[Federal Register Volume 73, Number 181 (Wednesday, September 17, 2008)]
[Rules and Regulations]
[Pages 53718-53721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21486]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 55

[EPA-R01-OAR-2008-0112; A-1-FRL-8709-4]


Outer Continental Shelf Air Regulations Consistency Update for 
Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the updates of the Outer Continental Shelf 
(OCS) Air Regulations proposed in the Federal Register on February 27, 
2008. Requirements applying to OCS sources located within 25 miles of 
states' seaward boundaries must be updated periodically to remain 
consistent with the requirements of the corresponding onshore area 
(COA), as mandated by section 328(a)(1) of the Clean Air Act Amendments 
of 1990 (the Act). The portion of the OCS air regulations that is being 
updated pertains to the requirements for OCS sources in the 
Commonwealth of Massachusetts. The intended effect of approving the OCS 
requirements for the Commonwealth of Massachusetts is to regulate 
emissions from OCS sources in accordance with the requirements onshore.

DATES: Effective Date: This rule is effective on October 17, 2008. The 
incorporation by reference of certain publications listed in this rule 
is approved by the Director of the Federal Register as of October 17, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2008-0112. All documents in the docket 
are listed on the www.regulations.gov Web site. 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 through 
www.regulations.gov or in hard copy at the 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.

FOR FURTHER INFORMATION CONTACT: Ida E. McDonnell, Air Permits, Toxics 
and Indoor Air Unit, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, Suite 1100 (CAP), Boston, 
MA 02114-2023, telephone number (617) 918-1653, fax number (617) 918-
0653, 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
II. Public Comment
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 328(a) of the Clean Air Act (the Act) requires that EPA 
establish requirements to control air pollution from OCS sources 
located within 25 miles of states' seaward boundaries that are the same 
as onshore requirements. To comply with this statutory mandate, EPA 
must incorporate applicable rules of the corresponding onshore area 
(COA) into 40 CFR part 55.
    On February 27, 2008 (73 FR 10406), EPA proposed to incorporate 
various Massachusetts air pollution control requirements into 40 CFR 
part 55. These requirements are being promulgated in response to the 
submittal of a Notice of Intent (NOI) on December 7, 2007 by Cape Wind 
Associates, LLC of Boston, Massachusetts. EPA has evaluated the 
proposed requirements to ensure that they are rationally related to the 
attainment or maintenance of federal or state ambient air quality 
standards or Part C of title I of the Act, that they are not designed 
expressly to prevent exploration and development of the OCS and that 
they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated 
the rules to ensure that they are not arbitrary or capricious. 40 CFR 
55.12(e). In addition, EPA has excluded administrative or procedural 
rules.
    Section 328(a) of the Act and 40 CFR part 55 limit EPA's 
flexibility in deciding which requirements will be incorporated into 
part 55 and prevent

[[Page 53719]]

EPA from making substantive changes to the requirements it 
incorporates. As a result, EPA may be incorporating rules into part 55 
that do not conform to all of EPA's state implementation plan (SIP) 
guidance or certain requirements of the Act. Consistency updates may 
result in the inclusion of state or local rules or regulations into 
part 55, even though the same rules may ultimately be disapproved for 
inclusion as part of the SIP. Inclusion in the OCS rule does not imply 
that a rule meets the requirements of the Act for SIP approval, nor 
does it imply that the rule will be approved by EPA for inclusion in 
the SIP.

II. Public Comment

    EPA received comments on the proposed consistency update from Cape 
Wind Associates. Summaries of those comments and EPA's responses are as 
follows.
    Comment: Cape Wind Associates (CWA) recognizes EPA's approach to 
the consistency review is to include all state requirements that could 
potentially apply to any OCS source. CWA wants EPA to confirm that the 
ultimate applicability of any specific rule to Cape Wind is to be 
determined on a case-by-case basis, consistent with the unique 
attributes of each OCS source, COA and the mandate to attain and 
maintain ambient air quality.
    Response: Section 328 of the Act requires that for sources located 
within 25 miles of a state's seaward boundary, the requirements shall 
be the same as would be applicable if the sources were located in the 
corresponding onshore area. EPA's action specifies the OCS requirements 
that will apply to any OCS source for which Massachusetts is the COA. 
The intended effect of approving the OCS requirements is to regulate 
emissions from OCS sources in accordance with the requirements onshore, 
to the extent those requirements are applicable to OCS sources and as 
modified by the requirements of section 328 and 40 CFR part 55. In 
updating 40 CFR part 55, EPA reviewed the Commonwealth's rules to 
ensure that they are rationally related to the attainment or 
maintenance of federal or state ambient air quality standards or part C 
of title I of the Act, that they are not designed expressly to prevent 
exploration and development of the OCS and that they are applicable to 
OCS sources. By contrast, when permitting a source, EPA determines 
which requirements apply to that source. Therefore, upon receipt of a 
permit application for any proposed OCS source (including Cape Wind), 
EPA will determine which of the regulations included in part 55 apply 
to that OCS source.
    Comment: CWA would like EPA in the consistency update to devote 
substantial attention to the nature and environmental policy 
implications of the type of construction-stage sources presented in the 
NOI, and the subsequent and resulting benefits of an operating 
renewable energy project to air quality attainment and maintenance.
    Response: As stated above, the purpose of the consistency update is 
to establish OCS requirements that regulate emissions from OCS sources 
in accordance with the requirements onshore. Although the proposed 
consistency update was triggered by Cape Wind's Notice of Intent, a 
part 55 consistency update applies not just to the OCS source 
identified in the Notice of Intent, but rather any source located in 
the OCS for which the identified onshore area (in this case, 
Massachusetts) is the COA. Consequently, EPA does not consider the 
characteristics of particular proposed OCS sources in determining which 
state requirements are applicable on the OCS.
    Comment: CWA suggests in its comments that the consistency update 
may conflict with regulations currently being developed by the Minerals 
Management Service (``MMS'') pursuant to the Energy Policy Act of 2005 
(Pub. L. 109-58, codified in relevant part at 43 U.S.C. 1337(p)). CWA 
expresses general concern with the prospect of inconsistent regulatory 
actions and comments that the consistency update should be treated as a 
``significant regulatory action'' under Executive Order 12866 (58 FR 
51735) and a ``significant energy action'' under Executive Order 13211 
(66 FR 28355).
    Response: EPA has considered the potential for the consistency 
update to conflict with the actions of MMS and determined that the 
consistency update does not meet the definition of significant 
regulatory action under section 3 of Executive Order 12866 because it 
is not likely to ``[c]reate a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.''
    The consistency update simply updates the existing requirements for 
controlling air pollution from OCS sources to make them consistent with 
rules in the corresponding onshore areas as specifically required by 
section 328 of the Act. This action is not discretionary on the part of 
EPA. The authority of MMS to regulate leases, easements, or rights-of-
way on the outer continental shelf that ``produce or support [the] 
production, transportation, or transmission of energy from sources 
other than oil or natural gas'' under the Energy Policy Act of 2005 
does not present a conflict. See 43 U.S.C. 1337(p)(1)(C). The Energy 
Policy Act explicitly states that ``[n]othing in this subsection 
displaces, supersedes, limits, or modifies the jurisdiction, 
responsibility, or authority of any Federal or State agency under any 
other Federal law.'' 43 U.S.C. 1337(p)(9). As EPA is required by the 
Clean Air Act to issue the consistency update, the consistency update 
is enacted under an authority not displaced by the authority granted to 
the MMS and no actual conflict will occur.
    Since EPA proposed its consistency update, MMS has issued its 
proposed regulations. See Alternative Energy and Alternate Uses of 
Existing Facilities on the Outer Continental Shelf, 73 FR 39376 (July 
9, 2008). EPA has found no possible conflict between this action and 
MMS's proposed regulations. Indeed, MMS's proposed rule specifically 
states that proposed OCS sources (other than those in the western Gulf 
of Mexico, for which MMS itself establishes the air pollution 
requirements) must comply with the Act and 40 CFR part 55. See 73 FR at 
39384, 39429, 39431, 39498. Consequently, there is no conflict. Because 
the consistency update will not conflict with actions taken by MMS 
pursuant to the Energy Policy Act of 2005, the consistency update is 
not an ``inconsistent, incompatible, or duplicative'' regulation and is 
not rendered a significant regulatory action under Executive Order 
12866.
    Executive Order 13211 outlines additional procedures to be followed 
when a regulation is both a significant regulatory action under 
Executive Order 12866 and is either ``likely to have a significant 
adverse effect on the supply, distribution, or use of energy,'' or is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs. Since the consistency update is not a significant 
regulatory action under Executive Order 12866, it is not a significant 
energy action under Executive Order 13211.
    Finally, even if the consistency update were a significant 
regulatory action under Executive Order 12866, EPA has no reason to 
believe that updating the existing requirements for controlling air 
pollution from outer continental shelf sources to make them consistent 
with rules already applied to sources in the corresponding onshore 
areas would be ``likely to have a significant adverse effect on the 
supply, distribution, or use of energy'' within the meaning of section 
4(b)(1)(ii) of

[[Page 53720]]

Executive Order 13211. Therefore, even if the consistency update were a 
significant regulatory action under Executive Order 12866, it would not 
be a significant energy action under Executive Order 13211.

III. EPA Action

    In this document, EPA takes final action to incorporate the 
proposed changes into 40 CFR part 55. No changes were made to the 
proposed action. EPA is approving the proposed action under section 
328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act 
requires that EPA establish requirements to control air pollution from 
OCS sources located within 25 miles of states' seaward boundaries that 
are the same as onshore requirements. To comply with this statutory 
mandate, EPA must incorporate applicable onshore rules into part 55 as 
they exist onshore.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to establish 
requirements to control air pollution from OCS sources located within 
25 miles of States' seaward boundaries that are the same as onshore air 
control requirements. To comply with this statutory mandate, EPA must 
incorporate applicable onshore rules into part 55 as they exist 
onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS 
consistency updates, EPA's role is to maintain consistency between OCS 
regulations and the regulations of onshore areas, provided that they 
meet the criteria of the Clean Air Act. Accordingly, this action simply 
updates the existing OCS requirements to make them consistent with 
requirements onshore, without the exercise of any policy discretion by 
EPA. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it does 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, nor does it impose 
substantial direct compliance costs on tribal governments, nor preempt 
tribal law.
    Under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq., OMB has approved the information collection requirements 
contained in 40 CFR part 55 and, by extension, this update to the 
rules, and has assigned OMB control number 2060-0249. Notice of OMB's 
approval of EPA Information Collection Request (``ICR'') No. 1601.06 
was published in the Federal Register on March 1, 2006 (71 FR 10499-
10500). The approval expires January 31, 2009. As EPA previously 
indicated (70 FR 65897-65898 (November 1, 2005)), the annual public 
reporting and recordkeeping burden for collection of information under 
40 CFR part 55 is estimated to average 549 hours per response. Burden 
means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9 and are identified on 
the form and/or instrument, if applicable. In addition, the table in 40 
CFR part 9 of currently approved OMB control numbers for various 
regulations lists the regulatory citations for the information 
requirements contained in 40 CFR part 55.
    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 action 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 November 17, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 55

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Continental Shelf, Incorporation by reference, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.


[[Page 53721]]


    Dated: August 18, 2008.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.

0
For the reasons stated in the preamble, title 40, chapter I of the Code 
of Federal Regulations, is amended as follows:

PART 55--[AMENDED]

0
1. The authority citation for part 55 continues to read as follows:

    Authority: Section 328 of the Act (42 U.S.C. 7401, et seq.) as 
amended by Public Law 101-549.


0
2. Section 55.14 is amended as follows:
0
a. By adding paragraph (d)(11).
0
b. In paragraph (e) introductory text by adding a new address after the 
words ``regional offices:''.
0
c. By adding paragraph (e)(11).


Sec.  55.14  Requirements that apply to OCS sources located within 25 
miles of States' seaward boundaries, by State.

* * * * *
    (d) * * *
    (11) Massachusetts.
    (i) 40 CFR part 52, subpart W.
    (ii) [Reserved]
* * * * *
    (e) * * * U.S.EPA, Region 1 (Massachusetts) One Congress Street, 
Boston, MA 02114-2023 * * *
* * * * *
    (11) Massachusetts.
    (i) State requirements.
    (A) Commonwealth of Massachusetts Requirements Applicable to OCS 
Sources, December 28, 2007.
    (B) [Reserved]
    (ii) Local requirements.
    (A) [Reserved]
* * * * *
0
3. Appendix A to CFR part 55 is amended by adding an entry for 
Massachusetts in alphabetical order to read as follows:

Appendix A to Part 55--Listing of State and Local Requirements 
Incorporated by Reference Into Part 55, by State

* * * * *
    Massachusetts
    (a) State requirements.
    (1) The following Commonwealth of Massachusetts requirements are 
applicable to OCS Sources, December 28, 2007, Commonwealth of 
Massachusetts--Department of Environmental Protection. The following 
sections of 310 CMR 4.00, 310 CMR 6.00, 310 CMR 7.00 and 310 CMR 
8.00:

310 CMR 4.00: Timely Action Schedule and Fee Provisions

Section 4.01: Purpose, Authority and General Provisions (Effective 
10/19/2007)
Section 4.02: Definitions (Effective 10/19/2007)
Section 4.03: Annual Compliance Assurance Fee (Effective 10/19/2007)

310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of 
Massachusetts

Section 6.01: Definitions (Effective 12/28/2007)
Section 6.02: Scope (Effective 12/28/2007)
Section 6.03: Reference Conditions (Effective 12/28/2007)
Section 6.04: Standards (Effective 12/28/2007)

310 CMR 7.00: Air Pollution Control

Section 7.00: Statutory Authority; Legend; Preamble; Definitions 
(Effective 12/28/2007)
Section 7.01: General Regulations to Prevent Air Pollution 
(Effective 12/28/2007)
Section 7.02: U Plan Approval and Emission Limitations (Effective 
12/28/2007)
Section 7.03: U Plan Approval Exemptions: Construction Requirements 
(Effective 12/28/2007)
Section 7.04: U Fossil Fuel Utilization Facilities (Effective 12/28/
2007)
Section 7.05: U Fuels All Districts (Effective 12/28/2007)
Section 7.06: U Visible Emissions (Effective 12/28/2007)
Section 7.07: U Open Burning (Effective 12/28/2007)
Section 7.08: U Incinerators (Effective 12/28/2007)
Section 7.09: U Dust, Odor, Construction and Demolition (Effective 
12/28/2007)
Section 7.11: U Transportation Media (Effective 12/28/2007)
Section 7.12: U Source Registration (Effective 12/28/2007)
Section 7.13: U Stack Testing (Effective 12/28/2007)
Section 7.14: U Monitoring Devices and Reports (Effective 12/28/
2007)
Section 7.15: U Asbestos (Effective 12/28/2007)
Section 7.18: U Volatile and Halogenated Organic Compounds 
(Effective 12/28/2007)
Section 7.19: U Reasonably Available Control Technology (RACT) for 
Sources of Oxides of Nitrogen (NOX) (Effective 12/28/
2007)
Section 7.21: Sulfur Dioxide Emissions Limitations (Effective 12/28/
2007)
Section 7.22: Sulfur Dioxide Emissions Reductions for the Purpose of 
Reducing Acid Rain (Effective 12/28/2007)
Section 7.24: U Organic Material Storage and Distribution (Effective 
12/28/2007)
Section 7.25: U Best Available Controls for Consumer and Commercial 
Products (Effective 12/28/2007)
Section 7.26: Industry Performance Standards (Effective 12/28/2007)
Section 7.27: NOX Allowance Program (Effective 12/28/
2007)
Section 7.28: NOX Allowance Trading Program (Effective 
12/28/2007)
Section 7.29: Emissions Standards for Power Plants (Effective 12/28/
2007)
Section 7.60: U Severability (Effective 12/28/2007)
Section 7.00: Appendix A (Effective 12/28/2007)
Section 7.00: Appendix B (Effective 12/28/2007)
Section 7.00: Appendix C (Effective 12/28/2007)

310 CMR 8.00: The Prevention and/or Abatement of Air Pollution Episode 
and Air Pollution Incident Emergencies

Section 8.01: Introduction (Effective 12/28/2007)
Section 8.02: Definitions (Effective 12/28/2007)
Section 8.03: Air Pollution Episode Criteria (Effective 12/28/2007)
Section 8.04: Air Pollution Episode Potential Advisories (Effective 
12/28/2007)
Section 8.05: Declaration of Air Pollution Episodes and Incidents 
(Effective 12/28/2007)
Section 8.06: Termination of Air Pollution Episodes and Incident 
Emergencies (Effective 12/28/2007)
Section 8.07: Emission Reductions Strategies (Effective 12/28/2007)
Section 8.08: Emission Reduction Plans (Effective 12/28/2007)
Section 8.15: Air Pollution Incident Emergency (Effective 12/28/
2007)
Section 8.30: Severability (Effective 12/28/2007)
(2) [Reserved]
* * * * *
[FR Doc. E8-21486 Filed 9-16-08; 8:45 am]
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