[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Rules and Regulations]
[Pages 24719-24722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10875]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2018-0829; FRL-9993-84-Region 1]


Air Plan Approval; Massachusetts; Nonattainment New Source Review 
Program Revisions; Infrastructure Provisions for National Ambient Air 
Quality Standards; Nonattainment New Source Review Requirements for the 
2008 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Massachusetts. On February 9, 2018, the Massachusetts Department of 
Environmental Protection (MassDEP) submitted revisions to the EPA 
satisfying the MassDEP's earlier commitment to adopt and submit 
provisions that meet certain requirements of the Nonattainment New 
Source Review (NNSR) air permit program regulations. The EPA is also 
approving the Commonwealth's NNSR certification, which was included in 
the February 9, 2018, SIP revision, as sufficient for the purposes of 
satisfying the 2008 8-hour ozone National Ambient Air Quality Standard 
(NAAQS). In addition, this action converts the EPA's December 21, 2016, 
conditional approval for certain infrastructure provisions relating to 
Massachusetts's NNSR air permit program to full approval. This action 
is being taken under the Clean Air Act.

DATES: This rule is effective on June 28, 2019.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2018-0829. All documents in the docket 
are listed on the https://www.regulations.gov website. 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 at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA 
Region 1 Regional Office, Air and Radiation Division, Air Permits, 
Toxics, and Indoor Programs Branch, 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 a.m. to 4:30 p.m., excluding 
legal holidays.

FOR FURTHER INFORMATION CONTACT: Eric Wortman, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA Region 1, 5 Post 
Office Square--Suite 100 (Mail Code 05-2), Boston, MA 02109--3912, tel. 
(617) 918-1624, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background and Purpose
    A. NNSR SIP Revisions and the EPA's December 21, 2016 
Conditional Approval
    B. NNSR Certification for 2008 Ozone NAAQS
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On February 14, 2019, the EPA published a Notice of Proposed 
Rulemaking (NPRM) for the Commonwealth of Massachusetts. See 84 FR 
4021. The NPRM proposed approval of several revisions to the 
Commonwealth's NNSR permit program to address the relevant issues 
identified in the EPA's December 21, 2016 conditional approval of the 
Commonwealth's infrastructure SIP for the 1997 ozone, 2008 lead, 2008 
ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide 
NAAQS. As a result of the proposed approval of the NNSR permitting 
revisions, the EPA also proposed to convert the December 21, 2016 
conditional approval to a full approval for Clean Air Act (CAA) section 
110(a)(2)(D)(i)(II). In addition, the NPRM proposed to approve the 
Commonwealth's NNSR certification as sufficient for addressing the NNSR 
requirements for the 2008 ozone NAAQS for the Dukes County 
Nonattainment Area. The formal SIP revision was submitted by 
Massachusetts on February 9, 2018.

A. NNSR SIP Revisions and the EPA's December 21, 2016 Conditional 
Approval

    On December 21, 2016, the EPA published a final conditional 
approval for Massachusetts's June 6, 2014 infrastructure SIP submittal 
for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 NO2, 
and 2010 sulfur dioxide (SO2) NAAQS. See 81 FR 93627. This 
rulemaking identified that a provision under section 
110(a)(2)(D)(i)(II) of the CAA was not included in the Commonwealth's 
June 6, 2014 SIP submittal. Among other things, section 
110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any 
source or other type of emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state. The EPA sometimes refers to this 
requirement under subsection 110(a)(2)(D)(i)(II) as ``prong 3.'' To 
address the conditional approval for prong 3, on February 9, 2018, the 
MassDEP submitted regulatory provisions for approval into the 
Commonwealth's SIP. As explained in the NPRM, the revisions addressed 
the NNSR requirements that would make the Commonwealth's NNSR program 
applicable to sources regardless of the attainment status of the area 
where the source is located. These revisions were necessary because 
Massachusetts is located in the Ozone Transport Region (OTR).\1\
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    \1\ CAA section 184 details specific requirements for a group of 
states (and the District of Columbia) that make up the OTR. States 
in the OTR are required to mandate a certain level of emissions 
control for the pollutants that form ozone, even if the areas in the 
state meet the ozone standards. Thus, NNSR permitting requirements 
apply statewide, even if the state is designated attainment for the 
ozone NAAQS.
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B. NNSR Certification for 2008 Ozone NAAQS

    Dukes County in Massachusetts was designated nonattainment for the 
2008 8-hour ozone NAAQS on July 20, 2012 using 2009-2011 ambient air 
quality data. See 77 FR 30088 (May 21, 2012). At the time of 
designation, Dukes County was classified as a marginal nonattainment 
area. On March 6, 2015, the EPA issued a final rule entitled, 
``Implementation of the 2008 National Ambient Air Quality Standards for 
Ozone: State Implementation Plan Requirements'' (SIP Requirements 
Rule), which established the requirements that state, tribal, and local 
air quality management agencies must meet in developing implementation 
plans for areas where ozone concentrations exceed the 2008 8-hour ozone

[[Page 24720]]

NAAQS.\2\ See 80 FR 12264. Areas that were designated as marginal 
nonattainment areas for the 2008 8-hour ozone NAAQS were required to 
attain no later than July 20, 2015, based on 2012-2014 monitoring data. 
See 40 CFR 51.1103. The Dukes County nonattainment area attained the 
2008 8-hour ozone NAAQS by July 20, 2015, and therefore on April 11, 
2016, the EPA Administrator signed a final determination of attainment 
for the 2008 8-hour ozone standard for the Dukes County nonattainment 
area. See 81 FR 26697 (May 4, 2016).
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    \2\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
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    Based on initial nonattainment designations for the 2008 8-hour 
ozone standard, as well as the March 6, 2015 final SIP Requirements 
Rule, Massachusetts was required to develop a SIP revision addressing 
certain CAA requirements for the Dukes County nonattainment area, and 
submit to the EPA an NNSR Certification SIP or SIP revision no later 
than 36 months after the effective date of area designations for the 
2008 8-hour ozone NAAQS (i.e., July 20, 2015).3 4 Because 
Massachusetts already has a NNSR program that applies statewide, 
Massachusetts can certify the adequacy of its existing NNSR program 
with respect to the 2008 ozone NAAQS for the Dukes County nonattainment 
area.\5\ See 40 CFR 51.1114.
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    \3\ Where an air agency determines that the provisions in or 
referred to by its existing EPA approved SIP are adequate with 
respect to a given infrastructure SIP element (or sub-element) even 
in light of the promulgation of a new or revised NAAQS, the air 
agency may make a SIP submission in the form of a certification. 
This type of infrastructure SIP submission may, e.g., take the form 
of a letter to the EPA from the Governor or her/his designee 
containing a ``certification'' (or declaration) that the already-
approved SIP contains or references provisions that satisfy all or 
some of the requirements of section 110(a)(2), as applicable, for 
purposes of implementing the new or revised NAAQS.
    \4\ Massachusetts's obligation to submit the NNSR Certification 
SIP was not affected by the D.C. Circuit Court's February 16, 2018 
decision on portions of the SIP Requirements Rule in South Coast Air 
Quality Mgmt. Dist. v. EPA.
    \5\ Massachusetts's February 9, 2018 certification of adequacy 
that the SIP meets the NNSR requirements for the 2008 ozone NAAQS 
relies on the inclusion of the SIP revisions approved in this 
action.
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    On February 3, 2017, the EPA found that 15 states (including the 
Commonwealth of Massachusetts) and the District of Columbia failed to 
submit SIP revisions in a timely manner to satisfy certain requirements 
for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/
or states in the ozone transport region.\6\ See 82 FR 9158. MassDEP 
submitted its February 9, 2018 SIP revision to address the specific 
NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR 
51.160-165, as well as its obligations under the EPA's February 3, 2017 
Findings of Failure to Submit.
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    \6\ States have three years after the effective date of 
designation for the 2008 8-hour ozone NAAQS to submit SIP revisions 
addressing NNSR for their nonattainment areas. See 40 CFR 51.1114. 
Massachusetts's SIP revision certified that its SIP-approved state 
regulation addressing nonattainment new source review for all new 
stationary sources and modified existing stationary sources in the 
Commonwealth exceeds the requirements of section 182(a)(2)(C) for 
the 2008 8-hour ozone NAAQS. However, EPA does not believe that the 
two-year deadline contained in CAA section 182(a)(2)(C) applies to 
NNSR SIP revisions for implementing the 8-hour ozone NAAQS. See 80 
FR 12264, 12267 (March 6, 2015); 70 FR 71612, 71683 (November 29, 
2005). The submission of NNSR SIPs due on November 15, 1992, 
satisfied the requirement for states to submit NNSR SIP revisions to 
meet the requirements of CAA sections 172(c)(5) and 173 within two 
years after the date of enactment of the 1990 CAA Amendments. Id.
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    Other specific requirements of the Commonwealth's NNSR SIP 
revisions and NNSR certification, and the rationale for EPA's proposed 
action, are explained in the NPRM and will not be restated here. No 
public comments were received on the NPRM.

II. Final Action

    The EPA's review of MassDEP's February 9, 2018 SIP submittal 
indicates that the submittal satisfies the requirements of the CAA and 
is appropriate for inclusion into the SIP. The EPA therefore is 
approving the SIP revisions submitted by MassDEP. Also, as a result of 
our approval of the NNSR permitting revisions in this action, the EPA 
is converting the December 21, 2016 conditional approval to a full 
approval for prong 3 of CAA section 110(a)(2)(D)(i)(II). Other aspects 
of EPA's December 21, 2016 conditional approval will be addressed in 
other actions.
    The EPA is also approving MassDEP's February 9, 2018 SIP revision 
addressing the NNSR requirements for the 2008 ozone NAAQS for the Dukes 
County Nonattainment Area. The EPA has concluded that MassDEP's 
submission fulfills the 40 CFR 51.1114 revision requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165, as well as its obligations under the 
EPA's February 3, 2017 Findings of Failure to Submit relating to 
submission of a NNSR certification.

III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of 
Massachusetts's 310 CMR 7.00: Appendix A as described in the amendments 
to 40 CFR part 52 set forth below. The EPA has made, and will continue 
to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the State implementation plan, 
have been incorporated by reference by EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of EPA's approval, and will be 
incorporated by reference in the next update to the SIP compilation.\7\
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    \7\ 62 FR 27968 (May 22, 1997).
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IV. 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 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 action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     This action is not an Executive Order 13771 regulatory 
action because this action is not significant under Executive Order 
12866;
     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

[[Page 24721]]

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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 July 29, 2019. 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: May 19, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart W--Massachusetts


Sec.  52.1119   [Amended]

0
2. Section 52.1119 is amended by removing and reserving paragraph 
(a)(4).
0
3. Section 52.1120 is amended:
0
a. In the table in paragraph (c), by revising the entry for ``310 CMR 
7.00, Appendix A''; and
0
b. In the table in paragraph (e), by adding entries for 
``Infrastructure SIP for the 1997 Ozone NAAQS'', ``Infrastructure SIP 
for the 2008 Lead NAAQS'', ``Infrastructure SIP for the 2008 Ozone 
NAAQS'', ``Infrastructure SIP for the 2010 NO2 NAAQS'', and 
``Infrastructure SIP for the 2010 SO2 NAAQS'' at the end of 
the table.
    The revision and additions read as follows:


Sec.  52.1120   Identification of plan.

* * * * *
    (c) * * *

                                     EPA Approved Massachusetts Regulations
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                                                     State effective   EPA approval date
         State citation            Title/subject           date               \1\              Explanations
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                                                  * * * * * * *
310 CMR 7.00, Appendix A.......  Emission Offsets   October 22, 1999.  May 29, 2019       Approves revisions for
                                  and                                   [Insert Federal    consistency with
                                  Nonattainment                         Register           underlying federal
                                  Review.                               citation].         regulations that make
                                                                                           the Commonwealth's
                                                                                           SIP-approved NNSR
                                                                                           program applicable to
                                                                                           certain sources of
                                                                                           NOX and VOC
                                                                                           statewide.
 
                                                  * * * * * * *
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\1\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
  Register notice cited in this column for the particular provision.

* * * * *
    (e) * * *

[[Page 24722]]



                                          Massachusetts Non Regulatory
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                                     Applicable
   Name of non regulatory SIP      geographic or     State submittal   EPA approved date
           provision               nonattainment      date/effective          \3\              Explanations
                                        area               date
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                                                  * * * * * * *
Infrastructure SIP for 1997      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Ozone NAAQS.                                                           [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                           110(a)(2)(D)(i)(II)
                                                                                           which were
                                                                                           conditionally
                                                                                           approved on December
                                                                                           21, 2016 are now
                                                                                           fully approved.
Infrastructure SIP for 2008      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Lead NAAQS.                                                            [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                           110(a)(2)(D)(i)(II)
                                                                                           which were
                                                                                           conditionally
                                                                                           approved on December
                                                                                           21, 2016 are now
                                                                                           fully approved.
Infrastructure SIP for 2008      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Ozone NAAQS.                                                           [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                           110(a)(2)(D)(i)(II)
                                                                                           which were
                                                                                           conditionally
                                                                                           approved on December
                                                                                           21, 2016 are now
                                                                                           fully approved.
Infrastructure SIP for 2010 NO2  Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 NAAQS.                                                                 [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                           110(a)(2)(D)(i)(II)
                                                                                           which were
                                                                                           conditionally
                                                                                           approved on December
                                                                                           21, 2016 are now
                                                                                           fully approved.
Infrastructure SIP for 2010 SO2  Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 NAAQS.                                                                 [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                           110(a)(2)(D)(i)(II)
                                                                                           which were
                                                                                           conditionally
                                                                                           approved on December
                                                                                           21, 2016 are now
                                                                                           fully approved.
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\3\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
  Register notice cited in this column for the particular provision.

[FR Doc. 2019-10875 Filed 5-28-19; 8:45 am]
 BILLING CODE 6560-50-P