Page
1
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
ATTACHMENT
A
Comments
of
the
Commonwealth
of
Massachusetts
on
EPA's
Proposed
Rulemaking
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
(
68
FR
32802­
32870,
June
2,
2003)

General
Comments
Failure
to
address
transport.
Massachusetts'
concerns
with
the
proposal
as
it
applies
to
the
issue
of
transport
are
threefold:
 
EPA
has
not
demonstrated
that
existing
and
anticipated
control
programs
in
upwind
states
will
solve
the
transport
problem
for
northeastern
states
despite
EPA's
assertion
that
interstate
transport
has
already
been
addressed.
 
EPA
should
create
a
framework
for
addressing
ozone
transport
issues
over
the
long
term.
Public
health
and
economic
viability
must
be
addressed
in
a
fair
and
equitable
manner.
 
The
proposal
provides
so
much
flexibility
to
non­
attainment
areas
that
many
areas
upwind
of
Massachusetts
will
be
a
source
of
continuing
transported
pollution
for
years
to
come.

In
support
of
its
position
that
transport
has
been
addressed
`
upfront,'
EPA
asserts
that
the
NOx
SIP
Call
and
the
Section
126
Rules
were
developed
based
on
the
level
of
reductions
needed
to
address
transport
under
both
the
1­
hour
and
8­
hour
standards.
However,
the
NOx
SIP
Call
was
based
largely
on
the
work
of
the
Ozone
Transport
Assessment
Group
(
OTAG),
which
was
not
designed
to
address
8­
hour
issues.
With
respect
to
the
Section
126
petitions
filed
by
Massachusetts
and
other
states,
EPA
deferred
making
findings
on
those
petitions
with
respect
to
the
8­
hour
standard.

EPA
has
not
cited
any
technical
analysis
to
support
its
position
that
the
NOx
SIP
and
126
rules
will
solve
the
problem
of
transported
ozone
"
upfront."
If
such
an
analysis
exists,
we
request
that
EPA
make
it
available
to
the
states
so
that
we
may
fairly
assess
EPA's
assertions
that
the
transport
problem
has
been
solved.
With
respect
to
the
EPA's
discussion
of
the
benefits
of
proposed
Clear
Skies
legislation,
EPA's
own
analysis
of
the
proposed
Clear
Skies
legislation
shows
that
Massachusetts
would
experience
little,
if
any,
improvement
in
background
ozone
concentrations
under
this
legislation.

EPA's
assertion
that
national
programs
already
adopted
will
address
the
transport
problem
overlooks
the
need
to
establish
a
framework
for
addressing
ongoing,
recurring
transport.
If
subsequent
to
the
full
implementation
of
these
programs,
northeastern
states
are
unable
to
attain
the
standard
due
to
overwhelming
transport,
no
mechanism
will
have
been
established
to
address
Page
2
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
this
situation.
As
under
the
1­
hour
standard,
downwind
states
will
have
no
recourse,
other
than
section
126
petitions
and
that
remedy
may
be
lost
if
the
Clear
Skies
Act
is
enacted.

EPA
expresses
an
intent
to
investigate
the
extent,
severity
and
sources
of
interstate
ozone
transport
that
will
exist
after
the
NOx
SIP
Call
and
the
Section
126
Rule
implementation
in
2004.
The
results
of
any
such
investigation
are
likely
to
come
too
late
for
downwind
areas
with
an
8­
hour
attainment
date
of
2010
or
earlier.
These
areas
will
be
required
to
submit
SIPs
with
local
control
measures
long
before
EPA
is
likely
to
enact
requirements
arising
out
of
an
investigation
that
will
not
begin
until
2004
or
later.

Massachusetts'
overall
concerns
about
transport
are
compounded
by
lack
of
performance
standards,
which
significantly
diminishes
the
likelihood
that
the
standard
will
be
attained
expeditiously.
A
likely
consequence
of
the
flexibility
that
EPA
proposes
to
extend
to
a
significant
number
of
non­
attainment
areas,
many
of
them
upwind
of
Massachusetts,
is
that
these
areas
will
continue
to
be
a
source
of
transported
pollutants
for
years
to
come
and
well
beyond
the
timeframe
within
which
Massachusetts
will
likely
be
required
to
come
into
attainment
of
the
standard.

EPA
expresses
its
willingness
to
consider
input
from
states
as
to
how
to
deal
with
ozone
transport
effectively
and
equitably.
The
Ozone
Transport
Commission
provided
extensive
input
to
EPA
on
this
issue
in
2002.
We
refer
EPA
to
the
OTC's
April
2002
"
Principles
and
Proposal
for
Implementing
the
Eight­
Hour
Standard,"
which
is
being
submitted
to
the
docket
as
an
attachment
to
comments
being
submitted
by
NESCAUM.
In
that
April
2002
document,
the
OTC
states
urged
EPA
to
consider
contribution
to
downwind
area
non­
attainment
when
designating
8­
hour
non­
attainment
areas.
Massachusetts
again
urges
EPA
to
utilize
this
approach
in
order
to
deal
with
transport
"
up
front,"
that
is
before
8­
hour
attainment
plans
are
submitted.

Form
of
Proposal.
EPA's
proposal
is
a
series
of
options
without
any
proposed
regulatory
language.
We
believe
that
an
opportunity
to
review
and
comment
on
proposed
regulatory
language
is
of
critical
importance
to
all
interested
parties.
The
current
proposal
is
difficult
to
comprehend
and
comment
upon,
in
part
because
of
the
numerous
options
and
possible
combinations
of
options
that
are
presented.
The
failure
to
propose
regulatory
language
makes
the
proposal
even
more
difficult
to
assess
as
the
regulatory
implications
of
the
final
rule
will,
in
no
small
part,
turn
on
the
exact
language
adopted.
EPA
has
represented
that
it
will
issue
regulatory
text
for
comment.
We
strongly
encourage
and
respectfully
request
that
EPA
issue
draft
regulatory
text
for
public
comment
as
a
notice
of
proposed
rulemaking
and
provide
adequate
time
for
review.

Specific
Comments
on
Proposal
Options
1.
Classifications.
Massachusetts
supports
Option
1,
which
would
classify
all
non­
attainment
areas
under
subpart
2
of
the
Clean
Air
Act,
rather
than
Option
2,
which
would
allow
more
than
Page
3
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
one­
half
of
the
8­
hour
non­
attainment
areas
to
be
treated
under
subpart
1.
Consistent
with
Option
1,
classifications
should
be
based
on
8­
hour
values,
not
1­
hour
values.
EPA's
preferred
Option
2
raises
the
transport
issues
noted
above.
Areas
subject
only
to
subpart
1
requirements
are
less
likely
to
attain
the
standard
expeditiously.
As
many
of
those
areas
are
upwind
of
Massachusetts,
their
classification
under
subpart
1
will
have
an
adverse
impact
on
Massachusetts'
ability
to
attain
the
standard.
This
classification
scheme
would
create
an
inequitable
situation
for
states
like
Massachusetts
that
will
fall
under
subpart
2
but
will
continue
to
receive
pollution
from
subpart
1
areas
subject
to
less
stringent
requirements.

2.
Early
Attainment
Incentive
Feature.
Under
this
feature,
an
area
classified
under
subpart
2
would
receive
a
classification
one
level
lower
than
its
design
value
would
require
under
the
Clean
Air
Act
if
it
demonstrates
through
modeling
that
it
can
attain
the
standard
by
a
date
consistent
with
that
required
for
the
lower
classification.
Massachusetts
believes
that
this
is
an
inappropriate
use
of
modeling.
Modeling
is
an
imprecise
tool;
it
is
proposed
here
in
lieu
of
a
planning
process
and
in
lieu
of
enforceable
SIP
commitments
to
adopt
measures
that
would
result
in
attainment
by
the
prescribed
date.
If
EPA
includes
this
Early
Incentive
Feature
based
on
modeled
attainment
in
the
final
rule,
local
attainment
demonstrations
rather
than
regional­
scale
modeling
should
be
required.

3.
Reasonably
Available
Control
Technology
(
RACT)

For
areas
covered
under
subpart
2,
EPA
is
proposing
RACT
requirements
as
currently
defined
for
subpart
2
areas.
Massachusetts
supports
this
proposal.

For
areas
covered
under
subpart
1,
EPA
is
proposing
two
alternatives.
The
first
option
is
to
treat
subpart
1
areas
similarly
to
subpart
2
areas
(
different
RACT
requirements
based
on
the
degree
of
the
ozone
problem).
Under
the
second
option,
if
the
area
is
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP,
then
RACT
will
be
met,
and
additional
measures
would
not
be
required
as
being
reasonably
available.
Massachusetts
prefers
the
first
option,
which
simplifies
the
rule
by
minimizing
the
inequities
between
subpart
1
and
subpart
2
areas.

Massachusetts
disagrees
with
EPA's
approach
for
NOx
RACT
determinations
in
areas
affected
by
the
NOx
SIP
Call.
For
these
areas
EPA
states:
"
all
States
submitting
SIP
revisions
to
meet
the
NOx
SIP
Call
have
elected
to
require
all
large
boilers
and
turbines
to
comply
with
an
emissions
cap
and
trade
program
consistent
with
EPA's
model
cap
and
trade
rule.
As
a
result,
all
these
sources
are
already
subject
to
stringent
control
requirements."
While
it
is
accurate
that
the
SIP
Call
cap
is
based
upon
an
equivalent
emission
rate
for
all
facilities
that
in
the
aggregate
would
be
more
stringent
than
that
required
if
all
facilities
were
to
only
comply
with
RACT,
by
design
under
"
Cap
and
Trade"
systems,
individual
facilities
are
not
required
to
make
any
reductions
at
all.
Instead
any
facility
may
opt
to
purchase
and
apply
allowances
to
achieve
compliance.
Page
4
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
Massachusetts
believes
that
requiring
RACT
in
addition
to
the
requirements
of
the
NOx
SIP
Call
would
effectively
create
a
floor,
or
minimum
control
requirement,
for
all
facilities
while
still
providing
flexibility
and
incentives
to
those
facilities
where
it
makes
economic
sense
to
use
additional
controls.
NOx
controls
to
RACT­
required
levels
are
readily
available
and
economically
feasible.
In
addition,
the
NOx
SIP
Call
requirements
are
seasonal,
where
RACT
requirements
are
year
round.
Although
the
proposed
rule
concerns
ozone
attainment,
EPA
should
also
consider
non­
ozone
related
nitrogen
issues,
including
fine
particles,
visibility,
nitrification
and
acidification
of
watersheds
and
eutrophication
of
coastal
waters
all
of
which
would
be
reduced
with
year­
round
controls.

4.
Transition/
Conformity
The
proposed
rule
addresses
the
requirements
for
transportation
conformity
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard.
Specifically,
EPA
proposes
that
transportation
conformity
requirements
will
no
longer
apply
for
the
purposes
of
the
1­
hour
standard
once
this
standard
is
revoked.
Emission
budgets
established
for
conformity
would
be
revoked
in
both
non­
attainment
areas
and
maintenance
areas.
This
proposal
is
troubling
and
unacceptable
for
several
reasons.

 
We
anticipate
that
Eastern
and
Western
Massachusetts
will
be
designated
as
moderate
areas
under
the
8­
hour
standard.
Following
EPA's
schedule
under
the
proposal,
8­
hour
conformity
requirements
would
apply
in
2005
and
attainment
SIPs
would
be
due
in
2007.
If
EPA
revokes
the
1­
hour
standard,
there
will
be
no
conformity
budget
in
place
from
2005,
when
EPA
will
designate
8­
hour
ozone
areas,
until
2007.
Instead,
conformity
would
be
demonstrated
using
other
yet
undefined
tests
that
may
result
in
emission
increases
above
emission
levels
that
would
be
allowed
if
the
1­
hour
budgets
remained
in
place.
For
example,
a
build/
no­
build
test
would
not
prevent
emissions
growth
in
the
out
years
of
a
transportation
plan
or
TIP.
 
It
is
more
than
likely
that
existing
1­
hour
non­
attainment
areas
that
are
designated
as
8­
hour
non­
attainment
areas
will
have
to
further
reduce
emissions
to
meet
the
more
protective
standard.
As
such,
allowing
any
period
of
time
when
mobile
source
emission
levels
are
not
capped
by
a
mobile
source
emissions
budget
is
inconsistent
with
the
goal
of
cleaner
air
and
represents
a
weakening
of
transportation
conformity.
To
prevent
backsliding,
we
recommend
that
for
conformity
purposes,
1­
hour
mobile
source
budgets
remain
in
place
at
least
until
an
8­
hour
budget
is
submitted
and
found
adequate.
 
EPA
is
also
proposing
to
eliminate
the
conformity
requirement
for
1­
hour
maintenance
areas
when
the
1­
hour
standard
is
revoked.
Without
conformity
in
place,
there
will
be
no
tool
to
ensure
that
growth
in
emissions
from
the
transportation
sector
do
not
increase
to
levels
that
result
in
backsliding.
This
result
is
of
particular
concern
in
areas
currently
in
non­
attainment
or
maintenance
of
the
1­
hour
standard
that
are
not
projected
to
be
in
non­
attainment
of
the
8­
hour
standard.
Page
5
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
Finally,
we
note
that
it
is
difficult
at
best
to
comment
on
the
transportation
conformity
implications
of
the
proposed
rule
without
the
benefit
of
specific
regulatory
language
to
review,
both
in
the
case
of
the
proposed
rule
and
in
the
amendments
to
the
transportation
conformity
rule
to
be
proposed
later
this
summer.
Massachusetts
will
submit
detailed
comments
on
the
conformity
rule
once
it
is
proposed,
including
the
appropriate
conformity
test
that
should
apply
during
the
period
from
designation
to
such
time
that
an
8­
hour
conformity
budget
is
in
place.
As
noted
above,
we
urge
EPA
to
keep
the
1­
hour
budgets
in
place.

5.
Rate
of
Progress
Requirements
(
ROP)

EPA
has
proposed
2
options
with
respect
to
ROP
requirements
for
areas
classified
under
subpart
2.
Option
1
would
continue
to
require
15%
VOC
reductions
within
six
years
after
the
2002
baseline
for
areas
classified
as
moderate
and
above.
Option
2
provides
that
those
areas
with
an
approved
15%
plan
under
the
1­
hour
ozone
standard
do
not
have
to
do
an
additional
15%
VOC
plan.
These
areas
would
be
required
to
achieve
only
whatever
further
reductions
are
needed
to
meet
by
their
attainment
date
pursuant
to
the
requirements
of
subpart
1.
Massachusetts
supports
Option
2.
The
imposition
of
an
additional
15%
VOC
reduction
in
Massachusetts
would
inequitably
necessitate
costly
new
controls
on
stationary
sources
in
Massachusetts
where
there
is
already
an
approved
15%
plan
in
place.

6.
New
Source
Review
(
NSR)

As
a
general
principle,
Massachusetts
does
not
support
EPA's
use
of
the
8­
hour
implementation
rule
as
a
way
to
further
revise
the
federal
NSR
program.
To
the
extent
EPA
wants
to
propose
further
revisions
to
federal
NSR
it
should
do
so
in
a
separate
rulemaking.

As
noted
above,
Massachusetts
supports
classification
of
all
8­
hour
non­
attainment
areas
under
subpart
2,
thereby
making
them
subject
to
the
requirements
of
that
subpart,
including
subpart
2
NSR
requirements.

With
respect
to
the
specific
options
relating
to
NSR
that
EPA
has
proposed,
Massachusetts
has
the
following
comments:

 
EPA's
"
transitional"
and
"
Clean
Air
Development
Areas"
options
represent
a
substantial
departure
from
traditional
NSR
as
mandated
by
the
Clean
Air
Act.
In
our
view,
adopting
either
of
these
approaches
will
substantially
relax
existing
NSR
requirements,
likely
causing
significant
increases
in
emissions.
Massachusetts
does
not
believe
that
Congress
intended
for
EPA
to
relax
NSR
requirements,
or
any
of
the
Act's
requirements,
as
a
consequence
of
issuing
a
revised
NAAQS.
This
is
particularly
true
when
the
revision
has
resulted
in
a
more
stringent
standard
that
will
undoubtedly
require
the
States
to
adopt
additional,
more
stringent
control
measures.
Page
6
of
6
Commonwealth
of
Massachusetts
Comments
June
2,
2003
Proposed
8­
Hour
Ozone
Standard
Implementation
Rulemaking
 
There
is
no
sound
legal
basis
for
EPA's
option
2,
the
"
transitional
option,"
in
the
current
CAA.
Once
areas
are
designated
either
as
attainment
or
non­
attainment
under
the
new
standard,
traditional
NSR
should
apply
as
required
by
the
Act.
For
attainment
areas
this
means
applying
federal,
or
SIP
approved
federal
Prevention
of
Significant
Deterioration
(
PSD)
requirements.
For
non­
attainment
areas
this
means
applying
federal
"
major"
NSR
requirements.

 
EPA's
reliance
on
Appendix
S,
§
VI
as
legal
justification
for
the
"
transitional"
approach
is
incorrect.
This
section
is
intended
to
apply
only
to
new
and
modified
sources
located
in
areas
where
a
secondary
NAAQS
is
not
yet
attained.
It
applies
only
in
situations
where
a
secondary
attainment
date
has
not
yet
passed.
It
should
not
be
modified
to
accommodate
the
"
transitional"
approach.

 
For
new
8­
hour
non­
attainment
areas
which
were
previously
part
of
a
1­
hour
nonattainment
designation,
under
40
CFR
52.24(
k)
full
Appendix
S
requirements
should
apply
to
NSR
eligible
sources
for
the
18
month
interim
period
until
NSR
part
D
SIPs
can
be
submitted
and
approved
by
EPA.
40
CFR
Part
51,
Appendix
S.
The
Commonwealth
does
not
support
any
revision
to
40
CFR
52.24
(
k)
which
would
alter
Appendix
S
requirements
to
allow
for
EPA's
proposed
"
transitional"
approach.
Under
the
revised
8­
hour
ozone
standard,
we
believe
the
CAA
requires
that
each
States'
non­
attainment
SIP
must
include
the
full
suite
of
NSR
requirements,
including
Lowest
Achievable
Emission
Rate
(
LAER)
and
offsets
for
new
or
modified
major
stationary
sources.

 
The
Commonwealth
does
not
support
the
Clean
Air
Development
Communities
(
CADC)
concept
in
the
context
of
the
8­
hour
implementation
rule.
Like
the
"
transitional"
approach,
this
option
represents
a
major
relaxation
of
existing
NSR
requirements,
allowing
sources
located
in
CACD
areas
to
opt
out
of
some
NSR
requirements
provided
the
States
adopt
so­
called
"
growth
or
land
use
controls."
This
represents
an
even
more
radical
departure
from
traditional
NSR
as
required
by
the
Act.
While
some
of
the
ideas
outlined
in
EPA's
CADC
proposal
may
have
merit
as
new
control
measures,
they
should
not
be
presented
as
a
substitute
for
traditional
NSR.
We
believe
EPA
should
develop
the
CADC
concept
in
a
separate
rulemaking,
or
in
guidance
to
the
states,
as
an
additional
control
measure
available
to
the
States
to
meet
the
new
8­
hour
ozone
standard.
