[Federal Register Volume 60, Number 65 (Wednesday, April 5, 1995)]
[Rules and Regulations]
[Pages 17226-17229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8216]



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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.

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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.'' 
[[Page 17227]] 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.

    \1\The 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.
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    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 
[[Page 17228]] 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. Sec. 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, 
[[Page 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:


Sec. 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 Sec. 52.1167, Table 52.1167 is amended by adding new state 
citations for 310 CMR 7.02(12) 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       submitted    Dated approved by       Federal Register       52.1120(c)  Comments/unapproved sections
                                                     by State           EPA                  citation                                                   
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                   *                  *                  *                  *                  *                  *                  *                  
310CMR 7.02(12).........  U Restricted Emission        6/6/94  April 5, 1995.......  [Insert FR citation from          105  This rule limits a source's 
                           Status.                                                    published date].                       potential to emit,         
                                                                                                                             therefore avoiding RACT,   
                                                                                                                             title V operating permits  
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
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[FR Doc. 95-8216 Filed 4-4-95; 8:45 am]
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