[Federal Register Volume 85, Number 47 (Tuesday, March 10, 2020)]
[Rules and Regulations]
[Pages 13748-13755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03203]
[[Page 13748]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2019-0695; FRL-10005-36-Region 1]
Air Plan Approval; Massachusetts; Infrastructure State
Implementation Plan Requirements for the 2015 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct 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. Except as noted, this revision satisfies the
infrastructure requirements of the Clean Air Act (CAA) for the 2015
ozone National Ambient Air Quality Standards (NAAQS). The
infrastructure requirements are designed to ensure that the structural
components of each state's air quality management program are adequate
to meet the state's responsibilities under the CAA. We are issuing a
finding of failure to submit pertaining to the various aspects of
infrastructure SIPS relating to the prevention of significant
deterioration (PSD). The Commonwealth has long been subject to a
Federal Implementation Plan (FIP) regarding PSD, thus the finding of
failure to submit will result in no sanctions or further FIP
requirements. We do not in this action address CAA 110(a)(2)(D)(i)(I)
requirements regarding interstate transport, because we previously
approved the Commonwealth's submittal addressing these requirements for
the 2015 ozone standard (January 31, 2020). This action is being taken
in accordance with the Clean Air Act.
DATES: This direct final rule will be effective May 11, 2020, unless
EPA receives adverse comments by April 9, 2020. If adverse comments are
received, EPA will publish a timely withdrawal of the direct final rule
in the Federal Register informing the public that the rule will not
take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2019-0695 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets. 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, 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 Rackauskas, Air Quality Branch,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square--Suite 100, (Mail code 05-2), Boston, MA 02109-
3912, tel. 617-918-1628, 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
II. Infrastructure SIP Evaluation
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On September 27, 2018, the Massachusetts Department of
Environmental Protection (DEP) submitted a formal revision to its State
Implementation Plan (SIP). The SIP revision contains the Commonwealth's
``Certification of Adequacy of the Massachusetts State Implementation
Plan Regarding Clean Air Act Sections 110(a)(1) and (2) for the 2015
Ozone National Ambient Air Quality Standards.'' When EPA promulgates a
new or revised NAAQS, states must submit these certifications (or
infrastructure SIPS) to ensure that their SIP provides for
implementation, maintenance, and enforcement of the respective NAAQS.
EPA previously approved Massachusetts' infrastructure SIP for the
2008 ozone standard (as part of a notice approving five total NAAQS
infrastructure SIPS) on December 21, 2016 (81 FR 93627). The September
27, 2018 submission contains virtually the same information as the
previous SIP approved version, with a few minor updates and date
changes. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
A. What is the scope of this rulemaking?
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), EPA believes that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\1\ Unless otherwise
noted below, we are following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for compliance with statutory and regulatory requirements, not for the
[[Page 13749]]
state's implementation of its SIP.\2\ The EPA has other authority to
address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\1\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013, Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/
Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_201
3.pdf), as well as in numerous agency actions, including EPA's prior
action on Massachusetts' infrastructure SIP to address the 1997
ozone, 2008 lead, 2008 ozone, 2010 nitrogen dioxide, and 2010 sulfur
dioxide NAAQS. 81 FR 93627 (December 21, 2016).
\2\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th
Cir. 2018).
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B. What guidance is EPA using to evaluate Massachusetts' infrastructure
SIP submission?
EPA highlighted the statutory requirement to submit infrastructure
SIPs within 3 years of promulgation of a new NAAQS in an October 2,
2007, guidance document entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007
guidance). EPA has issued additional guidance documents and memoranda,
including a September 13, 2013, guidance document entitled ``Guidance
on Infrastructure State Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 guidance).
II. Infrastructure SIP Evaluation
The following review evaluates the state's submissions regarding
CAA section 110(a)(2) requirements and relevant EPA guidance.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section of the Act requires SIPs to include enforceable
emission limits and other control measures, means or techniques,
schedules for compliance, and other related matters. However, EPA has
long interpreted emission limits and control measures for attaining the
standards as being due when nonattainment planning requirements are
due.\3\ In the context of an infrastructure SIP, EPA is not evaluating
the existing SIP provisions for this purpose. Instead, EPA is only
evaluating whether the state's SIP has basic structural provisions for
the implementation of the NAAQS. Massachusetts General Law (M.G.L.) c.
21A, section 8, Executive Office of Energy and Environmental Affairs
Organization of Departments; powers, duties and functions, creates and
sets forth the powers and duties of the Department of Environmental
Protection (MassDEP) within the Executive Office of Energy and
Environmental Affairs. In addition, M.G.L. c. 111, sections 142A
through 142N, which, collectively, are referred to as the Massachusetts
Pollution Control Laws, provide MassDEP with broad authority to prevent
pollution or contamination of the atmosphere and to prescribe and
establish appropriate regulations. Furthermore, M.G.L. c. 21A, section
18, Permit applications and compliance assurance fees; timeline action
schedules; regulations, authorizes MassDEP to establish fees applicable
to the regulatory programs it administers.
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\3\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12,
2008).
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MassDEP has adopted numerous regulations within the Code of
Massachusetts Regulations (CMR) in furtherance of the objectives set
out by these statutes, including 310 CMR 4.00, Timely Action & Fee
Schedule Regulations, 310 CMR 6.00, Ambient Air Quality Standards for
the Commonwealth of Massachusetts, and 310 CMR 7.00, Air Pollution
Control Regulations. For example, many SIP-approved State air quality
regulations within 310 CMR 7.00 provide enforceable emission
limitations and other control measures, means or techniques, schedules
for compliance, and other related matters that satisfy the requirements
of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, including but
not limited to 7.18, Volatile and Halogenated Organic Compounds, 7.19,
Reasonably Available Control Technology (RACT) for Sources of NOx, and
7.29, Emission Standards for Power Plants. EPA finds that MassDEP meets
the infrastructure SIP requirements of section 110(a)(2)(A) with
respect to the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze ambient air quality data,
and make these data available to EPA upon request. Each year, states
submit annual air monitoring network plans to EPA for review and
approval. EPA's review of these annual monitoring plans includes our
evaluation of whether the State: (i) Monitors air quality at
appropriate locations throughout the State using EPA-approved Federal
Reference Methods or Federal Equivalent Method monitors; (ii) submits
data to EPA's Air Quality System (AQS) in a timely manner; and (iii)
provides EPA Regional Offices with prior notification of any planned
changes to monitoring sites or the network plan.'' Under MGL c. 111,
sections 142B to 142D, MassDEP operates an air monitoring network. EPA
approved the state's most recent Annual Air Monitoring Network Plan on
November 25, 2019. In addition to having an adequate air monitoring
network, MassDEP populates AQS with air quality monitoring data in a
timely manner and provides EPA with prior notification when considering
a change to its monitoring network or plan. EPA finds that MassDEP has
met the infrastructure SIP requirements of section 110(a)(2)(B) with
respect to the 2015 ozone NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources
States are required to include a program providing for enforcement
of all SIP measures and the regulation of construction of new or
modified stationary sources to meet NSR requirements under PSD and
nonattainment new source review (NNSR) programs. Part C of the CAA
(sections 160-169B) addresses PSD, while part D of the CAA (sections
171-193) addresses NNSR requirements. The evaluation of each state's
submission addressing the infrastructure SIP requirements of section
110(a)(2)(C) covers the following: (i) Enforcement of SIP measures;
(ii) PSD program for major sources and major modifications; and, (iii)
permitting program for minor sources and minor modifications.
i. Sub-Element 1: Enforcement of SIP Measures
MassDEP staffs and implements an enforcement program pursuant to
authorities provided within the following laws: M.G.L. c. 111, section
2C, Pollution violations; orders of department of environmental
protection, which authorizes MassDEP to issue orders enforcing
pollution control regulations generally; M.G.L. c. 111, sections 142A
through 142O, Massachusetts Air Pollution Control Laws, which, among
other things, more specifically authorize MassDEP to adopt regulations
to control air pollution, enforce such regulations, and issue penalties
for non-compliance; and, M.G.L. c. 21A, section 16, Civil
Administrative Penalties, which provides additional authorizations for
MassDEP to assess penalties for failure to comply with the
Commonwealth's air pollution control laws and regulations. Moreover,
SIP-approved regulations, such as 310 CMR 7.02(12)(e) and (f), provide
a program for the enforcement of SIP measures. Accordingly, EPA finds
that Massachusetts has met this requirement of section 110(a)(2)(C)
with respect to the 2015 ozone NAAQS.
[[Page 13750]]
ii. Sub-Element 2: Preconstruction Program for Major Sources and Major
Modifications
Sub-element 2 of section 110(a)(2)(C) requires that states provide
for the regulation of modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved, including a
program to meet PSD and NNSR requirements. PSD applies to new major
sources or modifications made to major sources for pollutants where the
area in which the source is located is in attainment of, or
unclassifiable regarding, the relevant NAAQS, and NNSR requires similar
actions in nonattainment areas.
As MassDEP recognizes in the submittal, Massachusetts does not have
an approved state PSD program and has long been subject to a Federal
Implementation Plan (FIP). The Commonwealth implements and enforces the
federal PSD program through a delegation agreement. See 76 FR 31241
(May 31, 2011). Accordingly, EPA is issuing a finding of failure to
submit with respect to the PSD-related requirements of this sub-element
for the 2015 ozone NAAQS. This finding will not trigger any additional
FIP obligation by the EPA, because the deficiency is addressed by the
FIP already in place. Nor is the Commonwealth subject to mandatory
sanctions solely as a result of this finding because the SIP submittal
deficiencies are neither with respect to a sub-element that is required
under part D nor in response to a SIP call under section 110(k)(5) of
the Act.
iii. Sub-Element 3: Preconstruction Permitting for Minor Sources and
Minor Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulates emissions of the relevant NAAQS pollutants. EPA's most recent
approval of the Commonwealth's minor NSR program occurred on April 5,
1995. 60 FR 17226. Since this date, Massachusetts and EPA have relied
on the existing minor NSR program to ensure that new and modified
sources not captured by the major NSR permitting programs do not
interfere with attainment and maintenance of the 2015 ozone NAAQS.
In summary, EPA finds that Massachusetts meets the enforcement-
related aspects of Section 110(a)(2)(C) discussed above within sub-
element 1, and the preconstruction permitting requirements for minor
sources discussed in sub-element 3, for the 2015 ozone NAAQS. As to
preconstruction PSD permitting of major sources and major
modifications, EPA finds that the Commonwealth has failed to make the
required submission.
D. Section 110(a)(2)(D)--Interstate Transport
This section contains a comprehensive set of air quality management
elements pertaining to the transport of air pollution with which States
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Significant contribution to nonattainment, and
interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-
element 3, Visibility protection; Sub-element 4, Interstate pollution
abatement; and Sub-element 5, International pollution abatement. Sub-
elements 1 through 3 above are found under section 110(a)(2)(D)(i) of
the Act, and these items are further categorized into the four prongs
discussed below, two of which are found within sub-element 1. Sub-
elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act
and include provisions insuring compliance with sections 115 and 126 of
the Act relating to interstate and international pollution abatement.
i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS
(Prong 2)
Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit
any emissions activity in the State that will contribute significantly
to nonattainment or interfere with maintenance of the NAAQS in any
downwind State. EPA commonly refers to these requirements as prong 1
(significant contribution to nonattainment) and prong 2 (interference
with maintenance), or jointly as the ``Good Neighbor'' or ``transport''
provisions of the CAA. EPA has previously approved Massachusetts' Good
Neighbor SIP for the 2015 ozone NAAQS.\4\ 85 FR 5772 (January 31,
2020). Therefore, Massachusetts has already met this requirement for
the 2015 ozone NAAQS.
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\4\ EPA is not reopening for comment determinations made in that
action.
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ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or
other type of emissions activity in one State from interfering with
measures that are required in any other State's SIP under Part C of the
CAA. One way for a State to meet this requirement, specifically with
respect to in-State sources and pollutants that are subject to PSD
permitting, is through a comprehensive PSD permitting program that
applies to all regulated NSR pollutants and that satisfies the
requirements of EPA's PSD implementation rules. For in-State sources
not subject to PSD, this requirement can be satisfied through a fully-
approved nonattainment new source review (NNSR) program with respect to
any previous NAAQS.
As discussed under element C above and as noted in the submittal,
Massachusetts has long been subject to a PSD FIP and has implemented
and enforced the federal PSD program through a delegation agreement
with EPA. Accordingly, EPA makes a finding of failure to submit with
respect to the PSD requirement of this sub-element for the 2015 ozone
NAAQS. This finding does not trigger any sanctions or additional FIP
obligation for the same reasons discussed under element C above.
Under prong 3 of 110(a)(2)(D)(i)(II), EPA also reviews the
potential for in-State sources not subject to PSD to interfere with PSD
in an attainment or unclassifiable area of another State. EPA generally
considers a fully approved NNSR program adequate for purposes of
meeting this requirement of prong 3 with respect to in-state sources
and pollutants not subject to PSD. See 2013 guidance. EPA last approved
the Commonwealth's NNSR program on May 29, 2019. 84 FR 24719.
Accordingly, we approve Massachusetts' submittal for the 2015 ozone
NAAQS for the NNSR aspect of prong 3.
iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
Regarding the applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), States are subject to visibility and
regional haze program requirements under part C of the CAA (which
includes sections 169A and 169B). The 2013 guidance explains that these
requirements can be satisfied by an approved SIP addressing reasonably
attributable visibility impairment, if required, or an approved SIP
addressing regional haze. A fully approved regional haze SIP meeting
the requirements of 40 CFR 51.308 will ensure that emissions from
sources
[[Page 13751]]
under an air agency's jurisdiction are not interfering with measures
required to be included in other air agencies' plans to protect
visibility. On September 19, 2013, EPA approved Massachusetts' Regional
Haze SIP as meeting the requirements of 40 CFR 51.308. See 78 FR 57487.
Accordingly, EPA finds that Massachusetts meets the visibility
protection requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone
NAAQS.
iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution
Abatement
This sub-element requires that each SIP contain provisions
requiring compliance with requirements of section 126 relating to
interstate pollution abatement. Section 126(a) requires new or modified
sources to notify neighboring States of potential impacts from the
source. The statute does not specify the method by which the source
should provide the notification. States with SIP-approved PSD programs
must have a provision requiring such notification by new or modified
sources.
As mentioned elsewhere in this document, Massachusetts does not
have a SIP-approved PSD program and is currently subject to a PSD FIP,
which includes a requirement to notify any State whose lands may be
affected by emissions from the Massachusetts PSD source. See 40 CFR
52.21(q), 124.10(c)(1)(vii); see also id. section 52.1165. While we
find that the Commonwealth failed to make a submittal for the 2015
ozone NAAQS for section 110(a)(2)(D)(ii) with respect to the PSD-
related notice of interstate pollution, such finding does not trigger
any additional FIP obligation by the EPA under section 110(c)(1),
because the federal PSD rules address the notification issue. Nor does
the finding trigger any sanctions. Finally, Massachusetts has no
obligations under any other provision of section 126.
v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution
Abatement
This sub-element also requires each SIP to contain provisions
requiring compliance with the applicable requirements of section 115
relating to international pollution abatement. Section 115 authorizes
the Administrator to require a state to revise its SIP to alleviate
international transport into another country where the Administrator
has made a finding with respect to emissions of the particular NAAQS
pollutant and its precursors, if applicable. There are no final
findings under section 115 against Massachusetts for the 2015 ozone
NAAQS. Therefore, EPA finds that Massachusetts meets the applicable
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to
section 115 of the CAA (international pollution abatement) for the 2015
ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
Section 110(a)(2)(E)(i) requires each SIP to provide assurances
that the State will have adequate personnel, funding, and legal
authority under state law to carry out its SIP, and related issues.
Additionally, Section 110(a)(2)(E)(ii) requires each state to comply
with the requirements with respect to state boards under section 128.
Finally, section 110(a)(2)(E)(iii) requires that, where a state relies
upon local or regional governments or agencies for the implementation
of its SIP provisions, the state retain responsibility for ensuring
adequate implementation of SIP obligations with respect to relevant
NAAQS. This last sub-element, however, is not applicable to this
action, because Massachusetts does not rely upon local or regional
governments or agencies for the implementation of its SIP provisions.
i. Sub-Element 1: Adequate Personnel, Funding, and Legal Authority
Under State Law To Carry Out Its SIP, and Related Issues
Massachusetts, through its infrastructure SIP submittals, has
documented that its air agency has the requisite authority and
resources to carry out its SIP obligations. Massachusetts General Laws
c. 111, sections 142A to 142N, provide MassDEP with the authority to
carry out the state's implementation plan. The Massachusetts SIP, as
originally submitted in 1971 and subsequently amended, provides
descriptions of the staffing and funding necessary to carry out the
plan. In the submittals, MassDEP provides assurances that it has
adequate personnel and funding to carry out the SIP during the five
years following infrastructure SIP submission and in future years.
Additionally, the Commonwealth receives CAA section 103 and 105 grant
funds through Performance Partnership agreements and provides state
matching funds, which together enable Massachusetts to carry out its
SIP requirements. EPA finds that Massachusetts meets the infrastructure
SIP requirements of section 110(a)(2)(E)(i) for the 2015 ozone NAAQS.
ii. Sub-Element 2: State Board Requirements Under Section 128 of the
CAA
Section 110(a)(2)(E) also requires each SIP to contain provisions
that comply with the state board requirements of section 128(a) of the
CAA. That provision contains two explicit requirements: (1) That any
board or body which approves permits or enforcement orders under this
chapter shall have at least a majority of members who represent the
public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter, and (2) that any potential conflicts of interest by
members of such board or body or the head of an executive agency with
similar powers be adequately disclosed.
Massachusetts does not have a state board that approves permits or
enforcement orders under the CAA. Instead, permits and enforcement
orders are approved by the Commissioner of MassDEP. Thus, Massachusetts
is not subject to the requirements of paragraph (a)(1) of section 128.
As to the conflict of interest provisions of section 128(a)(2),
Massachusetts has cited to M.G.L. c. 268A of the Commonwealth's
Conflict of Interest law in its infrastructure SIP submittal for the
2015 ozone NAAQS. EPA previously approved M.G.L. c. 268A, sections 6
and 6A, into the SIP in satisfaction of this infrastructure SIP
requirement. 81 FR 93627 (December 21, 2016). Pursuant to these state
provisions, state employees in Massachusetts, including the head of an
executive agency with authority to approve air permits or enforcement
orders, are required to disclose potential conflicts of interest to,
among others, the state ethics commission. EPA finds that the
Massachusetts SIP satisfies the requirements of section
110(a)(2)(E)(ii) of the Clean Air Act for the 2015 ozone NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission
[[Page 13752]]
limitations or standards established pursuant to this chapter. Lastly,
the reports shall be available at reasonable times for public
inspection.
Pursuant to M.G.L. c. 111, sections 142A to 142D, MassDEP has the
necessary authority to maintain and operate air monitoring stations and
coordinates with EPA in determining the types and locations of ambient
air monitors across the state. The Commonwealth uses this authority to
require the installation, maintenance, and replacement of emissions
monitoring equipment by, and to collect information on air emissions
from, sources in the state. Additionally, Massachusetts statutes and
regulations provide that emissions data shall be available for public
inspection. See, e.g., M.G.L. c. 21I, section 20(K), M.G.L. c. 111,
section 142B; 310 CMR section 3.33(5), 7.12(4)(b); 7.14(1). The
following SIP-approved regulations enable the accomplishment of the
Commonwealth's emissions recording, reporting, and correlating
objectives:
1. 310 CMR 7.12, Source Registration.
2. 310 CMR 7.13, Stack Testing.
3. 310 CMR 7.14, Monitoring Devices and Reports.
EPA recognizes that Massachusetts routinely collects information on
air emissions from its industrial sources and makes this information
available to the public. EPA therefore finds that the Commonwealth
meets the infrastructure SIP requirements of section 110(a)(2)(F) with
respect to the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for authority analogous
to that provided in section 303 of the CAA, and adequate contingency
plans to implement such authority. Section 303 of the CAA provides
authority to the EPA Administrator to seek a court order to restrain
any source from causing or contributing to emissions that present an
``imminent and substantial endangerment to public health or welfare, or
the environment.'' Section 303 further authorizes the Administrator to
issue ``such orders as may be necessary to protect public health or
welfare or the environment'' in the event that ``it is not practicable
to assure prompt protection . . . by commencement of such civil
action.''
We find that the Commonwealth's ISIP submittal demonstrates that a
combination of state statutes and regulations provide for authority
comparable to that in section 303. Massachusetts' submittal cites
M.G.L. C. 111, section 2B, Air Pollution Emergencies, which authorizes
the Commissioner of the MassDEP to ``declare an air pollution
emergency'' if the Commissioner ``determines that the condition or
impending condition of the atmosphere in the Commonwealth . . .
constitutes a present or reasonably imminent danger to health.'' During
such an air pollution emergency, the Commissioner is authorized
pursuant to section 2B, to ``take whatever action is necessary to
maintain and protect the public health, including but not limited to .
. . prohibiting, restricting and conditioning emissions of dangerous or
potentially dangerous air contaminants from whatever source derived . .
.'' Additionally, sections 2B and 2C authorize the Commissioner to
issue emergency orders.
Moreover, M.G.L. c. 21A, section 8 provides that, ``[i]n regulating
. . . any pollution prevention, control or abatement plan [or] strategy
. . . through any . . . departmental action affecting or prohibiting
the emission . . . of any hazardous substance to the environment . . .
the department may consider the potential effects of such plans [and]
strategies . . . on public health and safety and the environment . . .
and said department shall act to minimize and prevent damage or threat
of damage to the environment.''
These duties are implemented, in part, under MassDEP regulations at
310 CMR 8.00, Prevention and Abatement of Air Pollution Episodes and
Air Pollution Incident Emergencies, the most recent revisions to which
EPA approved into the SIP on March 4, 2019. 84 FR 7299. These
regulations establish levels that would constitute significant harm or
imminent and substantial endangerment to health for ambient
concentrations of pollutants subject to a NAAQS, consistent with the
significant harm levels and procedures for state emergency episode
plans established by EPA in 40 CFR part 51.150 and 51.151. Finally,
M.G.L. c. 111, section 2B authorizes the state to seek injunctive
relief in the superior court for violation of an emergency order issued
by the MassDEP Commissioner. While no single Massachusetts statute or
regulation mirrors the authorities of CAA section 303, we find that the
combination of state statutes and regulations discussed herein provide
for comparable authority to immediately bring suit to restrain, and
issue orders against, any person causing or contributing to air
pollution that presents an imminent and substantial endangerment to
public health or welfare, or the environment.
Section 110(a)(2)(G) also requires that, for any NAAQS, States have
an approved contingency plan for any Air Quality Control Region (AQCR)
within the state that is classified as Priority I, IA, or II. See 40
CFR 51.152(c). Two AQCRs in Massachusetts are classified as Priority I
for ozone, with the remaining AQCRs classified as Priority III for
ozone. Id. 52.1121. As noted above, EPA approved 310 CMR 8.00 into the
SIP to satisfy the contingency plan requirements of CAA section
110(a)(2)(G) for a previous infrastructure SIP submittal for the 2008
ozone NAAQS. 84 FR 7299. This state regulation satisfies the applicable
requirements for contingency plans at 40 CFR part 51, subpart H (40 CFR
51.150 through 51.153) (Prevention of Air Pollution Emergency
Episodes). For the above reasons, EPA finds that Massachusetts meets
the infrastructure SIP requirements of CAA section 110(a)(2)(G) for the
2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires that a state's SIP provide for revision as
may be necessary to take account of changes in the NAAQS or
availability of improved methods for attaining the NAAQS and whenever
the EPA finds that the SIP is substantially inadequate. Massachusetts
General Laws c. 111, section 142D provides in relevant part that,
``From time to time the department shall review the ambient air quality
standards and plans for implementation, maintenance and attainment of
such standards adopted pursuant to this section and, after public
hearings, shall amend such standards and implementation plan so as to
minimize the economic cost of such standards and plan for
implementation, provided, however, that such standards shall not be
less than the minimum federal standards.'' This authorizing statute
gives MassDEP the power to revise the Massachusetts SIP from time to
time as may be necessary to take account of changes in the NAAQS or
availability of improved methods for attaining the NAAQS and whenever
the EPA finds that the SIP is substantially inadequate. Accordingly,
EPA finds that Massachusetts meets the infrastructure SIP requirements
of CAA section 110(a)(2)(H) for the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas. EPA has
determined that section
[[Page 13753]]
110(a)(2)(I) is not applicable to the infrastructure SIP process.
Instead, EPA takes action on part D attainment plans through separate
processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; PSD; Visibility Protection
Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the
applicable requirements of section 121 of this title (relating to
consultation), section 127 of this title (relating to public
notification), and part C of this subchapter (relating to PSD of air
quality and visibility protection).'' The evaluation of the submission
from Massachusetts with respect to these requirements is described
below.
i. Sub-Element 1: Consultation With Government Officials
Section 121 of the Act requires states to provide a process for
consultation with local governments and Federal Land Managers (FLMs) in
carrying out NAAQS implementation requirements.
Pursuant to EPA-approved Massachusetts regulations at 310 CMR
7.02(12)(g)(2), MassDEP notifies the public ``by advertisement in a
newspaper having wide circulation'' in the area of the particular
facility of the opportunity to comment on certain proposed permitting
actions and sends ``a copy of the notice of public comment to the
applicant, the EPA, and officials and agencies having jurisdiction over
the community in which the facility is located, including local air
pollution control agencies, chief executives of said community, and any
regional land use planning agency.'' In addition, Massachusetts
Executive Order 145, ``Consultation with Cities & Towns on
Administrative Mandates,'' which EPA approved into the SIP on June 24,
2019, establishes a process for agencies of the Commonwealth to consult
with local governments. 84 FR 29380. In its submittal, Massachusetts
lists additional authorities and processes on which it relies to
provide for consultation with local governments when carrying out
requirements of the CAA. MassDEP notes that, with respect to the
requirement to consult with FLMs, it relies in part on the FLM
consultation requirement contained in the PSD FIP to meet this
obligation. As previously mentioned, Massachusetts does not have an
approved state PSD program, but rather is subject to a PSD FIP, which,
as MassDEP notes, includes a provision requiring consultation with
FLMs. See 40 CFR 52.21(p). Consequently, with respect to the 2015 ozone
NAAQS, EPA finds that Massachusetts has met the consultation with local
governments requirement of this portion of section 110(a)(2)(J) but
issues a finding of failure to submit with respect to the FLM
consultation requirement for PSD permitting. Because the federal PSD
program, which Massachusetts implements and enforces, addresses this
FLM consultation requirement, a finding of failure to submit does not
result in sanctions or new FIP obligations.
ii. Sub-Element 2: Public Notification
Section 127 of the Act requires states to: Notify the public if
NAAQS are exceeded in an area; advise the public of health hazards
associated with exceedances; and enhance public awareness of measures
that can be taken to prevent exceedances and of ways in which the
public can participate in regulatory and other efforts to improve air
quality.
Massachusetts regulations specify criteria for air pollution
episodes and incidents and provide for notice to the public via news
media and other means of communication. See 310 CMR 8.00. The
Commonwealth also provides a daily air quality forecast to inform the
public about concentrations of fine particles and, during the ozone
season, provides similar information for ozone. Real time air quality
data for NAAQS pollutants are also available on the MassDEP's website,
as are information about health hazards associated with NAAQS
pollutants and ways in which the public can participate in regulatory
efforts related to air quality. The Commonwealth is also an active
partner in EPA's AirNow and EnviroFlash air quality alert programs,
which notify the public of air quality levels through EPA's website,
alerts, and press releases. In light of the above, we find that
Massachusetts meets the infrastructure SIP requirements of this
requirement of section 110(a)(2)(J) with respect to the 2015 ozone
NAAQS.
iii. Sub-Element 3: PSD
Pursuant to Section 110(a)(2)(J), States must also meet applicable
requirements of Part C of the Act (relating to PSD). The Commonwealth's
PSD program in the context of infrastructure SIPs has already been
discussed in the paragraphs addressing sections 110(a)(2)(C),
(D)(i)(II), and (D)(ii), and our actions for those sections are
consistent with the proposed action for this portion of section
110(a)(2)(J). Specifically, we are making a finding of failure to
submit with respect to the PSD sub-element of section 110(a)(2)(J) for
the 2015 ozone NAAQS and note that such a finding does not result in
any sanctions or new FIP obligations.
iv. Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. In other words, the visibility protection requirements of
section 110(a)(2)(J) are not germane to infrastructure SIP for the 2015
Ozone NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
Section 110(a)(2)(K) of the Act requires that a SIP provide for the
performance of such air-quality modeling as the EPA Administrator may
prescribe to predict the effect on ambient air quality of any emissions
of any air pollutant for which EPA has established a NAAQS, and the
submission, upon request, of data related to such air quality modeling.
EPA has published modeling guidelines at 40 CFR part 51, Appendix W,
for predicting the effects of emissions of criteria pollutants on
ambient air quality. EPA recommends in the 2013 guidance that, to meet
section 110(a)(2)(K), a State submit or reference the statutory or
regulatory provisions that provide the air agency with the authority to
conduct such air quality modeling and to provide such modeling data to
EPA upon request.
Massachusetts state law implicitly authorizes MassDEP to perform
air quality modeling and provide such modeling data to EPA upon
request. See M.G.L. c. 21A, section 2(2), (10), (22); M.G.L. c. 111,
sections 142B-142D. In addition, 310 CMR 7.02 authorizes MassDEP to
require air dispersion modeling analyses from certain sources and
permit applicants. Massachusetts implements and enforces the federal
PSD program through a delegation agreement (included in the docket for
today's action) that requires MassDEP to follow the applicable
procedures in EPA's permitting regulations at 40 CFR 52.21, as amended
from time to time. The Commonwealth also collaborates with the Ozone
Transport Commission (OTC), the Mid-Atlantic Regional Air Management
Association, and EPA to perform large scale urban airshed modeling. EPA
finds that Massachusetts meets the infrastructure SIP
[[Page 13754]]
requirements of section 110(a)(2)(K) for the 2015 ozone NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate that each major stationary
source pay permitting fees to cover the costs of reviewing, approving,
implementing, and enforcing a permit.
Massachusetts implements and operates the Title V permit program,
which EPA approved on September 28, 2001. See 66 FR 49541. To gain
approval, Massachusetts demonstrated, among other things, that it
collects fees sufficient to cover the costs of reviewing and acting on
Title V permit applications and implementing and enforcing the permits.
See 61 FR 3827 (February 2, 1996); 40 CFR 70.9. Section 18 of M.G.L. c.
21A authorizes MassDEP to promulgate regulations establishing fees. To
collect fees from sources of air emissions, the MassDEP promulgated and
implements 310 CMR 4.00, Timely Action Schedule and Fee Provisions.
These regulations set permit application and compliance fees for
existing major sources and for new and modified major sources. EPA
proposes that the Commonwealth meets the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
To satisfy element M, states must provide for consultation with,
and allow participation by, local political subdivisions affected by
the SIP. Pursuant to M.G.L. c. 111, section 142D, MassDEP must hold
public hearings prior to revising its SIP. In addition, M.G.L. c. 30A,
Massachusetts Administrative Procedures Act, requires MassDEP to
provide notice and the opportunity for public comment and hearing prior
to adoption of any regulation. Moreover, the Commonwealth's Executive
Order No. 145 (discussed earlier in the context of element J) requires
state agencies, including MassDEP, to provide notice to the Local
Government Advisory Committee to solicit input on the impact of
proposed regulations and other administrative actions on local
governments. MassDEP's submittal also notes that the agency consults
with local political subdivisions though a state ``SIP Steering
Committee'' and conducts stakeholder outreach with local entities as a
matter of policy when revising the SIP or adopting air regulations.
Therefore, EPA proposes that Massachusetts meets the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2015 ozone
NAAQS.
III. Final Action
EPA is approving most portions of the Massachusetts infrastructure
SIP requirements for the 2015 ozone NAAQS. We are also issuing a
finding of failure to submit pertaining to the various aspects of
infrastructure SIPS relating to the prevention of significant
deterioration (PSD). The Commonwealth has long been subject to a
Federal Implementation Plan (FIP) regarding PSD, thus the finding of
failure to submit will result in no mandatory sanctions or further FIP
requirements. This rulemaking also does not include any action on the
interstate transport portion of the Commonwealth's submittal. This
action is being taken in accordance with the Clean Air Act.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective May 11,
2020 without further notice unless the Agency receives relevant adverse
comments by April 9, 2020.
If the EPA receives such comments, then EPA will publish a notice
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on the proposed rule. All parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on May 11, 2020 and no further action will be
taken on the proposed rule. Please note that if EPA receives adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, EPA may adopt
as final those provisions of the rule that are not the subject of an
adverse comment.
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);
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 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).
[[Page 13755]]
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 May 11, 2020. 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. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. 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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: February 11, 2020.
Dennis Deziel,
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
0
2. In Sec. 52.1120, in paragraph (e), amend the table by adding an
entry for ``Infrastructure SIP for 2015 Ozone NAAQS'' at the end of the
table to read as follows:
Sec. 52.1120 Identification of Plan
* * * * *
(e) * * *
Massachusetts Non-Regulatory
----------------------------------------------------------------------------------------------------------------
Applicable State submittal
Name of non regulatory SIP geographic or date/effective EPA approved date Explanations
provision nonattainment area date 3
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Infrastructure SIP submittal Statewide......... September 27, 2018 3/10/2020 [Insert Approved with
for 2015 Ozone NAAQS. Federal Register respect to
citation]. requirements for
CAA section
110(a)(2) (A),
(B), (C), (D),
(E), (F), (G),
(H), (J), (K),
(L), and (M) with
the exception of
the PSD-related
requirements of
(C), (D), and (J).
----------------------------------------------------------------------------------------------------------------
\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. 2020-03203 Filed 3-9-20; 8:45 am]
BILLING CODE 6560-50-P