of the SRMT Air Quality Program upon request.
    Testing--For the purpose of ascertaining compliance or non-
compliance with any air pollution control plan, rule or regulation, the 
Air Quality Program requires the source owner or operator to report 
results of testing within 30 days of testing. A source owner or 
operator shall notify the Air Quality Program in writing, not less than 
30 days prior to the test, of the time and date of the test. The 
notification should include procedures for stack test sampling and 
analytical procedures. Acceptable methods of testing are in 40 CFR part 
60, appendix A and 40 CFR part 61, appendix B. For the purpose of 
ascertaining compliance or non-compliance with any air pollution 
control regulation, the Air Quality Program may conduct separate or 
additional emission tests on behalf of the SRMT. A source owner or 
operator shall provide sampling ports, scaffolding and other pertinent 
equipment required for emission testing.
    Enforcement--Enforcement of these rules and regulations is 
performed by St. Regis Mohawk Conservation Officers, with EPA 
exercising certain primary criminal enforcement authorities as 
described in the November 20, 2003 Memorandum of Agreement between

[[Page 45403]]

the Tribe and EPA. The Conservation Officers are also responsible for 
inspecting facilities based on any complaints received. Findings shall 
be recorded and a copy given to both the facility and the Air Quality 
Program. The Air Quality Program representative is responsible for 
annual facility inspections and any unannounced audits. As noted 
earlier, the TIP provisions approved by EPA are also federally 
enforceable, and therefore EPA may also exercise its civil enforcement 
authorities, as appropriate, and in consultation with the SRMT.
    Continuous emissions monitoring requirements are provided in 
Section 14.3 of the proposed TIP. The owners and operators of any 
source conducting source surveillance shall be required to install and 
operate Continuous Emission Monitors on each affected unit at the 
source, and to assure the quality of data for sulfur dioxide, nitrogen 
oxides, opacity and volumetric flow at each such unit. All units over 
25 megawatts and new units under 25 megawatts that use fuel with a 
sulfur content greater than 0.05 percent by weight are required to 
measure and report emissions. New units under 25 megawatts using clean 
fuels are required to certify their eligibility for an exemption every 
five years.
    Quality assurance/quality control--The owner or operator must 
develop and implement a written quality assurance/quality control plan 
for each system. The quality control plan must include complete, step-
by-step procedures and operations for calibration checks and 
adjustments, preventive maintenance, audits, and record keeping and 
reporting. The quality assurance plan must include procedures for 
conducting periodic performance tests.
    EPA is proposing to approve the methods, requirements and 
procedures for source surveillance in the SRMT's proposed TIP.
5. Open Burning
    Section 15 of the proposed TIP contains the open burning program. 
The SRMT incorporated the Tribal Burn Regulation into Tribal Council 
Resolution 2002-59 (appendix I of the proposed TIP) and reaffirmed it 
in Tribal Council Resolution 2003-06 (appendix K of the proposed TIP) 
on January 13, 2003. The Tribal Burn Regulation is located in appendix 
J of the proposed TIP. The regulation prohibits burning of solid waste, 
food garbage, municipal solid waste, hazardous waste, household 
hazardous waste, refuse, rubbish from salvage, land clearing, or 
generated by residential or commercial activities as a means of on-site 
disposal, field fires, and tires. Some types of burning (land clearing, 
community burning, burning in specifically designated areas) may be 
allowed by a permit issued by the Air Quality Program, if it is not 
contrary to other Tribal laws. This may include burning, at appropriate 
designated sites, of toxic, explosive, or dangerous materials for a 
specific period. Permits for planned burning are required for the 
purposes of weed abatement, prevention of fire hazard, and disease and 
pest prevention.
    Permits are not required for fires for the cooking of food, 
providing of warmth for human beings, recreational purposes, religious 
or ceremonial purposes, orchard heaters for the purpose of frost 
protection in farming or nursery operations, fire department and 
criminal enforcement training, and emergency control fires.
    All burning permits are valid for the date specified on the permit. 
Violators of open burning regulations are subject to financial 
penalties, fines, and/or other forms of penalties which will be levied 
by the Tribal Court. EPA is proposing approval of the proposed SRMT 
TIP's open burning regulations.
6. Enforcement
    Through the Safety and Civil Obedience Plan (appendices L, M, and N 
of the proposed TIP), the St. Regis Mohawk Tribal Police respond to 
complaints, requests for assistance, reports of problems and/or any 
other type of inquiry reasonably related to their official duties as 
police officers. The St. Regis Mohawk Tribal Police and Conservation 
Officers will assume enforcement activities for the purpose of air 
regulations compliance. Individuals or owners of sources of air 
contaminants will be advised of their activities and issued a summons 
which will detail the exact provision of the TIP that was allegedly 
violated and the date and time of violation. The Peacemakers Court-
Civil Disobedience Division (Court) shall be the arbiter of all summons 
and complaints filed by tribal authorities under this proposed TIP. Air 
contamination sources may be sealed if they have not complied within 
the time period allotted by the Court. Sealing a source means labeling 
or tagging a source in order to notify any person that operating the 
source is prohibited and includes physical means of preventing the 
source from operating. The physical means are non-destructive and 
include, but are not limited to, bolting, chaining, and wiring shut 
control panels. Sources that are sealed will not be operated until 
modifications are made to sources so that they meet requirements. 
Sources that are sealed will only be unsealed by persons authorized by 
the Court. EPA finds the SRMT has adequately established an enforcement 
mechanism to compliment its regulations, and EPA proposes to approve 
it.
7. Review of State Permits
    The Air Quality Program will evaluate and comment on air permit 
notices and draft permits for facilities located in contiguous areas 
where the air emissions may affect the Reservation's air quality and/or 
facilities located within 50 miles of the area covered by this proposed 
TIP. This is consistent with EPA's September 19, 2000 determination 
that the Tribe is eligible for TAS for the purpose of performing such 
reviews in accordance with Section 505(a)(2) of the Act.
8. Regional Haze Planning
    Regional haze planning is incorporated into the proposed TIP in 
section 20. The purpose of regional haze plans is to improve visibility 
in mandatory Federal Class I areas (primarily national parks and 
wilderness areas). In 1999, EPA issued regional haze regulations that 
require states to work together to address this air quality concern. 
The final regional haze rule provides for eventually reaching natural 
background condition in Class I areas by 2064. Because emissions that 
cause haze are emitted over wide areas and haze precursors are 
transported by winds, a regional program to implement the EPA's final 
rule helps to improve visibility not only in parks and wilderness 
areas, but in many other areas of the ozone transport region as well.
    The regional haze rule also started a process for the EPA to 
develop implementation plans for regional haze. Given the regional 
nature of the problem, in addition to endorsing regional planning, the 
rule endorsed the role of states and Indian tribes within regional 
planning organizations. The Mid-Atlantic Northeast Visibility Union was 
formed on July 24, 2001, and is the organization that encompasses the 
SRMT reservation (appendix E of the proposed TIP).
    The SRMT Air Quality Program in conjunction with the Ozone 
Transport Commission, Mid-Atlantic States for Regional Air Management, 
the Northeast States for Coordinated Air Use Management, eleven states 
and the Penobscot Indian Nation of Maine are committed to a long-term 
strategy for implementing the final regional haze rule. EPA is 
proposing approval into the

[[Page 45404]]

TIP of the SRMT's commitment and planning as it applies to regional 
haze.

VI. What EPA action is being taken today?

    With the exceptions below, the EPA is proposing approval of the 
proposed SRMT TIP, which contains 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 EPA is not taking action 
on the SRMT TIP regarding fluoride and other metal standards because 
the EPA has not promulgated ambient air quality standards for these 
metals that can be enforced through a federally-approved SIP or TIP. 
EPA is not taking action on the SRMT TIP lead standard because it is 
not equivalent to the EPA air quality standard. The public docket 
contains SRMT's proposed TIP, TAS Eligibility determination, and 
enforcement MOA with EPA. Contact the For Further Information Contact 
for additional information on the materials contained in the docket.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), this 
proposed 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 proposed action merely proposes to approve 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 proposed 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 proposes to approve 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 
proposed 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 proposing to approve 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 proposed approval of the TIP. If 
it is finally approved, the TIP will become federally enforceable.
    EPA worked and consulted with officials of the SRMT early in the 
process of developing this proposed 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 merely proposes to approve 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 not economically 
significant.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) do not 
apply to this proposed rule. In reviewing TIP submissions, the EPA's 
role is to approve an eligible tribe's submission, provided that it 
meets the criteria of the Clean Air Act. In this context, in the 
absence of a prior existing requirement for the Tribe to use voluntary 
consensus standards (VCS), the EPA has no authority to disapprove a TIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for the 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 NTTAA do not apply. This proposed rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

List of Subjects in 40 CFR Part 49

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: August 6, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.
[FR Doc. E7-15921 Filed 8-13-07; 8:45 am]
BILLING CODE 6560-50-P