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MassDEP Issues Air Rule Amendments

Culminating a two-year rule promulgation process, MassDEP has issued a final rule amendment package that makes adjustments to numerous provisions of the Massachusetts air regulations.  The announced purpose of this package was to streamline the rules and reduce unnecessary regulatory burdens pursuant to Governor Baker’s Executive Order 562 and to adopt changes to various provisions to make them more consistent with the federal rules.

The following is a brief summary of a few of the more notable changes in the amendment package:

  • GHG Permitting. MassDEP has:
    • Adopted a permitting threshold of 75,000 tons per year (TPY) of potential emissions of greenhouse gases (GHGs) on a carbon dioxide equivalency basis (CO2e);
    • Clarified that triggering GHG emissions will require an application for a Comprehensive Plan Approval (CPA);
    • Provided that the 100 TPY emissions threshold for the requirement to obtain an operating permit excludes consideration of GHG emissions; and
    • Clarified that regulated GHGs include the same group of six gases that are regulated under the US EPA’s GHG reporting rule, 40 CFR Part 98.
  • RACT Requirements. MassDEP has updated its RACT requirements to impose requirements on certain VOC and NOx sources consistent with EPA’s Control Techniques Guidelines.  These requirements will phase in over two years and will affect VOC sources in the coating, printing, and cleaning sectors and also those engaged in solvent cleaning, and will affect NOx sources specific to certain boilers, turbines, and engines at major stationary sources.
  • Engines and Turbines. MassDEP has revised its stationary engines and turbines rules to more closely align with EPA’s engine rules (NSPS Subparts IIII and JJJJ and the RICE MACT Rule, Subpart ZZZZ).  Changes include (i) the addition of a 100 hr/yr operational allowance for emergency engines to conduct maintenance and readiness checks, (ii) an allowance for 50 hrs/yr (out of the 100 hours) for operations in non-emergency situations, and (iii) authorization to operate such sources for an unlimited period during periods of power outage or when there is an imminent threat of a power outage.  MassDEP’s rules generally rely on a self-certification program similar to permit-by-rule programs implemented in other states.  The rule revisions clarify that where engines do not meet the self-certification requirements, a plan approval may be sought, whether for emergency or non-emergency engines.
  • Public Comment. In order to comply with EPA rules for minor new source review permitting, MassDEP has adopted a 30-day public comment period for all comprehensive plan approval applications and a small subset of limited plan approval applications (those which involve a facility that meets or exceeds a MEPA review threshold for emissions of criteria or hazardous air pollutants).  The new rule provision requires for each qualifying application a 30-day comment period, the posting on a web site of notice of availability of a proposed decision and the actual proposed decision along with instructions on how to submit comments and access the administrative record, and the provision of the notice of availability to EPA.

Under Title I, Section 110, of the federal Clean Air Act, states must submit portions of their air rules to EPA to demonstrate how they will attain and/or maintain air quality in their regions. EPA reviews and approves these plans, known as state implementation plans or SIPs, and EPA then has the right to enforce those rules that it has approved under its authority in the Clean Air Act. As EPA made clear in comments it submitted to MassDEP on the proposed rule amendment package, there has been a substantial lag in the Massachusetts SIP submittal and approval process, and as a result MassDEP is now making changes to portions of its rules that in some instances were SIP approved but in other instances were never submitted for SIP approval.

The practical difficulties that this lag in updating the SIP presents to the regulated community are significant. EPA has the right to enforce those state rules that have been approved in the SIP, whether or not those rules have been subsequently amended or voided at the state level. EPA can, and periodically does, pursue enforcement actions that are based on old SIP language after a state has amended those rules and they are no longer in effect. EPA also ignores newer state rules that are not SIP approved when it enforces federal or SIP-approved requirements, on the basis that it does not consider state rules to be federally enforceable unless a SIP approval has been issued that covers the newer rules. Therefore, where SIP language does not reflect current state rules, the regulated community often needs to comply with both current state rules for purposes of state compliance, and old outdated state rules for purposes of federal compliance. And in some instances regulated entities need to ignore current state rules in order to ensure compliance with federal requirements.

If this sounds completely absurd, it is. The problem was created by the cumbersome SIP process adopted by Congress in the federal Clean Air Act, and SIP updating often falls low on the priority list of current agencies and EPA regions. This can be a real problem for many regulated entities. To limit the difficulties created by the current outdated Massachusetts SIP, DEP should make every effort to very quickly submit SIP revisions to EPA New England so that its current rules are fully accounted for, and EPA New England should then quickly approve those revisions.

Beveridge & Diamond assists companies nationwide to understand and comply with the requirements of the Clean Air Act and its state counterparts. In addition to strategic regulatory counsel, we support permitting and project expansion, enforcement actions and compliance reviews, and litigation matters. For more information, please contact Stephen Richmond