[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Proposed Rules]
[Pages 19164-19172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07266]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2013-0162; FRL-9790-5]
RIN 2060-AQ71


Amendments to Compliance Certification Content Requirements for 
State and Federal Operating Permits Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to amend the compliance certification 
requirements for state and federal operating permits programs that were 
published in the Federal Register on June 27, 2003. In that action, one 
sentence was removed from the rules in error. This action proposes to 
restore the sentence to its original location in the rules.

DATES: Comments. Comments must be received on or before May 28, 2013.
    Public Hearing. If anyone contacts the EPA requesting to speak at a 
public hearing by April 19, 2013, the EPA will hold a public hearing. 
Additional information about the hearing would be published in a 
subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0162, by one of the following methods:
     Http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     Email: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2013-0162.
     Fax: (202) 566-9744.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2013-0162, Air 
and Radiation Docket, Mailcode: 28221T, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Please 
include a total of two copies.
     Hand Delivery: Air and Radiation Docket, EPA/DC, EPA West, 
Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, 
Attention Docket ID No. EPA-HQ-OAR-2013-0162. Such deliveries are only 
accepted during the Docket Center's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2013-0162. The EPA's policy is that all comments received will be 
included in the public docket without change and

[[Page 19165]]

may be made available online at www.regulations.gov, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses. For additional instructions on 
submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Joanna Swanson, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-05), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-5282; fax number (919) 541-5509; 
email address: [email protected].
    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-01), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

SUPPLEMENTARY INFORMATION: The information in this Supplementary 
Information section of this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    1. Submitting CBI
    2. Tips for Preparing Your Comments
    C. Where can I get a copy of this document and other related 
information?
    D. How can I find information about a possible public hearing?
II. Overview of the Proposed Rule
III. Background
    A. The Title V Operating Permits Program
    B. History of Changes to the Title V Compliance Certification 
Requirements
    1. The CAM Rulemaking and the Credible Evidence Rule
    2. The 2001 and 2003 Rulemakings To Address a Court Remand
IV. Proposed Revisions to the Title V Program Rules
    A. The Proposed Change and Rationale
    B. Scope of Rulemaking and Request for Comment
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    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 and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this proposed action would include 
owners and operators of emission sources in all industry groups that 
hold or apply for a title V operating permit. Other entities 
potentially affected by this proposed action would include federal, 
state, local, and tribal air pollution control agencies that administer 
title V permit programs.

B. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI
    Do not submit this information to the EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR Part 2. Send or deliver information 
identified as CBI only to the following address: Roberto Morales, OAQPS 
Document Control Officer (C404-02), Environmental Protection Agency, 
Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-
2013-0162.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

[[Page 19166]]

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket found on 
www.regulations.gov, an electronic copy of this proposed rule will also 
be available on the World Wide Web. Following signature by the EPA 
Administrator, a copy of this proposed rule will be posted on the EPA's 
title V Web page at http://www.epa.gov/ttn/oarpg/t5pfpr.html.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

II. Overview of the Proposed Rule

    This proposed rule would restore a sentence that was inadvertently 
removed from the operating permits program rules found in 40 CFR parts 
70 and 71 due to an editing error. This error occurred in a June 27, 
2003, final rule (68 FR 38517) amending the compliance certification 
requirements in 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). The 
final rule removed the following sentence from the end of paragraph 
(c)(5)(iii)(B) of both sections: ``If necessary, the owner or operator 
also shall identify any other material information that must be 
included in the certification to comply with section 113(c)(2) of the 
Act, which prohibits knowingly making a false certification or omitting 
material information.'' This proposed rule would restore this sentence 
to its former position in both paragraphs.
    This sentence was originally added to the operating permits rules 
in the context of the 1997 Compliance Assurance Monitoring (CAM) 
rulemaking, which clarified the use of CAM monitoring data in 
compliance certifications. Specifically, this sentence was intended to 
clarify that material information (i.e., compliance information beyond 
required monitoring) known by the owner or operator must be identified 
and addressed in compliance certifications consistent with section 
113(c)(2) of the Act and the 1997 Credible Evidence rule. The 2003 
rulemaking that erroneously removed the subject sentence was intended 
to address a court remand concerning other aspects of the annual 
compliance certification requirements of title V.
    The EPA is requesting comments only on whether, on the sole basis 
that the removal of the language in question was inadvertent, the 
language in question should or should not be restored. However, the EPA 
is not requesting comments on any other aspects of these provisions or 
on any other provisions of the part 70 and 71 rules.

III. Background

    This section traces the origin of the sentence that is addressed in 
this proposal and its accidental removal from the regulations. Section 
III.A gives background information on the operating permits program 
under the Clean Air Act (CAA or ``the Act''), followed in section III.B 
by background on the rulemaking that created the sentence in question 
and the rulemaking in which the sentence was accidentally removed.

A. The Title V Operating Permits Program

    Title V of the Act establishes an operating permits program for 
major sources of air pollutants, as well as certain other sources (CAA 
section 502(a)). Under title V, states were required to develop and 
implement title V permitting programs in conformance with program 
requirements promulgated by the EPA, which the EPA placed in 40 CFR 
part 70. Under title V, the EPA also developed a federal operating 
permits program to apply where states do not have approved programs, 
where the EPA determines that a state is not adequately implementing a 
program, in cases where a state has not satisfied an EPA objection, in 
Indian country (absent an explicitly approved part 70 program), and in 
certain areas of the Outer Continental Shelf. The federal program was 
promulgated in 40 CFR part 71. Most states, certain local agencies and 
one tribe have approved part 70 programs. The EPA administers the part 
71 federal program in most areas of Indian Country (one tribe has been 
delegated implementation authority) and in certain areas of the Outer 
Continental Shelf (where there is no state permitting authority).
    Once the operating permits programs are in place, title V requires 
every major source to apply for and operate pursuant to an operating 
permit (CAA sections 502(a) and 503), and requires that the permits 
contain conditions that assure compliance with all of the sources' 
applicable requirements under the Act (CAA section 504(a)). Among other 
things, title V also requires that sources certify compliance with the 
applicable requirements of their permits no less frequently than 
annually (CAA section 503(b)(2)), provides authority to the EPA to 
prescribe procedures for determining compliance and for monitoring and 
analysis of pollutants regulated under the Act (CAA section 504(b)) and 
requires each permit to ``set forth inspection, entry, monitoring, 
compliance certification, and reporting requirements to assure 
compliance with the permit terms and conditions'' (CAA section 504(c)).

B. History of Changes to the Title V Compliance Certification 
Requirements

1. The CAM Rulemaking and the Credible Evidence Rule
    The part 70 rule was originally promulgated on July 21, 1992 (57 FR 
32250), and the part 71 rule on July 1, 1996 (61 FR 34202). Among other 
requirements, these rules required operating permits to include 
requirements for sources to submit annual compliance certifications,\1\ 
consistent with CAA sections 503(b)(2), 504(c) and 114(a)(3).
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    \1\ The compliance certification requirement are found in 40 CFR 
70.6(c)(5) and 71.6(c)(5).
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    The requirement to identify ``any other material information * * 
*,'' which is the sentence the EPA is proposing to restore in this 
action, was originally added to the title V compliance certification 
requirements of parts 70 and 71 in the context of a CAM rulemaking on 
October 22, 1997 (62 FR 54899). The CAM rule (located at 40 CFR part 
64) is authorized by CAA section 114(a), which requires the EPA to 
promulgate regulations concerning enhanced monitoring and compliance 
certification. The CAM rule is an applicable requirement of the Act 
that imposes a methodology to create monitoring and/or recordkeeping to 
provide a reasonable assurance of compliance with applicable 
requirements. Section 114(a)(3) of the Act specifies certain 
requirements for compliance certifications that are relevant to the CAM 
rule and to title V. A goal of the CAM rule is to establish additional 
monitoring requirements so that units subject to part 64 can use the 
CAM monitoring data to address title V compliance certification 
requirements. At the time that the CAM rule was promulgated, in order 
to clarify that the EPA always intended for the CAM provisions to 
operate within the title V compliance certification process, the 
compliance certification provisions in 40 CFR 70.6(c)(5)(iii) and 
71.6(c)(5)(iii) were also amended to reflect the

[[Page 19167]]

requirements of compliance certification for those units subject to 
part 64 (62 FR 54937). In the CAM rulemaking, the EPA explained the 
revisions of the part 70 and 71 compliance certification requirements 
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as follows:

    To tailor compliance certification to the monitoring imposed by 
part 64, EPA has revised Sec.  70.6(c)(5)(iii) (and Sec.  
71.6(c)(5)(iii)) so that a compliance certification includes the 
following elements.
     First, the permit conditions being certified must be 
identified. Second, the method(s) and other information used to 
determine compliance status of each term and condition must be 
identified. These method(s) will have to include at a minimum any 
testing and monitoring methods identified in Sec.  70.6(a)(3) that 
were conducted during the relevant time period. In addition, if the 
owner or operator knows of other material information (i.e., 
information beyond required monitoring that has been specifically 
assessed in relation to how the information potentially affects 
compliance status), that information must be identified and 
addressed in the compliance certification. This requirement merely 
emphasizes the general prohibition in section 113(c)(2) of the Act 
on knowingly making a false certification or omitting material 
information and the general criminal section on submitting false 
information to the government codified at 18 USC 1001. The revised 
part 70 provision does not impose a duty on the owner or operator to 
assess every possible piece of information that may have some 
undetermined bearing on compliance * * *

62 FR 54936.
    Thus, after the 1997 CAM rulemaking, the compliance certification 
provisions that are pertinent to this proposal, 40 CFR 
70.6(c)(5)(iii)(B) and (C) and 71.6(c)(5)(iii)(B) and (C), stated that 
a part 70 or 71 source's compliance certifications must include, among 
other items, the following information:

    (B) The identification of the method(s) or other means used by 
the owner or operator for determining the compliance status with 
each term and condition during the certification period, and whether 
such methods or other means provide continuous or intermittent data. 
Such methods and other means shall include, at a minimum, the 
methods and means required under paragraph (a)(3) of this section. 
If necessary, the owner or operator also shall identify any other 
material information that must be included in the certification to 
comply with section 113(c)(2) of the Act, which prohibits knowingly 
making a false certification or omitting material information;
    (C) The status of compliance with the terms and conditions of 
the permit for the period covered by the certification, based on the 
method or means designated in paragraph (c)(5)(iii)(B) of this 
section. The certification shall identify each deviation and take it 
into account in the compliance certification. The certification 
shall also identify as possible exceptions to compliance any periods 
during which compliance is required and in which an excursion or 
exceedance as defined under part 64 of this chapter occurred; and

62 FR 54947 (emphasis added to denote the sentence that is at issue in 
this action).2 3
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    \2\ The language in 40 CFR 70.6 and 71.6 was identical except 
that the final sentence that appears above in the text of paragraph 
(c)(5)(iii)(C) was not included in 40 CFR 71.6. This difference in 
language was maintained throughout the revisions discussed in this 
preamble, and remains the same in the current regulations.
    \3\ The compliance certification requirements apply to all part 
70 and 71 sources, not just part 64 (CAM) sources.
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    Another rule, the Credible Evidence rule, was promulgated earlier 
in 1997 (62 FR 8314, February 24, 1997). The Credible Evidence 
rulemaking clarified that non-reference test data can be used in 
enforcement actions, and removed any potential ambiguity regarding use 
of such data for compliance certifications under section 114 and title 
V of the Act. That rulemaking was based on the EPA's understanding that 
Congress gave the EPA clear statutory authority to use any available 
information--not just data from reference tests or other federally 
promulgated or approved compliance methods--to prove CAA violations (62 
FR 8314). The Credible Evidence rule revised 40 CFR parts 51, 52, 60 
and 61 to make clear that ``any credible evidence'' can be used for 
this purpose by the EPA, states and citizens, but made no such 
revisions to part 70 or 71, in part because the CAM rule that was under 
development was expected to concurrently modify the existing part 70 
requirements to provide additional detail as to what information 
sources must consider when certifying compliance (62 FR 8319).\4\
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    \4\ In explaining why the Credible Evidence rulemaking made no 
changes to 40 CFR part 70 or 71, the EPA also stated that the final 
Credible Evidence rule ``merely eliminates any potential ambiguity 
or conflict between Parts 51, 52, 60, and 61 and Part 70 regarding 
the ability of sources to use non-reference test data in compliance 
certifications. Consistent with the congressional intent reflected 
in Title V and section 114(a)(3), Part 70 already contemplates use 
of non-reference test data in compliance certifications'' (62 FR 
8319).
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    Although the scope of and authority for the Credible Evidence and 
CAM rules differ, there are complementary aspects to these rules (62 FR 
54906). The 1997 CAM rulemaking discussed the relationship between the 
CAM rule and the Credible Evidence rule. In addressing comments on this 
relationship, the EPA stated the following in the 1997 CAM rulemaking:

    First, these commenters suggested that compliance with indicator 
ranges under part 64 should act as a shield to enforcement actions. 
The Agency disagrees. Complete compliance with an approved part 64 
monitoring plan does not shield a source from enforcement actions 
for violations of applicable requirements of the Act if other 
credible evidence proves violations of applicable emission 
limitations or standards. The Agency expects that a unit that is 
operating within appropriately established indicator ranges as part 
of approved monitoring will, in fact, be in compliance with its 
applicable limits. Part 64 does not prohibit the Agency, however, 
from undertaking enforcement where appropriate (such as cases where 
the part 64 indicator ranges may have been set improperly and other 
data such as information collected during an inspection provides 
clear evidence that enforcement is warranted).
* * * * *
    Finally, it has been suggested during the part 64 and credible 
evidence rulemakings that a Title V permit may be written to limit 
the types of evidence used to prove violations of emissions 
standards. As mentioned in the [Credible Evidence rulemaking], even 
if a Title V permit specifies that certain monitoring, CAM or other 
monitoring, be performed and that this monitoring is the sole or 
exclusive means of establishing compliance or non-compliance, EPA 
views such provisions as null and void. Such an attempt to eliminate 
the possible use of credible evidence other than the monitoring 
specified in a Title V permit is antithetical to the credible 
evidence rule and to section 113(e)(1). If such a provision is 
nonetheless included in a permit, the permit should be vetoed to 
avoid any ambiguity. If the provision is not vetoed, the provision 
is without meaning, as it is ultra vires, that is, beyond the 
authority of the permit writer to limit what evidence may be used to 
prove violations, just as if a permit writer were to attempt to 
write in a provision that a source may not be assessed a penalty of 
$25,000 per day of violation for each violation. Evidence that is 
permitted by statute to be used for enforcement purposes, fines that 
may be levied, and any other statutory provisions, may not be 
altered by a permit.

62 FR 54907.
    This discussion provides a clear statement by the EPA regarding its 
position on credible evidence and title V permits. The EPA has not 
reversed or weakened this position in subsequent actions.
2. The 2001 and 2003 Rulemakings To Address a Court Remand
    On March 1, 2001, to respond to an October 29, 1999, remand from 
the United States Court of Appeals for the District of Columbia Circuit 
in Natural Resources Defense Council v. EPA, 194 F.3d 130 (D.C. Cir. 
1999), the EPA published a direct final rule (66 FR 12872) and a 
parallel proposal (66 FR 12916) requiring title V compliance 
certifications to identify whether compliance during the period was 
continuous or intermittent as specified in CAA section 114(a)(3) per 
the 1990 CAA Amendments. Accordingly, this language was to be added to 
paragraph

[[Page 19168]]

(c)(5)(iii)(C) of both 40 CFR 70.6 and 71.6. The preamble discussion of 
this change stated the following:

    In response to the court's remand, we have added text to 
sections, Sec. Sec.  70.6(c)(5)(iii)([C]) and 71.6(c)(5)(iii)([C]), 
to require that the responsible official for the affected facility 
include in the annual (or more frequent) compliance certification 
whether compliance during the period was continuous or intermittent. 
Specifically, the revised text, including the introductory language 
for both sections reads: ``Permits shall include each of the 
following * * *: A requirement that the compliance certification 
include all of the following * * *: The status of compliance with 
the terms and conditions of the permit for the period covered by the 
certification, including whether compliance during the period was 
continuous or intermittent. The certification shall be based on the 
method or means designated in paragraph (c)(5)(iii)(B) of this 
section.'' The italicized text indicates the revisions made in 
response to the Court decision. Other text within both of these 
sections remains as promulgated in 1997. Under this revised 
language, the responsible official must include in the compliance 
certification a statement as to whether compliance during the period 
was continuous or intermittent. We believe these revisions respond 
directly and adequately to the Court's decision to remand the 
compliance certification requirements to us and are consistent with 
the requirements of the Act.

66 FR 12874 (direct final rule); 66 FR 12918 (parallel proposed 
rule).\5\
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    \5\ There are a number of errors in this paragraph of the 
Federal Register as it appeared in the preamble text in both the 
direct final and parallel proposed rules. The first sentence of the 
preamble text in both the direct final and parallel proposed rules 
misidentified 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) as 
the paragraphs in which text was being added. However, the revised 
regulatory text actually addressed paragraph (c)(5)(iii)(C) of the 
two rules, and the revised regulatory text was clearly placed in the 
paragraph (C) in the rule language section of the notices. In 
addition, the clause ``including whether compliance during the 
period was continuous or intermittent'' that is located midway 
through the paragraph should have been italicized to denote the text 
that was proposed to be added in response to the court decision, but 
no text was italicized.
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    The revised regulatory language in the 2001 direct final rulemaking 
for the part 70 program reads as follows:

Sec.  70.6 Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of 
the permit for the period covered by the certification, including 
whether compliance during the period was continuous or intermittent. 
The certification shall be based on the method or means designated 
in paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification. The certification shall also identify as possible 
exceptions to compliance any periods during which compliance is 
required and in which an excursion or exceedance as defined under 
part 64 of this chapter occurred; and
* * * * *

66 FR 12876.
    The revised regulatory language in the 2001 direct final rulemaking 
for the part 71 program reads as follows:

Sec.  71.6 Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of 
the permit for the period covered by the certification, including 
whether compliance during the period was continuous or intermittent. 
The certification shall be based on the method or means designated 
in paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification; and
* * * * *

66 FR 12876.
    During the period provided for public comment on the 2001 direct 
final rule and parallel proposal, the EPA received significant 
comments.\6\ Accordingly, the EPA withdrew the direct final rule, 
considered the comments that were received and, based on consideration 
of those comments, published a final rule on June 27, 2003 (68 FR 
38518). In the final rule, the EPA finalized paragraph (c)(5)(iii)(C) 
of both 40 CFR 70.6 and 71.6 as proposed. In addition, in response to 
comments, the EPA revised paragraph (c)(5)(iii)(B) in both rules to 
remove from the first sentence the reference to whether the methods or 
other means used by the source to determine compliance ``provide 
continuous or intermittent data.'' The preamble stated the following:
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    \6\ These comments are available in Docket No. EPA-HQ-OAR-2002-
0062, items EPA-HQ-OAR-2002-0062-0002 through -0006.

    In response to the comments, we have deleted the second clause 
after the comma in the first sentence from Sec. Sec.  
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the 
requirement that the responsible official for the affected facility 
identify in the annual (or more frequent) compliance certification 
whether the methods provide continuous or intermittent data. * * * 
Other text within Sec. Sec.  70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B), 
70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains as proposed in 
March 2001. The language in this final rule requires responsible 
officials to identify in the compliance certification whether 
compliance during the covered period was continuous or intermittent, 
but responsible officials do not need to state whether the methods 
used for determining compliance provide continuous or intermittent 
data. We believe these revisions respond directly and adequately to 
the Court's decision to remand the compliance certification 
requirements to us and are consistent with the requirements of the 
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Act.

68 FR 38521.
    However, in addition to the change described above, the actual 
revisions as set out in the regulatory language section in the 2003 
final rule also deleted the last sentence of paragraph (c)(5)(iii)(B) 
in both the part 70 and 71 rules, despite the fact that the preamble 
stated that no other changes were being made. Id. The final regulatory 
language for 40 CFR 70.6 and 71.6 is shown below:

Sec.  70.6 Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by 
the owner or operator for determining the compliance status with 
each term and condition during the certification period. Such 
methods and other means shall include, at a minimum, the methods and 
means required under paragraph (a)(3) of this section;
    (C) The status of compliance with the terms and conditions of 
the permit for the period covered by the certification, including 
whether compliance during the period was continuous or intermittent. 
The certification shall be based on the method or means designated 
in paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification. The certification shall also identify as possible 
exceptions to compliance any periods during which compliance is 
required and in which an excursion or exceedance as defined under 
part 64 of this chapter occurred; and
* * * * *

Sec.  71.6 Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by 
the owner or operator for determining the compliance status with 
each term and condition during the certification period. Such 
methods and other means shall include, at a minimum, the methods and 
means required under paragraph (a)(3) of this section;
    (C) The status of compliance with the terms and conditions of 
the permit for the period covered by the certification, including 
whether compliance during the period was continuous or intermittent. 
The certification shall be based on the method or means designated 
in paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification; and

* * * * *
68 FR 38523.

[[Page 19169]]

    A comparison of the version of paragraphs 40 CFR 70.6(c)(5)(iii)(B) 
and 71.6(c)(5)(iii)(B) promulgated in 2003 with the version promulgated 
in the 1997 CAM rule, as described in section III.B.1 above, shows that 
the last sentence of those paragraphs--which stated ``If necessary, the 
owner or operator also shall identify any other material information 
that must be included in the certification to comply with section 
113(c)(2) of the Act, which prohibits knowingly making a false 
certification or omitting material information.''--was deleted, despite 
the fact that no mention of this change was made in either the 2001 
direct final and parallel proposed rulemaking or the 2003 final 
rulemaking. The accidental deletion of that last sentence in 40 CFR 
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) is the error that the EPA 
seeks to correct with this proposed action.

IV. Proposed Revisions to the Title V Program Rules

A. The Proposed Change and Rationale

    This proposed rule would reinstate the inadvertently removed 
sentence, which, consistent with the Credible Evidence rule, directs 
owners and operators of sources to ``identify any other material 
information that must be included in the certification to comply with 
section 113(c)(2) of the Act, which prohibits knowingly making a false 
certification or omitting material information,'' in its original place 
before the semicolon at the end of 40 CFR 70.6(c)(5)(iii)(B) and 
71.6(c)(5)(iii)(B). No other changes are proposed, and the other 
regulatory text within these paragraphs would remain as finalized on 
June 27, 2003. Thus, this proposed rule only seeks to correct what the 
EPA believes was demonstrably an error in the 2003 final rulemaking 
discussed in the previous section.
    As illustrated in the previous section, the substance of the 
preambles and rule text from the 2001 and 2003 rulemakings make it 
clear that the EPA did not intend to remove the missing sentence from 
40 CFR 70.6(c)(5)(iii)(B) or 71.6(c)(5)(iii)(B). The EPA did not 
discuss or propose any revisions to these paragraphs in the 2001 direct 
final rulemaking or parallel proposal.\7\ Similarly, while the EPA 
revised the text of 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) as 
part of the 2003 final amendments, it did not discuss any intent to 
remove this sentence. To the contrary, the EPA stated clearly that 
``[o]ther text within Sec. Sec.  70.6(c)(5)(iii)(B), 
71.6(c)(5)(iii)(B), 70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains 
as proposed in March 2001'' (68 FR 38521). The EPA did not propose to 
remove the deleted sentence from paragraph (c)(5)(iii)(B) of 40 CFR 
70.6 and 71.6 or to make any other changes to those paragraphs in that 
March 2001 rulemaking. Moreover, the EPA's response to comments on the 
2001 proposed amendments reiterated the sentence's requirement that 
``responsible officials must identify in [their title V compliance 
certifications] other material information where failure to do so would 
constitute a false certification of compliance.'' \8\
---------------------------------------------------------------------------

    \7\ As discussed previously, while the 2001 preamble discussion 
of the proposed revisions at 66 FR 12918 mistakenly referred to 
changes to paragraph (c)(5)(iii)(B) of 40 CFR 70.6 and 71.6, the 
proposed amendments in that action addressed only 40 CFR 
70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C). The proposed revisions to 
the regulatory language correctly addressed 40 CFR 
70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C).
    \8\ Responses to public comments prepared for the June 27, 2003 
Final Rule, section 2.3, page 11, EPA Docket No. EPA-HQ-OAR-2002-
0062-0008, June 2003.
---------------------------------------------------------------------------

    Despite the accidental removal of the sentence in question on June 
27, 2003, the EPA's actions since that time have remained consistent 
with the direction provided in the accidentally removed sentence, and 
with the Credible Evidence rule in general. For example, the part 71 
federal operating permits program administered by the EPA includes a 
form for sources to use for their annual compliance certifications, and 
the instructions for completing the form state the following:

    Compliance Status: For each permit requirement and its 
associated compliance methods, indicate whether there was 
intermittent or continuous compliance (check one) during the 
reporting period. You should consider all available information or 
knowledge that you have when evaluating this, including compliance 
methods required by the permit and ``credible evidence'' (e.g., non-
reference test methods and information ``readily available'' to 
you). You are always free to include written explanations and other 
information to clarify your conclusion regarding compliance status 
\9\
---------------------------------------------------------------------------

    \9\ Annual Compliance Certification (A-COMP), EPA Form 5900-04, 
at page 4 (emphasis added), accessed from http://www.epa.gov/airquality/permits/p71forms.html on September 25, 2012.

    Language similar to this was originally included in the 
instructions for the compliance certification form that the EPA issued 
shortly after the credible evidence sentence (the sentence we are 
restoring) was added to parts 70 and 71 as part of the promulgation of 
the CAM rule in 1997. After the credible evidence language was 
inadvertently deleted from the part 71 rule in 2003, the EPA revised 
the compliance certification form and associated instructions in 2004 
to reflect the requirement for sources to certify whether compliance 
was continuous or intermittent, but the EPA did not revise the 
instruction for sources to consider credible evidence when determining 
compliance status. In addition, the EPA Web site where the part 71 
forms and instructions are located states that ``[o]n February 22, 
2004, we revised the Annual Compliance Certification form and the 
Instruction Manual to reflect policy decisions concerning monitoring 
and the data used for compliance certifications.'' \10\ The retention 
of the instruction to consider credible evidence in the Annual 
Compliance Certification form clearly indicates that the EPA continues 
to believe that the title V rules should be implemented as if the 
removed sentence is still applicable. Note also that the EPA has made 
revisions to the part 71 forms a number of times since 2003, so it has 
had ample opportunity to change this language if its policy had 
changed; however, the EPA has made no such changes.\11\
---------------------------------------------------------------------------

    \10\ http://www.epa.gov/airquality/permits/p71forms.html 
accessed on September 25, 2012.
    \11\ http://www.epa.gov/airquality/permits/p71forms.html 
accessed on September 25, 2012.
---------------------------------------------------------------------------

    Title V permits issued by EPA Regional Offices since 2003 also 
provide evidence of the EPA's ongoing practice of requiring sources to 
use credible evidence in compliance certifications. A review of a 
sample of recent part 71 permits revealed that they include language 
similar to the language in the removed sentence, which requires the 
annual compliance certification to include ``any other material 
information that must be included in the certification to comply with 
section 113(c)(2) of the Act, which prohibits knowingly making a false 
certification or omitting material information.'' These permits include 
a permit issued by Region II in 2011, two permits issued by Region VIII 
in 2010 and 2011, and a permit issued by Region V in 2012.\12\
---------------------------------------------------------------------------

    \12\ Region II part 71 permit issued to Turning Stone Casino 
Resort in Verona, New York, http://www.epa.gov/region02/air/permit/trsc07052011.pdf. Region VIII part 71 permits issued to (1) Samson 
Resources Company, http://www.epa.gov/region8/air/permitting/Samson-HowardSWD_Initial_V-SU-0051-10.00.pdf; and (2) Public Service 
Company of Colorado, http://www.epa.gov/region8/air/permitting/PSCo-TiffanyCS-FinalRenewal-2-Permit-V-SU-00023-2010.00.pdf. Region V 
part 71 permit issued for operations at the Treasure Island Resort & 
Casino in Red Wing, Minnesota. http://yosemite.epa.gov/r5/r5ard.nsf/
f5dbe2e3ef9dc9c1862570430068f396/10cd79ad1a4c177386257ad0004d7bc3/
$FILE/V-PI-2704900084-2012-10%20-%20Final.pdf. These Web sites were 
accessed on December 19, 2012.
---------------------------------------------------------------------------

    Similarly, EPA guidance to title V rule writers on an EPA Region 
III Web site concerning compliance and enforcement illustrates the 
EPA's commitment to the use of credible

[[Page 19170]]

---------------------------------------------------------------------------
evidence. That Web site includes the following guidance:

    Title V permit conditions cannot limit the types of data or 
information (i.e., credible evidence) that may be used to prove a 
violation of any applicable requirement. Title V permits should 
contain language clarifying that any credible evidence may be used 
in determining a source's compliance status (or alternatively, that 
nothing in the permit precludes the use of credible evidence in 
determining compliance or noncompliance with the terms of the 
permit). Such language gives fair notice to the source and the 
public, and prevents the source from claiming that they weren't on 
notice that other credible evidence could be used to demonstrate a 
violation or compliance. Such language can most easily be added to 
Title V permits by modifying the ``boilerplate'' provisions (i.e., 
general permit conditions) as in the following example * * *.\13\
---------------------------------------------------------------------------

    \13\ http://www.epa.gov/reg3artd/permitting/t5_compl_enf.htm. 
The Web site states that this page was last updated on February 11, 
2011.

    As illustrated by these examples, following the mistaken removal of 
the sentence on June 27, 2003, the EPA has clearly articulated a 
position consistent with the Credible Evidence rule under all 
circumstances, including the annual compliance certification. In light 
of the EPA's continued, consistent commitment to the use of credible 
evidence in compliance certifications and other title V contexts, the 
EPA has not previously devoted its limited resources to correcting the 
inadvertent deletion in the regulatory text through a formal 
rulemaking. Nonetheless, the EPA's Office of Inspector General (OIG) 
has indicated that the title V rules should be amended to restore the 
credible evidence language to the regulatory requirements in order to 
improve the content of annual compliance certifications.\14\ In 
concurrence with the OIG recommendation, the EPA is now taking this 
action to restore the language currently missing in the part 70 and 71 
rules.
---------------------------------------------------------------------------

    \14\ EPA Office of Inspector General, Substantial Changes Needed 
in Implementation and Oversight of Title V Permits If Program Goals 
Are To Be Fully Realized, Report No. 2005-P-00010, pp 31-32 and p 
37, Recommendation 2-2, March 9, 2005. http://www.epa.gov/oig/reports/2005/20050309-2005-P-00010.pdf
---------------------------------------------------------------------------

    In any case, the restored language reflects the Act's general 
prohibition on knowingly making a false certification or omitting 
material information, independent of any EPA policy or previous 
rulemaking actions. As modified in the 1990 CAA Amendments, section 
113(c)(2) of the Act states that any person who knowingly ``makes any 
false material statement, representation, or certification in, or omits 
material information from, * * * any notice, application, record, 
report, plan, or other document required pursuant to this Act'' 
(emphasis added) is subject to fine or imprisonment, upon conviction. 
The EPA believes that it is important for sources to be on notice and 
to understand the requirement to consider as part of their compliance 
status any compliance information determined by methods other than 
those identified in the permit. Moreover, for the sake of clarity, the 
EPA believes that this general duty should be explicit in the part 70 
and 71 compliance certification requirements.

B. Scope of Rulemaking and Request for Comment

    The purpose of this rulemaking is to restore language inadvertently 
deleted from the title V regulations, 40 CFR parts 70 and 71.\15\ Given 
the passage of time, the EPA is proposing to make this change through a 
proposed rule and providing an opportunity for public input. 
Accordingly, the EPA is requesting comments only on whether, on the 
sole basis that the removal of the language in question was 
inadvertent, the language in question should or should not be restored. 
However, the EPA is not requesting comments on any other aspects of 
these provisions or on any other provisions of the part 70 and 71 
rules. If comments are submitted outside of this scope, the EPA will 
not take them into consideration when finalizing this rule.
---------------------------------------------------------------------------

    \15\ Section 70.4(i) provides that states with an approved part 
70 program may need to revise their programs when the relevant 
federal statutes or regulations are modified or supplemented. Given 
that the relevant federal statute concerning representations or 
statements made in compliance certifications (CAA section 113(c)(2)) 
applies regardless of the specific language in 40 CFR 
70.6(c)(5)(iii)(B), the EPA is proposing that states will not need 
to submit part 70 program revisions in response to this rulemaking, 
except where a state program interferes with the implementation of 
the sentence the EPA proposes to restore. The EPA is also proposing 
that permit reopenings will not be needed under 40 CFR 70.7(f)(1) or 
71.7(f)(1) in response to this rulemaking, except where a permit 
contains language that interferes with the implementation of the 
sentence the EPA proposes to restore. Notwithstanding the previous 
statements in this footnote, the EPA may require individual states 
to revise their programs or reopen permits where the EPA believes 
such actions would be necessary to ensure the appropriate 
implementation of the program or its permits.
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    This proposed rule would implement a technical correction to the 
CFR, adding a sentence that was inadvertently removed in a prior 
rulemaking; it would not otherwise impose or amend any requirements. 
The analysis below is consistent with the limited nature of this 
rulemaking.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The EPA is simply correcting the CFR to reinstate a sentence that was 
inadvertently removed. However, the Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations at 40 CFR parts 70 and 71 under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
and has assigned OMB control numbers 2060-0243 and 2060-0336, 
respectively. The OMB control numbers for the EPA's regulations in 40 
CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
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 governmental jurisdictions.
    For purposes of assessing the impacts of this proposed action on 
small entities, small entity is defined as: (1) A small business as 
defined in the U.S. Small Business Administration size standards at 13 
CFR 121.201; (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; or (3) a small organization that is any 
not-for-profit enterprise that is independently owned and operated and 
is not dominant in its field.
    After considering the economic impacts 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. This 
proposed rule will not impose any requirements on small entities. As 
explained above, this

[[Page 19171]]

proposed rule would merely restore a sentence removed from the rules in 
error and, therefore, does not impose any new requirements on any 
entities, either large or small. The EPA continues to be interested in 
the potential impacts of the proposed rule on small entities and 
welcomes comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This proposed rule contains no federal mandates under the 
provisions of title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or 
the private sector. The action imposes no enforceable duty on any 
state, local or tribal governments or the private sector; it simply 
restores a sentence removed from the rules because of erroneous 
amendatory language contained in the June 27, 2003, amendments. 
Therefore, this action is not subject to the requirements of sections 
202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The sentence 
restored in this action was removed in error and, therefore, it does 
not impose new regulatory requirements.

E. Executive Order 13132: Federalism

    This action 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. As explained previously, this 
proposed rule would merely restore a sentence removed from the rules in 
error. Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
action from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). As explained 
previously, this proposed rule would merely restore a sentence removed 
from the rules in error. Thus, Executive Order 13175 does not apply to 
this action.
    The EPA specifically solicits additional comment on this proposed 
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action 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 That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

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, 12(d) (15 U.S.C. 272 note) 
directs the 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 the EPA to 
provide Congress, through the OMB, explanations when the agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, the EPA did not consider the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. As explained previously, this proposed rule would merely 
restore a sentence removed from the rules in error.

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

    Environmental protection, administrative practice and procedure, 
air pollution control, reporting and recordkeeping requirements.

    Dated: March 22, 2013.
Bob Perciasepe,
Acting Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

0
2. Revise Sec.  70.6 paragraph (c)(5)(iii)(B) to read as follows:


Sec.  70.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period. Such methods and other 
means shall include, at a minimum, the methods and means required under 
paragraph (a)(3) of this section. If necessary, the owner or operator 
also shall identify any other material information that must be 
included in the certification to comply with section 113(c)(2) of the 
Act, which prohibits knowingly making a false certification or omitting 
material information;
* * * * *

[[Page 19172]]

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 71 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

0
2. Revise Sec.  71.6 paragraph (c)(5)(iii)(B) to read as follows:


Sec.  71.6   Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period. Such methods and other 
means shall include, at a minimum, the methods and means required under 
paragraph (a)(3) of this section. If necessary, the owner or operator 
also shall identify any other material information that must be 
included in the certification to comply with section 113(c)(2) of the 
Act, which prohibits knowingly making a false certification or omitting 
material information;
* * * * *
[FR Doc. 2013-07266 Filed 3-28-13; 8:45 a.m.]
BILLING CODE 6560-50-P