[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Proposed Rules]
[Pages 58561-58567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23588]


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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: [email protected].

SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted 
by e-mail to: [email protected]. 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'' (65 FR 67249, 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