6560­
50­
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
70
and
71
[
FRL
­
______,
E­
Docket
ID.
No.
OAR­
2003­
0179
(
Legacy
Docket
ID
No.
A­
90­
50)]

Revisions
to
Clarify
the
Scope
of
Certain
Monitoring
Requirements
for
Federal
and
State
Operating
Permits
Programs
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
Today's
action
ratifies
certain
current
language
of
the
State
and
federal
operating
permits
program
rules
under
title
V
of
the
Clean
Air
Act
(
Act)
concerning
monitoring
and
declines
to
adopt
the
changes
to
the
regulatory
text
of
the
monitoring
rules
that
were
proposed
on
September
17,
2002.
Today
EPA
also
announces
a
different
interpretation
of
the
"
umbrella
monitoring"
rules
(
40
CFR
70.6(
c)(
1)
and
71.6(
c)(
1))
from
that
set
forth
in
the
preamble
to
that
proposal.
Notwithstanding
the
recitation
in
the
umbrella
monitoring
rules
of
monitoring
as
a
permit
element,
EPA
has
determined
that
the
correct
interpretation
of
the
umbrella
monitoring
rules
is
that
they
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
separate
provisions
of
the
operating
permits
rules.
As
explained
in
this
action,
the
umbrella
monitoring
rules
do
not
provide
a
basis
for
adding
monitoring
to
title
V
permits
independent
of
monitoring
required
under
existing
federal
air
pollution
control
rules
and
State
implementation
plan
(
SIP)
rules
(
i.
e.,
monitoring
required
under
applicable
requirements),
including
monitoring
required
under
the
compliance
assurance
monitoring
2
(
CAM)
rule
where
it
applies,
and
such
monitoring
as
may
be
required
under
the
periodic
monitoring
rules.
Accordingly,
EPA
interprets
the
umbrella
monitoring
rules
to
require
that
title
V
permits
contain
monitoring
required
under
applicable
requirements,
including
monitoring
required
under
the
CAM
rule
where
it
applies,
and
such
monitoring
as
may
be
required
under
the
periodic
monitoring
rules.
Together,
such
monitoring
will
constitute
monitoring
sufficient
to
assure
compliance
as
required
by
the
Act.

Today's
action
is
the
first
step
in
a
four­
step
strategy
for
considering
programmatic
improvements
to
existing
monitoring
where
necessary
through
rulemaking
while
reducing
resource­
intensive,
case­
by­
case
monitoring
reviews
and
so­
called
"
gap­
filling"
in
title
V
permits.
In
addition,
EPA
intends
to
encourage
States
to
improve
monitoring
requirements
in
certain
SIP
rules
through
guidance
to
be
developed
in
connection
with
a
separate
rulemaking
concerning
the
implementation
of
the
national
ambient
air
quality
standards
(
NAAQS)
for
fine
particulate
matter
to
be
published
in
the
near
term.
The
EPA
also
intends
to
publish
an
advance
notice
of
proposed
rulemaking
(
ANPR)
in
the
near
term
to
ask
for
comments
on
inadequate
monitoring
in
applicable
requirements
(
in
addition
to
any
monitoring
addressed
in
the
fine
particulate
guidance
and
rulemaking)
and
on
appropriate
methods
for
upgrading
such
monitoring.
Finally,
EPA
expects
to
conduct
a
separate
notice
and
comment
rulemaking
to
address
what
types
of
existing
monitoring
are
"
periodic"
under
the
periodic
monitoring
rules,
and
when
the
periodic
monitoring
rules
apply,
what
types
of
monitoring
satisfy
the
monitoring
criteria
contained
in
the
periodic
monitoring
rules.

Under
the
Act,
EPA
has
discretion
to
implement
the
title
V
monitoring
3
requirements
through
rulemakings
or
case­
by­
case
permit
reviews.
Today,
EPA
is
committing
to
exercise
its
discretion
under
the
Act
to
require
any
necessary
improvements
to
existing
monitoring
through
rulemaking,
except
where
the
periodic
monitoring
rules
authorize
the
case­
by­
case
addition
of
monitoring
to
individual
permits.
The
EPA's
interpretation
of
the
Act,
its
own
regulations,
recent
Court
decisions,
and
several
policy
considerations
underlie
this
decision.
EPA
believes,
as
a
matter
of
policy,
that
it
will
be
less
burdensome
on
State,
local
and
tribal
permitting
authorities
and
on
sources,
and
far
more
equitable
and
efficient,
to
require
any
necessary
improvements
in
monitoring
requirements
through
rulemakings
to
revise
federal
applicable
requirements
or
SIP
rules,

rather
than
by
requiring
permitting
authorities
to
conduct
case­
by­
case
sufficiency
monitoring
reviews
of
individual
permits.

Furthermore,
EPA
has
decided
not
to
adopt
the
changes
to
the
regulatory
text
of
the
umbrella
monitoring
rules
that
were
proposed
in
September
2002.
For
various
reasons,
EPA
also
has
determined
that
the
correct
interpretation
of
the
umbrella
monitoring
rules
is
that
they
do
not
establish
a
separate
regulatory
standard
or
basis
requiring
or
authorizing
the
review
and
enhancement
of
existing
monitoring
independent
of
such
review
and
enhancement
as
may
be
required
under
different
provisions
of
the
operating
permits
program
rules
that
specifically
set
forth
permit
content
requirements
for
monitoring.
Upon
reflection,
EPA
now
believes
that
the
plain
language
of
the
umbrella
monitoring
rules
indicates
that
they
constitute
"
umbrella
provisions"
for
monitoring
that
direct
permitting
authorities
to
include
monitoring
required
under
existing
statutory
and
regulatory
authorities
in
permits,
and
which
include
and
gain
meaning
from
the
more
4
specific
requirements
for
monitoring
set
forth
in
different
provisions
of
the
rules.
The
policy
considerations
described
in
this
preamble
as
relevant
to
EPA's
exercise
of
its
discretion
under
the
Act
also
inform
EPA's
interpretation
of
the
umbrella
monitoring
rules.
Thus,
the
effect
of
today's
action
will
be
that
the
umbrella
monitoring
rules
neither
require
nor
authorize
permitting
authorities
to
create
new
monitoring
in
operating
permits,

apart
from
including
in
permits
such
monitoring
as
may
be
required
under
the
periodic
monitoring
rules
and
under
applicable
requirements,
including
the
CAM
rule
where
it
applies.

EFFECTIVE
DATE:
This
final
rule
is
effective
on
[
insert
date
30
days
after
publication
in
the
Federal
Register].

ADDRESSES:
Docket.
Docket
No.
A­
93­
50
(
Electronic
Docket
No.
OAR­
2003­
0179),

containing
supporting
information
used
to
develop
the
proposed
and
final
rules,
is
available
for
public
inspection
and
copying
between
8:
00
a.
m.
and
4:
30
p.
m.,
Monday
through
Friday
(
except
government
holidays)
at
the
Air
and
Radiation
Docket
(
Air
Docket)
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West
Building,
Room
B102,
1301
Constitution
Avenue,
NW,
Washington,
D.
C.
20004.

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,
or
electronic
mail
at
herring.
jeff@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
5
A.
What
Are
the
Regulated
Entities?

Categories
and
entities
potentially
affected
by
this
action
include
facilities
currently
required
to
obtain
title
V
permits
under
State,
local,
tribal,
or
federal
operating
permits
programs,
and
State,
local,
and
tribal
governments
that
issue
such
permits
pursuant
to
approved
part
70
programs.

B.
How
Can
I
Get
Copies
of
this
Document
and
other
Related
Information?

1.
Docket.
The
EPA
has
established
an
official
public
docket
for
this
action
under
Electronic
Docket
ID
No.
OAR­
2003­
0179
(
Legacy
Docket
ID
No.
A­
90­
50).
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
confidential
business
information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Air
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West
Building,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC,
20004.
The
EPA
Docket
Center
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
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Air
Docket
is
(
202)
566­
1742.
A
reasonable
fee
may
be
charged
for
copying
docket
materials.

2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
"
Federal
Register"
listings
at
http://
www.
epa.
gov/
fedrgstr/.
6
An
electronic
version
of
a
portion
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
Interested
persons
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
"
search,"

then
key
in
the
appropriate
docket
identification
number.

Legacy
Docket
ID
No.
A­
90­
50
is
the
paper­
based
docket
that
is
physically
located
in
the
EPA
West
Building
in
Washington
D.
C.,
while
Electronic
Docket
(

edocket
ID
No.
OAR­
2003­
0179
is
an
electronic
docket
more
recently
created
for
internet
access
purposes
during
the
course
of
this
rulemaking
(
between
the
proposal
and
the
final
rule).
In
cases
where
the
new
e­
dockets
system
was
created
during
the
course
of
a
rulemaking,
the
EPA
docket
office
has
not
routinely
transferred
all
documents
from
the
relevant
conventional,
paper
dockets
to
the
e­
dockets,
potentially
creating
disparities
between
the
paper
and
e­
dockets.
The
e­
docket
and
the
legacy
dockets
for
this
rulemaking
contain
the
complete
supporting
materials
for
this
rulemaking,
however,
each
docket
is
not
necessarily
complete
on
its
own.
Due
to
this,
interested
persons
should
check
both
dockets
for
complete
access
to
all
supporting
materials.

C.
Where
Can
I
Obtain
Additional
Information?

In
addition
to
being
available
in
the
docket,
an
electronic
copy
of
today's
notice
is
also
available
on
the
World
Wide
Web
through
the
Technology
Transfer
Network
(
TTN).

Following
signature
by
the
EPA
Administrator,
a
copy
of
today's
notice
will
be
posted
on
the
TTN's
policy
and
guidance
page
for
newly
proposed
or
promulgated
rules
at
7
http://
www.
epa.
gov/
ttn/
oarpg.
The
TTN
provides
information
and
technology
exchange
in
various
areas
of
air
pollution
control.
If
more
information
regarding
the
TTN
is
needed,

call
the
TTN
HELP
line
at
(
919)
541­
5384.

D.
How
Is
this
Preamble
Organized?

The
information
presented
in
this
preamble
is
organized
as
follows:

I.
General
Information
A.
What
Are
the
Regulated
Entities?

B.
How
Can
I
Get
Copies
Of
this
Document
and
Other
Related
Information?

1.
Docket
2.
Electronic
Access
C.
Where
Can
I
Obtain
Additional
Information?

D.
How
Is
this
Preamble
Organized?

II.
Background
III.
What
Does
Today's
Action
Involve?

A.
Will
the
Regulatory
Text
of
the
Rules
Change
Under
Today's
Action?

B.
What
Is
the
Correct
Interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)?

C.
What
Related
Rulemaking
Actions
Are
Planned?

IV.
What
Is
the
Policy
Rationale
for
Today's
Action?

V.
What
Is
the
Legal
Basis
for
Today's
Action?

VI.
What
Comments
Were
Received
on
the
Proposal
and
what
Are
EPA's
Responses?

A.
Does
the
Rulemaking
Record
Support
Separate
Authority
for
Review
and
8
Enhancement
of
Monitoring
Under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)?

B.
May
New
Monitoring
Be
Established
in
Permits
Without
Further
Rulemaking?

C.
Was
the
Proposal
Inconsistent
with
the
Appalachian
Power
and
NRDC
Decisions?

D.
Does
§
70.1(
b)
Prohibit
Monitoring
Enhancement
in
Permits?

E.
How
Stringent
Was
Monitoring
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
in
the
Proposal?

F.
Does
New
Monitoring
in
Permits
Increase
the
Stringency
of
Existing
Standards?

G.
Did
the
Proposal
Require
Direct
Proof
of
Violations?

H.
Did
the
Proposal
Meet
All
Administrative
Rulemaking
Requirements?

VII.
What
other
Related
Actions
Are
Planned
Under
Today's
Approach?

VIII.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
Compliance
as
Amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
Of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.

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
Risks
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
9
Distribution,
or
Use
I.
National
Technology
Transfer
Advancement
Act
J.
Congressional
Review
Act
II.
Background
Two
provisions
of
EPA's
State
and
federal
operating
permits
program
regulations
require
that
title
V
permits
contain
monitoring
requirements.
The
"
periodic
monitoring"

rules,
40
CFR
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
title
V
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
[
§
70.6(
a)(
3)(
iii)
or
§
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
[
§
70.6(
a)(
3)(
i)(
B)
and
§
71.6(
a)(
3)(
i)(
B)].

The
"
umbrella
monitoring"
rules,
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
require
that
each
title
V
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."

On
September
17,
2002,
EPA
published
a
proposed
rule
(
67
FR
58561)
(
the
"
proposed
rule")
to
clarify
the
scope
of
the
monitoring
required
in
title
V
permits
issued
by
State,
local
and
tribal
permitting
authorities
or
by
EPA.
Specifically,
EPA
proposed
to
remove
the
italicized
prefatory
language
to
§
§
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,"
monitoring
10
"
sufficient
to
assure
compliance
with
the
terms
and
conditions
of
the
permit."
At
that
time,
EPA
proposed
to
clarify
the
interpretation
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)

established
a
separate
regulatory
standard
from
that
of
the
periodic
monitoring
rules.
The
EPA
believed
the
proposed
revisions
were
necessary
to
address
claims
of
confusion
on
the
part
of
some
source
owners
and
operators,
permitting
authorities
and
citizens
as
to
the
scope
of
the
title
V
monitoring
rules.
However,
as
discussed
below,
EPA
has
decided
not
to
adopt
the
proposed
revisions
based
on
EPA's
reasonable
interpretation
of
the
Act,
the
plain
language
and
structure
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
and
the
policy
considerations
discussed
in
this
preamble.

III.
What
Does
Today's
Action
Involve?

In
today's
final
action,
EPA
declines
to
adopt
the
proposed
revisions
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
instead
ratifies
the
regulatory
text
as
it
is
currently
worded.
The
EPA
also
announces
that
the
Agency
has
determined
that
notwithstanding
the
recitation
in
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
of
monitoring
as
a
permit
element,
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
that
they
do
not
provide
a
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
in
title
V
permits
independent
of
any
review
and
enhancement
as
may
be
required
under
the
periodic
monitoring
rules,
the
CAM
rule
(
40
CFR
part
64)(
62
FR
54900,
October
22,
1997)
where
it
applies,
and
other
applicable
requirements
under
the
Act,
including,
but
not
limited
to,

new
source
performance
standards
(
NSPS),
40
CFR
part
60,
national
emissions
standards
for
hazardous
air
pollutants
(
NESHAP),
40
CFR
part
61,
acid
rain
program
rules,
40
CFR
parts
72
through
78,
and
SIP,
tribal
implementation
plan
(
TIP)
and
federal
implementation
11
plan
(
FIP)
rules
approved
by
EPA
under
title
I
of
the
Act.
Finally,
EPA
announces
plans
to
address
monitoring
for
purposes
of
title
V
in
three
separate
actions.

A.
Will
the
Regulatory
Text
of
the
Rules
Change
Under
Today's
Action?

The
EPA
has
decided
not
to
adopt
the
revisions
to
the
regulatory
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
which
we
proposed
in
September
2002.
Instead,
we
are
ratifying
the
regulatory
text
of
those
rules
as
it
is
currently
worded.
Under
today's
final
action,
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
will
continue
to
require,
in
relevant
part,

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."
Today's
final
action
does
not
change
any
other
regulatory
text,
as
no
other
changes
have
been
proposed.

B.
What
Is
the
Correct
Interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)?

Notwithstanding
the
recitation
in
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
of
monitoring
as
a
permit
element,
EPA
has
determined
that
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
that
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).

Thus,
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
require
that
title
V
permits
contain
the
following
types
of
monitoring:
(
1)
monitoring
required
by
"
applicable
requirements"
under
the
Act
as
that
term
is
defined
in
§
70.2,
including,
but
not
limited
to,
monitoring
required
under
the
CAM
rule,
where
it
applies,
monitoring
required
under
federal
rules
such
as
NSPS,

NESHAP,
maximum
achievable
control
technology
(
MACT)
standards,
40
CFR
part
63,
12
acid
rain
rules,
and
SIP,
TIP
and
FIP
rules;
and
(
2)
such
monitoring
as
may
be
required
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
See
Appalachian
Power
Co.
v.
EPA,
208
F.
3d
1015
(
D.
C.
Cir.
2000)
(
Appalachian
Power).
Thus,
for
monitoring,
§
§
70.6(
c)(
1)

and
71.6(
c)(
1)
constitute
"
umbrella
provisions"
that
direct
permitting
authorities
to
include
monitoring
required
under
existing
statutory
or
regulatory
authorities
in
title
V
permits.
Based
on
EPA's
interpretation
of
the
Act,
the
plain
language
and
structure
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
the
policy
considerations
described
in
section
IV
of
this
preamble,
EPA
has
determined
that
where
the
periodic
monitoring
rules
do
not
apply,
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
do
not
require
or
authorize
a
new
and
independent
type
of
monitoring
in
permits
in
order
for
the
permits
to
contain
monitoring
to
assure
compliance
as
required
by
the
Act.

C.
What
Related
Rulemaking
Actions
Are
Planned?

Today's
action
is
the
first
in
a
four­
step
strategy
for
improving
existing
monitoring
where
necessary
through
rulemaking
actions
while
reducing
resource­
intensive,
case­

bycase
monitoring
reviews
and
"
gap­
filling"
in
title
V
permits.
The
EPA
plans
to
undertake
three
related
actions
in
the
near
future.

First,
EPA
plans
to
encourage
States
to
improve
possibly
inadequate
monitoring
in
certain
SIP
rules.
Specifically,
EPA
plans
to
address
such
monitoring
in
guidance
to
be
developed
in
connection
with
an
upcoming
rulemaking
concerning
the
implementation
of
the
NAAQS
for
fine
particulate
matter
(
particulate
matter
with
an
aerodynamic
diameter
of
less
than
2.5
micrometers,
or
PM
2.5).
The
primary
purpose
of
the
proposed
PM
2.5
implementation
rule
will
be
to
describe
the
requirements
that
States
and
tribes
have
to
13
meet
in
order
to
implement
the
PM
2.5
NAAQS.
Because
opacity
and
particulate
monitoring
are
related
to
compliance
with
particulate
matter
standards,
one
part
of
this
proposal
will
address
EPA's
plans
to
develop
guidance
on
how
States
can
reduce
PM
2.5
emissions
by
improving
source
monitoring
related
to
particulate
matter
emission
limits.

This
may
include
increasing
the
frequency
of
existing
opacity
monitoring,
adding
monitoring
for
parameters
of
a
control
device,
installing
continuous
particulate
emissions
monitoring,
or
a
combination
of
the
above.

Second,
EPA
plans
to
identify
and
consider
improving
possibly
inadequate
monitoring
in
certain
federal
rules
or
monitoring
in
SIP
rules
not
addressed
in
connection
with
the
PM
2.5
implementation
guidance
or
rulemaking
over
a
longer
time
frame.
To
initiate
this
process,
we
intend
to
publish
an
ANPR
requesting
comment
on
what
inadequate
monitoring
may
exist
in
federal
applicable
requirements
and
seeking
suggestions
as
to
the
ways
in
which
inadequate
monitoring
in
such
rules
could
be
improved.
We
further
intend
to
request
comment
on
inadequate
monitoring
that
may
exist
in
other
rules,
such
as
SIP
rules
not
addressed
in
the
PM
2.5
implementation
rule.
Implementation
of
this
second
step
should
substantially
strengthen
our
efforts
to
assure
compliance
with
applicable
standards.
Comments
received
on
the
ANPR
will
inform
EPA's
decision
as
to
what
steps
to
take
next.
Next
steps
may
include
national
rulemakings
to
revise
federal
rules
such
as
NSPS
or
NESHAP,
or
issuance
of
guidance
or
SIP
calls
directing
States
to
correct
deficient
monitoring
in
certain
SIP
rules.

Third,
EPA
plans
to
publish
a
separate
proposed
rule
to
address
what
monitoring
constitutes
"
periodic"
monitoring
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
As
part
14
1"
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.
of
this
separate
proposed
rule,
we
also
intend
to
address
what
types
of
monitoring
should
be
created
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
Many
commenters
on
the
proposed
rule
raised
concerns
over
a
lack
of
definitive
guidance
on
this
question,
primarily
due
to
the
fact
that
EPA
has
not
issued
any
such
guidance
since
the
Appalachian
Power
court
set
aside
the
Agency's
1998
"
Periodic
Monitoring
Guidance."
1
IV.
What
Is
the
Policy
Rationale
for
Today's
Action?

Today's
action
explains
the
role
that
the
title
V
permitting
process
plays
in
ensuring
that
the
statutory
monitoring
requirements
are
met.
Several
policy
considerations
 
many
of
which
were
raised
in
comments
on
the
proposed
rule
 
motivate
our
decision
to
pursue
an
approach
to
title
V
monitoring
that
will
achieve
necessary
improvements
in
the
monitoring
required
of
title
V
sources
primarily
through
national
rulemakings
or
guidance
for
States
to
revise
their
SIP
rules,
rather
than
through.
We
believe
this
approach
will
achieve
a
better
balance
of
responsibilities
and
resource
burdens
between
the
States
and
EPA,
than
by
case­
by­
case
monitoring
reviews
by
the
permitting
authorities'
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).

First,
today's
approach
will
better
balance
the
responsibilities
of
States
and
other
permitting
authorities
and
EPA
to
improve
monitoring
where
necessary
to
ensure
that
the
Act's
monitoring
requirements
are
met.
Under
the
interpretation
in
the
proposed
rule,

permitting
authorities
would
perform
case­
by­
case
monitoring
reviews
of
individual
title
V
permits
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
which
in
turn
would
place
many
significant
15
burdens
on
State,
local,
and
tribal
permitting
authorities
charged
with
implementing
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
EPA
and
permitting
authorities
have
some
experience
with
such
an
approach.
For
each
draft
title
V
permit,
permitting
authorities
performed
such
monitoring
reviews
with
respect
to
virtually
every
permit
term
or
condition
and
determined,
generally
without
any
definitive,
national
EPA
guidance,
whether
the
existing
monitoring
was
sufficient
to
assure
compliance
with
such
terms
and
conditions.
The
complex
industrial
sources
and
other
sources
subject
to
title
V
are
subject
to
numerous
applicable
requirements
and
their
draft
permits
contain
numerous
terms
and
conditions,

which
means
that
such
reviews
are
time­
consuming.
In
addition,
the
reviews
demand
permit
writers
with
highly
technical
expertise.
Where
permit
writers
determined
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
applied
because
existing
monitoring
would
not
assure
compliance,
permit
writers
also
determined
what
monitoring
to
include
in
permits
to
assure
compliance
with
the
permits'
terms
and
conditions.
Thus,
these
States
and
other
permitting
authorities
found
themselves
in
the
awkward
position
of
reviewing
existing
monitoring
for
sufficiency
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
before
EPA
clearly
indicated
what
monitoring
was
insufficient
and
then
creating
new
monitoring
in
permits
under
those
provisions
before
EPA
explained
what
types
of
monitoring
would
satisfy
the
statutory
and
regulatory
requirements.
Over
the
years,
some
permitting
authorities
have
attributed
delays
in
permit
issuance
to
their
efforts
to
develop
monitoring
for
permits
on
a
case­

bycase
basis.

These
concerns
are
reflected
in
the
comments
received
on
the
proposed
rule
from
State
and
local
permitting
authorities.
(
See
more
detailed
EPA
responses
to
all
significant
16
comments
raised
on
the
proposal
below,
and
in
a
separate
document
placed
in
the
docket.)

Two
representatives
of
State
and
local
permitting
authorities
commented
on
the
proposal,

and
that
they
both
disagreed
with
the
proposed
rule's
overall
approach
for
monitoring,
and
they
both
noted
either
significant
concerns
or
burdens
that
they
perceived
in
implementing
it.
One
cited
the
burdens
of
conducting
sufficiency
reviews
and
adding
new
monitoring
to
permits
in
more
cases
than
they
thought
were
appropriate
or
were
required
by
the
Act.

The
commenter
also
indicated
that
such
monitoring
would
likely
result
in
more
arbitrary
and
less
consistent
monitoring
from
permit
to
permit
and
make
permit
issuance
more
difficult.
Another
State
commenter
did
not
understand
specifically
what
States
would
be
required
to
do
to
implement
the
proposal,
if
it
were
to
be
adopted
as
a
final
rule.
Neither
of
the
State
or
local
commenters
filed
comments
that
could
be
interpreted
as
adverse
to
the
approach
of
today's
final
rule.
In
addition,
industryother
commenters
indicated
that
the
proposed
rule's
approach
would
lead
to
increased
burdens
on
States.

Thus,
we
now
are
convinced
that
requiring
States
and
other
permitting
authorities
to
assess
the
adequacy
of
all
existing
monitoring,
and,
as
necessary,
to
upgrade
monitoring
through
the
title
V
permitting
process
would
place
a
significant,
unmanageable
and
unnecessary
burden
on
those
permitting
authorities.

Similarly,
we
are
convinced
that
requiring
sufficiency
reviews
under
§
§
70.6(
c)(
1)

and
71.6(
c)(
1)
places
undue
burdens
on
title
V
sources.
All
industryMany
commenters
disagreed
with
the
proposed
rule's
approach
to
monitoring
and
cited
numerous
examples
of
how
it
would
lead
to
increased
burdens
not
only
on
States
but
also
on
sources.
For
instance,
commenters
claimed
that
it
would
delay
permit
issuance
and
renewals,
represent
17
an
inefficient
use
of
State
resources,
and
promote
"
forum
shopping"
by
sources,
resulting
in
inequities
among
similarly­
situated
sources
in
different
jurisdictions
or
even
within
the
same
jurisdiction.

Furthermore,
under
the
proposal,
the
State
permit
writers
were
given
no
guidance
as
to
how
to
set
these
monitoring
requirements,
as
commenters
pointed
out.
Using
rulemaking
to
revise
monitoring
requirements
will
assure
that
the
new
monitoring
requirements
are
adopted
in
the
same
manner
as
the
originally
promulgated
standards.

That
original
promulgation
included
a
determination
that
the
standards
were
achievable
assuming
the
specified
control
technologies.
Commenters
expressed
concern
that
the
proposed
rule
would
illegally
increase
the
stringency
of
underlying
emission
standards
and
limitations
because
it
would
require
new
averaging
periods
or
change
other
compliance
methods
when
added
to
the
permit.
Similar
issues
were
raised
in
Appalachian
Power.

Ratifying
the
current
regulatory
language
eliminates
any
possible
problem
in
this
regard
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).

In
addition
to
reducing
burdens
on
title
V
permitting
authorities
and
sources,

today's
action
offers
several
other
advantages
over
the
proposed
rule's
approach.
We
believe
it
is
a
far
better
and
more
efficient
approach
from
a
resource
standpoint
to
focus
primarily
on
reviewing
the
adequacy
of
existing
monitoring
requirements
on
a
programmatic
basis
and
to
accomplish
needed
upgrades
through
federal,
State,
or
local
rulemaking,
and
then
to
use
the
permitting
process
to
correct
any
remaining
inadequacies
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
Programmatic
"
fixes"
to
monitoring
in
applicable
requirements
made
through
national
or
State
rulemakings
will
address
potential
18
inadequacies
in
existing
monitoring
requirements
in
the
first
instance.
Thus,
there
will
be
no
need
to
resort
to
more
resource­
intensive,
case­
by­
case
sufficiency
reviews
to
supplement
existing
monitoring
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
during
permit
proceedings.

The
final
rule
also
is
likely
to
result
in
greater
consistency
in
monitoring
requirements
included
in
permits,
both
within
States
and
nationally.
When
inadequate
monitoring
is
improved
through
rulemaking
at
the
national
or
State
level,
the
improved
monitoring
can
be
incorporated
into
title
V
permits
with
little,
if
any,
source­
specific
tailoring,
thereby
eliminating
some
of
the
variations
in
monitoring
determinations
inherent
in
case­
by­
case
reviews.
Under
the
proposed
rule's
approach,
such
variations
may
have
resulted
from
permitting
authorities'
different
policies
on
what
monitoring
to
add
to
permits,
from
variations
in
engineering
judgment
among
permit
writers,
and
from
complex
source­
specific
factors.
More
consistent
monitoring
requirements
in
permits
nationally
should
help
to
eliminate
some
of
the
concern
over
forum
shopping
pointed
out
by
the
industry
commenters,
as
well
as
concerns
about
potential
inequities
in
monitoring
amongst
similarly­
situated
sources
in
different
jurisdictions.

In
addition,
we
expect
that
today's
approach
is
likely
to
result
in
broader
public
input
into
monitoring
decisions
than
is
possible
during
individual
permit
proceedings.
This
is
so
because
formal
rulemaking
procedures
involve
an
opportunity
for
public
comment
and
a
hearing
that
may
attract
a
larger
national
or
State
audience
of
individuals
more
interested
in
consistent
outcomes
and
perhaps
more
knowledgeable
about
technical
issues
specific
to
the
source
categories
or
applicable
requirements
that
are
the
subject
of
the
19
rulemaking.
Moreover,
the
final
rules
are
more
likely
than
individual
permit
proceedings
to
result
in
better
consideration
of
potential
economic
impacts.
Statutory
or
regulatory
provisions
or
Executive
Orders
requiring
detailed
consideration
of
economic
impacts
or
other
burdens
imposed
by
various
types
of
monitoring
may
apply
to
federal
or
State
rulemakings;
such
consideration
is
not
required
in
individual
permit
proceedings.
Thus,

compared
to
the
proposed
rule's
approach,
this
approach
has
the
added
benefit
of
providing
a
greater
degree
of
clarity
and
the
opportunity
for
a
wider
interested
public
to
influence
decisions
concerning
the
adequacy
of
monitoring
and
efforts
to
accomplish
upgrades.

Finally,
commenters
expressed
concern
about
the
statutory
underpinnings
of
sufficiency
monitoring
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
along
the
lines
of
the
D.
C.

Circuit's
observation
in
Appalachian
Power
that
the
approach
to
sufficiency
monitoring
described
in
the
Periodic
Monitoring
Guidance
"
raises
serious
issues,
not
the
least
of
which
is
whether
EPA
possesses
the
authority
it
now
purports
to
delegate."
208
F.
3d
at
1026.
Adopting
this
final
rule
will
eliminate
possible
concern
in
this
regard.

For
all
of
these
reasons,
we
believe
today's
approach
will
better
balance
the
roles
and
responsibilities
of
States
and
other
permitting
authorities,
on
the
one
hand,
and
EPA,

on
the
other,
to
improve
the
monitoring
required
of
title
V
sources
where
necessary
to
ensure
that
the
Act's
title
V
monitoring
requirements
are
met.

V.
What
Is
the
Legal
Basis
for
Today's
Action?

The
Act
provides
EPA
with
broad
discretion
to
decide
how
to
implement
the
title
V
monitoring
requirements.
In
the
past,
EPA
has
exercised
that
discretion
in
part
by
20
requiring
permitting
authorities
to
conduct
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and,
where
necessary
to
assure
compliance,
to
add
monitoring
pursuant
to
those
provisions
prior
to
issuing,
renewing,
reopening,
or
revising
title
V
operating
permits.
The
EPA
also
has
established
monitoring
requirements
under
national
rules,
such
as
the
CAM
rule
and
the
continuous
emission
monitoring
rule
under
the
acid
rain
program
(
40
CFR
part
75).
Based
on
comments
received
on
the
proposed
rule
and
as
a
matter
of
policy
(
see
section
IV
of
this
preamble),
EPA
now
believes
that
it
is
not
appropriate
to
exercise
our
discretion
under
the
statute
to
require
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
The
EPA
believes
that
improving
the
monitoring
required
of
title
V
sources
by
conducting
rulemakings
to
revise
federal
standards
that
contain
inadequate
monitoring
and/
or
by
encouraging
States
to
revise
SIP
rules
that
contain
inadequate
monitoring
will
better
balance
the
responsibilities
of
EPA
and
States
and
other
permitting
authorities
and
will
result
in
more
equitable
and
more
efficient
monitoring
decisions.

Accordingly,
EPA
has
decided
not
to
adopt
the
proposed
rule,
which
would
have
removed
the
prefatory
phrase,
"[
c]
onsistent
with
paragraph
(
a)(
3)
of
this
section,"
from
the
regulatory
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
See
67
FR
58561.
Rather,
EPA
has
decided
to
leave
the
regulatory
text
as
it
stands
and
to
issue
what
EPA
now
believes
to
be
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
Specifically,
EPA
has
determined
that
notwithstanding
the
recitation
in
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
of
monitoring
as
a
permit
element,
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)

is
that
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
21
2For
instance,
each
permit
must
contain,
with
respect
to
monitoring:
(
1)
"[
a]
ll
monitoring
and
analysis
procedures
or
test
methods
required
under
applicable
monitoring
and
testing
requirements,
including
[
the
CAM
rule]
and
any
other
procedures
and
methods
that
may
be
promulgated
pursuant
to
sections
114(
a)(
3)
and
504(
b)
of
the
Act,"
see
§
§
70.6(
a)(
3)(
i)(
A)
and
71.6(
a)(
3)(
i)(
A);
and
(
2)
"[
a]
s
necessary,
requirements
concerning
the
use,
maintenance,
and,
where
appropriate,
installation
of
monitoring
equipment
or
methods."
§
§
70.6(
a)(
3)(
i)(
C)
and
71.6(
a)(
3)(
i)(
C).
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).

Various
factors
have
prompted
EPA's
decision
regarding
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
Significantly,
upon
reflection,
EPA
believes
that
the
plain
language
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
which
begins
with
the
phrase
"[
c]
onsistent
with"
§
§
70.6(
a)(
3)

and
71.6(
a)(
3),
indicates
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
serve
as
"
umbrella
provisions"

for
monitoring
which
include
and
gain
meaning
from
the
more
specific
monitoring
requirements
in
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
Both
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
provide
only
that
permits
contain
"
monitoring
.
.
.
requirements
sufficient
to
assure
compliance
with
the
terms
and
conditions
of
the
permit."
Read
in
isolation,
this
general
language
does
not
provide
any
indication
of
what
type
or
frequency
of
monitoring
is
required.
Yet,
for
monitoring,
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
take
on
practical
meaning
when
they
are
read
together
with
the
more
detailed
periodic
monitoring
rules,
which
specify
that
periodic
monitoring
must
be
"
sufficient
to
yield
reliable
data
from
the
relevant
time
period
that
are
representative
of
the
source's
compliance
with
the
permit,"
or
with
other
provisions
of
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
2
Thus,
the
plain
language
and
structure
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
the
periodic
monitoring
rules
show
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
are
correctly
interpreted
on
their
face
as
umbrella
provisions.
22
3Section
114(
a)(
3)
of
the
Act
provides
that
"[
t]
he
Administrator
shall
in
the
case
of
any
person
which
is
the
owner
or
operator
of
a
major
stationary
source,
and
may,
in
the
case
of
any
other
person,
require
enhanced
monitoring
and
submission
of
compliance
certifications."
42
U.
S.
C.
§
7414(
a)(
3).
In
addition,
the
policy
considerations
discussed
in
section
IV
of
this
preamble
support
EPA's
determination
that
today's
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
the
correct
one.
In
sum,
today's
approach
will
better
balance
the
responsibilities
of
States
and
other
permitting
authorities
and
EPA
to
improve
monitoring
where
necessary
to
ensure
that
the
Act's
monitoring
requirements
are
met.
Compared
to
the
proposed
rule's
approach,
today's
approach
also
will
reduce
burdens
on
title
V
sources,
be
more
efficient
from
a
resource
standpoint,
result
in
more
equitable
monitoring
decisions,
and
allow
for
wider,
more
expert
public
input
into
monitoring
decisions.

Today's
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
consistent
with
EPA's
authority
under
the
Act.
In
title
V,
Congress
granted
EPA
broad
discretion
to
decide
how
to
implement
the
title
V
monitoring
requirements,
as
well
as
the
"
enhanced
monitoring"

requirement
of
section
114(
a)(
3)
of
the
Act.
3
Two
provisions
of
title
V
specifically
address
rulemaking
concerning
monitoring.
First,
section
502(
b)(
2)
of
the
Act
requires
EPA
to
promulgate
regulations
establishing
minimum
requirements
for
operating
permit
programs,
including
"[
m]
onitoring
and
reporting
requirements."
42
U.
S.
C.
§
7661a(
b)(
2).

Second,
section
504(
b)
authorizes
EPA
to
prescribe
"
procedures
and
methods"
for
monitoring
"
by
rule."
42
U.
S.
C.
§
7661c(
b).
Section
504(
b)
provides:
"
The
Administrator
may
by
rule
prescribe
procedures
and
methods
for
determining
compliance
and
for
monitoring
and
analysis
of
pollutants
regulated
under
this
Act,
but
continuous
23
emissions
monitoring
need
not
be
required
if
alternative
methods
are
available
that
provide
sufficiently
reliable
and
timely
information
for
determining
compliance.
.
.
."
(
Emphasis
added.)
Id.

Other
provisions
of
title
V
refer
to
the
monitoring
required
in
individual
operating
permits.
Section
504(
c)
of
the
Act,
which
contains
the
most
detailed
statutory
language
concerning
monitoring,
requires
that
"[
e]
ach
[
title
V
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(
c)

further
specifies
that
"[
s]
uch
monitoring
and
reporting
requirements
shall
conform
to
any
applicable
regulation
under
[
section
504(
b)].
.
.
."
Id.
Section
504(
a)
more
generally
requires
that
"[
e]
ach
[
title
V
permit]
shall
include
enforceable
emission
limitations
and
standards,
.
.
.
and
such
other
conditions
as
are
necessary
to
assure
compliance
with
applicable
requirements
of
this
Act,
including
the
requirements
of
the
applicable
implementation
plan."
42
U.
S.
C.
§
7661c(
a).

Thus,
title
V
clearly
authorizes
the
Agency
to
require
improvements
to
the
existing
monitoring
required
by
applicable
requirements
in
at
least
two
ways.
Under
the
statute,

the
Agency
may
require
case­
by­
case
monitoring
reviews
as
described
in
the
proposed
rule.
Alternatively,
the
Agency
may
achieve
any
improvements
to
monitoring
through
federal
or
State
rulemakings
to
amend
the
monitoring
provisions
of
applicable
requirements
themselves;
then
permitting
authorities
can
simply
incorporate
the
amended
monitoring
requirements
into
title
V
permits
without
engaging
in
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
on
a
permit­
specific
basis.
The
EPA
believes
24
that
the
latter
approach,
while
a
departure
from
prior
practice,
correctly
reflects
the
plain
language
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
is
responsive
to
the
majority
of
public
comments
received
on
the
proposed
rule,
and
gives
effect
to
the
policy
considerations
discussed
in
this
preamble.
Thus,
we
are
exercising
our
discretion
under
the
Act
to
no
longer
require
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
instead
to
proceed
with
related
rulemaking
actions
to
address
monitoring
in
applicable
requirements.

The
four­
step
approach
outlined
today
will
ensure
that
the
Act's
monitoring
requirements
will
be
met.
First,
our
new
emphasis
on
establishing
monitoring
requirements
through
rulemaking
gives
full
effect
to
section
504(
b)
of
the
Act,
which
provides
that
"[
t]
he
Administrator
may
by
rule
prescribe
procedures
and
methods
for
determining
compliance
and
for
monitoring
and
analysis
of
pollutants
.
.
."
42
U.
S.
C.
§
7661c(
b)
(
emphasis
added).
Today's
approach
also
ensures
that
section
504(
c)'
s
command
that
each
title
V
permit
"
set
forth
.
.
.
monitoring
.
.
.
to
assure
compliance
with
the
permit
terms
and
conditions"
will
be
satisfied
through
the
combination
of
EPA
and,
as
necessary,
State
rulemakings
to
address
monitoring,
and
the
addition
to
permits
of
such
monitoring
as
may
be
required
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
See
42
U.
S.
C.
§
7661c(
c).
Satisfying
the
specific
monitoring
requirements
of
section
504(
c)
will
assure
that
the
more
general
requirements
of
section
504(
a)
are
satisfied
as
to
monitoring.

The
EPA
anticipates
that
some
existing
monitoring
required
under
applicable
requirements
could
be
improved
and
will
be
addressed
in
connection
with
both
the
upcoming
PM
2.5
implementation
rulemaking
and
the
ANPR
process
described
above.

The
EPA
also
plans
to
address
the
periodic
monitoring
rules
in
a
separate
rulemaking.
25
Nevertheless,
EPA
believes
the
four­
step
strategy
outlined
today
is
adequatewell
designed
to
assure
that
for
purposes
of
title
V,
permits
will
contain
monitoring
to
assure
compliance.
The
statutory
monitoring
provisions
 
particularly,
section
504(
c),
which
specifically
requires
that
monitoring
contained
in
permits
to
assure
compliance
"
shall
conform
to
any
applicable
regulation
under
[
section
504(
b)]"
 
clearly
contemplates
that
monitoring
in
permits
must
reflect
current
regulations.
Because
monitoring
in
permits
must
conform
to
monitoring
in
regulations,
it
is
always
the
case
that
when
the
Agency
embarks
on
a
section
504(
b)
rulemaking
to
revise
monitoring
requirements,
there
is
a
period
in
which
monitoring
is
not
necessarily
as
good
as
it
will
be
upon
completion
and
implementation
of
the
pending
rulemaking.
It
follows
that
the
same
is
true
of
rulemakings
to
revise
monitoring
required
by
applicable
requirements.

VI.
What
Comments
Were
Received
on
the
Proposed
Rule
and
what
Are
EPA's
Responses?

This
section
of
the
preamble
provides
EPA's
responses
to
significant
issues
raised
by
commenters
on
the
proposed
rule.
A
more
comprehensive
document
addressing
these
and
other
issues
raised
by
commenters
will
be
placed
in
the
docket
prior
to
promulgation
of
today's
final
rule.

A.
Does
the
Rulemaking
Record
Support
Separate
Authority
for
Monitoring
Review
and
Enhancement
Under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)?

Many
industry
commenters
were
concerned
that
there
was
nothing
in
the
part
70,

part
71,
or
CAM
rulemaking
records
to
indicate
that
§
70.6(
c)(
1)
was
originally
intended
to
provide
a
separate
and
independent
regulatory
standard,
in
addition
to
the
periodic
26
monitoring
requirements
under
§
70.6(
a)(
3)(
i)(
B),
to
enhance
existing
monitoring
in
applicable
requirements,
or
enhance
periodic
monitoring
already
created
in
part
70
permits.
Instead,
the
commenters
stated,
the
preamble
to
the
original
part
70
final
rule
(
57
FR
32250,
July
21,
1992)
said
monitoring
enhancement
was
being
implemented
solely
through
§
70.6(
a)(
3),
and
that
permitting
authorities
may
enhance
existing
monitoring
only
where
an
applicable
requirement
failed
to
require
monitoring
that
was
periodic.

For
the
reasons
set
forth
in
sections
IV
and
V
of
this
preamble,
today's
action
makes
clear
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring,
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
Rather,
for
monitoring,
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
act
as
"
umbrella
provisions"
that
direct
permitting
authorities
to
include
in
title
V
permits
monitoring
required
under
existing
statutory
and
regulatory
authorities.
Thus,
we
are
not
adopting
the
proposed
revision
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
In
light
of
today's
action,
we
do
not
believe
it
is
necessary
to
address
the
referenced
rulemaking
records
as
they
may
relate
to
the
proposed
rule.

B.
May
New
Monitoring
Be
Established
in
Permits
Without
Further
Rulemaking?

Many
industry
commenters
opined
that
EPA
must
conduct
notice­
and­
comment
rulemaking,
consistent
with
section
504(
b)
of
the
Act,
to
upgrade
monitoring
in
applicable
requirements,
using
the
same
procedures
and
criteria
that
were
used
to
set
the
original
standards.
They
reasoned
that
upgrading
monitoring
on
a
permit­
by­
permit
basis
is
illegal
because
it
is
arbitrary
and
capricious
and
an
unlawful
delegation
of
regulatory
authority
27
not
explicitly
allowed
by
section
504(
b)
of
the
Act,
which
requires
new
monitoring
to
be
imposed
only
by
rule.
In
addition,
they
believe
adding
new
monitoring
under
§
70.6(
c)(
1)

would
revise
the
emission
standards
in
violation
of
section
307(
d)(
1)(
C)
of
the
Act,
which
requires
separate
rulemaking
to
revise
emission
standards.

In
response
to
these
comments,
EPA
notes
that
while
it
disagrees
with
this
view
of
the
Agency's
authority
under
the
Act,
it
appears
that
this
issue
need
not
be
addressed
in
this
action
because
EPA
has
committed
to
exercise
its
discretion
under
the
Act
to
pursue
rulemaking
to
improve
existing
monitoring
requirements,
as
opposed
to
case­
by­
case
monitoring
reviews
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
Nonetheless,
as
explained
elsewhere
in
this
preamble,
EPA
believes
that
the
Act
authorizes
it
to
meet
the
title
V
monitoring
requirements
by
requiring
permitting
authorities
to
add
monitoring
to
permits
on
a
case­
by­
case
basis
or
by
pursuing
rulemaking
to
improve
monitoring
requirements
in
federal
or
State
applicable
requirements.

As
for
the
comments
that
the
proposal
to
upgrade
monitoring
on
a
permit­

bypermit
basis
was
arbitrary
and
capricious,
was
an
unlawful
delegation
of
regulatory
authority
not
explicitly
allowed
by
section
504(
b)
of
the
Act,
and
would
revise
emission
standards
in
violation
of
section
307(
d)(
1)(
C)
of
the
Act,
EPA
defers
this
question
to
future
rulemakings
where
this
issue
may
occur.
EPA
believes
it
is
not
necessary
to
respond
to
these
comments
because
we
have
decided
not
to
adopt
the
proposed
changes
to
the
regulatory
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
we
have
determined
that
the
correct
interpretation
of
those
provisions
is
that
they
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
28
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
To
the
extent
the
comments
could
be
read
to
raise
the
concerns
listed
above
with
respect
to
the
upgrading
of
monitoring
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B),
EPA
notes
that
these
issues
were
beyond
the
scope
of
this
rulemaking
and
were
not
opened
for
comment.

C.
Was
the
Proposal
Inconsistent
with
the
Appalachian
Power
and
NRDC
Decisions?

Many
industry
commenters
believed
that
the
proposed
rule
was
inconsistent
with
the
Appalachian
Power
decision
because
they
believed
the
court
found
that
part
70
does
not
authorize
sufficiency
reviews
or
upgrading
of
existing
periodic
monitoring
and
that
rulemaking
is
required
to
amend
inadequate
monitoring
in
applicable
requirements.

Likewise,
many
industry
commenters
maintained
that
the
proposal
was
inconsistent
with
the
D.
C.
Circuit's
decision
in
Natural
Resources
Defense
Council
v.
EPA,
194
F.
3d
130
(
D.
C.
Cir.
1999)
(
NRDC),
because
they
said
that
the
court
did
not
opine
as
to
the
meaning
of
"
sufficient
monitoring,"
refer
to
two
separate
regulatory
standards
for
monitoring
(
periodic
monitoring
and
monitoring
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)),
or
suggest
that
part
70
requires
monitoring
beyond
CAM.

Although
EPA
does
not
agree
with
certain
aspects
of
these
commenters'

interpretations
of
those
decisions,
wWe
believe
it
is
not
necessary
to
respond
to
these
comments
because
EPA
is
not
adopting
the
proposed
revisions
to
the
text
of
§
§
70.6(
c)(
1)

and
71.6(
c)(
1),
and
because
EPA
has
determined
that
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
that
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
29
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).

D.
Does
§
70.1(
b)
Prohibit
Monitoring
Enhancement
in
Permits?

Several
industry
commenters
stated
that
they
believed
that
§
70.1(
b)
and
the
Act
do
not
allow
substantive
new
requirements,
such
as
monitoring,
to
be
added
to
permits.

Section
70.1(
b)
provides:
"
All
sources
subject
to
these
regulations
shall
have
a
permit
to
operate
that
assures
compliance
by
the
source
with
all
applicable
requirements.
While
title
V
does
not
impose
substantive
new
requirements,
it
does
require
.
.
.
that
certain
procedural
measures
be
adopted
especially
with
respect
to
compliance."

The
Act
expressly
requires
that
permits
contain
"
conditions
as
are
necessary
to
assure
compliance
with
applicable
requirements"
and
in
particular
"
monitoring
...
to
assure
compliance
with
the
permit
terms
and
conditions."
42
U.
S.
C.
§
§
7661c(
a),
7661c(
c);
see
42
U.
S.
C.
§
7661a(
b)(
5)(
A)
(
requiring
that
title
V
permitting
authorities
have
adequate
authority
to
"
issue
permits
and
assure
compliance
by
all
[
title
V
sources]
with
each
applicable
standard,
regulation
or
requirement
under
this
chapter").
The
court
in
Appalachian
Power
recognized
that
certain
monitoring
requirements
may
be
added
to
title
V
permits
in
some
circumstances,
see
208
F.
3d
at
1028,
and
the
plain
language
of
§
70.1(
b)
is
not
a
bar
to
the
addition
of
monitoring
to
permits
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
At
the
same
time,
EPA
has
determined
that
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
is
that
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
30
70.6(
a)(
3)
and
71.6(
a)(
3).
To
the
extent
the
comments
could
be
read
to
refer
to
the
addition
of
monitoring
to
permits
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B),
we
believe
it
is
not
necessary
to
respond,
because
that
issue
is
beyond
the
scope
of
this
rulemaking
and
was
not
opened
for
comment.

E.
How
Stringent
Was
Monitoring
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
in
the
Proposal?

Several
industry
commenters
were
concerned
that
the
proposed
revisions
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
would
result
in
the
elimination
of
the
Act's
requirement
for
"
reasonable
monitoring."
The
commenters
asserted
that
the
current
standard
for
monitoring
and
certifying
compliance
in
title
V
permits
is
"
a
reasonable
assurance
of
compliance,
quantified
by
the
exercise
of
good
and
accepted
science,
which
is
the
same
standard
used
by
CAM."
The
commenters
further
asserted
that
the
proposed
rule
would
change
the
monitoring
standard
to
an
"
absolute
assurance
of
compliance,"

which
could
only
be
achieved
by
stringent
and
expensive
direct
monitoring
techniques,

such
as
continuous
emissions
monitoring
systems
(
CEMS).

EPA
responds
by
noting
that
the
proposed
rule
made
no
statements
regarding
either
an
"
absolute
assurance
of
compliance"
or
a
"
reasonable
assurance
of
compliance"
as
the
standard
for
monitoring
and/
or
for
certifying
compliance
in
title
V
permits.
Nor
does
today's
final
rule.
The
proposed
rule
made
clear
that
its
scope
was
narrow.
The
EPA
stated
in
the
preamble:
"
This
proposed
rule
is
limited
to
the
removal
of
the
prefatory
phrase
"[
c]
onsistent
with
paragraph
(
a)(
3)
of
this
section"
from
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
in
order
to
clarify
the
scope
of
these
provisions.
This
proposed
rule
does
not
address
any
other
issues
related
to
title
V
monitoring,
such
as
the
type
of
monitoring
31
required
under
the
periodic
monitoring
provisions,
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B),
or
under
...
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)."
(
67
FR
58561,
58565,

September
17,
2002).
Consistent
with
this
statement,
EPA
does
not
address
the
issues
raised
by
the
commenters
here.
As
noted
in
sections
III.
C.
and
VII.
of
this
preamble,

however,
EPA
plans
to
address
criteria
for
use
in
determining
how
to
fill
a
"
gap"
in
a
separate
proposed
rule.

F.
Does
New
Monitoring
in
Permits
Increase
the
Stringency
of
Existing
Standards?

Many
industry
representatives
commentedcommenters
opined
that
the
proposed
rule
would
illegally
increase
the
stringency
of
underlying
emission
standards
and
limitations
because
it
would
require
new
averaging
periods
or
change
other
compliance
methods
when
added
to
the
permit.

Today's
action
will
not
require
or
authorize
the
addition
of
monitoring
to
permits
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
To
the
extent
the
comments
concern
the
addition
of
monitoring
to
permits
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B),
we
believe
it
is
not
necessary
to
respond
because
that
issue
is
beyond
the
scope
of
this
rulemaking
and
was
not
reopened
for
comment.
The
proposed
rule
was
limited
to
the
removal
of
the
prefatory
phrase
"[
c]
onsistent
with
paragraph
(
a)(
3)
of
this
section"
from
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
(
67
FR
58561,
58565,
September
17,
2002).

G.
Did
the
Proposed
Rule
Require
Direct
Proof
of
Violations?

Several
industry
representatives
commentedcommenters
stated
that
the
proposal
required
monitoring
data
derived
from
monitoring
conducted
pursuant
to
§
§
70.6(
c)(
1)

and
71.6(
c)(
1)
to
be
used
as
direct
proof
of
violations
in
enforcement
actions,
without
32
consideration
of
other
credible
evidence
or
the
totality
of
circumstances.

The
proposed
rule
was
limited
to
the
removal
of
the
prefatory
phrase
"[
c]
onsistent
with
paragraph
(
a)(
3)
of
this
section"
from
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
did
not
address
any
other
issues
related
to
title
V
monitoring
(
67
FR
58561,
58565,
September
17,
2002).
The
EPA
did
not
explicitly
or
implicitly
seek
comment
on
the
use
of
monitoring
data
in
enforcement
actions
or
the
consideration
of
other
credible
evidence.

Those
issues
were
resolved
in
the
credible
evidence
rule
(
62
FR
8313,
February
24,
1997),

and
they
were
not
reopened
in
this
rulemaking.
The
credible
evidence
rule
"[
did]
not
designate
any
particular
data
as
probative
of
a
violation
of
an
emission
standard"
but
rather
eliminated
language
in
40
CFR
parts
51,
52,
60
and
61
that
"
some
[
had]
construed
to
be
a
regulatory
bar
to
the
admission
of
non­
reference
test
data
[
such
as
other
monitoring
data]
to
prove
a
violation
of
an
emission
standard.
.
.
."
62
FR
at
8314.
Thus,

the
credible
evidence
rule
clarified
that
non­
reference
test
data
can
be
used
in
enforcement
actions
and
that
in
addition
to
reference
test
data,
"
other
material
information
that
indicates
that
an
emission
unit
has
experienced
deviations
.
.
.
or
may
otherwise
be
out
of
compliance
with
an
applicable
requirement
even
though
the
unit's
permit­
identified
data
indicates
compliance"
must
be
considered
in
compliance
certifications
under
title
V
of
the
Act.
62
FR
at
8320.
The
credible
evidence
rule
thereby
"
eliminate[
d]
any
potential
ambiguity
regarding
the
use
of
non­
reference
test
data
as
a
basis
for
[
t]
itle
V
compliance
certifications."
62
FR
at
8314;
see
42
U.
S.
C.
§
7413(
c)(
2).
The
September
17,
2002
proposed
rule
made
no
statements
inconsistent
with
the
credible
evidence
rule,
such
as
to
require
title
V
monitoring
data
to
be
considered
direct
proof
of
a
violation.
Similarly,
33
today's
final
rule
makes
no
statements
inconsistent
with
the
credible
evidence
rule,
nor
does
it
revise
part
70
or
part
71
to
that
effect.
Thus,
the
proposed
rule
did
not
reopen
these
issues
for
comment,
and
today's
action
does
not
change
the
credible
evidence
rule.

Finally,
to
the
extent
that
an
applicable
requirement
provides
that
certain
monitoring
methods
constitute
direct
evidence
of
violations,
title
V
rules
would
not
affect
that
requirement.

H.
Did
the
Proposed
Rule
Meet
All
Administrative
Rulemaking
Requirements?

Many
commenters
alleged
that
the
proposed
rule
was
not
a
proper
rulemaking
under
the
Act
or
the
Administrative
Procedure
Act
(
APA)
because
it
would
have
made
substantive
changes
to
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
without
adequate
notice,
explanation,

or
justification.
In
addition,
many
of
these
same
commenters
thought
the
requirements
of
the
Unfunded
Mandates
Reform
Act
(
UMRA),
the
Regulatory
Flexibility
Act
(
RFA),
and
the
Paperwork
Reduction
Act
(
PRA)
were
not
met,
and
that
the
Regulatory
Impact
Analysis
(
RIA)
and
the
Information
Collection
Request
(
ICR)
did
not
adequately
reflect
the
true
costs
of
the
proposal.

The
EPA
disagrees
that
the
proposed
rule
was
not
a
proper
rulemaking.
The
proposed
rule,
which
was
published
in
the
Federal
Register
for
a
30­
day
public
comment
period,
satisfied
the
rulemaking
requirements
of
the
APA
and
the
Act.
In
accordance
with
those
requirements,
the
reasons
for
the
proposed
revision
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
were
set
forth
in
the
preamble.
However,
in
that
EPA
has
decided
not
to
adopt
the
proposed
revision
and
has
determined
that
the
correct
interpretation
of
§
§
70.6(
c)(
1)

and
71.6(
c)(
1)
is
different
from
that
set
forth
in
the
proposed
rule,
EPA
believes
it
is
not
34
necessary
to
respond
to
the
commenters'
specific
assertions.
Section
VIII
of
this
preamble,
"
Statutory
and
Executive
Order
Reviews,"
describes
how
today's
final
rule
meets
the
administrative
requirements
that
the
commenters
identified.

VII.
What
Other
Related
Actions
Are
Planned
Under
Today's
Approach?

As
stated
above,
today's
action
is
the
first
step
in
a
four­
step
strategy
we
expect
will
result
in
a
better
approach
for
meeting
the
Act's
monitoring
requirements
than
that
reflected
in
the
proposed
rule.
In
the
near
future,
EPA
intends
to
address
additional
issues
related
to
title
V
monitoring
in
two
separate
proposed
rules
and
in
an
ANPR.
First,
EPA
plans
to
encourage
States
to
improve
inadequate
monitoring
in
certain
SIP
rules
in
guidance
to
be
developed
in
connection
with
an
upcoming
rule,
the
PM
2.5
implementation
rule,
which
primarily
will
address
the
implementation
of
the
NAAQS
for
PM
2.5.
We
intend
to
use
the
PM
2.5
implementation
rulemaking
as
a
vehicle
for
addressing
monitoring
in
certain
SIP
rules,
because
particulate
and
opacity
monitoring
are
related
to
compliance
with
particulate
matter
emission
limits.
Second,
over
a
longer
time
frame,
EPA
plans
to
identify
and
consider
improving
possibly
inadequate
monitoring
in
certain
federal
rules
or
in
SIP
rules
not
addressed
in
the
proposed
PM
2.5
implementation
rule.
In
the
near
term,
EPA
expects
to
initiate
this
process
by
publishing
an
ANPR
requesting
comments
to
identify
inadequate
monitoring
requirements
in
federal
applicable
requirements
and
State
SIP
rules
(
in
addition
to
those
requirements
addressed
in
the
proposed
PM
2.5
implementation
rule)
and
seeking
suggestions
as
to
the
ways
in
which
inadequate
monitoring
in
such
rules
could
be
improved.
Third,
in
a
separate
proposed
rule,
EPA
plans
to
address
two
issues
related
to
title
V
monitoring.
First,
EPA
plans
to
35
address
what
monitoring
constitutes
"
periodic"
monitoring
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).
The
EPA
also
plans
to
address
what
types
of
monitoring
should
be
created
under
§
§
70.6(
a)(
3)(
i)(
B)
and
71.6(
a)(
3)(
i)(
B).

VIII.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
we
must
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
rule
is
a
"
significant
regulatory
action"
because
it
raises
important
legal
and
policy
issues.
As
such,
this
rule
36
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.
In
section
V.
A.
of
the
proposal
(
see
67
FR
58565)
we
stated
that
we
would
perform
a
regulatory
impact
analysis
prior
to
promulgation
of
the
final
rule.
While
the
proposal
arguably
may
have
led
to
increased
economic
burdens,
the
final
rule
clearly
does
not
because
it
does
not
adopt
the
proposed
revisions
to
the
regulatory
text
and
it
announces
a
different
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
In
the
event
EPA
proposes
to
revise
monitoring
requirements
in
other
federal
rules
in
future
rulemaking
actions,
those
actions
will
consider
economic
impacts
as
necessary.
Thus,
the
final
rule
does
not
impose
any
burdens
and
therefore
a
detailed
economic
analysis
is
unnecessary.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
any
new
information
collection
burden.
It
does
not
adopt
the
proposed
revision
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
It
merely
states
that
notwithstanding
the
recitation
in
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
of
monitoring
as
a
permit
element,
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).

However,
the
information
collection
requirements
in
the
existing
regulations
(
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
EPA
ICR
number
1587.05
and
OMB
control
number
2060­
0243;
for
part
71,
the
EPA
ICR
number
is
1713.04
and
the
OMB
control
number
is
2060­
0336.
A
copy
of
the
OMB
approved
37
Information
Collection
Request
(
ICR)
may
be
obtained
from
Susan
Auby,
Collection
Strategies
Division;
U.
S.
Environmental
Protection
Agency
(
2822T);
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20004
or
by
calling
(
202)
566­
1672.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

C.
Regulatory
Flexibility
Act
(
RFA),
as
Amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.

The
RFA
generally
requires
an
Agency
to
conduct
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
requirements
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
not­
for­
profit
enterprises,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
that
meets
the
Small
Business
38
Administration
size
standards
for
small
businesses
found
in
13
CFR
121.201;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
country,
town,
school
district,
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.
We
determined
and
hereby
certify
this
final
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
The
originally
promulgated
part
70
and
part
71
rules
included
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),

and
this
final
rule
does
not
revise
that
text.
Moreover,
any
burdens
associated
with
the
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
announced
today
are
less
than
those
associated
with
the
interpretation
under
the
proposed
rule
and
previously
enunciated
by
the
Agency.
Thus,
today's
final
rule
adds
no
burdens
for
any
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
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,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
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.
39
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
leastcostly
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.

Today's
rule
contains
no
federal
mandates
under
the
regulatory
provisions
of
title
II
of
the
UMRA
for
State,
local,
or
tribal
governments
or
the
private
sector.
Today's
final
rule
imposes
no
enforceable
duty
on
any
State,
local
or
tribal
governments
or
the
private
sector.
Rather,
EPA
merely
states
that
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
as
may
be
required
under
the
periodic
monitoring
rules,
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
Therefore,
today's
action
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.

In
addition,
EPA
has
determined
that
this
final
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
Today
EPA
sets
out
the
correct
interpretation
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1),
which
is
that
they
do
40
not
require
or
authorize
title
V
permitting
authorities
 
including
any
small
governments
that
may
be
such
permitting
authorities
 
to
conduct
reviews
and
provide
enhancement
of
existing
monitoring
through
case­
by­
case
monitoring
reviews
of
individual
permits
under
§
§
70.6(
c)(
1)
and
71.6(
c)(
1).
Therefore,
today's
final
rule
is
not
subject
to
the
requirements
of
section
203
of
the
UMRA.

E.
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
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.
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
final
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
"
Consultation
and
Coordination
with
Indian
Tribal
41
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
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
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.

G.
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:
(
1)
is
determined
to
be
"
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
42
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
risks,
such
that
the
analysis
required
under
section
5­
501
of
the
Order
has
the
potential
to
influence
the
regulation.
This
final
rule
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
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
final
rule
is
not
a
"
significant
energy
action,"
as
defined
in
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.
This
action
merely
declines
to
adopt
the
proposed
revisions
to
the
text
of
§
§
70.6(
c)(
1)
and
71.6(
c)(
1)
and
states
that
these
provisions
do
not
establish
a
separate
regulatory
standard
or
basis
for
requiring
or
authorizing
review
and
enhancement
of
existing
monitoring
independent
of
any
review
and
enhancement
of
monitoring
as
may
be
required
under
§
§
70.6(
a)(
3)
and
71.6(
a)(
3).
Further,
we
have
concluded
that
this
rule
is
not
likely
to
have
any
adverse
energy
effects.

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
43
(
NTTAA),
Public
Law
No.
104­
113,
§
12(
d)
(
15
U.
S.
C.
§
272
note),
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
standards
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
final
rule
because
it
does
not
involve
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.

J.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
§
§
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
We
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
"
major
rule"
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.

This
action
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.
§
804(
2).
This
rule
will
be
effective
[
insert
date
30
days
after
publication
in
the
Federal
Register].
44
_________________________________

Dated:
January
__,
2004
________________________________________

Michael
O.
Leavitt,
Administrator
