Outer Continental Shelf Air Regulations Consistency Update for Massachusetts

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving an update to a portion of the Outer Continental Shelf (“OCS”) Air Regulations. Requirements applying to OCS sources located within 25 miles of States' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (“COA”), as mandated by the Clean Air Act (“the Act”). The portion of the OCS air regulations that is being updated pertains to the requirements for OCS sources in the Commonwealth of Massachusetts. The intended effect of approving the OCS requirements for the Commonwealth of Massachusetts is to regulate emissions from OCS sources in accordance with the requirements onshore. The change to the existing requirements discussed below is incorporated by reference into the Code of Federal Regulations and is listed in the appendix to the OCS air regulations.

DATES:

This direct final rule will be effective October 25, 2010, unless EPA receives adverse comments by September 23, 2010. 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. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of October 25, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R01-OAR-2010-0442 by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: mcdonnell.ida@epa.gov.

3. Fax: (617) 918-0653.

4. Mail: “Docket Identification Number EPA-R01-OAR-2010-0442”, Ida McDonnell, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics and Indoor Air Unit, 5 Post Office Square—Suite 100, (Mail Code OEP05-2), Boston, MA 02109-3912.

5. Hand Delivery or Courier. Deliver your comments to: Ida McDonnell, Manager, Air Permits, Toxics and Indoor Air Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05-2), Boston, MA 02109-3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-2010-0442. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov , or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 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 to 4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Ida E. McDonnell, Air Permits, Toxics and Indoor Air Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05-2), Boston, MA 02109-3912, telephone number (617) 918-1653, fax number (617) 918-0653, e-mail mcdonnell.ida@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

I. Background and Purpose

II. EPA's Evaluation

III. EPA's Action

IV. Statutory and Executive Order Reviews

I. Background and Purpose

On September 4, 1992, EPA promulgated 40 CFR part 55, which established requirements to control air pollution from Outer Continental Shelf (OCS) sources in order to attain and maintain federal and state ambient air quality standards and to comply with the provisions of part C of title I of the Act. Part 55 applies to all OCS sources offshore of the States except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the Act requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the corresponding onshore area (COA). Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

Pursuant to § 55.12 of the OCS rule, consistency reviews will occur (1) at least annually; (2) upon receipt of a Notice of Intent under § 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in part 55. This proposed action is being taken as a result of EPA's annual review of the Commonwealth of Massachusetts regulations.

Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (“SIP”) guidance or certain requirements of the Act.

Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

On September 17, 2008 (73 FR 53718), EPA finalized a consistency update of the OCS regulations pertaining to the requirements of the OCS sources in the Commonwealth of Massachusetts. After EPA's September 17, 2008 updates to 40 CFR part 55, the Commonwealth of Massachusetts adopted regulation changes to 310 Code of Massachusetts Regulations (CMR) 4.00: Timely Action Schedule and Fee Provisions, 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts, 310 CMR 7.00: Air Pollution Control, and 310 CMR 8:00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies.

II. EPA's Evaluation

In updating 40 CFR part 55, EPA reviewed the state rules for inclusion in part 55 to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules, and requirements that regulate toxics which are not related to the attainment and maintenance of federal and state ambient air quality standards.

III. EPA's Action

EPA is taking direct final action to incorporate applicable provisions of 310 Code of Massachusetts Regulations (CMR) 4.00: Timely Action Schedule and Fee Provisions, 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts, 310 CMR 7.00: Air Pollution Control, and 310 CMR 8:00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies, as amended through May 20, 2010.

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 update the OCS regulations should relevant adverse comments be filed. This rule will be effective October 25, 2010 without further notice unless the Agency receives relevant adverse comments by September 23, 2010.

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 October 25, 2010 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 establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by EPA. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, nor does it impose substantial direct compliance costs on tribal governments, nor preempt tribal law.

Under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.07 was published in the Federal Register on February 17, 2009 (74 FR 7432). The approval expires January 31, 2012. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response using the definition of burden provided in 44 U.S.C. 3502(2).

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 October 25, 2010. 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. 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 55

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Continental Shelf
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Title 40, chapter I of the Code of Federal Regulations, is amended as follows:

PART 55—[AMENDED]

1. The authority citation for part 55 continues to read as follows:

Authority: Section 328 of the Act (42 U.S.C. 7401, et seq.) as amended by Public Law 101-549.

2. Section 55.14 is amended by revising paragraphs (e) introductory text and (e)(11)(i)(A) to read as follows:

3. Appendix A to Part 55 is amended under “Massachusetts” by revising paragraph (a)(1) to read as follows:

Appendix A to Part 55—Listing of State and Local Requirements Incorporated by Reference Into Part 55, By State

Massachusetts

(a) * * *

(1) The following Commonwealth of Massachusetts requirements are applicable to OCS Sources, May 20, 2010, Commonwealth of Massachusetts—Department of Environmental Protection.

The following sections of 310 CMR 4.00, 310 CMR 6.00, 310 CMR 7.00 and 310 CMR 8.00:

310 CMR 4.00: Timely Action Schedule and Fee Provisions

Section 4.01: Purpose, Authority and General Provisions (Effective 9/4/2009)

Section 4.02: Definitions (Effective 9/4/2009)

Section 4.03: Annual Compliance Assurance Fee (Effective 9/4/2009)

Section 4.04: Permit Application Schedules and Fee (Effective 9/4/2009)

Section 4.10: Appendix: Schedules for Timely Action and Permit Application Fees (Effective 9/4/2009)

310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts

Section 6.01: Definitions (Effective 4/2/2010)

Section 6.02: Scope (Effective 4/2/2010)

Section 6.03: Reference Conditions (Effective 4/2/2010)

Section 6.04: Standards (Effective 4/2/2010)

310 CMR 7.00: Air Pollution Control

Section 7.00: Statutory Authority; Legend; Preamble; Definitions (Effective 4/2/2010)

Section 7.01: General Regulations to Prevent Air Pollution (Effective 4/2/2010)

Section 7.02: U Plan Approval and Emission Limitations (Effective 4/2/2010)

Section 7.03: U Plan Approval Exemptions: Construction Requirements (Effective 4/2/2010)

Section 7.04: U Fossil Fuel Utilization Facilities (Effective 4/2/2010)

Section 7.05: U Fuels All Districts (Effective 4/2/2010)

Section 7.06: U Visible Emissions (Effective 4/2/2010)

Section 7.07: U Open Burning (Effective 4/2/2010)

Section 7.08: U Incinerators (Effective 4/2/2010)

Section 7.09: U Dust, Odor, Construction and Demolition (Effective 4/2/2010)

Section 7.11: U Transportation Media (Effective 4/2/2010)

Section 7.12: U Source Registration (Effective 4/2/2010)

Section 7.13: U Stack Testing (Effective 4/2/2010)

Section 7.14: U Monitoring Devices and Reports (Effective 4/2/2010)

Section 7.15: U Asbestos (Effective 4/2/2010)

Section 7.18: U Volatile and Halogenated Organic Compounds (Effective 4/2/2010)

Section 7.19: U Reasonably Available Control Technology (RACT) for Sources of Oxides of Nitrogen (NO_X) (Effective 4/2/2010)

Section 7.21: Sulfur Dioxide Emissions Limitations (Effective 4/2/2010)

Section 7.22: Sulfur Dioxide Emissions Reductions for the Purpose of Reducing Acid Rain (Effective 4/2/2010)

Section 7.24: U Organic Material Storage and Distribution (Effective 4/2/2010)

Section 7.25: U Best Available Controls for Consumer and Commercial Products (Effective 4/2/2010)

Section 7.26: Industry Performance Standards (Effective 4/2/2010)

Section 7.32: Massachusetts Clean Air Interstate Rule (Mass CAIR) (Effective 4/2/2010)

Section 7.60: U Severability (Effective 4/2/2010)

Section 7.70: Massachusetts CO2 Budget Trading Program (Effective 4/2/2010)

Section 7.71: Reporting of Greenhouse Gas Emissions (Effective 4/2/2010)

Section 7.00: Appendix A (Effective 4/2/2010)

Section 7.00: Appendix B (Effective 4/2/2010)

Section 7.00: Appendix C (Effective 4/2/2010)

310 CMR 8.00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies

Section 8.01: Introduction (Effective 4/2/2010)

Section 8.02: Definitions (Effective 4/2/2010)

Section 8.03: Air Pollution Episode Criteria (Effective 4/2/2010)

Section 8.04: Air Pollution Episode Potential Advisories (Effective 4/2/2010)

Section 8.05: Declaration of Air Pollution Episodes and Incidents (Effective 4/2/2010)

Section 8.06: Termination of Air Pollution Episodes and Incident Emergencies (Effective 4/2/2010)

Section 8.07: Emission Reductions Strategies (Effective 4/2/2010)

Section 8.08: Emission Reduction Plans (Effective 4/2/2010)

Section 8.15: Air Pollution Incident Emergency (Effective 4/2/2010)

Section 8.30: Severability (Effective 4/2/2010)