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Mass DEP Proposes Changes to Air Program

In August 2016, the Massachusetts Department of Environmental Protection (MassDEP) proposed several changes to its air regulations as part of its efforts to streamline regulations and reduce unnecessary regulatory burdens under Executive Order 562.  These changes will affect a wide range of industrial and commercial facilities. 

MassDEP has been holding listening sessions to gather public feedback on proposed changes across many of its program areas, including the air program.  For more information on Executive Order 562 and MassDEP’s listening sessions, click here.  The proposed changes to the air regulations address numerous provisions in the lengthy collection of air rules; many of the changes would conform the regulations to federal requirements, and others do, in fact, simplify provisions or eliminate sections that are no longer relevant. 

The more significant proposals are described below. The comment period on this amendment package ended September 26, 2016 and final promulgation is expected by year end.

Greenhouse Gas (GHG) Emissions

Establish Threshold for Requiring a Plan Approval for GHG Emissions.  In Massachusetts, air construction permits are called plan approvals, and they authorize construction, substantial reconstruction, or alteration of emissions sources.  Plan approvals are required unless project emissions are below thresholds established for specific pollutants or an exemption applies.  Under current regulations, there is no specific threshold for greenhouse gases, and therefore, arguably, any project that exceeds the de minimis threshold of 1 ton per year for the potential emission of any air pollutant must obtain a Plan Approval. 

MassDEP proposes to establish a 100,000 ton carbon dioxide equivalent (CO2e) threshold for new facilities and a 75,000 ton CO2e threshold for modifications of existing facilities.  According to MassDEP’s Background Document on Proposed Amendments to 310 CMR 7.00, Air Pollution Control, August 12, 2016 (Background Document), “only high-emitting facilities (e.g., power plants) are likely to trigger these thresholds.”

Remove Operating Permit Thresholds for GHGs.  The current regulations require an air operating permit for sources with air pollutant emissions above certain thresholds, including for GHGs.  The GHG threshold was required to conform the state permitting program to U.S. EPA’s GHG permitting program as it existed several years ago. However, consistent with the U.S. Supreme Court’s 2014 decision in Utility Air Regulatory Group v. U.S. EPA, in which the Court held that U.S. EPA was not authorized to impose permitting thresholds for facilities that emitted GHGs, MassDEP has proposed to remove its GHG threshold for operating permits.  This action is consistent with U.S. EPA’s response to the Supreme Court decision and will conform MassDEP’s rules to the federal rules for major source operating permits.

New Source Review (NSR)

Plan Approvals for Non-Major Modifications of Prevention of Significant Deterioration (PSD) Permits. MassDEP proposes to clarify in the regulations that a Plan Approval is required for any modification of a PSD permit, regardless of emission impacts.  Modifications of non-attainment NSR Plan Approvals and case-by-case MACT already require a Plan Approval regardless of emissions.

Establish 30-day Public Comment Period for Comprehensive Plan Approvals.  Under current regulations, a 30-day public comment period is required for any Plan Approval that triggers review under the Massachusetts Environmental Policy Act (MEPA).  However, MEPA review is required only for the largest projects.  The proposed changes would require a 30-day public comment period for all Comprehensive Plan Approvals as well as for any Limited Plan Approval for which MEPA is triggered.  According to the Background Document, this change will conform Massachusetts requirements to federal regulations which require a public comment period for certain permits.  This is likely to substantially increase the opportunity for public comment on Plan Approvals.

De minimis Exemption from Plan Approval Requirements.  Small projects, those with anticipated emissions less than one ton per year, are exempt from the requirement to obtain a Plan Approval.  The current regulations specify that emissions shall be calculated based on the increase in potential emissions, and no changes are proposed to this language.  However, the proposed amendment would modify the definition of “potential emissions” to clarify that recordkeeping by the source demonstrating that actual emissions are below one ton per year is sufficient to show eligibility for this exemption.  The Background Document states that this is a “clarification” that “reflects longstanding MassDEP practice that facility records that demonstrate that actual emissions from a project are below 1 ton per year are sufficient for this exemption.” 

Source Registration.  The source registration program requires sources above emissions thresholds to report emissions either on an annual or triennial basis.  Several changes to this program have been proposed. First, MassDEP proposes to codify a long-standing exception for small natural-gas and distillate-oil combustion sources.  Under the proposal, the facility-wide heat-input threshold for reporting will increase from 10 mmBTU to 40 mmBTU as long as no single source exceeds 10 mmBTU.  Second, the lead reporting threshold will be reduced to 0.5 tons per year, consistent federal requirements.  Finally, the deadline for triennial reports will change to March 1 from April 15 to allow MassDEP to meet its deadline to report to U.S. EPA.  

Emergency Engines.  In relation to emergency engines, MassDEP proposes to remove the existing 300-hour limit on operation during emergency conditions to conform to federal regulations.  MassDEP proposes other clarifying and simplifying changes to its engine and combustion turbine rules.

High Precision Products.  High precision products are products that must be cleaned with highly volatile solvents to ensure that the minimum residue remains on the products in order to meet military or commercial specifications.  MassDEP’s current air rules impose requirements on the use of solvents to clean metals including limits on the vapor pressure of cold cleaning degreasers and the pressure of the degreasing spray.  MassDEP proposes to amend the regulations to exempt the cleaning of high precision products from these requirements upon case-by-case approval of MassDEP and U.S. EPA.

Reasonably Available Control Technology (RACT) Requirements.

VOC RACT Requirements.  MassDEP regulations include RACT requirements for VOC emissions in order to control ground level ozone formation.  U.S. EPA published new Control Techniques Guidance for various VOC source categories in 2006, 2007 and 2008.  MassDEP is now proposing changes to address the following source categories: flexible package printing materials; lithographic printing materials; letterpress printing materials; industrial cleaning solvents; flat wood paneling coatings; paper, film and foil coatings; metal furniture coatings; large appliance coatings; miscellaneous metal products coatings; plastic parts coatings; and fiberglass boat manufacturing materials.  In addition, MassDEP proposes to delete the requirements for automobile surface coatings as there are no Massachusetts facilities subject to this category and any new facility would be subject to best available control technology (BACT) not RACT requirements.

Nitrogen Oxides (NOx) RACT Requirements.  MassDEP is proposing amendments in order to fulfill its NOx RACT obligations under the 2008 and 2015 National Ambient Air Quality Standards for ozone.  MassDEP is adopting as RACT emissions standards for large boilers, stationary combustion turbines and stationary reciprocating internal combustion engines (RICE) that currently are in place or proposed in New York or Connecticut.  As described in the Background Document, MassDEP estimates that there are 17 facilities with large boilers, 21 facilities with combustion turbines, and 15 facilities with engines that will be affected.  MassDEP anticipates that several of these will need to install NOx controls unless they qualify as low capacity or seek a facility-specific alternative RACT.  The compliance date for these requirements is proposed to be 2 years from promulgation.

Massachusetts Clean Air Interstate Rule (MassCAIR).  MassDEP proposes to replace the current MassCAIR regulations with a new rule called Ozone Season Nitrogen Oxides Control (MassNOx).  MassDEP adopted MassCAIR to comply with the 2007 EPA Clean Air Interstate Rule which established a multi-state cap-and-trade program.  That program ended in 2015, and was replaced with the Cross State Air Pollution Control Rule (CSAPR).  CSAPR does not apply to Massachusetts because EPA determined that Massachusetts sources were not significantly contributing to ozone in other states.  However, MassDEP is required to maintain the NOx budget established under MassCAIR in order to avoid backsliding.  MassNOx would not apply the cleaner, more efficient units that previously received more NOx tons to emit than they could emit (8 facilities), as there no longer is the ability to sell the excess tons outside the state.  The other units that had been subject to MassCAIR will be subject to MassNOx (24 facilities).  The proposed NOx budget exceeds the anticipated emissions based on the past five years of data and therefore MassDEP is not expecting any additional emissions reductions or controls.  However, as MassDEP stated in the Background Document:  “In the event that the state-wide budget is exceeded, facilities would be required to purchase 2017 vintage or late CSAPR NOx Ozone Season Allowances at a cost that will be made under a future market-based determination.”

Adjudicatory Hearings.  MassDEP is proposing to resolve a long existing gap in its air regulations by clarifying how to request an adjudicatory hearing on certain permitting decisions of MassDEP, such as a decision to approval or disapprove a Plan Approval, and which parties have standing to file such a request.  There has been substantial uncertainty about the appeal process for air permitting decisions, and this has resulted in unnecessary procedural litigation in the past. 

The proposed changes provide for a 21-day appeal period, and limit the parties with standing to appeal to the applicant, an aggrieved person, and a ten-person citizens group that participated in the public comment period on the permitting action.  The changes also propose to limit the scope of the review for an appeal to those matters addressed in the permitting decision. 

© 2019 Beveridge & Diamond PC


About this Author

Jeanine LG Grachuk, Environmental Litigation Lawye, Beveridge Diamond, Energy Permitting Attorney

Jeanine Grachuk’s practice includes environmental compliance counseling, environmental permitting of energy and brownfields redevelopment projects, and advice on managing environmental risk in complex transactions such as through environmental risk insurance.  Ms. Grachuk has experience with environmental issues arising within a variety of industrial sectors, including power generation, chemical production, and solid waste disposal. 

Stephen M. Richmond, Environmental Attorney, Beveridge Diamond Law FIrm

Stephen M. Richmond is an environmental lawyer and a Principal of Beveridge & Diamond, P.C. He is resident in the Firm’s Massachusetts office where for eight years he was the Managing Principal. Mr. Richmond's practice is focused on regulatory compliance counseling, and he concentrates on complex air, waste, and permitting issues. He has significant experience working on facility siting and due diligence projects, negotiation of transactional documents, and enforcement defense on federal and state environmental cases.