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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 CMR7.00 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 ProgramUnit 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)EPAComments on Massachusetts Air Pollution Control Regulations 310 CMR7.00 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 . EPAnotes 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 CAAprogram requirements (e.g., Title Vand 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 CAAprogram, EPA provides the following comment . In a January 25, 1995 guidance memorandum, EPAexplained that sources may avoid "major source" status under the Act by taking federally-enforceable PTE limitations that cap emissions below major source thresholds .' EPAsubsequently modified this policy, however, following two decisions fromthe Court of Appeals for the D .C. Circuit that Iuestioned 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 allowa source to avoid "major source" status under the Act .3 . 1 See Memorandum

fromJohn. 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 EPAhad 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 NMAv . EPA . 3 EPA InterimPolicy 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 ofJanuary 25, 1995 Potential to Emit Transition Policy (December 20, 1999) (stating that "[t]he state-enforceable provision of the [PTE Policy], which allows a 1State 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, EPArecommends 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 VOCemission 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 CAAprogram, 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 DEPcould include general language in 310CMR 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 CAAprogram, 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 EPAhas completed its rulemaking on the term`potential to emit"') . 4 PTE Policy at 1, 2

. 

### 5 Ibid . at 4.