1 **HISTORY OF RELEVANT COMPLIANCE CERTIFICATION** 

**REGULATORY LANGUAGE**

Note that in the following, highlighted text ( in blue ) is included to indicate the relevant text and there is often a footnote to explain the relevan ce or additional background information is included

. Also note that parallel changes were also made to part 71 for all of these rulemaking actions but only

part 70 changes are shown below for the sake of clarity

. **O riginal P**  **romulgation of Part 70 R** **ule, 1992**  The 1992 part 70 rule , in part, required the owner or operator to include the following in compliance certifications [see 40 CFR 70.6(c)(5)(iii ) ] :

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

**October 1997 R**  **evisions to**  **Pa rt 70**  **and 71 Rule**  **s in the Context of the**  **Fi nal**  **CAM R ule**  As part of the rulemaking to promulgate the final CAM rule (62 FR 54900, October 22, 1997), changes were also made to the compliance certification requirements of parts 70 and 71 . These changes to parts 70 and 71 were intended to make the compliance certification requirements consistent with the C redible E vidence and CAM rule s ; section 113 (c)(2) of the Act , concerning criminal penalties for violations ; and the section 114(a)(3) compliance certification requirements. 1 Only §§ 70.6(c)(5) (iii) (B) and (C) are relevant to th is discussion :

(B) The identification of the method(s) or other means used by the owner or operator for determining the compliance status with each term and condition during the certification period, and whether such methods or other means provide

1 The Credible Evidence rule was proposed on October 22, 1993 (58 FR 54648) at the same time as the Enhanced Monitoring rule (which was later suspended in lieu of the CAM rule). The Credible Evidence rule was promulgated on February 24, 1996 (62 FR 8314) and is based on the requirement of sections 113(a) (1) and 113(e) of the Act, which concern federal enforcement.2

continuous or intermittent data

. 2 Such methods and other means shall include, at a minimum, the methods and means required under paragraph (a)(3) of this section. If necessary , the owner or operator also shall identify an y other material information that must be included in the certi fication to comply with section 113(c)(2) of the Act, which prohibits knowingl y making a false certification or omitting material information ; 3 (C) The status of compliance with the terms and conditions of the permit for the period covered b y the certif ication, based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible except ions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and **March 1, 2001 ,**  **Proposal and Direct Final Rule**  On March 1, 2001, the EPA published a direct final rule ( 66 FR 1287 2 ) and a parallel proposal (66 FR 12916) to respond to a court remand ( Natural Resources Defense Council v. EPA, 194 F.3d 130 (D.C. Cir.1999) ) on certain changes made in the context of the CAM rule to the compliance certification requirements of the part 70 and 71 rules . The court pointed out that section 114(a)(3)(D) of the Act requires the compliance certification to identify “whether compliance is continuous or intermittent .” Accordingl y, this language was proposed to be added to paragraph (c)(5)(iii) **(C)** of both §§70.6 and 71.6. Due to significant comment received on the parallel proposal, the direct final rule was withdrawn. Note that in the preamble , the EPA misidentified the paragraphs to be re vised

. PREAMBLE: In response to the court’s remand, we have added text to sections, §§ 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) , 4 to require that the responsible official for the affected facility

include in the annual (or more frequent) compliance
certification whether compliance during the period was continuous or intermittent. Specificall y, the revised text, including the introductory language for both sections reads: “ Permits shall include each of the following * * *: A requirement

2 The require ment for compliance certifications to include whether compliance was continuous or intermittent was replaced with a requirement to include whether the data used to determine compliance was continuous or intermittent. 3 Th e language in this sentence is the language that was inadvertently deleted later on. As explained i n the preamble to the October 1997 part 70 and 71 revisions, this text “ merely emphasizes the general prohibition in section 113(c)(2) of the Act on knowingl y making a false certification or omitting material information and the general criminal section on submitting false information to the government codified at 18 USC 1001. ” 62 FR 54937. 4 These paragraphs are misidentified in the text (here and in the parallel proposed rule). The revised paragraphs were **(C)** . See regulatory revisions below.3

that the complian ce certification include all of the following * * *: The status of compliance with the terms and conditions of the permit for the period covered b y the certification , including whether compliance during the period was continuous or intermittent

. 5 The certification shall be based on the method or means designated in paragraph ( c)(5)(iii)(B) of this section.” The italicized text6 indicates the revisions made in response to the Court decision. Other text within both of these sections remains as promu lgated in 1997. Under this revised language, the responsible official must include in the compliance certification a statement as to whether compliance during the period was continuous or intermittent. We believe these revisions respond directl y and adequatel y to the Court’s decision to remand the compliance certification requirements to us and are consistent with the requirements of the Act.
REGULATORY CHANGES : 2. Sections 70.6 is amended by revising paragraph (c)(5)(iii)(C) to read as follows: **§ 70.6 P**  **ermit content**
**.** * * * * * (c) * * * (5) * * * (iii) * * * (C) The status of compliance with the terms and conditions of the permit for the period covered b y the certification, including whether compliance during the period was continuous or intermittent

. The certification shall be based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identif y as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and * * * * * **June 27, 2003 ,**  **Final Rule**
In its June 27, 2003, final rule (6 8 FR 38518), the EPA finalized paragraph (C) as proposed above . However, in response to comments, we revised paragraph (B) to remove from the first sentence the reference to whether the methods or other means used b y the source to determine compliance “pro vide continuous or intermittent data.” The preamble stated:

5 This is the added language, which was the only change. 6 No text in the FR was actually italicized.4 In response to the comments, we have deleted the second clause after the comma in the first sentence from §§ 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the requirement that the responsible official for the affected facility identify in the annual (or more frequent) compliance certification whether the methods provide continuous or intermittent data. ... Other text within §§ 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B), 70.6(c)(5)(iii)(C) , and 71.6(c)(5)(iii)(C) remains as proposed in March 2001. The language in this final rule requires responsible officials to identify in the compliance certification whether compliance during the covered period was continuous or intermittent, but responsible officials do not need to state whether the methods used for determining compliance provide continuous or intermittent data. We believe these revisions respond directly and adequatel y to the Court’s decision to remand the compliance certification requirements to us and are consistent with the requirements of the Act.
68 FR 38521 However, the amendatory language set forth in the FR notice resulted in the inadvertent deletion of the las t sentence of paragraph (B), concerning the use of “other material information” in compliance certifications, despite the fact that the preamble did not state that any changes were being made to that sentence

. [ T he paragraph ( B ) text that was deleted can be seen above in the version o f the rules that accompanied the CAM rule] . That is the error that we seek to correct with the current action.
*** *** *** * *** 2

. Section 70.6 is amended by revising paragraphs (c)(5)(iii)(B) and (c)(5)(iii)(C) to read as follows:
**Sec. 70.6**  **Permit content**
**.** * * * * * (c) * * * (5) * * * (iii) * * * (B) The identification of the method(s) or other means used b y the owner or operator for determining the compliance status with each term and condition during the certification period. 7 Such methods and other means shall include, at a minimum, the methods and means required under paragraph (a)(3) of this section; 8 (C) The status of compliance with the terms and conditions of the permit for the period covered b y the certification , including whether compliance during the period was continuous or intermittent

. 9 The certification shall be based on the method or means designated in paragraph (c)(5)(iii)(B) of this section. The

7 The last clause of this sentence was removed as intended in the final rule.
8 All text after this in (B) was inadvertently deleted. 9 This language was finalized as proposed

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certification shall identify each deviation and take it into accou nt in the compliance certification. The certification shall also identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred; and * * * * *
68 FR 38523
**The Current Action**
Thus , the sentence referring to the use of “other material information” in compliance certifications was inadvertently deleted from paragraph (c)(5)(iii)(B) in the June 27, 2003 Final Rule . T he purpose of th is current action is to correct the deletion by restoring th e deleted language to the title V rules

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