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State and Federal Operating Permits Programs: Amendments Compliance Certification Requirements

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[Federal Register: March 1, 2001 (Volume 66, Number 41)]
[Rules and Regulations]
[Page 12872-12877]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr01-10]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[FRL-6934-5]
RIN 2060-AJ04


State and Federal Operating Permits Programs: Amendments
Compliance Certification Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

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SUMMARY: We, the EPA, are taking direct final action to amend the State
Operating Permits Program and the Federal Operating Permits Program.
The amendments are in response to the United States Circuit Court of
Appeals October 29, 1999, decision to remand to us part of the October
22, 1997, Compliance Assurance Monitoring rulemaking that included
revisions describing the ongoing compliance certification content
requirements. In particular, the Court ruled that the compliance
certification must address whether the affected facility or source has
been in continuous or intermittent compliance. This action will revise
only certain sections to carry through the revisions to the compliance
certification requirements.

EFFECTIVE DATE: This final rule amendment is effective on April 30,
2001 without further notice, unless we receive adverse comments on this
direct final rule by April 2, 2001 or we receive a request for a
hearing by March 16, 2001. If we receive timely adverse comment or a
timely hearing request, we will publish a withdrawal in the Federal
Register informing you, the public, that this direct final rule will
not take effect.

ADDRESSES: Comments. You may submit comments on this rulemaking in
writing

[[Page 12873]]

(original and two copies, if possible) to Docket No. A-91-52 to the
following address: Air and Radiation Docket and Information Center
(6102), US Environmental Protection Agency, 401 M Street, SW., Room
1500, Washington, DC 20460.
    Docket. A docket containing supporting information used in
developing this direct final rule amendment is available for public
inspection and copying at our docket office located at the above
address in Room M-1500, Waerside Mall (ground floor). You are
encouraged to phone in advance to review docket materials or schedule
an appointment by phoning the Air Docket Office at (202) 260-7548.
Refer to Docket No. A-91-52. The Docket Office may charge a reasonable
fee for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Peter Westlin, Environmental
Protection Agency, Office Air Quality Planning and Standards, at 919/
541-1058, e-mail: westlin. peter@epa.gov, facsimile 919/541-1039.

SUPPLEMENTARY INFORMATION: We are publishing these rule amendments
without a prior proposal because we consider this to be
noncontroversial amendment, given the Court's decision, and we do not
expect to receive any adverse comment. We believe that this change to
the previously promulgated rule adequately addresses the Court's
direction expressed in the remand. In the event we receive adverse
comment or a hearing request and this direct final rule is subsequently
withdrawn, we are also publishing a separate document that will serve
as the proposal of this amendment in the ``Proposed Rules'' section of
this Federal Register publication. This final rule amendment will be
effective on April 30, 2001 without further notice, unless we receive
adverse comment on this rulemaking by April 2, 2001 or we receive a
request for a hearing by March 11, 2001. If we receive timely adverse
comment or a timely hearing request, we will publish a withdrawal in
the Federal Register informing you that this direct final rule will not
take effect. In that event, we will address all public comments in a
subsequent final rule, based on the proposed rule amendment published
in the ``Proposed Rules'' section of this Federal Register document.
Because we will not provide further opportunity for public comment on
this action, you must comment on this amendment at this time if you
wish to do so.
    Regulated entities. The requirements in this regulation may apply
to you if you own or operate any facility subject to the compliance
certification requirements of part 70 to 71. These regulations apply
to, but are not limited to, owners or operators of all sources who must
have operating permits under either of these programs. State, local,
and tribal governments are potentially affected tot he extent that
those governments must revise existing compliance certification
requirements in implementing the part 70 operating permits program to
make consistent with these revisions.
    Internet. The text of this Federal Register document is also
available on our web site on the Internet under the Recently Signed
Rules category at the following address: http://www.epa.gov/ttn/oarpg/
rules.html and the OAQPS, Emissions Measurement Center website at
http://www.epa.gov/ttn/emc/. Our Office of Air and Radiation (OAR)
homepage on the Internet also contains a wide range of information on
the air toxics program and many other air pollution programs and
issues. The OAR's homepage address is: http://www.epa.gov/oar.
    Electronic Access and Filing Addresses. The official record for
this rulemaking, as well as the public version, has been established
for this rulemaking under Docket No. A-91-52 (including comments and
data submitted electronically). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as confidential business
information (CBI), is available for inspection from 8 a.m. to 5:30
p.m., Monday through Friday, excluding legal holidays. The official
rulemaking record is located at the address listed in the ADDRESSES
section at the beginning of this preamble. You may submit comments on
this rulemaking electronically to the EPA's Air and Radiation Docket
and Information Center at their address: A-and-R-Docket@epa.gov.
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption. Comments and data
will also be accepted on disks in WordPerfect in 6.1 file format or
ASCII file format. You must identify all comments and data in
electronic form by the docket number (A-91-52). You should not submit
CBI through electronic mail. You may file electronic comments online at
any Federal Depository Library.
    Outline. The information in this preamble is organized as follows:

I. Authority
II. Background
    A. Regulatory and litigation background
    B. Direction from Court
III. Regulatory Revisions and Effects
    A. What are the regulatory revisions?
    B. What must I include in the compliance certification?
IV. Administrative Requirements
    A. Executive Order 12866: ``Significant Regulatory Action
Determination''
    B. Regulatory Flexibility
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Docket
    F. Executive Order 13132: Federalism
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
    I. Submission to Congress and the General Accounting Office
    J. National Technology Transfers and Advancement Act

I. Authority

    The statutory authority for this action is provided by sections 114
and 501 through 507 of the Clean Air Act, as amended (42 U.S.C. 7414a
and 7661-7661f).

II. Background

A. Regulatory and Litigation Background

    On October 22, 1997 (62 FR 54900), we published the final part 64,
Compliance Assurance Monitoring (CAM) rule, and revisions to parts 70
and 71, the State and Federal Operating Permits Programs. Part 64
included procedures, design specifications, and performance criteria
intended to satisfy, in part, the enhanced monitoring requirements of
the Clean Air Act (``the Act''). The revisions to parts 70 and 71
included language to Secs. 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B)
specifying the minimum information necessary for the compliance
certification required of responsible officials.
    Subsequent to that publication, the Natural Resources Defense
Council, Inc. (NRDC) and the Appalachian Power Company et al.
(industry) filed petitions with the United States Court of Appeals for
the District of Columbia Circuit (Court) challenging several aspects of
the CAM rule. Industry challenged our authority to promulgate the parts
70 and 71 language requiring that compliance certifications be based on
any other material information including credible evidence.
    The NRDC argued that the monitoring in part 64 failed to meet Clean
Air Act requirements regarding enhanced monitoring and that the parts
70 and 71 revisions were inconsistent with the Act's explicit
requirement that compliance certifications indicate

[[Page 12874]]

whether compliance is continuous or intermittent.

B. Direction From Court

    On October 29, 1999, the Court issued its decision (see docket A-
91-52, item VIII-A-1) Natural Resources Defense Council v. EPA, 194
F.3d 130 (D.C. Cir. 1999), on these challenges. Most importantly, the
court held that ``EPA's adoption of CAM as ``enhanced monitoring''
meets the requirements of the Clean Air Act.'' Id. at 137. The court
also dismissed the industry's challenge as unripe relying on its
earlier decision involving EPA's Credible Evidence Rule. See Clean Air
Implementation Project v. EPA, 150 F.3d 1200 (D.C. Cir. 1998). The
court did, however, agree with NRDC that EPA's removal from parts 70
and 71 of the explicit requirement that compliance certifications
address whether compliance is continuous or intermittent revisions ran
contrary to the statutory requirement that each source must certify
``whether compliance is continuous or intermittent * * *'' See section
114(a)(3)(D), 42 U.S.C. 7414(a)(3)(D). Our rationale for revising the
compliance certification language had been that so long as the
compliance certification addressed the substance of whether compliance
had been continuous or intermittent there was no need to require
responsible officials to use the terms ``continuous'' or
``intermittent.'' The court disagreed finding Congress'' intent to be
``express and unambiguous.'' 194 F.3d at 138. Accordingly, the court
remanded that portion of the CAM rule ``pertaining to `continuous or
intermittent' compliance certification'' to us for revision consistent
with the court's decision.

III. Regulatory Revisions and Effects

A. What Are the Regulatory Revisions?

    In response to the court's remand, we have added text to sections,
Secs. 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B), to require that the
responsible official for the affected facility include in the annual
(or more frequent) compliance certification whether compliance during
the period was continuous or intermittent. Specifically, the revised
text, including the introductory language for both sections reads:
``Permits shall include each of the following * * *: A requirement that
the compliance certification include all of the following * * *: The
status of compliance with the terms and conditions of the permit for
the period covered by the certification, including whether compliance
during the period was continuous or intermittent. The certification
shall be based on the method or means designated in paragraph
(c)(5)(iii)(B) of this section.'' The italicized text indicates the
revisions made in response to the Court decision. Other text within
both of these sections remains as promulgated in 1997. Under this
revised language, the responsible official must include in the
compliance certification a statement as to whether compliance during
the period was continuous or intermittent. We believe these revisions
respond directly and adequately to the Court's decision to remand the
compliance certification requirements to us and are consistent with the
requirements of the Act.
    The Court's decision and this amendment to our regulations also
necessitate a change to a guidance document issued in connection with
the CAM rulemaking. In ``Compliance Assurance Monitoring Rule
Implementation Questions and Responses'' (from Steve Hitte, OPG-ITPID
to APMs, Regions I-X (January 8, 1998)), we advised permitting
authorities that they could require sources to certify compliance using
either existing state regulations that tracked the statute (e.g.,
certify to whether compliance was continuous or intermittent) or the
certification language in the CAM revisions to Part 70. See at Question
10. This guidance was based on our interpretation that (1) the
statutory requirement to certify whether compliance is continuous or
intermittent had sufficient flexibility to allow the approach taken in
the revisions to Part 70 and (2) the state regulations on compliance
certification generally tracked exactly the statutory language on
certification of continuous or intermittent compliance. The Court,
however, disagreed with our interpretation of the statutory language
and remanded the revisions to Part 70 to us. As a result, the guidance
above is no longer justified. Accordingly, we withdraw the guidance
provided to permitting authorities in Question and Response 10 in the
above-mentioned guidance to the extent it states that permitting
authorities may allow certifications based on the Part 70 revisions set
aside by the Court. We are aware that most if not all approved state
program regulations continue to require responsible officials to
certify whether compliance was intermittent or continuous. Accordingly,
any state programs that followed the interpretation in Question 10
above should be able to expeditiously require certifications to be
based upon the proper statutory certification language.

B. What Must I Include in the Compliance Certification?

    The compliance certification is your assessment, signed by your
facility's responsible official, as to whether your facility complied
with the terms and conditions of the permit. The compliance
certification includes three main elements. The first is identification
of all the permit terms and conditions to which your facility is
subject. These include applicable design provisions, work practice
elements, required operating conditions, and emissions limitations in
addition to general and specific monitoring, reporting, and record
keeping requirements.
    Second, you must identify the method(s) and any other material
information used to determine compliance status of each term and
condition. The method(s) includes at a minimum any testing and
monitoring methods required by Parts 70 or 71 that were conducted
during the period for the certification. You must describe whether the
data collection using the methods referenced for the compliance
certification provide continuous or intermittent data.
    Third, you must certify as to the status of compliance including
whether compliance was continuous or intermittent. You must base this
status on the results of the identified methods and other material
information. You must note as possible exceptions to compliance any
deviations from the permit requirements and any excursions, or
exceedances as defined in part 64, or other underlying applicable
requirements, during which compliance is required.
    You can find additional explanation on our interpretation of a
certification of continuous or intermittent compliance in the preamble
to the final CAM rule. 62 FR 54937

IV. Administrative Requirements

A. Executive Order 12866: ``Significant Regulatory Action
Determination''

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the

[[Page 12875]]

economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety in State, local, or tribal
governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    Because the annualized cost of this final rule amendment would be
significantly less than $100 million and would not meet any of the
other criteria specified in the Executive Order, we have determined
that this action is not a ``significant regulatory action'' under the
terms of Executive Order 12866, and is therefore not subject to OMB
review. Executive Order 12866 also encourages agencies to provide a
meaningful public comment period, and suggests that in most cases the
comment period should be 60 days. However, in consideration of the very
limited scope of this amendment, we consider 30 days to be sufficient
in providing a meaningful public comment period for this rulemaking.

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) requires us to conduct a
regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
We determined that these amendments to the parts 70 and 71 do not have
a significant impact on a substantial number of small entities. We
intended that compliance with the CAM rule would provide monitoring
information sufficient to demonstrate whether compliance was continuous
or intermittent. Even though we did not require that the responsible
official use those terms in the revisions to the compliance
certification, we did require that the responsible rely on the
monitoring information in making that certification. That the court
held that the responsible official must address explicitly whether
compliance was continuous or intermittent does not substantively change
the monitoring responsibilities or economic impact. The revisions to
parts 70 and 71 in this action add no burden on responsible officials
other than to categorize their compliance status as continuous or
intermittent. We have determined that a regulatory flexibility analysis
is not necessary in connection with this action.

C. Paperwork Reduction Act

    This amendment does not include or create any information
collection activities subject to the Paperwork Reduction Act, and
therefore we will submit no information collection request (ICR) to OMB
for review in compliance with the Paperwork Reduction Act, 44 U.S.C.
3501, et seq.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, we
must prepare a written statement, including a cost-benefit analysis,
for proposed and final rules with ``Federal mandates'' that may result
in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before we promulgate a rule for which a written statement is
needed, section 205 of the UMRA requires us to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows us to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before we establish any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, we must have developed under
section 203 of the UMRA a small government agency plan. That plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    As noted above, this amendment is of very narrow scope, and
provides a compliance alternative very similar to one already available
in the promulgated part 70 compliance certification requirements. We
have determined that this action contains no regulatory requirements
that might significantly or uniquely affect small governments. We have
also determined that this action does not contain a Federal mandate
that may result in expenditures of $100 million or more for State,
local, and tribal governments, in the aggregate, or the private sector
in any one year. Thus, today's action is not subject to the
requirements of sections 202 and 205 of the UMRA.

E. Docket

    The docket includes an organized and complete file of all the
information upon which we relied in taking this direct final action.
The docketing system is intended to allow you to identify and locate
documents readily so that you can participate effectively in the
rulemaking process. Along with the proposed and promulgated standards
and their preambles, the contents of the docket, except for certain
interagency documents, will serve as the record for judicial review.
(See CAA section 307(d)(7)(A).)

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless we consult
with State and local officials early in the process of developing the
proposed regulation.
    This final rule does not have federalism implications. The rule
will

[[Page 12876]]

not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Today's action does not create a
mandate on State, local or tribal governments. The amendments to the
rule do not impose any new or additional enforceable duties on these
entities. Thus, the requirements of section 6 of the Executive Order do
not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Executive Order 13045 applies to any rule that the EPA determines
(1) economically significant as defined under E.O. 12866, and (2) the
environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. These
amendments to the State and Federal operating permits program are not
subject to E.O. 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), because it is not an economically significant regulatory action
as defined by E.O. 12866, and the amendments do not address an
environmental health or safety risk that would have a disproportionate
effect on children.

H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments

    Under Executive Order 13084, we may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If we comply by consulting, Executive Order 13084 requires
us to provide to the Office of Management and Budget, in a separate
identified section of the preamble to the rule, a description of the
extent of our prior consultation with representatives of affected
tribal governments, a summary of the nature of their concerns, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 13084 requires us to develop an effective process
permitting elected officials and other representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.'' These amendments to parts 70 and 71 do not
significantly or uniquely affect the communities of Indian tribal
governments. The amendments to the rule do not impose any new or
additional enforceable duties on these entities. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this action.

I. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., 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 Congress and to the Comptroller General of the United
States. We will submit a report containing this rule 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
this final rule in the Federal Register.

J. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), Public Law 104-113 (March 7, 1996), we are
required to use voluntary consensus standards in its regulatory and
procurement activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices, etc.) which are adopted by
voluntary consensus standard bodies. Where we do not use available and
potentially applicable voluntary consensus standards, the NTTA requires
us to provide Congress, through OMB, an explanation of the reasons for
not using such standards. This action does not involve technical
standards. Therefore, we did not consider the use of any voluntary
consensus standards.

List of Subjects in 40 CFR Parts 70 and 71

    Environmental protection, Air pollution control, Reporting and
recordkeeping requirements.

    Dated: January 12, 2001.
Carol M. Browner,
Administrator.

    For the reasons stated in the preamble, we amend title 40, chapter
I, parts 70 and 71 of the Code of Federal Regulations to read as
follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

    1. The authority citation for part 70 continues to read as follows:

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

    2. Section 70.6 is amended by revising paragraph (c)(5)(iii)(C) to
read as follows:

Sec. 70.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, including whether
compliance during the period was continuous or intermittent. The
certification shall be based on the method or means designated in
paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is
required and in which an excursion or exceedance as defined under part
64 of this chapter occurred; and
* * * * *

PART 71--FEDERAL OPERATING PERMITS PROGRAMS

    1. The authority citation for part 71 continues to read as follows:

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

    2. Section 71.6 is amended by revising paragraph (c)(5)(iii)(C) to
read as follows:

Sec. 71.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, including whether
compliance during the period was continuous or

[[Page 12877]]

intermittent. The certification shall be based on the method or means
designated in paragraph (c)(5)(iii)(B) of this section. The
certification shall identify each deviation and take it into account in
the compliance certification; and
* * * * *
[FR Doc. 01-4975 Filed 2-28-01; 8:45 am]
BILLING CODE 6560-50-P

 
 

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