Approval and Promulgation of Air Quality Implementation Plans; MassachusettsAmendment 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-24-1-6557; A-1-FRL-5074-8]

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: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Massachusetts. This revision

establishes and requires 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 sections 110 (a) and (l) of the

Clean Air Act.

EFFECTIVE DATE: This rule will become effective on November 3, 1994.

ADDRESSES: Copies of the documents relevant to this action 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; Air and Radiation Docket and Information Center,

U.S. Environmental Protection Agency, 401 M Street SW., (LE-131),

Washington, DC 20460; and 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 January 19, 1994 (59 FR 2795), EPA

published a notice of proposed rulemaking (NPR) for the Commonwealth of

Massachusetts. The NPR proposed approval of a revision to

Massachusetts' SIP for Transit Systems Improvements and HOV Facilities

in the Metropolitan Boston Air Pollution Control District. The formal

SIP revision was submitted by Massachusetts on December 9, 1991.

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 listed in Table 1, 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 transportation control measures (TCMs) were

necessary to help achieve an air quality benefit from the CA/THT. The

Massachusetts regulation 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.''

Table 1

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Project type and assigned

completion date Project description

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HOV Project 12/31/91........ HOV Lane: I-93 Southbound HOV Lane, North

Of The Southbound Bank Of The Charles

River, Shall Be Extended Toward Route 128

To The Northernmost Point Appropriate. No

Addition Of New Lanes.

HOV Project 12/31/91........ HOV Lane: 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 A HOV Lane On

The Southbound Side Of I-93. HOV Lane

Shall Be Available With Opening Of CA/THT

Project.

Transit Project 12/31/92.... Lynn Central Square Station & Parking

Garage.

Transit Project 12/31/92.... North Station High Platform & High Tracks.

Transit Project 12/31/92.... Lynn Transit Station Bus Terminal.

HOV Project 05/31/92........ HOV Lane: Northbound & Southbound on I-93

Beginning At The Intersection Of I-93

With I-90 & Extending To A Point

Immediately North On The Intersection Of

I-93 & Route 3. [If The Threshold

Standards Are Violated For Three

Consecutive Months. Earlier

Implementation If EOTC Determines.

Transit Project 12/31/94.... South Station Bus Terminal.

Transit Project 12/31/94.... South Station Track Number 12.

Transit Project 12/31/94.... Ipswich Commuter Rail Line Extension To

Newburyport.

Transit Project 12/31/96.... Old Colony Commuter Rail Line Extension.

Transit Project 12/31/96.... Framingham Commuter Rail Link Extension To

Worcester.

Transit Project 12/31/96.... Park & Ride & Commuter Rail Parking Spaces

Outside Of The Boston Core [10,000].

Transit Project 12/31/97.... Green Line Arborway Restoration.

Transit Project 12/31/98.... Blue Line Platform Lengthening &

Modernization.

Transit Project 12/31/99.... Park & Ride & Commuter Rail Station

Parking Spaces Outside Of The Boston Core

In Addition To Those Completed by Dec.

31, 1996 [10,000].

Transit Project 12/31/01.... South Boston Piers Electric Bus Service.

Transit Project 12/31/11.... Green Line Extension To Ball Square/Tufts

University.

Transit Project 12/31/11.... Blue Line Connection From Bowdoin Station

To The Red Line At Charles Station.

------------------------------------------------------------------------

Other specific requirements of the Commonwealth's State

Implementation Plan (SIP) Amendment for Ozone and for Carbon Monoxide,

for Transit System Improvements and High Occupancy Vehicle Facilities,

and the rationale for EPA's proposed action, are explained in the NPR

and will not be restated here.

Three public comments were received on the NPR. On February 16,

1994, a private citizen from Michigan submitted comments regarding

Massachusetts' car and truck vehicle registrations, and the effect on

the Massachusetts Inspection and Maintenance (I/M) program. EPA has

found this comment not germane to approval of the Transit and HOV

Facilities rules as a SIP Amendment. On February 18, 1994, The

Conservation Law Foundation (CLF) submitted comments generally

supporting approval of the Transit System Improvement and HOV rules

into the SIP. Finally, on February 18, 1994, the Massachusetts

Department of Environmental Protection (MA DEP) submitted comments

requesting that EPA consider delaying final action on the HOV/Transit

SIP rules.

The region has responded fully to CLF and MA DEP comments in a

memorandum attached to the Technical Support Document (TSD) available

in the docket for this action. A brief summary of these comments and

EPA's responses appears below.

The Conservation Law Foundation generally supported approval of the

Transit System Improvement and HOV rules into the SIP, but also

requested clarification of several aspects of EPA's proposed approval.

In support of the transit system improvement rule, CLF noted that

several of the transit measures provided for in the rule are mitigation

measures responding to the potential air quality impacts of the Central

Artery/Third Harbor Tunnel. EPA agrees that completion of these

measures, including the ``Old Colony'' rail line, are important

transportation control measures that should help reduce VMT growth on

the Central Artery. What follows is EPA's response to CLF's particular

concerns.

1. Specific Requirements of These Rules Will Be Enforceable in a

Citizens Suit

CLF is concerned that by characterizing these rules as

``directionally sound,'' EPA is suggesting that they are not

enforceable by citizens. EPA intended no such conclusion. The proposal

expressed EPA's concern that the substitution provisions in these rules

allow MA DEP to authorize different projects to substitute for those

enumerated in the rules.\1\ EPA believes that there is no reliable way

to predict the reductions Massachusetts might achieve with these rules

since their requirements might change in ways that are difficult to

quantify in advance. Therefore, EPA is not prepared to give

Massachusetts emissions reduction credit in the SIP for projects until

they are substantially complete and a SIP revision requesting credit is

submitted.

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\1\The Transit System Improvement Rule section 7.36(4)(a)

provides that other ``transit improvement projects'' may substitute

for projects listed in section 7.36(2). Whereas the HOV rule allows

an ``alternative project'' to substitute in section 7.37(8)(a). In

theory, MA DEP could go so far as to substitute a non-transit

project for an HOV lane under the HOV rule, although it may be

difficult to make the demonstration that a non-transit project

achieves the equivalent mix of CO, NMHC, and NOX emissions

reductions as a transit project as required under section

7.36(8)(a)1.

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Withholding SIP credit for these projects, however, does not mean

the requirements of these rules are not enforceable by MA DEP, EPA, or

citizens under the Clean Air Act. Each rule contains the kind of

specific objective requirements and compliance schedules that courts

have required in a SIP as a basis for a citizen suit to enforce

transportation control measures (TCMs). See e.g. Wilder v. Thomas, 854

F.2d 605, 615-616 (2d. Cir. 1988). As CLF points out for example, the

transit rule identifies specific mass transit improvements to be

implemented by certain dates and the HOV rule establishes a series of

specific steps to establish and operate HOV lanes depending on traffic

conditions. 310 CMR 7.36(2) and 7.37(2)-(7).\2\ EPA's concerns relate

to the planning implications of a rule with specific requirements that

can be revised without case-by-case EPA approval. This concern does not

affect citizens' ability to enforce those specific requirements as they

may appear in these SIP rules at the time of the enforcement action.

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\2\EPA cites these provisions as examples of specific

enforceable requirements in these rules, not an exclusive or

exhaustive list of enforceable requirements.

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2. When Is a Project ``Substantially Complete''?

In response to the uncertainty about which projects will actually

be implemented under this rule, EPA proposed to grant emissions

reductions credits in the SIP for projects once they are substantially

complete. EPA invited comment on how to define the substantial

completion of a transit project, especially in the case of projects

that do not require significant construction. CLF commented that

projects should be credited under the SIP either (1) When funds have

been irrevocably committed to them and all government approvals are

obtained, or (2) when operation begins, whichever is earlier. CLF went

on to say that any actual emissions reductions should not begin to

accrue until operation has commenced. CLF believes this standard should

apply to both construction and non-construction projects.

EPA appreciates CLF's efforts to devise an approach that would

grant the Commonwealth SIP credit for funded projects as soon as

possible. EPA is concerned, however, that given the length of the

construction schedules involved with some transit projects and the

vagaries of the transportation funding process, it will be difficult to

determine what constitutes an irrevocable commitment of funds. EPA

believes that it will be easier to determine objectively when a

construction project is substantially complete. As for non-construction

projects, EPA believes the second element of CLF's test is an

appropriate clarification of the ``ready to implement'' concept EPA

proposed. Massachusetts can apply for SIP credit for non-construction

projects when operation begins.\3\

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\3\Note that the limitations EPA is putting on the SIP credit

for these rules is not based on any view that TCMs are not fully

creditable in a SIP demonstration pursuant to a binding SIP rule.

Rather, it is the substitution process in these rules that causes

EPA to require substantial completion of projects before giving SIP

credit. If these rules had no substitution process, thereby

committing to specific TCMs by specific dates, EPA could calculate

SIP credit for these measures now.

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3. Are Completion Deadlines Expeditious?

Finally, CLF asserts that Massachusetts must submit SIP revisions

committing the Commonwealth to firm completion deadlines for these

projects to obtain SIP credit as soon as possible. CLF reads Delaney v.

EPA, 898 F.2d 687 (9th Cir. 1990) as creating a presumption that

omitting any TCMs listed in section 108(f) of the Act delays attainment

in violation of the requirement that all nonattainment areas attain as

expeditiously as practicable.

EPA believes that these rules contain deadlines for action on

transit projects and HOV lanes. It is true that the Transit System

Improvement rule 310 CMR 7.36(3) provides for delays in the deadlines

listed in section 7.36(2) for up to three years, but it is also clear

that at the end of those three years, either the project must be

completed or there must be a proposed substitute. While it might be

more desirable to have a fixed completion deadline without the ``escape

valve'' for project delays in section 7.36(3), EPA cannot conclude that

the possible three year delay authorized by this section causes these

rules to violate any obligation to implement TCMs as expeditiously as

practicable. Massachusetts has assembled an impressive roster of

transportation measures, many of which must be implemented by the

attainment year of 1999, even allowing for the possible three year

delay.\4\

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\4\For example, section 7.36(2)(c)1. requires the Old Colony

Commuter Rail Line Extension, one of the most significant

transportation measures in 7.36, to be ``complete and open to full

public use'' by December 31, 1996. Even the worst case scenario of a

full three year delay would have the Old Colony in full use only 46

days after the attainment deadline for the Commonwealth, November

15, 1999.

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The Massachusetts DEP's comment advised EPA that the Commonwealth

of Massachusetts may be developing changes to the transit improvement

and HOV rules that could be submitted to EPA in calendar 1994. DEP

suggested that it might be prudent for EPA to delay final action on

these rules until EPA receives MA DEP's revisions. MA DEP did not,

however, ask to withdraw the rules from EPA's consideration as a SIP

revision. While EPA appreciates DEP's desire to avoid iterative SIP

actions on these rules, EPA has an obligation to process SIP revisions

consistent with section 110(k) of the Act to the extent practicable,

including the requirement to act on the SIP submission within a year of

deeming it complete. Furthermore, MA DEP has not clearly withdrawn this

SIP action. At most their comment appears to be a suggestion to EPA

about how to avoid repetitive rulemakings. EPA cannot suspend its

statutory obligation to act on SIP submittals without a clear

expression from a state that it is withdrawing the package. Suspending

final action on these rules in anticipation of rule changes that EPA

has not yet seen in draft would only aggravate any delays in processing

these rules as a SIP revision to accommodate what is now a speculative

rule change.

Final Action

EPA is approving the Transit Systems Improvements and High

Occupancy Vehicle Facilities in the Metropolitan Boston Air Pollution

Control District as a revision to the Massachusetts SIP.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

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), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future notice will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 revisions (54 FR 2222) from the

requirements of Section 3 of Executive Order 12291 for a period of two

years. The U.S. EPA has submitted a request for a permanent waiver for

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

temporary waiver until such time as it rules on EPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

SIP approvals under section 110 and subchapter I, Part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S. Ct. 1976),

42 U.S.C. 7410(a)(2).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

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 December 5, 1994. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Note: Incorporation by reference of the State Implementation

Plan for the State of Massachusetts was approved by the Director of

the Federal Register on July 1, 1982.

Dated: September 7, 1994.

Patricia Meaney,

Acting Deputy Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart W--Massachusetts

2. Section 52.1120 is amended by adding paragraph (c)(101) to read

as follows:

Sec. 52.1120 Identification of plan.

* * * * *

(c) * * *

(101) Revisions to the State Implementation Plan submitted by the

Massachusetts Department of Environmental Protection on December 9,

1991.

(i) Incorporation by reference.

(A) Letter from the Massachusetts Department of Environmental

Protection dated December 9, 1991 submitting a revision to the

Massachusetts State Implementation Plan.

(B) Massachusetts Regulation 310 CMR 7.36, entitled ``Transit

System Improvements'', Massachusetts Regulation 310 CMR 7.37, entitled

``High Occupancy Vehicle Facilities'', and amendments to 310 CMR 7.00,

entitled ``Definitions,'' effective in the Commonwealth of

Massachusetts on December 6, 1991.

For the State of Massachusetts:

Sec. 52.1167 [Amended]

3. In Sec. 52.1167, Table 52.1167 is amended by adding new entries

to existing state citations for amendments to 310 CMR 7.00, entitled

``Definitions''; and by adding new state citations for Massachusetts

Regulation 310 CMR 7.36, entitled ``Transit System Improvements'' and

Massachusetts Regulation 310 CMR 7.37, entitled ``High Occupancy

Vehicle Facilities'' to read as follows:

Table 52.1167.--EPA-Approved Rules and Regulations

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Date

State citation Title/subject submitted Date approved by EPA Federal Register 52.1120(c) Comments/unapproved

by State citation sections

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* * * * * * *

310 CMR 7.00........... Definitions............ 12/9/91 October 4, 1994........ [Insert FR citation 101 Definitions of baseline

from published date]. roadway conditions, high

occupancy vehicle, high

occupancy vehicle lane,

peak hour, performance

standard, and roadway

threshold standard.

* * * * * * *

310 CMR 7.36........... Transit system 12/9/91 October 4, 1994........ [Insert FR citation 101 Transit system improvement

improvements from published date]. regulation for Boston

regulations. metropolitan area.

* * * * * * *

310 CMR 7.37........... High occupancy vehicle 12/9/91 October 4, 1994........ [Insert FR citation 101 High occupancy vehicle

lanes regulation. from published date]. lanes regulation for

Boston metropolitan area.

* * * * * * *

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[FR Doc. 94-24421 Filed 10-3-94; 8:45 am]

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