[Federal Register Volume 79, Number 144 (Monday, July 28, 2014)]
[Rules and Regulations]
[Pages 43661-43667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17680]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2013-0162; FRL-9913-88-OAR]
RIN 2060-AQ71


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is amending 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 
inadvertently. This action restores the sentence to its original 
location in the rules.

DATES: This final rule is effective on August 27, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2013-0162. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, i.e., 
confidential business information 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 
http://www.regulations.gov or in hard copy at the Docket ID No. EPA-HQ-
OAR-2013-0162. EPA/DC, William Jefferson Clinton West Building, Room 
3334, 1301 Constitution Avenue, Northwest, 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 Information Center is (202) 566-1742. For additional 
information about the EPA's public docket, visit the EPA Docket Center 
homepage at: http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Ms. 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].

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

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
II. Background for the Final Rulemaking
III. Amendments to Compliance Certification Content Requirements for 
State and Federal Operating Permits Programs
    A. Rationale for the Final Action
    B. Scope of Rulemaking
    C. Comments and Responses
    1. The Necessity of the Amended Language
    2. The Use of Material Information
    3. Scope of Compliance Certifications
    4. Rule Language Clarification Requested
    D. Final Action
IV. 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
    K. Congressional Review Act
    L. Judicial Review

I. General Information

A. Does this action apply to me?

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

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

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

[[Page 43662]]

II. Background for the Final Rulemaking

    On March 29, 2013, the EPA proposed to 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 2003 rule inadvertently 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.'' The 
EPA proposed to 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 (62 FR 54900), which clarified the use of CAM monitoring 
data in compliance certifications. Specifically, this sentence was 
intended to clarify that ``other material information (i.e., 
information beyond required monitoring that has been specifically 
assessed in relation to how the information potentially affects 
compliance status)'' (62 FR 54937) known by the owner or operator must 
be identified and addressed in compliance certifications consistent 
with section 113(c)(2) of the Clean Air Act (CAA or Act) and the 1997 
Credible Evidence Revisions rule (62 FR 8314). 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.
    For the reasons discussed in this document, we are finalizing the 
regulatory language that we proposed without change.

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

A. Rationale for the Final Action

    As discussed in the preamble to the proposed rule (78 FR 19166), 
the substance of the regulatory preambles and rule text from the 2001 
\1\ 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.\2\ 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 
[sections] 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.'' \3\
---------------------------------------------------------------------------

    \1\ In 2001, 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. We subsequently received adverse comments 
on the direct final rule and withdrew it (66 FR 55883).
    \2\ As discussed in the preamble to the proposed rule (78 FR 
19166), 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).
    \3\ 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 inadvertent 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 inadvertently removed ``other 
material information'' sentence, and with the Credible Evidence 
Revisions 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.\4\
---------------------------------------------------------------------------

    \4\ Annual Compliance Certification (A-COMP), EPA Form 5900-04, 
at page 4 (emphasis added), available at http://www.epa.gov/airquality/permits/pdfs/a-comp.pdf.

    Similarly, the instructions for the initial compliance 
certification form that the EPA issued shortly after the ``other 
material information'' sentence was added to parts 70 and 71 as part of 
the promulgation of the CAM rule in 1997 also discussed the 
consideration of ``all available information or knowledge'' in 
compliance status certification.\5\ After the ``other material 
information'' language was inadvertently deleted from the part 71 rule 
in 2003, the EPA revised the annual compliance certification form and 
associated instructions in 2004 ``to reflect policy decisions 
concerning monitoring and the data used for compliance 
certifications.'' \6\ Specifically, the form added the requirement for 
sources to certify whether compliance was continuous or intermittent, 
but the EPA did not revise the instruction for sources to consider 
``all available information and knowledge'' and ``credible evidence'' 
when determining compliance status.\7\ The retention of the instruction 
to consider all available information, including credible evidence, in 
the Annual Compliance Certification form clearly indicates that the EPA 
continues to believe that the title V rules should be implemented 
consistent with the ``other material information'' sentence that had 
been removed inadvertently. The EPA also has made revisions to the part 
71 forms a number of times since 2003, providing ample opportunity to 
change this language if its policy had changed; however, the EPA has 
made no such changes.\8\
---------------------------------------------------------------------------

    \5\ Initial Compliance Plan and Compliance Certification (I-
COMP), EPA Form 5900-86, at page 4, available at http://www.epa.gov/airquality/permits/pdfs/i-comp.pdf.
    \6\ http://www.epa.gov/airquality/permits/p71forms.html, 
accessed on June 16, 2014.
    \7\ See generally Annual Compliance Certification (A-COMP), EPA 
Form 5900-04, available at http://www.epa.gov/airquality/permits/pdfs/a-comp.pdf.
    \8\ See generally http://www.epa.gov/airquality/permits/p71forms.html, accessed on June 16, 2014.
---------------------------------------------------------------------------

    Title V permits issued by EPA Regional Offices since 2003 also 
provide evidence of the EPA's ongoing practice of requiring sources to 
use ``other material information'' in compliance certifications. A 
review of a sample of recent part 71 permits reveals that they include 
language similar to the language

[[Page 43663]]

in the inadvertently removed sentence. These permits include a permit 
issued by Region 2 in 2011, a permit issued by Region 8 in 2010, and a 
permit issued by Region 5 in 2012, and each permit 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.'' \9\
---------------------------------------------------------------------------

    \9\ See Region 2 part 71 permit issued to Turning Stone Casino 
Resort in Verona, New York at section V.D.(1)(iv), available at 
http://www.epa.gov/region02/air/permit/trsc07052011.pdf; Region 8 
part 71 permit issued to Samson Resources Company at Sec.  
III.C.3.(c)(ii), available at http://www2.epa.gov/sites/production/files/documents/Samson-HowardSWD_Initial_V-SU-0051-10.00.pdf; 
Region 5 part 71 permit issued for operations at the Treasure Island 
Resort & Casino in Red Wing, Minnesota at 4.0(D)1.(ii), available at 
http://yosemite.epa.gov/r5/r5ard.nsf/
f5dbe2e3ef9dc9c1862570430068f396/10cd79ad1a4c177386257ad0004d7bc3/
$FILE/V-PI-2704900084-2012-10%20-%20Final.pdf.
---------------------------------------------------------------------------

    Similarly, the EPA guidance to title V rule writers on an EPA 
Region 3 Web site concerning compliance and enforcement illustrates the 
EPA's commitment to the use of credible 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. . . .\10\
---------------------------------------------------------------------------

    \10\ 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 ``other material information'' sentence on June 27, 2003, the EPA 
has clearly articulated a position consistent with the Credible 
Evidence Revisions 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 ``other material information'' 
language to the regulatory requirements in order to improve the content 
of annual compliance certifications.\11\ 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.
---------------------------------------------------------------------------

    \11\ 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.
---------------------------------------------------------------------------

    The restored language reflects the general prohibition on knowingly 
making a false certification or omitting material information that 
exists in the CAA, 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 to ensure that sources are on notice and understand the 
requirement to consider as part of their compliance status any material 
information determined by methods other than those identified in the 
permit. Moreover, for the sake of clarity, the EPA believes that this 
duty should be explicit in the part 70 and 71 compliance certification 
requirements.

B. Scope of Rulemaking

    The purpose of this final rulemaking is to restore language that 
was inadvertently deleted from the title V regulations, 40 CFR parts 70 
and 71.\12\ Given the passage of time, the EPA decided to make this 
change through a notice and comment rulemaking, rather than a 
correction notice. In the notice of proposed rulemaking for this 
action, the EPA requested 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. The EPA did not 
request comments on any other aspects of these provisions or on any 
other provisions of the part 70 and 71 rules. In the proposal, the EPA 
stated that if comments were submitted outside of this scope, the 
agency would not take them into consideration when finalizing the rule.
---------------------------------------------------------------------------

    \12\ Section 70.4(i) provides that states with approved part 70 
programs 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 proposed 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 also proposed 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.
---------------------------------------------------------------------------

C. Comments and Responses

    As stated in the previous section, the proposed rule provided an 
opportunity for comment 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. The EPA provided a 60-day review and 
comment period on the proposed rulemaking, which closed on May 28, 
2013. A total of seven comment letters (three industry comment letters, 
two citizen comment letters, one government agency comment letter, and 
one environmental group comment letter) were received on the proposed 
amendment to restore a sentence to the title V compliance certification 
requirements that had been inadvertently removed from the rules in June 
27, 2003. Three of the commenters opposed the amendment, three were 
neutral about it, and one supported it. One commenter did not believe 
the removal was inadvertent, but provided no specific reasoning or 
evidence to support this general allegation; thus, we have no 
additional response to this comment beyond the explanation already 
provided here and in the proposal to support that the removal was 
inadvertent. Another commenter explained that they ``assumed'' that EPA 
had determined the ``other material information'' language was no 
longer necessary or appropriate and that the removal of the language 
was part of an overall effort to simplify rule language. However, as 
explained repeatedly in this preamble, as well as in the preamble to 
the proposal for this action, we provided no such explanation at the 
time the sentence was removed, nor did we even note that we were 
removing the sentence. In addition, the EPA's actions

[[Page 43664]]

since the removal demonstrate the EPA's consistent implementation of 
the language restored in the rule. All these points support the EPA's 
position that the removal was inadvertent.
    The EPA responded to comments on the substance of the inadvertently 
removed text when the text was first promulgated, see ``Compliance 
Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71) Responses 
to Public Comments (Part III),'' October 2, 1997, available at http://www.epa.gov/ttnatw01/cam/rtcpart3.pdf, page 285. The following 
discussion confirms our position on issues related to the substance of 
the ``other material information'' text as explained in prior response 
to comments, preambles to Federal Register documents, and various EPA 
forms, permits, and guidance documents, and is consistent with the 
restoration of the text we are finalizing.
1. The Necessity of the Amended Language
    Comment: One industry commenter states that it is not necessary or 
useful for the EPA to add this additional language to 40 CFR 70.6 and 
71.6. In fact, the commenter believes that the inclusion of this 
language will be harmful in that it will create uncertainty and 
confusion.
    The government agency commenter stated that the addition of the 
proposed language would be redundant and would not provide any 
additional clarification to the requirements under this section. The 
commenter claims that it would instruct the owner/operator to include 
items that are already required to be included by this section as 
currently written.
    A citizen commenter was also concerned about the proposed language 
being redundant and stated that: (a) Most title V permits already have 
conditions that address this issue; (b) most state agencies have been 
using the language whether it was/was not inadvertently left out of the 
rule; and (c) the certifications required now by state agencies are 
sufficient without additional language.
    The environmental group commenter supported the EPA's effort to 
remind permit owners of their obligations while cautioning that the 
disclosure duties discussed in the proposed rule exist independent of 
the EPA's implementing regulations.
    Response: As stated earlier in this preamble, as well as in the 
preamble to the proposal for this action, the regulatory requirement to 
identify ``any other material information . . .'' was originally added 
to the annual compliance certification requirements of parts 70 and 71 
and promulgated in the context of a Compliance Assurance Monitoring 
rulemaking on October 22, 1997 (62 FR 54900). Restoring the language at 
issue to the regulatory text through this action only seeks to correct 
what was an inadvertent error in the 2003 final rulemaking. As 
explained, the EPA has not reversed or weakened this position in 
subsequent actions. The restored language reflects the general 
prohibition on knowingly making a false certification or omitting 
material information that exists in the CAA, 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 to ensure sources are 
on notice and understand the requirement to consider as part of their 
compliance status any material information determined by methods other 
than those identified in the permit. Moreover, for the sake of ensuring 
clarity, the EPA believes that this duty should be included explicitly 
in the part 70 and 71 compliance certification requirements.
    As also discussed earlier in this preamble and in the preamble to 
the proposed rule, the EPA's OIG has indicated that the title V rules 
should be amended to restore the ``other material information'' 
language to the regulatory requirements in order to improve the content 
of annual compliance certifications.\13\ Therefore, the decision to 
restore the regulatory text is responsive to the OIG's recommendation.
---------------------------------------------------------------------------

    \13\ See footnote 9, supra.
---------------------------------------------------------------------------

2. The Use of Material Information
    Comment: The environmental group requested that the agency clarify 
that ``material'' information includes information known to the permit-
holder and pertinent to compliance status, ``whether or not that 
information necessarily demonstrates a violation.'' An industry 
commenter stated that including ``other material information'' in a 
certification does not constitute a concession that the information is 
``credible evidence'' of a violation. An industry commenter requested 
that the agency acknowledge that nothing in the revised language 
prohibits a responsible official from disputing the relevance or 
``materiality'' of any identified information or reserving all rights 
to challenge use of that information in an enforcement proceeding. 
Another industry commenter made a similar comment and stated that the 
EPA should acknowledge that companies may clarify the meaning of 
``other material information'' included in a compliance certification 
document and may dispute its materiality in subsequent proceedings.
    Response: In terms of the first and last comment, the agency agrees 
that material information is not limited to information that 
conclusively demonstrates a violation. The sentence restored states 
that ``[i]f 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.'' As the 
EPA explained in the preamble to the final 1997 CAM rulemaking, any 
other material information known to the source owner/operator and 
relevant to the source's compliance status--``i.e., information beyond 
required monitoring that has been specifically assessed in relation to 
how the information potentially affects compliance status''--must be 
identified and addressed in the compliance certification submitted by 
the responsible official, and in providing this explanation, the EPA 
did not state that the information is limited to that which indicates 
non-compliance (62 FR 54937). As explained in the Response to Comments 
document accompanying the 1997 Compliance Assurance Monitoring Rule, 
the owner or operator of a source must consider any other material 
information in order to avoid submitting an incomplete, inaccurate, or 
false certification.\14\ Thus, this other material information could 
help in documenting whether compliance was continuous or intermittent 
for the relevant certification period, consistent with Sec. Sec.  
70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C).
---------------------------------------------------------------------------

    \14\ ``Compliance Assurance Monitoring Rulemaking (40 CFR parts 
64, 70, and 71) Responses to Public Comments (Part I), (Comments 
Submitted in Response to Enhanced Monitoring Proposal),'' dated 
October 2, 1997, available at http://www.epa.gov/ttnatw01/cam/rtcpart1.pdf (hereinafter, CAM Responses to Public Comments) Section 
7.2.3 ``Use of Other Monitoring Data for Compliance 
Certifications,'' page 192.
---------------------------------------------------------------------------

    In response to industry commenters, the agency agrees that a 
responsible official may provide an explanation concerning the 
relevance of other material information when it is

[[Page 43665]]

submitted as part of the compliance certification for the source. At 
the time of the submittal, the responsible official can explain the 
relevance of any such information, including, but not limited to, cases 
in which the responsible official believes the ``other material 
information'' may be seen as in conflict with his conclusion regarding 
whether compliance was continuous or intermittent.\15\ For example, we 
have explained that the requirements of the Credible Evidence Revisions 
rule ``continue[s] to rely on the established compliance method as the 
benchmark for measuring compliance with the standard. The use of other 
evidence to document a violation must take into account the averaging 
requirements related to the data collected by such method, the 
pollutant constituents measured by such method (e.g., the definition of 
particulate matter included in Method 5), and any limitations as to the 
conditions under which such tests may be conducted.'' \16\
---------------------------------------------------------------------------

    \15\ CAM Response to Public Comments, Section 7.2.3 ``Use of 
Other Monitoring Data for Compliance Certifications,'' pages 192-193 
and Section 7.11.2 ``Deviations,'' page 208.
    \16\ ``Credible Evidence Rule Revisions: Response to Comments,'' 
Office of Enforcement and Compliance Assurance, U.S. Environmental 
Protection Agency, dated February 1997, Section 2.1.6 ``Necessity 
for a Rulemaking to Establish Compliance Test Methods,'' page 17.
---------------------------------------------------------------------------

    The agency further agrees that merely including other material 
information in a compliance certification does not constitute a 
concession that the information is credible evidence of a violation.
    Comment: The government agency expressed concern that if the 
proposed sentence is readopted, the interpretation of what is 
additional information necessary for compliance--outside of what is 
required by the permit--becomes arbitrary and up to interpretation by 
the regulatory agency without recourse for the permitted entity. The 
commenter further states that any inadvertent omission of additional 
information (whether by oversight or not being aware of its relevance), 
even though not required by the permit, would subject the facility to 
enforcement action and imply the responsible official made a false 
certification, holding him/her both criminally and civilly liable.
    A citizen commenter also expressed concern about the possibility of 
criminal prosecution and monetary penalties as a result of knowingly 
making a false certification.
    Response: As explained in the 2013 proposal and throughout this 
preamble, the title V operating permits program functioned with this 
language in place for some time before it was inadvertently removed and 
has operated similarly since its removal. Moreover, the underlying 
statutory language in section 113(c)(2) of the CAA has not changed. 
Thus, restoring this language in the regulatory text does not change 
what is required of permitted entities.
    Additionally, as previously explained in the 1997 Compliance 
Assurance Monitoring rulemaking, the requirement to consider other 
material information ``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 54937). Under the existing 
title V regulations, any application form, report, or compliance 
certification is required to contain a certification by a responsible 
official.\17\ This certification is required to state that based on 
information and belief formed after reasonable inquiry, the statements 
and information in the document are true, accurate, and complete. See 
40 CFR 70.5(d) and 71.5(d). It is important to emphasize that, 
consistent with this requirement, the agency has already explained that 
it does not expect a certification to be based on absolute knowledge, 
but rather reasonable inquiry. For example, the EPA has stated that the 
compliance certification ``will be based on available information, 
including monitoring and/or other compliance terms required in the 
permit.'' \18\
---------------------------------------------------------------------------

    \17\ In the Part 70 proposal (56 FR 21712, May 10, 1991), we 
stated that ``the certification, as well as all other documents 
required under Part 70, must state that `to the best of the signer's 
knowledge, information and belief formed after reasonable inquiry, 
the statements and information in the compliance certification are 
true, accurate and complete.' This language is similar to that in 
Rule 11 of the Federal Rules of Civil Procedure, upon which it was 
modeled. The provision makes clear that the signer must make a 
reasonable (under the circumstances) inquiry before attesting to the 
truth, accuracy, and completeness of the information and 
statements.'' (56 FR 21734).
    \18\ ``White Paper Number 2 for Improved Implementation of The 
Part 70 Operating Permits Program,'' Memorandum from Lydia N. 
Wegman, Deputy Director, Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, to Air Division 
Directors, March 5, 1996, page 33.
---------------------------------------------------------------------------

    Nothing in the current regulations precludes the submission of 
material information discovered after a compliance certification is 
filed. Additionally, the responsible official is encouraged to include 
written explanations, graphs, and other information to clarify his/her 
conclusions regarding the source's compliance status.
    In an explanation of the use of credible evidence in compliance 
certifications in the Credible Evidence Revisions rule, the agency 
emphasized that sources may not ignore obviously relevant information 
in developing their compliance certifications (62 FR 8320). However, in 
the same preamble, the agency also explained that it does not view 
compliance certification requirements as imposing a duty on a source to 
search out and review every possible document to determine its 
relevance to a source's compliance (id).
3. Scope of Compliance Certifications
    Comment: The environmental group requested that the agency confirm 
in the final rule that the compliance certification obligation applies 
to all applicable requirements under the CAA--not just the specific 
emissions limitations enumerated in a title V operating permit.
    Response: As discussed earlier in this preamble and in the preamble 
to the proposal, the purpose of this rulemaking is to restore a 
sentence to the compliance certification requirements that was 
inadvertently removed from the rule language on June 27, 2003. The EPA 
requested comment 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. The comment raises an issue that is beyond 
the scope of this rulemaking, and, consistent with the approach already 
described, the EPA did not take this comment into consideration when 
finalizing the rule. However, we note that the text restored is a part 
of the existing regulation requiring annual (or more frequent) 
certification addressing compliance of the source ``with terms and 
conditions contained in the permit, including emission limitations, 
standards, or work practices.'' 40 CFR 70.6(c)(5), 71.6(c)(5).
4. Rule Language Clarification Requested
    Comment: A citizen recommended that the proposed language be 
revised to be more specific as to the information that needs to be 
included.
    Response: As discussed earlier in this preamble and in the preamble 
to the proposal, the purpose of this rulemaking is to restore a 
sentence to the compliance certification requirements that was 
inadvertently removed from the rule language on June 27, 2003. The EPA 
requested comment 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. The comment raises an issue that is beyond 
the scope of this rulemaking, and, consistent with approach already 
described, the EPA

[[Page 43666]]

did not take this comment into consideration when finalizing the rule. 
However, we note that the EPA provides guidance on the information to 
be included in compliance certification in several places, including in 
the instructions to the Annual Compliance Certification form \19\ and 
as further summarized in the recently issued memo regarding annual 
compliance certification reporting.\20\
---------------------------------------------------------------------------

    \19\ Annual Compliance Certification (A-COMP), EPA Form 5900-04, 
at pages 4-6, available at http://www.epa.gov/airquality/permits/pdfs/a-comp.pdf.
    \20\ Memorandum from Stephen D. Page, OAQPS Director, to 
Regional Air Division Directors, Regions 1-10, Implementation 
Guidance on Annual Compliance Certification Reporting and Statement 
of Basis Requirements for Title V Operating Permits (April 30, 
2014), available at http://www.epa.gov/Region7/air/title5/t5memos/20140430.pdf.
---------------------------------------------------------------------------

D. Final Action

    On March 29, 2013, the EPA proposed to restore the ``other material 
information'' 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 2003 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 final rule restores this sentence to its former 
position in both paragraphs.

IV. Statutory and Executive Order Reviews

    This final rule implements a technical correction to the Code of 
Federal Regulations by adding a sentence that was inadvertently removed 
in a prior rulemaking. It will 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 final 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 this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. As explained 
above, this final rule merely restores a sentence that was removed from 
the rules inadvertently, and that reflects a requirement of the CAA; 
thus, the final rule does not impose any new requirements on any 
entities, either large or small.

D. Unfunded Mandates Reform Act

    This final 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. This 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 reflects a requirement of the CAA and was 
removed inadvertently 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 final 
rule merely restores a sentence removed from the rules inadvertently. 
Thus, Executive Order 13132 does not apply to this rule.

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 final rule merely restores a sentence that reflects a 
requirement of the CAA and was removed from the rules inadvertently. 
Thus, Executive Order 13175 does not apply to this action.

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.

[[Page 43667]]

H. Executive Order 13211: Actions Concerning Regulations 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 final 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 as 
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 final 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 final rule merely restores a 
sentence that reflects a requirement of the CAA and was removed from 
the rules inadvertently.

K. 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 
U.S. The EPA 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 U.S. 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 on August 27, 2014.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit within 60 days from the date this 
action is published in the Federal Register. Filing a petition for 
reconsideration by the Administrator of this final action does not 
affect the finality of this action for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
must be filed, and shall not postpone the effectiveness of this action.

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: July 21, 2014.
Gina McCarthy,
Administrator.
    Therefore, 40 CFR parts 70 and 71 are 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. In Sec.  70.6, revise 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;
* * * * *

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

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

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


0
4. In Sec.  71.6, revise 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. 2014-17680 Filed 7-25-14; 8:45 am]
BILLING CODE 6560-50-P