The Mohegan Tribe will have new authority to regulate clean air within the exterior borders of their reservation after publication of a new final rule from the Environmental Protection Agency (EPA).
The rule, published by the EPA in the Federal Register on April 25, finalizes amendments to the Mohegan Tribe of Indians of Connecticut Tribal Implementation Plan (TIP) under the Clean Air Act and includes new preconstruction permitting requirements for minor sources of air pollution not covered by previous federal approvals to the Tribe’s existing New Source Review permitting program.
The EPA’s NSR permitting program regulates emissions stemming from construction and governs not only emission limits, but what type of construction is allowed, as well as how sources of air pollution must operate. NSR permits exist to “prevent the construction of sources that would interfere with attainment or maintenance of a National Ambient Air Quality Standard (NAAQS) or violate the control strategy in nonattainment areas.”
Approvals to the Tribe’s TIP include the addition of a source registration program for new and existing sources of pollution, a minor NSR permitting program, and “provisions to obtain a potential to emit limit to render a source non-major” for new and existing sources of pollution. Under EPA regulations, the “potential to emit” is the maximum capacity a stationary source of pollution can emit under its physical and operational design.
Additionally, the revisions outline a process allowing the Tribe to establish a permit by rules. The approved revisions include one adopted permit by rule, applying to the Tribe’s regulation of gasoline dispensing facilities. Also included in the amendments to the TIP are processes for public notification and participation related to permitting activities, as well as a process to allow for administrative permit revisions in limited circumstances.
Amendments made to the Clean Air Act (CAA) in 1990 give the EPA authority to approve eligible tribes to administer certain CAA provisions, leading to the creation of the agency’s Tribal Authority Rule (TAR). The rule allows federally recognized tribes to be treated like states for the purposes of administering certain Clean Air Act provisions.
To receive authority to regulate those provisions under the TAR, tribes must generally be federally recognized and have a governing body that carries out substantial government duties. Additionally, the CAA provisions delegated to the tribe must pertain to the management or protection of air resources within the tribe’s jurisdiction and they must be able to reasonably be expected to carry out the functions for which they seek approval.
The Mohegan Tribe received a delegation of authority to be treated as a state under the Clean Air Act from the EPA on December 26, 2006. At the time, the Tribe entered a memorandum of agreement with the EPA’s Region 1, which covers New England, and agreed to provide the agency‘s Criminal Investigative Division with investigative leads if they had reason to suspect either a tribal member or non-member had committed an act punishable under the Clean Air Act.
At the same time, the Tribe requested eligibility to be treated as a state, they submitted an initial TIP for approval. That initial plan included a tribal ordinance limiting the emission of nitrogen oxide from stationary sources owned by the Mohegan Tribal Gaming Authority and located within the Tribe’s reservation.
The initial 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” permit requirements. The Mohegan Tribe’s initial TIP was granted EPA approval on November 14, 2007.
The Mohegan Tribal Council passed an updated NSR permitting program and submitted updates to its TIP for EPA approval in July 2022. Though tribes are not required to seek the agency’s approval for NSR permit programs, the EPA does evaluate them “in accordance with applicable statutory and regulatory criteria in a manner similar to the way in which EPA would review a similar state submittal” when tribes choose to submit them.
The EPA published a notice of proposed rulemaking for the TIP revisions on February 13, 2023, at the same time opening a public comment period. The agency only received one comment, which was supportive of the proposed action.
The new rule, and the Mohegan Tribe’s updated TIP, will go into effect on May 25.