[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Rules and Regulations]
[Pages 16959-16962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8359]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-088-7216a; A-1-FRL-74662]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Amendment to 310 CMR 7.06, Visible Emissions Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan 
(SIP) revision submitted by the State of Massachusetts. On August 9, 
2001, the Massachusetts Department of Environmental Protection (MA DEP) 
formally submitted a SIP revision containing multiple revisions to the 
State Regulations for the Control of Air Pollution. In today's action 
EPA is conditionally approving one portion of these rule revisions, 310 
CMR 7.06 (1)(c), into the Massachusetts SIP. This conditional approval 
is based on a commitment by MA DEP to submit a revised regulation by 
one year from today. If Massachusetts fails to submit the required 
revisions within one year, then this final conditional approval will be 
converted to a disapproval. This action is being taken in accordance 
with the Clean Air Act.

DATES: This direct final rule will be effective June 9, 2003, unless 
EPA receives adverse comments by May 8, 2003. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA New England Regional Office, 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, EPA New England 
Regional Office, One Congress Street, 11th floor, Boston, MA; Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, Room B-108, 1301 Constitution Avenue, (Mail Code 6102T) NW., 
Washington, DC 20460; and the Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Jeffrey S. Butensky, Environmental 
Planner, (617) 918-1665; [email protected].

SUPPLEMENTARY INFORMATION: On August 9, 2001, the MA DEP submitted a 
formal revision to the State Implementation Plan (SIP). This SIP 
revision consists of amendments to several sections of the 
Massachusetts Regulations for the Control of Air Pollution. Today's 
action conditional approves one section of this submittal, 310 CMR 
7.06(1)(c) of the Massachusetts ``Visible Emissions'' regulation.
I. Summary of SIP Revision
    A. What are visible emissions?
    B. What does the current visible emissions rule in Massachusetts 
require?
    C. What amendments did Massachusetts submit to their visible 
emissions rule?
    D. What concerns does EPA have with the existing amendments?
    E. What changes has Massachusetts committed to make to the rule?

A. What Are Visible Emissions?

    Visible emissions, also known as ``opacity,'' is a measure of the 
density of smoke being emitted from a particular source. The more dense 
and dark the emissions from a source appear, the higher the opacity. in 
general, higher opacity is equivalent to higher emissions of 
particulate matter. States have developed and implemented rules for 
certain sources of particulate matter designed to measure and control 
the level of opacity emitted from smokestack or vents, thereby 
controlling the amount of particular matter released into the ambient 
air.

B. What Does the Current Visible Emissions Rule in Massachusetts 
Require?

    Massachusetts rule section 310 CMR 7.06 provides specific 
requirements for visible emissions. Section 310 CMR 7.06(1) of the 
existing visible emissions rule applies to stationary sources other 
than incinerators. Section 310 CMR 7.06(1)(a) states that ``no person 
shall cause, suffer, allow, or permit the emissions of smoke which has 
a shade, density, or appearance equal to or greater than No. 1 of the 
[Ringleman] chart for a period, or aggregate period of time in excess 
of six minutes during any one hour period, provided that at no time 
during the said six minutes the shade, density, or appearance be equal 
to or greater than No. 2 of the [Ringleman] chart.'' Furthermore, 
section 310 CMR 7.06(1)(b) goes on to state that ``No person shall 
cause, suffer, allow, or permit the operation of a facility so as to 
emit contaminant(s), exclusive of uncombined water or smoke subject to 
310 CMR 7.06(1)(a) of such opacity which, in the opinion of the 
Department, could be reasonably controlled through the application of 
modern technology of control and a good Standard Operating Procedure, 
and in no case, shall exceed 20% opacity for a period or aggregate 
period of time in excess of two minutes during any one hour provided 
that, at no time during the said two minutes shall the opacity exceed 
40%.''

[[Page 16960]]

C. What Amendments Did Massachusetts Submit to Their Visible Emissions 
Rule?

    On August 9, 2001, the MA DEP submitted to EPA amendments to the 
Massachusetts Regulations for the Control of Air Pollution. This 
submittal included revisions to several regulatory sections. However, 
today's action only applies to the revisions made to section 310 CMR 
7.06, entitled ``Visible Emissions.'' The revisions of this section 
will allow a facility subject to a Title V operating permit to operate 
under alternative opacity emission standards for certain boilers, 
provided the facility develops a plan outlining the practices it will 
utilize during certain operating conditions (e.g., start up, shut down, 
etc.).
    Specifically, a new section 310 CMR 7.06(1)(c) allows facilities 
subject to Title V operating permits to comply with a visible emissions 
limitation not to exceed 15 percent opacity for boilers rated less than 
500 BTU input capacity. To operate in accordance with the exception, a 
facility must notify the MA DEP and submit a plan describing practices 
for operating and maintaining the equipment to minimize emissions 
during soot blowing, startup, shut down, burner change, and 
malfunction. In addition, the plan must also include corrective action 
procedures. An exceedance of the visible emission limitation would not 
be deemed a violation provided the facility could demonstrate that it 
was operating in accordance with the plan at the time of the 
exceedance. In addition, MA DEP can disallow a facility from operating 
pursuant to this exception if the plan is inadequate or a condition of 
air pollution exists. Finally, any facility operating pursuant to this 
exception must notify the MA DEP within 24 hours or the next business 
day of any malfunction which causes an exceedance of the allowed 
visible emissions requirements for greater than a 12 minute period.

D. What Concerns Does EPA Have With the Existing Amendments?

    EPA has concluded that 310 CMR 7.06 (1)(c) contains several 
deficiencies that must be addressed by the MA DEP. First, there is no 
apparent cap on opacity during start up and shut down operations. In 
addition, the revised rule does not explicitly provide an averaging 
period by over which opacity should be measured. Furthermore, there is 
no explicit criteria in the regulation stating how the MA DEP will 
judge the plan of good operating practices required to be submitted by 
facilities taking advantage of the exception in 310 CMR 7.06(c). 
Lastly, there are no provisions to make the good operating practices 
outlined in a facility's plan enforceable. If the operating practices 
are not made enforceable, then neither EPA nor citizens will be able to 
enforce against a facility violating its opacity limitation.

E. What Changes Has Massachusetts Committed To Make to the Rule?

    In a letter from the MA DEP dated September 12, 2002, MA DEP has 
committed to submit, within one year from today, revisions to section 
7.06 (1)(c). In its September 12, 2002 letter, MA DEP included to 
specific regulatory language that it intends to adopt to address EPA 
concerns. The amendments the MA DEP has committed to make to the rule 
include adding a 27% opacity limitation to apply during startup, shut 
down, soot blowing and other limited periods as specified in the plan 
of good operating practices approved by the MA DEP. MA DEP has also 
committed to explicitly include a six minute averaging period in the 
rule.
    Massachusetts has also committed to add explicit criteria in the 
regulation stating how the MA DEP will judge the plan of good operating 
practices required to be submitted by facilities taking advantage of 
the alternative opacity limitation. Lastly, Massachusetts has also 
committed to add provisions to the rule specifying how the good 
operating practices and visible emission limitations outlined in a 
facility's plan will be made enforceable. These will address all of the 
concerns raised by EPA.

II. Final Action

    EPA is conditionally approving 310 CMR 7.06(1)(c) of the SIP 
revision submitted by the Massachusetts Department of Environmental 
Protection on August 9, 2001 as a revision to the SIP. The State must 
submit to EPA by one year from today a revised regulation addressing 
the concerns outlined in this action. If the State fails to do so, this 
approval will become a disapproval on that date. EPA will notify the 
State by letter that this action has occurred. At that time, this 
regulation will no longer be a part of the approved Massachusetts SIP. 
EPA subsequently will publish a notice in the notice section of the 
Federal Register notifying the public that the conditional approval 
automatically converted to a disapproval. If the State meets its 
commitment within the applicable time frame, the conditionally approved 
regulation will remain a part of the SIP until EPA takes final action 
approving or disapproving the new regulation. If EPA disapproves the 
new submittal, the conditional approval will also be disapproved at 
that time. If EPA approves the submittal, the regulation will be fully 
approved in its entirety and replace the conditionally approved 
regulation in the SIP.
    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 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 
relevant adverse comments be filed. This rule will be effective June 9, 
2003 without further notice unless the Agency receives relevant adverse 
comments by May 8, 2003.
    If the EPA receives such comments, then EPA will publish a notice 
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 on the proposed rule. Only parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on June 9, 2003 and no further action will be 
taken on the proposed rule.

III. Regulatory Assessment 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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

[[Page 16961]]

Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 
``Protection of Children From Environmental Health Risks and Safety 
Risks'' (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 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. 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 9, 2003. 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. 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: February 21, 2003.
Robert W. Varney,
Regional Administrator, EPA New England.

0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart W--Massachusetts

0
2. Section 52.1119 is amended by adding paragraph (a)(3) to read as 
follows:


Sec.  52.1119  Identification of plan.

* * * * *
    (a) * * *
    (3) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection dated August 9, 
2001.
    (i) Incorporation by reference.
    (A) Revisions to the Massachusetts Regulations for the Control of 
Air Pollution, section 310 CMR 7.06 (1)(c), dated August 3, 2001.
    (ii) Additional materials:
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated September 12, 2002 submitting a commitment to revise 
section 310 CMR 7.06 (1)(c) of Massachusetts State Implementation Plan 
by one year from today.

0
3. In Sec.  52.1167 Table 52.1167 is amended by adding new entries to 
existing state citations and by adding new state citations 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    Date  approved  by    Federal Register        52.1120(c)      Comments/unapproved
                                                           by State           EPA                citation                                  sections
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                                                                      * * * * * * *
310 CMR 7.06(1)(c)...............  Visible Emissions...       8/9/01  [Insert date of      [Insert FR citation  None...............  Conditional
                                                                       publication].        from published                            approval at
                                                                                            date].                                    52.1119(a)(3).
 
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[[Page 16962]]

[FR Doc. 03-8359 Filed 4-7-03; 8:45 am]
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