[Federal Register Volume 65, Number 209 (Friday, October 27, 2000)]
[Rules and Regulations]
[Pages 64360-64363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27657]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA037-01-7211a; A-1-FRL-6891-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; New Source Review Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Massachusetts. These revisions 
establish and require the implementation of the 1990 Clean Air Act 
Amendments (CAAA) requirements regarding New Source Review (NSR) in 
areas that have not attained the National Ambient Air Quality Standards 
(NAAQS). In addition, the revisions include other definitions and 
permitting procedures that make the Massachusetts nonattainment NSR 
rules consistent with Federal permitting requirements. The intended 
effect of this action is to approve revisions to 310 CMR 7.00 Appendix 
A, ``Emission Offsets and Nonattainment Review.'' This action is being 
taken in accordance with the Clean Air Act.

DATES: This direct final rule is effective on December 26, 2000 without 
further notice, unless EPA receives adverse comment by November 27, 
2000. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to Steven Rapp, Unit Manager, Air 
Permits Program, Office of Ecosytem Protection (mail code CAP), U.S. 
Environmental Protection Agency, EPA New England, One Congress Street, 
Suite 1100, Boston, MA 02114-2023. Copies of the documents relevant to 
this action are available for public inspection during normal business 
hours, by appointment at the Office of Ecosytem Protection, U.S. 
Environmental Protection Agency, Region I, One Congress Street, 11th 
floor, Boston, MA; Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, Room M-1500, 401 M Street, (Mail 
Code 6102), S.W., Washington, D.C.; and Division of Air Quality 
Control, Department of Environmental Protection, One Winter Street, 8th 
Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Brendan McCahill, (617) 918-1652.

SUPPLEMENTARY INFORMATION:

Background

    On July 15, 1994, the Massachusetts Department of Environmental 
Protection (DEP) formally submitted a revision to its State 
Implementation Plan (SIP) for purposes of meeting the requirements of 
the Clean Air Act (CAA). The revision consists of changes to 
Massachusetts' 310 CMR 7.00 Appendix A, ``Emission Offsets and 
Nonattainment Review.'' The DEP submitted additional changes to 310 CMR 
7.00 Appendix A on April 14, 1995. The effect of the revisions is to 
make the DEP's rules regarding the permitting of new major sources or 
major modifications in nonattainment areas consistent with CAA 
requirements. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

A. General Requirements for Nonattainment NSR Requirements

    The air quality planning requirements for nonattainment NSR are set 
out in part D of subchapter I of the Act. The EPA has issued a 
``General Preamble'' describing EPA's preliminary views on how EPA 
intends to review SIPs and SIP revisions submitted under part D, 
including those State submittals containing nonattainment area NSR SIP 
requirements [see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 
28, 1992)]. Because EPA is describing its interpretations here only in 
broad terms, the reader should refer to the General Preamble for a more 
detailed discussion of the interpretations of part D advanced in 
today's proposal and the supporting rationale.

Summary of Massachusetts' Regulation

    The general nonattainment NSR requirements are found in sections 
172 and 173 of part D of subchapter I of the

[[Page 64361]]

Act and must be met by all nonattainment areas. The following 
paragraphs reference the nonattainment NSR requirements required to be 
submitted to EPA by November 15, 1992 and explain how Massachusetts' 
rules meet those requirements. Massachusetts' existing SIP already 
contained some of these provisions while others are being approved 
today.
    1. Massachusetts regulation 310 CMR 7.00 appendix A, section (5) 
(a) & (b), establishes provisions in accordance with section 
173(a)(1)(A) of the CAA to assure that calculations of emissions 
offsets are based on the same emissions baseline used in the 
demonstration of Reasonable Further Progress (RFP).
    2. Massachusetts regulation 310 CMR 7.00 appendix A, section 
(6)(b)1 and 2, establishes provisions in accordance with section 
173(c)(1) of the CAA to allow offsets to be obtained in another 
nonattainment area if: (i) The area has an equal or higher 
nonattainment classification and, (ii) emissions from the other 
nonattainment area contribute to an NAAQS violation in the area in 
which the source would construct.
    3. Massachusetts regulation 310 CMR 7.00 appendix A, section (6)(a) 
and (b), establishes provisions in accordance with sections 173(a) and 
173(c)(1) of the CAA that any emissions offsets obtained in conjunction 
with the issuance of a license to a new or modified source shall be 
federally enforceable before permit issuance and must be in effect and 
enforceable by the time the new or modified source commences operation.
    4. Massachusetts regulation 310 CMR 7.00 appendix A, section 
(6)(d), establishes provisions in accordance with section 173(c)(1) of 
the CAA to assure that emission increases from new or modified sources 
are offset by real reductions in actual emissions.
    5. Massachusetts regulation 310 CMR 7.00 appendix A, section 
(6)(h), establishes provisions in accordance with section 173(c)(2) of 
the CAA to prevent emissions reductions otherwise required by the Act 
from being credited for purposes of satisfying part D offset 
requirements.
    6. The 1990 CAAA modified the Act's provisions on growth allowances 
in nonattainment areas by (1) eliminating existing growth allowances in 
the nonattainment area that received a notice prior or subsequent to 
the Amendments that the SIP was substantially inadequate, and (2) 
restricting growth allowances to only those portions of nonattainment 
areas formally targeted as special zones for economic growth (Sections 
173(b) and 173(a)(1)(B) of the CAA). Massachusetts' regulations do not 
contain provisions for growth allowances and are consequently 
consistent with the Act.
    7. Massachusetts has a practice of supplying information from 
nonattainment NSR licenses to EPA's RACT/BACT/LAER clearinghouse in 
accordance with section 173(d) of the CAA.
    8. Massachusetts regulation 310 CMR 7.00 appendix A, section 
(8)(a), establishes provisions, in accordance with section 173(a)(3) of 
the CAA, to ensure that owners or operators of each proposed new or 
modified major stationary source demonstrate, as a condition of license 
issuance, that all other major stationary sources under the same 
ownership in the State are in compliance with the CAA.
    9. Massachusetts regulation 310 CMR 7.00 appendix A, section (8)(b) 
establishes provisions in accordance with section 173(a)(5) of the CAA 
that, as a prerequisite to issuing any Part D permit, require an 
analysis of alternative sites, sizes, production processes and 
environmental control techniques for proposed sources that demonstrate 
that the benefits of the proposed source significantly outweigh the 
environmental and social costs imposed as a result of its location, 
construction, and modification.
    10. Massachusetts regulation 310 CMR 7.00 appendix A, section 
(8)(c) establishes provisions in accordance with section 173(a)(4) of 
the CAA that, as a prerequisite to issuing any Part D permit, the 
Administrator has not determined that the applicable implementation 
plan is not being adequately implemented for the proposed nonattainment 
area in which the proposed source is to construct or be modified.

B. General Requirements for Ozone Nonattainment NSR

    EPA is not taking action today on a February 11, 2000 submittal 
addressing NSR in attainment areas within the Ozone Transport Region 
(OTR). Because Western Massachusetts is currently designated as a 
serious nonattainment area, these requirements are not currently 
relevant there. In addition, as of January 16, 2001, EPA's 
reinstatement of the one-hour ozone NAAQS in Eastern Massachusetts will 
be effective and the area will be nonattainment. Consequently, 
Massachusetts' SIP revisions on the OTR will also not be relevant in 
the near future in Eastern Massachusetts. Massachusetts is currently 
applying serious nonattainment NSR requirements to all subject sources 
statewide. EPA is reviewing the OTR revisions and will take action on 
them in the near future. Such action would clearly need to occur before 
any redesignation to attainment within Massachusetts.
    The general nonattainment NSR requirements are found in sections 
172 and 173 of part D of subchapter I of the Act and must be met by all 
nonattainment areas. The requirements for ozone nonattainment areas 
that supplement or supersede these requirements are found in subpart 2 
of part D. In addition to requirements for ozone nonattainment areas, 
subpart 2 includes section 182(f), which states that requirements for 
major stationary sources of VOC shall apply to major stationary sources 
of oxides of nitrogen ( NO<INF>X</INF>) unless the Administrator makes 
certain determinations related to the benefits or contribution of 
NO<INF>X</INF> control to air quality, ozone attainment, or ozone air 
quality. States were required under section 182(a)(2)(C) to adopt new 
NSR rules for ozone nonattainment areas by November 15, 1992.

Summary of Massachusetts' Submittal

    Pursuant to section 172(c)(5) of the CAA, State implementation 
plans must require permits for the construction and operation of new or 
modified major stationary sources in nonattainment areas. The federal 
statutory permit requirements for ozone nonattainment areas are 
generally contained in revised section 173, and in subpart 2 of 
subchapter I, part D of the CAA. These are the minimum requirements 
that States must include in an approvable implementation plan. For all 
classifications of ozone nonattainment areas, States must adopt the 
appropriate major source thresholds and offset ratios, and must adopt 
provisions to ensure that any new or modified major stationary source 
of NO<INF>X</INF> satisfies the requirements applicable to any major 
source of VOC, unless a special NO<INF>X</INF> exemption is granted by 
the Administrator under the provision of section 182(f). For serious 
and severe ozone nonattainment areas, State plans must implement 
section 182(c)(6) with regard to modifications of major sources. The 
Commonwealth of Massachusetts' attainment status is discussed above.
    The following paragraphs reference the serious ozone nonattainment 
requirements that Massachusetts was required to submit to EPA by 
November 15, 1992 and how Massachusetts has met those requirements.
    1. Massachusetts regulation 310 CMR 7.00 appendix A, section (2), 
definition of ``Major Stationary Source,'' establishes provisions in 
accordance with the serious nonattainment area requirements provided in 
sections

[[Page 64362]]

182(c) and 182(f) of the CAA, by setting a major source threshold level 
of 50 TPY for VOC and for NO<INF>X</INF>.
    2. Massachusetts regulation 310 CMR 7.00 Appendix A, Section 
(6)(e), establishes provisions in accordance with sections 183(c)(10) 
and 182(f) of the CAA, by setting an offset ratio of 1.2 to 1 for major 
sources or major modifications of VOC or NO<INF>X</INF>.
    3. Massachusetts regulation 310 CMR 7.00 Appendix A, Section (2), 
definition of ``Significant,'' paragraphs (a) and (b), establishes 
provisions that are consistent with the ``De Minimis rule'' 
requirements of section 182(c)(6) of the CAA.
    4. Massachusetts regulation 310 CMR 7.00 Appendix A, Sections 
(3)(e), (f) and (g), establish provisions that are consistent with the 
special rules for modifications in sections 182(c)(7) and (8) of the 
CAA.

C. Miscellaneous Permit Requirements

Background
    Massachusetts also added or revised definitions and permitting 
procedures to clarify specific requirements of 310 CMR 7.00 Appendix A 
and to make the rule consistent with the nonattainment NSR permit 
requirements set forth in 40 CFR 51.165. The list of the new or revised 
definitions includes: Actual Emissions; Allowable Emissions; Begin 
Actual Construction; Building, Structure, Facility or Installation; 
Clean Coal Technology; Clean Coal Technology Demonstration Project; 
Coastal Waters; Navigable Rivers and Lakes; Commence; Construction; 
Corresponding Onshore Area; Electric Utility Steam Generating Unit; 
Generating unit; Emissions Unit; Energy Input; Fossil Fuel Fired 
Boiler; Fossil Fuel Fired Electric Plant; Fugitive Emissions; Indian 
Governing Body; Indian Tribe; Lowest Achievable Emission Rate (LAER); 
Major Modification; Major Stationary Source; Necessary Preconstruction 
Approvals or Permits; Net Emissions Increase; Outer Continental Shelf; 
Outer Continental Shelf Source; Pollution Control Project; Reasonable 
Further Progress; Repowering; Representative Actual Annual Emissions; 
Secondary Emissions; Significant; Stationary Source; Temporary Clean 
Coal Technology Demonstration Project; Nonroad Engine; Nonroad Vehicle; 
Procedures for Shutdown Credits; Procedures for Source Obligation. For 
further details concerning the revisions to Massachusetts' 310 CMR 7.00 
Appendix A and EPA's evaluation, please refer to the memorandum from 
Brendan McCahill, Environmental Engineer, to Steven Rapp, Manager, Air 
Permits Program entitled, ``Technical Support Document--Massachusetts 
New Source Review Revisions,'' dated October 18, 2000.

Final Action

    EPA is approving the revisions to Massachusetts 310 CMR 7.00 
Appendix A, ``Emission Offsets and Nonattainment Review.'' The Agency 
has reviewed this request for revision of the Federally-approved State 
implementation plan for conformance with the provisions of the 1990 
amendments enacted on November 15, 1990. These revisions meet the 
nonattainment area NSR provisions of Part D of the CAA.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This action will be effective 
December 26, 2000 without further notice unless the Agency receives 
relevant adverse comments by November 27, 2000.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on December 26, 2000 and no 
further action will be taken on the proposed rule.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency

[[Page 64363]]

promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 26, 2000. Interested 
parties should comment in response to the proposed rule rather than 
petition for judicial review, unless the objection arises after the 
comment period allowed for in the proposal. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: October 19, 2000.
Mindy S. Lubber,
Regional Administrator, EPA-New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(127) to read 
as follows:


Sec. 52.1120  Identification of plan.

* * * * *
    (c) * * *
    (127) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on July 15, 1994 
and April 14, 1995.
    (i) Incorporation by reference.
    (A) Massachusetts Amendments to 310 CMR 7.00 Appendix A entitled, 
``Emission Offsets and Nonattainment Review,'' effective July 1, 1994.
    (B) Massachusetts Amendments to 310 CMR 7.00 Appendix A entitled, 
``Emission Offsets and Nonattainment Review'' paragraph (3)(g) 
effective July 1, 1994.
    (ii) Additional materials.
    (A) Letters from the Massachusetts Department of Environmental 
Protection dated July 15, 1994 and March 29, 1995 submitting revisions 
to the Massachusetts State Implementation Plan.
    For the State of Massachusetts:

    3. In Sec. 52.1167 the Table 52.1167 is amended by adding in 
numerical order a new state citation for ``310 CMR 7.00 Appendix A'' to 
read as follows:


Sec. 52.1167  EPA-approved Massachusetts State regulations.

* * * * *

                                                 Table 52.1167.--EPA-Approved Massachusetts Regulations
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                                                                                 Date
          State citation              Title/subject      Date submitted by     approved     Federal Register        52.1120(c)       Comments/unapproved
                                                               state            by EPA          citation                                   sections
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                       *                *                 *                 *                *                 *                 *
310 CMR 7.00:....................  Emission Offsets     7/15/94 and 4/14/95     10/27/00  [Insert FR citation  (c)(127)............  Approving 1990 CAAA
Appendix A.......................   and Nonattainment                                      from published                             revisions and
                                    Review.                                                date].                                     general NSR permit
                                                                                                                                      requirements
 
                       *                *                 *                 *                *                 *                 *
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[FR Doc. 00-27657 Filed 10-26-00; 8:45 am]
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