[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Rules and Regulations]
[Pages 58529-58536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23587]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[FRL-7374-6]
RIN 2060-AK29
Revisions To Clarify the Scope of Sufficiency Monitoring
Requirements for Federal and State Operating Permits Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: The EPA is promulgating this interim final rule to clarify the
scope of the monitoring required in operating permits issued by State
and local permitting authorities or by EPA under title V of the Clean
Air Act (Act). Specifically, this interim final rule clarifies that
under the sufficiency monitoring rules, all title V permits
[[Page 58530]]
must contain monitoring sufficient to assure compliance as required
under sections 504(a), 504(b), 504(c), and 114(a)(3) of the Act, in
cases where the periodic monitoring rules are not applicable. The EPA
believes this interim final rule is necessary to address claims of
confusion on the part of some source owners and operators, permitting
authorities and citizens as to the scope of EPA's title V monitoring
regulations while EPA conducts a notice-and-comment rulemaking to
consider adopting as a final rule the same changes made by this interim
final rule.
EFFECTIVE DATE: This interim final rule is effective on September 17,
2002 until November 18, 2002.
ADDRESSES: Documents relevant to this action are available for
inspection at the Docket Office, Attention: Docket No. A-93-50, U.S.
EPA, 401 M Street SW., Room M-1500, Washington, DC 20460, telephone
(202) 260-7548, between 7:30 a.m. and 5:30 p.m., Monday through Friday,
excluding legal holidays. A reasonable fee may be charged for copying.
Documents relevant to the promulgation of the operating permit program
regulations at parts 70 and 71 are available for inspection at the same
location under Docket Nos. A-90-33 and A-93-50 for part 70, and A-93-51
for part 71.
FOR FURTHER INFORMATION CONTACT: For further information, contact Mr.
Jeff Herring, U.S. EPA, Information Transfer and Program Implementation
Division, C304-04, Research Triangle Park, North Carolina 27711,
telephone number (919) 541-3195, facsimile number (919) 541-5509,
electronic mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities. Categories and entities potentially affected by
this action include facilities currently required to obtain title V
permits by State, local, tribal, or Federal operating permits programs.
World Wide Web (WWW). After signature, the final rule will be
posted on the policy and guidance page for newly proposed or final
rules of EPA's Technology Transfer Network (TTN) at http://www.epa.gov/ttn/oarpg/t5.html. For more information, call the TTN Help line at
(919) 541-5384.
Outline. The contents of the preamble are listed in the following
outline:
I. Background
A. The Legal Basis for Requiring Title V Monitoring
B. Court Rulings About Title V Monitoring
C. The EPA's Adjudicatory Orders in Pacificorp and Fort James
II. Revisions to the Title V Monitoring Requirements
A. Why Is EPA Revising Sec. Sec. 70.6(c)(1) and 71.6(c)(1)?
B. What Interim Final Revisions Are Being Made?
C. How Does This Interim Final Rule Affect the Scope of the
Current Title V Monitoring Requirements?
III. Related Actions
IV. Interim Final Rule
A. Need for an Interim Final Rule
B. Scope of This Interim Final Rule
V. Administrative Requirements
A. Executive Order 12866--Regulatory Planning and Review
B. Unfunded Mandates Reform Act
C. Executive Order 13132: Federalism
D. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
E. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) 5
U.S.C. 601 et seq.
F. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
G. National Technology Transfer and Advancement Act
H. Paperwork Reduction Act
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. Judicial Review
K. Congressional Review Act
I. Background
A. The Legal Basis for Requiring Title V Monitoring
By enacting title V as part of the 1990 Act Amendments, Congress
sought to enhance sources' compliance with the Act in two important
ways. First, Congress required that every major stationary source of
air pollution and certain other sources obtain a single, comprehensive
operating permit to assure compliance with all emission limitations and
other substantive Act requirements that apply to the source. 42 U.S.C.
7661a(a), 7661c(a). Second, Congress required that all title V sources
conduct monitoring of their emissions that is sufficient to assure
compliance with applicable requirements under the Act and also certify
compliance with such applicable requirements. 42 U.S.C. 7661c(a),
7661c(c). The Senate Report summarized: ``EPA must require reasonable
monitoring * * * requirements that are adequate to assure compliance.''
S. Rep. No. 101-228, at 350 (1989) (reprinted in 1990 U.S.C.C.A.N.
3385, 3733).
Three provisions of title V set forth Congress's requirements for
monitoring by title V sources. Section 504(c) of the Act requires that
each permit ``shall set forth inspection, entry, monitoring, compliance
certification, and reporting requirements to assure compliance with the
permit terms and conditions.'' 42 U.S.C. 7661c(c). Section 504(a)
requires that each permit ``shall include enforceable emission
limitations and standards * * * and such other conditions as are
necessary to assure compliance with applicable requirements.'' 42
U.S.C. 7661c(a). Section 504(b) contains discretionary authority for
EPA to prescribe by rule ``procedures and methods for determining
compliance and for monitoring * * * '' 42 U.S.C. 7661(b). In addition,
section 114(a)(3) directs EPA to require ``enhanced monitoring'' at all
major stationary sources. 42 U.S.C. 7414(a)(3).
The EPA's title V regulations at Sec. Sec. 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B) require that
[w]here the applicable requirement does not require periodic testing
or instrumental or noninstrumental monitoring (which may consist of
recordkeeping designed to serve as monitoring), [each permit must
contain] periodic monitoring sufficient to yield reliable data from
the relevant time period that are representative of the source's
compliance with the permit, as reported pursuant to [Sec.
70.6(a)(3)(iii) or Sec. 71.6(a)(3)(iii)]. Such monitoring
requirements shall assure use of terms, test methods, units,
averaging periods, and other statistical conventions consistent with
the applicable requirement. Recordkeeping provisions may be
sufficient to meet the requirements of [Sec. 70.6(a)(3)(i)(B) or
Sec. 71.6(a)(3)(i)(B)].
Furthermore, Sec. Sec. 70.6(c)(1) and 71.6(c)(1) require that each
part 70 and 71 permit contain, ``[c]onsistent with paragraph (a)(3) of
this section, compliance certification, testing, monitoring, reporting,
and recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit.'' 40 CFR part 64, the Compliance
Assurance Monitoring (CAM) rule, as well as the title V regulations
discussed above, implements the statutory ``enhanced monitoring''
requirement. See 62 FR 54900, October 22, 1997.
B. Court Rulings About Title V Monitoring
Two opinions issued by the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) have addressed the
monitoring required of title V sources. Specifically, the court
reviewed EPA's CAM rule in Natural Resources Defense Council v. EPA,
194 F.3d 130 (D.C. Cir. 1999) (NRDC), and reviewed EPA's periodic
monitoring guidance under title V in Appalachian Power Co. v. EPA, 208
F.3d 1015 (D.C. Cir. 2000) (Appalachian Power). In NRDC, the Natural
Resources Defense Council argued that the CAM rule was
[[Page 58531]]
inadequate to meet the statutory mandate that all major sources be
subject to enhanced monitoring because it excluded units without
control devices, units below a 100-ton cutoff, and certain other
categories. 194 F.3d at 135.\1\ The court disagreed, and upheld the CAM
rule and EPA's general enhanced monitoring program. 194 F.3d at 135-37.
The court pointed out that certain sources exempt from CAM were subject
to ``other specific rules.'' Id.\2\ The court then reasoned that all
other major sources were subject to one of two ``residual rules'' under
part 70: either the periodic monitoring rule at Sec. 70.6(a)(3)(i)(B),
or the sufficiency rule at 70.6(c)(1). Id. at 135-36. The court
recognized that ``[w]hile the part 70 rules are not as specific as CAM,
they have the same bottom line--a major source must undertake
`monitoring * * * sufficient to assure compliance.''' Id. at 136.\3\
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\1\ For example, CAM exempts acid rain program requirements
under title IV of the Act. See Sec. 64.2(b)(1)(iv).
\2\ 2 For example, sources exempt from acid rain requirements
under CAM (see supra n. 1) are subject to state-of-the-art
monitoring under Act section 412 and 40 CFR part 75.
\3\ The entire relevant passage reads as follows:
Specifically, EPA demonstrated that many of the major stationary
sources exempt from CAM are subject to other specific rules, and if
they are not, they are subject to the following two residual rules:
(1) ``[The permit shall contain] periodic monitoring sufficient to
yield reliable data * * * that are representative of the source's
compliance with the permit * * * '' 40 C.F.R. 70.6(a)(3)(i)(B); (2)
``All part 70 permits shall contain the following elements with
respect to compliance: (1) Consistent with paragraph (a)(3) of this
section, compliance certification, testing, [and] monitoring * * *
requirements sufficient to assure compliance with the terms and
conditions of the permit'' Id. Sec. 70.6(c)(1).
While the part 70 rules are not as specific as CAM, they have
the same bottom line--a major source must undertake ``monitoring * *
* sufficient to assure compliance.'' Like CAM, the monitoring
protocols will be developed on a unit-by-unit basis. Such monitoring
is sufficiently ``enhanced'' over the pre-1990 situation to satisfy
the statutory requirement. See Compliance Assurance Monitoring, 62
FR 54900, 54904, October 22, 1997. Id.
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In Appalachian Power, a different panel of the D.C. Circuit set
aside EPA's ``Periodic Monitoring Guidance'' \4\ after finding that it
had in effect amended part 70's periodic monitoring rule at Sec.
70.6(a)(3)(i)(B) by interpreting that rule too broadly to cover
situations where the underlying applicable requirement called for some
kind of ``periodic'' testing or monitoring, but such monitoring was not
sufficient to assure compliance. 208 F.3d at 1028. The Appalachian
Power court held that in its current form, the periodic monitoring rule
authorized sufficiency reviews of monitoring and testing in an existing
emissions standard, and enhancement of that monitoring or testing
through the permit, only when that standard ``requires no periodic
testing, specifies no frequency, or requires only a one-time test.''
Id. The panel did not address the separate ``sufficiency'' requirement
of Sec. 70.6(c)(1) or the earlier decision in NRDC, except to note
that it disagreed with EPA's argument that the court in the earlier
decision read the periodic monitoring rule in the same way as the
Agency. Id. at 1027 n. 26. The Appalachian Power court set aside the
Periodic Monitoring Guidance, reasoning that the Guidance was ``final
agency action'' that broadened the scope of the periodic monitoring
rule without complying with the rulemaking procedures required by 42
U.S.C. 7607(d). Id. at 1023, 1028.
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\4\ ``Periodic Monitoring Guidance,'' signed by Eric V.
Schaeffer, Director, Office of Regulatory Enforcement, and John S.
Seitz, Director, Office of Air Quality Planning and Standards,
September 15, 1998.;
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C. The EPA's Adjudicatory Orders in Pacificorp and Fort James
Following the NRDC and Appalachian Power decisions, EPA was called
upon to clarify the scope of the title V monitoring requirements in two
adjudicatory orders responding to petitions requesting that the
Administrator object to title V permits under section 505(b)(2) of the
Act.\5\ In the Matter of Pacificorp's Jim Bridger and Naughton Electric
Utility Steam Generating Plants, Petition No. VIII-00-1 (November 16,
2000) (Pacificorp) (available on the Internet at http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/woc020.pdf); In
the Matter of Fort James Camas Mill, Petition No. X-1999-1 (Dec. 22,
2000) (Fort James) (available on the Internet at: http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/fortjamesdecision1999.pdf). Notice of these decisions was published in
the Federal Register. See 66 FR 85, January 2, 2001 (Pacificorp); 66 FR
13529, March 6, 2001 (Fort James).
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\5\ Section 505(b)(2) authorizes any person to petition the
Administrator to object to a title V permit within 60 days after the
expiration of EPA's 45-day review period and directs the
Administrator to grant or deny such petitions and to issue an
objection if the petitioner demonstrates that the permit is not in
compliance with the applicable requirements of the Act. 42 U.S.C.
7661d(b)(2).
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The first order, Pacificorp, responded to a petition in which
Wyoming Outdoor Council requested that the Administrator object to two
title V permits issued by the State of Wyoming. The petition alleged,
in relevant part, that the permits, which required only a quarterly
Method 9 visual observation, were deficient because they failed to
assure compliance with the 20 percent opacity limit in the Wyoming
State Implementation Plan (SIP). The Administrator's response
summarized the monitoring requirements of the Act and part 70, quoting
from sections 114(a)(3), 504(a) and 504(c), and from Sec. Sec.
70.6(a)(3)(i)(B) and 70.6(c)(1). Id. The response then summarized the
NRDC and Appalachian Power decisions. Pacificorp at 16-18. In
particular, the Administrator observed that the NRDC panel had based
its holding that EPA had satisfied the statutory mandates to require
adequate monitoring for all permits at major sources on the two
``residual rules'' in part 70: Sec. Sec. 70.6(a)(3)(i)(B) and
70.6(c)(1). Id. at 16-17 (citing NRDC, 194 F.3d at 135-37). She also
observed that the Appalachian Power panel had held that Sec.
70.6(a)(3)(i)(B) must be read narrowly to apply only when the
underlying emission standard ``requires no periodic testing, specifies
no frequency, or requires only a one-time test.'' Pacificorp at 18
(quoting Appalachian Power, 208 F.3d at 1028). Finally, she observed
that the Appalachian Power panel did not address 70.6(c)(1), or the
earlier decision in NRDC (except to note that it disagreed with EPA's
contention that the NRDC panel had read Sec. 70.6(a)(3)(i)(B) in the
same broad fashion as had EPA). Pacificorp at 18 (citing Appalachian
Power, 208 F.3d at 1028 n. 26).
The Administrator then set forth her understanding of the current
monitoring requirements by harmonizing the NRDC and Appalachian Power
decisions. Specifically, the Administrator stated that in light of
those decisions, where an applicable requirement requires no
``periodic'' testing or monitoring at all, ``section 70.6(c)(1)'s
requirement that monitoring be sufficient to assure compliance will be
satisfied'' by meeting the more substantive requirements of Sec.
70.6(a)(3)(i)(B). Where, in accordance with Appalachian Power, the
latter periodic monitoring provision does not apply because there is
some ``periodic'' monitoring but it is not sufficient to assure
compliance, the ``separate regulatory standard'' in Sec. 70.6(c)(1)
governs instead and requires enhancement of existing monitoring ``as
necessary to be sufficient to assure compliance.'' Pacificorp at 18-19.
Based on this understanding, the Administrator found that since the
Wyoming SIP called for quarterly Method 9 visual readings, and this was
``periodic,'' then in accordance with Appalachian Power ``the
provisions of Sec. 70.6(a)(3)(i)(B) do not apply.'' She then found
that such monitoring:
[[Page 58532]]
is not sufficient to ``assure compliance'' with the 20 [percent]
opacity limit in the Wyoming SIP within the meaning of Sec.
70.6(c)(1) and sections 504(a) and 504(c) of the Clean Air Act, and
does not constitute enhanced monitoring within the meaning of
section 114(a)(3) of the Act.
Id. at 19. The Administrator granted the petition in part and denied it
in part. See 66 FR 85, January 2, 2001.
The Administrator subsequently responded to another citizen
petition to object alleging numerous monitoring deficiencies in a
permit issued by the State of Washington, the Fort James order. As in
Pacificorp, the petition raised monitoring issues, and the
Administrator ruled similarly. She explained that where it was clear
that there was no underlying monitoring of a ``periodic'' nature, Sec.
70.6(a)(3)(i)(B) applied and decided the claims accordingly. Where
there was some underlying monitoring that could be considered periodic,
she applied the general sufficiency standard in Sec. 70.6(c)(1) and
decided the claims on that basis. The petition was granted in part and
denied in part. See Fort James at 5-9; 66 FR 13529, March 6, 2001.
II. Revisions to the Title V Monitoring Requirements
A. Why Is EPA Revising Sec. Sec. 70.6(c)(1) and 71.6(c)(1)?
This interim final rule responds to assertions by some industry
representatives that the NRDC and Appalachian Power court decisions
have created uncertainty and confusion on the part of some source
owners and operators, permitting authorities and citizens as to the
scope of the title V monitoring requirements. The EPA also is
undertaking this interim final rule and the related actions described
below consistent with the defense of pending litigation, Utility Air
Regulatory Group v. EPA, No. 01-1204 (DC Cir.) (UARG) \6\ While EPA has
harmonized the NRDC and Appalachian Power decisions to clarify the
title V monitoring requirements in the Pacificorp and Fort James
orders, some industry representatives and others have maintained that
EPA's understanding as stated in the orders is based on an overbroad
reading of Sec. Sec. 70.6(c)(1) and 71.6(c)(1). Under EPA's current
title V regulations, these parties have asserted, Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) cannot be read to require ``sufficient'' monitoring
where 70.6(a)(3)(i)(B) or Sec. 71.6(a)(3)(i)(B) does not apply (e.g.,
where the permit already contains some monitoring that can be
considered ``periodic'' but that is not sufficient to assure compliance
with the permit's terms and conditions) because Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) as currently written expressly provide that monitoring
sufficient to assure compliance be ``[c]onsistent with [70.6(a)(3) or
Sec. 71.6(a)(3)].'' In short, these parties interpret this prefatory
language to mean that Sec. Sec. 70.6(c)(1) and 71.6(c)(1) must have
the same limited meaning as Sec. Sec. 70.6(a)(3) and 71.6(a)(3),
respectively, because ``consistent with [Sec. 70.6(a)(3) or Sec.
71.6(a)(3)]'' means ``identical to the scope and content of [Sec.
70.6(a)(3) or Sec. 71.6(a)(3)].'' Under this view, Sec. Sec.
70.6(a)(3) and 71.6(a)(3) require that inadequate but ``periodic''
monitoring must be accepted without enhancement.
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\6\ The EPA's interpretation of Sec. Sec. 70.6(c)(1) and
71.6(c)(1) as they currently written has been challenged in
litigation pending before the D.C. Circuit. Specifically, the
Utility Air Regulatory Group (UARG) has sought judicial review of
the interpretation set out by EPA in the Fort James order and
restated in an ``Instruction Manual'' dated January 2001 that was
posted on EPA's web site to assist those completing permit
application forms under the part 71 federal operating permit
program. Pursuant to section 307(b)(1) of the Act, 42 U.S.C.
7607(b)(1), UARG also has sought review of the final part 70 and
part 71 regulations by alleging ``grounds arising after'' the time
allowed for seeking judicial review. In its brief defending its
current interpretation, EPA informed the court of its intention to
issue this interim final rule and the companion proposed rule
described below. See UARG.
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The EPA disagrees with these assertions that the prefatory
``consistent with'' language limits the scope of Sec. Sec. 70.6(c)(1)
and 71.6(c)(1). Indeed, interpreting ``consistent with'' to mean
``identical to'' as some parties have suggested would render the second
clause of Sec. Sec. 70.6(c)(1) and 71.6(c)(1), which requires
monitoring ``sufficient to assure compliance,'' superfluous, and would
imply that the NRDC court's discussion of Sec. 70.6(c)(1) was
redundant. By contrast, EPA has reasonably interpreted ``consistent
with'' to mean ``compatible with [Sec. 70.6(a)(3) or Sec.
71.6(a)(3)].'' Under EPA's interpretation, Sec. Sec. 70.6(c)(1) and
71.6(c)(1) are separate sources of regulatory authority from Sec. Sec.
70.6(a)(3) and 71.6(a)(3), and Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
independently require that all monitoring in title V permits be
sufficient to assure compliance with the permits' terms and conditions.
As EPA explained in the Pacificorp and Fort James orders, EPA believes
that the ``consistent with'' language means that the broadly
applicable, but bare sufficiency provisions at Sec. 70.6(c)(1) [or
Sec. 71.6(c)(1)] will be satisfied by compliance with the substantive
monitoring requirements of Sec. 70.6(a)(3)(i)(B) [or Sec.
71.6(a)(3)(i)(B)] where the latter periodic monitoring provision
applies. In other words, where Sec. 70.6(a)(3)(i)(B) [or Sec.
71.6(a)(3)(i)(B)] applies, its more specific requirements (e.g.,
reliable data from the relevant time period that are representative of
the source's compliance) are deemed sufficient to assure compliance,
and where Sec. 70.6(a)(3)(i)(B) [or Sec. 71.6(a)(3)(i)(B)] does not
apply, the general sufficiency requirement at Sec. 70.6(c)(1) [or
Sec. 71.6(c)(1)] comes into play. See Pacificorp at 18-19; Fort James
at 9.
The EPA's interpretation of the prefatory ``consistent with''
language in Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is a reasonable one
and is indeed the better interpretation, because it gives meaning to
the second clause of Sec. Sec. 70.6(c)(1) and 71.6(c)(1), advances the
statutory monitoring requirements, and harmonizes the NRDC and
Appalachian Power decisions with each other. Nonetheless, EPA
recognizes that further clarification through rulemaking would be
useful. In addition, EPA has received numerous requests from permitting
authorities and citizens requesting clarification of the title V
monitoring requirements, including a letter from eighty-one
environmental and public health organizations asking EPA to revise the
part 70 regulations to address monitoring in light of the court's
decision in Appalachian Power.
B. What Interim Final Revisions Are Being Made?
By promulgating this interim final rule, EPA is suspending, for
sixty days, the underscored prefatory language to Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) providing that all title V permits contain,
``[c]onsistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms and
conditions of the permit.'' The suspension of the prefatory language
will expressly uncouple the sufficiency monitoring provisions,
Sec. Sec. 70.6(c)(1) and 71.6(c)(1), from the periodic monitoring
provisions, Sec. Sec. 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), and make
more clear the regulatory distinction between the two sets of
provisions. Specifically, the suspension will clarify the respective
scopes of the periodic monitoring and sufficiency monitoring
provisions, eliminating any possible confusion under the current
regulations as to when a title V permit must contain monitoring
sufficient to assure compliance. The EPA notes that despite this
suspension, EPA is retaining its interpretation, set forth in the
Pacificorp and Fort James orders, that where Sec. 70.6(a)(3)(i)(B) or
Sec. 71.6(a)(3)(i)(B) applies, it satisfies the
[[Page 58533]]
general sufficiency requirement of Sec. 70.6(c)(1) or Sec.
71.6(c)(1).
The suspension of the prefatory language codifies the understanding
set forth in the Pacificorp and Fort James orders, where the
Administrator characterized Sec. 70.6(c)(1) as a ``separate regulatory
standard'' from Sec. 70.6(a)(3)(i)(B). The suspension is also
consistent with the court's holding in NRDC that Sec. Sec.
70.6(a)(3)(i)(B) and 70.6(c)(1) together ensure that a major source
must undertake ``monitoring * * * sufficient to assure compliance''
where the CAM rule or other more specific rules governing major sources
do not require such monitoring. 194 F.3d at 136. Finally, the
suspension is consistent with the court's decision in Appalachian
Power, which, as noted above, did not construe Sec. 70.6(c)(1). See
208 F.3d at 1027 n.26.
Under this interim final rule, the periodic monitoring and
sufficiency monitoring provisions will work together as follows. Where
an applicable requirement does not require any periodic testing or
monitoring, permit conditions are required to establish ``periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit.'' Sections 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). In contrast,
where the applicable requirement already requires ``periodic'' testing
or monitoring but that monitoring is not sufficient to assure
compliance, the separate regulatory standard at Sec. 70.6(c)(1) or
Sec. 71.6(c)(1) applies instead to require monitoring ``sufficient to
assure compliance with the terms and conditions of the permit.''
Furthermore, where Sec. 70.6(a)(3)(i)(B) or Sec. 71.6(a)(3)(i)(B)
applies, it satisfies the general sufficiency requirement of Sec.
70.6(c)(1) or Sec. 71.6(c)(1).
C. How Does This Interim Final Rule Affect the Scope of the Current
Title V Monitoring Requirements?
This interim final rule does not affect the scope of the title V
monitoring requirements as previously construed by the D.C. Circuit in
NRDC and Appalachian Power, or as set forth in EPA's Pacificorp and
Fort James orders. Rather, the purpose of this interim final rule is
simply to clarify that under Sec. Sec. 70.6(c)(1) and 71.6(c)(1), all
title V permits must include monitoring sufficient to assure compliance
with the permits' terms and conditions, as required by Act sections
504(a), 504(b), 504(c), and 114(a)(3). As stated above, the purpose is
to eliminate any possible confusion about the scope of the sufficiency
monitoring provisions at Sec. Sec. 70.6(c)(1) and 71.6(c)(1) that may
arise due to their prefatory references to the periodic monitoring
provisions at Sec. Sec. 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B).
III. Related Actions
The EPA intends to conduct two additional rulemakings related to
this interim final rule. First, elsewhere in today's Federal Register,
EPA is proposing to revise Sec. Sec. 70.6(c)(1) and 71.6(c)(1) to make
the same changes as this interim final rule through an expedited
notice-and-comment rulemaking process. The EPA is soliciting comments
on that proposal. The EPA intends that the proposed changes would be
promulgated as a final rule and would become effective when this
interim final rule sunsets. In addition, EPA intends to initiate a
second notice-and-comment rulemaking process to consider more
comprehensively means of meeting the statutory monitoring requirements.
IV. Interim Final Rule
A. Need for an Interim Final Rule
The EPA is using the good cause exception under the Administrative
Procedure Act (APA) to take the actions set forth in this interim final
rule without prior notice and comment. See 5 U.S.C. 553(b)(3)(B).
Section 553(b) of the APA generally requires that any rule to which it
applies be issued only after the public has received notice of, and had
an opportunity to comment on, the proposed rule. However, section
553(b)(3)(B) exempts from those requirements any rule for which the
issuing agency for good cause finds that providing prior notice-and-
comment would be impracticable, unnecessary, or contrary to the public
interest. Thus, any rule for which EPA makes such a finding is exempt
from the notice-and-comment requirements of section 553(b).
The EPA believes that the circumstances here provide good cause to
take the actions set forth in this interim final rule without prior
notice and comment, because providing prior notice and comment would be
unnecessary and contrary to the public interest. In light of the short
time period that this interim final rule will be in effect and the
parallel, expedited notice-and-comment rulemaking to consider
promulgating the same changes to Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
as a final rule to provide clarification beyond the near term, EPA
believes that soliciting public comment on this interim final rule is
unnecessary. The public will have an opportunity to comment on the
proposal for the parallel rulemaking, published elsewhere in today's
issue of the Federal Register. Furthermore, EPA believes that
soliciting public comment on this interim final rule would be contrary
to the public interest because it is in the public interest to
eliminate any possible confusion surrounding the scope of the
sufficiency monitoring provisions, Sec. Sec. 70.6(c)(1) and
71.6(c)(1), as soon as possible given the importance of monitoring to
carrying out title V's mandates that all title V permits assure
compliance with all applicable requirements under the Act.
The EPA is also using the APA's good cause exception to make this
interim final rule immediately effective. See 5 U.S.C. 553(d)(3).
Section 553(d) of the APA generally provides that rules may not take
effect earlier than 30 days after they are published in the Federal
Register. However, section 553(d)(3) provides that if the issuing
agency has made a finding of good cause and published its reasoning
with the rule, the rule may take effect earlier. The EPA has determined
that good cause exists to revise Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
in this interim final rule without prior notice-and-comment, because
prior notice-and-comment would be unnecessary and contrary to the
public interest for the reasons stated above. Based on this
determination, EPA is making this interim final rule immediately
effective.
B. Scope of This Interim Final Rule
This interim final rule is limited to the removal of the prefatory
phrase ``[c]onsistent with paragraph (a)(3) of this section'' from
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) in order to clarify the scope of
these provisions. This interim final rule does not address any other
issues related to title V monitoring, such as the type of monitoring
required under the periodic monitoring provisions, Sec. Sec.
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), or under the sufficiency
monitoring provisions, Sec. Sec. 70.6(c)(1) and 71.6(c)(1). As
indicated above, EPA is proposing elsewhere in today's Federal Register
to revise Sec. Sec. 70.6(c)(1) and 71.6(c)(1) to make the same changes
as this interim final rule through an expedited notice-and-comment
rulemaking process. The EPA is soliciting public comment on that
proposal. The EPA expects to consider comments on other issues relating
to title V monitoring during the comprehensive rulemaking that is also
planned and described above.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
[[Page 58534]]
determine whether a regulatory action is ``significant'' and therefore
subject to Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines a ``significant
regulatory action'' as one that is likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more,
adversely affecting in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under Executive Order 12866, it has been determined that this
proposed rule is a ``significant regulatory action'' and is therefore
subject to OMB review. Today's proposed rule raises important legal and
policy issues associated with the court's decisions in Appalachian
Power and NRDC and EPA's adjudicatory orders in Pacificorp and Fort
James. Therefore, this action is a ``significant regulatory action.''
B. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more * * * in any one year.'' A ``Federal mandate'' is
defined to include a ``Federal intergovernmental mandate'' and a
``Federal private sector mandate.'' [2 U.S.C. 658(6)]. A ``Federal
intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments,'' [2 U.S.C. 658(5)(A)(i)], except for, among
other things, a duty that is ``a condition of Federal assistance.'' [2
U.S.C. 658(5)(A)(i)(I)]. A ``Federal private sector mandate'' includes
a regulation that ``would impose an enforceable duty upon the private
sector,'' with certain exceptions [2 U.S.C. 658(7)(A)].
Before promulgating a rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least-
costly, most cost-effective, or least-burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply where they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective, or least-burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, EPA must have developed
under section 203 of the UMRA a small government agency plan. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of our regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The EPA has determined under the regulatory provisions of title II
of the UMRA that this interim final rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. Today's interim final rule imposes no new requirements
but rather clarifies existing requirements. Because we have made a
``good cause'' finding that this action is not subject to notice-and-
comment requirements under the Administrative Procedure Act (APA) or
any other statute [see section IV.A. (``Need for an Interim Final
Rule'') of this preamble], and because it is merely intended to clarify
existing requirements, it is not subject to sections 202 and 205 of the
UMRA.
In addition, EPA has determined that this interim final contains no
regulatory requirements that might significantly or uniquely affect
small governments because it imposes no new requirements and imposes no
additional obligations beyond those of existing regulations. Therefore,
today's interim final rule is not subject to the requirements of
section 203 of the UMRA.
C. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, or on the distribution of power and
responsibilities among the various levels of government.''
This interim final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Today's rule will
not impose any new requirements but rather will clarify existing
requirements. Accordingly, it will not alter the overall relationship
or distribution of powers between governments for the part 70 and part
71 operating permits programs. Thus, Executive Order 13132 does not
apply to this interim final rule.
D. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments (65 FR 67249, November 6, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
This interim final rule does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes, as specified in Executive
Order 13175. Today's action does not significantly or uniquely affect
the communities of Indian tribal governments. As discussed
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above, today's action imposes no new requirements that would impose
compliance burdens beyond those that would already apply. Accordingly,
the requirements of Executive Order 13175 do not apply to this rule.
E. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
Today's interim final rule is not subject to the RFA, which
generally requires an agency to prepare a regulatory flexibility
analysis of any rule that will have ``a significant economic impact on
a substantial number of small entities.'' 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 under the APA or any other statute because EPA is using
the good cause exception under section 553(b)(3)(B) of the APA to take
the actions set forth in this interim final rule without prior notice
and comment. See section IV.A., (``Need for an Interim Final Rule'') of
this preamble for more information on the good cause exemption cited
for this interim final rule.
Although this interim final rule is not subject to the RFA, EPA has
nonetheless has assessed the potential of this rule to adversely impact
small entities subject to the rule and concluded that it will have no
adverse impact on small entities because it adds no new requirements,
and merely clarifies existing requirements.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines is (1) ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risk, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This interim final rule is not
subject to Executive Order 13045 because it is not ``economically
significant'' under Executive Order 12866 and it does not establish an
environmental standard intended to mitigate health and safety risks.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus bodies.
The NTTAA directs EPA to provide Congress, through OMB, explanations
when the Agency decides not to use available and applicable voluntary
consensus standards.
The NTTAA does not apply to this interim final rule because it does
not involve technical standards. Therefore, EPA did not consider the
use of any voluntary consensus standards.
H. Paperwork Reduction Act
This interim final rule does not impose any new information
collection requirements beyond those already required under existing
part 70 and part 71 rules. Therefore, revision to the existing
information collection request documents for these rules is not
required. The information collection requirements for parts 70 and 71
were previously approved by OMB under the requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is
assigned ICR number 1587.05 and OMB number 2060-0243; for part 71, the
ICR number is 1713.04 and the OMB number is 2060-0336. A copy of these
ICRs may be obtained by mail to: Director, Collection Strategies
Division (2822), Office of Environmental Information, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. A copy may also be downloaded off
the internet at http://www.epa.gov/icr.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This interim final rule is not a ``significant energy action,'' as
defined in to Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. As noted
earlier, this action would simply clarify existing requirements and
would not impose any new requirements, and thus would not affect the
supply distribution, or use of energy.
J. Judicial Review
Section 307(b)(1) of the Act indicates which Federal Courts of
Appeals have venue for petitions for review of final actions by EPA.
This section provides, in part, that petitions for review must be filed
in the D. C. Circuit: (i) When the agency action consists of ``national
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``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 interim final rule is of nationwide scope and effect for
purposes of section 307(b)(1) because it revises EPA's part 70 and 71
operating permits programs. Thus, any petitions for review of this
interim final rule must be filed in the D. C. Circuit within 60 days
from September 17, 2002.
K. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States.
Section 808 of 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 public procedure is impracticable,
unnecessary, or contrary to the public interest. This determination
must be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of September 17,
2002. See section IV.A. (``Need for an Interim Final Rule'') of this
preamble. The EPA will submit a report containing this rule and other
required information to the United States Senate, the United States
House of Representatives, and the
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Comptroller General of the United States prior to publication of the
rule in the Federal Register. This interim final rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
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
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: September 4, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 70--[Amended]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In Sec. 70.6(c)(1) the phrase ``Consistent with paragraph
(a)(3) of this section,'' is suspended.
PART 71--[Amended]
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In Sec. 71.6(c)(1) the phrase ``Consistent with paragraph
(a)(3) of this section,'' is suspended.
[FR Doc. 02-23587 Filed 9-16-02; 8:45 am]
BILLING CODE 6560-50-P