[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Rules and Regulations]
[Pages 22362-22374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08581]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 75
[EPA-HQ-OAR-2020-0211; FRL-10008-51-OAR]
RIN 2060-AU85
Continuous Emission Monitoring; Quality-Assurance Requirements
During the COVID-19 National Emergency
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule; request for comments.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the
emissions reporting regulations applicable to sources that monitor and
report emissions under the Acid Rain Program, the Cross-State Air
Pollution Rule (CSAPR), and/or the NOX SIP Call. The
amendments provide that if an affected unit fails to complete a
required quality-assurance, certification or recertification, fuel
analysis, or emission rate test by the applicable deadline under the
regulations because of travel, plant access, or other safety
restrictions implemented to address the current COVID-19 national
emergency and if the unit's actual monitored data would be considered
valid if not for the delayed test, the unit may temporarily continue to
report actual monitored data instead of substitute data. Sources must
maintain documentation, notify EPA when a test is delayed and later
completed, and certify to EPA that they
[[Page 22363]]
meet the criteria for using the amended reporting procedures.
Substitute data must be reported if those criteria are not met or if
monitored data are missing or are invalid for any non-emergency-related
reason. Units are required to complete any delayed tests as soon as
practicable after relevant emergency-related restrictions no longer
apply, and the emergency period for which a unit can report valid data
under the amendments is limited to the duration of the COVID-19
national emergency plus a grace period of 60 days to complete delayed
tests, but no later than the date of expiration of the amendments. This
action is necessary during the COVID-19 national emergency to protect
on-site power plant operators and other essential personnel from
unnecessary risk of exposure to the coronavirus. The amendments do not
suspend emissions monitoring or reporting requirements or alter
emissions standards under any program, and EPA expects the amendments
not to cause any change in emissions levels. The rule therefore will
not result in any harm to public health or the environment that might
occur from increased emissions, and to the extent that the amendments
facilitate plant operators' efforts to comply with travel and plant
access restrictions imposed to protect public health during the COVID-
19 emergency, the amendments will have a positive impact on public
health by assisting efforts to slow the spread of the disease. EPA
finds good cause to promulgate this rule without prior notice or
opportunity for public comment and to make the rule effective
immediately upon publication in the Federal Register. The amendments
promulgated in this rule will expire in 180 days. EPA is also
requesting comment on this rule.
DATES: This rule is effective April 22, 2020. EPA will consider
comments on this rule received on or before May 22, 2020.
ADDRESSES: Submit your comments, identified by Docket No. EPA-HQ-OAR-
2020-0211, at https://regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA generally
will not consider comments or comment contents located outside of the
primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://epa.gov/dockets/commenting-epa-dockets. Additional materials related to this
action, including submitted comments, can be viewed online at
regulations.gov under Docket No. EPA-HQ-OAR-2020-0211. While the EPA
Docket Center Reading Room in Washington, DC is currently closed to
public visitors in order to reduce the risk of COVID-19 transmission,
materials related to this action may also be viewed in person at the
Reading Room at such time as it reopens. Information on the location
and hours of the Reading Room is available at https://www.epa.gov/dockets. Please call or email the contact listed in FOR FURTHER
INFORMATION CONTACT if you need alternative access to material indexed
but not electronically available in the docket at regulations.gov.
FOR FURTHER INFORMATION CONTACT: David Lifland, U.S. Environmental
Protection Agency, Clean Air Markets Division, Mail Code 6204M, 1200
Pennsylvania Avenue NW, Washington, DC 20460; 202-343-9151;
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
A. Summary of the Action
B. Potentially Affected Entities
C. Statutory Authority
II. Amendments to Quality-Assurance Requirements During the COVID-19
National Emergency
A. Background and Rationale
B. Description of Amendments
C. Expected Impacts
III. Rulemaking Procedures and Findings of Good Cause
IV. 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. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Determination Under CAA Section 307(b)
I. Overview
A. Summary of the Action
The emissions monitoring, recordkeeping, and reporting regulations
at 40 CFR part 75 (referred to here as the ``part 75 regulations'' or
``part 75 requirements'') require affected sources not only to
continuously monitor emissions and other data for every operating hour
in a control period, but also to conduct a variety of periodic or
event-driven tests to ensure high quality of the reported data. Part 75
also requires sources to report substitute data instead of actual
monitored data for operating hours when a required test has not been
completed in a timely manner. The sources must continue reporting
substitute data until the delayed test is successfully completed. The
substitute data are intentionally conservative (i.e., high-biased),
causing the emissions reported for the source to be higher than if the
delayed test had been completed on time. The data become increasingly
high-biased over time and ultimately may be as high as a unit's maximum
potential emissions. Most sources subject to part 75 participate in EPA
trading programs that require surrender of sulfur dioxide
(SO2) or nitrogen oxides (NOX) emission
allowances for each ton of reported emissions, so the increase in
reported emissions following a missed test deadline results in an
increase in the quantity of allowances that must be surrendered, with a
corresponding increase in the source's allowance costs. In ordinary
circumstances, this regulatory approach appropriately provides
operators with a strong incentive to conduct all required tests by the
applicable deadlines.
While affected sources typically perform part 75 continuous
monitoring activities using highly automated monitoring systems
overseen by plant staff, most sources conduct certain required part 75
tests using outside contractor personnel. Some tests also require
calibration gases to be obtained from outside facilities or require
fuel samples to be analyzed at outside
[[Page 22364]]
laboratories. Consequently, current travel, plant access, and other
safety restrictions related to the novel coronavirus disease (COVID-19)
emergency, as well as shutdowns of external facilities that provide
necessary supplies or services, may make compliance with part 75
testing requirements difficult for some sources. Moreover, because of
uncertainty regarding the duration of the restrictions and because
tests requiring outside contractor personnel often must be scheduled
months in advance, operators missing test deadlines now face
considerable uncertainty as to when they will be able to reschedule and
complete any delayed tests. However, the existing part 75 regulations
require sources to report substitute data following all missed test
deadlines until the tests are successfully completed, regardless of the
reason for missing the test and the possible inability to reschedule
the test for multiple months because of restrictions related to the
emergency. Based on the reported dates of previous tests, EPA believes
that from April to June of this year, approximately 1,000 units will
face deadlines for part 75 tests that typically require outside
contractor personnel. In light of the current COVID-19 national
emergency, EPA has decided that a temporary alternative is needed to
the part 75 data substitution requirements following tests that are not
completed in a timely manner because of travel, plant access, or other
safety restrictions related to the emergency. EPA believes that
establishment of a temporary alternative is necessary to reduce risks
to power plant operators and other essential personnel from exposure to
COVID-19 and is consistent with similar social distancing efforts being
taken at this time by all levels of government and the private sector
while ensuring that mission-essential functions can be performed.
In this action, EPA is amending the part 75 data substitution
requirements to establish a limited, temporary exception that applies
only under qualifying conditions related to the current COVID-19
national emergency. Specifically, in place of the existing requirements
to report substitute data following any failure to complete a required
test, the amendments instead allow actual monitored data to be reported
after certain missed test deadlines, as long as the failure to complete
the test is caused by travel, plant access, or other safety
restrictions implemented to address the COVID-19 emergency and the
monitored data would be considered valid if not for the delayed test.
As a condition of applying the amended procedures, sources must
document the reasons for delaying any required test and notify EPA when
a test is delayed and when the delayed test is later completed. The
notifications must include certifications that the source meets the
criteria for using the amended procedures. EPA will post summaries of
these notifications on a publicly accessible website. The amended
requirements apply until the required test can be completed, but no
longer than the duration of the COVID-19 national emergency plus a
grace period of 60 days to complete delayed tests, and no later than
the date of expiration of the amendments. This action does not suspend
the existing part 75 requirements to continuously monitor and report
emissions for every operating hour in a control period and does not
alter any emissions limitations under any program. The amendments and
EPA's rationale are described in greater detail in section II of this
document.
This is a final rule. The amendments are effective immediately upon
publication in the Federal Register and will expire after 180 days.
EPA's findings of good cause for issuing the rule without prior notice
and opportunity for comment and for making the rule effective
immediately upon publication are contained in section III of this
document. In section IV of this document, EPA requests comment on all
aspects of the rule. Section V of this document addresses required
statutory and executive order reviews.
B. Potentially Affected Entities
This action applies to any source that reports emissions to EPA
under 40 CFR part 75. Generally, the types of sources that could be
affected are fossil fuel-fired boilers and stationary combustion
turbines serving electricity generators with capacities over 25
megawatts in the contiguous 48 states as well as other fossil fuel-
fired boilers and stationary combustion turbines with heat input
capacities over 250 million British thermal units per hour located in
Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Missouri, New Jersey, New York, North
Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Virginia, West Virginia, and the District of Columbia. Sources meeting
these criteria operate in a variety of industries, including but not
limited to the following:
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Industries with potentially
NAICS * code affected sources
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221112................................ Fossil fuel-fired electric power
generation.
3112.................................. Grain and oilseed milling.
3221.................................. Pulp, paper, and paperboard
mills.
3241.................................. Petroleum and coal products
manufacturing.
3251.................................. Basic chemical manufacturing.
3311.................................. Iron and steel mills and
ferroalloy manufacturing.
6113.................................. Colleges, universities, and
professional schools.
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* North American Industry Classification System.
C. Statutory Authority
Statutory authority to issue the amendments promulgated in this
action is provided by Clean Air Act (CAA) section 412, 42 U.S.C. 7651k,
which also provided authority for the initial promulgation of 40 CFR
part 75, and CAA section 301, 42 U.S.C. 7601, which authorizes the
Administrator to ``promulgate such regulations as are necessary to
carry out his functions under [the CAA].'' Statutory authority for the
rulemaking procedures followed in this action is provided by
Administrative Procedure Act (APA) section 553, 5 U.S.C. 553.
II. Amendments to Quality-Assurance Requirements During the COVID-19
National Emergency
A. Background and Rationale
The part 75 regulations were originally promulgated to establish
the emissions monitoring, recordkeeping, and reporting requirements
under the Acid Rain Program, which covers over 3300 electricity
generating units (EGUs) in the contiguous United States.\1\ Subsequent
rules including the Cross-State Air Pollution Rule (CSAPR) \2\ and the
CSAPR Update,\3\ as well as state implementation plans adopted to meet
the requirements of CSAPR, the CSAPR Update, and the NOX SIP
Call,\4\ require over 600 additional EGUs and approximately 300 large
non-EGU boilers and combustion turbines in eastern states to comply
with the part 75 regulations. Affected units must follow specified
procedures for determining and reporting hourly data for mass emissions
of SO2, NOX, and carbon dioxide (CO2),
NOX emission rate, and/or heat input using either continuous
emission monitoring systems (CEMS) or,
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for qualifying units, several other monitoring methodologies.
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\1\ CAA title IV, 42 U.S.C. 7651-7651o; 40 CFR parts 72-78.
\2\ 76 FR 48208 (August 8, 2011).
\3\ 81 FR 74504 (October 26, 2016).
\4\ 63 FR 57356 (October 27, 1998).
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The part 75 regulations require sources to report substitute data
for their hourly emissions instead of actual monitored data in two
general situations, only one of which may merit potentially different
treatment during unusual circumstances such as the current COVID-19
emergency. The first general situation, which EPA sees no reason to
address differently in emergency versus non-emergency circumstances,
occurs when no data are obtained from a monitoring system (or when the
data obtained are suspect). Because the part 75 regulations are
designed to ensure a continuous record of each affected unit's hourly
mass emissions (and other relevant data), the regulations require
affected units to report substitute data for each operating hour when
monitored data are missing.\5\ To give operators a strong incentive to
maintain high availability of their monitoring systems, the data
substitution provisions of the regulations require units to report
increasingly conservative (i.e., high-biased) data as a missing data
period grows longer.\6\ For example, when a CEMS fails to provide data
for only a few hours--for example, because of a problem that is
discovered and repaired promptly--substitute data are generally
determined from the data for nearby hours.\7\ If a missing data period
extends beyond a few hours, the unit must report data first approaching
and then equaling the highest values recorded by the CEMS during a
specified lookback period.\8\ Eventually, when a missing data period
extends long enough to cause the CEMS to lack valid data for 20 percent
of the unit's previous 8760 operating hours, the unit must report
substitute data reflecting the unit's maximum potential value for the
monitored variable.\9\ Thus, if a CEMS for a baseload unit had no
previous missing data periods, after a single missing data period of
about five weeks the unit would be required to report for every
operating hour the highest hourly value recorded by the CEMS during the
lookback period, and after a single missing data period of about ten
weeks the unit would be required to report for every operating hour the
maximum potential value for the parameter monitored by the CEMS.
Because most affected units under part 75 participate in one or more
EPA trading programs for SO2 and/or NOX emissions
that require the units to surrender emission allowances equal to the
amounts of their reported emissions, reporting higher-than-actual
emissions causes the units to incur correspondingly increased costs for
allowances under the trading programs. The additional allowance costs
resulting from an extended period of missing data appropriately provide
operators with incentives to maintain high availability of their
emissions monitoring systems at all times when a unit is operating
(including during periods of emergency).\10\
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\5\ See generally 40 CFR part 75, subpart D.
\6\ See Sec. 75.32(a)(2).
\7\ See Sec. 75.33(b)(1)(i), (b)(2)(i), (c)(1)(i), (c)(2)(i).
\8\ See, e.g., Sec. 75.33(b)(1)(ii), (b)(2)(ii), (b)(3),
(c)(1)(ii), (c)(2)(ii), (c)(3). The relevant lookback period is 720
operating hours for some reported variables and 2160 operating hours
for others.
\9\ See, e.g., Sec. 75.33(b)(4), (c)(4).
\10\ In this action, EPA is not amending the existing
requirements to report substitute data for operating hours when
monitored data are missing or when data are invalid for reasons
other than an emergency-related delay of quality-assurance
activities.
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The second general situation when a source must report substitute
data instead of actual monitored data, which EPA believes might be
appropriate to address differently in certain emergency circumstances
than in non-emergency circumstances, occurs when quality-assurance
requirements are not met. The part 75 regulations are designed to
achieve not only high availability of monitored data, but also high
quality of those data. Accordingly, the regulations require various
kinds of quality-assurance testing. Of particular relevance here, the
regulations also require substitute data to be reported if the quality-
assurance tests are not completed by applicable deadlines, following
the same procedures described above for periods when data from a
monitoring system are missing. The specific testing requirements depend
on which of the permissible part 75 monitoring methodologies is being
used and on the type of fuel or monitoring equipment. For units using
gas concentration CEMS, the required quality-assurance tests include
relative accuracy test audits (RATAs), which involve stack testing and
generally must be performed every two or four calendar quarters, as
well as quarterly linearity checks and daily calibration error
tests.\11\ For units using stack gas flow rate CEMS, the required tests
include RATAs, which again involve stack testing and generally must be
performed every two or four calendar quarters, as well as quarterly
leak checks or other tests that depend on the particular technology
employed.\12\ For gas- and oil-fired units using fuel sampling and fuel
flowmeters under appendix D to part 75, the required tests generally
include either flowmeter accuracy tests which must be performed every
four calendar quarters or else less frequent accuracy tests combined
with certain otherwise optional tests performed on a quarterly
basis.\13\ In addition, the appendix D methodology requires periodic
laboratory analyses of fuel samples to determine fuel sulfur content,
density, and/or gross calorific value.\14\ Under the regulations, a
unit's failure to conduct and pass any required CEMS or fuel flowmeter
quality-assurance test by the applicable deadline (or within a
specified grace period) causes the monitoring system to be considered
``out of control'' just as an equipment failure would. Data obtained
from such a monitoring system are considered invalid and the unit must
report substitute data until the required test is conducted and
passed.\15\ The unit's operator must then bear the correspondingly
higher allowance costs that are caused by the higher reported
emissions.
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\11\ See 40 CFR part 75, appendix B, section 2.
\12\ See id.
\13\ See 40 CFR part 75, appendix D, sections 2.1.6.3 and
2.1.6.4(b).
\14\ See 40 CFR part 75 appendix D, sections 2.2 and 2.3.
\15\ See, e.g., 40 CFR part 75, appendix B, section 2.3.1.1, and
appendix D, sections 2.1.6 and 2.1.7.
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In ordinary circumstances, requiring operators to report substitute
data when quality-assurance testing deadlines are missed appropriately
provides operators with a strong incentive to conduct the required
tests in a timely manner, just as they are provided with a strong
incentive to maintain high availability of their monitoring equipment.
However, in circumstances where an operator may be unable to meet test
deadlines because of the COVID-19 outbreak, and where it may not be
possible to complete the delayed test for an extended period for
reasons outside the operator's control, requiring data substitution
cannot induce more timely compliance with quality-assurance
requirements. Indeed, to the extent the desire to avoid an extended
period of data substitution requirements incentivizes the operator to
proceed with testing instead of more rigorously complying with travel,
plant access, and other safety restrictions imposed to address the
current COVID-19 emergency, the data substitution requirements may put
plant operators and other personnel at risk and be in tension with
immediate public health imperatives.
Conducting quality-assurance tests often requires resources from
outside the plant being tested. RATAs and other stack tests are
generally performed by contractor personnel who travel from plant to
plant rather than by on-site
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plant personnel. State regulatory staff often attend as observers.
Under emergency conditions when travel or plant access is restricted,
it may be difficult or impossible for these outside personnel to
perform or observe testing at the previously scheduled times. Further,
such tests are often scheduled months in advance, and if a large number
of units are delaying tests simultaneously, the average time until the
tests can be rescheduled will be even longer than usual. Moreover,
RATAs, linearity checks, and calibration error tests of gas
concentration CEMS all require calibration gases that are delivered
from specialized producers, and appendix D fuel sample analyses are
often performed at outside laboratories. Travel, plant access, and
other safety restrictions, such as emergency-related shutdowns of
external facilities, may make it difficult for affected sources to
restock their calibration gases if on-site supplies run out or to
obtain analyses of fuel samples.
According to data reported to EPA, part 75 RATAs were performed at
1,033 monitoring locations in the second quarter of 2019.\16\ Given the
typical four-quarter interval between required RATAs, EPA therefore
believes that approximately 1,000 units will have deadlines to perform
RATAs in April, May, and June of 2020.\17\ Since the beginning of March
2020, EPA has been contacted by nine power plant owners (who
collectively operate over 300 units subject to part 75 requirements),
an emissions data acquisition and handling system (DAHS) vendor, two
consulting companies, and two state regulatory agencies indicating that
stack testing requirements will be difficult or impossible to meet on a
timely basis in locations where plant access has been limited or where
local or state governments have imposed shelter-in-place or other
restrictions for all but essential activities. More information on
these communications is provided in the document entitled ``Stakeholder
Communications Regarding the COVID-19 Emergency'' in the docket for
this action.\18\
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\16\ See ``Part 75 RATAs Reported for 2019 Q2.xlsx,'' available
in the docket for this action. Over 1500 RATAs were performed at the
1033 monitoring locations. See id. EPA notes that the number of
monitoring locations is not identical to the number of affected
units, because some monitoring locations are at common stacks
serving multiple units, and emissions of some units are monitored at
multiple monitoring locations.
\17\ The normal four-quarter interval can be extended if a unit
does not operate in a given quarter. See 40 CFR part 75, appendix B,
section 2.3.1.1. Thus, deadlines for some of the approximately 1,000
units that conducted RATAs in the second quarter of 2019 will be
extended beyond the second quarter of 2020, while other units whose
most recent previous RATA was before the second quarter of 2019 will
have an extended RATA deadline in the second quarter of 2020.
\18\ See also, e.g., ``Sequestered in power plants or at-home
call centers: Consumers Energy in the age of COVID-19,''
dailyenergyinsider.com (April 9, 2020); ``PJM ramps up preparations
as COVID-19 hotspots emerge in its footprint,'' www.powermag.com
(April 8, 2020); ``Power industry pleads for priority COVID-19
testing, PPE for mission-essential workers,'' www.powermag.com
(April 7, 2020); ``NYISO workers now living at grid control
centers,'' www.powermag.com (March 30, 2020); ``Utilities plan to
keep key staff housed at power plants,'' www.powermag.com (March 20,
2020); ``Utility workers prepare to sleep at work to keep the power
flowing,'' www.salon.com (March 20, 2020); ``How power companies are
keeping your lights on during the pandemic,'' www.latimes.com (March
19, 2020).
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EPA believes the current national emergency related to COVID-19 has
revealed a need for limited, temporary revisions to the quality-
assurance requirements in the part 75 regulations. As discussed above,
the regulations treat a missed quality-assurance test as equivalent to
the failure of a monitoring system to provide any data at all, an
approach that in ordinary circumstances appropriately provides
operators with a strong incentive to conduct required quality-assurance
and certification tests in a timely manner, just as they are provided
with a strong incentive to maintain high availability of their
monitoring equipment. However, the rationale for treating these two
different sorts of failures as equivalent is no longer compelling in
the circumstances of this declared national emergency related to COVID-
19 that makes it difficult or impossible for some, or many, plant
operators to conduct required quality-assurance tests on a timely basis
for reasons outside their control and where efforts to conduct the
tests may conflict with efforts to address the emergency and put plant
operators and other essential personnel at risk. Travel, plant access,
and other safety restrictions put in place to protect public health in
light of the COVID-19 outbreak are highly likely to interfere with
operators' ability to conduct some tests, both by limiting the
availability of outside contractor personnel and state regulatory
observers and by limiting plants' ability to restock depleted
calibration gas supplies. Under the existing part 75 regulations,
missing a test deadline could lead to an extended period for which an
affected unit could be required to report increasingly conservative
substitute data, with adverse cost consequences. Where the reason for
missing a test is caused by the COVID-19 outbreak, EPA does not believe
it is appropriate to impose this automatic consequence. The amendments
promulgated in this action will ensure that the regulations do not
inappropriately penalize plant operators.
The need to address the incentive features of the existing
regulations is urgent in light of the actions being taken to address
the current national emergency and the large number of units facing
decisions in the near term on whether to proceed with tests scheduled
for April and May. With each upcoming test, plant operators subject to
restrictions because of the emergency must decide how to balance the
potential regulatory consequences of delaying the test with the actions
being implemented to protect the health of key plant and other
personnel and public health under the emergency. The consequences to a
source of missing a quality-assurance test are small initially, but
grow rapidly as the period past the missed test deadline lengthens.
Given uncertainty about the duration of the emergency-related
restrictions, operators currently face uncertainty about when they
might next be able to reschedule a delayed test, which leads to
uncertainty regarding the magnitude of the automatic regulatory
penalties that they risk incurring by deferring each test. As noted
above, in April through June 2020, as many as 1,000 units will face
decisions on whether or not to defer scheduled annual or semi-annual
RATAs. EPA believes operators should have clear information now about
the consequences of decisions regarding plant testing so that they can
make the best immediate decisions about how to address the public
health emergency and not put their employees at risk because of
potential adverse regulatory consequences that can be avoided through a
temporary rule amendment.
The primary set of part 75 tests giving rise to the concerns that
EPA is addressing in this action comprises the quality-assurance tests
discussed above, because of the very large number of those tests that
under normal circumstances would be conducted in April and May 2020 and
whose timing is therefore very much affected by the current COVID-19
national emergency. However, certain other types of part 75 testing
requirements raise analogous concerns for smaller numbers of units, and
because of the similarity of the issues, this action addresses the
additional tests as well. First, initial certification of a monitoring
system under the part 75 regulations likewise requires a variety of
tests to be passed by specified deadlines before the monitoring system
can be used to report valid data. Some of the same tests may
[[Page 22367]]
also be required in instances where a monitoring system needs to be
recertified following an equipment change. The required certification
tests include RATAs for both gas concentration CEMS and stack gas flow
rate CEMS, linearity checks and calibration error tests for gas
concentration CEMS, and accuracy tests for fuel flowmeters.\19\ If
certification testing for a monitoring system is not successfully
completed by the applicable deadline, the unit must report substitute
data in place of the data obtained from that monitoring system until
all required tests have been passed.\20\ In these instances, substitute
data are generally based on the maximum potential values for the
monitoring system starting in the first operating hour after the
applicable test deadline. The regulations include provisions allowing a
unit to report ``conditionally valid'' data following completion of the
first required certification or recertification test until the timely
and successful completion of the last required test. However, if all
tests are not successfully completed by the applicable deadlines, the
data that were previously considered conditionally valid are
invalidated, and the unit must instead report substitute data for all
operating hours until all required tests have been successfully
completed.\21\ For any unit whose certification testing schedule calls
for testing during the current emergency situation, the considerations
over how to balance the regulatory consequences of deferring the test
with the public health emergency are the same as for an existing unit
facing a near-term decision on a required quality-assurance test.
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\19\ See Sec. 75.20(c) and (g).
\20\ See Sec. 75.4(j).
\21\ See Sec. 75.20(b)(3).
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Second, units using part 75 monitoring methodologies other than
CEMS-based methodologies may also be required to meet periodic fuel
analysis or emission rate testing requirements. For example, under
appendix D to part 75, a qualifying unit calculates reported hourly
SO2 mass emissions and heat input from its monitored hourly
fuel usage in combination with unit-specific data on fuel sulfur
content, density, and/or gross calorific value. In general, the data on
fuel characteristics must be regularly updated through laboratory
analyses of fuel samples. When fuel analyses are not updated in a
timely manner, as could happen if outside laboratories close in an
emergency, the unit must report substitute data that eventually reflect
default maximum values for each fuel type.
Other non-CEMS based methodologies under part 75 require periodic
NOX emission rate testing. Under appendix E to part 75, a
qualifying unit calculates reported hourly NOX mass
emissions from its monitored hourly fuel usage in combination with
unit-specific historical test data correlating the unit's hourly
NOX emission rate to the unit's hourly fuel usage. The
appendix E regulations require the unit-specific correlations to be
updated based on new stack testing at least every twenty calendar
quarters, and if updated appendix E tests are not completed by the
deadline, the unit must report substitute data based on the unit's
maximum potential NOX emission rate.\22\ Similarly, under
the low mass emissions (LME) methodology in Sec. 75.19, a qualifying
unit may calculate its NOX mass emissions using a fuel-and-
unit-specific NOX emission rate based on historical test
data instead of using the default emission rates published in the
regulations, and the fuel-and-unit-specific NOX emission
rate data must be updated based on new stack testing at least every
twenty calendar quarters.\23\ While the interval between required tests
is long, for any unit for which the end of the interval--and therefore
the unit's scheduled testing--falls in the emergency period, the
considerations over whether to perform or defer the required
NOX emission rate testing are again the same as for a unit
facing a near-term decision on a required quality-assurance test.
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\22\ See 40 CFR part 75, appendix E, sections 2.2 and 2.5.
\23\ See Sec. 75.19(c)(1)(iv)(D).
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Finally, EPA notes that since its initial promulgation, part 75 has
contained provisions at Sec. 75.66 allowing EPA to make exceptions to
individual regulatory requirements in appropriate circumstances. This
authority is broad but requires exceptions to be made on a case-by-case
basis: The designated representative for a unit (or group of units)
must submit a petition to EPA for an alternative to a given regulatory
requirement, describing the facts and the requested alternative, after
which EPA considers the petition and provides a written response
granting or denying the request.\24\ Importantly, Sec. 75.66 does not
authorize EPA to grant exceptions to a given requirement or set of
requirements for all affected units (or all affected units meeting
specified conditions) simultaneously, even on a temporary basis, and
for this reason the section is not well suited to addressing emergency
situations that cause a particular regulatory requirement to have
unintended consequences for a large number of affected units. Even if
EPA ultimately were to grant some or even most of the petitions
relating to the emergency, an owner or operator facing an immediate
decision on whether to defer a test in light of public health concerns
related to the COVID-19 emergency would be unable to predict that
outcome at the time when the immediate decision must be made.
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\24\ EPA's responses are posted at https://www.epa.gov/airmarkets/part-75-petition-responses.
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B. Description of Amendments
The amendments being finalized in this action are carefully
targeted to address the regulatory provisions discussed in section II.A
of this document while leaving other features of the regulations
unchanged. Specifically, the amendments allow sources to continue to
report monitored data as valid instead of requiring the sources to
report substitute data in instances where data from a monitoring system
would otherwise be considered invalid solely because of failure to
complete a required test by the applicable deadline and where the
failure to complete the test is attributable to travel, plant access,
and other safety restrictions implemented to address the COVID-19
national emergency. The amendments cover each of the types of testing
requirements described in section II.A of this document--quality-
assurance tests, certification and recertification tests, appendix D
fuel analyses, and appendix E and LME emission rate tests. Affected
units will continue to be required to report emissions data for every
operating hour of a control period, and no changes are made to any
existing emissions limitations. Sources are required to complete any
delayed tests as soon as practicable after relevant emergency-related
restrictions no longer apply. The emergency period for which a source
can report valid data under the amended provisions is limited to the
duration of the COVID-19 national emergency plus a grace period of 60
days to complete delayed tests, but no later than the date of
expiration of the amendments (i.e., 180 days from publication in the
Federal Register).
As discussed in section V.B of this document, the Office of
Management and Budget (OMB) has approved an emergency information
collection request (ICR) establishing certain new recordkeeping and
reporting provisions that will apply to any use of the amended
emissions data reporting requirements promulgated in this action.
Sources will be required to
[[Page 22368]]
document the reasons for delaying any required test and to submit
notifications to EPA when a test is delayed and when the delayed test
is later completed. (In the case of tests that recur more often than
quarterly, such as CEMS daily calibration error tests and certain
appendix D fuel analyses, sources may treat a series of recurring tests
as a single test for purposes of the required notifications.) Each
notification of a delayed test must identify the affected unit, the
test being delayed, the otherwise applicable deadline, and the
emergency-related reasons why the test could not be completed by the
deadline. Each notification of completion of a delayed test must
identify the affected unit, the completed test, the date as of which
emergency-related restrictions that formerly impaired testing for that
unit no longer applied, and the date of test completion. In addition,
both notifications must include certifications that the unit meets the
criteria for using the amended procedures. Notifications may not
contain Confidential Business Information (CBI) and must be submitted
by email to [email protected], generally within five business days
after the applicable test deadline or completion date. Notifications
may be submitted by the designated representative or an agent with
delegated authority to submit quality-assurance test data. EPA will
prepare summaries of the submitted notifications identifying the units,
the delayed tests and test deadlines, and the completed tests and
completion dates and will post the summaries on a publicly accessible
website.
In addition to the new recordkeeping and reporting requirements
described above, EPA notes that under the existing part 75 regulations,
reporting monitored data as valid following failure to complete a
required test will require sources to assign a different method of
determination code (MODC) to the data in an affected unit's data
acquisition and handling system (DAHS), and further notes that the
existing regulations at Sec. 75.53 require sources to keep their
monitoring plans up to date with respect to any change in a DAHS. In
addition, the existing compliance certification requirements at Sec.
75.64(c) require an affected unit's designated representative to
``indicate whether the monitoring data submitted were recorded in
accordance with the applicable requirements of this part . . .'' which
now include the provisions promulgated in these amendments. EPA also
notes that nothing in these amendments prevents a state from requiring
sources to record and/or report additional documentation demonstrating
that the reason for any failure to complete a required test by the
applicable deadline was in fact caused by restrictions implemented to
address COVID-19 national emergency conditions.
The amended provisions are located in new section 40 CFR 75.68
entitled ``Temporary modifications to otherwise applicable quality-
assurance requirements during the COVID-19 national emergency.'' The
introductory text of paragraph (a) provides that the provisions of the
new section apply during the defined emergency period notwithstanding
any other provisions of part 75. Paragraph (a)(1) defines the emergency
period for purposes of the new section as the period of the COVID-19
national emergency with an additional 60 days for completion of delayed
tests (but not beyond the expiration of the amendments), keying the
start and end dates of the national emergency to actions taken by the
President and Congress in accordance with the National Emergencies Act,
50 U.S.C. 1601-1651. The start date of the emergency is therefore March
13, 2020, the date on which the President declared the national
emergency related to the COVID-19 outbreak.\25\ Paragraph (a)(2)
identifies the quality-assurance tests, certification or
recertification tests, appendix D fuel analyses, and appendix E and LME
NOX emission rate tests with respect to which the temporary
procedures apply. Paragraph (a)(3) permits sources to report data from
monitoring systems as valid during emergency periods despite failure to
complete required quality-assurance tests by the applicable deadlines,
provided that (i) the data are otherwise valid; (ii) the failure to
complete the tests is attributable to travel, plant access, or other
safety restrictions implemented to address the COVID-19 national
emergency; and (iii) the applicable recordkeeping and reporting
requirements are met. Paragraph (a)(4) addresses failures to complete
required certification or recertification tests in the same manner,
except that the data may be reported as conditionally valid rather than
valid, pending successful completion of the delayed certification
tests. Paragraph (a)(5) addresses failures to complete required
appendix D fuel analyses or appendix E or LME emission rate tests in
the same manner and provides that the sources may continue to use the
results of the most recent previously approved analyses or tests to
determine reported emissions. Paragraph (a)(6) requires any delayed
tests to be completed as soon as practicable after the relevant
emergency-related restrictions are lifted but no later than 60 days
after the end of the COVID-19 national emergency (and no later than the
date of expiration of these amendments), requires reporting of
substitute data if the delayed tests are not completed by these new
deadlines, and provides that the completed tests are considered timely
for purposes of identifying the deadlines for the next periodically
scheduled tests. Paragraph (a)(7) sets out the new recordkeeping and
reporting requirements that apply to use of the amended procedures.
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\25\ See 85 FR 15337 (March 18, 2020).
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The amendments are being promulgated as a final action and are
effective immediately upon publication in the Federal Register. The
amendments will expire after 180 days. Paragraph (b) of new Sec. 75.68
provides the effective date and expiration date of the amendments.
C. Expected Impacts
The amendments finalized in this action do not suspend any existing
requirements for any affected unit to report emissions for any hour of
operation and do not alter any existing emissions limitations under any
program. EPA consequently has no reason to expect the rule's amendments
to the part 75 quality-assurance requirements to cause any change in
affected units' emissions behavior. The rule therefore will not result
in any harm to public health or the environment that might occur from
increased emissions. To the extent that the amendments facilitate plant
operators' efforts to comply with travel, plant access, and other
safety restrictions imposed to protect public health during the COVID-
19 emergency, the amendments will have a positive impact on public
health by assisting efforts to slow the spread of the disease.
The actual monitored emissions data that will be reported under the
amendments promulgated in this action will be the same data that would
have been reported if the required part 75 tests were successfully
completed by the applicable deadlines. There is of course a possibility
that if the tests had been completed on schedule at all units, the
tests would not have been passed at some units, leading to adjustments
to those units' monitoring systems, a further round of testing, and
improvements to the reported data. While the data reported in emergency
situations under the amendments will lack these improvements, failures
of
[[Page 22369]]
RATAs are rare,\26\ which EPA considers evidence that operators treat
the obligation to maintain their monitoring systems seriously, due at
least in part to the periodic RATA requirements. Thus, there is no
reason to expect the absence of the data improvements to cause a bias
toward understatement of emissions, and given the need to balance data
quality considerations with public health and other considerations, EPA
believes it is reasonable to treat the resulting data as adequate for
purposes of an emergency period.
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\26\ For example, none of the 1500 RATAs reported for the second
quarter of 2019 were failed.
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In the case of units that decide to defer quality-assurance tests
that in the absence of the amendments they would have performed as
scheduled, EPA generally does not expect a significant impact on the
units' quality-assurance costs because the primary effect on their
testing costs would simply be to delay the costs for some portion of
the COVID-19 emergency period.\27\ EPA notes that, because the
amendments are limited to circumstances where failure to complete a
quality-assurance test is attributable to the COVID-19 national
emergency, and there is no suspension of data substitution requirements
when data are missing or are invalid for a non-emergency-related
reason, there would be no diminishment of operators' existing
incentives to maintain their monitoring systems.
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\27\ This expectation applies with respect to delayed RATAs,
which typically account for the majority of quality-assurance and
certification testing costs, and to delayed quarterly tests that can
be rescheduled in the same quarter following the end of emergency-
related restrictions. With respect to daily tests or other quarterly
tests missed for reasons related to the national emergency, testing
on normal schedules generally would resume without any rescheduling
of tests missed because of the emergency.
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By allowing operators to report monitored data instead of
substitute data, the amendments will also cause reported emissions
levels, both at individual facilities and in aggregate, to track actual
monitored emissions levels more closely than would be the case if units
had to report the higher, intentionally conservative data required by
the data substitution provisions for extended periods of time. The
expected consequence of this impact on reported emissions levels is
that plant operators will need to surrender fewer emission allowances
to cover their reported emissions and will therefore incur lower total
costs for emissions allowances. EPA estimates that up to 1,000 units
may use the amended regulations to report actual monitored data instead
of substitute data for some portion of the current emergency period,
but has not attempted to estimate the magnitude of the impacts on
either reported emission levels or allowance costs.
III. Rulemaking Procedures and Findings of Good Cause
EPA is promulgating this rule as a final action without prior
notice or opportunity for public comment because the good cause
exception under APA section 553(b)(B), 5 U.S.C. 553(b)(B), applies
here. If APA section 553(b)(B) did not apply, this rule would be
subject to the rulemaking procedures in CAA section 307(d).\28\
However, CAA section 307(d) does not apply ``in the case of any rule or
circumstance referred to in [APA section 553(b)(B)]'' \29\--i.e., the
good cause exception noted above--making this rule subject to the
rulemaking procedures in APA section 553 instead, other than subsection
553(b).\30\ APA section 553(b)(B) allows an agency to promulgate a rule
without providing prior notice and opportunity for public comment
``when the agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefor in the rule issued) that
notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.''
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\28\ See CAA section 307(d)(1)(G), (T); 42 U.S.C. 7607(d)(1)(G),
(T). See also CAA section 307(d)(3); 42 U.S.C. 7607(d)(3) (requiring
publication of a proposed rule with an opportunity for public
comment).
\29\ See CAA section 307(d)(1); 42 U.S.C. 7607(d)(1).
\30\ APA section 553(b) generally requires notice-and-comment
rulemaking procedures unless, as here, an exception applies under
section 553(b)(A) or (B). 5 U.S.C. 553(b).
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EPA finds that there is good cause for promulgating this final rule
without providing prior notice and an opportunity for public comment
because providing such notice and opportunity for comment, with respect
to the amendments promulgated in this action, is impracticable and
contrary to the public interest for the reasons further explained in
this section. There is an urgent need for EPA to revise the part 75
regulations to adjust the near-term and cascading impacts on sources
not meeting certain regulatory requirements during national
emergencies, such that sources are better able to abide by the public
health restrictions put in place to address the current national
emergency concerning the COVID-19 outbreak. As noted above, EPA has
been contacted by plant owners who collectively operate over 300
affected units, as well as stack-testing companies and state air
agencies, regarding near-term problems in completing required part 75
quality-assurance tests because of travel and plant access restrictions
imposed to protect public health in light of the COVID-19 outbreak.\31\
Personnel who would not be on-site for normal plant operations are
often required to conduct these quality-assurance tests. In light of
the current health emergency, many plant operators have restricted
plant access to reduce the risk to plant essential personnel as well as
the general public. In addition, travel has been severely restricted.
Compliance by plant operators and others with these efforts to address
the COVID-19 emergency are in tension with the existing regulatory
provisions that automatically penalize plant operators for failing to
complete required tests even when completing the tests requires travel
or plant access that would otherwise be restricted because of the
emergency. It is a matter of urgency for EPA to address this issue now
so that plant operators can make informed decisions regarding plant
access and determine whether to perform or delay tests scheduled in
April and May 2020. If EPA were to delay action, the potential
consequences of failing to timely conduct quality assurance tests would
either lead to a weakening of steps taken to address the COVID-19
emergency or penalize plant operators for enforcing travel and plant
access restrictions. As explained in this document, EPA has determined
that targeted, narrow revisions to the regulations to give plant
operators additional flexibility regarding the timing of quality
assurance tests can address this urgent problem without adversely
impacting air quality or public health.
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\31\ See ``Stakeholder Communications Regarding the COVID-19
Emergency,'' available in the docket.
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EPA has determined that there is good cause to forgo a public
notice and comment process because such public process is
impracticable, since notice and comment rulemaking would impair the
agency's ability to timely address an urgent situation under our
current regulations that has the potential to threaten public health
and safety. In sum, the current regulations result in automatic
penalties if certain requirements are not met but meeting those
requirements could require sources to take actions contradictory to
restrictions in place to address the COVID-19 emergency. Specifically,
the flexibilities provided through this rule potentially impact over
1,000 units with upcoming test deadlines in April, May, and June of
this year. Providing public notice and comment is impracticable,
because plant operators must make decisions regarding whether to
conduct
[[Page 22370]]
tests in April and May 2020. Because of the limited amount of time
between the declaration of the COVID-19 national emergency and the
applicable testing deadlines, there was insufficient time to seek
comment on the rule.
Taking the additional time required to allow for submission of
comments and development of a response to comments is impracticable
because, in this time of emergency, it would delay finalization of
amendments needed to assure source operators that efforts to address
the COVID-19 national emergency will not result in automatic adverse
consequences for the many sources likely to be impacted. Although the
costs to sources of reporting substitute data may be small initially,
the costs grow substantially over time, and the operators need to make
decisions in the near-term on whether to defer testing while facing
considerable uncertainty as to when it will next be possible for them
to conduct the testing (and, therefore, how large the costs may
eventually become). It is therefore a matter of urgency to promulgate
these amendments to address the tension between the existing
regulations and travel and plant access restrictions imposed to address
the public health emergency and protect essential plant and other
personnel.\32\ EPA has concluded that an immediate response--
promulgating these final amendments--is needed to ensure that part 75
regulatory requirements do not impose unnecessary adverse consequences
on affected sources due to travel restrictions and other limitations on
movement and plant access in place to respond to the COVID-19 national
emergency. Issuance of the amendments is needed to assure operators now
that they will not, in fact, be penalized for deciding now to defer
testing when proceeding with tests as scheduled would not be in
accordance with such restrictions. As noted in section II.A of this
document, by approximately five weeks after a missed quality-assurance
test deadline, a baseload unit must report substitute data in all
operating hours based on its highest hourly data value from a lookback
period, and by approximately ten weeks after a missed test deadline,
such a unit must report its maximum potential values. Notice-and-
comment rulemakings (which in the case of this action, under CAA
section 307(d), would involve providing an opportunity for a public
hearing \33\ and a comment period extending at least 30 days following
the public hearing, and would also require time to evaluate and respond
to all significant comments received) frequently take much longer than
ten weeks.
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\32\ See supra note 18.
\33\ Adequate prior notice must be provided for any such
hearing.
---------------------------------------------------------------------------
EPA has also determined that there is good cause to forgo a public
notice and comment process for this rule because such public process is
contrary to the public interest. The delay associated with undertaking
ordinary notice and comment procedures would, in fact, harm the public
interest here. Such a delay would keep in place EPA regulations that
incentivize actions counter to the restrictions necessary to protect
public health and to address the COVID-19 emergency. Approximately
1,000 sources with upcoming test deadlines in April, May, and June of
this year are potentially impacted by the automatic provisions in the
part 75 monitoring regulations and must make personnel and other
decisions regarding operation of the sources before their respective
test deadlines, including decisions regarding access to perform
quality-assurance tests and certification tests. It is imperative that
EPA provide immediate assurance that adverse consequences (in the form
of impacts that flow from not meeting certain required testing
deadlines that affect allowance holding requirements for reasons not
anticipated when establishing the current requirements) will not flow
from measures taken to comply with directives to protect public health,
and to better ensure that the existing requirements would not result in
actions being taken during the national emergency that would run
counter to the efforts and restrictions in place to address the public
health in light of the COVID-19 outbreak.\34\ At the same time, the
amendments are carefully targeted to avoid collateral adverse impacts.
Specifically, the amendments stop the automatic penalties discussed
above in national emergency circumstances but not in non-national
emergency circumstances, they leave other monitoring-related
requirements and reporting requirements in place, and they do not alter
any emissions limitations. In addition, the regulatory revisions
promulgated in this document will expire in 180 days absent further
action by EPA.
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\34\ See supra note 18.
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Thus, EPA finds good cause under APA section 553(b)(B) to take this
final action without prior notice or opportunity for comment both
because providing notice and an opportunity for comment would be
impracticable and because it would be contrary to the public interest.
The amendments promulgated in this final rule will expire in 180
days. In deciding that the amendments should expire in 180 days, EPA
considered the importance of providing regulatory certainty to the
regulated community discussed above and the time-frame needed to
conduct a full notice-and-comment rulemaking. Given the current
uncertainty concerning the spread of COVID-19, EPA believes it is
reasonable to provide regulatory certainty to sources that the
amendments in this action will be in effect for at least 180 days. At
the same time, given the narrow scope of the amendments, some
stakeholders might challenge the reasonableness of keeping the
amendments in effect on a temporary basis for longer than 180 days on
the grounds that the Agency might have been able to make the temporary
amendments effective beyond 180 days through notice-and-comment
rulemaking within such a time period. For these reasons, EPA is
providing that the amendments will expire in 180 days.
EPA is also making this final rule effective immediately upon
publication in the Federal Register. As discussed in the first
paragraph of this section, if the good cause exception in APA section
553(b)(B) did not apply, this rule would be subject to the rulemaking
procedures in CAA section 307(d). Instead, because CAA section 307(d)
does not apply, the rule is subject to the rulemaking procedures in APA
section 553 other than subsection 553(b).\35\ APA section 553(d), which
therefore applies to this rule, generally requires that actions covered
by the section become effective not less than 30 days after publication
but also provides several exceptions.
---------------------------------------------------------------------------
\35\ See supra note 30.
---------------------------------------------------------------------------
Under APA section 553(d)(1), rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction.'' The purpose of
this provision is to ``give affected parties a reasonable time to
adjust their behavior before the final rule takes effect.'' \36\
However, when the agency grants or recognizes an exemption or relieves
a restriction, affected parties do not need a reasonable time to adjust
because the effect is not adverse. EPA has determined that this rule
grants or recognizes an exemption or relieves a restriction because the
nature of the rule change being approved is to allow
[[Page 22371]]
sources to report their actual monitored data values instead of being
required to report substitute data values--a change which is virtually
always advantageous to the source--in circumstances where the source
fails to complete a required test by the applicable deadline for
reasons caused by this COVID-19 national emergency.
---------------------------------------------------------------------------
\36\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996);
see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir.
1977) (quoting legislative history).
---------------------------------------------------------------------------
Additionally, APA section 553(d)(3) allows an effective date less
than 30 days after publication ``as otherwise provided by the agency
for good cause found and published with the rule.'' As noted above, the
purpose of the 30-day waiting period generally prescribed in section
553(d) is to give affected parties a reasonable time to adjust their
behavior before the final rule takes effect. Thus, in determining
whether good cause exists to waive the 30-day delay, an agency should
``balance the necessity for immediate implementation against principles
of fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' \37\ In the case of this rule, EPA has determined that
there is good cause for making this final rule effective immediately.
Regarding urgency, EPA finds the that the reasons supporting EPA's
finding of good cause under APA section 553(b)(B) for making this
action final without prior notice or opportunity for comment also
support an immediate effective date. Primarily, it is urgent for EPA to
revise the part 75 regulations to adjust the near-term and cascading
impacts of sources not meeting certain regulatory requirements during
national emergencies, such that sources are better able to abide with
restrictions in place to address the current national emergency
concerning the COVID-19 outbreak without facing unintended adverse
regulatory consequences. Further, this rule raises no material concerns
regarding the fairness of imposing new requirements without additional
notice because it does not create any new regulatory requirements such
that affected parties would need time to prepare before the rule takes
effect. Rather, this action simply allows sources to report actual
monitored data values instead of substitute data values in specified
circumstances, which is both advantageous to the sources and readily
accomplished using their existing monitoring equipment and reporting
software. For these reasons, EPA finds good cause exists for this
action to become effective on the date of publication in the Federal
Register.
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\37\ Gavrilovic, 551 F.2d at 1105.
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IV. Request for Comment
As explained above, EPA finds good cause to take this final action
without prior notice or opportunity for public comment and to make this
action effective immediately upon publication in the Federal Register.
However, EPA is also implementing this action on a temporary basis only
and is providing notice and an opportunity for comment on the content
of the temporary amendments. EPA requests comment on all aspects of
this rule. EPA is not reopening for comment any provisions of 40 CFR
part 75 other than the specific provisions added by this rule.
V. Statutory and Executive Order Reviews
Additional information about these statutes and executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to OMB for review because it may raise novel legal or policy issues.
Any changes made in response to OMB recommendations have been
documented in the docket.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not expected to be subject to Executive Order 13771
because it is not expected to result in more than de minimus costs on
net.
C. Paperwork Reduction Act
The information collection activities in this rule have been
submitted for approval to OMB under the PRA as an emergency information
collection request (ICR). You can find a copy of the ICR document in
the docket for this rule at regulations.gov (Docket No. EPA-HQ-OAR-
2020-0211), and it is briefly summarized here.
The collection of information is necessary in order to ensure that
the amended procedures that allow sources to report actual monitored
data instead of substitute data when a test cannot be completed by the
applicable deadline because of travel, plant access, and other safety
restrictions implemented to address the COVID-19 national emergency are
used only in accordance with the regulations. Sources are required to
maintain records demonstrating that the reasons they were unable to
complete delayed tests by the applicable deadlines were related to
travel, plant access, or other safety restrictions put in place to
address the COVID-19 national emergency. Sources are also required to
submit notifications to EPA following the delay or completion of a test
for which the amended procedures are used. The notification for a
delayed test includes information identifying the unit and test, the
applicable deadline, and the emergency-related reasons why the test
could not be completed by the deadline. The notification for a
completed test includes information identifying the unit and test, the
date when restrictions related to the COVID-19 national emergency
ceased to apply for that unit, and the test completion date. Each
notification must include a certification of accuracy in order to
ensure that the unit qualifies to use the amended procedures. To
provide transparency regarding the use of the amended procedures, EPA
will prepare summaries of the units and states, the delayed tests and
test deadlines, and the completed tests and completion dates and will
post the summaries on a publicly accessible website.
OMB has approved an emergency ICR that will be in effect for 180
days while these temporary amendments are in effect.
Respondents/affected entities: Approximately 4,300 units that
monitor and report emissions under 40 CFR part 75 to meet requirements
of the Acid Rain Program, a CSAPR trading program, or the
NOX SIP Call.
Respondents' obligation to respond: Required to obtain a benefit
(40 CFR 75.68).
Frequency of response: Occasional.
Total estimated burden: 3,000 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $273,300 (per year); includes $0 annualized
capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
D. Regulatory Flexibility Act
This action is not subject to the Regulatory Flexibility Act (RFA),
5 U.S.C. 601-612. The RFA applies only to rules subject to notice-and-
comment rulemaking requirements under the APA or any other statute.
This rule is not subject to notice-and-comment requirements because the
Agency has invoked the APA ``good cause'' exemption under 5 U.S.C.
553(b).
E. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the
[[Page 22372]]
Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. This action simply allows some sources to report actual
monitored data values instead of substitute data values for certain
required information in specified circumstances related to the COVID-19
national emergency.
F. 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. This
action simply allows some sources to report actual monitored data
values instead of substitute data values for certain required
information in specified circumstances related to the COVID-19 national
emergency.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes. This action simply
allows some sources to report actual monitored data values instead of
substitute data values for certain required information in specified
circumstances related to the COVID-19 national emergency. Thus,
Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk. This action simply allows some sources to report actual
monitored data values instead of substitute data values for certain
required information in specified circumstances related to the COVID-19
national emergency.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action simply allows some sources
to report actual monitored data values instead of substitute data
values for certain required information in specified circumstances
related to the COVID-19 national emergency.
J. National Technology Transfer Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action is not subject to Executive Order
12898 because it does not establish an environmental health or safety
standard. This action simply allows some sources to report actual
monitored data values instead of substitute data values for certain
required information in specified circumstances related to the COVID-19
national emergency.
L. Congressional Review Act
This action is subject to the Congressional Review Act (CRA), and
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. The CRA allows the issuing
agency to make a rule effective sooner than otherwise provided by the
CRA if the agency makes a good cause finding that notice-and-comment
rulemaking procedures are impracticable, unnecessary, or contrary to
the public interest (5 U.S.C. 808(2)). EPA has made a good cause
finding for this rule as discussed in section III of this document,
including the basis for that finding.
M. Determination Under CAA Section 307(b)
CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), indicates which United
States Courts of Appeals have venue for petitions of review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) if (i) the Agency action consists of
``nationally applicable regulations promulgated, or final action taken,
by the Administrator,'' or (ii) the action is locally or regionally
applicable, but ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' This
action amends existing regulations that apply to sources in 48 states
and the District of Columbia, and thus the action applies to sources in
the same jurisdictions. For this reason, the Administrator determines
that this final action is nationally applicable or, in the alternative,
is based on a determination of nationwide scope and effect for purposes
of section 307(b)(1). Thus, pursuant to section 307(b), any petitions
for review of this final action must be filed in the D.C. Circuit
within 60 days from the date this final action is published in the
Federal Register.
List of Subjects in 40 CFR Part 75
Environmental protection, Acid rain, Administrative practice and
procedure, Air pollution control, Carbon dioxide, Continuous emission
monitoring, Nitrogen oxides, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide.
Andrew Wheeler,
Administrator.
For the reasons stated in the preamble, part 75 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
PART 75--CONTINUOUS EMISSION MONITORING
0
1. The authority citation for part 75 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651K, and 7651K note.
Subpart G--Reporting Requirements
0
2. Add Sec. 75.68 to read as follows:
Sec. 75.68 Temporary modifications to otherwise applicable quality-
assurance requirements during the COVID-19 national emergency.
(a) Notwithstanding any other provision of this part, during and
following the emergency period defined in paragraph (a)(1) of this
section, the provisions of this section shall apply for purposes of
reporting the data that are required to be reported under this part and
completing the tests that are required to be completed under this part.
(1) For purposes of this section, the emergency period begins on
March 13, 2020, the date of the declaration of a
[[Page 22373]]
national emergency concerning the novel coronavirus disease (COVID-19)
outbreak by the President of the United States in accordance with 50
U.S.C. 1621, and concludes 60 days after the date of termination of the
national emergency by Congress or the President in accordance with 50
U.S.C. 1622, provided that the emergency period under this section
shall not extend past the expiration of the effectiveness of this
section.
(2) The provisions of this section shall apply with respect to the
following tests that are required to be completed under this part:
(i) Any quality-assurance test of a continuous emission monitoring
system required under appendix B to this part or Sec. 75.74(c).
(ii) Any quality-assurance test of a fuel flowmeter required under
section 2.1.6 of appendix D to this part or Sec. 75.74(c).
(iii) Any certification or recertification test of a continuous
emission monitoring system required under Sec. 75.20 or Sec.
75.70(d).
(iv) Any certification test of a fuel flowmeter required under
section 2.1.5 of appendix D to this part or Sec. 75.70(d).
(v) Any periodic analysis of fuel sulfur content, density, or gross
calorific value required under section 2.2 or 2.3 of appendix D to this
part, provided that there have been no changes in the fuel supply since
the most recent previous fuel analysis that would reasonably be
expected to cause a change in such fuel characteristics.
(vi) Any periodic retest of NOX emission rates required
under section 2.2 of appendix E to this part.
(vii) Any periodic retest of fuel-and-unit-specific NOX
emission rates required under Sec. 75.19(c)(4)(i)(D) that is required
only because of the passage of time and not because of changes in the
fuel supply, physical changes to the unit, changes in the manner of
unit operation, or changes to the emission controls.
(3) Following a failure to complete by the applicable deadline (or
by the end of any grace period following the deadline) any required
quality-assurance test or tests described in paragraph (a)(2)(i) or
(ii) of this section for any continuous emission monitoring system or
fuel flowmeter under this part, for any subsequent operating hour in
the emergency period prior to completion of the test or tests in
accordance with paragraph (a)(6)(i) of this section, the owner or
operator of an affected unit may continue to report data determined
using measurements obtained from the continuous emission monitoring
system or fuel flowmeter as valid, provided that the following
conditions are met:
(i) But for the failure to complete the quality-assurance test or
tests, the data obtained from the monitoring system would be considered
valid without the benefit of the provisions of this section;
(ii) The reason for failure to complete each such quality-assurance
test is travel, plant access, or other safety restrictions implemented
to address the COVID-19 national emergency; and
(iii) The owner or operator creates and maintains the records
specified in paragraph (a)(7)(i) of this section and the designated
representative submits the notifications required under paragraphs
(a)(7)(ii) and (iii) of this section.
(4) Following a failure to complete by the applicable deadline any
required certification or recertification test or tests described in
paragraph (a)(2)(iii) or (iv) of this section for any continuous
emission monitoring system or fuel flowmeter under this part, for any
subsequent operating hour in an emergency period prior to completion of
the test or tests in accordance with paragraph (a)(6)(i) of this
section, the owner or operator of an affected unit may continue to
report data determined using measurements obtained from the continuous
emission monitoring system or fuel flowmeter as conditionally valid
provided that the following conditions are met:
(i) But for the failure to complete the certification or
recertification test or tests, the data obtained from the monitoring
system would be considered conditionally valid without the benefit of
the provisions of this section;
(ii) The reason for failure to complete each such certification or
recertification test is travel, plant access, or other safety
restrictions implemented to address the COVID-19 national emergency;
and
(iii) The owner or operator creates and maintains the records
specified in paragraph (a)(7)(i) of this section and the designated
representative submits the notifications required under paragraphs
(a)(7)(ii) and (iii) of this section.
(5) Following a failure to complete by the applicable deadline any
required periodic analysis of fuel characteristics under appendix D to
this part described in paragraph (a)(2)(v) of this section or any
required periodic NOX emission rate testing under appendix E
to this part or Sec. 75.19 described in paragraph (a)(2)(vi) or (vii)
of this section, for any subsequent operating hour during the emergency
period prior to completion of the analysis or testing in accordance
with paragraph (a)(6)(i) of this section, the owner or operator of an
affected unit using the methodology in appendix D may continue to
report data determined using the fuel characteristics authorized for
use under the regulations following the most recent previous analysis
for that fuel, the owner or operator of an affected unit using the
methodology in appendix E may continue to report data determined using
the correlation curve developed from the most recent previous appendix
E NOX emission rate testing, and the owner or operator of an
affected unit using a fuel-and-unit-specific emission rate under the
LME methodology in Sec. 75.19(c)(1)(iv) may continue to report data
determined using the fuel-and-unit-specific emission rate developed
from the most recent previous LME NOX emission rate testing,
provided that the following conditions are met:
(i) But for the failure to complete the appendix D fuel analysis or
the appendix E or LME NOX emission rate testing, the data
obtained from the appendix D, appendix E, or LME monitoring methodology
would be considered valid without the benefit of the provisions of this
section;
(ii) The reason for failure to complete each such appendix D fuel
analysis or appendix E or LME NOX emission rate test is
travel, plant access, or other safety restrictions implemented to
address the COVID-19 national emergency; and
(iii) The owner or operator creates and maintains the records
specified in paragraph (a)(7)(i) of this section and the designated
representative submits the notifications required under paragraphs
(a)(7)(ii) and (iii) of this section.
(6)(i) Each quality-assurance test, certification or
recertification test, appendix D fuel analysis, and appendix E or LME
NOX emission rate test required under this part that was not
completed for a unit by the applicable deadline (or by the end of any
grace period following the deadline) must be completed as soon as
practicable following the end of travel, plant access, or other safety
restrictions implemented to address the COVID-19 national emergency
that affect that unit or the personnel or supplies required to complete
the analysis or testing for that unit, but in no event later than the
conclusion of the emergency period as defined in paragraph (a)(1) of
this section.
(ii) If a test or analysis for which a deadline is established
under paragraph (a)(6)(i) of this section is not completed by that
deadline, the test or analysis shall be completed as soon as
practicable thereafter, and for each
[[Page 22374]]
operating hour following that deadline until completion of the test or
analysis, the owner or operator shall report substitute data as if the
originally applicable deadline for the test or analysis were the
deadline under paragraph (a)(6)(i) of this section.
(iii) For purposes of determining the applicable deadline for the
next quality-assurance test, appendix D fuel analysis, or appendix E or
LME NOX emission rate test required under this part after a
delayed quality-assurance test, appendix D fuel analysis, or appendix E
or LME NOX emission rate test is completed or due to be
completed in accordance with paragraph (a)(6)(i) of this section, the
delayed test or analysis shall be considered to have been completed in
a timely manner as of the date on which such delayed test or analysis
was actually completed or, if earlier, the deadline for completion of
the delayed test or analysis under paragraph (a)(6)(i) of this section.
(7) The following recordkeeping and reporting requirements shall
apply to any use of the procedures under paragraphs (a)(3) through (6)
of this section:
(i) The owner or operator of an affected unit reporting data under
paragraph (a)(3), (4), or (5) of this section shall maintain records
documenting the reasons for failure to complete by the applicable
deadline each test or analysis referenced in such paragraph and
demonstrating that such failure is caused by travel, plant access, or
other safety restrictions implemented to address the COVID-19 national
emergency. The owner or operator shall also maintain records
documenting when any such travel, plant access, or other safety
restrictions impairing the ability to complete testing or analyses for
that unit ceased to apply. The records shall be maintained on site at
the source in a form suitable for inspection for a period of three
years from the date of each record.
(ii) By five business days after the applicable deadline for a test
or analysis referenced in paragraph (a)(3), (4), or (5) of this
section, the designated representative shall submit to the
Administrator, by email transmitted to [email protected], a
notification containing the following information:
(A) Facility ID (ORIS);
(B) Facility name;
(C) Monitoring location ID and/or unit ID;
(D) Identification of the quality-assurance test, certification or
recertification test, appendix D fuel analysis, or appendix E or LME
NOX emission rate test for which the notification is being
submitted;
(E) Identification of the applicable deadline for the test or
analysis under part 75 (not including any applicable grace period);
(F) A detailed explanation of the reason for failure to complete
the test or analysis by the applicable deadline under part 75,
including an explanation of how such failure is caused by travel, plant
access, or other safety restrictions implemented to address the COVID-
19 national emergency;
(G) The certification statements in Sec. 72.21(b)(1) and (2) of
this chapter.
(iii) By five business days after the completion in accordance with
paragraph (a)(6)(i) or (ii) of this section of a delayed test or
analysis referenced in paragraph (a)(3), (4), or (5) of this section,
the designated representative shall submit to the Administrator, by
email transmitted to [email protected], a notification containing
the following information:
(A) Facility ID (ORIS);
(B) Facility name;
(C) Monitoring location ID and/or unit ID;
(D) Identification of the quality-assurance test, certification or
recertification test, appendix D fuel analysis, or appendix E or LME
NOX emission rate test for which the notification is being
submitted;
(E) Identification of the date as of which travel, plant access, or
other safety restrictions previously impairing the ability to complete
the delayed test or analysis for the unit no longer applied;
(F) Identification of the date as of which the test or analysis was
completed in accordance with paragraph (a)(6)(i) or (ii) of this
section; and
(G) The certification statements in Sec. 72.21(b)(1) and (2) of
this chapter.
(iv) With respect to any test or analysis of a type that is
required to be performed more frequently than once per unit operating
quarter, a series of such required tests or analyses may be treated as
a single test or analysis for purposes of a notification submitted
under paragraph (a)(7)(ii) or (iii) of this section, with the
notification under paragraph (a)(7)(ii) to be submitted by five
business days after the first failure to perform such a test or
analysis by the applicable deadline and the notification under
paragraph (a)(7)(iii) to be submitted by five business days after the
first completion of such a test or analysis in accordance with
paragraph (a)(6)(i) or (ii) of this section.
(v) A notification submitted under paragraph (a)(7)(ii) or (iii) of
this section may include information for more than one required test
for a given unit or monitoring location, provided that each item of
information required to be included in such notification pursuant to
paragraphs (a)(7)(ii)(D) through (F) of this section or paragraphs
(a)(7)(iii)(D) through (F) of this section is provided separately for
each required test included in the notification.
(vi) No claim of confidentiality may be asserted with respect to
any information included in a notification submitted under paragraph
(a)(7)(ii) or (iii) of this section.
(vii) Notwithstanding the deadlines for submission of notifications
in paragraphs (a)(7)(ii), (iii), and (iv) of this section, no such
notification from any owner or operator shall be due less than 30 days
after the effective date of this section.
(b) The requirements of this section are effective from April 22,
2020 and, except for those in paragraphs (a)(6)(ii) and (iii) and
(a)(7)(i) of this section, shall cease to have effect October 19, 2020.
[FR Doc. 2020-08581 Filed 4-21-20; 8:45 am]
BILLING CODE 6560-50-P