[Federal Register Volume 59, Number 191 (Tuesday, October 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24421]


[[Page Unknown]]

[Federal Register: October 4, 1994]


-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MA-24-1-6557; A-1-FRL-5074-8]

 

Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts--Amendment to Massachusetts' SIP (for Ozone and for 
Carbon Monoxide) for Transit Systems Improvements and High Occupancy 
Vehicle Facilities in the Metropolitan Boston Air Pollution Control 
District)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Massachusetts. This revision 
establishes and requires the Commonwealth of Massachusetts' Executive 
Office of Transportation and Construction to construct and operate 
specified transit facilities and high occupancy vehicle (HOV) lanes 
established therein. Implementation of the defined transportation 
projects will help reduce the use of automobiles, provide for 
additional transit facilities in the Metropolitan Boston Region, and 
improve traffic operations on the region's roadways, resulting in 
improved air quality. This action should have a beneficial effect on 
air quality because it is intended to reduce vehicle miles traveled 
(VMT) in the Boston Metropolitan Area. The emissions to be reduced 
include hydrocarbons (ground-level ozone precursors) and carbon 
monoxide (CO).
    This action is being taken under sections 110 (a) and (l) of the 
Clean Air Act.

EFFECTIVE DATE: This rule will become effective on November 3, 1994.

ADDRESSES: 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, 7th Floor, Boston, MA 
02108.

FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, (617) 565-3227.

SUPPLEMENTARY INFORMATION: On January 19, 1994 (59 FR 2795), EPA 
published a notice of proposed rulemaking (NPR) for the Commonwealth of 
Massachusetts. The NPR proposed approval of a revision to 
Massachusetts' SIP for Transit Systems Improvements and HOV Facilities 
in the Metropolitan Boston Air Pollution Control District. The formal 
SIP revision was submitted by Massachusetts on December 9, 1991.
    This new regulation commits the Massachusetts Executive Office of 
Transportation and Construction (MA EOTC) to pursue implementation, 
monitoring, and enforcement of transit system improvements and HOV 
facilities listed in Table 1, that were identified as transportation 
and air quality mitigation measures in a 1990 Final Supplemental 
Environmental Impact Statement for the CA/THT project. EPA determined 
five of the proposed transportation control measures (TCMs) were 
necessary to help achieve an air quality benefit from the CA/THT. The 
Massachusetts regulation amends 310 CMR 7.00 by adding two new 
sections; 310 CMR 7.36--``Transit System Improvements,'' and 310 CMR 
7.37--``High Occupancy Vehicle Lanes.''

                                 Table 1                                
------------------------------------------------------------------------
  Project type and assigned                                             
      completion date                     Project description           
------------------------------------------------------------------------
HOV Project 12/31/91........  HOV Lane: I-93 Southbound HOV Lane, North 
                               Of The Southbound Bank Of The Charles    
                               River, Shall Be Extended Toward Route 128
                               To The Northernmost Point Appropriate. No
                               Addition Of New Lanes.                   
HOV Project 12/31/91........  HOV Lane: The Final Design Of The Charles 
                               River Crossing On The Southbound Side Of 
                               I-93 Extending Down To The Exit Ramp To  
                               Nashua Street Shall Include A HOV Lane On
                               The Southbound Side Of I-93. HOV Lane    
                               Shall Be Available With Opening Of CA/THT
                               Project.                                 
Transit Project 12/31/92....  Lynn Central Square Station & Parking     
                               Garage.                                  
Transit Project 12/31/92....  North Station High Platform & High Tracks.
Transit Project 12/31/92....  Lynn Transit Station Bus Terminal.        
HOV Project 05/31/92........  HOV Lane: Northbound & Southbound on I-93 
                               Beginning At The Intersection Of I-93    
                               With I-90 & Extending To A Point         
                               Immediately North On The Intersection Of 
                               I-93 & Route 3. [If The Threshold        
                               Standards Are Violated For Three         
                               Consecutive Months. Earlier              
                               Implementation If EOTC Determines.       
Transit Project 12/31/94....  South Station Bus Terminal.               
Transit Project 12/31/94....  South Station Track Number 12.            
Transit Project 12/31/94....  Ipswich Commuter Rail Line Extension To   
                               Newburyport.                             
Transit Project 12/31/96....  Old Colony Commuter Rail Line Extension.  
Transit Project 12/31/96....  Framingham Commuter Rail Link Extension To
                               Worcester.                               
Transit Project 12/31/96....  Park & Ride & Commuter Rail Parking Spaces
                               Outside Of The Boston Core [10,000].     
Transit Project 12/31/97....  Green Line Arborway Restoration.          
Transit Project 12/31/98....  Blue Line Platform Lengthening &          
                               Modernization.                           
Transit Project 12/31/99....  Park & Ride & Commuter Rail Station       
                               Parking Spaces Outside Of The Boston Core
                               In Addition To Those Completed by Dec.   
                               31, 1996 [10,000].                       
Transit Project 12/31/01....  South Boston Piers Electric Bus Service.  
Transit Project 12/31/11....  Green Line Extension To Ball Square/Tufts 
                               University.                              
Transit Project 12/31/11....  Blue Line Connection From Bowdoin Station 
                               To The Red Line At Charles Station.      
------------------------------------------------------------------------

    Other specific requirements of the Commonwealth's State 
Implementation Plan (SIP) Amendment for Ozone and for Carbon Monoxide, 
for Transit System Improvements and High Occupancy Vehicle Facilities, 
and the rationale for EPA's proposed action, are explained in the NPR 
and will not be restated here.
    Three public comments were received on the NPR. On February 16, 
1994, a private citizen from Michigan submitted comments regarding 
Massachusetts' car and truck vehicle registrations, and the effect on 
the Massachusetts Inspection and Maintenance (I/M) program. EPA has 
found this comment not germane to approval of the Transit and HOV 
Facilities rules as a SIP Amendment. On February 18, 1994, The 
Conservation Law Foundation (CLF) submitted comments generally 
supporting approval of the Transit System Improvement and HOV rules 
into the SIP. Finally, on February 18, 1994, the Massachusetts 
Department of Environmental Protection (MA DEP) submitted comments 
requesting that EPA consider delaying final action on the HOV/Transit 
SIP rules.
    The region has responded fully to CLF and MA DEP comments in a 
memorandum attached to the Technical Support Document (TSD) available 
in the docket for this action. A brief summary of these comments and 
EPA's responses appears below.
    The Conservation Law Foundation generally supported approval of the 
Transit System Improvement and HOV rules into the SIP, but also 
requested clarification of several aspects of EPA's proposed approval. 
In support of the transit system improvement rule, CLF noted that 
several of the transit measures provided for in the rule are mitigation 
measures responding to the potential air quality impacts of the Central 
Artery/Third Harbor Tunnel. EPA agrees that completion of these 
measures, including the ``Old Colony'' rail line, are important 
transportation control measures that should help reduce VMT growth on 
the Central Artery. What follows is EPA's response to CLF's particular 
concerns.

1. Specific Requirements of These Rules Will Be Enforceable in a 
Citizens Suit

    CLF is concerned that by characterizing these rules as 
``directionally sound,'' EPA is suggesting that they are not 
enforceable by citizens. EPA intended no such conclusion. The proposal 
expressed EPA's concern that the substitution provisions in these rules 
allow MA DEP to authorize different projects to substitute for those 
enumerated in the rules.\1\ EPA believes that there is no reliable way 
to predict the reductions Massachusetts might achieve with these rules 
since their requirements might change in ways that are difficult to 
quantify in advance. Therefore, EPA is not prepared to give 
Massachusetts emissions reduction credit in the SIP for projects until 
they are substantially complete and a SIP revision requesting credit is 
submitted.
---------------------------------------------------------------------------

    \1\The Transit System Improvement Rule section 7.36(4)(a) 
provides that other ``transit improvement projects'' may substitute 
for projects listed in section 7.36(2). Whereas the HOV rule allows 
an ``alternative project'' to substitute in section 7.37(8)(a). In 
theory, MA DEP could go so far as to substitute a non-transit 
project for an HOV lane under the HOV rule, although it may be 
difficult to make the demonstration that a non-transit project 
achieves the equivalent mix of CO, NMHC, and NOX emissions 
reductions as a transit project as required under section 
7.36(8)(a)1.
---------------------------------------------------------------------------

    Withholding SIP credit for these projects, however, does not mean 
the requirements of these rules are not enforceable by MA DEP, EPA, or 
citizens under the Clean Air Act. Each rule contains the kind of 
specific objective requirements and compliance schedules that courts 
have required in a SIP as a basis for a citizen suit to enforce 
transportation control measures (TCMs). See e.g. Wilder v. Thomas, 854 
F.2d 605, 615-616 (2d. Cir. 1988). As CLF points out for example, the 
transit rule identifies specific mass transit improvements to be 
implemented by certain dates and the HOV rule establishes a series of 
specific steps to establish and operate HOV lanes depending on traffic 
conditions. 310 CMR 7.36(2) and 7.37(2)-(7).\2\ EPA's concerns relate 
to the planning implications of a rule with specific requirements that 
can be revised without case-by-case EPA approval. This concern does not 
affect citizens' ability to enforce those specific requirements as they 
may appear in these SIP rules at the time of the enforcement action.
---------------------------------------------------------------------------

    \2\EPA cites these provisions as examples of specific 
enforceable requirements in these rules, not an exclusive or 
exhaustive list of enforceable requirements.
---------------------------------------------------------------------------

2. When Is a Project ``Substantially Complete''?

    In response to the uncertainty about which projects will actually 
be implemented under this rule, EPA proposed to grant emissions 
reductions credits in the SIP for projects once they are substantially 
complete. EPA invited comment on how to define the substantial 
completion of a transit project, especially in the case of projects 
that do not require significant construction. CLF commented that 
projects should be credited under the SIP either (1) When funds have 
been irrevocably committed to them and all government approvals are 
obtained, or (2) when operation begins, whichever is earlier. CLF went 
on to say that any actual emissions reductions should not begin to 
accrue until operation has commenced. CLF believes this standard should 
apply to both construction and non-construction projects.
    EPA appreciates CLF's efforts to devise an approach that would 
grant the Commonwealth SIP credit for funded projects as soon as 
possible. EPA is concerned, however, that given the length of the 
construction schedules involved with some transit projects and the 
vagaries of the transportation funding process, it will be difficult to 
determine what constitutes an irrevocable commitment of funds. EPA 
believes that it will be easier to determine objectively when a 
construction project is substantially complete. As for non-construction 
projects, EPA believes the second element of CLF's test is an 
appropriate clarification of the ``ready to implement'' concept EPA 
proposed. Massachusetts can apply for SIP credit for non-construction 
projects when operation begins.\3\
---------------------------------------------------------------------------

    \3\Note that the limitations EPA is putting on the SIP credit 
for these rules is not based on any view that TCMs are not fully 
creditable in a SIP demonstration pursuant to a binding SIP rule. 
Rather, it is the substitution process in these rules that causes 
EPA to require substantial completion of projects before giving SIP 
credit. If these rules had no substitution process, thereby 
committing to specific TCMs by specific dates, EPA could calculate 
SIP credit for these measures now.
---------------------------------------------------------------------------

3. Are Completion Deadlines Expeditious?

    Finally, CLF asserts that Massachusetts must submit SIP revisions 
committing the Commonwealth to firm completion deadlines for these 
projects to obtain SIP credit as soon as possible. CLF reads Delaney v. 
EPA, 898 F.2d 687 (9th Cir. 1990) as creating a presumption that 
omitting any TCMs listed in section 108(f) of the Act delays attainment 
in violation of the requirement that all nonattainment areas attain as 
expeditiously as practicable.
    EPA believes that these rules contain deadlines for action on 
transit projects and HOV lanes. It is true that the Transit System 
Improvement rule 310 CMR 7.36(3) provides for delays in the deadlines 
listed in section 7.36(2) for up to three years, but it is also clear 
that at the end of those three years, either the project must be 
completed or there must be a proposed substitute. While it might be 
more desirable to have a fixed completion deadline without the ``escape 
valve'' for project delays in section 7.36(3), EPA cannot conclude that 
the possible three year delay authorized by this section causes these 
rules to violate any obligation to implement TCMs as expeditiously as 
practicable. Massachusetts has assembled an impressive roster of 
transportation measures, many of which must be implemented by the 
attainment year of 1999, even allowing for the possible three year 
delay.\4\
---------------------------------------------------------------------------

    \4\For example, section 7.36(2)(c)1. requires the Old Colony 
Commuter Rail Line Extension, one of the most significant 
transportation measures in 7.36, to be ``complete and open to full 
public use'' by December 31, 1996. Even the worst case scenario of a 
full three year delay would have the Old Colony in full use only 46 
days after the attainment deadline for the Commonwealth, November 
15, 1999.
---------------------------------------------------------------------------

    The Massachusetts DEP's comment advised EPA that the Commonwealth 
of Massachusetts may be developing changes to the transit improvement 
and HOV rules that could be submitted to EPA in calendar 1994. DEP 
suggested that it might be prudent for EPA to delay final action on 
these rules until EPA receives MA DEP's revisions. MA DEP did not, 
however, ask to withdraw the rules from EPA's consideration as a SIP 
revision. While EPA appreciates DEP's desire to avoid iterative SIP 
actions on these rules, EPA has an obligation to process SIP revisions 
consistent with section 110(k) of the Act to the extent practicable, 
including the requirement to act on the SIP submission within a year of 
deeming it complete. Furthermore, MA DEP has not clearly withdrawn this 
SIP action. At most their comment appears to be a suggestion to EPA 
about how to avoid repetitive rulemakings. EPA cannot suspend its 
statutory obligation to act on SIP submittals without a clear 
expression from a state that it is withdrawing the package. Suspending 
final action on these rules in anticipation of rule changes that EPA 
has not yet seen in draft would only aggravate any delays in processing 
these rules as a SIP revision to accommodate what is now a speculative 
rule change.

Final Action

    EPA is approving the Transit Systems Improvements and High 
Occupancy Vehicle Facilities in the Metropolitan Boston Air Pollution 
Control District as a revision to the Massachusetts SIP.
    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. Secs. 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.
    This action has been classified as a Table 2 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. On January 6, 1989, the Office of Management and Budget 
(OMB) waived Table 2 and Table 3 revisions (54 FR 2222) from the 
requirements of Section 3 of Executive Order 12291 for a period of two 
years. The U.S. EPA has submitted a request for a permanent waiver for 
Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the 
temporary waiver until such time as it rules on EPA's request. This 
request continues in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.
    SIP approvals under section 110 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).
    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 December 5, 1994. 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.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Massachusetts was approved by the Director of 
the Federal Register on July 1, 1982.

    Dated: September 7, 1994.
Patricia Meaney,
Acting Deputy 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)(101) to read 
as follows:


Sec. 52.1120  Identification of plan.

* * * * *
    (c) * * *
    (101) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on December 9, 
1991.
    (i) Incorporation by reference.
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated December 9, 1991 submitting a revision to the 
Massachusetts State Implementation Plan.
    (B) Massachusetts Regulation 310 CMR 7.36, entitled ``Transit 
System Improvements'', Massachusetts Regulation 310 CMR 7.37, entitled 
``High Occupancy Vehicle Facilities'', and amendments to 310 CMR 7.00, 
entitled ``Definitions,'' effective in the Commonwealth of 
Massachusetts on December 6, 1991.
    For the State of Massachusetts:


Sec. 52.1167  [Amended]

    3. In Sec. 52.1167, Table 52.1167 is amended by adding new entries 
to existing state citations for amendments to 310 CMR 7.00, entitled 
``Definitions''; and by adding new state citations for Massachusetts 
Regulation 310 CMR 7.36, entitled ``Transit System Improvements'' and 
Massachusetts Regulation 310 CMR 7.37, entitled ``High Occupancy 
Vehicle Facilities'' to read as follows: 

                                                   Table 52.1167.--EPA-Approved Rules and Regulations                                                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Date                                                                                              
     State citation           Title/subject        submitted     Date approved by EPA      Federal Register      52.1120(c)      Comments/unapproved    
                                                    by State                                   citation                                sections         
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
310 CMR 7.00...........  Definitions............      12/9/91  October 4, 1994........  [Insert FR citation             101  Definitions of baseline    
                                                                                         from published date].                roadway conditions, high  
                                                                                                                              occupancy vehicle, high   
                                                                                                                              occupancy vehicle lane,   
                                                                                                                              peak hour, performance    
                                                                                                                              standard, and roadway     
                                                                                                                              threshold standard.       
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
310 CMR 7.36...........  Transit system               12/9/91  October 4, 1994........  [Insert FR citation             101  Transit system improvement 
                          improvements                                                   from published date].                regulation for Boston     
                          regulations.                                                                                        metropolitan area.        
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
310 CMR 7.37...........  High occupancy vehicle       12/9/91  October 4, 1994........  [Insert FR citation             101  High occupancy vehicle     
                          lanes regulation.                                              from published date].                lanes regulation for      
                                                                                                                              Boston metropolitan area. 
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 94-24421 Filed 10-3-94; 8:45 am]
BILLING CODE 6560-50-P