[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Rules and Regulations]
[Pages 22362-22374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08581]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 75

[EPA-HQ-OAR-2020-0211; FRL-10008-51-OAR]
RIN 2060-AU85


Continuous Emission Monitoring; Quality-Assurance Requirements 
During the COVID-19 National Emergency

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule; request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the 
emissions reporting regulations applicable to sources that monitor and 
report emissions under the Acid Rain Program, the Cross-State Air 
Pollution Rule (CSAPR), and/or the NOX SIP Call. The 
amendments provide that if an affected unit fails to complete a 
required quality-assurance, certification or recertification, fuel 
analysis, or emission rate test by the applicable deadline under the 
regulations because of travel, plant access, or other safety 
restrictions implemented to address the current COVID-19 national 
emergency and if the unit's actual monitored data would be considered 
valid if not for the delayed test, the unit may temporarily continue to 
report actual monitored data instead of substitute data. Sources must 
maintain documentation, notify EPA when a test is delayed and later 
completed, and certify to EPA that they

[[Page 22363]]

meet the criteria for using the amended reporting procedures. 
Substitute data must be reported if those criteria are not met or if 
monitored data are missing or are invalid for any non-emergency-related 
reason. Units are required to complete any delayed tests as soon as 
practicable after relevant emergency-related restrictions no longer 
apply, and the emergency period for which a unit can report valid data 
under the amendments is limited to the duration of the COVID-19 
national emergency plus a grace period of 60 days to complete delayed 
tests, but no later than the date of expiration of the amendments. This 
action is necessary during the COVID-19 national emergency to protect 
on-site power plant operators and other essential personnel from 
unnecessary risk of exposure to the coronavirus. The amendments do not 
suspend emissions monitoring or reporting requirements or alter 
emissions standards under any program, and EPA expects the amendments 
not to cause any change in emissions levels. The rule therefore will 
not result in any harm to public health or the environment that might 
occur from increased emissions, and to the extent that the amendments 
facilitate plant operators' efforts to comply with travel and plant 
access restrictions imposed to protect public health during the COVID-
19 emergency, the amendments will have a positive impact on public 
health by assisting efforts to slow the spread of the disease. EPA 
finds good cause to promulgate this rule without prior notice or 
opportunity for public comment and to make the rule effective 
immediately upon publication in the Federal Register. The amendments 
promulgated in this rule will expire in 180 days. EPA is also 
requesting comment on this rule.

DATES: This rule is effective April 22, 2020. EPA will consider 
comments on this rule received on or before May 22, 2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-HQ-OAR-
2020-0211, at https://regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from regulations.gov. EPA may publish any comment received to 
its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA generally 
will not consider comments or comment contents located outside of the 
primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://epa.gov/dockets/commenting-epa-dockets. Additional materials related to this 
action, including submitted comments, can be viewed online at 
regulations.gov under Docket No. EPA-HQ-OAR-2020-0211. While the EPA 
Docket Center Reading Room in Washington, DC is currently closed to 
public visitors in order to reduce the risk of COVID-19 transmission, 
materials related to this action may also be viewed in person at the 
Reading Room at such time as it reopens. Information on the location 
and hours of the Reading Room is available at https://www.epa.gov/dockets. Please call or email the contact listed in FOR FURTHER 
INFORMATION CONTACT if you need alternative access to material indexed 
but not electronically available in the docket at regulations.gov.

FOR FURTHER INFORMATION CONTACT: David Lifland, U.S. Environmental 
Protection Agency, Clean Air Markets Division, Mail Code 6204M, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; 202-343-9151; 
lifland.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Overview
    A. Summary of the Action
    B. Potentially Affected Entities
    C. Statutory Authority
II. Amendments to Quality-Assurance Requirements During the COVID-19 
National Emergency
    A. Background and Rationale
    B. Description of Amendments
    C. Expected Impacts
III. Rulemaking Procedures and Findings of Good Cause
IV. Request for Comment
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review, and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act
    M. Determination Under CAA Section 307(b)

I. Overview

A. Summary of the Action

    The emissions monitoring, recordkeeping, and reporting regulations 
at 40 CFR part 75 (referred to here as the ``part 75 regulations'' or 
``part 75 requirements'') require affected sources not only to 
continuously monitor emissions and other data for every operating hour 
in a control period, but also to conduct a variety of periodic or 
event-driven tests to ensure high quality of the reported data. Part 75 
also requires sources to report substitute data instead of actual 
monitored data for operating hours when a required test has not been 
completed in a timely manner. The sources must continue reporting 
substitute data until the delayed test is successfully completed. The 
substitute data are intentionally conservative (i.e., high-biased), 
causing the emissions reported for the source to be higher than if the 
delayed test had been completed on time. The data become increasingly 
high-biased over time and ultimately may be as high as a unit's maximum 
potential emissions. Most sources subject to part 75 participate in EPA 
trading programs that require surrender of sulfur dioxide 
(SO2) or nitrogen oxides (NOX) emission 
allowances for each ton of reported emissions, so the increase in 
reported emissions following a missed test deadline results in an 
increase in the quantity of allowances that must be surrendered, with a 
corresponding increase in the source's allowance costs. In ordinary 
circumstances, this regulatory approach appropriately provides 
operators with a strong incentive to conduct all required tests by the 
applicable deadlines.
    While affected sources typically perform part 75 continuous 
monitoring activities using highly automated monitoring systems 
overseen by plant staff, most sources conduct certain required part 75 
tests using outside contractor personnel. Some tests also require 
calibration gases to be obtained from outside facilities or require 
fuel samples to be analyzed at outside

[[Page 22364]]

laboratories. Consequently, current travel, plant access, and other 
safety restrictions related to the novel coronavirus disease (COVID-19) 
emergency, as well as shutdowns of external facilities that provide 
necessary supplies or services, may make compliance with part 75 
testing requirements difficult for some sources. Moreover, because of 
uncertainty regarding the duration of the restrictions and because 
tests requiring outside contractor personnel often must be scheduled 
months in advance, operators missing test deadlines now face 
considerable uncertainty as to when they will be able to reschedule and 
complete any delayed tests. However, the existing part 75 regulations 
require sources to report substitute data following all missed test 
deadlines until the tests are successfully completed, regardless of the 
reason for missing the test and the possible inability to reschedule 
the test for multiple months because of restrictions related to the 
emergency. Based on the reported dates of previous tests, EPA believes 
that from April to June of this year, approximately 1,000 units will 
face deadlines for part 75 tests that typically require outside 
contractor personnel. In light of the current COVID-19 national 
emergency, EPA has decided that a temporary alternative is needed to 
the part 75 data substitution requirements following tests that are not 
completed in a timely manner because of travel, plant access, or other 
safety restrictions related to the emergency. EPA believes that 
establishment of a temporary alternative is necessary to reduce risks 
to power plant operators and other essential personnel from exposure to 
COVID-19 and is consistent with similar social distancing efforts being 
taken at this time by all levels of government and the private sector 
while ensuring that mission-essential functions can be performed.
    In this action, EPA is amending the part 75 data substitution 
requirements to establish a limited, temporary exception that applies 
only under qualifying conditions related to the current COVID-19 
national emergency. Specifically, in place of the existing requirements 
to report substitute data following any failure to complete a required 
test, the amendments instead allow actual monitored data to be reported 
after certain missed test deadlines, as long as the failure to complete 
the test is caused by travel, plant access, or other safety 
restrictions implemented to address the COVID-19 emergency and the 
monitored data would be considered valid if not for the delayed test. 
As a condition of applying the amended procedures, sources must 
document the reasons for delaying any required test and notify EPA when 
a test is delayed and when the delayed test is later completed. The 
notifications must include certifications that the source meets the 
criteria for using the amended procedures. EPA will post summaries of 
these notifications on a publicly accessible website. The amended 
requirements apply until the required test can be completed, but no 
longer than the duration of the COVID-19 national emergency plus a 
grace period of 60 days to complete delayed tests, and no later than 
the date of expiration of the amendments. This action does not suspend 
the existing part 75 requirements to continuously monitor and report 
emissions for every operating hour in a control period and does not 
alter any emissions limitations under any program. The amendments and 
EPA's rationale are described in greater detail in section II of this 
document.
    This is a final rule. The amendments are effective immediately upon 
publication in the Federal Register and will expire after 180 days. 
EPA's findings of good cause for issuing the rule without prior notice 
and opportunity for comment and for making the rule effective 
immediately upon publication are contained in section III of this 
document. In section IV of this document, EPA requests comment on all 
aspects of the rule. Section V of this document addresses required 
statutory and executive order reviews.

B. Potentially Affected Entities

    This action applies to any source that reports emissions to EPA 
under 40 CFR part 75. Generally, the types of sources that could be 
affected are fossil fuel-fired boilers and stationary combustion 
turbines serving electricity generators with capacities over 25 
megawatts in the contiguous 48 states as well as other fossil fuel-
fired boilers and stationary combustion turbines with heat input 
capacities over 250 million British thermal units per hour located in 
Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, 
Massachusetts, Michigan, Missouri, New Jersey, New York, North 
Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Virginia, West Virginia, and the District of Columbia. Sources meeting 
these criteria operate in a variety of industries, including but not 
limited to the following:

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                                           Industries with potentially
             NAICS * code                       affected sources
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221112................................  Fossil fuel-fired electric power
                                         generation.
3112..................................  Grain and oilseed milling.
3221..................................  Pulp, paper, and paperboard
                                         mills.
3241..................................  Petroleum and coal products
                                         manufacturing.
3251..................................  Basic chemical manufacturing.
3311..................................  Iron and steel mills and
                                         ferroalloy manufacturing.
6113..................................  Colleges, universities, and
                                         professional schools.
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* North American Industry Classification System.

C. Statutory Authority

    Statutory authority to issue the amendments promulgated in this 
action is provided by Clean Air Act (CAA) section 412, 42 U.S.C. 7651k, 
which also provided authority for the initial promulgation of 40 CFR 
part 75, and CAA section 301, 42 U.S.C. 7601, which authorizes the 
Administrator to ``promulgate such regulations as are necessary to 
carry out his functions under [the CAA].'' Statutory authority for the 
rulemaking procedures followed in this action is provided by 
Administrative Procedure Act (APA) section 553, 5 U.S.C. 553.

II. Amendments to Quality-Assurance Requirements During the COVID-19 
National Emergency

A. Background and Rationale

    The part 75 regulations were originally promulgated to establish 
the emissions monitoring, recordkeeping, and reporting requirements 
under the Acid Rain Program, which covers over 3300 electricity 
generating units (EGUs) in the contiguous United States.\1\ Subsequent 
rules including the Cross-State Air Pollution Rule (CSAPR) \2\ and the 
CSAPR Update,\3\ as well as state implementation plans adopted to meet 
the requirements of CSAPR, the CSAPR Update, and the NOX SIP 
Call,\4\ require over 600 additional EGUs and approximately 300 large 
non-EGU boilers and combustion turbines in eastern states to comply 
with the part 75 regulations. Affected units must follow specified 
procedures for determining and reporting hourly data for mass emissions 
of SO2, NOX, and carbon dioxide (CO2), 
NOX emission rate, and/or heat input using either continuous 
emission monitoring systems (CEMS) or,

[[Page 22365]]

for qualifying units, several other monitoring methodologies.
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    \1\ CAA title IV, 42 U.S.C. 7651-7651o; 40 CFR parts 72-78.
    \2\ 76 FR 48208 (August 8, 2011).
    \3\ 81 FR 74504 (October 26, 2016).
    \4\ 63 FR 57356 (October 27, 1998).
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    The part 75 regulations require sources to report substitute data 
for their hourly emissions instead of actual monitored data in two 
general situations, only one of which may merit potentially different 
treatment during unusual circumstances such as the current COVID-19 
emergency. The first general situation, which EPA sees no reason to 
address differently in emergency versus non-emergency circumstances, 
occurs when no data are obtained from a monitoring system (or when the 
data obtained are suspect). Because the part 75 regulations are 
designed to ensure a continuous record of each affected unit's hourly 
mass emissions (and other relevant data), the regulations require 
affected units to report substitute data for each operating hour when 
monitored data are missing.\5\ To give operators a strong incentive to 
maintain high availability of their monitoring systems, the data 
substitution provisions of the regulations require units to report 
increasingly conservative (i.e., high-biased) data as a missing data 
period grows longer.\6\ For example, when a CEMS fails to provide data 
for only a few hours--for example, because of a problem that is 
discovered and repaired promptly--substitute data are generally 
determined from the data for nearby hours.\7\ If a missing data period 
extends beyond a few hours, the unit must report data first approaching 
and then equaling the highest values recorded by the CEMS during a 
specified lookback period.\8\ Eventually, when a missing data period 
extends long enough to cause the CEMS to lack valid data for 20 percent 
of the unit's previous 8760 operating hours, the unit must report 
substitute data reflecting the unit's maximum potential value for the 
monitored variable.\9\ Thus, if a CEMS for a baseload unit had no 
previous missing data periods, after a single missing data period of 
about five weeks the unit would be required to report for every 
operating hour the highest hourly value recorded by the CEMS during the 
lookback period, and after a single missing data period of about ten 
weeks the unit would be required to report for every operating hour the 
maximum potential value for the parameter monitored by the CEMS. 
Because most affected units under part 75 participate in one or more 
EPA trading programs for SO2 and/or NOX emissions 
that require the units to surrender emission allowances equal to the 
amounts of their reported emissions, reporting higher-than-actual 
emissions causes the units to incur correspondingly increased costs for 
allowances under the trading programs. The additional allowance costs 
resulting from an extended period of missing data appropriately provide 
operators with incentives to maintain high availability of their 
emissions monitoring systems at all times when a unit is operating 
(including during periods of emergency).\10\
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    \5\ See generally 40 CFR part 75, subpart D.
    \6\ See Sec.  75.32(a)(2).
    \7\ See Sec.  75.33(b)(1)(i), (b)(2)(i), (c)(1)(i), (c)(2)(i).
    \8\ See, e.g., Sec.  75.33(b)(1)(ii), (b)(2)(ii), (b)(3), 
(c)(1)(ii), (c)(2)(ii), (c)(3). The relevant lookback period is 720 
operating hours for some reported variables and 2160 operating hours 
for others.
    \9\ See, e.g., Sec.  75.33(b)(4), (c)(4).
    \10\ In this action, EPA is not amending the existing 
requirements to report substitute data for operating hours when 
monitored data are missing or when data are invalid for reasons 
other than an emergency-related delay of quality-assurance 
activities.
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    The second general situation when a source must report substitute 
data instead of actual monitored data, which EPA believes might be 
appropriate to address differently in certain emergency circumstances 
than in non-emergency circumstances, occurs when quality-assurance 
requirements are not met. The part 75 regulations are designed to 
achieve not only high availability of monitored data, but also high 
quality of those data. Accordingly, the regulations require various 
kinds of quality-assurance testing. Of particular relevance here, the 
regulations also require substitute data to be reported if the quality-
assurance tests are not completed by applicable deadlines, following 
the same procedures described above for periods when data from a 
monitoring system are missing. The specific testing requirements depend 
on which of the permissible part 75 monitoring methodologies is being 
used and on the type of fuel or monitoring equipment. For units using 
gas concentration CEMS, the required quality-assurance tests include 
relative accuracy test audits (RATAs), which involve stack testing and 
generally must be performed every two or four calendar quarters, as 
well as quarterly linearity checks and daily calibration error 
tests.\11\ For units using stack gas flow rate CEMS, the required tests 
include RATAs, which again involve stack testing and generally must be 
performed every two or four calendar quarters, as well as quarterly 
leak checks or other tests that depend on the particular technology 
employed.\12\ For gas- and oil-fired units using fuel sampling and fuel 
flowmeters under appendix D to part 75, the required tests generally 
include either flowmeter accuracy tests which must be performed every 
four calendar quarters or else less frequent accuracy tests combined 
with certain otherwise optional tests performed on a quarterly 
basis.\13\ In addition, the appendix D methodology requires periodic 
laboratory analyses of fuel samples to determine fuel sulfur content, 
density, and/or gross calorific value.\14\ Under the regulations, a 
unit's failure to conduct and pass any required CEMS or fuel flowmeter 
quality-assurance test by the applicable deadline (or within a 
specified grace period) causes the monitoring system to be considered 
``out of control'' just as an equipment failure would. Data obtained 
from such a monitoring system are considered invalid and the unit must 
report substitute data until the required test is conducted and 
passed.\15\ The unit's operator must then bear the correspondingly 
higher allowance costs that are caused by the higher reported 
emissions.
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    \11\ See 40 CFR part 75, appendix B, section 2.
    \12\ See id.
    \13\ See 40 CFR part 75, appendix D, sections 2.1.6.3 and 
2.1.6.4(b).
    \14\ See 40 CFR part 75 appendix D, sections 2.2 and 2.3.
    \15\ See, e.g., 40 CFR part 75, appendix B, section 2.3.1.1, and 
appendix D, sections 2.1.6 and 2.1.7.
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    In ordinary circumstances, requiring operators to report substitute 
data when quality-assurance testing deadlines are missed appropriately 
provides operators with a strong incentive to conduct the required 
tests in a timely manner, just as they are provided with a strong 
incentive to maintain high availability of their monitoring equipment. 
However, in circumstances where an operator may be unable to meet test 
deadlines because of the COVID-19 outbreak, and where it may not be 
possible to complete the delayed test for an extended period for 
reasons outside the operator's control, requiring data substitution 
cannot induce more timely compliance with quality-assurance 
requirements. Indeed, to the extent the desire to avoid an extended 
period of data substitution requirements incentivizes the operator to 
proceed with testing instead of more rigorously complying with travel, 
plant access, and other safety restrictions imposed to address the 
current COVID-19 emergency, the data substitution requirements may put 
plant operators and other personnel at risk and be in tension with 
immediate public health imperatives.
    Conducting quality-assurance tests often requires resources from 
outside the plant being tested. RATAs and other stack tests are 
generally performed by contractor personnel who travel from plant to 
plant rather than by on-site

[[Page 22366]]

plant personnel. State regulatory staff often attend as observers. 
Under emergency conditions when travel or plant access is restricted, 
it may be difficult or impossible for these outside personnel to 
perform or observe testing at the previously scheduled times. Further, 
such tests are often scheduled months in advance, and if a large number 
of units are delaying tests simultaneously, the average time until the 
tests can be rescheduled will be even longer than usual. Moreover, 
RATAs, linearity checks, and calibration error tests of gas 
concentration CEMS all require calibration gases that are delivered 
from specialized producers, and appendix D fuel sample analyses are 
often performed at outside laboratories. Travel, plant access, and 
other safety restrictions, such as emergency-related shutdowns of 
external facilities, may make it difficult for affected sources to 
restock their calibration gases if on-site supplies run out or to 
obtain analyses of fuel samples.
    According to data reported to EPA, part 75 RATAs were performed at 
1,033 monitoring locations in the second quarter of 2019.\16\ Given the 
typical four-quarter interval between required RATAs, EPA therefore 
believes that approximately 1,000 units will have deadlines to perform 
RATAs in April, May, and June of 2020.\17\ Since the beginning of March 
2020, EPA has been contacted by nine power plant owners (who 
collectively operate over 300 units subject to part 75 requirements), 
an emissions data acquisition and handling system (DAHS) vendor, two 
consulting companies, and two state regulatory agencies indicating that 
stack testing requirements will be difficult or impossible to meet on a 
timely basis in locations where plant access has been limited or where 
local or state governments have imposed shelter-in-place or other 
restrictions for all but essential activities. More information on 
these communications is provided in the document entitled ``Stakeholder 
Communications Regarding the COVID-19 Emergency'' in the docket for 
this action.\18\
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    \16\ See ``Part 75 RATAs Reported for 2019 Q2.xlsx,'' available 
in the docket for this action. Over 1500 RATAs were performed at the 
1033 monitoring locations. See id. EPA notes that the number of 
monitoring locations is not identical to the number of affected 
units, because some monitoring locations are at common stacks 
serving multiple units, and emissions of some units are monitored at 
multiple monitoring locations.
    \17\ The normal four-quarter interval can be extended if a unit 
does not operate in a given quarter. See 40 CFR part 75, appendix B, 
section 2.3.1.1. Thus, deadlines for some of the approximately 1,000 
units that conducted RATAs in the second quarter of 2019 will be 
extended beyond the second quarter of 2020, while other units whose 
most recent previous RATA was before the second quarter of 2019 will 
have an extended RATA deadline in the second quarter of 2020.
    \18\ See also, e.g., ``Sequestered in power plants or at-home 
call centers: Consumers Energy in the age of COVID-19,'' 
dailyenergyinsider.com (April 9, 2020); ``PJM ramps up preparations 
as COVID-19 hotspots emerge in its footprint,'' www.powermag.com 
(April 8, 2020); ``Power industry pleads for priority COVID-19 
testing, PPE for mission-essential workers,'' www.powermag.com 
(April 7, 2020); ``NYISO workers now living at grid control 
centers,'' www.powermag.com (March 30, 2020); ``Utilities plan to 
keep key staff housed at power plants,'' www.powermag.com (March 20, 
2020); ``Utility workers prepare to sleep at work to keep the power 
flowing,'' www.salon.com (March 20, 2020); ``How power companies are 
keeping your lights on during the pandemic,'' www.latimes.com (March 
19, 2020).
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    EPA believes the current national emergency related to COVID-19 has 
revealed a need for limited, temporary revisions to the quality-
assurance requirements in the part 75 regulations. As discussed above, 
the regulations treat a missed quality-assurance test as equivalent to 
the failure of a monitoring system to provide any data at all, an 
approach that in ordinary circumstances appropriately provides 
operators with a strong incentive to conduct required quality-assurance 
and certification tests in a timely manner, just as they are provided 
with a strong incentive to maintain high availability of their 
monitoring equipment. However, the rationale for treating these two 
different sorts of failures as equivalent is no longer compelling in 
the circumstances of this declared national emergency related to COVID-
19 that makes it difficult or impossible for some, or many, plant 
operators to conduct required quality-assurance tests on a timely basis 
for reasons outside their control and where efforts to conduct the 
tests may conflict with efforts to address the emergency and put plant 
operators and other essential personnel at risk. Travel, plant access, 
and other safety restrictions put in place to protect public health in 
light of the COVID-19 outbreak are highly likely to interfere with 
operators' ability to conduct some tests, both by limiting the 
availability of outside contractor personnel and state regulatory 
observers and by limiting plants' ability to restock depleted 
calibration gas supplies. Under the existing part 75 regulations, 
missing a test deadline could lead to an extended period for which an 
affected unit could be required to report increasingly conservative 
substitute data, with adverse cost consequences. Where the reason for 
missing a test is caused by the COVID-19 outbreak, EPA does not believe 
it is appropriate to impose this automatic consequence. The amendments 
promulgated in this action will ensure that the regulations do not 
inappropriately penalize plant operators.
    The need to address the incentive features of the existing 
regulations is urgent in light of the actions being taken to address 
the current national emergency and the large number of units facing 
decisions in the near term on whether to proceed with tests scheduled 
for April and May. With each upcoming test, plant operators subject to 
restrictions because of the emergency must decide how to balance the 
potential regulatory consequences of delaying the test with the actions 
being implemented to protect the health of key plant and other 
personnel and public health under the emergency. The consequences to a 
source of missing a quality-assurance test are small initially, but 
grow rapidly as the period past the missed test deadline lengthens. 
Given uncertainty about the duration of the emergency-related 
restrictions, operators currently face uncertainty about when they 
might next be able to reschedule a delayed test, which leads to 
uncertainty regarding the magnitude of the automatic regulatory 
penalties that they risk incurring by deferring each test. As noted 
above, in April through June 2020, as many as 1,000 units will face 
decisions on whether or not to defer scheduled annual or semi-annual 
RATAs. EPA believes operators should have clear information now about 
the consequences of decisions regarding plant testing so that they can 
make the best immediate decisions about how to address the public 
health emergency and not put their employees at risk because of 
potential adverse regulatory consequences that can be avoided through a 
temporary rule amendment.
    The primary set of part 75 tests giving rise to the concerns that 
EPA is addressing in this action comprises the quality-assurance tests 
discussed above, because of the very large number of those tests that 
under normal circumstances would be conducted in April and May 2020 and 
whose timing is therefore very much affected by the current COVID-19 
national emergency. However, certain other types of part 75 testing 
requirements raise analogous concerns for smaller numbers of units, and 
because of the similarity of the issues, this action addresses the 
additional tests as well. First, initial certification of a monitoring 
system under the part 75 regulations likewise requires a variety of 
tests to be passed by specified deadlines before the monitoring system 
can be used to report valid data. Some of the same tests may

[[Page 22367]]

also be required in instances where a monitoring system needs to be 
recertified following an equipment change. The required certification 
tests include RATAs for both gas concentration CEMS and stack gas flow 
rate CEMS, linearity checks and calibration error tests for gas 
concentration CEMS, and accuracy tests for fuel flowmeters.\19\ If 
certification testing for a monitoring system is not successfully 
completed by the applicable deadline, the unit must report substitute 
data in place of the data obtained from that monitoring system until 
all required tests have been passed.\20\ In these instances, substitute 
data are generally based on the maximum potential values for the 
monitoring system starting in the first operating hour after the 
applicable test deadline. The regulations include provisions allowing a 
unit to report ``conditionally valid'' data following completion of the 
first required certification or recertification test until the timely 
and successful completion of the last required test. However, if all 
tests are not successfully completed by the applicable deadlines, the 
data that were previously considered conditionally valid are 
invalidated, and the unit must instead report substitute data for all 
operating hours until all required tests have been successfully 
completed.\21\ For any unit whose certification testing schedule calls 
for testing during the current emergency situation, the considerations 
over how to balance the regulatory consequences of deferring the test 
with the public health emergency are the same as for an existing unit 
facing a near-term decision on a required quality-assurance test.
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    \19\ See Sec.  75.20(c) and (g).
    \20\ See Sec.  75.4(j).
    \21\ See Sec.  75.20(b)(3).
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    Second, units using part 75 monitoring methodologies other than 
CEMS-based methodologies may also be required to meet periodic fuel 
analysis or emission rate testing requirements. For example, under 
appendix D to part 75, a qualifying unit calculates reported hourly 
SO2 mass emissions and heat input from its monitored hourly 
fuel usage in combination with unit-specific data on fuel sulfur 
content, density, and/or gross calorific value. In general, the data on 
fuel characteristics must be regularly updated through laboratory 
analyses of fuel samples. When fuel analyses are not updated in a 
timely manner, as could happen if outside laboratories close in an 
emergency, the unit must report substitute data that eventually reflect 
default maximum values for each fuel type.
    Other non-CEMS based methodologies under part 75 require periodic 
NOX emission rate testing. Under appendix E to part 75, a 
qualifying unit calculates reported hourly NOX mass 
emissions from its monitored hourly fuel usage in combination with 
unit-specific historical test data correlating the unit's hourly 
NOX emission rate to the unit's hourly fuel usage. The 
appendix E regulations require the unit-specific correlations to be 
updated based on new stack testing at least every twenty calendar 
quarters, and if updated appendix E tests are not completed by the 
deadline, the unit must report substitute data based on the unit's 
maximum potential NOX emission rate.\22\ Similarly, under 
the low mass emissions (LME) methodology in Sec.  75.19, a qualifying 
unit may calculate its NOX mass emissions using a fuel-and-
unit-specific NOX emission rate based on historical test 
data instead of using the default emission rates published in the 
regulations, and the fuel-and-unit-specific NOX emission 
rate data must be updated based on new stack testing at least every 
twenty calendar quarters.\23\ While the interval between required tests 
is long, for any unit for which the end of the interval--and therefore 
the unit's scheduled testing--falls in the emergency period, the 
considerations over whether to perform or defer the required 
NOX emission rate testing are again the same as for a unit 
facing a near-term decision on a required quality-assurance test.
---------------------------------------------------------------------------

    \22\ See 40 CFR part 75, appendix E, sections 2.2 and 2.5.
    \23\ See Sec.  75.19(c)(1)(iv)(D).
---------------------------------------------------------------------------

    Finally, EPA notes that since its initial promulgation, part 75 has 
contained provisions at Sec.  75.66 allowing EPA to make exceptions to 
individual regulatory requirements in appropriate circumstances. This 
authority is broad but requires exceptions to be made on a case-by-case 
basis: The designated representative for a unit (or group of units) 
must submit a petition to EPA for an alternative to a given regulatory 
requirement, describing the facts and the requested alternative, after 
which EPA considers the petition and provides a written response 
granting or denying the request.\24\ Importantly, Sec.  75.66 does not 
authorize EPA to grant exceptions to a given requirement or set of 
requirements for all affected units (or all affected units meeting 
specified conditions) simultaneously, even on a temporary basis, and 
for this reason the section is not well suited to addressing emergency 
situations that cause a particular regulatory requirement to have 
unintended consequences for a large number of affected units. Even if 
EPA ultimately were to grant some or even most of the petitions 
relating to the emergency, an owner or operator facing an immediate 
decision on whether to defer a test in light of public health concerns 
related to the COVID-19 emergency would be unable to predict that 
outcome at the time when the immediate decision must be made.
---------------------------------------------------------------------------

    \24\ EPA's responses are posted at https://www.epa.gov/airmarkets/part-75-petition-responses.
---------------------------------------------------------------------------

B. Description of Amendments

    The amendments being finalized in this action are carefully 
targeted to address the regulatory provisions discussed in section II.A 
of this document while leaving other features of the regulations 
unchanged. Specifically, the amendments allow sources to continue to 
report monitored data as valid instead of requiring the sources to 
report substitute data in instances where data from a monitoring system 
would otherwise be considered invalid solely because of failure to 
complete a required test by the applicable deadline and where the 
failure to complete the test is attributable to travel, plant access, 
and other safety restrictions implemented to address the COVID-19 
national emergency. The amendments cover each of the types of testing 
requirements described in section II.A of this document--quality-
assurance tests, certification and recertification tests, appendix D 
fuel analyses, and appendix E and LME emission rate tests. Affected 
units will continue to be required to report emissions data for every 
operating hour of a control period, and no changes are made to any 
existing emissions limitations. Sources are required to complete any 
delayed tests as soon as practicable after relevant emergency-related 
restrictions no longer apply. The emergency period for which a source 
can report valid data under the amended provisions is limited to the 
duration of the COVID-19 national emergency plus a grace period of 60 
days to complete delayed tests, but no later than the date of 
expiration of the amendments (i.e., 180 days from publication in the 
Federal Register).
    As discussed in section V.B of this document, the Office of 
Management and Budget (OMB) has approved an emergency information 
collection request (ICR) establishing certain new recordkeeping and 
reporting provisions that will apply to any use of the amended 
emissions data reporting requirements promulgated in this action. 
Sources will be required to

[[Page 22368]]

document the reasons for delaying any required test and to submit 
notifications to EPA when a test is delayed and when the delayed test 
is later completed. (In the case of tests that recur more often than 
quarterly, such as CEMS daily calibration error tests and certain 
appendix D fuel analyses, sources may treat a series of recurring tests 
as a single test for purposes of the required notifications.) Each 
notification of a delayed test must identify the affected unit, the 
test being delayed, the otherwise applicable deadline, and the 
emergency-related reasons why the test could not be completed by the 
deadline. Each notification of completion of a delayed test must 
identify the affected unit, the completed test, the date as of which 
emergency-related restrictions that formerly impaired testing for that 
unit no longer applied, and the date of test completion. In addition, 
both notifications must include certifications that the unit meets the 
criteria for using the amended procedures. Notifications may not 
contain Confidential Business Information (CBI) and must be submitted 
by email to camdpetitions@epa.gov, generally within five business days 
after the applicable test deadline or completion date. Notifications 
may be submitted by the designated representative or an agent with 
delegated authority to submit quality-assurance test data. EPA will 
prepare summaries of the submitted notifications identifying the units, 
the delayed tests and test deadlines, and the completed tests and 
completion dates and will post the summaries on a publicly accessible 
website.
    In addition to the new recordkeeping and reporting requirements 
described above, EPA notes that under the existing part 75 regulations, 
reporting monitored data as valid following failure to complete a 
required test will require sources to assign a different method of 
determination code (MODC) to the data in an affected unit's data 
acquisition and handling system (DAHS), and further notes that the 
existing regulations at Sec.  75.53 require sources to keep their 
monitoring plans up to date with respect to any change in a DAHS. In 
addition, the existing compliance certification requirements at Sec.  
75.64(c) require an affected unit's designated representative to 
``indicate whether the monitoring data submitted were recorded in 
accordance with the applicable requirements of this part . . .'' which 
now include the provisions promulgated in these amendments. EPA also 
notes that nothing in these amendments prevents a state from requiring 
sources to record and/or report additional documentation demonstrating 
that the reason for any failure to complete a required test by the 
applicable deadline was in fact caused by restrictions implemented to 
address COVID-19 national emergency conditions.
    The amended provisions are located in new section 40 CFR 75.68 
entitled ``Temporary modifications to otherwise applicable quality-
assurance requirements during the COVID-19 national emergency.'' The 
introductory text of paragraph (a) provides that the provisions of the 
new section apply during the defined emergency period notwithstanding 
any other provisions of part 75. Paragraph (a)(1) defines the emergency 
period for purposes of the new section as the period of the COVID-19 
national emergency with an additional 60 days for completion of delayed 
tests (but not beyond the expiration of the amendments), keying the 
start and end dates of the national emergency to actions taken by the 
President and Congress in accordance with the National Emergencies Act, 
50 U.S.C. 1601-1651. The start date of the emergency is therefore March 
13, 2020, the date on which the President declared the national 
emergency related to the COVID-19 outbreak.\25\ Paragraph (a)(2) 
identifies the quality-assurance tests, certification or 
recertification tests, appendix D fuel analyses, and appendix E and LME 
NOX emission rate tests with respect to which the temporary 
procedures apply. Paragraph (a)(3) permits sources to report data from 
monitoring systems as valid during emergency periods despite failure to 
complete required quality-assurance tests by the applicable deadlines, 
provided that (i) the data are otherwise valid; (ii) the failure to 
complete the tests is attributable to travel, plant access, or other 
safety restrictions implemented to address the COVID-19 national 
emergency; and (iii) the applicable recordkeeping and reporting 
requirements are met. Paragraph (a)(4) addresses failures to complete 
required certification or recertification tests in the same manner, 
except that the data may be reported as conditionally valid rather than 
valid, pending successful completion of the delayed certification 
tests. Paragraph (a)(5) addresses failures to complete required 
appendix D fuel analyses or appendix E or LME emission rate tests in 
the same manner and provides that the sources may continue to use the 
results of the most recent previously approved analyses or tests to 
determine reported emissions. Paragraph (a)(6) requires any delayed 
tests to be completed as soon as practicable after the relevant 
emergency-related restrictions are lifted but no later than 60 days 
after the end of the COVID-19 national emergency (and no later than the 
date of expiration of these amendments), requires reporting of 
substitute data if the delayed tests are not completed by these new 
deadlines, and provides that the completed tests are considered timely 
for purposes of identifying the deadlines for the next periodically 
scheduled tests. Paragraph (a)(7) sets out the new recordkeeping and 
reporting requirements that apply to use of the amended procedures.
---------------------------------------------------------------------------

    \25\ See 85 FR 15337 (March 18, 2020).
---------------------------------------------------------------------------

    The amendments are being promulgated as a final action and are 
effective immediately upon publication in the Federal Register. The 
amendments will expire after 180 days. Paragraph (b) of new Sec.  75.68 
provides the effective date and expiration date of the amendments.

C. Expected Impacts

    The amendments finalized in this action do not suspend any existing 
requirements for any affected unit to report emissions for any hour of 
operation and do not alter any existing emissions limitations under any 
program. EPA consequently has no reason to expect the rule's amendments 
to the part 75 quality-assurance requirements to cause any change in 
affected units' emissions behavior. The rule therefore will not result 
in any harm to public health or the environment that might occur from 
increased emissions. To the extent that the amendments facilitate plant 
operators' efforts to comply with travel, plant access, and other 
safety restrictions imposed to protect public health during the COVID-
19 emergency, the amendments will have a positive impact on public 
health by assisting efforts to slow the spread of the disease.
    The actual monitored emissions data that will be reported under the 
amendments promulgated in this action will be the same data that would 
have been reported if the required part 75 tests were successfully 
completed by the applicable deadlines. There is of course a possibility 
that if the tests had been completed on schedule at all units, the 
tests would not have been passed at some units, leading to adjustments 
to those units' monitoring systems, a further round of testing, and 
improvements to the reported data. While the data reported in emergency 
situations under the amendments will lack these improvements, failures 
of

[[Page 22369]]

RATAs are rare,\26\ which EPA considers evidence that operators treat 
the obligation to maintain their monitoring systems seriously, due at 
least in part to the periodic RATA requirements. Thus, there is no 
reason to expect the absence of the data improvements to cause a bias 
toward understatement of emissions, and given the need to balance data 
quality considerations with public health and other considerations, EPA 
believes it is reasonable to treat the resulting data as adequate for 
purposes of an emergency period.
---------------------------------------------------------------------------

    \26\ For example, none of the 1500 RATAs reported for the second 
quarter of 2019 were failed.
---------------------------------------------------------------------------

    In the case of units that decide to defer quality-assurance tests 
that in the absence of the amendments they would have performed as 
scheduled, EPA generally does not expect a significant impact on the 
units' quality-assurance costs because the primary effect on their 
testing costs would simply be to delay the costs for some portion of 
the COVID-19 emergency period.\27\ EPA notes that, because the 
amendments are limited to circumstances where failure to complete a 
quality-assurance test is attributable to the COVID-19 national 
emergency, and there is no suspension of data substitution requirements 
when data are missing or are invalid for a non-emergency-related 
reason, there would be no diminishment of operators' existing 
incentives to maintain their monitoring systems.
---------------------------------------------------------------------------

    \27\ This expectation applies with respect to delayed RATAs, 
which typically account for the majority of quality-assurance and 
certification testing costs, and to delayed quarterly tests that can 
be rescheduled in the same quarter following the end of emergency-
related restrictions. With respect to daily tests or other quarterly 
tests missed for reasons related to the national emergency, testing 
on normal schedules generally would resume without any rescheduling 
of tests missed because of the emergency.
---------------------------------------------------------------------------

    By allowing operators to report monitored data instead of 
substitute data, the amendments will also cause reported emissions 
levels, both at individual facilities and in aggregate, to track actual 
monitored emissions levels more closely than would be the case if units 
had to report the higher, intentionally conservative data required by 
the data substitution provisions for extended periods of time. The 
expected consequence of this impact on reported emissions levels is 
that plant operators will need to surrender fewer emission allowances 
to cover their reported emissions and will therefore incur lower total 
costs for emissions allowances. EPA estimates that up to 1,000 units 
may use the amended regulations to report actual monitored data instead 
of substitute data for some portion of the current emergency period, 
but has not attempted to estimate the magnitude of the impacts on 
either reported emission levels or allowance costs.

III. Rulemaking Procedures and Findings of Good Cause

    EPA is promulgating this rule as a final action without prior 
notice or opportunity for public comment because the good cause 
exception under APA section 553(b)(B), 5 U.S.C. 553(b)(B), applies 
here. If APA section 553(b)(B) did not apply, this rule would be 
subject to the rulemaking procedures in CAA section 307(d).\28\ 
However, CAA section 307(d) does not apply ``in the case of any rule or 
circumstance referred to in [APA section 553(b)(B)]'' \29\--i.e., the 
good cause exception noted above--making this rule subject to the 
rulemaking procedures in APA section 553 instead, other than subsection 
553(b).\30\ APA section 553(b)(B) allows an agency to promulgate a rule 
without providing prior notice and opportunity for public comment 
``when the agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefor in the rule issued) that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.''
---------------------------------------------------------------------------

    \28\ See CAA section 307(d)(1)(G), (T); 42 U.S.C. 7607(d)(1)(G), 
(T). See also CAA section 307(d)(3); 42 U.S.C. 7607(d)(3) (requiring 
publication of a proposed rule with an opportunity for public 
comment).
    \29\ See CAA section 307(d)(1); 42 U.S.C. 7607(d)(1).
    \30\ APA section 553(b) generally requires notice-and-comment 
rulemaking procedures unless, as here, an exception applies under 
section 553(b)(A) or (B). 5 U.S.C. 553(b).
---------------------------------------------------------------------------

    EPA finds that there is good cause for promulgating this final rule 
without providing prior notice and an opportunity for public comment 
because providing such notice and opportunity for comment, with respect 
to the amendments promulgated in this action, is impracticable and 
contrary to the public interest for the reasons further explained in 
this section. There is an urgent need for EPA to revise the part 75 
regulations to adjust the near-term and cascading impacts on sources 
not meeting certain regulatory requirements during national 
emergencies, such that sources are better able to abide by the public 
health restrictions put in place to address the current national 
emergency concerning the COVID-19 outbreak. As noted above, EPA has 
been contacted by plant owners who collectively operate over 300 
affected units, as well as stack-testing companies and state air 
agencies, regarding near-term problems in completing required part 75 
quality-assurance tests because of travel and plant access restrictions 
imposed to protect public health in light of the COVID-19 outbreak.\31\ 
Personnel who would not be on-site for normal plant operations are 
often required to conduct these quality-assurance tests. In light of 
the current health emergency, many plant operators have restricted 
plant access to reduce the risk to plant essential personnel as well as 
the general public. In addition, travel has been severely restricted. 
Compliance by plant operators and others with these efforts to address 
the COVID-19 emergency are in tension with the existing regulatory 
provisions that automatically penalize plant operators for failing to 
complete required tests even when completing the tests requires travel 
or plant access that would otherwise be restricted because of the 
emergency. It is a matter of urgency for EPA to address this issue now 
so that plant operators can make informed decisions regarding plant 
access and determine whether to perform or delay tests scheduled in 
April and May 2020. If EPA were to delay action, the potential 
consequences of failing to timely conduct quality assurance tests would 
either lead to a weakening of steps taken to address the COVID-19 
emergency or penalize plant operators for enforcing travel and plant 
access restrictions. As explained in this document, EPA has determined 
that targeted, narrow revisions to the regulations to give plant 
operators additional flexibility regarding the timing of quality 
assurance tests can address this urgent problem without adversely 
impacting air quality or public health.
---------------------------------------------------------------------------

    \31\ See ``Stakeholder Communications Regarding the COVID-19 
Emergency,'' available in the docket.
---------------------------------------------------------------------------

    EPA has determined that there is good cause to forgo a public 
notice and comment process because such public process is 
impracticable, since notice and comment rulemaking would impair the 
agency's ability to timely address an urgent situation under our 
current regulations that has the potential to threaten public health 
and safety. In sum, the current regulations result in automatic 
penalties if certain requirements are not met but meeting those 
requirements could require sources to take actions contradictory to 
restrictions in place to address the COVID-19 emergency. Specifically, 
the flexibilities provided through this rule potentially impact over 
1,000 units with upcoming test deadlines in April, May, and June of 
this year. Providing public notice and comment is impracticable, 
because plant operators must make decisions regarding whether to 
conduct

[[Page 22370]]

tests in April and May 2020. Because of the limited amount of time 
between the declaration of the COVID-19 national emergency and the 
applicable testing deadlines, there was insufficient time to seek 
comment on the rule.
    Taking the additional time required to allow for submission of 
comments and development of a response to comments is impracticable 
because, in this time of emergency, it would delay finalization of 
amendments needed to assure source operators that efforts to address 
the COVID-19 national emergency will not result in automatic adverse 
consequences for the many sources likely to be impacted. Although the 
costs to sources of reporting substitute data may be small initially, 
the costs grow substantially over time, and the operators need to make 
decisions in the near-term on whether to defer testing while facing 
considerable uncertainty as to when it will next be possible for them 
to conduct the testing (and, therefore, how large the costs may 
eventually become). It is therefore a matter of urgency to promulgate 
these amendments to address the tension between the existing 
regulations and travel and plant access restrictions imposed to address 
the public health emergency and protect essential plant and other 
personnel.\32\ EPA has concluded that an immediate response--
promulgating these final amendments--is needed to ensure that part 75 
regulatory requirements do not impose unnecessary adverse consequences 
on affected sources due to travel restrictions and other limitations on 
movement and plant access in place to respond to the COVID-19 national 
emergency. Issuance of the amendments is needed to assure operators now 
that they will not, in fact, be penalized for deciding now to defer 
testing when proceeding with tests as scheduled would not be in 
accordance with such restrictions. As noted in section II.A of this 
document, by approximately five weeks after a missed quality-assurance 
test deadline, a baseload unit must report substitute data in all 
operating hours based on its highest hourly data value from a lookback 
period, and by approximately ten weeks after a missed test deadline, 
such a unit must report its maximum potential values. Notice-and-
comment rulemakings (which in the case of this action, under CAA 
section 307(d), would involve providing an opportunity for a public 
hearing \33\ and a comment period extending at least 30 days following 
the public hearing, and would also require time to evaluate and respond 
to all significant comments received) frequently take much longer than 
ten weeks.
---------------------------------------------------------------------------

    \32\ See supra note 18.
    \33\ Adequate prior notice must be provided for any such 
hearing.
---------------------------------------------------------------------------

    EPA has also determined that there is good cause to forgo a public 
notice and comment process for this rule because such public process is 
contrary to the public interest. The delay associated with undertaking 
ordinary notice and comment procedures would, in fact, harm the public 
interest here. Such a delay would keep in place EPA regulations that 
incentivize actions counter to the restrictions necessary to protect 
public health and to address the COVID-19 emergency. Approximately 
1,000 sources with upcoming test deadlines in April, May, and June of 
this year are potentially impacted by the automatic provisions in the 
part 75 monitoring regulations and must make personnel and other 
decisions regarding operation of the sources before their respective 
test deadlines, including decisions regarding access to perform 
quality-assurance tests and certification tests. It is imperative that 
EPA provide immediate assurance that adverse consequences (in the form 
of impacts that flow from not meeting certain required testing 
deadlines that affect allowance holding requirements for reasons not 
anticipated when establishing the current requirements) will not flow 
from measures taken to comply with directives to protect public health, 
and to better ensure that the existing requirements would not result in 
actions being taken during the national emergency that would run 
counter to the efforts and restrictions in place to address the public 
health in light of the COVID-19 outbreak.\34\ At the same time, the 
amendments are carefully targeted to avoid collateral adverse impacts. 
Specifically, the amendments stop the automatic penalties discussed 
above in national emergency circumstances but not in non-national 
emergency circumstances, they leave other monitoring-related 
requirements and reporting requirements in place, and they do not alter 
any emissions limitations. In addition, the regulatory revisions 
promulgated in this document will expire in 180 days absent further 
action by EPA.
---------------------------------------------------------------------------

    \34\ See supra note 18.
---------------------------------------------------------------------------

    Thus, EPA finds good cause under APA section 553(b)(B) to take this 
final action without prior notice or opportunity for comment both 
because providing notice and an opportunity for comment would be 
impracticable and because it would be contrary to the public interest.
    The amendments promulgated in this final rule will expire in 180 
days. In deciding that the amendments should expire in 180 days, EPA 
considered the importance of providing regulatory certainty to the 
regulated community discussed above and the time-frame needed to 
conduct a full notice-and-comment rulemaking. Given the current 
uncertainty concerning the spread of COVID-19, EPA believes it is 
reasonable to provide regulatory certainty to sources that the 
amendments in this action will be in effect for at least 180 days. At 
the same time, given the narrow scope of the amendments, some 
stakeholders might challenge the reasonableness of keeping the 
amendments in effect on a temporary basis for longer than 180 days on 
the grounds that the Agency might have been able to make the temporary 
amendments effective beyond 180 days through notice-and-comment 
rulemaking within such a time period. For these reasons, EPA is 
providing that the amendments will expire in 180 days.
    EPA is also making this final rule effective immediately upon 
publication in the Federal Register. As discussed in the first 
paragraph of this section, if the good cause exception in APA section 
553(b)(B) did not apply, this rule would be subject to the rulemaking 
procedures in CAA section 307(d). Instead, because CAA section 307(d) 
does not apply, the rule is subject to the rulemaking procedures in APA 
section 553 other than subsection 553(b).\35\ APA section 553(d), which 
therefore applies to this rule, generally requires that actions covered 
by the section become effective not less than 30 days after publication 
but also provides several exceptions.
---------------------------------------------------------------------------

    \35\ See supra note 30.
---------------------------------------------------------------------------

    Under APA section 553(d)(1), rulemaking actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction.'' The purpose of 
this provision is to ``give affected parties a reasonable time to 
adjust their behavior before the final rule takes effect.'' \36\ 
However, when the agency grants or recognizes an exemption or relieves 
a restriction, affected parties do not need a reasonable time to adjust 
because the effect is not adverse. EPA has determined that this rule 
grants or recognizes an exemption or relieves a restriction because the 
nature of the rule change being approved is to allow

[[Page 22371]]

sources to report their actual monitored data values instead of being 
required to report substitute data values--a change which is virtually 
always advantageous to the source--in circumstances where the source 
fails to complete a required test by the applicable deadline for 
reasons caused by this COVID-19 national emergency.
---------------------------------------------------------------------------

    \36\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); 
see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 
1977) (quoting legislative history).
---------------------------------------------------------------------------

    Additionally, APA section 553(d)(3) allows an effective date less 
than 30 days after publication ``as otherwise provided by the agency 
for good cause found and published with the rule.'' As noted above, the 
purpose of the 30-day waiting period generally prescribed in section 
553(d) is to give affected parties a reasonable time to adjust their 
behavior before the final rule takes effect. Thus, in determining 
whether good cause exists to waive the 30-day delay, an agency should 
``balance the necessity for immediate implementation against principles 
of fundamental fairness which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of its ruling.'' \37\ In the case of this rule, EPA has determined that 
there is good cause for making this final rule effective immediately. 
Regarding urgency, EPA finds the that the reasons supporting EPA's 
finding of good cause under APA section 553(b)(B) for making this 
action final without prior notice or opportunity for comment also 
support an immediate effective date. Primarily, it is urgent for EPA to 
revise the part 75 regulations to adjust the near-term and cascading 
impacts of sources not meeting certain regulatory requirements during 
national emergencies, such that sources are better able to abide with 
restrictions in place to address the current national emergency 
concerning the COVID-19 outbreak without facing unintended adverse 
regulatory consequences. Further, this rule raises no material concerns 
regarding the fairness of imposing new requirements without additional 
notice because it does not create any new regulatory requirements such 
that affected parties would need time to prepare before the rule takes 
effect. Rather, this action simply allows sources to report actual 
monitored data values instead of substitute data values in specified 
circumstances, which is both advantageous to the sources and readily 
accomplished using their existing monitoring equipment and reporting 
software. For these reasons, EPA finds good cause exists for this 
action to become effective on the date of publication in the Federal 
Register.
---------------------------------------------------------------------------

    \37\ Gavrilovic, 551 F.2d at 1105.
---------------------------------------------------------------------------

IV. Request for Comment

    As explained above, EPA finds good cause to take this final action 
without prior notice or opportunity for public comment and to make this 
action effective immediately upon publication in the Federal Register. 
However, EPA is also implementing this action on a temporary basis only 
and is providing notice and an opportunity for comment on the content 
of the temporary amendments. EPA requests comment on all aspects of 
this rule. EPA is not reopening for comment any provisions of 40 CFR 
part 75 other than the specific provisions added by this rule.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to OMB for review because it may raise novel legal or policy issues. 
Any changes made in response to OMB recommendations have been 
documented in the docket.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be subject to Executive Order 13771 
because it is not expected to result in more than de minimus costs on 
net.

C. Paperwork Reduction Act

    The information collection activities in this rule have been 
submitted for approval to OMB under the PRA as an emergency information 
collection request (ICR). You can find a copy of the ICR document in 
the docket for this rule at regulations.gov (Docket No. EPA-HQ-OAR-
2020-0211), and it is briefly summarized here.
    The collection of information is necessary in order to ensure that 
the amended procedures that allow sources to report actual monitored 
data instead of substitute data when a test cannot be completed by the 
applicable deadline because of travel, plant access, and other safety 
restrictions implemented to address the COVID-19 national emergency are 
used only in accordance with the regulations. Sources are required to 
maintain records demonstrating that the reasons they were unable to 
complete delayed tests by the applicable deadlines were related to 
travel, plant access, or other safety restrictions put in place to 
address the COVID-19 national emergency. Sources are also required to 
submit notifications to EPA following the delay or completion of a test 
for which the amended procedures are used. The notification for a 
delayed test includes information identifying the unit and test, the 
applicable deadline, and the emergency-related reasons why the test 
could not be completed by the deadline. The notification for a 
completed test includes information identifying the unit and test, the 
date when restrictions related to the COVID-19 national emergency 
ceased to apply for that unit, and the test completion date. Each 
notification must include a certification of accuracy in order to 
ensure that the unit qualifies to use the amended procedures. To 
provide transparency regarding the use of the amended procedures, EPA 
will prepare summaries of the units and states, the delayed tests and 
test deadlines, and the completed tests and completion dates and will 
post the summaries on a publicly accessible website.
    OMB has approved an emergency ICR that will be in effect for 180 
days while these temporary amendments are in effect.
    Respondents/affected entities: Approximately 4,300 units that 
monitor and report emissions under 40 CFR part 75 to meet requirements 
of the Acid Rain Program, a CSAPR trading program, or the 
NOX SIP Call.
    Respondents' obligation to respond: Required to obtain a benefit 
(40 CFR 75.68).
    Frequency of response: Occasional.
    Total estimated burden: 3,000 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $273,300 (per year); includes $0 annualized 
capital or operation & maintenance costs.
    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.

D. Regulatory Flexibility Act

    This action is not subject to the Regulatory Flexibility Act (RFA), 
5 U.S.C. 601-612. The RFA applies only to rules subject to notice-and-
comment rulemaking requirements under the APA or any other statute. 
This rule is not subject to notice-and-comment requirements because the 
Agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
the

[[Page 22372]]

Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector. This action simply allows some sources to report actual 
monitored data values instead of substitute data values for certain 
required information in specified circumstances related to the COVID-19 
national emergency.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. This 
action simply allows some sources to report actual monitored data 
values instead of substitute data values for certain required 
information in specified circumstances related to the COVID-19 national 
emergency.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments, 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. This action simply 
allows some sources to report actual monitored data values instead of 
substitute data values for certain required information in specified 
circumstances related to the COVID-19 national emergency. Thus, 
Executive Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk. This action simply allows some sources to report actual 
monitored data values instead of substitute data values for certain 
required information in specified circumstances related to the COVID-19 
national emergency.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action simply allows some sources 
to report actual monitored data values instead of substitute data 
values for certain required information in specified circumstances 
related to the COVID-19 national emergency.

J. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards.

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

    EPA believes that this action is not subject to Executive Order 
12898 because it does not establish an environmental health or safety 
standard. This action simply allows some sources to report actual 
monitored data values instead of substitute data values for certain 
required information in specified circumstances related to the COVID-19 
national emergency.

L. Congressional Review Act

    This action is subject to the Congressional Review Act (CRA), and 
EPA will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. The CRA allows the issuing 
agency to make a rule effective sooner than otherwise provided by the 
CRA if the agency makes a good cause finding that notice-and-comment 
rulemaking procedures are impracticable, unnecessary, or contrary to 
the public interest (5 U.S.C. 808(2)). EPA has made a good cause 
finding for this rule as discussed in section III of this document, 
including the basis for that finding.

M. Determination Under CAA Section 307(b)

    CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), indicates which United 
States Courts of Appeals have venue for petitions of review of final 
actions by EPA. This section provides, in part, that petitions for 
review must be filed in the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) if (i) the Agency action consists of 
``nationally applicable regulations promulgated, or final action taken, 
by the Administrator,'' or (ii) the action is locally or regionally 
applicable, but ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' This 
action amends existing regulations that apply to sources in 48 states 
and the District of Columbia, and thus the action applies to sources in 
the same jurisdictions. For this reason, the Administrator determines 
that this final action is nationally applicable or, in the alternative, 
is based on a determination of nationwide scope and effect for purposes 
of section 307(b)(1). Thus, pursuant to section 307(b), any petitions 
for review of this final action must be filed in the D.C. Circuit 
within 60 days from the date this final action is published in the 
Federal Register.

List of Subjects in 40 CFR Part 75

    Environmental protection, Acid rain, Administrative practice and 
procedure, Air pollution control, Carbon dioxide, Continuous emission 
monitoring, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide.

Andrew Wheeler,

Administrator.

    For the reasons stated in the preamble, part 75 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

PART 75--CONTINUOUS EMISSION MONITORING

0
1. The authority citation for part 75 continues to read as follows:

    Authority: 42 U.S.C. 7601 and 7651K, and 7651K note.

Subpart G--Reporting Requirements

0
2. Add Sec.  75.68 to read as follows:


Sec.  75.68   Temporary modifications to otherwise applicable quality-
assurance requirements during the COVID-19 national emergency.

    (a) Notwithstanding any other provision of this part, during and 
following the emergency period defined in paragraph (a)(1) of this 
section, the provisions of this section shall apply for purposes of 
reporting the data that are required to be reported under this part and 
completing the tests that are required to be completed under this part.
    (1) For purposes of this section, the emergency period begins on 
March 13, 2020, the date of the declaration of a

[[Page 22373]]

national emergency concerning the novel coronavirus disease (COVID-19) 
outbreak by the President of the United States in accordance with 50 
U.S.C. 1621, and concludes 60 days after the date of termination of the 
national emergency by Congress or the President in accordance with 50 
U.S.C. 1622, provided that the emergency period under this section 
shall not extend past the expiration of the effectiveness of this 
section.
    (2) The provisions of this section shall apply with respect to the 
following tests that are required to be completed under this part:
    (i) Any quality-assurance test of a continuous emission monitoring 
system required under appendix B to this part or Sec.  75.74(c).
    (ii) Any quality-assurance test of a fuel flowmeter required under 
section 2.1.6 of appendix D to this part or Sec.  75.74(c).
    (iii) Any certification or recertification test of a continuous 
emission monitoring system required under Sec.  75.20 or Sec.  
75.70(d).
    (iv) Any certification test of a fuel flowmeter required under 
section 2.1.5 of appendix D to this part or Sec.  75.70(d).
    (v) Any periodic analysis of fuel sulfur content, density, or gross 
calorific value required under section 2.2 or 2.3 of appendix D to this 
part, provided that there have been no changes in the fuel supply since 
the most recent previous fuel analysis that would reasonably be 
expected to cause a change in such fuel characteristics.
    (vi) Any periodic retest of NOX emission rates required 
under section 2.2 of appendix E to this part.
    (vii) Any periodic retest of fuel-and-unit-specific NOX 
emission rates required under Sec.  75.19(c)(4)(i)(D) that is required 
only because of the passage of time and not because of changes in the 
fuel supply, physical changes to the unit, changes in the manner of 
unit operation, or changes to the emission controls.
    (3) Following a failure to complete by the applicable deadline (or 
by the end of any grace period following the deadline) any required 
quality-assurance test or tests described in paragraph (a)(2)(i) or 
(ii) of this section for any continuous emission monitoring system or 
fuel flowmeter under this part, for any subsequent operating hour in 
the emergency period prior to completion of the test or tests in 
accordance with paragraph (a)(6)(i) of this section, the owner or 
operator of an affected unit may continue to report data determined 
using measurements obtained from the continuous emission monitoring 
system or fuel flowmeter as valid, provided that the following 
conditions are met:
    (i) But for the failure to complete the quality-assurance test or 
tests, the data obtained from the monitoring system would be considered 
valid without the benefit of the provisions of this section;
    (ii) The reason for failure to complete each such quality-assurance 
test is travel, plant access, or other safety restrictions implemented 
to address the COVID-19 national emergency; and
    (iii) The owner or operator creates and maintains the records 
specified in paragraph (a)(7)(i) of this section and the designated 
representative submits the notifications required under paragraphs 
(a)(7)(ii) and (iii) of this section.
    (4) Following a failure to complete by the applicable deadline any 
required certification or recertification test or tests described in 
paragraph (a)(2)(iii) or (iv) of this section for any continuous 
emission monitoring system or fuel flowmeter under this part, for any 
subsequent operating hour in an emergency period prior to completion of 
the test or tests in accordance with paragraph (a)(6)(i) of this 
section, the owner or operator of an affected unit may continue to 
report data determined using measurements obtained from the continuous 
emission monitoring system or fuel flowmeter as conditionally valid 
provided that the following conditions are met:
    (i) But for the failure to complete the certification or 
recertification test or tests, the data obtained from the monitoring 
system would be considered conditionally valid without the benefit of 
the provisions of this section;
    (ii) The reason for failure to complete each such certification or 
recertification test is travel, plant access, or other safety 
restrictions implemented to address the COVID-19 national emergency; 
and
    (iii) The owner or operator creates and maintains the records 
specified in paragraph (a)(7)(i) of this section and the designated 
representative submits the notifications required under paragraphs 
(a)(7)(ii) and (iii) of this section.
    (5) Following a failure to complete by the applicable deadline any 
required periodic analysis of fuel characteristics under appendix D to 
this part described in paragraph (a)(2)(v) of this section or any 
required periodic NOX emission rate testing under appendix E 
to this part or Sec.  75.19 described in paragraph (a)(2)(vi) or (vii) 
of this section, for any subsequent operating hour during the emergency 
period prior to completion of the analysis or testing in accordance 
with paragraph (a)(6)(i) of this section, the owner or operator of an 
affected unit using the methodology in appendix D may continue to 
report data determined using the fuel characteristics authorized for 
use under the regulations following the most recent previous analysis 
for that fuel, the owner or operator of an affected unit using the 
methodology in appendix E may continue to report data determined using 
the correlation curve developed from the most recent previous appendix 
E NOX emission rate testing, and the owner or operator of an 
affected unit using a fuel-and-unit-specific emission rate under the 
LME methodology in Sec.  75.19(c)(1)(iv) may continue to report data 
determined using the fuel-and-unit-specific emission rate developed 
from the most recent previous LME NOX emission rate testing, 
provided that the following conditions are met:
    (i) But for the failure to complete the appendix D fuel analysis or 
the appendix E or LME NOX emission rate testing, the data 
obtained from the appendix D, appendix E, or LME monitoring methodology 
would be considered valid without the benefit of the provisions of this 
section;
    (ii) The reason for failure to complete each such appendix D fuel 
analysis or appendix E or LME NOX emission rate test is 
travel, plant access, or other safety restrictions implemented to 
address the COVID-19 national emergency; and
    (iii) The owner or operator creates and maintains the records 
specified in paragraph (a)(7)(i) of this section and the designated 
representative submits the notifications required under paragraphs 
(a)(7)(ii) and (iii) of this section.
    (6)(i) Each quality-assurance test, certification or 
recertification test, appendix D fuel analysis, and appendix E or LME 
NOX emission rate test required under this part that was not 
completed for a unit by the applicable deadline (or by the end of any 
grace period following the deadline) must be completed as soon as 
practicable following the end of travel, plant access, or other safety 
restrictions implemented to address the COVID-19 national emergency 
that affect that unit or the personnel or supplies required to complete 
the analysis or testing for that unit, but in no event later than the 
conclusion of the emergency period as defined in paragraph (a)(1) of 
this section.
    (ii) If a test or analysis for which a deadline is established 
under paragraph (a)(6)(i) of this section is not completed by that 
deadline, the test or analysis shall be completed as soon as 
practicable thereafter, and for each

[[Page 22374]]

operating hour following that deadline until completion of the test or 
analysis, the owner or operator shall report substitute data as if the 
originally applicable deadline for the test or analysis were the 
deadline under paragraph (a)(6)(i) of this section.
    (iii) For purposes of determining the applicable deadline for the 
next quality-assurance test, appendix D fuel analysis, or appendix E or 
LME NOX emission rate test required under this part after a 
delayed quality-assurance test, appendix D fuel analysis, or appendix E 
or LME NOX emission rate test is completed or due to be 
completed in accordance with paragraph (a)(6)(i) of this section, the 
delayed test or analysis shall be considered to have been completed in 
a timely manner as of the date on which such delayed test or analysis 
was actually completed or, if earlier, the deadline for completion of 
the delayed test or analysis under paragraph (a)(6)(i) of this section.
    (7) The following recordkeeping and reporting requirements shall 
apply to any use of the procedures under paragraphs (a)(3) through (6) 
of this section:
    (i) The owner or operator of an affected unit reporting data under 
paragraph (a)(3), (4), or (5) of this section shall maintain records 
documenting the reasons for failure to complete by the applicable 
deadline each test or analysis referenced in such paragraph and 
demonstrating that such failure is caused by travel, plant access, or 
other safety restrictions implemented to address the COVID-19 national 
emergency. The owner or operator shall also maintain records 
documenting when any such travel, plant access, or other safety 
restrictions impairing the ability to complete testing or analyses for 
that unit ceased to apply. The records shall be maintained on site at 
the source in a form suitable for inspection for a period of three 
years from the date of each record.
    (ii) By five business days after the applicable deadline for a test 
or analysis referenced in paragraph (a)(3), (4), or (5) of this 
section, the designated representative shall submit to the 
Administrator, by email transmitted to camdpetitions@epa.gov, a 
notification containing the following information:
    (A) Facility ID (ORIS);
    (B) Facility name;
    (C) Monitoring location ID and/or unit ID;
    (D) Identification of the quality-assurance test, certification or 
recertification test, appendix D fuel analysis, or appendix E or LME 
NOX emission rate test for which the notification is being 
submitted;
    (E) Identification of the applicable deadline for the test or 
analysis under part 75 (not including any applicable grace period);
    (F) A detailed explanation of the reason for failure to complete 
the test or analysis by the applicable deadline under part 75, 
including an explanation of how such failure is caused by travel, plant 
access, or other safety restrictions implemented to address the COVID-
19 national emergency;
    (G) The certification statements in Sec.  72.21(b)(1) and (2) of 
this chapter.
    (iii) By five business days after the completion in accordance with 
paragraph (a)(6)(i) or (ii) of this section of a delayed test or 
analysis referenced in paragraph (a)(3), (4), or (5) of this section, 
the designated representative shall submit to the Administrator, by 
email transmitted to camdpetitions@epa.gov, a notification containing 
the following information:
    (A) Facility ID (ORIS);
    (B) Facility name;
    (C) Monitoring location ID and/or unit ID;
    (D) Identification of the quality-assurance test, certification or 
recertification test, appendix D fuel analysis, or appendix E or LME 
NOX emission rate test for which the notification is being 
submitted;
    (E) Identification of the date as of which travel, plant access, or 
other safety restrictions previously impairing the ability to complete 
the delayed test or analysis for the unit no longer applied;
    (F) Identification of the date as of which the test or analysis was 
completed in accordance with paragraph (a)(6)(i) or (ii) of this 
section; and
    (G) The certification statements in Sec.  72.21(b)(1) and (2) of 
this chapter.
    (iv) With respect to any test or analysis of a type that is 
required to be performed more frequently than once per unit operating 
quarter, a series of such required tests or analyses may be treated as 
a single test or analysis for purposes of a notification submitted 
under paragraph (a)(7)(ii) or (iii) of this section, with the 
notification under paragraph (a)(7)(ii) to be submitted by five 
business days after the first failure to perform such a test or 
analysis by the applicable deadline and the notification under 
paragraph (a)(7)(iii) to be submitted by five business days after the 
first completion of such a test or analysis in accordance with 
paragraph (a)(6)(i) or (ii) of this section.
    (v) A notification submitted under paragraph (a)(7)(ii) or (iii) of 
this section may include information for more than one required test 
for a given unit or monitoring location, provided that each item of 
information required to be included in such notification pursuant to 
paragraphs (a)(7)(ii)(D) through (F) of this section or paragraphs 
(a)(7)(iii)(D) through (F) of this section is provided separately for 
each required test included in the notification.
    (vi) No claim of confidentiality may be asserted with respect to 
any information included in a notification submitted under paragraph 
(a)(7)(ii) or (iii) of this section.
    (vii) Notwithstanding the deadlines for submission of notifications 
in paragraphs (a)(7)(ii), (iii), and (iv) of this section, no such 
notification from any owner or operator shall be due less than 30 days 
after the effective date of this section.
    (b) The requirements of this section are effective from April 22, 
2020 and, except for those in paragraphs (a)(6)(ii) and (iii) and 
(a)(7)(i) of this section, shall cease to have effect October 19, 2020.

[FR Doc. 2020-08581 Filed 4-21-20; 8:45 am]
 BILLING CODE 6560-50-P


