8314 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 51, 52, 60 and 61

[FRL–5691–2]

RIN 2020–AA27

Credible Evidence Revisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: In an October 22, 1993

Federal Register, EPA solicited public

comment on a proposal to amend 40

CFR Parts 51, 52, 60 and 61 to eliminate

language that has been read to provide

for exclusive reliance on reference test

methods as the means of demonstrating

compliance with various emission

limits under the Clean Air Act (‘‘CAA’’

or ‘‘Act’’). These revisions—generally

referred to as the ‘‘credible evidence’’

revisions—were designed to clarify that

non-reference test data can be used in

enforcement actions, and to remove any

potential ambiguity regarding this data’s

use for compliance certifications under

Section 114 and Title V of the Act. In

the same document, EPA proposed an

‘‘enhanced monitoring’’ rule under

Section 114 and Title V. EPA

subsequently decided to suspend

development of the original enhanced

monitoring rule and develop a

compliance assurance monitoring

(‘‘CAM’’) approach to serve the same

statutory goals as the original enhanced

monitoring proposal. Today’s

rulemaking finalizes the previously

proposed credible evidence revisions to

Parts 51, 52, 60 and 61. EPA will take

final action regarding enhanced

monitoring and CAM in a separate

rulemaking.

DATES: Effective Date: April 25, 1997.

Judicial Review: Under CAA section

307(b)(1), judicial review of this

nationally applicable final action is

available only by the filing of a petition

for review in the U.S. Court of Appeals

for the District of Columbia Circuit

within 60 days of today’s publication of

this rule. Under CAA section 307(b)(2),

the regulations that are the subject of

today’s rule may not be challenged later

in civil or criminal proceedings brought

by EPA in reliance on them.

ADDRESSES: Docket. Supporting

information used in developing this

rulemaking is contained in Public

Docket No. A–91–52. This docket is

available for public inspection and

copying between 8:00 a.m. and 5:30

p.m. on weekdays, excluding federal

holidays, at the EPA Air and Radiation

Docket and Information Center, Room

M–1500, Waterside Mall, 401 M Street

SW., Washington, DC 20460; telephone

(202) 260–7548. A reasonable fee may

be charged for photocopying docket

materials.

FOR FURTHER INFORMATION CONTACT:

Gregory Jaffe, Air Enforcement Division

(Mailcode 2242–A), Office of Regulatory

Enforcement, U.S. Environmental

Protection Agency, 401 M Street, SW,

Washington, D.C. 20460; telephone

(202) 564–2260.

SUPPLEMENTARY INFORMATION: The

contents of the preamble are listed in

the following outline:

I. Background

A. Statutory and Regulatory Authority

B. Benefits of the Credible Evidence

Revisions

C. Public Participation

II. Summary of Final Rule

A. 40 CFR Part 51, § 51.212

B. 40 CFR Part 52, § 52.12

C. 40 CFR Part 52, § 52.30

D. 40 CFR Part 60, § 60.11

E. 40 CFR Part 61, § 61.12

III. Major Issues

A. Use of Credible Evidence in

Enforcement Actions

B. Use of Credible Evidence in Compliance

Certifications

C. EPA’s Authority To Promulgate the

Credible Evidence Revisions

1. Statutory Authority

2. The Kaiser Steel Decision Does Not

Constrain EPA’s Authority To Amend its

Regulations

3. Despite Commenters’ Claims, Clean Air

Act Case Law Does Not Mandate

Exclusive Reference Tests

4. The 1990 CAA Amendments Further

Support EPA’s Authority

5. Commenters’ Attempts To Narrow the

Scope of Sections 113(e) and 113(a) Are

Unpersuasive

6. EPA Can Promulgate the Credible

Evidence Revisions Without Reproposal

D. Stringency

1. Emissions Limits Require Continuous

Compliance (Consistent With Any

Averaging Times) Except During Periods

Where Compliance is Specifically

Excused

2. Commenters’ Advocacy of

Noncontinuous Compliance Would Lead

to Numerous Anomalies

3. Comments Regarding Continuous

Compliance Are Not Directed at Today’s

Action, but Rather at Underlying

Emission Standards

4. Enforcement Using Continuous

Monitoring Data Does Not Increase the

Stringency of Applicable Requirements

5. Sources Must Comply Both With Good

Operation and Maintenance

Requirements and With Emission Limits

E. SIP Call

IV. Administrative Requirements

A. Docket

B. Office of Management and Budget

(OMB) Review

C. Unfunded Mandates Reform Act

D. Regulatory Flexibility Act

E. Paperwork Reduction Act

F. Submission to Congress and the General

Accounting Office

I. Background

A. Statutory and Regulatory Authority

The credible evidence revisions are

based on EPA’s long-standing authority

under the Act, and on amplified

authority provided by the 1990 CAA

Amendments. Section 113(a) of the Act

authorizes EPA to bring an

administrative, civil or criminal

enforcement action ‘‘on the basis of any

information available to the

Administrator.’’ In this provision, which

predates the 1990 CAA Amendments,

Congress gave EPA clear statutory

authority to use any available

information—not just data from

reference tests or other federally

promulgated or approved compliance

methods—to prove CAA violations.

(The preamble will generally use the

phrase ‘‘reference tests’’ to include all

these compliance methods. Where

appropriate, the phrase ‘‘reference tests’’

will also include test conditions

specified in individual regulations.)

In the 1990 CAA Amendments,

Congress included an enforcement title

(Title VII) to enhance EPA’s compliance

and enforcement authorities. Among

other things, Congress revised Section

113(e)(1) of the Act to overrule a federal

court decision (Kaiser Steel, discussed

below) that had held that only specified

reference test data could prove

violations. Thus, although the preexisting authority of Section 113(a)

forms the principal basis for today’s

action, the credible evidence revisions

are also supported by the language,

history and intent of the 1990 CAA

Amendments. See also Section III.C.

below.

In addition to clarifying EPA’s, states’

and citizens’ enforcement authorities

under the Act, the credible evidence

revisions eliminate any potential

ambiguity regarding the use of nonreference test data as a basis for Title V

compliance certifications. Such

potential ambiguity could arise from

comparing the draft compliance

assurance monitoring (CAM) approach

and associated Part 70 changes, which

would allow sources to include CAM

data as a basis for certifying compliance,

with various EPA regulations that could

be read on their face to specify reference

test methods as the sole means of

determining compliance.

B. Benefits of the Credible Evidence

Revisions

As a preliminary matter, EPA wishes

to clearly state that this rulemaking

merely addresses an evidentiary issue.

The credible evidence revisions are not
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8315

intended to and will not serve to affect

the stringency of underlying emission

standards by amending the nature of the

compliance obligation. This rulemaking

does not amend existing emission

standards nor does it modify generic

regulations affecting the compliance

obligation such as exceptions for

startup, shutdown, and malfunctions.

See, e.g., 40 CFR 60.8(c). This regulation

also does not designate any particular

data as probative of a violation of an

emission standard. Rather, this

regulation merely removes what some

have construed to be a regulatory bar to

the admission of non-reference test data

to prove a violation of an emission

standard, no matter how credible and

probative those data are that a violation

has occurred. The credible evidence

revisions do not affect the compliance

obligation and thus do not affect the

stringency of existing emission

standards. What compliance obligation

is imposed by any given emission

standard remains an issue ultimately to

be determined based on that emission

standard and not this rulemaking.

For these reasons, we do not believe

that this rulemaking affects whether

emission standards require intermittent

or continuous compliance. However, as

made clear below, and in the detailed

response to comments document, EPA’s

position continues to be that an

emission standard requires continuous

compliance unless the emission

standard specifically provides

otherwise.

Today’s credible evidence revisions

will benefit sources, state environmental

agencies, EPA and the public. EPA,

states and citizens will be able to use

credible evidence to assess a source’s

compliance status and respond to

noncompliance. This will help ensure

that the government and citizens alike

can respond to sources that are not

complying with air pollutant emission

standards on an ongoing basis, thus

furthering the protection of public

health and the environment. At the

same time, sources will be able to use

credible evidence for contesting

allegations of noncompliance in

enforcement actions. Accordingly,

today’s rulemaking exemplifies EPA’s

‘‘common sense’’ approach to

environmental protection, which

encourages smarter, cheaper and more

flexible means of achieving

environmental goals without

compromising the fundamental health

and environmental protections provided

by federal environmental laws.

In the past, state regulatory authorities

and EPA have relied primarily on

infrequent on-site inspections and even

more infrequent reference tests in order

to check compliance with emission

limits at major stationary sources.

According to a September, 1990,

General Accounting Office (GAO)

report, these on-site inspections were

performed approximately once a year;

the reference tests, typically once every

five years. ‘‘Air Pollution:

Improvements Needed in Detecting and

Preventing Violations,’’ GAO, No. GAO/

RCED–90–155, September 1990, at 12,

19. These methods are inadequate to

ensure that sources continuously stay

within their emission limits: for

example, Pennsylvania officials have

estimated that, in comparison with

continuous emissions monitoring, onsite inspections may be 50 times less

likely to detect non-compliance. Id. at

18. Reference tests may not yield a

representative emissions picture

because the sources typically schedule,

set up and run the tests themselves.

This allows sources to ‘‘fine tune’’ their

operations and emissions control

processes prior to the tests, and generate

results that may not be typical of dayto-day source operations. Id. at 19–20.

Reference tests can also be expensive

and burdensome: They can cost up to

$100,000, and take a week or more to

complete. See, e.g., 43 FR 7568, 7571

(1978).

In contrast to the above approach,

today’s rule will make it clear that

various kinds of information other than

reference test data, much of which is

already available and utilized for other

purposes, may be used to demonstrate

compliance or noncompliance with

emission standards. (The preamble

generally refers to this other information

as ‘‘non-reference test data’’). EPA, state

agencies and industry routinely rely on

many types of information, including

engineering calculations, indirect

estimates of emissions, and direct

measurement of emissions by a variety

of means, in order to assess compliance

with CAA requirements. Where

available, continuous emission

monitoring (CEM) data and well-chosen

parametric monitoring data, such as the

operating temperature and air flow rate

of a regenerative thermal oxidizer,

generally provide accurate data

regarding a source’s compliance with

emission limits and standards. These

data also generally cover a greater

percentage of a source’s time in

operation and are more representative of

a source’s ongoing compliance status

than sporadic performance testing.

Under today’s rule both sources and

potential enforcers will be put on the

same evidentiary footing in an

enforcement action. Further, since 1992,

EPA’s Part 70 operating permit

regulations have allowed the use of this

data in compliance certifications.

Today’s action reaffirms this approach,

and removes any potential ambiguity

regarding the use of such data for this

purpose.

Today’s action reflects EPA’s efforts to

make existing regulatory programs work

better rather than creating additional

requirements. By ensuring greater

compliance with existing emissions

limits, the credible evidence revisions

will help minimize the need for further

requirements to achieve air quality

goals. See the October, 1993, proposal,

58 FR 54654.

C. Public Participation

The final credible evidence revisions

were developed with the benefit of

insight from many parties that will be

affected by the regulations, including

State and local air pollution control

agencies, large and small industries,

trade associations and environmental

organizations. Many comments

regarding credible evidence issues were

received during the development and

after the proposal of the original

enhanced monitoring rule, in 1991

through 1995. Many additional

comments were received after the

Agency announced that it was

continuing to go forward with the

credible evidence revisions in 1996.

To obtain the views of all interested

parties at the early stages of developing

the enhanced monitoring rulemaking,

EPA published a notice in the Federal

Register on August 8, 1991, to make

available a Public Information

Document on enhanced monitoring and

to provide notice of a public meeting to

be held on August 22, 1991, on the

subject (56 FR 37700–37701, August 8,

1991). In response to the public

meeting, EPA received many comments

which were included in the docket for

the proposed regulations.

Over the next four years, EPA held

over one hundred informal

informational and discussion sessions

with representatives of interested

organizations to receive their views on

enhanced monitoring, as well as a

second informational meeting with

approximately fifty attendees held on

August 12, 1993. Following publication

of the proposed enhanced monitoring

regulations on October 22, 1993 at 58 FR

54648, EPA conducted a public hearing

in Washington, D.C., on November 19,

1993. Testimony was given by twelve

individuals, representing industry and

environmental organizations.

In addition, during the public

comment period, which was first

scheduled to close on December 30,

1993, and was extended until January

31, 1994, in response to requests for
8316 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

extension, EPA received comments from

a wide variety of interested parties

concerning the enhanced monitoring

proposal, including numerous

comments on credible evidence issues.

In the fall of 1994, EPA held a series of

informational meetings with interested

parties affected by the rule. The Agency

then reopened the public comment

period on specific issues to solicit

additional comments, and held an

additional stakeholder meeting. In

response to the reopened public

comment period, EPA received over 200

additional comment letters.

In April, 1995, EPA announced that it

was suspending development of the

enhanced monitoring rule while it

developed the CAM approach to serve

the same statutory goals. In a

September, 1995, public draft of the

CAM approach, EPA stated that it

would hold further discussions with

stakeholders before it proceeded to

finalize the credible evidence revisions.

On March 8, 1996, EPA announced that

a public meeting on credible evidence

issues would be held on April 2, 1996.

To focus the meeting’s discussion, EPA

released a paper on March 21, 1996,

entitled ‘‘The Use of Information Other

Than Reference Test Results for

Determining Compliance With the Clean

Air Act’’ (sometimes referred to as the

‘‘Credible Evidence White Paper’’). EPA

distributed this paper by electronic

bulletin board to the same stakeholders

who were involved in the enhanced

monitoring and CAM rulemakings,

further distributed it to various other

interested parties, and made it generally

available to the public.

The public meeting was held on April

2, 1996, where twenty-three

organizations and individuals presented

oral statements and written comments.

At the meeting, EPA announced that,

although the rulemaking docket would

not formally be re-opened, additional

written comments would be accepted

for at least another 30 days. Moreover,

EPA stated that it would meet with any

interested parties to discuss the credible

evidence rules. As a result, many

additional written comments have been

received, and numerous additional

EPA/stakeholder meetings have been

held.

Section III of this preamble contains

a description of the most significant

public comments and EPA’s responses

to them. Summaries of other public

comments on the credible evidence

revisions received over the past five

years, together with the Agency’s

responses, are available in the docket in

a document entitled ‘‘Credible Evidence

Revisions: Detailed Response to

Comments Document’’ (referred to in

this preamble as the ‘‘Detailed Response

Document’’).

II. Summary of Final Rule

The credible evidence revisions

consist of various changes to 40 CFR

51.212, 52.12, 52.30, 60.11 and 61.12.

These revisions provide minor

modifications to existing regulatory

provisions to clearly allow for the use of

any credible evidence—that is, both

reference test and comparable nonreference test data—to prove or disprove

violations of the Act in enforcement

actions. These revisions make clear that

enforcement authorities can prosecute

actions based exclusively on any

credible evidence, without the need to

rely on any data from a particular

reference test. The revisions also have

the effect of eliminating any potential

ambiguity regarding the use of nonreference test data as a basis for Title V

compliance certifications. The credible

evidence revisions do not call for the

creation or submission of any new

emissions or parametric data, but rather

address the role of existing data in

enforcement actions and compliance

certifications. As such, today’s final

action is distinct and separable from the

bulk of the proposed enhanced

monitoring rule, which addressed new

monitoring requirements.

By clearly providing that federally

approved SIP test methods or Agency

reference test methods are not the

exclusive means of establishing

noncompliance or compliance, EPA in

no way intends to alter the underlying

emission standards. The Agency will

still use the reference methods for

exactly what they are: test methods of

reference against which to compare

information generated by means other

than the reference tests. The National

Bureau of Standards maintains a

number of standards against which

other measuring devices, used in

scientific or commercial applications,

are calibrated. Similarly, where a SIP,

New Source Performance Standard or

permit specifies EPA Method 25A, for

example, for determining the amount of

volatile organic compounds (‘‘VOCs’’)

that are emitted, the ‘‘other evidence’’

that could establish compliance would

have to relate to the likely measurement

of VOCs that would be obtained by a

Method 25A measurement. This could

include, for example, consideration of

key operating parameters for the facility

as correlated with emissions during a

Method 25A test.

A. 40 CFR Part 51, § 51.212

Section 51.212(c) is revised to clarify

that the inclusion in a state

implementation plan (SIP) of

enforceable test methods for SIP

emissions limits does not preclude

enforcement based on other credible

evidence or information, relevant to

whether a source would have been in

compliance with applicable

requirements if the appropriate

performance or compliance test

procedures or methods had been

performed. This revision does not affect

the existing requirements in §§ 51.212(a)

and (b) for periodic testing and

inspections, and establishment of a

system of violation detection and

investigation.

The proposed revisions to § 51.212

contained detailed lists of

‘‘presumptively credible evidence’’ and

‘‘presumptively credible monitoring

methods.’’ After consideration of public

comments, EPA has decided to delete

these lists because they are potentially

confusing and unnecessary. While EPA

continues to believe that the listed

evidence and monitoring methods are

indeed credible, the Agency recognizes

that both judicial and administrative

tribunals routinely make determinations

concerning the admissibility and weight

of evidence on a case-by-case basis.

B. 40 CFR Part 52, § 52.12

Section 52.12(c) is revised to clarify

that, for purposes of federal

enforcement, any credible evidence

relevant to whether a source would have

been in compliance with applicable

requirements if the appropriate

performance or compliance test

procedures or methods had been

performed may be used to establish

whether or not SIP violations have

occurred. As with § 51.212 above, EPA

has deleted the proposed lists of

presumptively credible evidence and

monitoring methods for the same

reasons stated above. Under today’s

final action, where an emission

limitation specifies a particular

monitoring or testing method approved

by EPA for use in the SIP to determine

compliance, data from such method will

continue to be the benchmark against

which other emissions or parametric

data, or engineering analyses, will be

measured. Similarly, where there are no

approved SIP methods, the test methods

specified in part 60 of this chapter will

remain the standard against which other

such information will be evaluated.

C. 40 CFR Part 52, § 52.30

Proposed § 52.30(a), which concerned

compliance certifications, has been

revised in accordance with § 51.212

above, and the same comments apply.

The enforcement-related § 52.30(b) is

rendered unnecessary by today’s final

§ 52.12(c), which effectively
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8317

encompasses it. Finally, the entire

section has been renumbered as § 52.33.

D. 40 CFR Part 60, § 60.11

Similar to the existing regulation,

§ 60.11(a) states that compliance with

Part 60 standards shall be determined in

accordance with the applicable

performance tests and performance

testing provisions in this part. A new

§ 60.11(g) clarifies that nothing in

§ 60.11 precludes the use, including

exclusive use, of any credible evidence

or information, relevant to whether a

source would have been in compliance

with applicable requirements if the

appropriate performance or compliance

test or procedure had been performed,

for purposes of submitting compliance

certifications or establishing whether or

not a source has violated or is in

violation of any Part 60 standard,

including opacity standards.

The first sentence in today’s final

§ 60.11(a) has been modified from the

proposal. EPA has decided to use

mandatory phrasing in the first sentence

(‘‘Compliance with standards * * *

shall be determined in accordance with

the applicable performance tests

* * *’’) as is included in the existing

regulation, rather than adopt the

permissive language proposed in 1993

(‘‘Compliance with standards * * *

may be determined by performance tests

* * *). The rationale for retaining this

mandatory language is to make clear

that, although the regulation is being

modified to clarify that it does not

establish an exclusive method of

determining compliance, the reference

tests remain the benchmark against

which other emissions or parametric

data, engineering analyses, or other

information will be evaluated. For

similar reasons, EPA included in

§ 60.11(g) the requirement that evidence

or information gathered by other means

than the reference tests be ‘‘relevant to

whether a source would have been in

compliance with applicable

requirements if the appropriate

performance or compliance test or

procedure had been performed’’. This

phrase means that the evidence or

information must bear on whether a

facility would have been found to be in

compliance, during the time period in

question, if the appropriate performance

test had been conducted. It does not

mean that, to prove a violation occurred,

ideal testing conditions, for example the

sun light at a certain angle to the tester

for an opacity reading, must exist if

other credible evidence, such as

continuous opacity monitor data, can

establish that a violation occurred.

These changes have been made in

response to comments that EPA’s

proposal did not give full recognition to

the role of reference tests in determining

compliance with emission standards.

Section 60.11(g) combines the

requirements of the proposed

subsections (g) and (h) with the

exception of presumptions included in

those sections which have been deleted.

The clarifying language in § 60.11(g)

renders unnecessary the previously

proposed language in § 60.11(b).

Accordingly, the proposed language for

that subsection is deleted from today’s

rule. The proposed changes to

subsection (e) have been deleted as

unnecessary due to changes to

subsections (a) and (g). Finally,

§ 60.11(f) is revised so as to clarify that

it does not countermand subsection (g).

Under today’s revisions, information

generated from an appropriate and

properly conducted test method

established under the general provisions

of Part 60 or in the applicable subpart

will still generally be the best method

for determining a source’s compliance

during the test period. Other emissions

or parametric data, or engineering

analyses, may be considered if relevant

to the results that would have been

obtained by the appropriate, properly

conducted reference test methods.

E. 40 CFR Part 61, § 61.12

Today’s revisions to § 61.12 generally

mirror the revisions to § 60.11, largely

for the same reasons. Section 61.12(b)

remains unchanged from its current

promulgated version because credible

evidence has always been used to

establish violations of these standards.

III. Major Issues

Throughout the development of this

rulemaking, various commenters have

expressed concerns regarding the

proposed rule’s potential effects on CAA

enforcement, compliance certifications

and emissions standards. The most

significant of these comments, together

with EPA’s responses, are discussed

below.

A. Use of Credible Evidence in

Enforcement Actions

Commenters raised various concerns

regarding the potential use of credible

evidence in enforcement actions. Some

commenters argued that the use of such

evidence would be unconstitutional,

unprecedented and unfair. Others

expressed concern that EPA, states or

citizen groups would use credible

evidence to bring enforcement actions

for insignificant violations. These

comments are addressed below.

Industry commenters have argued that

the use of credible evidence in

enforcement actions would violate

sources’ constitutional right to due

process. Specifically, the commenters

argue that EPA must comprehensively

identify the precise types of information

that can be used as credible evidence, or

else sources will not have sufficient

‘‘fair warning’’ regarding potential

enforcement. EPA rejects this view.

‘‘Fair warning’’ jurisprudence holds that

regulated sources must have adequate

notice identifying ‘‘the standards with

which the agency expects parties to

conform.’’ General Electric Co. v. U.S.

EPA, 53 F.3d 1324, 1329 (D.C. Cir.

1995). Today’s rule does not establish or

alter standards with which sources

regulated under the CAA must comply.

Rather, today’s rule only concerns the

evidence that can be used to prove

violations of a standard, giving full

recognition to the role of reference test

methods under the standards. The

Federal Rules of Evidence govern the

admission of evidence in all federal

district court litigation, including CAA

enforcement actions, without any

discernible constitutional infirmity.

Similar evidentiary rules govern federal

administrative and state environmental

actions. Our legal system provides that

a federal or administrative law judge

will be the ultimate, independent

arbitrator of the evidence’s admissibility

and credibility.

Credible evidence is far from a new

concept in judicial and administrative

actions. In private lawsuits such as

contract disputes, and in governmental

and citizen enforcement actions brought

under environmental laws other than

the CAA, litigants can and do use a

wide variety of information to prove

their claims, or to refute the claims of

opposing parties. In all these lawsuits,

the judge acts as the final, independent

arbitrator of what constitutes credible

and admissible evidence. Today’s final

rule addresses problems arising from

certain CAA regulations, which predate

the 1990 Amendments to the CAA,

containing language that has been read

to allow only a very limited amount of

information, i.e., data from reference

test methods, to be used as evidence of

violations. As such, the rule merely

corrects an anomaly that has been read

into these regulations, and brings their

potential enforcement into line with

that of other CAA requirements such as

the ‘‘general duty obligations’’ in 40

CFR 60.11(d) (for NSPS standards) and

40 CFR 61.22(c) (for National Emission

Standards for Hazardous Air Pollutants

(NESHAPs)), and with other

environmental statutes. It should be

emphasized that the determination that

evidence or information is credible is

merely a threshold determination that
8318 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

the evidence or information in question

is technically relevant, and therefore,

legally admissible in an enforcement

action. In light of section 113(a)

providing that the Administrator may

bring an enforcement action based on

‘‘any information’’, EPA believes that

Congress intended this threshold to be

a low one.

Industry commenters have also

argued that using credible evidence in

enforcement actions is unfair because

sources will not know what credible

evidence may be used against them.

EPA believes that this claim lacks merit.

This issue is no different in CAA

enforcement than in any civil or

criminal matter resolved by our nation’s

courts. Further, EPA disagrees with the

notion that sources will likely be faced

with an unknown and unlimited array

of evidence. To the contrary, with

regard to sources subject to Title V

permits, EPA generally expects that

most if not all of the data that EPA

would consider as potentially credible

evidence of an emission violation at a

unit subject to monitoring under the

agency’s proposed CAM rule would be

generated through means of appropriate,

well-designed parametric or emission

monitoring submitted by the source

itself and approved by the permitting

authority, or through other requirements

in the source’s permit. Sources not

subject to CAM should still be readily

able to discern the information, for

example information about the

operation of pollution control devices,

that is relevant to their compliance with

applicable regulation.

Some industry representatives have

expressed concern that the use of

credible evidence in compliance

determinations will reveal multiple

minor violations for which EPA, the

states or citizens will bring lawsuits. It

is not EPA’s intent to foster frivolous

lawsuits, and EPA does not expect that

such lawsuits will occur as the result of

today’s action. As EPA explained in the

Credible Evidence March 1996

memorandum, EPA generally focuses its

judicial enforcement resources on

violations that (1) may threaten or result

in harm to public health or the

environment, (2) are of significant

duration or magnitude, (3) represent a

pattern of noncompliance, (4) involve a

refusal to provide specifically requested

compliance information, (5) involve

criminal conduct, or (6) allow a source

to reap an economic windfall. See

March 1996 Memorandum, p. 5.

An examination of EPA’s judicial

enforcement cases over the past few

years reveals that EPA has focused its

judicial enforcement resources on large,

significant cases rather than a large

number of relatively minor matters. The

Credible Evidence March 1996

memorandum contains several

examples that illustrate this point. In

contrast, EPA’s approach to minor

unexcused violations generally has been

to exercise prosecutorial discretion and

use tools such as notices of violation

and administrative compliance and

penalty orders. In every case, EPA

considers the nature and extent of the

violation and all other circumstances

surrounding the violation in

determining whether and what kind of

enforcement response is appropriate.

Further, for any type of noncompliance,

EPA generally will not bring a federal

enforcement action where a state or

local permitting authority has taken

timely and appropriate action under

existing policies to resolve the

violations. Finally, for all violations,

EPA will apply all other existing

specific enforcement policies, such as

the May, 1996, Policy on Compliance

Incentives for Small Businesses, in

accordance with their terms. EPA does

not intend to use credible evidence to

change any of these policies.

EPA has a balanced enforcement

program that seeks to assure compliance

using the mix of the compliance and

enforcement tools available to it.

Deterrence is also an overall goal of the

program. Judicial enforcement against

minor CAA violations generally is a

lower enforcement priority, because

EPA believes its other enforcement and

compliance assistance tools allow it to

respond to such violations without the

need to file an action in federal court.

Accordingly, in considering whether to

bring a judicial action, or whether to use

some other enforcement or compliance

tool, EPA generally takes into

consideration such factors as number

and duration of the exceedances, harm

or risk posed by the exceedance,

potential for recurrence, the source’s

compliance history, and other

circumstances surrounding the

violation. For example, if a source were

installing a new unit subject to an NSPS

standard and had some difficulty getting

the control equipment to operate

properly after the ‘‘shakedown’’ period

permitted before the initial performance

test (see 40 CFR 60.8(a)) but solved the

problem promptly after the test, this

generally would be a low enforcement

priority, absent other circumstances

indicating a need for judicial action.

These same general policies regarding

EPA’s use of judicial and administrative

enforcement actions were discussed in

Section I.D. of the August 2, 1996, CAM

draft approach. Therein, EPA provided

various specific examples of

circumstances where the Agency was or

was not likely to take compliance or

enforcement action based on the

examination of CAM data.

Finally, the NSPS general provisions

and many SIPs generally excuse sources

from compliance with emissions limits

during periods of startup, shutdown or

malfunction. See 40 CFR 60.11(c). Some

specific NSPS standards additionally

excuse sources from compliance during

certain operating periods. Exceedances

monitored during any of these

specifically excused periods are not

violations of the emission limit.

Moreover, some NSPS standards specify

averaging periods for determining

compliance and noncompliance. As a

result, many short term emissions

values when averaged with other values

in the relevant averaging period, will

not constitute violations. The credible

evidence proposal does not change any

of these general or specific periods of

excused noncompliance, or any

averaging periods, or any of their effects

on compliance.

Regarding citizen suits, in February,

1996, EPA performed a review of citizen

enforcement actions under the Clean

Water Act (CWA), and found that

citizen enforcers generally do not focus

on sporadic, inconsequential violations.

This analysis was summarized in the

Credible Evidence White Paper, and is

included in the Air Docket. Although to

date there have been far fewer CAA

citizen suits than CWA citizen suits,

there have been at least two notable

CAA citizen cases involving serious

violations: National Wildlife Federation

v. Copper Range Co., Civil Action No.

2:92–CV–186 (W.D. Michigan),

involving one of the largest sources of

particulate matter in Michigan’s Upper

Peninsula, which was emitting

particulates at 230 lbs/hour (over five

times its permitted limit) and toxic air

pollutants including mercury, arsenic,

cadmium and lead; and Sierra Club v.

Public Service Company, 894 F. Supp.

1455 (D.C. Col. 1995), involving a power

plant that had committed over 19,000

opacity emission violations, which had

allegedly affected a nearby wilderness

area. Both of these suits were ultimately

settled (with the United States an

intervenor) for multi-million dollar

penalties and significant injunctive

relief, including the installation of

appropriate pollution controls.

EPA notes that today’s rule creates no

new rights or powers for citizen

enforcers; instead, the rule clarifies

existing EPA regulations. Citizens have

been free to use credible evidence in

Clean Air Act enforcement, and have

won at least two court cases using it.

See Sierra Club v. PSC, cited above, and

Unitek Environmental Services v.
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8319

Hawaiian Cement, Civ. No. 95–00723

(D. Hawaii 1996). Also, EPA is aware of

no increase in citizen suits in any of the

five states—Kansas, Iowa, Nebraska,

North Dakota and Georgia—whose SIPs,

based on EPA’s SIP Call, have

specifically clarified that credible

evidence can be used for enforcement,

or in those states that have credible

evidence provisions in other parts of

their state law.

Finally, EPA takes this opportunity to

further elaborate on certain credible

evidence and enforcement issues that

were discussed in the August, 1996,

draft CAM approach preamble. Therein,

EPA explained that ‘‘the CAM rule

cannot and does not replace a source’s

obligation to comply with otherwise

applicable emission limits.’’

Nonetheless, as a practical matter, ‘‘EPA

expects that a unit that is operating

within appropriately established

indicator ranges as part of an approved

CAM plan will, in fact, be in

compliance with its applicable limits.’’

(See draft CAM rule § 64.6(c), which

requires that ‘‘the ranges shall be

established so as to provide a reasonable

assurance of compliance with emission

limitations or standards for the

anticipated range of operations at a

pollutant-specific emissions unit.’’)

Such a unit generally will not be an

enforcement target. However, if the

Agency obtains information that the

unit is in fact exceeding its applicable

emission limit even though it is

operating within its approved indicator

ranges, the Agency will consider

whether or not to take compliance or

enforcement action in accordance with

its general enforcement policies.

Further, under the CAM approach, the

source has such information, it would

have to promptly remedy the

exceedance and notify the permitting

authority and submit a proposed permit

modification to correct its CAM

monitoring as required under draft CAM

rule § 64.3(b)(5).

Under today’s rule, the legal burdens

regarding the establishment of

violations or compliance in an

enforcement action are not changed.

The means of meeting these burdens

will vary in different circumstances.

Today’s rule provides that where

information (such as non-reference

emissions data, parametric data or

engineering analyses) is equivalent to

information generated by reference test

methods, the former may be used to

establish compliance or noncompliance

in an enforcement action. There is no

need to establish that every test

condition specified in a reference test

method has been matched by a surrogate

condition in the method used to

generate the comparable information.

Typically, reference test methods (and

any additional test conditions specified

in individual regulations) quantify the

presence of particular physical

attributes—for example, mass or

concentration of a chemical or group of

chemicals—over a specified period of

time. As long as these two elements—

quantification and specified time

period—are retained and the data from

the alternate method is related to the

reference test, information generated by

alternate methods yield data bearing on

what the results of a reference test

would have been, and the use of such

information to establish compliance or

noncompliance in an enforcement

action will not affect the stringency of

the underlying standard. Of course, nonreference data that is already quantified

in the same units as the underlying

standard, e.g., emissions data generated

by properly operating and calibrated

non-reference CEMs, should generally

be comparable to reference test data,

with all specified averaging periods still

applying.

For example, Method 9, the NSPS

reference method for opacity, requires

that a trained visible emissions observer

(VEO) view a smoke plume with the sun

at a certain angle to the plume in order

to properly illuminate it. In contrast, a

continuous opacity monitor (COM)

contains a calibrated light source that

provides for accurate and precise

measurement of opacity at all times.

Notably, EPA uses COM data to certify

and re-certify the credentials of VEOs

under Method 9. Accordingly, since a

comparable light source is provided by

a COM, if COM data were offered in an

enforcement action to prove or disprove

opacity violations, there would be no

need to establish that the sun was

shining during the period the COM data

was collected. Where a reference test

method or test requirements in an

individual regulation include plant

operating conditions, e.g., a requirement

that testing be conducted at a specified

percentage of maximum plant capacity,

this does not mean that the underlying

standard applies only when the plant is

operating at that capacity or that the

‘‘other information’’ would have to

show that the plant was operating at the

specified capacity during the period that

the other ‘‘credible evidence’’ was

obtained.

Where a party seeks to introduce

other sorts of information in an

enforcement action, for example, expert

testimony as to whether a unit was able

to meet its emission limit based on the

operation or nonoperation of its control

equipment during the period of alleged

violation, the information would still

need to be relevant to reference test data

in the sense that it must be related to

reference test data in some fashion. In

the expert testimony example, this

might be accomplished by a qualified

expert opinion that a reference test

would have demonstrated

noncompliance in these same

circumstances. Finally, where general

burdens of proof for the proponent of

this information are reduced through

statutory provisions or other means, the

same reduced burdens will apply in

circumstances where EPA uses nonreference test data to assert

noncompliance. See, e.g., CAA section

113(e)(2).

B. Use of Credible Evidence in

Compliance Certifications

Some commenters argued that today’s

final action will create new

uncertainties and burdens for sources,

because sources will not know what

information they must consider before

certifying compliance with Title V

permit requirements. Previously, these

commenters argue, sources would have

needed to consider only the results of

any specified reference tests, whereas

under the credible evidence revisions

almost any information could be

potentially relevant to determining

compliance. Thus, as a practical matter

sources would need to ‘‘go through

every file drawer’’ and examine a great

deal of additional information before

certifying compliance. Even then,

sources would not know whether they

had reviewed all compliance

information that was potentially

credible. According to some

commenters, even if the source

determined its compliance using a

reference method, the source would still

be uncertain as to whether it could

certify compliance during that period,

because other contemporaneous

information might still indicate

noncompliance. Still other commenters

argue that allowing a broad array of

information to be considered in

compliance certifications would render

the certification requirement void for

vagueness.

At the outset, EPA notes that today’s

action merely eliminates any potential

ambiguity or conflict between Parts 51,

52, 60, and 61 and Part 70 regarding the

ability of sources to use non-reference

test data in compliance certifications.

Consistent with the congressional intent

reflected in Title V and section

114(a)(3), Part 70 already contemplates

use of non-reference test data in

compliance certifications. There are

other pending rulemakings—

specifically, pending actions involving

the CAM approach and Part 70—that are
8320 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

proposing to modify existing Part 70

requirements to provide additional

detail as to what information sources

must consider when certifying

compliance. Nothing in these rule

revisions is meant to specify what

degree of correlation there must be

between CAM monitoring data and

emissions violations or compliance

certifications; rather this issue will be

discussed in the CAM rulemaking.

In addition, EPA believes that the

commenters have greatly exaggerated

the purported uncertainties and burdens

in certifying compliance under Part 70

and notes that facilities routinely

determine their compliance with

numerous statutory or regulatory

obligations without government

imposed ‘‘checklists.’’ Under Title V,

the source’s substantive CAA

obligations (i.e., the source’s applicable

requirements) are clearly set forth in the

source’s CAA operating permit.

Contrary to the commenters’ claims,

sources that are certifying compliance

using properly conducted continuous

reference methods may generally certify

compliance based solely on the

continuous reference method data,

although naturally such sole reliance

would be inappropriate in the face of

obvious contrary information or fraud as

discussed below.

Of course, if a source becomes aware

of other material information that

indicates that an emission unit has

experienced deviations (as that term is

defined in the draft CAM approach) or

may otherwise be out of compliance

with an applicable requirement even

though the unit’s permit-identified data

indicates compliance, the source must

consider this information, identify and

address it in the compliance

certification, and certify accordingly.

This ensures, among other things, that

sources will not certify compliance in

circumstances where doing so would

constitute a violation of CAA section

113(c) and 18 U.S.C. Section 1001,

which prohibits sources from knowingly

making a false certification or omitting

material information, or a violation of

other prohibitions on fraud. EPA

emphasizes, however, that its purpose

here is to make clear that sources may

not ignore obvious relevant information.

EPA does not view compliance

certification requirements as imposing a

duty on the source to search out and

review every possible document to

determine its relevance on the issue of

the source’s compliance.

Following on the above discussion,

the Agency takes this opportunity to

restate that while a Title V permit can

include a ‘‘permit shield’’ protecting it

from allegations that it has failed to

satisfy CAA monitoring requirements,

such shield does not relieve the source

of its obligation to comply with the

underlying emission limits or other

applicable requirements being

monitored. In other words, even where

a source receives a ‘‘shield’’ providing

that the monitoring provisions set forth

in its Title V permit constitute

compliance with all monitoring

requirements of the CAA, the source

would not be shielded from allegations

of noncompliance with the underlying

substantive requirements (e.g., emission

limits) being monitored even if the

source’s required monitoring failed to

detect the violation. See also the

October, 1993, proposal, 58 FR 54678.

Industry commenters argued that

allowing credible evidence in Title V

compliance certifications would render

the certification requirement

constitutionally void for vagueness.

According to these commenters,

reference test methods are necessary to

define, in a consistent and reproducible

manner, the level of performance that

constitutes compliance; without a

reference method, an emission limit

would be incomplete. As discussed

above, EPA in no way intends to

eliminate reference tests or to alter their

methodology. Instead, these tests,

performed as specified under EPA and

state regulations, will remain the

benchmark against which to compare

other emissions or parametric data, or

engineering analyses, regarding source

compliance.

Finally, numerous commenters

argued that allowing credible evidence

in compliance certifications and

enforcement actions would disrupt the

Title V permit process and cause

substantial delays in the issuance of

these permits because local permitting

authorities would have to adjust many

of the sources’ emission limits, which

the commenters contend were not

intended to be complied with

continuously. Such Title V gridlock

could occur only if today’s action in fact

changed the stringency of emission

standards.

C. EPA’s Authority To Promulgate the

Credible Evidence Revisions

1. Statutory Authority

Today’s rulemaking and related SIP

call are based primarily on EPA’s

existing authority prior to the 1990 CAA

Amendments. Section 113(a) of the Act

authorizes EPA to bring an

administrative, civil or criminal

enforcement action ‘‘on the basis of any

information available to the

Administrator.’’ This provision provides

the Agency with clear statutory

authority to use any available

information to prove violations of

requirements under the Act, and

demonstrates that Congress did not

intend to limit EPA to using reference

test method results in bringing

enforcement actions. The language of

Section 113(a), together with the fact

that the Act nowhere prohibits the use

of information other than reference test

results to prove violations, indicates

that the Act does not limit the use of any

information to prove a violation.

Therefore, by law the Agency is limited

only by general evidentiary rules in

what it can use to prove a violation

alleged in an enforcement action.

2. The Kaiser Steel Decision Does Not

Constrain EPA’s Authority To Amend

Its Regulations

Although the Act sets no inherent

limits on EPA’s authority to use any

type of information to prove a violation,

some EPA regulations provide for

specific test methods for determining

compliance and have been read by some

to constrain EPA’s enforcement

authority. In United States v. Kaiser

Steel Corp., No. CV–82–2623 IH (C.D.

Cal. Jan. 17, 1984), the district court

construed the language of EPA’s

regulations at 40 CFR 60.11 as limiting

the admissible evidence of violations of

opacity standards to observations

utilizing Method 9, the opacity

reference test method. Thus, when the

Agency attempted to use expert

testimony pertaining to opacity to prove

the existence of violations without

Method 9 test data, the court rejected

the evidence and held that EPA could

prove violations only on those days

where the Method 9 test was conducted.

This decision—which interpreted only

EPA’s existing regulations, not the Act—

was specifically overruled by Congress

in the 1990 CAA Amendments. Today’s

rulemaking is intended to clarify that

EPA’s regulations do not constrain EPA

to using reference tests to prove a

violation of an emission standard.

Rather, EPA retains its full authority

under Section 113(a) to use ‘‘any

information’’ as the basis for an

enforcement action.

3. Despite Commenters’ Claims, Clean

Air Act Case Law Does Not Mandate

Exclusive Reference Tests

At least one commenter has asserted

that the decision in Portland Cement

Ass’n v. Ruckelshaus, 486 F.2d 375, 399

(D.C. Cir. 1973), cert. denied, 417 U.S.

921 (1974), stands for the proposition

that CAA emission standards may be

enforced only through an exclusive

reference test method. First, the

commenter relies on the court’s ruling
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8321

that a reference test method must make

measurements with ‘‘reasonable

accuracy’’ and be ‘‘objective.’’ 486 F.2d

at 401 & n. 103. Second, the commenter

cited the court’s concern with

deviations between sampling methods

used in gathering data to set an emission

standard and sampling methods used in

reference methods. The court stated that

‘‘a significant difference between

techniques used by the agency in

arriving at standards, and requirements

presently prescribed for determining

compliance with standards [i.e., the

reference method], raises serious

questions about the validity of the

standards.’’ 486 F.2d at 396. EPA

disagrees with this reading of Portland

Cement.

These holdings, individually or

together, do not support the conclusion

that violations of an emission standard

may only be demonstrated by an

exclusive reference method. The court’s

statements regarding the reliability of

reference methods were made in context

of a challenge to an opacity standard.

The industry petitioner argued that

testing compliance with that standard,

inspector observations, is inaccurate

and therefore arbitrary. The court agreed

that the evidence called the reliability of

inspector observations into question and

remanded to EPA for it to determine if

there was a way to measure compliance

with the standard with ‘‘reasonable

accuracy.’’ In no way did the court

imply that the opacity standard had to

have an exclusive reference test but

simply rejected the test EPA proposed to

use as insufficiently supported.

The Portland Cement court’s

discussion of a compliance method that

differed from the test method used to

develop the standard also lends no

support to the conclusion that an

exclusive test method is required. It is

true that the court mentioned reference

methods ‘‘outlined by regulation.’’

However, the mere description of an

agency practice (here, the inclusion of a

reference test in a regulation setting an

emission standard) does not transform

that practice into a statutory

requirement. Moreover, the thrust of the

court’s remarks was to caution EPA that,

where EPA has established by

regulation a reference method for

sources to demonstrate compliance, the

best data EPA can put forth to show that

a standard is in fact achievable is data

generated by the reference method. The

D.C. Circuit, however, has specifically

rejected the assertion that standards can

only be supported by reference test data.

See National Lime Ass’n v. EPA, 627

F.2d 416, 446, fn.103 (D.C. Cir. 1980).

None of this, thus, supports the

commenter’s claim that a standard’s

supporting data must be generated using

the reference method, and its supposed

corollary that only reference method

data can be used to enforce the

standard, especially where, as here, that

other information must be related back

to a reference test method. At best, the

commenter’s arguments would apply

only in the context of an original

standard-setting, where an emission

limitation or other standard newly

promulgated by EPA was being

challenged on the basis that the

standard’s supporting data was

inadequate. Today’s rule sets no new

emission or work-practice standards,

and amends no existing ones.

Thus, the commenter is mistaken.

Neither of the two passages in Portland

Cement cited by the commenter address

whether exclusive reference tests are

necessary, much less mandate

establishment of such tests. Further,

EPA regulations are inconsistent with

the exclusivity argument of the

commenter. For example, section 60.8(a)

of Title 40 of the CFR provides a whole

string of circumstances under which a

source can alter or completely replace

the reference test required by the

regulation. Finally, today’s final action

regarding the use of non-reference test

data in enforcement is fully consistent

with the court’s requirement that

reference testing be conducted in a

nonarbitrary manner.

4. The 1990 CAA Amendments Further

Support EPA’s Authority

Various provisions of the 1990 CAA

Amendments provide additional

support for EPA’s position that

reference tests are not the exclusive

means of proving violations. As noted

above, Congress specifically reversed

the Kaiser Steel decision in Section

113(e) of the Amendments by providing

that the duration of a violation may be

established ‘‘by any credible evidence

(including evidence other than the

applicable test method).’’ The legislative

history for this provision shows that

Congress meant to clarify that in an

enforcement action courts are not

restricted to reference test method data,

but may consider any evidence of

violation or compliance admissible

under relevant evidentiary rules. See S.

Rep. No. 228, 101st Cong., 1st Sess. 1,

358 (1989) (‘‘Senate Report’’), reprinted

in 1990 U.S. Code Cong. & Admin.

News 3385, 3741 (‘‘Reprint’’).

Other provisions of the 1990 CAA

Amendments also evidence

Congressional intent that reference test

methods should not be used as the

exclusive means for assessing

compliance with CAA emission limits.

Most pointedly, the requirements in

Section 114(a)(3) for enhanced

monitoring and for compliance

certifications based on a determination

of whether compliance was continuous

or intermittent presumes that data other

than reference tests would be used for

these purposes. As explained in the

October, 1993, proposal, the use of nonreference test data is also consistent

with the monitoring, compliance

assurance, and compliance certification

requirements in Sections 504(a), 504(c),

and 503(b)(2) of the Act. See 58 FR

54649–50. In addition, Section 504(b) of

the Act grants discretionary authority to

the Administrator to prescribe

procedures and methods for monitoring,

and provides that continuous emission

monitoring systems need not be

required ‘‘if alternative methods are

available that provide sufficiently

reliable and timely information for

determining compliance.’’ In sum,

Congress’ repeated emphasis on

providing reliable and timely

compliance information is inconsistent

with the notion that only data from

infrequently performed reference tests is

relevant to compliance certifications

and enforcement actions.

5. Commenters’ Attempts To Narrow the

Scope of Sections 113(e) and 113(a) Are

Unpersuasive

Several industry commenters have

claimed that the legislative history of

the 1990 CAA Amendments shows that

section 113(e)(1) does not provide

authority for today’s final action.

Additionally, these commenters have

asserted that the section’s legislative

history upon which EPA has relied is

ambiguous.

In the October, 1993, proposal, EPA

cited to the Senate Report’s discussion

of Section 113(e)(1). The Senate Report

stated:

This title of the bill enhances the ability of

the Environmental Protection Agency * * *

by making clear that the Agency may rely

upon any credible evidence of violations in

pursuing alleged violations.

Senate Report at 358, Reprint at 3741.

The Report further explained:

[T]he amendment clarifies that courts may

consider any evidence of violation or

compliance admissible under the Federal

Rules of Evidence, and that they are not

limited to consideration of evidence that is

based solely on the applicable test method in

the State implementation [plan] or

regulation. For example, courts may consider

evidence from continuous emission

monitoring systems, expert testimony, and

bypassing and control equipment

malfunctions, even if these are not the

applicable test methods. Thus, this

amendment overrules the ruling in United

States v. Kaiser Steel Corp., No. 82–2623

(C.D. Cal. January 17, 1984) to the extent that
8322 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

the court in that case excluded the

consideration of such evidence.

Senate Report at 366, Reprint at 3749.

Finally, the Report notes that data from

enhanced monitoring and compliance

certifications ‘‘will facilitate

enforcement, due in part to the fact that

such data and certifications can be used

as evidence.’’ Senate Report at 368,

Reprint at 3751.

The commenters, in turn, rely on the

views of Senator Chafee regarding S.

1630, inserted into the Congressional

Record at the time the legislation was

introduced. Senator Chafee stated with

regard to Section 113(e)(1):

Subsection 113(e) also clarifies and

confirms that once EPA establishes evidence

of a violation using a formal test method,

EPA can use other credible evidence to prove

additional violations, or that violation has

continued.

135 Cong. Rec. S 9650, 9655 (August 3,

1989).

EPA believes that the best reading of

the legislative history still supports its

interpretation of Section 113(e)(1). First,

there is no ambiguity in the Senate

Report, the language of which

unreservedly supports enforcement

actions brought on the basis of nonreference test data. Second, EPA does

not believe that Senator Chafee’s floor

statement outweighs the clear statement

in the Senate Report. The Senate Report

is a more authoritative reflection of

congressional intent than a floor

statement produced at the beginning of

the legislative process.

Various commenters also objected to

EPA’s reliance on Section 113(a) as a

basis for today’s action. One commenter

argued that Section 113(a) does not

preempt regulatorily specified reference

test methods. Several commenters

asserted that EPA’s construction of

Section 113(a) would render

superfluous the new language in Section

113(e)(1) concerning credible evidence.

These commenters claim that, under

EPA’s interpretation of Section 113(a),

Congress could have ‘‘fixed’’ the Kaiser

Steel decision simply by clarifying the

scope of EPA’s authority under Section

113(a).

These various commenters have

misunderstood EPA’s interpretation of

Section 113(a). EPA has not asserted

that Section 113(a) preempts reference

test methods. Rather, EPA believes that

Section 113(a) provides authority to

amend current regulations to make clear

that data from reference test methods

are not the exclusive means of

establishing noncompliance or

compliance in enforcement actions.

Given this interpretation of Section

113(a), Congress’s passage of Section

113(e)(1) cannot be described as

superfluous—particularly in light of the

decision in Kaiser Steel.

6. EPA Can Promulgate the Credible

Evidence Revisions Without Reproposal

Several commenters have argued that

finalization of the proposed changes in

Parts 51, 52, 60 and 61 without first

reproposing those changes violates the

Administrative Procedure Act (APA),

the CAA, and due process. The

commenters’ main argument is based on

EPA’s presumed change in course on

implementing the requirement in

Section 114(a)(3) concerning enhanced

monitoring and compliance

certification. As noted above, the

changes to Parts 51, 52, 60 and 61 were

proposed in the same rulemaking that

proposed an enhanced monitoring and

compliance certification program. Since

that proposal, EPA has re-evaluated its

approach to enhanced monitoring and

has made publicly available and has

sought comment on a revised

approach—the CAM approach—for

satisfying the same statutory goals as the

original enhanced monitoring proposal.

Some commenters contend that

switching to CAM will fundamentally

change their view of the proposed

changes to Parts 51, 52, 60 and 61

because those proposed changes were

evaluated only in terms of how they

would be implemented under the

October, 1993, proposal on enhanced

monitoring. Until CAM is formally

proposed, these commenters assert, they

cannot give meaningful comments on

the credible evidence revisions. Further,

the commenters argue that the proposed

revisions provided insufficient notice

and opportunity to comment because

EPA has not adequately defined the

term ‘‘credible evidence.’’

EPA believes today’s rule has no

procedural infirmities. EPA is today

finalizing the enforcement-related

portions of the proposal it made in 1993

with only minor changes.

The commenters’ claim that they

cannot meaningfully comment on

credible evidence revisions prior to

proposal of the CAM approach is not

well-taken for two reasons. First, EPA

does not believe that any knowledge of

the draft CAM approach is necessary to

comment on today’s rulemaking. In

today’s final rule, EPA has removed any

presumptions regarding the credibility

of any specific data. If and when the

draft CAM approach is finally adopted,

CAM data will be treated under today’s

rule like any other potential source of

compliance information. Thus,

knowledge of the draft CAM approach is

not critical to commenting on this

rulemaking. In any event, the nature of

the draft CAM approach has been

generally available in some detail since

September, 1995—well before EPA

renewed its request for comment on

today’s rulemaking. Further, EPA has

sought and received additional

comment on the enforcement

consequences of the draft CAM

approach by distribution of a revision of

the CAM approach in August, 1996. The

revised approach specifically discussed

the relationship of the draft CAM

approach and today’s action.

Second, the October, 1993, proposed

rulemaking gave interested parties

sufficient notice of the issues raised by

the proposed changes to Parts 51, 52, 60

and 61. The Agency made clear that

these revisions were designed to remove

any potential ambiguity regarding the

use of enhanced monitoring data in

compliance certifications, and to clarify

that any credible evidence of a violation

of an emission standard was admissible

to prove (or disprove) such a violation.

See 58 FR 54677. To clarify that these

credible evidence revisions extended

beyond the data gathered under an

enhanced monitoring program, EPA

gave two specific examples of evidence

collected outside the enhanced

monitoring program that under the

revised regulations could be used to

prove a violation. See 58 FR 54676–

54677. Thus, the October, 1993,

proposal clearly put interested parties

on notice that the credible evidence

revisions were not merely an adjunct to

the enhanced monitoring program. In

fact, industry commenters on the

October, 1993, proposal clearly

understood the central issue posed by

the proposed credible evidence changes,

and they commented on it extensively.

Today’s final action promulgates

revisions to existing regulations, and are

not contingent upon future

promulgation of the CAM approach or

any other form of enhanced monitoring

requirement.

Neither is this rulemaking

procedurally deficient for not providing

an express regulatory definition of the

term ‘‘credible evidence’’—a term which

Congress itself inserted, without

definition, into the Act. The issues of

credibility, admissibility and weight of

evidence have been exhaustively

addressed by federal and state court

evidentiary rules regarding evidence,

and the thousands of cases decided

under them. Today’s final action defers

to those regulations and makes clear

that there are no bars in regulations

under the CAA which prevent the use

of evidence or information other than

reference test methods in compliance

certifications and enforcement actions.

Of course, in judicial enforcement
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8323

proceedings, what evidence is credible

and admissible will be determined by

the court taking into account how the

evidence was gathered and the specifics

of the emission standard and any

associated reference method.

Finally, EPA believes that it has taken

extensive steps, detailed in Section I.C.

above, to ensure that the concerns of

affected parties were fully aired. None

of the additional public outreach actions

that EPA undertook in 1996 were

required by the APA or the CAA;

instead, EPA undertook them

voluntarily to ensure full input by

interested parties regarding the credible

evidence rules.

D. Stringency

Industry commenters have presented

several arguments in support of their

position that this rulemaking requires

sources to be in continuous compliance

and thus would effectively increase the

stringency of underlying requirements,

including SIP limits and standards

established by EPA under the NSPS and

NESHAP programs.

EPA believes that industry’s

arguments on this point are

fundamentally wrong. It is not EPA’s

intent that these rules should increase

the stringency of any applicable

requirement. These rules do not do so

because they maintain the focus of the

compliance determination on whether

or not the appropriate reference test

would have shown a violation.

The commenters’ arguments regarding

increased stringency are as follows:

applicable requirements are

accompanied by specified reference

tests. Any departure from past practice

regarding the use of these tests,

including the use of other credible

information to directly assess

compliance, particularly on a more

frequent basis, will inevitably change

the results of an inquiry into the

compliance status of any source

compared to exclusive reliance on the

infrequent performance of the reference

tests. Therefore, industry argues, using

credible evidence would change the

underlying applicable requirements—

usually in a manner that makes them

more stringent—without going through

the necessary rulemaking procedures.

Industry’s argument hinges on the

premise that adoption of an emission

standard that includes a particular form

of reference test—one that is not

required to be performed continuously

as a matter of course—limits the

compliance obligation. The scope of the

compliance obligation is not at issue in

this rulemaking. The scope of the

compliance obligation prescribed by any

particular standard shall be based on the

emission standard and not this

rulemaking. However, to fully respond

to industry comments, and to give

notice of the position EPA will take in

future enforcement proceedings, EPA

believes it is necessary to address in

some detail the nature of the

compliance obligation under emission

standards with particular emphasis on

the compliance obligation as it pertains

to emission standards which have a

reference test method that is not

required to be performed continuously.

While the bulk of the commenters’

concerns were expressed with respect to

NSPS, the same concerns also apply in

most cases to NESHAPs and SIPs.

Likewise, EPA’s responses focus on

NSPS, but are generally applicable to

other emissions limits as well.

1. Emissions Limits Require Continuous

Compliance (Consistent With Any

Averaging Times) Except During Periods

Where Compliance Is Specifically

Excused

To resolve commenters’ claims of

increased stringency, the nature of the

compliance obligation facing owners

and operators of sources of air pollution

under the Act must be addressed. Under

the CAA, its regulations, and the case

law, a source’s compliance with

emission limitations must be

continuous (consistent with any

averaging times) except where a

particular emission standard

specifically provides for periods of

noncompliance.

The Statute. The Clean Air Act

defines the terms ‘‘emission limitation’’

and ‘‘emission standard’’ as meaning ‘‘a

requirement established by the State or

the Administrator which limits the

quantity, rate, or concentration of

emissions of air pollutants on a

continuous basis * * *.’’ CAA section

302(k) (emphasis added). In accordance

with this clear statutory statement, the

Act authorizes penalties for multiple

days of violation should a source fail to

meet its continuing obligation. See also

CAA sections 113(e)(2) (providing that

‘‘a penalty may be assessed for each day

of violation,’’ and establishing a

presumption of continuing violation if

certain conditions are met) and

113(e)(1).

CAA Regulations. The Act’s general

requirement of continuous compliance

is mirrored in the NSPS regulations,

which generally require that sources

comply with established emission limits

except during certain defined time

periods. NSPS provisions typically

specify that compliance with stated

limits is required ‘‘on and after the

date’’ of an initial performance test

conducted in accordance with 40 CFR

60.8. See, e.g., 40 CFR 60.502. The need

for continuous compliance is also

discussed in the preambles to numerous

NSPS, including many older ones. For

example, in proposing standards for

glass manufacturing plants (Subpart

CC), EPA stressed the need for effective

monitoring to assure that affected

facilities are ‘‘continuing to maintain

the emission reduction observed during

the performance test.’’ 48 FR 50670,

50675 (1983). EPA has also made this

point clear in publicly-available

guidance memoranda. See Detailed

Response Document at Section 4.

In addition to requirements for

continuous compliance, NSPS

regulations also typically contain

specifically excused periods of

noncompliance. These periods confirm

that compliance is required at other

times. They also confirm the basic

reasonableness of this compliance

scheme—that is, sources must generally

comply continuously with their

numerical emission limits, but not

during periods of specifically excused

noncompliance, and only in accordance

with any specified averaging periods.

For example, for many standards,

compliance is not required during

periods of startup, shutdown or

malfunction. This exception is

contained in the NSPS general

provisions and in individual standards.

See 40 CFR 60.8(c); see also, e.g., 40

CFR 60.46a.

Case Law. In various judicial

decisions, courts have approved of the

basic NSPS regulatory scheme of

continuous compliance accompanied by

limited, specified exceptions for

noncompliance. The courts have stated

that the specified exceptions are needed

because sources must comply at all

other times. See, e.g., Portland Cement,

486 F.2d at 399 (court noted EPA’s thenproposed ‘‘startup, shutdown and

malfunction’’ compliance exclusion

regulation with approval, suggested that

it was a ‘‘limited safety valve’’ and

stated that it imparts a construction of

‘‘reasonableness’’ to the standards as a

whole and adopts a more flexible

system of regulation that can be had by

a system devoid of ‘‘give’’; (Essex

Chemical Corp. v. Ruckelshaus, 486

F.2d. 427, 433 (D.C. Cir. 1973), cert.

denied, 416 U.S. 969 (1974) (in a

challenge to sulfuric acid plant and

coal-fired steam generator NSPS

standards, the court again noted with

approval the proposed start-up,

shutdown and malfunction exception

and remanded the rule stating that

‘‘such variant provisions appear

necessary to preserve the reasonableness

of the standards as a whole and that the

record does not support the ‘‘never to be
8324 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

exceeded’’ standard currently in force’’)

(emphasis added); and Bunker Hill Co.

v. EPA, 572 F.2d 1286, 1301–02 (9th Cir.

1977) (in challenge to SIP sulfur dioxide

standard, court observed that EPA

regulations required that the standard be

met ‘‘all of the time,’’ and thus EPA

must typically promulgate upset

provisions to excuse noncompliance

beyond the source’s control). Similarly,

the proposition that compliance must be

continuous is reflected in numerous

judicial decisions involving challenges

to various NSPS rulemakings. In these

cases, both the D.C. Circuit Court and

industry petitioners have emphasized

that for an emission standard to be

achievable it must be able to be

continuously complied with over wide

operating ranges at varied facilities. See,

e.g., Portland Cement, Essex Chemical,

National Lime, and Sierra Club v.

Costle, 657 F.2d 298 (D.C. Cir. 1981). In

National Lime, for example, the lime

industry’s trade association itself

complained that the data underlying the

promulgated numerical emission

standards were insufficient to show that

the standards were ‘‘in fact achievable

on a continuous basis.’’ 627 F.2d at 430.

In holding that EPA had not adequately

demonstrated the achievability of the

standards for the industry as a whole,

the court explained that ‘‘to be

achievable, we think a uniform standard

must be capable of being met under

most adverse conditions that can

reasonably be expected to recur . . . .’’

Id. at 431. In Sierra Club v. Costle,

various electric utility companies

challenged a particulate standard on the

basis that ‘‘the data reflect only short

term performance while the standard

requires long term continuous

compliance.’’ 657 F.2d at 377 (emphasis

added). This challenge was rejected by

the court based on data showing that

certain sources had ‘‘consistently

complied with the standard.’’ Id. at 382.

2. Commenters’ Advocacy of

Noncontinuous Compliance Would

Lead to Numerous Anomalies

Some industry commenters have

argued that numerous emissions

limitations do not require continuous

compliance or, alternatively, that

‘‘continuous’’ does not have the

straightforward meaning suggested

above. The commenters’ argument

centers on NSPS standards issued under

CAA section 111. In the commenters’

view, many such standards do not

contemplate that facilities will operate

in compliance on a continuous basis

with stated emissions limits, but rather

require only an initial demonstration of

compliance with stated limits upon

start-up or shortly thereafter. After an

initial performance test, continuous

compliance is required only with

respect to operation and maintenance

‘‘in a manner consistent with good air

pollution control practice’’ as specified

in 40 CFR 60.11(d). As to numerical

emissions limits, commenters suggest

that these must be met only on those

infrequent occasions that a subsequent

performance test is conducted. So long

as any such performance test is passed,

the source is in ‘‘continuous’’

compliance with numerical emissions

limits without regard to whether its

emissions in fact exceeded the

numerical limit during the time between

the tests, no matter how long that may

be.

EPA rejects this view of the nature of

the obligation to comply with NSPS and

other emission limits under the CAA.

See Detailed Response Document. EPA

and the courts have long held that

emission limits must be complied with

continuously, consistent with any

associated averaging periods, except

where a particular limit provides

otherwise. Adopting the commenters’

view of compliance would lead to

numerous anomalies.

In the April 2, 1996, public meeting

and in follow-up written comments,

several commenters argued that many

reference test methods were selected

specifically because they would only be

performed infrequently—for example,

on a yearly basis. These once a year tests

would be proper for their associated

emission standards, which in the

commenters’ view were intended to be

complied with only 95% of the time.

Specifically, performing a reference test

once a year would yield ‘‘acceptable’’

compliance results, because on average

a source would be found out of

compliance only 5% of the time—that

is, in one in twenty tests, or once every

twenty years. According to these

commenters, testing for compliance

more frequently would be unfair,

because it would increase the likelihood

that the source would be found out of

compliance during periods where the

standard itself contemplated

noncompliance. In order to avoid being

found in noncompliance, sources would

have to continuously stay below their

emission limits—which in these

commenters’ view would effectively

increase the stringency of the emission

standard.

EPA disagrees with the commenters’

notion that sources must meet their

legal numerical air emission limits only

seldomly. Further, EPA rejects as

inconsistent with the Act and its

underlying purposes the notion that

sources can somehow be in routine

‘‘compliance’’ without staying within

these limits on an ongoing basis. The

fundamental goal of the CAA and the

emission standards established under it,

is to achieve clean air. Moreover, many

emission standards, such as hazardous

air pollutant standards under Section

112 and emission standards in State

Implementation Plans designed to

implement national ambient air quality

standards, have a direct relationship to

the protection of human health. Routine

compliance with numerical emission

standards is critical to achieving this

goal. The commenters’ view that such

compliance is somehow not required

would completely undercut these public

health and safety goals.

If the commenters’ view was correct,

any EPA or state targeting of a specific

source by requiring the source to

perform more frequent reference tests

would be unfair and presumably illegal,

because any such increased frequency

in reference testing would destroy the

delicate balance of frequent

noncompliance and infrequent testing

that the commenters claim is

contemplated by the rules. Under this

view, EPA and states might not be able

to require an apparently violating source

to conduct a previously unscheduled

reference test, because it would

improperly raise the source’s chances of

being found in noncompliance and

thereby ‘‘increase the stringency of the

underlying standards.’’

The commenters’’ argument is also

inconsistent with the language,

structure, and purpose of the CAA. For

example, if the frequency of testing

must be limited to meet the intent of the

emission limits, to be fair to all sources

EPA’s regulations should have required

that the tests be performed only at

infrequent intervals. EPA’s rules contain

no such restrictions; rather, CAA section

114(a)(1)(D) grants EPA broad discretion

to order reference tests whenever the

Administrator deems it appropriate.

Moreover, commenters’’ argument is

inconsistent with CAA section 113(e)(1),

which even on its narrowest reading

(note that EPA’s reading is considerably

broader) specifically provides for use of

non-reference test data to prove

continuing additional days of violation

after an initial violation is established

by reference test data, and by CAA

section 113(e)(2), which establishes a

presumption of continuing violation

after notice of the violation has been

given to the source, provided that EPA

can make a prima facie showing that

‘‘the conduct or events giving rise to the

violation are likely to have continued or

recurred past the date of notice.’’ This

presumption continues until the

violator ‘‘establishes that continuous

compliance has been achieved.’’
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8325

Likewise, sections 114(a)(3) and 504(a)-

(c) regarding enhanced monitoring and

certification as to whether compliance is

continuous or intermittent, and prompt

reporting of deviations, are simply

inconsistent with a regulatory regime

that would require only occasional

demonstrations of compliance with

emission limits. Taken together, these

provisions, represent a fundamental

statutory rejection of the commenters’

argument. See Detailed Response

Document, Section 4, which discusses

other reasons why these comments are

without merit.

3. Comments Regarding Continuous

Compliance Are Not Directed at Today’s

Action, but Rather at Underlying

Emission Standards

Industry commenters have argued that

the quality and quantity of the data used

in establishing emissions limitations,

such as those under the NSPS and

NESHAP programs, reflect a conscious

decision by EPA that compliance with

such standards would need to be

demonstrated only periodically. It

follows that requiring continuous

compliance with stated limits at this

juncture would effectively increase the

stringency of the standards. As

discussed above, EPA believes that the

commenters’ general arguments strain

common sense. Commenters have

pointed to various NSPS standards to

support their views, but EPA finds these

examples unpersuasive.

In particular, commenters have

pointed to the NSPS for kraft pulp mills,

40 CFR Part 60, Subpart BB, and for

steam electric generators constructed

between 1971 and 1978, Subpart D, as

reflecting a general acknowledgment by

EPA that national standards need not be

complied with at all times. EPA believes

that, to the contrary, Subparts BB and D

and other cases demonstrate that where

EPA intended to allow affected sources

to exceed stated emissions limits, the

standards in question expressly so

provide. It is true that in the

development of some NSPS and

NESHAP standards, EPA was concerned

with the limited number and

distribution of test runs and the

inherent variability in levels of

emissions from even well-controlled

facilities. Where appropriate, EPA

addressed those concerns by adjusting

the numerical value of the standard,

providing excess emissions allowances

and provisions for noncompliance

during certain upset conditions, or

through changes in averaging times.

With other standards, EPA did not

provide for any departure from the

general requirement that compliance

must be continuous. Examples of all

these approaches, and specific

responses to comments regarding

Subparts D and BB, are provided in the

Detailed Response Document.

The commenters’ assertions that

sources cannot comply on a continuous

basis are really directed not to the

propriety of today’s rules, but rather to

the adequacy of the underlying NSPS

and other emission standards that are

not at issue in this rulemaking. To the

extent there is any documentation that

a well-run facility cannot comply

consistently with underlying national

emission standards, or applicable SIP

requirements, such documentation

would be relevant only to those existing

standards, not to today’s rule. EPA notes

that despite several requests to

commenters to identify any standards

that cannot be complied with on a

regular basis, no specific information

has been provided to this rulemaking

docket that demonstrates that well

operated and maintained facilities

employing pollution control

technologies of the types upon which

the underlying emission standards were

based cannot comply with those

standards on a continuing basis. The

most that was submitted was a

statistical re-analysis of the data relied

upon by EPA in promulgating several

emission standards and a one page

graph purporting to show that an

industrial boiler could not comply with

the NOX emission limit at low levels.

The agency has considered this

comment concerning the Subpart D NOX

standard carefully, as it does not intend

to impose requirements that are

impossible for well-designed sources to

meet, but believes that this concern is

largely theoretical. The information

provided by the commenter to EPA was

vague and did not prove that the

undisclosed source could not comply

with the emission standard. Further, if

a standard was impossible to achieve

under some circumstance, EPA and

citizens are not likely to bring

enforcement cases in such instances. In

reviewing CAA enforcement actions the

agency has been unable to identify any

case where either the agency or a citizen

sought to enforce a standard that was

impossible to achieve. The agency was

also unable to identify any case in

which a defendant established that

compliance was not possible at the time

of the alleged violation. This appears to

be the case even in those states and

localities that have had ‘‘credible

evidence’’ rules for years.

Additionally, should it be determined

that a standard could not be met during

some relatively infrequent or

inconsequential period of source

activity, the potential for significant

adverse impact on that source is remote.

The agency has previously expressed its

policy that, generally, judicial

enforcement is not the appropriate

vehicle to redress sporadic, infrequent

violations with no environmental

consequence. Further, it is unlikely that

a citizen could prevail in enforcing a

theoretically impossible standard since

Courts will not issue an injunction

where there is nothing to be done.

Similarly, where one cannot establish

that a source failed to act in a manner

required by law a significant penalty

will not be imposed by the courts. The

agency is not aware of any situation in

which it has filed, and one should not

anticipate large numbers of citizen suits

being filed, where there is nothing the

source could have done or could do to

achieve a greater degree of compliance.

Moreover, the courts today have

additional tools, including fee awards

and sanctions available under the

Federal Rules of Civil Procedure and

other statutes to address meritless suits.

In further response to these industry

comments, EPA has included in the

record a 1993 study conducted by EPA

Region V that shows that almost all

(95%) of sources with sulfur dioxide

CEMs were meeting their federal and

state sulfur dioxide emission limits

approximately 97% of the time, with

excess emission periods totaling only

3%. See Region V Study, Figure 2.

Because this 3% figure included excess

emissions recorded during periods in

which compliance is specifically not

required, such as startup and shutdown,

the percentage of operating time in

noncompliance with the standard is

even smaller and may mean that most

sources are in compliance all the time.

EPA Region V sources with continuous

opacity monitors showed similar

results: the average source’s percentage

of opacity exceedances was less than

2%, with 95% of sources at or below

approximately 4%. See Study, Figure 1.

As with the sulfur dioxide data, opacity

exceedances during periods of startup,

shutdown and other excused periods

were not excluded. Accordingly, the

percentage of actual noncompliance

with opacity limits was even smaller.

Note that these figures are for the

average (50th percentile) and worst

(95th percentile) facilities. The best run

facilities have fewer excess emissions

reports.

Additional CEM data from EPA

Region V that focused specifically on

exceedances from NSPS Subpart D SO2

emission standards shows similar

results. This data shows that Subpart D

sources report few or no excess SO2

emissions. Approximately two-thirds of

the sources report no excess emissions
8326 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

at all, during any three month reporting

period. Further, since 1990, the vast

majority of sources (95%) have reported

total excess emissions averaging less

than 2.5% of operating time; since 1993,

less than 1.7%. Since these figures

include all excess emission periods,

including periods that are probably

excused, the actual SO2 exceedance

rates were even lower.

These data show that there are not

‘‘fundamental flaws’’ in the subject

standards such that the standard cannot

be met. Indeed, the data demonstrate

that most sources do comply all or

nearly all of the time.

If the regulated community believes

that a standard cannot be met across

some meaningful range of normal

operating conditions, or if specific

exemptions beyond those currently

provided are proper, we believe the

appropriate action is for the affected

industry to file a petition for

amendment of the standard at issue or

propose more specific permit conditions

so that the matter can be fully assessed

and addressed through the regulatory

process. However, the information

submitted by the commenters does not

show that there currently exists a

significant ‘‘impossibility’’ issue that is

so widespread as to outweigh the

benefits of the proposed rule.

4. Enforcement Using Continuous

Monitoring Data Does Not Increase the

Stringency of Applicable Requirements

Industry commenters have argued that

the stringency of emission standards

will be increased if enforceable data is

obtained more frequently than has been

ordinarily obtained in the past through

reference testing. Further, the

commenters argue that direct

enforceability of this data would

contradict EPA’s stated positions in

adopting standards under the NSPS and

NESHAP programs because EPA

intended that continuous monitoring

would only show compliance with good

operation and maintenance procedures,

i.e., general duty requirements, and

would not be otherwise used in

enforcement. (See, e.g., 38 FR 10820

(1973) (preamble to proposed startup,

shutdown and malfunction regulation);

43 FR 7571 (1978) (preamble to final

kraft pulp mill standards).

Because the NSPS and NESHAP

emission standards must be met

continuously, consistent with any

averaging times and except during

periods where compliance is

specifically excused, any more frequent

or continuous monitoring of the

standards and any enforcement based

on violations uncovered thereby have

no effect on the stringency of the

standards. To take a simple analogy,

allowing the use of radar guns or

increasing the number of police

checking for speeding may raise the

chance that a speeder will be detected,

but this does not alter the legal

stringency of a posted speed limit.

In some early NSPS, the agency

required the installation of what were

styled ‘‘indicator monitors’’ and

provided policy guidance that such

monitoring data would not be used as

the sole basis of enforcement actions

absent further rulemaking. 38 FR 10820.

To the extent that the CAA

Amendments of 1990 did not supersede

this policy statement, today’s action is

that future rulemaking. These policy

statements, like today’s rulemaking,

pertain only to the kinds of evidence

EPA uses to prove violations. The policy

change that was contemplated in our

1993 proposal and 1996 memorandum

are supported by technological advances

in the accuracy and reliability of

continuous emission monitors,

deficiencies in EPA’s previous practices

identified by GAO and others, and the

language and intent of the Act and the

1990 CAA Amendments.

EPA’s past statements regarding

limitations on the use of data derived

from continuous monitoring methods

for purposes of enforcing standards

were motivated in part by concerns over

the cost and availability of such

methods and their ability to accurately

determine compliance. See, e.g.,

National Lime, 627 F.2d at 450

(responding to petitioners’ argument

that there was no adequately

demonstrated technology for monitoring

opacity, EPA stated that the continuous

monitoring data would not be used to

determine compliance with the opacity

standard but ‘‘to keep a check on the

operation and maintenance of the

control equipment,’’ and that the

monitors were reliable enough to

perform this limited function). For

example, in the 1973 startup, shutdown

and malfunction regulation proposal,

EPA noted that while continuous

monitoring data would not, at that time,

be used to determine compliance as a

general matter, such data could be used

if ‘‘approved as [an] equivalent or

alternative method for performance

testing.’’ 38 FR 10820. Indeed, the NSPS

general provisions have long provided

that in lieu of performance tests using

reference methods, a source could

demonstrate compliance using an

approved equivalent or alternative

method, and that EPA can waive

reference tests where the source has

otherwise satisfactorily demonstrated

compliance. See 40 CFR 60.8(b).

Since the 1970s, the availability, cost

and accuracy of methods that enable

determinations of compliance on a

continuous basis has improved

markedly. See, e.g., 1990 GAO report at

19, 22–23 (1986 and 1988 EPA studies

showed CEM data highly reliable);

Continuous Emission Monitoring, 1993,

Jahake, Thomas Publishing Co. For

these reasons, EPA believes it is

appropriate as a technical matter to

allow information derived from these

methods to be used in compliance

certifications and enforcement actions.

In fact, more recent national standards

issued by EPA provide for determining

and enforcing compliance directly by

use of continuous monitoring data.

5. Sources Must Comply Both With

Good Operation and Maintenance

Requirements and With Emission Limits

Industry commenters have claimed

that as to the NSPS program, the only

goal of the program was to insure that

best demonstrated technology was

employed, such that once an initial

reference test demonstrated that

compliance with the standards could be

achieved, it need not be demonstrated

thereafter, and that an affected source’s

only ongoing obligation was its ‘‘general

duty’’ to employ good operation and

maintenance practices to minimize

emissions in accordance with 40 CFR

60.11(d).

EPA agrees that proper operation and

maintenance of an emissions unit and

any associated pollution controls in

accordance with 40 CFR 60.11(d) is vital

to complying with emission standards.

However, while it is true that sources

have a continuing duty to employ good

operations and maintenance practices,

this duty does not substitute for the

sources’ obligation to comply with its

emission limits. The two obligations,

while related, are separate requirements

in the NSPS regulations and in legal

effect.

EPA has made these points plain as

far back as 1973 in the proposed NSPS

startup, shutdown and malfunction

rulemaking:

It is anticipated that the initial

performance test and subsequent

performance tests will ensure that equipment

is installed which will permit the standards

to be attained and that such equipment is not

allowed to deteriorate to the point where the

standards are no longer maintained. In

addition, the proposed regulation requires

that the plant operator use maintenance and

operating procedures designed to minimize

emissions in excess of the standard.

38 FR 10820 (1973) (emphasis added).

This preamble text clearly states both

that proper equipment maintenance is

vital to remaining within an emission
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8327

standard (otherwise equipment would

deteriorate to the point where standards

were not met) and that the general

operation and maintenance obligation is

a separate regulatory requirement.

Additional discussion of the distinction

between the emission limits and good

operating practice requirements can be

in the Detailed Response Document.

These statements make it clear that good

operating practices requirements are

separate and distinct from the need to

continuously comply with emissions

limits.

E. SIP Call

In the October, 1993, proposal, EPA

announced that it planned to call for

States to amend their applicable

implementation plans to ensure that

owners or operators may use enhanced

monitoring (or other monitoring

approved for the source pursuant to part

70) for compliance certification

purposes, and that data from this

monitoring, along with any other

credible evidence, may be used as

evidence of a violation of an applicable

plan. 58 FR 54660. In December, 1993,

and February, 1994, the Office of Air

and Radiation’s Stationary Source

Compliance Division, the division then

responsible for writing and

implementing the enhanced monitoring

rules, issued memoranda to EPA’s

Regional offices instructing them to

conduct the SIP call. As of September,

1996, fifteen states and local air

pollution control districts, together with

the Commonwealth of Puerto Rico, had

responded to the call and submitted SIP

amendments for EPA approval. Kansas,

Iowa, Nebraska, North Dakota, Georgia

and Puerto Rico had received approval;

the other states and districts’ revisions

were pending.

For substantially the same reasons

that allow EPA to go forward with

today’s final rule, EPA has the authority

to initiate and continue this SIP call.

EPA’s decision to forego the enhanced

monitoring approach in favor of the

CAM proposal has no effect on the basic

goals of the SIP call, which are to clarify

that non-reference test data can be used

in enforcement actions, and to remove

any potential ambiguity regarding this

data’s use for Title V compliance

certifications.

Today’s action ensures that the

evidentiary rules for CAA violations are

consistent in all fifty states. EPA has

surveyed those states that have

responded to the SIP call and has

determined that the credible evidence

changes have not created the difficulties

forecast by the commenters.

IV. Administrative Requirements

A. Docket

Today’s final rulemaking action is

subject to Section 307(d) of the Act.

Accordingly, EPA has established a

docket (No. A–91–52), which consists of

an organized and complete file of all

information submitted to, or otherwise

considered by, EPA in the development

of today’s action and the CAM

approach. The docket includes all

memoranda and studies cited by EPA in

this preamble. The principal purposes

of the docket are: (1) to allow interested

parties a means to identify and locate

documents so that they can effectively

participate in the rulemaking process,

and (2) to serve as the record in case of

judicial review. The docket is available

for public inspection at EPA’s Air

Docket, which is listed under the

ADDRESSES section of this document.

B. Office of Management and Budget

(OMB) Review

Today’s rulemaking is not a

‘‘significant regulatory action’’ because

the revisions make only evidentiary

changes and do not impose any

additional implementation costs on

regulated sources. Nevertheless, EPA

submitted this final rule to OMB for

review. Changes made in response to

OMB suggestions and recommendations

will be documented in the public

record.

C. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (UMRA),

Public Law 104–4, EPA generally must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in expenditure by State,

local, or tribal governments in the

aggregate, or by the private sector, of

$100 million or more. Before

promulgating a rule for which such a

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 costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Section 203 requires the

Agency to establish a plan for obtaining

input from and informing, educating,

and advising any small governments

that may be significantly or uniquely

affected by the rule.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

tribal governments, in the aggregate, or

the private sector in any one year.

Today’s rulemaking makes only

evidentiary changes and does not

impose any additional costs on

regulated sources or State, local, or

tribal governments. For the same reason,

these evidentiary changes will not

significantly or uniquely affect small

governments. Accordingly, this

rulemaking is not subject to the

requirements of sections 202, 203, and

205 of the UMRA.

D. Regulatory Flexibility Act

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this final rule. EPA has also determined

that this rule will not have a significant

economic impact on a substantial

number of small entities. As explained

above, this rulemaking does not impose

any additional implementation costs on

small or large entities.

E. Paperwork Reduction Act

The information collection

requirements for the proposed enhanced

monitoring rule were previously

submitted for approval to OMB under

the Paperwork Reduction Act (PRA), 44

U.S.C. 3501 et seq. In contrast, today’s

rule does not contain any information

collection requirements subject to OMB

review under the PRA.

F. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) of the

Small Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104–121,

110 Stat. 847), EPA submitted a report

containing this rule and other required

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

House of Representatives and the

Controller General of the General

Accounting Office prior to publication

of this rule in today’s Federal Register.

For the same reasons that this

rulemaking is not a ‘‘significant

regulatory action’’ under Executive

Order 12866, this rule is not a ‘‘major

rule’’ as defined by 5 U.S.C. 804(2).

List of Subjects

40 CFR Part 51

Environmental protection, Air

pollution control.

40 CFR Part 52

Air pollution control.

40 CFR Part 60

Air pollution control.

40 CFR Part 61

Air pollution control.
8328 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

Dated: February 13, 1997.

Carol M. Browner,

Administrator, U.S. Environmental Protection

Agency.

For the reasons set out in the

preamble, 40 CFR Chapter I is amended

as follows:

PART 51—REQUIREMENTS FOR

PREPARATION, ADOPTION, AND

SUBMITTAL OF IMPLEMENTATION

PLANS

1. The authority citation for part 51 is

revised to read as follows:

Authority: 42 U.S.C. 7401, 7411, 7412,

7413, 7414, 7470–7479, 7501–7508, 7601,

and 7602.

2. Section 51.212 is amended by

revising paragraph (c) to read as follows:

§ 51.212 Testing, inspection, enforcement,

and complaints.

* * * * *

(c) Enforceable test methods for each

emission limit specified in the plan. For

the purpose of submitting compliance

certifications or establishing whether or

not a person has violated or is in

violation of any standard in this part,

the plan must not preclude the use,

including the exclusive use, of any

credible evidence or information,

relevant to whether a source would have

been in compliance with applicable

requirements if the appropriate

performance or compliance test or

procedure had been performed. As an

enforceable method, States may use:

(1) Any of the appropriate methods in

appendix M to this part, Recommended

Test Methods for State Implementation

Plans; or

(2) An alternative method following

review and approval of that method by

the Administrator; or

(3) Any appropriate method in

appendix A to 40 CFR part 60.

PART 52—APPROVAL AND

PROMULGATION OF

IMPLEMENTATION PLANS

1. The authority citation for part 52 is

revised to read as follows:

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

2. Section 52.12 is amended by

revising paragraph (c) to read as follows:

§ 52.12 Source surveillance.

* * * * *

(c) For purposes of Federal

enforcement, the following test

procedures and methods shall be used,

provided that for the purpose of

establishing whether or not a person has

violated or is in violation of any

provision of the plan, nothing in this

part shall preclude the use, including

the exclusive use, of any credible

evidence or information, relevant to

whether a source would have been in

compliance with applicable

requirements if the appropriate

performance or compliance test

procedures or methods had been

performed:

(1) Sources subject to plan provisions

which do not specify a test procedure

and sources subject to provisions

promulgated by the Administrator will

be tested by means of the appropriate

procedures and methods prescribed in

part 60 of this chapter unless otherwise

specified in this part.

(2) Sources subject to approved

provisions of a plan wherein a test

procedure is specified will be tested by

the specified procedure.

3. Subpart A is amended by adding a

new § 52.33 to read as follows:

§ 52.33 Compliance certifications.

(a) For the purpose of submitting

compliance certifications, nothing in

this part or in a plan promulgated by the

Administrator shall preclude the use,

including the exclusive use, of any

credible evidence or information,

relevant to whether a source would have

been in compliance with applicable

requirements if the appropriate

performance or compliance test had

been performed.

(b) For all federal implementation

plans, paragraph (a) of this section is

incorporated into the plan.

PART 60—STANDARDS OF

PERFORMANCE FOR NEW

STATIONARY SOURCES

1. The authority citation for part 60 is

revised to read as follows:

Authority: 42 U.S.C. 7401, 7411, 7413,

7414, 7416, 7601 and 7602.

2. Section 60.11 is amended by

revising paragraphs (a) and (f) and by

adding paragraph (g) to read as follows:

§ 60.11 Compliance with standards and

maintenance requirements.

(a) Compliance with standards in this

part, other than opacity standards, shall

be determined in accordance with

performance tests established by § 60.8,

unless otherwise specified in the

applicable standard.

* * * * *

(f) Special provisions set forth under

an applicable subpart shall supersede

any conflicting provisions in paragraphs

(a) through (e) of this section.

(g) For the purpose of submitting

compliance certifications or establishing

whether or not a person has violated or

is in violation of any standard in this

part, nothing in this part shall preclude

the use, including the exclusive use, of

any credible evidence or information,

relevant to whether a source would have

been in compliance with applicable

requirements if the appropriate

performance or compliance test or

procedure had been performed.

PART 61—NATIONAL EMISSION

STANDARDS FOR HAZARDOUS AIR

POLLUTANTS

1. The authority citation for part 61 is

revised to read as follows:

Authority: 42 U.S.C. 7401, 7412, 7413,

7414, 7416, 7601 and 7602.

2. Section 61.12 is amended by

revising paragraph (a) and adding

paragraph (e) to read as follows:

§ 61.12 Compliance with standards and

maintenance requirements.

(a) Compliance with numerical

emission limits shall be determined in

accordance with emission tests

established in § 61.13 or as otherwise

specified in an individual subpart.

* * * * *

(e) For the purpose of submitting

compliance certifications or establishing

whether or not a person has violated or

is in violation of any standard in this

part, nothing in this part shall preclude

the use, including the exclusive use, of

any credible evidence or information,

relevant to whether a source would have

been in compliance with applicable

requirements if the appropriate

performance or compliance test had

been performed.

[FR Doc. 97–4196 Filed 2–21– 97; 8:45 am]

BILLING CODE 6560–50–P