Air Plan Approval; Massachusetts; Nonattainment New Source Review Program Revisions; Infrastructure Provisions for National Ambient Air Quality Standards; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 24719-24722 [2019-10875]
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Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Rules and Regulations
[FR Doc. 2019–10918 Filed 5–28–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2018–0829; FRL–9993–84–
Region 1]
Air Plan Approval; Massachusetts;
Nonattainment New Source Review
Program Revisions; Infrastructure
Provisions for National Ambient Air
Quality Standards; Nonattainment New
Source Review Requirements for the
2008 8-Hour Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the Commonwealth of
Massachusetts. On February 9, 2018, the
Massachusetts Department of
Environmental Protection (MassDEP)
submitted revisions to the EPA
satisfying the MassDEP’s earlier
commitment to adopt and submit
provisions that meet certain
requirements of the Nonattainment New
Source Review (NNSR) air permit
program regulations. The EPA is also
approving the Commonwealth’s NNSR
certification, which was included in the
February 9, 2018, SIP revision, as
sufficient for the purposes of satisfying
the 2008 8-hour ozone National
Ambient Air Quality Standard
(NAAQS). In addition, this action
converts the EPA’s December 21, 2016,
conditional approval for certain
infrastructure provisions relating to
Massachusetts’s NNSR air permit
program to full approval. This action is
being taken under the Clean Air Act.
DATES: This rule is effective on June 28,
2019.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R01–OAR–
2018–0829. All documents in the docket
are listed on the https://
www.regulations.gov website. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available at https://
www.regulations.gov or at the U.S.
Environmental Protection Agency, EPA
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SUMMARY:
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Region 1 Regional Office, Air and
Radiation Division, Air Permits, Toxics,
and Indoor Programs Branch, 5 Post
Office Square—Suite 100, Boston, MA.
EPA requests that if at all possible, you
contact the contact listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays.
Eric
Wortman, Office of Ecosystem
Protection, U.S. Environmental
Protection Agency, EPA Region 1, 5 Post
Office Square—Suite 100 (Mail Code
05–2), Boston, MA 02109—3912, tel.
(617) 918–1624, email wortman.eric@
epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. Background and Purpose
A. NNSR SIP Revisions and the EPA’s
December 21, 2016 Conditional
Approval
B. NNSR Certification for 2008 Ozone
NAAQS
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On February 14, 2019, the EPA
published a Notice of Proposed
Rulemaking (NPRM) for the
Commonwealth of Massachusetts. See
84 FR 4021. The NPRM proposed
approval of several revisions to the
Commonwealth’s NNSR permit program
to address the relevant issues identified
in the EPA’s December 21, 2016
conditional approval of the
Commonwealth’s infrastructure SIP for
the 1997 ozone, 2008 lead, 2008 ozone,
2010 nitrogen dioxide (NO2), and 2010
sulfur dioxide NAAQS. As a result of
the proposed approval of the NNSR
permitting revisions, the EPA also
proposed to convert the December 21,
2016 conditional approval to a full
approval for Clean Air Act (CAA)
section 110(a)(2)(D)(i)(II). In addition,
the NPRM proposed to approve the
Commonwealth’s NNSR certification as
sufficient for addressing the NNSR
requirements for the 2008 ozone
NAAQS for the Dukes County
Nonattainment Area. The formal SIP
revision was submitted by
Massachusetts on February 9, 2018.
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24719
A. NNSR SIP Revisions and the EPA’s
December 21, 2016 Conditional
Approval
On December 21, 2016, the EPA
published a final conditional approval
for Massachusetts’s June 6, 2014
infrastructure SIP submittal for the 1997
ozone, 2008 lead (Pb), 2008 ozone, 2010
NO2, and 2010 sulfur dioxide (SO2)
NAAQS. See 81 FR 93627. This
rulemaking identified that a provision
under section 110(a)(2)(D)(i)(II) of the
CAA was not included in the
Commonwealth’s June 6, 2014 SIP
submittal. Among other things, section
110(a)(2)(D)(i)(II) requires SIPs to
include provisions prohibiting any
source or other type of emissions
activity in one state from interfering
with measures required to prevent
significant deterioration of air quality in
another state. The EPA sometimes refers
to this requirement under subsection
110(a)(2)(D)(i)(II) as ‘‘prong 3.’’ To
address the conditional approval for
prong 3, on February 9, 2018, the
MassDEP submitted regulatory
provisions for approval into the
Commonwealth’s SIP. As explained in
the NPRM, the revisions addressed the
NNSR requirements that would make
the Commonwealth’s NNSR program
applicable to sources regardless of the
attainment status of the area where the
source is located. These revisions were
necessary because Massachusetts is
located in the Ozone Transport Region
(OTR).1
B. NNSR Certification for 2008 Ozone
NAAQS
Dukes County in Massachusetts was
designated nonattainment for the 2008
8-hour ozone NAAQS on July 20, 2012
using 2009–2011 ambient air quality
data. See 77 FR 30088 (May 21, 2012).
At the time of designation, Dukes
County was classified as a marginal
nonattainment area. On March 6, 2015,
the EPA issued a final rule entitled,
‘‘Implementation of the 2008 National
Ambient Air Quality Standards for
Ozone: State Implementation Plan
Requirements’’ (SIP Requirements Rule),
which established the requirements that
state, tribal, and local air quality
management agencies must meet in
developing implementation plans for
areas where ozone concentrations
exceed the 2008 8-hour ozone
1 CAA section 184 details specific requirements
for a group of states (and the District of Columbia)
that make up the OTR. States in the OTR are
required to mandate a certain level of emissions
control for the pollutants that form ozone, even if
the areas in the state meet the ozone standards.
Thus, NNSR permitting requirements apply
statewide, even if the state is designated attainment
for the ozone NAAQS.
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NAAQS.2 See 80 FR 12264. Areas that
were designated as marginal
nonattainment areas for the 2008 8-hour
ozone NAAQS were required to attain
no later than July 20, 2015, based on
2012–2014 monitoring data. See 40 CFR
51.1103. The Dukes County
nonattainment area attained the 2008 8hour ozone NAAQS by July 20, 2015,
and therefore on April 11, 2016, the
EPA Administrator signed a final
determination of attainment for the 2008
8-hour ozone standard for the Dukes
County nonattainment area. See 81 FR
26697 (May 4, 2016).
Based on initial nonattainment
designations for the 2008 8-hour ozone
standard, as well as the March 6, 2015
final SIP Requirements Rule,
Massachusetts was required to develop
a SIP revision addressing certain CAA
requirements for the Dukes County
nonattainment area, and submit to the
EPA an NNSR Certification SIP or SIP
revision no later than 36 months after
the effective date of area designations
for the 2008 8-hour ozone NAAQS (i.e.,
July 20, 2015).3 4 Because Massachusetts
already has a NNSR program that
applies statewide, Massachusetts can
certify the adequacy of its existing
NNSR program with respect to the 2008
ozone NAAQS for the Dukes County
nonattainment area.5 See 40 CFR
51.1114.
On February 3, 2017, the EPA found
that 15 states (including the
Commonwealth of Massachusetts) and
2 The SIP Requirements Rule addresses a range of
nonattainment area SIP requirements for the 2008
ozone NAAQS, including requirements pertaining
to attainment demonstrations, reasonable further
progress (RFP), reasonably available control
technology, reasonably available control measures,
major new source review, emission inventories, and
the timing of SIP submissions and of compliance
with emission control measures in the SIP. The rule
also revokes the 1997 ozone NAAQS and
establishes anti-backsliding requirements.
3 Where an air agency determines that the
provisions in or referred to by its existing EPA
approved SIP are adequate with respect to a given
infrastructure SIP element (or sub-element) even in
light of the promulgation of a new or revised
NAAQS, the air agency may make a SIP submission
in the form of a certification. This type of
infrastructure SIP submission may, e.g., take the
form of a letter to the EPA from the Governor or
her/his designee containing a ‘‘certification’’ (or
declaration) that the already-approved SIP contains
or references provisions that satisfy all or some of
the requirements of section 110(a)(2), as applicable,
for purposes of implementing the new or revised
NAAQS.
4 Massachusetts’s obligation to submit the NNSR
Certification SIP was not affected by the D.C.
Circuit Court’s February 16, 2018 decision on
portions of the SIP Requirements Rule in South
Coast Air Quality Mgmt. Dist. v. EPA.
5 Massachusetts’s February 9, 2018 certification of
adequacy that the SIP meets the NNSR
requirements for the 2008 ozone NAAQS relies on
the inclusion of the SIP revisions approved in this
action.
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the District of Columbia failed to submit
SIP revisions in a timely manner to
satisfy certain requirements for the 2008
8-hour ozone NAAQS that apply to
nonattainment areas and/or states in the
ozone transport region.6 See 82 FR 9158.
MassDEP submitted its February 9, 2018
SIP revision to address the specific
NNSR requirements for the 2008 8-hour
ozone NAAQS, located in 40 CFR
51.160–165, as well as its obligations
under the EPA’s February 3, 2017
Findings of Failure to Submit.
Other specific requirements of the
Commonwealth’s NNSR SIP revisions
and NNSR certification, and the
rationale for EPA’s proposed action, are
explained in the NPRM and will not be
restated here. No public comments were
received on the NPRM.
II. Final Action
The EPA’s review of MassDEP’s
February 9, 2018 SIP submittal indicates
that the submittal satisfies the
requirements of the CAA and is
appropriate for inclusion into the SIP.
The EPA therefore is approving the SIP
revisions submitted by MassDEP. Also,
as a result of our approval of the NNSR
permitting revisions in this action, the
EPA is converting the December 21,
2016 conditional approval to a full
approval for prong 3 of CAA section
110(a)(2)(D)(i)(II). Other aspects of
EPA’s December 21, 2016 conditional
approval will be addressed in other
actions.
The EPA is also approving MassDEP’s
February 9, 2018 SIP revision
addressing the NNSR requirements for
the 2008 ozone NAAQS for the Dukes
County Nonattainment Area. The EPA
has concluded that MassDEP’s
submission fulfills the 40 CFR 51.1114
revision requirement, meets the
requirements of CAA sections 110 and
172 and the minimum SIP requirements
of 40 CFR 51.165, as well as its
obligations under the EPA’s February 3,
2017 Findings of Failure to Submit
6 States have three years after the effective date of
designation for the 2008 8-hour ozone NAAQS to
submit SIP revisions addressing NNSR for their
nonattainment areas. See 40 CFR 51.1114.
Massachusetts’s SIP revision certified that its SIPapproved state regulation addressing nonattainment
new source review for all new stationary sources
and modified existing stationary sources in the
Commonwealth exceeds the requirements of section
182(a)(2)(C) for the 2008 8-hour ozone NAAQS.
However, EPA does not believe that the two-year
deadline contained in CAA section 182(a)(2)(C)
applies to NNSR SIP revisions for implementing the
8-hour ozone NAAQS. See 80 FR 12264, 12267
(March 6, 2015); 70 FR 71612, 71683 (November 29,
2005). The submission of NNSR SIPs due on
November 15, 1992, satisfied the requirement for
states to submit NNSR SIP revisions to meet the
requirements of CAA sections 172(c)(5) and 173
within two years after the date of enactment of the
1990 CAA Amendments. Id.
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relating to submission of a NNSR
certification.
III. Incorporation by Reference
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is finalizing the
incorporation by reference of
Massachusetts’s 310 CMR 7.00:
Appendix A as described in the
amendments to 40 CFR part 52 set forth
below. The EPA has made, and will
continue to make, these documents
generally available through https://
www.regulations.gov and at the EPA
Region 1 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, these materials have been
approved by EPA for inclusion in the
State implementation plan, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference in the next
update to the SIP compilation.7
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• This action is not an Executive
Order 13771 regulatory action because
this action is not significant under
Executive Order 12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
7 62
FR 27968 (May 22, 1997).
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under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
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 July 29, 2019.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action 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, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides,
Volatile organic compounds.
Dated: May 19, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region
1.
Part 52 of chapter I, title 40 of the
Code of Federal Regulations is amended
as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart W—Massachusetts
§ 52.1119
[Amended]
2. Section 52.1119 is amended by
removing and reserving paragraph (a)(4).
■ 3. Section 52.1120 is amended:
■ a. In the table in paragraph (c), by
revising the entry for ‘‘310 CMR 7.00,
Appendix A’’; and
■ b. In the table in paragraph (e), by
adding entries for ‘‘Infrastructure SIP for
the 1997 Ozone NAAQS’’,
‘‘Infrastructure SIP for the 2008 Lead
NAAQS’’, ‘‘Infrastructure SIP for the
2008 Ozone NAAQS’’, ‘‘Infrastructure
SIP for the 2010 NO2 NAAQS’’, and
‘‘Infrastructure SIP for the 2010 SO2
NAAQS’’ at the end of the table.
The revision and additions read as
follows:
■
§ 52.1120
*
Identification of plan.
*
*
(c) * * *
*
*
EPA APPROVED MASSACHUSETTS REGULATIONS
Title/subject
State effective
date
EPA approval date 1
Explanations
*
*
Emission Offsets and Nonattainment Review.
*
October 22, 1999
*
May 29, 2019 [Insert Federal Register citation].
*
*
Approves revisions for consistency
with underlying federal regulations that make the Commonwealth’s SIP-approved NNSR
program applicable to certain
sources of NOX and VOC statewide.
State citation
*
310 CMR 7.00, Appendix
A.
*
*
*
*
*
*
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1 To
*
determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for
the particular provision.
*
*
*
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*
*
16:21 May 28, 2019
(e) * * *
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Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Rules and Regulations
MASSACHUSETTS NON REGULATORY
Applicable
geographic or
nonattainment
area
Name of non regulatory SIP
provision
*
Infrastructure SIP for 1997
Ozone NAAQS.
*
State submittal
date/effective date
EPA approved date 3
*
*
Statewide .............. February 9, 2018 ..
*
May 29, 2019 [Insert Federal Register citation].
Infrastructure SIP for 2008
Lead NAAQS.
Statewide ..............
February 9, 2018 ..
May 29, 2019 [Insert Federal Register citation].
Infrastructure SIP for 2008
Ozone NAAQS.
Statewide ..............
February 9, 2018 ..
May 29, 2019 [Insert Federal Register citation].
Infrastructure SIP for 2010
NO2 NAAQS.
Statewide ..............
February 9, 2018 ..
May 29, 2019 [Insert Federal Register citation].
Infrastructure SIP for 2010
SO2 NAAQS.
Statewide ..............
February 9, 2018 ..
May 29, 2019 [Insert Federal Register citation].
Explanations
*
*
Certain aspects relating to PSD for
prong
3
of
CAA
section
110(a)(2)(D)(i)(II) which were conditionally approved on December 21,
2016 are now fully approved.
Certain aspects relating to PSD for
prong
3
of
CAA
section
110(a)(2)(D)(i)(II) which were conditionally approved on December 21,
2016 are now fully approved.
Certain aspects relating to PSD for
prong
3
of
CAA
section
110(a)(2)(D)(i)(II) which were conditionally approved on December 21,
2016 are now fully approved.
Certain aspects relating to PSD for
prong
3
of
CAA
section
110(a)(2)(D)(i)(II) which were conditionally approved on December 21,
2016 are now fully approved.
Certain aspects relating to PSD for
prong
3
of
CAA
section
110(a)(2)(D)(i)(II) which were conditionally approved on December 21,
2016 are now fully approved.
3 To determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for
the particular provision.
[FR Doc. 2019–10875 Filed 5–28–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2018–0275; FRL–9993–48]
Clofentezine; Pesticide Tolerances
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
tolerances for residues of clofentezine in
or on guava. The Interregional Research
Project Number 4 (IR–4) requested this
tolerance under the Federal Food, Drug,
and Cosmetic Act (FFDCA).
DATES: This regulation is effective May
29, 2019. Objections and requests for
hearings must be received on or before
July 29, 2019, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2018–0275, is
available at https://www.regulations.gov
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SUMMARY:
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or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket)
in the Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, Washington, DC
20460–0001. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the OPP
Docket is (703) 305–5805. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Michael Goodis, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460–0001; main telephone number:
(703) 305–7090; email address:
RDFRNotices@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. The following
list of North American Industrial
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Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
B. How can I get electronic access to
other related information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Publishing Office’s eCFR site at https://www.ecfr.gov/cgi-bin/
text-idx?&c=ecfr&tpl=/ecfrbrowse/
Title40/40tab_02.tpl. To access the
OCSPP test guidelines referenced in this
document electronically, please go to
https://www.epa.gov/aboutepa/aboutoffice-chemical-safety-and-pollutionprevention-ocspp and select ‘‘Test
Methods and Guidelines.’’
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
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[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Rules and Regulations]
[Pages 24719-24722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10875]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2018-0829; FRL-9993-84-Region 1]
Air Plan Approval; Massachusetts; Nonattainment New Source Review
Program Revisions; Infrastructure Provisions for National Ambient Air
Quality Standards; Nonattainment New Source Review Requirements for the
2008 8-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Massachusetts. On February 9, 2018, the Massachusetts Department of
Environmental Protection (MassDEP) submitted revisions to the EPA
satisfying the MassDEP's earlier commitment to adopt and submit
provisions that meet certain requirements of the Nonattainment New
Source Review (NNSR) air permit program regulations. The EPA is also
approving the Commonwealth's NNSR certification, which was included in
the February 9, 2018, SIP revision, as sufficient for the purposes of
satisfying the 2008 8-hour ozone National Ambient Air Quality Standard
(NAAQS). In addition, this action converts the EPA's December 21, 2016,
conditional approval for certain infrastructure provisions relating to
Massachusetts's NNSR air permit program to full approval. This action
is being taken under the Clean Air Act.
DATES: This rule is effective on June 28, 2019.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2018-0829. All documents in the docket
are listed on the https://www.regulations.gov website. Although listed
in the index, some information is not publicly available, i.e., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA
Region 1 Regional Office, Air and Radiation Division, Air Permits,
Toxics, and Indoor Programs Branch, 5 Post Office Square--Suite 100,
Boston, MA. EPA requests that if at all possible, you contact the
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays.
FOR FURTHER INFORMATION CONTACT: Eric Wortman, Office of Ecosystem
Protection, U.S. Environmental Protection Agency, EPA Region 1, 5 Post
Office Square--Suite 100 (Mail Code 05-2), Boston, MA 02109--3912, tel.
(617) 918-1624, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
A. NNSR SIP Revisions and the EPA's December 21, 2016
Conditional Approval
B. NNSR Certification for 2008 Ozone NAAQS
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On February 14, 2019, the EPA published a Notice of Proposed
Rulemaking (NPRM) for the Commonwealth of Massachusetts. See 84 FR
4021. The NPRM proposed approval of several revisions to the
Commonwealth's NNSR permit program to address the relevant issues
identified in the EPA's December 21, 2016 conditional approval of the
Commonwealth's infrastructure SIP for the 1997 ozone, 2008 lead, 2008
ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide
NAAQS. As a result of the proposed approval of the NNSR permitting
revisions, the EPA also proposed to convert the December 21, 2016
conditional approval to a full approval for Clean Air Act (CAA) section
110(a)(2)(D)(i)(II). In addition, the NPRM proposed to approve the
Commonwealth's NNSR certification as sufficient for addressing the NNSR
requirements for the 2008 ozone NAAQS for the Dukes County
Nonattainment Area. The formal SIP revision was submitted by
Massachusetts on February 9, 2018.
A. NNSR SIP Revisions and the EPA's December 21, 2016 Conditional
Approval
On December 21, 2016, the EPA published a final conditional
approval for Massachusetts's June 6, 2014 infrastructure SIP submittal
for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 NO2,
and 2010 sulfur dioxide (SO2) NAAQS. See 81 FR 93627. This
rulemaking identified that a provision under section
110(a)(2)(D)(i)(II) of the CAA was not included in the Commonwealth's
June 6, 2014 SIP submittal. Among other things, section
110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any
source or other type of emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state. The EPA sometimes refers to this
requirement under subsection 110(a)(2)(D)(i)(II) as ``prong 3.'' To
address the conditional approval for prong 3, on February 9, 2018, the
MassDEP submitted regulatory provisions for approval into the
Commonwealth's SIP. As explained in the NPRM, the revisions addressed
the NNSR requirements that would make the Commonwealth's NNSR program
applicable to sources regardless of the attainment status of the area
where the source is located. These revisions were necessary because
Massachusetts is located in the Ozone Transport Region (OTR).\1\
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\1\ CAA section 184 details specific requirements for a group of
states (and the District of Columbia) that make up the OTR. States
in the OTR are required to mandate a certain level of emissions
control for the pollutants that form ozone, even if the areas in the
state meet the ozone standards. Thus, NNSR permitting requirements
apply statewide, even if the state is designated attainment for the
ozone NAAQS.
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B. NNSR Certification for 2008 Ozone NAAQS
Dukes County in Massachusetts was designated nonattainment for the
2008 8-hour ozone NAAQS on July 20, 2012 using 2009-2011 ambient air
quality data. See 77 FR 30088 (May 21, 2012). At the time of
designation, Dukes County was classified as a marginal nonattainment
area. On March 6, 2015, the EPA issued a final rule entitled,
``Implementation of the 2008 National Ambient Air Quality Standards for
Ozone: State Implementation Plan Requirements'' (SIP Requirements
Rule), which established the requirements that state, tribal, and local
air quality management agencies must meet in developing implementation
plans for areas where ozone concentrations exceed the 2008 8-hour ozone
[[Page 24720]]
NAAQS.\2\ See 80 FR 12264. Areas that were designated as marginal
nonattainment areas for the 2008 8-hour ozone NAAQS were required to
attain no later than July 20, 2015, based on 2012-2014 monitoring data.
See 40 CFR 51.1103. The Dukes County nonattainment area attained the
2008 8-hour ozone NAAQS by July 20, 2015, and therefore on April 11,
2016, the EPA Administrator signed a final determination of attainment
for the 2008 8-hour ozone standard for the Dukes County nonattainment
area. See 81 FR 26697 (May 4, 2016).
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\2\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements.
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Based on initial nonattainment designations for the 2008 8-hour
ozone standard, as well as the March 6, 2015 final SIP Requirements
Rule, Massachusetts was required to develop a SIP revision addressing
certain CAA requirements for the Dukes County nonattainment area, and
submit to the EPA an NNSR Certification SIP or SIP revision no later
than 36 months after the effective date of area designations for the
2008 8-hour ozone NAAQS (i.e., July 20, 2015).3 4 Because
Massachusetts already has a NNSR program that applies statewide,
Massachusetts can certify the adequacy of its existing NNSR program
with respect to the 2008 ozone NAAQS for the Dukes County nonattainment
area.\5\ See 40 CFR 51.1114.
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\3\ Where an air agency determines that the provisions in or
referred to by its existing EPA approved SIP are adequate with
respect to a given infrastructure SIP element (or sub-element) even
in light of the promulgation of a new or revised NAAQS, the air
agency may make a SIP submission in the form of a certification.
This type of infrastructure SIP submission may, e.g., take the form
of a letter to the EPA from the Governor or her/his designee
containing a ``certification'' (or declaration) that the already-
approved SIP contains or references provisions that satisfy all or
some of the requirements of section 110(a)(2), as applicable, for
purposes of implementing the new or revised NAAQS.
\4\ Massachusetts's obligation to submit the NNSR Certification
SIP was not affected by the D.C. Circuit Court's February 16, 2018
decision on portions of the SIP Requirements Rule in South Coast Air
Quality Mgmt. Dist. v. EPA.
\5\ Massachusetts's February 9, 2018 certification of adequacy
that the SIP meets the NNSR requirements for the 2008 ozone NAAQS
relies on the inclusion of the SIP revisions approved in this
action.
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On February 3, 2017, the EPA found that 15 states (including the
Commonwealth of Massachusetts) and the District of Columbia failed to
submit SIP revisions in a timely manner to satisfy certain requirements
for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/
or states in the ozone transport region.\6\ See 82 FR 9158. MassDEP
submitted its February 9, 2018 SIP revision to address the specific
NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR
51.160-165, as well as its obligations under the EPA's February 3, 2017
Findings of Failure to Submit.
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\6\ States have three years after the effective date of
designation for the 2008 8-hour ozone NAAQS to submit SIP revisions
addressing NNSR for their nonattainment areas. See 40 CFR 51.1114.
Massachusetts's SIP revision certified that its SIP-approved state
regulation addressing nonattainment new source review for all new
stationary sources and modified existing stationary sources in the
Commonwealth exceeds the requirements of section 182(a)(2)(C) for
the 2008 8-hour ozone NAAQS. However, EPA does not believe that the
two-year deadline contained in CAA section 182(a)(2)(C) applies to
NNSR SIP revisions for implementing the 8-hour ozone NAAQS. See 80
FR 12264, 12267 (March 6, 2015); 70 FR 71612, 71683 (November 29,
2005). The submission of NNSR SIPs due on November 15, 1992,
satisfied the requirement for states to submit NNSR SIP revisions to
meet the requirements of CAA sections 172(c)(5) and 173 within two
years after the date of enactment of the 1990 CAA Amendments. Id.
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Other specific requirements of the Commonwealth's NNSR SIP
revisions and NNSR certification, and the rationale for EPA's proposed
action, are explained in the NPRM and will not be restated here. No
public comments were received on the NPRM.
II. Final Action
The EPA's review of MassDEP's February 9, 2018 SIP submittal
indicates that the submittal satisfies the requirements of the CAA and
is appropriate for inclusion into the SIP. The EPA therefore is
approving the SIP revisions submitted by MassDEP. Also, as a result of
our approval of the NNSR permitting revisions in this action, the EPA
is converting the December 21, 2016 conditional approval to a full
approval for prong 3 of CAA section 110(a)(2)(D)(i)(II). Other aspects
of EPA's December 21, 2016 conditional approval will be addressed in
other actions.
The EPA is also approving MassDEP's February 9, 2018 SIP revision
addressing the NNSR requirements for the 2008 ozone NAAQS for the Dukes
County Nonattainment Area. The EPA has concluded that MassDEP's
submission fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165, as well as its obligations under the
EPA's February 3, 2017 Findings of Failure to Submit relating to
submission of a NNSR certification.
III. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of
Massachusetts's 310 CMR 7.00: Appendix A as described in the amendments
to 40 CFR part 52 set forth below. The EPA has made, and will continue
to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information). Therefore, these materials have
been approved by EPA for inclusion in the State implementation plan,
have been incorporated by reference by EPA into that plan, are fully
federally enforceable under sections 110 and 113 of the CAA as of the
effective date of the final rulemaking of EPA's approval, and will be
incorporated by reference in the next update to the SIP compilation.\7\
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\7\ 62 FR 27968 (May 22, 1997).
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IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
This action is not an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities
[[Page 24721]]
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
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 July 29, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides, Volatile organic compounds.
Dated: May 19, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart W--Massachusetts
Sec. 52.1119 [Amended]
0
2. Section 52.1119 is amended by removing and reserving paragraph
(a)(4).
0
3. Section 52.1120 is amended:
0
a. In the table in paragraph (c), by revising the entry for ``310 CMR
7.00, Appendix A''; and
0
b. In the table in paragraph (e), by adding entries for
``Infrastructure SIP for the 1997 Ozone NAAQS'', ``Infrastructure SIP
for the 2008 Lead NAAQS'', ``Infrastructure SIP for the 2008 Ozone
NAAQS'', ``Infrastructure SIP for the 2010 NO2 NAAQS'', and
``Infrastructure SIP for the 2010 SO2 NAAQS'' at the end of
the table.
The revision and additions read as follows:
Sec. 52.1120 Identification of plan.
* * * * *
(c) * * *
EPA Approved Massachusetts Regulations
----------------------------------------------------------------------------------------------------------------
State effective EPA approval date
State citation Title/subject date \1\ Explanations
----------------------------------------------------------------------------------------------------------------
* * * * * * *
310 CMR 7.00, Appendix A....... Emission Offsets October 22, 1999. May 29, 2019 Approves revisions for
and [Insert Federal consistency with
Nonattainment Register underlying federal
Review. citation]. regulations that make
the Commonwealth's
SIP-approved NNSR
program applicable to
certain sources of
NOX and VOC
statewide.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
Register notice cited in this column for the particular provision.
* * * * *
(e) * * *
[[Page 24722]]
Massachusetts Non Regulatory
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non regulatory SIP geographic or State submittal EPA approved date
provision nonattainment date/effective \3\ Explanations
area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Infrastructure SIP for 1997 Statewide........ February 9, 2018. May 29, 2019 Certain aspects
Ozone NAAQS. [Insert Federal relating to PSD for
Register prong 3 of CAA
citation]. section
110(a)(2)(D)(i)(II)
which were
conditionally
approved on December
21, 2016 are now
fully approved.
Infrastructure SIP for 2008 Statewide........ February 9, 2018. May 29, 2019 Certain aspects
Lead NAAQS. [Insert Federal relating to PSD for
Register prong 3 of CAA
citation]. section
110(a)(2)(D)(i)(II)
which were
conditionally
approved on December
21, 2016 are now
fully approved.
Infrastructure SIP for 2008 Statewide........ February 9, 2018. May 29, 2019 Certain aspects
Ozone NAAQS. [Insert Federal relating to PSD for
Register prong 3 of CAA
citation]. section
110(a)(2)(D)(i)(II)
which were
conditionally
approved on December
21, 2016 are now
fully approved.
Infrastructure SIP for 2010 NO2 Statewide........ February 9, 2018. May 29, 2019 Certain aspects
NAAQS. [Insert Federal relating to PSD for
Register prong 3 of CAA
citation]. section
110(a)(2)(D)(i)(II)
which were
conditionally
approved on December
21, 2016 are now
fully approved.
Infrastructure SIP for 2010 SO2 Statewide........ February 9, 2018. May 29, 2019 Certain aspects
NAAQS. [Insert Federal relating to PSD for
Register prong 3 of CAA
citation]. section
110(a)(2)(D)(i)(II)
which were
conditionally
approved on December
21, 2016 are now
fully approved.
----------------------------------------------------------------------------------------------------------------
\3\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
Register notice cited in this column for the particular provision.
[FR Doc. 2019-10875 Filed 5-28-19; 8:45 am]
BILLING CODE 6560-50-P
