Certification of Massachusetts State Implementation Plan Adequacy Regarding Clean Air Act Sections 110(a)(1) and (2) for the 2006 PM2.5 National Ambient Air Quality Standard
                                       
                              September 21, 2009
                                       
Summary

This document provides the U.S. Environmental Protection Agency (EPA) with certification that the existing Massachusetts State Implementation Plan (SIP) adequately meets the basic (or "infrastructure") requirements of 7401 U.S.C. §2110(a)(1) and (2) (Sections 110(a)(1) and (2) of the Clean Air Act (CAA)) with respect to the 24-hour National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) promulgated by EPA on September 21, 2006 (the 2006 PM 2.5 NAAQS). The 2006 PM2.5 NAAQS lowered the 24-hour PM2.5 standard from 65 micrograms per cubic meter to 35 ug/m3 and left the annual PM2.5 standard of 15ug/m3 unchanged.

Background 

Under the CAA, all states are required to submit SIPs meeting the requirements of CAA Sections 110(a)(l) and (2) within 3 years after promulgation of a new or revised standard.  Section 110(a)(1) provides the procedural and timing requirements for SIPS.  Section 110(a)(2) lists the basic elements that all SIPs must contain; these include emissions inventories, ambient air quality monitoring and data systems, programs for enforcement of control measures, and adequate resources to implement the plan. For the 2006 PM2.5 NAAQS, states must certify to EPA by September 21, 2009, that the state SIP contains the basic (or "infrastructure") elements that will allow the state to adequately provide for the implementation, maintenance and enforcement of the revised 24-hour PM NAAQS.   

The Massachusetts Department of Environmental Protection (MassDEP) certifies that the existing Massachusetts SIP already addresses the basic SIP elements required under the CAA and adequately provides for the implementation, maintenance and enforcement of the 2006 PM2.5 NAAQS.  

Previous Infrastructure Certifications
      
For the 1997 ozone NAAQS, on December 14, 2007, MassDEP submitted to EPA a Certification of State Implementation Plan Adequacy Regarding Clean Air Act Sections 110(a)(1) and (2) (the Ozone Certification), certifying that it met the CAA Section 110(a)(1) and (2) requirements.  On March 27, 2008 (73 Federal Register 16205), EPA issued a finding that, for the 1997 ozone NAAQS, the Massachusetts SIP is complete, with the exception of the PSD program. (See discussion regarding PSD below.)  

For the 1997 PM2.5 NAAQS, on April 4, 2008, MassDEP submitted to EPA a Certification of State Implementation Plan Adequacy Regarding Clean Air Act Sections 110(a)(1) and (2) for PM2.5.  On October 28, 2008 (73 Fed. Register 62902), EPA issued a finding that, for the 1997 PM2.5 NAAQS, the Massachusetts SIP is complete, with the exception of the PSD program. In both findings, EPA stated the following concerning PSD: "The State of Massachusetts has failed to submit a SIP addressing section 110(a)(2)(C) and (J) pertaining to the Part C PSD permit program. However, this requirement has already been addressed by a FIP that remains in place, and therefore, this action will not trigger any additional FIP obligations."  MassDEP anticipates that EPA will make a similar finding for PSD for the 2006 PM2.5 NAAQS. As noted in Table 1, MassDEP anticipates adopting a State PSD regulation in 2010. 

For the 1997 ozone and PM2.5 NAAQS, in an October 2, 2007 memo from William Harnett, Director of EPA's Air Quality Policy Division, EPA issued Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 NAAQS.  Massachusetts' previous certifications followed that guidance. EPA has not issued updated guidance related to the 2006 PM 2.5 NAAQS. Therefore, MassDEP has developed this certification to meet CAA requirements and to be consistent with the 1997 EPA guidance.
 
Basic SIP Elements 

The basic SIP elements required under Section 110(a)(2) are listed in Table 1.  Table 1 also lists the Massachusetts statutes and regulations that are already part of the Massachusetts SIP and satisfy the Section 110(a)(2) requirement. This PM2.5 NAAQS Certification is based on the same documentation of legal authority and program implementation as the Ozone Certification and PM2.5 Certification previously submitted to EPA. Table 1 includes statutory, regulatory and program references that are current as of the date of this certification. Hard copies of the following documents were submitted as part of the December 2007 PM2.5 Certification (and referenced in the April 2008 Ozone Certification):  

 Section II, Legal Authority, of the original 1972 Massachusetts SIP for ozone. This is a narrative description of MassDEP's legal authority to adopt rules and regulations to comply with the CAA.  
 Legal opinions that address similar CAA requirements related to state legal authority to implement other federally mandated air pollution control programs; these include:  
 November 12, 1993 and August 2, 1995, Massachusetts Attorney General's legal opinions regarding Title V of the federal Clean Air Act and the Commonwealth's regulations at 310 CMR 7.00: Appendix C: Operating Permit Program; 
 November 18, 1998 Massachusetts Attorney General's Supplemental Legal Opinion Regarding Section 129 of the Clean Air Act and the Commonwealth's Regulation at 310 CMR 7.08(2), the Municipal Waste Combustor Regulations; 
 July 9, 2007 MassDEP General Counsel's legal opinion regarding the authority to adopt the Clean Air Mercury Rule State Plan and accompanying regulations 310 CMR 7.29 and 310 CMR 7.02. 

Conclusion

The statutory authority and regulations referenced in Table 1, which are currently part of the Massachusetts SIP, meet the requirements of CAA Sections 110(a)(1) and (2) with respect to the 2006 PM2.5 NAAQS.  Therefore, MassDEP certifies that the existing Massachusetts SIP already addresses the SIP elements required under the CAA and provides for the implementation, maintenance and enforcement of the 2006 PM2.5 NAAQS.





Table 1
Massachusetts' Statutory Authority and Regulations Meeting Clean Air Act
Section 110(a)(1) and (2) SIP requirements for 2006 PM2.5 NAAQS
                                       
Clean Air Act (CAA) Section
SIP requirement (Each such plan shall...)
                             Massachusetts Program
110(a)(2)(A) Emission limits and other control measures
... "include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance..."
M.G.L. c 21A, s. 8.  Organization of departments; powers, duties and functions.  

M.G.L. c.111, s.142 A-N.  These statutes, collectively referred to Massachusetts Pollution Control Laws, provide MassDEP** with broad authority to prevent pollution or contamination of the atmosphere and to prescribe and establish regulations to prevent pollution or undue contamination of the atmosphere.  

M.G.L. c. 21A, s. 18.  MassDEP's fee statute.

MassDEP Regulations: 
In accordance with the above-referenced authority, MassDEP adopted 310 CMR 6.00, Ambient Air Quality Standards for the Commonwealth of Massachusetts. This regulation sets a state 1-hour ozone standard and a PM standard, but it has not been updated to include an 8-hour ozone standard and a PM2.5 standard.  MassDEP intends to revise 310 CMR 6.00 to adopt the current 24-hour and annual NAAQS for PM2.5 (and the current NAAQS for ozone) as Massachusetts ambient air quality standards.  On June 26, 2009, MassDEP issued for public review, a proposed revision to 310 CMR 6.00,   adopting the current NAAQS for PM2.5 and ozone as Massachusetts ambient air quality standards. A public hearing on the proposed revision was held on August 4. 2009.  MassDEP anticipates finalizing the revisions in early 2010.  In the meantime, however, all MassDEP regulations that require compliance with an ambient air quality standard require compliance with the NAAQS. Therefore, the out-of-date state ambient air quality standards in 310 CMR 6.00 do not have a regulatory impact.  

MassDEP also adopted regulations to control air pollution at 310 CMR 7.00. Air Pollution Control.  With a few exceptions (for regulations that EPA did not require be part of the federally-enforceable SIPs), these regulations have been submitted to EPA and incorporated into the Massachusetts SIP, as detailed in the numerous MassDEP SIP revisions submitted since the original 1971 PM SIP and 1972 Ozone SIP and approved by EPA as part of the SIP in 40 CFR Part 52, Subpart W.  

Other MassDEP regulations that have been adopted and incorporated in the SIP include: 
310 CMR 60.00.  Air Pollution Control for Mobile Sources.  
310 CMR 4.00.  Timely Action & Fee Schedule Regulations.
110(a)(2)(B) Ambient Air quality monitoring/data system
... "provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator."
M.G.L. c. 111, s. 142B-D.  These statutes give MassDEP the authority to maintain and operate air sampling stations and devices, and to require, for the purpose of conducting a continuing inventory of air pollution sources of emissions, any person to register with MassDEP and provide emissions information. 

MassDEP regulations relating to this authority include: 

310 CMR 7.12.  Source Registration.
310 CMR 7.13.  Stack Testing.
310 CMR 7.14.  Monitoring Devices and Reports.
310 CMR 7.00: Appendix C.   Operating Permit Program.
310 CMR 7.00: Appendix A.   Emissions Offsets and Nonattainment Review.



MassDEP collects and reports ambient air quality data for O3, SO2, NO2, Pb, CO, PM10 and PM2.5.  These data are reviewed and validated before being sent to the EPA air quality system (AQS), no later than 90 days after the end of a calendar quarter.

On January 28, 1980, MassDEQE submitted to EPA pursuant to 40 CFR § 52.370 (13), a comprehensive air quality monitoring plan  to meet requirements of 40 CFR part 58.

On August 24, 2009, MassDEP submitted to EPA the most recent annual air monitoring network plan.  

110(a)(2)(C) Program for enforcement of control measures

... "include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D;"

M.G.L. c 111, s.2C.  Pollution violations; orders of department of environmental protection.  This statute authorizes MassDEP to issue orders enforcing air pollution control regulations. 

M.G.L. c. 111, s 142A - N.  Massachusetts Pollution Control Laws authorize MassDEP to adopt regulations to control pollution or contamination of atmosphere, and enforce such regulations and issue penalties.

M.G.L. c.21A, s.16.  Administrative Penalties Act.

MassDEP regulations adopted pursuant to these authorities include: 
310 CMR 5.00.  Administrative Penalties.
310 CMR 7.02.  Plan Approval and Emission Limitations List.
310 CMR 7.52.  Enforcement Provisions.
310 CMR 7.00: Appendix C.  Operating Permit and Compliance Program.

With respect to the permit program requirement, MassDEP submitted a NSR Equivalency Determination to EPA-Region 1 on December 30, 2005.

110(a)(2)(D) Interstate transport
... "contain adequate provisions - (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will - (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable; requirements of sections 126 and 115 (relating to interstate and international pollution abatement);"
Revision to the Massachusetts State Implementation Plan  -                       The Massachusetts  SIP revision addressing the Interstate Air Pollution Transport Requirements of Clean Air Act Section 110(a)(2)(D)(i) relating to   the 1997 PM2.5 and ozone standards, was submitted to EPA on January 31, 2008. In that SIP revision, MassDEP relied upon its adoption of 310 CMR 7.32, the Massachusetts Clean Air Interstate Rule (MassCAIR), to address its contribution to downwind nonattainment areas, as required by EPA's Clean Air Interstate Rule. MassDEP continues to implement the MassCAIR program. 

EPA has not issued new regulations or guidance regarding how states should address transport in connection with the 2006 PM2.5 standard. MassDEP will submit a separate transport SIP to EPA to address this issue once EPA has provided the necessary guidance. 

In the meantime, Massachusetts is not contributing significantly to non-attainment in any other state, as all areas that are downwind of Massachusetts are attaining the 2006 PM2.5 NAAQS. 

MassDEP is addressing visibility pursuant to its Regional Haze SIP, which it anticipates submitting to EPA in 2010.   

NSR Equivalency Determination was submitted to EPA-Region 1 on December 30, 2005.

Pursuant to its PSD Program Delegation Agreement, MassDEP returned delegation of the PSD Program to EPA on February 23, 2003.  Under the terms of the Performance Partnership Agreement between EPA Region 1 and MassDEP, EPA continues to administer the PSD program with the cooperation and assistance of MassDEP. MassDEP anticipates that this arrangement will continue for purposes of implementing PSD for sources of PM2.5, until MassDEP adopts a state PSD regulation, which it expects to do in 2010.   

For the 1997 ozone and PM2.5 NAAQS, EPA found that Massachusetts failed to submit a SIP addressing Section 110(a)(2)(C) (the Part C PSD permit program), but this requirement has already been addressed in a Federal Implementation Plan (FIP) that remains in place and that the finding will, therefore, not trigger any additional FIP obligation. 

110(a)(2)(E) Adequate resources

... "provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision;"

M.G.L. c 21A, s. 8.  Organization of departments; powers, duties and functions.  This statute mandates that in no event shall the department authorize implementation of any plan, strategy or technology less protective of the environment than required by any applicable federal statute.

M.G.L. c. 111, s. 142A-N and the accompanying regulations.  These statutes and regulations provide MassDEP with sufficient authority to carry out implementation of the plan. 

M.G.L. c. 111, s. 142E.  Cooperation by, and Authority of Department over, other Agencies, Commissioners, Authorities, or Political Subdivisions with Respect to Air Pollution. 

M.G.L. c 21A, s. 8.  Organization of departments; powers, duties and functions. 
 
In Section X of the Massachusetts 1971 SIP for PM, the Bureau of Air Use Management provided details that it had adequate personnel and funding to carry out implementation of the original SIP.  This resource finding has been updated in subsequent SIP submissions related to PM and ozone.  MassDEP has continued to add staff and programs since that time and currently has adequate personnel and funding to implement the existing SIP. 

110(a)(2)(F) Stationary source emissions monitoring and reporting
... "require, as may be prescribed by the Administrator -  (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection;"
M.G.L. c. 111, s. 142A-D. These statutes give MassDEP the authority to maintain and operate air sampling stations and devices and to require, for the purpose of conducting a continuing inventory of air pollution sources of emissions, any person to register with MassDEP and provide emissions information.

MassDEP regulations relating to this authority include:
310 CMR 7.12.  Source Registration.
310 CMR 7.13.  Stack Testing.
310 CMR 7.14.  Monitoring Devices and Reports.

Chapter 66: Section 1.  Public inspection and copies of records; presumption; exceptions.

310 CMR 3.00.  Public Records Access Regulations.
110(a)(2)(G) Emergency power
... "provide for authority comparable to that in section 303 and adequate contingency plans to implement such authority;"

M.G.L. C.111, s.2B-C.  Air Pollution Emergencies.  These statutes authorize the Commissioner of MassDEP to determine that a condition or impending condition of the atmosphere in the commonwealth or in any part thereof constitutes a present or reasonably imminent danger to health, and may, with the approval of the governor, declare an air pollution emergency and cause the fact to be made known to the public.

MassDEP regulations relating to this authority are at 310 CMR 8.00, Prevention & Abatement of Air Pollution Episodes & Emergencies.  These regulations prevent ambient air concentrations of pollutants subject to a NAAQS from reaching levels that would constitute significant harm to public health, consistent with the significant harm levels and procedures for state emergency episode plans established by EPA in 40 CFR Part 51.150. 

The requirement for a state to submit an emergency episode plan is based on a priority region classification.  For PM2.5, the classification scheme that EPA is planning to propose would require states with a 24-hour PM2.5 concentration above 140.5 ug/m3 (using the most recent three years of data) to develop an emergency episode plan. States that do not meet this threshold would be classified as Priority III and would not be required to develop an emergency episode plan for PM2.5. Massachusetts is likely to be classified as a Class III Priority Area based on its monitored data And, if that classification is assigned, Massachusetts would not be required to adopt an Emergency Episode Plan for PM2.5.

MassDEP forecasts predicts concentrations of PM2.5 statewide throughout the year and issues alerts to the public when concentrations are expected to reach unhealthy levels using the Air Quality Index and will continue to do so. 

110(a)(2)(H) Future SIP revisions

... "provide for revision of such plan - (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this Act;"

M.G.L. c. 111, s. 142A-N.  These statutes allow MassDEP to amend its air pollution control regulations from time to time.


110(a)(2)(J) Consultation with government officials
... "meet the applicable requirements of section 121 (relating to consultation)
M.G.L. c. 21A, s. 8.  Organization of departments; powers, duties and functions.

M.G.L. c. 111, s. 142E.  Cooperation by, and Authority of Department over, other Agencies, Commissioners, Authorities, or Political Subdivisions with Respect to Air Pollution. 

M.G.L. c. 30A.  Massachusetts Administrative Procedures Act.  This statute requires MassDEP to provide notice and public comment and hearing prior to adoption of any regulations.  

Executive Order No. 145.  This order requires MassDEP to provide notice to the Local Government Advisory Committee, through the Massachusetts Municipal Association, to solicit input on the impact on local government.

Massachusetts SIP Steering Committee, established pursuant to the Clean Air Amendments of 1990, provides for consultation.

110(a)(2)(J) Public notification

... "meet the applicable requirements of section 127 (relating to public notification), 

M.G.L. c. 30A requires MassDEP to provide notice and public comment and hearing prior to adoption of any regulations.  

110(a)(2)(J) PSD and visibility Protection

... "meet the applicable requirements of part C (relating to prevention of significant deterioration of air quality and visibility protection);"

Pursuant to its PSD Program Delegation Agreement, MassDEP returned delegation of the PSD Program to EPA on February 23, 2003. Under the terms of the Performance Partnership Agreement between EPA Region 1 and MassDEP, EPA continues to administer the PSD program with the cooperation and assistance of MassDEP. MassDEP anticipates that this arrangement will continue for purposes of implementing PSD for sources of PM2.5 until MassDEP adopts a state PSD regulation, which it expects to do in 2010.    

MassDEP is addressing visibility issues in its Regional Haze SIP, which will be submitted to EPA in 2010.  
110(a)(2)(K) 
Air quality modeling/data

... "provide for - (i)  the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator;"

M.G.L. c. 111, s. 142B-D.  These statutes give MassDEP the authority to maintain and operate air sampling stations and devices and to require, for the purpose of conducting a continuing inventory of air pollution sources of emissions, any person to register with MassDEP and provide emissions information.

310 CMR 7.02.  Plan Approval and Emission Limitations.



110(a)(2)(L) Permitting fees

... "require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover - (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under
title V;"

M.G.L. c.21A, s.18.  This statute authorizes MassDEP to promulgate regulations establishing fees.

310 CMR 4.00.  Timely Action & Fee Schedule Regulations.  These regulations set permit and compliance fees, including fees for Operating Permits (Title V).

110(a)(2)(M) Consultation/ Participation by affected local entities

... "provide for consultation and participation by local political subdivisions affected by the plan."
M.G.L. c. 30A.  Massachusetts Administrative Procedures Act.  This statute requires MassDEP to provide notice and public comment and hearing prior to adoption of any regulations.
  
Executive Order No. 145 requires MassDEP to provide notice to the Local Government Advisory Committee, through the Massachusetts Municipal Association, to solicit input on the impact on local government.




