[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Proposed Rules]
[Pages 32006-32015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8613]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[EPA-HQ-OAR-2003-0179; FRL-8178-1]
RIN 2060-AN74
Proposed Rule Interpreting the Scope of Certain Monitoring
Requirements for State and Federal Operating Permits Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The purpose of this action is to request comments on a
proposed interpretation of certain existing Federal air program
operating permits regulations. This proposed
[[Page 32007]]
interpretation is that certain sections of the operating permits
regulations do not require or authorize permitting authorities to
assess or enhance existing monitoring requirements in implementing the
operating permits independent of such monitoring required or authorized
in other rules. Such other rules include the monitoring requirements in
existing Federal air pollution control standards and regulations
implementing State requirements. We propose to interpret these sections
to require that title V permits contain the monitoring provisions
specified or developed under these separate sources of monitoring
requirements. We also formally withdraw a September 17, 2002 Federal
Register proposal to revise the Federal operating permits program and
with this action provide an interpretation of those rules different
from that set forth in the 2002 proposal. This proposed interpretation
will clarify the permit content requirements and facilitate permit
issuance ensuring that air pollution sources can operate and comply
with requirements.
DATES: Written comments must be received by July 17, 2006.
ADDRESSES: Submit your comments identified by Electronic Docket ID No.
EPA-HQ-OAR-2003-0179 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Fax: (202) 566-1741.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center (EPA/DC), Air and Radiation Docket Information Center, 1200
Pennsylvania Avenue, NW.; Mail Code: 6102T, Washington, DC 20460.
Hand Delivery: To send comments or documents through a
courier service, the address to use is: EPA Docket Center, Public
Reading Room, EPA West, Room B102, 1301 Constitution Avenue, NW.,
Washington, DC 20004. Such deliveries are accepted only during the
Docket's normal hours of operation--8:30 a.m. to 4:30 p.m., Monday
through Friday. Special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Electronic Docket ID No. EPA-
HQ-OAR-2003-0179. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise to be protected through http://www.regulations.gov or e-mail. The Web site is an ``anonymous access''
system, which means we will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to us without going through http://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, we recommend that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If we cannot read your comment as a result of technical
difficulties and cannot contact you for clarification, we may not be
able to consider your comment. Electronic files should avoid the use of
special characters or any form of encryption and be free of any defects
or viruses.
Docket: All documents in the docket are listed in the Federal
Docket Management System (FDMS) index at http://www.regulations.gov.
Although listed in the index, some information is not publicly
available (e.g., CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically at http://www.regulations.gov or in
hard copy at the EPA Docket Center, Public Reading Room, EPA West, Room
B102, 1301 Constitution Avenue, NW., Washington, DC 20004. The normal
business hours are 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays. The telephone number is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Peter Westlin, Environmental
Protection Agency, Office of Air Quality Planning and Standards, Mail
code: D243-05, 109 TW Alexander Drive, Research Triangle Park, NC
27711, Telephone: (919) 541-1058.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Affect Me?
Categories and entities potentially affected by this action include
facilities currently required to obtain title V permits under State,
local, tribal, or Federal operating permits programs, and State, local,
and tribal governments that issue such permits pursuant to approved
part 70 and part 71 programs. If you have any questions regarding the
applicability of this action, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
In addition to access to information in the docket as described
above, you may also access electronic copies of the proposed rule and
associated information through the Technology Transfer Network (TTN)
Web site. Following the Administrator signing the notice, we will post
the proposed rule on the Office of Air and Radiation's Policy and
Guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg/. The TTN provides an information and technology
exchange in various areas of air pollution control. If more information
regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.
You may access this Federal Register document electronically
through the EPA Internet under the Federal Register listings at http://www.epa.gov/ttn/oarpg.
You may access an electronic version of a portion of the public
docket through the Federal eRulemaking Portal. Interested persons may
use the electronic version of the public docket at http://www.regulations.gov to: (1) Submit or view public comments, (2) access
the index listing of the contents of the official public docket, and
(3) access those documents in the public docket that are available
electronically. Once in the FDMS, use the Search for Open Regulations
field to key in the appropriate docket identification number or
document title at the Keyword window.
C. How Is This Preamble Organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does This Action Affect Me?
B. How Can I Get Copies of This Document and Other Related
Information?
C. How Is This Preamble Organized?
II. Background
III. What Does This Action Involve?
A. Will the Regulatory Text of the Rules Change Under This
Action?
B. Is There a Need To Address Comments Received Concerning the
September 17, 2002 Proposal?
C. What Is the Correct Interpretation of Sec. Sec. 70.6(c)(1)
and 71.6(c)(1)?
D. What are the Effects of This Action on the Pacificorp and
Fort James Petitions?
[[Page 32008]]
E. How Do We Intend To Advance Better Monitoring?
IV. What Is the Policy Rationale for This Action?
V. What Is the Legal Basis for This Action?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
II. Background
EPA's State and Federal operating permits program regulations, 40
CFR parts 70 and 71, require that operating permits include applicable
monitoring requirements. The ``periodic monitoring'' rules as described
in Sec. Sec. 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B) require that
[w]here the applicable requirement does not require periodic
testing or instrumental or noninstrumental monitoring (which may
consist of recordkeeping designed to serve as monitoring), [each
title V permit must contain] periodic monitoring sufficient to yield
reliable data from the relevant time period that are representative
of the source's compliance with the permit, as reported pursuant to
[Sec. 70.6(a)(3)(iii) or Sec. 71.6(a)(3)(iii)]. Such monitoring
requirements shall assure use of terms, test methods, units,
averaging periods, and other statistical conventions consistent with
the applicable requirement. Recordkeeping provisions may be
sufficient to meet the requirements of [Sec. 70.6(a)(3)(i)(B) and
Sec. 71.6(a)(3)(i)(B)].
Sections 70.6(a)(3)(i)(A) and 71.6(a)(3)(i)(A) require that permits
contain ``[a]ll monitoring and analysis procedures or test methods
required under applicable monitoring and testing requirements,
including part 64 of this chapter and any other procedures and methods
that may be promulgated pursuant to sections 114(a)(3) and 504(b) of
the Act.'' In addition, Sec. Sec. 70.6(c)(1) and 71.6(c)(1) require
that each title V permit contain, ``[c]onsistent with paragraph (a)(3)
of this section, compliance certification, testing, monitoring,
reporting, and recordkeeping requirements sufficient to assure
compliance with the terms and conditions of the permit'' (emphasis
added).
On September 17, 2002 (67 FR 58561), we proposed to remove the
introductory phrase ``[c]onsistent with paragraph (a)(3) of this
section,'' from Sec. Sec. 70.6(c)(1) and 71.6(c)(1) to clarify a
policy we expressed in our responses to the citizen petitions regarding
Pacificorp and Fort James Camas Mills facilities \1\ (see discussion of
these petitions below). The purpose of these revisions was to remove
the introductory clause so that Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
could be interpreted more clearly as establishing a regulatory standard
for: (1) Assessing and enhancing existing monitoring requirements, or
(2) adding new monitoring requirements separate from the application of
the periodic monitoring rules. At that time, we believed the action
would clarify what we viewed as the relationship between the NRDC and
Appalachian Power \2\ decisions regarding title V monitoring. In
Appalachian Power, the Court held that permitting authorities may not,
on the basis of the periodic monitoring rule in Sec. 70.6(a)(3)(i)(B),
require in permits that the regulated source conduct more frequent
monitoring of its emissions than that provided in the applicable State
or Federal standard, unless that standard ``requires no periodic
testing, specifies no frequency, or requires only a one-time test.''
208 F.3d at 1028. The NRDC decision implied that implementing parts 70
and 71 could fulfill the need to address enhanced monitoring under the
Act. In NRDC, the Court noted that ``* * * the 1990 Clean Air Act
Amendments did not mandate that EPA fit all enhanced monitoring under
one rule and EPA has reasonably illustrated how its enhanced monitoring
program, when considered in its entirety, complies with Sec.
114(a)(3).'' 194 F.3d at 135.
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\1\ In the Matter of Pacificorp's Jim Bridger and Naughton
Electric Utility Steam Generating Plants, Petition No. VIII-00-1
(November 16, 2000) (Pacificorp) (available on the Internet at:
http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/woc020.pdf), and
In the Matter of Fort James Camas Mill, Petition No. X-1999-1
(December 22, 2000) (Fort James) available on the Internet at:
http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/fort_james_decision1999.pdf.
\2\ Natural Resources Defense Council v. EPA, 194 F.3d 130 (DC
Cir. 1999) (NRDC) and Appalachian Power v. EPA, 208 F.3d 1015 (DC
Cir. 2000) (Appalachian Power).
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We decided following those two decisions that we could interpret
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) as an independent source of
authority for permit writers to assess and enhance monitoring
requirements through the operating permits process, and adopted that
interpretation in our responses to citizen petitions for the permits
proposed for the Pacificorp and Fort James Camas Mills facilities, as
well as in the 2002 proposed rule. Simply put, the monitoring related
portions of the petitions filed in 1998 and 1999 requested not only
that the permits include existing monitoring requirements, but also
asked us to require permitting authorities to: (1) Assess the
sufficiency of the existing monitoring requirements beyond assessing
their periodic nature, and (2) enhance the requirements as necessary to
assure compliance with permit terms and conditions. We had documented
that two-part monitoring assessment and enhancement process for parts
70 and 71 in the Periodic Monitoring Guidance \3\ issued in 1998;
however, we subsequently withdrew the Guidance as a result of the
Appalachian Power decision, which vacated the Guidance on the grounds
that it overreached the plain language of the periodic monitoring
rules, Sec. Sec. 70.6(a)(3) and 71.6(a)(3). The Court said in that
decision that the plain language of these sections provided that
monitoring requirements could be amended via the title V permitting
process only where the applicable emission standard contains no
monitoring requirement, a one-time startup test, or provides no
frequency for monitoring. In our orders regarding the Pacificorp and
Fort James petitions, we relied on Sec. Sec. 70.6(c)(1) and
71.6(c)(1), rather than the periodic monitoring rules, to authorize an
independent assessment of the sufficiency of the monitoring to provide
an assurance of compliance.
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\3\ ``Periodic Monitoring Guidance,'' signed by Eric V.
Schaffer, Director, Office of Regulatory Enforcement, and John S.
Seitz, Director, Office of Air Quality Planning and Standards,
September 15, 1998.
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The September 2002 proposal to revise Sec. Sec. 70.6(c)(1) and
71.6(c)(1) by deleting the introductory clause was meant to clarify the
regulations consistent with this previous interpretation. On that same
day, we separately issued an interim final rule effective from
September 17, 2002, until Nov. 18, 2002. 67 FR 58529 (Sept. 17, 2002).
By promulgating this interim final rule, we suspended, for sixty days,
the italicized prefatory language in Sec. 70.6(c)(1) providing that
all title V permits contain, ``[c]onsistent with paragraph (a)(3) of
this section compliance certification, testing, monitoring, reporting,
and recordkeeping requirements sufficient to assure compliance with the
terms and conditions of the permit.'' 67 FR 58532.
[[Page 32009]]
In reviewing both our September 17, 2002, proposal to include the
sufficiency assessment as part of the title V operating permits
program, as well as the public comments received, we decided after
further reflection that the plain language of Sec. Sec. 70.6(c)(1) and
71.6(c)(1) indicates that they direct permitting authorities to include
monitoring under existing statutory and regulatory authorities in
permits, but does not authorize or require them to assess the
sufficiency of underlying monitoring requirements. Therefore, we
published a final rule (69 FR 3202, January 22, 2004) in which we
determined not to adopt the regulatory changes to parts 70 and 71
proposed in 2002. In the January 22, 2004 rule, we noted that the
appropriate interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1),
consistent with the background and intent of parts 70 and 71, is that
they do not provide a basis for requiring or authorizing review and
enhancement of existing monitoring requirements in operating permits,
independent of any other review and enhancement that be may required
under other rules. In the January 22, 2004 notice, we identified other
applicable regulatory vehicles that more appropriately address
monitoring requirements other than the parts 70 and 71 general
operating permits regulations and the periodic monitoring requirements.
The types of monitoring requirements we referenced included: (1)
monitoring directed by applicable requirements under the Act including,
but not limited to, monitoring required under 40 CFR part 64, where it
applies, as well as monitoring required under Federal rules such as new
source performance standards of 40 CFR part 60 (NSPS), national
emissions standards for hazardous air pollutants of 40 CFR parts 61 and
63 (NESHAP), acid rain rules of 40 CFR parts 72 through 78, and State,
Tribal, and Federal implementation plan rules; and (2) such monitoring
as may be required under the narrow definition of gap-filling as
required under the periodic monitoring rules (Sec. Sec.
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B)).
Petitioners challenged the Agency's January 22, 2004, rule on the
basis that it unlawfully and arbitrarily prohibited permitting
authorities from requiring additional monitoring in title V permits
where existing monitoring obligations in underlying applicable
requirements were not sufficient to assure source compliance.\4\ On
October 7, 2005, the United States Court of Appeals vacated the January
22, 2004, final rule on procedural grounds, holding that the final rule
was not a ``logical outgrowth'' of our September 17, 2002, proposal in
violation of the Administrative Procedure Act's notice-and-comment
requirements.
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\4\ Environmental Integrity Project v. EPA, 425 F.3d 992 (D.C.
Cir. 2005).
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III. What Does This Action Involve?
As mentioned in the prior section and as discussed below, we have
decided to withdraw the revisions to Sec. Sec. 70.6(c)(1) and
71.6(c)(1) that we proposed on September 17, 2002 (67 FR 58561). In
addition, we propose for comment, based on a reasonable interpretation
of the Act, that the plain language and structure of Sec. Sec.
70.6(c)(1) and 71.6(c)(1) do not provide an independent basis for
requiring or authorizing review and enhancement of existing monitoring
in title V permits. We believe that other rules establish a basis for
such review and enhancement, including: (1) The periodic monitoring
rules of parts 70 and 71 and (2) compliance assurance monitoring of 40
CFR part 64 (62 FR 54900, October 22, 1997) where it applies. Other
applicable regulatory requirements that address monitoring design and
implementation, include, but are not limited to: (1) NSPS, (2) NESHAP,
(3) acid rain program rules, and (4) State, tribal and Federal
implementation plan rules approved under title I of the Act. In
addition, we recognize and propose that there are current and future
opportunities to advance monitoring through regulatory and other
mechanisms more effectively than through a nonspecific requirement in
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) of the operating permits rules
that the proposed (September 17, 2002) revisions would have created.
A. Will the Regulatory Text of the Rules Change Under This Action?
No, this action does not change any regulatory text.
B. Is There a Need To Address Comments Received Concerning the
September 17, 2002 Proposal?
We addressed significant comments received on the September 17,
2002, proposal in the January 22, 2004, rule and in a summary document
available in the docket. While we refer to some of the comments in the
discussion below, because this action withdraws the proposal, there is
no further need to address the comments on the proposal.
C. What Is the Correct Interpretation of Sec. Sec. 70.6(c)(1) and
71.6(c)(1)?
Notwithstanding the recitation in Sec. Sec. 70.6(c)(1) and
71.6(c)(1) of monitoring as a permit element, we propose that the
correct interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is that
these provisions do not establish a separate regulatory standard or
basis for requiring or authorizing review and enhancement of existing
monitoring independent of any review and enhancement that may be
required under other portions of the rules. Instead, these paragraphs
require the permitting authority to include in title V permits a number
of elements (e.g., reporting, record keeping, compliance
certifications) related to compliance; among these elements is the
monitoring as specified in Sec. Sec. 70.6(a)(3) and 71.6(a)(3) (i.e.,
monitoring defined by the applicable requirements and periodic
monitoring, if needed).
More specifically, both Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
provide only that permits contain ``monitoring * * * requirements
sufficient to assure compliance with the terms and conditions of the
permit.'' This general language does not provide any indication of what
type or frequency of monitoring is required. For monitoring, however,
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) take on additional meaning when
considered with the more detailed periodic monitoring rules in
Sec. Sec. 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), which specify that
periodic monitoring must be ``sufficient to yield reliable data from
the relevant time period that are representative of the source's
compliance with the permit,'' or with the monitoring required in other
provisions of Sec. Sec. 70.6(a)(3) and 71.6(a)(3). This means that
either the monitoring from applicable requirements or the periodic
monitoring included under Sec. Sec. 70.6(a)(3)(i)(B) and
71.6(a)(3)(i)(B) satisfies the compliance provisions in Sec. Sec.
70.6(c)(1) and 71.6(c)(1).
In summary, Sec. Sec. 70.6(c)(1) and 71.6(c)(1) constitute general
provisions that direct permitting authorities to include the monitoring
required under existing statutory and regulatory authorities in title V
permits along with other compliance related requirements. These
provisions do not require or authorize a new and independent assessment
of monitoring requirements to assure compliance.
D. What Are the Effects of This Action on Pacificorp and Fort James
Petitions?
Our responses to the monitoring aspects of the Pacificorp and Fort
James title V petitions were based on the same interpretation of Sec.
70.6(c)(1) that we took in the September 17, 2002 proposal, under which
we read that provision as requiring a sufficiency review of existing
monitoring requirements. That interpretation of
[[Page 32010]]
Sec. 70.6(c)(1) is different than the interpretation that we propose
with this action. We are proposing that Sec. Sec. 70.6(c)(1) and
71.6(c)(1) should be interpreted as not establishing a separate
regulatory standard or basis for requiring or authorizing review and
enhancement of existing monitoring independent of any review and
enhancement that may be required under Sec. Sec. 70.6(a)(3) and
71.6(a)(3) or other Federal rules.
In fact, even if we had applied the interpretation of Sec.
70.6(c)(1) in the Pacificorp and Fort James citizen petitions that we
propose with this action, we believe that application of that different
interpretation would have had a minimal impact on our response to the
petitions. In the former instance, we required an already-installed
continuous opacity monitoring system (COMS) to provide quarterly
opacity data in lieu of quarterly Method 9 visible opacity readings. We
note that the owners or operators would have collected the COMS data in
any case and reported any excursions as other information available as
part of the annual compliance certification. In the latter instance, we
relied on our sufficiency monitoring interpretation of the rule in
response to one of the approximately twenty monitoring provisions at
issue in the Fort James permit by requiring a sufficiency review of a
newly-developed control device inspection performed monthly for an
annual particulate matter standard. While our request for documentation
of the link between inspections and maintenance of the annual emissions
limit was appropriate, our authority under the periodic monitoring
rules allowed us to point out there was no frequency of monitoring
specified in the standard. Thus, we did not need to comment pursuant to
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) on the adequacy of the frequency
of monitoring established by the permitting authority.
Under the circumstances that we have just described, we believe
that follow-up activity with regard to the Pacificorp or Fort James
permits is unnecessary. If, after the public comment period, we decide
to finalize the interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
that we propose with this action, the owners or operators of those
facilities may choose to revisit these particular terms and conditions
in their permits via the permit revision process or at permit renewal.
Such revisions may include deleting redundant quarterly Method 9
visible opacity readings via permit streamlining \5\ given that the
COMS is already required and provides essentially the same data
continuously.
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\5\ 40 CFR 70.6(a)(3)(i)(A).
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E. How Do We Intend To Advance Better Monitoring?
As the Court noted in NRDC, EPA's enhanced monitoring program to
assure compliance with applicable requirements is not, and need not be,
implemented under a single rule. 194 F.3d at 135. Our enhanced
monitoring program encompasses a number of regulatory and other
mechanisms to improve and advance better monitoring for stationary
sources subject to air emissions regulations implementing the Act.
Central to the program is the development of over 90 source
category-specific regulations (e.g., NESHAP regulations in 40 CFR part
63) since 1990 that address monitoring to assure compliance with
emissions limitations. The program to address enhanced monitoring also
includes 40 CFR part 64, the CAM rule, that requires owners or
operators who rely on add-on control devices (e.g., fabric filters and
scrubbers) to meet applicable emissions limits to assess existing
monitoring requirements according to prescribed procedures and
operating criteria. In the preamble to the CAM rulemaking (62 FR 54900,
October 22, 1997), we noted that ``* * * part 64 is intended to
address: (1) The requirement in title VII of the 1990 Amendments that
EPA promulgate enhanced monitoring and compliance certification
requirements for major sources, and (2) the related requirement in
title V that operating permits include monitoring, compliance
certification, reporting and recordkeeping provisions to assure
compliance.'' (emphasis added). We clearly indicated by this statement
that part 64 will address and satisfy the monitoring requirements
required for those permitted facilities subject to the CAM rule.
In the CAM rule, we also recognized that the basis for monitoring
sufficient to assure compliance is inherent in many existing
regulations. For example, we noted that ``* * * monitoring of covered
units and sources under some NSPS may be sufficient to meet part 64
requirements; however, the question of sufficiency of any particular
monitoring requirement from a non-exempt standard will have to be
determined in accordance with the requirements of part 64.'' (62 FR
59940, October 22, 1997). Thus, part 64 requires the source owner or
operator to design, submit, and implement new monitoring as needed to
assure compliance with existing (e.g., pre-1991) regulatory
requirements and, by doing so, satisfy the statute.
We also are continuing to pursue the four-step strategy that we
described in the January 22, 2004, rulemaking for improving existing
monitoring where necessary through rulemaking actions while reducing
resource-intensive, case-by-case monitoring reviews. The interpretation
of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) that we propose with this
action is a first part of that strategy. Second, on February 16, 2005
(70 FR 7905), we published a request for comment on potentially
inadequate monitoring in applicable requirements and on methods to
improve such monitoring. We are reviewing comments received in response
to that notice and intend to take appropriate action in response.
Third, we have also published a proposed rulemaking concerning the
implementation of the national ambient air quality standard (NAAQS) for
fine particulate matter (particulate matter with an aerodynamic
diameter of less than 2.5 micrometers, or PMfine). In
conjunction with finalizing that rule, we plan to issue monitoring
guidance that we intend to make available for public comment. We intend
that such material would encourage States and Tribes to improve
monitoring in SIPs and TIPs relative to implementing the NAAQS.
Fourth, many who commented on the September 17, 2002 proposed rule
raised concerns that the rules implementing EPA's enhanced monitoring
program do not yet address some existing requirements. In particular,
they noted that there are requirements in existing rules that are not
affected by 40 CFR part 64 (e.g., units with control measures other
than add-on devices), post-1990 NESHAP and NSPS, or the soon-to-be-
developed SIP rules such as the PMfine implementation rules.
We agree and have learned through implementing the operating permits
and other regulatory programs that there continue to be opportunities
to improve monitoring in existing requirements, achieve improved
compliance, and assure emissions reductions.
IV. What Is the Policy Rationale for This Action?
This action clarifies the role that the title V permitting process
plays in ensuring that the statutory monitoring requirements are met.
Several policy considerations--many of which were raised in comments on
the 2002 proposed rule--have motivated our decision to pursue an
approach to title V monitoring that will achieve necessary improvements
in the monitoring required of title V sources primarily through
national rulemakings
[[Page 32011]]
or guidance for States to revise their SIP rules, rather than through
authorizing or requiring permitting authorities to perform case-by-case
monitoring.
First, this approach will improve the balance between the
responsibility that States and other permitting authorities have for
issuing and implementing title V permits and our responsibility for
developing rules establishing monitoring requirements sufficient to
meet the Act's monitoring requirements. The interpretation we propose
would limit the authority of permitting authorities under Sec. Sec.
70.6(c)(1) and 71.6(c)(1) to conduct case-by-case assessments of the
sufficiency of monitoring required by other rules. We emphasize that
this interpretation relative to parts 70 and 71 does not affect the
State, Tribal, or other permitting agency's authority under other
applicable rules to assess and impose alternative or new monitoring
requirements. Such other authorities with respect to monitoring include
the applicable SIP or TIP and the alternative testing and monitoring
assessments and approval procedures in Sec. Sec. 60.8, 60.13, 61.13,
61.14, 63.7, and 63.8. This interpretation also does not affect the
development of monitoring necessary to implement other specific
provisions relating to permits, including monitoring to allow for
operational flexibility, monitoring under alternative scenarios, and
monitoring consistent with permit streamlining (e.g., Sec. Sec.
70.4(d)(3)(viii) and (xi) and 70.6(a)(3)(i)(A)).
This proposed interpretation would avoid two significant permit
implementation issues arising from our previous interpretation that
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) require an independent assessment
of the adequacy of otherwise applicable monitoring requirements. First,
under this previous alternative interpretation, for each draft title V
permit, permitting authorities would be required to review every permit
term or condition, based on applicable requirements, and determine,
generally without any definitive national guidance or regulation,
whether the existing monitoring requirements are sufficient to assure
compliance with such terms and conditions. The complex industrial
sources and other sources subject to title V are subject to numerous
applicable requirements and their draft permits contain numerous terms
and conditions, which means that such reviews would be time-consuming
and demand that permit writers develop and maintain highly technical
expertise. This proposed interpretation that Sec. Sec. 70.6(c)(1) and
71.6(c)(1) do not require such additional assessments and new
monitoring development would relieve many significant burdens on State,
local, and Tribal permitting authorities charged with implementing the
rule that the previous interpretation would have imposed.
Second, under the previous interpretation, permit writers may have
determined that existing monitoring would not assure compliance with
the permit's terms and conditions and, in response, would have to
propose new or revised monitoring to satisfy an unclear sufficiency
requirement. This would have been without the benefit of an established
process for determining what types of monitoring would satisfy the
statutory and regulatory requirements. This approach would have
required a significant level of expertise within the permitting
authority and likely resulted in confusion and disagreements over the
monitoring decisions made by permitting authorities. Some State and
local permitting authorities have attributed delays in permit issuance
to such case-by-case efforts to develop and approve monitoring for
individual permits, as indicated by comments on the September 17, 2002,
proposed changes to Sec. Sec. 70.6(c)(1) and 71.6(c)(1). (See more
detailed EPA responses to all significant comments raised on the
proposal below and in a separate document placed in the docket.) In
addition to the excessive burden and confusion issues outlined above,
one permitting authority also indicated that such independent
monitoring assessments under Sec. Sec. 70.6(c)(1) and 71.6(c)(1) would
likely result in relatively arbitrary and inconsistent monitoring
decisions from permit to permit and make permit issuance more
difficult. Thus, we believe that requiring States and other permitting
authorities to assess the adequacy of all existing monitoring and, as
necessary, to upgrade monitoring through the title V permitting process
would place a significant, unmanageable, and unnecessary burden on
those permitting authorities. We believe that this interpretation will
mitigate those concerns.
We also received comments from industry representatives who
indicated that requiring sufficiency reviews under Sec. Sec.
70.6(c)(1) and 71.6(c)(1) would have placed undue burdens on title V
sources. All industry representatives who provided comments stated that
the 2002 proposed rule's changes to Sec. Sec. 70.6(c)(1) and
71.6(c)(1) would lead to increased burdens on States and on sources.
For instance, those who commented cited several examples indicating
that case-by-case monitoring assessments and development of new
monitoring requirements can delay permit issuance and renewals.
Furthermore, commenters suggested that using rulemaking to revise
monitoring requirements will assure that the new monitoring
requirements are adopted consistent with the intent of those control
technology standards.
Finally, we believe that this proposed interpretation of Sec. Sec.
70.6(c)(1) and 71.6(c)(1) offers other advantages over the
interpretation in the September 17, 2002 proposed rule. Specifically,
we believe that applying a programmatic approach to reviewing,
proposing, and promulgating improvements to existing monitoring
requirements through Federal, State, or local rulemaking as we propose
is an effective use of resources and available technical expertise.
This proposed approach will be far more efficient and effective than
relying on more resource-intensive, case-by-case sufficiency reviews
under Sec. Sec. 70.6(c)(1) and 71.6(c)(1) during the process of
developing and reviewing permits. Monitoring developed through national
rulemaking is also likely to result in greater consistency in
monitoring requirements included in permits both within States and
nationally. In addition, we expect that a national regulatory program
to assess and improve potentially inadequate monitoring requirements
will result in broader public input into monitoring decisions than is
possible during individual permit proceedings. We believe this is true
because formal national rulemaking procedures involve an opportunity
for broad public comment and hearing, attracting a larger national
audience of individuals more knowledgeable about technical issues
specific to monitoring technologies as related to specific source
categories, pollutants, and control measures. The resulting regulatory
outcomes would facilitate the requirements of section 502(b)(6) of the
Act for an adequate, streamlined, reasonable, and expeditious process
for reviewing and implementing permit actions.
Moreover, national rulemakings are more likely than individual
permit proceedings to result in better consideration of potential
economic impacts. For example, Executive Order 12866 provides for the
following analyses: (l) Stating the need for the proposed regulatory
action; (2) examining alternative approaches to the problem; (3)
quantifying benefits and costs and valuing them in dollar terms (where
feasible); and (4) evaluating the findings on benefits, costs, and
distributional effects. Statutory or regulatory provisions or Executive
[[Page 32012]]
Orders requiring detailed consideration of economic impacts or other
burdens imposed by various types of monitoring apply to Federal
rulemakings but are not required in individual permit proceedings.
Thus, compared to the September 17, 2002 proposed rule's approach, the
approach we propose has the added benefit of providing a greater degree
of scrutiny of decisions concerning the potential economic impact of
proposed monitoring requirements.
We believe it is necessary and appropriate to clarify through an
interpretive rule that Sec. Sec. 70.6(c)(1) and 71.6(c)(1) do not
authorize or require States and other permitting authorities to assess
the adequacy of all existing monitoring, and, as necessary, to upgrade
monitoring through the title V permitting process. We believe that the
comprehensive regulatory development approach for addressing monitoring
has resulted and will continue to result in development and
implementation of more consistent and more effective monitoring
requirements, and reduced confusion about what monitoring requirements
should be imposed in individual permits. When inadequate monitoring is
improved through rulemaking at the national or State level, the
improved monitoring can be incorporated into title V permits with
little, if any, source-specific tailoring, thereby eliminating some of
the variations in monitoring determinations inherent in case-by-case
reviews. More consistent monitoring requirements in permits nationally
should also help to eliminate concerns about potential inequities in
monitoring amongst similarly-situated sources in different
jurisdictions.
V. What Is the Legal Basis for This Action?
Various factors have prompted EPA's decision regarding Sec. Sec.
70.6(c)(1) and 71.6(c)(1). EPA believes that the plain language of
Sec. Sec. 70.6(c)(1), and 71.6(c)(1), which begins with the phrase
``[c]onsistent with'' Sec. Sec. 70.6(a)(3) and 71.6(a)(3), indicates
that Sec. Sec. 70.6(c)(1) and 71.6(c)(1) include and gain meaning from
the more specific monitoring requirements in Sec. Sec. 70.6(a)(3) and
71.6(a)(3). Both Sec. Sec. 70.6(c)(1) and 71.6(c)(1) provide only that
permits contain ``monitoring * * * requirements sufficient to assure
compliance with the terms and conditions of the permit.'' Read in
isolation, this general language does not provide any indication of
what type or frequency of monitoring is required. Yet, for monitoring,
Sec. Sec. 70.6(c)(1) and 71.6(c)(1) take on practical meaning when
they are read together with the more detailed periodic monitoring
rules, which specify that periodic monitoring must be ``sufficient to
yield reliable data from the relevant time period that are
representative of the source's compliance with the permit,'' or with
other provisions of Sec. Sec. 70.6(a)(3) and 71.6(a)(3).\6\ Thus, the
plain language and structure of Sec. Sec. 70.6(c)(1) and 71.6(c)(1)
and the periodic monitoring rules show that Sec. Sec. 70.6(c)(1) and
71.6(c)(1) support the interpretation that we are proposing.
---------------------------------------------------------------------------
\6\ For instance, each permit must contain, with respect to
monitoring, (1) ``[a]ll monitoring and analysis procedures or test
methods required under applicable monitoring and testing
requirements, including [the CAM rule] and any other procedures and
methods that may be promulgated pursuant to sections 114(a)(3) and
504(b) of the Act,'' see Sec. Sec. 70.6(a)(3)(i)(A) and
71.6(a)(3)(i)(A); and (2) ``[a]s necessary, requirements concerning
the use, maintenance, and, where appropriate, installation of
monitoring equipment or methods.'' Sec. Sec. 70.6(a)(3)(i)(C) and
71.6(a)(3)(i)(C).
---------------------------------------------------------------------------
In addition, the policy considerations discussed in section IV of
this preamble support EPA's determination that our proposed
interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is the correct
one. In sum, this approach will better balance the responsibilities of
States and other permitting authorities and EPA to improve monitoring
where necessary to ensure that the Act's monitoring requirements are
met. Compared to 2002 proposed rule's approach, this approach will also
reduce burdens on title V sources, be more efficient from a resource
standpoint, result in more equitable monitoring decisions, and allow
for wider, more expert public input into monitoring decisions.
This interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is
consistent with EPA's authority under the Act and the underlying rules.
Congress granted EPA broad discretion to decide how to implement the
title V monitoring requirements and the ``enhanced monitoring''
requirement of section 114(a)(3) of the Act.\7\ Two provisions of title
V of the Act specifically address rulemaking concerning monitoring.
First, section 502(b)(2) of the Act requires EPA to promulgate
regulations establishing minimum requirements for operating permit
programs, including ``[m]onitoring and reporting requirements.'' 42
U.S.C. 7661a(b)(2). Second, section 504(b) authorizes EPA to prescribe
``procedures and methods'' for monitoring ``by rule.'' 42 U.S.C.
7661c(b). Section 504(b) provides: ``The Administrator may by rule
prescribe procedures and methods for determining compliance and for
monitoring and analysis of pollutants regulated under this Act, but
continuous emissions monitoring need not be required if alternative
methods are available that provide sufficiently reliable and timely
information for determining compliance. * * *'' (Emphasis added.) Id.
---------------------------------------------------------------------------
\7\ Section 114(a)(3) of the Act provides that ``[t]he
Administrator shall in the case of any person which is the owner or
operator of a major stationary source, and may, in the case of any
other person, require enhanced monitoring and submission of
compliance certifications.'' 42 U.S.C. 7414(a)(3).
---------------------------------------------------------------------------
Other provisions of title V refer to the monitoring required in
individual operating permits. Section 504(c) of the Act, which contains
the most detailed statutory language concerning monitoring, requires
that ``[e]ach [title V permit] shall set forth inspection, entry,
monitoring, compliance certification, and reporting requirements to
assure compliance with the permit terms and conditions.'' 42 U.S.C.
7661c(c). Section 504(c) further specifies that ``[s]uch monitoring and
reporting requirements shall conform to any applicable regulation under
[section 504(b)]. * * *'' Id. Section 504(a) more generally requires
that ``[e]ach [title V permit] shall include enforceable emission
limitations and standards, * * * and such other conditions as are
necessary to assure compliance with applicable requirements of this
Act, including the requirements of the applicable implementation
plan.'' 42 U.S.C. 7661c(a).
Thus, title V clearly authorizes the Agency to require improvements
to the existing monitoring required by applicable requirements in at
least two ways. Under the statute, we may require case-by-case
monitoring reviews as described in the revisions to parts 70 and 71
proposed on September 17, 2002. Alternatively, we may achieve any
improvements to monitoring through Federal or State rulemakings to
amend the monitoring provisions of applicable requirements themselves;
these amended monitoring requirements may then be incorporated into
title V permits without engaging in case-by-case sufficiency monitoring
reviews.
This interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) is
consistent with EPA's authority under the Act and the underlying rules.
We have exercised the authority the Act provides by establishing
monitoring requirements under national rules, such as 40 CFR part 64,
NSPS requirements under part 60, NESHAP requirements under part 61,
MACT standards under part 63, and the continuous emissions monitoring
rule under the acid rain program (40 CFR part 75). Based on comments
received on the 2002 proposed rule and as a matter of policy (see
section IV of this preamble), we believe that that the approach we
propose is preferable to an
[[Page 32013]]
approach requiring case-by-case monitoring reviews under Sec. Sec.
70.6(c)(1) and 71.6(c)(1). We believe that improving the monitoring
required of title V sources by developing new standards, by revising
existing Federal standards that contain inadequate monitoring, and by
encouraging States to revise SIP rules that contain inadequate
monitoring, will balance the responsibilities of EPA with those of the
States and other permitting authorities more clearly and will result in
more equitable and more efficient monitoring decisions.
Our four-step approach, which includes this action, as well as
developing PMfine implementation guidance, responding with
appropriate regulatory and other actions resulting from comments on the
advance notice of proposed rulemaking that identify existing
requirements with potentially inadequate monitoring, and continuing
effort to enhance monitoring through separate rulemakings including
future revisions to the CAM rule, will ensure that the Act's monitoring
requirements will be met. First, our renewed emphasis on establishing
monitoring requirements through rulemaking gives full effect to section
504(b) of the Act, which provides that ``[t]he Administrator may by
rule prescribe procedures and methods for determining compliance and
for monitoring and analysis of pollutants * * *'' 42 U.S.C. 7661c(b)
(emphasis added). Second, this approach also is intended to ensure that
section 504(c)'s command that each title V permit ``set forth * * *
monitoring * * * to assure compliance with the permit terms and
conditions'' will be satisfied through the combination of EPA (and as
necessary State) rulemakings to address monitoring, and the addition to
permits of such monitoring as may be required under Sec. Sec.
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). See 42 U.S.C. 7661c(c). Finally,
satisfying the specific monitoring requirements of section 504(c) will
assure that the more general requirements of section 504(a) are
satisfied as to monitoring.
The statutory monitoring provisions--particularly, section 504(c),
which specifically requires that monitoring contained in permits to
assure compliance ``shall conform to any applicable regulation under
[section 504(b)]''--clearly contemplate that monitoring in permits must
reflect current regulations. We anticipate that some monitoring that
appears in permits as required under existing applicable requirements
could be improved; however, we believe that addressing such
deficiencies through rulemaking will be the most expeditious approach
to resolving such deficiencies.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether a regulatory action is ``significant'' and therefore
subject to Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines a ``significant
regulatory action'' as one that is likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more,
adversely affecting in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under Executive Order 12866, we determined that this interpretative
rule is a ``significant regulatory action'' because it raises important
legal and policy issues. As such, we submitted this rule to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
and does not adopt the revision to the text of Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) that we proposed in the September 17, 2002 notice. This
action merely states that notwithstanding the recitation in Sec. Sec.
70.6(c)(1) and 71.6(c)(1) of monitoring as a permit element, these
provisions do not establish a separate regulatory standard or basis for
requiring or authorizing review and enhancement of existing monitoring
independent of any review and enhancement as may be required under
Sec. Sec. 70.6(a)(3) and 71.6(a)(3). The information collection
requirements in the existing regulations (parts 70 and 71) were
previously approved by OMB under the requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is
assigned EPA ICR number 1587.05 and OMB control number 2060-0243; for
part 71, the EPA ICR number is 1713.04 and the OMB control number is
2060-0336. A copy of the OMB approved Information Collection Request
(ICR) may be obtained from Susan Auby, Collection Strategies Division;
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave.,
NW., Washington, DC 20004 or by calling (202) 566-1672.
Under the Paperwork Reduction Act, burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an Agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration by category of business using the
North American Industrial Classification System (NAICS) and codified at
13 CFR 121.201; (2) a small governmental jurisdiction that is a
government of a city, country, town, school district, or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently
[[Page 32014]]
owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The
originally promulgated part 70 and part 71 rules included the text of
Sec. Sec. 70.6(c)(1) and 71.6(c)(1), and this proposed interpretation
does not revise that text. Moreover, any burdens associated with the
interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1) proposed in this
action are less than those associated with any interpretation under the
proposed rule and that we may have previously enunciated. We continue
to be interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to these impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
must prepare a written statement, including a cost-benefit analysis,
for proposed and final rules with ``Federal mandates'' that may result
in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before promulgating a rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least-costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply where they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, EPA must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of our regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
This action contains no new Federal mandates (under the regulatory
provisions of title II of the UMRA) for State, local, or tribal
governments or the private sector. This action imposes no new
enforceable duty on any State, local or tribal governments or the
private sector. Rather, EPA merely states that Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) do not establish a separate regulatory standard or basis
for requiring or authorizing review and enhancement of existing
monitoring, independent of any review and enhancement as may be
required under the periodic monitoring rules, Sec. Sec. 70.6(a)(3) and
71.6(a)(3). Therefore, this action is not subject to the requirements
of sections 202 and 205 of the UMRA.
In addition, EPA has determined that this action contains no new
regulatory requirements that might significantly or uniquely affect
small governments. With this action, EPA sets out the correct
interpretation of Sec. Sec. 70.6(c)(1) and 71.6(c)(1), which is that
they do not require or authorize title V permitting authorities--
including any small governments that may be such permitting
authorities--to conduct reviews and provide enhancement of existing
monitoring through case-by-case monitoring reviews of individual
permits under Sec. Sec. 70.6(c)(1) and 71.6(c)(1). Therefore, this
action is not subject to the requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This action does not have any new federalism implications. The
action will not have new substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132. This
interpretation will not impose any new requirements. Accordingly, it
will not alter the overall relationship or distribution of powers
between governments for the part 70 and part 71 operating permits
programs. Thus, Executive Order 13132 does not apply to this action.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
This action does not have new tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This action does not significantly or uniquely affect the communities
of Indian tribal governments. As discussed above, this action imposes
no new requirements that would impose compliance burdens beyond those
that would already apply. Accordingly, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
[[Page 32015]]
This action is not subject to Executive Order 13045 because it is
not ``economically significant'' as defined under Executive Order 12866
and because it is not expected to have a disproportionate effect on
children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action,'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
action merely withdraws the revisions to the text of Sec. Sec.
70.6(c)(1) and 71.6(c)(1) proposed on September 17, 2002 and proposes
for comment that these provisions do not establish a separate
regulatory standard or basis for requiring or authorizing review and
enhancement of existing monitoring independent of any review and
enhancement of monitoring as may be required under Sec. Sec.
70.6(a)(3) and 71.6(a)(3). Further, we have concluded that this action
is not likely to have any adverse energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, Sec. 12(d) (15 U.S.C.
Sec. 272 note), directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The NTTAA does not apply to this action because it does not involve
technical standards. Therefore, EPA did not consider the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'' (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs, and activities. Our goal is to ensure that all
citizens live in clean and sustainable communities. This action merely
proposes an interpretation of an existing rule and includes no changes
that are expected to significantly or disproportionately impact
environmental justice communities.
Dated: May 25, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6-8613 Filed 6-1-06; 8:45 am]
BILLING CODE 6560-50-P