[Federal Register Volume 78, Number 31 (Thursday, February 14, 2013)]
[Proposed Rules]
[Pages 10583-10589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03472]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2013-0028; A-1-FRL-9779-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Reasonably Available Control Technology for the 1997 8-
Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing approval of State Implementation Plan (SIP) 
revisions submitted by the State of Massachusetts. These SIP revisions 
consist of a demonstration that Massachusetts meets the requirements of 
reasonably available control technology for oxides of nitrogen 
(NOX) and volatile organic compounds (VOC) set forth by the 
Clean Air Act with respect to the 1997 8-hour ozone standard. 
Additionally, we are proposing approval of updates to two existing 
regulations limiting emissions of volatile organic compounds. This 
action is being taken in accordance with the Clean Air Act.

DATES: Written comments must be received on or before March 18, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2013-0028 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2013-0028,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail Code OEP05-2), Boston, MA 
02109--3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, U.S. Environmental Protection 
Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
(mail Code OEP05-2), Boston, MA 02109--3912. 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-
2013-0028. 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 
email, 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 email 
comment directly to EPA without going through www.regulations.gov your 
email 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

[[Page 10584]]

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, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
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, copies of the State submittals are also available for 
public inspection during normal business hours, by appointment at the 
Division of Air Quality Control, Massachusetts Department of 
Environmental Protection, One Winter Street, 8th Floor, Boston, MA 
02108.

FOR FURTHER INFORMATION CONTACT: Bob McConnell, Air Quality Planning 
Unit, U.S. Environmental Protection Agency, EPA New England Regional 
Office, 5 Post Office Square, Suite 100 (Mail Code: OEP05-2), Boston, 
MA 02109-3912, telephone number (617) 918-1046, fax number (617) 918-
0046, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Additionally, the phrase ``the 
Commonwealth'' refers to the state of Massachusetts. The following 
outline is provided to aid in locating information in this preamble.

I. Background and Purpose
II. Summary of Massachusetts' SIP Revisions
III. EPA's Evaluation of Massachusetts' SIP Revisions
    a. Evaluation of VOC Requirements
    b. Evaluation of NOX Requirements
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On January 31, 2008, the State of Massachusetts submitted a formal 
revision to its SIP. The SIP revision consists of information 
documenting how Massachusetts complied with the reasonably available 
control technology (RACT) requirements for the 1997 8-hour ozone 
standard.\1\ Additionally, on June 1, 2010, Massachusetts submitted 
updates to two regulations that limit volatile organic compound (VOC) 
emissions, one of which further restricted emissions from pressure-
vacuum (PV) valves used by gasoline service stations, and another that 
updates an existing regulation limiting VOC emissions from solvent 
cleaning operations. The Commonwealth's submittals requested that they 
be incorporated into the Massachusetts SIP.
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    \1\ The Commonwealth's submittal was made to address RACT for 
the 1997 8-hour ozone standard and does not address the 2008 8-hour 
ozone standard of 0.075 parts per million.
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    Sections 172(c)(1) and 182(b)(2) of the Clean Air Act (CAA) require 
states to implement RACT in areas classified as moderate (and higher) 
non-attainment for ozone, while section 184(b)(1)(B) of the Act 
requires RACT in states located in the ozone transport region (OTR). 
Specifically, these areas are required to implement RACT for all major 
VOC and NOX emissions sources and for all sources covered by 
a Control Techniques Guideline (CTG). A CTG is a document issued by EPA 
which establishes a ``presumptive norm'' for RACT for a specific VOC 
source category. A related set of documents, Alternative Control 
Techniques (ACT) documents, exists primarily for NOX control 
requirements. States must submit rules or negative declarations for CTG 
source categories, but not for sources in ACT categories. However, RACT 
must be imposed on major sources of NOX, and some of those 
major sources may be within a sector covered by an ACT document.
    In 1997, EPA revised the health-based National Ambient Air Quality 
Standards (NAAQS) for ozone, setting it at 0.08 parts per million (ppm) 
averaged over an 8-hour time frame. EPA set the 8-hour ozone standard 
based on scientific evidence demonstrating that ozone causes adverse 
health effects at lower ozone concentrations and over longer periods of 
time than was understood when the pre-existing 1-hour ozone standard 
was set. EPA determined that the 8-hour standard would be more 
protective of human health, especially with regard to children and 
adults who are active outdoors and individuals with a pre-existing 
respiratory disease such as asthma. On April 30, 2004 (69 FR 23858), 
EPA designated areas attainment or nonattainment with respect to the 
1997 8-hour ozone standard. The entire state of Massachusetts was 
designated nonattainment and classified as moderate, as two 
nonattainment areas. See 40 CFR 81.322.
    On November 29, 2005, EPA published a final rule in the Federal 
Register that outlined the obligations that areas found to be in 
nonattainment of the 1997 8-hour ozone standard needed to address (see 
70 FR 71612). This rule, referred to as the ``Phase 2 Implementation 
rule,'' contained, among other things, a description of EPA's 
expectations for states with RACT obligations. The Phase 2 
Implementation rule indicated that states could meet RACT through the 
establishment of new or more stringent requirements that meet RACT 
control levels, through a certification that previously adopted RACT 
controls in their SIP approved by EPA under the 1-hour ozone NAAQS 
represent adequate RACT control levels for 8-hour attainment purposes, 
or with a combination of these two approaches. In addition, a State 
must submit a negative declaration in instances where there are no CTG 
sources.

II. Summary of Massachusetts' SIP Revisions

    On January 31, 2008, Massachusetts submitted a demonstration that 
its regulatory framework for stationary sources meets the criteria for 
RACT as defined in EPA's Phase 2 Implementation rule. The Commonwealth 
held a public hearing on the RACT program on January 18, 2008. 
Massachusetts' RACT submittal notes that its prior statewide 
designation as nonattainment for the 1-hour ozone standard resulted in 
the adoption of stringent controls for major sources of VOC and 
NOX, including RACT level controls. Therefore, as allowed 
for within EPA's Phase 2 Implementation rule, much of the 
Commonwealth's submittal consists of a review of RACT controls adopted 
under the 1-hour ozone standard and an indication of whether those 
previously adopted controls still represent RACT under the 1997 ozone 
standard. Additionally, Massachusetts notes that as a member state of 
the Ozone Transport Commission (OTC) it works with that organization to 
identify and adopt, as deemed appropriate, regulations on additional 
VOC and NOX categories beyond those for which EPA has issued 
CTGs or ACT documents.

[[Page 10585]]

    With regard to VOC controls, the Commonwealth's submittal 
identifies the specific control measures that have been previously 
adopted to control emissions from VOC sources, reaffirms negative 
declarations for some CTG categories, and describes updates being 
considered to strengthen three VOC control regulations to ensure that 
they will continue to represent RACT under the 1997 ozone standard. A 
table named ``Table RACT-1'' within Massachusetts' submittal contains a 
summary of the state's response to each of the CTG categories that EPA 
issued through 2006.\2\ The table identifies the specific state rule, 
where relevant, that is in place, and the date that EPA approved the 
rule into the Massachusetts SIP. A table labeled ``Table RACT-2'' 
within the Commonwealth's submittal identifies the major VOC sources in 
the state that are not covered by an ACT or CTG document. The state has 
issued source-specific orders containing control requirements for the 
facilities listed in Table RACT-2 of the state's submittal, and all of 
these have been previously approved into the Massachusetts SIP.
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    \2\ This rulemaking does not address Massachusetts' response to 
the CTGs that EPA issued in 2006, 2007, and 2008.
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    The Commonwealth's submittal notes that no sources exist in the 
state for some CTG categories. Specifically, Table RACT-1 of 
Massachusetts' submittal makes negative declarations for the following 
CTG sectors:
    1. Refinery Vacuum Producing Systems, Wastewater Separators, and 
Process Unit Turnarounds;
    2. Leaks from Petroleum Refinery Equipment;
    3. Manufacture of Synthetic Pharmaceutical Products;
    4. Manufacture of Pneumatic Rubber Tires;
    5. Large Petroleum Dry Cleaners;
    6. Manufacture of High-Density Polyethylene, Polypropylene and 
Polystyrene Resins;
    7. Natural Gas/Gasoline Process Leaks;
    8. Synthetic Organic Chemical Manufacturing Air Oxidation 
Processes; and
    9. Ship Building and Repair.
    Massachusetts' review of its control program for sources of VOC 
concludes that, with the adoption of revised rules for solvent 
cleaning, Stage II vehicle refueling, and cutback asphalt, all required 
VOC sources in the state are subject to RACT.
    As required, the Commonwealth's submittal addresses NOX 
emissions as well as VOC emissions. In their submittal, the 
Commonwealth explains that in order to address the 1990 CAA 
NOX RACT requirement, Massachusetts adopted 310 CMR 7.19, 
``Reasonably Available Control Technology (RACT) for Sources of Oxides 
of Nitrogen (NOX).'' This rule established NOX 
RACT for large, medium and small boilers; stationary combustion 
turbines; stationary reciprocating internal combustion engines; and 
glass melting furnaces. In addition, they describe that 310 CMR 
7.19(12) provided for single source NOX RACT determinations 
for major ``miscellaneous'' NOX sources with a potential to 
emit 50 tons or more per year of NOX. Massachusetts explains 
that they have reviewed 310 CMR 7.19 and, in general, have determined 
that the NOX controls required by 310 CMR 7.19 continue to 
constitute NOX RACT under the 1997 8-hour ozone standard for 
each of the source categories covered by that rule, as well as for 
major sources of NOX for which single-source RACT 
determinations were made pursuant to 310 CMR 7.19(12). Additionally, 
the Commonwealth certifies in Tables RACT-1 and RACT-2 that current 
Massachusetts NOX RACT constitutes 8-hour NOX 
RACT under the 1997 ozone standard for the NOX categories 
listed and for the facilities for which single-source RACT 
determinations were made.
    Within their submittal, the Commonwealth notes that certain 
NOX emitting sectors are controlled by additional sections 
of Massachusetts' air pollution control regulations. First, 
Massachusetts notes that electric generation units (EGUs) and large 
industrial boilers, in addition to requirements contained within 310 
CMR 7.19, are also covered by 310 CMR 7.28, ``NOX Allowance 
Trading Program,'' and 310 CMR 7.32, ``Massachusetts Clean Air 
Interstate Rule (Mass CAIR).'' In addition, Massachusetts notes that a 
subset of the largest fossil fuel-fired EGUs in Massachusetts are also 
subject to NOX emission limitations under 310 CMR 7.29, 
``Emissions Standards for Power Plants,'' adopted in 2001. Lastly, the 
Commonwealth notes that municipal waste combustors, in addition to 
requirements contained within 310 CMR 7.19, are also covered by 310 CMR 
7.08, ``Incinerators.''
    Massachusetts' review of its control program for major sources of 
VOC and NOX thus concludes that, with the adoption of 
revised rules for solvent cleaning, Stage II vehicle refueling, and 
cutback asphalt, all major sources in the state are subject to RACT 
under the 1997 ozone standard.

III. EPA's Evaluation of Massachusetts' SIP Revisions

    EPA has reviewed Massachusetts' determination that it has adopted 
VOC and NOX control regulations for stationary sources that 
constitute RACT, and determined that the set of regulations cited by 
the Commonwealth constitute RACT for purposes of the 1997 8-hour ozone 
standard. Additionally, we are proposing to approve updates to two VOC 
RACT regulations submitted by Massachusetts on June 1, 2010.

a. Evaluation of VOC Requirements

    Massachusetts' submittal documents the set of VOC control 
regulations that have been adopted to ensure that RACT level controls 
are required in the state. These requirements include: 310 CMR 7.18, 
``Volatile and Halogenated Organic Compounds;'' and 310 CMR 7.24, 
``Organic Material Storage and Distribution.'' Table RACT-1 of the 
Commonwealth's submittal indicates that Massachusetts has either 
adopted a regulation that has been incorporated into the SIP to address 
EPA's pre-2006 CTGs, or submitted a negative declaration in instances 
where no facilities exist in the state for certain CTGs identified in 
the submittal. Massachusetts' review of these VOC RACT regulations 
revealed that several could be strengthened in order to continue to 
meet RACT, and we address the disposition of those updates further 
below.
    Additionally, Massachusetts has adopted numerous single source RACT 
orders for major sources of VOC that are not covered by one of EPA's 
CTGs, and these orders have been submitted to EPA and incorporated into 
the SIP. They are identified within the Commonwealth's submittal in 
Table RACT-2. Also, as noted above, Massachusetts adopted, and we are 
proposing to approve into the Massachusetts SIP, updates to two 
existing VOC RACT rules, namely the state's existing solvent metal 
cleaning and Stage II motor vehicle refueling regulations.
    The Commonwealth's submittal documents a substantial downward trend 
in VOC emissions from stationary sources, a portion of which is 
attributable to RACT controls implemented by Massachusetts. Data 
collected by Massachusetts from its annual survey of industrial point 
source emitters reveals that between 1996 and 2002, VOC emissions from 
industrial point sources declined by 63%. This decline in emissions was 
brought about,

[[Page 10586]]

in part, by the RACT program implemented by Massachusetts.
    We are proposing approval of updates to the following two VOC RACT 
regulations described below, which Massachusetts has strengthened such 
that they continue to represent RACT under the 1997 ozone standard. 
Although Massachusetts's RACT certification submittal indicates that 
three existing VOC rules were to be updated in such fashion, only two 
were updated. Massachusetts updated its existing rules limiting 
emissions from solvent cleaning (metal degreasing) and emissions from 
storage tanks at gasoline service stations, but did not update its 
existing cutback asphalt regulation. These three regulations are 
discussed individually, as follows.
Solvent Degreasing Rule
    Massachusetts updated its previously SIP-approved (58 FR 34911) 
solvent cleaning rule primarily to include a new requirement limiting 
the vapor pressure for cold cleaning solvents, as recommended within 
the Ozone Transport Commission's (OTC's) 2001 model rule for this 
activity. The requirement applies to cold cleaning degreasers that hold 
more than one liter of solvent. The Commonwealth's proposed revision 
includes exemptions for cold cleaning degreasers used in special and 
extreme metal cleaning, for devices located in a permanent total 
enclosure with an overall VOC control efficiency of at least 90 
percent, and for facilities that receive an approval from the 
Department of Environmental Protection (DEP) to use a non-compliant 
solvent due to unsafe operating conditions. We note that with the new 
vapor pressure limit, the revised rule is more stringent than the 
previously SIP-approved version of the rule. In particular, 
Massachusetts estimated that the revised rule would reduce VOC 
emissions by 7 tons per summer day in 2009 compared to the previously 
regulated levels.\3\ Therefore, the revised rule meets the requirements 
of section 193 of the CAA, which provides that ``[n]o control 
requirement in effect * * * before November 15, 1990, in any area which 
is a nonattainment area for any air pollutant may be modified after 
November 15, 1990, in any manner unless the modification insures 
equivalent or greater emission reductions of such air pollutant.'' For 
similar reasons, the revisions meets the requirements of section 110(l) 
of the CAA, which prohibits EPA from approving a SIP revision ``if the 
revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress * * * or any other 
applicable requirement of [the Clean Air Act].'' Additionally, we note 
that the limited number of exemptions from the new vapor pressure 
requirement is acceptable given that this requirement is above and 
beyond the RACT recommendation within the EPA's CTG \4\ for this source 
category.
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    \3\ See ``Background Information and Technical Support Document 
for Proposed Amendments To 310 CMR 7.00 et seq., 310 CMR 7.18, 
Volatile and Halogenated Organic Compounds, Solvent Metal 
Degreasing,'' Massachusetts Department of Environmental Protection, 
October 17, 2008, available in the docket for this rulemaking.
    \4\ See ``Control of Volatile Organic Emissions from Solvent 
Metal Cleaning,'' EPA-450/2-77-022; 1977/11.
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Stage II Rule
    The Commonwealth updated its previously adopted, SIP-approved (65 
FR 78974) Stage II Vapor Recovery regulation, 310 CMR 7.24(6), 
primarily to require the use of PV vent caps on vapor balance systems 
installed on underground gasoline storage tanks to further reduce 
evaporative emissions from vehicle refueling. A number of additional 
updates were also made to the rule, including the following items.
    The Commonwealth revised definitions for the terms ``isolate,'' 
``minor modification,'' ``routine maintenance,'' and ``substantial 
modification,'' and also proposed new language clarifying requirements 
that ensure timely repair of Stage II systems. Massachusetts 
incorporated requirements that compel compliance testing companies to 
notify the DEP of any facilities that fail a compliance test, and also 
revised existing requirements for compliance testing companies.
    Experience gained from operation of the Stage II program revealed 
that the compliance benefit attributed to the 120 day in-use compliance 
testing and certification requirement for vacuum assist systems could 
be achieved by the weekly visual and annual compliance testing 
requirement, and so the Commonwealth eliminated the 120 day in-use 
compliance testing requirement. Additionally, Massachusetts' revisions 
include an allowance for a facility to commence operation immediately 
upon passing applicable testing requirements.
    When Massachusetts initially adopted its Stage II rule in 1989, it 
adopted a more stringent applicability level than subsequently required 
by the CAA amendments of 1990 \5\ that resulted in essentially all 
dispensing of gasoline to be subject to the regulation. Because of 
this, very small levels of gasoline dispensing activity such as that 
which occurs at salvage yards was covered by the regulation. Therefore, 
the Commonwealth's revised rule exempts motor vehicle salvage yards 
that dispense recovered fuel on-site to employee vehicles. By including 
this exemption, Massachusetts believes that the air quality protections 
afforded by the rule will not be adversely affected. Given the minimal 
amount of gasoline that will receive this exemption in comparison to 
the statewide use of motor vehicle fuel, we agree with the 
Commonwealth's conclusion.
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    \5\ Section 182(b)(3) of the CAA requires Stage II controls at 
gasoline dispensing facilities which dispense 10,000 gallons or more 
per month or 50,000 gallons per month in the case of independent 
small business marketers.
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    The Commonwealth's revisions to the Stage II regulation include 
several provisions relating to requirements put in place by the 
California Air Resources Board (CARB). These include an allowance for 
the installation of CARB approved above ground storage tanks, 
references to CARB Stage II approval letters, and an update to the list 
of CARB approved Stage II systems to incorporate recently adopted CARB 
Executive Orders.
    Massachusetts also made a number of minor revisions to existing 
recordkeeping and testing requirements applicable to Stage II system 
operators. We note that, with the addition of the new PV vent valve 
requirements, the revised rule is more stringent than the previously 
SIP-approved rule, even after accounting for the new exemption for 
motor vehicle salvage yards that dispense recovered fuel on-site to 
employee vehicles. Therefore, the revision meets the requirements of 
section 110(l) of the CAA.
    The Commonwealth submitted its updated Stage II vapor recovery and 
solvent cleaning rules to EPA on June 1, 2010, and we are proposing 
approval of them within this action.
Cutback Asphalt Rule
    The Commonwealth's January 31, 2008 submittal indicated that 
updates were also intended for 310 CMR 7.18(9), the existing cutback 
asphalt paving rule. However, on January 18, 2013, Massachusetts 
submitted a letter withdrawing portions of the January 31, 2008 
submittal, including the commitment to revise the cutback asphalt rule. 
The Commonwealth noted in its January 18, 2013 withdrawal letter that 
on May 29, 2012 (77 FR 31496), EPA issued a final determination that 
Eastern Massachusetts had attained the 1997 8-hour ozone standard, and 
on June 19, 2012 (77 FR 36404) issued a similar determination for the 
Western Massachusetts nonattainment area. Therefore, the Commonwealth 
indicated

[[Page 10587]]

that it now believes that its existing SIP-approved (58 FR 3495) 
cutback asphalt regulation continues to represent RACT. Given the 
circumstances cited above, we concur with this conclusion.

b. Evaluation of NOX Requirements

    Massachusetts' submittal documents the set of NOX 
control regulations that have been adopted to ensure that RACT level 
controls are required in the state. These requirements include the 
following sections of title 310 of the Code of Massachusetts 
Regulations:
    7.08, ``Incinerators;''
    7.19, ``Reasonably Available Control Technology (RACT) for Sources 
of Oxides of Nitrogen (NOX);''
    7.28, ``NOX Allowance Trading Program;''
    7.29, ``Emission Standards for Power Plants;'' and,
    7.32, ``Massachusetts Clean Air Interstate Rule (Mass CAIR).''
    Table RACT-1 of the Commonwealth's submittal indicates the 
regulation that the Commonwealth has adopted, where appropriate, to 
address EPA's ACTs for NOX source categories. We note that 
we have not updated any of the ACT documents noted within Table RACT-1. 
Massachusetts' submittal addresses NOX RACT for all major 
sources in the Commonwealth. For the following sectors for which EPA 
has published ACT guidelines, Massachusetts's submittal indicates that 
there are no major sources of NOX within the Commonwealth: 
nitric and adipic acid plants; cement plants; and iron and steel 
manufacturing facilities. Major NOX sources do exist in 
Massachusetts for the ACT categories noted within Table RACT-1, and 
this Table identifies the NOX RACT regulations the 
Commonwealth has adopted to address them. These ACT categories include 
combustion turbines, process heaters, internal combustion engines, 
industrial-commercial-institutional boilers, and glass manufacturing 
facilities. Massachusetts' RACT submittal certifies that these 
regulations represent RACT for purposes of EPA's 1997 8-hour ozone 
standard. Additionally, Massachusetts has adopted three single source 
RACT orders for major sources of NOX that are not covered by 
one of EPA's ACTs, and these orders, identified in Table RACT-2, have 
been submitted to EPA and incorporated into the SIP. See 40 CFR 
52.1167. Table RACT-1 also lists regulations adopted by the 
Commonwealth to further control NOX emissions from electric 
utility boilers and municipal waste combustors (MWCs), and we discuss 
these two sectors separately below.
Municipal Waste Combustors
    MWCs represent one of the largest NOX emitting sectors 
in the Commonwealth, and EPA previously approved RACT requirements for 
these units within 310 CMR 7.19(9), which became effective in 1995. See 
64 FR 48095. More recently, in 2000, the Commonwealth tightened 
emission limits for eleven of the seventeen MWC units in the 
Commonwealth via a strengthening of 310 CMR 7.08(2), Incinerators. 
Massachusetts submitted the updated rule to us, and we approved it as 
part of the Commonwealth's plan for controlling MWC emissions from 
existing large MWC plants under Section 111(d) of the CAA on October 9, 
2002 (67 FR 62894). Massachusetts noted that the update to section 
7.08(2) established emission limits that were equivalent to those 
within 40 CFR 60 Subpart Cb, which refers to EPA's emission guideline 
entitled, ``Emissions Guidelines and Compliance Times for Large 
Municipal Waste Combustors that are Constructed on or Before September 
20, 1994.'' The Commonwealth's RACT certification further noted that 
one unit in Massachusetts is subject to the New Source Performance 
Standard located at 40 CFR 60 Subpart Eb. In light of the above, we 
find that the controls on 12 of the 17 units as specified above, in 
addition to the initial baseline adoption of RACT for MWCs in 1995 
pursuant to CMR 7.19(9), demonstrates that the Commonwealth has 
required an overall RACT level of control for these units.
Electric Utility Boilers
    EPA's Phase 2 Ozone Implementation Rule mentioned above addressed 
various statutory requirements, including the requirement for RACT 
level controls for sources located within nonattainment areas 
generally, and controls for NOX emissions from EGUs in 
particular. EPA indicated its determination that the regional 
NOX emissions reductions that result from either the 
NOX SIP Call or the CAIR would meet the NOX RACT 
requirement for EGUs located in states included within the respective 
NOX SIP Call or the CAIR geographic regions. Thus, EPA 
concluded that: ``[t]he State need not perform a NOX RACT 
analysis for sources subject to the State's emission cap-and-trade 
program where the cap-and-trade program has been adopted by the State 
and approved by EPA as meeting the NOX SIP Call requirements 
or, in States achieving the CAIR reductions solely from electric 
generating units (EGUs), the CAIR NOX requirements.'' \6\ 
Based in part on this existing EPA rule at that time, the Commonwealth 
certified that the NOX sources regulated by its 
NOX SIP Call and CAIR rules meet the 8-hour ozone RACT 
requirements for purposes of the 1997 ozone standard.
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    \6\ See Phase 2 Ozone Implementation Rule, 70 FR 71617.
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    However, in November 2008, several parties challenged EPA's Phase 2 
Ozone Implementation Rule. In particular, they challenged EPA's 
determination that compliance with the NOX SIP Call and/or 
the CAIR could satisfy NOX RACT requirements for EGUs in 
nonattainment areas and EPA's determination that compliance with the 
CAIR could satisfy NOX RACT for EGUs in ozone nonattainment 
areas. As a result of this litigation, the Court decided that the 
provisions in the Phase 2 Ozone Implementation Rule indicating that a 
state need not perform (or submit) a NOX RACT analysis for 
EGU sources subject to a cap-and-trade program that meets the 
requirements of the NOX SIP Call are inconsistent with the 
statutory requirements of section 172(c)(1).\7\ The Court specifically 
held that the Phase 2 Ozone Implementation Rule allowing use of the 
NOX SIP call to constitute RACT without any locally 
applicable analysis regarding the equivalence of NOX SIP 
Call and RACT reductions: ``is inconsistent with the Clean Air Act * * 
* in allowing participation in a regional cap-and-trade program to 
satisfy an area-specific statutory mandate.'' The Court emphasized 
that: ``the RACT requirement calls for reductions in emissions from 
sources in the area; reductions from sources outside the nonattainment 
area do not satisfy the requirement * * * Accordingly, participation in 
the NOX SIP call would constitute RACT only if participation 
entailed at least RACT-level reductions in emissions from sources 
within the nonattainment area.'' In view of its decision in North 
Carolina v. EPA, in which the Court had previously remanded the CAIR, 
the court deferred consideration of the litigant's challenge to the 
Phase 2 Ozone Implementation Rule insofar as they related to the CAIR 
program. In light of the above, as well as a 2007 petition for 
reconsideration that EPA granted on this issue as it pertains to 
CAIR,\8\ we do not consider the NOX SIP call or CAIR to 
equal NOX RACT. Rather, consistent

[[Page 10588]]

with the above ruling, we have prepared a locally applicable analysis 
of whether electric utility boilers in the Commonwealth are subject to 
a RACT level of controls.
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    \7\ See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
    \8\ See Earthjustice Petition for Reconsideration of the Clean 
Air Fine Particle Rule, June 25, 2007. See also April 25, 2011 
letter from Lisa P. Jackson to Paul Cort, Earthjustice, responding 
to the June 25, 2007 petition for reconsideration.
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    Electric utility boilers are subject to the Commonwealth's initial 
NOX RACT regulation, 310 CMR 7.19, which was adopted in the 
mid-1990s. We previously determined that the emission limits within 310 
CMR 7.19 required a RACT level of control on these units for purposes 
of our 1-hour ozone standard. See 64 FR 48095. Massachusetts 
subsequently acted to further reduce NOX emissions from 
these units by participation in several NOX budget trading 
programs, and also by enactment of 310 CMR 7.29, ``Emission Standards 
for Power Plants.''
    Regarding NOX budget trading programs, between 1999 and 
2002, Massachusetts participated in the OTC's NOX Budget 
Program. Massachusetts implemented this program by adopting 310 CMR 
7.27, ``NOX Allowance Program,'' and submitted this 
regulation to EPA which we incorporated into the Massachusetts SIP on 
December 27, 2000 (65 FR 81743). In 2003, the sources covered by the 
NOX Allowance Program were transitioned to the Federal 
NOX budget program (also referred to as the ``NOX 
SIP call'') which Massachusetts implemented by adopting 310 CMR 7.28, 
``NOX Allowance Trading Program.'' Massachusetts submitted 
this regulation to EPA, and we approved it into the Massachusetts SIP 
on December 3, 2007 (72 FR 67854). The Federal NOX budget 
program achieved significant additional NOX reductions 
within Massachusetts from the sources subject to its requirements. In 
particular, emissions from units within Massachusetts subject to the 
Federal NOX budget program reduced ozone season 
NOX emissions from 9,265 tons in 2003 to 3,232 tons by 2008, 
representing a 65% reduction in emissions. Massachusetts then acted to 
further reduce NOX emissions from these units by adopting 
310 CMR 7.32, ``Massachusetts Clean Air Interstate Rule (Mass CAIR).'' 
Massachusetts submitted this program to EPA, and we approved it into 
the SIP on December 3, 2007 (72 FR 67854). By 2011, ozone season 
NOX emissions from units within the Commonwealth subject to 
the CAIR rule decreased by an additional 46%, falling from 3,232 tons 
in 2008 to 1,760 tons in 2011. The substantial decrease in 
NOX emissions from sources in the Commonwealth subject to 
the Federal NOX budget and CAIR programs was brought about, 
in part, by the installation of various types of NOX 
emission control equipment of the variety listed in Table 1, below. 
Although the CAIR program was subject to a number of court challenges, 
a recent decision by the U.S. Court of Appeals for the District of 
Columbia issued on August 21, 2012 which vacated the Cross State Air 
Pollution Rule (CSAPR) provided that until the CSAPR litigation is 
resolved, the CAIR program remains in effect. (EME Homer City 
Generation, L.P., v. EPA, No. 11-1302. (D.C. Cir. 2012)).
    Regarding 310 CMR 7.29, ``Emission Standards for Power Plants,'' 
the Commonwealth adopted this regulation in 2001, and submitted it to 
EPA for incorporation into the SIP within a submittal made on December 
30, 2011, to address regional haze requirements. We approved the 
state's submittal, including 310 CMR 7.29, within a final rulemaking 
signed by the Regional Administrator on September 12, 2012 and 
forwarded for publication in the Federal Register. A copy of the signed 
approval of the Commonwealth's regional haze SIP is available in the 
docket for this action. This rule covers the largest fossil fuel-fired 
EGUs in Massachusetts and required individual emissions units to 
install additional add-on controls to comply with output-based 
NOX emission limits between 2000 and 2008. As of 2009, six 
operating facilities were subject to this regulation containing 13 
EGUs. Annual NOX emissions for these six facilities dropped 
from 30,352 tons in 2000 to 7,009 tons in 2009, a drop of 77%. The 
NOX controls installed on each unit at these facilities, as 
listed in their Title V Operating Permit, is contained in Table 1, 
below. Within Table 1, the following abbreviations are used: LNB for 
low NO burners; OFA for over-fire air; FGR for flue gas recirculation; 
SCR for selective catalytic reduction; and SNCR for selective non-
catalytic reduction.
---------------------------------------------------------------------------

    \9\ RACT requirements for Unit 7 are located at 310 CMR 
7.19(4)(a)(3)(a)(i), which requires a NOX emission limit 
of 0.25 lbs/mmBtu when burning oil, and pursuant to 310 CMR 
7.19(4)(a)(3)(a)(ii) which requires a NOX emission limit 
of 0.20 lbs/mmBtu when burning gas. Between 2010 and 2012, the unit 
was well within these limits, emitting NOX within a range 
of 0.06 to 0.08 lbs/mmBtu.

                          Table 1--NOX Controls at Facilities Governed by 310 CMR 7.29
----------------------------------------------------------------------------------------------------------------
                Facility                    Unit      NOX controls installed            Operating status
----------------------------------------------------------------------------------------------------------------
Brayton Point...........................        1  LNB, OFA, SCR..............  Operating.
Brayton Point...........................        2  LNB, OFA...................  Operating.
Brayton Point...........................        3  LNB, OFA, SCR..............  Operating.
Brayton Point...........................        4  LNB........................  Operating.
Canal Station...........................        1  LNB, OFA, FGR, SCR.........  Operating.
Canal Station...........................        2  LNB, OFA, FGR, combustion    Operating.
                                                    tuning, SNCR.
Mount Tom...............................        1  LNB, OFA, SCR..............  Operating.
Mystic..................................        7  None \9\...................  Operating.
Salem Harbor............................        1  LNB, SNCR..................  Retired 1/15/12.
Salem Harbor............................        2  SNCR.......................  Retired 1/15/12.
Salem Harbor............................        3  LNB, OFA, SNCR.............  Operating.
Salem Harbor............................        4  LNB........................  Operating.
Somerset................................        8  OFA, Natural Gas Reburn      Retired 1/2/10.
                                                    System, SNCR.
----------------------------------------------------------------------------------------------------------------

    As previously mentioned, Massachusetts adopted a set of regulations 
to address NOX RACT for the 1-hour ozone standard, and we 
approved those requirements into the Commonwealth's SIP. Since then, 
Massachusetts has acted to further reduce NOX emissions from 
the two largest NOX emitting sectors in the state, namely 
municipal waste combustors and electric utility boilers. In light of 
the above regulatory actions and NOX control equipment 
installations and the resulting decrease in NOX emissions 
within Massachusetts, in addition to the initial baseline adoption of 
RACT in CMR 7.19, EPA is proposing approval of Massachusetts' January 
31, 2008 SIP certification that the state has adopted air pollution 
control strategies that represent NOX RACT for purposes of

[[Page 10589]]

compliance with our 1997 8-hour ozone standard. Our decision is also 
based, in part, on the fact that both nonattainment areas within the 
Commonwealth have attained our 1997 8-hour ozone standard by their 
attainment date of June 15, 2010 as noted in Section IV, Proposed 
Action.

IV. Proposed Action

    EPA is proposing approval of Massachusetts' January 31, 2008 SIP 
submittal that demonstrates that the state has adopted air pollution 
control strategies that represent RACT for purposes of compliance with 
the 1997 8-hour ozone standard. Additionally, we are proposing approval 
of two revised regulations submitted by Massachusetts on June 1, 2010: 
310 CMR 7.18(8), ``Solvent Metal Degreasing;'' and 310 CMR 7.24(6), 
``Dispensing of Motor Vehicle Fuel.''
    EPA has evaluated the VOC and NOX stationary source 
control regulations which Massachusetts contends meets RACT for the 
1997 8-hour ozone standard, and determined that a level of control 
consistent with RACT has been implemented in the state for purposes of 
the 1997 ozone standard. We do not anticipate any difficulties with 
enforcing the state's standards, as EPA has previously approved the 
rules Massachusetts cites as the means by which RACT is implemented. We 
have determined that these regulatory elements and the resulting 
reduction in VOC and NOX emissions from major sources 
demonstrate that a RACT level of control for both pollutants has been 
implemented in the state. EPA has previously determined that 
Massachusetts' two 8-hour ozone nonattainment areas attained the 1997 
ozone standard by their attainment date, based on quality-assured air 
monitoring data. This determination was published on May 29, 2012 (77 
FR 31496) for the Eastern Massachusetts nonattainment area, and on June 
19, 2012 (77 FR 36404) for the Western Massachusetts nonattainment 
area. The improvements in air quality represented by these clean data 
determinations were brought about, in part, by the RACT program 
implemented by Massachusetts.
    EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to the EPA 
New England Regional Office listed in the ADDRESSES section of this 
Federal Register.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law. For that reason, this proposed 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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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 the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: February 5, 2013.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2013-03472 Filed 2-13-13; 8:45 am]
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