00-8830. Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Revised VOC Rules

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving two State Implementation Plan (SIP) revisions submitted by the Commonwealth of Massachusetts. These SIP submittals include revisions to regulations for controlling volatile organic compound (VOC) emissions, including emissions from marine vessel loading and consumer products. The intended effect of this action is to approve the revised regulations into the Massachusetts SIP. This action is being taken in accordance with the Clean Air Act (CAA).

DATES:

This direct final rule is effective on June 12, 2000 without further notice, unless EPA receives adverse comment by May 11, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Comments may be mailed to David Conroy, Unit Manager, Air Quality Planning Unit (mail code CAQ), U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the documents relevant to this action are available for public inspection during normal business hours, by appointment at the Office Ecosystem Protection, U.S. Environmental Protection Agency, Region I, One Congress Street, 11th floor, Boston, MA and the Division of Air Quality Control, Department of Environmental Protection, One Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT:

Anne E. Arnold, [phone].

SUPPLEMENTARY INFORMATION:

This section is organized as follows:

What action is EPA taking?

What are the CAA requirements for marine vessels?

How has Massachusetts addressed these CAA requirements?

What were the issues outlined in EPA's conditional approval of Massachusetts' marine vessel rule?

How has Massachusetts addressed these issues?

What revisions did Massachusetts make to its VOC definition?

How does Massachusetts' VOC definition compare to EPA's VOC definition?

What revisions did Massachusetts make to its consumer products rule?

Why is EPA approving Massachusetts' SIP submittals?

What is the process for EPA's approval of these SIP revisions?

What Action Is EPA Taking?

EPA is approving Massachusetts' revised 310 CMR 7.24(8) “Marine Volatile Organic Liquid Transfer” and incorporating this rule into the Massachusetts SIP. EPA is also approving definitions in 310 CMR 7.00 which are associated with the marine vessel rule. EPA is also approving Massachusetts' revised 310 CMR 7.00 definition of “volatile organic compound” and an amendment to Massachusetts’ 310 CMR 7.25 “Best Available Controls for Consumer and Commercial Products” and incorporating these regulations into the Massachusetts SIP.

What Are the CAA Requirements for Marine Vessels?

Section 183(f) of the CAA requires EPA to promulgate reasonably available control technology (RACT) standards to reduce VOC emissions from the loading and unloading of 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 48388), EPA promulgated both RACT and MACT standards for marine tank vessels. Section 183(f)(4) of the CAA states that after EPA promulgates such standards, no State may adopt, or attempt to enforce, less stringent standards for tank vessels subject to EPA's regulation.

In addition, section 182(b)(1) of the amended CAA requires States with ozone nonattainment areas classified as moderate and above to develop reasonable further progress plans to reduce VOC emissions by 15 percent within these areas by 1996 when compared to 1990 baseline VOC emission levels. Also, section 182(b)(2)(C) of the CAA requires that RACT be implemented for all major VOC sources by May 31, 1995. Pursuant to the Clean Air Act Amendments of 1990, the Commonwealth of Massachusetts was designated as serious nonattainment for ozone.^[1]

Therefore, in Massachusetts, sources with the potential to emit greater than 50 tpy are considered major VOC sources. Furthermore, Massachusetts is located in the Northeast Ozone Transport Region (OTR). The entire Commonwealth is, therefore, subject to section 184(b) of the amended CAA. Section 184(b) requires that RACT be implemented for all major VOC sources (defined as 50 tons per year for sources in the OTR).

How Has Massachusetts Addressed These CAA Requirements?

In response to the above CAA requirements, Massachusetts adopted 310 CMR 7.24(8) to control VOC emissions from marine vessel transfer operations. On August 27, 1996 (61 FR 43973), EPA issued a conditional approval of Massachusetts' 310 CMR 7.24(8) marine vessel rule. EPA's conditional approval cited two outstanding issues associated with Massachusetts' regulation.

What Were the Issues Outlined in EPA's Conditional Approval of Massachusetts' Marine Vessel Rule?

EPA's conditional approval of Massachusetts' marine vessel rule cited the following two outstanding issues associated with this regulation: (1) a lack of monitoring requirements; and (2) emission limits for ballasting operations.

(1) Lack of Monitoring Requirements

Massachusetts' marine vessel rule requires that, upon initial startup of the air pollution control equipment, the owner or operator of a marine terminal conduct an initial performance test in order to demonstrate compliance. However, the initially adopted version of the rule did not require the facility to demonstrate continued compliance as is generally required of VOC sources. Specifically, as noted in EPA's conditional approval, 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 any periods of operation during which the previously established parameter boundaries are exceeded.^[2]

(2) Emission Limits for Ballasting Operations

The marine vessel rule that Massachusetts initially adopted applies to the loading of an organic liquid and to ballasting operations. However, the emissions limitations of the rule do not apply to ballasting operations. EPA's conditional approval noted that, although EPA's national marine vessel rule does not apply to ballasting operations, the absence of emission limitations for ballasting operations in Massachusetts' rule is inconsistent with the VOC emission reductions claimed in Massachusetts' reasonable further progress (RFP) plan for the Boston-Worcester-Lawrence ozone nonattainment area. 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' initial 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 × 0.8 rule effectiveness × 2.8 tpsd uncontrolled = 2.1 tpsd reduction). Therefore, EPA's conditional approval stated that 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.

How Has Massachusetts Addressed These Issues?

On October 17, 1997, Massachusetts submitted a SIP revision containing a revised version of its marine vessel rule 310 CMR 7.24(8). Massachusetts' revised marine vessel rule adequately addresses the two issues outlined in EPA's conditional approval.

(1) Lack of Monitoring Requirements

In Massachusetts' revised rule, a new provision has been added which requires emission control equipment to be monitored in accordance with the procedures specified in EPA's national marine vessel rule, specifically sections 63.564(e) through (j) of 40 CFR part 63, subpart Y. Massachusetts has, therefore, adequately addressed the issue of monitoring requirements.

The revised rule also includes a reference to the vapor-tightness pressure test procedures in EPA's national rule, specifically section 63.565(c)(1) of 40 CFR part 63, subpart Y. Previously, Massachusetts' rule required that these tests be “conducted in accordance with procedures specified by the DEP and EPA.”

(2) Emission Limits for Ballasting Operations

In Massachusetts' revised rule, the requirement for marine terminal owners to install and operate equipment to control VOC emissions which result solely from ballasting operations has been rescinded. However, the revised rule states that, if a system is in place to control emissions from gasoline loading operations, then that system must also be used to control ballasting emissions. In such a case, ballasting emissions are subject to the emission limits of the rule.

Massachusetts' revision is acceptable since ballasting emissions in Massachusetts are now known to be less significant than originally estimated. As previously stated, Massachusetts had initially calculated uncontrolled ballasting emissions to be 2.8 tpsd. However, as reported in Massachusetts public hearing background document, industry data has subsequently shown that 1994 uncontrolled ballasting emissions were only 0.4 tpsd. Massachusetts plans to adjust future emissions inventory estimates of ballasting emissions to reflect this lower level of emissions.

In addition, as previously mentioned, EPA's national marine vessel rule does not apply to ballasting operations. In promulgating this rule, EPA noted that the U.S. Coast Guard has regulations which address ballasting and that “the relatively low amount of actual emissions associated with ballasting does not justify dual regulation of ballasting.”

What Revisions Did Massachusetts Make to Its VOC Definition?

On July 30, 1996, Massachusetts submitted a SIP revision containing revisions to its 310 CMR 7.00 definition of the term “volatile organic compound.” In the revised definition, acetone has been added to the list of compounds that are exempt from the definition of VOC because of their negligible photochemical reactivity. The revised definition also clarifies that the previously adopted exemption for volatile methyl siloxanes is specifically for “cyclic, branched, or linear, completely methylated siloxanes.” EPA promulgated an exemption for acetone in its definition of VOC on June 16, 1995 (60 FR 31633) and an exemption for cyclic, branched, or linear, completely methylated siloxanes on October 5, 1994 (59 FR 50693).

How Does Massachusetts' VOC Definition Compare to EPA's VOC Definition?

Massachusetts' revised VOC definition is consistent with EPA's VOC definition codified at 40 CFR 51.100(s), with the exception of more recent revisions to EPA's definition which were promulgated subsequent to Massachusetts' July 30, 1996 SIP submittal. EPA promulgated these additional revisions on October 8, 1996 (61 FR 52848), August 25, 1997 (62 FR 44900), and April 9, 1998 (63 FR 17331). These revisions add more compounds to the list of those exempted from the definition of VOC because of their negligible photochemical reactivity. Massachusetts' VOC definition also does not include an exemption for perchloroethylene which was promulgated by EPA on February 7, 1996 (61 FR 4588). As stated in EPA's exemption rulemakings, States are not obligated to exclude from control as a VOC those compounds that EPA has found to be negligibly reactive. However, EPA will no longer enforce measures controlling the exempted compounds as part of a federally-approved SIP. EPA's exemption rulemakings also state that a State may not take credit for controlling the EPA-exempted compounds in its ozone control strategy. Nor may reductions of EPA-exempted compounds be used as emission reduction credits or offsets to be traded against the emission of non-exempt compounds. Massachusetts is not taking credit for reductions of EPA-exempted compounds in its rate of progress plans and does not allow trading of exempt for non-exempt emissions.

What Revisions Did Massachusetts Make to Its Consumer Products Rule?

On July 30, 1996, Massachusetts submitted revisions to its 310 CMR 7.25 “Best Available Controls for Consumer and Commercial Products.” In this rule, minor clarifications were made to the definition of the term “waterproofing sealer.” The revised definition is consistent with EPA's national rule codified at 40 CFR part 59, subpart D “National VOC Emission Standards for Architectural Coatings.”

Why Is EPA Approving Massachusetts' SIP Submittals?

EPA is approving Massachusetts' revised marine vessel rule because the Commonwealth has successfully addressed the issues outlined in EPA's earlier conditional approval. EPA is also approving Massachusetts revised VOC definition and clarifications to its consumer product rule because these revisions are consistent with current EPA guidance. Further information on Massachusetts' October 17, 1997 and July 30, 1996 SIP submittals and EPA's evaluation of these submittals can be found in a memorandum dated September 7, 1999 entitled “Technical Support Document—Massachusetts—Revised VOC Rules.” Copies of this document are available, upon request, from the EPA Regional Office listed in the ADDRESSES section.

What Is the Process for EPA's Approval of These SIP Revisions?

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This action will be effective June 12, 2000 without further notice unless the Agency receives adverse comments by May 11, 2000.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 12, 2000 and no further action will be taken on the proposed rule.

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.

Final Action

EPA is approving Massachusetts' revised 310 CMR 7.24(8) “Marine Volatile Organic Liquid Transfer” and incorporating this rule into the Massachusetts SIP. EPA is also approving the following definitions in 310 CMR 7.00 which are associated with the marine vessel rule: “combustion device,” “leak,” “leaking component,” “lightering or lightering operation,” “loading event,” “marine tank vessel,” “marine terminal,” “marine vessel,” “organic liquid,” and “recovery device.” EPA is also approving Massachusetts’ revised 310 CMR 7.00 definition of “volatile organic compound” and an amendment to Massachusetts’ 310 CMR 7.25 “Best Available Controls for Consumer and Commercial Products” and incorporating these regulations into the Massachusetts SIP.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 12, 2000. 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).) Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Incorporation by reference
• Ozone
• Reporting and recordkeeping

Dated: March 24, 2000.

Mindy S. Lubber,

Regional Administrator, EPA New England.

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 et seq.

Subpart W—Massachusetts

§ 52.1119

[Amended]

2. Remove § 52.1119(a)(2).

3. Section 52.1120 is amended by adding paragraphs (c)(115) and (c)(121) to read as follows:

§ 52.1120

Identification of plan

* * * * *

(c) * * *

(115) Revisions to the State Implementation Plan submitted by the Massachusetts Department of Environmental Protection on October 17, 1997 and July 30, 1996.

(i) Incorporation by reference.

(A) 310 CMR 7.24(8) “Marine Volatile Organic Liquid Transfer” effective in the Commonwealth of Massachusetts on October 5, 1997.

(B) Definition of “volatile organic compound” in 310 CMR 7.00 “Definitions” effective in the Commonwealth of Massachusetts on June 28, 1996.

(C) Definition of “waterproofing sealer” in 310 CMR 7.25 “Best Available Controls for Consumer and Commercial Products” effective in the Commonwealth of Massachusetts on June 28, 1996.

(ii) Additional materials

(A) Nonregulatory portions of the submittal.

* * * * *

(121) 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) 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) Nonregulatory portions of the submittal.

4. In § 52.1167, Table 52.1167 is amended by adding new entries to existing state citations for 310 CMR 7.00 and 310 CMR 7.25; and by adding new state citation 310 CMR 7.24(8).

§ 52.1167

EPA-approved Massachusetts State regulation.

* * * * *

Table 52.1167.—EPA-Approved Massachusetts Regulations

State citation	Title/subject	Date submitted by State	Date approved by EPA	Federal Register citation	52.1120(c)	Comments/unapproved sections
*         *         *         *         *         *         *
310 CMR 7.00	Definitions	7/30/96	4/11/00	[Insert FR citation from published date]	115	Definition of “volatile organic compound” revised.
*         *         *         *         *         *         *
310 CMR 7.00	Definitions	1/11/95 3/29/95	4/11/00	[Insert FR citation from published date]	121	Definitions associated with marine vessel rule.
*         *         *         *         *         *         *
310 CMR 7.24(8)	Marine Volatile Organic Liquid Transfer	10/17/97	4/11/00	[Insert FR citation from published date]	115
*         *         *         *         *         *         *
310 CMR 7.25	Best Available Controls for Consumer and Commercial Products	7/30/96	4/11/00	[Insert FR citation from published date]	115	Definition of “waterproofing sealer” revised.
*         *         *         *         *         *         *

Footnotes

1.  See 56 FR 56694 (November 6, 1991). On June 9, 1999, EPA revoked the one-hour ozone standard for eastern Massachusetts. See 64 FR 30911 (June 9, 1999). EPA has proposed to reinstate that standard. See 64 FR 57424 (October 25, 1999).

2.  See the monitoring requirements of EPA's national marine vessel rule (especially sections 63.564 (e),(g), and (h)) and/or the monitoring requirements Massachusetts has imposed on other types of VOC sources (e.g., 310 CMR 7.18(2)(e)).