[Federal Register Volume 59, Number 191 (Tuesday, October 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24421]
[[Page Unknown]]
[Federal Register: October 4, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-24-1-6557; A-1-FRL-5074-8]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts--Amendment to Massachusetts' SIP (for Ozone and for
Carbon Monoxide) for Transit Systems Improvements and High Occupancy
Vehicle Facilities in the Metropolitan Boston Air Pollution Control
District)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Massachusetts. This revision
establishes and requires the Commonwealth of Massachusetts' Executive
Office of Transportation and Construction to construct and operate
specified transit facilities and high occupancy vehicle (HOV) lanes
established therein. Implementation of the defined transportation
projects will help reduce the use of automobiles, provide for
additional transit facilities in the Metropolitan Boston Region, and
improve traffic operations on the region's roadways, resulting in
improved air quality. This action should have a beneficial effect on
air quality because it is intended to reduce vehicle miles traveled
(VMT) in the Boston Metropolitan Area. The emissions to be reduced
include hydrocarbons (ground-level ozone precursors) and carbon
monoxide (CO).
This action is being taken under sections 110 (a) and (l) of the
Clean Air Act.
EFFECTIVE DATE: This rule will become effective on November 3, 1994.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours, by
appointment at the Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region I, One Congress Street, 10th
floor, Boston, MA; Air and Radiation Docket and Information Center,
U.S. Environmental Protection Agency, 401 M Street SW., (LE-131),
Washington, DC 20460; and Division of Air Quality Control, Department
of Environmental Protection, One Winter Street, 7th Floor, Boston, MA
02108.
FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, (617) 565-3227.
SUPPLEMENTARY INFORMATION: On January 19, 1994 (59 FR 2795), EPA
published a notice of proposed rulemaking (NPR) for the Commonwealth of
Massachusetts. The NPR proposed approval of a revision to
Massachusetts' SIP for Transit Systems Improvements and HOV Facilities
in the Metropolitan Boston Air Pollution Control District. The formal
SIP revision was submitted by Massachusetts on December 9, 1991.
This new regulation commits the Massachusetts Executive Office of
Transportation and Construction (MA EOTC) to pursue implementation,
monitoring, and enforcement of transit system improvements and HOV
facilities listed in Table 1, that were identified as transportation
and air quality mitigation measures in a 1990 Final Supplemental
Environmental Impact Statement for the CA/THT project. EPA determined
five of the proposed transportation control measures (TCMs) were
necessary to help achieve an air quality benefit from the CA/THT. The
Massachusetts regulation amends 310 CMR 7.00 by adding two new
sections; 310 CMR 7.36--``Transit System Improvements,'' and 310 CMR
7.37--``High Occupancy Vehicle Lanes.''
Table 1
------------------------------------------------------------------------
Project type and assigned
completion date Project description
------------------------------------------------------------------------
HOV Project 12/31/91........ HOV Lane: I-93 Southbound HOV Lane, North
Of The Southbound Bank Of The Charles
River, Shall Be Extended Toward Route 128
To The Northernmost Point Appropriate. No
Addition Of New Lanes.
HOV Project 12/31/91........ HOV Lane: The Final Design Of The Charles
River Crossing On The Southbound Side Of
I-93 Extending Down To The Exit Ramp To
Nashua Street Shall Include A HOV Lane On
The Southbound Side Of I-93. HOV Lane
Shall Be Available With Opening Of CA/THT
Project.
Transit Project 12/31/92.... Lynn Central Square Station & Parking
Garage.
Transit Project 12/31/92.... North Station High Platform & High Tracks.
Transit Project 12/31/92.... Lynn Transit Station Bus Terminal.
HOV Project 05/31/92........ HOV Lane: Northbound & Southbound on I-93
Beginning At The Intersection Of I-93
With I-90 & Extending To A Point
Immediately North On The Intersection Of
I-93 & Route 3. [If The Threshold
Standards Are Violated For Three
Consecutive Months. Earlier
Implementation If EOTC Determines.
Transit Project 12/31/94.... South Station Bus Terminal.
Transit Project 12/31/94.... South Station Track Number 12.
Transit Project 12/31/94.... Ipswich Commuter Rail Line Extension To
Newburyport.
Transit Project 12/31/96.... Old Colony Commuter Rail Line Extension.
Transit Project 12/31/96.... Framingham Commuter Rail Link Extension To
Worcester.
Transit Project 12/31/96.... Park & Ride & Commuter Rail Parking Spaces
Outside Of The Boston Core [10,000].
Transit Project 12/31/97.... Green Line Arborway Restoration.
Transit Project 12/31/98.... Blue Line Platform Lengthening &
Modernization.
Transit Project 12/31/99.... Park & Ride & Commuter Rail Station
Parking Spaces Outside Of The Boston Core
In Addition To Those Completed by Dec.
31, 1996 [10,000].
Transit Project 12/31/01.... South Boston Piers Electric Bus Service.
Transit Project 12/31/11.... Green Line Extension To Ball Square/Tufts
University.
Transit Project 12/31/11.... Blue Line Connection From Bowdoin Station
To The Red Line At Charles Station.
------------------------------------------------------------------------
Other specific requirements of the Commonwealth's State
Implementation Plan (SIP) Amendment for Ozone and for Carbon Monoxide,
for Transit System Improvements and High Occupancy Vehicle Facilities,
and the rationale for EPA's proposed action, are explained in the NPR
and will not be restated here.
Three public comments were received on the NPR. On February 16,
1994, a private citizen from Michigan submitted comments regarding
Massachusetts' car and truck vehicle registrations, and the effect on
the Massachusetts Inspection and Maintenance (I/M) program. EPA has
found this comment not germane to approval of the Transit and HOV
Facilities rules as a SIP Amendment. On February 18, 1994, The
Conservation Law Foundation (CLF) submitted comments generally
supporting approval of the Transit System Improvement and HOV rules
into the SIP. Finally, on February 18, 1994, the Massachusetts
Department of Environmental Protection (MA DEP) submitted comments
requesting that EPA consider delaying final action on the HOV/Transit
SIP rules.
The region has responded fully to CLF and MA DEP comments in a
memorandum attached to the Technical Support Document (TSD) available
in the docket for this action. A brief summary of these comments and
EPA's responses appears below.
The Conservation Law Foundation generally supported approval of the
Transit System Improvement and HOV rules into the SIP, but also
requested clarification of several aspects of EPA's proposed approval.
In support of the transit system improvement rule, CLF noted that
several of the transit measures provided for in the rule are mitigation
measures responding to the potential air quality impacts of the Central
Artery/Third Harbor Tunnel. EPA agrees that completion of these
measures, including the ``Old Colony'' rail line, are important
transportation control measures that should help reduce VMT growth on
the Central Artery. What follows is EPA's response to CLF's particular
concerns.
1. Specific Requirements of These Rules Will Be Enforceable in a
Citizens Suit
CLF is concerned that by characterizing these rules as
``directionally sound,'' EPA is suggesting that they are not
enforceable by citizens. EPA intended no such conclusion. The proposal
expressed EPA's concern that the substitution provisions in these rules
allow MA DEP to authorize different projects to substitute for those
enumerated in the rules.\1\ EPA believes that there is no reliable way
to predict the reductions Massachusetts might achieve with these rules
since their requirements might change in ways that are difficult to
quantify in advance. Therefore, EPA is not prepared to give
Massachusetts emissions reduction credit in the SIP for projects until
they are substantially complete and a SIP revision requesting credit is
submitted.
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\1\The Transit System Improvement Rule section 7.36(4)(a)
provides that other ``transit improvement projects'' may substitute
for projects listed in section 7.36(2). Whereas the HOV rule allows
an ``alternative project'' to substitute in section 7.37(8)(a). In
theory, MA DEP could go so far as to substitute a non-transit
project for an HOV lane under the HOV rule, although it may be
difficult to make the demonstration that a non-transit project
achieves the equivalent mix of CO, NMHC, and NOX emissions
reductions as a transit project as required under section
7.36(8)(a)1.
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Withholding SIP credit for these projects, however, does not mean
the requirements of these rules are not enforceable by MA DEP, EPA, or
citizens under the Clean Air Act. Each rule contains the kind of
specific objective requirements and compliance schedules that courts
have required in a SIP as a basis for a citizen suit to enforce
transportation control measures (TCMs). See e.g. Wilder v. Thomas, 854
F.2d 605, 615-616 (2d. Cir. 1988). As CLF points out for example, the
transit rule identifies specific mass transit improvements to be
implemented by certain dates and the HOV rule establishes a series of
specific steps to establish and operate HOV lanes depending on traffic
conditions. 310 CMR 7.36(2) and 7.37(2)-(7).\2\ EPA's concerns relate
to the planning implications of a rule with specific requirements that
can be revised without case-by-case EPA approval. This concern does not
affect citizens' ability to enforce those specific requirements as they
may appear in these SIP rules at the time of the enforcement action.
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\2\EPA cites these provisions as examples of specific
enforceable requirements in these rules, not an exclusive or
exhaustive list of enforceable requirements.
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2. When Is a Project ``Substantially Complete''?
In response to the uncertainty about which projects will actually
be implemented under this rule, EPA proposed to grant emissions
reductions credits in the SIP for projects once they are substantially
complete. EPA invited comment on how to define the substantial
completion of a transit project, especially in the case of projects
that do not require significant construction. CLF commented that
projects should be credited under the SIP either (1) When funds have
been irrevocably committed to them and all government approvals are
obtained, or (2) when operation begins, whichever is earlier. CLF went
on to say that any actual emissions reductions should not begin to
accrue until operation has commenced. CLF believes this standard should
apply to both construction and non-construction projects.
EPA appreciates CLF's efforts to devise an approach that would
grant the Commonwealth SIP credit for funded projects as soon as
possible. EPA is concerned, however, that given the length of the
construction schedules involved with some transit projects and the
vagaries of the transportation funding process, it will be difficult to
determine what constitutes an irrevocable commitment of funds. EPA
believes that it will be easier to determine objectively when a
construction project is substantially complete. As for non-construction
projects, EPA believes the second element of CLF's test is an
appropriate clarification of the ``ready to implement'' concept EPA
proposed. Massachusetts can apply for SIP credit for non-construction
projects when operation begins.\3\
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\3\Note that the limitations EPA is putting on the SIP credit
for these rules is not based on any view that TCMs are not fully
creditable in a SIP demonstration pursuant to a binding SIP rule.
Rather, it is the substitution process in these rules that causes
EPA to require substantial completion of projects before giving SIP
credit. If these rules had no substitution process, thereby
committing to specific TCMs by specific dates, EPA could calculate
SIP credit for these measures now.
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3. Are Completion Deadlines Expeditious?
Finally, CLF asserts that Massachusetts must submit SIP revisions
committing the Commonwealth to firm completion deadlines for these
projects to obtain SIP credit as soon as possible. CLF reads Delaney v.
EPA, 898 F.2d 687 (9th Cir. 1990) as creating a presumption that
omitting any TCMs listed in section 108(f) of the Act delays attainment
in violation of the requirement that all nonattainment areas attain as
expeditiously as practicable.
EPA believes that these rules contain deadlines for action on
transit projects and HOV lanes. It is true that the Transit System
Improvement rule 310 CMR 7.36(3) provides for delays in the deadlines
listed in section 7.36(2) for up to three years, but it is also clear
that at the end of those three years, either the project must be
completed or there must be a proposed substitute. While it might be
more desirable to have a fixed completion deadline without the ``escape
valve'' for project delays in section 7.36(3), EPA cannot conclude that
the possible three year delay authorized by this section causes these
rules to violate any obligation to implement TCMs as expeditiously as
practicable. Massachusetts has assembled an impressive roster of
transportation measures, many of which must be implemented by the
attainment year of 1999, even allowing for the possible three year
delay.\4\
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\4\For example, section 7.36(2)(c)1. requires the Old Colony
Commuter Rail Line Extension, one of the most significant
transportation measures in 7.36, to be ``complete and open to full
public use'' by December 31, 1996. Even the worst case scenario of a
full three year delay would have the Old Colony in full use only 46
days after the attainment deadline for the Commonwealth, November
15, 1999.
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The Massachusetts DEP's comment advised EPA that the Commonwealth
of Massachusetts may be developing changes to the transit improvement
and HOV rules that could be submitted to EPA in calendar 1994. DEP
suggested that it might be prudent for EPA to delay final action on
these rules until EPA receives MA DEP's revisions. MA DEP did not,
however, ask to withdraw the rules from EPA's consideration as a SIP
revision. While EPA appreciates DEP's desire to avoid iterative SIP
actions on these rules, EPA has an obligation to process SIP revisions
consistent with section 110(k) of the Act to the extent practicable,
including the requirement to act on the SIP submission within a year of
deeming it complete. Furthermore, MA DEP has not clearly withdrawn this
SIP action. At most their comment appears to be a suggestion to EPA
about how to avoid repetitive rulemakings. EPA cannot suspend its
statutory obligation to act on SIP submittals without a clear
expression from a state that it is withdrawing the package. Suspending
final action on these rules in anticipation of rule changes that EPA
has not yet seen in draft would only aggravate any delays in processing
these rules as a SIP revision to accommodate what is now a speculative
rule change.
Final Action
EPA is approving the Transit Systems Improvements and High
Occupancy Vehicle Facilities in the Metropolitan Boston Air Pollution
Control District as a revision to the Massachusetts SIP.
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.
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. A future notice will inform the general public of
these tables. On January 6, 1989, the Office of Management and Budget
(OMB) waived Table 2 and Table 3 revisions (54 FR 2222) from the
requirements of Section 3 of Executive Order 12291 for a period of two
years. The U.S. EPA has submitted a request for a permanent waiver for
Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the
temporary waiver until such time as it rules on EPA's request. This
request continues in effect under Executive Order 12866 which
superseded Executive Order 12291 on September 30, 1993.
SIP approvals 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. 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).
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 December 5, 1994. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Note: Incorporation by reference of the State Implementation
Plan for the State of Massachusetts was approved by the Director of
the Federal Register on July 1, 1982.
Dated: September 7, 1994.
Patricia Meaney,
Acting Deputy 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 52.1120 is amended by adding paragraph (c)(101) to read
as follows:
Sec. 52.1120 Identification of plan.
* * * * *
(c) * * *
(101) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on December 9,
1991.
(i) Incorporation by reference.
(A) Letter from the Massachusetts Department of Environmental
Protection dated December 9, 1991 submitting a revision to the
Massachusetts State Implementation Plan.
(B) Massachusetts Regulation 310 CMR 7.36, entitled ``Transit
System Improvements'', Massachusetts Regulation 310 CMR 7.37, entitled
``High Occupancy Vehicle Facilities'', and amendments to 310 CMR 7.00,
entitled ``Definitions,'' effective in the Commonwealth of
Massachusetts on December 6, 1991.
For the State of Massachusetts:
Sec. 52.1167 [Amended]
3. In Sec. 52.1167, Table 52.1167 is amended by adding new entries
to existing state citations for amendments to 310 CMR 7.00, entitled
``Definitions''; and by adding new state citations for Massachusetts
Regulation 310 CMR 7.36, entitled ``Transit System Improvements'' and
Massachusetts Regulation 310 CMR 7.37, entitled ``High Occupancy
Vehicle Facilities'' to read as follows:
Table 52.1167.--EPA-Approved Rules and Regulations
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Date
State citation Title/subject submitted Date approved by EPA Federal Register 52.1120(c) Comments/unapproved
by State citation sections
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* * * * * * *
310 CMR 7.00........... Definitions............ 12/9/91 October 4, 1994........ [Insert FR citation 101 Definitions of baseline
from published date]. roadway conditions, high
occupancy vehicle, high
occupancy vehicle lane,
peak hour, performance
standard, and roadway
threshold standard.
* * * * * * *
310 CMR 7.36........... Transit system 12/9/91 October 4, 1994........ [Insert FR citation 101 Transit system improvement
improvements from published date]. regulation for Boston
regulations. metropolitan area.
* * * * * * *
310 CMR 7.37........... High occupancy vehicle 12/9/91 October 4, 1994........ [Insert FR citation 101 High occupancy vehicle
lanes regulation. from published date]. lanes regulation for
Boston metropolitan area.
* * * * * * *
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[FR Doc. 94-24421 Filed 10-3-94; 8:45 am]
BILLING CODE 6560-50-P
