PROPOSED RULE INTERPRETING THE SCOPE OF CERTAIN MONITORING REQUIREMENTS FOR STATE AND FEDERAL OPERATING PERMITS PROGRAMS
- On May 25, 2006, the Environmental Protection Agency proposed its interpretation that the section of the Clean Air Act title V Operating Permits regulations known as the umbrella monitoring rule should not be used to assess the adequacy of monitoring requirements in existing emissions reductions rules or to supplement those requirements.
- Existing rules that have monitoring requirements, include:
- new source performance standards (NSPS) in 40 CFR part 60,
- national emissions standards for hazardous air pollutants (NESHAP) in 40 CFR parts 61 and 63,
- acid rain program rules as defined by 40 CFR parts 72 through 78, and
- state implementation plan (SIP), tribal implementation plan (TIP), and federal implementation plan (FIP) rules approved under title I of the Clean Air Act.
- In 1990, Congress amended the Clean Air Act to require all states to develop operating permit programs. These programs require an operating permit for each industrial facility that is a “major source” of air pollution. These permits clarify which underlying federal air pollution control requirements (applicable requirements) apply to the facility and requires the facility to share in tracking its compliance with meeting the requirements.
- Under this operating permits program, a facility is considered a major source when it emits minimum levels of a specific air pollutant. This can be a little as 10 tons per year or less.
- The applicable requirements that go into operating permits come from other parts of the Clean Air Act and EPA’s regulations. These regulations typically:
- limit the amount of air pollution the facility can emit,
- require the facility to construct and operate specific pollution control equipment,
- require specific work practices to be performed to reduce emissions, and
- require monitoring and recordkeeping for the facility to determine its compliance with the limits, pollution controls, and work practices mentioned above.
- On September 17, 2002 (67 FR 58561), EPA proposed changes to the so called “umbrella monitoring” rules under the clean air operating permits program. The umbrella monitoring rules require operating permits to contain monitoring to ensure that a facility is complying with its Clean Air Act requirements. EPA proposed to use the umbrella monitoring rules to require state and local permitting agencies to review existing monitoring and to enhance inadequate monitoring while processing permit applications.
- After reviewing public comment on the September 2002 proposal, EPA issued a final rule in January 2004. In this final rule, EPA did not make its proposed changes to the umbrella monitoring rules. The final rule clarified that the umbrella monitoring rules do not establish a separate basis for requiring monitoring that would be different from any monitoring required by the periodic monitoring rules.
- Under January 2004 final rule, an operating permit is required to include:
- monitoring as required by existing federal and state air pollution control requirements that apply to the facility – examples include monitoring required by new source performance standards and state implementation plan regulations.
- monitoring required under EPA’s periodic monitoring rules (i.e., §§70.6(a)(3) and 71.6(a)(3)).
- Permitting authorities must complete a review to determine if the monitoring required by the applicable requirements is periodic. If the applicable requirement specifies no monitoring or no frequency for assuring compliance with an applicable emissions limit, the permitting authority must use EPA’s periodic monitoring rules to fix the problem. In many cases, monitoring in applicable requirements will be periodic.
- Petitioners challenged the Agency’s January 22, 2004 rule on the basis that it unlawfully and arbitrarily prohibited permitting authorities from requiring additional monitoring in title V operating permits where monitoring in underlying applicable requirements were not sufficient to assure compliance.
- On October 7, 2005, the United States Court of Appeals vacated the January 22, 2004, rule on the basis that EPA had unlawfully reversed our position as outlined in the September 17, 2002 proposal without allowing adequate public notice and comment.
- Interested parties can download the notice from EPA's web site on the Internet under recently signed rules at the following address: http://www.epa.gov/ttn/oarpg/ramain.html.
- Today's proposed amendments and other background information are also available either electronically in EDOCKET, EPA's electronic public docket and comment system, or in hardcopy at EPA's Air and Radiation Docket and Information Center, Environmental Protection Agency, Room B102, 1301 Constitution Avenue, NW, Washington, D.C. (Docket ID No. OAR-2003-0179). The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket and Information Center is (202)566-1742.
- HOW TO COMMENT: Comments will be accepted for 60 days beginning when this proposal is published in the Federal Register. All comments should be identified by Docket ID No. OAR-2003-0179 and submitted by one of the following methods:
- Federal eRulemaking Portal ( http://www.regulations.gov );
- Facsimile ((202) 566-1741);
- Mail (Air and Radiation Docket and Information Center, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460); or
- Hand delivery (Air and Radiation Docket and Information Center, Environmental Protection Agency, Room B102, 1301 Constitution Avenue, NW, Washington, DC).
- For additional information, visit the EPA's website at: http://www.epa.gov/ttn/atw/eo/eopg.html or contact Peter Westlin of the EPA's Office of Air Quality Planning and Standards at (919) 541-1058 or by e-mail at firstname.lastname@example.org.