[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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