Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Rules and Regulations 43661 

§ 81.336 Ohio. 

* * * * * 

OHIO—2008 LEAD NAAQS 

Designated area 

Designation for the 2008 

NAAQSa

Date 1 Type 

*******

Bellefontaine, OH: 

Logan County (part) ............................................................................................................................................ 7/28/2014 Attainment. 

The portions of Logan County that are bounded by: Sections 27, 28, 33, and 34 of Lake Township 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1 December 31, 2011, unless otherwise noted. 

* * * * * 

[FR Doc. 2014–17612 Filed 7–25–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 70 and 71 

[EPA–HQ–OAR–2013–0162; FRL–9913–88– 

OAR] 

RIN 2060–AQ71 

Amendments to Compliance 

Certification Content Requirements for 

State and Federal Operating Permits 

Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is amending the 

compliance certification requirements 

for state and federal operating permits 

programs that were published in the 

Federal Register on June 27, 2003. In 

that action, one sentence was removed 

from the rules inadvertently. This action 

restores the sentence to its original 

location in the rules. 

DATES: This final rule is effective on 

August 27, 2014. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2013–0162. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

i.e., confidential business information or 

other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the Docket ID No. EPA–HQ–OAR–2013– 

0162. EPA/DC, William Jefferson 

Clinton West Building, Room 3334, 

1301 Constitution Avenue, Northwest, 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744 and the telephone number for 

the Air and Radiation Docket 

Information Center is (202) 566–1742. 

For additional information about the 

EPA’s public docket, visit the EPA 

Docket Center homepage at: http://

www.epa.gov/epahome/dockets.htm. 

FOR FURTHER INFORMATION CONTACT: For 

further general information on this 

rulemaking, contact Ms. Joanna 

Swanson, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–05), Environmental 

Protection Agency, Research Triangle 

Park, North Carolina 27711; telephone 

number (919) 541–5282; fax number 

(919) 541–5509; email address: 

swanson.joanna@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in the Supplementary 

Information section of this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

II. Background for the Final Rulemaking 

III. Amendments to Compliance Certification 

Content Requirements for State and 

Federal Operating Permits Programs 

A. Rationale for the Final Action 

B. Scope of Rulemaking 

C. Comments and Responses 

1. The Necessity of the Amended Language 

2. The Use of Material Information 

3. Scope of Compliance Certifications 

4. Rule Language Clarification Requested 

D. Final Action 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

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 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

final rulemaking include owners and 

operators of emission sources in all 

industry groups who hold or apply for 

a title V operating permit. Other entities 

potentially affected by this final 

rulemaking include federal, state, local 

and tribal air pollution control agencies 

who administer title V permit programs. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket found on http://

www.regulations.gov, an electronic copy 

of this document will also be available 

on the World Wide Web. Following 

signature by the EPA Administrator, a 

copy of this final rule will be posted on 

the EPA’s title V Web page at http://

www.epa.gov/nsr. 


pmangrum on DSK3VPTVN1PROD with RULES
43662 Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Rules and Regulations 

1 In 2001, the EPA published a direct final rule 

(66 FR 12872) and a parallel proposal (66 FR 12916) 

requiring title V compliance certifications to 

identify whether compliance during the period was 

continuous or intermittent as specified in CAA 

section 114(a)(3) per the 1990 CAA Amendments. 

We subsequently received adverse comments on the 

direct final rule and withdrew it (66 FR 55883). 

2As discussed in the preamble to the proposed 

rule (78 FR 19166), while the 2001 preamble 

discussion of the proposed revisions at 66 FR 12918 

mistakenly referred to changes to paragraph 

(c)(5)(iii)(B) of 40 CFR 70.6 and 71.6, the proposed 

amendments in that action addressed only 40 CFR 

70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C). The proposed 

revisions to the regulatory language correctly 

addressed 40 CFR 70.6(c)(5)(iii)(C) and 

71.6(c)(5)(iii)(C). 

3Responses to public comments prepared for the 

June 27, 2003, Final Rule, section 2.3, page 11, EPA 

Docket No. EPA–HQ–OAR–2002–0062–0008, June 

2003. 

4Annual Compliance Certification (A–COMP), 

EPA Form 5900–04, at page 4 (emphasis added), 

available at http://www.epa.gov/airquality/permits/ 

pdfs/a-comp.pdf. 

5 Initial Compliance Plan and Compliance 

Certification (I–COMP), EPA Form 5900–86, at page 

4, available at http://www.epa.gov/airquality/

permits/pdfs/i-comp.pdf. 

6http://www.epa.gov/airquality/permits/

p71forms.html, accessed on June 16, 2014. 

7See generally Annual Compliance Certification 

(A–COMP), EPA Form 5900–04, available at 

http://www.epa.gov/airquality/permits/pdfs/acomp.pdf. 

8See generally http://www.epa.gov/airquality/

permits/p71forms.html, accessed on June 16, 2014. 

II. Background for the Final 

Rulemaking 

On March 29, 2013, the EPA proposed 

to restore a sentence that was 

inadvertently removed from the 

operating permits program rules (found 

in 40 CFR parts 70 and 71) due to an 

editing error. This error occurred in a 

June 27, 2003, final rule (68 FR 38517) 

amending the compliance certification 

requirements in 40 CFR 70.6(c)(5)(iii)(B) 

and 71.6(c)(5)(iii)(B). The final 2003 rule 

inadvertently removed the following 

sentence from the end of paragraph 

(c)(5)(iii)(B) of both sections: ‘‘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.’’ The 

EPA proposed to restore this sentence to 

its former position in both paragraphs. 

This sentence was originally added to 

the operating permits rules in the 

context of the 1997 Compliance 

Assurance Monitoring (CAM) 

rulemaking (62 FR 54900), which 

clarified the use of CAM monitoring 

data in compliance certifications. 

Specifically, this sentence was intended 

to clarify that ‘‘other material 

information (i.e., information beyond 

required monitoring that has been 

specifically assessed in relation to how 

the information potentially affects 

compliance status)’’ (62 FR 54937) 

known by the owner or operator must be 

identified and addressed in compliance 

certifications consistent with section 

113(c)(2) of the Clean Air Act (CAA or 

Act) and the 1997 Credible Evidence 

Revisions rule (62 FR 8314). The 2003 

rulemaking that erroneously removed 

the subject sentence was intended to 

address a court remand concerning 

other aspects of the annual compliance 

certification requirements of title V. 

For the reasons discussed in this 

document, we are finalizing the 

regulatory language that we proposed 

without change. 

III. Amendments to Compliance 

Certification Content Requirements for 

State and Federal Operating Permits 

Programs 

A. Rationale for the Final Action 

As discussed in the preamble to the 

proposed rule (78 FR 19166), the 

substance of the regulatory preambles 

and rule text from the 2001 1 and 2003 

rulemakings make it clear that the EPA 

did not intend to remove the missing 

sentence from 40 CFR 70.6(c)(5)(iii)(B) 

or 71.6(c)(5)(iii)(B). The EPA did not 

discuss or propose any revisions to 

these paragraphs in the 2001 direct final 

rulemaking or parallel proposal.2

Similarly, while the EPA revised the 

text of 40 CFR 70.6(c)(5)(iii)(B) and 

71.6(c)(5)(iii)(B) as part of the 2003 final 

amendments, it did not discuss any 

intent to remove this sentence. To the 

contrary, the EPA stated clearly that 

‘‘[o]ther text within [sections] 

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’’ (68 

FR 38521). The EPA did not propose to 

remove the deleted sentence from 

paragraph (c)(5)(iii)(B) of 40 CFR 70.6 

and 71.6 or to make any other changes 

to those paragraphs in that March 2001 

rulemaking. Moreover, the EPA’s 

response to comments on the 2001 

proposed amendments reiterated the 

sentence’s requirement that 

‘‘responsible officials must identify in 

[their title V compliance certifications] 

other material information where failure 

to do so would constitute a false 

certification of compliance.’’ 3

Despite the inadvertent removal of the 

sentence in question on June 27, 2003, 

the EPA’s actions since that time have 

remained consistent with the direction 

provided in the inadvertently removed 

‘‘other material information’’ sentence, 

and with the Credible Evidence 

Revisions rule in general. For example, 

the Part 71 federal operating permits 

program administered by the EPA 

includes a form for sources to use for 

their annual compliance certifications, 

and the instructions for completing the 

form state the following: 

Compliance Status: For each permit 

requirement and its associated compliance 

methods, indicate whether there was 

intermittent or continuous compliance 

(check one) during the reporting period. You 

should consider all available information or 

knowledge that you have when evaluating 

this, including compliance methods required 

by the permit and ‘‘credible evidence’’ (e.g., 

non-reference test methods and information 

‘‘readily available’’ to you). You are always 

free to include written explanations and 

other information to clarify your conclusion 

regarding compliance status.4

Similarly, the instructions for the 

initial compliance certification form 

that the EPA issued shortly after the 

‘‘other material information’’ sentence 

was added to parts 70 and 71 as part of 

the promulgation of the CAM rule in 

1997 also discussed the consideration of 

‘‘all available information or 

knowledge’’ in compliance status 

certification.5 After the ‘‘other material 

information’’ language was 

inadvertently deleted from the part 71 

rule in 2003, the EPA revised the annual 

compliance certification form and 

associated instructions in 2004 ‘‘to 

reflect policy decisions concerning 

monitoring and the data used for 

compliance certifications.’’ 6

Specifically, the form added the 

requirement for sources to certify 

whether compliance was continuous or 

intermittent, but the EPA did not revise 

the instruction for sources to consider 

‘‘all available information and 

knowledge’’ and ‘‘credible evidence’’ 

when determining compliance status.7

The retention of the instruction to 

consider all available information, 

including credible evidence, in the 

Annual Compliance Certification form 

clearly indicates that the EPA continues 

to believe that the title V rules should 

be implemented consistent with the 

‘‘other material information’’ sentence 

that had been removed inadvertently. 

The EPA also has made revisions to the 

part 71 forms a number of times since 

2003, providing ample opportunity to 

change this language if its policy had 

changed; however, the EPA has made no 

such changes.8

Title V permits issued by EPA 

Regional Offices since 2003 also provide 

evidence of the EPA’s ongoing practice 

of requiring sources to use ‘‘other 

material information’’ in compliance 

certifications. A review of a sample of 

recent part 71 permits reveals that they 

include language similar to the language 


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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Rules and Regulations 43663 

9See Region 2 part 71 permit issued to Turning 

Stone Casino Resort in Verona, New York at section 

V.D.(1)(iv), available at http://www.epa.gov/

region02/air/permit/trsc07052011.pdf; Region 8 

part 71 permit issued to Samson Resources 

Company at § III.C.3.(c)(ii), available at http://

www2.epa.gov/sites/production/files/documents/

Samson-HowardSWD_Initial_V-SU-0051-10.00.pdf; 

Region 5 part 71 permit issued for operations at the 

Treasure Island Resort & Casino in Red Wing, 

Minnesota at 4.0(D)1.(ii), available at http://

yosemite.epa.gov/r5/r5ard.nsf/

f5dbe2e3ef9dc9c1862570430068f396/

10cd79ad1a4c177386257ad0004d7bc3/$FILE/V-PI2704900084-2012-10%20-%20Final.pdf. 

10http://www.epa.gov/reg3artd/permitting/t5_

compl_enf.htm. The Web site states that this page 

was last updated on February 11, 2011. 

11EPA Office of Inspector General, Substantial 

Changes Needed in Implementation and Oversight 

of Title V Permits If Program Goals Are To Be Fully 

Realized, Report No. 2005–P–00010, pp 31–32 and 

p 37, Recommendation 2–2, March 9, 2005. 

http://www.epa.gov/oig/reports/2005/20050309- 

2005-P-00010.pdf. 

12Section 70.4(i) provides that states with 

approved part 70 programs may need to revise their 

programs when the relevant federal statutes or 

regulations are modified or supplemented. Given 

that the relevant federal statute concerning 

representations or statements made in compliance 

certifications (CAA section 113(c)(2)) applies 

regardless of the specific language in 40 CFR 

70.6(c)(5)(iii)(B), the EPA proposed that states will 

not need to submit part 70 program revisions in 

response to this rulemaking, except where a state 

program interferes with the implementation of the 

sentence the EPA proposes to restore. The EPA also 

proposed that permit reopenings will not be needed 

under 40 CFR 70.7(f)(1) or 71.7(f)(1) in response to 

this rulemaking, except where a permit contains 

language that interferes with the implementation of 

the sentence the EPA proposes to restore. 

Notwithstanding the previous statements in this 

footnote, the EPA may require individual states to 

revise their programs or reopen permits where the 

EPA believes such actions would be necessary to 

ensure the appropriate implementation of the 

program or its permits. 

in the inadvertently removed sentence. 

These permits include a permit issued 

by Region 2 in 2011, a permit issued by 

Region 8 in 2010, and a permit issued 

by Region 5 in 2012, and each permit 

requires the annual compliance 

certification to include ‘‘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.’’ 9

Similarly, the EPA guidance to title V 

rule writers on an EPA Region 3 Web 

site concerning compliance and 

enforcement illustrates the EPA’s 

commitment to the use of credible 

evidence. That Web site includes the 

following guidance: 

Title V permit conditions cannot limit the 

types of data or information (i.e., credible 

evidence) that may be used to prove a 

violation of any applicable requirement. Title 

V permits should contain language clarifying 

that any credible evidence may be used in 

determining a source’s compliance status (or 

alternatively, that nothing in the permit 

precludes the use of credible evidence in 

determining compliance or noncompliance 

with the terms of the permit). Such language 

gives fair notice to the source and the public, 

and prevents the source from claiming that 

they weren’t on notice that other credible 

evidence could be used to demonstrate a 

violation or compliance. Such language can 

most easily be added to Title V permits by 

modifying the ‘boilerplate’ provisions (i.e., 

general permit conditions) as in the following 

example. . . .10

As illustrated by these examples, 

following the mistaken removal of the 

‘‘other material information’’ sentence 

on June 27, 2003, the EPA has clearly 

articulated a position consistent with 

the Credible Evidence Revisions rule 

under all circumstances, including the 

annual compliance certification. In light 

of the EPA’s continued, consistent 

commitment to the use of credible 

evidence in compliance certifications 

and other title V contexts, the EPA has 

not previously devoted its limited 

resources to correcting the inadvertent 

deletion in the regulatory text through a 

formal rulemaking. Nonetheless, the 

EPA’s Office of Inspector General (OIG) 

has indicated that the title V rules 

should be amended to restore the ‘‘other 

material information’’ language to the 

regulatory requirements in order to 

improve the content of annual 

compliance certifications.11 In 

concurrence with the OIG 

recommendation, the EPA is now taking 

this action to restore the language 

currently missing in the part 70 and 71 

rules. 

The restored language reflects the 

general prohibition on knowingly 

making a false certification or omitting 

material information that exists in the 

CAA, independent of any EPA policy or 

previous rulemaking actions. As 

modified in the 1990 CAA 

Amendments, section 113(c)(2) of the 

Act states that any person who 

knowingly ‘‘makes any false material 

statement, representation, or 

certification in, or omits material 

information from, . . . any notice, 

application, record, report, plan, or 

other document required pursuant to 

this Act’’ (emphasis added) is subject to 

fine or imprisonment, upon conviction. 

The EPA believes that it is important to 

ensure that sources are on notice and 

understand the requirement to consider 

as part of their compliance status any 

material information determined by 

methods other than those identified in 

the permit. Moreover, for the sake of 

clarity, the EPA believes that this duty 

should be explicit in the part 70 and 71 

compliance certification requirements. 

B. Scope of Rulemaking 

The purpose of this final rulemaking 

is to restore language that was 

inadvertently deleted from the title V 

regulations, 40 CFR parts 70 and 71.12

Given the passage of time, the EPA 

decided to make this change through a 

notice and comment rulemaking, rather 

than a correction notice. In the notice of 

proposed rulemaking for this action, the 

EPA requested comments only on 

whether, on the sole basis that the 

removal of the language in question was 

inadvertent, the language in question 

should or should not be restored. The 

EPA did not request comments on any 

other aspects of these provisions or on 

any other provisions of the part 70 and 

71 rules. In the proposal, the EPA stated 

that if comments were submitted 

outside of this scope, the agency would 

not take them into consideration when 

finalizing the rule. 

C. Comments and Responses 

As stated in the previous section, the 

proposed rule provided an opportunity 

for comment on whether, on the sole 

basis that the removal of the language in 

question was inadvertent, the language 

in question should or should not be 

restored. The EPA provided a 60-day 

review and comment period on the 

proposed rulemaking, which closed on 

May 28, 2013. A total of seven comment 

letters (three industry comment letters, 

two citizen comment letters, one 

government agency comment letter, and 

one environmental group comment 

letter) were received on the proposed 

amendment to restore a sentence to the 

title V compliance certification 

requirements that had been 

inadvertently removed from the rules in 

June 27, 2003. Three of the commenters 

opposed the amendment, three were 

neutral about it, and one supported it. 

One commenter did not believe the 

removal was inadvertent, but provided 

no specific reasoning or evidence to 

support this general allegation; thus, we 

have no additional response to this 

comment beyond the explanation 

already provided here and in the 

proposal to support that the removal 

was inadvertent. Another commenter 

explained that they ‘‘assumed’’ that EPA 

had determined the ‘‘other material 

information’’ language was no longer 

necessary or appropriate and that the 

removal of the language was part of an 

overall effort to simplify rule language. 

However, as explained repeatedly in 

this preamble, as well as in the 

preamble to the proposal for this action, 

we provided no such explanation at the 

time the sentence was removed, nor did 

we even note that we were removing the 

sentence. In addition, the EPA’s actions 


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13See footnote 9, supra. 

14 ‘‘Compliance Assurance Monitoring 

Rulemaking (40 CFR parts 64, 70, and 71) 

Responses to Public Comments (Part I), (Comments 

Submitted in Response to Enhanced Monitoring 

Proposal),’’ dated October 2, 1997, available at 

http://www.epa.gov/ttnatw01/cam/rtcpart1.pdf 

(hereinafter, CAM Responses to Public Comments) 

Section 7.2.3 ‘‘Use of Other Monitoring Data for 

Compliance Certifications,’’ page 192. 

since the removal demonstrate the 

EPA’s consistent implementation of the 

language restored in the rule. All these 

points support the EPA’s position that 

the removal was inadvertent. 

The EPA responded to comments on 

the substance of the inadvertently 

removed text when the text was first 

promulgated, see ‘‘Compliance 

Assurance Monitoring Rulemaking (40 

CFR Parts 64, 70, and 71) Responses to 

Public Comments (Part III),’’ October 2, 

1997, available at http://www.epa.gov/

ttnatw01/cam/rtcpart3.pdf, page 285. 

The following discussion confirms our 

position on issues related to the 

substance of the ‘‘other material 

information’’ text as explained in prior 

response to comments, preambles to 

Federal Register documents, and 

various EPA forms, permits, and 

guidance documents, and is consistent 

with the restoration of the text we are 

finalizing. 

1. The Necessity of the Amended 

Language 

Comment: One industry commenter 

states that it is not necessary or useful 

for the EPA to add this additional 

language to 40 CFR 70.6 and 71.6. In 

fact, the commenter believes that the 

inclusion of this language will be 

harmful in that it will create uncertainty 

and confusion. 

The government agency commenter 

stated that the addition of the proposed 

language would be redundant and 

would not provide any additional 

clarification to the requirements under 

this section. The commenter claims that 

it would instruct the owner/operator to 

include items that are already required 

to be included by this section as 

currently written. 

A citizen commenter was also 

concerned about the proposed language 

being redundant and stated that: (a) 

Most title V permits already have 

conditions that address this issue; (b) 

most state agencies have been using the 

language whether it was/was not 

inadvertently left out of the rule; and (c) 

the certifications required now by state 

agencies are sufficient without 

additional language. 

The environmental group commenter 

supported the EPA’s effort to remind 

permit owners of their obligations while 

cautioning that the disclosure duties 

discussed in the proposed rule exist 

independent of the EPA’s implementing 

regulations. 

Response: As stated earlier in this 

preamble, as well as in the preamble to 

the proposal for this action, the 

regulatory requirement to identify ‘‘any 

other material information . . .’’ was 

originally added to the annual 

compliance certification requirements of 

parts 70 and 71 and promulgated in the 

context of a Compliance Assurance 

Monitoring rulemaking on October 22, 

1997 (62 FR 54900). Restoring the 

language at issue to the regulatory text 

through this action only seeks to correct 

what was an inadvertent error in the 

2003 final rulemaking. As explained, 

the EPA has not reversed or weakened 

this position in subsequent actions. The 

restored language reflects the general 

prohibition on knowingly making a false 

certification or omitting material 

information that exists in the CAA, 

independent of any EPA policy or 

previous rulemaking actions. As 

modified in the 1990 CAA 

Amendments, section 113(c)(2) of the 

Act states that any person who 

knowingly ‘‘makes any false material 

statement, representation, or 

certification in, or omits material 

information from, . . . any notice, 

application, record, report, plan, or 

other document required pursuant to 

this Act’’ (emphasis added) is subject to 

fine or imprisonment, upon conviction. 

The EPA believes that it is important to 

ensure sources are on notice and 

understand the requirement to consider 

as part of their compliance status any 

material information determined by 

methods other than those identified in 

the permit. Moreover, for the sake of 

ensuring clarity, the EPA believes that 

this duty should be included explicitly 

in the part 70 and 71 compliance 

certification requirements. 

As also discussed earlier in this 

preamble and in the preamble to the 

proposed rule, the EPA’s OIG has 

indicated that the title V rules should be 

amended to restore the ‘‘other material 

information’’ language to the regulatory 

requirements in order to improve the 

content of annual compliance 

certifications.13 Therefore, the decision 

to restore the regulatory text is 

responsive to the OIG’s 

recommendation. 

2. The Use of Material Information 

Comment: The environmental group 

requested that the agency clarify that 

‘‘material’’ information includes 

information known to the permit-holder 

and pertinent to compliance status, 

‘‘whether or not that information 

necessarily demonstrates a violation.’’ 

An industry commenter stated that 

including ‘‘other material information’’ 

in a certification does not constitute a 

concession that the information is 

‘‘credible evidence’’ of a violation. An 

industry commenter requested that the 

agency acknowledge that nothing in the 

revised language prohibits a responsible 

official from disputing the relevance or 

‘‘materiality’’ of any identified 

information or reserving all rights to 

challenge use of that information in an 

enforcement proceeding. Another 

industry commenter made a similar 

comment and stated that the EPA 

should acknowledge that companies 

may clarify the meaning of ‘‘other 

material information’’ included in a 

compliance certification document and 

may dispute its materiality in 

subsequent proceedings. 

Response: In terms of the first and last 

comment, the agency agrees that 

material information is not limited to 

information that conclusively 

demonstrates a violation. The sentence 

restored states that ‘‘[i]f 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.’’ As the EPA explained in 

the preamble to the final 1997 CAM 

rulemaking, any other material 

information known to the source owner/ 

operator and relevant to the source’s 

compliance status—‘‘i.e., information 

beyond required monitoring that has 

been specifically assessed in relation to 

how the information potentially affects 

compliance status’’—must be identified 

and addressed in the compliance 

certification submitted by the 

responsible official, and in providing 

this explanation, the EPA did not state 

that the information is limited to that 

which indicates non-compliance (62 FR 

54937). As explained in the Response to 

Comments document accompanying the 

1997 Compliance Assurance Monitoring 

Rule, the owner or operator of a source 

must consider any other material 

information in order to avoid submitting 

an incomplete, inaccurate, or false 

certification.14 Thus, this other material 

information could help in documenting 

whether compliance was continuous or 

intermittent for the relevant certification 

period, consistent with 

§§ 70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C). 

In response to industry commenters, 

the agency agrees that a responsible 

official may provide an explanation 

concerning the relevance of other 

material information when it is 


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15CAM Response to Public Comments, Section 

7.2.3 ‘‘Use of Other Monitoring Data for Compliance 

Certifications,’’ pages 192–193 and Section 7.11.2 

‘‘Deviations,’’ page 208. 

16 ‘‘Credible Evidence Rule Revisions: Response 

to Comments,’’ Office of Enforcement and 

Compliance Assurance, U.S. Environmental 

Protection Agency, dated February 1997, Section 

2.1.6 ‘‘Necessity for a Rulemaking to Establish 

Compliance Test Methods,’’ page 17. 

17 In the Part 70 proposal (56 FR 21712, May 10, 

1991), we stated that ‘‘the certification, as well as 

all other documents required under Part 70, must 

state that ‘to the best of the signer’s knowledge, 

information and belief formed after reasonable 

inquiry, the statements and information in the 

compliance certification are true, accurate and 

complete.’ This language is similar to that in Rule 

11 of the Federal Rules of Civil Procedure, upon 

which it was modeled. The provision makes clear 

that the signer must make a reasonable (under the 

circumstances) inquiry before attesting to the truth, 

accuracy, and completeness of the information and 

statements.’’ (56 FR 21734). 

18 ‘‘White Paper Number 2 for Improved 

Implementation of The Part 70 Operating Permits 

Program,’’ Memorandum from Lydia N. Wegman, 

Deputy Director, Office of Air Quality Planning and 

Standards, U.S. Environmental Protection Agency, 

to Air Division Directors, March 5, 1996, page 33. 

submitted as part of the compliance 

certification for the source. At the time 

of the submittal, the responsible official 

can explain the relevance of any such 

information, including, but not limited 

to, cases in which the responsible 

official believes the ‘‘other material 

information’’ may be seen as in conflict 

with his conclusion regarding whether 

compliance was continuous or 

intermittent.15 For example, we have 

explained that the requirements of the 

Credible Evidence Revisions rule 

‘‘continue[s] to rely on the established 

compliance method as the benchmark 

for measuring compliance with the 

standard. The use of other evidence to 

document a violation must take into 

account the averaging requirements 

related to the data collected by such 

method, the pollutant constituents 

measured by such method (e.g., the 

definition of particulate matter included 

in Method 5), and any limitations as to 

the conditions under which such tests 

may be conducted.’’ 16

The agency further agrees that merely 

including other material information in 

a compliance certification does not 

constitute a concession that the 

information is credible evidence of a 

violation. 

Comment: The government agency 

expressed concern that if the proposed 

sentence is readopted, the interpretation 

of what is additional information 

necessary for compliance—outside of 

what is required by the permit— 

becomes arbitrary and up to 

interpretation by the regulatory agency 

without recourse for the permitted 

entity. The commenter further states 

that any inadvertent omission of 

additional information (whether by 

oversight or not being aware of its 

relevance), even though not required by 

the permit, would subject the facility to 

enforcement action and imply the 

responsible official made a false 

certification, holding him/her both 

criminally and civilly liable. 

A citizen commenter also expressed 

concern about the possibility of criminal 

prosecution and monetary penalties as a 

result of knowingly making a false 

certification. 

Response: As explained in the 2013 

proposal and throughout this preamble, 

the title V operating permits program 

functioned with this language in place 

for some time before it was 

inadvertently removed and has operated 

similarly since its removal. Moreover, 

the underlying statutory language in 

section 113(c)(2) of the CAA has not 

changed. Thus, restoring this language 

in the regulatory text does not change 

what is required of permitted entities. 

Additionally, as previously explained 

in the 1997 Compliance Assurance 

Monitoring rulemaking, the requirement 

to consider other material information 

‘‘does not impose a duty on the owner 

or operator to assess every possible 

piece of information that may have 

some undetermined bearing on 

compliance’’ (62 FR 54937). Under the 

existing title V regulations, any 

application form, report, or compliance 

certification is required to contain a 

certification by a responsible official.17

This certification is required to state 

that based on information and belief 

formed after reasonable inquiry, the 

statements and information in the 

document are true, accurate, and 

complete. See 40 CFR 70.5(d) and 

71.5(d). It is important to emphasize 

that, consistent with this requirement, 

the agency has already explained that it 

does not expect a certification to be 

based on absolute knowledge, but rather 

reasonable inquiry. For example, the 

EPA has stated that the compliance 

certification ‘‘will be based on available 

information, including monitoring and/ 

or other compliance terms required in 

the permit.’’ 18

Nothing in the current regulations 

precludes the submission of material 

information discovered after a 

compliance certification is filed. 

Additionally, the responsible official is 

encouraged to include written 

explanations, graphs, and other 

information to clarify his/her 

conclusions regarding the source’s 

compliance status. 

In an explanation of the use of 

credible evidence in compliance 

certifications in the Credible Evidence 

Revisions rule, the agency emphasized 

that sources may not ignore obviously 

relevant information in developing their 

compliance certifications (62 FR 8320). 

However, in the same preamble, the 

agency also explained that it does not 

view compliance certification 

requirements as imposing a duty on a 

source to search out and review every 

possible document to determine its 

relevance to a source’s compliance (id). 

3. Scope of Compliance Certifications 

Comment: The environmental group 

requested that the agency confirm in the 

final rule that the compliance 

certification obligation applies to all 

applicable requirements under the 

CAA—not just the specific emissions 

limitations enumerated in a title V 

operating permit. 

Response: As discussed earlier in this 

preamble and in the preamble to the 

proposal, the purpose of this rulemaking 

is to restore a sentence to the 

compliance certification requirements 

that was inadvertently removed from 

the rule language on June 27, 2003. The 

EPA requested comment on whether, on 

the sole basis that the removal of the 

language in question was inadvertent, 

the language in question should or 

should not be restored. The comment 

raises an issue that is beyond the scope 

of this rulemaking, and, consistent with 

the approach already described, the EPA 

did not take this comment into 

consideration when finalizing the rule. 

However, we note that the text restored 

is a part of the existing regulation 

requiring annual (or more frequent) 

certification addressing compliance of 

the source ‘‘with terms and conditions 

contained in the permit, including 

emission limitations, standards, or work 

practices.’’ 40 CFR 70.6(c)(5), 71.6(c)(5). 

4. Rule Language Clarification 

Requested 

Comment: A citizen recommended 

that the proposed language be revised to 

be more specific as to the information 

that needs to be included. 

Response: As discussed earlier in this 

preamble and in the preamble to the 

proposal, the purpose of this rulemaking 

is to restore a sentence to the 

compliance certification requirements 

that was inadvertently removed from 

the rule language on June 27, 2003. The 

EPA requested comment on whether, on 

the sole basis that the removal of the 

language in question was inadvertent, 

the language in question should or 

should not be restored. The comment 

raises an issue that is beyond the scope 

of this rulemaking, and, consistent with 

approach already described, the EPA 


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43666 Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Rules and Regulations 

19Annual Compliance Certification (A–COMP), 

EPA Form 5900–04, at pages 4–6, available at 

http://www.epa.gov/airquality/permits/pdfs/acomp.pdf. 

20Memorandum from Stephen D. Page, OAQPS 

Director, to Regional Air Division Directors, Regions 

1–10, Implementation Guidance on Annual 

Compliance Certification Reporting and Statement 

of Basis Requirements for Title V Operating Permits 

(April 30, 2014), available at http://www.epa.gov/

Region7/air/title5/t5memos/20140430.pdf. 

did not take this comment into 

consideration when finalizing the rule. 

However, we note that the EPA provides 

guidance on the information to be 

included in compliance certification in 

several places, including in the 

instructions to the Annual Compliance 

Certification form 19 and as further 

summarized in the recently issued 

memo regarding annual compliance 

certification reporting.20

D. Final Action 

On March 29, 2013, the EPA proposed 

to restore the ‘‘other material 

information’’ sentence that was 

inadvertently removed from the 

operating permits program rules (found 

in 40 CFR parts 70 and 71) due to an 

editing error. This error occurred in a 

June 27, 2003, final rule (68 FR 38517) 

amending the compliance certification 

requirements in 40 CFR 70.6(c)(5)(iii)(B) 

and 71.6(c)(5)(iii)(B). The final 2003 rule 

removed the following sentence from 

the end of paragraph (c)(5)(iii)(B) of both 

sections: ‘‘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.’’ This final rule restores 

this sentence to its former position in 

both paragraphs. 

IV. Statutory and Executive Order 

Reviews 

This final rule implements a technical 

correction to the Code of Federal 

Regulations by adding a sentence that 

was inadvertently removed in a prior 

rulemaking. It will not otherwise 

impose or amend any requirements. The 

analysis below is consistent with the 

limited nature of this rulemaking. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The EPA 

is simply correcting the CFR to reinstate 

a sentence that was inadvertently 

removed. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR parts 70 

and 71 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., and has assigned OMB 

control numbers 2060–0243 and 2060– 

0336, respectively. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures 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 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this final action on small entities, 

small entity is defined as: (1) A small 

business as defined in the U.S. Small 

Business Administration size standards 

at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. As 

explained above, this final rule merely 

restores a sentence that was removed 

from the rules inadvertently, and that 

reflects a requirement of the CAA; thus, 

the final rule does not impose any new 

requirements on any entities, either 

large or small. 

D. Unfunded Mandates Reform Act 

This final rule contains no federal 

mandates under the provisions of title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 

state, local or tribal governments or the 

private sector. This action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector; 

it simply restores a sentence removed 

from the rules because of erroneous 

amendatory language contained in the 

June 27, 2003, amendments. Therefore, 

this action is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

sentence restored in this action reflects 

a requirement of the CAA and was 

removed inadvertently and, therefore, it 

does not impose new regulatory 

requirements. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not 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, as specified in 

Executive Order 13132. As explained 

previously, this final rule merely 

restores a sentence removed from the 

rules inadvertently. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). As explained previously, this 

final rule merely restores a sentence that 

reflects a requirement of the CAA and 

was removed from the rules 

inadvertently. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 


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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Rules and Regulations 43667 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

the 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 the EPA to 

provide Congress, through the OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This final rulemaking does not 

involve technical standards. Therefore, 

the 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 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and as permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. As explained 

previously, this final rule merely 

restores a sentence that reflects a 

requirement of the CAA and was 

removed from the rules inadvertently. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the U.S. The EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the U.S. prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective on 

August 27, 2014. 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit within 60 days from 

the date this action is published in the 

Federal Register. Filing a petition for 

reconsideration by the Administrator of 

this final action does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review must be filed, and shall not 

postpone the effectiveness of this action. 

List of Subjects 

40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

40 CFR Part 71 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Dated: July 21, 2014. 

Gina McCarthy, 

Administrator. 

Therefore, 40 CFR parts 70 and 71 are 

amended as follows: 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 1. The authority citation for part 70 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

■ 2. In § 70.6, revise paragraph 

(c)(5)(iii)(B) to read as follows: 

§ 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. 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; 

* * * * * 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 3. The authority citation for part 71 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

■ 4. In § 71.6, revise paragraph 

(c)(5)(iii)(B) to read as follows: 

§ 71.6 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. 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; 

* * * * * 

[FR Doc. 2014–17680 Filed 7–25–14; 8:45 am] 

BILLING CODE 6560–50–P 


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