Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; U Restricted Emission Status

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-31-01-6845a; A-1-FRL-5177-1]

Approval and Promulgation of Air Quality Implementation Plans;

Massachusetts; U Restricted Emission Status

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

revision submitted by the Commonwealth of Massachusetts. This revision

approves 310 CMR 7.02(12), entitled ``U Restricted Emission Status,''

into the Massachusetts SIP. The intended effect of this action is to

approve a SIP revision by the Commonwealth of Massachusetts to

incorporate regulations for the issuance of federally enforceable

operating permits which restrict sources' potential to emit criteria

pollutants such that sources can avoid reasonably available control

technology (RACT), title V operating permit requirements, or otherwise

applicable requirements. This also extends federal enforceability of

hazardous air pollutants (HAPs). This action is being taken in

accordance with the Implementation Plans Section and the State Programs

Section of the Clean Air Act.

DATES: This action will become effective June 5, 1995, unless notice is

received May 5, 1995 that adverse or critical comments will be

submitted. If the effective date is delayed, timely notice will be

published in the Federal Register.

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

Pesticides and Toxics Management Division, U.S. Environmental

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

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, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Ida E. Walker, for criteria pollutants

(617) 565-9168 or Janet Beloin, for HAPs (617) 565-2734.

SUPPLEMENTARY INFORMATION: On June 6, 1994, the Commonwealth of

Massachusetts submitted a formal revision to its State Implementation

Plan (SIP) to incorporate regulations for the issuance of federally

enforceable operating permits. The revision consists of the addition of

310 CMR 7.02(12), entitled ``U Restricted Emission Status.'' The

Commonwealth of Massachusetts adopted these regulations in order to

have the authority to issue federally enforceable operating permits

under its SIP. In order to extend the federal enforceability of state

operating permits to hazardous air pollutants (HAPs), EPA is also

approving this regulation pursuant to section 112(l) of the Act.

Summary of SIP Revision

The Commonwealth of Massachusetts' principal purpose for adopting

the operating permit regulations of 310 CMR 7.02(12) is to have a

federally enforceable means of expeditiously restricting potential

emissions such that sources can avoid RACT, title V operating permit

requirements, or otherwise applicable requirements, as well as reduce

annual compliance fees. The operating permit provisions in title V of

the Clean Air Act Amendments of 1990 have created additional interest

in mechanisms for limiting sources' potential to emit, thereby allowing

the sources to avoid being defined as ``major'' with respect to title V

operating permit programs. A key mechanism for such limitations is the

use of federally enforceable state operating permits (FESOPs). The EPA

issued general guidance on FESOPs in the Federal Register on June 28,

1989 [54 FR 27274]. This rulemaking evaluates whether Massachusetts has

satisfied the requirements for this type of federally enforceable

limitation on potential to emit. Each of the five criteria, as

specified in the Federal Register of June 28, 1989, for approval of a

state's program for the issuance of FESOPs under its SIP and how the

state's submittal satisfies those criteria are presented below:

Criterion 1. The state's operating permit program (i.e. the

regulations or other administrative framework describing how such

permits are issued) must be submitted to and approved by EPA as a SIP

revision: On June 6, 1994, the Commonwealth of Massachusetts submitted

an administratively and technically complete SIP revision request to

EPA consisting of 310 CMR 7.02(12) ``U Restricted Emission Status.''

[[Page 17227]] That SIP revision is the subject of this rulemaking

action.

Criterion 2. The SIP revision must impose a legal obligation that

operating permit holders adhere to the terms and limitations of such

permits (or subsequent revisions of the permit made in accordance with

the approved operating permit program) and provide that permits which

do not conform to the operating permit program requirements and the

requirements of EPA's underlying regulations may be deemed not

``federally enforceable'' by EPA: 310 CMR 7.02(12)(f) requires sources

to obtain permits to operate and authorizes Massachusetts to establish

terms and conditions in these permits ``assuring compliance with such

limitations and controls.'' Additionally, the ``Restricted emission

status issued pursuant to 310 CMR 7.02(12) for the purpose of

restricting federal potential emissions must be federally

enforceable.''

Criterion 3. The state operating permit program must require that

all emission limitations, controls, and other requirements imposed by

such permits will be at least as stringent as any applicable

limitations and requirements contained in the SIP, or enforceable under

the SIP, and that the program may not issue permits that waive, or make

less stringent, any limitations or requirements contained in or issued

pursuant to the SIP, or that are otherwise ``federally enforceable''

(e.g. standards established under Sections 111 and 112 of the Clean Air

Act): 310 CMR 7.02(12)(f)(2) contains regulatory provisions which state

``All emission limitations, controls, and other requirements imposed by

such restricted emission status must be at least as stringent as all

other applicable limitations and requirements contained in the

Massachusetts SIP . . . or that are otherwise federally enforceable.''

In addition, these rules contain no provisions authorizing terms and

conditions any less stringent than these other applicable requirements,

which remain federally enforceable.

Criterion 4. The limitations, controls, and requirements of the

state's operating permits must be permanent, quantifiable, and

otherwise enforceable as a practical matter: 310 CMR 7.02(12)(f) (1)

and (2) contain regulatory provisions which satisfy this criterion. In

addition, these subparagraphs require that permit restrictions contain

``per unit emission factors, production and/or operational limitations

and controls, and monitoring, recordkeeping, and reporting requirements

capable of assuring compliance with such limitations and controls.''

Criterion 5. The state operating permits must be issued subject to

public participation. This means that the state agrees, as part of its

program, to provide EPA and the public with timely notice of the

proposal and issuance of such permits, and to provide EPA, on a timely

basis, with a copy of each proposed (or draft) and final permit

intended to be ``federally enforceable.'' This process must also

provide for an opportunity for public comment on the permit

applications prior to issuance of the final permits: 310 CMR

7.02(12)(g)(2) (a), (b), (c) and (g) contain provisions which satisfy

this criterion.

The Commonwealth of Massachusetts has also requested approval of

its Restricted Emission Status program under section 112(l) of the Act

for the purpose of creating federally enforceable limitations on the

potential to emit of HAPs. Approval under section 112(l) is necessary

because the proposed SIP approval discussed above only extends to

criteria pollutants for which EPA has established national ambient air

quality standards under section 109 of the Act. Federally enforceable

limits on criteria pollutants or their precursors (i.e., VOC's or PM-

10) may have the incidental effect of limiting certain HAPs listed

pursuant to section 112(b).1 As a legal matter, no additional

program approval by the EPA is required beyond SIP approval under

section 110 in order for these criteria pollutant limits to be

recognized as federally enforceable. However, section 112 of the Act

provides the underlying authority for controlling all HAP emissions,

regardless of their relationship to criteria pollutant controls.

\1\The EPA issued guidance on January 25, 1995 addressing the

technical aspects of how these criteria pollutant limits may be

recognized for purposes of limiting a source's potential to emit of

HAP to below section 112 major source levels.

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The EPA has determined that the five approval criteria for

approving FESOP programs into the SIP, as specified in the June 28,

1989 Federal Register notice, are also appropriate for evaluating and

approving the programs under section 112(l). The June 28, 1989 notice

does not address HAPs because it was written prior to the 1990

amendments to section 112. The June 28, 1989 criteria are basic

principles which are not unique to criteria pollutants. Therefore, the

five criteria discussed above are applicable to FESOP approvals under

section 112(l) as well as under section 110.

In addition to meeting the criteria in the June 28, 1989 notice, a

FESOP program for HAPs must meet the statutory criteria for approval

under section 112(l)(5). Section 112(l) allows the EPA to approve a

program only if the program: (1) Contains adequate authority to assure

compliance with any section 112 standard or requirement; (2) provides

for adequate resources; (3) provides for an expeditious schedule for

assuring compliance with section 112 requirements; and (4) is otherwise

likely to satisfy the objectives of the Act.

The EPA plans to codify the approval criteria for programs limiting

potential to emit HAPs, in Subpart E of Part 63, the regulations

promulgated to implement section 112(l) of the Act. (See 58 FR 62262,

November 26, 1993.) The EPA currently anticipates that these regulatory

criteria, as they apply to FESOP programs, will mirror those set forth

in the June 28, 1989 notice. FESOP programs approved pursuant to

section 112(l) prior to the planned Subpart E revisions will be

approved as meeting the criteria in EPA's June, 1989 notice. Therefore,

further approval actions for those programs will not be necessary.

The EPA believes it has authority under section 112(l) to approve

programs to limit potential to emit HAPs directly under section 112(l)

prior to this revision to Subpart E. EPA is therefore proposing

approval of Massachusetts' Restricted Emission Status Program now so

that Massachusetts may begin to issue federally enforceable synthetic

minor permits as soon as possible.

Regarding the statutory criteria of section 112(l)(5) referred to

above, the EPA believes Massachusetts' Restricted Emission Status

program contains adequate authority to assure compliance with section

112 requirements since the third criterion of the June 28, 1989 notice

is met, that is, the program in 310 CMR 7.02(12)(f)(2) states that all

requirements in the Restricted Emissions Status program must be at

least as stringent as all other applicable federally enforceable

requirements. Please note that a source which receives a Restricted

Emission Status permit may still need a title V operating permit under

310 CMR 7.00 Appendix (C)(2)(a)(5) if EPA promulgates a MACT standard

which requires non-major sources to obtain title V permits.

Regarding the requirement for adequate resources, the EPA believes

Massachusetts has demonstrated that it can provide for adequate

resources to support the Restricted Emission Status program through an

annual compliance assurance fee and a restricted emissions permit fee.

EPA believes this mechanism will be sufficient to provide for adequate

resources to implement this program. For more information

[[Page 17228]] regarding the fees program, refer to the Technical

Support Document.

The EPA also believes that Massachusetts' Restricted Emission

Status program provides for an expeditious schedule which assures

compliance with section 112 requirements.

This program will be used to allow a source to establish a

voluntary limit on potential to emit to avoid being subject to a CAA

requirement applicable on a particular date. Nothing in Massachusetts's

program would allow a source to avoid or delay compliance with a CAA

requirement if it fails to obtain an appropriate federally enforceable

limit by the relevant deadline. Finally, the EPA believes it is

consistent with the intent of section 112 and the Act for States to

provide a mechanism through which sources may avoid classification as a

major source by obtaining a federally enforceable limit on potential to

emit. EPA has long recognized federally-enforceable emissions or

operational limits as a means to stay below major source thresholds

under the Act. This approval merely applies the source principles to

another set of pollutants and regulatory requirements under the Act.

The EPA's review of this SIP revision indicates the criteria for

approval as provided in the June 28, 1989 Federal Register notice [54

FR 27282] and in section 112(l)(5) of the Act have been satisfied.

During the development of this rule, EPA and Massachusetts have

been asked whether permits the Commonwealth has issued pursuant to

these regulations prior to today's action approving this program into

the SIP are nevertheless federally enforceable. In the preamble to the

regulations that EPA promulgated on June 28, 1989 (54 FR 27274), which

set forth the five criteria outlined above for a federally enforceable

operating permit program, EPA indicated that it would ``consult with

States on methods by which existing operating permits could be made

federally enforceable under a subsequently approved State operating

permits program.'' 54 FR at 27284. The preamble went on to discuss

options for securing EPA approval of previously issued permits. As EPA

concluded in its approval of the Illinois FESOP program (57 FR 59931

(Dec. 17, 1992)), these options were not intended to be a complete list

of alternatives. To avoid burdensome requirements to reprocess each

previously issued permit, EPA will use the same approach announced in

that Illinois approval for determining whether such permits are

federally enforceable and for ratifying their status as enforceable

under the approved SIP.

EPA today finds the existing Massachusetts regulations to be

consistent with federal requirements. If the Commonwealth followed its

own procedures, each permit issued under this regulation was subject to

public notice and comment, with notice to EPA. Moreover, the regulation

requires each permit to be enforceable as a practical matter.

Therefore, EPA will consider all previously issued operating permits

which were processed in a manner consistent with the State regulations

federally enforceable with the promulgation of this rule, provided that

any permits the State wishes to make federally enforceable are

submitted to EPA and are accompanied by documentation that the

procedures approved today were followed in issuing the permit.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective June 5, 1995 unless adverse or critical comments are received

by May 5, 1995.

If EPA receives such comments, this action will be withdrawn before

the effective date by simultaneously publishing a subsequent notice

that will withdraw the final action. All public comments received will

then be addressed in a subsequent final rule based on this action

serving as a proposed rule. The EPA will not institute a second comment

period on this action. Any parties interested in commenting on this

action should do so at this time. If no such comments are received, the

public is advised that this action will be effective on June 5, 1995.

Final Action

EPA is approving 310 CMR 7.02(12), ``U Restricted Emission

Status,'' effective in the Commonwealth of Massachusetts on February

25, 1994 under sections 110 and 112(l) of the CAA.

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. 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.

SIP approvals under section 110, section 112(l), 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. Sec. 7410 (a)(2).

This action has been classified as a Table 3 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.

The OMB has exempted this action from review under Executive Order

12866.

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 June 5, 1995. 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,

[[Page 17229]] Nitrogen dioxide, Ozone, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides, Hazardous air

pollutants.

Note: Incorporation by reference of the State Implementation

Plan for the Commonwealth of Massachusetts was approved by the

Director of the Federal Register on July 1, 1982.

Dated: March 3, 1995.

John P. DeVillars,

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)(105) to read

as follows:

Sec. 52.1120 Identification of plan.

* * * * *

(c) * * *

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

Massachusetts Department of Environmental Protection on June 6, 1994.

(i) Incorporation by reference.

(A) Letter from the Massachusetts Department of Environmental

Protection dated June 6, 1994 submitting a revision to the

Massachusetts State Implementation Plan.

(B) 310 CMR 7.02(12) ``U Restricted Emission Status'' effective in

the Commonwealth of Massachusetts on February 25, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

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

citations for 310 CMR 7.02(12) to read as follows:

Sec. 52.1167 EPA-approved Massachusetts State regulations.

Table 52.1167--EPA-Approved Massachusetts Regulations

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Date

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

by State EPA citation

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* * * * * * *

310CMR 7.02(12)......... U Restricted Emission 6/6/94 April 5, 1995....... [Insert FR citation from 105 This rule limits a source's

Status. published date]. potential to emit,

therefore avoiding RACT,

title V operating permits

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[FR Doc. 95-8216 Filed 4-4-95; 8:45 am]

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