# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-1247 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** January 19, 1994 ## Text 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. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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.) --------------------------------------------------------------------------- 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 --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- (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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- (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] BILLING CODE 6560-50-F --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-1247. Public record. Not legal advice.