# Commonwealth of Massachusetts

Department of Environmental Protection

Certification of Massachusetts State Implementation Plan Adequacy Regarding Clean Air Act Sections 110(a)(1) and (2)

For PM2.5 

# April 4, 2008

### Certification of Massachusetts State Implementation Plan Adequacy

Regarding Clean AirAct Sections 110(a)(1) and (2) For PM2.5 The purpose of this document is to provide the U .S. Environmental Protection Agency (EPA) with certification that the Massachusetts State Implementation Plan (SIP) for air quality adequately meets the "infrastructure" requirements of 7401 U .S .C. §2110(a)(1) and (2) (Sections 110(a)(1) and (2) of the Clean Air Act) with respect to the National Ambient Air Quality Standard (NAAQS) for PM2 .5 promulgated by EPA in 1997. EPA provided Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)for the 1997 8-Hour Ozone and PM2 .5 NAAQSin an October 2, 2007 memo from WilliamHarnett, Director of EPA's Air Quality Policy Division. Consistent with the EPA Guidance, the Massachusetts Department of Environmental Protection (MassDEP) certifies that the existing Massachusetts SIP already addresses the basic SIP elements required under the Clean Air Act and adequately provides for the implementation, maintenance and enforcement of the 1997 PM2 .5 NAAQS. Background On July 18, 1997, EPApromulgated new and revised NAAQSfor ozone and particulate matter (PM) . For ozone, EPArevised the NAAQS to provide an 8-hour averaging period (versus a 1- hour averaging period for the pre-existing NAAQS) . For PM, EPApromulgated a new 24-hour and a new

annual NAAQS for PM2.5 (particles with an aerodynamic diameter less than or equal to 2.5 micrometers) .' (The prior NAAQS was for PM10 -particles less than or equal to 10 micrometers.) Massachusetts is designated as non-attainment for the 1997 8-hour ozone standard and is designated as attainment/unclassifiable for the 1997 PM2 .5 standard. Under Sections 110(a)(1) and (2) ofthe Clean Air Act, all states are required to submit SIPs meeting the requirements of Sections 110(a)(1) and (2) within 3 years after promulgation of a new or revised standard. Thus, states were required to submit SIPs for the 1997 standards to EPA no later than July 2000. Litigation over the 1997 ozone and PM2 .5 NAAQS delayed the implementation of the standards and the filing of SIPS. Section 110(a)(1) provides the procedural and timing requirements for SIPS. Section 110(a)(2) lists the basic or "infrastructure" elements that all SIPs must contain; these include emissions inventories, ambient air quality monitoring and data systems, programs for enforcement of control measures and adequate resources to implement the plan. In addition, SIPs must address interstate transport of air pollution under Section 110(a)(2)(D)(i) . Areas that EPA has designated as nonattainment of a NAAQS must also submit an attainment SIPdemonstrating how the area will attain the standard by a prescribed attainment date.2

I In December 2006, EPAagain revised the annual NAAQS for PM2 .5. It strengthened the 24-hour standard and left the annual standard unchanged. In March 2008, EPAadopted atighter 8-hour ozone standard. Z MassDEPsubmitted its Ozone Attainment Demonstration SIPto EPAon January 31, 2008. It is not required to submit an attainment demonstration SIP for PM2.5. MassDEP PM2.5 Infrastructure Certification - Page 3 of 15In March of 2004, Earth Justice initiated a lawsuit against EPAalleging that EPA failed to make

findings that states had not submitted SIPs in accordance with the requirements of Sections 110(a)(1) and (2) . On March 10, 2005, EPA entered into a Consent Decree with Earth Justice that obligated EPAto determine whether states have made SIP submissions required to meet Section 110(a)(2)(D)(i) relating to interstate transport by March 15, 2005. MassDEPsubmitted to EPAon December 14, 2007, the Final Massachusetts State Implementation Plan Revision to Meet Clean AirActSection 110(a)(2)(D)(i) Interstate Air Pollution Requirements (the Transport SIP) addressing both ozone and PM2 .5. The Consent Decree also obligated EPAto make a determination whether States have made submissions necessary to meet the remaining (non-transport) Section 110(a)(1) and (2) requirements for SIP elements for the ozone NAAQS by December 15, 2007, and by October 5, 2008 for the PM2

.5 NAAQS.3 For the ozone NAAQS, on December 14, 2007, MassDEP submitted to EPA a Certification ofState Implementation PlanAdequacy Regarding CleanAir Act Sections I10(a)(1) and (2) (the Ozone Certification), certifying that it met the remaining basic SIP Section 110(a)(1) and (2) requirements. EPAissued a determination on March 17, 2008finding that, with respect to the ozone NAAQS, the Massachusetts SIP is complete, with the exception of the PSDprogram .4 This document constitutes MassDEP's certification that it already meets the remaining basic SIP Section 110(a)(1) and (2) requirements with respect to the PM2 .5 NAAQS

. It generally relies on the same statutory authority and regulations referenced in the Ozone Certification, as noted below . Certification of Basic SIP Elements The basic or "infrastructure" SIPelements required under Section 110(a)(2) are listed in Table 1 . Table 1 also lists the Massachusetts statutes and regulations that are already part of the Massachusetts SIP and satisfy the Section 110(a)(2) requirement. This PM2 .5 NAAQS Certification is based on the same documentation of legal authority and program implementation as the Ozone Certification previously submitted to EPA . Adescription of MassDEP's legal authority to adopt rules and regulations to comply with the Clean Air Act is in the attached Section II, Legal Authority fromthe original 1972 Massachusetts SIP for ozone.s Also attached are several legal opinion submittals (also submitted with the Ozone ' EPA is requiring that states submit their certifications related to PM2 .5 by April 4, 2008, so that EPAcan issue its . determination by October 5, 2008. 4 EPA's findings with respect to the Ozone Certification are at 73 Fed. Register 16205, March 27, 2008. For PSD, EPAfoundthat Massachusetts failed to submit a SIP addressing Section 110(a)(2)(C) (the Part C PSDpermit program), but that this requirement has already been addressed in a Federal Implementation Plan (FIP) that remains in place. The finding will, therefore, not trigger any additional F1P obligation. MassDEP accepted delegation ofthe PSDprogramfromEPAin 1982 and implementedthe programuntil it returned implementation to EPAin 2003. Under the terms of the Performance Partnership Agreement between EPA Region 1 and MassDEP, EPAadministers the PSDprogram

with the cooperation andassistance of MassDEP . 5 The attached Section II - LegalAuthority of the original 1972 Ozone SIPwas submitted with the Ozone Certification. The original Massachusetts SIP for particulate matter (at that time, defined as Total Suspended Particulates) was submitted to EPA in 1971 and was based on the same general statutory provisions referenced in Section 11 ofthe 1972 Ozone SIP . MassDEP PM2.5 Infrastructure Certification - Page 4 of 15Certification) that address similar Clean Air Act requirements related to state legal authority to

implement other federally mandated air pollution control programs. These include the following: November 12, 1993 and August 2, 1995, Massachusetts Attorney General's legal opinions regarding Title Vofthe federal Clean Air Act and the Commonwealth's regulations at 310 CMR7.00: Appendix C : Operating Permit Program ; November 18, 1998 Massachusetts Attorney General's Supplemental Legal Opinion Regarding Section 129of the Clean Air Act and the Commonwealth's Regulation at 310 CMR 7.08(2), the Municipal Waste Combustor Regulations; and theJuly 9, 2007 MassDEP's General Counsel's legal opinion regarding the authority to adopt the Clean Air Mercury Rule State Plan and accompanying regulations 310 CMR 7.29 and 310 CMR7.02 . Conclusion The statutory authority and regulations referenced in Table l, which are currently part ofthe Massachusetts SIP, meet the requirements of Clean Air Act Sections 110(a)(1) and (2) with respect to the 1997 PM2 .5 NAAQS. Therefore, MassDEP certifies that the existing Massachusetts SIP already addresses the SIPelements required under the Clean Air Act and provides for the implementation, maintenance and enforcement ofthe 1997 PM2 .5 NAAQS.

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# Table 1

Massachusetts' Statutory Authority and Regulations Meeting Clean Air Act

Section 110(a)(1) and (2) SIP requirements for PM2 .5` Clean Air Act CAA Section SIP requirement (Each such plan shall . . .) Massachusetts Program 110(a)(2)(A) . . . "include enforceable emission limitations M .G.L. c 21A, s. 8

. Organization of departments; powers, duties and Emission limits and other control measures, means, or functions. and other techniques (including economic incentives control such as fees, marketable permits, and M .G.L. c.111, s.142 A- M, collectively referred to Massachusetts Pollution measures auctions of emissions rights), as well as Control Laws, provides MassDEP with broad authority to prevent pollution or

schedules and timetables for compliance. . ." contamination ofthe atmosphere and to prescribe and establish regulations to prevent pollution or undue contamination of the atmosphere. M .G.L. c. 21A, s. 18, MassDEP's fee statute MassDEP Regulations: In accordance with the above-referenced authority, MassDEP adopted 310 CMR6 .00, AmbientAir Quality Standards for the Commonwealth of Massachusetts. This regulation sets a state standard for particulate matter, but it has not been updated to include a PM2.5 standard. MassDEPintends to revise this regulation to adopt the current NAAQS for PM2.5 (and for ozone) as Massachusetts ambient air quality standards. In the meantime, however, all MassDEPregulations that require compliance with an ambient air quality standard require compliance with the NAAQS . Therefore, the out-of-date state ambient air quality standards in 310 CMR6.00do not have aregulatory impact . MassDEPalso adopted regulations to control air pollution at 310 CMR7 .00 et ; CFRrefers to the U

.S. Code ofFederal Regulations ; CMRrefers to the'Code of Massachusetts Regulations; MassDEPwas formerly known as the Department of Environmental Quality Engineering or DEQE, and prior to that Bureau of Air Quality Control in the Massachusetts Department ofPublic Health. MassDEP PM2

.5 Infrastructure Certification - Page 7 of 15Clean Air Act I SIP requirement (Each such plan shall . . .) (CAA) Section

110(a)(2)(13) Ambient Air quality monitoring/data system . . . "provide for establishment and operation

of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator ." Massachusetts Program al . Air Pollution Control. With a few exceptions (for regulations that EPA did not require be part of the federally-enforceable SIPs), these regulations have been submitted to EPA and incorporated into the Massachusetts SIP, as detailed in the numerous MassDEP SIPrevisions submitted since the original 1971 PM

SIPand 1972 Ozone SIPand approved by EPA as part ofthe SIP in 40 CFRPart 52, Subpart W . Other MassDEPregulations that have been adopted and incorporated in the SIPinclude: 310 CMR60.00Air Pollution Controlfor Mobile Sources. 310 CMR4

.00Timely Action &Fee Schedule Regulations M .G.L. c. 111, s. 142B-D, gives MassDEP the authority to maintain and operate air sampling stations and devices, and may require, for the purpose of conducting a continuing inventory ofair pollution sources of emissions, any person to register with MassDEP and provide emissions information. MassDEP regulations relating to this authority include: 310 CMR7.12 Source Registration 310CMR7.13 Stack Testing 310 CMR7.14 Monitoring Devices and Reports 310 CMR7

.00 : Appendix COperating Permit Program MassDEP collects and reports ambient air quality data for 03, S02, N02, Pb, CO, PM1o and PM2

.5. These data are reviewed and validated before being sent to the EPAair quality system(AQS), no later than 90 days after the end of a calendar quarter. On January 28, 1980, MassDEQE (predecessor to MassDEP) submitted to EPApursuant to 40 CFR § 52.370 (13), a comprehensive air quality monitoring plan, intended to meet requirements of 40 CFRpart 58. MassDEP PM2.5 Infrastructure Certification - Page 8 of 15Clean Air Act SIP requirement (Each such plan shall . . .) Massachusetts Program CAA Section On May 1, 2007, MassDEP submitted to EPAthe most recent annual air monitoring network plan. 110(a)(2)(C) . . . "include aprogram to provide for the M .G .L. c 111, s.2C

. Pollution violations; orders of department of Program

for enforcement ofthe measures described in environmental protection, authorizes MassDEPto issue orders enforcing air enforcement of subparagraph (A), and regulation of the pollution control regulations control modification and construction of any measures stationary source within the areas covered by M .G .L. c. 111, s 142A-M

Massachusetts Pollution Control Laws authorize the plan as necessary to assure that national MassDEP to adopt regulations to control pollution or contamination of ambient air quality standards are achieved, atmosphere; and enforce such regulations and issue penalties. including a permit programas required in parts Cand D

;" M .G .L. c.21A, s.16Administrative Penalties Act MassDEP regulations adopted pursuant to these authorities include: 310 CMR 5.00Administrative Penalties 310 CMR7.02 Plan Approval and Emission Limitations List 310 CMR7.52 Enforcement Provisions 310 CMR7.00

: Appendix COperating Permit and Compliance Program With respect to the permit programrequirement, MassDEP submitted a NSR Equivalency Detennination to EPA-Region I on December 30, 2005. 110(a)(2)(D) . . . "contain adequate provisions - (i) Revision to the Massachusetts State Implementation Plan -The SIP I Interstate prohibiting, consistent with the provisions of revision addressing the Interstate Air Pollution Transport Requirements of transport this title, any source or other type of Clean Air Act Section 110(a)(2)(D)(i), was submitted to EPA on January 31,

emissions activity within the State from 2008. emitting any air pollutant in amounts which will - (I) contribute significantly to NSR Equivalency Determination was submitted to EPA-Region 1 on nonattainment in, or interfere with December 30, 2005. maintenance by

, any other State with respect

MassDEP PM2.5 Infrastructure Certification - Page 9 of 15Clean Air Act I SIPrequirement (Each such plan shall . . .) Massachusetts Program ~AA) Section

110(a)(2)(E) Adequate resources to any such national primary or secondary

ambient air quality standard, or (11) interfere with measures required to be included in the applicable implementation plan for any other State under part Cto prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable; requirements of sections 126 and 115 (relating to interstate and international pollution abatement) ;"

. . . "provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law fromcarrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards u nder section 128, Pursuant to its PSD ProgramDelegation Agreement, MassDEP returned delegation of the PSDProgram to EPA on February 23, 2003. Under the terms of the Performance Partnership Agreement between EPARegion 1 and MassDEP, EPA continues to administer the PSDprogram with the cooperation and assistance of MassDEP . MassDEP anticipates that this arrangement will continue for purposes of implementing PSDfor sources of PM2.5. In implementing the PSDprogramin Massachusetts, EPAis using PM 10 as a surrogate for PM2 .5, consistent with EPAguidance. EPAhas not yet issued the final NSR/PSD rule for PM2 .5. For the ozone NAAQS, EPAfound that Massachusetts failed to submit a SIP addressing Section 110(a)(2)(C) (the Part C PSDpermit program), but that this requirement has already been addressed in a Federal Implementation Plan (FIP) that remains in place and that the finding will, therefore, not trigger any additional FIP obligation. iVI .G .L. c 21A, s. 8

. Organization of departments; powers, duties and functions. Specifically, it mandates that in no event shall the department authorize implementation of any plan, strategy or technology less protective of the environment than required by any applicable federal statute. M .G.L. c. 111, s. 142A-M and the accompanying regulations provides MassDEP with sufficient authority to carry out implementation of the plan. M .G .L. c . 111, s. 142E Cooperation by, and Authority of Department over, other Agencies, Commissioners, Authorities, or Political Subdivisions with Respect to Air Pollution. M .G.L. c 21A, s. 8

. Organization ofdepartments; powers, duties and functions

MassDEP PM2.5 Infrastructure Certification - Page 10 of 15Clean Air Act SIP requirement (Each such plan shall . . .) Massachusetts Program CAA Section and (iii) necessary assurances that, where the In Section Xof the Massachusetts 1971 SIP for PM, the Bureau ofAir Use

State has relied on a local or regional Management provided details that it had adequate personnel and funding to government, agency, or instrumentality for carry out implementation of the original SIP . This resource finding has been the implementation of any plan provision, updated in subsequent SIP submissions related to PM and ozone. MassDEP the State has responsibility for ensuring has continued to add staffand programs since that time and currently has adequate implementation of such plan adequate personnel and funding to implement the existing SIP . provision;" 110(a)(2)(F) . . . "require, as may be prescribed by the M .G.L. c. 111, s. 142A-D, gives MassDEP the authority to maintain and Stationary Administrator - (i) the installation, operate air sampling stations and devises, and may require, for the purpose of source emissions maintenance, and replacement of equipment, conducting a continuing inventory ofair pollution sources of emissions, ' monitoring and and the implementation of other necessary require any person to register with MassDEP and provide emissions II reporting steps, by owners or operators of stationary information. '

sources to monitor emissions from such sources, (ii) periodic reports on the nature MassDEP regulations relating to this authority include: and amounts of emissions and emissions- 310 CMR7.12 Source Registration related data fromsuch sources, and (iii) 310 CMR7.13 Stack Testing correlation of such reports by the State 310 CMR7.14 Monitoring Devices and Reports , agency with any emission limitations or standards established pursuant to this Act, Chapter 66 : Section 1. Public inspection and copies of records; presumption; ' which reports shall be available at exceptions reasonable times for public inspection;" ', 310 CMR 3.00 Public Records Access Regulations I 110(a)(2)(G) . . . "provide for authority comparable to that M .G.L. C .111, s.2B-CAir Pollution Emergencies authorizes the ' Emergency in section 303 and adequate contingency Commissioner of MassDEP to determine that a condition or impending power plans to implement such authority;" condition of the atmosphere in the commonwealth or in any part thereof constitutes a present or reasonably imminent danger to health, and may, with ', the approval of the governor, declare an air pollution emergency and cause the , fact to be made known to the public. ', MassDEPregulations relating to this authority are at 310CMR8.00et.al,

MassDEP PM2.5 Infrastructure Certification - Page 11 of 15Clean Air Act CAA Section SIP requirement (Each such plan shall . . .) Massachusetts Program ', Prevention &Abatement ofAir Pollution Episodes &Emergencies. These regulations prevent ambient air concentrations of pollutants subject to a NAAQS fromreaching levels that would constitute significant harm to public health, consistent with the significant harmlevels and procedures for state emergency episode plans established by EPA in 40 CFRPart 51 .150. li The requirement for a state to submit an emergency episode plan is based on a priority region classification. For PM2 .5, the classification scheme that EPA is planning to propose would require states with a 24 -hour PM2 .5 ' concentration above 140 .5 ug/m3 (using the most recent three years of data) to ' develop an emergency episode plan. States that do not meet this threshold ' would be classified as Priority III and would not be required to develop an emergency episode plan for PM2 .5. EPAhas determined that Massachusetts is a Class III Priority Area and is not required to adopt an Emergency Episode Plan for PM2.5. MassDEP forecasts predicted concentrations of PM2.5 statewide throughout the year and issues alerts to the public when concentrations are expected to ', reach unhealthy levels using the Air Quality Index and will continue to do so. 110(a)(2)(H) . . . "provide for revision of such plan - (i) M .G.L. c . 111, s. 142A-Mallow MassDEPto amend its air pollution control Future SIP fromtime to time as may be necessary to regulations fromtime to time. revisions take account of revisions of such national

primary or secondary ambient air quality standard or the availability ofimproved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the lan is substantially inadeq uate to

MassDEP PM2

.5 Infrastructure Certification - Page 12 of 15Clean Air Act SIP requirement (Each such plan shall . . .) Massachusetts Program CAA Section attain the national ambient air quality

standard which it implements or to otherwise comply with any additional requirements established under this Act;" 110(a)(2)(J) . . . "meet the applicable requirements of M .G.L. c Z1A, s. 8

. Organization of departments; powers, duties and Consultation section 121 (relating to consultation) functions. with government M .G .L. c. 111, s. 142E Cooperation by, and Authority of Department over, officials other Agencies, Commissioners, Authorities, or Political Subdivisions with Respect to Air Pollution. M .G.L. c . 30A, Massachusetts Administrative Procedures Act, requires MassDEPto provide notice and public comment and hearing prior to adopting of any regulations. Executive Order No. 145 requires MassDEP to provide notice to the Local Government Advisory Committee, through the Massachusetts Municipal Association, to solicit input on the impact on local government . Massachusetts SIP Steering Committee, established pursuant to the Clean Air Amendments of 1990 . 110(a)(2)(J) . . . "meet the applicable requirements of M .G .L. c . 30Arequires MassDEP to provide notice and public comment and Public section 127 (relating to public notification), hearing prior to adoption of any regulations. notification 110(a)(2)(J) . . . "meet the applicable requirements ofpart Pursuant to its PSDProgram Delegation Agreement, MassDEP returned PSDand C (relating to prevention ofsignificant delegation of the PSD Program to EPA on February 23, 2003. Under the terms visibility deterioration ofair quality and visibility of the Performance Partnership Agreement between EPARegion 1 and Protection protection) ;" MassDEP, EPAcontinues to administer the PSD programwith the

MassDEP PM2.5 Infrastructure Certification - Page 13 of 15Clean Air Act SIP requirement (Each such plan shall . . .) Massachusetts Program CAA Section cooperation and assistance of MassDEP . MassDEP anticipates that this arrangement will continue for purposes of implementing PSDfor sources of PM2 .5. In implementing the PSDprogram in Massachusetts, EPA is using PM 10 as a surrogate for PM2 .5, consistent with EPA guidance. EPAhas not yet issued the final NSR/PSDrule for PM2.5. MassDEPwill address visibility issues in its Regional Haze SIP, which will be submitted to EPAin 2008. (The Regional Haze SIP is discussed in greater detail in the Transport SIPrevision submitted to EPAin December 2007.) 110(a)(2)(K) . . . "provide for - (i) the performance of M .G.L. c. 111, s. 142B-D, gives MassDEPthe authority to maintain and Air quality such air quality modeling as the operate air sampling stations and devises, and may require, for the purpose of modeling/data Administrator may prescribe for the purpose conducting a continuing inventory ofair pollution sources of emissions,

of predicting the effect on ambient air require any person to register with MassDEPand provide emissions quality of any emissions of any air pollutant information . for whichthe Administrator has established a national ambient air quality standard, and 310 CMR7.02 Plan Approval and Emission Limitations (ii) the submission, upon request, of data related to such air quality modeling to the Administrator;" 110(a)(2)(L) . . . "require the owner or operator of each M .G.L. c.21A, s.18authorizes MassDEPto promulgate regulations Permitting fees major stationary source to pay to the establishing fees.

permitting authority, as a condition of any permit required underthis Act, a fee 310 CMR4.00 Timely Action &Fee Schedule Regulations - sets permit and sufficient to cover - (i) the reasonable costs compliance fees, including fees for Operating Permits (Title V) . of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such ermit (not including any court

MassDEP PM2.5 Infrastructure Certification - Page 14 of 15Clean Air Act

CAA Section SIPrequirement (Each such plan shall . . .) Massachusetts Program I

costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program

under title V ;" 110(a)(2)(M) . . . "provide for consultation and M .G.L. c. 30A, Massachusetts Administrative Procedures Act, requires Consultation/ participation by local political subdivisions MassDEPto provide notice and public comment and hearing prior to adopting I Participation by affected by the plan." of any regulations. affected local entities Executive Order No. 145 requires MassDEP to provide notice to the Local Government Advisory Committee, through the Massachusetts Municipal Association, to solicit input on the impact on local government .

MassDEP PM2.5 Infrastructure Certification - Page 15 of 15