[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Rules and Regulations]
[Pages 68364-68367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24661]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 55

[EPA-R01-OAR-2021-0790; FRL-9265-02-R1]


Outer Continental Shelf Air Regulations; Consistency Update for 
Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is updating a 
portion of the Outer Continental Shelf (OCS) Air

[[Page 68365]]

Regulations. Requirements applying to OCS sources located within 25 
miles of states' seaward boundaries must be updated periodically to 
remain consistent with the requirements of the corresponding onshore 
area (COA), as mandated by the Clean Air Act. The portion of the OCS 
air regulations that is being updated pertains to the requirements for 
OCS sources for which Massachusetts is the designated COA. The 
Commonwealth of Massachusetts' requirements discussed in this document 
will be incorporated by reference into the Code of Federal Regulations 
and listed in the appendix to the Federal OCS air regulations.

DATES: This rule is effective on December 15, 2022. The incorporation 
by reference of certain publications listed in this rule is approved by 
the Director of the Federal Register as of December 15, 2022.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2021-0790. 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., 
confidential business information (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 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: CareyAnne Howlett, Air and Radiation 
Division, U.S. Environmental Protection Agency, EPA Region 1, U.S. 
Environmental Protection Agency, EPA Region 1 Regional Office, Air and 
Radiation Division, 5 Post Office Square--Suite 100, Boston, MA 02109, 
(617) 918-1702, [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. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On September 4, 1992, the EPA promulgated 40 CFR part 55,\1\ which 
established requirements to control air pollution from OCS sources in 
order to attain and maintain Federal and state ambient air quality 
standards and to comply with the provisions of part C of title I of the 
Clean Air Act (CAA). The regulations at 40 CFR part 55 apply to all OCS 
sources offshore of the states except those located in the Gulf of 
Mexico west of 87.5 degrees longitude. Section 328 of the CAA requires 
that for such sources located within 25 miles of a state's seaward 
boundary, the requirements shall be the same as would be applicable if 
the sources were located in the COA. Because the OCS requirements are 
based on onshore requirements, and onshore requirements may change, 
section 328(a)(1) requires that the EPA update the OCS requirements as 
necessary to maintain consistency with onshore requirements.
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    \1\ The reader may refer to the notice of proposed rulemaking, 
December 5, 1991 (56 FR 63774), and the preamble to the final rule 
promulgated September 4, 1992 (57 FR 40792), for further background 
and information on the OCS regulations.
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    On November 23, 2021 (86 FR 66509), the EPA published a notice of 
proposed rulemaking (NPRM) proposing to incorporate various 
Massachusetts air pollution control requirements into 40 CFR part 55. 
Pursuant to 40 CFR 55.12, consistency reviews will occur (1) at least 
annually; (2) upon receipt of a Notice of Intent (NOI) under 40 CFR 
55.4; or (3) when a state or local agency submits a rule to the EPA to 
be considered for incorporation by reference in 40 CFR part 55. EPA's 
NPRM was initiated in response to the submittal of an NOI on September 
9, 2021 by Sunrise Wind, LLC. However, EPA also received an NOI on 
November 5, 2021 from Revolution Wind, LLC, an NOI on January 28, 2022 
from New England Wind, LLC, and an NOI on May 31, 2022 from Mayflower 
Wind Energy, LLC. In accordance with 40 CFR 55.5, Massachusetts is the 
designated COA for each of these projects.
    Upon receipt of the subsequent NOI's from Revolution Wind, LLC, New 
England Wind, LLC, and Mayflower Wind Energy, LLC, EPA conducted a 
consistency review in accordance with regulations at 40 CFR 55.12. 
Since EPA's November 23, 2021 NPRM, Massachusetts revised the 
regulations at 310 CMR 7.00 (Statutory Authority; Legend; Preamble; 
Definitions) and 310 CMR 7.40 (Low Emission Vehicle Program), effective 
December 30, 2021.\2\ EPA previously determined that the regulations at 
310 CMR 7.40 (Low Emission Vehicle Program) were not applicable to OCS 
sources and did not propose to incorporate this section of 310 CMR 7.00 
into part 55 as part of the November 23, 2021 NPRM. Although EPA's NPRM 
proposed to incorporate by reference the definitions located at 310 CMR 
7.00 (Statutory Authority; Legend; Preamble; Definitions), 
Massachusetts Department of Environmental Protection's (MassDEP's) most 
recent revisions to 310 CMR 7.00 (Statutory Authority; Legend; 
Preamble; Definitions) were related to the amendments to the 
regulations at 310 CMR 7.40 (Low Emission Vehicle Program). EPA has 
reviewed the recent amendments to the Massachusetts regulations at 310 
CMR 7.00 (Statutory Authority; Legend; Preamble; Definitions) and 
determined that these changes are non-substantive revisions as they 
relate to OCS sources, and that it is not necessary to propose an 
additional consistency update at this time. Therefore, this final 
action will incorporate by reference the Massachusetts regulations at 
310 CMR 7.00 that were effective March 5, 2021 as proposed in the NPRM. 
In addition, this final action will satisfy EPA's obligation under 
Sec.  55.12 to conduct a consistency review for the subsequent NOI's 
received from Revolution Wind, LLC, New England Wind, LLC, Mayflower 
Wind Energy, LLC.
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    \2\ The revised regulations to 310 CMR 7.00 and 310 CMR 7.40 are 
available online at https://www.mass.gov/regulations/310-CMR-700-air-pollution-control#recently-promulgated-amendments.
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    The EPA reviewed the rules for inclusion in 40 CFR part 55 to 
ensure that they are rationally related to the attainment or 
maintenance of Federal or state ambient air quality standards and 
compliance with part C of title I of the CAA, that they are not 
designed expressly to prevent exploration and development of the OCS, 
and that they are potentially applicable to OCS sources. See 40 CFR 
55.1. The EPA has also evaluated the rules to ensure they are not 
arbitrary or capricious. See 40 CFR 55.12(e). In addition, the EPA has 
excluded administrative or procedural rules,\3\ and requirements that 
regulate

[[Page 68366]]

toxics which are not related to the attainment and maintenance of 
Federal and state ambient air quality standards.
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    \3\ Each COA which has been delegated the authority to implement 
and enforce part 55 will use its administrative and procedural rules 
as onshore. However, in those instances where the EPA has not 
delegated authority to implement and enforce part 55, the EPA will 
use its own administrative and procedural requirements to implement 
the substantive requirements. See 40 CFR 55.14(c)(4).
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    Section 328(a) of the CAA requires that the EPA establish 
requirements to control air pollution from OCS sources located within 
25 miles of states' seaward boundaries that are the same as onshore 
requirements. To comply with this statutory mandate, the EPA must 
incorporate applicable onshore rules into 40 CFR part 55 as they exist 
onshore. This limits the EPA's flexibility in deciding which 
requirements will be incorporated into 40 CFR part 55 and prevents the 
EPA from making substantive changes to the requirements it 
incorporates. As a result, the EPA may be incorporating rules into 40 
CFR part 55 that do not conform to all of the EPA's state 
implementation plan (SIP) guidance or certain requirements of the CAA. 
Consistency updates may result in the inclusion of state or local rules 
or regulations into 40 CFR part 55, even though the same rules may 
ultimately be disapproved for inclusion as part of the SIP. Inclusion 
in the OCS rule does not imply that a rule meets the requirements of 
the CAA for SIP approval, nor does it imply that the rule will be 
approved by the EPA for inclusion in the SIP.
    The specific requirements of the consistency update and the 
rationale for EPA's proposed action are explained in the November 23, 
2021 NPRM. No comments were received on the NPRM.

II. Final Action

    The EPA is taking final action to incorporate the rules potentially 
applicable to OCS sources for which the Commonwealth of Massachusetts 
will be the COA. The rules that the EPA is taking final action to 
incorporate are applicable provisions of: (1) 310 CMR 4.00: Timely 
Action Schedule and Fee Provisions; (2) 310 CMR 6.00: Ambient Air 
Quality Standards for the Commonwealth of Massachusetts; and (3) 310 
CMR 7.00: Air Pollution Control, as amended through March 5, 2021. The 
rules that EPA is taking final action to incorporate will replace the 
rules previously incorporated into 40 CFR part 55 for Massachusetts. 
This action will have no effect on the provisions of 310 CMR 8.00 that 
were not subject to changes by Massachusetts and were also previously 
incorporated by reference into part 55 through EPA's November 13, 2018 
rulemaking. See 83 FR 56259; November 13, 2018.

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 
``Commonwealth of Massachusetts Requirements Applicable to OCS 
Sources,'' dated March 5, 2021, which provides the text of the MassDEP 
air rules in effect as of March 5, 2021 that would apply to OCS source. 
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).

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to establish 
requirements to control air pollution from OCS sources located within 
25 miles of states' seaward boundaries that are the same as onshore air 
pollution control requirements. To comply with this statutory mandate, 
the EPA must incorporate applicable onshore rules into 40 CFR part 55 
as they exist onshore. See 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in 
promulgating OCS consistency updates, the EPA's role is to maintain 
consistency between OCS regulations and the regulations of onshore 
areas, provided that they meet the criteria of the CAA. Accordingly, 
this action simply updates the existing OCS requirements to make them 
consistent with requirements onshore, without the exercise of any 
policy direction by the EPA. 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 certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, nor does it impose 
substantial direct compliance costs on tribal governments or preempt 
tribal law.
    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 January 17, 2023. 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).)

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    This action does not impose any new information collection burden 
under the Paperwork Reduction Act. See 44 U.S.C 3501. The Office of 
Management and Budget (OMB) has previously approved the information 
collection activities contained in the existing regulation at 40 CFR 
part 55 and, by extension, this update to part 55, and has assigned OMB 
control number 2060-0249.\4\ This action does not impose a new 
information burden under the Paperwork Reduction Act because this 
action only updates the state rules that are incorporated by reference 
into 40 CFR part 55, appendix A.
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    \4\ OMB's approval of the information collection requirement 
(ICR) can be viewed at www.reginfo.gov.
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List of Subjects in 40 CFR Part 55

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

    Dated: November 4, 2022.
David Cash,
Regional Administrator, EPA Region 1.
    Part 55 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 55--OUTER CONTINENTAL SHELF AIR REGULATIONS

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

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


0
2. Section 55.14 is amended by revising paragraph (e)(11)(i)(A) to read 
as follows:


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

* * * * *
    (e) * * *
    (11) * * *
    (i) * * *
    (A) Commonwealth of Massachusetts Requirements Applicable to OCS 
Sources, March 5, 2021.
* * * * *

0
3. Appendix A to part 55 is amended by revising paragraph (a)(1) under 
the heading ``Massachusetts'' to read as follows:

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

* * * * *

Massachusetts

    (a) * * *
    (1) The following Commonwealth of Massachusetts requirements are 
applicable to OCS Sources, March 5, 2021, Commonwealth of 
Massachusetts--Department of Environmental Protection.
    The following sections of 310 CMR 4.00, 310 CMR 6.00, 310 CMR 
7.00 and 310 CMR 8.00:

310 CMR 4.00: Timely Action Schedule and Fee Provisions

Section 4.01: Purpose, Authority and General Provisions (Effective 
5/1/2020)
Section 4.02: Definitions (Effective 5/1/2020)
Section 4.03: Annual Compliance Assurance Fee (Effective 5/1/2020)
Section 4.04: Permit Application Schedules and Fee (Effective 5/1/
2020)
Section 4.10: Appendix: Schedules for Timely Action and Permit 
Application Fees (Effective 5/1/2020)
310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of 
Massachusetts
Section 6.01: Definitions (Effective 6/14/2019)
Section 6.02: Scope (Effective 6/14/2019)
Section 6.03: Reference Conditions (Effective 6/14/2019)
Section 6.04: Standards (Effective 6/14/2019)

310 CMR 7.00: Air Pollution Control

Section 7.00: Statutory Authority; Legend; Preamble; Definitions 
(Effective 3/5/2021)
Section 7.01: General Regulations to Prevent Air Pollution 
(Effective 3/5/2021)
Section 7.02: U Plan Approval and Emission Limitations (Effective 3/
5/2021)
Section 7.03: U Plan Approval Exemptions: Construction Requirements 
(Effective 3/5/2021)
Section 7.04: U Fossil Fuel Utilization Facilities (Effective 3/5/
2021)
Section 7.05: U Fuels All Districts (Effective 3/5/2021)
Section 7.06: U Visible Emissions (Effective 3/5/2021)
Section 7.07: U Open Burning (Effective 3/5/2021)
Section 7.08: U Incinerators (Effective 3/5/2021)
Section 7.09: U Dust, Odor, Construction and Demolition (Effective 
3/5/2021)
Section 7.11: U Transportation Media (Effective 3/5/2021)
Section 7.12: U Source Registration (Effective 3/5/2021)
Section 7.13: U Stack Testing (Effective 3/5/2021)
Section 7.14: U Monitoring Devices and Reports (Effective 3/5/2021)
Section 7.18: U Volatile and Halogenated Organic Compounds 
(Effective 3/5/2021)
Section 7.19: U Reasonably Available Control Technology (RACT) for 
Sources of Oxides of Nitrogen (NOX) (Effective 3/5/2021)
Section 7.24: U Organic Material Storage and Distribution (Effective 
3/5/2021)
Section 7.25: U Best Available Controls for Consumer and Commercial 
Products (Effective 3/5/2021)
Section 7.26: Industry Performance Standards (Effective 3/5/2021)
Section 7.60: U Severability (Effective 3/5/2021)
7.70: Massachusetts CO Budget Trading Program (Effective 3/5/2021)
7.71: Reporting of Greenhouse Gas Emissions (Effective 3/5/2021)
7.72: Reducing Sulfur Hexafluoride Emissions from Gas-insulated 
Switchgear (Effective 3/5/2021)
Section 7.00: Appendix A (Effective 3/5/2021)
Section 7.00: Appendix B (Effective 3/5/2021)
Section 7.00: Appendix C (Effective 3/5/2021)

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

Section 8.01: Introduction (Effective 3/9/2018)
Section 8.02: Definitions (Effective 3/9/2018)
Section 8.03: Air Pollution Episode Criteria (Effective 3/9/2018)
Section 8.04: Air Pollution Episode Potential Advisories (Effective 
3/9/2018)
Section 8.05: Declaration of Air Pollution Episodes and Incidents 
(Effective 3/9/2018)
Section 8.06: Termination of Air Pollution Episodes and Incident 
Emergencies (Effective 3/9/2018)
Section 8.07: Emission Reductions Strategies (Effective 3/9/2018)
Section 8.08: Emission Reduction Plans (Effective 3/9/2018)
Section 8.15: Air Pollution Incident Emergency (Effective 3/9/2018)
Section 8.30: Severability (Effective 3/9/2018)
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[FR Doc. 2022-24661 Filed 11-14-22; 8:45 am]
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