[Federal Register Volume 66, Number 41 (Thursday, March 1, 2001)]
[Proposed Rules]
[Pages 12916-12920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4976]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[FRL-6934-6]
RIN 2060-AJ04


State and Federal Operating Permits Programs: Amendments to 
Compliance Certification Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: We, the EPA, are proposing to amend the State Operating 
Permits

[[Page 12917]]

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. We 
believe this proposed amendment will not affect the stringency of the 
existing standards. We do not consider this amendment controversial and 
expect no negative comments, so we are also publishing it as a direct 
final rule without prior proposal in the Final Rules section of this 
Federal Register publication. We have set forth and detailed rationale 
for this approval in the direct final rule. We will consider any 
negative comments about today's direct final rule to also be negative 
comments about this proposal. We will take no further action unless, 
within the time allowed (see DATES), we receive negative comments about 
the proposal or final rule, or we receive a request for a public 
hearing on the proposal. If we receive no adverse comments, we 
contemplate no further action on this proposal. We will not institute a 
second comment period on this action. People interested in commenting 
on the direct final rule should do so at this time.

DATES: Comments. We will accept comments regarding the proposed 
amendment on or before April 2, 2001. We will arrange a public hearing 
concerning the accompanying proposed rule if we receive a request for 
one by March 16, 2001. If someone requests a hearing it will be held on 
April 16, 2001 beginning at 10 a.m. For more information about 
submittal of comments and requesting a public hearing, see the 
SUPPLEMENTARY INFORMATION section in this preamble.

ADDRESSES: Comments. Interested parties having comments on this action 
may submit these comments in writing (original and two copies, if 
possible) to Docket No. A-91-52 at the following address: Air and 
Radiation Docket and Information Center (6102), US Environmental 
Protection Agency, 401 M Street, SW., Room 1500, Washington, DC 20460. 
We request that a separate copy of the comments also be sent to the 
contact person listed in the following paragraph of this preamble.
    If someone requests a hearing, the hearing will be held at the EPA 
Office of Administration Auditorium, Research Triangle Park, NC.

FOR FURTHER INFORMATION CONTACT: Peter Westlin, Environmental 
Protection Agency, Office Air Quality Planning and Standards, at 919/
541-1058, e-mail: [email protected], facsimile 919/541-1039.

SUPPLEMENTARY INFORMATION: Regulated entities. The requirements in this 
proposed regulation may apply to you if you own or operate any facility 
subject to the compliance certification requirements of part 70 or 71. 
These proposed 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 to the 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: [email protected]. 
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 
many Federal Depository Libraries.
    Docket. Docket A-91-52 contains the supporting information for the 
original NESHAP and this action. This Federal Register document and 
other materials related to this proposed rule are available for review 
in the docket. The docket is available for public inspection and 
copying at the EPA's docket office located at the above address in Room 
M-1500, Waterside Mall (ground floor). The public is encouraged to 
phone in advance to review docket materials. Appointments can be 
scheduled by phoning the Air Docket Office at (202) 260-7548. A 
reasonable fee may be charged for copying docket materials.
    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 Transfer 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

[[Page 12918]]

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 
requirements of the Act regarding enhanced monitoring and that the 
parts 70 and 71 revisions were inconsistent with the Act's explicit 
requirement that compliance certifications indicate 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 ran contrary 
to the statutory requirement that each source must certify ``whether 
compliance is continuous or intermittent * * *'' See Sec. 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)), EPA 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 EPA's interpretation that (1) the 
statutory requirement to certify whether compliance is continuous or 
intermittent had sufficient flexibility to allow the approach taken in 
the CAM 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 EPA's interpretation of the statutory 
language and remanded the revisions to Part 70 to EPA. As a result, the 
guidance above is no longer justified. Accordingly, EPA withdraws 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. EPA is 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

[[Page 12919]]

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 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 proposed 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 an agency 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 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

[[Page 12920]]

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 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.

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 are not considering 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.
[FR Doc. 01-4976 Filed 2-28-01; 8:45 am]
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