[Federal Register Volume 86, Number 25 (Tuesday, February 9, 2021)]
[Rules and Regulations]
[Pages 8693-8697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02536]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2019-0695; FRL-10018-99-Region 1]


Air Plan Approval; Massachusetts; Infrastructure State 
Implementation Plan Requirements for the 2015 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) submission by the Commonwealth of 
Massachusetts. Except as noted below, this submission 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. In this action we do not address CAA section 
110(a)(2)(D)(i)(I) requirements regarding interstate transport, because 
we previously approved the Commonwealth's submission addressing these 
requirements for the 2015 ozone standard. This action is being taken in 
accordance with the Clean Air Act.

DATES: This rule is effective on March 11, 2021.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2019-0695. 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, 5 Post Office 
Square--Suite 100, Boston, MA. EPA requests that if at all possible, 
you contact the contact listed in the FOR

[[Page 8694]]

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 and facility closures 
due to COVID-19.

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. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On March 13, 2020, EPA published a notice of proposed rulemaking 
(NPRM) (85 FR 14605) proposing to approve and a direct final rule (DFR) 
(85 FR 14578) approving a SIP submission from the Commonwealth of 
Massachusetts to address the infrastructure requirements of the Clean 
Air Act for the 2015 ozone NAAQS. When EPA promulgates a new or revised 
NAAQS, each state must submit a SIP submission, known as an 
``infrastructure SIP'', in order to ensure that the state's SIP 
provides for implementation, maintenance, and enforcement of the new or 
revised NAAQS. The Massachusetts Department of Environmental Protection 
(MassDEP) submitted the infrastructure SIP submission to EPA as a 
formal SIP submission on September 27, 2018. In the DFR, EPA stated 
that, if it received an adverse comment on the direct final proposal by 
April 13, 2020, then the agency would withdraw that direct final and 
issue a final rule based on the NPRM. EPA received one adverse comment 
prior to the close of the comment period. Therefore, EPA withdrew the 
DFR on May 12, 2020 (85 FR 27927). This action is a final rule based on 
the NPRM.
    A detailed discussion of the Massachusetts September 27, 2018, 
infrastructure SIP submission, and EPA's rationale for proposing 
approval of the SIP submission appear in the DFR and we will not 
restate that here, except to the extent relevant to our response to the 
public comment on the proposal. EPA also received two requests to 
extend the public comment period for the NPRM until after the COVID-19 
pandemic is over. EPA is denying these extension requests, and the 
reasons for this denial can be found in the docket for this rulemaking.

II. Response to Comment

    EPA received one adverse comment on the March 13, 2020, notice of 
proposed rulemaking.
    Comment: ``EPA is also approving the state's SIP as having adequate 
resources, how was EPA able to identify whether the state had adequate 
resources before the COVID-19 outbreak and how can the outbreak not 
affect the state's ability to continue having adequate resources? And 
how is EPA sure the state has adequate enforcement abilities to carry 
out its mission to protect environmental and human health after Trump's 
EPA issued a BLANKET waiver to all environmental rules??? EPA can't 
possibly think a state is able to enforce the state's rules in addition 
to EPA's rules that Trump has declined to persecute [sic]. EPA can't 
approve the state's ability to have adequate resources or adequate 
funding or adequate enforcement if EPA's review is predicated on the 
belief of pre-COVID-19 conditions will continue now.''
    Response: The comment provides little detail, but it appears to 
raise three general issues. First, it asks how EPA was ``able to 
identify whether the state had adequate resources'' before the COVID-19 
pandemic. Second, it questions any conclusion that Massachusetts has 
``adequate resources'' and ``adequate enforcement abilities'' in light 
of the pandemic. And third, it asks how EPA can be sure that 
Massachusetts has ``adequate enforcement abilities'' in light of what 
the comment refers to as an EPA-issued ``BLANKET waiver to all 
environmental rules.'' On the third issue, the comment does not 
specifically identify an EPA ``waiver,'' but EPA assumes the commenter 
refers to EPA's March 26, 2020, memorandum entitled ``COVID-19 
Implications for EPA's Enforcement and Compliance Assurance Program'' 
(hereinafter, ``March 2020 memorandum'' or ``EPA Enforcement Memo''). 
The comment does not identify a particular section (or sections) of the 
Clean Air Act that it believes Massachusetts failed to satisfy but it 
is reasonable to assume that the commenter is referring to the 
requirements of sections 110(a)(2)(C) (pertaining to enforcement) and 
section 110(a)(2)(E) (pertaining to state resources).
    As an initial matter, the purpose of an infrastructure SIP 
submission is to demonstrate that the state's SIP contains the basic 
program elements needed to implement, maintain, and enforce the 
particular NAAQS at issue, in this case, the 2015 ozone NAAQS. If the 
current SIP fails to satisfy these basic program elements then the 
state should revise the existing SIP so that EPA may evaluate these 
elements and approve them into the SIP, as appropriate. A SIP is 
generally comprised of state regulations, statutes and other documents 
used by the state that the EPA has approved as meeting applicable CAA 
requirements. In the context of acting on infrastructure SIP 
submissions, EPA evaluates the state's SIP submission to determine 
whether the submission meets the applicable statutory requirements of 
CAA sections 110(a)(1) and 110(a)(2) and the appropriate regulatory 
requirements. EPA is not evaluating the state's implementation of its 
SIP in this action. See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 
971 (9th Cir. 2018). EPA has other authority to address issues 
concerning a state's implementation of the rules, regulations, consent 
orders, etc. that comprise its SIP.
    EPA disagrees that it should disapprove the infrastructure SIP 
submission for the ``enforcement'' sub-element of CAA 
section110(a)(2)(C), the ``adequate resources'' requirement in CAA 
section 110(a)(2)(E)(i), or both. Section 110(a)(2)(E)(i) of the Act 
requires each SIP to provide ``necessary assurances that the State . . 
. will have adequate personnel, funding, and authority under State . . 
. law to carry out such implementation plan.'' Thus, under this 
section, EPA evaluates a state's infrastructure SIP submission for 
evidence that the state has provided necessary assurances that it has 
adequate resources to carry out the SIP. Element E does not require the 
EPA to conduct an audit of state resources or personnel. Nevertheless, 
upon receiving this comment, EPA requested supplemental information 
from MassDEP to provide more detail about Department staff and 
resources. In this supplemental document, MassDEP states, ``MassDEP 
resources to implement the SIP include staff and managers in the Bureau 
of Air and Waste (BAW), including the Division of Air and Climate 
Programs in MassDEP's Boston office (approximately 29 staff), the Air 
Assessment Branch based in MassDEP's Wall Experiment Station laboratory 
in Lawrence (approximately 23 staff), and the permitting and compliance 
and enforcement (C&E) units in each of the four MassDEP regional 
offices (approximately 55 staff).'' MassDEP further notes that these 
numbers do not include additional staff in the separate legal, 
research, and information technology units that also

[[Page 8695]]

support the Commonwealth's efforts carrying out the SIP.
    MassDEP staff and operations are funded by the Commonwealth and 
through EPA grants, including annual funding through CAA sections 103 
and 105 to assist with the costs of implementing programs for the 
prevention and control of air pollution or implementation of national 
primary and secondary ambient air quality standards. Massachusetts also 
has an EPA-approved fee program under CAA title V which is used to 
support title V program elements such as permitting, monitoring, 
testing, inspections, and enforcement. MassDEP's budget has been 
consistent over the past number of years and over these years 
Massachusetts has been able to meet its statutory commitments under the 
Act.\1\ MassDEP also reports that ``There are no plans that would 
significantly alter these resources in the 5-year period following 
submission of the Certification or beyond and therefore MassDEP expects 
to have adequate resources to implement the SIP in the future.'' The 
full supplemental submission from MassDEP can be found in the docket 
for this rulemaking.
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    \1\ https://budget.digital.mass.gov/summary/fy20/enacted/energy-and-environmental-affairs/environmental-protection/?tab=historical-spending.
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    EPA explained in the DFR that Massachusetts' infrastructure SIP 
submission documented that its air agency, MassDEP, has the requisite 
authority and resources to carry out its SIP obligations. In 
particular, 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 original and 
supplemental submissions MassDEP has provided an adequate description 
of its resources to allow EPA to assess that MassDEP has adequate 
personnel and funding to carry out the SIP during the five years 
following infrastructure SIP submission and in future years. Thus, with 
respect to the first issue raised by the comment, EPA finds that 
MassDEP has provided an adequate description of its staffing resources 
and that this information, when considered together with the budget 
information, is sufficient for EPA to conclude that the Commonwealth 
has adequate personnel, funding, and authority under State law to meet 
its SIP obligations sufficient to justify approval of the SIP submittal 
for section 110(a)(2)(E)(i).
    With respect to the second issue, the commenter expresses concern 
that the impacts of the ongoing COVID 19 pandemic can only result in 
the Commonwealth having inadequate resources to meet its SIP 
obligations. As explained above, MassDEP provides assurances in the 
infrastructure SIP submission and supplemental document that it has 
adequate personnel and funding to carry out the SIP during the five 
years following the submission and in future years. We also note that 
the Massachusetts' Governor's 2021 budget recommendation proposes a 
similar level of funding for MassDEP as it has received in recent 
years.\2\ Moreover, the Commonwealth receives federal grants under CAA 
sections 103 and 105 to assist it in carrying out the SIP, and other 
funding sources include permit fees and title V fees collected by 
MassDEP. If the Commonwealth's implementation of its SIP is 
substantially affected in the future by the pandemic, EPA has the 
statutory authority under the CAA to address such issues through means 
other than disapproving the infrastructure SIP submission at this time. 
Based on the original SIP submission and supplemental information, EPA 
finds that MassDEP has provided necessary information for EPA to 
conclude that MassDEP has and will continue to have adequate personnel 
and funding to carry out the SIP. For these reasons, EPA does not agree 
that it must disapprove the infrastructure SIP submission for section 
110(a)(2)(E)(i) in light of the pandemic.
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    \2\ https://budget.digital.mass.gov/govbudget/fy21/appropriations/energy-and-environmental-affairs/environmental-protection?tab=budget-summary.
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    Also, with respect to the second issue raised, the comment also 
expresses concern that the Commonwealth will not have ``adequate 
enforcement abilities'' in light of the pandemic. While the commenter 
does not identify any particular infrastructure SIP requirement with 
this claim, it is possible that the commenter may be objecting to EPA's 
approval of the ISIP submittal for the enforcement sub-element of 
section 110(a)(2)(C). This sub-element requires that each state's SIP 
``include a program to provide for the enforcement of'' the emission 
limits and control measures that the state air agency identified in its 
submission for purposes of satisfying 110(a)(2)(A). In the DFR, EPA 
explained that the Massachusetts SIP includes such a program. In 
particular, EPA noted specific provisions of state law that authorize 
MassDEP to adopt regulations to control air pollution, to enforce such 
regulations and to assess penalties for non-compliance. EPA also 
highlighted state regulations currently in the SIP. Thus, EPA explained 
that the SIP includes a program to provide for the enforcement of SIP 
measures. EPA acknowledges the COVID-19 pandemic has the potential to 
impact the resources available to the state to maintain its program; 
however, proposed level funding for FY2021 indicates that MADEP will 
maintain their current program capability. EPA also notes that The 
Commonwealth has been a leader among all states in being proactive to 
address air quality concerns. Nevertheless, if an actual resources 
problem were to develop, EPA has the statutory authority to address 
such issues through means other than disapproving the infrastructure 
SIP submission at this time.
    Finally, the commenter expresses concern that Massachusetts does 
not have ``adequate enforcement abilities'' in light of what the 
commenter characterizes as a ``blanket waiver'' by EPA of environmental 
rules. EPA does not agree that the March 2020 memorandum is a ``blanket 
waiver,'' \3\ but in any event the memorandum applies to EPA's own 
enforcement activities, not a state's. See EPA Enforcement Memo at 1-2 
(``Authorized states or tribes may take a different approach under 
their own authorities.''). Therefore, it does not affect whether 
Massachusetts has ``adequate enforcement abilities'' and does not 
affect Massachusetts' ``program to provide for the enforcement of'' SIP 
measures. Furthermore, on August 31, 2020, EPA terminated the temporary 
policy described in the March 2020 memorandum. See COVID-19 
Implications for EPA's Enforcement and Compliance Assurance Program: 
Addendum on Termination, EPA (June 29, 2020). For these reasons, the 
March 2020 memorandum is not a reason to disapprove the Massachusetts' 
ISIP submittal for the enforcement sub-element in section 110(a)(2)(C).
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    \3\ For instance, the memorandum does not apply to criminal 
violations, imports, or activities that are carried out under 
Superfund and RCRA Corrective Action enforcement instruments. EPA 
Enforcement Memo at 2. Moreover, the enforcement discretion set 
forth in the memorandum is temporary and is conditioned on regulated 
entities making every effort to comply with their environmental 
compliance obligations. Id.
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    For the above reasons, EPA concludes that the comment does not 
justify disapproving the Commonwealth's infrastructure SIP submittal 
for the 2015 ozone NAAQS for compliance with the requirements of CAA 
sections 110(a)(2)(C) or (E)(i).

[[Page 8696]]

III. Final Action

    EPA is approving most portions of the Massachusetts infrastructure 
SIP submission for the 2015 ozone NAAQS. We are also issuing a finding 
of failure to submit pertaining to the various infrastructure SIP 
requirements that pertain to the prevention of significant 
deterioration (PSD) program, i.e., section 110(a)(2)(C) sub-element 2, 
the PSD portion of Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD 
(Prong 3), section 110(a)(2)(D)(ii) with respect to the PSD-related 
notice of interstate pollution, section 110(a)(2)(J) sub-element 1 with 
respect to the FLM consultation requirement for PSD permitting, and 
section 110(a)(2)(J) sub-element 3 (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 
infrastructure SIP submission for the 2015 Ozone NAAQS, i.e., section 
110(a)(2)(D). This action is being taken in accordance with the Clean 
Air Act.

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).
    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 April 12, 2021. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 3, 2021.
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

0
2. In Sec.  52.1120(e), amend the table by adding an entry for 
``Infrastructure SIP submittal for 2015 Ozone NAAQS'' at the end of the 
table to read as follows:


 Sec.  52.1120   Identification of plan.

* * * * *
    (e) * * *

[[Page 8697]]



                                          Massachusetts Non Regulatory
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                                      Applicable        State submittal
   Name of non regulatory SIP        geographic or      date/effective     EPA approved date     Explanations
            provision             nonattainment area         date                 \3\
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                                                  * * * * * * *
Infrastructure SIP submittal for  Statewide.........  September 27, 2018  February 9, 2021,   Approved with
 2015 Ozone NAAQS.                                                         [Insert Federal     respect to
                                                                           Register            requirements for
                                                                           citation].          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).
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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. 2021-02536 Filed 2-8-21; 8:45 am]
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