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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 relevance 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.

Original Promulgation of Part 70 Rule, 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 

following:

(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, currently 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 Revisions to Part 70 and 71 Rules in the Context of the Final CAM Rule

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 Credible Evidence and CAM rules; 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 this 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 

 

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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.
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continuous or intermittent data.

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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 any other material 

information that must be included in the certification to comply with 

section 113(c)(2) of the Act, which prohibits knowingly making a false 

certification or omitting material information;

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(C) The status of compliance with the terms and conditions of the permit 

for the period covered by the certification, 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 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

March 1, 2001, Proposal and Direct Final Rule

On March 1, 2001, the EPA published a direct final rule (66 FR 12872) 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.” Accordingly, 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 revised.

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),

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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. 

Specifically, the revised text, including the introductory language for both 

sections reads: “Permits shall include each of the following * * *: A requirement 

 

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The requirement 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.

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The language in this sentence is the language that was inadvertently deleted later on. As 

explained in 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 knowingly 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.

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These paragraphs are misidentified in the text (here and in the parallel proposed rule). The 

revised paragraphs were (C). See regulatory revisions below.
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that the compliance certification include all of the following * * *: The status of 

compliance with the terms and conditions of the permit for the period covered by 

the certification, including whether compliance during the period was continuous 

or intermittent.

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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 promulgated 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 directly and adequately 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 Permit content.

* * * * *

(c) * * *

(5) * * *

(iii) * * *

(C) The status of compliance with the terms and conditions of the permit 

for the period covered by 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 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

* * * * *

June 27, 2003, Final Rule

In its June 27, 2003, final rule (68 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 by the source to determine 

compliance “provide continuous or intermittent data.” The preamble stated:

 

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This is the added language, which was the only change.

6 No text in the FR was actually italicized.
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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 adequately 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 last 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. [The paragraph (B) text that was deleted can be seen above in the 

version of 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 by the owner 

or operator for determining the compliance status with each term and condition 

during the certification period.7Such 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 by the certification, including whether compliance during 

the period was continuous or intermittent.

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The certification shall be based on the 

method or means designated in paragraph (c)(5)(iii)(B) of this section. The 

 

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The last clause of this sentence was removed as intended in the final rule.

8 All text after this in (B) was inadvertently deleted.

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This language was finalized as proposed.
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certification shall identify each deviation and take it into account 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. The purpose of this current action is to correct the deletion by restoring the deleted 

language to the title V rules.