[Federal Register Volume 65, Number 70 (Tuesday, April 11, 2000)]
[Rules and Regulations]
[Pages 19323-19327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8830]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA063-01-7200a; A-1-FRL-6574-7A]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Revised VOC Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving two State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Massachusetts. These SIP submittals 
include revisions to regulations for controlling volatile organic 
compound (VOC) emissions, including emissions from marine vessel 
loading and consumer products. The intended effect of this action is to 
approve the revised regulations into the Massachusetts SIP. This action 
is being taken in accordance with the Clean Air Act (CAA).

DATES: This direct final rule is effective on June 12, 2000 without 
further notice, unless EPA receives adverse comment by May 11, 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 David Conroy, Unit Manager, Air 
Quality Planning Unit (mail code CAQ), U.S. Environmental Protection 
Agency, Region I, 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 Ecosystem Protection, U.S. Environmental Protection Agency, 
Region I, One Congress Street, 11th floor, Boston, MA and the Division 
of Air Quality Control, Department of Environmental Protection, One 
Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 918-1047.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

    What action is EPA taking?
    What are the CAA requirements for marine vessels?
    How has Massachusetts addressed these CAA requirements?
    What were the issues outlined in EPA's conditional approval of 
Massachusetts' marine vessel rule?
    How has Massachusetts addressed these issues?
    What revisions did Massachusetts make to its VOC definition?
    How does Massachusetts' VOC definition compare to EPA's VOC 
definition?
    What revisions did Massachusetts make to its consumer products 
rule?
    Why is EPA approving Massachusetts' SIP submittals?
    What is the process for EPA's approval of these SIP revisions?

What Action Is EPA Taking?

    EPA is approving Massachusetts' revised 310 CMR 7.24(8) ``Marine 
Volatile Organic Liquid Transfer'' and incorporating this rule into the 
Massachusetts SIP. EPA is also approving definitions in 310 CMR 7.00 
which are associated with the marine vessel rule. EPA is also approving 
Massachusetts' revised 310 CMR 7.00 definition of ``volatile organic 
compound'' and an amendment to Massachusetts' 310 CMR 7.25 ``Best 
Available Controls for Consumer and Commercial Products'' and 
incorporating these regulations into the Massachusetts SIP.

What Are the CAA Requirements for Marine Vessels?

    Section 183(f) of the CAA requires EPA to promulgate reasonably 
available control technology (RACT) standards to reduce VOC emissions 
from the loading and unloading of tank vessels. Furthermore, on 
November 12, 1993 (58 FR 60021), marine vessels were added to the list 
of those categories for which EPA will promulgate a maximum achievable 
control technology (MACT) standard. On September 19, 1995 (60 FR 
48388), EPA promulgated both RACT and MACT standards for marine tank 
vessels. Section 183(f)(4) of the CAA states that after EPA promulgates 
such standards, no State may adopt, or attempt to enforce, less 
stringent standards for tank vessels subject to EPA's regulation.
    In addition, section 182(b)(1) of the amended CAA requires States 
with ozone nonattainment areas classified as moderate and above to 
develop reasonable further progress plans to reduce VOC emissions by 15 
percent within these areas by 1996 when compared to 1990 baseline VOC 
emission levels. Also, section 182(b)(2)(C) of the CAA requires that 
RACT be implemented for all major VOC sources by May 31, 1995. Pursuant 
to the Clean Air Act Amendments of 1990, the Commonwealth of 
Massachusetts was designated as serious nonattainment for ozone.\1\
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    \1\ See 56 FR 56694 (November 6, 1991). On June 9, 1999, EPA 
revoked the one-hour ozone standard for eastern Massachusetts. See 
64 FR 30911 (June 9, 1999). EPA has proposed to reinstate that 
standard. See 64 FR 57424 (October 25, 1999).
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    Therefore, in Massachusetts, sources with the potential to emit 
greater than

[[Page 19324]]

50 tpy are considered major VOC sources. Furthermore, Massachusetts is 
located in the Northeast Ozone Transport Region (OTR). The entire 
Commonwealth is, therefore, subject to section 184(b) of the amended 
CAA. Section 184(b) requires that RACT be implemented for all major VOC 
sources (defined as 50 tons per year for sources in the OTR).

How Has Massachusetts Addressed These CAA Requirements?

    In response to the above CAA requirements, Massachusetts adopted 
310 CMR 7.24(8) to control VOC emissions from marine vessel transfer 
operations. On August 27, 1996 (61 FR 43973), EPA issued a conditional 
approval of Massachusetts' 310 CMR 7.24(8) marine vessel rule. EPA's 
conditional approval cited two outstanding issues associated with 
Massachusetts' regulation.

What Were the Issues Outlined in EPA's Conditional Approval of 
Massachusetts' Marine Vessel Rule?

    EPA's conditional approval of Massachusetts' marine vessel rule 
cited the following two outstanding issues associated with this 
regulation: (1) a lack of monitoring requirements; and (2) emission 
limits for ballasting operations.
(1) Lack of Monitoring Requirements
    Massachusetts' marine vessel rule requires that, upon initial 
startup of the air pollution control equipment, the owner or operator 
of a marine terminal conduct an initial performance test in order to 
demonstrate compliance. However, the initially adopted version of the 
rule did not require the facility to demonstrate continued compliance 
as is generally required of VOC sources. Specifically, as noted in 
EPA's conditional approval, the regulation should require that certain 
parameters be monitored continuously while marine vessel loading or 
ballasting operations are occurring and that records be kept of any 
periods of operation during which the previously established parameter 
boundaries are exceeded.\2\
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    \2\ See the monitoring requirements of EPA's national marine 
vessel rule (especially sections 63.564 (e),(g), and (h)) and/or the 
monitoring requirements Massachusetts has imposed on other types of 
VOC sources (e.g., 310 CMR 7.18(2)(e)).
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(2) Emission Limits for Ballasting Operations
    The marine vessel rule that Massachusetts initially adopted applies 
to the loading of an organic liquid and to ballasting operations. 
However, the emissions limitations of the rule do not apply to 
ballasting operations. EPA's conditional approval noted that, although 
EPA's national marine vessel rule does not apply to ballasting 
operations, the absence of emission limitations for ballasting 
operations in Massachusetts' rule is inconsistent with the VOC emission 
reductions claimed in Massachusetts' reasonable further progress (RFP) 
plan for the Boston-Worcester-Lawrence ozone nonattainment area. 
Specifically, Massachusetts 1990 base year inventory shows that 
uncontrolled marine vessel transfer operations result in 3.2 tons of 
VOC per summer day (tpsd), which includes 2.8 tpsd from ballasting and 
0.4 tpsd from loading operations. Massachusetts' initial marine vessel 
rule SIP submittal states that ballasting emissions will be reduced by 
2.1 tpsd. This statement assumes that ballasting operations are subject 
to a 95 percent control efficiency requirement (i.e., 0.95 control 
efficiency  x  0.8 rule effectiveness  x  2.8 tpsd uncontrolled = 2.1 
tpsd reduction). Therefore, EPA's conditional approval stated that 
Massachusetts' marine vessel rule should require that ballasting 
operations be subject to the emission limitations stated in section 
7.24(8)(c)(1)(B) of the rule.

How Has Massachusetts Addressed These Issues?

    On October 17, 1997, Massachusetts submitted a SIP revision 
containing a revised version of its marine vessel rule 310 CMR 7.24(8). 
Massachusetts' revised marine vessel rule adequately addresses the two 
issues outlined in EPA's conditional approval.
(1) Lack of Monitoring Requirements
    In Massachusetts' revised rule, a new provision has been added 
which requires emission control equipment to be monitored in accordance 
with the procedures specified in EPA's national marine vessel rule, 
specifically sections 63.564(e) through (j) of 40 CFR part 63, subpart 
Y. Massachusetts has, therefore, adequately addressed the issue of 
monitoring requirements.
    The revised rule also includes a reference to the vapor-tightness 
pressure test procedures in EPA's national rule, specifically section 
63.565(c)(1) of 40 CFR part 63, subpart Y. Previously, Massachusetts' 
rule required that these tests be ``conducted in accordance with 
procedures specified by the DEP and EPA.''
(2) Emission Limits for Ballasting Operations
    In Massachusetts' revised rule, the requirement for marine terminal 
owners to install and operate equipment to control VOC emissions which 
result solely from ballasting operations has been rescinded. However, 
the revised rule states that, if a system is in place to control 
emissions from gasoline loading operations, then that system must also 
be used to control ballasting emissions. In such a case, ballasting 
emissions are subject to the emission limits of the rule.
    Massachusetts' revision is acceptable since ballasting emissions in 
Massachusetts are now known to be less significant than originally 
estimated. As previously stated, Massachusetts had initially calculated 
uncontrolled ballasting emissions to be 2.8 tpsd. However, as reported 
in Massachusetts public hearing background document, industry data has 
subsequently shown that 1994 uncontrolled ballasting emissions were 
only 0.4 tpsd. Massachusetts plans to adjust future emissions inventory 
estimates of ballasting emissions to reflect this lower level of 
emissions.
    In addition, as previously mentioned, EPA's national marine vessel 
rule does not apply to ballasting operations. In promulgating this 
rule, EPA noted that the U.S. Coast Guard has regulations which address 
ballasting and that ``the relatively low amount of actual emissions 
associated with ballasting does not justify dual regulation of 
ballasting.''

What Revisions Did Massachusetts Make to Its VOC Definition?

    On July 30, 1996, Massachusetts submitted a SIP revision containing 
revisions to its 310 CMR 7.00 definition of the term ``volatile organic 
compound.'' In the revised definition, acetone has been added to the 
list of compounds that are exempt from the definition of VOC because of 
their negligible photochemical reactivity. The revised definition also 
clarifies that the previously adopted exemption for volatile methyl 
siloxanes is specifically for ``cyclic, branched, or linear, completely 
methylated siloxanes.'' EPA promulgated an exemption for acetone in its 
definition of VOC on June 16, 1995 (60 FR 31633) and an exemption for 
cyclic, branched, or linear, completely methylated siloxanes on October 
5, 1994 (59 FR 50693).

[[Page 19325]]

How Does Massachusetts' VOC Definition Compare to EPA's VOC 
Definition?

    Massachusetts' revised VOC definition is consistent with EPA's VOC 
definition codified at 40 CFR 51.100(s), with the exception of more 
recent revisions to EPA's definition which were promulgated subsequent 
to Massachusetts' July 30, 1996 SIP submittal. EPA promulgated these 
additional revisions on October 8, 1996 (61 FR 52848), August 25, 1997 
(62 FR 44900), and April 9, 1998 (63 FR 17331). These revisions add 
more compounds to the list of those exempted from the definition of VOC 
because of their negligible photochemical reactivity. Massachusetts' 
VOC definition also does not include an exemption for perchloroethylene 
which was promulgated by EPA on February 7, 1996 (61 FR 4588). As 
stated in EPA's exemption rulemakings, States are not obligated to 
exclude from control as a VOC those compounds that EPA has found to be 
negligibly reactive. However, EPA will no longer enforce measures 
controlling the exempted compounds as part of a federally-approved SIP. 
EPA's exemption rulemakings also state that a State may not take credit 
for controlling the EPA-exempted compounds in its ozone control 
strategy. Nor may reductions of EPA-exempted compounds be used as 
emission reduction credits or offsets to be traded against the emission 
of non-exempt compounds. Massachusetts is not taking credit for 
reductions of EPA-exempted compounds in its rate of progress plans and 
does not allow trading of exempt for non-exempt emissions.

What Revisions Did Massachusetts Make to Its Consumer Products 
Rule?

    On July 30, 1996, Massachusetts submitted revisions to its 310 CMR 
7.25 ``Best Available Controls for Consumer and Commercial Products.'' 
In this rule, minor clarifications were made to the definition of the 
term ``waterproofing sealer.'' The revised definition is consistent 
with EPA's national rule codified at 40 CFR part 59, subpart D 
``National VOC Emission Standards for Architectural Coatings.''

Why Is EPA Approving Massachusetts' SIP Submittals?

    EPA is approving Massachusetts' revised marine vessel rule because 
the Commonwealth has successfully addressed the issues outlined in 
EPA's earlier conditional approval. EPA is also approving Massachusetts 
revised VOC definition and clarifications to its consumer product rule 
because these revisions are consistent with current EPA guidance. 
Further information on Massachusetts' October 17, 1997 and July 30, 
1996 SIP submittals and EPA's evaluation of these submittals can be 
found in a memorandum dated September 7, 1999 entitled ``Technical 
Support Document--Massachusetts--Revised VOC Rules.'' Copies of this 
document are available, upon request, from the EPA Regional Office 
listed in the ADDRESSES section.

What Is the Process for EPA's Approval of These SIP Revisions?

    The 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 
adverse comments be filed. This action will be effective June 12, 2000 
without further notice unless the Agency receives adverse comments by 
May 11, 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 June 12, 2000 and no 
further action will be taken on the proposed rule.
    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.

Final Action

    EPA is approving Massachusetts' revised 310 CMR 7.24(8) ``Marine 
Volatile Organic Liquid Transfer'' and incorporating this rule into the 
Massachusetts SIP. EPA is also approving the following definitions in 
310 CMR 7.00 which are associated with the marine vessel rule: 
``combustion device,'' ``leak,'' ``leaking component,'' ``lightering or 
lightering operation,'' ``loading event,'' ``marine tank vessel,'' 
``marine terminal,'' ``marine vessel,'' ``organic liquid,'' and 
``recovery device.'' EPA is also approving Massachusetts' revised 310 
CMR 7.00 definition of ``volatile organic compound'' and an amendment 
to Massachusetts' 310 CMR 7.25 ``Best Available Controls for Consumer 
and Commercial Products'' and incorporating these regulations into the 
Massachusetts SIP.

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

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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. 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 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. 
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 June 12, 2000. 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).) 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Ozone, Reporting and recordkeeping.

    Dated: March 24, 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


Sec. 52.1119   [Amended]

    2. Remove Sec. 52.1119(a)(2).
    3. Section 52.1120 is amended by adding paragraphs (c)(115) and 
(c)(121) to read as follows:


Sec. 52.1120  Identification of plan

* * * * *
    (c) * * *
    (115) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on October 17, 
1997 and July 30, 1996.
    (i) Incorporation by reference.
    (A) 310 CMR 7.24(8) ``Marine Volatile Organic Liquid Transfer'' 
effective in the Commonwealth of Massachusetts on October 5, 1997.
    (B) Definition of ``volatile organic compound'' in 310 CMR 7.00 
``Definitions'' effective in the Commonwealth of Massachusetts on June 
28, 1996.
    (C) Definition of ``waterproofing sealer'' in 310 CMR 7.25 ``Best 
Available Controls for Consumer and Commercial Products'' effective in 
the Commonwealth of Massachusetts on June 28, 1996.
    (ii) Additional materials
    (A) Nonregulatory portions of the submittal.
* * * * *
    (121) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on January 11, 
1995 and March 29, 1995.
    (i) Incorporation by reference.
    (A) Definitions of ``combustion device,'' ``leak,'' ``leaking 
component,'' ``lightering or lightering operation,'' ``loading event,'' 
``marine tank vessel,'' ``marine terminal,'' ``marine vessel,'' 
``organic liquid,'' and ``recovery device'' in 310 CMR 7.00 
``Definitions'' effective in the Commonwealth of Massachusetts on 
January 27, 1995.
    (ii) Additional materials.
    (A) Nonregulatory portions of the submittal.
    4. In Sec. 52.1167, Table 52.1167 is amended by adding new entries 
to existing state citations for 310 CMR 7.00 and 310 CMR 7.25; and by 
adding new state citation 310 CMR 7.24(8).


Sec. 52.1167  EPA-approved Massachusetts State regulation.

* * * * *

                             Table 52.1167.--EPA-Approved Massachusetts Regulations
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                                              Date        Date                                      Comments/
    State citation        Title/subject    submitted    approved  Federal Register   52.1120(c)     unapproved
                                            by State     by EPA       citation                       sections
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*                  *                  *                  *                  *                  *
                                                        *
310 CMR 7.00..........  Definitions.....      7/30/96    4/11/00  [Insert FR                115  Definition of
                                                                   citation from                  ``volatile
                                                                   published date].               organic
                                                                                                  compound''
                                                                                                  revised.
 
*                  *                  *                  *                  *                  *
                                                        *
310 CMR 7.00..........  Definitions.....      1/11/95    4/11/00  [Insert FR                121  Definitions
                                              3/29/95              citation from                  associated
                                                                   published date].               with marine
                                                                                                  vessel rule.
 
*                  *                  *                  *                  *                  *
                                                        *
310 CMR 7.24(8).......  Marine Volatile      10/17/97    4/11/00  [Insert FR                115  ...............
                         Organic Liquid                            citation from
                         Transfer.                                 published date].
 

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*                  *                  *                  *                  *                  *
                                                        *
310 CMR 7.25..........  Best Available        7/30/96    4/11/00  [Insert FR                115  Definition of
                         Controls for                              citation from                  ``waterproofin
                         Consumer and                              published date].               g sealer''
                         Commercial                                                               revised.
                         Products.
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-8830 Filed 4-10-00; 8:45 am]
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