[Federal Register Volume 69, Number 14 (Thursday, January 22, 2004)]
[Rules and Regulations]
[Pages 3202-3212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1362]



[[Page 3201]]

-----------------------------------------------------------------------

Part II





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Parts 70 and 71



Revisions To Clarify the Scope of Certain Monitoring Requirements for 
Federal and State Operating Permits Programs; Final Rule

  Federal Register / Vol. 69, No. 14 / Thursday, January 22, 2004 / 
Rules and Regulations  

[[Page 3202]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[FRL-7612-5, E-Docket ID. No. OAR-2003-0179 (Legacy Docket ID No. A-90-
50)]
RIN 2060-AK29


Revisions To Clarify the Scope of Certain Monitoring Requirements 
for Federal and State Operating Permits Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Today's action ratifies certain current language of the State 
and federal operating permits program rules under title V of the Clean 
Air Act (Act) concerning monitoring and declines to adopt the changes 
to the regulatory text of the monitoring rules that were proposed on 
September 17, 2002. Today EPA also announces a different interpretation 
of the ``umbrella monitoring'' rules (40 CFR 70.6(c)(1) and 71.6(c)(1)) 
from that set forth in the preamble to that proposal. Notwithstanding 
the recitation in the umbrella monitoring rules of monitoring as a 
permit element, EPA has determined that the correct interpretation of 
the umbrella monitoring rules is that they do not establish a separate 
regulatory standard or basis for requiring or authorizing review and 
enhancement of existing monitoring independent of any review and 
enhancement as may be required under separate provisions of the 
operating permits rules. As explained in this action, the umbrella 
monitoring rules do not provide a basis for adding monitoring to title 
V permits independent of monitoring required under existing federal air 
pollution control rules and State implementation plan (SIP) rules 
(i.e., monitoring required under applicable requirements), including 
monitoring required under the compliance assurance monitoring (CAM) 
rule where it applies, and such monitoring as may be required under the 
periodic monitoring rules. Accordingly, EPA interprets the umbrella 
monitoring rules to require that title V permits contain monitoring 
required under applicable requirements, including monitoring required 
under the CAM rule where it applies, and such monitoring as may be 
required under the periodic monitoring rules. Together, such monitoring 
will constitute monitoring sufficient to assure compliance as required 
by the Act.
    Today's action is the first step in a four-step strategy for 
considering programmatic improvements to existing monitoring where 
necessary through rulemaking while reducing resource-intensive, case-
by-case monitoring reviews and so-called ``gap-filling'' in title V 
permits. In addition, EPA intends to encourage States to improve 
monitoring requirements in certain SIP rules through guidance to be 
developed in connection with a separate rulemaking concerning the 
implementation of the national ambient air quality standards (NAAQS) 
for fine particulate matter to be published in the near term. The EPA 
also intends to publish an advance notice of proposed rulemaking (ANPR) 
in the near term to ask for comments on inadequate monitoring in 
applicable requirements (in addition to any monitoring addressed in the 
fine particulate guidance and rulemaking) and on appropriate methods 
for upgrading such monitoring. Finally, EPA expects to conduct a 
separate notice and comment rulemaking to address what types of 
existing monitoring are ``periodic'' under the periodic monitoring 
rules, and when the periodic monitoring rules apply, what types of 
monitoring satisfy the monitoring criteria contained in the periodic 
monitoring rules.
    Under the Act, EPA has discretion to implement the title V 
monitoring requirements through rulemakings or case-by-case permit 
reviews. Today, EPA is committing to exercise its discretion under the 
Act to require any necessary improvements to existing monitoring 
through rulemaking, except where the periodic monitoring rules 
authorize the case-by-case addition of monitoring to individual 
permits. The EPA's interpretation of the Act, its own regulations, 
recent Court decisions, and several policy considerations underlie this 
decision. EPA believes, as a matter of policy, that it will be less 
burdensome on State, local and tribal permitting authorities and on 
sources, and far more equitable and efficient, to require any necessary 
improvements in monitoring requirements through rulemakings to revise 
federal applicable requirements or SIP rules, rather than by requiring 
permitting authorities to conduct case-by-case sufficiency monitoring 
reviews of individual permits.
    Furthermore, EPA has decided not to adopt the changes to the 
regulatory text of the umbrella monitoring rules that were proposed in 
September 2002. For various reasons, EPA also has determined that the 
correct interpretation of the umbrella monitoring rules is that they do 
not establish a separate regulatory standard or basis requiring or 
authorizing the review and enhancement of existing monitoring 
independent of such review and enhancement as may be required under 
different provisions of the operating permits program rules that 
specifically set forth permit content requirements for monitoring. Upon 
reflection, EPA now believes that the plain language of the umbrella 
monitoring rules indicates that they constitute ``umbrella provisions'' 
for monitoring that direct permitting authorities to include monitoring 
required under existing statutory and regulatory authorities in 
permits, and which include and gain meaning from the more specific 
requirements for monitoring set forth in different provisions of the 
rules. The policy considerations described in this preamble as relevant 
to EPA's exercise of its discretion under the Act also inform EPA's 
interpretation of the umbrella monitoring rules. Thus, the effect of 
today's action will be that the umbrella monitoring rules neither 
require nor authorize permitting authorities to create new monitoring 
in operating permits, apart from including in permits such monitoring 
as may be required under the periodic monitoring rules and under 
applicable requirements, including the CAM rule where it applies.

EFFECTIVE DATE: This final rule is effective on February 23, 2004.

ADDRESSES: Docket. Docket No. A-93-50 (Electronic Docket No. OAR-2003-
0179), containing supporting information used to develop the proposed 
and final rules, is available for public inspection and copying between 
8:00 a.m. and 4:30 p.m., Monday through Friday (except government 
holidays) at the Air and Radiation Docket (Air Docket) in the EPA 
Docket Center, (EPA/DC) EPA West Building, Room B102, 1301 Constitution 
Avenue, NW., Washington, DC 20004.

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, or electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What Are the Regulated Entities?

    Categories and entities potentially affected by this action include 
facilities currently required to obtain title V permits under State, 
local, tribal, or

[[Page 3203]]

federal operating permits programs, and State, local, and tribal 
governments that issue such permits pursuant to approved part 70 
programs.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. The EPA has established an official public docket for 
this action under Electronic Docket ID No. OAR-2003-0179 (Legacy Docket 
ID No. A-90-50). The official public docket consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public docket does not include confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the Air Docket in the 
EPA Docket Center, (EPA/DC) EPA West Building, Room B102, 1301 
Constitution Ave., NW., Washington, DC 20004. The EPA Docket Center 
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 Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742. A reasonable fee may be charged for copying docket 
materials.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of a portion of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. Interested persons may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the 
index listing of the contents of the official public docket, and access 
those documents in the public docket that are available electronically. 
Once in the system, select ``search,'' then key in the appropriate 
docket identification number.
    Legacy Docket ID No. A-90-50 is the paper-based docket that is 
physically located in the EPA West Building in Washington D.C., while 
Electronic Docket (e-docket) ID No. OAR-2003-0179 is an electronic 
docket more recently created for internet access purposes during the 
course of this rulemaking (between the proposal and the final rule). In 
cases where the new e-dockets system was created during the course of a 
rulemaking, the EPA docket office has not routinely transferred all 
documents from the relevant conventional, paper dockets to the e-
dockets, potentially creating disparities between the paper and e-
dockets. The e-docket and the legacy dockets for this rulemaking 
contain the complete supporting materials for this rulemaking, however, 
each docket is not necessarily complete on its own. Due to this, 
interested persons should check both dockets for complete access to all 
supporting materials.

C. Where Can I Obtain Additional Information?

    In addition to being available in the docket, an electronic copy of 
today's notice is also available on the World Wide Web through the 
Technology Transfer Network (TTN). Following signature by the EPA 
Administrator, a copy of today's notice will be posted on the TTN's 
policy and guidance page for newly proposed or promulgated rules at 
http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control. If more 
information regarding the TTN is needed, call the TTN HELP line at 
(919) 541-5384.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. What Are the Regulated Entities?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    1. Docket
    2. Electronic Access
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. Background
III. What Does Today's Action Involve?
    A. Will the Regulatory Text of the Rules Change Under Today's 
Action?
    B. What Is the Correct Interpretation of Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1)?
    C. What Related Rulemaking Actions Are Planned?
IV. What Is the Policy Rationale for Today's Action?
V. What Is the Legal Basis for Today's Action?
VI. What Comments Were Received on the Proposal and What Are EPA's 
Responses?
    A. Does the Rulemaking Record Support Separate Authority for 
Review and Enhancement of Monitoring Under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1)?
    B. May New Monitoring Be Established in Permits Without Further 
Rulemaking?
    C. Was the Proposal Inconsistent With the Appalachian Power and 
NRDC Decisions?
    D. Does Sec.  70.1(b) Prohibit Monitoring Enhancement in 
Permits?
    E. How Stringent Was Monitoring Under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) in the Proposal?
    F. Does New Monitoring in Permits Increase the Stringency of 
Existing Standards?
    G. Did the Proposal Require Direct Proof of Violations?
    H. Did the Proposal Meet All Administrative Rulemaking 
Requirements?
VII. What Other Related Actions Are Planned Under Today's Approach?
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act Compliance as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

II. Background

    Two provisions of EPA's State and federal operating permits program 
regulations require that title V permits contain monitoring 
requirements. The ``periodic monitoring'' rules, 40 CFR 
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 title V 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) and 
Sec.  71.6(a)(3)(i)(B)].

The ``umbrella monitoring'' rules, Sec. Sec.  70.6(c)(1) and 
71.6(c)(1), require that each title V 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.''
    On September 17, 2002, EPA published a proposed rule (67 FR 58561) 
(the ``proposed rule'') to clarify the scope of the monitoring required 
in title V permits issued by State, local and

[[Page 3204]]

tribal permitting authorities or by EPA. Specifically, EPA proposed to 
remove the italicized 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,'' monitoring ``sufficient to 
assure compliance with the terms and conditions of the permit.'' At 
that time, EPA proposed to clarify the interpretation that Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) established a separate regulatory standard 
from that of the periodic monitoring rules. The EPA believed the 
proposed revisions were necessary to address claims of confusion on the 
part of some source owners and operators, permitting authorities and 
citizens as to the scope of the title V monitoring rules. However, as 
discussed below, EPA has decided not to adopt the proposed revisions 
based on EPA's reasonable interpretation of the Act, the plain language 
and structure of Sec. Sec.  70.6(c)(1) and 71.6(c)(1), and the policy 
considerations discussed in this preamble.

III. What Does Today's Action Involve?

    In today's final action, EPA declines to adopt the proposed 
revisions to the text of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) and 
instead ratifies the regulatory text as it is currently worded. The EPA 
also announces that the Agency has determined that notwithstanding the 
recitation in Sec. Sec.  70.6(c)(1) and 71.6(c)(1) of monitoring as a 
permit element, the correct interpretation of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) is that they do not provide a basis for requiring or 
authorizing review and enhancement of existing monitoring in title V 
permits independent of any review and enhancement as may be required 
under the periodic monitoring rules, the CAM rule (40 CFR part 64)(62 
FR 54900, October 22, 1997) where it applies, and other applicable 
requirements under the Act, including, but not limited to, new source 
performance standards (NSPS), 40 CFR part 60, national emissions 
standards for hazardous air pollutants (NESHAP), 40 CFR part 61, acid 
rain program rules, 40 CFR parts 72 through 78, and SIP, tribal 
implementation plan (TIP) and federal implementation plan (FIP) rules 
approved by EPA under title I of the Act. Finally, EPA announces plans 
to address monitoring for purposes of title V in three separate 
actions.

A. Will the Regulatory Text of the Rules Change Under Today's Action?

    The EPA has decided not to adopt the revisions to the regulatory 
text of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) which we proposed in 
September 2002. Instead, we are ratifying the regulatory text of those 
rules as it is currently worded. Under today's final action, the text 
of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) will continue to require, in 
relevant part, 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.'' 
Today's final action does not change any other regulatory text, as no 
other changes have been proposed.

B. What Is the Correct Interpretation of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1)?

    Notwithstanding the recitation in Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) of monitoring as a permit element, EPA has determined that 
the correct interpretation of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) is 
that these provisions do not establish a separate regulatory standard 
or basis for requiring or authorizing review and enhancement of 
existing monitoring independent of any review and enhancement as may be 
required under Sec. Sec.  70.6(a)(3) and 71.6(a)(3). Thus, Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) require that title V permits contain the 
following types of monitoring: (1) Monitoring required by ``applicable 
requirements'' under the Act as that term is defined in Sec.  70.2, 
including, but not limited to, monitoring required under the CAM rule, 
where it applies, monitoring required under federal rules such as NSPS, 
NESHAP, maximum achievable control technology (MACT) standards, 40 CFR 
part 63, acid rain rules, and SIP, TIP and FIP rules; and (2) such 
monitoring as may be required under Sec. Sec.  70.6(a)(3)(i)(B) and 
71.6(a)(3)(i)(B). See Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. 
Cir. 2000) (Appalachian Power). Thus, for monitoring, Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) constitute ``umbrella provisions'' that 
direct permitting authorities to include monitoring required under 
existing statutory or regulatory authorities in title V permits. Based 
on EPA's interpretation of the Act, the plain language and structure of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1) and the policy considerations 
described in section IV of this preamble, EPA has determined that where 
the periodic monitoring rules do not apply, Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) do not require or authorize a new and independent type of 
monitoring in permits in order for the permits to contain monitoring to 
assure compliance as required by the Act.

C. What Related Rulemaking Actions Are Planned?

    Today's action is the first in a four-step strategy for improving 
existing monitoring where necessary through rulemaking actions while 
reducing resource-intensive, case-by-case monitoring reviews and ``gap-
filling'' in title V permits. The EPA plans to undertake three related 
actions in the near future.
    First, EPA plans to encourage States to improve possibly inadequate 
monitoring in certain SIP rules. Specifically, EPA plans to address 
such monitoring in guidance to be developed in connection with an 
upcoming rulemaking concerning the implementation of the NAAQS for fine 
particulate matter (particulate matter with an aerodynamic diameter of 
less than 2.5 micrometers, or PM 2.5). The primary purpose of the 
proposed PM 2.5 implementation rule will be to describe the 
requirements that States and tribes have to meet in order to implement 
the PM 2.5 NAAQS. Because opacity and particulate monitoring are 
related to compliance with particulate matter standards, one part of 
this proposal will address EPA's plans to develop guidance on how 
States can reduce PM 2.5 emissions by improving source monitoring 
related to particulate matter emission limits. This may include 
increasing the frequency of existing opacity monitoring, adding 
monitoring for parameters of a control device, installing continuous 
particulate emissions monitoring, or a combination of the above.
    Second, EPA plans to identify and consider improving possibly 
inadequate monitoring in certain federal rules or monitoring in SIP 
rules not addressed in connection with the PM 2.5 implementation 
guidance or rulemaking over a longer time frame. To initiate this 
process, we intend to publish an ANPR requesting comment on what 
inadequate monitoring may exist in federal applicable requirements and 
seeking suggestions as to the ways in which inadequate monitoring in 
such rules could be improved. We further intend to request comment on 
inadequate monitoring that may exist in other rules, such as SIP rules 
not addressed in the PM 2.5 implementation rule. Implementation of this 
second step should substantially strengthen our efforts to assure 
compliance with applicable standards. Comments received on the ANPR 
will inform EPA's decision as to what steps to take next. Next steps 
may include national rulemakings to revise federal rules such as NSPS 
or NESHAP, or issuance of

[[Page 3205]]

guidance or SIP calls directing States to correct deficient monitoring 
in certain SIP rules.
    Third, EPA plans to publish a separate proposed rule to address 
what monitoring constitutes ``periodic'' monitoring under Sec. Sec.  
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). As part of this separate 
proposed rule, we also intend to address what types of monitoring 
should be created under Sec. Sec.  70.6(a)(3)(i)(B) and 
71.6(a)(3)(i)(B). Many commenters on the proposed rule raised concerns 
over a lack of definitive guidance on this question, primarily due to 
the fact that EPA has not issued any such guidance since the 
Appalachian Power court set aside the Agency's 1998 ``Periodic 
Monitoring Guidance.''\1\
---------------------------------------------------------------------------

    \1\ ``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.
---------------------------------------------------------------------------

IV. What Is the Policy Rationale for Today's Action?

    Several considerations--many of which were raised in comments on 
the proposed rule--motivate our decision to pursue an approach to title 
V monitoring that will achieve necessary improvements in monitoring 
primarily through national rulemakings or guidance for States to revise 
their SIP rules. We believe this approach will achieve a better balance 
of responsibilities and resource burdens between the States and EPA, 
than by case-by-case monitoring reviews by the permitting authorities 
under Sec. Sec.  70.6(c)(1) and 71.6(c)(1).
    First, today's approach will better balance the responsibilities of 
States and other permitting authorities and EPA to improve monitoring 
where necessary to ensure that the Act's monitoring requirements are 
met. Under the interpretation in the proposed rule, permitting 
authorities would perform case-by-case monitoring reviews of individual 
title V permits under Sec. Sec.  70.6(c)(1) and 71.6(c)(1), which in 
turn would place many significant burdens on State, local, and tribal 
permitting authorities charged with implementing Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1). EPA and permitting authorities have some experience 
with such an approach. For each draft title V permit, permitting 
authorities performed such monitoring reviews with respect to virtually 
every permit term or condition and determined, generally without any 
definitive, national EPA guidance, whether the existing monitoring was 
sufficient to assure compliance with such terms and conditions. The 
complex industrial sources and other sources subject to title V are 
subject to numerous applicable requirements and their draft permits 
contain numerous terms and conditions, which means that such reviews 
are time-consuming. In addition, the reviews demand permit writers with 
highly technical expertise. Where permit writers determined that 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1) applied because existing 
monitoring would not assure compliance, permit writers also determined 
what monitoring to include in permits to assure compliance with the 
permits' terms and conditions. Thus, these States and other permitting 
authorities found themselves in the awkward position of reviewing 
existing monitoring for sufficiency under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) before EPA clearly indicated what monitoring was 
insufficient and then creating new monitoring in permits under those 
provisions before EPA explained what types of monitoring would satisfy 
the statutory and regulatory requirements. Over the years, some 
permitting authorities have attributed delays in permit issuance to 
their efforts to develop monitoring for permits on a case-by-case 
basis.
    These concerns are reflected in the comments received on the 
proposed rule from State and local permitting authorities. (See more 
detailed EPA responses to all significant comments raised on the 
proposal below, and in a separate document placed in the docket.) Two 
representatives of State and local permitting authorities commented on 
the proposal, they both disagreed with the proposed rule's overall 
approach for monitoring, and they both noted either significant 
concerns or burdens that they perceived in implementing it. One cited 
the burdens of conducting sufficiency reviews and adding new monitoring 
to permits in more cases than they thought were appropriate or were 
required by the Act. The commenter also indicated that such monitoring 
would likely result in more arbitrary and less consistent monitoring 
from permit to permit and make permit issuance more difficult. Another 
State commenter did not understand specifically what States would be 
required to do to implement the proposal, if it were to be adopted as a 
final rule. Neither of the State or local commenters filed comments 
that could be interpreted as adverse to the approach of today's final 
rule. In addition, other commenters indicated that the proposed rule's 
approach would lead to increased burdens on States.
    Thus, we now are convinced that requiring States and other 
permitting authorities to assess the adequacy of all existing 
monitoring, and, as necessary, to upgrade monitoring through the title 
V permitting process would place a significant, unmanageable and 
unnecessary burden on those permitting authorities.
    Similarly, we are convinced that requiring sufficiency reviews 
under Sec. Sec.  70.6(c)(1) and 71.6(c)(1) places undue burdens on 
title V sources. Many commenters disagreed with the proposed rule's 
approach to monitoring and cited numerous examples of how it would lead 
to increased burdens not only on States but also on sources. For 
instance, commenters claimed that it would delay permit issuance and 
renewals, represent an inefficient use of State resources, and promote 
``forum shopping'' by sources, resulting in inequities among similarly-
situated sources in different jurisdictions or even within the same 
jurisdiction.
    Furthermore, under the proposal, the State permit writers were 
given no guidance as to how to set these monitoring requirements, as 
commenters pointed out. Using rulemaking to revise monitoring 
requirements will assure that the new monitoring requirements are 
adopted in the same manner as the originally promulgated standards. 
That original promulgation included a determination that the standards 
were achievable assuming the specified control technologies. Commenters 
expressed concern that the proposed rule would illegally increase the 
stringency of underlying emission standards and limitations because it 
would require new averaging periods or change other compliance methods 
when added to the permit. Similar issues were raised in Appalachian 
Power. Ratifying the current regulatory language eliminates any 
possible problem in this regard under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1).
    In addition to reducing burdens on title V permitting authorities 
and sources, today's action offers several other advantages over the 
proposed rule's approach. We believe it is a far better and more 
efficient approach from a resource standpoint to focus primarily on 
reviewing the adequacy of existing monitoring requirements on a 
programmatic basis and to accomplish needed upgrades through federal, 
State, or local rulemaking. Programmatic ``fixes'' to monitoring in 
applicable requirements made through national or State rulemakings will 
address potential inadequacies in existing monitoring requirements in 
the first instance. Thus, there will be no need to resort to more 
resource-intensive, case-by-case sufficiency reviews to supplement 
existing monitoring under Sec. Sec.  70.6(c)(1)

[[Page 3206]]

and 71.6(c)(1) during permit proceedings.
    The final rule also is likely to result in greater consistency in 
monitoring requirements included in permits, both within States and 
nationally. When inadequate monitoring is improved through rulemaking 
at the national or State level, the improved monitoring can be 
incorporated into title V permits with little, if any, source-specific 
tailoring, thereby eliminating some of the variations in monitoring 
determinations inherent in case-by-case reviews. Under the proposed 
rule's approach, such variations may have resulted from permitting 
authorities' different policies on what monitoring to add to permits, 
from variations in engineering judgment among permit writers, and from 
complex source-specific factors. More consistent monitoring 
requirements in permits nationally should help to eliminate some of the 
concern over forum shopping pointed out by the commenters, as well as 
concerns about potential inequities in monitoring amongst similarly-
situated sources in different jurisdictions.
    In addition, we expect that today's approach is likely to result in 
broader public input into monitoring decisions than is possible during 
individual permit proceedings. This is so because formal rulemaking 
procedures involve an opportunity for public comment and a hearing that 
may attract a larger national or State audience of individuals more 
interested in consistent outcomes and perhaps more knowledgeable about 
technical issues specific to the source categories or applicable 
requirements that are the subject of the rulemaking. Moreover, the 
final rules are more likely than individual permit proceedings to 
result in better consideration of potential economic impacts. Statutory 
or regulatory provisions or Executive Orders requiring detailed 
consideration of economic impacts or other burdens imposed by various 
types of monitoring may apply to federal or State rulemakings; such 
consideration is not required in individual permit proceedings. Thus, 
compared to the proposed rule's approach, this approach has the added 
benefit of providing a greater degree of clarity and the opportunity 
for a wider interested public to influence decisions concerning the 
adequacy of monitoring and efforts to accomplish upgrades.
    Finally, commenters expressed concern about the statutory 
underpinnings of sufficiency monitoring under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) along the lines of the D.C. Circuit's observation in 
Appalachian Power that the approach to sufficiency monitoring described 
in the Periodic Monitoring Guidance ``raises serious issues, not the 
least of which is whether EPA possesses the authority it now purports 
to delegate.'' 208 F.3d at 1026. Adopting this final rule will 
eliminate possible concern in this regard.
    For all of these reasons, we believe today's approach will better 
balance the roles and responsibilities of States and other permitting 
authorities, on the one hand, and EPA, on the other, to improve the 
monitoring required of title V sources where necessary to ensure that 
the Act's title V monitoring requirements are met.

V. What Is the Legal Basis for Today's Action?

    The Act provides EPA with broad discretion to decide how to 
implement the title V monitoring requirements. In the past, EPA has 
exercised that discretion in part by requiring permitting authorities 
to conduct case-by-case monitoring reviews under Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1) and, where necessary to assure compliance, to add 
monitoring pursuant to those provisions prior to issuing, renewing, 
reopening, or revising title V operating permits. The EPA also has 
established monitoring requirements under national rules, such as the 
CAM rule and the continuous emission monitoring rule under the acid 
rain program (40 CFR part 75). Based on comments received on the 
proposed rule and as a matter of policy (see section IV of this 
preamble), EPA now believes that it is not appropriate to exercise our 
discretion under the statute to require case-by-case monitoring reviews 
under Sec. Sec.  70.6(c)(1) and 71.6(c)(1). The EPA believes that 
improving the monitoring required of title V sources by conducting 
rulemakings to revise federal standards that contain inadequate 
monitoring and/or by encouraging States to revise SIP rules that 
contain inadequate monitoring will better balance the responsibilities 
of EPA and States and other permitting authorities and will result in 
more equitable and more efficient monitoring decisions.
    Accordingly, EPA has decided not to adopt the proposed rule, which 
would have removed the prefatory phrase, ``[c]onsistent with paragraph 
(a)(3) of this section,'' from the regulatory text of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1). See 67 FR 58561. Rather, EPA has decided to 
leave the regulatory text as it stands and to issue what EPA now 
believes to be the correct interpretation of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1). Specifically, EPA has determined that notwithstanding the 
recitation in Sec. Sec.  70.6(c)(1) and 71.6(c)(1) of monitoring as a 
permit element, the correct interpretation of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) is that these provisions do not establish a separate 
regulatory standard or basis for requiring or authorizing review and 
enhancement of existing monitoring independent of any review and 
enhancement as may be required under Sec. Sec.  70.6(a)(3) and 
71.6(a)(3).
    Various factors have prompted EPA's decision regarding Sec. Sec.  
70.6(c)(1) and 71.6(c)(1). Significantly, upon reflection, EPA believes 
that the plain language of Sec. Sec.  70.6(c)(1) and 71.6(c)(1), which 
begins with the phrase ``[c]onsistent with'' Sec. Sec.  70.6(a)(3) and 
71.6(a)(3), indicates that Sec. Sec.  70.6(c)(1) and 71.6(c)(1) serve 
as ``umbrella provisions'' for monitoring which include and gain 
meaning from the more specific monitoring requirements in Sec. Sec.  
70.6(a)(3) and 71.6(a)(3). Both Sec. Sec.  70.6(c)(1) and 71.6(c)(1) 
provide only that permits contain ``monitoring * * * requirements 
sufficient to assure compliance with the terms and conditions of the 
permit.'' Read in isolation, this general language does not provide any 
indication of what type or frequency of monitoring is required. Yet, 
for monitoring, Sec. Sec.  70.6(c)(1) and 71.6(c)(1) take on practical 
meaning when they are read together with the more detailed periodic 
monitoring rules, which specify that periodic monitoring must be 
``sufficient to yield reliable data from the relevant time period that 
are representative of the source's compliance with the permit,'' or 
with other provisions of Sec. Sec.  70.6(a)(3) and 71.6(a)(3).\2\ Thus, 
the plain language and structure of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) and the periodic monitoring rules show that Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) are correctly interpreted on their face as 
umbrella provisions.
---------------------------------------------------------------------------

    \2\ For instance, each permit must contain, with respect to 
monitoring: (1) ``[a]ll monitoring and analysis procedures or test 
methods required under applicable monitoring and testing 
requirements, including [the CAM rule] and any other procedures and 
methods that may be promulgated pursuant to sections 114(a)(3) and 
504(b) of the Act,'' see Sec. Sec.  70.6(a)(3)(i)(A) and 
71.6(a)(3)(i)(A); and (2) ``[a]s necessary, requirements concerning 
the use, maintenance, and, where appropriate, installation of 
monitoring equipment or methods.'' Sec. Sec.  70.6(a)(3)(i)(C) and 
71.6(a)(3)(i)(C).
---------------------------------------------------------------------------

    In addition, the policy considerations discussed in section IV of 
this preamble support EPA's determination that today's interpretation 
of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) is the correct one. In sum, 
today's approach will better balance the responsibilities of States and 
other permitting authorities and EPA to improve monitoring where 
necessary to ensure that the Act's monitoring

[[Page 3207]]

requirements are met. Compared to the proposed rule's approach, today's 
approach also will reduce burdens on title V sources, be more efficient 
from a resource standpoint, result in more equitable monitoring 
decisions, and allow for wider, more expert public input into 
monitoring decisions.
    Today's interpretation of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) is 
consistent with EPA's authority under the Act. In title V, Congress 
granted EPA broad discretion to decide how to implement the title V 
monitoring requirements, as well as the ``enhanced monitoring'' 
requirement of section 114(a)(3) of the Act.\3\ Two provisions of title 
V specifically address rulemaking concerning monitoring. First, section 
502(b)(2) of the Act requires EPA to promulgate regulations 
establishing minimum requirements for operating permit programs, 
including ``[m]onitoring and reporting requirements.'' 42 U.S.C. 
7661a(b)(2). Second, section 504(b) authorizes EPA to prescribe 
``procedures and methods'' for monitoring ``by rule.'' 42 U.S.C. 
7661c(b). Section 504(b) provides: ``The Administrator may by rule 
prescribe procedures and methods for determining compliance and for 
monitoring and analysis of pollutants regulated under this Act, but 
continuous emissions monitoring need not be required if alternative 
methods are available that provide sufficiently reliable and timely 
information for determining compliance. * * *'' (Emphasis added.) Id.
---------------------------------------------------------------------------

    \3\ Section 114(a)(3) of the Act provides that ``[t]he 
Administrator shall in the case of any person which is the owner or 
operator of a major stationary source, and may, in the case of any 
other person, require enhanced monitoring and submission of 
compliance certifications.'' 42 U.S.C. 7414(a)(3).
---------------------------------------------------------------------------

    Other provisions of title V refer to the monitoring required in 
individual operating permits. Section 504(c) of the Act, which contains 
the most detailed statutory language concerning monitoring, requires 
that ``[e]ach [title V 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(c) further specifies that ``[s]uch monitoring and 
reporting requirements shall conform to any applicable regulation under 
[section 504(b)]. * * *'' Id. Section 504(a) more generally requires 
that ``[e]ach [title V permit] shall include enforceable emission 
limitations and standards, * * * and such other conditions as are 
necessary to assure compliance with applicable requirements of this 
Act, including the requirements of the applicable implementation 
plan.'' 42 U.S.C. 7661c(a).
    Thus, title V clearly authorizes the Agency to require improvements 
to the existing monitoring required by applicable requirements in at 
least two ways. Under the statute, the Agency may require case-by-case 
monitoring reviews as described in the proposed rule. Alternatively, 
the Agency may achieve any improvements to monitoring through Federal 
or State rulemakings to amend the monitoring provisions of applicable 
requirements themselves; then permitting authorities can simply 
incorporate the amended monitoring requirements into title V permits 
without engaging in case-by-case monitoring reviews under Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) on a permit-specific basis. The EPA believes 
that the latter approach correctly reflects the plain language of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1), is responsive to the majority of 
public comments received on the proposed rule, and gives effect to the 
policy considerations discussed in this preamble. Thus, we are 
exercising our discretion under the Act to no longer require case-by-
case monitoring reviews under Sec. Sec.  70.6(c)(1) and 71.6(c)(1) and 
instead to proceed with related rulemaking actions to address 
monitoring in applicable requirements.
    The four-step approach outlined today will ensure that the Act's 
monitoring requirements will be met. First, our new emphasis on 
establishing monitoring requirements through rulemaking gives full 
effect to section 504(b) of the Act, which provides that ``[t]he 
Administrator may by rule prescribe procedures and methods for 
determining compliance and for monitoring and analysis of pollutants * 
* *'' 42 U.S.C. 7661c(b) (emphasis added). Today's approach also 
ensures that section 504(c)'s command that each title V permit ``set 
forth * * * monitoring * * * to assure compliance with the permit terms 
and conditions'' will be satisfied through the combination of EPA and, 
as necessary, State rulemakings to address monitoring, and the addition 
to permits of such monitoring as may be required under Sec. Sec.  
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). See 42 U.S.C. 7661c(c). 
Satisfying the specific monitoring requirements of section 504(c) will 
assure that the more general requirements of section 504(a) are 
satisfied as to monitoring.
    The EPA anticipates that some existing monitoring required under 
applicable requirements could be improved and will be addressed in 
connection with both the upcoming PM 2.5 implementation rulemaking and 
the ANPR process described above. The EPA also plans to address the 
periodic monitoring rules in a separate rulemaking. Nevertheless, EPA 
believes the four-step strategy outlined today is well designed to 
assure that for purposes of title V, permits will contain monitoring to 
assure compliance.

VI. What Comments Were Received on the Proposed Rule and What Are EPA's 
Responses?

    This section of the preamble provides EPA's responses to 
significant issues raised by commenters on the proposed rule. A more 
comprehensive document addressing these and other issues raised by 
commenters will be placed in the docket prior to promulgation of 
today's final rule.

A. Does the Rulemaking Record Support Separate Authority for Monitoring 
Review and Enhancement Under Sec. Sec.  70.6(c)(1) and 71.6(c)(1)?

    Many commenters were concerned that there was nothing in the part 
70, part 71, or CAM rulemaking records to indicate that Sec.  
70.6(c)(1) was originally intended to provide a separate and 
independent regulatory standard, in addition to the periodic monitoring 
requirements under Sec.  70.6(a)(3)(i)(B), to enhance existing 
monitoring in applicable requirements, or enhance periodic monitoring 
already created in part 70 permits. Instead, the commenters stated, the 
preamble to the original part 70 final rule (57 FR 32250, July 21, 
1992) said monitoring enhancement was being implemented solely through 
Sec.  70.6(a)(3), and that permitting authorities may enhance existing 
monitoring only where an applicable requirement failed to require 
monitoring that was periodic.
    For the reasons set forth in sections IV and V of this preamble, 
today's action makes clear that Sec. Sec.  70.6(c)(1) and 71.6(c)(1) do 
not establish a separate regulatory standard or basis for requiring or 
authorizing review and enhancement of existing monitoring, independent 
of any review and enhancement as may be required under Sec. Sec.  
70.6(a)(3) and 71.6(a)(3). Rather, for monitoring, Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) act as ``umbrella provisions'' that direct 
permitting authorities to include in title V permits monitoring 
required under existing statutory and regulatory authorities. Thus, we 
are not adopting the proposed revision to the text of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1). In light of today's action, we do not 
believe it is necessary to address the referenced rulemaking records as 
they may relate to the proposed rule.

[[Page 3208]]

B. May New Monitoring Be Established in Permits Without Further 
Rulemaking?

    Many commenters opined that EPA must conduct notice-and-comment 
rulemaking, consistent with section 504(b) of the Act, to upgrade 
monitoring in applicable requirements, using the same procedures and 
criteria that were used to set the original standards. They reasoned 
that upgrading monitoring on a permit-by-permit basis is illegal 
because it is arbitrary and capricious and an unlawful delegation of 
regulatory authority not explicitly allowed by section 504(b) of the 
Act, which requires new monitoring to be imposed only by rule. In 
addition, they believe adding new monitoring under Sec.  70.6(c)(1) 
would revise the emission standards in violation of section 
307(d)(1)(C) of the Act, which requires separate rulemaking to revise 
emission standards.
    In response to these comments, it appears that this issue need not 
be addressed in this action because EPA has committed to exercise its 
discretion under the Act to pursue rulemaking to improve existing 
monitoring requirements, as opposed to case-by-case monitoring reviews 
under Sec. Sec.  70.6(c)(1) and 71.6(c)(1). Nonetheless, as explained 
elsewhere in this preamble, EPA believes that the Act authorizes it to 
meet the title V monitoring requirements by requiring permitting 
authorities to add monitoring to permits on a case-by-case basis or by 
pursuing rulemaking to improve monitoring requirements in Federal or 
State applicable requirements.
    As for the comments that the proposal to upgrade monitoring on a 
permit-by-permit basis was arbitrary and capricious, was an unlawful 
delegation of regulatory authority not explicitly allowed by section 
504(b) of the Act, and would revise emission standards in violation of 
section 307(d)(1)(C) of the Act, EPA believes it is not necessary to 
respond to these comments because we have decided not to adopt the 
proposed changes to the regulatory text of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) and we have determined that the correct interpretation of 
those provisions is that they do not establish a separate regulatory 
standard or basis for requiring or authorizing review and enhancement 
of existing monitoring independent of any review and enhancement as may 
be required under Sec. Sec.  70.6(a)(3) and 71.6(a)(3). To the extent 
the comments could be read to raise the concerns listed above with 
respect to the upgrading of monitoring under Sec. Sec.  
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), EPA notes that these issues were 
beyond the scope of this rulemaking and were not opened for comment.

C. Was the Proposal Inconsistent With the Appalachian Power and NRDC 
Decisions?

    Many commenters believed that the proposed rule was inconsistent 
with the Appalachian Power decision because they believed the court 
found that part 70 does not authorize sufficiency reviews or upgrading 
of existing periodic monitoring and that rulemaking is required to 
amend inadequate monitoring in applicable requirements. Likewise, many 
commenters maintained that the proposal was inconsistent with the D.C. 
Circuit's decision in Natural Resources Defense Council v. EPA, 194 
F.3d 130 (D.C. Cir. 1999) (NRDC), because they said that the court did 
not opine as to the meaning of ``sufficient monitoring,'' refer to two 
separate regulatory standards for monitoring (periodic monitoring and 
monitoring under Sec. Sec.  70.6(c)(1) and 71.6(c)(1)), or suggest that 
part 70 requires monitoring beyond CAM.
    We believe it is not necessary to respond to these comments because 
EPA is not adopting the proposed revisions to the text of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1), and because EPA has determined that the 
correct interpretation of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) is that 
these provisions do not establish a separate regulatory standard or 
basis for requiring or authorizing review and enhancement of existing 
monitoring independent of any review and enhancement as may be required 
under Sec. Sec.  70.6(a)(3) and 71.6(a)(3).

D. Does Sec.  70.1(b) Prohibit Monitoring Enhancement in Permits?

    Several commenters stated that they believed that Sec.  70.1(b) and 
the Act do not allow substantive new requirements, such as monitoring, 
to be added to permits. Section 70.1(b) provides: ``All sources subject 
to these regulations shall have a permit to operate that assures 
compliance by the source with all applicable requirements. While title 
V does not impose substantive new requirements, it does require * * * 
that certain procedural measures be adopted especially with respect to 
compliance.''
    The Act expressly requires that permits contain ``conditions as are 
necessary to assure compliance with applicable requirements'' and in 
particular ``monitoring * * * to assure compliance with the permit 
terms and conditions.'' 42 U.S.C. 7661c(a), 7661c(c); see 42 U.S.C. 
7661a(b)(5)(A) (requiring that title V permitting authorities have 
adequate authority to ``issue permits and assure compliance by all 
[title V sources] with each applicable standard, regulation or 
requirement under this chapter''). The court in Appalachian Power 
recognized that certain monitoring requirements may be added to title V 
permits in some circumstances, see 208 F.3d at 1028, and the plain 
language of Sec.  70.1(b) is not a bar to the addition of monitoring to 
permits under Sec. Sec.  70.6(a)(3) and 71.6(a)(3). At the same time, 
EPA has determined that the correct interpretation of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) is that these provisions do not establish a 
separate regulatory standard or basis for requiring or authorizing 
review and enhancement of existing monitoring independent of any review 
and enhancement as may be required under Sec. Sec.  70.6(a)(3) and 
71.6(a)(3). To the extent the comments could be read to refer to the 
addition of monitoring to permits under Sec. Sec.  70.6(a)(3)(i)(B) and 
71.6(a)(3)(i)(B), we believe it is not necessary to respond, because 
that issue is beyond the scope of this rulemaking and was not opened 
for comment.

E. How Stringent Was Monitoring Under Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) in the Proposal?

    Several commenters were concerned that the proposed revisions to 
the text of Sec. Sec.  70.6(c)(1) and 71.6(c)(1) would result in the 
elimination of the Act's requirement for ``reasonable monitoring.'' The 
commenters asserted that the current standard for monitoring and 
certifying compliance in title V permits is ``a reasonable assurance of 
compliance, quantified by the exercise of good and accepted science, 
which is the same standard used by CAM.'' The commenters further 
asserted that the proposed rule would change the monitoring standard to 
an ``absolute assurance of compliance,'' which could only be achieved 
by stringent and expensive direct monitoring techniques, such as 
continuous emissions monitoring systems (CEMS).
    EPA responds by noting that the proposed rule made no statements 
regarding either an ``absolute assurance of compliance'' or a 
``reasonable assurance of compliance'' as the standard for monitoring 
and/or for certifying compliance in title V permits. Nor does today's 
final rule. The proposed rule made clear that its scope was narrow. The 
EPA stated in the preamble: ``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

[[Page 3209]]

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 * * * Sec. Sec.  70.6(c)(1) and 
71.6(c)(1).'' (67 FR 58561, 58565, September 17, 2002). Consistent with 
this statement, EPA does not address the issues raised by the 
commenters here. As noted in sections III.C. and VII. of this preamble, 
however, EPA plans to address criteria for use in determining how to 
fill a ``gap'' in a separate proposed rule.

F. Does New Monitoring in Permits Increase the Stringency of Existing 
Standards?

    Many commenters opined that the proposed rule would illegally 
increase the stringency of underlying emission standards and 
limitations because it would require new averaging periods or change 
other compliance methods when added to the permit.
    Today's action will not require or authorize the addition of 
monitoring to permits under Sec. Sec.  70.6(c)(1) and 71.6(c)(1). To 
the extent the comments concern the addition of monitoring to permits 
under Sec. Sec.  70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), we believe it 
is not necessary to respond because that issue is beyond the scope of 
this rulemaking and was not reopened for comment. The proposed rule was 
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). (67 FR 58561, 58565, September 17, 2002).

G. Did the Proposed Rule Require Direct Proof of Violations?

    Several commenters stated that the proposal required monitoring 
data derived from monitoring conducted pursuant to Sec. Sec.  
70.6(c)(1) and 71.6(c)(1) to be used as direct proof of violations in 
enforcement actions, without consideration of other credible evidence 
or the totality of circumstances.
    The proposed rule was 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) and did not address any other 
issues related to title V monitoring (67 FR 58561, 58565, September 17, 
2002). The EPA did not explicitly or implicitly seek comment on the use 
of monitoring data in enforcement actions or the consideration of other 
credible evidence. Those issues were resolved in the credible evidence 
rule (62 FR 8313, February 24, 1997), and they were not reopened in 
this rulemaking. The credible evidence rule ``[did] not designate any 
particular data as probative of a violation of an emission standard'' 
but rather eliminated language in 40 CFR parts 51, 52, 60 and 61 that 
``some [had] construed to be a regulatory bar to the admission of non-
reference test data [such as other monitoring data] to prove a 
violation of an emission standard* * *.'' 62 FR at 8314. Thus, the 
credible evidence rule clarified that non-reference test data can be 
used in enforcement actions and that in addition to reference test 
data, ``other material information that indicates that an emission unit 
has experienced deviations * * * or may otherwise be out of compliance 
with an applicable requirement even though the unit's permit-identified 
data indicates compliance'' must be considered in compliance 
certifications under title V of the Act. 62 FR at 8320. The credible 
evidence rule thereby ``eliminate[d] any potential ambiguity regarding 
the use of non-reference test data as a basis for [t]itle V compliance 
certifications.'' 62 FR at 8314; see 42 U.S.C. 7413(c)(2). The 
September 17, 2002 proposed rule made no statements inconsistent with 
the credible evidence rule, such as to require title V monitoring data 
to be considered direct proof of a violation. Similarly, today's final 
rule makes no statements inconsistent with the credible evidence rule, 
nor does it revise part 70 or part 71 to that effect. Thus, the 
proposed rule did not reopen these issues for comment, and today's 
action does not change the credible evidence rule. Finally, to the 
extent that an applicable requirement provides that certain monitoring 
methods constitute direct evidence of violations, title V rules would 
not affect that requirement.

H. Did the Proposed Rule Meet All Administrative Rulemaking 
Requirements?

    Many commenters alleged that the proposed rule was not a proper 
rulemaking under the Act or the Administrative Procedure Act (APA) 
because it would have made substantive changes to Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1) without adequate notice, explanation, or justification. 
In addition, many of these same commenters thought the requirements of 
the Unfunded Mandates Reform Act (UMRA), the Regulatory Flexibility Act 
(RFA), and the Paperwork Reduction Act (PRA) were not met, and that the 
Regulatory Impact Analysis (RIA) and the Information Collection Request 
(ICR) did not adequately reflect the true costs of the proposal.
    The EPA disagrees that the proposed rule was not a proper 
rulemaking. The proposed rule, which was published in the Federal 
Register for a 30-day public comment period, satisfied the rulemaking 
requirements of the APA and the Act. In accordance with those 
requirements, the reasons for the proposed revision to the text of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1) were set forth in the preamble. 
However, in that EPA has decided not to adopt the proposed revision and 
has determined that the correct interpretation of Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1) is different from that set forth in the proposed rule, 
EPA believes it is not necessary to respond to the commenters' specific 
assertions. Section VIII of this preamble, ``Statutory and Executive 
Order Reviews,'' describes how today's final rule meets the 
administrative requirements that the commenters identified.

VII. What Other Related Actions Are Planned Under Today's Approach?

    As stated above, today's action is the first step in a four-step 
strategy we expect will result in a better approach for meeting the 
Act's monitoring requirements than that reflected in the proposed rule. 
In the near future, EPA intends to address additional issues related to 
title V monitoring in two separate proposed rules and in an ANPR. 
First, EPA plans to encourage States to improve inadequate monitoring 
in certain SIP rules in guidance to be developed in connection with an 
upcoming rule, the PM 2.5 implementation rule, which primarily will 
address the implementation of the NAAQS for PM 2.5. We intend to use 
the PM 2.5 implementation rulemaking as a vehicle for addressing 
monitoring in certain SIP rules, because particulate and opacity 
monitoring are related to compliance with particulate matter emission 
limits. Second, over a longer time frame, EPA plans to identify and 
consider improving possibly inadequate monitoring in certain federal 
rules or in SIP rules not addressed in the proposed PM 2.5 
implementation rule. In the near term, EPA expects to initiate this 
process by publishing an ANPR requesting comments to identify 
inadequate monitoring requirements in federal applicable requirements 
and State SIP rules (in addition to those requirements addressed in the 
proposed PM 2.5 implementation rule) and seeking suggestions as to the 
ways in which inadequate monitoring in such rules could be improved. 
Third, in a separate proposed rule, EPA plans to address two issues 
related to title V monitoring. First, EPA plans to address what 
monitoring constitutes ``periodic'' monitoring under Sec. Sec.  
70.6(a)(3)(i)(B) and

[[Page 3210]]

71.6(a)(3)(i)(B). The EPA also plans to address what types of 
monitoring should be created under Sec. Sec.  70.6(a)(3)(i)(B) and 
71.6(a)(3)(i)(B).

VIII. Statutory and Executive Order Reviews

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 rule 
is a ``significant regulatory action'' because it raises important 
legal and policy issues. As such, this rule was submitted to OMB for 
review. Changes made in response to OMB suggestions or recommendations 
will be documented in the public record. In section V.A. of the 
proposal (see 67 FR 58565) we stated that we would perform a regulatory 
impact analysis prior to promulgation of the final rule. While the 
proposal arguably may have led to increased economic burdens, the final 
rule clearly does not because it does not adopt the proposed revisions 
to the regulatory text and it announces a different interpretation of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1). In the event EPA proposes to 
revise monitoring requirements in other federal rules in future 
rulemaking actions, those actions will consider economic impacts as 
necessary. Thus, the final rule does not impose any burdens and 
therefore a detailed economic analysis is unnecessary.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
It does not adopt the proposed revision to the text of Sec. Sec.  
70.6(c)(1) and 71.6(c)(1). It merely states that notwithstanding the 
recitation in Sec. Sec.  70.6(c)(1) and 71.6(c)(1) of monitoring as a 
permit element, these provisions do not establish a separate regulatory 
standard or basis for requiring or authorizing review and enhancement 
of existing monitoring independent of any review and enhancement as may 
be required under Sec. Sec.  70.6(a)(3) and 71.6(a)(3). However, the 
information collection requirements in the existing regulations (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 EPA ICR number 1587.05 and OMB control number 
2060-0243; for part 71, the EPA ICR number is 1713.04 and the OMB 
control number is 2060-0336. A copy of the OMB approved Information 
Collection Request (ICR) may be obtained from Susan Auby, Collection 
Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20004 or by calling (202) 566-
1672. Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers for EPA's regulations in 40 CFR 
are listed in 40 CFR part 9.

C. 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 conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
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. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as: (1) A small business that meets the Small Business 
Administration size standards for small businesses found in 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, country, 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. We determined and hereby certify this 
final rule will not have a significant economic impact on a substantial 
number of small entities. The originally promulgated part 70 and part 
71 rules included the text of Sec. Sec.  70.6(c)(1) and 71.6(c)(1), and 
this final rule does not revise that text. Moreover, any burdens 
associated with the interpretation of Sec. Sec.  70.6(c)(1) and 
71.6(c)(1) announced today are less than those associated with the 
interpretation under the proposed rule and previously enunciated by the 
Agency. Thus, today's final rule adds no burdens for any small 
entities.

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, EPA 
generally 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 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

[[Page 3211]]

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.
    Today's rule contains no federal mandates under the regulatory 
provisions of title II of the UMRA for State, local, or tribal 
governments or the private sector. Today's final rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Rather, EPA merely states that Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1) do not establish a separate regulatory standard or basis 
for requiring or authorizing review and enhancement of existing 
monitoring independent of any review and enhancement as may be required 
under the periodic monitoring rules, Sec. Sec.  70.6(a)(3) and 
71.6(a)(3). Therefore, today's action is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    In addition, EPA has determined that this final rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Today EPA sets out the correct interpretation of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1), which is that they do not require 
or authorize title V permitting authorities--including any small 
governments that may be such permitting authorities--to conduct reviews 
and provide enhancement of existing monitoring through case-by-case 
monitoring reviews of individual permits under Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1). Therefore, today's final rule is not subject to the 
requirements of section 203 of the UMRA.

E. 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 
responsibilities among the various levels of government.''
    This final rule 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 rule will not impose any 
new requirements. 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 final rule.

F. 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.''
    This final rule does not have tribal implications because it 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 this rule.

G. 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: (1) Is determined to be ``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 risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This final rule is not a ``significant energy action,'' as defined 
in 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. This 
action merely declines to adopt the proposed revisions to the text of 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1) and states that these provisions 
do not establish a separate regulatory standard or basis for requiring 
or authorizing review and enhancement of existing monitoring 
independent of any review and enhancement of monitoring as may be 
required under Sec. Sec.  70.6(a)(3) and 71.6(a)(3). Further, we have 
concluded that this rule is not likely to have any adverse energy 
effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), 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 standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.

[[Page 3212]]

    The NTTAA does not apply to this final rule because it does not 
involve technical standards. Therefore, EPA did not consider the use of 
any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective February 23, 2004.

    Dated: January 15, 2004.
Michael O. Leavitt,
Administrator.
[FR Doc. 04-1362 Filed 1-21-04; 8:45 am]
BILLING CODE 6560-50-P