DEVAL L. PATRICK

Governor TIMOTHY P

. MURRAY Lieutenant Governor COMMONWEALTHOF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTALAFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617-292-5500

IANA . BOWLES Secretary LAURIE BURT Commissioner

310 CMR7

.00 : AIR POLLUTION CONTROL RESPONSE TOCOMMENTS November 2007

This information is available in alternate format. Call Donald M . Gomes, ADACoordinatorat 617-556-1057. TDD# 1-866-539-7622 or 1-617-574-6868 . MassDEPon the World Wide Web : http ://Www

.mass.gov/dep ILI) Printed on Recycled Paper

### INTRODUCTION

In accordance with the provisions of M .G.L. chapter 30A, public hearings were held at the Boston office of the Department of Environmental Protection (MassDEP) and Springfield City Hall on March 20 and 21, 2007, respectively, to receive testimony on proposed amendments to the Air Pollution Control Regulations at 310 CMR7.00 . The public comment period remained open until 5 p

.m . on March 23, 2007. This document provides a response to the comments presented during the public comment period. BACKGROUND Massachusetts General Laws, Chapter 111, Sections 142A-142N is the enabling legislation that gives MassDEP the authority to adopt regulations to prevent, control or abate conditions of air pollution, and to protect public health and welfare. The Commonwealth's regulations for the control of air pollution are promulgated at 310CMR 7.00 "Air Pollution Control" . The amendments, which the MassDEP is adopting and submitting to the US Environmental Protection Agency (EPA) as a State Implementation Plan (SIP) revision, are part ofthe effort to attain and maintain the health and welfare based National Ambient Air Quality Standards (NAAQS) for criteria pollutants. Several amendments correct typos or modify text to clarify intent . Specific changes include: " Update the list of Massachusetts cities and towns to reflect changes in MassDEP regional boundaries " Clarify the particulate emissions limits and maintenance/testing requirements to which engines and turbines are subject (310 CMR 7.02(8) and 310CMR 7.04(4)) " Add a new

organic material emission cap (<10 tons per year) to several sections of 310 CMR7.03 to provide owners/operators of "small" facilities a mechanism to limit their facility's potential emissions and avoid reporting requirements of 310 CMR7.12 " Corrections, updates of Source Registration (310 CMR 7.12) requirements " Modify the Boiler - ERP requirements (310 CMR7.26(30)-(36)) RESPONSES TOCOMMENTS: MassDEP held public hearings on proposed amendments to the air pollution control regulations at 310 CMR7

.00; no oral comments were provided. Written comments were received fromtwo entities: Daniel J . Brown, Chief, Air Permits, Toxics and Indoor ProgramUnit ofthe US EPA Region I Robert A

. Rio, Esq. Vice President, Government Affairs, Associated Industries of MassachusettsSUMMARY AND RESPONSE TOCOMMENTS

310 CMR7.03 Comment : The USEPAis concerned that the amendments to 310 CMR7.03 do not meet the six-prong test of their 1995 olic on `enforceable as a practical matter' and they would not approve the modified regulation into the SIP as a way to limit a facility's emissions. (N .B. In 1990, we submitted these regulations to EPA as a SIP revision.) Specifically, EPA's comment is that MassDEP is not requiring notification froman owner/operator electing to utilize the emissions caps being adopted 310CMR7.03(15)(a)2., (16)(a)2., (19)(a)2. and (25)(b)l .b for the instances where the owner/operator may elect to limit the facility's potential to emit (PTE) to avoid applicability to federal New Source Review(NSR) . Response: We disagree with EPA's comment . We receive notification fromthe owners/operators whose facilities are subject to the reporting requirements of source registration (310 CMR7.12) . 310 CMR7.03(5) requires the owner/operator to report the installation and emissions froman emission unit installed under 310 CMR7.03 in the next required source registration/emission statement . The thresholds for which filing source registration is required are below

the EPA's major source thresholds of concern. EPA's policy requirement is unjustifiably burdensome and unrealistic to both the regulated community and MassDEP. Requiring notification fromeach owner/operator taking advantage of 310CMR7.03, of a facility otherwise exempt fromthe reporting requirements of 310CMR 7.12, provides no environmental benefit. The following is from

Attachment 4to the referenced 1995 EPApolicy memorandumoutlining the specific six-prong test referenced in EPA's comment . In part the guidance states: "Based on these precedents, this guidance describes six enforceability criteria which a rule or a general permit must meet to make limits enforceable as a practical matter. In general, practical enforceability for a source-specific permit termmeans that the provision must specify (1) a technically accurate limitation and the portions of the source subject to the limitation; (2) the time period for the limitation (hourly, daily, monthly, annually) ; and (3) the method to determine compliance including appropriate monitoring, recordkeeping and reporting. For rules and general permits that apply to categories of sources, practical enforceability additionally requires that the provision (4) identify the categories of sources that are covered by the rule; (5) where coverage is optional, provide for notice to the permitting authority of the source's election to be covered by the rule ; and (6) recognize the enforcement consequences relevant to the rule." In Massachusetts, any person who constructs, substantially reconstructs, alters or subsequently operates an emission unit which results in an increase in potential emissions of equal to or greater than one ton per year is required to submit a plans application pursuant to 310CMR 7.02(4) . In situations where the proposed operation can conform to the design and emissionlimitations established in 310 CMR 7.03, a plans application is not required. Compliance with

these requirements is not optional . The recent amendments to certain sections of 310CMR7.03 were to establish `mid-level' emission caps and usage limitations to provide the owner/operator of the smallest operations a streamlined way to eliminate their applicability to the reporting requirements of 310 CMR7.12 and the annual compliance assurance fee for air quality required by 310 CMR4 .03. Many small operations, with assistance from the MassDEP's regional offices and OTAwere submitting plan applications to establish emission caps below the applicable thresholds for annual compliance fees (310 CMR4.03) . As stated above, the initial `7.03' permit by rule regulation was adopted in 1990 and to require notification fromowners/operators as of2007 is unnecessarily burdensome to both the regulated community and MassDEPwith little or no environmental benefit . 310 CMR7

.26(30)-(36) Comment : Associated Industries ofMassachusetts' (AIM) comment is directed to the schedule of when Ultra Low

Sulfur Distillate (ULSD) fuel oil is required for all ERP-Boilers. Mr. Rio states that owners/operators of ERPsubject boilers have already made their contracts with their oil suppliers for the next heating season and the date for requiring ULSD should be moved from July 1, 2007 to July 2008. Response: MassDEP agrees with both comments. These regulations were delayed several times, and the proposed dates will be changed to July 1, 2009. Comment : Mr . Rio, representing AIM, comments that he interprets the regulation (310 CMR 7.26(33)(a)4., to mean `purchase or delivery' after that date, not the burning. Response: Yes, MassDEP agrees that `purchase or delivery' was the intent and parallels the phrasing in the recently adopted ERP regulation for engines and turbines (310 CMR7.26.43(c)) . The regulation will be amended to read in part . . . "no person shall accept for delivery for burning" . . . Comment : Mr. Rio reiterated his suggestion that, for the purposes of applicability to 310CMR 7.00: Appendix C (federally required operating permit program), the emissions threshold for major sources of NOXbe raised to 100tons per year, as allowed for by Massachusetts' ozone attainment status changing from serious to moderate. Raising the applicability would allow more owners/operators to take advantage of the permit streamlining benefits of the boiler ERP program and eliminate the burden of the operating permit program . Response: MassDEPappreciates your comment however MassDEP can not amend the operating permit regulations (310 CMR 7.00 : Appendix C

: Operating Permit and Compliance Pro am) based on a comment received on the boiler ERP regulations exemptingowners/operators of operating permit subject facilities fromERP, because the operating permit

regulations were not part ofthe package. Moreover, 1990, the federal Clean Air Act (CAA) was amended to include title V, which established the requirement that all major sources ofregulated air pollutants have a federally enforceable operating permit . Title. V does not independently establish applicability thresholds; it relies on applicability to other federal regulations such as New Source Review

under section 111, Prevention of Significant Deterioration requirements in 40 CFR52.21, New Source Performance Standards under section 111, National Emission Standards for Hazardous Air Pollutants (NESHAP) under section 112, and the Acid Rain Programunder title IV and the definition of `major source' as defined by these federal regulations. MassDEP implements this federally required operating permit program at 310CMR7.00

: Appendix C

. Therefore, MassDEPwould need to change the applicability threshold of 310 CMR 7.00: Appendix A : Emission Offsets and Non Attainment Review (federal NSRprogram) to accommodate a change to the applicability section of the operating permit program to continue to have an approved operating permit program . However, the courts found that EPA's decision to allownonattainment areas to relax the requirements for new source reviewapplicability, including major source thresholds, did not comply with the CAA . As a result, the applicable major source threshold for the operating permit program remains at 50 tons per year of NOX .