[Federal Register Volume 85, Number 50 (Friday, March 13, 2020)]
[Rules and Regulations]
[Pages 14578-14585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05350]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2019-0695; FRL-10005-36-Region 1]


Air Plan Approval; Massachusetts; Infrastructure State 
Implementation Plan Requirements for the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Massachusetts. Except as noted, this revision satisfies the 
infrastructure requirements of the Clean Air Act (CAA) for the 2015 
ozone National Ambient Air Quality Standards (NAAQS). The 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. We are issuing a 
finding of failure to submit pertaining to the various aspects of 
infrastructure SIPS relating to the prevention of significant 
deterioration (PSD). The Commonwealth has long been subject to a 
Federal Implementation Plan (FIP) regarding PSD, thus the finding of 
failure to submit will result in no sanctions or further FIP 
requirements. We do not in this action address CAA 110(a)(2)(D)(i)(I) 
requirements regarding interstate transport, because we previously 
approved the Commonwealth's submittal addressing these requirements for 
the 2015 ozone standard (January 31, 2020). This action is being taken 
in accordance with the Clean Air Act.

DATES: This direct final rule will be effective May 12, 2020, unless 
EPA receives adverse comments by April 13, 2020. If adverse comments 
are received, EPA will publish a timely withdrawal of the direct final 
rule in the Federal Register informing the public that the rule will 
not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2019-0695 at https://www.regulations.gov, or via email to 
rackauskas.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, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. 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 through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays.

FOR FURTHER INFORMATION CONTACT: Eric Rackauskas, Air Quality Branch, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square--Suite 100, (Mail code 05-2), Boston, MA 02109-
3912, tel. 617-918-1628, email rackauskas.eric@epa.gov.

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

Table of Contents

I. Background and Purpose
II. Infrastructure SIP Evaluation
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On September 27, 2018, the Massachusetts Department of 
Environmental Protection (DEP) submitted a formal revision to its State 
Implementation Plan (SIP). The SIP revision contains the Commonwealth's 
``Certification of Adequacy of the Massachusetts State Implementation 
Plan Regarding Clean Air Act Sections 110(a)(1) and (2) for the 2015 
Ozone National Ambient Air Quality Standards.'' When EPA promulgates a 
new or revised NAAQS, states must submit these certifications (or 
infrastructure SIPS) to ensure that their SIP provides for 
implementation, maintenance, and enforcement of the respective NAAQS.
    EPA previously approved Massachusetts' infrastructure SIP for the 
2008 ozone standard (as part of a notice approving five total NAAQS 
infrastructure SIPS) on December 21, 2016 (81 FR 93627). The September 
27, 2018 submission contains virtually the same information as the 
previous SIP approved version, with a few minor updates and date 
changes. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

A. What is the scope of this rulemaking?

    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1)

[[Page 14579]]

requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), EPA believes that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. EPA has previously provided 
comprehensive guidance on the application of these provisions through a 
guidance document for infrastructure SIP submissions and through 
regional actions on infrastructure submissions.\1\ Unless otherwise 
noted below, we are following that existing approach in acting on this 
submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\2\ The EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \1\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013, Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Massachusetts' infrastructure SIP to address the 1997 
ozone, 2008 lead, 2008 ozone, 2010 nitrogen dioxide, and 2010 sulfur 
dioxide NAAQS. 81 FR 93627 (December 21, 2016).
    \2\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th 
Cir. 2018).
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B. What guidance is EPA using to evaluate Massachusetts' infrastructure 
SIP submission?

    EPA highlighted the statutory requirement to submit infrastructure 
SIPs within 3 years of promulgation of a new NAAQS in an October 2, 
2007, guidance document entitled ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 
guidance). EPA has issued additional guidance documents and memoranda, 
including a September 13, 2013, guidance document entitled ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 guidance).

II. Infrastructure SIP Evaluation

    The following review evaluates the state's submissions regarding 
CAA section 110(a)(2) requirements and relevant EPA guidance.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section of the Act requires SIPs to include enforceable 
emission limits and other control measures, means or techniques, 
schedules for compliance, and other related matters. However, EPA has 
long interpreted emission limits and control measures for attaining the 
standards as being due when nonattainment planning requirements are 
due.\3\ In the context of an infrastructure SIP, EPA is not evaluating 
the existing SIP provisions for this purpose. Instead, EPA is only 
evaluating whether the state's SIP has basic structural provisions for 
the implementation of the NAAQS. Massachusetts General Law (M.G.L.) c. 
21A, section 8, Executive Office of Energy and Environmental Affairs 
Organization of Departments; powers, duties and functions, creates and 
sets forth the powers and duties of the Department of Environmental 
Protection (MassDEP) within the Executive Office of Energy and 
Environmental Affairs. In addition, M.G.L. c. 111, sections 142A 
through 142N, which, collectively, are referred to as the Massachusetts 
Pollution Control Laws, provide MassDEP with broad authority to prevent 
pollution or contamination of the atmosphere and to prescribe and 
establish appropriate regulations. Furthermore, M.G.L. c. 21A, section 
18, Permit applications and compliance assurance fees; timeline action 
schedules; regulations, authorizes MassDEP to establish fees applicable 
to the regulatory programs it administers.
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    \3\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12, 
2008).
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    MassDEP has adopted numerous regulations within the Code of 
Massachusetts Regulations (CMR) in furtherance of the objectives set 
out by these statutes, including 310 CMR 4.00, Timely Action & Fee 
Schedule Regulations, 310 CMR 6.00, Ambient Air Quality Standards for 
the Commonwealth of Massachusetts, and 310 CMR 7.00, Air Pollution 
Control Regulations. For example, many SIP-approved State air quality 
regulations within 310 CMR 7.00 provide enforceable emission 
limitations and other control measures, means or techniques, schedules 
for compliance, and other related matters that satisfy the requirements 
of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, including but 
not limited to 7.18, Volatile and Halogenated Organic Compounds, 7.19, 
Reasonably Available Control Technology (RACT) for Sources of NOx, and 
7.29, Emission Standards for Power Plants. EPA finds that MassDEP meets 
the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 2015 ozone NAAQS.

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to provide for establishment and 
operation of appropriate devices, methods, systems, and procedures 
necessary to monitor, compile, and analyze ambient air quality data, 
and make these data available to EPA upon request. Each year, states 
submit annual air monitoring network plans to EPA for review and 
approval. EPA's review of these annual monitoring plans includes our 
evaluation of whether the State: (i) Monitors air quality at 
appropriate locations throughout the State using EPA-approved Federal 
Reference Methods or Federal Equivalent Method monitors; (ii) submits 
data to EPA's Air Quality System (AQS) in a timely manner; and (iii) 
provides EPA Regional Offices with prior notification of any planned 
changes to monitoring sites or the network plan.'' Under MGL c. 111, 
sections 142B to 142D, MassDEP operates an air monitoring network. EPA 
approved the state's most recent Annual Air Monitoring Network Plan on 
November 25, 2019. In addition to having an adequate air monitoring 
network, MassDEP populates AQS with air quality monitoring data in a 
timely manner and provides EPA with prior notification when considering 
a change to its monitoring network or plan. EPA finds that MassDEP has 
met the infrastructure SIP requirements of section 110(a)(2)(B) with 
respect to the 2015 ozone NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet NSR requirements under PSD and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements. The evaluation of each state's 
submission addressing the infrastructure SIP requirements of section 
110(a)(2)(C)

[[Page 14580]]

covers the following: (i) Enforcement of SIP measures; (ii) PSD program 
for major sources and major modifications; and, (iii) permitting 
program for minor sources and minor modifications.
i. Sub-Element 1: Enforcement of SIP Measures
    MassDEP staffs and implements an enforcement program pursuant to 
authorities provided within the following laws: M.G.L. c. 111, section 
2C, Pollution violations; orders of department of environmental 
protection, which authorizes MassDEP to issue orders enforcing 
pollution control regulations generally; M.G.L. c. 111, sections 142A 
through 142O, Massachusetts Air Pollution Control Laws, which, among 
other things, more specifically authorize MassDEP to adopt regulations 
to control air pollution, enforce such regulations, and issue penalties 
for non-compliance; and, M.G.L. c. 21A, section 16, Civil 
Administrative Penalties, which provides additional authorizations for 
MassDEP to assess penalties for failure to comply with the 
Commonwealth's air pollution control laws and regulations. Moreover, 
SIP-approved regulations, such as 310 CMR 7.02(12)(e) and (f), provide 
a program for the enforcement of SIP measures. Accordingly, EPA finds 
that Massachusetts has met this requirement of section 110(a)(2)(C) 
with respect to the 2015 ozone NAAQS.
ii. Sub-Element 2: Preconstruction Program for Major Sources and Major 
Modifications
    Sub-element 2 of section 110(a)(2)(C) requires that states provide 
for the regulation of modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved, including a 
program to meet PSD and NNSR requirements. PSD applies to new major 
sources or modifications made to major sources for pollutants where the 
area in which the source is located is in attainment of, or 
unclassifiable regarding, the relevant NAAQS, and NNSR requires similar 
actions in nonattainment areas.
    As MassDEP recognizes in the submittal, Massachusetts does not have 
an approved state PSD program and has long been subject to a Federal 
Implementation Plan (FIP). The Commonwealth implements and enforces the 
federal PSD program through a delegation agreement. See 76 FR 31241 
(May 31, 2011). Accordingly, EPA is issuing a finding of failure to 
submit with respect to the PSD-related requirements of this sub-element 
for the 2015 ozone NAAQS. This finding will not trigger any additional 
FIP obligation by the EPA, because the deficiency is addressed by the 
FIP already in place. Nor is the Commonwealth subject to mandatory 
sanctions solely as a result of this finding because the SIP submittal 
deficiencies are neither with respect to a sub-element that is required 
under part D nor in response to a SIP call under section 110(k)(5) of 
the Act.
iii. Sub-element 3: Preconstruction Permitting for Minor Sources and 
Minor Modifications
    To address the pre-construction regulation of the modification and 
construction of minor stationary sources and minor modifications of 
major stationary sources, an infrastructure SIP submission should 
identify the existing EPA-approved SIP provisions and/or include new 
provisions that govern the minor source pre-construction program that 
regulates emissions of the relevant NAAQS pollutants. EPA's most recent 
approval of the Commonwealth's minor NSR program occurred on April 5, 
1995. 60 FR 17226. Since this date, Massachusetts and EPA have relied 
on the existing minor NSR program to ensure that new and modified 
sources not captured by the major NSR permitting programs do not 
interfere with attainment and maintenance of the 2015 ozone NAAQS.
    In summary, EPA finds that Massachusetts meets the enforcement-
related aspects of Section 110(a)(2)(C) discussed above within sub-
element 1, and the preconstruction permitting requirements for minor 
sources discussed in sub-element 3, for the 2015 ozone NAAQS. As to 
preconstruction PSD permitting of major sources and major 
modifications, EPA finds that the Commonwealth has failed to make the 
required submission.

D. Section 110(a)(2)(D)--Interstate Transport

    This section contains a comprehensive set of air quality management 
elements pertaining to the transport of air pollution with which States 
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Significant contribution to nonattainment, and 
interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-
element 3, Visibility protection; Sub-element 4, Interstate pollution 
abatement; and Sub-element 5, International pollution abatement. Sub-
elements 1 through 3 above are found under section 110(a)(2)(D)(i) of 
the Act, and these items are further categorized into the four prongs 
discussed below, two of which are found within sub-element 1. Sub-
elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act 
and include provisions insuring compliance with sections 115 and 126 of 
the Act relating to interstate and international pollution abatement.
i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to 
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS 
(Prong 2)
    Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit 
any emissions activity in the State that will contribute significantly 
to nonattainment or interfere with maintenance of the NAAQS in any 
downwind State. EPA commonly refers to these requirements as prong 1 
(significant contribution to nonattainment) and prong 2 (interference 
with maintenance), or jointly as the ``Good Neighbor'' or ``transport'' 
provisions of the CAA. EPA has previously approved Massachusetts' Good 
Neighbor SIP for the 2015 ozone NAAQS.\4\ 85 FR 5772 (January 31, 
2020). Therefore, Massachusetts has already met this requirement for 
the 2015 ozone NAAQS.
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    \4\ EPA is not reopening for comment determinations made in that 
action.
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ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or 
other type of emissions activity in one State from interfering with 
measures that are required in any other State's SIP under Part C of the 
CAA. One way for a State to meet this requirement, specifically with 
respect to in-State sources and pollutants that are subject to PSD 
permitting, is through a comprehensive PSD permitting program that 
applies to all regulated NSR pollutants and that satisfies the 
requirements of EPA's PSD implementation rules. For in-State sources 
not subject to PSD, this requirement can be satisfied through a fully-
approved nonattainment new source review (NNSR) program with respect to 
any previous NAAQS.
    As discussed under element C above and as noted in the submittal, 
Massachusetts has long been subject to a PSD FIP and has implemented 
and enforced the federal PSD program through a delegation agreement 
with EPA. Accordingly, EPA makes a finding of failure to submit with 
respect to the PSD requirement of this sub-element for the 2015 ozone 
NAAQS. This finding does not trigger any sanctions or additional FIP 
obligation for the same

[[Page 14581]]

reasons discussed under element C above.
    Under prong 3 of 110(a)(2)(D)(i)(II), 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 generally 
considers a fully approved NNSR program adequate for purposes of 
meeting this requirement of prong 3 with respect to in-state sources 
and pollutants not subject to PSD. See 2013 guidance. EPA last approved 
the Commonwealth's NNSR program on May 29, 2019. 84 FR 24719. 
Accordingly, we approve Massachusetts' submittal for the 2015 ozone 
NAAQS for the NNSR aspect of prong 3.
iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    Regarding the applicable requirements for visibility protection of 
section 110(a)(2)(D)(i)(II), States are subject to visibility and 
regional haze program requirements under part C of the CAA (which 
includes sections 169A and 169B). The 2013 guidance explains that these 
requirements can be satisfied by an approved SIP addressing reasonably 
attributable visibility impairment, if required, or an approved SIP 
addressing regional haze. A fully approved regional haze SIP meeting 
the requirements of 40 CFR 51.308 will ensure that emissions from 
sources under an air agency's jurisdiction are not interfering with 
measures required to be included in other air agencies' plans to 
protect visibility. On September 19, 2013, EPA approved Massachusetts' 
Regional Haze SIP as meeting the requirements of 40 CFR 51.308. See 78 
FR 57487. Accordingly, EPA finds that Massachusetts meets the 
visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2015 
ozone NAAQS.
iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution 
Abatement
    This sub-element requires that each SIP contain provisions 
requiring compliance with requirements of section 126 relating to 
interstate pollution abatement. Section 126(a) requires new or modified 
sources to notify neighboring States of potential impacts from the 
source. The statute does not specify the method by which the source 
should provide the notification. States with SIP-approved PSD programs 
must have a provision requiring such notification by new or modified 
sources.
    As mentioned elsewhere in this document, Massachusetts does not 
have a SIP-approved PSD program and is currently subject to a PSD FIP, 
which includes a requirement to notify any State whose lands may be 
affected by emissions from the Massachusetts PSD source. See 40 CFR 
52.21(q), 124.10(c)(1)(vii); see also id. section 52.1165. While we 
find that the Commonwealth failed to make a submittal for the 2015 
ozone NAAQS for section 110(a)(2)(D)(ii) with respect to the PSD-
related notice of interstate pollution, such finding does not trigger 
any additional FIP obligation by the EPA under section 110(c)(1), 
because the federal PSD rules address the notification issue. Nor does 
the finding trigger any sanctions. Finally, Massachusetts has no 
obligations under any other provision of section 126.
v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    This sub-element also requires each SIP to contain provisions 
requiring compliance with the applicable requirements of section 115 
relating to international pollution abatement. Section 115 authorizes 
the Administrator to require a state to revise its SIP to alleviate 
international transport into another country where the Administrator 
has made a finding with respect to emissions of the particular NAAQS 
pollutant and its precursors, if applicable. There are no final 
findings under section 115 against Massachusetts for the 2015 ozone 
NAAQS. Therefore, EPA finds that Massachusetts meets the applicable 
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to 
section 115 of the CAA (international pollution abatement) for the 2015 
ozone NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    Section 110(a)(2)(E)(i) requires each SIP to provide assurances 
that the State will have adequate personnel, funding, and legal 
authority under state law to carry out its SIP, and related issues. 
Additionally, Section 110(a)(2)(E)(ii) requires each state to comply 
with the requirements with respect to state boards under section 128. 
Finally, section 110(a)(2)(E)(iii) requires that, where a state relies 
upon local or regional governments or agencies for the implementation 
of its SIP provisions, the state retain responsibility for ensuring 
adequate implementation of SIP obligations with respect to relevant 
NAAQS. This last sub-element, however, is not applicable to this 
action, because Massachusetts does not rely upon local or regional 
governments or agencies for the implementation of its SIP provisions.
i. Sub-Element 1: Adequate Personnel, Funding, and Legal Authority 
Under State Law To Carry Out Its SIP, and Related Issues
    Massachusetts, through its infrastructure SIP submittals, has 
documented that its air agency has the requisite authority and 
resources to carry out its SIP obligations. Massachusetts General Laws 
c. 111, sections 142A to 142N, provide MassDEP with the authority to 
carry out the state's implementation plan. The Massachusetts SIP, as 
originally submitted in 1971 and subsequently amended, provides 
descriptions of the staffing and funding necessary to carry out the 
plan. In the submittals, MassDEP provides assurances that it has 
adequate personnel and funding to carry out the SIP during the five 
years following infrastructure SIP submission and in future years. 
Additionally, the Commonwealth receives CAA section 103 and 105 grant 
funds through Performance Partnership agreements and provides state 
matching funds, which together enable Massachusetts to carry out its 
SIP requirements. EPA finds that Massachusetts meets the infrastructure 
SIP requirements of section 110(a)(2)(E)(i) for the 2015 ozone NAAQS.
ii. Sub-Element 2: State Board Requirements Under Section 128 of the 
CAA
    Section 110(a)(2)(E) also requires each SIP to contain provisions 
that comply with the state board requirements of section 128(a) of the 
CAA. That provision contains two explicit requirements: (1) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (2) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed.
    Massachusetts does not have a state board that approves permits or 
enforcement orders under the CAA. Instead, permits and enforcement 
orders are approved by the Commissioner of MassDEP. Thus, Massachusetts 
is not subject to the requirements of paragraph (a)(1) of section 128. 
As to the conflict of interest provisions of section 128(a)(2), 
Massachusetts has cited to

[[Page 14582]]

M.G.L. c. 268A of the Commonwealth's Conflict of Interest law in its 
infrastructure SIP submittal for the 2015 ozone NAAQS. EPA previously 
approved M.G.L. c. 268A, sections 6 and 6A, into the SIP in 
satisfaction of this infrastructure SIP requirement. 81 FR 93627 
(December 21, 2016). Pursuant to these state provisions, state 
employees in Massachusetts, including the head of an executive agency 
with authority to approve air permits or enforcement orders, are 
required to disclose potential conflicts of interest to, among others, 
the state ethics commission. EPA finds that the Massachusetts SIP 
satisfies the requirements of section 110(a)(2)(E)(ii) of the Clean Air 
Act for the 2015 ozone NAAQS.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require 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. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    Pursuant to M.G.L. c. 111, sections 142A to 142D, MassDEP has the 
necessary authority to maintain and operate air monitoring stations and 
coordinates with EPA in determining the types and locations of ambient 
air monitors across the state. The Commonwealth uses this authority to 
require the installation, maintenance, and replacement of emissions 
monitoring equipment by, and to collect information on air emissions 
from, sources in the state. Additionally, Massachusetts statutes and 
regulations provide that emissions data shall be available for public 
inspection. See, e.g., M.G.L. c. 21I, section 20(K), M.G.L. c. 111, 
section 142B; 310 CMR section 3.33(5), 7.12(4)(b); 7.14(1). The 
following SIP-approved regulations enable the accomplishment of the 
Commonwealth's emissions recording, reporting, and correlating 
objectives:
    1. 310 CMR 7.12, Source Registration.
    2. 310 CMR 7.13, Stack Testing.
    3. 310 CMR 7.14, Monitoring Devices and Reports.
    EPA recognizes that Massachusetts routinely collects information on 
air emissions from its industrial sources and makes this information 
available to the public. EPA therefore finds that the Commonwealth 
meets the infrastructure SIP requirements of section 110(a)(2)(F) with 
respect to the 2015 ozone NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for authority analogous 
to that provided in section 303 of the CAA, and adequate contingency 
plans to implement such authority. Section 303 of the CAA provides 
authority to the EPA Administrator to seek a court order to restrain 
any source from causing or contributing to emissions that present an 
``imminent and substantial endangerment to public health or welfare, or 
the environment.'' Section 303 further authorizes the Administrator to 
issue ``such orders as may be necessary to protect public health or 
welfare or the environment'' in the event that ``it is not practicable 
to assure prompt protection . . . by commencement of such civil 
action.''
    We find that the Commonwealth's ISIP submittal demonstrates that a 
combination of state statutes and regulations provide for authority 
comparable to that in section 303. Massachusetts' submittal cites 
M.G.L. C. 111, section 2B, Air Pollution Emergencies, which authorizes 
the Commissioner of the MassDEP to ``declare an air pollution 
emergency'' if the Commissioner ``determines that the condition or 
impending condition of the atmosphere in the Commonwealth . . . 
constitutes a present or reasonably imminent danger to health.'' During 
such an air pollution emergency, the Commissioner is authorized 
pursuant to section 2B, to ``take whatever action is necessary to 
maintain and protect the public health, including but not limited to . 
. . prohibiting, restricting and conditioning emissions of dangerous or 
potentially dangerous air contaminants from whatever source derived . . 
.'' Additionally, sections 2B and 2C authorize the Commissioner to 
issue emergency orders.
    Moreover, M.G.L. c. 21A, section 8 provides that, ``[i]n regulating 
. . . any pollution prevention, control or abatement plan [or] strategy 
. . . through any . . . departmental action affecting or prohibiting 
the emission . . . of any hazardous substance to the environment . . . 
the department may consider the potential effects of such plans [and] 
strategies . . . on public health and safety and the environment . . . 
and said department shall act to minimize and prevent damage or threat 
of damage to the environment.''
    These duties are implemented, in part, under MassDEP regulations at 
310 CMR 8.00, Prevention and Abatement of Air Pollution Episodes and 
Air Pollution Incident Emergencies, the most recent revisions to which 
EPA approved into the SIP on March 4, 2019. 84 FR 7299. These 
regulations establish levels that would constitute significant harm or 
imminent and substantial endangerment to health for ambient 
concentrations of pollutants subject to a NAAQS, consistent with the 
significant harm levels and procedures for state emergency episode 
plans established by EPA in 40 CFR part 51.150 and 51.151. Finally, 
M.G.L. c. 111, section 2B authorizes the state to seek injunctive 
relief in the superior court for violation of an emergency order issued 
by the MassDEP Commissioner. While no single Massachusetts statute or 
regulation mirrors the authorities of CAA section 303, we find that the 
combination of state statutes and regulations discussed herein provide 
for comparable authority to immediately bring suit to restrain, and 
issue orders against, any person causing or contributing to air 
pollution that presents an imminent and substantial endangerment to 
public health or welfare, or the environment.
    Section 110(a)(2)(G) also requires that, for any NAAQS, States have 
an approved contingency plan for any Air Quality Control Region (AQCR) 
within the state that is classified as Priority I, IA, or II. See 40 
CFR 51.152(c). Two AQCRs in Massachusetts are classified as Priority I 
for ozone, with the remaining AQCRs classified as Priority III for 
ozone. Id. 52.1121. As noted above, EPA approved 310 CMR 8.00 into the 
SIP to satisfy the contingency plan requirements of CAA section 
110(a)(2)(G) for a previous infrastructure SIP submittal for the 2008 
ozone NAAQS. 84 FR 7299. This state regulation satisfies the applicable 
requirements for contingency plans at 40 CFR part 51, subpart H (40 CFR 
51.150 through 51.153) (Prevention of Air Pollution Emergency 
Episodes). For the above reasons, EPA finds that Massachusetts meets 
the infrastructure SIP requirements of CAA section 110(a)(2)(G) for the 
2015 ozone NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires that a state's SIP provide for revision as 
may be necessary to take account of changes in the NAAQS or 
availability of improved methods for attaining the NAAQS and whenever 
the EPA finds that the SIP is

[[Page 14583]]

substantially inadequate. Massachusetts General Laws c. 111, section 
142D provides in relevant part that, ``From time to time the department 
shall review the ambient air quality standards and plans for 
implementation, maintenance and attainment of such standards adopted 
pursuant to this section and, after public hearings, shall amend such 
standards and implementation plan so as to minimize the economic cost 
of such standards and plan for implementation, provided, however, that 
such standards shall not be less than the minimum federal standards.'' 
This authorizing statute gives MassDEP the power to revise the 
Massachusetts SIP from time to time as may be necessary to take account 
of changes in the NAAQS or availability of improved methods for 
attaining the NAAQS and whenever the EPA finds that the SIP is 
substantially inadequate. Accordingly, EPA finds that Massachusetts 
meets the infrastructure SIP requirements of CAA section 110(a)(2)(H) 
for the 2015 ozone NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas. EPA has 
determined that section 110(a)(2)(I) is not applicable to the 
infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; PSD; Visibility Protection

    Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the 
applicable requirements of section 121 of this title (relating to 
consultation), section 127 of this title (relating to public 
notification), and part C of this subchapter (relating to PSD of air 
quality and visibility protection).'' The evaluation of the submission 
from Massachusetts with respect to these requirements is described 
below.
i. Sub-Element 1: Consultation With Government Officials
    Section 121 of the Act requires states to provide a process for 
consultation with local governments and Federal Land Managers (FLMs) in 
carrying out NAAQS implementation requirements.
    Pursuant to EPA-approved Massachusetts regulations at 310 CMR 
7.02(12)(g)(2), MassDEP notifies the public ``by advertisement in a 
newspaper having wide circulation'' in the area of the particular 
facility of the opportunity to comment on certain proposed permitting 
actions and sends ``a copy of the notice of public comment to the 
applicant, the EPA, and officials and agencies having jurisdiction over 
the community in which the facility is located, including local air 
pollution control agencies, chief executives of said community, and any 
regional land use planning agency.'' In addition, Massachusetts 
Executive Order 145, ``Consultation with Cities & Towns on 
Administrative Mandates,'' which EPA approved into the SIP on June 24, 
2019, establishes a process for agencies of the Commonwealth to consult 
with local governments. 84 FR 29380. In its submittal, Massachusetts 
lists additional authorities and processes on which it relies to 
provide for consultation with local governments when carrying out 
requirements of the CAA. MassDEP notes that, with respect to the 
requirement to consult with FLMs, it relies in part on the FLM 
consultation requirement contained in the PSD FIP to meet this 
obligation. As previously mentioned, Massachusetts does not have an 
approved state PSD program, but rather is subject to a PSD FIP, which, 
as MassDEP notes, includes a provision requiring consultation with 
FLMs. See 40 CFR 52.21(p). Consequently, with respect to the 2015 ozone 
NAAQS, EPA finds that Massachusetts has met the consultation with local 
governments requirement of this portion of section 110(a)(2)(J) but 
issues a finding of failure to submit with respect to the FLM 
consultation requirement for PSD permitting. Because the federal PSD 
program, which Massachusetts implements and enforces, addresses this 
FLM consultation requirement, a finding of failure to submit does not 
result in sanctions or new FIP obligations.
ii. Sub-Element 2: Public Notification
    Section 127 of the Act requires states to: Notify the public if 
NAAQS are exceeded in an area; advise the public of health hazards 
associated with exceedances; and enhance public awareness of measures 
that can be taken to prevent exceedances and of ways in which the 
public can participate in regulatory and other efforts to improve air 
quality.
    Massachusetts regulations specify criteria for air pollution 
episodes and incidents and provide for notice to the public via news 
media and other means of communication. See 310 CMR 8.00. The 
Commonwealth also provides a daily air quality forecast to inform the 
public about concentrations of fine particles and, during the ozone 
season, provides similar information for ozone. Real time air quality 
data for NAAQS pollutants are also available on the MassDEP's website, 
as are information about health hazards associated with NAAQS 
pollutants and ways in which the public can participate in regulatory 
efforts related to air quality. The Commonwealth is also an active 
partner in EPA's AirNow and EnviroFlash air quality alert programs, 
which notify the public of air quality levels through EPA's website, 
alerts, and press releases. In light of the above, we find that 
Massachusetts meets the infrastructure SIP requirements of this 
requirement of section 110(a)(2)(J) with respect to the 2015 ozone 
NAAQS.
iii. Sub-Element 3: PSD
    Pursuant to Section 110(a)(2)(J), States must also meet applicable 
requirements of Part C of the Act (relating to PSD). The Commonwealth's 
PSD program in the context of infrastructure SIPs has already been 
discussed in the paragraphs addressing sections 110(a)(2)(C), 
(D)(i)(II), and (D)(ii), and our actions for those sections are 
consistent with the proposed action for this portion of section 
110(a)(2)(J). Specifically, we are making a finding of failure to 
submit with respect to the PSD sub-element of section 110(a)(2)(J) for 
the 2015 ozone NAAQS and note that such a finding does not result in 
any sanctions or new FIP obligations.
iv. Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIP for the 2015 
Ozone NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    Section 110(a)(2)(K) of the Act requires that a SIP provide for the 
performance of such air-quality modeling as the EPA Administrator may 
prescribe to predict the effect on ambient air quality of any emissions 
of any air pollutant for which EPA has established a NAAQS, and the 
submission, upon request, of data

[[Page 14584]]

related to such air quality modeling. EPA has published modeling 
guidelines at 40 CFR part 51, Appendix W, for predicting the effects of 
emissions of criteria pollutants on ambient air quality. EPA recommends 
in the 2013 guidance that, to meet section 110(a)(2)(K), a State submit 
or reference the statutory or regulatory provisions that provide the 
air agency with the authority to conduct such air quality modeling and 
to provide such modeling data to EPA upon request.
    Massachusetts state law implicitly authorizes MassDEP to perform 
air quality modeling and provide such modeling data to EPA upon 
request. See M.G.L. c. 21A, section 2(2), (10), (22); M.G.L. c. 111, 
sections 142B-142D. In addition, 310 CMR 7.02 authorizes MassDEP to 
require air dispersion modeling analyses from certain sources and 
permit applicants. Massachusetts implements and enforces the federal 
PSD program through a delegation agreement (included in the docket for 
today's action) that requires MassDEP to follow the applicable 
procedures in EPA's permitting regulations at 40 CFR 52.21, as amended 
from time to time. The Commonwealth also collaborates with the Ozone 
Transport Commission (OTC), the Mid-Atlantic Regional Air Management 
Association, and EPA to perform large scale urban airshed modeling. EPA 
finds that Massachusetts meets the infrastructure SIP requirements of 
section 110(a)(2)(K) for the 2015 ozone NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the costs of reviewing, approving, 
implementing, and enforcing a permit. Massachusetts implements and 
operates the Title V permit program, which EPA approved on September 
28, 2001. See 66 FR 49541. To gain approval, Massachusetts 
demonstrated, among other things, that it collects fees sufficient to 
cover the costs of reviewing and acting on Title V permit applications 
and implementing and enforcing the permits. See 61 FR 3827 (February 2, 
1996); 40 CFR 70.9. Section 18 of M.G.L. c. 21A authorizes MassDEP to 
promulgate regulations establishing fees. To collect fees from sources 
of air emissions, the MassDEP promulgated and implements 310 CMR 4.00, 
Timely Action Schedule and Fee Provisions. These regulations set permit 
application and compliance fees for existing major sources and for new 
and modified major sources. EPA proposes that the Commonwealth meets 
the infrastructure SIP requirements of section 110(a)(2)(L) for the 
2015 ozone NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    To satisfy element M, states must provide for consultation with, 
and allow participation by, local political subdivisions affected by 
the SIP. Pursuant to M.G.L. c. 111, section 142D, MassDEP must hold 
public hearings prior to revising its SIP. In addition, M.G.L. c. 30A, 
Massachusetts Administrative Procedures Act, requires MassDEP to 
provide notice and the opportunity for public comment and hearing prior 
to adoption of any regulation. Moreover, the Commonwealth's Executive 
Order No. 145 (discussed earlier in the context of element J) requires 
state agencies, including MassDEP, to provide notice to the Local 
Government Advisory Committee to solicit input on the impact of 
proposed regulations and other administrative actions on local 
governments. MassDEP's submittal also notes that the agency consults 
with local political subdivisions though a state ``SIP Steering 
Committee'' and conducts stakeholder outreach with local entities as a 
matter of policy when revising the SIP or adopting air regulations. 
Therefore, EPA proposes that Massachusetts meets the infrastructure SIP 
requirements of section 110(a)(2)(M) with respect to the 2015 ozone 
NAAQS.

III. Final Action

    EPA is approving most portions of the Massachusetts infrastructure 
SIP requirements for the 2015 ozone NAAQS. We are also issuing a 
finding of failure to submit pertaining to the various aspects of 
infrastructure SIPS relating to the prevention of significant 
deterioration (PSD). The Commonwealth has long been subject to a 
Federal Implementation Plan (FIP) regarding PSD, thus the finding of 
failure to submit will result in no mandatory sanctions or further FIP 
requirements. This rulemaking also does not include any action on the 
interstate transport portion of the Commonwealth's submittal. This 
action is being taken in accordance with the Clean Air Act.
    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 the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective May 12, 
2020 without further notice unless the Agency receives relevant adverse 
comments by April 13, 2020.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on May 12, 2020 and no further action will be 
taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

IV. 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, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this 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 action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not 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);

[[Page 14585]]

     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).
    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 action 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 May 12, 2020. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of this issue of the Federal Register, rather than file 
an immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 11, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart W--Massachusetts

0
2. In Sec.  52.1120, in paragraph (e), amend the table by adding an 
entry for ``Infrastructure SIP for 2015 Ozone NAAQS'' at the end of the 
table to read as follows:


Sec.  52.1120   Identification of plan.

* * * * *
    (e) * * *

                                                              Massachusetts Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP        Applicable geographic or    State submittal date/ effective
             provision                    nonattainment area                    date                EPA approved date \3\           Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Infrastructure SIP submittal for     Statewide..................  September 27, 2018..............  March 13, 2020,        Approved with respect to
 2015 Ozone NAAQS.                                                                                   [Insert Federal        requirements for CAA section
                                                                                                     Register citation].    110(a) (2)(A), (B), (C),
                                                                                                                            (D), (E), (F), (G), (H),
                                                                                                                            (J), (K), (L), and (M) with
                                                                                                                            the exception of the PSD-
                                                                                                                            related requirements of (C),
                                                                                                                            (D), and (J).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the
  particular provision.

[FR Doc. 2020-05350 Filed 3-12-20; 8:45 am]
BILLING CODE 6560-50-P


