
[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4021-4025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02203]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2018-0829; FRL-9989-01-Region 1]


Air Plan Approval; Massachusetts; Nonattainment New Source Review 
Program Revisions; Infrastructure Provisions for National Ambient Air 
Quality Standards; Nonattainment New Source Review Requirements for the 
2008 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Massachusetts. On February 9, 2018, the Massachusetts 
Department of Environmental Protection (MassDEP) submitted revisions to 
the EPA satisfying the MassDEP's earlier commitment to adopt and submit 
provisions that meet certain requirements of the Nonattainment New 
Source Review (NNSR) air permit program regulations. The EPA is also 
proposing to approve the Commonwealth's NNSR certification, which was 
included in the February 9, 2018 SIP revision, as sufficient for the 
purposes of satisfying the 2008 8-hour ozone National Ambient Air 
Quality Standard (NAAQS). In addition, this action will also convert 
the EPA's December 21, 2016 conditional approval for certain 
infrastructure provisions relating to Massachusetts's NNSR air permit 
program to full approval. This action is being taken under the Clean 
Air Act.

DATES: Written comments must be received on or before March 18, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2018-0829 at https://www.regulations.gov, or via email to 
wortman.eric@epa.gov. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor 
Programs Unit, 5 Post Office Square--Suite 100, Boston, MA. The EPA 
requests that if at all possible, you contact the contact listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday

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through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Eric Wortman, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA Region 1, 5 Post 
Office Square--Suite 100 (Mail Code OEP05-2), Boston, MA 02109-3912, 
tel. (617) 918-1624, email wortman.eric@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Massachusetts's February 9, 2018 SIP Submittal Addressing the 
EPA's December 21, 2016 Conditional Approval Regarding 310 CMR 7.00
    A. What is the background information for the EPA's December 21, 
2016 conditional approval?
    B. What is a conditional approval?
    C. Were the terms of the December 21, 2016 conditional approval 
met?
II. Proposed Approval of NNSR Certification
    A. Background on the 2008 8-Hour Ozone NAAQS
    B. Analysis of Massachusetts's NNSR Requirements
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order reviews

I. Massachusetts's February 9, 2018 SIP Submittal Addressing the EPA's 
December 21, 2016 Conditional Approval Regarding 310 CMR 7.00

A. What is the background information for the EPA's December 21, 2016 
conditional approval?

    On December 21, 2016, the EPA published a final conditional 
approval for Massachusetts's June 6, 2014 SIP submittal. See 81 FR 
93627. That conditional approval identified a number of issues. One of 
those issues relates to a provision under Section 110(a)(2)(D)(i)(II) 
of the Clean Air Act (CAA) that was not included in the Commonwealth's 
June 6, 2014 SIP submittal. In a letter dated June 14, 2016, the 
Commonwealth committed to submitting for inclusion in the SIP, by a 
date no later than one year from conditional approval of 
Massachusetts's infrastructure SIP submissions, the necessary 
provisions that would address the identified issues. The conditional 
approval was part of the EPA's December 21, 2016 final action on 
Massachusetts's infrastructure SIP submittal for the 1997 ozone, 2008 
lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO2), and 2010 
sulfur dioxide (SO2) NAAQS. See 81 FR 93627.

B. What is a conditional approval?

    Under section 110(k)(4) of the CAA, the EPA may conditionally 
approve a plan based on a commitment from the state to adopt specific 
enforceable measures by a date no later than one year from the 
effective date of final conditional approval. If the EPA subsequently 
determines that the state has met its commitment, the EPA publishes a 
document in the Federal Register notifying the public that the EPA is 
converting the conditional approval to a full approval.
    Otherwise, if the state fails to meet its commitment in a timely 
manner, then the conditional approval automatically converts to a 
disapproval. If that were to occur, the EPA would then notify the state 
by letter. At that time, the conditionally approved SIP revisions would 
not be part of the state's approved SIP. The EPA subsequently would 
publish a document in the Federal Register notifying the public that 
the conditional approval had converted to a disapproval.
    The EPA's December 21, 2016 conditional approval required the 
MassDEP to submit revised regulations that address Prong 3 of Section 
110(a)(2)(D)(i)(II) of the CAA. To address the conditional approval, on 
February 9, 2018, the MassDEP submitted regulatory provisions for 
approval into the Commonwealth's SIP. As explained in Section I.C of 
this document, the revisions addressed the NNSR requirements that would 
make the Commonwealth's NNSR program applicable to sources regardless 
of the attainment status of the area where the source is located. These 
revisions were necessary because Massachusetts is located in the Ozone 
Transport Region (OTR).\1\
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    \1\ CAA section 184 details specific requirements for a group of 
states (and the District of Columbia) that make up the OTR. States 
in the OTR are required to mandate a certain level of emissions 
control for the pollutants that form ozone, even if the areas in the 
state meet the ozone standards. Thus, NNSR permitting requirements 
apply statewide, even if the state is designated attainment for the 
ozone NAAQS.
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C. Were the terms of the December 21, 2016 conditional approval met?

    Section 110(a)(2)(D) contains a comprehensive set of air quality 
management elements pertaining to the transport of air pollution that 
states must address. It covers the following five topics, categorized 
as sub-elements: Sub-element 1, Contribute to nonattainment, and 
interfere with maintenance of a NAAQS; Sub-element 2, Prevention of 
Significant Deterioration (PSD); Sub-element 3, Visibility protection; 
Sub-element 4, Interstate pollution abatement; and Sub-element 5, 
International pollution abatement. Sub-elements 1 through 3 are found 
under section 110(a)(2)(D)(i) of the Act, and these items are further 
categorized into four prongs.
    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required to prevent 
significant deterioration of air quality in another state. The EPA 
sometimes refers to this requirement under subsection 
110(a)(2)(D)(i)(II) as prong 3. A state's infrastructure SIP submittal 
cannot be considered approvable for prong 3 of 110(a)(2)(D)(i)(II) 
unless the EPA has issued final approval of the state's PSD SIP, or 
alternatively, has issued final approval of a SIP that the EPA has 
otherwise found adequate to prohibit interference with other states' 
measures to prevent significant deterioration of air quality.
    Under prong 3 of 110(a)(2)(D)(i)(II), the EPA also reviews the 
potential for in-state sources not subject to PSD to interfere with PSD 
in an attainment or unclassifiable area of another state. EPA guidance 
recommends that a ``fully approved NNSR program with respect to any 
previous NAAQS may generally be considered by the EPA as adequate for 
purposes of meeting this requirement of prong 3 with respect to sources 
and pollutants subject to such program.'' \2\ The EPA last approved the 
Commonwealth's NNSR program on October 27, 2000. See 65 FR 64360. 
Because Massachusetts is located within the OTR,\3\ the CAA requires 
sources emitting 100 tons per year (tpy) or more of nitrogen oxides 
(NOX) or 50 tpy or more of volatile organic compounds (VOCs) 
located in attainment or unclassifiable areas to be subject to the 
requirements that would be applicable to major stationary sources if 
the area were classified as a moderate nonattainment area. See CAA 
sections 182(f)(1), 184(b)(2), 42 U.S.C. 7511a, 7511c. In other words, 
even if located in an area designated attainment or unclassifiable for 
ozone, under the CAA and its implementing regulations, such sources are 
subject to NNSR rather than PSD. The major source threshold for NNSR in 
Massachusetts is currently 50 tpy for NOX instead of 100 tpy 
due to the fact that part of Massachusetts had

[[Page 4023]]

been designated in 1990 as a serious nonattainment area for the 1979 1-
hour ozone standard.4 5 Massachusetts's current SIP-approved 
NNSR regulations, however, apply only in nonattainment areas,\6\ 
meaning that sources with 50 tpy (see footnote 5) or more of either 
VOCs or NOX emissions in much of Massachusetts are not 
covered by either the PSD federal implementation plan (FIP), applicable 
in the Commonwealth, or the Commonwealth's EPA-approved NNSR program. 
Thus, the Commonwealth has not shown that it has met this requirement 
of prong 3. However, as a matter of state regulation, the Commonwealth 
has promulgated and implements NNSR regulations that make the 
Commonwealth's NNSR program applicable to such sources regardless of 
area designation. We are proposing to approve these regulations into 
the Commonwealth's SIP.
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    \2\ See page 32 of EPA's September 13, 2013 guidance titled 
``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).''
    \3\ See CAA 184(a), 42 U.S.C. 7511c(a).
    \4\ On November 6, 1991, the EPA promulgated designations for 
the 1979 1-hour ozone standard. See 56 FR 56694 (November 6, 1991).
    \5\ Because Massachusetts is in the OTR, the major source 
threshold for VOCs is 50 tpy.
    \6\ At the time the EPA last approved Massachusetts's NNSR 
regulations (October 27, 2000; 65 FR 64361), the Western 
Massachusetts area was nonattainment for the 1979 1-hour ozone 
NAAQS, and the Eastern Massachusetts area was attaining that NAAQS. 
The Eastern Massachusetts area became nonattainment as of January 
16, 2001 when the EPA reinstated the 1-hour ozone NAAQS for that 
area. See 65 FR 45181 (July 20, 2000).
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    On February 9, 2018, MassDEP submitted the necessary provisions for 
inclusion into the SIP to make its EPA-approved NNSR program applicable 
to such sources and address the relevant issues identified in the EPA's 
December 21, 2016 conditional approval. Specifically, MassDEP's SIP 
submittal included the following revisions to 310 CMR 7.00: Appendix A 
for inclusion in the SIP:
     The Introduction in section (1) of Appendix A was revised 
to clarify that any source that is major for VOCs or NOX is 
subject to the requirements in Appendix A.
     Section (b) of the definition of Major Modification was 
revised to remove the requirement that a major source must be located 
in an ozone nonattainment area for the purpose of applying the 
requirements of Appendix A.
     Section (b) of the definition of Major Stationary Source 
was revised to remove the requirement that a major stationary source of 
NOX must be located in an ozone nonattainment area for the 
purpose of applying the requirements of Appendix A.
     The definition of Nonattainment Pollutant was added to 
clarify that NOX and VOCs are considered nonattainment 
pollutants regardless of the attainment designation status where the 
source is located.
     Section (3) of Appendix A was revised at subsection (b) to 
include the requirement for Appendix A to apply if a new major 
stationary source or major modification is major for NOX or 
VOCs.
    Massachusetts failed to submit the technical demonstration in a 
timely manner. Therefore, our conditional approval became a disapproval 
on January 20, 2018. However, as noted previously, on February 9, 2018, 
the MassDEP submitted SIP revisions to the EPA to address the issues 
identified in the December 21, 2016 conditional approval under prong 3 
of Section 110(a)(2)(D)(i)(II), effectively remedying the disapproval 
relating to that provision of the CAA. The EPA has reviewed MassDEP's 
SIP submittal and determined that MassDEP's regulations are consistent 
with the underlying federal NNSR regulations in 40 CFR part 51 and meet 
the terms of the December 21, 2016 conditional approval. Accordingly, 
the EPA is proposing to approve the revisions into the SIP and convert 
the December 21, 2016 conditional approval to a full approval for prong 
3 of Section 110(a)(2)(D)(i)(II).

II. Proposed Approval of NNSR Certification

A. Background on the 2008 8-Hour Ozone NAAQS

    On March 12, 2008, the EPA promulgated a revised 8-hour ozone NAAQS 
of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). 
Under the EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone 
NAAQS is met at an ambient air quality monitoring site when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ambient air quality ozone concentration is less than or equal to 0.075 
ppm. Ambient air quality monitoring data for the 3-year period must 
meet a data completeness requirement. The ambient air quality 
monitoring data completeness requirement is met when the average 
percent of days with valid ambient monitoring data is at least 90 
percent, and no single year has less than 75 percent data completeness 
as determined in Appendix I of part 50.
    Upon promulgation of a new or revised NAAQS, the CAA requires the 
EPA to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of certified ambient air quality 
data. Dukes County in Massachusetts was designated nonattainment for 
the 2008 8-hour ozone NAAQS on April 30, 2012 using 2009-2011 ambient 
air quality data. See 77 FR 30088 (May 21, 2012). At the time of 
designation, Dukes County was classified as a marginal nonattainment 
area. On March 6, 2015, the EPA issued a final rule entitled, 
``Implementation of the 2008 National Ambient Air Quality Standards for 
Ozone: State Implementation Plan Requirements'' (SIP Requirements 
Rule), which established the requirements that state, tribal, and local 
air quality management agencies must meet in developing implementation 
plans for areas where ozone concentrations exceed the 2008 8-hour ozone 
NAAQS.\7\ See 80 FR 12264. Areas that were designated as marginal 
nonattainment areas for the 2008 8-hour ozone NAAQS were required to 
attain no later than July 20, 2015, based on 2012-2014 monitoring data. 
See 40 CFR 51.1103. The Dukes County nonattainment area attained the 
2008 8-hour ozone NAAQS by July 20, 2015, and therefore on April 11, 
2016, the EPA Administrator signed a final determination of attainment 
for the 2008 8-hour ozone standard for the Dukes County nonattainment 
area. See 81 FR 26697 (May 4, 2016).
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    \7\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
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    Based on initial nonattainment designations for the 2008 8-hour 
ozone standard, as well as the March 6, 2015 final SIP Requirements 
Rule, Massachusetts was required to develop a SIP revision addressing 
certain CAA requirements for the Dukes County nonattainment area, and 
submit to the EPA an NNSR Certification SIP or SIP revision no later 
than 36 months after the effective date of area designations for the 
2008 8-hour ozone NAAQS (i.e., July 20, 2015).8 9 Because 
Massachusetts

[[Page 4024]]

already has a NNSR program that applies statewide, Massachusetts can 
certify the adequacy of its existing NNSR program with respect to the 
2008 ozone NAAQS for the Dukes County nonattainment area.\10\ See 40 
CFR 51.1114.
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    \8\ Where an air agency determines that the provisions in or 
referred to by its existing EPA approved SIP are adequate with 
respect to a given infrastructure SIP element (or sub-element) even 
in light of the promulgation of a new or revised NAAQS, the air 
agency may make a SIP submission in the form of a certification. 
This type of infrastructure SIP submission may, e.g., take the form 
of a letter to the EPA from the Governor or her/his designee 
containing a ``certification'' (or declaration) that the already-
approved SIP contains or references provisions that satisfy all or 
some of the requirements of section 110(a)(2), as applicable, for 
purposes of implementing the new or revised NAAQS.
    \9\ Massachusetts's obligation to submit the NNSR Certification 
SIP was not affected by the D.C. Circuit Court's February 16, 2018 
decision on portions of the SIP Requirements Rule in South Coast Air 
Quality Mgmt. Dist. v. EPA.
    \10\ Massachusetts's February 9, 2018 certification of adequacy 
that the SIP meets the NNSR requirements for the 2008 ozone NAAQS 
relies on the inclusion of the SIP revisions proposed for approval 
in Section I of this action.
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    On February 3, 2017, the EPA found that 15 states (including the 
Commonwealth of Massachusetts) and the District of Columbia failed to 
submit SIP revisions in a timely manner to satisfy certain requirements 
for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/
or states in the ozone transport region.\11\ See 82 FR 9158. As 
explained in that rulemaking action, consistent with the CAA and EPA 
regulations, these findings of failure to submit established certain 
deadlines for the imposition of sanctions if a state does not submit a 
timely SIP revision addressing the requirements for which the finding 
is being made, and for the EPA to promulgate a federal implementation 
plan (FIP) to address any outstanding SIP requirements.
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    \11\ States have three years after the effective date of 
designation for the 2008 8-hour ozone NAAQS to submit SIP revisions 
addressing NNSR for their nonattainment areas. See 40 CFR 51.1114. 
Massachusetts's SIP revision certified that its SIP-approved state 
regulation addressing nonattainment new source review for all new 
stationary sources and modified existing stationary sources in the 
State exceeds the requirements of section 182(a)(2)(C) for the 2008 
8-hour ozone NAAQS. However, EPA does not believe that the two-year 
deadline contained in CAA section 182(a)(2)(C) applies to NNSR SIP 
revisions for implementing the 8-hour ozone NAAQS. See 80 FR 12264, 
12267 (March 6, 2015); 70 FR 71612, 71683 (November 29, 2005). The 
submission of NNSR SIPs due on November 15, 1992, satisfied the 
requirement for states to submit NNSR SIP revisions to meet the 
requirements of CAA sections 172(c)(5) and 173 within two years 
after the date of enactment of the 1990 CAA Amendments. Id.
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    MassDEP submitted its February 9, 2018 SIP revision to address the 
specific NNSR requirements for the 2008 8-hour ozone NAAQS, located in 
40 CFR 51.160-165, as well as its obligations under the EPA's February 
3, 2017 Findings of Failure to Submit. The 18-month sanctions clock 
stopped when MassDEP submitted the SIP revision and the SIP revision 
became complete by operation of law on August 9, 2018. The EPA's 
analysis of how this SIP revision addresses the NNSR requirements for 
the 2008 8-hour ozone NAAQS is provided in Section II.B.

B. Analysis of Massachusetts's NNSR Requirements

    The minimum SIP requirements for NNSR permitting programs for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. These NNSR 
program requirements include those promulgated in the ``Phase 2 Rule'' 
implementing the 1997 8-hour ozone NAAQS \12\ and the SIP Requirements 
Rule implementing the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, 
the SIP for each ozone nonattainment area must contain NNSR provisions 
that: Set major source thresholds for NOX and VOCs pursuant 
to 40 CFR 51.165(a)(1)(iv)(A)(1)(i) through (iv) and (2); classify 
physical changes at a major source if the change would constitute a 
major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); 
consider any significant net emissions increase of NOX as a 
significant net emissions increase for ozone pursuant to 40 CFR 
51.165(a)(1)(v)(E); consider increases of VOCs emissions in extreme 
ozone nonattainment areas as significant net emissions increases and 
major modifications for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); 
set significant emissions rates for VOCs and NOX as ozone 
precursors pursuant to 40 CFR 51.165(a)(1)(x)(A) through (C) and (E); 
contain provisions for emissions reductions credits pursuant to 40 CFR 
51.165(a)(3)(ii)(C)(1) and (2); provide that the requirements 
applicable to VOCs also apply to NOX pursuant to 40 CFR 
51.165(a)(8); and set offset ratios for VOCs and NOX 
pursuant to 40 CFR 51.165(a)(9)(i) through (iii) (renumbered as 
(a)(9)(ii) through (iv) under the SIP Requirements Rule for the 2008 8-
hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 8-hour 
ozone NAAQS, the SIP for each ozone nonattainment area designated 
nonattainment for the 2008 8-hour ozone NAAQS and designated 
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also 
contain NNSR provisions that include the anti-backsliding requirements 
at 40 CFR 51.1105.
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    \12\ See 70 FR 71612 (November 29, 2005).
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    Massachusetts's longstanding SIP-approved NNSR program, established 
in the Code of Massachusetts Regulations (CMR) at Appendix A to 310 CMR 
7.00, applies to the construction and modification of stationary 
sources, including major stationary sources in nonattainment areas. In 
its SIP revision, Massachusetts certifies that its existing NNSR 
regulations at 310 CMR 7.00: Appendix A satisfy the requirements of 
Section 182(a) of the CAA for the 2008 ozone NAAQS as specified in 40 
CFR 51.165 for the Dukes County nonattainment area (see footnote 9).
    The EPA last approved revisions to the SIP-approved version of 
Massachusetts's NNSR rule in 2000, addressing, among other things, 
revisions under the 1990 CAA amendments and other general NNSR 
permitting requirements. See 65 FR 64360 (October 27, 2000). 
Massachusetts's SIP-approved NNSR regulations retain the NNSR 
requirements applicable to serious nonattainment areas, even though the 
Dukes County nonattainment area was classified as marginal 
nonattainment under the 2008 8-hour ozone NAAQS. Dukes County was 
previously classified serious nonattainment as part of the Boston-
Lawrence-Worcester (E. Mass) nonattainment area on November 15, 1990 
for the 1-hour ozone NAAQS. See 56 FR 56694 (November 6, 1991).
    Massachusetts's existing NNSR regulations and the revisions 
proposed in the February 9, 2018 SIP submittal for inclusion in the SIP 
are at least as stringent as the federal NNSR requirements and satisfy 
the requirements of the Phase 2 Rule and SIP Requirements Rule 
discussed previously. The definitions of ``major modification,'' 
``major stationary source,'' ``significant,'' and ``nonattainment 
pollutant'' in 310 CMR 7.00: Appendix A are consistent with federal 
NNSR regulations. In addition, the definition of ``major stationary 
source'' and ``major modification'' properly address the thresholds for 
VOCs and NOX, as precursors to ozone, by establishing the 
threshold for each of these ozone precursors at 50 tons per year. This 
threshold for a major modification is consistent with the EPA 
regulations for serious nonattainment areas. Massachusetts's NNSR 
regulations also contain the appropriate provisions for determining 
emissions reduction credits due to shutdowns, establishing offset 
ratios, and treating NOX as a precursor to ozone. Lastly, 
since Massachusetts's NNSR SIP retains the NOX and VOCs 
thresholds for a serious nonattainment area for ozone that are based on 
how the Commonwealth was designated nonattainment on November 15, 1990 
for the 1-hour ozone standard, the Commonwealth's SIP meets the anti-
backsliding requirements.
    The EPA notes that neither 310 CMR 7.00: Appendix A nor 
Massachusetts's approved SIP have the regulatory provision for any 
emissions change of VOCs in extreme nonattainment areas, specified in 
40 CFR 51.165(a)(1)(v)(F), because Massachusetts has never had an

[[Page 4025]]

area designated extreme nonattainment for any of the ozone NAAQS. The 
Massachusetts SIP is not required to have this provision for VOCs in 
extreme nonattainment areas until such time as Massachusetts has an 
extreme ozone nonattainment area.

III. Proposed Action

    The EPA's review of MassDEP's February 9, 2018 SIP submittal 
indicates that the submittal satisfies the requirements of the CAA and 
is appropriate for inclusion into the SIP. The EPA therefore is 
proposing to approve the SIP revisions discussed in this action. Also, 
as a result of our proposed approval of the NNSR permitting revisions 
discussed in Section I, the EPA is proposing to convert the December 
21, 2016 conditional approval to a full approval for prong 3 of CAA 
section 110(a)(2)(D)(i)(II). Other aspects of EPA's December 21, 2016 
conditional approval will be addressed in other actions.
    The EPA is also proposing to approve MassDEP's February 9, 2018 SIP 
revision addressing the NNSR requirements for the 2008 ozone NAAQS for 
the Dukes County Nonattainment Area. The EPA has concluded that 
MassDEP's submission fulfills the 40 CFR 51.1114 revision requirement, 
meets the requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165, as well as its obligations under the 
EPA's February 3, 2017 Findings of Failure to Submit relating to 
submission of a NNSR certification. The EPA is soliciting public 
comments on the issues discussed in this action or on other relevant 
matters. These comments will be considered before taking final action. 
Interested parties may participate in the Federal rulemaking procedure 
by submitting written comments to this proposed rulemaking by following 
the instructions listed in the ADDRESSES section of this Federal 
Register.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference of Massachusetts's 310 CMR 7.00: Appendix A. The EPA has 
made, and will continue to make, these documents generally available 
through https://www.regulations.gov and at the EPA Region 1 Office 
(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: February 7, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2019-02203 Filed 2-13-19; 8:45 am]
BILLING CODE 6560-50-P


