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March 21, 2007 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 1 

1 CONGRESS STREET, SUITE 1100 

BOSTON, MASSACHUSETTS 02114-2023 

Ms. Karen Regas 

Department of Environmental Protection 

Bureau of Waste Prevention 

One Winter Street 

Boston. MA 02108 

Dear Ms. Regas : 

The U.S . Environmental Protection Agency (EPA) has reviewed the proposed Massachusetts Air 

Pollution Control Regulations 310 CMR 7.00 and would like to provide the enclosed comment. 

Thank you for the opportunity to review and comment on these regulations. 

If you have any questions regarding these comments, please call Susan Lancey of my staff at 

(617) 918-1656. 

Sincerely, 

Daniel J. Btown, Chief 

Air Permits, Toxics and Indoor Program Unit 

Enclosure 

Toll Free " 1-888-372-7341 

Internet Address (URL) " http ://www .epa.gov/regioni 

Recycled/Recyclable " Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer) 
EPA Comments on Massachusetts Air Pollution Control Regulations 

310 CMR 7.00 

1) The Massachusetts Department of Environmental Protection ("MA DEP") proposes to add a 

new organic emission cap (< 10 tons) to sections 7.03(15)(a)2, 7.03(16)(a)2, 7.03(19)(a)2, and 

7.03(25)(b)l .b . This cap provides owners or operators the option to avoid registration 

requirements under section 7.12 by providing a mechanism for certain facilities to limit their 

potential emissions to below the reporting thresholds in section 7.12. EPA notes that a source 

that has the potential to emit ("PTE") major amounts of air pollutants under the Clean Air Act 

("CAA" or "Act") may legally avoid certain CAA program requirements (e .g., Title V and 

certain MACT standards) only if the source obtains a "practicably enforceable" limitation on its 

PTE. In the event that MA DEP intends to recognize sections 7.03(15)(a)2, 7.03(16)(a)2, 

7.03(19)(a)2, and 7.03(25)(b)l .b as practicably enforceable limitations on PTE for purposes of 

avoiding "major source" status under any CAA program, EPA provides the following comment. 

In a January 25, 1995 guidance memorandum, EPA explained that sources may avoid "major 

source" status under the Act by taking federally-enforceable PTE limitations that cap emissions 

below major source thresholds .' EPA subsequently modified this policy, however, following 

two decisions from the Court of Appeals for the D.C. Circuit that 

I 

uestioned the need for 

"federally enforceable" measures in order to limit a source's PTE. EPA's current policy is to 

recognize PTE limits that are federally enforceable or "legally and practicably enforceable by a 

state or local air pollution control agency" as sufficient to allow a source to avoid "major source" 

status under the Act. 3 . 

1 See Memorandum from John. S . Seitz, EPA OAQPS, and Robert Van Heuvelen, EPA 

ORE, to EPA Regional Air Division Directors entitled "Options for Limiting the Potential to 

Emit (PTE) of a Source under Section 112 and Title V of the Clean Air Act" (Jan. 25, 1995) 

("PTE Policy") . This guidance memorandum is available on the web at : 

http ://www.epa.gov/Region7/programs/artd/air/nsr/nsrmemos/ptememo .pdf. 

Z See National Mining Association (NMA) v. EPA, 59 F.3d 1351 (D .C. Cir. 1995) 

(remanding 40 CFR Part 63 General Provisions regulation because EPA had not adequately 

explained why only federally enforceable measures should be considered effective limits on a 

source's potential to emit, but noting that Congress intended, in section 112(a)(1) of the Clean 

Air Act, to require effective controls) ; Chemical Manufacturers Ass'n v. EPA, No . 89-1514 (D.C. 

Cir. 1995) (vacating the federal enforceability requirement of the PTE definitions in EPA's 

Prevention of Significant Deterioration and New Source Review regulations, in light of NMA v. 

EPA . 

3 EPA Interim Policy on Federal Enforceability Requirement for Limitations on Potential 

to Emit at 3, 4 (Jan. 22, 1996) (stating that in some situations "federally enforceable" should now 

be read to mean "legally and practicably enforceable by a state or local air pollution control 

agency"); Third Extension of January 25, 1995 Potential to Emit Transition Policy (December 

20, 1999) (stating that "[t]he state-enforceable provision of the [PTE Policy], which allows a 

1 
State rules are among the various mechanisms available to the states to enable sources to avoid 

"major source" status .4 In order to facilitate the enforcement of PTE limits established by state 

rules, EPA recommends that such state rules: (1) contain a technically-accurate limitation, (2) 

contain a time period for the limitation, (3) contain methods to determine compliance, (4) 

identify the types/categories of sources covered by the rule, (5) where coverage is optional, 

provide for notice to the permitting authority of a source's election to be covered, and (6) specify 

enforcement consequences. s 

MA DEP's proposed rule at 310 CMR 7.03(15)(a)2, 7 .03(16)(a)2, 7.03(19)(a)2, and 

7.03(25)(b)l .b does not appear to meet the fifth criterion in EPA's guidance memorandum. A 

requirement that a source electing to comply with the VOC emission limits in 310 CMR 

7.03(15)(a)2, 7.03(16)(a)2, 7.03(19)(a)2, or 7 .03(25)(b)l .b, for purposes of avoiding "major 

source" status under any CAA program, must notify MA DEP in writing of such election prior to 

commencement of construction, installation, or operation would facilitate the agencies' ability to 

enforce these PTE limits . Alternatively, MA DEP could include general language in 310 CMR 

7 .03 stating that any source electing to comply with a PTE limit in the rule, for purposes of 

avoiding "major source" status under any applicable CAA program, must notify MA DEP of its 

election to do so. 

source to rely on a practically enforceable, state-enforceable limit to restrict its PTE, will remain 

in effect until EPA has completed its rulemaking on the term `potential to emit"'). 

4 PTE Policy at 1, 2. 

5 Ibid. at 4.