Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Marine Vessel Transfer Operations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-46-1-7194a; A-1-FRL-5552-9]

Approval and Promulgation of Air Quality Implementation Plans;

Massachusetts; Marine Vessel Transfer Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan

(SIP) revision submitted by the Commonwealth of Massachusetts. This

revision contains a regulation to reduce volatile organic compound

(VOC) emissions from marine vessel loading operations. The intended

effect of this action is to conditionally approve this regulation into

the Massachusetts SIP. This action is being taken in accordance with

the Clean Air Act.

DATES: This action will become effective October 28, 1996, unless

notice is received by September 26, 1996, that adverse or critical

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

notice will be published in the Federal Register.

[[Page 43974]]

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection, 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 Office of Ecosystem

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

Congress Street, 11th Floor, Boston, MA; Air and Radiation Docket and

Information Center, U.S. Environmental Protection Agency, 401 M Street,

SW. (LE-131), Washington, D.C. 20460; and the Division of Air Quality

Control, Commonwealth of Massachusetts, Department of Environmental

Protection, One Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On January 11, 1995, the Massachusetts

Department of Environmental Protection submitted a formal State

Implementation Plan (SIP) submittal containing a new regulation 310 CMR

7.24(8) ``Marine Volatile Organic Liquid Transfer'' as well as

amendments to 310 CMR 7.00 ``Definitions.'' These regulations had been

recently adopted pursuant to the reasonable further progress

requirements and the volatile organic compound reasonable available

control technology (VOC RACT) requirements of the Clean Air Act (CAA)

[Sections 182(b)(1) and 182(b)(2)(C)]. In addition, on March 25, 1995,

DEP submitted additional documentation indicating that these

regulations became effective on January 27, 1995.

Background

Under the pre-amended Clean Air Act (i.e., the Clean Air Act before

the enactment of the amendments of November 15, 1990), ozone

nonattainment areas were required to adopt RACT rules for sources of

VOC emissions. EPA issued three sets of control technique guideline

(CTG) documents, establishing a ``presumptive norm'' for RACT for

various categories of VOC sources. The three sets of CTGs were: (1)

Group I--issued before January 1978 (15 CTGs); (2) Group II--issued in

1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 CTGs).

Those sources not covered by a CTG were called non-CTG sources. EPA

determined that the area's SIP-approved attainment date established

which RACT rules the area needed to adopt and implement. Under Section

172(a)(1), ozone nonattainment areas were generally required to attain

the ozone standard by December 31, 1982. Those areas that submitted an

attainment demonstration projecting attainment by that date were

required to adopt RACT for sources covered by the Group I and II CTGs.

Those areas that sought an extension of the attainment date under

Section 172(a)(2) to as late as December 31, 1987 were required to

adopt RACT for all CTG sources and for all major (i.e., 100 ton per

year or more of VOC emissions) non-CTG sources.

On November 15, 1990, amendments to the Clean Air Act were enacted.

Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. Secs. 7401-

7671q. Pursuant to the 1990 Amendments, all of Massachusetts was

classified as serious nonattainment for ozone (56 FR 56694 (Nov. 6,

1991)).

Section 182(b)(2) of the amended Act requires States to adopt RACT

rules for all areas designated nonattainment for ozone and classified

as moderate or above. There are three parts to the Section 182(b)(2)

RACT requirement: (1) RACT for sources covered by an existing CTG--

i.e., a CTG issued prior to the enactment of the 1990 amendments to the

Act; (2) RACT for sources covered by a post-enactment CTG; and (3) all

major sources not covered by a CTG, i.e., non-CTG sources. Also, under

Section 182(c) of the Act, the major source definition for serious

nonattainment areas was lowered to include sources that have a

potential to emit 50 tons or greater of VOCs per year.

In response to the Act's requirement to regulate major non-CTG VOC

sources, Massachusetts adopted 310 CMR 7.24(8) ``Marine Vessel Transfer

Operations'' and submitted this rule to EPA as a SIP revision on

January 11, 1995. Massachusetts' marine vessel rule is briefly

summarized below.

310 CMR 7.24(8) ``Marine Vessel Transfer Operations''

This regulation contains requirements for reducing VOC emissions

from loading events in which organic liquid is loaded onto marine tank

vessels or in which any liquid is loaded into a marine tank vessel

which previously held an organic liquid. Massachusetts' rule prohibits

a loading event to occur unless:

(1) marine tank vessel VOC emissions are limited to 2 lbs per 1,000

bbls of organic liquid transferred; or

(2) marine tank vessel VOC emissions are reduced at least 95

percent by weight from uncontrolled conditions when using a recovery

device or at least 98 percent by weight from uncontrolled conditions

when using a combustion device.

This regulation also limits the loading of marine tank vessels to

those vessels that are vapor tight.

Massachusetts' marine vessel rule will reduce VOC emissions. VOCs

contribute to the production of ground level ozone and smog. This

regulation was adopted as part of an effort to achieve the National

Ambient Air Quality Standard (NAAQS) for ozone. The following is EPA's

evaluation of 310 CMR 7.24(8).

EPA's Evaluation of Massachusetts' Submittal

In determining the approvability of a VOC rule, EPA must evaluate

the rule for consistency with the requirements of the Act and EPA

regulations, as found in Section 110 and Part D of the Act and 40 CFR

Part 51 (Requirements for Preparation, Adoption, and Submittal of

Implementation Plans). EPA's interpretation of these requirements,

which forms the basis for today's action, appears in various EPA policy

guidance documents. The specific guidance relied on for this action is

referenced within the technical support document and this notice. For

the purpose of assisting State and local agencies in developing RACT

rules, EPA prepared a series of CTG documents. The CTGs are based on

the underlying requirements of the Act and specify presumptive norms

for RACT for specific source categories. EPA has not yet developed CTGs

to cover all sources of VOC emissions. Further interpretations of EPA

policy are found in, but not limited to, the following: (1) the

proposed Post-1987 ozone and carbon monoxide policy, 52 FR 45044

(November 24, 1987); (2) the document entitled, ``Issues Relating to

VOC Regulation Cutpoints, Deficiencies, and Deviations, Clarification

to Appendix D of November 24, 1987 Federal Register Notice,'' otherwise

known as the ``Blue Book'' (notice of availability was published in the

Federal Register on May 25, 1988); and (3) the ``Model Volatile Organic

Compound Rules for Reasonably Available Control Technology,'' (Model

VOC RACT Rules) issued as a staff working draft in June of 1992. In

general, these guidance documents have been set forth to ensure that

VOC rules are fully enforceable and strengthen or maintain the SIP.

In addition, Section 183(f) of the amended Act specifically

requires EPA to promulgate RACT standards to reduce VOC emissions from

the loading and unloading of marine tank vessels. Furthermore, on

November 12, 1993 (58 FR 60021), marine vessels were added to the list

of those categories for which EPA will promulgate a maximum achievable

control technology (MACT) standard. On September 19, 1995 (60 FR

[[Page 43975]]

48388), EPA promulgated both RACT and MACT standards for marine tank

vessels.

EPA has evaluated Massachusetts' marine vessel rule and has found

that it is generally consistent with EPA's national marine vessel rule

and current EPA guidance. There are, however, two outstanding issues

associated with the Commonwealth's regulation.

Outstanding Issues

1. Lack of Monitoring Requirements

Massachusetts' regulation requires that, upon initial startup of

the control equipment, the owner or operator of a marine terminal

conduct an initial performance test in order to demonstrate compliance.

However, as was stated in EPA's public hearing comments on

Massachusetts' proposed version of this rule, the regulation should

also require the facility to demonstrate continued compliance as is

required under EPA's national marine vessel rule (40 CFR Sec. 63.564).

Specifically, the regulation should require that certain parameters be

monitored continuously while marine vessel loading or ballasting

operations are occurring and that records be kept of all measurements

needed to demonstrate compliance with the applicable standard including

all data collected in any periods of operation during which the

previously established parameter boundaries are exceeded.

2. Emission Limits for Ballasting Operations

Massachusetts' marine vessel rule applies to the loading of an

organic liquid and to ballasting operations. However, the emissions

limitations stated in Section 7.24(8)(c)(1) of the rule only apply to

``loading events.'' This term, as defined in 310 CMR 7.00, does not

include ballasting operations. Although Sections 7.24(8)(c)(2) and

7.24(8)(d) of Massachusetts' marine vessel rule do require control

equipment to be used during ballasting, these sections do not require

specific emission limitations to be met during ballasting operations.

EPA's national marine vessel rule does not apply to ballasting

operations. The absence of emission limitations for ballasting

operations in Massachusetts' rule, however, is inconsistent with the

information contained in Massachusetts' reasonable further progress

(RFP) plan regarding the reduction in VOC emissions that is expected to

result from the implementation of this rule. Specifically,

Massachusetts' 1990 base year inventory shows that uncontrolled marine

vessel transfer operations result in 3.2 tons of VOC per summer day

(tpsd), which includes 2.8 tpsd from ballasting and 0.4 tpsd from

loading operations. Massachusetts' marine vessel rule SIP submittal

states that ballasting emissions will be reduced by 2.1 tpsd. This

statement assumes that ballasting operations are subject to a 95

percent control efficiency requirement (i.e., 0.95 control efficiency x

0.8 rule effectiveness x 2.8 tpsd uncontrolled = 2.1 tpsd reduction).

Therefore, Massachusetts' marine vessel rule should require that

ballasting operations be subject to the emission limitations stated in

Section 7.24(8)(c)(1)(B) of the rule.

Massachusetts' regulation and EPA's evaluation are detailed in a

memorandum, dated April 23, 1996, entitled ``Technical Support

Document--Massachusetts--Marine Vessel Rule.'' Copies of that document

are available, upon request, from the EPA Regional Office listed in the

ADDRESSES section of this notice.

EPA is publishing this action without prior proposal 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 October 28, 1996, unless adverse or critical comments are

received by September 26, 1996.

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

before the effective date by 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 October 28, 1996.

Final Action

EPA is conditionally approving 310 CMR 7.24(8) ``Marine Vessel

Transfer Operations'' and the associated 310 CMR 7.00 ``Definitions''

into the Massachusetts SIP.

Under Section 110(k)(4) of the Act, EPA may conditionally approve a

plan based on a commitment from the State to adopt specific enforceable

measures by a date certain, but not later than 1 year from the date of

approval. On February 1, 1996, Massachusetts submitted a written

commitment to address the issues outlined above (i.e., the lack of

monitoring requirements and the lack of emission limits for ballasting

operations) within one year of the date of publication of EPA's

conditional approval. If the Commonwealth fails to do so, this approval

will become a disapproval on October 28, 1997. EPA will notify the

Commonwealth by letter that this action has occurred. At that time, the

conditionally approved submittal will no longer be a part of the

approved Massachusetts SIP. EPA subsequently will publish a notice in

the notice section of the Federal Register notifying the public that

the conditional approval automatically converted to a disapproval. If

the Commonwealth meets its commitment, within the applicable time

frame, the conditionally approved submission will remain a part of the

SIP until EPA takes final action approving or disapproving the new

submittal. If EPA disapproves the new submittal, the conditionally

approved submittal will also be disapproved at that time. If EPA

approves the new submittal, the newly submitted regulations will be

fully approved and will replace the conditionally approved regulations

in the SIP.

If the conditional approval is converted to a disapproval, such

action will trigger EPA's authority to impose sanctions under Section

110(m) of the CAA at the time EPA issues the final disapproval or on

the date the Commonwealth fails to meet its commitment. In the latter

case, EPA will notify the Commonwealth by letter that the conditional

approval has been converted to a disapproval and that EPA's sanctions

authority has been triggered. In addition, the final disapproval

triggers the federal implementation plan (FIP) requirement under

Section 110(c).

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.

Conditional approvals of SIP submittals 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.

[[Page 43976]]

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).

If the conditional approval is converted to a disapproval under

Section 110(k), based on the Commonwealth's failure to meet the

commitment, it will not affect any existing State requirements

applicable to small entities. Federal disapproval of the State

submittal does not affect its State-enforceability. Moreover, EPA's

disapproval of the submittal does not impose a new federal requirement.

Therefore, EPA certifies that this disapproval action does not have a

significant impact on a substantial number of small entities because it

does not remove existing State requirements nor does it substitute a

new federal requirement.

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this State Implementation Plan revision, the

State and any affected local or tribal governments have elected to

adopt the program provided for under Sections 182(b) of the Clean Air

Act. These rules may bind State, local and tribal governments to

perform certain actions and also require the private sector to perform

certain duties. To the extent that the rules being approved by this

action will impose no new requirements; such sources are already

subject to these regulations under State law. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this final action does not include a mandate that may result in

estimated costs of $100 million or more to State, local, or tribal

governments in the aggregate or to the private sector.

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory 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 October 28, 1996. 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).)

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Ozone.

Dated: July 22, 1996.

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 52.1119 is amended by adding paragraph (a)(2) to read as

follows:

Sec. 52.1119 Identification of plan-conditional approval.

* * * * * *

(a) * * *

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

Massachusetts Department of Environmental Protection on January 11,

1995 and March 29, 1995.

(i) Incorporation by reference.

(A) Letters from the Massachusetts Department of Environmental

Protection dated January 11, 1995 and March 29, 1995 submitting a

revision to the Massachusetts State Implementation Plan.

(B) 310 CMR 7.24(8) ``Marine Vessel Transfer Operations'' effective

in the Commonwealth of Massachusetts on January 27, 1995.

(C) Definitions of ``combustion device,'' ``leak,'' ``leaking

component,'' ``lightering or lightering operation,'' ``loading event,''

``marine tank vessel,'' ``marine terminal,'' ``marine vessel,''

``organic liquid,'' and ``recovery device'' in 310 CMR 7.00

``Definitions'' effective in the Commonwealth of Massachusetts on

January 27, 1995.

(ii) Additional materials.

(A) Letter from the Massachusetts Department of Environmental

Protection dated February 1, 1996 committing to address the outstanding

issues associated with 310 CMR 7.24(8) as identified by EPA in a letter

dated September 19, 1995.

(B) Nonregulatory portions of the submittal.

[FR Doc. 96-21692 Filed 8-26-96; 8:45 am]

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