17226 Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations

before designating a Postal Service

employee as an expert witness.

(f) Substitution of Postal Service

employees. Although a demand for

testimony may be directed to a named

Postal Service employee, the General

Counsel, where appropriate, may

designate another Postal Service

employee to give testimony. Upon

request and for good cause shown (for

example, when a particular Postal

Service employee has direct knowledge

of a material fact not known to the

substitute employee designated by the

Postal Service), the General Counsel

may permit testimony by a named

Postal Service employee.

(g) Fees and costs. (1) The Postal

Service may charge fees, not to exceed

actual costs, to private litigants seeking

testimony or records by request or

demand. The fees, which are to be

calculated to reimburse fully the Postal

Service for processing the demand and

providing the witness or records, may

include, among others:

(i) Costs of time spent by employees,

including attorneys, of the Postal

Service to process and respond to the

demand;

(ii) Costs of attendance of the

employee and agency attorney at any

deposition, hearing, or trial;

(iii) Travel costs of the employee and

agency attorney;

(iv) Costs of materials and equipment

used to search for, process, and make

available information.

(2) All costs for employee time shall

be calculated on the hourly pay of the

employee (including all pay, allowance,

and benefits) and shall include the

hourly fee for each hour, or portion of

each hour, when the employee is in

travel, in attendance at a deposition,

hearing, or trial, or is processing or

responding to a request or demand.

(3) At the discretion of the Postal

Service, where appropriate, costs may

be estimated and collected before

testimony is given.

(h) Acceptance of service. This

section does not in any way abrogate or

modify the requirements of the Federal

Rules of Civil Procedure (28 U.S.C.

Appendix) regarding service of process.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 95–8226 Filed 4–4–95; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MA–31–01–6845a; A–1–FRL–5177–1]

Approval and Promulgation of Air

Quality Implementation Plans;

Massachusetts; U Restricted Emission

Status

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving a State

Implementation Plan (SIP) revision

submitted by the Commonwealth of

Massachusetts. This revision approves

310 CMR 7.02(12), entitled ‘‘U

Restricted Emission Status,’’ into the

Massachusetts SIP. The intended effect

of this action is to approve a SIP

revision by the Commonwealth of

Massachusetts to incorporate

regulations for the issuance of federally

enforceable operating permits which

restrict sources’ potential to emit criteria

pollutants such that sources can avoid

reasonably available control technology

(RACT), title V operating permit

requirements, or otherwise applicable

requirements. This also extends federal

enforceability of hazardous air

pollutants (HAPs). This action is being

taken in accordance with the

Implementation Plans Section and the

State Programs Section of the Clean Air

Act.

DATES: This action will become effective

June 5, 1995, unless notice is received

May 5, 1995 that adverse or critical

comments will be submitted. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to

Linda M. Murphy, Director, Air,

Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region I, JFK Federal Building,

Boston, MA 02203. Copies of the

documents relevant to this action are

available for public inspection during

normal business hours, by appointment

at the Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region I, One Congress Street, 10th

floor, Boston, MA; Air and Radiation

Docket and Information Center, U.S.

Environmental Protection Agency, 401

M Street, SW., (LE–131), Washington,

DC 20460; and Division of Air Quality

Control, Department of Environmental

Protection, One Winter Street, 8th Floor,

Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Ida

E. Walker, for criteria pollutants (617)

565–9168 or Janet Beloin, for HAPs

(617) 565–2734.

SUPPLEMENTARY INFORMATION: On June 6,

1994, the Commonwealth of

Massachusetts submitted a formal

revision to its State Implementation

Plan (SIP) to incorporate regulations for

the issuance of federally enforceable

operating permits. The revision consists

of the addition of 310 CMR 7.02(12),

entitled ‘‘U Restricted Emission Status.’’

The Commonwealth of Massachusetts

adopted these regulations in order to

have the authority to issue federally

enforceable operating permits under its

SIP. In order to extend the federal

enforceability of state operating permits

to hazardous air pollutants (HAPs), EPA

is also approving this regulation

pursuant to section 112(l) of the Act.

Summary of SIP Revision

The Commonwealth of Massachusetts’

principal purpose for adopting the

operating permit regulations of 310

CMR 7.02(12) is to have a federally

enforceable means of expeditiously

restricting potential emissions such that

sources can avoid RACT, title V

operating permit requirements, or

otherwise applicable requirements, as

well as reduce annual compliance fees.

The operating permit provisions in title

V of the Clean Air Act Amendments of

1990 have created additional interest in

mechanisms for limiting sources’

potential to emit, thereby allowing the

sources to avoid being defined as

‘‘major’’ with respect to title V operating

permit programs. A key mechanism for

such limitations is the use of federally

enforceable state operating permits

(FESOPs). The EPA issued general

guidance on FESOPs in the Federal

Register on June 28, 1989 [54 FR 27274].

This rulemaking evaluates whether

Massachusetts has satisfied the

requirements for this type of federally

enforceable limitation on potential to

emit. Each of the five criteria, as

specified in the Federal Register of June

28, 1989, for approval of a state’s

program for the issuance of FESOPs

under its SIP and how the state’s

submittal satisfies those criteria are

presented below:

Criterion 1. The state’s operating

permit program (i.e. the regulations or

other administrative framework

describing how such permits are issued)

must be submitted to and approved by

EPA as a SIP revision: On June 6, 1994,

the Commonwealth of Massachusetts

submitted an administratively and

technically complete SIP revision

request to EPA consisting of 310 CMR

7.02(12) ‘‘U Restricted Emission Status.’’
Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations 17227

1The EPA issued guidance on January 25, 1995

addressing the technical aspects of how these

criteria pollutant limits may be recognized for

purposes of limiting a source’s potential to emit of

HAP to below section 112 major source levels.

That SIP revision is the subject of this

rulemaking action.

Criterion 2. The SIP revision must

impose a legal obligation that operating

permit holders adhere to the terms and

limitations of such permits (or

subsequent revisions of the permit made

in accordance with the approved

operating permit program) and provide

that permits which do not conform to

the operating permit program

requirements and the requirements of

EPA’s underlying regulations may be

deemed not ‘‘federally enforceable’’ by

EPA: 310 CMR 7.02(12)(f) requires

sources to obtain permits to operate and

authorizes Massachusetts to establish

terms and conditions in these permits

‘‘assuring compliance with such

limitations and controls.’’ Additionally,

the ‘‘Restricted emission status issued

pursuant to 310 CMR 7.02(12) for the

purpose of restricting federal potential

emissions must be federally

enforceable.’’

Criterion 3. The state operating permit

program must require that all emission

limitations, controls, and other

requirements imposed by such permits

will be at least as stringent as any

applicable limitations and requirements

contained in the SIP, or enforceable

under the SIP, and that the program may

not issue permits that waive, or make

less stringent, any limitations or

requirements contained in or issued

pursuant to the SIP, or that are

otherwise ‘‘federally enforceable’’ (e.g.

standards established under Sections

111 and 112 of the Clean Air Act): 310

CMR 7.02(12)(f)(2) contains regulatory

provisions which state ‘‘All emission

limitations, controls, and other

requirements imposed by such

restricted emission status must be at

least as stringent as all other applicable

limitations and requirements contained

in the Massachusetts SIP . . . or that are

otherwise federally enforceable.’’ In

addition, these rules contain no

provisions authorizing terms and

conditions any less stringent than these

other applicable requirements, which

remain federally enforceable.

Criterion 4. The limitations, controls,

and requirements of the state’s operating

permits must be permanent,

quantifiable, and otherwise enforceable

as a practical matter: 310 CMR

7.02(12)(f) (1) and (2) contain regulatory

provisions which satisfy this criterion.

In addition, these subparagraphs require

that permit restrictions contain ‘‘per

unit emission factors, production and/or

operational limitations and controls,

and monitoring, recordkeeping, and

reporting requirements capable of

assuring compliance with such

limitations and controls.’’

Criterion 5. The state operating

permits must be issued subject to public

participation. This means that the state

agrees, as part of its program, to provide

EPA and the public with timely notice

of the proposal and issuance of such

permits, and to provide EPA, on a

timely basis, with a copy of each

proposed (or draft) and final permit

intended to be ‘‘federally enforceable.’’

This process must also provide for an

opportunity for public comment on the

permit applications prior to issuance of

the final permits: 310 CMR

7.02(12)(g)(2) (a), (b), (c) and (g) contain

provisions which satisfy this criterion.

The Commonwealth of Massachusetts

has also requested approval of its

Restricted Emission Status program

under section 112(l) of the Act for the

purpose of creating federally

enforceable limitations on the potential

to emit of HAPs. Approval under

section 112(l) is necessary because the

proposed SIP approval discussed above

only extends to criteria pollutants for

which EPA has established national

ambient air quality standards under

section 109 of the Act. Federally

enforceable limits on criteria pollutants

or their precursors (i.e., VOC’s or PM–

10) may have the incidental effect of

limiting certain HAPs listed pursuant to

section 112(b).1 As a legal matter, no

additional program approval by the EPA

is required beyond SIP approval under

section 110 in order for these criteria

pollutant limits to be recognized as

federally enforceable. However, section

112 of the Act provides the underlying

authority for controlling all HAP

emissions, regardless of their

relationship to criteria pollutant

controls.

The EPA has determined that the five

approval criteria for approving FESOP

programs into the SIP, as specified in

the June 28, 1989 Federal Register

notice, are also appropriate for

evaluating and approving the programs

under section 112(l). The June 28, 1989

notice does not address HAPs because it

was written prior to the 1990

amendments to section 112. The June

28, 1989 criteria are basic principles

which are not unique to criteria

pollutants. Therefore, the five criteria

discussed above are applicable to

FESOP approvals under section 112(l)

as well as under section 110.

In addition to meeting the criteria in

the June 28, 1989 notice, a FESOP

program for HAPs must meet the

statutory criteria for approval under

section 112(l)(5). Section 112(l) allows

the EPA to approve a program only if

the program: (1) Contains adequate

authority to assure compliance with any

section 112 standard or requirement; (2)

provides for adequate resources; (3)

provides for an expeditious schedule for

assuring compliance with section 112

requirements; and (4) is otherwise likely

to satisfy the objectives of the Act.

The EPA plans to codify the approval

criteria for programs limiting potential

to emit HAPs, in Subpart E of Part 63,

the regulations promulgated to

implement section 112(l) of the Act.

(See 58 FR 62262, November 26, 1993.)

The EPA currently anticipates that these

regulatory criteria, as they apply to

FESOP programs, will mirror those set

forth in the June 28, 1989 notice. FESOP

programs approved pursuant to section

112(l) prior to the planned Subpart E

revisions will be approved as meeting

the criteria in EPA’s June, 1989 notice.

Therefore, further approval actions for

those programs will not be necessary.

The EPA believes it has authority

under section 112(l) to approve

programs to limit potential to emit

HAPs directly under section 112(l) prior

to this revision to Subpart E. EPA is

therefore proposing approval of

Massachusetts’ Restricted Emission

Status Program now so that

Massachusetts may begin to issue

federally enforceable synthetic minor

permits as soon as possible.

Regarding the statutory criteria of

section 112(l)(5) referred to above, the

EPA believes Massachusetts’ Restricted

Emission Status program contains

adequate authority to assure compliance

with section 112 requirements since the

third criterion of the June 28, 1989

notice is met, that is, the program in 310

CMR 7.02(12)(f)(2) states that all

requirements in the Restricted

Emissions Status program must be at

least as stringent as all other applicable

federally enforceable requirements.

Please note that a source which receives

a Restricted Emission Status permit may

still need a title V operating permit

under 310 CMR 7.00 Appendix

(C)(2)(a)(5) if EPA promulgates a MACT

standard which requires non-major

sources to obtain title V permits.

Regarding the requirement for

adequate resources, the EPA believes

Massachusetts has demonstrated that it

can provide for adequate resources to

support the Restricted Emission Status

program through an annual compliance

assurance fee and a restricted emissions

permit fee. EPA believes this

mechanism will be sufficient to provide

for adequate resources to implement

this program. For more information
17228 Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations

regarding the fees program, refer to the

Technical Support Document.

The EPA also believes that

Massachusetts’ Restricted Emission

Status program provides for an

expeditious schedule which assures

compliance with section 112

requirements.

This program will be used to allow a

source to establish a voluntary limit on

potential to emit to avoid being subject

to a CAA requirement applicable on a

particular date. Nothing in

Massachusetts’s program would allow a

source to avoid or delay compliance

with a CAA requirement if it fails to

obtain an appropriate federally

enforceable limit by the relevant

deadline. Finally, the EPA believes it is

consistent with the intent of section 112

and the Act for States to provide a

mechanism through which sources may

avoid classification as a major source by

obtaining a federally enforceable limit

on potential to emit. EPA has long

recognized federally-enforceable

emissions or operational limits as a

means to stay below major source

thresholds under the Act. This approval

merely applies the source principles to

another set of pollutants and regulatory

requirements under the Act.

The EPA’s review of this SIP revision

indicates the criteria for approval as

provided in the June 28, 1989 Federal

Register notice [54 FR 27282] and in

section 112(l)(5) of the Act have been

satisfied.

During the development of this rule,

EPA and Massachusetts have been asked

whether permits the Commonwealth has

issued pursuant to these regulations

prior to today’s action approving this

program into the SIP are nevertheless

federally enforceable. In the preamble to

the regulations that EPA promulgated

on June 28, 1989 (54 FR 27274), which

set forth the five criteria outlined above

for a federally enforceable operating

permit program, EPA indicated that it

would ‘‘consult with States on methods

by which existing operating permits

could be made federally enforceable

under a subsequently approved State

operating permits program.’’ 54 FR at

27284. The preamble went on to discuss

options for securing EPA approval of

previously issued permits. As EPA

concluded in its approval of the Illinois

FESOP program (57 FR 59931 (Dec. 17,

1992)), these options were not intended

to be a complete list of alternatives. To

avoid burdensome requirements to

reprocess each previously issued

permit, EPA will use the same approach

announced in that Illinois approval for

determining whether such permits are

federally enforceable and for ratifying

their status as enforceable under the

approved SIP.

EPA today finds the existing

Massachusetts regulations to be

consistent with federal requirements. If

the Commonwealth followed its own

procedures, each permit issued under

this regulation was subject to public

notice and comment, with notice to

EPA. Moreover, the regulation requires

each permit to be enforceable as a

practical matter. Therefore, EPA will

consider all previously issued operating

permits which were processed in a

manner consistent with the State

regulations federally enforceable with

the promulgation of this rule, provided

that any permits the State wishes to

make federally enforceable are

submitted to EPA and are accompanied

by documentation that the procedures

approved today were followed in

issuing the permit.

The EPA is publishing this action

without prior proposal because the

Agency views this as a noncontroversial

amendment and anticipates no adverse

comments. However, in a separate

document in this Federal Register

publication, EPA is proposing to

approve the SIP revision should adverse

or critical comments be filed. This

action will be effective June 5, 1995

unless adverse or critical comments are

received by May 5, 1995.

If EPA receives such comments, this

action will be withdrawn before the

effective date by simultaneously

publishing a subsequent notice that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. The EPA will not

institute a second comment period on

this action. Any parties interested in

commenting on this action should do so

at this time. If no such comments are

received, the public is advised that this

action will be effective on June 5, 1995.

Final Action

EPA is approving 310 CMR 7.02(12),

‘‘U Restricted Emission Status,’’

effective in the Commonwealth of

Massachusetts on February 25, 1994

under sections 110 and 112(l) of the

CAA.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110,

section 112(l), and subchapter I, Part D

of the CAA do not create any new

requirements, but simply approve

requirements that the State is already

imposing. Therefore, because the federal

SIP-approval does not impose any new

requirements, I certify that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the federal-state relationship

under the CAA, preparation of a

regulatory flexibility analysis would

constitute federal inquiry into the

economic reasonableness of state action.

The CAA forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

§ 7410 (a)(2).

This action has been classified as a

Table 3 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993,

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. A future notice will

inform the general public of these

tables.

The OMB has exempted this action

from review under Executive Order

12866.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

implementation plan. Each request for

revision to the State implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

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 June 5, 1995.

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,
Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations 17229

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides, Hazardous

air pollutants.

Note: Incorporation by reference of the

State Implementation Plan for the

Commonwealth of Massachusetts was

approved by the Director of the Federal

Register on July 1, 1982.

Dated: March 3, 1995.

John P. DeVillars,

Regional Administrator, Region I.

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. 7401–7671q.

Subpart W—Massachusetts

2. Section 52.1120 is amended by

adding paragraph (c)(105) to read as

follows:

§ 52.1120 Identification of plan.

* * * * *

(c) * * *

(105) Revisions to the State

Implementation Plan submitted by the

Massachusetts Department of

Environmental Protection on June 6,

1994.

(i) Incorporation by reference.

(A) Letter from the Massachusetts

Department of Environmental Protection

dated June 6, 1994 submitting a revision

to the Massachusetts State

Implementation Plan.

(B) 310 CMR 7.02(12) ‘‘U Restricted

Emission Status’’ effective in the

Commonwealth of Massachusetts on

February 25, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the

submittal.

3. In § 52.1167, Table 52.1167 is

amended by adding new state citations

for 310 CMR 7.02(12) to read as follows:

§ 52.1167 EPA-approved Massachusetts

State regulations.

TABLE 52.1167—EPA-APPROVED MASSACHUSETTS REGULATIONS

State citation Title/subject

Date

submitted by

State

Dated approved

by EPA

Federal Register

citation 52.1120(c) Comments/unapprovedsections

* * * * * * *

310CMR 7.02(12) . U Restricted

Emission Status.

6/6/94 April 5, 1995 ..... [Insert FR citation

from published

date].

105 This rule limits a source’s potential

to emit, therefore avoiding RACT,

title V operating permits

* * * * * * *

[FR Doc. 95–8216 Filed 4–4–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[IL92–1–6336a; FRL–5165–8]

Approval and Promulgation of

Implementation Plans; Illinois

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: The United States

Environmental Protection Agency

(USEPA) approves Illinois’ February 7,

1994, request to incorporate smaller

source permit rule amendments into the

Illinois State Implementation Plan (SIP).

The purpose of these smaller source

amendments is to lessen the permitting

burden on small sources and on the

permitting authority by reducing the

frequency and/or the requirement for

operating permit renewal for sources

emitting less than twenty-five tons per

year total of regulated air pollutants. In

the proposed rules section of this

Federal Register, USEPA is proposing

approval of and soliciting public

comment on this requested SIP revision.

If adverse comments are received on

this action, USEPA will withdraw this

final rule and address the comments

received in response to this action in a

final rule on the related proposed rule

which is being published in the

proposed rules section of this Federal

Register. A second public comment

period will not be held. Parties

interested in commenting on this action

should do so at this time.

DATES: This final rule will be effective

June 5, 1995 unless an adverse comment

is received by May 5, 1995. If the

effective date of this action is delayed

due to adverse comments, timely notice

will be published in the Federal

Register.

ADDRESSES: Written comments should

be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section,

Regulation Development Branch (AR–

18J), U.S. Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois, 60604.

Copies of the Illinois submittal are

available for public review during

normal business hours, between 8 a.m.

and 4:30 p.m., at the above address. A

copy of this SIP revision is also

available for inspection at: Office of Air

and Radiation (OAR), Docket and

Information Center (Air Docket 6102),

room 1500, U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Genevieve Nearmyer, Permits and

Grants Section, Regulation Development

Branch (AR–18J), U.S. Environmental

Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

Telephone: (312) 353–4761.

SUPPLEMENTARY INFORMATION:

The USEPA is approving the smaller

source amendments to Title 35:

Environmental Protection of the Illinois

Administrative Code (35 IAC), Subtitle

B: Air Pollution, Chapter I: Pollution

Control Board Parts 201 and 211 as

received on February 10, 1994, as a

requested SIP revision. The purpose of

the smaller source amendments is to

lessen the permitting burden on small

sources and the permitting authority by

reducing the frequency and/or the

requirement of operating permit renewal

for sources emitting less than 25 tons

per year total of regulated air pollutants.

A permit obtained through the smaller

source operating permit rules would not

necessarily expire within a five year

period as in other operating permit

programs. The permit will continue as

a legally binding State document until

the source modifies its operations,

withdraws its permit or becomes subject

to a new applicable requirement. At that

time, the Illinois Environmental

Protection Agency (IEPA) will