[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Proposed Rules]
[Pages 19164-19172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07266]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[EPA-HQ-OAR-2013-0162; FRL-9790-5]
RIN 2060-AQ71
Amendments to Compliance Certification Content Requirements for
State and Federal Operating Permits Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to amend the compliance certification
requirements for state and federal operating permits programs that were
published in the Federal Register on June 27, 2003. In that action, one
sentence was removed from the rules in error. This action proposes to
restore the sentence to its original location in the rules.
DATES: Comments. Comments must be received on or before May 28, 2013.
Public Hearing. If anyone contacts the EPA requesting to speak at a
public hearing by April 19, 2013, the EPA will hold a public hearing.
Additional information about the hearing would be published in a
subsequent Federal Register notice.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0162, by one of the following methods:
Http://www.regulations.gov: Follow the online instructions
for submitting comments.
Email: [email protected]. Attention Docket ID No.
EPA-HQ-OAR-2013-0162.
Fax: (202) 566-9744.
Mail: Attention Docket ID No. EPA-HQ-OAR-2013-0162, Air
and Radiation Docket, Mailcode: 28221T, U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Please
include a total of two copies.
Hand Delivery: Air and Radiation Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004,
Attention Docket ID No. EPA-HQ-OAR-2013-0162. Such deliveries are only
accepted during the Docket Center's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2013-0162. The EPA's policy is that all comments received will be
included in the public docket without change and
[[Page 19165]]
may be made available online at www.regulations.gov, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional instructions on
submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air and Radiation Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Joanna Swanson, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-05),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-5282; fax number (919) 541-5509;
email address: [email protected].
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-01),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509;
email address: [email protected].
SUPPLEMENTARY INFORMATION: The information in this Supplementary
Information section of this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI
2. Tips for Preparing Your Comments
C. Where can I get a copy of this document and other related
information?
D. How can I find information about a possible public hearing?
II. Overview of the Proposed Rule
III. Background
A. The Title V Operating Permits Program
B. History of Changes to the Title V Compliance Certification
Requirements
1. The CAM Rulemaking and the Credible Evidence Rule
2. The 2001 and 2003 Rulemakings To Address a Court Remand
IV. Proposed Revisions to the Title V Program Rules
A. The Proposed Change and Rationale
B. Scope of Rulemaking and Request for Comment
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
Entities potentially affected by this proposed action would include
owners and operators of emission sources in all industry groups that
hold or apply for a title V operating permit. Other entities
potentially affected by this proposed action would include federal,
state, local, and tribal air pollution control agencies that administer
title V permit programs.
B. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI
Do not submit this information to the EPA through
www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR Part 2. Send or deliver information
identified as CBI only to the following address: Roberto Morales, OAQPS
Document Control Officer (C404-02), Environmental Protection Agency,
Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-
2013-0162.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
[[Page 19166]]
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket found on
www.regulations.gov, an electronic copy of this proposed rule will also
be available on the World Wide Web. Following signature by the EPA
Administrator, a copy of this proposed rule will be posted on the EPA's
title V Web page at http://www.epa.gov/ttn/oarpg/t5pfpr.html.
D. How can I find information about a possible public hearing?
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509;
email address: [email protected].
II. Overview of the Proposed Rule
This proposed rule would restore a sentence that was inadvertently
removed from the operating permits program rules found in 40 CFR parts
70 and 71 due to an editing error. This error occurred in a June 27,
2003, final rule (68 FR 38517) amending the compliance certification
requirements in 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). The
final rule removed the following sentence from the end of paragraph
(c)(5)(iii)(B) of both sections: ``If necessary, the owner or operator
also shall identify any other material information that must be
included in the certification to comply with section 113(c)(2) of the
Act, which prohibits knowingly making a false certification or omitting
material information.'' This proposed rule would restore this sentence
to its former position in both paragraphs.
This sentence was originally added to the operating permits rules
in the context of the 1997 Compliance Assurance Monitoring (CAM)
rulemaking, which clarified the use of CAM monitoring data in
compliance certifications. Specifically, this sentence was intended to
clarify that material information (i.e., compliance information beyond
required monitoring) known by the owner or operator must be identified
and addressed in compliance certifications consistent with section
113(c)(2) of the Act and the 1997 Credible Evidence rule. The 2003
rulemaking that erroneously removed the subject sentence was intended
to address a court remand concerning other aspects of the annual
compliance certification requirements of title V.
The EPA is requesting comments only on whether, on the sole basis
that the removal of the language in question was inadvertent, the
language in question should or should not be restored. However, the EPA
is not requesting comments on any other aspects of these provisions or
on any other provisions of the part 70 and 71 rules.
III. Background
This section traces the origin of the sentence that is addressed in
this proposal and its accidental removal from the regulations. Section
III.A gives background information on the operating permits program
under the Clean Air Act (CAA or ``the Act''), followed in section III.B
by background on the rulemaking that created the sentence in question
and the rulemaking in which the sentence was accidentally removed.
A. The Title V Operating Permits Program
Title V of the Act establishes an operating permits program for
major sources of air pollutants, as well as certain other sources (CAA
section 502(a)). Under title V, states were required to develop and
implement title V permitting programs in conformance with program
requirements promulgated by the EPA, which the EPA placed in 40 CFR
part 70. Under title V, the EPA also developed a federal operating
permits program to apply where states do not have approved programs,
where the EPA determines that a state is not adequately implementing a
program, in cases where a state has not satisfied an EPA objection, in
Indian country (absent an explicitly approved part 70 program), and in
certain areas of the Outer Continental Shelf. The federal program was
promulgated in 40 CFR part 71. Most states, certain local agencies and
one tribe have approved part 70 programs. The EPA administers the part
71 federal program in most areas of Indian Country (one tribe has been
delegated implementation authority) and in certain areas of the Outer
Continental Shelf (where there is no state permitting authority).
Once the operating permits programs are in place, title V requires
every major source to apply for and operate pursuant to an operating
permit (CAA sections 502(a) and 503), and requires that the permits
contain conditions that assure compliance with all of the sources'
applicable requirements under the Act (CAA section 504(a)). Among other
things, title V also requires that sources certify compliance with the
applicable requirements of their permits no less frequently than
annually (CAA section 503(b)(2)), provides authority to the EPA to
prescribe procedures for determining compliance and for monitoring and
analysis of pollutants regulated under the Act (CAA section 504(b)) and
requires each permit to ``set forth inspection, entry, monitoring,
compliance certification, and reporting requirements to assure
compliance with the permit terms and conditions'' (CAA section 504(c)).
B. History of Changes to the Title V Compliance Certification
Requirements
1. The CAM Rulemaking and the Credible Evidence Rule
The part 70 rule was originally promulgated on July 21, 1992 (57 FR
32250), and the part 71 rule on July 1, 1996 (61 FR 34202). Among other
requirements, these rules required operating permits to include
requirements for sources to submit annual compliance certifications,\1\
consistent with CAA sections 503(b)(2), 504(c) and 114(a)(3).
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\1\ The compliance certification requirement are found in 40 CFR
70.6(c)(5) and 71.6(c)(5).
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The requirement to identify ``any other material information * *
*,'' which is the sentence the EPA is proposing to restore in this
action, was originally added to the title V compliance certification
requirements of parts 70 and 71 in the context of a CAM rulemaking on
October 22, 1997 (62 FR 54899). The CAM rule (located at 40 CFR part
64) is authorized by CAA section 114(a), which requires the EPA to
promulgate regulations concerning enhanced monitoring and compliance
certification. The CAM rule is an applicable requirement of the Act
that imposes a methodology to create monitoring and/or recordkeeping to
provide a reasonable assurance of compliance with applicable
requirements. Section 114(a)(3) of the Act specifies certain
requirements for compliance certifications that are relevant to the CAM
rule and to title V. A goal of the CAM rule is to establish additional
monitoring requirements so that units subject to part 64 can use the
CAM monitoring data to address title V compliance certification
requirements. At the time that the CAM rule was promulgated, in order
to clarify that the EPA always intended for the CAM provisions to
operate within the title V compliance certification process, the
compliance certification provisions in 40 CFR 70.6(c)(5)(iii) and
71.6(c)(5)(iii) were also amended to reflect the
[[Page 19167]]
requirements of compliance certification for those units subject to
part 64 (62 FR 54937). In the CAM rulemaking, the EPA explained the
revisions of the part 70 and 71 compliance certification requirements
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as follows:
To tailor compliance certification to the monitoring imposed by
part 64, EPA has revised Sec. 70.6(c)(5)(iii) (and Sec.
71.6(c)(5)(iii)) so that a compliance certification includes the
following elements.
First, the permit conditions being certified must be
identified. Second, the method(s) and other information used to
determine compliance status of each term and condition must be
identified. These method(s) will have to include at a minimum any
testing and monitoring methods identified in Sec. 70.6(a)(3) that
were conducted during the relevant time period. In addition, if the
owner or operator knows of other material information (i.e.,
information beyond required monitoring that has been specifically
assessed in relation to how the information potentially affects
compliance status), that information must be identified and
addressed in the compliance certification. This requirement merely
emphasizes the general prohibition in section 113(c)(2) of the Act
on knowingly making a false certification or omitting material
information and the general criminal section on submitting false
information to the government codified at 18 USC 1001. The revised
part 70 provision does not impose a duty on the owner or operator to
assess every possible piece of information that may have some
undetermined bearing on compliance * * *
62 FR 54936.
Thus, after the 1997 CAM rulemaking, the compliance certification
provisions that are pertinent to this proposal, 40 CFR
70.6(c)(5)(iii)(B) and (C) and 71.6(c)(5)(iii)(B) and (C), stated that
a part 70 or 71 source's compliance certifications must include, among
other items, the following information:
(B) The identification of the method(s) or other means used by
the owner or operator for determining the compliance status with
each term and condition during the certification period, and whether
such methods or other means provide continuous or intermittent data.
Such methods and other means shall include, at a minimum, the
methods and means required under paragraph (a)(3) of this section.
If necessary, the owner or operator also shall identify any other
material information that must be included in the certification to
comply with section 113(c)(2) of the Act, which prohibits knowingly
making a false certification or omitting material information;
(C) The status of compliance with the terms and conditions of
the permit for the period covered by the certification, based on the
method or means designated in paragraph (c)(5)(iii)(B) of this
section. The certification shall identify each deviation and take it
into account in the compliance certification. The certification
shall also identify as possible exceptions to compliance any periods
during which compliance is required and in which an excursion or
exceedance as defined under part 64 of this chapter occurred; and
62 FR 54947 (emphasis added to denote the sentence that is at issue in
this action).2 3
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\2\ The language in 40 CFR 70.6 and 71.6 was identical except
that the final sentence that appears above in the text of paragraph
(c)(5)(iii)(C) was not included in 40 CFR 71.6. This difference in
language was maintained throughout the revisions discussed in this
preamble, and remains the same in the current regulations.
\3\ The compliance certification requirements apply to all part
70 and 71 sources, not just part 64 (CAM) sources.
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Another rule, the Credible Evidence rule, was promulgated earlier
in 1997 (62 FR 8314, February 24, 1997). The Credible Evidence
rulemaking clarified that non-reference test data can be used in
enforcement actions, and removed any potential ambiguity regarding use
of such data for compliance certifications under section 114 and title
V of the Act. That rulemaking was based on the EPA's understanding that
Congress gave the EPA clear statutory authority to use any available
information--not just data from reference tests or other federally
promulgated or approved compliance methods--to prove CAA violations (62
FR 8314). The Credible Evidence rule revised 40 CFR parts 51, 52, 60
and 61 to make clear that ``any credible evidence'' can be used for
this purpose by the EPA, states and citizens, but made no such
revisions to part 70 or 71, in part because the CAM rule that was under
development was expected to concurrently modify the existing part 70
requirements to provide additional detail as to what information
sources must consider when certifying compliance (62 FR 8319).\4\
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\4\ In explaining why the Credible Evidence rulemaking made no
changes to 40 CFR part 70 or 71, the EPA also stated that the final
Credible Evidence rule ``merely eliminates any potential ambiguity
or conflict between Parts 51, 52, 60, and 61 and Part 70 regarding
the ability of sources to use non-reference test data in compliance
certifications. Consistent with the congressional intent reflected
in Title V and section 114(a)(3), Part 70 already contemplates use
of non-reference test data in compliance certifications'' (62 FR
8319).
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Although the scope of and authority for the Credible Evidence and
CAM rules differ, there are complementary aspects to these rules (62 FR
54906). The 1997 CAM rulemaking discussed the relationship between the
CAM rule and the Credible Evidence rule. In addressing comments on this
relationship, the EPA stated the following in the 1997 CAM rulemaking:
First, these commenters suggested that compliance with indicator
ranges under part 64 should act as a shield to enforcement actions.
The Agency disagrees. Complete compliance with an approved part 64
monitoring plan does not shield a source from enforcement actions
for violations of applicable requirements of the Act if other
credible evidence proves violations of applicable emission
limitations or standards. The Agency expects that a unit that is
operating within appropriately established indicator ranges as part
of approved monitoring will, in fact, be in compliance with its
applicable limits. Part 64 does not prohibit the Agency, however,
from undertaking enforcement where appropriate (such as cases where
the part 64 indicator ranges may have been set improperly and other
data such as information collected during an inspection provides
clear evidence that enforcement is warranted).
* * * * *
Finally, it has been suggested during the part 64 and credible
evidence rulemakings that a Title V permit may be written to limit
the types of evidence used to prove violations of emissions
standards. As mentioned in the [Credible Evidence rulemaking], even
if a Title V permit specifies that certain monitoring, CAM or other
monitoring, be performed and that this monitoring is the sole or
exclusive means of establishing compliance or non-compliance, EPA
views such provisions as null and void. Such an attempt to eliminate
the possible use of credible evidence other than the monitoring
specified in a Title V permit is antithetical to the credible
evidence rule and to section 113(e)(1). If such a provision is
nonetheless included in a permit, the permit should be vetoed to
avoid any ambiguity. If the provision is not vetoed, the provision
is without meaning, as it is ultra vires, that is, beyond the
authority of the permit writer to limit what evidence may be used to
prove violations, just as if a permit writer were to attempt to
write in a provision that a source may not be assessed a penalty of
$25,000 per day of violation for each violation. Evidence that is
permitted by statute to be used for enforcement purposes, fines that
may be levied, and any other statutory provisions, may not be
altered by a permit.
62 FR 54907.
This discussion provides a clear statement by the EPA regarding its
position on credible evidence and title V permits. The EPA has not
reversed or weakened this position in subsequent actions.
2. The 2001 and 2003 Rulemakings To Address a Court Remand
On March 1, 2001, to respond to an October 29, 1999, remand from
the United States Court of Appeals for the District of Columbia Circuit
in Natural Resources Defense Council v. EPA, 194 F.3d 130 (D.C. Cir.
1999), the EPA published a direct final rule (66 FR 12872) and a
parallel proposal (66 FR 12916) requiring title V compliance
certifications to identify whether compliance during the period was
continuous or intermittent as specified in CAA section 114(a)(3) per
the 1990 CAA Amendments. Accordingly, this language was to be added to
paragraph
[[Page 19168]]
(c)(5)(iii)(C) of both 40 CFR 70.6 and 71.6. The preamble discussion of
this change stated the following:
In response to the court's remand, we have added text to
sections, Sec. Sec. 70.6(c)(5)(iii)([C]) and 71.6(c)(5)(iii)([C]),
to require that the responsible official for the affected facility
include in the annual (or more frequent) compliance certification
whether compliance during the period was continuous or intermittent.
Specifically, the revised text, including the introductory language
for both sections reads: ``Permits shall include each of the
following * * *: A requirement that the compliance certification
include all of the following * * *: The status of compliance with
the terms and conditions of the permit for the period covered by the
certification, including whether compliance during the period was
continuous or intermittent. The certification shall be based on the
method or means designated in paragraph (c)(5)(iii)(B) of this
section.'' The italicized text indicates the revisions made in
response to the Court decision. Other text within both of these
sections remains as promulgated in 1997. Under this revised
language, the responsible official must include in the compliance
certification a statement as to whether compliance during the period
was continuous or intermittent. We believe these revisions respond
directly and adequately to the Court's decision to remand the
compliance certification requirements to us and are consistent with
the requirements of the Act.
66 FR 12874 (direct final rule); 66 FR 12918 (parallel proposed
rule).\5\
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\5\ There are a number of errors in this paragraph of the
Federal Register as it appeared in the preamble text in both the
direct final and parallel proposed rules. The first sentence of the
preamble text in both the direct final and parallel proposed rules
misidentified 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) as
the paragraphs in which text was being added. However, the revised
regulatory text actually addressed paragraph (c)(5)(iii)(C) of the
two rules, and the revised regulatory text was clearly placed in the
paragraph (C) in the rule language section of the notices. In
addition, the clause ``including whether compliance during the
period was continuous or intermittent'' that is located midway
through the paragraph should have been italicized to denote the text
that was proposed to be added in response to the court decision, but
no text was italicized.
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The revised regulatory language in the 2001 direct final rulemaking
for the part 70 program reads as follows:
Sec. 70.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(C) The status of compliance with the terms and conditions of
the permit for the period covered by the certification, including
whether compliance during the period was continuous or intermittent.
The certification shall be based on the method or means designated
in paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is
required and in which an excursion or exceedance as defined under
part 64 of this chapter occurred; and
* * * * *
66 FR 12876.
The revised regulatory language in the 2001 direct final rulemaking
for the part 71 program reads as follows:
Sec. 71.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(C) The status of compliance with the terms and conditions of
the permit for the period covered by the certification, including
whether compliance during the period was continuous or intermittent.
The certification shall be based on the method or means designated
in paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification; and
* * * * *
66 FR 12876.
During the period provided for public comment on the 2001 direct
final rule and parallel proposal, the EPA received significant
comments.\6\ Accordingly, the EPA withdrew the direct final rule,
considered the comments that were received and, based on consideration
of those comments, published a final rule on June 27, 2003 (68 FR
38518). In the final rule, the EPA finalized paragraph (c)(5)(iii)(C)
of both 40 CFR 70.6 and 71.6 as proposed. In addition, in response to
comments, the EPA revised paragraph (c)(5)(iii)(B) in both rules to
remove from the first sentence the reference to whether the methods or
other means used by the source to determine compliance ``provide
continuous or intermittent data.'' The preamble stated the following:
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\6\ These comments are available in Docket No. EPA-HQ-OAR-2002-
0062, items EPA-HQ-OAR-2002-0062-0002 through -0006.
In response to the comments, we have deleted the second clause
after the comma in the first sentence from Sec. Sec.
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the
requirement that the responsible official for the affected facility
identify in the annual (or more frequent) compliance certification
whether the methods provide continuous or intermittent data. * * *
Other text within Sec. Sec. 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B),
70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains as proposed in
March 2001. The language in this final rule requires responsible
officials to identify in the compliance certification whether
compliance during the covered period was continuous or intermittent,
but responsible officials do not need to state whether the methods
used for determining compliance provide continuous or intermittent
data. We believe these revisions respond directly and adequately to
the Court's decision to remand the compliance certification
requirements to us and are consistent with the requirements of the
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Act.
68 FR 38521.
However, in addition to the change described above, the actual
revisions as set out in the regulatory language section in the 2003
final rule also deleted the last sentence of paragraph (c)(5)(iii)(B)
in both the part 70 and 71 rules, despite the fact that the preamble
stated that no other changes were being made. Id. The final regulatory
language for 40 CFR 70.6 and 71.6 is shown below:
Sec. 70.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by
the owner or operator for determining the compliance status with
each term and condition during the certification period. Such
methods and other means shall include, at a minimum, the methods and
means required under paragraph (a)(3) of this section;
(C) The status of compliance with the terms and conditions of
the permit for the period covered by the certification, including
whether compliance during the period was continuous or intermittent.
The certification shall be based on the method or means designated
in paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is
required and in which an excursion or exceedance as defined under
part 64 of this chapter occurred; and
* * * * *
Sec. 71.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by
the owner or operator for determining the compliance status with
each term and condition during the certification period. Such
methods and other means shall include, at a minimum, the methods and
means required under paragraph (a)(3) of this section;
(C) The status of compliance with the terms and conditions of
the permit for the period covered by the certification, including
whether compliance during the period was continuous or intermittent.
The certification shall be based on the method or means designated
in paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification; and
* * * * *
68 FR 38523.
[[Page 19169]]
A comparison of the version of paragraphs 40 CFR 70.6(c)(5)(iii)(B)
and 71.6(c)(5)(iii)(B) promulgated in 2003 with the version promulgated
in the 1997 CAM rule, as described in section III.B.1 above, shows that
the last sentence of those paragraphs--which stated ``If necessary, the
owner or operator also shall identify any other material information
that must be included in the certification to comply with section
113(c)(2) of the Act, which prohibits knowingly making a false
certification or omitting material information.''--was deleted, despite
the fact that no mention of this change was made in either the 2001
direct final and parallel proposed rulemaking or the 2003 final
rulemaking. The accidental deletion of that last sentence in 40 CFR
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) is the error that the EPA
seeks to correct with this proposed action.
IV. Proposed Revisions to the Title V Program Rules
A. The Proposed Change and Rationale
This proposed rule would reinstate the inadvertently removed
sentence, which, consistent with the Credible Evidence rule, directs
owners and operators of sources to ``identify any other material
information that must be included in the certification to comply with
section 113(c)(2) of the Act, which prohibits knowingly making a false
certification or omitting material information,'' in its original place
before the semicolon at the end of 40 CFR 70.6(c)(5)(iii)(B) and
71.6(c)(5)(iii)(B). No other changes are proposed, and the other
regulatory text within these paragraphs would remain as finalized on
June 27, 2003. Thus, this proposed rule only seeks to correct what the
EPA believes was demonstrably an error in the 2003 final rulemaking
discussed in the previous section.
As illustrated in the previous section, the substance of the
preambles and rule text from the 2001 and 2003 rulemakings make it
clear that the EPA did not intend to remove the missing sentence from
40 CFR 70.6(c)(5)(iii)(B) or 71.6(c)(5)(iii)(B). The EPA did not
discuss or propose any revisions to these paragraphs in the 2001 direct
final rulemaking or parallel proposal.\7\ Similarly, while the EPA
revised the text of 40 CFR 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) as
part of the 2003 final amendments, it did not discuss any intent to
remove this sentence. To the contrary, the EPA stated clearly that
``[o]ther text within Sec. Sec. 70.6(c)(5)(iii)(B),
71.6(c)(5)(iii)(B), 70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains
as proposed in March 2001'' (68 FR 38521). The EPA did not propose to
remove the deleted sentence from paragraph (c)(5)(iii)(B) of 40 CFR
70.6 and 71.6 or to make any other changes to those paragraphs in that
March 2001 rulemaking. Moreover, the EPA's response to comments on the
2001 proposed amendments reiterated the sentence's requirement that
``responsible officials must identify in [their title V compliance
certifications] other material information where failure to do so would
constitute a false certification of compliance.'' \8\
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\7\ As discussed previously, while the 2001 preamble discussion
of the proposed revisions at 66 FR 12918 mistakenly referred to
changes to paragraph (c)(5)(iii)(B) of 40 CFR 70.6 and 71.6, the
proposed amendments in that action addressed only 40 CFR
70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C). The proposed revisions to
the regulatory language correctly addressed 40 CFR
70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C).
\8\ Responses to public comments prepared for the June 27, 2003
Final Rule, section 2.3, page 11, EPA Docket No. EPA-HQ-OAR-2002-
0062-0008, June 2003.
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Despite the accidental removal of the sentence in question on June
27, 2003, the EPA's actions since that time have remained consistent
with the direction provided in the accidentally removed sentence, and
with the Credible Evidence rule in general. For example, the part 71
federal operating permits program administered by the EPA includes a
form for sources to use for their annual compliance certifications, and
the instructions for completing the form state the following:
Compliance Status: For each permit requirement and its
associated compliance methods, indicate whether there was
intermittent or continuous compliance (check one) during the
reporting period. You should consider all available information or
knowledge that you have when evaluating this, including compliance
methods required by the permit and ``credible evidence'' (e.g., non-
reference test methods and information ``readily available'' to
you). You are always free to include written explanations and other
information to clarify your conclusion regarding compliance status
\9\
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\9\ Annual Compliance Certification (A-COMP), EPA Form 5900-04,
at page 4 (emphasis added), accessed from http://www.epa.gov/airquality/permits/p71forms.html on September 25, 2012.
Language similar to this was originally included in the
instructions for the compliance certification form that the EPA issued
shortly after the credible evidence sentence (the sentence we are
restoring) was added to parts 70 and 71 as part of the promulgation of
the CAM rule in 1997. After the credible evidence language was
inadvertently deleted from the part 71 rule in 2003, the EPA revised
the compliance certification form and associated instructions in 2004
to reflect the requirement for sources to certify whether compliance
was continuous or intermittent, but the EPA did not revise the
instruction for sources to consider credible evidence when determining
compliance status. In addition, the EPA Web site where the part 71
forms and instructions are located states that ``[o]n February 22,
2004, we revised the Annual Compliance Certification form and the
Instruction Manual to reflect policy decisions concerning monitoring
and the data used for compliance certifications.'' \10\ The retention
of the instruction to consider credible evidence in the Annual
Compliance Certification form clearly indicates that the EPA continues
to believe that the title V rules should be implemented as if the
removed sentence is still applicable. Note also that the EPA has made
revisions to the part 71 forms a number of times since 2003, so it has
had ample opportunity to change this language if its policy had
changed; however, the EPA has made no such changes.\11\
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\10\ http://www.epa.gov/airquality/permits/p71forms.html
accessed on September 25, 2012.
\11\ http://www.epa.gov/airquality/permits/p71forms.html
accessed on September 25, 2012.
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Title V permits issued by EPA Regional Offices since 2003 also
provide evidence of the EPA's ongoing practice of requiring sources to
use credible evidence in compliance certifications. A review of a
sample of recent part 71 permits revealed that they include language
similar to the language in the removed sentence, which requires the
annual compliance certification to include ``any other material
information that must be included in the certification to comply with
section 113(c)(2) of the Act, which prohibits knowingly making a false
certification or omitting material information.'' These permits include
a permit issued by Region II in 2011, two permits issued by Region VIII
in 2010 and 2011, and a permit issued by Region V in 2012.\12\
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\12\ Region II part 71 permit issued to Turning Stone Casino
Resort in Verona, New York, http://www.epa.gov/region02/air/permit/trsc07052011.pdf. Region VIII part 71 permits issued to (1) Samson
Resources Company, http://www.epa.gov/region8/air/permitting/Samson-HowardSWD_Initial_V-SU-0051-10.00.pdf; and (2) Public Service
Company of Colorado, http://www.epa.gov/region8/air/permitting/PSCo-TiffanyCS-FinalRenewal-2-Permit-V-SU-00023-2010.00.pdf. Region V
part 71 permit issued for operations at the Treasure Island Resort &
Casino in Red Wing, Minnesota. http://yosemite.epa.gov/r5/r5ard.nsf/
f5dbe2e3ef9dc9c1862570430068f396/10cd79ad1a4c177386257ad0004d7bc3/
$FILE/V-PI-2704900084-2012-10%20-%20Final.pdf. These Web sites were
accessed on December 19, 2012.
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Similarly, EPA guidance to title V rule writers on an EPA Region
III Web site concerning compliance and enforcement illustrates the
EPA's commitment to the use of credible
[[Page 19170]]
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evidence. That Web site includes the following guidance:
Title V permit conditions cannot limit the types of data or
information (i.e., credible evidence) that may be used to prove a
violation of any applicable requirement. Title V permits should
contain language clarifying that any credible evidence may be used
in determining a source's compliance status (or alternatively, that
nothing in the permit precludes the use of credible evidence in
determining compliance or noncompliance with the terms of the
permit). Such language gives fair notice to the source and the
public, and prevents the source from claiming that they weren't on
notice that other credible evidence could be used to demonstrate a
violation or compliance. Such language can most easily be added to
Title V permits by modifying the ``boilerplate'' provisions (i.e.,
general permit conditions) as in the following example * * *.\13\
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\13\ http://www.epa.gov/reg3artd/permitting/t5_compl_enf.htm.
The Web site states that this page was last updated on February 11,
2011.
As illustrated by these examples, following the mistaken removal of
the sentence on June 27, 2003, the EPA has clearly articulated a
position consistent with the Credible Evidence rule under all
circumstances, including the annual compliance certification. In light
of the EPA's continued, consistent commitment to the use of credible
evidence in compliance certifications and other title V contexts, the
EPA has not previously devoted its limited resources to correcting the
inadvertent deletion in the regulatory text through a formal
rulemaking. Nonetheless, the EPA's Office of Inspector General (OIG)
has indicated that the title V rules should be amended to restore the
credible evidence language to the regulatory requirements in order to
improve the content of annual compliance certifications.\14\ In
concurrence with the OIG recommendation, the EPA is now taking this
action to restore the language currently missing in the part 70 and 71
rules.
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\14\ EPA Office of Inspector General, Substantial Changes Needed
in Implementation and Oversight of Title V Permits If Program Goals
Are To Be Fully Realized, Report No. 2005-P-00010, pp 31-32 and p
37, Recommendation 2-2, March 9, 2005. http://www.epa.gov/oig/reports/2005/20050309-2005-P-00010.pdf
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In any case, the restored language reflects the Act's general
prohibition on knowingly making a false certification or omitting
material information, independent of any EPA policy or previous
rulemaking actions. As modified in the 1990 CAA Amendments, section
113(c)(2) of the Act states that any person who knowingly ``makes any
false material statement, representation, or certification in, or omits
material information from, * * * any notice, application, record,
report, plan, or other document required pursuant to this Act''
(emphasis added) is subject to fine or imprisonment, upon conviction.
The EPA believes that it is important for sources to be on notice and
to understand the requirement to consider as part of their compliance
status any compliance information determined by methods other than
those identified in the permit. Moreover, for the sake of clarity, the
EPA believes that this general duty should be explicit in the part 70
and 71 compliance certification requirements.
B. Scope of Rulemaking and Request for Comment
The purpose of this rulemaking is to restore language inadvertently
deleted from the title V regulations, 40 CFR parts 70 and 71.\15\ Given
the passage of time, the EPA is proposing to make this change through a
proposed rule and providing an opportunity for public input.
Accordingly, the EPA is requesting comments only on whether, on the
sole basis that the removal of the language in question was
inadvertent, the language in question should or should not be restored.
However, the EPA is not requesting comments on any other aspects of
these provisions or on any other provisions of the part 70 and 71
rules. If comments are submitted outside of this scope, the EPA will
not take them into consideration when finalizing this rule.
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\15\ Section 70.4(i) provides that states with an approved part
70 program may need to revise their programs when the relevant
federal statutes or regulations are modified or supplemented. Given
that the relevant federal statute concerning representations or
statements made in compliance certifications (CAA section 113(c)(2))
applies regardless of the specific language in 40 CFR
70.6(c)(5)(iii)(B), the EPA is proposing that states will not need
to submit part 70 program revisions in response to this rulemaking,
except where a state program interferes with the implementation of
the sentence the EPA proposes to restore. The EPA is also proposing
that permit reopenings will not be needed under 40 CFR 70.7(f)(1) or
71.7(f)(1) in response to this rulemaking, except where a permit
contains language that interferes with the implementation of the
sentence the EPA proposes to restore. Notwithstanding the previous
statements in this footnote, the EPA may require individual states
to revise their programs or reopen permits where the EPA believes
such actions would be necessary to ensure the appropriate
implementation of the program or its permits.
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V. Statutory and Executive Order Reviews
This proposed rule would implement a technical correction to the
CFR, adding a sentence that was inadvertently removed in a prior
rulemaking; it would not otherwise impose or amend any requirements.
The analysis below is consistent with the limited nature of this
rulemaking.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The EPA is simply correcting the CFR to reinstate a sentence that was
inadvertently removed. However, the Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations at 40 CFR parts 70 and 71 under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
and has assigned OMB control numbers 2060-0243 and 2060-0336,
respectively. The OMB control numbers for the EPA's regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations
and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed action on
small entities, small entity is defined as: (1) A small business as
defined in the U.S. Small Business Administration size standards at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. As
explained above, this
[[Page 19171]]
proposed rule would merely restore a sentence removed from the rules in
error and, therefore, does not impose any new requirements on any
entities, either large or small. The EPA continues to be interested in
the potential impacts of the proposed rule on small entities and
welcomes comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This proposed rule contains no federal mandates under the
provisions of title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or
the private sector. The action imposes no enforceable duty on any
state, local or tribal governments or the private sector; it simply
restores a sentence removed from the rules because of erroneous
amendatory language contained in the June 27, 2003, amendments.
Therefore, this action is not subject to the requirements of sections
202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The sentence
restored in this action was removed in error and, therefore, it does
not impose new regulatory requirements.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. As explained previously, this
proposed rule would merely restore a sentence removed from the rules in
error. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between the EPA and state and local
governments, the EPA specifically solicits comment on this proposed
action from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). As explained
previously, this proposed rule would merely restore a sentence removed
from the rules in error. Thus, Executive Order 13175 does not apply to
this action.
The EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs the EPA to
provide Congress, through the OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, the EPA did not consider the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. As explained previously, this proposed rule would merely
restore a sentence removed from the rules in error.
List of Subjects
40 CFR Part 70
Environmental protection, administrative practice and procedure,
air pollution control, intergovernmental relations, reporting and
recordkeeping requirements.
40 CFR Part 71
Environmental protection, administrative practice and procedure,
air pollution control, reporting and recordkeeping requirements.
Dated: March 22, 2013.
Bob Perciasepe,
Acting Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Revise Sec. 70.6 paragraph (c)(5)(iii)(B) to read as follows:
Sec. 70.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period. Such methods and other
means shall include, at a minimum, the methods and means required under
paragraph (a)(3) of this section. If necessary, the owner or operator
also shall identify any other material information that must be
included in the certification to comply with section 113(c)(2) of the
Act, which prohibits knowingly making a false certification or omitting
material information;
* * * * *
[[Page 19172]]
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Revise Sec. 71.6 paragraph (c)(5)(iii)(B) to read as follows:
Sec. 71.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period. Such methods and other
means shall include, at a minimum, the methods and means required under
paragraph (a)(3) of this section. If necessary, the owner or operator
also shall identify any other material information that must be
included in the certification to comply with section 113(c)(2) of the
Act, which prohibits knowingly making a false certification or omitting
material information;
* * * * *
[FR Doc. 2013-07266 Filed 3-28-13; 8:45 a.m.]
BILLING CODE 6560-50-P