                 HISTORY OF RELEVANT COMPLIANCE CERTIFICATION
                              REGULATORY LANGUAGE
                                       
                                       
Note that in the following, highlighted text (in blue) is included to indicate the relevant text and there is often a footnote to explain the relevance or additional background information is included.  Also note that parallel changes were also made to part 71 for all of these rulemaking actions but only part 70 changes are shown below for the sake of clarity.

Original Promulgation of Part 70 Rule, 1992

The 1992 part 70 rule, in part, required the owner or operator to include the following in compliance certifications [see 40 CFR 70.6(c)(5)(iii)]:

      (iii)  A requirement that the compliance certification include the following:
      (A)  The identification of each term or condition of the permit that is the basis of the certification;
      (B)  The compliance status;
      (C)  Whether compliance was continuous or intermittent;
      (D)  The method(s) used for determining the compliance status of the source, currently and over the reporting period consistent with paragraph (a)(3) of this section; and
      (E)  Such other facts as the permitting authority may require to determine the compliance status of the source;


October 1997 Revisions to Part 70 and 71 Rules in the Context of the Final CAM Rule

As part of the rulemaking to promulgate the final CAM rule (62 FR 54900, October 22, 1997), changes were also made to the compliance certification requirements of parts 70 and 71. These changes to parts 70 and 71 were intended to make the compliance certification requirements consistent with the Credible Evidence and CAM rules; section 113(c)(2) of the Act, concerning criminal penalties for violations; and the section 114(a)(3) compliance certification requirements. Only §§70.6(c)(5)(iii)(B) and (C) are relevant to this discussion:  

      	(B) The identification of the method(s) or other means used by the owner or operator for determining the compliance status with each term and condition during the certification period, and whether such methods or other means provide continuous or intermittent data. Such methods and other means shall include, at a minimum, the methods and means required under paragraph (a)(3) of this section. If necessary, the owner or operator also shall identify any other material information that must be included in the certification to comply with section 113(c)(2) of the Act, which prohibits knowingly making a false certification or omitting material information;
      
      	(C) The status of compliance with the terms and conditions of the permit for the period covered by the certification, based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and

March 1, 2001, Proposal and Direct Final Rule

On March 1, 2001, the EPA published a direct final rule (66 FR 12872) and a parallel proposal (66 FR 12916) to respond to a court remand (Natural Resources Defense Council v. EPA, 194 F.3d 130 (D.C. Cir.1999)) on certain changes made in the context of the CAM rule to the compliance certification requirements of the part 70 and 71 rules. The court pointed out that section 114(a)(3)(D) of the Act requires the compliance certification to identify "whether compliance is continuous or intermittent." Accordingly, this language was proposed to be added to paragraph (c)(5)(iii)(C) of both §§70.6 and 71.6. Due to significant comment received on the parallel proposal, the direct final rule was withdrawn. Note that in the preamble, the EPA misidentified the paragraphs to be revised.

PREAMBLE:

      	In response to the court's remand, we have added text to sections, §§ 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B), to require that the responsible official for the affected facility include in the annual (or more frequent) compliance certification whether compliance during the period was continuous or intermittent. Specifically, the revised text, including the introductory language for both sections reads: "Permits shall include each of the following * * *: A requirement that the compliance certification include all of the following * * *: The status of compliance with the terms and conditions of the permit for the period covered by the certification, including whether compliance during the period was continuous or intermittent. The certification shall be based on the method or means designated in paragraph (c)(5)(iii)(B) of this section." The italicized text indicates the revisions made in response to the Court decision. Other text within both of these sections remains as promulgated in 1997. Under this revised language, the responsible official must include in the compliance certification a statement as to whether compliance during the period was continuous or intermittent. We believe these revisions respond directly and adequately to the Court's decision to remand the compliance certification requirements to us and are consistent with the requirements of the Act.

REGULATORY CHANGES:

      2. Sections 70.6 is amended by revising paragraph (c)(5)(iii)(C) to read as follows:
      
      §70.6  Permit content.
      * * * * *
      	(c) * * *
      	(5) * * *
      	(iii) * * *
      	(C) The status of compliance with the terms and conditions of the permit for the period covered by the certification, including whether compliance during the period was continuous or intermittent. The certification shall be based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and
	* * * * *

June 27, 2003, Final Rule

In its June 27, 2003, final rule (68 FR 38518), the EPA finalized paragraph (C) as proposed above. However, in response to comments, we revised paragraph (B) to remove from the first sentence the reference to whether the methods or other means used by the source to determine compliance "provide continuous or intermittent data." The preamble stated:

      	In response to the comments, we have deleted the second clause after the comma in the first sentence from §§ 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the requirement that the responsible official for the affected facility identify in the annual (or more frequent) compliance certification whether the methods provide continuous or intermittent data. ... Other text within §§ 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B), 70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains as proposed in March 2001. The language in this final rule requires responsible officials to identify in the compliance certification whether compliance during the covered period was continuous or intermittent, but responsible officials do not need to state whether the methods used for determining compliance provide continuous or intermittent data. We believe these revisions respond directly and adequately to the Court's decision to remand the compliance certification requirements to us and are consistent with the requirements of the Act.

68 FR 38521

However, the amendatory language set forth in the FR notice resulted in the inadvertent deletion of the last sentence of paragraph (B), concerning the use of "other material information" in compliance certifications, despite the fact that the preamble did not state that any changes were being made to that sentence. [The paragraph (B) text that was deleted can be seen above in the version of the rules that accompanied the CAM rule]. That is the error that we seek to correct with the current action.

      * * * * *
      2. Section 70.6 is amended by revising paragraphs (c)(5)(iii)(B) and (c)(5)(iii)(C) to read as follows:
      
      Sec. 70.6   Permit content.
      * * * * *
      	(c) * * *
      	(5) * * *
      	(iii) * * *
      	(B) The identification of the method(s) or other means used by the owner or operator for determining the compliance status with each term and condition during the certification period. Such methods and other means shall include, at a minimum, the methods and means required under paragraph (a)(3) of this section;
      	(C) The status of compliance with the terms and conditions of the permit for the period covered by the certification, including whether compliance during the period was continuous or intermittent. The certification shall be based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and
      * * * * *

68 FR 38523

The Current Action

Thus, the sentence referring to the use of "other material information" in compliance certifications was inadvertently deleted from paragraph (c)(5)(iii)(B) in the June 27, 2003 Final Rule. The purpose of this current action is to correct the deletion by restoring the deleted language to the title V rules. 
