[Federal Register: February 24, 1997 (Volume 62, Number 36)]
[Rules and Regulations]
[Page 8313-8328] [[Page 8313]] _____________________________________________________________________
Part II Environmental Protection Agency _____________________________________________________________________
40 CFR Part 51, et al. Credible Evidence Revisions; Final Rule [[Page 8314]] ENVIRONMENTAL
PROTECTION AGENCY 40 CFR Parts 51, 52, 60 and 61 [FRL-5691-2] RIN 2020-AA27 Credible
Evidence Revisions AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule. -----------------------------------------------------------------------
SUMMARY: In an October 22, 1993 Federal Register, EPA solicited public comment
on a proposal to amend 40 CFR Parts 51, 52, 60 and 61 to eliminate language that
has been read to provide for exclusive reliance on reference test methods as the
means of demonstrating compliance with various emission limits under the Clean
Air Act (``CAA'' or ``Act''). These revisions--generally referred to as the ``credible
evidence'' revisions--were designed to clarify that non-reference test data can
be used in enforcement actions, and to remove any potential ambiguity regarding
this data's use for compliance certifications under Section 114 and Title V of
the Act. In the same document, EPA proposed an ``enhanced monitoring'' rule under
Section 114 and Title V. EPA subsequently decided to suspend development of the
original enhanced monitoring rule and develop a compliance assurance monitoring
(``CAM'') approach to serve the same statutory goals as the original enhanced
monitoring proposal. Today's rulemaking finalizes the previously proposed credible
evidence revisions to Parts 51, 52, 60 and 61. EPA will take final action regarding
enhanced monitoring and CAM in a separate rulemaking. DATES: Effective Date: April
25, 1997. Judicial Review: Under CAA section 307(b)(1), judicial review of this
nationally applicable final action is available only by the filing of a petition
for review in the U.S. Court of Appeals for the District of Columbia Circuit within
60 days of today's publication of this rule. Under CAA section 307(b)(2), the
regulations that are the subject of today's rule may not be challenged later in
civil or criminal proceedings brought by EPA in reliance on them. ADDRESSES: Docket.
Supporting information used in developing this rulemaking is contained in Public
Docket No. A-91-52. This docket is available for public inspection and copying
between 8:00 a.m. and 5:30 p.m. on weekdays, excluding federal holidays, at the
EPA Air and Radiation Docket and Information Center, Room M-1500, Waterside Mall,
401 M Street SW., Washington, DC 20460; telephone (202) 260-7548. A reasonable
fee may be charged for photocopying docket materials. FOR FURTHER INFORMATION
CONTACT: Gregory Jaffe, Air Enforcement Division (Mailcode 2242-A), Office of
Regulatory Enforcement, U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, D.C. 20460; telephone (202) 564-2260. SUPPLEMENTARY INFORMATION: The
contents of the preamble are listed in the following outline: I. Background A.
Statutory and Regulatory Authority B. Benefits of the Credible Evidence Revisions
C. Public Participation II. Summary of Final Rule A. 40 CFR Part 51, Sec. 51.212
B. 40 CFR Part 52, Sec. 52.12 C. 40 CFR Part 52, Sec. 52.30 D. 40 CFR Part 60,
Sec. 60.11 E. 40 CFR Part 61, Sec. 61.12 III. Major Issues A. Use of Credible
Evidence in Enforcement Actions B. Use of Credible Evidence in Compliance Certifications
C. EPA's Authority To Promulgate the Credible Evidence Revisions 1. Statutory
Authority 2. The Kaiser Steel Decision Does Not Constrain EPA's Authority To Amend
its Regulations 3. Despite Commenters' Claims, Clean Air Act Case Law Does Not
Mandate Exclusive Reference Tests 4. The 1990 CAA Amendments Further Support EPA's
Authority 5. Commenters' Attempts To Narrow the Scope of Sections 113(e) and 113(a)
Are Unpersuasive 6. EPA Can Promulgate the Credible Evidence Revisions Without
Reproposal D. Stringency 1. Emissions Limits Require Continuous Compliance (Consistent
With Any Averaging Times) Except During Periods Where Compliance is Specifically
Excused 2. Commenters' Advocacy of Noncontinuous Compliance Would Lead to Numerous
Anomalies 3. Comments Regarding Continuous Compliance Are Not Directed at Today's
Action, but Rather at Underlying Emission Standards 4. Enforcement Using Continuous
Monitoring Data Does Not Increase the Stringency of Applicable Requirements 5.
Sources Must Comply Both With Good Operation and Maintenance Requirements and
With Emission Limits E. SIP Call IV. Administrative Requirements A. Docket B.
Office of Management and Budget (OMB) Review C. Unfunded Mandates Reform Act D.
Regulatory Flexibility Act E. Paperwork Reduction Act F. Submission to Congress
and the General Accounting Office I. Background A. Statutory and Regulatory Authority
The credible evidence revisions are based on EPA's long-standing authority under
the Act, and on amplified authority provided by the 1990 CAA Amendments. Section
113(a) of the Act authorizes EPA to bring an administrative, civil or criminal
enforcement action ``on the basis of any information available to the Administrator.''
In this provision, which predates the 1990 CAA Amendments, Congress gave EPA clear
statutory authority to use any available information--not just data from reference
tests or other federally promulgated or approved compliance methods--to prove
CAA violations. (The preamble will generally use the phrase ``reference tests''
to include all these compliance methods. Where appropriate, the phrase ``reference
tests'' will also include test conditions specified in individual regulations.)
In the 1990 CAA Amendments, Congress included an enforcement title (Title VII)
to enhance EPA's compliance and enforcement authorities. Among other things, Congress
revised Section 113(e)(1) of the Act to overrule a federal court decision (Kaiser
Steel, discussed below) that had held that only specified reference test data
could prove violations. Thus, although the pre-existing authority of Section 113(a)
forms the principal basis for today's action, the credible evidence revisions
are also supported by the language, history and intent of the 1990 CAA Amendments.
See also Section III.C. below. In addition to clarifying EPA's, states' and citizens'
enforcement authorities under the Act, the credible evidence revisions eliminate
any potential ambiguity regarding the use of non-reference test data as a basis
for Title V compliance certifications. Such potential ambiguity could arise from
comparing the draft compliance assurance monitoring (CAM) approach and associated
Part 70 changes, which would allow sources to include CAM data as a basis for
certifying compliance, with various EPA regulations that could be read on their
face to specify reference test methods as the sole means of determining compliance.
B. Benefits of the Credible Evidence Revisions As a preliminary matter, EPA wishes
to clearly state that this rulemaking merely addresses an evidentiary issue. The
credible evidence revisions are not [[Page 8315]] intended to and will not serve
to affect the stringency of underlying emission standards by amending the nature
of the compliance obligation. This rulemaking does not amend existing emission
standards nor does it modify generic regulations affecting the compliance obligation
such as exceptions for startup, shutdown, and malfunctions. See, e.g., 40 CFR
60.8(c). This regulation also does not designate any particular data as probative
of a violation of an emission standard. Rather, this regulation merely removes
what some have construed to be a regulatory bar to the admission of non-reference
test data to prove a violation of an emission standard, no matter how credible
and probative those data are that a violation has occurred. The credible evidence
revisions do not affect the compliance obligation and thus do not affect the stringency
of existing emission standards. What compliance obligation is imposed by any given
emission standard remains an issue ultimately to be determined based on that emission
standard and not this rulemaking. For these reasons, we do not believe that this
rulemaking affects whether emission standards require intermittent or continuous
compliance. However, as made clear below, and in the detailed response to comments
document, EPA's position continues to be that an emission standard requires continuous
compliance unless the emission standard specifically provides otherwise. Today's
credible evidence revisions will benefit sources, state environmental agencies,
EPA and the public. EPA, states and citizens will be able to use credible evidence
to assess a source's compliance status and respond to noncompliance. This will
help ensure that the government and citizens alike can respond to sources that
are not complying with air pollutant emission standards on an ongoing basis, thus
furthering the protection of public health and the environment. At the same time,
sources will be able to use credible evidence for contesting allegations of noncompliance
in enforcement actions. Accordingly, today's rulemaking exemplifies EPA's ``common
sense'' approach to environmental protection, which encourages smarter, cheaper
and more flexible means of achieving environmental goals without compromising
the fundamental health and environmental protections provided by federal environmental
laws. In the past, state regulatory authorities and EPA have relied primarily
on infrequent on-site inspections and even more infrequent reference tests in
order to check compliance with emission limits at major stationary sources. According
to a September, 1990, General Accounting Office (GAO) report, these on-site inspections
were performed approximately once a year; the reference tests, typically once
every five years. ``Air Pollution: Improvements Needed in Detecting and Preventing
Violations,'' GAO, No. GAO/RCED-90-155, September 1990, at 12, 19. These methods
are inadequate to ensure that sources continuously stay within their emission
limits: for example, Pennsylvania officials have estimated that, in comparison
with continuous emissions monitoring, on-site inspections may be 50 times less
likely to detect non-compliance. Id. at 18. Reference tests may not yield a representative
emissions picture because the sources typically schedule, set up and run the tests
themselves. This allows sources to ``fine tune'' their operations and emissions
control processes prior to the tests, and generate results that may not be typical
of day-to-day source operations. Id. at 19-20. Reference tests can also be expensive
and burdensome: They can cost up to $100,000, and take a week or more to complete.
See, e.g., 43 FR 7568, 7571 (1978). In contrast to the above approach, today's
rule will make it clear that various kinds of information other than reference
test data, much of which is already available and utilized for other purposes,
may be used to demonstrate compliance or noncompliance with emission standards.
(The preamble generally refers to this other information as ``non-reference test
data''). EPA, state agencies and industry routinely rely on many types of information,
including engineering calculations, indirect estimates of emissions, and direct
measurement of emissions by a variety of means, in order to assess compliance
with CAA requirements. Where available, continuous emission monitoring (CEM) data
and well-chosen parametric monitoring data, such as the operating temperature
and air flow rate of a regenerative thermal oxidizer, generally provide accurate
data regarding a source's compliance with emission limits and standards. These
data also generally cover a greater percentage of a source's time in operation
and are more representative of a source's ongoing compliance status than sporadic
performance testing. Under today's rule both sources and potential enforcers will
be put on the same evidentiary footing in an enforcement action. Further, since
1992, EPA's Part 70 operating permit regulations have allowed the use of this
data in compliance certifications. Today's action reaffirms this approach, and
removes any potential ambiguity regarding the use of such data for this purpose.
Today's action reflects EPA's efforts to make existing regulatory programs work
better rather than creating additional requirements. By ensuring greater compliance
with existing emissions limits, the credible evidence revisions will help minimize
the need for further requirements to achieve air quality goals. See the October,
1993, proposal, 58 FR 54654. C. Public Participation The final credible evidence
revisions were developed with the benefit of insight from many parties that will
be affected by the regulations, including State and local air pollution control
agencies, large and small industries, trade associations and environmental organizations.
Many comments regarding credible evidence issues were received during the development
and after the proposal of the original enhanced monitoring rule, in 1991 through
1995. Many additional comments were received after the Agency announced that it
was continuing to go forward with the credible evidence revisions in 1996. To
obtain the views of all interested parties at the early stages of developing the
enhanced monitoring rulemaking, EPA published a notice in the Federal Register
on August 8, 1991, to make available a Public Information Document on enhanced
monitoring and to provide notice of a public meeting to be held on August 22,
1991, on the subject (56 FR 37700-37701, August 8, 1991). In response to the public
meeting, EPA received many comments which were included in the docket for the
proposed regulations. Over the next four years, EPA held over one hundred informal
informational and discussion sessions with representatives of interested organizations
to receive their views on enhanced monitoring, as well as a second informational
meeting with approximately fifty attendees held on August 12, 1993. Following
publication of the proposed enhanced monitoring regulations on October 22, 1993
at 58 FR 54648, EPA conducted a public hearing in Washington, D.C., on November
19, 1993. Testimony was given by twelve individuals, representing industry and
environmental organizations. In addition, during the public comment period, which
was first scheduled to close on December 30, 1993, and was extended until January
31, 1994, in response to requests for [[Page 8316]] extension, EPA received comments
from a wide variety of interested parties concerning the enhanced monitoring proposal,
including numerous comments on credible evidence issues. In the fall of 1994,
EPA held a series of informational meetings with interested parties affected by
the rule. The Agency then reopened the public comment period on specific issues
to solicit additional comments, and held an additional stakeholder meeting. In
response to the reopened public comment period, EPA received over 200 additional
comment letters. In April, 1995, EPA announced that it was suspending development
of the enhanced monitoring rule while it developed the CAM approach to serve the
same statutory goals. In a September, 1995, public draft of the CAM approach,
EPA stated that it would hold further discussions with stakeholders before it
proceeded to finalize the credible evidence revisions. On March 8, 1996, EPA announced
that a public meeting on credible evidence issues would be held on April 2, 1996.
To focus the meeting's discussion, EPA released a paper on March 21, 1996, entitled
``The Use of Information Other Than Reference Test Results for Determining Compliance
With the Clean Air Act'' (sometimes referred to as the ``Credible Evidence White
Paper''). EPA distributed this paper by electronic bulletin board to the same
stakeholders who were involved in the enhanced monitoring and CAM rulemakings,
further distributed it to various other interested parties, and made it generally
available to the public. The public meeting was held on April 2, 1996, where twenty-three
organizations and individuals presented oral statements and written comments.
At the meeting, EPA announced that, although the rulemaking docket would not formally
be re-opened, additional written comments would be accepted for at least another
30 days. Moreover, EPA stated that it would meet with any interested parties to
discuss the credible evidence rules. As a result, many additional written comments
have been received, and numerous additional EPA/stakeholder meetings have been
held. Section III of this preamble contains a description of the most significant
public comments and EPA's responses to them. Summaries of other public comments
on the credible evidence revisions received over the past five years, together
with the Agency's responses, are available in the docket in a document entitled
``Credible Evidence Revisions: Detailed Response to Comments Document'' (referred
to in this preamble as the ``Detailed Response Document''). II. Summary of Final
Rule The credible evidence revisions consist of various changes to 40 CFR 51.212,
52.12, 52.30, 60.11 and 61.12. These revisions provide minor modifications to
existing regulatory provisions to clearly allow for the use of any credible evidence--that
is, both reference test and comparable non-reference test data--to prove or disprove
violations of the Act in enforcement actions. These revisions make clear that
enforcement authorities can prosecute actions based exclusively on any credible
evidence, without the need to rely on any data from a particular reference test.
The revisions also have the effect of eliminating any potential ambiguity regarding
the use of non-reference test data as a basis for Title V compliance certifications.
The credible evidence revisions do not call for the creation or submission of
any new emissions or parametric data, but rather address the role of existing
data in enforcement actions and compliance certifications. As such, today's final
action is distinct and separable from the bulk of the proposed enhanced monitoring
rule, which addressed new monitoring requirements. By clearly providing that federally
approved SIP test methods or Agency reference test methods are not the exclusive
means of establishing noncompliance or compliance, EPA in no way intends to alter
the underlying emission standards. The Agency will still use the reference methods
for exactly what they are: test methods of reference against which to compare
information generated by means other than the reference tests. The National Bureau
of Standards maintains a number of standards against which other measuring devices,
used in scientific or commercial applications, are calibrated. Similarly, where
a SIP, New Source Performance Standard or permit specifies EPA Method 25A, for
example, for determining the amount of volatile organic compounds (``VOCs'') that
are emitted, the ``other evidence'' that could establish compliance would have
to relate to the likely measurement of VOCs that would be obtained by a Method
25A measurement. This could include, for example, consideration of key operating
parameters for the facility as correlated with emissions during a Method 25A test.
A. 40 CFR Part 51, Sec. 51.212 Section 51.212(c) is revised to clarify that the
inclusion in a state implementation plan (SIP) of enforceable test methods for
SIP emissions limits does not preclude enforcement based on other credible evidence
or information, relevant to whether a source would have been in compliance with
applicable requirements if the appropriate performance or compliance test procedures
or methods had been performed. This revision does not affect the existing requirements
in Secs. 51.212(a) and (b) for periodic testing and inspections, and establishment
of a system of violation detection and investigation. The proposed revisions to
Sec. 51.212 contained detailed lists of ``presumptively credible evidence'' and
``presumptively credible monitoring methods.'' After consideration of public comments,
EPA has decided to delete these lists because they are potentially confusing and
unnecessary. While EPA continues to believe that the listed evidence and monitoring
methods are indeed credible, the Agency recognizes that both judicial and administrative
tribunals routinely make determinations concerning the admissibility and weight
of evidence on a case-by-case basis. B. 40 CFR Part 52, Sec. 52.12 Section 52.12(c)
is revised to clarify that, for purposes of federal enforcement, any credible
evidence relevant to whether a source would have been in compliance with applicable
requirements if the appropriate performance or compliance test procedures or methods
had been performed may be used to establish whether or not SIP violations have
occurred. As with Sec. 51.212 above, EPA has deleted the proposed lists of presumptively
credible evidence and monitoring methods for the same reasons stated above. Under
today's final action, where an emission limitation specifies a particular monitoring
or testing method approved by EPA for use in the SIP to determine compliance,
data from such method will continue to be the benchmark against which other emissions
or parametric data, or engineering analyses, will be measured. Similarly, where
there are no approved SIP methods, the test methods specified in part 60 of this
chapter will remain the standard against which other such information will be
evaluated. C. 40 CFR Part 52, Sec. 52.30 Proposed Sec. 52.30(a), which concerned
compliance certifications, has been revised in accordance with Sec. 51.212 above,
and the same comments apply. The enforcement-related Sec. 52.30(b) is rendered
unnecessary by today's final Sec. 52.12(c), which effectively [[Page 8317]] encompasses
it. Finally, the entire section has been renumbered as Sec. 52.33. D. 40 CFR Part
60, Sec. 60.11 Similar to the existing regulation, Sec. 60.11(a) states that compliance
with Part 60 standards shall be determined in accordance with the applicable performance
tests and performance testing provisions in this part. A new Sec. 60.11(g) clarifies
that nothing in Sec. 60.11 precludes the use, including exclusive use, of any
credible evidence or information, relevant to whether a source would have been
in compliance with applicable requirements if the appropriate performance or compliance
test or procedure had been performed, for purposes of submitting compliance certifications
or establishing whether or not a source has violated or is in violation of any
Part 60 standard, including opacity standards. The first sentence in today's final
Sec. 60.11(a) has been modified from the proposal. EPA has decided to use mandatory
phrasing in the first sentence (``Compliance with standards * * * shall be determined
in accordance with the applicable performance tests * * *'') as is included in
the existing regulation, rather than adopt the permissive language proposed in
1993 (``Compliance with standards * * * may be determined by performance tests
* * *). The rationale for retaining this mandatory language is to make clear that,
although the regulation is being modified to clarify that it does not establish
an exclusive method of determining compliance, the reference tests remain the
benchmark against which other emissions or parametric data, engineering analyses,
or other information will be evaluated. For similar reasons, EPA included in Sec.
60.11(g) the requirement that evidence or information gathered by other means
than the reference tests be ``relevant to whether a source would have been in
compliance with applicable requirements if the appropriate performance or compliance
test or procedure had been performed''. This phrase means that the evidence or
information must bear on whether a facility would have been found to be in compliance,
during the time period in question, if the appropriate performance test had been
conducted. It does not mean that, to prove a violation occurred, ideal testing
conditions, for example the sun light at a certain angle to the tester for an
opacity reading, must exist if other credible evidence, such as continuous opacity
monitor data, can establish that a violation occurred. These changes have been
made in response to comments that EPA's proposal did not give full recognition
to the role of reference tests in determining compliance with emission standards.
Section 60.11(g) combines the requirements of the proposed subsections (g) and
(h) with the exception of presumptions included in those sections which have been
deleted. The clarifying language in Sec. 60.11(g) renders unnecessary the previously
proposed language in Sec. 60.11(b). Accordingly, the proposed language for that
subsection is deleted from today's rule. The proposed changes to subsection (e)
have been deleted as unnecessary due to changes to subsections (a) and (g). Finally,
Sec. 60.11(f) is revised so as to clarify that it does not countermand subsection
(g). Under today's revisions, information generated from an appropriate and properly
conducted test method established under the general provisions of Part 60 or in
the applicable subpart will still generally be the best method for determining
a source's compliance during the test period. Other emissions or parametric data,
or engineering analyses, may be considered if relevant to the results that would
have been obtained by the appropriate, properly conducted reference test methods.
E. 40 CFR Part 61, Sec. 61.12 Today's revisions to Sec. 61.12 generally mirror
the revisions to Sec. 60.11, largely for the same reasons. Section 61.12(b) remains
unchanged from its current promulgated version because credible evidence has always
been used to establish violations of these standards. III. Major Issues Throughout
the development of this rulemaking, various commenters have expressed concerns
regarding the proposed rule's potential effects on CAA enforcement, compliance
certifications and emissions standards. The most significant of these comments,
together with EPA's responses, are discussed below. A. Use of Credible Evidence
in Enforcement Actions Commenters raised various concerns regarding the potential
use of credible evidence in enforcement actions. Some commenters argued that the
use of such evidence would be unconstitutional, unprecedented and unfair. Others
expressed concern that EPA, states or citizen groups would use credible evidence
to bring enforcement actions for insignificant violations. These comments are
addressed below. Industry commenters have argued that the use of credible evidence
in enforcement actions would violate sources' constitutional right to due process.
Specifically, the commenters argue that EPA must comprehensively identify the
precise types of information that can be used as credible evidence, or else sources
will not have sufficient ``fair warning'' regarding potential enforcement. EPA
rejects this view. ``Fair warning'' jurisprudence holds that regulated sources
must have adequate notice identifying ``the standards with which the agency expects
parties to conform.'' General Electric Co. v. U.S. EPA, 53 F.3d 1324, 1329 (D.C.
Cir. 1995). Today's rule does not establish or alter standards with which sources
regulated under the CAA must comply. Rather, today's rule only concerns the evidence
that can be used to prove violations of a standard, giving full recognition to
the role of reference test methods under the standards. The Federal Rules of Evidence
govern the admission of evidence in all federal district court litigation, including
CAA enforcement actions, without any discernible constitutional infirmity. Similar
evidentiary rules govern federal administrative and state environmental actions.
Our legal system provides that a federal or administrative law judge will be the
ultimate, independent arbitrator of the evidence's admissibility and credibility.
Credible evidence is far from a new concept in judicial and administrative actions.
In private lawsuits such as contract disputes, and in governmental and citizen
enforcement actions brought under environmental laws other than the CAA, litigants
can and do use a wide variety of information to prove their claims, or to refute
the claims of opposing parties. In all these lawsuits, the judge acts as the final,
independent arbitrator of what constitutes credible and admissible evidence. Today's
final rule addresses problems arising from certain CAA regulations, which predate
the 1990 Amendments to the CAA, containing language that has been read to allow
only a very limited amount of information, i.e., data from reference test methods,
to be used as evidence of violations. As such, the rule merely corrects an anomaly
that has been read into these regulations, and brings their potential enforcement
into line with that of other CAA requirements such as the ``general duty obligations''
in 40 CFR 60.11(d) (for NSPS standards) and 40 CFR 61.22(c) (for National Emission
Standards for Hazardous Air Pollutants (NESHAPs)), and with other environmental
statutes. It should be emphasized that the determination that evidence or information
is credible is merely a threshold determination that [[Page 8318]] the evidence
or information in question is technically relevant, and therefore, legally admissible
in an enforcement action. In light of section 113(a) providing that the Administrator
may bring an enforcement action based on ``any information'', EPA believes that
Congress intended this threshold to be a low one. Industry commenters have also
argued that using credible evidence in enforcement actions is unfair because sources
will not know what credible evidence may be used against them. EPA believes that
this claim lacks merit. This issue is no different in CAA enforcement than in
any civil or criminal matter resolved by our nation's courts. Further, EPA disagrees
with the notion that sources will likely be faced with an unknown and unlimited
array of evidence. To the contrary, with regard to sources subject to Title V
permits, EPA generally expects that most if not all of the data that EPA would
consider as potentially credible evidence of an emission violation at a unit subject
to monitoring under the agency's proposed CAM rule would be generated through
means of appropriate, well-designed parametric or emission monitoring submitted
by the source itself and approved by the permitting authority, or through other
requirements in the source's permit. Sources not subject to CAM should still be
readily able to discern the information, for example information about the operation
of pollution control devices, that is relevant to their compliance with applicable
regulation. Some industry representatives have expressed concern that the use
of credible evidence in compliance determinations will reveal multiple minor violations
for which EPA, the states or citizens will bring lawsuits. It is not EPA's intent
to foster frivolous lawsuits, and EPA does not expect that such lawsuits will
occur as the result of today's action. As EPA explained in the Credible Evidence
March 1996 memorandum, EPA generally focuses its judicial enforcement resources
on violations that (1) may threaten or result in harm to public health or the
environment, (2) are of significant duration or magnitude, (3) represent a pattern
of noncompliance, (4) involve a refusal to provide specifically requested compliance
information, (5) involve criminal conduct, or (6) allow a source to reap an economic
windfall. See March 1996 Memorandum, p. 5. An examination of EPA's judicial enforcement
cases over the past few years reveals that EPA has focused its judicial enforcement
resources on large, significant cases rather than a large number of relatively
minor matters. The Credible Evidence March 1996 memorandum contains several examples
that illustrate this point. In contrast, EPA's approach to minor unexcused violations
generally has been to exercise prosecutorial discretion and use tools such as
notices of violation and administrative compliance and penalty orders. In every
case, EPA considers the nature and extent of the violation and all other circumstances
surrounding the violation in determining whether and what kind of enforcement
response is appropriate. Further, for any type of noncompliance, EPA generally
will not bring a federal enforcement action where a state or local permitting
authority has taken timely and appropriate action under existing policies to resolve
the violations. Finally, for all violations, EPA will apply all other existing
specific enforcement policies, such as the May, 1996, Policy on Compliance Incentives
for Small Businesses, in accordance with their terms. EPA does not intend to use
credible evidence to change any of these policies. EPA has a balanced enforcement
program that seeks to assure compliance using the mix of the compliance and enforcement
tools available to it. Deterrence is also an overall goal of the program. Judicial
enforcement against minor CAA violations generally is a lower enforcement priority,
because EPA believes its other enforcement and compliance assistance tools allow
it to respond to such violations without the need to file an action in federal
court. Accordingly, in considering whether to bring a judicial action, or whether
to use some other enforcement or compliance tool, EPA generally takes into consideration
such factors as number and duration of the exceedances, harm or risk posed by
the exceedance, potential for recurrence, the source's compliance history, and
other circumstances surrounding the violation. For example, if a source were installing
a new unit subject to an NSPS standard and had some difficulty getting the control
equipment to operate properly after the ``shakedown'' period permitted before
the initial performance test (see 40 CFR 60.8(a)) but solved the problem promptly
after the test, this generally would be a low enforcement priority, absent other
circumstances indicating a need for judicial action. These same general policies
regarding EPA's use of judicial and administrative enforcement actions were discussed
in Section I.D. of the August 2, 1996, CAM draft approach. Therein, EPA provided
various specific examples of circumstances where the Agency was or was not likely
to take compliance or enforcement action based on the examination of CAM data.
Finally, the NSPS general provisions and many SIPs generally excuse sources from
compliance with emissions limits during periods of startup, shutdown or malfunction.
See 40 CFR 60.11(c). Some specific NSPS standards additionally excuse sources
from compliance during certain operating periods. Exceedances monitored during
any of these specifically excused periods are not violations of the emission limit.
Moreover, some NSPS standards specify averaging periods for determining compliance
and noncompliance. As a result, many short term emissions values when averaged
with other values in the relevant averaging period, will not constitute violations.
The credible evidence proposal does not change any of these general or specific
periods of excused noncompliance, or any averaging periods, or any of their effects
on compliance. Regarding citizen suits, in February, 1996, EPA performed a review
of citizen enforcement actions under the Clean Water Act (CWA), and found that
citizen enforcers generally do not focus on sporadic, inconsequential violations.
This analysis was summarized in the Credible Evidence White Paper, and is included
in the Air Docket. Although to date there have been far fewer CAA citizen suits
than CWA citizen suits, there have been at least two notable CAA citizen cases
involving serious violations: National Wildlife Federation v. Copper Range Co.,
Civil Action No. 2:92-CV-186 (W.D. Michigan), involving one of the largest sources
of particulate matter in Michigan's Upper Peninsula, which was emitting particulates
at 230 lbs/hour (over five times its permitted limit) and toxic air pollutants
including mercury, arsenic, cadmium and lead; and Sierra Club v. Public Service
Company, 894 F. Supp. 1455 (D.C. Col. 1995), involving a power plant that had
committed over 19,000 opacity emission violations, which had allegedly affected
a nearby wilderness area. Both of these suits were ultimately settled (with the
United States an intervenor) for multi-million dollar penalties and significant
injunctive relief, including the installation of appropriate pollution controls.
EPA notes that today's rule creates no new rights or powers for citizen enforcers;
instead, the rule clarifies existing EPA regulations. Citizens have been free
to use credible evidence in Clean Air Act enforcement, and have won at least two
court cases using it. See Sierra Club v. PSC, cited above, and Unitek Environmental
Services v. [[Page 8319]] Hawaiian Cement, Civ. No. 95-00723 (D. Hawaii 1996).
Also, EPA is aware of no increase in citizen suits in any of the five states--Kansas,
Iowa, Nebraska, North Dakota and Georgia--whose SIPs, based on EPA's SIP Call,
have specifically clarified that credible evidence can be used for enforcement,
or in those states that have credible evidence provisions in other parts of their
state law. Finally, EPA takes this opportunity to further elaborate on certain
credible evidence and enforcement issues that were discussed in the August, 1996,
draft CAM approach preamble. Therein, EPA explained that ``the CAM rule cannot
and does not replace a source's obligation to comply with otherwise applicable
emission limits.'' Nonetheless, as a practical matter, ``EPA expects that a unit
that is operating within appropriately established indicator ranges as part of
an approved CAM plan will, in fact, be in compliance with its applicable limits.''
(See draft CAM rule Sec. 64.6(c), which requires that ``the ranges shall be established
so as to provide a reasonable assurance of compliance with emission limitations
or standards for the anticipated range of operations at a pollutant-specific emissions
unit.'') Such a unit generally will not be an enforcement target. However, if
the Agency obtains information that the unit is in fact exceeding its applicable
emission limit even though it is operating within its approved indicator ranges,
the Agency will consider whether or not to take compliance or enforcement action
in accordance with its general enforcement policies. Further, under the CAM approach,
the source has such information, it would have to promptly remedy the exceedance
and notify the permitting authority and submit a proposed permit modification
to correct its CAM monitoring as required under draft CAM rule Sec. 64.3(b)(5).
Under today's rule, the legal burdens regarding the establishment of violations
or compliance in an enforcement action are not changed. The means of meeting these
burdens will vary in different circumstances. Today's rule provides that where
information (such as non-reference emissions data, parametric data or engineering
analyses) is equivalent to information generated by reference test methods, the
former may be used to establish compliance or noncompliance in an enforcement
action. There is no need to establish that every test condition specified in a
reference test method has been matched by a surrogate condition in the method
used to generate the comparable information. Typically, reference test methods
(and any additional test conditions specified in individual regulations) quantify
the presence of particular physical attributes--for example, mass or concentration
of a chemical or group of chemicals--over a specified period of time. As long
as these two elements--quantification and specified time period--are retained
and the data from the alternate method is related to the reference test, information
generated by alternate methods yield data bearing on what the results of a reference
test would have been, and the use of such information to establish compliance
or noncompliance in an enforcement action will not affect the stringency of the
underlying standard. Of course, non-reference data that is already quantified
in the same units as the underlying standard, e.g., emissions data generated by
properly operating and calibrated non- reference CEMs, should generally be comparable
to reference test data, with all specified averaging periods still applying. For
example, Method 9, the NSPS reference method for opacity, requires that a trained
visible emissions observer (VEO) view a smoke plume with the sun at a certain
angle to the plume in order to properly illuminate it. In contrast, a continuous
opacity monitor (COM) contains a calibrated light source that provides for accurate
and precise measurement of opacity at all times. Notably, EPA uses COM data to
certify and re-certify the credentials of VEOs under Method 9. Accordingly, since
a comparable light source is provided by a COM, if COM data were offered in an
enforcement action to prove or disprove opacity violations, there would be no
need to establish that the sun was shining during the period the COM data was
collected. Where a reference test method or test requirements in an individual
regulation include plant operating conditions, e.g., a requirement that testing
be conducted at a specified percentage of maximum plant capacity, this does not
mean that the underlying standard applies only when the plant is operating at
that capacity or that the ``other information'' would have to show that the plant
was operating at the specified capacity during the period that the other ``credible
evidence'' was obtained. Where a party seeks to introduce other sorts of information
in an enforcement action, for example, expert testimony as to whether a unit was
able to meet its emission limit based on the operation or nonoperation of its
control equipment during the period of alleged violation, the information would
still need to be relevant to reference test data in the sense that it must be
related to reference test data in some fashion. In the expert testimony example,
this might be accomplished by a qualified expert opinion that a reference test
would have demonstrated noncompliance in these same circumstances. Finally, where
general burdens of proof for the proponent of this information are reduced through
statutory provisions or other means, the same reduced burdens will apply in circumstances
where EPA uses non- reference test data to assert noncompliance. See, e.g., CAA
section 113(e)(2). B. Use of Credible Evidence in Compliance Certifications Some
commenters argued that today's final action will create new uncertainties and
burdens for sources, because sources will not know what information they must
consider before certifying compliance with Title V permit requirements. Previously,
these commenters argue, sources would have needed to consider only the results
of any specified reference tests, whereas under the credible evidence revisions
almost any information could be potentially relevant to determining compliance.
Thus, as a practical matter sources would need to ``go through every file drawer''
and examine a great deal of additional information before certifying compliance.
Even then, sources would not know whether they had reviewed all compliance information
that was potentially credible. According to some commenters, even if the source
determined its compliance using a reference method, the source would still be
uncertain as to whether it could certify compliance during that period, because
other contemporaneous information might still indicate noncompliance. Still other
commenters argue that allowing a broad array of information to be considered in
compliance certifications would render the certification requirement void for
vagueness. At the outset, EPA notes that today's action merely eliminates any
potential ambiguity or conflict between Parts 51, 52, 60, and 61 and Part 70 regarding
the ability of sources to use non-reference test data in compliance certifications.
Consistent with the congressional intent reflected in Title V and section 114(a)(3),
Part 70 already contemplates use of non-reference test data in compliance certifications.
There are other pending rulemakings--specifically, pending actions involving the
CAM approach and Part 70--that are [[Page 8320]] proposing to modify existing
Part 70 requirements to provide additional detail as to what information sources
must consider when certifying compliance. Nothing in these rule revisions is meant
to specify what degree of correlation there must be between CAM monitoring data
and emissions violations or compliance certifications; rather this issue will
be discussed in the CAM rulemaking. In addition, EPA believes that the commenters
have greatly exaggerated the purported uncertainties and burdens in certifying
compliance under Part 70 and notes that facilities routinely determine their compliance
with numerous statutory or regulatory obligations without government imposed ``checklists.''
Under Title V, the source's substantive CAA obligations (i.e., the source's applicable
requirements) are clearly set forth in the source's CAA operating permit. Contrary
to the commenters' claims, sources that are certifying compliance using properly
conducted continuous reference methods may generally certify compliance based
solely on the continuous reference method data, although naturally such sole reliance
would be inappropriate in the face of obvious contrary information or fraud as
discussed below. Of course, if a source becomes aware of other material information
that indicates that an emission unit has experienced deviations (as that term
is defined in the draft CAM approach) or may otherwise be out of compliance with
an applicable requirement even though the unit's permit-identified data indicates
compliance, the source must consider this information, identify and address it
in the compliance certification, and certify accordingly. This ensures, among
other things, that sources will not certify compliance in circumstances where
doing so would constitute a violation of CAA section 113(c) and 18 U.S.C. Section
1001, which prohibits sources from knowingly making a false certification or omitting
material information, or a violation of other prohibitions on fraud. EPA emphasizes,
however, that its purpose here is to make clear that sources may not ignore obvious
relevant information. EPA does not view compliance certification requirements
as imposing a duty on the source to search out and review every possible document
to determine its relevance on the issue of the source's compliance. Following
on the above discussion, the Agency takes this opportunity to restate that while
a Title V permit can include a ``permit shield'' protecting it from allegations
that it has failed to satisfy CAA monitoring requirements, such shield does not
relieve the source of its obligation to comply with the underlying emission limits
or other applicable requirements being monitored. In other words, even where a
source receives a ``shield'' providing that the monitoring provisions set forth
in its Title V permit constitute compliance with all monitoring requirements of
the CAA, the source would not be shielded from allegations of noncompliance with
the underlying substantive requirements (e.g., emission limits) being monitored
even if the source's required monitoring failed to detect the violation. See also
the October, 1993, proposal, 58 FR 54678. Industry commenters argued that allowing
credible evidence in Title V compliance certifications would render the certification
requirement constitutionally void for vagueness. According to these commenters,
reference test methods are necessary to define, in a consistent and reproducible
manner, the level of performance that constitutes compliance; without a reference
method, an emission limit would be incomplete. As discussed above, EPA in no way
intends to eliminate reference tests or to alter their methodology. Instead, these
tests, performed as specified under EPA and state regulations, will remain the
benchmark against which to compare other emissions or parametric data, or engineering
analyses, regarding source compliance. Finally, numerous commenters argued that
allowing credible evidence in compliance certifications and enforcement actions
would disrupt the Title V permit process and cause substantial delays in the issuance
of these permits because local permitting authorities would have to adjust many
of the sources' emission limits, which the commenters contend were not intended
to be complied with continuously. Such Title V gridlock could occur only if today's
action in fact changed the stringency of emission standards. C. EPA's Authority
To Promulgate the Credible Evidence Revisions 1. Statutory Authority Today's rulemaking
and related SIP call are based primarily on EPA's existing authority prior to
the 1990 CAA Amendments. Section 113(a) of the Act authorizes EPA to bring an
administrative, civil or criminal enforcement action ``on the basis of any information
available to the Administrator.'' This provision provides the Agency with clear
statutory authority to use any available information to prove violations of requirements
under the Act, and demonstrates that Congress did not intend to limit EPA to using
reference test method results in bringing enforcement actions. The language of
Section 113(a), together with the fact that the Act nowhere prohibits the use
of information other than reference test results to prove violations, indicates
that the Act does not limit the use of any information to prove a violation. Therefore,
by law the Agency is limited only by general evidentiary rules in what it can
use to prove a violation alleged in an enforcement action. 2. The Kaiser Steel
Decision Does Not Constrain EPA's Authority To Amend Its Regulations Although
the Act sets no inherent limits on EPA's authority to use any type of information
to prove a violation, some EPA regulations provide for specific test methods for
determining compliance and have been read by some to constrain EPA's enforcement
authority. In United States v. Kaiser Steel Corp., No. CV-82-2623 IH (C.D. Cal.
Jan. 17, 1984), the district court construed the language of EPA's regulations
at 40 CFR 60.11 as limiting the admissible evidence of violations of opacity standards
to observations utilizing Method 9, the opacity reference test method. Thus, when
the Agency attempted to use expert testimony pertaining to opacity to prove the
existence of violations without Method 9 test data, the court rejected the evidence
and held that EPA could prove violations only on those days where the Method 9
test was conducted. This decision--which interpreted only EPA's existing regulations,
not the Act--was specifically overruled by Congress in the 1990 CAA Amendments.
Today's rulemaking is intended to clarify that EPA's regulations do not constrain
EPA to using reference tests to prove a violation of an emission standard. Rather,
EPAretains its full authority under Section 113(a) to use ``any information''
as the basis for an enforcement action. 3. Despite Commenters' Claims, Clean Air
Act Case Law Does Not Mandate Exclusive Reference Tests At least one commenter
has asserted that the decision in Portland Cement Ass'n v. Ruckelshaus, 486 F.2d
375, 399 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974), stands for the proposition
that CAA emission standards may be enforced only through an exclusive reference
test method. First, the commenter relies on the court's ruling [[Page 8321]] that
a reference test method must make measurements with ``reasonable accuracy'' and
be ``objective.'' 486 F.2d at 401 & n. 103. Second, the commenter cited the court's
concern with deviations between sampling methods used in gathering data to set
an emission standard and sampling methods used in reference methods. The court
stated that ``a significant difference between techniques used by the agency in
arriving at standards, and requirements presently prescribed for determining compliance
with standards [i.e., the reference method], raises serious questions about the
validity of the standards.'' 486 F.2d at 396. EPA disagrees with this reading
of Portland Cement. These holdings, individually or together, do not support the
conclusion that violations of an emission standard may only be demonstrated by
an exclusive reference method. The court's statements regarding the reliability
of reference methods were made in context of a challenge to an opacity standard.
The industry petitioner argued that testing compliance with that standard, inspector
observations, is inaccurate and therefore arbitrary. The court agreed that the
evidence called the reliability of inspector observations into question and remanded
to EPA for it to determine if there was a way to measure compliance with the standard
with ``reasonable accuracy.'' In no way did the court imply that the opacity standard
had to have an exclusive reference test but simply rejected the test EPA proposed
to use as insufficiently supported. The Portland Cement court's discussion of
a compliance method that differed from the test method used to develop the standard
also lends no support to the conclusion that an exclusive test method is required.
It is true that the court mentioned reference methods ``outlined by regulation.''
However, the mere description of an agency practice (here, the inclusion of a
reference test in a regulation setting an emission standard) does not transform
that practice into a statutory requirement. Moreover, the thrust of the court's
remarks was to caution EPA that, where EPA has established by regulation a reference
method for sources to demonstrate compliance, the best data EPA can put forth
to show that a standard is in fact achievable is data generated by the reference
method. The D.C. Circuit, however, has specifically rejected the assertion that
standards can only be supported by reference test data. See National Lime Ass'n
v. EPA, 627 F.2d 416, 446, fn.103 (D.C. Cir. 1980). None of this, thus, supports
the commenter's claim that a standard's supporting data must be generated using
the reference method, and its supposed corollary that only reference method data
can be used to enforce the standard, especially where, as here, that other information
must be related back to a reference test method. At best, the commenter's arguments
would apply only in the context of an original standard-setting, where an emission
limitation or other standard newly promulgated by EPA was being challenged on
the basis that the standard's supporting data was inadequate. Today's rule sets
no new emission or work-practice standards, and amends no existing ones. Thus,
the commenter is mistaken. Neither of the two passages in Portland Cement cited
by the commenter address whether exclusive reference tests are necessary, much
less mandate establishment of such tests. Further, EPA regulations are inconsistent
with the exclusivity argument of the commenter. For example, section 60.8(a) of
Title 40 of the CFR provides a whole string of circumstances under which a source
can alter or completely replace the reference test required by the regulation.
Finally, today's final action regarding the use of non- reference test data in
enforcement is fully consistent with the court's requirement that reference testing
be conducted in a nonarbitrary manner. 4. The 1990 CAA Amendments Further Support
EPA's Authority Various provisions of the 1990 CAA Amendments provide additional
support for EPA's position that reference tests are not the exclusive means of
proving violations. As noted above, Congress specifically reversed the Kaiser
Steel decision in Section 113(e) of the Amendments by providing that the duration
of a violation may be established ``by any credible evidence (including evidence
other than the applicable test method).'' The legislative history for this provision
shows that Congress meant to clarify that in an enforcement action courts are
not restricted to reference test method data, but may consider any evidence of
violation or compliance admissible under relevant evidentiary rules. See S. Rep.
No. 228, 101st Cong., 1st Sess. 1, 358 (1989) (``Senate Report''), reprinted in
1990 U.S. Code Cong. & Admin. News 3385, 3741 (``Reprint''). Other provisions
of the 1990 CAA Amendments also evidence Congressional intent that reference test
methods should not be used as the exclusive means for assessing compliance with
CAA emission limits. Most pointedly, the requirements in Section 114(a)(3) for
enhanced monitoring and for compliance certifications based on a determination
of whether compliance was continuous or intermittent presumes that data other
than reference tests would be used for these purposes. As explained in the October,
1993, proposal, the use of non-reference test data is also consistent with the
monitoring, compliance assurance, and compliance certification requirements in
Sections 504(a), 504(c), and 503(b)(2) of the Act. See 58 FR 54649-50. In addition,
Section 504(b) of the Act grants discretionary authority to the Administrator
to prescribe procedures and methods for monitoring, and provides that continuous
emission monitoring systems need not be required ``if alternative methods are
available that provide sufficiently reliable and timely information for determining
compliance.'' In sum, Congress' repeated emphasis on providing reliable and timely
compliance information is inconsistent with the notion that only data from infrequently
performed reference tests is relevant to compliance certifications and enforcement
actions. 5. Commenters' Attempts To Narrow the Scope of Sections 113(e) and 113(a)
Are Unpersuasive Several industry commenters have claimed that the legislative
history of the 1990 CAA Amendments shows that section 113(e)(1) does not provide
authority for today's final action. Additionally, these commenters have asserted
that the section's legislative history upon which EPA has relied is ambiguous.
In the October, 1993, proposal, EPA cited to the Senate Report's discussion of
Section 113(e)(1). The Senate Report stated: This title of the bill enhances the
ability of the Environmental Protection Agency * * * by making clear that the
Agency may rely upon any credible evidence of violations in pursuing alleged violations.
Senate Report at 358, Reprint at 3741. The Report further explained: [T]he amendment
clarifies that courts may consider any evidence of violation or compliance admissible
under the Federal Rules of Evidence, and that they are not limited to consideration
of evidence that is based solely on the applicable test method in the State implementation
[plan] or regulation. For example, courts may consider evidence from continuous
emission monitoring systems, expert testimony, and bypassing and control equipment
malfunctions, even if these are not the applicable test methods. Thus, this amendment
overrules the ruling in United States v. Kaiser Steel Corp., No. 82-2623 (C.D.
Cal. January 17, 1984) to the extent that [[Page 8322]] the court in that case
excluded the consideration of such evidence. Senate Report at 366, Reprint at
3749. Finally, the Report notes that data from enhanced monitoring and compliance
certifications ``will facilitate enforcement, due in part to the fact that such
data and certifications can be used as evidence.'' Senate Report at 368, Reprint
at 3751. The commenters, in turn, rely on the views of Senator Chafee regarding
S. 1630, inserted into the Congressional Record at the time the legislation was
introduced. Senator Chafee stated with regard to Section 113(e)(1): Subsection
113(e) also clarifies and confirms that once EPA establishes evidence of a violation
using a formal test method, EPA can use other credible evidence to prove additional
violations, or that violation has continued. 135 Cong. Rec. S 9650, 9655 (August
3, 1989). EPA believes that the best reading of the legislative history still
supports its interpretation of Section 113(e)(1). First, there is no ambiguity
in the Senate Report, the language of which unreservedly supports enforcement
actions brought on the basis of non-reference test data. Second, EPA does not
believe that Senator Chafee's floor statement outweighs the clear statement in
the Senate Report. The Senate Report is a more authoritative reflection of congressional
intent than a floor statement produced at the beginning of the legislative process.
Various commenters also objected to EPA's reliance on Section 113(a) as a basis
for today's action. One commenter argued that Section 113(a) does not preempt
regulatorily specified reference test methods. Several commenters asserted that
EPA's construction of Section 113(a) would render superfluous the new language
in Section 113(e)(1) concerning credible evidence. These commenters claim that,
under EPA's interpretation of Section 113(a), Congress could have ``fixed'' the
Kaiser Steel decision simply by clarifying the scope of EPA's authority under
Section 113(a). These various commenters have misunderstood EPA's interpretation
of Section 113(a). EPA has not asserted that Section 113(a) preempts reference
test methods. Rather, EPA believes that Section 113(a) provides authority to amend
current regulations to make clear that data from reference test methods are not
the exclusive means of establishing noncompliance or compliance in enforcement
actions. Given this interpretation of Section 113(a), Congress's passage of Section
113(e)(1) cannot be described as superfluous--particularly in light of the decision
in Kaiser Steel. 6. EPA Can Promulgate the Credible Evidence Revisions Without
Reproposal Several commenters have argued that finalization of the proposed changes
in Parts 51, 52, 60 and 61 without first reproposing those changes violates the
Administrative Procedure Act (APA), the CAA, and due process. The commenters'
main argument is based on EPA's presumed change in course on implementing the
requirement in Section 114(a)(3) concerning enhanced monitoring and compliance
certification. As noted above, the changes to Parts 51, 52, 60 and 61 were proposed
in the same rulemaking that proposed an enhanced monitoring and compliance certification
program. Since that proposal, EPA has re-evaluated its approach to enhanced monitoring
and has made publicly available and has sought comment on a revised approach--the
CAM approach--for satisfying the same statutory goals as the original enhanced
monitoring proposal. Some commenters contend that switching to CAM will fundamentally
change their view of the proposed changes to Parts 51, 52, 60 and 61 because those
proposed changes were evaluated only in terms of how they would be implemented
under the October, 1993, proposal on enhanced monitoring. Until CAM is formally
proposed, these commenters assert, they cannot give meaningful comments on the
credible evidence revisions. Further, the commenters argue that the proposed revisions
provided insufficient notice and opportunity to comment because EPAhas not adequately
defined the term ``credible evidence.'' EPA believes today's rule has no procedural
infirmities. EPA is today finalizing the enforcement-related portions of the proposal
it made in 1993 with only minor changes. The commenters' claim that they cannot
meaningfully comment on credible evidence revisions prior to proposal of the CAM
approach is not well-taken for two reasons. First, EPA does not believe that any
knowledge of the draft CAM approach is necessary to comment on today's rulemaking.
In today's final rule, EPA has removed any presumptions regarding the credibility
of any specific data. If and when the draft CAM approach is finally adopted, CAM
data will be treated under today's rule like any other potential source of compliance
information. Thus, knowledge of the draft CAM approach is not critical to commenting
on this rulemaking. In any event, the nature of the draft CAM approach has been
generally available in some detail since September, 1995--well before EPA renewed
its request for comment on today's rulemaking. Further, EPA has sought and received
additional comment on the enforcement consequences of the draft CAM approach by
distribution of a revision of the CAM approach in August, 1996. The revised approach
specifically discussed the relationship of the draft CAM approach and today's
action. Second, the October, 1993, proposed rulemaking gave interested parties
sufficient notice of the issues raised by the proposed changes to Parts 51, 52,
60 and 61. The Agency made clear that these revisions were designed to remove
any potential ambiguity regarding the use of enhanced monitoring data in compliance
certifications, and to clarify that any credible evidence of a violation of an
emission standard was admissible to prove (or disprove) such a violation. See
58 FR 54677. To clarify that these credible evidence revisions extended beyond
the data gathered under an enhanced monitoring program, EPA gave two specific
examples of evidence collected outside the enhanced monitoring program that under
the revised regulations could be used to prove a violation. See 58 FR 54676-54677.
Thus, the October, 1993, proposal clearly put interested parties on notice that
the credible evidence revisions were not merely an adjunct to the enhanced monitoring
program. In fact, industry commenters on the October, 1993, proposal clearly understood
the central issue posed by the proposed credible evidence changes, and they commented
on it extensively. Today's final action promulgates revisions to existing regulations,
and are not contingent upon future promulgation of the CAM approach or any other
form of enhanced monitoring requirement. Neither is this rulemaking procedurally
deficient for not providing an express regulatory definition of the term ``credible
evidence''--a term which Congress itself inserted, without definition, into the
Act. The issues of credibility, admissibility and weight of evidence have been
exhaustively addressed by federal and state court evidentiary rules regarding
evidence, and the thousands of cases decided under them. Today's final action
defers to those regulations and makes clear that there are no bars in regulations
under the CAA which prevent the use of evidence or information other than reference
test methods in compliance certifications and enforcement actions. Of course,
in judicial enforcement [[Page 8323]] proceedings, what evidence is credible and
admissible will be determined by the court taking into account how the evidence
was gathered and the specifics of the emission standard and any associated reference
method. Finally, EPA believes that it has taken extensive steps, detailed in Section
I.C. above, to ensure that the concerns of affected parties were fully aired.
None of the additional public outreach actions that EPA undertook in 1996 were
required by the APA or the CAA; instead, EPA undertook them voluntarily to ensure
full input by interested parties regarding the credible evidence rules. D. Stringency
Industry commenters have presented several arguments in support of their position
that this rulemaking requires sources to be in continuous compliance and thus
would effectively increase the stringency of underlying requirements, including
SIP limits and standards established by EPA under the NSPS and NESHAP programs.
EPA believes that industry's arguments on this point are fundamentally wrong.
It is not EPA's intent that these rules should increase the stringency of any
applicable requirement. These rules do not do so because they maintain the focus
of the compliance determination on whether or not the appropriate reference test
would have shown a violation. The commenters' arguments regarding increased stringency
are as follows: applicable requirements are accompanied by specified reference
tests. Any departure from past practice regarding the use of these tests, including
the use of other credible information to directly assess compliance, particularly
on a more frequent basis, will inevitably change the results of an inquiry into
the compliance status of any source compared to exclusive reliance on the infrequent
performance of the reference tests. Therefore, industry argues, using credible
evidence would change the underlying applicable requirements-- usually in a manner
that makes them more stringent--without going through the necessary rulemaking
procedures. Industry's argument hinges on the premise that adoption of an emission
standard that includes a particular form of reference test-- one that is not required
to be performed continuously as a matter of course--limits the compliance obligation.
The scope of the compliance obligation is not at issue in this rulemaking. The
scope of the compliance obligation prescribed by any particular standard shall
be based on the emission standard and not this rulemaking. However, to fully respond
to industry comments, and to give notice of the position EPA will take in future
enforcement proceedings, EPA believes it is necessary to address in some detail
the nature of the compliance obligation under emission standards with particular
emphasis on the compliance obligation as it pertains to emission standards which
have a reference test method that is not required to be performed continuously.
While the bulk of the commenters' concerns were expressed with respect to NSPS,
the same concerns also apply in most cases to NESHAPs and SIPs. Likewise, EPA's
responses focus on NSPS, but are generally applicable to other emissions limits
as well. 1. Emissions Limits Require Continuous Compliance (Consistent With Any
Averaging Times) Except During Periods Where Compliance Is Specifically Excused
To resolve commenters' claims of increased stringency, the nature of the compliance
obligation facing owners and operators of sources of air pollution under the Act
must be addressed. Under the CAA, its regulations, and the case law, a source's
compliance with emission limitations must be continuous (consistent with any averaging
times) except where a particular emission standard specifically provides for periods
of noncompliance. The Statute. The Clean Air Act defines the terms ``emission
limitation'' and ``emission standard'' as meaning ``a requirement established
by the State or the Administrator which limits the quantity, rate, or concentration
of emissions of air pollutants on a continuous basis * * *.'' CAA section 302(k)
(emphasis added). In accordance with this clear statutory statement, the Act authorizes
penalties for multiple days of violation should a source fail to meet its continuing
obligation. See also CAA sections 113(e)(2) (providing that ``a penalty may be
assessed for each day of violation,'' and establishing a presumption of continuing
violation if certain conditions are met) and 113(e)(1). CAA Regulations. The Act's
general requirement of continuous compliance is mirrored in the NSPS regulations,
which generally require that sources comply with established emission limits except
during certain defined time periods. NSPS provisions typically specify that compliance
with stated limits is required ``on and after the date'' of an initial performance
test conducted in accordance with 40 CFR 60.8. See, e.g., 40 CFR 60.502. The need
for continuous compliance is also discussed in the preambles to numerous NSPS,
including many older ones. For example, in proposing standards for glass manufacturing
plants (Subpart CC), EPA stressed the need for effective monitoring to assure
that affected facilities are ``continuing to maintain the emission reduction observed
during the performance test.'' 48 FR 50670, 50675 (1983). EPA has also made this
point clear in publicly-available guidance memoranda. See Detailed Response Document
at Section 4. In addition to requirements for continuous compliance, NSPS regulations
also typically contain specifically excused periods of noncompliance. These periods
confirm that compliance is required at other times. They also confirm the basic
reasonableness of this compliance scheme--that is, sources must generally comply
continuously with their numerical emission limits, but not during periods of specifically
excused noncompliance, and only in accordance with any specified averaging periods.
For example, for many standards, compliance is not required during periods of
startup, shutdown or malfunction. This exception is contained in the NSPS general
provisions and in individual standards. See 40 CFR 60.8(c); see also, e.g., 40
CFR 60.46a. Case Law. In various judicial decisions, courts have approved of the
basic NSPS regulatory scheme of continuous compliance accompanied by limited,
specified exceptions for noncompliance. The courts have stated that the specified
exceptions are needed because sources must comply at all other times. See, e.g.,
Portland Cement, 486 F.2d at 399 (court noted EPA's then-proposed ``startup, shutdown
and malfunction'' compliance exclusion regulation with approval, suggested that
it was a ``limited safety valve'' and stated that it imparts a construction of
``reasonableness'' to the standards as a whole and adopts a more flexible system
of regulation that can be had by a system devoid of ``give''; (Essex Chemical
Corp. v. Ruckelshaus, 486 F.2d. 427, 433 (D.C. Cir. 1973), cert. denied, 416 U.S.
969 (1974) (in a challenge to sulfuric acid plant and coal-fired steam generator
NSPS standards, the court again noted with approval the proposed start-up, shutdown
and malfunction exception and remanded the rule stating that ``such variant provisions
appear necessary to preserve the reasonableness of the standards as a whole and
that the record does not support the ``never to be [[Page 8324]] exceeded'' standard
currently in force'') (emphasis added); and Bunker Hill Co. v. EPA, 572 F.2d 1286,
1301-02 (9th Cir. 1977) (in challenge to SIP sulfur dioxide standard, court observed
that EPA regulations required that the standard be met ``all of the time,'' and
thus EPA must typically promulgate upset provisions to excuse noncompliance beyond
the source's control). Similarly, the proposition that compliance must be continuous
is reflected in numerous judicial decisions involving challenges to various NSPS
rulemakings. In these cases, both the D.C. Circuit Court and industry petitioners
have emphasized that for an emission standard to be achievable it must be able
to be continuously complied with over wide operating ranges at varied facilities.
See, e.g., Portland Cement, Essex Chemical, National Lime, and Sierra Club v.
Costle, 657 F.2d 298 (D.C. Cir. 1981). In National Lime, for example, the lime
industry's trade association itself complained that the data underlying the promulgated
numerical emission standards were insufficient to show that the standards were
``in fact achievable on a continuous basis.'' 627 F.2d at 430. In holding that
EPA had not adequately demonstrated the achievability of the standards for the
industry as a whole, the court explained that ``to be achievable, we think a uniform
standard must be capable of being met under most adverse conditions that can reasonably
be expected to recur . . . .'' Id. at 431. In Sierra Club v. Costle, various electric
utility companies challenged a particulate standard on the basis that ``the data
reflect only short term performance while the standard requires long term continuous
compliance.'' 657 F.2d at 377 (emphasis added). This challenge was rejected by
the court based on data showing that certain sources had ``consistently complied
with the standard.'' Id. at 382. 2. Commenters' Advocacy of Noncontinuous Compliance
Would Lead to Numerous Anomalies Some industry commenters have argued that numerous
emissions limitations do not require continuous compliance or, alternatively,
that ``continuous'' does not have the straightforward meaning suggested above.
The commenters' argument centers on NSPS standards issued under CAA section 111.
In the commenters' view, many such standards do not contemplate that facilities
will operate in compliance on a continuous basis with stated emissions limits,
but rather require only an initial demonstration of compliance with stated limits
upon start-up or shortly thereafter. After an initial performance test, continuous
compliance is required only with respect to operation and maintenance ``in a manner
consistent with good air pollution control practice'' as specified in 40 CFR 60.11(d).
As to numerical emissions limits, commenters suggest that these must be met only
on those infrequent occasions that a subsequent performance test is conducted.
So long as any such performance test is passed, the source is in ``continuous''
compliance with numerical emissions limits without regard to whether its emissions
in fact exceeded the numerical limit during the time between the tests, no matter
how long that may be. EPA rejects this view of the nature of the obligation to
comply with NSPS and other emission limits under the CAA. See Detailed Response
Document. EPA and the courts have long held that emission limits must be complied
with continuously, consistent with any associated averaging periods, except where
a particular limit provides otherwise. Adopting the commenters' view of compliance
would lead to numerous anomalies. In the April 2, 1996, public meeting and in
follow-up written comments, several commenters argued that many reference test
methods were selected specifically because they would only be performed infrequently--for
example, on a yearly basis. These once a year tests would be proper for their
associated emission standards, which in the commenters' view were intended to
be complied with only 95% of the time. Specifically, performing a reference test
once a year would yield ``acceptable'' compliance results, because on average
a source would be found out of compliance only 5% of the time--that is, in one
in twenty tests, or once every twenty years. According to these commenters, testing
for compliance more frequently would be unfair, because it would increase the
likelihood that the source would be found out of compliance during periods where
the standard itself contemplated noncompliance. In order to avoid being found
in noncompliance, sources would have to continuously stay below their emission
limits--which in these commenters' view would effectively increase the stringency
of the emission standard. EPA disagrees with the commenters' notion that sources
must meet their legal numerical air emission limits only seldomly. Further, EPA
rejects as inconsistent with the Act and its underlying purposes the notion that
sources can somehow be in routine ``compliance'' without staying within these
limits on an ongoing basis. The fundamental goal of the CAA and the emission standards
established under it, is to achieve clean air. Moreover, many emission standards,
such as hazardous air pollutant standards under Section 112 and emission standards
in State Implementation Plans designed to implement national ambient air quality
standards, have a direct relationship to the protection of human health. Routine
compliance with numerical emission standards is critical to achieving this goal.
The commenters' view that such compliance is somehow not required would completely
undercut these public health and safety goals. If the commenters' view was correct,
any EPA or state targeting of a specific source by requiring the source to perform
more frequent reference tests would be unfair and presumably illegal, because
any such increased frequency in reference testing would destroy the delicate balance
of frequent noncompliance and infrequent testing that the commenters claim is
contemplated by the rules. Under this view, EPA and states might not be able to
require an apparently violating source to conduct a previously unscheduled reference
test, because it would improperly raise the source's chances of being found in
noncompliance and thereby ``increase the stringency of the underlying standards.''
The commenters'' argument is also inconsistent with the language, structure, and
purpose of the CAA. For example, if the frequency of testing must be limited to
meet the intent of the emission limits, to be fair to all sources EPA's regulations
should have required that the tests be performed only at infrequent intervals.
EPA's rules contain no such restrictions; rather, CAA section 114(a)(1)(D) grants
EPA broad discretion to order reference tests whenever the Administrator deems
it appropriate. Moreover, commenters'' argument is inconsistent with CAA section
113(e)(1), which even on its narrowest reading (note that EPA's reading is considerably
broader) specifically provides for use of non- reference test data to prove continuing
additional days of violation after an initial violation is established by reference
test data, and by CAA section 113(e)(2), which establishes a presumption of continuing
violation after notice of the violation has been given to the source, provided
that EPA can make a prima facie showing that ``the conduct or events giving rise
to the violation are likely to have continued or recurred past the date of notice.''
This presumption continues until the violator ``establishes that continuous compliance
has been achieved.'' [[Page 8325]] Likewise, sections 114(a)(3) and 504(a)-(c)
regarding enhanced monitoring and certification as to whether compliance is continuous
or intermittent, and prompt reporting of deviations, are simply inconsistent with
a regulatory regime that would require only occasional demonstrations of compliance
with emission limits. Taken together, these provisions, represent a fundamental
statutory rejection of the commenters' argument. See Detailed Response Document,
Section 4, which discusses other reasons why these comments are without merit.
3. Comments Regarding Continuous Compliance Are Not Directed at Today's Action,
but Rather at Underlying Emission Standards Industry commenters have argued that
the quality and quantity of the data used in establishing emissions limitations,
such as those under the NSPS and NESHAP programs, reflect a conscious decision
by EPA that compliance with such standards would need to be demonstrated only
periodically. It follows that requiring continuous compliance with stated limits
at this juncture would effectively increase the stringency of the standards. As
discussed above, EPA believes that the commenters' general arguments strain common
sense. Commenters have pointed to various NSPS standards to support their views,
but EPAfinds these examples unpersuasive. In particular, commenters have pointed
to the NSPS for kraft pulp mills, 40 CFR Part 60, Subpart BB, and for steam electric
generators constructed between 1971 and 1978, Subpart D, as reflecting a general
acknowledgment by EPA that national standards need not be complied with at all
times. EPA believes that, to the contrary, Subparts BB and D and other cases demonstrate
that where EPA intended to allow affected sources to exceed stated emissions limits,
the standards in question expressly so provide. It is true that in the development
of some NSPS and NESHAP standards, EPA was concerned with the limited number and
distribution of test runs and the inherent variability in levels of emissions
from even well-controlled facilities. Where appropriate, EPA addressed those concerns
by adjusting the numerical value of the standard, providing excess emissions allowances
and provisions for noncompliance during certain upset conditions, or through changes
in averaging times. With other standards, EPA did not provide for any departure
from the general requirement that compliance must be continuous. Examples of all
these approaches, and specific responses to comments regarding Subparts D and
BB, are provided in the Detailed Response Document. The commenters' assertions
that sources cannot comply on a continuous basis are really directed not to the
propriety of today's rules, but rather to the adequacy of the underlying NSPS
and other emission standards that are not at issue in this rulemaking. To the
extent there is any documentation that a well-run facility cannot comply consistently
with underlying national emission standards, or applicable SIP requirements, such
documentation would be relevant only to those existing standards, not to today's
rule. EPA notes that despite several requests to commenters to identify any standards
that cannot be complied with on a regular basis, no specific information has been
provided to this rulemaking docket that demonstrates that well operated and maintained
facilities employing pollution control technologies of the types upon which the
underlying emission standards were based cannot comply with those standards on
a continuing basis. The most that was submitted was a statistical re-analysis
of the data relied upon by EPA in promulgating several emission standards and
a one page graph purporting to show that an industrial boiler could not comply
with the NOX emission limit at low levels. The agency has considered this
comment concerning the Subpart D NOX standard carefully, as it does not intend
to impose requirements that are impossible for well-designed sources to meet,
but believes that this concern is largely theoretical. The information provided
by the commenter to EPA was vague and did not prove that the undisclosed source
could not comply with the emission standard. Further, if a standard was impossible
to achieve under some circumstance, EPA and citizens are not likely to bring enforcement
cases in such instances. In reviewing CAA enforcement actions the agency has been
unable to identify any case where either the agency or a citizen sought to enforce
a standard that was impossible to achieve. The agency was also unable to identify
any case in which a defendant established that compliance was not possible at
the time of the alleged violation. This appears to be the case even in those states
and localities that have had ``credible evidence'' rules for years. Additionally,
should it be determined that a standard could not be met during some relatively
infrequent or inconsequential period of source activity, the potential for significant
adverse impact on that source is remote. The agency has previously expressed its
policy that, generally, judicial enforcement is not the appropriate vehicle to
redress sporadic, infrequent violations with no environmental consequence. Further,
it is unlikely that a citizen could prevail in enforcing a theoretically impossible
standard since Courts will not issue an injunction where there is nothing to be
done. Similarly, where one cannot establish that a source failed to act in a manner
required by law a significant penalty will not be imposed by the courts. The agency
is not aware of any situation in which it has filed, and one should not anticipate
large numbers of citizen suits being filed, where there is nothing the source
could have done or could do to achieve a greater degree of compliance. Moreover,
the courts today have additional tools, including fee awards and sanctions available
under the Federal Rules of Civil Procedure and other statutes to address meritless
suits. In further response to these industry comments, EPA has included in the
record a 1993 study conducted by EPA Region V that shows that almost all (95%)
of sources with sulfur dioxide CEMs were meeting their federal and state sulfur
dioxide emission limits approximately 97% of the time, with excess emission periods
totaling only 3%. See Region V Study, Figure 2. Because this 3% figure included
excess emissions recorded during periods in which compliance is specifically not
required, such as startup and shutdown, the percentage of operating time in noncompliance
with the standard is even smaller and may mean that most sources are in compliance
all the time. EPA Region V sources with continuous opacity monitors showed similar
results: the average source's percentage of opacity exceedances was less than
2%, with 95% of sources at or below approximately 4%. See Study, Figure 1. As
with the sulfur dioxide data, opacity exceedances during periods of startup, shutdown
and other excused periods were not excluded. Accordingly, the percentage of actual
noncompliance with opacity limits was even smaller. Note that these figures are
for the average (50th percentile) and worst (95th percentile) facilities. The
best run facilities have fewer excess emissions reports. Additional CEM data from
EPA Region V that focused specifically on exceedances from NSPS Subpart D SO2
emission standards shows similar results. This data shows that Subpart D sources
report few or no excess SO2 emissions. Approximately two-thirds of the sources
report no excess emissions [[Page 8326]] at all, during any three month reporting
period. Further, since 1990, the vast majority of sources (95%) have reported
total excess emissions averaging less than 2.5% of operating time; since 1993,
less than 1.7%. Since these figures include all excess emission periods, including
periods that are probably excused, the actual SO2 exceedance rates were even
lower. These data show that there are not ``fundamental flaws'' in the subject
standards such that the standard cannot be met. Indeed, the data demonstrate that
most sources do comply all or nearly all of the time. If the regulated community
believes that a standard cannot be met across some meaningful range of normal
operating conditions, or if specific exemptions beyond those currently provided
are proper, we believe the appropriate action is for the affected industry to
file a petition for amendment of the standard at issue or propose more specific
permit conditions so that the matter can be fully assessed and addressed through
the regulatory process. However, the information submitted by the commenters does
not show that there currently exists a significant ``impossibility'' issue that
is so widespread as to outweigh the benefits of the proposed rule. 4. Enforcement
Using Continuous Monitoring Data Does Not Increase the Stringency of Applicable
Requirements Industry commenters have argued that the stringency of emission standards
will be increased if enforceable data is obtained more frequently than has been
ordinarily obtained in the past through reference testing. Further, the commenters
argue that direct enforceability of this data would contradict EPA's stated positions
in adopting standards under the NSPS and NESHAP programs because EPA intended
that continuous monitoring would only show compliance with good operation and
maintenance procedures, i.e., general duty requirements, and would not be otherwise
used in enforcement. (See, e.g., 38 FR 10820 (1973) (preamble to proposed startup,
shutdown and malfunction regulation); 43 FR 7571 (1978) (preamble to final kraft
pulp mill standards). Because the NSPS and NESHAP emission standards must be met
continuously, consistent with any averaging times and except during periods where
compliance is specifically excused, any more frequent or continuous monitoring
of the standards and any enforcement based on violations uncovered thereby have
no effect on the stringency of the standards. To take a simple analogy, allowing
the use of radar guns or increasing the number of police checking for speeding
may raise the chance that a speeder will be detected, but this does not alter
the legal stringency of a posted speed limit. In some early NSPS, the agency required
the installation of what were styled ``indicator monitors'' and provided policy
guidance that such monitoring data would not be used as the sole basis of enforcement
actions absent further rulemaking. 38 FR 10820. To the extent that the CAA Amendments
of 1990 did not supersede this policy statement, today's action is that future
rulemaking. These policy statements, like today's rulemaking, pertain only to
the kinds of evidence EPA uses to prove violations. The policy change that was
contemplated in our 1993 proposal and 1996 memorandum are supported by technological
advances in the accuracy and reliability of continuous emission monitors, deficiencies
in EPA's previous practices identified by GAO and others, and the language and
intent of the Act and the 1990 CAA Amendments. EPA's past statements regarding
limitations on the use of data derived from continuous monitoring methods for
purposes of enforcing standards were motivated in part by concerns over the cost
and availability of such methods and their ability to accurately determine compliance.
See, e.g., National Lime, 627 F.2d at 450 (responding to petitioners' argument
that there was no adequately demonstrated technology for monitoring opacity, EPA
stated that the continuous monitoring data would not be used to determine compliance
with the opacity standard but ``to keep a check on the operation and maintenance
of the control equipment,'' and that the monitors were reliable enough to perform
this limited function). For example, in the 1973 startup, shutdown and malfunction
regulation proposal, EPA noted that while continuous monitoring data would not,
at that time, be used to determine compliance as a general matter, such data could
be used if ``approved as [an] equivalent or alternative method for performance
testing.'' 38 FR 10820. Indeed, the NSPS general provisions have long provided
that in lieu of performance tests using reference methods, a source could demonstrate
compliance using an approved equivalent or alternative method, and that EPA can
waive reference tests where the source has otherwise satisfactorily demonstrated
compliance. See 40 CFR 60.8(b). Since the 1970s, the availability, cost and accuracy
of methods that enable determinations of compliance on a continuous basis has
improved markedly. See, e.g., 1990 GAO report at 19, 22-23 (1986 and 1988 EPA
studies showed CEM data highly reliable); Continuous Emission Monitoring, 1993,
Jahake, Thomas Publishing Co. For these reasons, EPA believes it is appropriate
as a technical matter to allow information derived from these methods to be used
in compliance certifications and enforcement actions. In fact, more recent national
standards issued by EPA provide for determining and enforcing compliance directly
by use of continuous monitoring data. 5. Sources Must Comply Both With Good Operation
and Maintenance Requirements and With Emission Limits Industry commenters have
claimed that as to the NSPS program, the only goal of the program was to insure
that best demonstrated technology was employed, such that once an initial reference
test demonstrated that compliance with the standards could be achieved, it need
not be demonstrated thereafter, and that an affected source's only ongoing obligation
was its ``general duty'' to employ good operation and maintenance practices to
minimize emissions in accordance with 40 CFR 60.11(d). EPA agrees that proper
operation and maintenance of an emissions unit and any associated pollution controls
in accordance with 40 CFR 60.11(d) is vital to complying with emission standards.
However, while it is true that sources have a continuing duty to employ good operations
and maintenance practices, this duty does not substitute for the sources' obligation
to comply with its emission limits. The two obligations, while related, are separate
requirements in the NSPS regulations and in legal effect. EPA has made these points
plain as far back as 1973 in the proposed NSPS startup, shutdown and malfunction
rulemaking: It is anticipated that the initial performance test and subsequent
performance tests will ensure that equipment is installed which will permit the
standards to be attained and that such equipment is not allowed to deteriorate
to the point where the standards are no longer maintained. In addition, the proposed
regulation requires that the plant operator use maintenance and operating procedures
designed to minimize emissions in excess of the standard. 38 FR 10820 (1973) (emphasis
added). This preamble text clearly states both that proper equipment maintenance
is vital to remaining within an emission [[Page 8327]] standard (otherwise equipment
would deteriorate to the point where standards were not met) and that the general
operation and maintenance obligation is a separate regulatory requirement. Additional
discussion of the distinction between the emission limits and good operating practice
requirements can be in the Detailed Response Document. These statements make it
clear that good operating practices requirements are separate and distinct from
the need to continuously comply with emissions limits. E. SIP Call In the October,
1993, proposal, EPA announced that it planned to call for States to amend their
applicable implementation plans to ensure that owners or operators may use enhanced
monitoring (or other monitoring approved for the source pursuant to part 70) for
compliance certification purposes, and that data from this monitoring, along with
any other credible evidence, may be used as evidence of a violation of an applicable
plan. 58 FR 54660. In December, 1993, and February, 1994, the Office of Air and
Radiation's Stationary Source Compliance Division, the division then responsible
for writing and implementing the enhanced monitoring rules, issued memoranda to
EPA's Regional offices instructing them to conduct the SIP call. As of September,
1996, fifteen states and local air pollution control districts, together with
the Commonwealth of Puerto Rico, had responded to the call and submitted SIP amendments
for EPA approval. Kansas, Iowa, Nebraska, North Dakota, Georgia and Puerto Rico
had received approval; the other states and districts' revisions were pending.
For substantially the same reasons that allow EPA to go forward with today's final
rule, EPA has the authority to initiate and continue this SIP call. EPA's decision
to forego the enhanced monitoring approach in favor of the CAM proposal has no
effect on the basic goals of the SIP call, which are to clarify that non-reference
test data can be used in enforcement actions, and to remove any potential ambiguity
regarding this data's use for Title V compliance certifications. Today's action
ensures that the evidentiary rules for CAA violations are consistent in all fifty
states. EPA has surveyed those states that have responded to the SIP call and
has determined that the credible evidence changes have not created the difficulties
forecast by the commenters. IV. Administrative Requirements A. Docket Today's
final rulemaking action is subject to Section 307(d) of the Act. Accordingly,
EPA has established a docket (No. A-91-52), which consists of an organized and
complete file of all information submitted to, or otherwise considered by, EPA
in the development of today's action and the CAM approach. The docket includes
all memoranda and studies cited by EPA in this preamble. The principal purposes
of the docket are: (1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the rulemaking process,
and (2) to serve as the record in case of judicial review. The docket is available
for public inspection at EPA's Air Docket, which is listed under the ADDRESSES
section of this document. B. Office of Management and Budget (OMB) Review Today's
rulemaking is not a ``significant regulatory action'' because the revisions make
only evidentiary changes and do not impose any additional implementation costs
on regulated sources. Nevertheless, EPA submitted this final rule to OMB for review.
Changes made in response to OMB suggestions and recommendations will be documented
in the public record. C. Unfunded Mandates Reform Act Under section 202 of the
Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA generally must
prepare a budgetary impact statement to accompany any proposed or final rule that
includes a Federal mandate that may result in expenditure by State, local, or
tribal governments in the aggregate, or by the private sector, of $100 million
or more. Before promulgating a rule for which such a statement is needed, section
205 of the UMRA generally requires EPA to identify and consider a reasonable number
of regulatory alternatives and adopt the least costly, most cost-effective or
least burdensome alternative that achieves the objectives of the rule. The provisions
of section 205 do not apply when they are inconsistent with applicable law. Section
203 requires the Agency to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly or uniquely
affected by the rule. EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for State, local,
and tribal governments, in the aggregate, or the private sector in any one year.
Today's rulemaking makes only evidentiary changes and does not impose any additional
costs on regulated sources or State, local, or tribal governments. For the same
reason, these evidentiary changes will not significantly or uniquely affect small
governments. Accordingly, this rulemaking is not subject to the requirements of
sections 202, 203, and 205 of the UMRA. D. Regulatory Flexibility Act EPA has
determined that it is not necessary to prepare a regulatory flexibility analysis
in connection with this final rule. EPA has also determined that this rule will
not have a significant economic impact on a substantial number of small entities.
As explained above, this rulemaking does not impose any additional implementation
costs on small or large entities. E. Paperwork Reduction Act The information collection
requirements for the proposed enhanced monitoring rule were previously submitted
for approval to OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq. In contrast, today's rule does not contain any information collection requirements
subject to OMB review under the PRA. F. Submission to Congress and the General
Accounting Office Under 5 U.S.C. 801(a)(1)(A) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Controller General of the General Accounting
Office prior to publication of this rule in today's Federal Register. For the
same reasons that this rulemaking is not a ``significant regulatory action'' under
Executive Order 12866, this rule is not a ``major rule'' as defined by 5 U.S.C.
804(2). List of Subjects 40 CFR Part 51 Environmental protection, Air pollution
control. 40 CFR Part 52 Air pollution control. 40 CFR Part 60 Air pollution control.
40 CFR Part 61 Air pollution control. [[Page 8328]] Dated: February 13, 1997.
Carol M. Browner, Administrator, U.S. Environmental Protection Agency. For the
reasons set out in the preamble, 40 CFR Chapter I is amended as follows: PART
51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS
1. The authority citation for part 51 is revised to read as follows: Authority:
42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602.
2. Section 51.212 is amended by revising paragraph (c) to read as follows: Sec.
51.212 Testing, inspection, enforcement, and complaints. * * * * * (c) Enforceable
test methods for each emission limit specified in the plan. For the purpose of
submitting compliance certifications or establishing whether or not a person has
violated or is in violation of any standard in this part, the plan must not preclude
the use, including the exclusive use, of any credible evidence or information,
relevant to whether a source would have been in compliance with applicable requirements
if the appropriate performance or compliance test or procedure had been performed.
As an enforceable method, States may use: (1) Any of the appropriate methods in
appendix M to this part, Recommended Test Methods for State Implementation Plans;
or (2) An alternative method following review and approval of that method by the
Administrator; or (3) Any appropriate method in appendix A to 40 CFR part 60.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation
for part 52 is revised to read as follows: Authority: 42 U.S.C. 7401 et seq. 2.
Section 52.12 is amended by revising paragraph (c) to read as follows: Sec. 52.12
Source surveillance. * * * * * (c) For purposes of Federal enforcement, the following
test procedures and methods shall be used, provided that for the purpose of establishing
whether or not a person has violated or is in violation of any provision of the
plan, nothing in this part shall preclude the use, including the exclusive use,
of any credible evidence or information, relevant to whether a source would have
been in compliance with applicable requirements if the appropriate performance
or compliance test procedures or methods had been performed: (1) Sources subject
to plan provisions which do not specify a test procedure and sources subject to
provisions promulgated by the Administrator will be tested by means of the appropriate
procedures and methods prescribed in part 60 of this chapter unless otherwise
specified in this part. (2) Sources subject to approved provisions of a plan wherein
a test procedure is specified will be tested by the specified procedure. 3. Subpart
A is amended by adding a new Sec. 52.33 to read as follows: Sec. 52.33 Compliance
certifications. (a) For the purpose of submitting compliance certifications, nothing
in this part or in a plan promulgated by the Administrator shall preclude the
use, including the exclusive use, of any credible evidence or information, relevant
to whether a source would have been in compliance with applicable requirements
if the appropriate performance or compliance test had been performed. (b) For
all federal implementation plans, paragraph (a) of this section is incorporated
into the plan. PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1.
The authority citation for part 60 is revised to read as follows: Authority: 42
U.S.C. 7401, 7411, 7413, 7414, 7416, 7601 and 7602. 2. Section 60.11 is amended
by revising paragraphs (a) and (f) and by adding paragraph (g) to read as follows:
Sec. 60.11 Compliance with standards and maintenance requirements. (a) Compliance
with standards in this part, other than opacity standards, shall be determined
in accordance with performance tests established by Sec. 60.8, unless otherwise
specified in the applicable standard. * * * * * (f) Special provisions set forth
under an applicable subpart shall supersede any conflicting provisions in paragraphs
(a) through (e) of this section. (g) For the purpose of submitting compliance
certifications or establishing whether or not a person has violated or is in violation
of any standard in this part, nothing in this part shall preclude the use, including
the exclusive use, of any credible evidence or information, relevant to whether
a source would have been in compliance with applicable requirements if the appropriate
performance or compliance test or procedure had been performed. PART 61--NATIONAL
EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 1. The authority citation for
part 61 is revised to read as follows: Authority: 42 U.S.C. 7401, 7412, 7413,
7414, 7416, 7601 and 7602. 2. Section 61.12 is amended by revising paragraph (a)
and adding paragraph (e) to read as follows: Sec. 61.12 Compliance with standards
and maintenance requirements. (a) Compliance with numerical emission limits shall
be determined in accordance with emission tests established in Sec. 61.13 or as
otherwise specified in an individual subpart. * * * * * (e) For the purpose of
submitting compliance certifications or establishing whether or not a person has
violated or is in violation of any standard in this part, nothing in this part
shall preclude the use, including the exclusive use, of any credible evidence
or information, relevant to whether a source would have been in compliance with
applicable requirements if the appropriate performance or compliance test had
been performed. [FR Doc. 97-4196 Filed 2-21- 97; 8:45 am] BILLING CODE 6560-50-P