6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2003-0179; FRL-______]

RIN 2060-AN74

Final Rule Interpreting the Scope of Certain Monitoring Requirements for
State and Federal Operating Permits Programs

AGENCY:  Environmental Protection Agency (EPA).

ACTION: Final rule; notice of final action on interpretation.

SUMMARY:  The purpose of this action is to finalize interpretation of
certain existing federal air program operating permits regulations.  We
proposed an interpretation of these rules on June 2, 2006, and requested
comment.  This final interpretation responds to the comments we
received.   The final interpretation is that the plain language and
structure of certain sections of the operating permits regulations do
not provide an independent basis for requiring or authorizing review and
enhancement of existing monitoring in title V permits.  We believe that
other rules establish a basis for such review and enhancement. Such
other rules include the monitoring requirements in certain other
sections of the federal operating permits regulations (i.e., periodic
monitoring), existing federal air pollution control standards, and
regulations implementing State requirements to meet the ambient air
quality standards.

	This final interpretation clarifies the permit content requirements
relative to the operating permits regulations and facilitates permit
issuance ensuring that air pollution sources can operate and comply with
requirements.

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

ADDRESSES:  The Electronic Docket ID No. EPA-HQ-OAR-2003-0179 contains
the comments received and regulatory background materials including the
Responses to Comments document.  All documents in the docket are listed
in the Federal Docket Management System (FDMS) index at   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov .  Although listed in
the index, some information is not publicly available (e.g., CBI) or
other information whose disclosure is restricted by statute.  Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically
at   HYPERLINK "http://www.regulations.gov"  www.regulations.gov  or in
hard copy at the EPA Docket Center, Public Reading Room, EPA West, Room
B102, 1301 Constitution Avenue, N.W., Washington, DC 20004.  The normal
business hours are 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays.  The telephone number is (202) 566-1742. 

NOTE:  The EPA Docket Center suffered damage due to flooding during the
last week of June 2006.  The Docket Center is continuing to operate;
however, during the cleanup, there will be temporary changes to Docket
Center telephone numbers, addresses, and hours of operation for people
who wish to visit the Public Reading Room to view documents.  Consult
EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA
website at www.epa.gov/epahome/dockets.htm for current information on
docket operations, locations and telephone numbers.  The Docket
Center’s mailing address for U.S. mail and the procedure for
submitting comments to   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  are not affected by the flooding and will remain
the same.

FOR FURTHER INFORMATION CONTACT:  Peter Westlin, Environmental
Protection Agency, Office of Air Quality Planning and Standards, Mail
code: D243-05, 109 TW Alexander Drive, Research Triangle Park, NC 27711;
telephone: (919) 541-1058; facsimile number (919) 541-1039; e-mail
address:   HYPERLINK "mailto:westlin.peter@epa.gov" 
westlin.peter@epa.gov .

SUPPLEMENTARY INFORMATION:

The information presented in this preamble is organized as follows:

I.  General Information

	A.  Does this Action Affect me?

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

	C.  What is the Procedure for Judicial Review?

II.  Background

III.  What revisions did we make as a result of comments received on the
proposed interpretation?

IV.  What are our responses to significant comments?

	A.  The proposed interpretation is correct in principle and consistent
with the plain language of the rule and the Clean Air Act.

	B.  The proposed interpretation is incorrect in principle and
inconsistent with the plain language of the rule and the Clean Air Act.

	C.  The effect of rule on previous permit decisions is not minimal and
resultant conditions should be removed from permits.

	D.  The authority for the permitting authorities to fill periodic
monitoring gaps should be reinstated.

	E.  Existing monitoring requirements in current rules are inadequate
and case-by-case review and revision are necessary.

	F.  The Agency should provide further clarification or regulatory
action on the effect of monitoring policies on enforcement.

V.  Statutory and Executive Order Reviews

	A.  Executive Order 12866: Regulatory Planning and Review

	B.  Paperwork Reduction Act

	C.  Regulatory Flexibility Act

	D.  Unfunded Mandates Reform Act

	E.  Executive Order 13132:  Federalism

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

	G.  Executive Order 13045:  Protection of Children from Environmental
Health Risks and Safety Risks

	H.  Executive Order 13211:  Actions that Significantly Affect Energy
Supply, Distribution, or Use

	I.  National Technology Transfer Advancement Act

	J.  Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	K.  Congressional Review Act 

I.  General Information

A.  Does this Action Affect Me?

	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 and part 71 programs.  If you have any questions regarding the
applicability of this action, consult the person listed in the preceding
FOR FURTHER INFORMATION CONTACT section.

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


In addition to access to information in the docket as described above,
you may also access electronic copies of the final rule and associated
information through the Technology Transfer Network (TTN) website.  The
TTN provides an information and technology exchange in various areas of
air pollution control.  Following the Administrator signing the notice,
we will post the final rule on the Office of Air and Radiation’s
Policy and Guidance page for newly proposed or promulgated rules at  
HYPERLINK "http://www.epa.gov/ttn/oarpg/"  www.epa.gov/ttn/oarpg/ .  You
may access this Federal Register document electronically through the EPA
Internet under the “Federal Register” listings at   HYPERLINK
"http://www.epa.gov/ttn/oarpg" www.epa.gov/ttn/oarpg .  If you need more
information regarding the TTN, call the TTN HELP line at (919) 541-5384.

	You may access an electronic version of a portion of the public docket
through the Federal eRulemaking Portal.  Interested persons may use the
electronic version of the public docket at   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  to: (1) submit or
view public comments, (2) access the index listing of the contents of
the official public docket, and (3) access those documents in the public
docket that are available electronically.  Once in the FDMS, use the
Search for Open Regulations field to key in the appropriate docket
identification number or document title at the Keyword window.

C.  What is the procedure for Judicial Review?  Under section 307(b)(1)
of the Clean Air Act (CAA), judicial review of the final rule is
available by filing a petition for review in the United States Court of
Appeals for the District of Columbia Circuit by [INSERT DATE 60 DAYS
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].  Only those
objections that were raised with reasonable specificity during the
period for public comment may be raised during judicial review.  Under
section 307(b)(2) of the CAA, the requirements that are the subject of
the final rule amendments may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.

	Section 307(d)(7)(B) of the CAA further provides that "[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review."  This section also
provides a mechanism for us to convene a proceeding for reconsideration,
"[i]f the person raising an objection can demonstrate to the EPA that it
was impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period for
public comment (but within the time specified for judicial review) and
if such objection is of central relevance to the outcome of the rule." 
Any person seeking to make such a demonstration to us should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW,
Washington, DC 20004.

II.  Background

On June 2, 2006 (71 FR 32006), we proposed an interpretation of 40 CFR
Parts 70 and 71 regarding certain elements of those rules relative to
requirements for monitoring to assure compliance with applicable
requirements.  In brief, the interpretation is that §§ 70.6(c)(1) and
71.6(c)(1) and the Clean Air Act requirements which they implement do
not authorize federal, State and local permitting authorities to assess
the sufficiency of or impose new monitoring requirements.  Instead,
these sections 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”

	Sections 70.6(a)(3)(i)(A) and 71.6(a)(3)(i)(A) require that permits
contain “[a]ll monitoring and analysis procedures or test methods
required under applicable monitoring and testing requirements, including
part 64 of this chapter and any other procedures and methods that may be
promulgated pursuant to sections 114(a)(3) and 504(b) of the Act.” 
The requirements in §§ 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B) continue
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)].”  

This final interpretation of the provisions of §§ 70.6(c)(1) and
71.6(c)(1) does not affect the provisions of §§ 70.6(a)(3)(i) and
71.6(a)(3)(i) that require the permitting authority to incorporate the
monitoring imposed by underlying applicable requirements into permits
and to add periodic monitoring during the permitting process when the
underlying requirements contains no periodic testing, specifies no
frequency, or requires only a one-time test.  The interpretation simply
clarifies that §§ 70.6(c)(1) and 71.6(c)(1) do not provide any
independent authority relative to assessing and revising existing
monitoring beyond what is required in §§ 70.6(a)(3)(i) and
71.6(a)(3)(i).

III.  What revisions did we make as a result of comments received on the
proposed interpretation?

	We made no regulatory revisions to parts 70 or 71 as a result to the
comments we received on the proposed interpretation.

IV.  What are our responses to significant comments?

	A.   The proposed interpretation is correct in principle and consistent
with the plain language of the rule and the Clean Air Act.

	Several commenters agreed that the interpretation is consistent with
section 504(b) of the Clean Air Act and noted that this is the only
provision of Title V that authorizes EPA to adopt new monitoring
requirements.  They further noted that this section of the Act empowers
EPA to do so only through rulemaking.  Other commenters wrote that the
1990 Clean Air Act Amendments and its legislative history are replete
with statements that Title V permits were not intended to provide an
opportunity for permit authorities to add substantive new requirements
for sources required to obtain operating permits.  EPA’s regulations
at 40 CFR § 70.1(b) of the 40 CFR part 70, Operating Permit Program,
repeat this principle clearly.  The commenter said that EPA used this
authority and the authority in section 114(a) for enhanced monitoring by
promulgating 40 CFR part 64, the Compliance Assurance Monitoring Rule,
in 1997.   Several commenters agreed with the conclusion with regards to
the Act and observed that, although the provisions in §§ 70.6(c)(1)
and 71.6(c)(1) require permitting officials to ensure that permits
contain certain elements related to compliance, like monitoring, the
prefatory language requiring that the elements be “[c]onsistent with
paragraph (a)(3)” makes clear that the substance of those elements is
determined under §§ 70.6(a)(3) and 71.6(a)(3).  

	Other commenters indicated that language stating that the required
monitoring is “sufficient to assure compliance” is not an
authorization for permitting officials to make their own determinations
regarding the sufficiency of monitoring in existing rules and permits,
but a recognition that the monitoring required under §§ 70.6(a)(3)(i)
and 71.6(a)(3)(i) -- i.e., existing monitoring as supplemented by
“periodic monitoring,” “enhanced monitoring” under CAA section
114(a)(3), and/or any other monitoring procedures established by rule
under section 504(b) -- are deemed sufficient to assure compliance.  One
commenter agrees with EPA that the Act does not compel EPA to provide
such authority to itself or States.  The commenter continues that
allowing EPA or State permitting agencies to change or add to monitoring
and compliance methods already established through State and federal
rulemakings and permitting proceedings is inconsistent with Title V and
with other substantive and procedural requirements of the Act.

	Response:  We generally agree with these commenters statements.  We
have 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 that may be required under other portions of the rules. 
Sections 70.6(c)(1) and 71.6(c)(1) constitute general provisions that
direct permitting authorities to include the monitoring required under
existing statutory and regulatory authorities in title V permits along
with other compliance related requirements.  These provisions do not
require or authorize a new or independent assessment of monitoring
requirements to assure compliance.  We disagree with the comment that
cites section 504(b) of the Clean Air Act as the only provision of title
V that authorizes EPA to adopt new monitoring requirements.  Congress
granted EPA broad discretion to decide how to implement the title V
monitoring requirements.  Two provisions of title V specifically address
rulemaking concerning monitoring (sections 502(b)(2) and 504(b)), and
other provisions of title V refer to the monitoring required in
individual permits (sections 504(c) and 504(a)).  As more fully
explained in the preamble for the proposed interpretation (71 FR at
32012), taken together these provisions clearly authorize the Agency to
require improvements to the existing monitoring required by applicable
requirements in at least two ways.  First, we may require case-by-case
monitoring reviews as described in the September 17, 2002 proposal. 
Alternatively, we may achieve any improvements in monitoring through
federal or State rulemakings that amend the monitoring provisions of
applicable requirements themselves.

	We have chosen the latter approach because we believe it is preferable
to an approach requiring case-by-case monitoring reviews conducted
without a structured process such as is included in part 64.  Consistent
with this approach, we agree with commenters that the plain language of 
§§ 70.6(c)(1) and 71.6(c)(1), which begin with the phrase
“[c]onsistent with” 70.6(a)(3) and 71.6(a)(3), indicates that the
(c)(1) provisions include and gain meaning from the more specific
monitoring requirements in the (a)(3) provisions.  Read in isolation,
the general language of §§ 70.6(c)(1) and 71.6(c)(1) does not provide
any indication of what type of frequency of monitoring is required. 
When 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,” these provisions take on
practical meaning.

	Finally, we also agree with commenters that the statute and our
regulations clearly support the interpretation that permitting
authorities are not required or authorized to assess or revise existing
monitoring requirements.  Rather, under the authority of part 70 or 71,
permitting authorities are to impose monitoring requirements only where
the underlying rule contains no monitoring of a periodic nature.

	B.    The proposed interpretation is incorrect in principle and is
inconsistent with the plain language of the rule and the Clean Air Act.

	Several commenters strongly opposed EPA’s proposal.  Two commenters
contended that by interpreting the Title V regulations neither to
require nor to authorize a permitting authority to include additional
monitoring in a Title V permit to supplement periodic, but inadequate,
monitoring obligations specified in an underlying applicable
requirement, EPA’s proposed regulatory interpretation would violate
the plain statutory language requiring that each Title V permit include
monitoring that is sufficient to “assure compliance” with each
applicable requirement.  One commenter indicated that EPA’s proposed
interpretation would violate the plain language of CAA section 504(c)
requiring that “[e]ach permit … shall set forth inspection, entry,
monitoring, compliance certification, and reporting requirements to
assure compliance with the permit terms and conditions.”  The
commenter continued that EPA’s proposed interpretation would violate
the plain language of CAA section 504(a) requiring that “[e]ach permit
issued under this subchapter shall include enforceable emission
limitations and standards, . . . a requirement that the permittee submit
to the permitting authority, no less often than every 6 months, the
results of any required monitoring, and such other conditions as are
necessary to assure compliance with applicable requirements of this
chapter.”  By using the word “shall” in section 504(a) and (c),
Congress clearly stated its intent for monitoring sufficient to
“assure compliance” with applicable requirements to be a mandatory
element of each Title V permit.

	This same commenter stated that EPA’s proposed interpretation would
violate Congress’s unambiguous directive that EPA ensure that a Title
V permitting authority possesses adequate authority to “issue permits
and assure compliance by all [Title V sources] with each applicable
standard, regulation or requirement under this chapter.” CAA section
502(b)(5)(A).  If a permitting authority is prohibited from requiring
additional monitoring in a source’s Title V permit when it determines
that existing monitoring is insufficient to assure compliance, the
commenter said that the permitting authority plainly cannot do what the
statute requires, namely, issue permits that “assure compliance”
with each applicable requirement.  Several commenters believed that
EPA’s proposed prohibition against supplemental monitoring would
prevent EPA from fulfilling its statutory duty to object to Title V
permits that lack monitoring sufficient to assure compliance, and would
eliminate the public’s right to petition EPA to fulfill that duty when
the agency fails to object on its own accord.  As EPA itself
acknowledged in a D.C. Circuit brief, “[i]n the absence of effective
monitoring, emissions limits can, in effect, be little more than paper
requirements. Without meaningful monitoring data, the public, government
agencies and facility officials are unable to fully assess a
facility’s compliance with the Clean Air Act.” 

	Commenters further stated that EPA’s interpretation violates CAA
section 114(a)(3), which requires “enhanced monitoring” by “any
person which is the owner or operator of a major stationary source.”  
The commenters noted that, in 1997, EPA implemented 40 CFR part 64,
compliance assurance monitoring or CAM, requiring enhanced monitoring
for a limited number of sources.  Commenters indicated that EPA noted
that even though the CAM rule did not cover all stationary sources, the
rule satisfied section 114(a)(3) because “all [T]itle V operating
permits… include monitoring to assure compliance with the permit…
includ[ing] all existing monitoring requirements as well as additional
monitoring (generally referred to as ‘periodic monitoring’) if
current requirements fail to specify appropriate monitoring.” 62 FR
54,900, 54,904 (Oct. 22, 1997).  Although the CAM rule alone did not
satisfy the section 114 requirement for enhanced monitoring at all major
sources, EPA argued that the CAM rule together with Title V requirements
for monitoring sufficient to assure compliance at all major sources did
satisfy section 114.  If the EPA interprets its Title V regulations such
that they neither require nor authorize permitting authorities to
enhance existing monitoring requirements, EPA’s regulations will no
longer satisfy section 114’s requirement for enhanced monitoring at
all major sources.

	Response:  We disagree with commenters that our interpretation of §§
70.6(c)(1) and 71.6(c)(1) is inconsistent with the plain language of the
Act.  Congress granted EPA broad discretion to decide how to implement
the title V monitoring requirements and the “enhanced monitoring”
requirement of section 114(a)(3) of the Act.  Two provisions of title V
of the Act specifically address rulemaking concerning development and
implementation of monitoring for assuring compliance with applicable
emissions limitations.  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.”  Second, section 504(b) authorizes EPA to prescribe
“procedures and methods” for monitoring “by rule.”  Section
504(b) specifically 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
emissions monitoring need not be required if alternative methods are
available that provide sufficiently reliable and timely information for
determining compliance. . . .”

	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.”  Section
504(c) further specifies that “[s]uch monitoring and reporting
requirements shall conform to any applicable regulation under [section
504(b)]. . . .”    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.”  
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 contemplate that monitoring in permits must reflect
current regulations.

	We disagree with commenters that the interpretation with regards to
parts 70 and 71 will eviscerate the States’ abilities to issue permits
that include effective monitoring requirements.  There are numerous
other means available and outlined in the Act, including the development
of effective and complete monitoring regulations included in State
implementation plans developed to implement the national ambient air
quality standards.  Further, there are existing and developing
requirements for monitoring under federal rules such as new source
performance standards (NSPS)of 40 CFR part 60, national emissions
standards for hazardous air pollutants (NESHAP) of 40 CFR parts 61 and
63, acid rain rules of 40 CFR parts 72 through 78, and the compliance
assurance monitoring rule of 40 CFR part 64.  

	With respect to the effect of this interpretation on State authority to
address inadequate monitoring, we disagree that by finalizing this
interpretation of the operating permits regulations we have limited or
usurped the authority State agencies have to revise their own
regulations or conduct case-by-case monitoring reviews pursuant to State
authority.

	We agree with commenters that there may be some monitoring required
under existing applicable requirements that could be improved; however,
we believe a better interpretation of the Act provides that we revise
such monitoring through notice and comment rulemaking.  For example, the
interpretation that part 70 is not the vehicle for making changes to
existing monitoring in no way prohibits the States from developing and
implementing regulations in the context of the Act that include
appropriate monitoring requirements to assure compliance with State
regulations such as rules implementing the national ambient air quality
standards (i.e., State Implementation Plans or SIPs).

	We also are continuing to pursue the four-step strategy that we
described in the January 22, 2004 notice (69 FR 3202) including
improving existing monitoring where necessary through rulemaking actions
while reducing resource-intensive and poorly supported case-by-case
monitoring reviews.  This clarifying interpretation of §§ 70.6(c)(1)
and 71.6(c)(1) is a first part of that strategy.  A second step included
a notice published on February 16, 2005 (70 FR 7905), in which we
requested comment on potentially inadequate monitoring in applicable
requirements and on methods to improve such monitoring.  We are
reviewing comments received in response to that notice and intend to
take appropriate action in response.

	A third element of that strategy is addressing the monitoring required
for implementation of the national ambient air quality standard (NAAQS)
for fine particulate matter (particulate matter with an aerodynamic
diameter of less than 2.5 micrometers, PM2.5).  In support of that final
rule, we plan to issue monitoring guidance that we will make available
for public comment (see proposal at 70 FR 65984, November 1, 2005).  We
intend that such material would encourage States and Tribes to improve
monitoring in SIPs and TIPs relative to implementing the NAAQS.  The
last of the four steps is to address requirements in existing rules that
are not now affected by 40 CFR part 64 (e.g., units with control
measures other than add-on devices) including potentially expanding the
applicability of part 64 and revising post-1990 NESHAP and NSPS.  We
agree and have learned through implementing the operating permits and
other regulatory programs that there continue to be opportunities to
improve monitoring in existing requirements, achieve improved
compliance, and assure emissions reductions.  We believe that the most
effective route to meeting these opportunities is through regulatory
review and revisions, as necessary.  For example, recently published
performance standards for solid and hazardous waste incineration (70 FR
74870 and 70 FR 75348) and commercial and industrial boilers (71 FR
9866) include not only improved monitoring requirements relative to
existing requirements but also options for use of continuous emissions
monitoring systems with appropriate incentives.

	In sum, we believe that the plain language and structure of §§
70.6(c)(1) and 71.6(c)(1) do not provide permitting authorities an
independent basis to perform case-by-case monitoring reviews to resolve
any such deficiencies.  We believe that a comprehensive regulatory
development approach more accurately reflects and is consistent with the
Act’s requirements for addressing improved monitoring.  Further
response beyond what we note above regarding the scope and effect of the
periodic monitoring provisions of §§ 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B) is beyond the scope of the proposal.

	C.    The effect of the rule on previous permit decisions is not
minimal and resultant conditions should be removed from permits.

	Several commenters disagreed with the Agency’s assertion that the
effect of this proposed interpretation would or should have minimal
effect on existing permits.  One commenter recognized that EPA
acknowledges in this rulemaking that its responses relative to the
monitoring for the Pacificorp and Fort James Camas Mills facilities
permit petitions were based on an improper interpretation of §
70.6(c)(1).  Further, the commenters disagreed with the Agency’s
conclusion that this legal interpretation of the monitoring requirements
had a “minimal” effect on EPA’s decisions relative to those
permits and hence “follow-up activity with regard to the Pacificorp or
Fort James permits is unnecessary.”   The commenter instead identified
facility owners who believe that, in a number of instances, the addition
of monitoring terms by States have created problems and should be
revisited.  

	Another commenter said that if EPA were to change the stringency of
monitoring without evaluating and revising the stringency of the
emission standards, this change could, by default, increase the
stringency of the underlying emissions standard.  This is because the
stringency of an emissions standard is a function of an emission limit,
the method for measuring emissions, and the monitoring requirements
contained in the standard.  Only by evaluating the monitoring in
conjunction with the underlying emissions limitations in the rule can
EPA assure that a control technology identified by the rule can meet a
standard.  This is a particular issue under § 70.6(c)(1) in which there
is no standard against which monitoring is to be judged and little or no
backstop against which a source can challenge the imposition of overly
stringent monitoring provisions in its permit.  Such an approach would
effectively allow States to alter federally-established emissions
standards by changing the compliance method and the manner in which
compliance and violations of the Clean Air Act are established, an
authority Congress gave to EPA alone.  Moreover, additional monitoring
could impose new substantive and potentially costly requirements on
sources ostensibly under the authority of Title V.  As stated in §
70.1, Title V does not provide EPA or the States with authority to
create new substantive requirements which must be established in the
same context in order to assure that EPA and States are not "redefining"
compliance.

	Other commenters indicated that review and removal of these terms, in
some instances, will appreciably reduce the costs of the Title V
program, which the Title V Task Force recently observed cost many times
EPA’s original cost estimates.  Even with the administrative cost of
removing these terms, the commenters believed there will be a net
program benefit.  One commenter asserted that EPA must state in the
final rulemaking that removal of new monitoring requirements including
recordkeeping and reporting that were added to permits pursuant to the
2002 and 1998 policies, which exceeded EPA’s and the State authority
in the instance of the 1998 policy voided by the D.C. Circuit in
Appalachian Power, does not constitute “backsliding.”  

	Response:  We disagree that all monitoring currently included in
individual permits that may be a result of an interpretation of §
70.6(c)(1) or § 71.6(c)(1) different than the proposed interpretation
must be removed.  There are other authorities that allow permitting
authorities to revise monitoring that may or may not be included in
applicable rules.  First, the gap-filling requirements of the periodic
monitoring provisions requires permitting authorities to establish and
include monitoring requirements in the permit where the underlying
requirement specifies no monitoring method, no frequency, or only a
one-time test.  Second, some States have separate authority under their
existing State SIP regulations to revise existing monitoring through the
addition of permit conditions as necessary to assure compliance with
applicable requirements (e.g., State of Oregon Clean Air Act
Implementation Plan, Operating and Maintenance Requirements, as adopted
under OAR 340-200-0040; New Jersey Department Of Environmental
Protection, New Jersey Administrative Code Title 7, Chapter 27,
Subchapter 22, 7:27-22.9 Compliance plans, (c)2.i.).  When other
authority to require monitoring exists, such monitoring may be retained
(or revised as appropriate) in the permit but the permitting authority
would  revise the statement of the origin of and authority for the
monitoring to reflect the proper legal authority, consistent with §§
70.6(a)(1)(i) and 71.6(a)(1)(i) at an appropriate time.  Also, when such
monitoring is independently required solely by a State-only enforceable
regulation, the monitoring would remain, but the permit  would be
revised to designate the monitoring as a non-federal requirement from a
enforcement perspective, consistent with §§ 70.6(b)(2) and 71.6(b)(2).


	Any source may apply for a modification of its permit to remove permit
terms and conditions for monitoring included in the permit pursuant to
an inappropriate interpretation of § 70.6(c)(1) or § 71.6(c)(1) (or an
inappropriate interpretation of § 70.6(a)(3)(i)(B), such as the one set
forth in the periodic monitoring guidance subsequently vacated by
Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000)).  A source
may limit the scope of its permit modification application to those
monitoring conditions it believes are affected by this rule.  EPA
encourages States to review such applications carefully and
expeditiously (without expanding the scope of the modification).  EPA
believes that such modification is appropriate and permitting
authorities should remove permit terms and conditions for monitoring
where such monitoring was imposed pursuant to § 70.6(c)(1) and such
monitoring is not justified under other legal authority.

	Under the current parts 70 and 71 rules, changes such as removing
existing monitoring, recordkeeping, and reporting are generally
designated significant modifications.  Further, any changes that would
result in less stringent monitoring in a permit would most typically be
treated as significant modifications by States.  (See § 70.7(e)(2) and
(e)(4).)   Finally,   SEQ CHAPTER \h \r 1 in the event EPA is
specifically required to review monitoring in a permit, for example, in
the context of permit renewal or significant modification requests, we
would have to ensure that such change conforms to all sections of the
parts 70 and 71 rules and interpretations in effect at that time.

	In the specific cases of the Pacificorp and Fort James citizen
petitions, we noted in the preamble to the proposed interpretation that
we believe that the decisions had minimal effect on compliance for these
two facilities.  In the former instance, while we acknowledge that EPA
would not have been authorized to require additional monitoring under
this interpretation of §§ 70.6(c)(1) and 71.6(c)(1), we required an
already-required continuous opacity monitoring system (COMS) to provide
opacity data in lieu of quarterly Method 9 visible opacity readings.  We
note that the owners or operators would have to collect the COMS data in
any case and report any excursions or excess emissions as other
information available as part of the semiannual reporting requirement
(§70.6(a)(3)(iii)(A)) and the annual compliance certification.  In the
latter instance, we relied on the authority under the periodic
monitoring rule (§§ 70.6(a)(3) and 71.6(a)(3)) to specify a frequency
for an inspection in which there was no frequency of monitoring
specified in the standard.  In neither case did the decision change the
stringency of the applicable requirement in averaging time or the
applicable emissions limit.

	We recognize and agree with the need to establish monitoring and
testing requirements consistent with the intended compliance
obligations.  Part 64, for example, provides for such assessment and
associated flexibility in monitoring selection on a case-by-case basis
with a carefully constructed process that includes site-specific field
testing and documentation to verify that the monitoring data will
provide a reasonable assurance of compliance with the existing
applicable requirement.  In the established EPA regulatory development
process (e.g., new and revised NSPS and NESHAP rules), we assess the
availability of data and monitoring technology for establishing ongoing
compliance obligations and evaluate cost and benefit implications and
the application of various monitoring technologies.  We believe that
this approach is correct and consistent with the intent of the Act,
sections 504(b) and (c), in developing and implementing monitoring
requirements.  On the other hand, the question of whether the stringency
of existing emissions limits were changed by earlier case-by-case
decisions about monitoring in preparing operating permits is not
relevant to the issue of the authority to require such monitoring and
not within the scope of this action.	

D.    The authority for the permitting authorities to fill periodic
monitoring gaps should be reinstated.

	Several commenters observed that the rule eliminated the authority of
State and local agencies to include so-called "gap-filling monitoring"
in permits in situations in which applicable requirements contain
monitoring provisions, but such provisions are inadequate.  The
commenters said that EPA should reconsider reinstating the ability of
the State and local agencies to include "gap-filling monitoring" in
Title V permits in the meantime.

	One commenter offered that finalization of that proposal will not
affect the authority and obligation of State and local permitting
authorities with approved part 70 operating permit programs to continue
to require such supplemental, enhanced monitoring.  The commenter
asserted that the new interpretation that EPA proposes was not the
agency’s interpretation when EPA acted on part 70 program approvals
for State and local permitting authorities.  Nor is it the
interpretation that EPA has held over the course of implementing the
part 70 permit program since such initial approvals, as indicated in
part by the agency objection letters and orders responding to Title V
petitions, discussed above.  Instead, the commenter contends, EPA’s
proposed new interpretation is a direct contradiction and refutation of
EPA’s longstanding interpretation, the opposite of that
interpretation.  The commenter suggested that the provisions of the
permit programs approved prior to this latest interpretation will
continue to govern permit monitoring decisions despite the final
dispensation of the proposal, unless and until: (1) State, local and
tribal permitting authorities choose to undertake rulemaking to change
their more rigorous permitting authorities and practices, and weaken
them by adopting EPA’s new interpretation as a matter of State or
local law; (2) EPA receives revised program submittals from State or
local authorities, and issues proposed federal rulemakings to revise the
previously approved State or local program for purposes of federal law,
complete with notice and comment and opportunity for public hearing; and
(3) EPA finalizes the proposed program revisions to codify the State or
local’s revised, weaker practice as a matter of federal law. 

	Another commenter said that by prohibiting States from enhancing the
monitoring established in existing rules and SIPs, EPA is not only
usurping States’ authority to carry out their programs, but preventing
the opportunity for States to devise innovative and creative approaches
to compliance monitoring where something beyond existing requirements
exists.  A commenter indicated that withdrawing the proposed
interpretation and reinstating the States authority to impose new
monitoring are necessary to ensure the health and safety of adjacent
communities, to protect or further maintenance of the National Ambient
Air Quality Standards, and to ensure that sources are required to
correct compliance problems in a timely manner.

	Response:  We reassert that the authority in §§ 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B) to fill gaps in existing regulations with new periodic
monitoring remains  unaffected by this proposed interpretation.  We
disagree with commenters that our interpretation of §§ 70.6(c)(1) and
71.6(c)(1) is inconsistent with the plain language of the Act, as
discussed in detail above.  Consistent with the broad authority the Act
provides, we interpret these regulatory sections, as the rules are
written, as not providing an authority to require permitting authorities
to assess and revise existing monitoring requirements independent of the
periodic monitoring requirements.  In short, we have determined that
other regulatory avenues (e.g., revising existing EPA rules with
inadequate monitoring, expanding applicability of part 64, and providing
guidance for implementing the PM2.5 NAAQS) would be a more effective
policy approach.  We also disagree with the commenter that previously
approved State and local permitting programs will have to be revised in
response to this action.  State and local permitting authorities are
required to conduct approved title V permitting programs in accordance
with the requirements of 40 CFR part 70 and any agreement between the
permitting authority and EPA concerning operation of the program.  As
evident by this action, we have determined that §§ 70.6(c)(1) and
71.6(c)(1) do not require or authorize State/local/Tribal permitting
authorities to review and revise existing monitoring requirements in
operating permits.  

	E.  Existing monitoring requirements in current rules are inadequate
and case-by-case review and revision are necessary.

	Several commenters suggested that while many rules include
comprehensive and modern monitoring requirements, others do not. 
Commenters provided substantive and detailed comments and declarations
previously submitted (in response to the February 16, 2005, notice, 70
FR 7905) to the Agency to support their contention that many existing
federal regulatory monitoring requirements are insufficient to assure
compliance.  Additionally, commenters noted that many sources are not
covered by updated NSPS or NESHAP rules that are intended to fill those
gaps.  Where updated and complete monitoring requirements already exist
in federal or State rules, commenters believed that States are unlikely
to consider that more rigorous monitoring is necessary.  But where
monitoring in existing rules is not sufficient, State permitting
authorities are much better suited than the EPA to understand individual
sources, their unique compliance histories and challenges, and to
fashion reasonable monitoring requirements that will assure the public,
the source, and the permitting authority of the source’s ongoing
compliance.  By prohibiting States from enhancing the monitoring
established in existing rules and SIPs, the commenter believed EPA is
not only usurping States’ authority to carry out their programs, but
preventing the opportunity for States to devise innovative and creative
approaches to compliance monitoring where something beyond existing
requirements exists. 

	Another commenter noted that, regardless of federal requirements on gap
filling, States independently have authority to gap-fill if they include
such provisions in their rules.  The commenter said that EPA can not
attempt to limit State authority with this rulemaking.   The commenter
cites EPA assertions that improvements to monitoring through federal or
State rulemakings (by amending the monitoring provisions of applicable
requirements themselves) will avoid time spent in case-by-case
sufficiency monitoring reviews in Operating Permits.  The commenter also
agreed EPA should improve the monitoring, recordkeeping, and reporting
requirements in many of its rules; but disagree that this should
substitute for independent authority to add monitoring and recordkeeping
requirements on a case-by-case basis. 

	Response:  While we agree that there may be examples of inadequate
monitoring in existing rules, the proposed interpretation is about the
appropriate regulatory means to address those instances.  The comments
providing examples of inadequate monitoring are not responsive to the
proposal.  As noted above, with respect to the effect of this
interpretation on State authority to address inadequate monitoring, we
disagree that by finalizing this interpretation of the operating permits
regulations we have limited or usurped the authority State agencies have
to revise their own regulations or conduct case-by-case monitoring
reviews pursuant to State authority.

	As we have stated previously, the interpretation that part 70 is not
the appropriate vehicle for making changes to existing monitoring, other
than to apply periodic monitoring to fill gaps in regulations.  Further,
the interpretation in no way prohibits the States from developing
regulations that include appropriate monitoring requirements to assure
compliance with State regulations such as SIPs.  Likewise, this
interpretation does not prohibit a permitting authority from
implementing other State rule provisions including revising monitoring
in existing rules through the permitting process to assure compliance
with State regulations such as SIPs.  We certainly encourage States to
act through regulatory development or other means to apply monitoring as
needed to assure ongoing compliance with State regulations.  To the
extent that States have authority under State law to perform
case-by-case monitoring reviews and issue permits including additional
monitoring, such monitoring should be included on the “State-only”
side of the permit.  We agree that EPA regulations must include
monitoring sufficient to assure compliance and, as indicated above, we
believe that the most effective route to effect this policy is for us to
continue to improve such requirements by conducting additional
rulemakings.

	F.  The Agency should provide further clarification or regulatory
action on the effect of monitoring policies on enforcement.

	One commenter requested some discussion from EPA concerning existing
permits which contain monitoring requirements created prior to this
interpretation of §§ 70.6(c)(1) and 71.6(c)(1) and have resulted in
reported deviations from those permit conditions.  Since EPA
interpretations are being reversed, the commenter asked whether
deviations from monitoring conditions set, without the legal standing of
established rulemaking processes following existing statutes and
regulations, would also be affected.  Another commenter indicated that
reading Title V as imposing some new criterion for enforceability on
existing emissions standards beyond what Congress directed in section
114(a)(3) would be inconsistent with existing statutory requirements. 
This commenter also cited examples for which use of a different test
method or procedure can lead to fundamental differences in results, due
to differences in analytical method, data reduction, or measurement
location.  Even if the specified (or a comparable) method is used,
testing under conditions different from, or conducted more frequently
than, the testing considered in setting the standard can reveal
operating variability that was unknown or ignored when the standard was
set.   In short, the commenter noted that changing the method of
measuring compliance with an emissions limitation can affect the
stringency of the limitation itself.  

	The same commenter outlined how use of the specified method is also
often necessary to preserve assumptions regarding cost.  Accordingly,
where emissions standards are subject to specific statutory criteria and
regulatory review requirements, any revision to those standards must be
accompanied by an evaluation of the revised standard, using specified
administrative procedures, to ensure its consistency with statutory and
regulatory review criteria.  For example, when EPA or a State identifies
a control technology under the criteria for a particular standard (e.g.,
identifies BDT for a particular NSPS), a revision to that standard
(including specification of a new compliance method) is valid only if
data show that the revised standard also can be reliably and
consistently achieved with the original control technology.  Even if
achievability of the standard is not in question, the commenter noted,
substitution of one compliance method for another is a substantive
change that requires consideration of a number of factors, including the
cost of that change.

	Response:  As noted above, the question of whether the stringency of
existing emissions limits were changed by earlier case-by-case decisions
about monitoring in preparing operating permits is not relevant to the
issue of the authority to require such monitoring and not within the
scope of this action. That is, whether §§ 70.6(c)(1) and 71.6(c)1)
authorize permitting authorities to assess or revise existing monitoring
requirements different from assessment and revision under other
regulations has no bearing on a source’s compliance obligation under
the applicable emissions limitation.  The proposed interpretation
addresses only whether part 70 or 71 is a proper vehicle for assessment
and adjustment to existing monitoring requirements beyond other
requirements for assessing or revising monitoring that may be required
under §§ 70.6(a)(3)(i) and 71.6(a)(3)(i) or other regulations.  

	We disagree with commenters on the need to limit use of any data
collected with monitoring that might be a result of a misinterpretation
of the rule.  To the extent that there are questions about whether data
from monitoring developed under a previous interpretation are relevant
to a compliance or enforcement decision, case-by-case review of any
actions based on specific permit conditions would be more effective and
appropriate.  We believe that these situations will be very few in
number.

V. 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
interpretative rule is a "significant regulatory action" because it
raises important legal and policy issues.  As such, we submitted this
rule to OMB for review.  Changes made in response to OMB suggestions or
recommendations will be documented in the public record.  

B.  Paperwork Reduction Act

	This action does not impose any new information collection burden. 
This action 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 revision of existing monitoring
independent of any review and revision as may be required under §§
70.6(a)(3) and 71.6(a)(3).  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
1587.06 and OMB control number 2060-0243; for part 71, the EPA ICR
number is 1713.05 and the OMB control number is 2060-0336.  A copy of
the OMB approved 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.  

Under the Paperwork Reduction Act, 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.

Regulatory Flexibility Act

	The Regulatory Flexibility Act (RFA) generally requires an Agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.  

For purposes of assessing the impacts of this action on small entities,
small entity is defined as:  (1) a small business as defined by the
Small Business Administration by category of business using the North
American Industrial Classification System (NAICS) and codified at 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.  

After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.  The
originally promulgated part 70 and part 71 rules included the text of
§§ 70.6(c)(1) and 71.6(c)(1), and this interpretation does not revise
that text.  Moreover, any burdens associated with the interpretation of
§§ 70.6(c)(1) and 71.6(c)(1) as described in this action are less than
those associated with any interpretation under the rule and that we may
have previously enunciated.  

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
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.  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.

 	This action contains no new federal mandates (under the regulatory
provisions of title II of the UMRA) for State, local, or tribal
governments or the private sector.  This action imposes no new
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 revision of existing monitoring,
independent of any review and revision as may be required under the
periodic monitoring rules, §§ 70.6(a)(3) and 71.6(a)(3).  Therefore,
this action is not subject to the requirements of sections 202 and 205
of the UMRA.

	In addition, EPA has determined that this action contains no new
regulatory requirements that might significantly or uniquely affect
small governments.  With this action, EPA sets out the correct
interpretation of §§ 70.6(c)(1) and 71.6(c)(1), which is that they do
not require or authorize title V permitting authorities – including
any small governments that may be such permitting authorities – to
conduct reviews of and revise existing monitoring through case-by-case
monitoring reviews of individual permits under §§ 70.6(c)(1) and
71.6(c)(1).  Therefore, this action 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, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.”

	This action does not have any new federalism implications.  The action
will not have new 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.  This interpretation
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 action.

F.  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 action does not have new 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. 
This action does not significantly or uniquely affect the communities of
Indian tribal governments.  As discussed above, this action imposes no
new requirements that would impose compliance burdens beyond those that
would already apply.  Accordingly, Executive Order 13175 does 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 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.

	This action is not subject to Executive Order 13045 because it is not
“economically significant” as defined under Executive Order 12866
and because it is not expected to have a disproportionate effect on
children.

H.  Executive Order 13211:  Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

	This action 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 finalizes that these provisions in parts 70 and 71 do not
establish a separate regulatory standard or basis for requiring or
authorizing review and revision of existing monitoring independent of
any review and revision of monitoring as may be required under §§
70.6(a)(3) and 71.6(a)(3).  Further, we have concluded that this action
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 (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 action because it does not involve
technical standards.  Therefore, EPA did not consider the use of any
voluntary consensus standards.

J.  Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	Executive Order 12898, ‘‘Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations’’
(February 11, 1994), is designed to address the environmental and human
health conditions of minority and low-income populations. EPA is
committed to addressing environmental justice concerns and has assumed a
leadership role in environmental justice initiatives to enhance
environmental quality for all citizens of the United States. The
Agency’s goals are to ensure that no segment of the population,
regardless of race, color, national origin, income, or net worth bears
disproportionately high and adverse human health and environmental
impacts as a result of EPA’s policies, programs, and activities.  Our
goal is to ensure that all citizens live in clean and sustainable
communities.  This action merely finalizes an interpretation of an
existing rule and includes no changes that are expected to significantly
or disproportionately impact environmental justice communities. 

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing the final rule amendments
and other required information to the United States Senate, the United
States House of Representatives, and the Comptroller General of the
United States prior to publication of the final 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).  The final rule will be effective
on [INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].

_________________________________

Dated: 

_________________________________

Stephen L. Johnson,

Administrator.

 Initial Brief of Respondent United States Environmental Protection
Agency, Appalachian Power Co., et al. v. Envtl. Protection Agency, No.
98-1512 (D.C. Cir., Oct. 25, 1999)

	 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: <  HYPERLINK
"http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitio
ns/woc020.pdf"
http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petition
s/woc020.pdf >), and 

	In the Matter of Fort James Camas Mill, Petition No. X-1999-1 (December
22, 2000) (Fort James) (available on the Internet at: <  HYPERLINK
"http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitio
ns/fort_james_decision1999.pdf" 
http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petition
s/fort_james_decision1999.pdf  >).

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Interpretive Rulemaking to Clarify the Scope of Certain Monitoring
Requirements for State and Federal Operating Permits Programs

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