[Federal Register Volume 73, Number 32 (Friday, February 15, 2008)]
[Rules and Regulations]
[Pages 8818-8821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2745]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2006-0641; A-1-FRL-8527-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Certification of Tunnel Ventilation Systems in the 
Metropolitan Boston Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Massachusetts. The SIP revision consists of 
technical revisions to Massachusetts regulation 310 CMR 7.38, 
``Certification of Tunnel Ventilation Systems in the Metropolitan 
Boston Air Pollution Control District.'' The amendments better define 
the emissions monitoring techniques for various types of tunnel 
ventilation systems, and provide flexibility in emission monitoring 
requirements. This action is being taken in accordance with the Clean 
Air Act.

DATES: This direct final rule will be effective April 15, 2008, unless 
EPA receives adverse comments by March 17, 2008. 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: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2006-0641 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2006-0641,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (mail code CAQ), 
Boston, MA 02114-2023.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2006-0641. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov, or e-
mail, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, One Congress 
Street, Suite 1100, Boston, MA. EPA requests that if at all possible, 
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
legal holidays.
    In addition to the publicly available docket materials available 
for inspection electronically in the Federal Docket Management System 
at www.regulations.gov, and the hard copy available at the Regional 
Office, which are identified in the ADDRESSES section of this Federal 
Register, copies of the state submittal and EPA's technical support 
document are also available for public inspection during normal 
business hours, by appointment at the State Air Agency; Massachusetts 
Department of Environmental Protection, Bureau of Waste Prevention, One 
Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone 
number (617) 918-1668, fax number (617) 918-0668, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose.
II. Addition of Emissions Monitoring Techniques for Longitudinal 
Ventilation.
III. New Requirement for an Air Emissions Monitoring Protocol.

[[Page 8819]]

IV. Final Action
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On July 12, 2006, the State of Massachusetts submitted a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
consists of technical revisions to 310 CMR 7.38, ``Certification of 
Tunnel Ventilation Systems in the Metropolitan Boston Air Pollution 
Control District.'' The technical revisions apply to the emissions 
monitoring section of the regulation at 310 CMR 7.38(8)(a) and define 
the emission monitoring requirements for systems that use longitudinal 
ventilation, as well as add the requirement for an ``Air Emissions 
Monitoring Protocol.'' A new subsection 310 CMR 7.38(1)(b) requires any 
tunnel ventilation system subject to a Federal New Source Performance 
Standard or National Emission Standard for Hazardous Air Pollutants to 
operate in compliance with those standards. A new section, 310 CMR 
7.38(10), ``Removal of Air Pollution Control and Monitoring 
Equipment,'' has been added to prohibit removal of air pollution 
control equipment, or monitoring equipment which has been installed in 
accordance with 310 CMR 7.38. In addition to the technical revisions, 
typographical errors are also being corrected in the existing 
regulation.
    The Certification of Tunnel Ventilation Systems in the Metropolitan 
Air Pollution Control District regulation, 310 CMR 7.38, was 
promulgated on January 18, 1991 and applies to the construction and 
operation of any tunnel ventilation system for highway projects 
constructed after January 1, 1991. On October 8, 1992, EPA approved 310 
CMR 7.38 as a revision to the Massachusetts SIP (57 FR 46310). In the 
final rule, EPA agreed with Massachusetts Department of Environmental 
Protection (MA DEP) that tunnel ventilation systems are not stationary 
sources subject to Prevention of Significant Deterioration (PSD) or to 
New Source Review (NSR) permitting requirements of the Clean Air Act 
(CAA), nor to Massachusetts' Plan Approval and Emissions Limitations 
regulation for stationary sources, 310 CMR 7.02.
    The purpose of the Certification of Tunnel Ventilation Systems 
regulation is to require certification that tunnel ventilation systems 
for highway projects in the Metropolitan Boston Air Pollution Control 
District (defined in 310 CMR 7.00) meet certain air quality 
requirements, thereby protecting public health and the environment. The 
regulation requires an initial, ``preconstruction'' certification, an 
operation certification (required 12-15 months after a project becomes 
fully operational), and re-certification every five years. In 
accordance with 310 CMR 7.38(2), the proponent must certify that the 
project will not: (a) Cause or exacerbate a violation of any National 
Ambient Air Quality Standard as set forth at 40 CFR part 50, or a 
Massachusetts Ambient Air Quality Standard as set forth at 310 CMR 
6.00; or (b) cause or exacerbate a violation of the MA DEP's one hour 
ambient NO2 guideline of 320 [mu]g/m\3\; or (c) result in an 
actual or projected increase in the total amount of non-methane 
hydrocarbons measured within the project area when compared with the 
no-build alternative.
    With this certification process approved as a SIP element, approval 
of individual certifications or conditions which require written 
approval by MA DEP will not require SIP revisions. This concept is 
included in the existing SIP-approved rule, and the recent revisions do 
not change this previously established process.

II. Addition of Emissions Monitoring Techniques for Longitudinal 
Ventilation

    During the late 1980s when the CA/T Project was initially planning 
and designing the ventilation system, the only Federal Highway 
Administration (FHWA) authorized tunnel ventilation system was the 
traditional ``full transverse ventilation.'' Therefore, when 310 CMR 
7.38 was promulgated in 1991, the emissions monitoring requirements 
were based on full transverse ventilation technology. In 1995, FHWA 
issued a memorandum entitled ``Mechanical Ventilation in Road Tunnels 
using Jet Fans'' authorizing applicable projects to use longitudinal 
ventilation with jet fan technology. The availability of this 
additional ventilation technology was neither anticipated nor provided 
for in 310 CMR 7.38(8).
    Following the FHWA authorization memo, the Central Artery/Third 
Harbor Tunnel (CA/T) project studied the supplementary use of 
longitudinal ventilation at several exit ramps as a cost saving 
measure. The CA/T Project subsequently filed a Notice of Project 
Change, and implemented longitudinal ventilation at eight exit ramps. 
Although longitudinal ventilation was approved for use on the CA/T 
Project, the resulting emission impacts at the eight exit ramp portals 
cannot be monitored using 40 CFR part 60 Continuous Emissions 
Monitoring (CEM) methods because those methods are designed to measure 
emissions from stacks, not exit ramp portals. The revised subsection 
7.38(8)(a) specifically requires emissions monitoring and recording 
equipment in tunnel roadway exit portals that utilize longitudinal 
ventilation.
    The revisions to the Certification of Tunnel Ventilation Systems 
regulation contain a revised set of allowable techniques and emissions 
monitoring approaches that incorporate elements of 40 CFR part 58--
Ambient Air Quality Surveillance, 40 CFR part 60--Standards of 
Performance for New Stationary Sources, 40 CFR part 75--Continuous 
Emission Monitoring, as well as statistical analysis, computer 
modeling, and innovative technologies. This ``hybrid'' approach to 
emission monitoring, which includes elements of ambient air quality 
monitoring and continuous emission monitoring, will provide more 
accurate monitoring of ambient emissions within the portal area 
environment which could not be conducted with the original stack 
monitoring approach under 40 CFR part 60, appendix B--Performance 
Specifications.

III. New Requirement for an Air Emissions Monitoring Protocol

    MA DEP has also revised the emissions monitoring requirements at 
310 CMR 7.38(8)(a) to require that any person who constructs and 
operates a tunnel ventilation system which is subject to the 
requirements of 310 CMR 7.38 shall, prior to commencing operation of 
the tunnel ventilation system or opening the project roadway for public 
use, develop and submit to the Department for review and approval an 
``Air Emissions Monitoring Protocol.'' This subsection requires that 
all emissions monitoring and recording equipment be installed and 
operated in accordance with the approved protocol. Lastly, this 
subsection allows the ``Air Emissions Monitoring Protocol'' to be 
modified with prior written approval of the Department. This allows 
flexibility so that as technological advances occur in contaminant and 
emissions monitoring, MA DEP will be able to modify the monitoring 
procedures without necessarily having to complete a regulatory revision 
process. Therefore, the regulation allows affected projects to 
periodically modify or update their air emission monitoring protocol 
with written approval of MA DEP.

IV. Final Action

    EPA has reviewed the revised rule and has found that it is 
consistent with requirements of the Clean Air Act. EPA is approving 
this rule because it will

[[Page 8820]]

improve emission monitoring techniques, allowing the state greater 
flexibility to assess and quantify emissions, for the roadway tunnel 
ventilation systems in the Boston Metropolitan Air Control District. 
EPA is approving Massachusetts amendments to 310 CMR 7.38, entitled 
``Certification of Tunnel Ventilation Systems in the Metropolitan 
Boston Air Pollution Control District,'' and incorporating this revised 
rule into the Massachusetts 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 April 15, 2008 without 
further notice unless the Agency receives relevant adverse comments by 
March 17, 2008.
    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. All 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 April 15, 2008 and no further action will be 
taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

V. Statutory and Executive Order Reviews

    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 Unfunded 
Mandates Reform Act of 1995 (Pub. L. 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 approves a state rule 
implementing a Federal standard.
    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 April 15, 2008. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: February 1, 2008.
Ira W. Leighton,
Acting 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 52.1120 is amended by adding paragraph (c)(134) to read as 
follows:

[[Page 8821]]

Sec.  52.1120  Identification of plan.

* * * * *
    (c) * * *
    (134) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on July 12, 2006.
    (i) Incorporation by reference.
    (A) Massachusetts Regulation 310 CMR 7.38, entitled ``Certification 
of Tunnel Ventilation Systems in the Metropolitan Boston Air Pollution 
Control District,'' effective in the Commonwealth of Massachusetts on 
December 30, 2005.
    (B) Massachusetts Regulation Filing, dated December 13, 2005, 
amending 310 CMR 7.38 entitled ``Certification of Tunnel Ventilation 
Systems in the Metropolitan Boston Air Pollution Control District.''
    (ii) Additional materials.
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated July 12, 2006, submitting a revision to the 
Massachusetts State Implementation Plan.

0
3. In Sec.  52.1167, Table 52.1167 is amended by adding two new 
citations to the existing entry for 310 CMR 7.38 to read as follows:


Sec.  52.1167  EPA-approved Massachusetts State regulations.

* * * * *

                              Table 52.1167--EPA-Approved Massachusetts Regulations
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                                          Date          Date          Federal                       Comments/
   State citation     Title/subject   submitted by   approved by      Register      52.1120(c)      unapproved
                                          State          EPA          citation                       sections
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
310 CMR 7.38.......  Tunnel vent           7/12/06       2/15/08  [Insert Federal           134  Amendments to
                      certification                                Register page                  Certification
                      regulation.                                  number where                   of Tunnel
                                                                   the document                   Ventilation
                                                                   begins].                       Systems in the
                                                                                                  Metropolitan
                                                                                                  Boston Air
                                                                                                  Pollution
                                                                                                  Control
                                                                                                  District.
                                           7/12/06       2/15/08  [Insert Federal           134  Massachusetts
                                                                   Register page                  Regulation
                                                                   number where                   Filing, dated
                                                                   the document                   December 13,
                                                                   begins].                       2005,
                                                                                                  substantiating
                                                                                                  December 30,
                                                                                                  2005, State
                                                                                                  effective date
                                                                                                  for amended
                                                                                                  310 CMR 7.38
                                                                                                  ``Certificatio
                                                                                                  n of Tunnel
                                                                                                  Ventilation
                                                                                                  Systems in the
                                                                                                  Metropolitan
                                                                                                  Boston Air
                                                                                                  Pollution
                                                                                                  Control
                                                                                                  District.''
 
                                                  * * * * * * *
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Notes:
1. This table lists regulations adopted as of 1972. It does not depict regulatory requirements which may have
  been part of the Federal SIP before this date.
2. The regulations are effective statewide unless stated otherwise in comments or title section.

[FR Doc. E8-2745 Filed 2-14-08; 8:45 am]
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