Current through Register 1531, September 27, 2024
(1)
Applicability.
(a)
The requirements of 310 CMR 7.38 shall apply to the construction and operation
of any tunnel ventilation system for highway projects proposed to be built in
the Metropolitan Boston Air Pollution Control District, construction of which
begins on or after January 1, 1991, including, but not limited to, the Central
Artery/Third Harbor Tunnel project. The requirements of 310 CMR 7.38 apply in
addition to requirements to implement guidelines of the Department to ensure
comprehensive and systematic air quality analysis of highway projects, and all
other review procedures applicable to highway projects pursuant to the State
Implementation Plan (SIP), the purpose of said review to ensure the consistency
of such projects with the requirements of the SIP. Tunnel ventilation systems
subject to 310 CMR 7.38 are not subject to the requirements of
310 CMR
7.02.
(b) Any tunnel ventilation system which, when
constructed, is subject to a federal New Source Performance Standard or
National Emission Standard for Hazardous Air Pollutants, shall be subject to
such standard and shall operate in compliance with such standard.
(2)
Preconstruction
Certification. No person shall cause, permit or allow the
construction of any tunnel ventilation system and project roadway subject to
310 CMR
7.00 without first certifying to the Department, and
receiving the Department's written acceptance of such certification, that any
tunnel ventilation system, project roadway and roadway network within the
project area, when operated in strict accordance with its design, standard
operating and standard maintenance procedure, will not:
(a) cause or exacerbate a violation of any
National Ambient Air Quality Standard, as set forth at 40 CFR 50, or a
Massachusetts Ambient Air Quality Standard as set forth at
310 CMR 6.00; or
(b) cause or exacerbate a violation of the
Department's one hour ambient NO2 guideline of 320
ug/m3; or
(c) result in an actual or projected increase
in the total amount of non-methane hydrocarbons measured within the project
area when compared with the no-build alternative.
(3)
Preconstruction Department
Certification Process.
(a) Any
proponent of a project subject to 310 CMR 7.38 is required to submit such
information sufficient for the Department to review the certification. Such
information shall include, but is not limited to, the following:
1. an analysis of the existing and projected
non-methane hydrocarbon emissions from the project area, including the
emissions from the tunnel ventilation system, the project roadway and the
roadway network in the project area;
2. a comparative analysis which quantifies
the air quality impact within the project area predicted to occur after the
project is built and the no-build alternative;
3. information concerning ventilation
building heights and locations, conceptual site plan, design criteria for the
proposed ventilation equipment and project roadway, standard operating
procedures and standard maintenance procedures for the tunnel ventilation
system;
4. an analysis of the
projected vehicle miles traveled, average vehicle speeds and vehicle hours that
are expected to occur within the project area when the project is completed
compared with the projected vehicle miles traveled, projected average vehicle
speeds, and projected vehicle hours travelled under the no-build alternative;
and
5. an identification and
analysis of feasible pollution prevention measures designed to reduce vehicle
miles travelled including identification of the available short and long-term
measures, commitments to implement said measures, and a schedule for
implementing said measures.
(b) The Department shall within 30 days of
receipt of a certification required by 310 CMR 7.38(2), make a determination
whether all information necessary for review of said certification has been
submitted. Upon making this determination, the Department shall notify the
project proponent. The Department shall review the certification and shall,
after notice and public hearing, accept or reject said certification in writing
no later than 90 days after the Department determines that all information
necessary to review the certification has been submitted. No construction on a
tunnel ventilation system or project roadway shall commence until the
certification has been accepted. The Department may impose such conditions on
any acceptance of a certification issued pursuant to 310 CMR 7.38(3) as it
deems are necessary to meet the criteria of 310 CMR 7.38(2)(a) through
(c).
(4)
Operating Certification.
(a) Except as provided herein, no person
shall operate any tunnel ventilation system or open for general public use any
project roadway which is served by a tunnel ventilation system subject to 310
CMR 7.38, without receiving written acceptance of its certification to do so
from the Department as provided for in 310 CMR 7.38(3). Any person who has
received written acceptance of certification to construct a tunnel ventilation
system pursuant to 310 CMR 7.38(3) may commence operation of said tunnel
ventilation system and open the project roadway to general public use for a
period not to exceed 18 months, provided that said person submits to the
Department an operating certification. Said operating certification submission
shall be no earlier than 12 nor later than 15 months after the commencement of
full operation of said tunnel ventilation system or opening of the project
roadway for general public use. Any operating certification shall demonstrate
that the operation of the tunnel ventilation system shall, at a minimum, be in
strict accordance with the certification criteria set forth in 310 CMR
7.38(2)(a) through (c) and the certification accepted by the Department
pursuant to 310 CMR 7.38(3) as demonstrated through actual measured emissions
and traffic data, or other approaches allowed by 310 CMR 7.38(8)(a).
(b) In addition to the demonstration of
compliance with the certification criteria set forth in 310 CMR 7.38(2)(a)
through (c) and the certification accepted by the Department pursuant to 310
CMR 7.38(3), the operating certificate submittal shall include a contingency
plan consisting of measures which could be implemented in cases of exceedence
of the emission limitations in the certification. Said contingency plan shall
identify available contingency measures including, but not limited to,
alternative tunnel ventilation system operations and maintenance, and
transportation control measures; a commitment for implementing said measures; a
schedule for implementing measures on a days-to-full effectiveness basis; and
an analysis of the daily air quality impact of the measures on the emissions
from the tunnel ventilation system and within the project area.
(c) Any operating certification accepted by
the Department pursuant to 310 CMR 7.38(4) shall remain in effect for five
years from the date of acceptance and shall contain such conditions as the
Department deems necessary to meet the certification criteria established in
310 CMR 7.38(2)(a) through (c) Any operating certification accepted by the
Department pursuant to 310 CMR 7.38(4) shall be subject to renewal upon
application to the Department. The Department shall apply the same criteria
that apply to the acceptance of pre-construction certification and the initial
operating certification to the renewal of an operating certification. The
requirement to obtain an operating certification, or renewal thereof, shall be
in addition to the certification required in 310 CMR 7.38(2).
(5)
Operating
Certification Department Process. The Department shall, within 30
days of receipt of an initial operating certification or renewal of an
operating certification required by 310 CMR 7.38(4), make a determination
whether all information necessary for review of said certification has been
submitted. Upon making this determination, the Department shall notify the
project proponent. The Department shall review the certification and shall,
after notice and public hearing, accept or reject said certification in writing
no later than 90 days after the Department determines that all information
necessary to review the certification has been submitted. The Department may
impose such conditions on any acceptance of a certification issued pursuant to
310 CMR 7.38(5) as it deems are necessary to meet the criteria of 310 CMR
7.38(2)(a) through (c) and of the certification accepted pursuant to 310 CMR
7.38(3).
(6)
Mitigation
Plan Review and Acceptance.
(a)
If the Department finds, based upon a review of information submitted by the
operator in support of any operating certification, and such other information
as the Department has available to it, that one or more of the criteria set
forth in 310 CMR 7.38(2)(a) through (c) or established in the acceptance of the
certification pursuant to 310 CMR 7.38(3) through (5) are being violated, or
are likely to be violated within the period for which the operating
certification is valid, the operator of the tunnel ventilation system shall:
1. Implement the measures identified in the
contingency plan submitted and accepted as part of the initial operating
certificate pursuant to 310 CMR 7. 38(4), and necessary,
2. Within four months after being notified of
such a finding, submit to the Department for review and approval a mitigation
plan which identifies specific measures the operator intends to implement to
bring the tunnel ventilation system and associated project area into compliance
with criteria set forth in 310 CMR 7.38(2)(a) through (c) and the conditions of
the Department's acceptance of the certification set forth in 310 CMR 7.38(3)
through (5). The mitigation plan shall at minimum contain the following:
a. a study that identifies the factors which
are causing or contributing to the violation identified in any notice by the
Department issued under 310 CMR 7.38(6);
b. identification and an affirmative
demonstration of specific measures which will result in compliance with the
criteria in 310 CMR 7.38(2)(a) through (c), and the Departments acceptance of
the certification issued pursuant to 310 CMR 7.38(3) through (5).
c. a demonstration of adequate funding
mechanisms for implementation of said measures; and
d. a schedule for implementing said
measures.
(b) A
mitigation plan submitted pursuant to 310 CMR 7.38(6) shall include examination
of measures which address the operation of the ventilation system as well as
examination of measures which address operation of the tunnel roadway and
roadway network within the project area. The latter shall include, but not be
limited to:
1. improvements in public
transit,
2. programs to increase
the use of high occupancy vehicles,
3. restriction of additional roads or lanes
to high-occupancy vehicles,
4.
employer-based transportation demand management plans,
5. expansion of fringe and transportation
corridor parking facilities,
6.
programs to limit or restrict vehicle use in downtown areas or other areas of
high emission concentration particularly during periods of peak use,
7. ridesharing programs, and
8. other measures to shift demand to
non-automotive modes of travel or to increase vehicle occupancy
rates.
(c) The Department
shall, within 30 days of receipt of the mitigation plan, make a determination
that all information necessary for review of said plan has been submitted. Upon
making this determination, the Department shall notify the project proponent.
The Department shall review the mitigation plan and shall, after notice and
public hearing, accept, or reject said plan in writing no later than 90 days
after the Department determines that all information necessary to review the
plan has been submitted. The Department may impose such conditions on any
acceptance of the plan prepared pursuant to 310 CMR 7.38(6) as it deems are
necessary to meet the criteria of 310 CMR 7.38(2)(a) through (c) and of the
certification accepted pursuant to 310 CMR 7.38(3) through (5). The terms of
the accepted plan shall be incorporated into the operating certification for
the applicable renewal period.
(7)
Review of
Operations. If at any time the Department finds that one or more
of the criteria set forth in
310
CMR 7.38(2)(a) through (c)
or the criteria established in the acceptance of certification issued pursuant
to 310 CMR 7. 38(3) through (5) is not being met, the Department may order the
operator to implement the contingency measures and to submit a mitigation plan
as set forth in
310
CMR 7.38(6) to bring the
operation of the tunnel ventilation system into compliance with said criteria.
Any plan submission made pursuant to
310
CMR 7.38(7) shall contain
the same elements as required pursuant to
310
CMR 7.38(5) and (6) as well
as such other information as the Department may require.
(8)
Compliance
Monitoring. Any person who constructs and operates a tunnel
ventilation system on or after January 1,1991 shall comply with the following
monitoring requirements:
(a)
Emissions Monitoring. Any person who constructs and
operates a tunnel ventilation system which is subject to the requirements of
310
CMR 7.38 shall, prior to commencing operation
of the tunnel ventilation system or opening the project roadway for public use,
develop and submit to the Department for review and approval an "Air Emissions
Monitoring Protocol" and shall install and operate emissions monitoring and
recording equipment in accordance with the approved protocol. Monitoring as
approved by the Department shall be required at the exhaust stacks or exhaust
plenums of ventilation buildings as well as at exit portals that utilize
longitudinal ventilation. The Department will consider for approval hybrid
monitoring systems that incorporate elements of the federal regulations for
monitoring ambient air pollution, for monitoring stationary source emissions,
and for pollutant emission trading (i.e.,
40 CFR Parts
58,
60, and
75) as practicable, as well as
statistical analysis, computer modeling, and innovative technologies. The "Air
Emissions Monitoring Protocol" may also be modified with prior written approval
of the Department.
(b)
Traffic Monitoring. Any person who constructs and
operates a tunnel ventilation system which is subject to the requirements of
310
CMR 7.38 shall install, operate and maintain
traffic monitoring equipment within the project area, the numbers and locations
of which shall be determined in consultation with the Department.
(9)
Record Keeping and
Reporting.
(a) Any person who
constructs and operates a tunnel ventilation system on or after January 1, 1991
shall comply with the following record keeping and reporting requirements:
1. All records and data from the continuous
emissions monitors, recorders and traffic monitors shall be maintained for a
period of five years. The most recent two years of data shall be readily
available for Department inspection.
2.
Emissions
Reporting. For the first year of operations monthly reports shall
be filed with the Department no later than 30 days following the end of the
preceding calendar month. Said monthly reports shall contain a summary of
continuous monitoring data showing any excursions from allowable emission
limitations contained in the Department's acceptance of the certification. In
the event any of the reported data shows an excursion of the emission
limitations set forth in the acceptance of certification, a written explanation
of any excursion shall be included. Evidence of each calibration event on the
monitoring devices shall be included in such monthly reports.
3.
Traffic
Reporting. For the first year of operation monthly reports shall
be filed with the Department no later than 30 days following the end of the
preceding calendar month. Said monthly reports shall contain a summary of
average daily and peak hour counts of vehicle miles travelled as well as
average daily and peak hour vehicle speeds and vehicle hours travelled as
identified through the traffic monitoring network established pursuant to
310
CMR 7.38(8).
4.
Tunnel Ventilation System
Maintenance. For the first year of operations monthly reports
shall be filed with the Department no later than 30 days following the end of
the preceding calendar month. Said monthly reports shall contain a summary of
routine maintenance checks performed, repairs of ventilation equipment, amount
of time during which ventilation equipment was not operating in accordance with
standard operating procedures and measures taken to remedy this
situation.
(b) After the
first year of operation, the reports required by
310
CMR 7.38(9) shall be
submitted to the Department on a quarterly basis, with the first such quarterly
report being due no later than 30 days after the end of the quarter and every
three months thereafter.
(10)
Removal of Air Pollution
Control and Monitoring Equipment. No person shall cause, suffer,
allow, or permit the removal, alteration or shall otherwise render inoperative
any air pollution control equipment or equipment used to monitor emissions or
operations which has been installed as a requirement of
310
CMR 7.38, other than for routine maintenance
periods or unexpected and unavoidable failure of the equipment, provided that
the Department is notified of such failure. For the purpose of
310
CMR 7.38(10), the term, air
pollution control equipment, shall mean the tunnel ventilation system as
defined in
310 CMR
7.00.
(11)
Public Participation. The purpose of the public
hearings provided for in
310
CMR 7.38 shall be to allow any person to make
their views known to the Department. Such a hearing shall not be adjudicatory
in nature, but shall be in the nature of a public forum for the presentation of
any comment that may be relevant to the consideration of a request for
acceptance of pre-construction certification, operating certification, renewal
of operating certification or acceptance of a mitigation plan. Any decision
related to the review and acceptance or rejection of a preconstruction
certification; review, acceptance or rejection of a request for operating
certification; review, acceptance or rejection of the renewal of an operating
certification; or review, acceptance or rejection of a mitigation plan in
accordance with the provisions of
310
CMR 7.38, is not an adjudicatory proceeding
within the meaning of M.G.L. c. 30A.
