[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Rules and Regulations]
[Pages 49541-49544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24064]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-7065-9]


Clean Air Act Final Approval of Operating Permits Program; 
Commonwealth of Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking final action to fully approve the Clean Air 
Act Operating Permits Program of the Commonwealth of Massachusetts. 
Massachusetts submitted its program for the purpose of complying with 
federal Clean Air Act requirements for a State to develop a program to 
issue operating permits to all major stationary and certain other 
sources of air pollution. EPA granted interim approval to 
Massachusetts' operating permit program on February 2, 1996.

DATES: This direct final rule is effective on November 27, 2001 without 
further notice, unless EPA receives relevant adverse comment by October 
29, 2001. If EPA receives relevant adverse comments, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register and 
inform the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to Steven Rapp, Unit Manager, Air 
Permit Program Unit, Office of Ecosystem Protection (mail code CAP) 
U.S. Environmental Protection Agency, EPA--New England, One Congress 
Street, Suite 1100, Boston, MA 02114-2023. Copies of the State 
submittal, and other supporting documentation relevant to this action, 
are available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA--New England, One Congress Street, 11th floor, 
Boston, MA.

FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, (617) 918-1653.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is the operating permit program?
How has Massachusetts addressed EPA's interim approval issues?
What additional changes to Massachusetts' program is EPA approving?
What is involved in this final action?

What Is the Operating Permits Program?

    The Clean Air Act Amendments (CAA) of 1990 required all state and

[[Page 49542]]

local permitting authorities to develop operating permit programs that 
meet certain federal criteria. 42 U.S.C. 7661-7661e. In implementing 
the operating permit programs, the permitting authorities require 
certain sources of air pollution to obtain permits that contain all 
applicable requirements under the CAA. The focus of the operating 
permit program is to improve compliance and enforcement by issuing each 
source a permit that consolidates all of the applicable CAA 
requirements into a federally enforceable document. By consolidating 
all of the applicable requirements, the source, the public, and the 
permitting authorities can more easily determine what CAA requirements 
apply and how to determine compliance with those requirements.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. See 40 CFR 
70.3. For example, all sources regulated under the acid rain program, 
regardless of size, must obtain operating permits. Examples of major 
sources include: those that have the potential to emit 100 tons per 
year or more of volatile organic compounds, carbon monoxide, lead, 
sulfur dioxide, nitrogen oxides, or particulate matter (PM 10); those 
that emit 10 tons per year of any single hazardous air pollutant 
specifically listed under the CAA (HAP); or those that emit 25 tons per 
year or more of a combination of HAPs. In areas that are not meeting 
the National Ambient Air Quality Standards for ozone, carbon monoxide, 
or particulate matter, major sources are defined by the gravity of the 
nonattainment classification. For example, in ozone nonattainment areas 
classified as ``serious,'' such as Massachusetts, major sources include 
those with the potential of emitting 50 tons per year or more of 
volatile organic compounds or nitrogen oxides.

What Is Being Addressed in This Document?

    Where an operating permit program substantially, but not fully, 
meets the criteria outlined in the implementing regulations codified at 
40 Code of Federal Regulations part 70, EPA may grant the program 
interim approval. Because Massachusetts' operating permit program 
substantially, but not fully, met the requirements of part 70, EPA 
granted interim approval to the program in a rulemaking published on 
February 2, 1996 (61 FR 3827). The interim approval document described 
the corrections that had to be made in order for Massachusetts' program 
to receive full approval. Massachusetts submitted two revisions to its 
operating permit program; these revisions were dated November 19, 1996 
and May 11, 2001. This document describes changes made to the 
Massachusetts operating permit program since interim approval was 
granted.

How Has Massachusetts Addressed EPA's Interim Approval Issues?

    EPA's February 2, 1996 rulemaking explained that Massachusetts must 
make the following rule changes to receive full approval of its 
operating permit program.
    (1) Revise Appendix C(8)(b)(4) to eliminate the applicability of 
the permit shield for administrative amendments. Massachusetts changed 
Appendix C(8)(b)(4) to state the permit shield provisions shall not 
apply to changes made to the operating permit using the modification 
procedures of Appendix C(8).
    (2) In Appendix C(7)(b)(3)(e), the program regulation provided that 
a notice of an operational flexibility change made pursuant to an 
intra-facility emissions trading plan may include notice of ``[a]ny 
permit term or condition that is no longer applicable as a result of 
the change.'' Changes made pursuant to an intra-facility emissions 
trading plan must be provided for in the permit, and such plans provide 
no authority to render permit conditions inapplicable through a simple 
notice. 40 CFR 70.4(b)(12)(iii)(A). Massachusetts has removed this 
section of its regulation.
    (3) Appendix C(4)(a)(5) did not clearly require a facility to apply 
for an operating permit if it became Subject to Appendix C without any 
new construction, for example, by relaxing an emissions cap in a 
restricted emission status plan approval. Appendix C(4)(a)(6) and 
Appendix C(4)(a)(7) have been added to clarify when an application must 
be submitted for facilities that exceed the major source threshold of a 
regulated pollutant.
    (4) Appendix C(8)(a)(2)(b) prohibited any relaxation of monitoring, 
reporting, or recordkeeping from qualifying as a minor permit 
modification. EPA's rule prohibits all significant changes to 
monitoring, reporting or recordkeeping, whether or not they are 
classified as a relaxation, from being processed as a minor permit 
modification. Massachusetts has revised Appendix C(8)(a)(2)(b) by 
replacing relaxation with significant change.
    EPA has concluded that these changes address all of EPA's interim 
approval issues.

What Additional Changes to Massachusetts Program Is EPA Approving?

    Massachusetts made other substantive changes after EPA granted 
interim approval to its operating permit program on February 2, 1996. 
On November 19, 1996 and May 11, 2001, Massachusetts submitted 
revisions to 310 CMR 7.00: Appendix C: Operating Permit and Compliance 
Program. In addition to certain changes in formatting and non-
substantive revisions, Massachusetts made the following substantive 
program changes.
    (1) Massachusetts amended the definition of ``volatile organic 
compound'' (VOC) to be consistent with revisions EPA has made to its 
definition.
    (2) Massachusetts clarified the applicability of Appendix C by 
adding the definition of facility which is more inclusive than the 
federal definition of major source. Unlike major source, a facility is 
not subdivided by Major Group as described in the Standard Industrial 
Classification Manual (SIC). The term facility aggregates all emissions 
of a pollutant located on the same, adjacent, or contiguous property, 
regardless of the SIC grouping of the emission units.
    (3) Massachusetts amended Appendix C(2) to ensure that the time 
frame for submitting an operating permit application by a non-major 
source does not conflict with EPA requirements. As previously 
promulgated, Massachusetts' rule allowed facilities to submit 
applications subsequent to the date established by EPA at 40 CFR part 
63.
    (4) Massachusetts amended the definition of major source to include 
a provision to sum all HAPs regardless of SIC code classification. This 
is consistent with EPA's definition of a major source as defined under 
Section 112 of the CAA. 42 U.S.C. 7412.
    (5) In Appendix C(2)(f), Massachusetts provides two additional 
mechanisms for a source to establish that its emissions are below major 
source thresholds, and, therefore, the source is not required to apply 
for an operating permit. Pursuant to section (2)(f)(3), a source may 
take a limit on its potential to emit in a construction permit, or 
``plan approval.'' Pursuant to section (2)(f)(4), a facility with 
actual emissions below 50 or 25 percent of the major source thresholds 
may document those very low emissions to maintain its exemption from 
the operating permit program.

[[Page 49543]]

    (6) Massachusetts adopted and incorporated by reference the 
provisions of the acid rain program as amended on October 24, 1997, and 
40 CFR part 76 as in effect on September 1, 1998. Both provisions were 
promulgated after EPA granted interim approval to Massachusetts' 
operating permit program on February 2, 1996.
    (7) Massachusetts added a provision reducing the 45-day period for 
EPA objection to a proposed operating permit if EPA notifies 
Massachusetts before the end of 45 days that the Agency does not intend 
to object to the operating permit. This provision has no effect on the 
time frame for citizen petitions. The 60-day filing period for a 
citizen's petition runs from the expiration of EPA's full 45-day 
objection period.

What Is Involved in This Final Action?

    EPA is taking final action to fully approve Massachusetts' 
operating permit program. EPA is also taking action to approve the 
additional program changes Massachusetts submitted on November, 19, 
1996 and May 11, 2001. EPA is publishing this action 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 grant full 
approval should relevant adverse comments be filed. This action will be 
effective November 27, 2001 unless the Agency receives adverse comments 
by October 29, 2001.
    If 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 EPA receives no such comments, the public 
is advised that this action will be effective on November 27, 2001.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (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. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities because it merely approves state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. This rule does not contain any unfunded mandates 
and does not significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4) because it approves pre-existing requirements under state law and 
does not impose any additional enforceable duties beyond that required 
by state law. This rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175, ``Consultation and Coordination with Indian Tribal 
Governments'' (65 FR 67249, November 9, 2000). This rule also does not 
have Federalism implications because it 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, ``Federalism'' (64 FR 43255, August 10, 
1999). The rule merely approves existing requirements under state law, 
and does not alter the relationship or the distribution of power and 
responsibilities between the State and the Federal government 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This action will not impose any collection 
of information subject to the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a current valid OMB 
control number.
    In reviewing State operating permit programs submitted pursuant to 
Title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. 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 State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program 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. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 27, 2001. Interested 
parties should comment in response to the rule rather than petition for 
judicial review, unless the objection arises after the comment period 
allowed for in the rule. 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 70

    Administrative practice and procedure, Air pollution control, 
Environmental Protection Agency, Intergovernmental relations, Operating

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permits, and Reporting and recordkeeping requirements.

    Dated: September 19, 2001.
 Robert W. Varney,
Regional Administrator, EPA New England.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by revising paragraph (b) in 
the entry for Massachusetts to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Massachusetts

* * * * *
    (b) The Massachusetts Department of Environmental Services 
submitted program revisions on November, 19, 1996 and May 11, 2001. 
EPA is hereby granting Massachusetts full approval effective on 
November 27, 2001.
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[FR Doc. 01-24064 Filed 9-27-01; 8:45 am]
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