[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43973-43976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21692]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-46-1-7194a; A-1-FRL-5552-9]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts; Marine Vessel Transfer Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is conditionally approving a State Implementation Plan
(SIP) revision submitted by the Commonwealth of Massachusetts. This
revision contains a regulation to reduce volatile organic compound
(VOC) emissions from marine vessel loading operations. The intended
effect of this action is to conditionally approve this regulation into
the Massachusetts SIP. This action is being taken in accordance with
the Clean Air Act.
DATES: This action will become effective October 28, 1996, unless
notice is received by September 26, 1996, that adverse or critical
comments will be submitted. If the effective date is delayed, timely
notice will be published in the Federal Register.
[[Page 43974]]
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Region I, JFK Federal Building, Boston, MA 02203. Copies of the
documents relevant to this action are available for public inspection
during normal business hours, by appointment at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, Region I, One
Congress Street, 11th Floor, Boston, MA; Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, 401 M Street,
SW. (LE-131), Washington, D.C. 20460; and the Division of Air Quality
Control, Commonwealth of Massachusetts, Department of Environmental
Protection, One Winter Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.
SUPPLEMENTARY INFORMATION: On January 11, 1995, the Massachusetts
Department of Environmental Protection submitted a formal State
Implementation Plan (SIP) submittal containing a new regulation 310 CMR
7.24(8) ``Marine Volatile Organic Liquid Transfer'' as well as
amendments to 310 CMR 7.00 ``Definitions.'' These regulations had been
recently adopted pursuant to the reasonable further progress
requirements and the volatile organic compound reasonable available
control technology (VOC RACT) requirements of the Clean Air Act (CAA)
[Sections 182(b)(1) and 182(b)(2)(C)]. In addition, on March 25, 1995,
DEP submitted additional documentation indicating that these
regulations became effective on January 27, 1995.
Background
Under the pre-amended Clean Air Act (i.e., the Clean Air Act before
the enactment of the amendments of November 15, 1990), ozone
nonattainment areas were required to adopt RACT rules for sources of
VOC emissions. EPA issued three sets of control technique guideline
(CTG) documents, establishing a ``presumptive norm'' for RACT for
various categories of VOC sources. The three sets of CTGs were: (1)
Group I--issued before January 1978 (15 CTGs); (2) Group II--issued in
1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 CTGs).
Those sources not covered by a CTG were called non-CTG sources. EPA
determined that the area's SIP-approved attainment date established
which RACT rules the area needed to adopt and implement. Under Section
172(a)(1), ozone nonattainment areas were generally required to attain
the ozone standard by December 31, 1982. Those areas that submitted an
attainment demonstration projecting attainment by that date were
required to adopt RACT for sources covered by the Group I and II CTGs.
Those areas that sought an extension of the attainment date under
Section 172(a)(2) to as late as December 31, 1987 were required to
adopt RACT for all CTG sources and for all major (i.e., 100 ton per
year or more of VOC emissions) non-CTG sources.
On November 15, 1990, amendments to the Clean Air Act were enacted.
Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. Secs. 7401-
7671q. Pursuant to the 1990 Amendments, all of Massachusetts was
classified as serious nonattainment for ozone (56 FR 56694 (Nov. 6,
1991)).
Section 182(b)(2) of the amended Act requires States to adopt RACT
rules for all areas designated nonattainment for ozone and classified
as moderate or above. There are three parts to the Section 182(b)(2)
RACT requirement: (1) RACT for sources covered by an existing CTG--
i.e., a CTG issued prior to the enactment of the 1990 amendments to the
Act; (2) RACT for sources covered by a post-enactment CTG; and (3) all
major sources not covered by a CTG, i.e., non-CTG sources. Also, under
Section 182(c) of the Act, the major source definition for serious
nonattainment areas was lowered to include sources that have a
potential to emit 50 tons or greater of VOCs per year.
In response to the Act's requirement to regulate major non-CTG VOC
sources, Massachusetts adopted 310 CMR 7.24(8) ``Marine Vessel Transfer
Operations'' and submitted this rule to EPA as a SIP revision on
January 11, 1995. Massachusetts' marine vessel rule is briefly
summarized below.
310 CMR 7.24(8) ``Marine Vessel Transfer Operations''
This regulation contains requirements for reducing VOC emissions
from loading events in which organic liquid is loaded onto marine tank
vessels or in which any liquid is loaded into a marine tank vessel
which previously held an organic liquid. Massachusetts' rule prohibits
a loading event to occur unless:
(1) marine tank vessel VOC emissions are limited to 2 lbs per 1,000
bbls of organic liquid transferred; or
(2) marine tank vessel VOC emissions are reduced at least 95
percent by weight from uncontrolled conditions when using a recovery
device or at least 98 percent by weight from uncontrolled conditions
when using a combustion device.
This regulation also limits the loading of marine tank vessels to
those vessels that are vapor tight.
Massachusetts' marine vessel rule will reduce VOC emissions. VOCs
contribute to the production of ground level ozone and smog. This
regulation was adopted as part of an effort to achieve the National
Ambient Air Quality Standard (NAAQS) for ozone. The following is EPA's
evaluation of 310 CMR 7.24(8).
EPA's Evaluation of Massachusetts' Submittal
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the Act and EPA
regulations, as found in Section 110 and Part D of the Act and 40 CFR
Part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). EPA's interpretation of these requirements,
which forms the basis for today's action, appears in various EPA policy
guidance documents. The specific guidance relied on for this action is
referenced within the technical support document and this notice. For
the purpose of assisting State and local agencies in developing RACT
rules, EPA prepared a series of CTG documents. The CTGs are based on
the underlying requirements of the Act and specify presumptive norms
for RACT for specific source categories. EPA has not yet developed CTGs
to cover all sources of VOC emissions. Further interpretations of EPA
policy are found in, but not limited to, the following: (1) the
proposed Post-1987 ozone and carbon monoxide policy, 52 FR 45044
(November 24, 1987); (2) the document entitled, ``Issues Relating to
VOC Regulation Cutpoints, Deficiencies, and Deviations, Clarification
to Appendix D of November 24, 1987 Federal Register Notice,'' otherwise
known as the ``Blue Book'' (notice of availability was published in the
Federal Register on May 25, 1988); and (3) the ``Model Volatile Organic
Compound Rules for Reasonably Available Control Technology,'' (Model
VOC RACT Rules) issued as a staff working draft in June of 1992. In
general, these guidance documents have been set forth to ensure that
VOC rules are fully enforceable and strengthen or maintain the SIP.
In addition, Section 183(f) of the amended Act specifically
requires EPA to promulgate RACT standards to reduce VOC emissions from
the loading and unloading of marine tank vessels. Furthermore, on
November 12, 1993 (58 FR 60021), marine vessels were added to the list
of those categories for which EPA will promulgate a maximum achievable
control technology (MACT) standard. On September 19, 1995 (60 FR
[[Page 43975]]
48388), EPA promulgated both RACT and MACT standards for marine tank
vessels.
EPA has evaluated Massachusetts' marine vessel rule and has found
that it is generally consistent with EPA's national marine vessel rule
and current EPA guidance. There are, however, two outstanding issues
associated with the Commonwealth's regulation.
Outstanding Issues
1. Lack of Monitoring Requirements
Massachusetts' regulation requires that, upon initial startup of
the control equipment, the owner or operator of a marine terminal
conduct an initial performance test in order to demonstrate compliance.
However, as was stated in EPA's public hearing comments on
Massachusetts' proposed version of this rule, the regulation should
also require the facility to demonstrate continued compliance as is
required under EPA's national marine vessel rule (40 CFR Sec. 63.564).
Specifically, the regulation should require that certain parameters be
monitored continuously while marine vessel loading or ballasting
operations are occurring and that records be kept of all measurements
needed to demonstrate compliance with the applicable standard including
all data collected in any periods of operation during which the
previously established parameter boundaries are exceeded.
2. Emission Limits for Ballasting Operations
Massachusetts' marine vessel rule applies to the loading of an
organic liquid and to ballasting operations. However, the emissions
limitations stated in Section 7.24(8)(c)(1) of the rule only apply to
``loading events.'' This term, as defined in 310 CMR 7.00, does not
include ballasting operations. Although Sections 7.24(8)(c)(2) and
7.24(8)(d) of Massachusetts' marine vessel rule do require control
equipment to be used during ballasting, these sections do not require
specific emission limitations to be met during ballasting operations.
EPA's national marine vessel rule does not apply to ballasting
operations. The absence of emission limitations for ballasting
operations in Massachusetts' rule, however, is inconsistent with the
information contained in Massachusetts' reasonable further progress
(RFP) plan regarding the reduction in VOC emissions that is expected to
result from the implementation of this rule. Specifically,
Massachusetts' 1990 base year inventory shows that uncontrolled marine
vessel transfer operations result in 3.2 tons of VOC per summer day
(tpsd), which includes 2.8 tpsd from ballasting and 0.4 tpsd from
loading operations. Massachusetts' marine vessel rule SIP submittal
states that ballasting emissions will be reduced by 2.1 tpsd. This
statement assumes that ballasting operations are subject to a 95
percent control efficiency requirement (i.e., 0.95 control efficiency x
0.8 rule effectiveness x 2.8 tpsd uncontrolled = 2.1 tpsd reduction).
Therefore, Massachusetts' marine vessel rule should require that
ballasting operations be subject to the emission limitations stated in
Section 7.24(8)(c)(1)(B) of the rule.
Massachusetts' regulation and EPA's evaluation are detailed in a
memorandum, dated April 23, 1996, entitled ``Technical Support
Document--Massachusetts--Marine Vessel Rule.'' Copies of that document
are available, upon request, from the EPA Regional Office listed in the
ADDRESSES section of this notice.
EPA is publishing this action without prior proposal and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective October 28, 1996, unless adverse or critical comments are
received by September 26, 1996.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective on October 28, 1996.
Final Action
EPA is conditionally approving 310 CMR 7.24(8) ``Marine Vessel
Transfer Operations'' and the associated 310 CMR 7.00 ``Definitions''
into the Massachusetts SIP.
Under Section 110(k)(4) of the Act, EPA may conditionally approve a
plan based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. On February 1, 1996, Massachusetts submitted a written
commitment to address the issues outlined above (i.e., the lack of
monitoring requirements and the lack of emission limits for ballasting
operations) within one year of the date of publication of EPA's
conditional approval. If the Commonwealth fails to do so, this approval
will become a disapproval on October 28, 1997. EPA will notify the
Commonwealth by letter that this action has occurred. At that time, the
conditionally approved submittal will no longer be a part of the
approved Massachusetts SIP. EPA subsequently will publish a notice in
the notice section of the Federal Register notifying the public that
the conditional approval automatically converted to a disapproval. If
the Commonwealth meets its commitment, within the applicable time
frame, the conditionally approved submission will remain a part of the
SIP until EPA takes final action approving or disapproving the new
submittal. If EPA disapproves the new submittal, the conditionally
approved submittal will also be disapproved at that time. If EPA
approves the new submittal, the newly submitted regulations will be
fully approved and will replace the conditionally approved regulations
in the SIP.
If the conditional approval is converted to a disapproval, such
action will trigger EPA's authority to impose sanctions under Section
110(m) of the CAA at the time EPA issues the final disapproval or on
the date the Commonwealth fails to meet its commitment. In the latter
case, EPA will notify the Commonwealth by letter that the conditional
approval has been converted to a disapproval and that EPA's sanctions
authority has been triggered. In addition, the final disapproval
triggers the federal implementation plan (FIP) requirement under
Section 110(c).
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Conditional approvals of SIP submittals under Section 110 and
subchapter I, Part D of the CAA do not create any new requirements, but
simply approve requirements that the State is already imposing.
Therefore, because the federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected.
[[Page 43976]]
Moreover, due to the nature of the federal-State relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of State action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S. Ct. 1976);
42 U.S.C. 7410 (a)(2).
If the conditional approval is converted to a disapproval under
Section 110(k), based on the Commonwealth's failure to meet the
commitment, it will not affect any existing State requirements
applicable to small entities. Federal disapproval of the State
submittal does not affect its State-enforceability. Moreover, EPA's
disapproval of the submittal does not impose a new federal requirement.
Therefore, EPA certifies that this disapproval action does not have a
significant impact on a substantial number of small entities because it
does not remove existing State requirements nor does it substitute a
new federal requirement.
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this State Implementation Plan revision, the
State and any affected local or tribal governments have elected to
adopt the program provided for under Sections 182(b) of the Clean Air
Act. These rules may bind State, local and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. To the extent that the rules being approved by this
action will impose no new requirements; such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from review under Executive Order
12866.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
the State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 28, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).)
Note: Incorporation by reference of the State Implementation
Plan for the Commonwealth of Massachusetts was approved by the
Director of the Federal Register on July 1, 1982.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone.
Dated: July 22, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart W--Massachusetts
2. Section 52.1119 is amended by adding paragraph (a)(2) to read as
follows:
Sec. 52.1119 Identification of plan-conditional approval.
* * * * * *
(a) * * *
(2) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on January 11,
1995 and March 29, 1995.
(i) Incorporation by reference.
(A) Letters from the Massachusetts Department of Environmental
Protection dated January 11, 1995 and March 29, 1995 submitting a
revision to the Massachusetts State Implementation Plan.
(B) 310 CMR 7.24(8) ``Marine Vessel Transfer Operations'' effective
in the Commonwealth of Massachusetts on January 27, 1995.
(C) Definitions of ``combustion device,'' ``leak,'' ``leaking
component,'' ``lightering or lightering operation,'' ``loading event,''
``marine tank vessel,'' ``marine terminal,'' ``marine vessel,''
``organic liquid,'' and ``recovery device'' in 310 CMR 7.00
``Definitions'' effective in the Commonwealth of Massachusetts on
January 27, 1995.
(ii) Additional materials.
(A) Letter from the Massachusetts Department of Environmental
Protection dated February 1, 1996 committing to address the outstanding
issues associated with 310 CMR 7.24(8) as identified by EPA in a letter
dated September 19, 1995.
(B) Nonregulatory portions of the submittal.
[FR Doc. 96-21692 Filed 8-26-96; 8:45 am]
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