Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Regional Haze State Implementation Plan for the Second Implementation Period

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving the regional haze State Implementation Plan (SIP) revision submitted by Massachusetts on July 22, 2021, and supplemented on June 15, 2022, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule for the program's second implementation period. Massachusetts' SIP submission addresses the requirement that states must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. The SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. The EPA is taking this action pursuant to sections 110 and 169A of the Clean Air Act.

DATES:

This rule is effective on August 7, 2024.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2023-0185. All documents in the docket are listed on the https://www.regulations.gov website. 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 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 and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT:

Eric Rackauskas, Air Quality Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 5-MI), 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. Response to Comments

III. Final Action

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background and Purpose

On July 22, 2021, and supplemented on June 15, 2022, the Massachusetts Department of Environmental Protection (MassDEP) submitted a revision to its SIP to address regional haze for the second implementation period. MassDEP made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308.

On January 10, 2024, the EPA published a notice of proposed rulemaking (NPRM) in which the EPA proposed to approve Massachusetts' July 22, 2021 (as supplemented on June 15, 2022), SIP submission as satisfying the regional haze requirements for the second implementation period contained in the CAA and 40 CFR 51.308. The EPA is now determining that the Massachusetts regional haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements and thus approves Massachusetts' submission into its SIP.

Other specific requirements of the Massachusetts submittal and the rationale for the EPA's proposed action are explained in the NPRM and will not be restated here.

II. Response to Comments

In response to the NPRM, the EPA received a comment letter signed by the National Parks Conservation Association, Sierra Club, Appalachian Mountain Club, and the Coalition to Protect America's National Parks (collectively, the “Conservation Groups” or the “Groups”) and is providing responses to the comments raised in the letter. The Conservation Groups state in their comment letter that they “do not oppose EPA's proposal to approve Massachusetts' [Regional Haze] SIP Revision,” but rather “urge EPA to address the issues raised [in the comment letter] before finalizing” the approval. EPA also received a comment letter from the Mid-Atlantic/Northeast Visibility Union (MANEVU) in support of the proposed action. The specific comments may be viewed under Docket ID Number EPA-R01-OAR-2023-0185 on the https://www.regulations.gov website.

Comment: The Conservation Groups contend that MANEVU's visibility modeling and source selection method used an inappropriately high threshold. The Conservation Groups comment that the MANEVU threshold on which Massachusetts relied (3.0 Mm⁻¹) identified only two sources for a Four-Factor Analysis—Brayton Unit 4 and Canal Unit 1—and failed to select other significant sources, such as municipal waste combustors (MWCs), that have higher NO_X emissions. The Groups state that “Massachusetts should have used a lower threshold that captured a meaningful portion of in-state sources, such as a Q/d of 5 or lower, or an equivalent threshold.” As the 3.0 Mm⁻¹ threshold identified only two sources in the entire State for a four-factor analysis, the Groups claim that Massachusetts failed to conduct a rigorous and meaningful source selection process.

Response: As explained in the NPRM, the EPA does not necessarily agree that the 3.0 inverse megameters (Mm⁻¹ ) visibility impact is a reasonable threshold for source selection. The Regional Haze Rule recognizes that, due to the nature of regional haze visibility impairment, numerous and sometimes relatively small sources may need to be selected and evaluated for implementation of control measures to make reasonable progress. As EPA has explained, while states have discretion to choose any source selection threshold that is reasonable, “[a] state that relies on a visibility (or proxy for visibility impact) threshold to select sources for four-factor analysis should set the threshold at a level that captures a meaningful portion of the state's total contribution to visibility impairment to Class I areas.” In this case, the 3.0 Mm⁻¹ threshold used in MANEVU Ask 2 identified only two sources in Massachusetts (and only 22 across the entire MANEVU region), indicating that it may, in some cases, be unreasonably high. But these were not the only sources Massachusetts selected for analysis. As EPA noted in the NPRM, Massachusetts considered a large set of sources that burn fuel oil throughout much of the Commonwealth and considered the four statutory factors to develop sulfur in fuel regulations that control SO₂ emissions from them. Massachusetts also examined the emissions from, and the controls that apply to, its largest operating electric generating unit (EGU) and industrial/commercial/institutional boiler (ICI boiler) sources. In addition, Massachusetts examined emissions from peaking combustion turbines that have the potential to run on high electric demand days and identified existing stringent controls for such sources or equivalent alternative reductions achieved through retirements. Massachusetts also examined emissions from the municipal waste combustors (MWCs) identified by the National Park Service through the federal land manager (FLM) consultation process, and thus demonstrated that it relied upon previously EPA-approved NOx emission limits for both large and small MWCs in its long-term strategy, and reasonably explained its decision not to conduct four factor analyses at this time for the four MWCs included in the National Park Service's final list.

Furthermore, the Regional Haze Rule does not require states to consider controls for all sources, all source categories, or any or all sources in a particular source category. Rather, states have discretion to choose any source selection methodology or threshold that is reasonable, provided that the choices they make are reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's SIP submission must include “a description of the criteria it used to determine which sources or groups of sources it evaluated.” The technical basis for source selection must also be appropriately documented, as required by 40 CFR 51.308(f)(2)(iii). In this instance, EPA proposed to find that Massachusetts had demonstrated that the sources of SO₂ and NO_X within the Commonwealth that would be expected to contribute to visibility impairment have small emissions of those pollutants, are subject to stringent SIP-approved emission control measures, or both. Massachusetts' information and explanation indicate that the State in fact examined a reasonable set of sources, including sources captured by the other MANEVU Asks and sources flagged by the FLMs, and reasonably concluded that additional four-factor analyses were not necessary because the outcome would be that no further emission reductions would be reasonable for this planning period.

Comment: Relying on EPA Regional Haze guidance documents and legislative history of the Clean Air Act, the Conservation Groups state that Massachusetts improperly exempts from four factor analysis sources that are “Effectively Controlled” under other CAA programs. The Groups assert that EPA cannot excuse Massachusetts' failure to conduct four-factor analyses for sources “just because they are subject to controls under the [National Ambient Air Quality Standards] NAAQS program.” The comment states that “none of these existing measures are included in Massachusetts' long-term strategy or the SIP Revision's regulatory requirements, so neither Massachusetts nor EPA can rely on them to demonstrate that the State is making reasonable progress under the Regional Haze program.” The comment further states: “Massachusetts relied on existing air permits to exempt sources from complete four-factor analyses and adopting additional controls,” and “EPA cannot rely on control requirements or emission limits in state-issued permits that are not incorporated into the SIP Revision's long-term strategy or regulatory requirements to justify its proposed approval of Massachusetts' SIP Revision.”

Response: EPA's approval of Massachusetts' regional haze SIP is based on Massachusetts' satisfaction of the applicable regulatory requirements for the second planning period in 40 CFR 51.308(f), (g), and (i). These requirements include that states must evaluate and determine the emission reduction measures necessary to make reasonable progress by considering the four statutory factors and that the measures that are necessary for reasonable progress must be in the SIP. Massachusetts' submission includes four-factor analyses in response to Asks 2 (for NO_X and SO₂ emissions from Canal Unit 1) and 3 (for SO₂ emissions from sources across the Commonwealth). As EPA explained in the NPRM, in assessing its compliance with these Asks Massachusetts explicitly engaged with the statutory and regulatory requirement to determine measures necessary for reasonable progress based on the four factors. As a result, EPA proposed in the NPRM to find that Massachusetts' SIP submittal satisfies the requirement of 40 CFR 51.308(f)(2)(i) that a State determine the emission reduction measures that are necessary to make reasonable progress by considering the four factors. Further, Massachusetts requested that EPA approve the new permit conditions for Canal Unit 1 into the SIP. In addition, Massachusetts relied on several State air pollution control regulations already approved into the SIP, including 310 CMR 7.05(1), Fuels All Districts, Sulfur Content of Fuels, 310 CMR 7.08(2), Incinerators, Municipal Waste Combustors, and 310 CMR 7.19, Reasonably Available Control Technology (RACT) for Sources of Oxides of Nitrogen (NO _X ). Thus, EPA is appropriately finalizing its approval of Massachusetts' Regional Haze SIP revision based on EPA's determination that Massachusetts' SIP, including its long-term strategy, satisfy the requirements of 40 CFR 51.308(f)(2)(i), and additional four-factor analyses are not required.

Furthermore, contrary to commenters' arguments, Massachusetts' reliance on already effective controls in lieu of four-factor analyses for other sources in the Commonwealth is not inconsistent with the Clean Air Act legislative history or EPA Regional Haze Guidance. As the comment notes, EPA stated in the NPRM that Congress determined that “a visibility protection program is needed in addition to the [Clean Air Act]'s National Ambient Air Quality Standards [NAAQS] and Prevention of Significant Deterioration programs, as further emission reductions may be necessary to adequately protect visibility in Class I areas throughout the country.” Contrary to commenters' arguments, however, this statement does not say that Congress determined that every State must analyze the four factors for all sources, or for sources that are already well controlled. Indeed, EPA recognized that reasonable progress analyses will vary from State to State. Further, EPA specified that further emissions reductions “may be” necessary, which recognizes that additional reductions will not always be necessary, depending on the effectiveness of other existing programs. Accordingly, in both guidance documents, EPA recognized that a State may reasonably decide not to select sources that have recently installed effective controls. As EPA put it in the 2021 Clarifications Memo, “The underlying rationale for the `effective controls' flexibility is that if a source's emissions are already well controlled, it is unlikely that further cost-effective reductions are available.” Thus, contrary to the claim in the comment, both guidance documents recognize that a State may reasonably decide not to select sources that have recently installed effective controls. In such a scenario, per the guidance, the State should explain why it is reasonable to assume that a full four-factor analysis would likely result in the conclusion that no further controls are necessary. Massachusetts did not decline to conduct four-factor analyses for certain sources “just because they are subject to controls under the NAAQS program,” as commenters argue. Instead, Massachusetts evaluated these sources, including applicable facility permits and regulations, and demonstrated that the high level of control already required makes it reasonable to conclude that a full four-factor analysis would likely result in the conclusion that no further controls are necessary.

Comment: The Conservation Groups claim that the State should, and that the EPA must, consider the environmental justice implications of Massachusetts' SIP revision. The Groups cite EPA Regional Haze guidance and 1994 and 2023 Executive orders addressing environmental justice and use the EPA EJ Screen tool to identify communities near several municipal waste combustors that may have higher percentages of low-income populations and people of color than the rest of the State as a whole.

Response: The regional haze statutory provisions do not explicitly address considerations of environmental justice, and neither do the regulatory requirements of the second planning period in 40 CFR 51.308(f), (g), and (i). However, the lack of explicit direction does not preclude the State from addressing EJ in the State's SIP submission. As explained in “EPA Legal Tools to Advance Environmental Justice” and EPA Regional Haze guidance, the CAA provides states with the discretion to consider environmental justice in developing rules and measures related to regional haze. While a State may consider environmental justice under the reasonable progress factors, neither the statute nor the regulation compels states or the EPA to conduct an environmental justice analysis in developing or evaluating a SIP submission.

In this instance, Massachusetts explained in its SIP submission that the “SIP revision includes measures that reduce air pollutant emissions and will not create any burdens on environmental justice populations.” MassDEP noted that it “considers environmental justice in all of its programs as described in the Executive Office of Energy and Environmental Affair's 2017 Environmental Justice Policy,” which “directs [Massachusetts] agencies to engage in enhanced public participation for certain projects and to conduct enhanced analysis and review of impacts and mitigation for certain projects.” MassDEP explained that while its Regional Haze SIP revision did not trigger the project criteria in the State policy, MassDEP nonetheless translated the Notice of Public Hearing and Comment into several languages and sent the notice to a broad array of stakeholders, including environmental justice advocacy organizations. In addition, MassDEP explained that “Massachusetts has and is continuing to take significant actions to reduce air pollution that affects environmental justice communities, including adopting California low and zero emissions standards for cars and trucks; providing grants for electric buses and rebates for purchase of electric cars and trucks, providing grants for electric vehicle charging stations and for diesel truck emissions controls and electrification; and implementing a net-zero climate goal that prioritizes reducing air pollution from fossil fuel combustion in over-burdened and environmental justice communities.”

The commenter also provided additional information from an EJ Screen analysis that the State did not consider as part of its regional haze decision making. The EPA acknowledges the EJ Screen information provided as part of the comment, which identifies certain demographic and environmental information regarding areas across Massachusetts. The focus of the SIP at issue here, the regional haze SIP for Massachusetts, is SO₂ and NO_X emissions and their impacts on visibility impairment at the 156 mandatory federal Class I areas. This action addresses Massachusetts' choices to reduce these emissions at several EGUs and other sources of air pollution across the State. As discussed in the NPRM and in this notice of final rulemaking, EPA has evaluated Massachusetts' SIP submission against the statutory and regulatory regional haze requirements and determined that it satisfies those minimum requirements. The CAA and applicable implementing regulations neither prohibit nor require an evaluation of environmental justice with a SIP. With respect to the EPA's adherence with the Executive orders, see section V below.

Comment: MANEVU commented to support the EPA's proposal to approve Massachusetts' regional haze State implementation plan (SIP). MANEVU also stated that it supports the EPA's thorough approach in reviewing Massachusetts' SIP, including its response to each MANEVU Ask. MANEVU also noted that it “expects EPA will review other states' responses to the MANEVU Ask in a similar manner, including states outside the MANEVU region, particularly those found by MANEVU technical analysis to be reasonably anticipated to contribute to visibility impairment at one or more of MANEVU's Class I areas.”

Response: The EPA acknowledges the comment.

III. Final Action

The EPA is approving the “Massachusetts Regional Haze State Implementation Plan Revision for the Second Planning Period (2018-2028)”, submitted July 22, 2021, and “Regional Haze SIP Revision for Massachusetts—Supplement” source specific requirements for Canal Generating Station, submitted May 26, 2022, as collectively satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f), (g), and (i).

IV. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference “Regional Haze SIP Revision for Massachusetts—Supplement” source specific requirements for Canal Generating Station (Permit number 21-AQ02F-011-APP), submitted June 15, 2022 (and clarified on May 3, 2024) to limit the sulfur content of fuel oil, described in the amendments to 40 CFR part 52 set forth below. 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). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

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, 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);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The Massachusetts Department of Environmental Protection did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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 September 6, 2024. 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 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

For the reasons stated in the preamble, EPA amends part 52 of chapter I, title 40 of the Code of Federal Regulations as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart W—Massachusetts

2. Amend § 52.1120 by:

a. In the table in paragraph (d), adding an entry for “Canal Generating Station” at the end of the table; and

b. In the table in paragraph (e), adding an entry for “Massachusetts Regional Haze State Implementation Plan Revision for the Second Planning Period (2018-2028)” at the end of the table.

The additions read as follows: