Approval and Promulgation of Air Quality Implementation Plan; Mohegan Tribe of Indians of Connecticut, 2298-2303 [2023-00552]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Proposed Rules]
[Pages 2298-2303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00552]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R01-OAR-2022-0961, FRL-10562-01-R1]


Approval and Promulgation of Air Quality Implementation Plan; 
Mohegan Tribe of Indians of Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve amendments to the Mohegan Tribe of Indians of Connecticut (the 
Mohegan Tribe, Mohegans, or the Tribe) Tribal Implementation Plan (TIP) 
under the Clean Air Act (CAA) to regulate air pollution within the 
exterior boundaries of the Tribe's reservation. EPA approved the Tribe 
for treatment in the same manner as a State (Treatment as State or TAS) 
for purposes of administering New Source Review (NSR) under the CAA on 
December 26, 2006. The proposed TIP includes permitting requirements 
for minor sources of air pollution not covered by the Tribe's existing 
federally approved TIP. The purpose of the proposed TIP is to enable 
the Tribe to attain and maintain the National Ambient Air Quality 
Standards (NAAQS) within the exterior boundaries of its reservation by 
establishing new elements to its federally enforceable preconstruction 
air permitting program.

DATES: Written comments must be received on or before February 13, 
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2022-0961 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that, if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Madeline Isenberg, Air Permits, Toxics 
and Indoor Programs Branch, EPA Region 1, 5 Post Office Square (Mail 
Code: 05-2), Boston, MA, 02109-3912, telephone number (617) 918-1271, 
email: [email protected]

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. CAA Requirements and the Role of Indian Tribes
II. Background on the Mohegan Tribe and CAA Requirements
III. Background on Mohegan Tribe's TIP
IV. Overview of the Mohegan Tribe's July 2022 TIP Revision
V. EPA's Evaluation of the Mohegan Tribe's July 2022 TIP Revision
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews

I. CAA Requirements and the Role of Indian Tribes

A. How did the 1990 CAA amendments include Indian Tribes?

    Under the 1990 amendments to the CAA, the EPA may approve eligible 
Tribes to administer certain provisions of the CAA. Pursuant to section 
301(d)(2) of the CAA, EPA promulgated the Tribal Authority Rule (TAR) 
on February 12, 1998 (63 FR 7254). The TAR specifies the CAA provisions 
for which it is appropriate to treat Tribes in the same manner as 
states, the eligibility criteria the Tribes must meet if they choose to 
seek such treatment, and the procedure by which EPA reviews a Tribe's 
request for an eligibility determination.
    As a general matter, EPA determined in the TAR that it is not 
appropriate to treat Tribes in the same manner as states for purposes 
of specific plan submittal and implementation deadlines for NAAQS-
related requirements. See 40 CFR 49.4. Thus, Tribes are generally not 
subject to CAA provisions which specify a deadline by which something 
must be accomplished. For example, provisions mandating the submission 
of state implementation plans do not apply to the Tribes. Furthermore, 
under the TAR at 40 CFR 49.7(c), a Tribe may choose to implement 
reasonably severable portions of the various CAA programs, as long as 
it can demonstrate that its proposed air program is not integrally 
related to program elements

[[Page 2299]]

that are not included in the plan submittal and is consistent with 
applicable statutory and regulatory requirements. This modular approach 
is intended to give Tribes the flexibility to address their most 
pressing air resource issues and acknowledges that Tribes often have 
limited resources with which to address their environmental concerns. 
Consistent with the exceptions listed in 40 CFR 49.4, once submitted, a 
Tribe's proposed air program will be evaluated in accordance with 
applicable statutory and regulatory criteria in a manner similar to the 
way EPA would review a state submittal. See 40 CFR 49.9(h). EPA expects 
Tribes to fully implement and enforce their approved programs and, as 
with states, EPA retains its discretionary authority to impose 
sanctions for failure to implement an air program.
    Where the provisions of the act or implementing regulations 
governing the program for which the Tribe seeks approval require 
criminal enforcement authority, the Tribe may enter into a memorandum 
of agreement with the appropriate EPA Region to provide for criminal 
enforcement by EPA. See 40 CFR 49.7(a)(6) and 49.8.

B. What criteria must a Tribe demonstrate to be treated in the same 
manner as a state under the CAA?

    Under section 301(d) of the Clean Air Act, 42 U.S.C. 7601, and the 
TAR at 40 CFR 49.6, EPA may treat a Tribe in the same manner as a state 
for purposes of administering certain CAA programs or grants if the 
Tribe demonstrates that (1) it is federally recognized; (2) it has a 
governing body carrying out substantial governmental duties and powers; 
(3) the functions to be exercised by the Tribe pertain to the 
management and protection of air resources within the Tribe's 
reservation or within non-reservation areas under the Tribe's 
jurisdiction; and (4) it can reasonably be expected to be capable of 
carrying out the functions for which it seeks approval.

C. What is an implementation plan for criteria air pollutants, and what 
must it contain?

    Implementation plans are a set of programs and regulations 
submitted by states and, if they so choose, by Tribes, that outline a 
definite plan by which the state or Tribe intends to help attain or 
maintain the NAAQS. NAAQS have been established for the following six 
pollutants: ozone; carbon monoxide; particulate matter; sulfur dioxide; 
lead; and nitrogen dioxide. The EPA calls these pollutants ``criteria 
pollutants.'' Once approved by EPA, implementation plans become 
enforceable as a matter of Federal law.
    Implementation plans are governed by section 110 of the CAA, 42 
U.S.C. 7410. Under sections 110(o) and 301(d) of the CAA and the TAR at 
40 CFR 49.9(h), any TIP submitted to EPA shall be reviewed in 
accordance with the provisions for review of state implementation plans 
(SIPs) set forth in CAA section 110. Thus, the TIP must include not 
only the substantive rules by which the Tribe proposes to help achieve 
NAAQS, but also it must also provide assurances that the Tribe will 
have adequate personnel, funding, and authority to administer the plan, 
as required by CAA section 110(a)(2)(E), and requirements governing 
conflicts of interest, as required by CAA section 128. Under section 
128, implementation plans must contain requirements that (1) any 
``board or body'' that approves permits or enforcement orders have at 
least a majority of members who represent the public interest and do 
not derive any significant portion of their income from persons subject 
to the permits or orders and (2) conflicts of interest are disclosed. 
EPA does not intend to read section 128 to limit a Tribe's flexibility 
in creating a regulatory infrastructure that ensures an adequate 
separation between the regulator and the regulated entity (59 FR 43956, 
43964 (August 25, 1994).
    EPA will evaluate the elements submitted in each TIP on a case-by-
case basis to ensure the selected program is reasonably severable under 
the CAA, and that the TIP has control measures that adequately address 
the specific types of pollution of concern on the reservation. Once EPA 
approves the TIP, its provisions are enforceable by the Tribe, by EPA, 
and by citizens. As with SIPs, EPA maintains an ongoing oversight role 
to ensure the approved TIP is adequately implemented and enforced and 
to provide technical and policy assistance. An important aspect of 
EPA's oversight role is that EPA retains legal authority to bring an 
enforcement action against a source violating the approved TIP.

II. Background on the Mohegan Tribe and CAA Requirements

    The Mohegan Tribe of Indians of Connecticut is an Indian Tribe 
federally recognized on March 7, 1994, by Congressional legislation 
(Pub. L. 103-377, October 19, 1994.). The Secretary of the Interior 
recognizes the ``Mohegan Tribe of Connecticut'' (86 FR 7554 January 29, 
2021). On May 4, 2005, the Mohegan Tribe of Indians of Connecticut 
submitted a request that we find the Tribe eligible for TAS pursuant to 
Sec.  301(d)(2) of the CAA and Title 42, part 49 of the Code of Federal 
Regulations (CFR), for the purpose of implementing its CAA permitting 
program. The Mohegans also submitted for EPA approval its tribal 
implementation plan (``TIP'') on May 4, 2005.
    The Tribe requested a TAS eligibility determination pursuant to the 
CAA and the TAR for the purpose of administering its TIP within 
reservation lands. The operative portion of the Mohegan TIP was the 
Tribe's Area Wide NOX Emission Limitation Regulation.
    Based on the information submitted by the Tribe and after 
consideration of comments received in response to notice of the Tribe's 
TAS request, EPA determined that the Mohegan Tribe met the TAS 
eligibility requirements for the purpose of administering and enforcing 
a TIP and similar air pollution control programs for minor sources 
under section 110 of the Act. See CAA 301(d)(2) and 40 CFR 49.9(g).
    The EPA drafted a decision document titled ``Mohegan Tribe of 
Indians of Connecticut: Eligibility Determination Under 40 CFR part 49 
for a Clean Air Act Tribal Implementation Plan'' (TAS Decision 
Document, included in the docket of this rulemaking), which was dated 
December 20, 2006, and signed by Robert W. Varney, Regional 
Administrator, EPA Region 1 on December 26, 2006.

III. Background on Mohegan Tribe's TIP

    The Mohegan Tribe's TIP, submitted on May 4, 2005, and amended on 
August 22, 2007, consisted of a tribal ordinance, entitled ``Area Wide 
NOX Emissions Limitation Regulation,'' which established 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 in Connecticut. The 
TIP was intended to function as a federally enforceable synthetic minor 
limit to keep the six boilers at the Mohegan Sun Casino from triggering 
major source NSR and Title V operating permit requirements for major 
sources. EPA granted approval of the Mohegan TIP in a final rule 
published on November 14, 2007 (72 FR 63988).
    The Mohegan Environmental Protection Department (MEPD) assumes 
responsibility for administering the Mohegan TIP. The MEPD was 
established by Resolution of the Tribal Council on December 18, 2002, 
pursuant to the Council's constitutional authority to promote the 
health and general welfare of the Tribe and to

[[Page 2300]]

establish a basic departmental structure for the executive branch. The 
MEPD is an executive department of the Office of the Chief of Staff to 
the Chairman of the Tribal Council and reports monthly to the Chief of 
Staff and quarterly to the Tribal Council. See Ordinance 2002-12 
(``MEPD Ordinance'') (Tribal Application, Exhibit 11) sections 2 and 5; 
Tribal Application, Exhibit 5 (chart depicting governmental structure).
    The MEPD is ``charged with the development, administration and 
enforcement of the Tribal Implementation Plan enacted pursuant to the 
Clean Air Act and any such other environmental program approved by the 
Tribal Council.'' See MEPD Ordinance, section 3. In particular, the 
MEPD Administrator has authority to develop and promulgate guidance, 
rules, and regulations to implement tribal environmental programs, with 
Tribal Council approval; to enforce environmental and natural resource 
rules and regulations; to promulgate reasonable and appropriate 
enforceable policies and procedures and a schedule of civil/criminal 
penalties to be assessed for violations of the MEPD's rules and 
regulations, with Tribal Council approval; and, where the Tribe is 
precluded from asserting criminal enforcement authority, to execute 
agreed upon procedures concerning alleged criminal violations. See MEPD 
Ordinance section 4.
    Furthermore, EPA Region 1 and the Mohegan Tribe of Indians of 
Connecticut have entered into a memorandum of agreement with each other 
outlining general terms for the cooperation of criminal enforcement 
matters as provided by section 113(c) of the CAA, 42 U.S.C. 7413(c). 
The agreement, entitled ``Memorandum of Agreement Between the Mohegan 
Tribe of Indians of Connecticut and the U.S. Environmental Protection 
Agency Region 1 (a copy of which is provided in the docket of this 
action) provides procedures of communication as they relate to 
investigative leads of potential criminal enforcement matters 
concerning non-Native Americans and Native Americans.
    The Tribe submitted a revision to its TIP on April 17, 2009. The 
revision included a monthly NOX emissions limitation for new 
emission units, namely uncontrolled diesel generators and controlled 
diesel generators. The revisions also vested the Administrator of the 
MEPD with enforcement authority for violations of the Mohegan TIP. 
Specifically, the revisions provided the Administrator with the 
authority to assess civil penalties of up to $25,000 per violation per 
day, as well as to issue cease and desist orders for violations of the 
Mohegan TIP. The Mohegan Gaming Disputes Court formerly had the 
authority to perform these functions. Under the revisions, any entity 
or individual whose legal rights are affected by any decision of the 
Administrator regarding enforcement of the Mohegan TIP may appeal the 
decision to the Director of Regulation and Compliance and may 
subsequently appeal any decision of the Director of Regulation and 
Compliance to the Mohegan Tribal Court or Mohegan Gaming Disputes Court 
(``Mohegan Courts''), as appropriate. EPA approved the revision of the 
Mohegan TIP on September 28, 2009 (74 FR 49327).

IV. Overview of the Mohegan Tribe's July 2022 TIP Revision

    The Mohegans submitted a TIP revision to EPA on July 28, 2022, to 
establish and set forth the criteria and procedures that the MEPD 
Administrator (as defined in section 5-302-A) will use to administer a 
preconstruction permitting program for new and modified minor sources 
and minor modifications at stationary sources. The revised program also 
includes the addition of a source registration program for new and 
existing sources and provisions to obtain an area-wide limit for 
existing sources. The revisions also outline a process by which the 
Mohegan Tribe can establish permit by rules, and the Tribe has adopted 
one permit by rule into their body of regulations for gasoline 
dispensing facilities as part of these revisions. The Tribe's revisions 
include procedures for public notification and participation regarding 
permitting activities and provisions to allow for, in limited 
circumstances, administrative permit revisions. Elements of the Tribe's 
revised TIP are discussed in greater detail below.

NSR Preconstruction Permitting Program

    The Tribe's NSR preconstruction permitting program sets 
applicability for emissions increases at new and modified existing 
sources through emissions thresholds at Table 1 to section 5-303-A. 
Sources with an emissions increase in excess of the thresholds are 
required to submit a permit application consistent with the procedures 
of Appendix A of Article XIII-A. The Tribe may issue a permit 
containing all required elements as described in Appendix B of Article 
XIII-A, including such items as general requirements, emission limits, 
monitoring, recordkeeping, and reporting requirements. Public notice of 
draft permit decisions made by the Tribe are to be noticed for public 
review in accordance with the Tribe's public participation requirements 
at section 5-309-A.

Source Registration

    Source registration requirements are detailed in section 5-303-
A(a)(1) and Appendix D. Due dates to register vary between existing 
true minor sources, existing synthetic minor source subject to the 
Mohegan's Area Wide Limitations for NOx Emissions rule, and new true 
minor sources. Content requirements are detailed for all registration 
information on forms provided by the MEPD Administrator. The procedure 
for estimating emissions outlines how registrations should include 
potential to emit or estimates of the allowable and actual emissions, 
in tons per year, of each regulated NSR pollutant for each emission 
unit at the source. After the source has been registered, additional 
reporting of relocation, change of ownership, and closure are required 
and detailed in Appendix D.

Area Wide Limits

    Procedures for establishing area-wide limits for existing sources 
(i.e., synthetic minor sources) are detailed in section 5-303-A. 
Substantive requirements in Appendix C of the Mohegan's minor NSR 
program contain provisions for the Tribe to establish permits for 
sources seeking area wide limits that contain adequate testing, 
monitoring, record-keeping, and reporting requirements to be used to 
demonstrate and assure compliance with proposed limitations.

Permit by Rule Provisions and Adoption of Gasoline Dispense Permit by 
Rule

    Section 5-303-A(1) outlines the process by which the Tribe approves 
general permits/permits by rule for the purpose of complying with the 
preconstruction permitting requirements for specific source categories' 
emissions of regulated NSR pollutants under this program. This section 
includes a description of the Tribe's authority and procedure for 
adopting permit by rules, applicability, permit issuance, determination 
of permit by rule source categories, permit by rule content, and 
obtaining coverage under a permit by rule.
    Included in the Tribe's program is a permit by rule for new or 
modified true minor source gasoline dispensing facilities, detailed in 
Appendix E. Information about this permit by rule includes 
applicability, eligibility, notification of coverage, termination, and 
definitions. Permit by rule terms and conditions include general

[[Page 2301]]

provisions, which covers construction and operation, locations, 
liability, severability, compliance, NAAQS/prevention of significant 
deterioration protection, unavailable defense, property rights, 
information requirements, inspection and entry, posting of coverage, 
duty to obtain a source-specific permit, and credible evidence. 
Emission limitations and standards, monitoring and testing 
requirements, and record keeping requirements are also stated in the 
permit by rule. Notification and reporting requirements include 
notifications on change in ownership or operator, notification of 
closure, annual reports, deviation reports, and performance test 
reports, all of which require a signature verifying truth, accuracy and 
completeness of the report.

Public Notice and Participation Provisions

    Section 5-309-A. applies to the issuance of minor source permits, 
synthetic minor source permits, the initial issuance of permits by 
rule, and to coverage of a particular source under an established 
permit by rule. The MEPD Administrator shall provide public 
notification and participation of tentative determinations regarding 
permit applications, providing a copy to EPA Region 1 and to all other 
air pollution control agencies having jurisdiction in the region in 
which such new or modified installation will be located. The Tribe's 
rule also establishes procedures for requesting a public hearing on 
tentative determinations and notice of final permit decisions.

Provisions for Permit Revisions

    The TIP contains provisions for a permit to be revised, reopened, 
revoked, and reissued, or terminated for cause. The filing of a request 
by the permittee for a revision, revocation and re-issuance, or 
termination, or of a notification of planned changes or anticipated 
noncompliance of an individual permit does not stay or affect any 
condition contained in a permit by rule. Administrative permit 
revisions are governed by the provisions stated in section 5-314-A.

Interaction With Previously Approved Mohegan TIP

    The previously approved Mohegan TIP established an enforceable cap 
of nitrogen oxide emissions from stationary sources owned by the 
Mohegan Tribal Gaming Authority and located within the external 
boundaries of the Mohegan Reservation. The Mohegan Tribe's July 2022 
TIP revision addresses all regulated NSR pollutants for all tribal 
sources, except for NOX at sources regulated under Article 
XIII of the existing TIP, by establishing a federally enforceable 
preconstruction permitting program within the exterior boundaries of 
the Tribe's reservation. This distinction in applicability is discussed 
in the introductory paragraph to Article XIII-A of the Tribe's July 
2022 submittal.

V. EPA's Evaluation of the Mohegan Tribe's July 2022 TIP Revision

    EPA has evaluated the Mohegan Tribe's revised TIP submittal; in the 
following sections we provide our assessment of the Tribe's program 
with respect to Clean Air Act requirements. The purpose of the Tribe's 
minor NSR permitting requirements is to establish a preconstruction 
permitting program, for new minor sources and minor modifications at 
stationary sources. The requirements that minor source programs must 
meet to be approved are outlined in 40 CFR 51.160 through 51.164. These 
regulations require states to develop ``legally enforceable 
procedures'' to enable a state ``to determine whether the construction 
or modification of a [source] will result in (1) a violation of 
applicable portions of the control strategy; or (2) interference with 
attainment or maintenance of a national standard.'' See 40 CFR 
51.160(a). The program must identify the types and sizes of sources 
subject to review, and the state's plan must discuss the basis for 
determining which facilities will be subject to review. See 40 CFR 
51.160(e).
    Although the Act does not require Tribes to develop and seek EPA 
approval of NSR permit programs, where a Tribe decides to do so, EPA 
evaluates the program in accordance with applicable statutory and 
regulatory criteria in a manner similar to the way in which EPA would 
review a similar state submittal. See 40 CFR 49.9(h); 59 FR 43956 at 
43965 (August 25, 1994) (proposed TAR preamble); 63 FR 7254 (February 
12, 1998) (final TAR preamble).
    For the reasons discussed below, we propose to approve the Mohegan 
minor NSR program in accordance with the TAR and the criteria for 
approval of minor NSR programs at 40 CFR 51.160 through 51.164. The 
Tribe's regulation, while structured differently, remains consistent 
with requirements in EPA's Federal Minor New Source Review Program in 
Indian Country. See 40 CFR 49.151 through 49.164. EPA's analysis of the 
various elements of the Mohegan's TIP Revision are described in more 
detail below.

NSR Preconstruction Permitting Program

    Section 110(a)(2)(C) of the Act (42 U.S.C. 7410(a)(2)(C)) requires 
that each implementation plan include a program to regulate the 
construction and modification of stationary sources, including a permit 
program as required by parts C and D of title I of the Act, as 
necessary to assure that the NAAQS are achieved. In this TIP revision, 
the Mohegan Tribe is establishing a preconstruction permitting program 
for new minor sources and minor modifications at stationary sources. 
Parts C and D of the CAA, which pertain to prevention of significant 
deterioration (PSD) and nonattainment NSR, respectively, address the 
major NSR programs for major stationary sources, and the permitting 
program for ``nonmajor'' (or ``minor'') stationary sources is addressed 
by section 110(a)(2)(C) of the Act. We commonly refer to the latter 
program as the ``minor NSR'' program. A minor stationary source is a 
source whose ``potential to emit'', as defined in section 5-302-A(d), 
is lower than the major source thresholds, also defined within section 
5-302-A(d) of the tribe's regulation, of 50 tons per year or more for 
NOX or VOC, and 100 tons per year or more for any other 
regulated NSR pollutant.
    The Mohegan's NSR program applies to new true minor NSR sources and 
modifications at existing sources. Section 5-303-A(b)(1)(i)-(ii) of the 
Tribe's regulation describes the way in which these sources would 
calculate whether an emissions increase at a new true minor source or a 
modification at existing source would need to obtain a permit prior to 
beginning construction of the new source or modification. If a permit 
is required, section 5-306-A of the tribe's regulation directs 
prospective permittees to follow provisions within Appendix A for 
specific requirements on what information must be in a permit 
application. Applications for permits must include facility 
information, a listing of each emissions unit, detailed unit specific 
information for all affected emissions units, a description and 
characterization of the total facility emissions, and if required by 
the MEPD Administrator an air quality impact analysis in accordance 
with 40 CFR part 51, appendix W.
    Appendix B of the Mohegan TIP includes details on permit content, 
which includes authorities to impose emission limitations, monitoring 
requirements, reporting requirements and recordkeeping requirements.
    EPA finds that the requirements of the Mohegan's minor NSR program 
follow

[[Page 2302]]

the procedures to determine applicability, permit application 
requirements, and permit requirements in EPA's Federal Minor New Source 
Review Program in Indian Country at 40 CFR 49.153 through 49.155.
    The Mohegan's minor NSR permitting requirements apply to stationary 
sources that are not major NSR sources and have the potential to emit 
the following regulated NSR pollutants at or above the following annual 
ton per year (tpy) thresholds:

(a) Nitrogen oxides (NOX), 5 tpy
(b) Volatile Organic Compounds, 2 tpy
(c) Carbon monoxide (CO), 10 tpy
(d) Sulfur dioxide (SO2), 10 tpy
(e) Particulate Matter, 10 tpy
(f) PM10, 5 tpy
(g) PM2.5, 3 tpy
(h) Lead, 0.1 tpy
(i) Fluorides, 1 tpy
(j) Sulfuric acid mist, 2 tpy

Source Registration

    The Tribe's requirements for existing true minor sources, existing 
synthetic minor sources for NOX covered by Article XIII, and 
new true minor sources and modified sources provide for reasonable and 
enforceable measures for the Tribe to account for all applicable 
sources within their jurisdiction. Existing sources must register with 
the MEPD Administrator within 60 days of the enactment of the TIP, and 
new sources and modified sources must register with the MEPD 
Administrator as part of their permit application. EPA finds this 
source registration program to account for all potentially subject 
sources with clear guidance in regulation on how to register with the 
MEPD Administrator.

Area Wide Limits

    The Tribe has adopted synthetic minor source permitting provisions 
that, while structured differently, are substantively identical to 
EPA's rule at 40 CFR 49.158. The Mohegan's area-wide limit requirements 
apply to both NSR pollutants and hazardous air pollutants (HAPs) 
consistent with EPA's Tribal Minor NSR rule in Indian Country. EPA find 
the requirements within Appendix C of the Mohegan's minor NSR program 
to adequately establish the necessary testing, monitoring, 
recordkeeping, and reporting requirements to ensure compliance with 
proposed limitation.

Permit by Rule Provisions and Adoption of Gasoline Dispense PBR

    The Tribe has developed regulatory procedures to adopt permit by 
rules consistent with EPA's own procedures to adopt permit by rules 
within 40 CFR 49.156. The Tribe has also adopted a permit by rule for 
new or modified true minor source gasoline dispensing facilities which 
is identical to EPA's own air quality permit by rule for new or 
modified true minor source gasoline dispensing facilities in Indian 
country at 40 CFR 49.164.

Public Notice and Participation Requirements

    The Tribe has adopted public notice and participation requirements 
that are consistent with EPA's rule at 40 CFR 49.157. The Mohegan 
Tribe's public participation requirements include at a minimum the 
following: availability, in the area affected by the air pollution 
source, of the draft permit and associated public record, for public 
inspection; public notice, describing the availability of the documents 
for review and the opportunity to comment; a comment period, no less 
than thirty (30) days commencing upon the date of publication; a thirty 
(30) day period for EPA to review commencing upon the date a copy of 
the required notice is provided to EPA; and if requested by a member of 
the public, a public hearing relating to tentative approval of the 
permit shall be held with appropriate notice provided.

B. What procedural requirements did the Mohegan Tribe satisfy?

    Section 110(a) of the CAA requires that implementation plans be 
adopted by a state after reasonable notice and public hearing. EPA has 
promulgated specific procedural requirements for SIP revisions in 40 
CFR part 51, subpart F. These requirements include publication of 
notices, by prominent advertisement in the relevant geographic area, of 
a public hearing on the proposed revisions, a public comment period of 
at least 30 days, and an opportunity for a public hearing.
    We find that the Mohegan's process for adopting and submitting the 
TIP satisfies the procedural requirements for adoption and submission 
of implementation plans under CAA section 110(a) and EPA's implementing 
regulations.
    Specifically, the Mohegan's TIP submittal has fulfilled the 
following requirements: (1) a formal letter of submittal from the 
Tribe's Chairman requesting EPA approval of the plan in a letter dated 
July 28, 2022 from James Gessner, Jr., Chairman, to Patrick Bird, Air 
Permits, Toxics, and Indoor Programs Branch Manager, EPA New England 
Region 1 (Cover Letter), (2) evidence that the Tribe has adopted the 
plan in the Tribal code or body of regulations including the date of 
adoption or final issuance as well as the effective date of the plan, 
(3) evidence that the Tribe has the necessary legal authority under 
tribal law to adopt and implement the plan, (4) a copy of the actual 
regulation, or document submitted for approval and incorporation by 
reference into the plan, (5) evidence that the Tribe followed all the 
procedural requirements of the Tribe's laws and constitution in 
conducting and completing the adoption/issuance of the plan (Exhibit 
A), (6) evidence that the public notice was given of the proposed 
change consistent with procedures approved by EPA, including the date 
of publication of such notice, (7) certification that public hearings 
were held in accordance with information provided in the public notice 
and the Tribe's laws and constitution, and (8) compilation of public 
comments and the Tribe's responses thereto.

VI. Proposed Action

    EPA is proposing to approve the Mohegan Tribe of Indians of 
Connecticut's Tribal Implementation Plan under the Clean Air Act to 
regulate air pollution within the exterior boundaries of the Tribe's 
reservation. The proposed TIP includes minor NSR preconstruction 
permitting requirements and allows for sources that would otherwise be 
major to take restrictions on their potential to emit to below major 
source thresholds. Specifically, we are proposing to approve Resolution 
No. 2022-31 which incorporates Article XIII-A. EPA is soliciting public 
comments on the issues discussed in this document or on other relevant 
matters. These comments will be considered before taking final action. 
Interested parties may participate in the Federal rulemaking procedure 
by submitting written comments to this proposed rulemaking by following 
the instructions listed in the ADDRESSES section of this Federal 
Register.

VII. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the Mohegan Tribe's Resolution No. 2022-31, which 
incorporates Article XIII-A and establishes a minor NSR preconstruction 
permitting program and allows for sources that would otherwise be major 
to take restrictions on their potential to emit to below major source 
thresholds. The EPA has made, and will continue to make, these 
documents generally available through https://

[[Page 2303]]

www.regulations.gov and at the EPA Region 1 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
TIP submission that complies with the provisions of the Act and 
applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing TIP submissions, EPA's role is to approve tribal 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves tribal law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by tribal law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Indians, 
Intergovernmental relations, Reporting and recordkeeping requirements.

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

    Dated: January 9, 2023.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2023-00552 Filed 1-12-23; 8:45 am]
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