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Proposed Revisions To Clarify the Scope of Sufficiency Monitoring Requirements for Federal and State Operating Permits Programs
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 17, 2002 (Volume 67, Number 180)]
[Proposed Rules]
[Page 58561-58567]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se02-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[FRL-7374-5]
RIN 2060-AK29
Proposed Revisions To Clarify the Scope of Sufficiency Monitoring
Requirements for Federal and State Operating Permits Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing this rule to clarify the scope of the
monitoring required in operating permits issued by State and local
permitting authorities or by EPA under title V of the Clean Air Act
(Act). Specifically, this proposed rule would clarify that under the
sufficiency monitoring rules, all title V permits must contain
monitoring sufficient to assure compliance as required under sections
504(a), 504(b), 504(c), and 114(a)(3) of the Act, in cases where the
periodic monitoring rules are not applicable. The EPA believes this
proposed rule is necessary to address claims of confusion on the part
of some source owners and operators, permitting authorities and
citizens as to the scope of EPA's title V monitoring regulations.
DATES: Comments. We must receive written comments on or before October
17, 2002.
ADDRESSES: Comments. By U.S. Postal Service, send comments (in
duplicate if possible) to: Air and Radiation Docket and Information
Center (6102), Attention Docket Number A-93-50, U.S. EPA, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. In person or by
courier, deliver comments (in duplicate if possible) to: Air and
Radiation Docket and Information Center (6102), Attention Docket Number
A-93-50, U.S. EPA, 401 M St., SW., Room M-1500, Washington, DC 20460.
The EPA requests a separate copy also be sent to the contact person
listed in the FOR FURTHER INFORMATION CONTACT section.
Docket. Documents relevant to this action are available for
inspection at the Docket Office, Attention: Docket Number A-93-50, U.S.
Environmental Protection Agency, 401 M Street, SW., Room M-1500,
Washington, DC 20460, telephone (202) 260-7548, between 7:30 a.m. and
5:30 p.m., Monday through Friday, excluding legal holidays. Copies also
may be mailed on request form the Air Docket by calling (202) 260-7548.
A reasonable fee may be charged for copying. Documents relevant to the
promulgation of the operating permit program regulations at parts 70
and 71 are available for inspection at the same location under docket
numbers A-90-33 and A-93-50 for part 70, and A-93-51 for part 71.
FOR FURTHER INFORMATION CONTACT: For further information, contact Mr.
Jeff Herring, U.S. EPA, Information Transfer and Program Implementation
Division (C304-04), Research Triangle Park, North Carolina 27711,
telephone number (919) 541-3195, facsimile number (919) 541-5509,
electronic mail (e-mail) address: herring.jeff@epa.gov.
SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted
by e-mail to: a-and-r-docket@epa.gov. Comments submitted by e-mail must
be submitted as an ASCII file to avoid the use of special characters
and encryption problems. Comments also will be accepted on disks in
WordPerfect[reg]
version 5.1, 6.1 or 8 file format. All comments and
data submitted in electronic form must note the docket number: A-93-50.
No confidential business information (CBI) should be submitted by e-
mail. Electronic comments may be filed online at many Federal
Depository Libraries.
Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and clearly label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: OAQPS Document Control Officer,
U.S. EPA, Information Transfer and Program Implementation Division
(C304-04), Research Triangle Park, North Carolina 27711, Attention: Mr.
Jeff Herring. The EPA will disclose information identified as CBI only
to the extent allowed by the procedures set forth in 40 CFR part 2. If
no claim of confidentiality accompanies a submission when it is
received by EPA, the information may be made available to the public
without further notice to the commenter.
World Wide Web (WWW). In addition to being available in the docket,
an electronic copy of today's proposed rule will also be available on
the WWW through EPA's Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of the proposed rule will be posted
on the TTN's policy and guidance page for newly proposed or final rules
at http://www.epa.gov/ttn/oarpg/t5pfpr.html. The TTN provides
information and technology exchange in various areas of air pollution
control. For more information, call the TTN help line at (919) 541-
5384.
Regulated Entities. Categories and entities potentially affected by
this action include facilities currently required to obtain title V
permits by State, local, tribal, or Federal operating permits programs.
Outline. The contents of the preamble are listed in the following
outline:
I. Background
A. The Legal Basis for Requiring Title V Monitoring
B. Court Rulings About Title V Monitoring
C. The EPA's Adjudicatory Orders in Pacificorp and Fort James
II. Proposed Revisions to the Title V Monitoring Requirements
A. Why Is EPA Proposing To Revise Sec. Sec. 70.6(c)(1) and
71.6(c)(1)?
[[Page 58562]]
B. What Revisions Are Being Proposed?
C. How Would This Proposed Rule Affect the Scope of the Current
Title V Monitoring Requirements?
III. Related Actions
IV. Scope of This Proposed Rule and Solicitation of Public Comments
and Public Participation
V. Administrative Requirements
A. Executive Order 12866--Regulatory Planning and Review
B. Unfunded Mandates Reform Act
C. Executive Order 13132: Federalism
D. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
E. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. National Technology Transfer and Advancement Act
H. Paperwork Reduction Act
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. Background
A. The Legal Basis for Requiring Title V Monitoring
By enacting title V as part of the 1990 Act Amendments, Congress
sought to enhance sources' compliance with the Act in two important
ways. First, Congress required that every major stationary source of
air pollution and certain other sources obtain a single, comprehensive
operating permit to assure compliance with all emission limitations and
other substantive Act requirements that apply to the source. 42 U.S.C.
7661a(a), 7661c(a). Second, Congress required that all title V sources
conduct monitoring of their emissions that is sufficient to assure
compliance with applicable requirements under the Act and also certify
compliance with such applicable requirements. 42 U.S.C. 7661c(a),
7661c(c). The Senate Report summarized: ``EPA must require reasonable
monitoring * * * requirements that are adequate to assure compliance.''
S. Rep. No. 101-228, at 350 (1989) (reprinted in 1990 U.S.C.C.A.N.
3385, 3733).
Three provisions of title V set forth Congress' requirements for
monitoring by title V sources. Section 504(c) of the Act requires that
each permit ``shall set forth inspection, entry, monitoring, compliance
certification, and reporting requirements to assure compliance with the
permit terms and conditions.'' 42 U.S.C. 7661c(c). Section 504(a)
requires that each permit ``shall include enforceable emission
limitations and standards * * * and such other conditions as are
necessary to assure compliance with applicable requirements.'' 42
U.S.C. 7661c(a). Section 504(b) contains discretionary authority for
EPA to prescribe by rule ``procedures and methods for determining
compliance and for monitoring * * *'' 42 U.S.C. 7661(b). In addition,
section 114(a)(3) directs EPA to require ``enhanced monitoring'' at all
major stationary sources. 42 U.S.C. 7414(a)(3).
The EPA's title V regulations at Sec. Sec. 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B) require that
[w]here the applicable requirement does not require periodic testing
or instrumental or noninstrumental monitoring (which may consist of
recordkeeping designed to serve as monitoring), [each permit must
contain]
periodic monitoring sufficient to yield reliable data from
the relevant time period that are representative of the source's
compliance with the permit, as reported pursuant to [Sec.
70.6(a)(3)(iii) or Sec. 71.6(a)(3)(iii)]. Such monitoring
requirements shall assure use of terms, test methods, units,
averaging periods, and other statistical conventions consistent with
the applicable requirement. Recordkeeping provisions may be
sufficient to meet the requirements of [Sec. 70.6(a)(3)(i)(B) or
Sec. 71.6(a)(3)(i)(B)].
Furthermore, Sec. Sec. 70.6(c)(1) and 71.6(c)(1) require that each
part 70 and 71 permit contain, ``[c]onsistent with paragraph (a)(3) of
this section, compliance certification, testing, monitoring, reporting,
and recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit.'' 40 CFR part 64, the Compliance
Assurance Monitoring (CAM) rule, as well as the title V regulations
discussed above, implements the statutory ``enhanced monitoring''
requirement. See 62 FR 54900, October 22, 1997.
B. Court Rulings About Title V Monitoring
Two opinions issued by the United States Court of Appeals for the
District of Columbia Circuit (DC Circuit) have addressed the monitoring
required of title V sources. Specifically, the Court reviewed EPA's CAM
rule in Natural Resources Defense Council v. EPA, 194 F.3d 130 (DC Cir.
1999) (NRDC), and reviewed EPA's periodic monitoring guidance under
title V in Appalachian Power Co. v. EPA, 208 F.3d 1015 (DC Cir. 2000)
(Appalachian Power). In NRDC, the Natural Resources Defense Council
argued that the CAM rule was inadequate to meet the statutory mandate
that all major sources be subject to enhanced monitoring because it
excluded units without control devices, units below a 100-ton cutoff,
and certain other categories. 194 F.3d at 135.\1\ The court disagreed,
and upheld the CAM rule and EPA's general enhanced monitoring program.
194 F.3d at 135-37. The court pointed out that certain sources exempt
from CAM were subject to ``other specific rules.'' Id.\2\ The court
then reasoned that all other major sources were subject to one of two
``residual rules'' under part 70: Either the periodic monitoring rule
at Sec. 70.6(a)(3)(i)(B), or the sufficiency rule at Sec. 70.6(c)(1).
Id. at 135-36. The court recognized that ``[w]hile the Part 70 rules
are not as specific as CAM, they have the same bottom line--a major
source must undertake `monitoring * * * sufficient to assure
compliance.'' Id. at 136.\3\
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\1\ For example, CAM exempts acid rain program requirements
under title IV of the Act. See Sec. 64.2(b)(1)(iv).
\2\ For example, sources exempt from acid rain requirements
under CAM (see supra n. 1) are subject to state-of-the-art
monitoring under section 412 of the Act and 40 CFR part 75.
\3\ The entire relevant passage reads as follows:
Specifically, EPA demonstrated that many of the major stationary
sources exempt from CAM are subject to other specific rules, and if
they are not, they are subject to the following two residual rules:
(1) ``[The permit shall contain]
periodic monitoring sufficient to
yield reliable data * * * that are representative of the source's
compliance with the permit.* * *'' 40 CFR 70.6(a)(3)(i)(B); (2)
``All part 70 permits shall contain the following elements with
respect to compliance: (1) Consistent with paragraph (a)(3) of this
section, compliance certification, testing, [and]
monitoring * * *
requirements sufficient to assure compliance with the terms and
conditions of the permit.'' Id. Sec. 70.6(c)(1).
While the part 70 rules are not as specific as CAM, they have
the same bottom line--a major source must undertake ``monitoring * *
* sufficient to assure compliance.'' Like CAM, the monitoring
protocols will be developed on a unit-by-unit basis. Such monitoring
is sufficiently ``enhanced'' over the pre-1990 situation to satisfy
the statutory requirement. See Compliance Assurance Monitoring, 62
FR 54900, 54904, October 22, 1997. Id.
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In Appalachian Power, a different panel of the D.C. Circuit set
aside EPA's ``Periodic Monitoring Guidance'' \4\ after finding that it
had in effect amended part 70's periodic monitoring rule at Sec.
70.6(a)(3)(i)(B) by interpreting that rule too broadly to cover
situations where the underlying applicable requirement called for some
kind of ``periodic'' testing or monitoring, but such monitoring was not
sufficient to assure compliance. 208 F.3d at 1028. The Appalachian
Power court held that in its current form, the periodic monitoring rule
authorized sufficiency reviews of monitoring and testing in an existing
emissions standard, and enhancement of that monitoring or testing
through the
[[Page 58563]]
permit, only when that standard ``requires no periodic testing,
specifies no frequency, or requires only a one-time test.'' Id. The
panel did not address the separate ``sufficiency'' requirement of Sec.
70.6(c)(1) or the earlier decision in NRDC, except to note that it
disagreed with EPA's argument that the court in the earlier decision
read the periodic monitoring rule in the same way as the Agency. Id. at
1027 n. 26. The Appalachian Power court set aside the Periodic
Monitoring Guidance, reasoning that the Guidance was ``final agency
action'' that broadened the scope of the periodic monitoring rule
without complying with the rulemaking procedures required by 42 U.S.C.
7607(d). Id. at 1023, 1028.
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\4\ ``Periodic Monitoring Guidance,'' signed by Eric V.
Schaeffer, Director, Office of Regulatory Enforcement, and John S.
Seitz, Director, Office of Air Quality Planning and Standards,
September 15, 1998.
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C. The EPA's Adjudicatory Orders in Pacificorp and Fort James
Following the NRDC and Appalachian Power decisions, EPA was called
upon to clarify the scope of the title V monitoring requirements in two
adjudicatory orders responding to petitions requesting that the
Administrator object to title V permits under section 505(b)(2) of the
Act.\5\ In the Matter of Pacificorp's Jim Bridger and Naughton Electric
Utility Steam Generating Plants, Petition No. VIII-00-1 (November 16,
2000) (Pacificorp) (available on the Internet at http://www.epa.gov/
region07/programs/artd/air/title5/petitiondb/petitions/woc020.pdf); In
the Matter of Fort James Camas Mill, Petition No. X-1999-1 (December
22, 2000) (Fort James) (available on the Internet at: http://www.epa.gov/
region07/programs/artd/air/title5/petitiondb/petitions/
fortjamesdecision1999.pdf). Notice of these decisions was published in
the Federal Register. See 66 FR 85, January 2, 2001 (Pacificorp); 66 FR
13529, March 6, 2001 (Fort James).
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\5\ Section 505(b)(2) authorizes any person to petition the
Administrator to object to a title V permit within 60 days after the
expiration of EPA's 45-day review period and directs the
Administrator to grant or deny such petitions and to issue an
objection if the petitioner demonstrates that the permit is not in
compliance with the applicable requirements of the Act. 42 U.S.C.
7661d(b)(2).
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The first order, Pacificorp, responded to a petition in which
Wyoming Outdoor Council requested that the Administrator object to two
title V permits issued by the State of Wyoming. The petition alleged,
in relevant part, that the permits, which required only a quarterly
Method 9 visual observation, were deficient because they failed to
assure compliance with the 20 percent opacity limit in the Wyoming
State Implementation Plan (SIP). The Administrator's response
summarized the monitoring requirements of the Act and part 70, quoting
from sections 114(a)(3), 504(a) and 504(c), and from Sec. Sec.
70.6(a)(3)(i)(B) and 70.6(c)(1). Id. The response then summarized the
NRDC and Appalachian Power decisions. Pacificorp at 16-18. In
particular, the Administrator observed that the NRDC panel had based
its holding that EPA had satisfied the statutory mandates to require
adequate monitoring for all permits at major sources on the two
``residual rules'' in part 70: Sec. Sec. 70.6(a)(3)(i)(B) and
70.6(c)(1). Id. at 16-17 (citing NRDC, 194 F.3d at 135-37). She also
observed that the Appalachian Power panel had held that Sec.
70.6(a)(3)(i)(B) must be read narrowly to apply only when the
underlying emission standard ``requires no periodic testing, specifies
no frequency, or requires only a one-time test.'' Pacificorp at 18
(quoting Appalachian Power, 208 F.3d at 1028). Finally, she observed
that the Appalachian Power panel did not address Sec. 70.6(c)(1), or
the earlier decision in NRDC (except to note that it disagreed with
EPA's contention that the NRDC panel had read Sec. 70.6(a)(3)(i)(B) in
the same broad fashion as had EPA). Pacificorp at 18 (citing
Appalachian Power, 208 F.3d at 1028 n. 26).
The Administrator then set forth her understanding of the current
monitoring requirements by harmonizing the NRDC and Appalachian Power
decisions. Specifically, the Administrator stated that in light of
those decisions, where an applicable requirement requires no
``periodic'' testing or monitoring at all, ``section 70.6(c)(1)'s
requirement that monitoring be sufficient to assure compliance will be
satisfied'' by meeting the more substantive requirements of Sec.
70.6(a)(3)(i)(B). Where, in accordance with Appalachian Power, the
latter periodic monitoring provision does not apply because there is
some ``periodic'' monitoring but it is not sufficient to assure
compliance, the ``separate regulatory standard'' in Sec. 70.6(c)(1)
governs instead and requires enhancement of existing monitoring ``as
necessary to be sufficient to assure compliance.'' Pacificorp at 18-19.
Based on this understanding, the Administrator found that since the
Wyoming SIP called for quarterly Method 9 visual readings, and this was
``periodic,'' then in accordance with Appalachian Power ``the
provisions of 40 CFR 70.6(a)(3)(i)(B) do not apply.'' She then found
that such monitoring: is not sufficient to ``assure compliance'' with
the 20 [percent]
opacity limit in the Wyoming SIP within the meaning of
Sec. 70.6(c)(1) and sections 504(a) and 504(c) of the Clean Air Act,
and does not constitute enhanced monitoring within the meaning of
section 114(a)(3) of the Act. Id. at 19. The Administrator granted the
petition in part and denied it in part. (See 66 FR 85, January 2,
2001).
The Administrator subsequently responded to another citizen
petition to object alleging numerous monitoring deficiencies in a
permit issued by the State of Washington, the Fort James order. As in
Pacificorp, the petition raised monitoring issues, and the
Administrator ruled similarly. She explained that where it was clear
that there was no underlying monitoring of a ``periodic'' nature, Sec.
70.6(a)(3)(i)(B) applied and decided the claims accordingly. Where
there was some underlying monitoring that could be considered periodic,
she applied the general sufficiency standard in Sec. 70.6(c)(1) and
decided the claims on that basis. The petition was granted in part and
denied in part. See Fort James at 5-9; 66 FR 13529, March 6, 2001.
II. Proposed Revisions to the Title V Monitoring Requirements
A. Why Is EPA Proposing To Revise Sec. Sec. 70.6(c)(1) and 71.6(c)(1)?
This proposed rule responds to assertions by some industry
representatives that the NRDC and Appalachian Power court decisions
have created uncertainty and confusion on the part of some source
owners and operators, permitting authorities and citizens as to the
scope of the title V monitoring requirements. The EPA also is proposing
this rule and undertaking the related actions described below
consistent with the defense of pending litigation, Utility Air
Regulatory Group v. EPA, No. 01-1204 (DC Cir.) (UARG).\6\ While EPA has
harmonized the NRDC and Appalachian Power decisions to clarify the
title V monitoring requirements in the Pacificorp and Fort James
orders, some industry representatives and others have maintained that
EPA's understanding as
[[Page 58564]]
stated in the orders is based on an overbroad reading of Sec. Sec.
70.6(c)(1) and 71.6(c)(1). Under EPA's current title V regulations,
these parties have asserted that Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
cannot be read to require ``sufficient'' monitoring where Sec.
70.6(a)(3)(i)(B) or Sec. 71.6(a)(3)(i)(B) does not apply (e.g., where
the permit already contains some monitoring that can be considered
``periodic'' but that is not sufficient to assure compliance with the
permit's terms and conditions) because Sec. Sec. 70.6(c)(1) and
71.6(c)(1) as currently written expressly provide that monitoring
sufficient to assure compliance be ``[c]onsistent with [Sec.
70.6(a)(3) or Sec. 71.6(a)(3)].'' In short, these parties interpret
this prefatory language to mean that Sec. Sec. 70.6(c)(1) and
71.6(c)(1) must have the same limited meaning as Sec. Sec. 70.6(a)(3)
and 71.6(a)(3), respectively, because ``consistent with [Sec.
70.6(a)(3) or Sec. 71.6(a)(3)]'' means ``identical to the scope and
content of [Sec. 70.6(a)(3) or Sec. Sec. 71.6(a)(3)].'' Under this
view, Sec. Sec. 70.6(a)(3) and 71.6(a)(3) require that inadequate but
``periodic'' monitoring must be accepted without enhancement.
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\6\ The EPA's interpretation of Sec. Sec. 70.6(c)(1) and
71.6(c)(1) as they are currently written has been challenged in
litigation pending before the DC Circuit. Specifically, the Utility
Air Regulatory Group (UARG) has sought judicial review of the
interpretation set out by EPA in the Fort James order and restated
in an ``Instruction Manual'' dated January 2001 that was posted on
EPA's web site to assist those completing permit application forms
under the part 71 federal operating permit program. Pursuant to
section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), The UARG also
has sought review of the final part 70 and part 71 regulations by
alleging ``grounds arising after'' the time allowed for seeking
judicial review. In its brief defending its current interpretation,
EPA informed the court of its intention to issue this proposed rule
and the companion interim final rule described below. See UARG.
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The EPA disagrees with these assertions that the prefatory
``consistent with'' language limits the scope of Sec. Sec. 70.6(c)(1)
and 71.6(c)(1). Indeed, interpreting ``consistent with'' to mean
``identical to'' as some parties have suggested would render the second
clause of Sec. Sec. 70.6(c)(1) and 71.6(c)(1), which requires
monitoring ``sufficient to assure compliance,'' superfluous, and would
imply that the NRDC court's discussion of Sec. 70.6(c)(1) was
redundant. By contrast, EPA has reasonably interpreted ``consistent
with'' to mean ``compatible with [Sec. 70.6(a)(3) or Sec.
71.6(a)(3)].'' Under EPA's interpretation, Sec. Sec. 70.6(c)(1) and
71.6(c)(1) are separate sources of regulatory authority from Sec. Sec.
70.6(a)(3) and 71.6(a)(3), and Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
independently require that all monitoring in title V permits be
sufficient to assure compliance with the permits' terms and conditions.
As EPA explained in the Pacificorp and Fort James orders, EPA believes
that the ``consistent with'' language means that the broadly
applicable, but bare sufficiency provisions at Sec. 70.6(c)(1) [or
Sec. 71.6(c)(1)]
will be satisfied by compliance with the substantive
monitoring requirements of Sec. 70.6(a)(3)(i)(B) [or Sec.
71.6(a)(3)(i)(B)]
where the latter periodic monitoring provision
applies. In other words, where Sec. 70.6(a)(3)(i)(B) [or Sec.
71.6(a)(3)(i)(B)]
applies, its more specific requirements (e.g.,
reliable data from the relevant time period that are representative of
the source's compliance) are deemed sufficient to assure compliance,
and where Sec. 70.6(a)(3)(i)(B) or [Sec. 71.6(a)(3)(i)(B)]
does not
apply, the general sufficiency requirement at Sec. 70.6(c)(1) [or
Sec. 71.6(c)(1)]
comes into play. See Pacificorp at 18-19; Fort James
at 9.
The EPA's interpretation of the prefatory ``consistent with''
language in Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is a reasonable one
and is indeed the better interpretation, because it gives meaning to
the second clause of Sec. Sec. 70.6(c)(1) and 71.6(c)(1), advances the
statutory monitoring requirements, and harmonizes the NRDC and
Appalachian Power decisions with each other. Nonetheless, EPA
recognizes that further clarification through rulemaking would be
useful. In addition, EPA has received numerous requests from permitting
authorities and citizens requesting clarification of the title V
monitoring requirements, including a letter from eighty-one
environmental and public health organizations asking EPA to revise the
part 70 regulations to address monitoring in light of the court's
decision in Appalachian Power.
B. What Revisions Are Being Proposed?
The EPA is proposing to remove the underscored prefatory language
to Sec. Sec. 70.6(c)(1) and 71.6(c)(1) providing that all title V
permits contain, ``[c]onsistent with paragraph (a)(3) of this section,
compliance certification, testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit.'' The removal of the prefatory
language would expressly uncouple the sufficiency monitoring
provisions, Sec. Sec. 70.6(c)(1) and 71.6(c)(1), from the periodic
monitoring provisions, Sec. Sec. 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B), and make more clear the regulatory distinction
between the two sets of provisions. Specifically, the removal would
clarify the respective scopes of the periodic monitoring and
sufficiency monitoring provisions, eliminating any possible confusion
under the current regulations as to when a title V permit must contain
monitoring sufficient to assure compliance. The EPA notes that despite
this proposed change, EPA would retain its interpretation, set forth in
the Pacificorp and Fort James orders, that where Sec. 70.6(a)(3)(i)(B)
or Sec. 71.6(a)(3)(i)(B) applies, it satisfies the general sufficiency
requirement of Sec. 70.6(c)(1) or Sec. 71.6(c)(1).
The removal of the prefatory language would codify the
understanding set forth in the Pacificorp and Fort James orders, where
the Administrator characterized Sec. 70.6(c)(1) as a ``separate
regulatory standard'' from Sec. 70.6(a)(3)(i)(B). The removal also
would be consistent with the court's holding in NRDC that Sec. Sec.
70.6(a)(3)(i)(B) and 70.6(c)(1) together ensure that a major source
must undertake ``monitoring * * * sufficient to assure compliance''
where the CAM rule or other more specific rules governing major sources
do not require such monitoring. 194 F.3d at 136. Finally, the removal
would be consistent with the court's decision in Appalachian Power,
which, as noted above, did not construe Sec. 70.6(c)(1). See 208 F.3d
at 1027 n.26.
Under this proposed rule, the periodic monitoring and sufficiency
monitoring provisions would work together as follows. Where an
applicable requirement did not require any periodic testing or
monitoring, permit conditions would be required to establish ``periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit.'' Sections 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). In contrast,
where the applicable requirement already required ``periodic'' testing
or monitoring but that monitoring was not sufficient to assure
compliance, the separate regulatory standard at Sec. 70.6(c)(1) or
Sec. 71.6(c)(1) would apply instead to require monitoring ``sufficient
to assure compliance with the terms and conditions of the permit.''
Furthermore, where Sec. 70.6(a)(3)(i)(B) or Sec. 71.6(a)(3)(i)(B)
applied, it would satisfy the general sufficiency requirement of Sec.
70.6(c)(1) or Sec. 71.6(c)(1).
C. How Would This Proposed Rule Affect the Scope of the Current Title V
Monitoring Requirements?
This proposed rule would not affect the scope of the title V
monitoring requirements as previously construed by the DC Circuit in
NRDC and Appalachian Power, or as set forth in EPA's Pacificorp and
Fort James orders. Rather, the purpose of this proposed rule is simply
to clarify that under Sec. Sec. 70.6(c)(1) and 71.6(c)(1), all title V
permits must include monitoring sufficient to assure compliance with
the permits' terms and conditions, as required by sections 504(a),
504(b), 504(c), and 114(a)(3) of the Act. As stated above, the purpose
is to eliminate any possible confusion about the scope of the
sufficiency monitoring provisions at Sec. Sec. 70.6(c)(1) and
71.6(c)(1) that may arise due to their prefatory references to
[[Page 58565]]
the periodic monitoring provisions at Sec. Sec. 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B).
III. Related Actions
Two separate rulemakings are related to this proposed rule. First,
elsewhere in today's Federal Register, in the rules section, EPA is
promulgating an interim final rule to suspend, for sixty days, the same
prefatory phrase in Sec. Sec. 70.6(c)(1) and 71.6(c)(1) as would be
removed by this proposed rule. The EPA intends that this proposed rule
will be promulgated as a final rule and will become effective when the
interim final rule sunsets. In addition, EPA intends to initiate a
second, notice-and-comment rulemaking process to consider more
comprehensively means of meeting the statutory monitoring requirements.
IV. Scope of This Proposed Rule and Solicitation of Public Comments and
Public Participation
This proposed rule is limited to the removal of the prefatory
phrase ``[c]onsistent with paragraph (a)(3) of this section'' from
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) in order to clarify the scope of
these provisions. This proposed rule does not address any other issues
related to title V monitoring, such as the type of monitoring required
under the periodic monitoring provisions, Sec. Sec. 70.6(a)(3)(i)(B)
and 71.6(a)(3)(i)(B), or under the sufficiency monitoring provisions,
Sec. Sec. 70.6(c)(1) and 71.6(c)(1). As indicated above, EPA elsewhere
in today's Federal Register is promulgating an interim final rule,
effective immediately, to revise Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
to suspend, for sixty days, the same prefatory phrase as this proposed
rule would remove.
The EPA seeks full public participation in arriving at final
decisions and is soliciting public comment on this proposed rule from
all interested parties. The EPA expects to consider comments on other
issues relating to title V monitoring during the separate, more
comprehensive rulemaking that is also planned and described above.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether a 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 a ``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,
adversely affecting in a material way the 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.
Under Executive Order 12866, it has been determined that this
proposed rule is a ``significant regulatory action'' and is therefore
subject to OMB review. Today's proposed rule raises important legal and
policy issues associated with the court's decisions in Appalachian
Power and NRDC and EPA's adjudicatory orders in Pacificorp and Fort
James. Therefore, this action is a ``significant regulatory action.''
Prior to promulgation of this rule, EPA will perform a regulatory
impact analysis.
B. 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, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more * * * in any one year.'' A ``Federal mandate'' is
defined to include a ``Federal intergovernmental mandate'' and a
``Federal private sector mandate.'' 2 U.S.C. 658(6). A ``Federal
intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments,'' 2 U.S.C. 658(5)(A)(i), except for, among other
things, a duty that is ``a condition of Federal assistance.'' 2 U.S.C.
658(5)(A)(i)(I). A ``Federal private sector mandate'' includes a
regulation that ``would impose an enforceable duty upon the private
sector,'' with certain exceptions [2 U.S.C. 658(7)(A)].
Before promulgating a rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA 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 where they are inconsistent with applicable law. Moreover,
section 205 allows EPA 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 why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, EPA must have developed
under section 203 of the UMRA a small government agency plan. The 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 our regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The EPA has determined under the regulatory provisions of title II
of the UMRA that today's proposed rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. Today's proposed rule imposes no new requirements but
rather clarifies existing requirements. Thus, today's proposed rule is
not subject to the requirements of sections 202 or 205 of the UMRA.
In addition, EPA has determined that this proposed rule contains no
regulatory requirements that might significantly or uniquely affect
small governments because it imposes no new requirements and imposes no
additional obligations beyond those of existing regulations. Therefore,
today's proposed rule is not subject to the requirements of section 203
of the UMRA.
C. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA 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, or on the distribution of power and
[[Page 58566]]
responsibilities among the various levels of government.''
Today's proposal does not have federalism implications. It will 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 proposal will not impose
any new costs or requirements over those considered during the original
promulgation of the rules because it will merely clarify those existing
requirements. (See original promulgations at 57 FR 32250, July 21, 1992
for part 70, and 61 FR 34202, July 1, 1996 for part 71.) Accordingly,
it will not alter the overall relationship or distribution of powers
between governments for the part 70 and part 71 operating permits
programs. Thus, Executive Order 13132 does not apply to this proposed
rule.
In the spirit of Executive order 13132, and consistent with EPA
policy to promote communication between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
D. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments'' (59 FR 22951, November 6, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Today's proposed rule revisions do not have tribal implications
because they will 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, as specified in
Executive Order 13175. Today's action does not significantly or
uniquely affect the communities of Indian tribal governments. As
discussed above, today's action imposes no new requirements that would
impose compliance burdens beyond those that would already apply.
Accordingly, the requirements of Executive Order 13175 do not apply to
these proposed rule revisions.
E. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute 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
organizations, and small government jurisdictions.
For purposes of assessing the impacts of today's proposal on small
entities, a small entity is defined as: (1) A small business that has
fewer than 750 employees; (2) a small governmental jurisdiction that is
a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
Today's proposed rule would merely clarify existing requirements
and would not create a new burden for regulated entities, such as small
entities. The EPA has determined there will be no additional costs on
any small entities associated with today's proposed revisions to part
70 and part 71. After considering the economic impact of today's
proposed rule on small entities, I certify that this action will not
have a significant economic impact on a substantial number of small
entities. Therefore, a regulatory flexibility analysis is not required.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines is (1) ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have 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.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risk, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. Today's proposed rule is not
subject to Executive Order 13045 because it is not ``economically
significant'' under Executive Order 12866 and it does not establish an
environmental standard intended to mitigate health or safety risks.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, directs EPA to use
voluntary consensus standards in its regulatory 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, and business
practices) that are developed or adopted by voluntary consensus bodies.
The NTTAA directs EPA to provide Congress, through OMB, explanations
when the Agency decides not to use available and applicable voluntary
consensus standards.
The NTTAA does not apply to this proposed rule because it does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.
H. Paperwork Reduction Act
The information collection requirements for parts 70 and 71 were
previously approved by OMB under the requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is
assigned ICR number 1587.05 and OMB number 2060-0243; for part 71, the
ICR number is 1713.04 and the OMB number is 2060-0336. A copy of these
ICRs may be obtained by mail to: Director, Collection Strategies
Division (2822), Office of Environmental Information, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. A copy may also be downloaded off
the internet at [chyph]http://www.epa.gov/icr.
Today's proposed revision to the current part 70 and 71 rules will
have no impact on the information collection burden estimates made
previously for these rules because it would not impose any new
information collection requirements beyond those already required under
the existing rules
[[Page 58567]]
because the proposed rule would merely clarify existing requirements.
Therefore, the existing Information Collection Request (ICR) documents
for these rules have not been revised. In developing the final rule,
this will be analyzed again and, if it is determined that there are new
information collection requirements resulting from the final rule, the
ICR for these rules will be revised.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not a ``significant energy action,'' as
defined in to Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. As noted
earlier, this action would simply clarify existing requirements and
would not impose any new requirements, and thus would not affect the
supply distribution, or use of energy.
List of Subjects
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 71
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Reporting and recordkeeping requirement.
Dated: September 4, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In Sec. 70.6(c)(1) by revising the first sentence to read as
follows:
Sec. 70.6 Permit content.
* * * * *
(c) * * *
(1) Compliance certification, testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit. * * *
* * * * *
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In Sec. 71.6(c)(1) by revising the first sentence to read as
follows:
Sec. 71.6 Permit content.
* * * * *
(c) * * *
(1) Compliance certification, testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit. * * *
* * * * *
[FR Doc. 02-23588 Filed 9-16-02; 8:45 am]
BILLING CODE 6560-50-P