00-15909. Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; VOC Regulation for Large Commercial Bakeries

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. This revision establishes and requires large commercial bakeries to meet VOC Reasonably Available Control Technology (RACT) requirements. The intended effect of this action is to approve a revision to Massachusetts SIP which reduces VOC emissions from bakeries. This action is being taken in accordance with the Clean Air Act.

DATES:

This direct final rule is effective on September 5, 2000 without further notice, unless EPA receives adverse comment by August 4, 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, Manager, Air Quality Planning Unit, Office of Ecosystems 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 Ecosystems 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:

Jeanne Cosgrove, [phone].

SUPPLEMENTARY INFORMATION:

The Clean Air Act (CAA) establishes requirements for State Implementation Plans for areas that have not attained the national ambient air quality standards for ozone. Section 182(b)(2) of the CAA expands the applicability of RACT to sources of VOC equal to or greater than 50 tons per year. To help the states identify VOC control options, the CAA required EPA to publish alternative control technology (ACT) documents for a variety of VOC sources. EPA published an ACT document for Bakery Oven Emissions (EPA 453/R-92-017) in December, 1992. Massachusetts has identified several large commercial bakeries that are greater than 50 ton per year sources and as such are subject to RACT. Massachusetts adopted 310 CMR 7.18(29), Bakeries to reduce VOC emissions from bakeries.

On March 29, 1995, the Commonwealth of Massachusetts submitted a formal revision to its SIP. The SIP revision amends 310 CMR 7.00 by adding Section 310 CMR 7.18(29), Bakeries.

I. Summary of SIP Revision

The adopted air pollution control regulation, 310 CMR 7.18(29) Bakeries, establishes RACT for bakery facilities. The rule applies to any person who owns, leases, operates or controls any bakery which has the potential to emit, before the application of air pollution control equipment, equal to or greater than 50 tons per year of VOC. The rule establishes as RACT that affected bakeries reduce VOC emissions from baking ovens by 81% by weight. The 81% overall reduction requirement is based on a minimum capture efficiency of 90% combined with a minimum destruction efficiency of 90%. According to the Massachusetts Department of Environmental Protection, affected bakeries in the Commonwealth will be installing catalytic oxidation to achieve RACT level VOC reductions. Massachusetts' rule contains the following additional provisions:

1. Exemption for small bakeries: This section exempts bakeries that can demonstrate that, since January 1, 1990, the bakery has not emitted, before the application of air pollution control equipment, greater than or equal to 50 tons per year of VOC. Small bakeries must obtain a permit restriction which restricts potential emissions to below 50 tons per year;

2. Exemptions for small ovens: This section exempts individual baking ovens (at an applicable facility) which have not emitted since January 1, 1990, before application of air pollution control equipment, greater than 25 tons of VOC in any calendar year from the RACT requirement and plan submittal requirements. (small ovens must still comply with the recordkeeping and testing requirements);

3. Plan submittal requirements: This section requires bakeries to submit an emission control plan to the Massachusetts DEP for approval (note that the emission limit requirement in 310 CMR 7.18(29)(e) is directly enforceable under the SIP whether or not a bakery has submitted a plan.);

4. Recordkeeping requirements: This section requires bakeries to maintain records necessary to demonstrate compliance for at least five years, including: monthly records to determine emissions from each oven, and hourly (or continuous ) records of control equipment operating parameters such as temperature, pressure drop, or other parameters to assure continuous compliance; and

5. Testing Requirements: This section requires bakeries to perform tests to demonstrate compliance upon request of the Massachusetts DEP.

Facilities are required to comply with RACT by May 31, 1995.

EPA's evaluation is detailed in a memorandum, entitled “Technical Support Document for Massachusetts Air Pollution Control Regulation, 310 CMR 7.18(29), Bakeries.” EPA considers the Massachusetts bakery regulation to represent a reasonable level of control for all affected facilities. In approvals granted by Massachusetts DEP of emission control plans submitted by individual bakeries, Massachusetts DEP evaluates the feasibility of higher reduction rates (e.g. 95% minimum oxidizer destruction efficiency) and imposes those if determined to be feasible.

II. Final Action

EPA is approving Section 310 CMR 7.18(29), Bakeries. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, the EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective September 5, 2000, unless by August 4, 2000, relevant adverse comments are received.

If the EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will 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 September 5, 2000.

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.

III. 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 September 5, 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).) EPA encourages interested parties to comment on the proposed rule rather than file a petition for review in the Court of Appeals.

List of Subjects in 40 CFR Part 52

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

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: May 22, 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. 7401-7671q

Subpart W—Massachusetts

2. Section 52.1120 is amended by adding paragraph (c)(110) to read as follows:

§ 52.1120

Identification of plan.

* * * * *

(c) * * *

(110) Revisions to the State Implementation Plan submitted by the Massachusetts Department of Environmental Protection on March 29, 1995.

(i) Incorporation by reference.

(A) Letter from the Massachusetts Department of Environmental Protection dated March 29, 1995 submitting a revision to the Massachusetts State Implementation Plan.

(B) The following portions of the Rules Governing the Control of Air Pollution for the Commonwealth of Massachusetts effective on January 27, 1995: 310 Code of Massachusetts Regulations Section 7.18(29), Bakeries.

3. In § 52.1167 Table 52.1167 is amended by adding the following new state citation: 310 CMR 7.18(29), Bakeries.

§ 52.1167

EPA-approved Massachusetts State regulations.

Table 52.1167.—EPA-Approved Rules and Regulations.

State citation	Title/subject	Date submitted by State	Date approved by EPA	Federal Register citation	52.1120(c)	Comments/unapproved sections
*          *          *          *          *          *          *
310 CMR 7.18(29)	Bakeries	03/29/95	July 5, 2000	[Insert FR citation from published date]	110	Reasonably Available Control Technology Requirement (RACT) for bakeries.
*          *          *          *          *          *          *