81 FR 47133 - Air Plan Approval; Massachusetts; Infrastructure State Implementation Plan Requirements

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 139 (July 20, 2016)

Page Range47133-47144
FR Document2016-17069

The Environmental Protection Agency (EPA) is proposing to approve most elements of State Implementation Plan (SIP) submissions from Massachusetts regarding the infrastructure requirements of the Clean Air Act (CAA or Act) for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO<INF>2</INF>), and 2010 sulfur dioxide (SO<INF>2</INF>) National Ambient Air Quality Standards (NAAQS). EPA is also proposing to conditionally approve three aspects of the Commonwealth's submittals. In addition, we are also proposing findings of failure to submit pertaining to various aspects of the prevention of significant deterioration (PSD) requirements of infrastructure SIPs. Lastly, we are proposing to remove 40 CFR 52.1160 as legally obsolete. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

Federal Register, Volume 81 Issue 139 (Wednesday, July 20, 2016)
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47133-47144]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-17069]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2014-0720; FRL-9949-29-Region 1]


Air Plan Approval; Massachusetts; Infrastructure State 
Implementation Plan Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve most elements of State Implementation Plan (SIP) submissions 
from Massachusetts regarding the infrastructure requirements of the 
Clean Air Act (CAA or Act) for the 1997 ozone, 2008 lead (Pb), 2008 
ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide 
(SO2) National Ambient Air Quality Standards (NAAQS). EPA is 
also proposing to conditionally approve three aspects of the 
Commonwealth's submittals. In addition, we are also proposing findings 
of failure to submit pertaining to various aspects of the

[[Page 47134]]

prevention of significant deterioration (PSD) requirements of 
infrastructure SIPs. Lastly, we are proposing to remove 40 CFR 52.1160 
as legally obsolete.
    The infrastructure requirements are designed to ensure that the 
structural components of each state's air quality management program 
are adequate to meet the state's responsibilities under the CAA.

DATES: Comments must be received on or before August 19, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2014-0720, at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Bob McConnell, Environmental Engineer, 
Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), 
U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, 
Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046; 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Additionally, the term ``the 
Commonwealth'' refers to the state of Massachusetts.
    This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What is the background of these SIP submissions?
    A. What Massachusetts SIP submissions does this rulemaking 
address?
    B. Why did the state make these SIP submissions?
    C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
    A. Section 110(a)(2)(A)--Emission Limits and Other Control 
Measures
    B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data 
System
    C. Section 110(a)(2)(C)--Program for Enforcement of Control 
Measures and for Construction or Modification of Stationary Sources
    i. Sub-Element 1: Enforcement of SIP Measures
    ii. Sub-Element 2: Preconstruction Program for Major Sources and 
Major Modifications
    iii. Sub-Element 3: Preconstruction Permitting for Minor Sources 
and Minor Modifications
    D. Section 110(a)(2)(D)--Interstate Transport
    i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to 
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS 
(Prong 2)
    ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility 
Protection (Prong 4)
    iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate 
Pollution Abatement
    v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International 
Pollution Abatement
    E. Section 110(a)(2)(E)--Adequate Resources
    i. Sub-Element 1: Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    ii. Sub-Element 2: State Board Requirements Under Section 128 of 
the CAA
    F. Section 110(a)(2)(F)--Stationary Source Monitoring System
    G. Section 110(a)(2)(G)--Emergency Powers
    H. Section 110(a)(2)(H)--Future SIP Revisions
    I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D
    J. Section 110(a)(2)(J)--Consultation With Government Officials; 
Public Notifications; PSD; Visibility Protection
    i. Sub-Element 1: Consultation With Government Officials
    ii. Sub-Element 2: Public Notification
    iii. Sub-Element 3: PSD
    iv. Visibility Protection
    K. Section 110(a)(2)(K)--Air Quality Modeling/Data
    L. Section 110(a)(2)(L)--Permitting Fees
    M. Section 110(a)(2)(M)--Consultation/Participation by Affected 
Local Entities
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background of these SIP submissions?

A. What Massachusetts SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Massachusetts 
Department of Environmental Protection (MassDEP). The Commonwealth 
submitted its infrastructure State Implementation Plan (ISIP) for the 
1997 ozone NAAQS on December 14, 2007, its ISIP for the 200b Pb NAAQS 
on December 4, 2012, and its ISIPs for the 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS on June 6, 2014.

B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS. These submissions must contain any revisions 
needed for meeting the applicable SIP requirements of section 
110(a)(2), or certifications that their existing SIPs for the NAAQS 
already meet those requirements.
    EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance

[[Page 47135]]

on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 
8-hour Ozone and PM2.5 (Fine Particle) National Ambient Air 
Quality Standards'' (2007 Memo). On September 25, 2009, EPA issued an 
additional guidance document pertaining to the 2006 PM2.5 
NAAQS entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed 
by the October 14, 2011, ``Guidance on infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most 
recently, EPA issued ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)'' on 
September 13, 2013 (2013 Memo). The SIP submissions referenced in this 
rulemaking pertain to the applicable requirements of section 110(a)(1) 
and (2) and address the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

C. What is the scope of this rulemaking?

    EPA is proposing approval of most aspects of the SIP submissions 
from Massachusetts that address the infrastructure requirements of CAA 
sections 110(a)(1) and 110(a)(2) for the 1997 ozone, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS. 
Additionally, we are proposing approval of a statute submitted by 
Massachusetts that supports the infrastructure SIP submittals, 
proposing conditional approval of certain aspects of the Commonwealth's 
submittals as discussed below, and proposing findings of failure to 
submit for a number of ISIP provisions that pertain to the State's PSD 
program.
    The requirement for states to make a SIP submission of this type 
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these 
sections, each state must submit a SIP that provides for the 
implementation, maintenance, and enforcement of each primary or 
secondary NAAQS. States must make such SIP submission ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of'' a new or revised NAAQS. This requirement is triggered 
by the promulgation of a new or revised NAAQS and is not conditioned 
upon EPA's taking any other action. Section 110(a)(2) includes the 
specific elements that ``each such plan'' must address.
    EPA commonly refers to such SIP submissions made for the purpose of 
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the planning 
requirements of part D of title I of the CAA.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction at sources (``SSM'' emissions) that 
may be contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP-
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); and, (iii) existing provisions for PSD 
programs that may be inconsistent with current requirements of EPA's 
``Final New Source Review (NSR) Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Instead, EPA has the authority to address each one of these 
substantive areas separately. A detailed history, interpretation, and 
rationale for EPA's approach to infrastructure SIP requirements can be 
found in EPA's May 13, 2014, proposed rule entitled, ``Infrastructure 
SIP Requirements for the 2008 Lead NAAQS'' in the section, ``What is 
the scope of this rulemaking?'' (See 79 FR 27241; May 13, 2014).

III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with 
the applicable statutory provisions of section 110(a)(2), as 
appropriate. Historically, EPA has elected to use non-binding guidance 
documents to make recommendations for states' development and EPA 
review of infrastructure SIPs, in some cases conveying needed 
interpretations on newly arising issues and in some cases conveying 
interpretations that have already been developed and applied to 
individual SIP submissions for particular elements. EPA guidance 
applicable to these infrastructure SIP submissions is embodied in 
several documents. Specifically, attachment A of the 2007 Memo 
(Required Section 110 SIP Elements) identifies the statutory elements 
that states need to submit in order to satisfy the requirements for an 
infrastructure SIP submission. The 2009 Memo provides additional 
guidance for certain elements regarding the 2006 PM2.5 
NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb 
NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects 
of infrastructure SIPs that are not NAAQS specific.

IV. What is the result of EPA's review of these SIP submissions?

    Pursuant to section 110(a), and as noted in the 2011 Memo and the 
2013 Memo, states must provide reasonable notice and opportunity for 
public hearing for all infrastructure SIP submissions. MassDEP held a 
public hearing on the ISIP for the 2008 Pb NAAQS on June 12, 2012, and 
held a public hearing on the ISIPs for the 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS on September 6, 2013.
    EPA is soliciting comment on our evaluation of the state's 
infrastructure SIP submissions in this notice of proposed rulemaking. 
Massachusetts provided detailed synopses of how various components of 
its SIP meet each of the requirements in section 110(a)(2) for the 1997 
ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS, as applicable. The following review evaluates the 
state's submissions in light of section 110(a)(2) requirements and 
relevant EPA guidance.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits 
and other control measures, means or techniques, schedules for 
compliance, and other related matters. However, EPA has long 
interpreted emission limits and control measures for attaining the 
standards as being due when nonattainment planning requirements are 
due.\1\ In the context of an infrastructure SIP, EPA is not evaluating 
the existing SIP provisions for this purpose. Instead, EPA is only 
evaluating whether the state's SIP has basic structural provisions for 
the implementation of the NAAQS.
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    \1\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964, 67034 (Nov. 12, 2008).
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    Massachusetts General Law (M.G.L.) c.21A, Sec.  8, Executive Office 
of Energy and Environmental Affairs Organization of Departments; 
powers, duties and functions, creates and sets forth the

[[Page 47136]]

powers and duties of the Department of Environmental Protection 
(MassDEP) within the Executive Office of Energy and Environmental 
Affairs. In addition, M.G.L. c.111, Sec. Sec.  142A through 142N, 
which, collectively, are referred to as the Massachusetts Pollution 
Control Laws, provide MassDEP with broad authority to prevent pollution 
or contamination of the atmosphere and to prescribe and establish 
appropriate regulations. Furthermore, M.G.L. c.21A, Sec.  18, Permit 
applications and compliance assurance fees; timeline action schedules; 
regulations, authorizes MassDEP to establish fees applicable to the 
regulatory programs it administers.
    MassDEP has adopted numerous regulations within the Code of 
Massachusetts Regulations (CMR) in furtherance of the objectives set 
out by these statutes, including 310 CMR 4.00: Timely Action & Fee 
Schedule Regulations, 310 CMR 6.00, Ambient Air Quality Standards for 
the Commonwealth of Massachusetts, and 310 CMR 7.00: Air Pollution 
Control Regulations. For example, many SIP-approved State air quality 
regulations within 310 CMR 7.00 provide enforceable emission 
limitations and other control measures, means or techniques, schedules 
for compliance, and other related matters that satisfy the requirements 
of the CAA section 110(a)(2)(A) for the 1997 ozone, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS, including 
but not limited to 7.18, Volatile and Halogenated Organic Compounds, 
7.19, Reasonably Available Control Technology (RACT) for Sources of 
NOX, and 7.29, Emission Standards for Power Plants.
    We note, however, that we are conditionally approving this element 
because the SIP-approved version of 310 CMR 7.00 uses the term 
``National Ambient Air Quality Standards (NAAQS),'' but does not 
contain a definition for this term. Therefore, there is uncertainty as 
to which versions of the NAAQS the term incorporates. By letter dated 
June 14, 2016, Massachusetts committed to submitting for inclusion in 
the SIP, by a date no later than one year from conditional approval of 
Massachusetts' infrastructure submissions, a definition for NAAQS in 
310 CMR 7.00 that would reflect the current versions of the various 
NAAQS we are proposing to act on in this rulemaking.
    In recognition of the above, EPA proposes that Massachusetts has 
met the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS, with the exception of the issue related 
to a definition of NAAQS in 310 CMR 7.00, for which we are proposing a 
conditional approval.
    In addition to the above, we are proposing to remove as legally 
obsolete 40 CFR 52.1160, which was promulgated on January 24, 1995 (60 
FR 4737). Section 52.1160 provides that ``Massachusetts' adopted LEV 
[Low Emission Vehicle] program must be revised to the extent necessary 
for the state to comply with all aspects of the requirements of 40 CFR 
51.120,'' a provision that was promulgated in the same action (60 FR 
4736) and that required certain states to adopt the Ozone Transport 
Commission (OTC) LEV program or equivalent measures. (The OTC LEV 
program is based on California's LEV program and requires that only 
cleaner ``LEV'' cars be sold in the states in which it has been 
adopted). On March 11, 1997, however, the U.S. Court of Appeals for the 
District of Columbia Circuit vacated the provisions of 40 CFR 52.120. 
See Virginia v. EPA, 108 F.3d 1397. Nonetheless, the Commonwealth has 
adopted a Low Emission Vehicle Program based on California's LEV 
program (310 CMR 7.40), the latest version of which was approved into 
the SIP on December 23, 2002 (67 FR 78181). Because of the vacatur, EPA 
concludes that 40 CFR 52.1160 is obsolete and proposes to remove it 
from the CFR.
    As previously noted, EPA is not proposing to approve or disapprove 
any existing state provisions or rules related to SSM or director's 
discretion in the context of section 110(a)(2)(A).

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for 
establishing and operating ambient air quality monitors, collecting and 
analyzing ambient air quality data, and making these data available to 
EPA upon request. Each year, states submit annual air monitoring 
network plans to EPA for review and approval. EPA's review of these 
annual monitoring plans includes our evaluation of whether the state: 
(i) Monitors air quality at appropriate locations throughout the state 
using EPA-approved Federal Reference Methods or Federal Equivalent 
Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in 
a timely manner; and, (iii) provides EPA Regional Offices with prior 
notification of any planned changes to monitoring sites or the network 
plan.
    Under MGL c.111, Sec. Sec.  142B to 142D, MassDEP operates an air 
monitoring network. EPA approved the state's most recent Annual Air 
Monitoring Network Plan for Pb, ozone, NO2, and 
SO2 on November 13, 2015. Furthermore, MassDEP populates AQS 
with air quality monitoring data in a timely manner, and provides EPA 
with prior notification when considering a change to its monitoring 
network or plan. EPA proposes that MassDEP has met the infrastructure 
SIP requirements of section 110(a)(2)(B) with respect to the 1997 
ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet NSR requirements under PSD and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers the 
following: (i) Enforcement of SIP measures; (ii) PSD program for major 
sources and major modifications; and, (iii) permitting program for 
minor sources and minor modifications. A discussion of greenhouse gas 
(GHG) permitting and the ``Tailoring Rule'' \2\ is included within our 
evaluation of the PSD provisions of the Commonwealth's submittals.
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    \2\ In EPA's April 28, 2011 proposed rulemaking for several 
states' infrastructure SIPs for the 1997 ozone and PM2.5 
NAAQS, we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (See 76 FR 23757 at 23760). This view was reiterated in 
EPA's August 2, 2012 proposed rulemaking for several infrastructure 
SIPs for the 2006 PM2.5 NAAQS (See 77 FR 45992 at 45998). 
In other words, if a state lacks provisions needed to adequately 
address Pb, NOX as a precursor to ozone, PM2.5 
precursors, PM2.5 and PM10 condensables, 
PM2.5 increments, or the Federal GHG permitting 
thresholds, the provisions of section 110(a)(2)(C) requiring a 
suitable PSD permitting program must be considered not to be met 
irrespective of the NAAQS that triggered the requirement to submit 
an infrastructure SIP, including the 2008 Pb NAAQS.
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i. Sub-Element 1: Enforcement of SIP Measures
    MassDEP staffs and implements an enforcement program pursuant to 
authorities provided within the following laws: M.G.L. c.111, Sec.  2C, 
Pollution violations; orders of department of environmental protection, 
which authorizes MassDEP

[[Page 47137]]

to issue orders enforcing pollution control regulations generally; 
M.G.L. c.111, Sec. Sec.  142A through 142O, Massachusetts Pollution 
Control Laws, which, among other things, more specifically authorize 
MassDEP to adopt regulations to control air pollution, enforce such 
regulations, and issue penalties for non-compliance; and, M.G.L. c.21A, 
Sec.  16, Civil Administrative Penalties, which provides additional 
authorizations for MassDEP to assess penalties for failure to comply 
with the Commonwealth's air pollution control laws and regulations. 
Moreover, SIP-approved regulations, such as 310 CMR 7.02(12)(e) and 
(f), provide a program for the enforcement of SIP measures. 
Accordingly, EPA proposes that Massachusetts has met this requirement 
of section 110(a)(2)(C) with respect to the 1997 ozone, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
ii. Sub-Element 2: Preconstruction Program for Major Sources and Major 
Modifications
    Sub-element 2 of section 110(a)(2)(C) requires that states provide 
for the regulation of modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved, including a 
program to meet PSD and NNSR requirements. PSD applies to new major 
sources or modifications made to major sources for pollutants where the 
area in which the source is located is in attainment of, or 
unclassifiable with regard to, the relevant NAAQS, and NNSR requires 
similar actions in nonattainment areas.
    Massachusetts does not have an approved state PSD program and has 
made no submittals addressing the PSD sub-element of section 
110(a)(2)(C). The Commonwealth has long been subject to a Federal 
Implementation Plan (FIP), however, and has implemented and enforced 
the federal PSD program through a delegation agreement. See 76 FR 
31241; May 31, 2011. Accordingly, EPA is proposing a finding of failure 
to submit with respect to the PSD-related requirements of this sub-
element for the 2010 NO2 and 2010 SO2 NAAQS.\3\ 
See CAA section 110(c)(1). This finding, however, does not trigger any 
additional FIP obligation by the EPA under section 110(c)(1), because 
the deficiency is addressed by the FIP already in place. Moreover the 
state is not subject to mandatory sanctions solely as a result of this 
finding, because the SIP submittal deficiencies are neither with 
respect to a sub-element that is required under part D nor in response 
to a SIP call under section 110(k)(5) of the Act.
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    \3\ EPA has previously issued findings of failure to submit 
infrastructure SIPs addressing the PSD-related requirements of 
section 110(a)(2) for the 1997 ozone NAAQS, 73 FR 16205 (Mar. 27, 
2008), the 2008 ozone NAAQS, 78 FR 2882 (Jan. 15, 2013), and the 
2008 Pb NAAQS, 78 FR 12961 (Feb. 26, 2013), and Massachusetts has 
made no additional submissions to address the PSD-related 
requirements for these NAAQS since those previous findings.
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iii. Sub-Element 3: Preconstruction Permitting for Minor Sources and 
Minor Modifications
    To address the pre-construction regulation of the modification and 
construction of minor stationary sources and minor modifications of 
major stationary sources, an infrastructure SIP submission should 
identify the existing EPA-approved SIP provisions and/or include new 
provisions that govern the minor source pre-construction program that 
regulates emissions of the relevant NAAQS pollutants. EPA's most recent 
approval of the Commonwealth's minor NSR program occurred on April 5, 
1995 (60 FR 17226). Since this date, Massachusetts and EPA have relied 
on the existing minor NSR program to ensure that new and modified 
sources not captured by the major NSR permitting programs do not 
interfere with attainment and maintenance of the 1997 ozone, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    In summary, we are proposing to find that Massachusetts has met the 
enforcement related aspects of Section 110(a)(2)(C) discussed above 
within sub-element 1, and the preconstruction permitting requirements 
for minor sources discussed in sub-element 3, for the 1997 ozone, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. 
Also, we are proposing, pursuant to section 110(c)(1), to find that the 
state has failed to make required submissions related to major source 
preconstruction permitting for the 2010 NO2 and 2010 
SO2 NAAQS for the reasons provided in sub-element 2 above.

D. Section 110(a)(2)(D)--Interstate Transport

    This section contains a comprehensive set of air quality management 
elements pertaining to the transport of air pollution that states must 
address. It covers the following 5 topics, categorized as sub-elements: 
Sub-element 1, Contribute to nonattainment, and interfere with 
maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility 
protection; Sub-element 4, Interstate pollution abatement; and Sub-
element 5, International pollution abatement. Sub-elements 1 through 3 
above are found under section 110(a)(2)(D)(i) of the Act, and these 
items are further categorized into the 4 prongs discussed below, 2 of 
which are found within sub-element 1. Sub-elements 4 and 5 are found 
under section 110(a)(2)(D)(ii) of the Act and include provisions 
insuring compliance with sections 115 and 126 of the Act relating to 
interstate and international pollution abatement.
i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to 
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS 
(Prong 2)
    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the 
physical properties of Pb prevent it from experiencing the same travel 
or formation phenomena as PM2.5 or ozone. Specifically, 
there is a sharp decrease in Pb concentrations as the distance from a 
Pb source increases. Accordingly, although it may be possible for a 
source in a state to emit Pb at a location and in such quantities that 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state, EPA anticipates that this would be a 
rare situation (e.g., sources emitting large quantities of Pb in close 
proximity to state boundaries). The 2011 Memo suggests that the 
applicable interstate transport requirements of section 
110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's 
assessment as to whether or not emissions from Pb sources located in 
close proximity to its borders have emissions that impact a neighboring 
state such that they contribute significantly to nonattainment or 
interfere with maintenance in that state.
    Massachusetts' infrastructure SIP submission for the 2008 Pb NAAQS 
notes that there are no major sources of Pb emissions located in close 
proximity to any of the state's borders with neighboring states, or 
elsewhere in the state. Our review of data within our National 
Emissions Inventory (NEI) database confirms this, and also indicates 
that there is no group of sources anywhere within the state likely to 
emit enough Pb to cause ambient concentrations to approach the Pb 
NAAQS. Therefore, we propose that Massachusetts has met this set of 
requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb 
NAAQS.
    Massachusetts' infrastructure SIP submission for the 2010 
NO2 NAAQS notes that Massachusetts sources do not contribute 
to non-attainment or maintenance in other states, given that all 
surrounding states are designated as ``unclassifiable/attainment.'' 
This statement is accurate, and indeed there are no NO2 
nonattainment areas

[[Page 47138]]

anywhere in the United States. 77 FR 9532 (Feb. 17, 2012). We examined 
the design values from NO2 monitors in Massachusetts and 
neighboring states based on data collected between 2012 and 2014. In 
Massachusetts, the highest design value was 49 parts per billion 
(ppb)(versus the NO2 standard of 100 ppb) at a monitor in 
Boston. The highest design value we found in a neighboring state was 58 
ppb in Queens, NY. We believe that with the continued implementation of 
Massachusetts PSD FIP, and the Commonwealth's NSR regulations, the 
state's low monitored values of NO2 will continue. In other 
words, the NO2 emissions from Massachusetts are not expected 
to cause or contribute to a violation of the 2010 NO2 NAAQS 
in another state, and these emissions are not likely to interfere with 
the maintenance of the 2010 NO2 NAAQS in another state. 
Therefore, we propose that Massachusetts has met this set of 
requirements related to section 110(a)(2)(D)(i)(I) for the 2010 
NO2 NAAQS.
    In today's rulemaking, we are not proposing to approve or 
disapprove Massachusetts' compliance with section 110(a)(2)(D)(i)(I) 
with respect to the 1997 ozone, 2008 ozone, or 2010 SO2 
NAAQS, since the Commonwealth's SIP revisions upon which we are acting 
today do not include a submittal with respect to transport for sub-
element 1, prongs 1 and 2 for these pollutants. Effective August 12, 
2015, EPA found that Massachusetts, among a number of other states, had 
not made a complete good neighbor SIP submittal for the 2008 ozone 
NAAQS to meet the requirements of section 110(a)(2)(D)(i)(I). See 80 FR 
39961 (July 13, 2015).
ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    One aspect of 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. A state's 
infrastructure SIP submittal cannot be considered approvable for prong 
3 unless EPA has issued final approval of the state's PSD SIP, or 
alternatively, has issued final approval of a SIP that EPA has 
otherwise found adequate to prohibit interference with other states' 
measures to prevent significant deterioration of air quality.
    As discussed under element C above, Massachusetts is currently 
subject to a PSD FIP. Therefore, we are proposing a finding of failure 
to submit for prong 3 of 110(a)(2)(D)(i)(II) with respect to the PSD 
requirement, in the same manner as discussed under element C above. 
However, this finding will not trigger any sanctions or additional FIP 
obligation.
    Under prong 3 of 110(a)(2)(D)(i)(II), EPA also reviews the 
potential for in-state sources not subject to PSD to interfere with PSD 
in an attainment or unclassifiable area of another state. EPA guidance 
recommends that a ``fully approved nonattainment [new source review 
(NNSR)] program with respect to any previous NAAQS may generally be 
considered by the EPA as adequate for purposes of meeting this 
requirement of prong 3 with respect to sources and pollutants subject 
to such program.'' 2013 Guidance at 32. EPA last approved the 
Commonwealth's NNSR program on October 27, 2000. 65 FR 64360. Because 
Massachusetts is located within the Ozone Transport Region, see CAA 
Sec.  184(a), 42 U.S.C. 7511c(a), sources emitting 50 tpy or more of 
NOX or VOCs are subject to the requirements that would be 
applicable to major stationary sources if the area were classified as a 
moderate nonattainment area, CAA Sec. Sec.  182(f)(1), 184(b)(2), 42 
U.S.C. 7511a, 7511c. In other words, even if located in an area 
designated attainment for ozone, such sources are not subject to PSD, 
but rather, are to be subject to NNSR. Massachusetts' SIP-approved NNSR 
regulations, however, apply by their terms only to nonattainment 
areas,\4\ meaning that sources of 50 tpy or more of VOCs or 
NOX in much of Massachusetts are not covered by either the 
PSD FIP or the state's EPA-approved NNSR program and, thus, the state 
has not shown that it has met this requirement of prong 3. The 
Commonwealth has promulgated and implements NNSR regulations, however, 
that make the state's NNSR program applicable to such sources 
regardless of area designation. In a letter dated June 14, 2016, the 
Commonwealth committed to submitting for inclusion in the SIP, by a 
date no later than one year from conditional approval of Massachusetts' 
infrastructure submissions, the necessary provisions that would make 
its EPA-approved NSSR program applicable to such sources. Accordingly, 
we propose to conditionally approve Massachusetts' submittals for the 
1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS for this aspect of prong 3.
---------------------------------------------------------------------------

    \4\ At the time EPA last approved Massachusetts' NNSR 
regulations (October 27, 2000; 65 FR at 64361), the Western 
Massachusetts area was nonattainment for the one-hour ozone 
standard, and the Eastern Massachusetts area was attaining the 
standard, but destined to become nonattainment as of January 16, 
2001, upon EPA's reinstatement of the one-hour ozone NAAQS for that 
area.
---------------------------------------------------------------------------

iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II), states are subject to 
visibility and regional haze program requirements under part C of the 
CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 
Memo, and 2013 Memo state that these requirements can be satisfied by 
an approved SIP addressing reasonably attributable visibility 
impairment, if required, or an approved SIP addressing regional haze.
    The Commonwealth's Regional Haze SIP was approved by EPA on 
September 13, 2013. See 78 FR 57487. Accordingly, EPA proposes that 
Massachusetts has met the visibility protection requirements of 
110(a)(2)(D)(i)(II) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.
iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution 
Abatement
    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain 
adequate provisions requiring compliance with the applicable 
requirements of section 126 relating to interstate pollution abatement. 
Section 126(a) requires new or modified sources to notify neighboring 
states of potential impacts from the source. The statute does not 
specify the method by which the source should provide the notification. 
As mentioned elsewhere in this notice, Massachusetts is currently 
subject to a PSD FIP and it did not make submittals addressing the PSD-
related requirements of section 126(a). Therefore, we are proposing to 
make a finding of failure to submit for section 110(a)(2)(D)(ii) 
regarding PSD-related notice of interstate pollution with respect to 
the 2010 NO2 and 2010 SO2 NAAQS.\5\ This finding 
does not trigger any additional FIP obligation by the EPA under section 
110(c)(1), because the federal PSD rules address the notification 
issue. See 40 CFR 52.21(q), 124.10(c)(vii); see also id. Sec.  52.1165. 
Nor does the finding trigger any sanctions. Massachusetts has no 
obligations under any other provision of section 126.
---------------------------------------------------------------------------

    \5\ As discussed earlier, supra n.3, EPA has previously issued 
findings of failure to submit for Massachusetts for the PSD-related 
requirements of 110(a)(2)(D)(ii) for the 1997 ozone, 2008 ozone, and 
2008 Pb NAAQS.

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[[Page 47139]]

v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    One portion of section 110(a)(2)(D)(ii) requires each SIP to 
contain adequate provisions requiring compliance with the applicable 
requirements of section 115 relating to international pollution 
abatement. Massachusetts does not have any pending obligations under 
section 115 for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS. Therefore, EPA is 
proposing that the Commonwealth has met the applicable infrastructure 
SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of 
the CAA (international pollution abatement) for the 1997 ozone, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP, and 
related issues. Additionally, section 110(a)(2)(E)(ii) requires each 
state to comply with the requirements with respect to state boards 
under section 128. Finally, section 110(a)(2)(E)(iii) requires that, 
where a state relies upon local or regional governments or agencies for 
the implementation of its SIP provisions, the state retain 
responsibility for ensuring adequate implementation of SIP obligations 
with respect to relevant NAAQS. This last sub-element, however, is 
inapplicable to this action, because Massachusetts does not rely upon 
local or regional governments or agencies for the implementation of its 
SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under 
State Law To Carry Out Its SIP, and Related Issues
    Massachusetts, through its infrastructure SIP submittals, has 
documented that its air agency has the requisite authority and 
resources to carry out its SIP obligations. Massachusetts General Laws 
c. 111, sections 142A to 142N, provide MassDEP with the authority to 
carry out the state's implementation plan. The Massachusetts SIP, as 
originally submitted in 1971 and subsequently amended, provides 
descriptions of the staffing and funding necessary to carry out the 
plan. In the submittals, MassDEP provides assurances that it has 
adequate personnel and funding to carry out the SIP during the five 
years following infrastructure SIP submission and in future years. 
Additionally, the Commonwealth receives CAA section 103 and 105 grant 
funds through Performance Partnership agreements and provides state 
matching funds, which together enable Massachusetts to carry out its 
SIP requirements. In light of the foregoing, EPA proposes that 
Massachusetts has met the infrastructure SIP requirements of this 
portion of section 110(a)(2)(E) with respect to the 1997 ozone, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
    Section 110(a)(2)(E) also requires each SIP to contain provisions 
that comply with the state board requirements of section 128(a) of the 
CAA. That provision contains two explicit requirements: (1) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (2) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed.
    Massachusetts does not have a state board that approves permits or 
enforcement orders under the CAA. Instead, permits and enforcement 
orders are approved by the Commissioner of MassDEP. Thus, Massachusetts 
is not subject to the requirements of paragraph (a)(1) of section 128. 
As to the conflict of interest provisions of section 128(a)(2), 
Massachusetts has cited to M.G.L. c. 268A, sections 6 and 6A of the 
Commonwealth's Conflict of Interest law in its June 6, 2014 
infrastructure SIP submittal for the 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS and requested that these sections be 
included in the SIP to satisfy this infrastructure SIP requirement.\6\ 
Pursuant to these state provisions, state employees in Massachusetts, 
including the head of an executive agency with authority to approve air 
permits or enforcement orders, are required to disclose potential 
conflicts of interest to, among others, the state ethics commission. We 
are proposing to find that M.G.L. c. 268A, sections 6 and 6A satisfy 
the requirements of section 110(a)(2)(E)(ii) of the Clean Air Act, to 
approve them into the Massachusetts SIP, and, consequently, to approve 
the Commonwealth's ISIP submittals for section 110(a)(2)(E)(ii) for the 
1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.
---------------------------------------------------------------------------

    \6\ In its June 6, 2014 submittal, Massachusetts also requested 
that M.G.L. c. 268A, section 7 be added to the SIP. By letter dated 
June 14, 2016, however, Massachusetts withdrew section 7 from 
consideration for inclusion in the SIP. Section 7 contains state-
specific penalties that are not needed to satisfy CAA section 
110(a)(2)(E)(ii).
---------------------------------------------------------------------------

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    Pursuant to M.G.L. c.111, sections 142A to 142D, MassDEP has the 
necessary authority to maintain and operate air monitoring stations, 
and coordinates with EPA in determining the types and locations of 
ambient air monitors across the state. The Commonwealth uses this 
authority to collect information on air emissions from sources in the 
state. Additionally, Massachusetts statutes and regulations provide 
that emissions data shall be available for public inspection. See, 
e.g., M.G.L. c.111, section 142B; 310 CMR sections 3.33(5), 7.12(4)(b); 
7.14(1). The following SIP-approved regulations enable the 
accomplishment of the Commonwealth's emissions recording and reporting 
objectives:
    1. 310 CMR 7.12, Source Registration.
    2. 310 CMR 7.13, Stack Testing.
    3. 310 CMR 7.14, Monitoring Devices and Reports.
    EPA recognizes that Massachusetts routinely collects information on 
air emissions from its industrial sources and makes this information 
available to the public. EPA, therefore, proposes that the Commonwealth 
has met the infrastructure SIP requirements of section 110(a)(2)(F) 
with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for authority that is 
analogous to what is provided in section 303 of the

[[Page 47140]]

CAA, and adequate contingency plans to implement such authority. 
Section 303 of the CAA provides authority to the EPA Administrator to 
seek a court order to restrain any source from causing or contributing 
to emissions that present an ``imminent and substantial endangerment to 
public health or welfare, or the environment.'' Section 303 further 
authorizes the Administrator to issue ``such orders as may be necessary 
to protect public health or welfare or the environment'' in the event 
that ``it is not practicable to assure prompt protection . . . by 
commencement of such civil action.''
    We propose to find that the Commonwealth's ISIP submittals 
demonstrate that certain state statutes and regulations provide for 
authority comparable to that in section 303. Massachusetts' submittals 
cite M.G.L. c.111, section 2B, Air Pollution Emergencies, which 
authorizes the Commissioner of the MassDEP to ``declare an air 
pollution emergency'' if the Commissioner ``determines that the 
condition or impending condition of the atmosphere in the Commonwealth 
. . . constitutes a present or reasonably imminent danger to health.'' 
During such an air pollution emergency, the Commissioner is authorized 
pursuant to section 2B, to ``take whatever action is necessary to 
maintain and protect the public health, including but not limited to . 
. . prohibiting, restricting and conditioning emissions of dangerous or 
potentially dangerous air contaminants from whatever source derived . . 
. .'' Additionally, sections 2B and 2C authorize the Commissioner to 
issue emergency orders.
    Moreover, M.G.L. c. 21A, section 8 provides that, ``[i]n regulating 
. . . any pollution prevention, control or abatement plan [or] strategy 
. . . through any . . . departmental action affecting or prohibiting 
the emission . . . of any hazardous substance to the environment . . . 
the department may consider the potential effects of such plans [and] 
strategies . . . on public health and safety and the environment . . . 
and said department shall act to minimize and prevent damage or threat 
of damage to the environment.''
    These duties are implemented, in part, under MassDEP regulations at 
310 CMR 8.00, Prevention and Abatement of Air Pollution Episodes and 
Air Pollution Incident Emergencies, which EPA most recently approved 
into the SIP on October 4, 2002. See 67 FR 62184. These regulations 
establish levels that would constitute significant harm or imminent and 
substantial endangerment to health for ambient concentrations of 
pollutants subject to a NAAQS, consistent with the significant harm 
levels and procedures for state emergency episode plans established by 
EPA in 40 CFR 51.150 and 51.151.\7\ Finally, M.G.L. c.111, section 2B 
authorizes the state to seek injunctive relief in the superior court 
for violation of an emergency order issued by the MassDEP Commissioner. 
While no single Massachusetts statute or regulation mirrors the 
authorities of CAA section 303, we propose to find that the combination 
of state statutes and regulations discussed herein provide for 
comparable authority to immediately bring suit to restrain, and issue 
orders against, any person causing or contributing to air pollution 
that presents an imminent and substantial endangerment to public health 
or welfare, or the environment.\8\
---------------------------------------------------------------------------

    \7\ The Commonwealth's Contaminant Concentration Levels are 
found within Table 1 of 310 CMR 8.01, and match EPA's levels from 40 
CFR part 51.151 with the exception of the averaging time used for 
ozone. Massachusetts uses a 1-hour averaging time, which is slightly 
more protective that the 2-hour averaging time EPA provides for this 
pollutant.
    \8\ By letter dated June 14, 2016, MassDEP stated that it 
likewise interprets M.G.L. c.111, section 2B and M.G.L. c. 21A, 
section 8 as together providing MassDEP with authority comparable to 
that granted to the Administrator by CAA section 303.
---------------------------------------------------------------------------

    Section 110(a)(2)(G) also requires that, for any NAAQS, States have 
an approved contingency plan for any Air Quality Control Region (AQCR) 
within the state that is classified as Priority I, IA, or II. See 40 
CFR 51.152(c). A contingency plan is not required if the entire state 
is classified as Priority III for a particular pollutant. Id. The 
entire state is classified as Priority III for nitrogen dioxide, but 
contains priority classifications of I or II for particulate matter, 
sulfur oxides, carbon monoxide, and ozone. See 40 CFR 52.1121. 
Consequently, as relevant to this proposed rulemaking action, 
Massachusetts' SIP must contain an emergency contingency plan meeting 
the specific requirements of 40 CFR 51.151 and 51.152 with respect to 
SO2 and ozone.\9\
---------------------------------------------------------------------------

    \9\ Those regulations do not specifically address Pb. See also 
40 CFR 51.150.
---------------------------------------------------------------------------

    Although Massachusetts has adopted 310 CMR 8.00, The Prevention 
and/or Abatement of Air Pollution Episode and Air Pollution Incident 
Emergencies, which is modeled on EPA's example regulations for 
emergency contingency plans at 40 CFR part 51, appendix L, the version 
of the regulation that is currently in the SIP does not fully satisfy 
40 CFR 51.152. For instance, it does not specify any ``emission control 
actions to be taken at each episode stage,'' as required by 40 CFR 
51.152(a)(3). By letter dated June 14, 2016, MassDEP has committed to 
submitting for inclusion in the SIP, by a date no later than one year 
from conditional approval of Massachusetts' infrastructure submissions, 
a regulation satisfying the contingency plan requirements of element G.
    With respect to Pb, we note that Pb is not explicitly included in 
the contingency plan requirements of subpart H. In addition, we note 
that there are no large sources of Pb in Massachusetts. Specifically, a 
review of the National Emission Inventory shows that there are no 
sources of Pb in Massachusetts that exceed EPA's reporting threshold of 
0.5 tons per year. Although not expected, if that situation were to 
change, Massachusetts does have general authority (e.g., M.G.L. c. 21A, 
section 8 and c. 111, section 2B) to restrain any source from causing 
imminent and substantial endangerment.
    Consequently, EPA proposes that Massachusetts has met the 
applicable infrastructure SIP requirements of section 110(a)(2)(G) with 
respect to the 2008 Pb NAAQS. Furthermore, because all AQCRs in the 
state are classified as Priority III for NO2, EPA also 
proposes that the Commonwealth has met the applicable requirements of 
section 110(a)(2)(G) for the 2010 NO2 NAAQS. For the 1997 
ozone, 2008 ozone, and 2010 SO2 NAAQS, EPA proposes to 
approve Massachusetts' submittals with respect to the CAA section 303 
comparable authority requirement of element G, but to conditionally 
approve with respect to the contingency plan requirements of element G, 
based on MassDEP's commitment to submit a regulation satisfying such 
requirements within one year of final action on the infrastructure 
submissions EPA is evaluating in this notice.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires that a state's SIP provide for revision from 
time to time as may be necessary to take account of changes in the 
NAAQS or availability of improved methods for attaining the NAAQS and 
whenever the EPA finds that the SIP is substantially inadequate. 
Massachusetts General Laws c. 111, section 142D provides in relevant 
part that, ``From time to time the department shall review the ambient 
air quality standards and plans for implementation, maintenance and 
attainment of such standards adopted pursuant to this section and, 
after public hearings, shall amend such standards and implementation 
plan so as to minimize the economic cost of such standards and plan for 
implementation, provided,

[[Page 47141]]

however, that such standards shall not be less than the minimum federal 
standards.''
    EPA proposes that Massachusetts has met the infrastructure SIP 
requirements of CAA section 110(a)(2)(H) with respect to the 1997 
ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas. EPA has 
determined that section 110(a)(2)(I) is not applicable to the 
infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; PSD; Visibility Protection

    The evaluation of the submissions from Massachusetts with respect 
to the requirements of CAA section 110(a)(2)(J) are described below.
i. Sub-Element 1: Consultation With Government Officials
    Section 110(a)(2)(J) requires states to provide a process for 
consultation with local governments and Federal Land Managers (FLMs) 
carrying out NAAQS implementation requirements pursuant to Section 121 
relating to consultation.
    Pursuant to EPA-approved Massachusetts regulations at 310 CMR 
7.02(12)(g)(2), MassDEP notifies the public ``by advertisement in a 
newspaper having wide circulation'' in the area of the particular 
facility of the opportunity to comment on certain proposed permitting 
actions and sends ``a copy of the notice of public comment to the 
applicant, the EPA, and officials and agencies having jurisdiction over 
the community in which the facility is located, including local air 
pollution control agencies, chief executives of said community, and any 
regional land use planning agency.'' Massachusetts did not make a 
submittal, however, with respect to the requirement to consult with 
FLMs. As previously mentioned, Massachusetts does not have an approved 
state PSD program, but rather is subject to a PSD FIP. The FIP includes 
a provision requiring consultation with FLMs. See 40 CFR 52.21(p). 
Consequently, with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS, EPA proposes that 
Massachusetts has met the consultation with local governments 
requirement of this portion of section 110(a)(2)(J), but proposes a 
finding of failure to submit with respect to the FLM consultation 
requirement. Because the federal PSD program, which Massachusetts 
implements and enforces, addresses the FLM consultation requirement, a 
finding of failure to submit will not result in sanctions or new FIP 
obligations.
ii. Sub-Element 2: Public Notification
    Section 110(a)(2)(J) also requires states to: Notify the public if 
NAAQS are exceeded in an area; advise the public of health hazards 
associated with exceedances; and enhance public awareness of measures 
that can be taken to prevent exceedances and of ways in which the 
public can participate in regulatory and other efforts to improve air 
quality.
    Massachusetts regulations specify criteria for air pollution 
episodes and incidents and provide for notice to the public via news 
media and other means of communication. See 310 CMR 8.00. The 
Commonwealth also provides a daily air quality forecast to inform the 
public about concentrations of fine particles and, during the ozone 
season, provides similar information for ozone. Real time air quality 
data for NAAQS pollutants are also available on the MassDEP's Web site, 
as are information about health hazards associated with NAAQS 
pollutants and ways in which the public can participate in regulatory 
efforts related to air quality. The Commonwealth is also an active 
partner in EPA's AirNow and EnviroFlash air quality alert programs, 
which notify the public of air quality levels through EPA's Web site, 
alerts, and press releases. In light of the above, we propose to find 
that Massachusetts has met the infrastructure SIP requirements of this 
portion of section 110(a)(2)(J) with respect to the 1997 ozone, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
iii. Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. The Commonwealth's PSD program in the context of 
infrastructure SIPs has already been discussed in the paragraphs 
addressing sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(D)(ii), and our proposed actions for those sections are 
consistent with the proposed actions for this portion of section 
110(a)(2)(J). Specifically, we propose a finding of failure to submit 
with respect to the PSD sub-element of section 110(a)(2)(J) for the 
2010 NO2 and 2010 SO2 NAAQS,\10\ and note that 
such a finding will not result in any sanctions or new FIP obligations.
---------------------------------------------------------------------------

    \10\ As discussed earlier, supra n.3, EPA has previously issued 
findings of failure to submit for Massachusetts for PSD-related 
infrastructure requirements for the 1997 ozone, 2008 ozone, and 2008 
Pb NAAQS.
---------------------------------------------------------------------------

iv. Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIPs for the 
1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    To satisfy element K, the state air agency must demonstrate that it 
has the authority to perform air quality modeling to predict effects on 
air quality of emissions of any NAAQS pollutant and submit such data to 
EPA upon request.
    Pursuant to the authority granted by M.G.L. c.111, sections 142B-
142D, the MassDEP has the authority to maintain and operate air 
sampling stations and devices, make or perform ``such examinations, 
inspections, observations, determinations, laboratory analyses, and 
surveys; maintain such records; and perform such other acts as it deems 
necessary to conduct an adequate air pollution control program . . . 
.'' The agency is further authorized to require sources to report 
monitoring and emissions data. MassDEP accomplishes these objectives 
via a number of regulations, including the following:

310 CMR 7.02, Plan Approval and Emission Limitations;
310 CMR 7.12, Source Registration;
310 CMR 7.14, Monitoring Devices and Reports; and,
310 CMR 7.00, Appendix A--Emissions Offsets and Nonattainment 
Review.

    The state also collaborates with the Ozone Transport Commission 
(OTC), the Mid-Atlantic Regional Air Management Association, and EPA in 
order to perform large scale urban airshed modeling. EPA proposes that

[[Page 47142]]

Massachusetts has met the infrastructure SIP requirements of section 
110(a)(2)(K) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    Massachusetts implements and operates the Title V permit program, 
which EPA approved on September 28, 2001. See 66 FR 49541. In addition, 
M.G.L. c. 21A, section 18 authorizes MassDEP to promulgate regulations 
establishing fees. To collect fees from sources of air emissions, the 
MassDEP promulgated and implements 310 CMR 4.00, Timely Action Schedule 
and Fee Provisions. These regulations set permit compliance fees, 
including fees for Title V operating permits. EPA proposes that the 
Commonwealth has met the infrastructure SIP requirements of section 
110(a)(2)(L) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    To satisfy element M, states must consult with, and allow 
participation from, local political subdivisions affected by the SIP. 
Pursuant to M.G.L. c.111, section 142D, MassDEP must hold public 
hearings prior to revising its SIP. In addition, M.G.L. c. 30A, 
Massachusetts Administrative Procedures Act, requires MassDEP to 
provide notice and the opportunity for public comment and hearing prior 
to adoption of any regulation. Moreover, the Commonwealth's Executive 
Order No. 145 requires state agencies, including MassDEP, to provide 
notice to the Local Government Advisory Committee to solicit input on 
the impact of proposed regulations and other administrative actions on 
local governments. Therefore, EPA proposes that Massachusetts has met 
the infrastructure SIP requirements of section 110(a)(2)(M) with 
respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS.

V. What action is EPA taking?

    EPA is proposing to approve most portions of the SIP submissions 
from Massachusetts certifying that its current SIP is sufficient to 
meet the required infrastructure elements under sections 110(a)(1) and 
(2) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS, with the exception of certain aspects 
relating to PSD which we have either already made, or are proposing, a 
finding of failure to submit. Additionally, we are proposing to 
conditionally approve several aspects of the Commonwealth's submittals. 
EPA's proposed action for each element for each NAAQS is stated in 
Table 1 below.

                 Table 1--Proposed Action on MA Infrastructure SIP Submittals for Various NAAQS
----------------------------------------------------------------------------------------------------------------
                       Element                        1997 Ozone    2008 Pb   2008 Ozone   2010 NO2    2010 SO2
----------------------------------------------------------------------------------------------------------------
(A): Emission limits and other control measures.....           CA          CA          CA          CA          CA
(B): Ambient air quality monitoring and data system.          A           A           A           A           A
(C)(i): Enforcement of SIP measures.................          A           A           A           A           A
(C)(ii): PSD program for major sources and major             PF          PF          PF          FS          FS
 modifications......................................
(C)(iii): Permitting program for minor sources and            A           A           A           A           A
 minor modifications................................
(D)(i)(I): Contribute to nonattainment/interfere             NI           A          NS           A          NS
 with maintenance of NAAQS (prongs 1 and 2).........
(D)(i)(II): PSD (prong 3)...........................        PF/CA       PF/CA       PF/CA       FS/CA       FS/CA
(D)(i)(II): Visibility Protection (prong 4).........          A           A           A           A           A
(D)(ii): Interstate Pollution Abatement.............         PF          PF          PF          FS          FS
(D)(ii): International Pollution Abatement..........          A           A           A           A           A
(E)(i): Adequate resources..........................          A           A           A           A           A
(E)(ii): State boards...............................          A           A           A           A           A
(E)(iii): Necessary assurances with respect to local         NA          NA          NA          NA          NA
 agencies...........................................
(F): Stationary source monitoring system............          A           A           A           A           A
(G): Emergency power................................           CA         A            CA         A            CA
(H): Future SIP revisions...........................          A           A           A           A           A
(I): Nonattainment area plan or plan revisions under          +           +           +           +           +
 part D.............................................
(J)(i): Consultation with government officials......         FS          FS          FS          FS          FS
(J)(ii): Public notification........................          A           A           A           A           A
(J)(iii): PSD.......................................         PF          PF          PF          FS          FS
(J)(iv): Visibility protection......................          +           +           +           +           +
(K): Air quality modeling and data..................          A           A           A           A           A
(L): Permitting fees................................          A           A           A           A           A
(M): Consultation and participation by affected               A           A           A           A           A
 local entities.....................................
----------------------------------------------------------------------------------------------------------------
In the above table, the key is as follows:
A--Approve.
CA--Conditional approval.
FS--Finding of failure to submit.
NA--Not applicable.
NI--Not included in submittal we are acting on in today's action.
NS--No Submittal.
PF--Prior finding of failure to submit.
+--Not germane to infrastructure SIPs.

    In addition, we are proposing to incorporate into the Massachusetts 
SIP sections 6 and 6A of the state's Conflict of Interest law, which 
the Commonwealth submitted on June 6, 2014, and are proposing to remove 
40 CFR 52.1160 regarding Massachusetts LEV in that it is legally 
obsolete.
    As shown in Table 1, we are proposing to issue a finding of failure 
to submit for sub-element J(i) pertaining to the requirement for 
consultation with FLMs for all five of the cited NAAQS, and note that 
in light of the PSD FIP, this finding will not result in sanctions or 
new FIP obligations. Additionally, we are also proposing to issue 
findings of failure to submit with respect to the PSD-related elements 
in sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for

[[Page 47143]]

the 2010 NO2 and 2010 SO2 NAAQS. As noted above, 
Massachusetts is already subject to a FIP for PSD, and so EPA will have 
no additional FIP obligations under section 110(c) of the Act if this 
action is finalized as proposed. Furthermore, the state will not be 
subject to mandatory sanctions as a result of these actions.
    EPA is proposing to conditionally approve an aspect of the 
Commonwealth's submittal for element 110(a)(2)(A) pertaining to ambient 
air quality standards because the current, SIP-approved version of 310 
CMR 7.00, Air Pollution Control, does not reflect the current version 
of the various NAAQS we are proposing to act on in this rulemaking. 
However, by letter dated June 14, 2016, the Commonwealth committed to 
add a definition of NAAQS 310 CMR 7.00 that includes a calendar date to 
address this issue. For this reason, EPA is proposing to conditionally 
approve this SIP revision provided that the Commonwealth submits to EPA 
an updated version of 310 CMR 7.00. Additionally, we are proposing to 
conditionally approve the Commonwealth's submittals for element 
110(a)(2)(G) pertaining to contingency plans for the 1997 and 2008 
ozone NAAQS, and 2010 SO2 NAAQS, pursuant to Massachusetts 
commitment within their June 14, 2016 letter, to submit a regulation 
meeting the contingency plan requirement of element 110(a)(2)(G) by a 
date no later than one year from EPA's final action on these 
infrastructure SIPs. And last, we are proposing to conditionally 
approve the aspect of 110(a)(2)(D)(i)(II) for the 1997 ozone, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS 
pertaining to the Commonwealth's NNSR program pursuant to the state's 
June 14, 2016 letter committing to submit portions of 310 CMR 7.00: 
Appendix A, to EPA as a SIP revision request by one year from our final 
action on these ISIPs.
    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 one year from the date 
of approval. If EPA conditionally approves these commitments in a final 
rulemaking action, Massachusetts must meet its commitments to: Submit 
an updated version of 310 CMR 7.00, Air Pollution Control, containing a 
calendar date to clarify which NAAQS are being referenced, to fully 
meet the requirements of element 110(a)(2)(A); submit revisions to its 
SIP-approved nonattainment new source review regulations to fully meet 
the requirements of element 110(a)(2)(D)(i)(II); and, submit a 
regulation addressing the contingency plan requirement of section 
110(a)(2)(G). If the State fails to do so, this action will become a 
disapproval one year from the date of final approval. EPA will notify 
the State by letter that this action has occurred. At that time, these 
commitments will no longer be a part of the approved Massachusetts SIP. 
EPA subsequently will publish a document in the Federal Register 
notifying the public that the conditional approval(s) automatically 
converted to a disapproval(s). If the State meets its commitments 
within the applicable time frame, the conditionally approved 
submissions will remain a part of the SIP until EPA takes final action 
approving or disapproving them. If EPA disapproves the new submittals, 
the conditionally approved regulations will also be disapproved at that 
time. If EPA approves the submittals, the regulations will be fully 
approved in its entirety and replace the conditionally approved program 
in the SIP. If EPA determines that it cannot issue a final conditional 
approval or if the conditional approvals are converted to disapprovals, 
such action will trigger the Federal implementation plan (FIP) 
requirement under section 110(c).
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register, or by submitting comments 
electronically, by mail, or through hand delivery/courier following the 
directions in the ADDRESSES section of this Federal Register.

VI. Incorporation by Reference

    In this rulemaking, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference into the Massachusetts SIP M.G.L c. 268A, 
sections 6 and 6A of the Commonwealth's Conflict of Interest law 
submitted to EPA on June 6, 2014. The EPA has made, and will continue 
to make, this document generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the CAA, 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 proposed 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 proposed 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);
     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 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

[[Page 47144]]

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).

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, Reporting and recordkeeping 
requirements.

    Dated: July 5, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2016-17069 Filed 7-19-16; 8:45 am]
 BILLING CODE 6560-50-P


81_FR_47272
Current View
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before August 19, 2016.
ContactBob McConnell, Environmental Engineer, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046; [email protected]
FR Citation81 FR 47133 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Sulfur Oxides and Reporting and Recordkeeping Requirements

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