Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Amendment to Massachusetts' SIP (for Ozone and for Carbon Monoxide) for Transit Systems Improvements and High Occupancy Vehicle Facilities in the Metropolitan Boston Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-24-1-6028; A-1-FRL-4821-3]

Approval and Promulgation of Air Quality Implementation Plans;

Massachusetts; Amendment to Massachusetts' SIP (for Ozone and for

Carbon Monoxide) for Transit Systems Improvements and High Occupancy

Vehicle Facilities in the Metropolitan Boston Air Pollution Control

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

revision submitted by the Commonwealth of Massachusetts. This revision

provides for the Commonwealth of Massachusetts' Executive Office of

Transportation and Construction to construct and operate specified

transit facilities and high occupancy vehicle (HOV) lanes established

therein. Implementation of the defined transportation projects will

help reduce the use of automobiles, provide for additional transit

facilities in the Metropolitan Boston Region, and improve traffic

operations on the region's roadways, resulting in improved air quality.

This action should have a beneficial effect on air quality because it

is intended to reduce vehicle miles traveled (VMT) in the Boston

Metropolitan Area. The emissions to be reduced include hydrocarbons

(ground-level ozone precursors) and carbon monoxide (CO).

This action is being taken under section 110(a) and (l) of the

Clean Air Act.

DATES: Comments must be received on or before February 18, 1994.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environ- mental

Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.

Copies of the Commonwealth's submittal and EPA's technical support

document are available for public inspection during normal business

hours by appointment at the Air, Pesticides and Toxics Management

Division, U.S. Environmental Protection Agency, Region I, One Congress

Street, 10th floor, Boston, MA; and the Division of Air Quality

Control, Department of Environmental Protection, One Winter Street, 7th

Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, (617) 565-3227.

SUPPLEMENTARY INFORMATION: On December 9, 1991, the Massachusetts

Department of Environmental Protection (MA DEP) submitted a revision to

its SIP for Transit Systems Improvements and HOV Facilities in the

Metropolitan Boston Air Pollution Control District. This new regulation

commits the Massachusetts Executive Office of Transportation and

Construction (MA EOTC) to pursue implementation, monitoring, and

enforcement of transit system improvements and HOV facilities that were

identified as transportation and air quality mitigation measures in a

1990 Final Supplemental Environmental Impact Statement for the CA/THT

project. EPA determined five of the proposed TCMs were necessary to

help achieve an air quality benefit from the CA/THT. This SIP amendment

amends 310 CMR 7.00 by adding two new sections; 310 CMR 7.36-''Transit

System Improvements,'' and 310 CMR 7.37-''High Occupancy Vehicle

Lanes.''

Background

The intent of the proposed regulation is to reduce concentrations

of ground-level ozone by codifying commitments from the MA EOTC to

implement HOV and transit system improvements. These commitments were

originally included as part of a Metropolitan Planning Organization-

approved Memorandum of Understanding (MOU): Traffic and Air Quality

Mitigation For the Central Artery/Third Harbor Tunnel Project (CA/T)

and were incorporated into Massachusetts Air Pollution Control

Regulations 310 CMR 7.00 through adding Section 7.36: Transit System

Improvements; and Section 7.37: High Occupancy Vehicle Lanes. The

regulations are designed to help reduce the use of automobiles, to

provide for additional transit facilities in the Metropolitan Boston

region, and to improve traffic operations on the region's roadways,

resulting in improved air quality.Reducing VMT eases traffic congestion

and can lead to improved air quality. To the extent that reductions in

regional VMT improve traffic flow, a subsequent reduction in the

sources of CO and volatile organic compounds (VOC) may be achieved.

Reducing VMT will also contribute to a direct and indirect

reduction in air toxics. Emissions from gasoline-driven engines contain

air toxics, such as benzene, a known carcinogen. Many products of

incomplete combustion, including polycyclic aromatic hydrocarbons such

as benzo-a-pyrene, are emitted by gasoline and diesel engines and are

associated with chronic and acute health effects. Gasoline vapors

released during transfer or pumping of fuel also contain benzene and

other air toxics. The health effects of air toxics are wide-ranging and

can vary from long-term carcinogenic effects, to short-term adverse

health effects.

The Massachusetts regulations are designed to support the

Commonwealth's transportation control strategies and future attempts to

control VMT and ease traffic congestion in the metropolitan Boston

Area. For example, the facilities provided for in these regulations

could support the development of employee trip-reduction programs by

creating alternatives to single-occupant vehicles.

Summary of Proposed Transit System Improvements

The Transit System Improvements regulation consists of seven

subsections summarized as follows:

(1) Applicability: The transit system improvements regulation

applies to MA EOTC.

(2) Transit System Improvement Projects: The following transit

projects must be completed and available for public use by these dates:

By December 31, 1992-Lynn Central Square Station and Parking

Garage, North Station high platforms and high tracks, Lynn Transit

Station Bus Terminal.

By December 31, 1994-South Station Bus Terminal, South Station

Track Number 12, Ipswich Commuter Rail Line extension to Newburyport.

By December 31, 1996-Old Colony Commuter Rail Line Extension,

Framingham Commuter Rail Line Extension to Worcester, 10,000 Park and

Ride and Commuter Rail parking spaces outside of the Boston core.

By December 31, 1997-Green Line Arborway Restoration.

By December 31, 1998-Blue Line platform lengthening and

modernization.

By December 31, 1999-10,000 Park and Ride and Commuter Rail

Station Parking spaces outside of the Boston core in addition to those

completed by December 31, 1996.

By December 31, 2001-South Boston Piers Electric Bus Service.

By December 31, 2011-Green Line extension to Ball Square/Tufts

University, Blue Line Connection from Bowdoin Station to the Red Line

at Charles Station.

(3) Project Delays, Project Deadline Extensions; and

(4) Substitute Transit System Improvement Projects: As described

above, section 7.36(2) of the regulation identifies specific transit

projects which must be completed by specific dates. In section 7.36(3)

of the regulation, however, it appears MA EOTC is authorized to send MA

DEP a notice delaying the completion date for any project. If the date

is delayed for more than three years, the rule requires MA EOTC to

propose a substitute transit improvement project under the process

contained in section 7.36(4). EPA is taking comments on the way the

transit project regulation addresses project delays and substitute

projects.

Under 7.36(4), MA EOTC may at any time, and pursuant to 7.36(3)

must in the event of a delay of over 3 years, propose a substitute

transit project to MA DEP. MA EOTC may substitute a project if EOTC

demonstrates to MA DEP that the project:

* * * achieves equal or greater emission reductions of

nonmethane hydocarbons [sic] (NMHC), carbon monoxide (C0) and

nitrogen oxides (NOx) and would provide a greater improvement in air

quality for CO and NOx in the area where the required project was to

have been implemented, in both the short and long term.

310 CMR 7.36(4)(a)(1). MA DEP must supply EPA with a copy of MA EOTC's

petition for the substitute, any demonstration, and MA DEP's action on

the petition. However, EPA has no role in approving the project or

reviewing it prior to MA DEP's acceptance of the substitute. In

addition, there is also no public notice provided for any decision to

substitute a project.

EPA has two concerns with these provisions. First, EPA and the

public cannot rely on the completion dates listed in 7.36(2) as the

final enforceable compliance dates for the transit projects. The rule

allows MA EOTC and MA DEP to extend those dates by at least 3 years.

Second, and more importantly, at the end of any 3 year delay or any

time before that, MA DEP is authorized, without any EPA concurrence or

public comment, to substitute another transit project for those listed

in the rule. MA DEP has imposed on itself and MA EOTC a standard for

reviewing substitute projects, quoted above, that essentially requires

the new project to provide air quality benefits equivalent to or better

than the original project specified in the regulation. But other than

to limit substitute projects to ``transit improvement projects,'' the

type of substitute project is otherwise unconstrained by the

regulation.

There are many types of transportation control measures that might

reasonably be treated as substitute transit projects under this rule,

ranging from concrete capital investments such as different rail lines

or special bus lanes to market-based incentives such as mass transit

fare subsidies or highway tolls.1 It is impossible for EPA to know

what sort of substitute projects MA DEP might be evaluating in the

future. Consequently, it is also impossible for EPA to judge

objectively the equivalency of any new project, since the MA DEP has

not committed to using EPA-approved methodology for determining air

quality benefits. The regulation does not provide for any specific

quantification methodology that might allow EPA to assess the

replicability of any air quality benefits analysis MA DEP will conduct

in evaluating a substitute project. Therefore, EPA cannot now calculate

with acceptable reliability the emissions reductions MA DEP, EPA, and

the public will be able to enforce under this rule.

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\1\For example, the regulation elsewhere requires EOTC to study

the feasibility of implementing toll pricing, operating water

shuttle services, improving rail service among major cities in the

region, and indexing transit fares to encourage use of transit

facilities. 310 CMR 7.36(6). (See also the types of TCM's enumerated

in section 108(f) of the Act.)

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On the other hand, EPA believes that the kind of transit measures

identified in this rule are directionally sound and that any substitute

project meeting the standard contained in the rule should contribute to

achieving the air quality standards for ozone and CO. Since under the

current ozone and CO SIPs for this area, there are no specific measures

to promote transit projects, section 7.36 must necessarily contribute

more emissions reductions toward attainment than the existing SIP. So

although EPA has concerns about the quantification of air quality

benefits these rules will achieve, EPA is prepared to approve them into

the SIP.2

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\2\Although the transit system improvement regulations and, as

discussed below, the HOV regulations are not strictly speaking

economic incentive program (EIP) rules under either sections 182 or

187 of the Act, the analogy to so-called ``directionally sound''

EIPs is useful. In its recent proposal to guide implementation of

EIPs, EPA defines directionally sound strategies as ``strategies for

which adequate procedures to quantify emission reductions . . . are

not defined as part of the EIP.'' 58 FR 11126, Sec. 51.491 (Feb. 23,

1993). The proposal provides that directionally sound strategies

that ``do not yield quantifiable emissions reductions creditable

towards RFP or attainment demonstrations . . . may be included in an

area's attainment plan, without credit . . . if the strategy

contributes to the area coming into . . . attainment.'' 58 FR 11113.

Similarly, the transit project and HOV regulations do not provide

for adequate procedures to quantify emission reductions from

substitute projects, but should generally contribute toward

attainment.

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To address EPA's concerns, however, the Agency proposes not to

grant Massachusetts any credit for emissions reductions from these

measures in any reasonable further progress (RFP), attainment, or

maintenance demonstration, unless DEP submits a SIP revision making the

requirement for the transit measure, or any substitute for that

measure, federally enforceable. Upon approval of the SIP revision

including the transit measure, Massachusetts could take credit for the

measure, and the requirement to implement that measure would become an

enforceable part of the SIP. EPA is proposing this approach because

without a SIP revision, DEP could substitute the specific transit

enhancements in these rules for another at any time. Given the inherent

uncertainty in quantifying the emission impacts of potential

substitution measures, as described above, EPA and the public may be

left without an adequate remedy under the DEP rule to assure that the

substitute project is in fact yielding equivalent emissions reductions.

The SIP revision process gives EPA and the public an opportunity to

examine Massachusetts' proposed emissions reduction credits. If DEP

asks for credit for the measures specified in this proposed rule,

approving an enforceable commitment of the Commonwealth into the SIP

should be a relatively simple matter. Where the SIP revision proposes a

substitute project, EPA and the public may need to examine whether the

substitute in fact achieves equivalent reductions.3

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\3\EPA invites comment on which projects are sufficiently

complete to be credited upon approval of this rule, and invites any

documentation DEP can provide that any projects should receive

credit upon approval of this rule. Additionally, EPA invites comment

on how to determine whether a transit project that does not require

any construction is ``substantially complete.'' Market-based

programs such as congestion tolls may require no construction. EPA

proposes to credit such projects when they are ready to implement.

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(5) Project Review and Consultation: MA EOTC must consult with the

MA Highway (formerly MA Department of Public Works), the Massachusetts

Bay Transportation Authority (MBTA), the Metropolitan Area Planning

Council (MAPC), EPA, and MA DEP on a quarterly basis when planning,

directing, constructing, or making transit system improvements.

(6) Transit System Improvement Studies: By December 31, 1991, MA

EOTC must draft and issue for comment an initial study of transit

improvement strategies (in addition to those listed above), which will

ultimately be incorporated into a Program for Mass Transit (PMT). By

December 31, 1991, MA EOTC must draft and issue for comment the

following transit system improvement studies: a toll pricing

feasibility study to regulate single occupant vehicle trips to Logan

Airport; a study of the feasibility of relocating some of the existing

Sumner Tunnel Toll booths to Route 1A; a water shuttle service (for

service between Boston and the North Shore) feasibility study; a study

of transit system improvements which could be made in addition to those

specific improvements listed above also in 310 CMR 7.36(2); a study of

the feasibility of constructing a rail connection between South Station

and Logan Airport; a study to expand the size and number of suburban

locations of Logan airport express service parking and transit

facilities; a study to expand the HOV lanes and services within the

boundaries of Logan Airport. By December 31, 1994, MA EOTC must draft

and issue for comment a study of transit system improvements including:

connecting circumferential transit facilities and radial transit

services; improving travel times and upgrading rail service to New York

City NY, Worcester MA, Springfield MA, Hartford CT and Portland ME; and

indexing transit fares to maximize the use of transit. Each study

identified above would include a technical feasibility analysis,

estimates of time and costs associated with implementing the measures,

and the air quality impacts of the measure. Final reports for studies

in this subsection, containing recommendations and schedule for further

action, must be released by March 30 of the year following the deadline

of the study.

(7) Record Keeping and Reporting: By March 1st of each year, MA

EOTC must submit a progress report to the MA DEP on the status of each

transit project/study in the regulation. The report must contain

expected impacts on transit ridership system-wide. The report will be

distributed to members of the Metropolitan Planning Organization (MPO)

and other interested parties. EPA wishes to identify itself as an

interested party at this time and requests that copies of the reports

be forwarded to the EPA Regional Office.

Summary of Proposed High Occupancy Vehicle Facilities

The High Occupancy Vehicle Lanes regulation consists of eleven

subsections summarized as follows:

(1) Applicability: The regulation applies to MA EOTC and the

Massachusetts Turnpike Authority (MTA).

(2) HOV Lanes: By December 31, 1991, MA EOTC shall extend the I-93

Southbound HOV lane (north of the southern bank of the Charles River)

toward Route 128 to the northernmost point appropriate. Additionally,

the final design of the Charles River crossing on the southbound side

of I-93 extending down to the exit ramp to Nashua Street shall include

an HOV lane on the southbound side of I-93. Furthermore, by May 31,

1993, MA EOTC shall construct and make available HOV lanes northbound

and southbound on I-93 beginning at the intersection of I-93 with I-90

and extending to a point immediately north of the intersection of I-93

and Route 3 if the threshold standards described below are violated for

three consecutive months.

(3) Establishment of Roadway Threshold Standards: By October 1,

1991, MA EOTC shall develop roadway threshold standards that represent

a significant increase in traffic volume above baseline roadway

conditions and that can trigger construction of an HOV lane. Roadway

threshold standards shall be calculated to represent an average weekday

peak-hour trip time increase of 35 percent from baseline roadway

conditions. By December 31, 1991, MA EOTC must document, maintain, and

submit such conditions to the MA DEP for I-93 north- and south-bound

between I-90 and Rte. 3 in Braintree; and I-93 north-bound between the

Charles River crossing and I-95 (Route 128). By December 31, 1991, MTA

must establish roadway threshold standards for I-90 east- and west-

bound between I-93 and I-95 (Route 128). By December 31, 1993, MA EOTC

and the MTA shall each collect such information as is necessary to

identify and document baseline roadway conditions for all these roadway

segments.

(4) Feasibility Studies: Before December 31, 1992, MA EOTC shall

study the feasibility of HOV lanes for the road segments for which

threshold standards are set under subsection (3) above. The study shall

assess the impact of HOV lanes on emissions, general purpose traffic,

and engineering issues.

(5) Additional HOV Facilities: Roadway Threshold Standards:

Beginning on January 1, 1992, MA EOTC and the MTA must monitor roadway

segments listed in (3) above on a monthly basis to ensure that average

trip times do not exceed roadway threshold standards. If the roadway

threshold standards are exceeded for any three-month consecutive

period, MA EOTC is required to notify MA DEP and to implement certain

HOV measures.

MA EOTC's notice to MA DEP will include a schedule for implementing

an HOV lane on the road segment violating the roadway threshold

standards.4 There is no requirement limiting the time by which an

HOV lane must be implemented. However, the addition of HOV lanes on I-

93 in either direction between I-90 and Route 3 and on I-90 in either

direction between I-93 and I-95 must be found to be feasible in the

study to be conducted under subsection 4, above. As discussed below, if

an HOV lane is determined to be infeasible on a roadway where threshold

standards are exceeded, MA EOTC can propose a substitute project.

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\4\The requirement for submitting a notice of violation of the

roadway threshold standards in section 7.37(5)(b) only refers to

EOTC and not the Massachusetts Turnpike Authority as well, whereas

several surrounding provisions refer to both (see sections

7.37(5)(a) and (d)). EPA notes that section 7.37(c)(2) creates an

obligation to add an HOV lane to the Massachusetts Turnpike if

threshold standards are violated. EPA assumes EOTC is fully

authorized to submit a notice of violation triggering such an

obligation on the Turnpike and the Turnpike Authority.

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(6) HOV Performance Standards: Performance standards are defined as

the range of roadway performance between Level of Service B and a

condition of under-utilization. Within 30 days of implementation of an

HOV facility, MA EOTC and MTA must submit performance standards for

each HOV facility or HOV lane under their respective jurisdiction.

(7) Continuous Attainment of Performance Standards: Beginning on

January 1, 1991, MA EOTC and MTA must monitor HOV performance-

measuring trip times quarterly. Measurements must be taken on 5-7

weekdays over two consecutive weeks within each quarter. A minimum of

three time runs must be made in each direction for each HOV roadway

segment on each sample day. MA EOTC and MTA must take all appropriate

measures to maintain compliance with the performance standards,

including increasing the number of occupants required to be eligible

for the HOV lane. If the performance standards are exceeded for each

time run, MA EOTC must report the exceedance to the MA DEP within 10

days of the end of the month in which the exceedance took place,

including measures necessary to return the roadway or facility to

compliance.

(8) Substitute High Occupancy Vehicle Projects: If the feasibility

studies provided for in subsection (4) demonstrate that an HOV lane is

infeasible, MA EOTC can substitute an alternative project by

petitioning MA DEP. The petition must:

* * * include a demonstration that the alternative project

achieves equal or greater emission reductions of NMHC, CO, and NOx

and would provide a greater improvement in air quality for CO and

Nox [sic] in the areas where the required high occupancy vehicle

lane was targeted, both short- and long-term.

310 CMR 7.37(8)(a)(1). The MA DEP is then authorized to substitute an

alternative project. Similar to the substitution process for transit

projects outlined above, EPA must receive a copy of MA EOTC's petition

and demonstrations, and MA DEP's petition, determination, and

supporting documentation; but EPA has no role in reviewing or approving

the substitute before approval by MA DEP.

For the same reasons described above, EPA is prepared to approve

310 CMR 7.37 into the SIP as a directionally sound measure, but not to

grant any credit in RFP, attainment, or maintenance demonstrations

until the Commonwealth irrevocably commits to specific HOV facilities

or substitute measures in a SIP revision. It appears that the first HOV

segment, on I-93 southbound, is largely completed. Beyond that segment,

however, the rule allows MA DEP to substitute alternative projects for

future HOV lanes without any EPA or public scrutiny of the substitute

project.

(9) HOV Studies and Further Actions: MA EOTC must take steps to

enhance and expand Massachusetts Turnpike Authority HOV facilities

including the following: a study to improve air quality and HOV flow

between Rte. 128 and Boston and to examine full-scale HOV lanes and

mechanisms; and a program of HOV toll booths with demarcated lanes,

privileges, and provisions of electronic ID systems to facilitate HOV

flow through toll booths.

By December 31, 1992 MA EOTC shall in consultation with MA Highway

and MTA submit a study to the MA DEP that defines the feasibility of

establishing HOV lanes and HOV incentives for these highways: I-93

northbound and southbound between I-90 and Route 3 in Braintree; I-93

northbound between the Charles River Crossing and I-95; and I-90

eastbound and westbound between I-93 and I-95.

(10) HOV Promotion and Enforcement: By December 31, 1991, MA EOTC

and MTA must submit an enforcement program and plan to the MA DEP. By

April 1, 1992 MA EOTC and MTA shall submit a program to promote HOV

use.

(11) HOV Expansion to the Local Roadway Network: MA EOTC shall

encourage the City of Boston to incorporate HOV facilities into the

construction and reconstruction of city streets, and shall work with

the Massachusetts Port Authority to study HOV needs at Logan Airport.

Air Quality Impacts

As discussed above, EPA believes that the mass transit and HOV

facilities promoted by these regulations support air quality goals and

assist in the maintenance of projected air quality emissions. EPA's

review of this material indicates that the implementation and operation

of the mass transit and HOV facilities will result in improved air

quality, by reducing vehicle trips, providing increased public transit

services, and reducing the number of single occupant motor vehicles.

Reducing VMT will also ease traffic congestion. EPA is therefore

proposing to approve the Massachusetts SIP revision for Ozone and for

Carbon Monoxide, for Transit Systems Improvements and High Occupancy

Vehicle Facilities in the Metropolitan Boston Air Pollution Control

District, which was submitted on December 10, 1991.

EPA is soliciting public comments on the issues discussed in this

notice or on other relevant matters. These comments will be considered

before taking final action. Interested parties may participate in the

Federal rulemaking procedure by submitting written comments to the EPA

regional office listed in the Addresses section of this document.

Proposed Action

EPA is proposing to approve the SIP amendment for Ozone and for

Carbon Monoxide, for Transit Systems Improvements and High Occupancy

Vehicle Facilities in the Metropolitan Boston Air Pollution Control

District.

Under 5 U.S.C. 605(b), I certify that this SIP revision will not

have a significant economic impact on a substantial number of small

entities. (See 46 FR 8709.) SIP approvals (or redesignations) do not

create any new requirements but simply approve requirements that are

already State law. SIP approvals (or redesignations), therefore, do not

add any additional requirements for small entities. Moreover, due to

the nature of the Federal-state relationship under the Clean Air Act,

preparation of a flexibility analysis for a SIP approval would

constitute Federal inquiry into the economic reasonableness of the

state actions. The Clean Air Act forbids EPA to base its actions

concerning SIPs on such grounds.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of

Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions

from the requirement of section 3 of Executive Order 12291 for a period

of two years. The USEPA has submitted a request for a permanent waiver

for Table 2 and Table 3 SIP revisions. The OMB has agreed to continue

the this waiver until such time as it rules on USEPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP will be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

The Administrator's decision to approve or disapprove the SIP

revision will be based on whether it meets the requirements ofsections

110(a)(2)(A)-(K) and 110(a)(3) of the Clean Air Act, as amended, and

EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Authority: 42 U.S.C. 7401-7671q.

Dated: December 20, 1993.

Paul G. Keough,

Acting Regional Administrator, Region I.

[FR Doc. 94-1247 Filed 1-18-94; 8:45 am]

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