Proposed Rule Interpreting the Scope of Certain Monitoring Requirements for State and Federal Operating Permits Programs, 32006-32015 [E6-8613]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Proposed Rules]
[Pages 32006-32015]
From the Federal Register Online via the Government Printing 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: https://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 https://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 https://
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 https://
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 https://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 https://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 https://
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 https://
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 https://
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: 
https://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: 
https://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