54900 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 64, 70, and 71

[IL–64–2–5807; FRL–5908–6]

RIN 2060–AD18

Compliance Assurance Monitoring

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; Final rule revisions.

SUMMARY: Pursuant to requirements

concerning enhanced monitoring and

compliance certification under the

Clean Air Act (the Act), EPA is

promulgating new regulations and

revised regulations to implement

compliance assurance monitoring

(CAM) for major stationary sources of

air pollution that are required to obtain

operating permits under title V of the

Act. Subject to certain exemptions, the

new regulations require owners or

operators of such sources to conduct

monitoring that satisfies particular

criteria established in the rule to

provide a reasonable assurance of

compliance with applicable

requirements under the Act. Monitoring

will focus on emissions units that rely

on pollution control device equipment

to achieve compliance with applicable

standards. The regulations also provide

procedures for coordinating these new

requirements with EPA’s operating

permits program regulations. Revisions

to the operating permits program

regulations clarify the relationship

between the 64 requirements and

periodic monitoring and compliance

certification requirements. The

rulemaking is estimated to improve

compliance with existing regulations

which will potentially reduce the need

for further regulation to achieve clean

air goals at a cost significantly less than

that of the 1993 proposed rule.

DATES: The effective date of this rule is

November 21, 1997.

ADDRESSES: Docket. Supporting

information used in developing the

regulations is contained in Docket No.

A–91–52. This docket is available for

public inspection and copying between

8:00 a.m. and 5:30 p.m. Monday through

Friday, excluding government holidays,

and is located at: EPA Air Docket (LE–

131), Room M–1500, Waterside Mall,

401 M Street SW, Washington, DC

20460. A reasonable fee may be charged

for copying.

FOR FURTHER INFORMATION CONTACT:

Peter Westlin, U.S. Environmental

Protection Agency, Office of Air Quality

Planning and Standards, at (919) 541–

1058.

SUPPLEMENTARY INFORMATION: The

contents of the preamble are listed in

the following outline:

I. Background and Summary of the

Rulemaking

A. Statutory Authority

B. Rulemaking History

C. Overview of the CAM Approach

D. Benefits of a CAM Approach and Potential

Control Costs

E. The Relationship of Part 64 to Credible

Evidence and Enforcement Issues

II. Detailed Discussion of Regulatory

Provisions

A. Section 64.1—Definitions

B. Section 64.2—Applicability

C. Section 64.3—Monitoring Design Criteria

D. Section 64.4—Submittal Requirements

E. Section 64.5—Deadlines for Submittals

F. Section 64.6—Approval of Monitoring

G. Section 64.7—Operation of Approved

Monitoring

H. Section 64.8—Quality Improvement Plans

(QIPs)

I. Section 64.9—Reporting and

Recordkeeping Provisions

J. Section 64.10—Savings Provisions

K. Revisions to 40 CFR Part 70 and Part 71

III. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Unfunded Mandates Act

D. Paperwork Reduction Act

E. Regulatory Flexibility Act

F. Submission to Congress and the General

Accounting Office

The first section of this preamble

provides an introduction to the

principles underlying EPA’s CAM

approach, the benefits of the part 64

rulemaking, and background on the

statutory provisions and key issues

involved with developing the rule. This

section also summarizes the public’s

participation in the development of the

rulemaking. The second section of the

preamble presents a more detailed

summary of the regulations. This

section includes a description of the

provisions and the basic purpose of

each provision. This section also

describes the Agency’s response to the

comments received on the original

proposal, as supplemented by

additional comments during subsequent

periods in which public input was

requested and obtained. The preamble

describes how the final rule has been

changed from the proposal in response

to the input received. The final section

of the preamble addresses

administrative requirements for Federal

regulatory actions.

The preamble includes many citations

which refer the reader to more detailed

discussions of a topic or to the origin of

certain requirements. These citation

sections generally will not be followed

by their source, such as ‘‘of this

preamble’’ or ‘‘of the Act.’’ Rather, the

reader can recognize the origins of the

sections by their nature: sections of the

preamble begin with a Roman numeral;

sections of the regulations in 40 CFR

part 64 range from §§ 64.1 to 64.11;

sections of the regulations in 40 CFR

part 70 range from §§ 70.1 to 70.11;

sections of other existing EPA

regulations are preceded by 40 CFR; and

sections of the Act are referenced by a

three-digit number, such as 114 or 504.

This preamble often refers to ‘‘State’’

or ‘‘permitting authority.’’ The reader

should assume that where the preamble

refers to a ‘‘State’’, such term also

includes local air pollution agencies,

Indian tribes, and territories of the

United States to the extent they are or

will be the permitting authority for their

area, or have been or will be delegated

permitting responsibilities under the

Act. In addition, the term ‘‘permitting

authority’’ would also include EPA to

the extent EPA is the permitting

authority of record.

Finally, this preamble often refers to

40 CFR part 70, the regulations

promulgated July 21, 1992,

implementing the operating permits

program under title V of the Act (57 FR

32250). The EPA has proposed revisions

to those regulations on August 29, 1994

(59 FR 44460), and August 31, 1995 (60

FR 45530). Those regulations, including

the proposed revisions, provide

requirements applicable to federallyapproved, State-administered operating

permits programs. Where a State fails to

submit an approvable program or to

adequately administer and enforce an

approved program, EPA will have to

promulgate, administer and enforce a

Federal program for title V permits in

that State. The reader should assume

that where the preamble refers to 40

CFR part 70, such term may also refer

to an EPA-administered (Federal)

operating permits program, which EPA

has promulgated under 40 CFR part 71

(see July 1, 1996, 61 FR 34202).

I. Background and Summary of the

Rulemaking

A. Statutory Authority

The part 64 regulations respond to the

statutory mandate in the Clean Air Act

Amendments of 1990. The 1990

Amendments contain several provisions

directing the Agency to require owners

or operators to conduct monitoring and

to make compliance certifications.

These provisions are set forth in both

title V (operating permits provisions)

and title VII (enforcement provisions) of

the 1990 Amendments.

Title V directs the Agency to

implement monitoring and compliance

certification requirements through the
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54901

operating permits program. Section

503(b)(2) requires at least annual

certifications of compliance with permit

requirements and prompt reporting of

deviations from permit requirements.

Section 504(a) mandates that owners or

operators submit to the permitting

authority the results of any required

monitoring at least every six months.

This section also requires permits to

include ‘‘such other conditions as are

necessary to assure compliance with

applicable requirements’’ of the Act.

Section 504(b) of the Act also allows the

Agency to prescribe, by rule, methods

and procedures for determining

compliance, and states that continuous

emission monitoring systems need not

be required if other methods or

procedures provide sufficiently reliable

and timely information for determining

compliance. Under section 504(c), each

operating permit must ‘‘set forth

inspection, entry, monitoring,

compliance certification, and reporting

requirements to assure compliance with

the permit terms and conditions.’’

Title VII of the 1990 Amendments

added a new section 114(a)(3) that

requires EPA to promulgate rules on

enhanced monitoring and compliance

certifications. This paragraph provides,

in part:

The Administrator shall in the case of any

person which is the owner or operator of a

major stationary source, and may, in the case

of any other person, require enhanced

monitoring and submission of compliance

certifications. Compliance certifications shall

include (A) identification of the applicable

requirement that is the basis of the

certification, (B) the method used for

determining the compliance status of the

source, (C) the compliance status, (D)

whether compliance is continuous or

intermittent, (E) such other facts as the

Administrator may require.

The 1990 Amendments also revised

section 114(a)(1) of the Act to provide

additional authority concerning

monitoring, reporting, and

recordkeeping requirements. As

amended, that section provides the

Administrator with the authority to

require any owner or operator of a

source:

On a one-time, periodic or continuous

basis to—

(A) Establish and maintain such records;

(B) Make such reports;

(C) Install, use, and maintain such

monitoring equipment;

(D) Sample such emissions (in accordance

with such procedures or methods, at such

locations, at such intervals, during such

periods and in such manner as the

Administrator shall prescribe);

(E) Keep records on control equipment

parameters, production variables, or other

indirect data when direct monitoring of

emissions is impractical;

(F) Submit compliance certifications in

accordance with section 114(a)(3); and

(G) Provide such other information as the

Administrator may reasonably require.

B. Rulemaking History

The EPA has acted to implement the

statutory provisions discussed above in

two separate ways. First, the part 70

operating permits program includes

basic monitoring and compliance

certification requirements. Section

70.6(a)(3)(i) requires that permits

include all existing monitoring and

testing requirements set forth in

applicable requirements. In many cases,

the monitoring requirements in the

underlying regulations will suffice for

assessing compliance. However, if

particular applicable requirements do

not include periodic testing or

monitoring, then § 70.6(a)(3)(i)(B)

requires the permit to include ‘‘periodic

monitoring’’ to fill that gap. Section

70.6(c)(5)(iii) requires the submittal of

compliance certifications no less

frequently than annually, and generally

incorporates the language on

compliance certifications included in

section 114(a)(3) of the Act.

To implement the statutory

requirement for enhanced monitoring,

EPA has developed through this

rulemaking a general monitoring rule in

40 CFR part 64 to be implemented

through the part 70 operating permits

program. The Agency first provided

notice in the Federal Register of an

opportunity for public review and

comment on this concept in August

1991 (see 56 FR 37700). A public

information document was made

available, a public meeting was held,

and written comments were received

after the meeting. A subsequent public

meeting was held in August 1993, and

a proposed rule was published on

October 22, 1993 (58 FR 54648). This

proposed rule is referred to as the ‘‘1993

EM proposal’’ throughout the remainder

of this preamble.

The Agency received approximately

2000 comment letters during the public

comment period. These letters

contained several thousand individual

comments on more than 500 major and

minor issue topics. Because of some of

the complex and difficult issues raised,

the Agency held a series of stakeholder

meetings in the fall of 1994, released

draft sections of a possible final rule,

and then officially reopened the public

comment period on specific issues on

December 28, 1994 (59 FR 66844). An

additional stakeholder meeting was held

near the close of that reopened comment

period, and more than 200 additional

comment letters were received.

In April 1995, EPA decided to shift

the emphasis of part 64. The Agency

issued a press release in early April

1995 that indicated EPA’s intent to hold

a public meeting to discuss the potential

changes to the proposed enhanced

monitoring rule, and then contacted

various stakeholder groups so that they

would have the opportunity to

participate. A formal notice of the

meeting was also published in the

Federal Register on May 26, 1995 (60

FR 27943). Approximately 200 people

attended the meeting on May 31, 1995,

and many additional people attended

the follow-up meetings held in June

1995 in Washington, DC, Cincinnati,

Austin, and Portland, Oregon. The

Agency then drafted a preamble and

rule for public discussion and comment,

and held another public meeting in

September 1995. (See 60 FR 48679,

September 20, 1995, for the formal

Federal Register notice of that meeting

and request for comment.)

Approximately 150 people attended that

meeting, and EPA received more than

60 written comment letters on the draft

rule package. The Agency subsequently

issued a draft final part 64 and

discussion document in August 1996

(see 61 FR 41991, August 13, 1996) and

held another public meeting in

September 1996. The 1995 and 1996

draft rules are referred to as the ‘‘1995

part 64 Draft’’ and ‘‘1996 part 64 Draft,’’

respectively, throughout the remainder

of this preamble. Approximately 200

people attended and 120 written

comment letters were submitted during

the comment period. The Agency also

has held numerous informal stakeholder

discussions with interested parties to

discuss the CAM approach, and

received additional written comments

during the period since April 1995. (See

the items in sections II–D, II–E, IV–D,

IV–E, IV–F, VI–D, VI–E, and VI–F of

Docket A–91–52 for a complete record

of written comments submitted by

stakeholders, and discussions between

EPA and interested parties concerning

the rulemaking.)

This preamble addresses the changes

to part 64 that have been made in

response to the significant public

comment received during the course of

the rulemaking. The focus is on

documenting the changes made in

response to the comments received on

the formal 1993 proposed rule, as well

as specific changes made in response to

comments received on the draft rule

materials made available in 1995 and

1996. The Agency has also prepared a

detailed, three–part Response to

Comments Document which includes a

response to all material comments on
54902 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

the rule. See Docket Items A–91–52–

VII–C–1 through VII–C–3.

C. Overview of the CAM Approach

1. General Approach

The CAM approach as defined in part

64 is intended to address the

requirement in title VII of the 1990

Amendments that EPA promulgate

enhanced monitoring and compliance

certification requirements for major

sources, and the related requirement in

title V that operating permits include

monitoring, compliance certification,

reporting and recordkeeping provisions

to assure compliance. The EPA has long

recognized that obtaining ongoing

compliance is a two-step process. First,

the Agency must determine whether

properly designed control measures—

including, as applicable, control

devices, process modifications,

operating limitations or other control

measures—are installed or otherwise

employed, and that those control

measures are proven to be capable of

achieving applicable requirements. In

the past, this step has been addressed

through new source review permitting,

initial stack testing, compliance

inspections and similar mechanisms.

The title V permit application and

review process, including the

applicant’s initial compliance

certification and compliance plan

obligations, will add another tool for

assuring that source owners or operators

have adopted the proper control

measures for achieving compliance. The

second step is to monitor to determine

that the source continues to meet

applicable requirements. An important

aspect of this second step is to assure

that the control measures, once installed

or otherwise employed, are properly

operated and maintained so that they do

not deteriorate to the point where the

owner or operator fails to remain in

compliance with applicable

requirements. The Agency believes that

monitoring, reporting, recordkeeping

and ongoing or recurring compliance

certification requirements under title VII

should be designed so that owners or

operators carry out this second step in

assuring ongoing compliance.

There are two basic approaches to

assuring that control measures taken by

the owner or operator to achieve

compliance are properly operated and

maintained so that the owner or

operator continues to achieve

compliance with applicable

requirements. One method is to

establish monitoring as a method for

directly determining continuous

compliance with applicable

requirements. The Agency has adopted

this approach in some rulemakings and,

as discussed below, is committed to

following this approach whenever

appropriate in future rulemakings.

Another approach is to establish

monitoring for the purpose of: (1)

Documenting continued operation of the

control measures within ranges of

specified indicators of performance

(such as emissions, control device

parameters and process parameters) that

are designed to provide a reasonable

assurance of compliance with

applicable requirements; (2) indicating

any excursions from these ranges; and

(3) responding to the data so that

excursions are corrected. The part 64

published today adopts this second

approach as an appropriate approach to

enhancing monitoring in the context of

title V permitting for significant

emission units that use control devices

to achieve compliance with emission

limits. For units not covered by part 64,

a similar but less detailed approach is

provided for in the monitoring and

related recordkeeping and reporting

provisions of part 70 (see § 70.6(a)(3)).

The rule defines ‘‘control devices’’ to

mean equipment that removes

pollutants or transforms pollutants to

passive emissions (see § 64.1), as

opposed to other control measures, such

as process modifications, material

substitution, and other control options.

For significant units that use control

devices to achieve compliance, the

owner or operator will have to develop

and propose, through the part 70 permit

process, monitoring that meets specified

criteria for selecting appropriate

indicators of control performance,

establishing ranges for those indicators,

and for responding to any excursions

from those ranges. The final rule also

includes performance and operating

criteria that must be achieved, as well

as documentation requirements for the

monitoring proposed by the owner or

operator.

The final element of part 64 is the

concept of a quality improvement plan

(QIP). Under the final rule, a QIP may

be required where the owner or operator

has failed to satisfy the general duty to

properly operate and maintain an

emissions unit (including the applicable

control device) or the owner or operator

has evidence of a failure to comply with

an applicable requirement, as

determined through part 64 monitoring

data and/or other appropriate

information (such as inspections). The

rule allows for the permit to establish a

‘‘bright line’’ test for implementing a

QIP, but does not require such a test.

The QIP would include both an initial

‘‘problem investigation’’ phase and a

‘‘corrective action’’ phase. The rule

provides for the QIP mechanism so that

permitting authorities have a specific

regulatory tool to address situations in

which an owner or operator operates in

a manner that involves excursions

followed by ineffective actions to bring

the monitored indicators back into the

acceptable ranges established in the

permit. Thus, the QIP will help assure

that the owner or operator pays

attention to the data and, if necessary,

improves performance to the point

where ongoing compliance with

applicable requirements is reasonably

assured. See Section II.H. for further

discussion of QIP issues.

2. Implementation through Permits

a. Burdens to the Permitting Process.

Many commenters, including State and

local agencies, industry, and

environmental groups raised concerns

in their comments that the part 64

process of selecting the appropriate

monitoring for a particular source

would overburden the permitting

process and lead to poor

implementation. The Agency is very

sensitive to these concerns; however,

the Agency continues to believe that,

consistent with the preamble to the

1993 EM proposal, the permit

implementation approach provides the

greatest amount of flexibility to the

regulated community and States while

at the same time ensuring that enhanced

monitoring will be implemented for all

major sources in a reasonably

expeditious time frame. In addition, the

Agency has taken several significant

steps in the final rule to reduce the

potential burden to the permitting

process, including the actions discussed

below.

i. Applicability. The focus of

applicability on those pollutant-specific

emissions units that rely on control

devices to achieve compliance has

reduced the estimated number of units

that will be subject to part 64 and also

has reduced the variety of emissions

unit types that will be affected by part

64. This reduction in the volume and

breadth of units covered by part 64 will

reduce the overall burdens on the

permit process.

ii. Extended Implementation Period.

As discussed in Section II.E., the final

rule provides for a new extended

implementation schedule. Only those

units which are major units based on

their potential to emit will be subject to

part 64 requirements prior to the

renewal of an initial part 64 permit. In

addition, in many cases,

implementation will not be required for

these large units until permit renewal.

For the smaller units covered by part 64,

implementation will not occur until
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54903

permit renewal. This extended

implementation schedule will relieve

much of the burden on source owners

or operators to develop and prepare

proposed monitoring during the initial

part 70 permitting process and will

similarly relieve the burdens of the

approval process on permitting

authorities.

iii. Guidance Development Process.

The Agency is committed to developing

non-prescriptive examples of the types

of monitoring that can be used to satisfy

part 64 for various types of control

devices and emissions units. The

guidance development process will

provide an opportunity for source

owners or operators and other interested

parties to submit suggestions, review

drafts and generally clarify the part 64

requirements. The Agency emphasizes

that the development of example

monitoring approaches is intended to

assist both regulated industry and

permitting authorities to streamline

permit review in those instances where

a source owner or operator proposes

monitoring based on one of the

examples. These examples should not

be considered as an implied limitation

on the owner or operator’s ability to

propose a different approach that the

owner or operator can demonstrate

satisfies the part 64 requirements or on

the permitting authority’s authority to

require additional monitoring.

iv. General Clarifications. Finally, the

potential implementation burdens have

been reduced by adopting many general

clarifications in the final rule. For

instance, the final rule clearly states that

emissions units that are not subject to

applicable requirements are not

required to conduct part 64 monitoring.

A second example is the streamlined

performance and operating design

criteria in the final rule, which are

substantially less complex and

burdensome than the comparable

requirements in the appendices to the

1993 EM proposal.

b. Creation of New Substantive

Standards. Many commenters argued

that the requirements in part 64 were

inconsistent with EPA’s stated position

that the part 70 operating permits

program was intended solely to collect

existing requirements in one document,

without creating new substantive

obligations for source owners or

operators. The Agency disagrees with

these arguments. As mentioned in

section I.A., the part 64 regulations

respond to the statutory mandate in the

Clean Air Act Amendments of 1990 and

the part 70 regulations implement title

V of the Clean Air Act Amendments of

1990, which directs the Agency to

implement monitoring and compliance

certification requirements through the

operating permits program. The part 64

requirements are independently

applicable, substantive requirements

that an owner or operator must achieve.

The fundamental requirements of part

64 are to: (a) Monitor compliance in a

manner that is sufficient to yield data

that provide a reasonable assurance of

compliance and allow an owner or

operator to make an informed

certification of compliance; (b) take

necessary corrective actions in response

to the monitoring data; (c) report on the

results of such monitoring; and (d)

maintain records of such monitoring.

None of these fundamental obligations

under part 64 will be added as part of

a part 70 permit independently of part

64. What will be added as part of the

permit process are the particulars as to

how a specific source owner or operator

will satisfy these general part 64

requirements. This type of regulatory

structure is entirely consistent with the

purpose of a permit process which is to

specify how general obligations will be

achieved in particular circumstances.

c. Consistency of Implementation.

Implementation of part 64 through the

part 70 permits program means that part

64 will be implemented on a case-bycase basis. Many industry and State and

local agencies supported EPA’s proposal

to allow for a flexible implementation

approach that allows for adopting

monitoring that is most appropriate to a

particular emission unit’s

circumstances. However, many

industry, environmental and State and

local agency commenters also raised

concerns that the case-by-case

implementation process in part 64 may

not be implemented in a reasonably

consistent manner by different

permitting authorities.

The EPA acknowledges the potential

significance of these concerns; however,

EPA believes that they have been

overstated by the commenters. As

discussed in Section II. below, EPA has

taken steps to minimize potential

inconsistencies by simplifying and

clarifying the final rule. Also, EPA must

weigh these concerns against the

significant policy concerns that would

exist if the Agency attempted to develop

specific enhanced monitoring

requirements for each NSPS and

NESHAP standard, as well as the

burdens on States to revisit each SIP

regulation, as well as individual State

preconstruction and operating permits.

The administrative burdens associated

with that approach would severely

hinder the effective and timely

implementation of enhanced monitoring

for most sources for many years. In

addition, such an approach fails to

acknowledge the new benefits of the

operating permits program to tailor

general requirements in a manner that is

most appropriate to the circumstances at

a particular source. For these reasons,

EPA believes that the benefits of the

permit implementation approach far

outweigh the concerns over consistency

in implementation.

d. Programmatic Options. Some

stakeholders have suggested alternative

means of implementing part 64

requirements. One alternative suggested

was to allow a State the option of

implementing part 64 monitoring

requirements through programmatic

rule changes instead of implementing

CAM through source-specific part 64

requirements. One potential method for

allowing this option is to exempt from

part 64 monitoring any emissions units

for which a State has developed

requirements specifically designed to

satisfy part 64 in a rule that has been

submitted and approved as part of the

SIP. Another would be to delay

implementation of part 64 to provide an

opportunity for a State to devise a

competitive monitoring program for

submittal to and approval by EPA.

The final rule will allow states to

implement CAM through rulemaking

pertaining to categories of sources. The

EPA encourages States to consider

adding monitoring requirements to

existing and new rules that are

consistent with part 64 requirements. In

this manner, the burdens associated

with source-specific monitoring

development could be reduced. To

provide an incentive for this type of

rule, the final rule includes a provision

(see § 64.4(b)) that allows the owner or

operator to rely upon this type of

programmatic rule as the primary

documentation of the appropriateness of

its monitoring. This approach would

reduce the number of case-by-case

reviews necessary to implement part 64.

On the other hand, EPA does not

agree with commenters who suggest that

states that choose to use programmatic

rulemaking should be allowed to apply

different criteria in determining

monitoring and to have additional time

to implement such an approach. The

EPA believes monitoring decisions

should be made on the same basis

whether done on a programmatic or

case-by-case basis. Second, EPA

questions both the need for a substantial

delay for programmatic rulemaking and

whether the purported advantages of a

programmatic approach justify any

substantial delay. The final part 64 does

not include an option for permitting

authorities to delay implementation of

part 64 through use of a programmatic

approach.
54904 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

Because of the implementation

schedule for part 64 (see Section II.E.),

owners or operators will not have to

implement part 64 for many emissions

units until renewal of initial part 70

permits. These include both large units

that are at sources which have already

received or are in the process of

receiving part 70 permits, and smaller

units for which the rule explicitly

delays implementation until permit

renewal. This schedule provides

substantial time for States to adopt SIP

regulations, as discussed above, that are

consistent with part 64, especially for

smaller units that could most benefit

from generic monitoring requirements

that could be developed through

programmatic SIP rule changes.

3. Limited Purpose of Part 64

Part 64 is intended to provide a

reasonable means of supplementing

existing regulatory provisions that are

not consistent with the statutory

requirements of titles V and VII of the

1990 Amendments to the Act. The EPA

believes that the CAM approach is a

reasonable approach commensurate

with this role. The Agency does not

believe that existing monitoring

requirements that are more rigorous

than part 64 should be reduced or that

monitoring imposed in future regulatory

actions necessarily should be guided by

part 64.

If existing requirements are more

rigorous than part 64, those

requirements should continue to exist

unaffected by part 64. This point is

made explicitly in several instances in

the final rule. In addition, EPA is

committed to developing new emission

standards subsequent to the 1990

Amendments with methods specified

for directly determining continuous

compliance whenever possible, taking

into account technical and economic

feasibility, and other pertinent factors.

In recognition of this EPA commitment,

the rule exempts New Source

Performance Standards (NSPS) and

National Emission Standards for

Hazardous Air Pollutants (NESHAP)

rules that are proposed after the 1990

Amendments to the Act from part 64

requirements. The Agency believes that

States should approach their regulatory

actions from the same perspective and

thus the Agency does not believe that

part 64 will have a significant impact on

requirements imposed subsequent to the

1990 Amendments.

Comments on the 1996 part 64 Draft

received from environmental, public

health and labor organizations

emphasized the public’s right to

information about air pollution from

major stationary sources. These

commenters argued that the CAM

approach provides insufficient

information about actual emissions and

thus will frustrate the public’s right to

know about actual emissions from a

source. Their comments also asserted

that source owners should not be

allowed to use information gathered

under the CAM approach, including

information on pollution control

operations and practices, to certify

compliance with applicable standards.

The Agency responded to those

comments (see letter from Mary Nichols

to various environmental and other

organizations dated December 19, 1996,

docket item A–91–52–VI–C–18) and

summarizes its response here. The

Agency agrees with incorporating direct

emissions and compliance monitoring

where the technology is available and

feasible, and promoting public

disclosure of air pollution emissions

information. On the other hand, the

Agency does not believe that such a

broad, expensive, and technically

complex objective can be accomplished

through a single rulemaking at this time.

Not only would trying to impose such

monitoring requirements across the

board in the short term be technically

unrealistic, doing so would put in

jeopardy the possibility of advancing

monitoring of existing emissions

sources through part 70 operating

permits program already in progress.

The Agency notes that current

requirements for submission of emission

statements prepared by owners of

industrial air pollution sources

continues independent of part 64 (such

as statements required under section

182(a)(3) of the Act) and such

statements will be based on the most

currently available information,

including new monitoring data

produced under part 64.

As described above, the Agency

firmly believes that continued proper

operation and maintenance of process

operations and air pollution controls

demonstrated capable of achieving

applicable standards is vital to ongoing

compliance. By providing the necessary

data and requiring appropriate

corrective action, part 64 will result in

owners and operators being more

conscientious in the attention paid to

the operation and maintenance of air

pollution control equipment and

practices than has been the case in the

past. This approach has proven effective

in reducing air pollution emissions and

improving compliance performance in

the implementation of many existing

regulations with similar requirements.

See further discussion on the use of part

64 data for purposes of part 70

compliance certifications in Section

I.C.5., below.

4. Relationship to Part 70 Monitoring

Part 70 currently requires all title V

operating permits to include monitoring

to assure compliance with the permit.

This includes all existing monitoring

requirements as well as additional

monitoring (generally referred to as

‘‘periodic monitoring’’) if current

requirements fail to specify appropriate

monitoring. As noted in the 1993 EM

proposal, because part 64 contains

applicable monitoring requirements

sufficient to demonstrate compliance

with applicable emission limitations or

standards, the part 70 periodic

monitoring requirements will not apply

to the emissions units and applicable

requirements covered by part 64. This

conclusion is equally applicable under

the final part 64 rule. However, during

the course of the rulemaking, two other

issues have been raised that concern the

relationship of the final part 64 rule to

the existing part 70 periodic monitoring

requirements: (1) The extent to which

periodic monitoring should be relied on

as ‘‘enhanced monitoring’’ and (2)

timing concerns where periodic

monitoring may be required prior to

implementation of part 64.

With respect to relying on part 70

periodic monitoring as ‘‘enhanced

monitoring’’ for at least some units, EPA

suggested this option in both the 1993

EM proposal and the December 1994

notice reopening the comment period

on that proposal (see 58 FR 54648,

54653 and 59 FR 66844, 66849).

Industry commenters generally

supported this option; although, many

suggested that EPA rely completely on

periodic monitoring as ‘‘enhanced

monitoring.’’ Some environmental

groups, however, argued against this

option. They asserted further that EPA’s

part 64 applicability provisions would

not meet the statutory requirement that

all major stationary sources conduct

enhanced monitoring. The EPA

considered including in part 64

requirements analogous to the existing

part 70 provisions (see subpart C of part

64 in the 1996 part 64 Draft). This

approach would clearly indicate EPA’s

position that the part 70 monitoring

requirements including periodic

monitoring if necessary, constitute the

appropriate ‘‘enhanced monitoring’’ for

units not covered by part 64. However,

in the final rule, EPA has determined to

rely on the position originally discussed

in the 1993 EM proposal that existing

monitoring when supplemented as

necessary by periodic monitoring is

sufficiently enhanced for emissions

units not subject to part 64. The Agency
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54905

decided not to pursue the Subpart C

option included in the 1996 part 64

Draft based on the comments received

(see Section II.B., below) and also

because of concerns about disrupting

the ongoing implementation of part 70.

Because of the delays in finalizing

part 64 and the delayed implementation

schedule included in the final rule (see

Section II.E., below), many part 70

permits will address periodic

monitoring issues prior to

implementation of part 64. To address

concerns about the potential duplication

and disruption that this situation could

cause, EPA has taken certain steps.

First, the ‘‘Subpart C’’ option has been

rejected and the existing part 70

monitoring, including periodic

monitoring, requirements will continue

to apply. Because the majority of

emissions units do not use control

devices, this decision will result in part

64 creating no duplication or disruption

for the majority of emissions units. As

discussed in the Regulatory Impact

Analysis (RIA) for this rulemaking, EPA

estimates that the final part 64 rule will

affect less than 27,000 emissions units,

while an additional 54,000 units that

could have been affected by subpart C

will remain affected by part 70

monitoring requirements.

Second, for units with control

devices, EPA has adopted a phased

implementation schedule under which

part 64 will apply only to the largest

units prior to the first renewal of a part

70 permit. To the extent part 64 and

periodic monitoring may have some

overlap for these largest units, any

overlap should be minimal because

these units are most likely to have

existing monitoring that would make

the periodic monitoring provisions in

part 70 unnecessary. For the smaller

units that will not be required to

implement part 64 until part 70 permit

renewal, the periodic monitoring

provisions of part 70 may apply. While

there may be some concern that this will

result in installation of monitoring that

could later be found inappropriate for

part 64, EPA does not believe this

would generally be the case. In many

instances, such periodic monitoring

would likely serve as the basis, in whole

or in part, for compliance with part 64.

For instance, a source owner or operator

may conduct intermittent monitoring of

visible emissions or certain parameters

to satisfy part 70 periodic monitoring.

To the extent successful, the experience

with that monitoring could be used to

justify its use under part 64. At the least,

the experience gained under periodic

monitoring could be used to develop

data to support proposed part 64

monitoring at permit renewal. Such data

could be used, for example, to justify

appropriate indicator ranges, quality

assurance procedures, monitoring

frequency and similar part 64

requirements. Just as importantly, the

continued presence of part 70

monitoring requirements during the

initial permit term is essential to

provide the minimum level of assurance

that a source remains in compliance

with a part 70 permit as required under

title V of the Act. Thus, EPA rejects the

position suggested by some commenters

that it should immediately suspend the

part 70 periodic monitoring

requirements pending implementation

of part 64.

5. Relationship to part 70 Compliance

Certifications

In developing an implementation

approach in the 1993 EM proposal, EPA

indicated that owners or operators must

rely on methods for determining

continuous compliance to submit a

certification of whether compliance is

continuous or intermittent. Many

industry representatives and State and

local agencies objected to the burdens

associated with the 1993 proposal. A

large part of those burdens would have

occurred as a result of having to develop

monitoring that could produce data of

sufficient reliability to make

determinations of continuous

compliance with a degree of

representativeness, accuracy, precision,

and reliability equivalent to that

provided by conducting the test method

established for a particular requirement.

In response to those concerns, the

Agency opted to pursue the CAM

approach which provides a reasonable

assurance of compliance through

monitoring of control operations. The

EPA believes that the CAM approach

does enhance existing monitoring

requirements and provides sufficient

information for an owner or operator to

reach a conclusion about the

compliance status of the owner or

operator’s source that is adequate to

satisfy the compliance certification

obligations in the Act. Such monitoring

also provides data sufficient for EPA,

permitting authorities, and the public to

evaluate a source’s compliance and to

take appropriate action where potential

compliance problems are discovered.

The part 64 rulemaking also clarifies

the Agency’s interpretation of the

phrase ‘‘continuous or intermittent’’ as

used in section 114(a)(3) of the Act. The

1993 EM proposal interpreted the

requirement that source owners or

operators certify ‘‘whether compliance

is continuous or intermittent’’ to require

monitoring sufficient to determine if

compliance was continuous. (58 FR

54654, 54658) Thus the term

‘‘continuous’’ was read as meaning that

compliance was achieved during all

averaging periods for a standard and

‘‘intermittent’’ was read generally as

meaning that one or more deviations

occurred during the certification period.

(58 FR 54665). This proposed

interpretation was consistent with the

Agency’s position in the preamble to

proposed part 70 as well (see 56 FR

21737, May 10, 1991 (‘‘The compliance

certification must

document * * * whether compliance

was continuous or intermittent (i.e.,

whether there were periods of

noncompliance).’’).

The Agency reconsidered this

interpretation in reopening the public

comment period on the 1993 EM

proposal and noted that ‘‘intermittent’’

could mean either that noncompliance

had occurred or that the owner or

operator has data sufficient to certify

compliance only on an intermittent

basis. (See 59 FR 66848, col. 2 (‘‘nothing

in section 114(a)(3) dictates that all

source owners or operators must certify

to being in either continuous

compliance or else be considered in

noncompliance; source owners or

operators may also certify to being in

compliance as demonstrated on an

intermittent basis.’’)). The EPA believes

that the statutory interpretation

discussed in the preamble to the 1993

EM proposal and this alternative

interpretation are both reasonable, and

that EPA has discretion to clarify the

meaning of this statutory provision

given the ambiguity in the legislation.

As outlined below, today’s rulemaking

(see the revisions to § 70.6(c)(5)) is

derived from the interpretation

contained in the December 1994 notice

reopening the comment period on the

1993 EM proposal.

6. Consistency with Regulatory

Reinvention Efforts

The approach in this rule lays out

broad principles and performance

criteria for appropriate monitoring, but

does not mandate the use of a particular

technology. The proposal is intended to

reflect the principles articulated in

President Clinton’s and Vice President

Gore’s March 16, 1995 report,

‘‘Reinventing Environmental

Regulation.’’ That report established as

goals for environmental regulation

building partnerships between EPA and

State and local agencies, minimizing

costs, providing flexibility in

implementing programs, tailoring

solutions to the problem, and shifting

responsibilities to State and local

agencies. The Agency believes that part

64 meets the goals of the report.
54906 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

This approach also is consistent with

President Clinton’s regulatory reform

initiatives and EPA’s Common Sense

Initiative in that it focuses on steps to

prevent pollution rather than to impose

unnecessary command and control

regulations on regulated sources. The

approach is based on the assumption

that pollution control is an integral part

of doing business and that owners or

operators should pay attention to their

pollution control operations with the

same care they do their product

operations. The CAM approach

emphasizes the role of the owner or

operator in developing a plan to achieve

this goal for specific circumstances.

D. Benefits of a CAM Approach and

Potential Control Costs

The EPA believes that monitoring

under part 64 can in some situations,

reduce operating costs. For example,

monitoring data can be used to increase

combustion efficiency in an industrial

boiler or to increase capture and reuse

of solvents at a coating plant. A 1990

study by the General Accounting Office

entitled ‘‘Air Pollution: Improvements

Needed in Detecting and Preventing

Violations’’ (see docket item A–91–52–

VI–I–12) noted several instances in

which companies have achieved such

operating cost reductions. The CAM

approach also alerts owners or operators

that potential control device problems

may exist. The owner or operator can

use this information to target control

devices for routine maintenance and

repair, and reduce the potential for

costly breakdowns. While benefits may

occur to some facilities as the result of

better awareness of equipment

operation, changes in equipment

operation are not required by part 64.

Part 64 does not itself have emissions

reductions benefits, EPA does expect,

however, that some sources may have to

reduce emissions in order to comply

with their underlying emissions

standards in response to monitoring

under part 64. EPA expects that some

emissions reductions may result from

sources having to reduce emissions

overall, and/or to respond to periods of

excess emissions more quickly, thus

reducing their frequency and duration.

EPA has not estimated the emissions

reductions that may result from this;

EPA believes these reductions and any

associated health and welfare benefits

are not attributable to part 64—but to

the underlying emissions standards.

The Agency believes that there is

adequate evidence that monitoring

control performance will assure

continuing compliance with applicable

requirements. Studies conducted by the

Agency have shown that control device

operation and maintenance problems

are a significant factor in creating excess

emissions (see docket items II–A–22 and

VI–A–2). In addition, these studies have

documented that assumptions about

compliance status are often inaccurate

when detailed inspections of control

devices are conducted (see, for example,

docket item VI–A–2). Moreover,

information included in the Regulatory

Impact Analyses (RIA) documents that,

based on data sheets compiled for all

major sources by State agency

inspectors in fifteen States,

approximately 20 percent of all major

sources have significant compliance

problems and there is a significant

corollary between the adequacy of a

source’s operation and maintenance

procedures and compliance risk.

There will be real costs associated

with measures sources may take to

reduce emissions in order to comply

with their underlying emissions

standards in response to monitoring

under part 64. Costs as well as

emissions reductions benefits will result

from sources having to reduce emissions

overall, and/or to respond to periods of

excess emissions more quickly, thus

reducing their frequency and duration.

Such costs would be due to increase

expenditures for operation and

maintenance and capital equipment.

The EPA has not estimated the cost

associated with emissions reductions

that may result; EPA believes such costs

are not attributable to part 64—but to

the underlying emissions standard.

E. The Relationship of Part 64 to

Credible Evidence and Enforcement

Issues

1. General CAM Enforcement Policy

As a general matter, the Agency

expects that source owners or operators

will be in compliance with all

applicable emission requirements if

they conform to the requirements of part

64. Further, the Agency expects that

there will be relatively limited

information available to override the

information provided by the owner or

operator on an emissions unit’s

compliance status beyond that provided

through monitoring that satisfies part 64

or part 70. However, neither these

expectations nor complete compliance

with part 64 will prohibit the Agency

from undertaking enforcement

investigations when appropriate under

the circumstances, such as when

information indicates there are

conditions that may threaten or result in

harm to public health or the

environment, indicates a pattern of

noncompliance, indicates serious

misconduct, or presents other

circumstances warranting enforcement.

2. The Credible Evidence Revisions to

40 CFR parts 51, 52, 60, and 61 (‘‘The

CE Revisions’’)

See the CE Revisions as published in

the Federal Register on February 24,

1997 (62 FR 8314) for discussion of that

rulemaking history. During the many

public comment periods for the CE

Revisions and the CAM proposal, the

Agency received numerous comments

stating that the two rules are

inextricably connected, impact each

other, and should be proposed together

in order for meaningful public comment

from interested stakeholders. The

Agency reviewed these comments but

decided to proceed with the CE

rulemaking separately from this

rulemaking for several reasons. First, the

Agency believes that there was

sufficient opportunity for all interested

parties to comment on any perceived

relationship or any substantive issues

regarding the proposed credible

evidence revisions and the CAM

proposal before the promulgation of the

CE Revisions in February, 1997. The

Agency released a public draft of the

CAM approach in September, 1995, and

then conducted a public meeting in

April, 1996, on the credible evidence

revisions. The Agency also accepted

public comments on the credible

evidence rulemaking and the CAM

proposals between September, 1995,

and the promulgation of the CE

Revisions. Thus, all interested parties

had the opportunity to comment on the

two rulemakings and the Agency

received numerous comments on this

topic before the CE Revisions were

promulgated. In addition, there was also

ample opportunity for public comment

on any perceived relationship after

promulgation of the CE Revisions and

before the finalization of part 64. The

Agency released a public draft of the

CAM approach in August, 1996, and

held a public meeting regarding the

1996 part 64 Draft. The Agency also

reopened the comment period on part

64 on April 25, 1997, ( 62 FR 20147) to

allow for comments on the relationship

between part 64 and the CE Revisions.

See the Response to Comments

Document (Part III) at section 14 for the

Agency’s response to these comments.

Thus, all interested parties had the

opportunity to comment on the

relationship between part 64 and the CE

Revisions before each of these

rulemakings was promulgated.

Second, the Agency decided to

promulgate the CE Revisions separate

from part 64 because the two programs

are different in scope. The CE Revisions
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54907

are not limited to part 64 data or

information collected pursuant to a part

70 permit generally. Other types of CE

could include information from

monitoring that is not required by

regulation (such as monitoring

conducted pursuant to a consent

agreement or a specific section 114

request) or information from inspections

by the permitting authority. In addition,

the CE Revisions affect all sources

regulated by 40 CFR parts 51, 52, 60,

and 61, not just sources who will be

covered by part 64. Thus, although

sources covered by this rulemaking are

regulated under the provisions amended

by the CE Revisions, both the sources

covered by this rulemaking and the data

generated by this rulemaking are subsets

of the sources and potential credible

evidence addressed in the CE Revisions.

Therefore, it was appropriate for the

Agency to promulgate these two

rulemakings separately. See 63 FR 8314

for a discussion of the scope of the CE

Revisions.

Even though the CE Revisions and

part 64 rulemakings are distinct

regulatory actions, there are

complementary aspects to the two rules.

As noted above, consistent with the

existing provisions of part 70, the CE

revisions reiterate that data other than

compliance test data can be used as a

basis for title V compliance

certifications. Most importantly, the CE

rulemaking affects the potential

consequences of identifying deviations,

exceedances or excursions in a

compliance certification based on data,

such as part 64 data, that are from

sources other than the compliance or

reference test method. The CE revisions

clarify the authority to rely on these

data to prove that a source is in

compliance or that a violation has

occurred.

Finally, the CE Revisions and this

rulemaking did not need to be

promulgated together because these

regulations have different statutory

bases. The Agency promulgated the CE

Revisions based primarily on section

113(a) of the Act, which authorizes the

Agency to bring an administrative, civil

or criminal action ‘‘on the basis of any

information available to the

Administrator.’’ See 62 FR at 8320–23.

The part 64 regulations, however,

respond to the statutory mandates of the

CAA Amendments of 1990, including

but not limited to section 114(a)(3).

3. Potential Enforcement Consequences

Related to CAM and CE

As a general matter, the Agency notes

that it intends to apply its current

enforcement policies in instances where

the Agency believes, based on a review

of CAM data, that a source has violated

underlying emission limits. During the

public comment period, commenters

raised several issues about the

relationship between the proposed part

64 monitoring information, the CE

Revisions, and enforcement of

violations of the Act. The following

discussion generally addresses those

concerns. See section 14.2 (Part III) of

the Response to Comments Document

(A–91–53–VII–C–3) for responses to

specific issues raised.

First, these commenters suggested

that compliance with indicator ranges

under part 64 should act as a shield to

enforcement actions. The Agency

disagrees. Complete compliance with an

approved part 64 monitoring plan does

not shield a source from enforcement

actions for violations of applicable

requirements of the Act if other credible

evidence proves violations of applicable

emission limitations or standards. The

Agency expects that a unit that is

operating within appropriately

established indicator ranges as part of

approved monitoring will, in fact, be in

compliance with its applicable limits.

Part 64 does not prohibit the Agency,

however, from undertaking enforcement

where appropriate (such as cases where

the part 64 indicator ranges may have

been set improperly and other data such

as information collected during an

inspection provides clear evidence that

enforcement is warranted).

Similarly, several commenters stated

that if a source owner or operator

identified excursions or exceedances of

the applicable indicator ranges and

conducted a prompt correction, with or

without a QIP, then there should be a

shield from enforcement for any

potential violation of an underlying

emissions limitation. This is also

incorrect. If a source owner or operator

identifies one or more excursions or

exceedances of its indicator ranges

established under part 64, prompt

correction of the condition does not

establish a shield. At the same time, the

CAM excursions do not necessarily give

rise to liability under part 64 or the Act

(unless an excursion is specifically

made an enforceable permit term). The

Agency understands that many sources

operate well within permitted limits

over a range of process and pollution

control device operating parameters.

Depending on the nature of pollution

control devices installed and the

specific compliance strategy adopted by

the source or the permitting authority,

part 64 indicator ranges may be

established that generally represent

emission levels significantly below the

applicable underlying emission limit.

For this reason, and because the Agency

anticipates a wide variance in CAM

indicator range setting practices, the

Agency intends to draw no firm

inferences as to whether excursions

from CAM parameter levels warrant

enforcement of underlying emission

levels without further investigation into

the particular circumstances at the

source. Thus, although staying within

appropriately established indicator

ranges gives a reasonable assurance of

compliance, excursions from indicator

ranges do not necessarily indicate

noncompliance. The Agency may

investigate such excursions for possible

violations based on the general

enforcement criteria identified above. A

proper and prompt correction of the

problem causing the excursion or

exceedance, with or without a QIP, will

factor into the Agency’s decision on

whether to investigate a source for

potential violations but does not shield

the source from an enforcement action

by the Agency.

Second, several comments have stated

that the use of CAM monitoring data as

credible evidence to demonstrate the

existence of a violation would increase

the stringency of many standards.

Although it is correct that the Agency,

as well as states, public citizens, and

sources, could potentially use CAM

monitoring data as credible evidence of

either compliance or noncompliance

with an emission standard, the evidence

could only be used if, as stated in the

CE Revisions, the information is

relevant to whether the source would

have been in compliance with

applicable requirements if the

appropriate performance or compliance

test had been performed. The CE

Revisions and the use of CAM data as

potential credible evidence do not

change the stringency of any emission

standard for the reasons set forth in the

preamble to the CE Revisions. See 63 FR

8314.

Finally, it has been suggested during

the part 64 and credible evidence

rulemakings that a Title V permit may

be written to limit the types of evidence

used to prove violations of emissions

standards. As mentioned in the CE

Revisions, even if a Title V permit

specifies that certain monitoring, CAM

or other monitoring, be performed and

that this monitoring is the sole or

exclusive means of establishing

compliance or non-compliance, EPA

views such provisions as null and void.

Such an attempt to eliminate the

possible use of credible evidence other

than the monitoring specified in a Title

V permit is antithetical to the credible

evidence rule and to section 113(e)(1). If

such a provision is nonetheless

included in a permit, the permit should
54908 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

be vetoed to avoid any ambiguity. If the

provision is not vetoed, the provision is

without meaning, as it is ultra vires, that

is, beyond the authority of the permit

writer to limit what evidence may be

used to prove violations, just as if a

permit writer were to attempt to write

in a provision that a source may not be

assessed a penalty of $25,000 per day of

violation for each violation. Evidence

that is permitted by statute to be used

for enforcement purposes, fines that

may be levied, and any other statutory

provisions, may not be altered by a

permit.

II. Detailed Discussion of Regulatory

Provisions

A. Section 64.1—Definitions

Section 64.1 defines most of the key

terms and phrases used in part 64.

Certain definitions which were

contained in § 64.2 of the 1993 EM

proposal have been deleted from the

final rule, while other definitions from

the proposed rule have been

considerably revised. In addition, a

number of new definitions have been

added to the final rule. The Agency

believes these deletions, revisions, and

additions accomplish the following

goals: They reflect changes to the

objectives and substantive provisions of

part 64; they respond to concerns and

comments made about the definitions in

the 1993 EM proposal; and they bring

part 64 more closely into accord with

the regulatory language of part 70. The

final definitions also reflect changes

made in response to comments received

on the 1995 and 1996 part 64 Drafts.

These are discussed below.

1. Definitions Deleted from the Final

Rule

The revisions to the substantive

provisions of part 64 in the final rule

have necessitated the deletion of certain

definitions set forth in § 64.2 of the 1993

EM proposal. In some instances, these

definitions have been superseded by

new terminology relating to the same or

similar concepts. In other cases, the

deleted definitions related to matters

which are inapplicable to the final rule.

The eliminated definitions are as

follows:

a. Continuous Compliance and

Intermittent Compliance. The 1993 EM

proposal would have required the use of

data from an enhanced monitoring

protocol to determine and certify

whether an affected source or emissions

unit complied with applicable emission

limitations or standards and whether

such compliance was ‘‘continuous’’ or

‘‘intermittent.’’ Section 64.2 of the 1993

EM proposal defined the term

‘‘continuous compliance’’ as requiring

the attainment of quality-assured data

from an enhanced monitoring protocol

for all required periods, the

demonstration by such data that an

owner or operator has complied with

the applicable emission limitation or

standard during all monitored periods,

and a demonstration of compliance by

any other data collected for the purpose

of determining compliance during the

monitored periods if such other data

were collected. The 1993 EM proposal

stated that a source or emissions unit

was in ‘‘intermittent compliance’’ if,

during the reporting period, either the

data availability requirement was not

satisfied because insufficient data was

obtained from the enhanced monitoring

protocol, or the owner or operator

violated the applicable emission

limitation or standard because a

deviation occurred during a period for

which no federally-approved or

federally-promulgated excused period

applied.

Many commenters objected to these

definitions for various reasons,

including a contention that EPA had

merged the concept of achieving

continuous compliance with the

concept of demonstrating compliance.

The definitions of continuous

compliance and intermittent

compliance in the proposed rule were

also closely tied to the Agency’s

interpretation of section 114(a)(3) of the

Act under the 1993 EM proposal.

Section 114(a)(3) directs the

Administrator to require certification of

‘‘whether compliance is continuous or

intermittent.’’ Under the 1993 EM

proposal, this language was interpreted

as requiring a certification that

compliance was achieved during all

averaging periods for a standard, and

‘‘intermittent’’ meant that one or more

unexcused deviations occurred during

the certification period. This

interpretation was also the subject of

much public comment. As described in

greater detail above, the Agency has

responded to these comments by

adopting an alternative interpretation of

section 114(a)(3). The Agency has

therefore deleted the EM proposed

definitions of continuous and

intermittent compliance from the final

rule. (See Section II.K.2. for additional

discussion of the interpretation of

compliance certifications.)

b. Deviation. The proposed rule stated

that a ‘‘deviation’’ included any

condition determined by enhanced

monitoring or other collected data

which identifies that an emissions unit

has failed to meet an applicable

emission limitation or standard. This

definition included any conditions that

either violated an applicable emission

limitation or standard or would have

violated such limitation or standard but

for a federally-promulgated exemption.

A number of commenters raised

concerns about the proposed definition

of deviation. Some argued that the

proposed definition was too closely tied

to the violation of an emission

limitation or standard. These

commenters requested clarification that

a deviation is not necessarily a violation

of an emission limitation or standard.

Other commenters objected to portions

of the definition which would have

allowed a deviation to be based on ‘‘data

collected that can be used to certify

compliance,’’ such as the data obtained

through a voluntary audit. These

commenters argued that such a

definition created a disincentive for

owners and operators to engage in

certain types of self-monitoring.

The final rule does not refer to

‘‘deviations’’ in part 64 and thus does

not include a definition of ‘‘deviation.’’

The 1996 part 64 Draft did contain a

revised definition of ‘‘deviation’’ to be

included in the part 71 provisions

covering the federal operating permits

program. This definition would have

clarified that a deviation is not always

a violation and that types of events that

were to be considered deviations

included ‘‘exceedances’’ and

‘‘excursions’’ as defined under part 64.

The state operating permit programs

authorized by part 70 of this chapter

allow permitting authorities to define

the term ‘‘deviation’’ in the context of

their individual programs. The 1996

part 64 Draft did not include a

definition of ‘‘deviation’’ to be included

in part 70 because the Agency did not

want to restrict the power of permitting

authorities to define this term.

Public comments on the 1996 part 64

Draft pointed out that there are

permitting authorities which define a

‘‘deviation’’ as a violation of the

underlying emission limitation or

standard. The provisions in the 1996

part 64 Draft which stated that

exceedances and excursions are to be

considered deviations without

necessarily being violations arguably

conflict with those definitions of

‘‘deviation.’’ In response to these

concerns, the Agency has eliminated all

references to ‘‘deviations’’ from part 64.

c. Other Deleted Definitions. The

proposed rule contained a definition for

‘‘established monitoring.’’ This

definition applied to certain types of

monitoring methodologies which had

been demonstrated to be a feasible

means of assessing compliance with

emissions limitations or standards. The

concept of ‘‘established monitoring’’
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54909

was used in the monitoring selection

process under the 1993 EM proposal. As

discussed below in Section II.D., these

provisions have been eliminated in part

64. Because the concept of ‘‘established

monitoring’’ serves no function in the

final rule, this definition has been

deleted.

The proposed rule defined ‘‘fugitive

emissions’’ as those emissions which

could not reasonably pass through a

stack, chimney, vent, or other

functionally-equivalent opening. This

definition was necessary because

§ 64.4(d) of the proposed rule would

have established separate monitoring

protocol requirements for fugitive

emissions monitoring. As discussed

below in Section II.B., fugitive

emissions are not subject to any specific

part 64 monitoring requirements. The

Agency has therefore deleted this

definition from the final rule.

Section 64.4(c) of the 1993 EM

proposal established certain

requirements for owners or operators

who sought to use the monitoring of

process or control device parameters as

part of an enhanced monitoring

protocol. In certain instances, the

proposed rule required the

establishment of a ‘‘demonstrated

compliance parameter level’’ (DCPL) to

determine which levels of the parameter

being monitored correlated with a

demonstration of compliance with the

applicable emission limitation or

standard. Under the requirements in the

final rule, the Agency has modified its

approach to parameter monitoring (see

Section II.C. for a more detailed

discussion). Accordingly, the definition

of ‘‘demonstrated compliance parameter

level’’ or DCPL has been deleted from

the final rule.

Both the terms ‘‘enhanced

monitoring’’ and ‘‘enhanced monitoring

protocol’’ have been eliminated in the

final rule. The 1993 EM proposal

defined ‘‘enhanced monitoring’’ as the

methodology used by an owner or

operator to detect deviations with

sufficient representativeness, accuracy,

precision, reliability, frequency, and

timeliness in order to determine if

compliance is continuous during a

reporting period. An ‘‘enhanced

monitoring protocol’’ was defined as the

monitoring methodology and all

installation, equipment, performance,

operation, and quality assurance

requirements applicable to that

methodology. The final part 64

establishes monitoring performance

criteria in the body of the rule rather

than in a definition; thus, the

definitions of ‘‘enhanced monitoring’’

and ‘‘enhanced monitoring protocol’’

have been deleted. The 1996 part 64

Draft included a related concept, the

‘‘compliance assurance monitoring

(CAM) plan,’’ which distinguished

monitoring for units with control

devices subject to subpart B of that draft

rule and monitoring for other units

under subpart C of that draft rule.

Because the final rule does not include

subpart C, this term is not used in the

final rule.

‘‘Responsible official’’ was defined

under the 1993 EM proposal as having

the same meaning as provided under

§ 70.2. This term was used in § 64.5(c)

of the 1993 EM proposal, which

required that the personal certification

of a responsible official be included in

each enhanced monitoring report. In

response to a number of objections to

this requirement, the Agency has not

included a part 64 report signature

requirement in the final part 64 rule but

generally relies on part 70 reporting

procedures. Thus, there is no need to

define ‘‘responsible official’’ in part 64.

It should be noted that § 70.5(d) outlines

the responsible official’s duties with

respect to submitting reports, including

part 64 reports.

2. Revised Definitions

There are a number of definitions that

were in the 1993 EM proposal that have

been revised in the final rule. Some of

these revisions are relatively minor,

such as technical revisions designed to

reflect changes to the substantive

provisions of part 64 or to more closely

parallel the definitions found in part 70.

Other revisions are intended to address

more significant concerns with the

proposed definitions. The revised

definitions are as follows:

a. Emission Limitation or Standard

and Applicable Requirement. The 1993

EM proposal defined an ‘‘emission

limitation or standard’’ as any federally

enforceable emission limitation,

emission standard, standard of

performance or means of emission

limitation as defined under the Act.

This term is actually a hybrid of several

terms used under the Act. The proposed

definition stated that an emission

limitation or standard may be expressed

as a specific quantity, rate or

concentration of emissions; as the

relationship of controlled to

uncontrolled emissions (e.g., control

efficiency); as a work practice; as a

process or control device parameter; or

as another form of design, equipment,

operational, or operation and

maintenance requirement.

Section 64.2 of the 1993 EM proposal

also defined an ‘‘applicable emission

limitation or standard’’ as any emission

limitation or standard subject to the

requirements of part 64 including: (1)

An emission limitation or standard

applicable to a regulated hazardous air

pollutant under 40 CFR part 61; or (2)

an emission limitation or standard

applicable to a regulated air pollutant

other than a hazardous air pollutant

under section 112 of the Act, for which

the source is classified as a major

source.

The definition of ‘‘applicable

emission limitation or standard’’ was

closely tied to the applicability

provisions of the 1993 EM proposal. For

example, the separate treatment of

hazardous air pollutant emissions

limitations or standards in the

definition followed the proposed rule’s

separate applicability provisions for

hazardous air pollutants. Those

applicability provisions have been

significantly revised in part 64.

Commenters raised concerns that the

meaning of the term ‘‘applicable

emission limitation or standard’’ was

unclear. The Agency agrees that the

proposed definitions of ‘‘applicable

emission limitation or standard’’ and

‘‘emission limitation or standard’’ could

be confusing, especially when

interpreted in conjunction with the preexisting definition of ‘‘applicable

requirement’’ in part 70. The final rule

replaces the term ‘‘applicable emission

limitation or standard’’ with the term

‘‘applicable requirement.’’ Part 64 states

that ‘‘applicable requirement’’ shall

have the same meaning as provided

under part 70. The Agency made this

change in the final rule to avoid any

potential confusion and to bring part 64

into closer agreement with the

definitions of part 70.

Part 64 retains the basic definition of

‘‘emission limitation or standard’’ with

several revisions. Several commenters

requested clarification on the meaning

of ‘‘federally enforceable’’ in this

definition. The final rule eliminates the

phrase ‘‘federally enforceable’’ in the

definition and defines an emission

limitation or standard as ‘‘any

applicable requirement that constitutes

an emission limitation, emission

standard, standard of performance or

means of emission limitation * * *’’

This adjustment reflects the addition of

the term ‘‘applicable requirement’’ in

the final rule. The term ‘‘applicable

requirement’’ is used in part 70

permitting to refer to the standards,

requirements, terms, and conditions that

are contained in the part 70 permit as

federally-enforceable requirements.

Thus, the reference to ‘‘federally

enforceable’’ was eliminated because,

through the permitting process, all

‘‘applicable requirements’’ become

federally enforceable.
54910 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

Additional language in the part 64

definition of ‘‘emission limitation or

standard’’ clarifies that, for purposes of

part 64, the definition of ‘‘emission

limitation or standard’’ does not include

general operation requirements that an

owner or operator may be required to

meet, such as requirements to obtain a

permit, to operate and maintain sources

in accordance with good air pollution

control practices, to develop and

maintain a malfunction abatement plan,

or to conduct monitoring, submit

reports or keep records. As noted below

(see detailed discussion of § 64.2),

requirements of this type generally

apply to an entire facility. The Agency

has specifically excluded such

requirements so that otherwise

unregulated emissions units are not

inappropriately subject to part 64

monitoring requirements.

A number of commenters requested

that EPA further narrow the definition

of emission limitation or standard so

that it would not apply to work practice,

design or similar types of requirements.

The commenters argued that part 64

monitoring for these types of standards

did not make sense and would be

redundant. The Agency disagrees to the

extent that a control device is used to

achieve compliance with these types of

standards. As discussed in Section II.B.,

the final rule applies only to pollutantspecific emissions units which achieve

compliance by using a control device.

The monitoring is designed to document

that the control device is properly

operated and maintained. Many work

practice, design or similar standards

will not apply to these types of units

(i.e., with control devices), which

addresses many of the commenters’

concerns. For units that are subject to

such requirements and that do use a

control device (see, e.g., 40 CFR 60.692–

5, which imposes a ‘‘design’’ standard

that certain emissions be controlled by

a control device with 95 percent design

efficiency), the nature of the standard is

immaterial to the assessment of whether

the control device is properly operated

and maintained. The Agency notes that

in the example, the NSPS requires the

owner or operator to monitor the control

device to assure proper operation and

maintenance (see § 60.695). Part 64 will

act in a similar manner.

b. Part 70/Part 71 Permit. The term

‘‘permit’’ as defined in the 1993 EM

proposal meant any applicable permit

issued, renewed, amended, revised, or

modified under part C or D of title I of

the Act, or title V of the Act. Under the

1993 EM proposal, part 64 would have

been implemented through both the part

70 operating permits program and the

preconstruction permits programs

developed under parts C and D of title

I of the Act. Public commenters raised

a variety of objections and concerns to

this proposed implementation structure.

The Agency has responded to these

comments in part by limiting part 64

implementation under part 64 to

permits covered by title V of the Act.

To reflect this change in the

implementation approach, the Agency

has replaced the proposed definition of

‘‘permit’’ with a definition for a ‘‘part 70

or 71 permit.’’ Section 64.1 of the final

rule states that ‘‘part 70 or 71 permit’’

shall have the same meaning as

provided under part 70 (or part 71) of

this chapter. The Agency believes this

definition is consistent with the goal of

bringing part 64 definitions into closer

agreement with their part 70 (or part 71)

counterparts.

The Agency has also added a related

definition in part 64. The definition of

a ‘‘part 70 or 71 permit application’’

includes any application that is

submitted by an owner or operator in

order to obtain a part 70 or 71 permit,

including any supplement to a

previously submitted application. The

Agency believes the addition of this

definition is necessary because the

implementation provisions set forth in

§ 64.3 of part 64 are connected to the

submission of a part 70 or 71 permit

application.

c. Major Source. The 1993 EM

proposal defined the term ‘‘major

source’’ as including any major source

meeting the definition in § 70.2,

excluding any hazardous air pollutant

(HAP) source included in paragraph (1)

of that definition. One commenter

requested clarification of why this

definition excluded major HAP sources

included in the major source definition

of part 70. The form of the proposed

definition was necessary because the

1993 EM proposal treated HAP

requirements separately from other

requirements. For HAP requirements,

the 1993 EM proposal would have

applied to any source required to obtain

a part 70 operating permit or a

preconstruction permit under part C or

D of title I of the Act and not just to

‘‘major sources.’’ As discussed below,

the applicability provisions of part 64

have been substantially modified in the

final rule such that there are no separate

applicability provisions for HAP

requirements (see Section II.B.). In the

final rule, the definition of ‘‘major

source’’ has been revised to reflect these

changes. Part 64 simply states that

‘‘major source’’ shall have the same

meaning as provided in part 70.

The U.S. Small Business

Administration (SBA) submitted for

discussion at the September 10, 1996

meeting a proposal to retain, in part 64,

EPA’s current practice of excluding

from major source status those sources

whose actual emissions are less than 50

percent of the major source threshold.

SBA apparently was referring to EPA’s

policy issued in January 1995 to

establish a two-year (extended until July

31, 1998) transition policy that guides

EPA in applying the definition of

‘‘major source’’ in part 70. Because part

64 relies on part 70’s definition of

‘‘major source,’’ SBA’s concern is met.

As long as that policy remains in effect,

it will be relevant to determining

applicability under part 64. See also

National Mining Association versus U.S.

EPA, 59 F.3d 1351 (D.C. Cir. 1995).

d. Other Part 70 Related Definitions.

Section 64.2 of the proposed rule

contained a definition for ‘‘potential to

emit’’ which tracked the language of the

part 70 definition of ‘‘potential to emit’’

with technical edits to reflect the 1993

EM proposal’s focus on emissions units

as opposed to the focus on major

sources in part 70. The text of the

proposed rule did not make it clear,

however, that part 70 was the source for

the proposed definition. Under part 64,

‘‘potential to emit’’ is explicitly defined

as having ‘‘the same meaning as

provided under part 70 of this chapter,

provided that it shall be applied with

respect to an ‘emissions unit’ as defined

under this part in addition to a

‘stationary source’ as provided under

part 70 of this chapter.’’ Although the

text of the definition has been changed,

the meaning of ‘‘potential to emit’’ in

the final rule is effectively the same as

in the proposed rule. The Agency made

these revisions to clarify the connection

of this term with the definitions of part

70.

The 1993 EM proposal defined

‘‘emissions unit’’ as any part or activity

of a source that emits or has the

potential to emit any regulated air

pollutant for which an emission

limitation or standard had been

established. This definition was a

modification of the definition of

‘‘emissions unit’’ set forth in part 70.

The Agency received a variety of public

comments on this definition. One

commenter recommended using the part

70 definition of ‘‘emissions unit’’ in part

64. Several other commenters expressed

concern over the use of the phrase ‘‘any

part or activity’’ in the definition,

stating that the definition was not clear

as to whether an emissions unit is a

single piece of equipment or a group of

multiple units located together within a

source. In response to these comments,

the definition of ‘‘emissions unit’’ has

been revised in the final rule to have the

same meaning as provided under part
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54911

70. This approach clarifies potential

ambiguity in the definition by relying

on the established part 70 definition of

the term and brings part 64 into closer

agreement with the provisions of the

operating permits program thorough

which part 64 will be implemented.

The 1993 EM proposal contained a

definition of ‘‘permitting authority’’

which tracked the language of the part

70 definition of ‘‘permitting authority’’

with technical edits to reflect the

proposed EM rule’s implementation

through both title V permitting

programs and title I preconstruction

permit programs. The text of the

proposed rule did not make it clear,

however, that part 70 was the source for

the proposed definition. In addition, the

final rule is not implemented through

title I preconstruction permits. The

Agency has therefore revised the

definition of ‘‘permitting authority’’ to

have expressly the same meaning as

provided under part 70.

3. Definitions Added in the Final Rule

Many of the definitions in § 64.1 of

the final rule have been added to reflect

changes in the substantive requirements

of part 64 monitoring under part 64.

These definitions are generally

addressed in the detailed discussion of

the appropriate substantive sections of

the final rule. The following discussion

provides a brief overview of some key

terms added to the definitions section of

the final rule.

The Agency has added definitions for

the terms ‘‘monitoring’’ and ‘‘data’’ to

the final rule. The rule defines

‘‘monitoring’’ as any form of collecting

data on a routine basis to determine or

otherwise assess compliance with

emission limitations or standards. The

rule also includes a non-exclusive list of

data collection techniques which may

be considered appropriate monitoring

under part 64. This list is similar to the

list included in § 64.6 of the 1993 EM

proposal with minor changes in

response to comments on that section.

‘‘Data’’ is defined as the results of any

type of monitoring or compliance

determination method. Some

commenters had raised concerns that

the use of the term ‘‘data’’ in the

substantive provisions of proposed part

64 reflected a bias toward instrumental

monitoring methods. The Agency

believes that by adding these two

definitions, the final rule reflects the

Agency’s intent that a wide variety of

information and means of collecting

information potentially can be used to

satisfy the requirements of part 64.

Definitions for the terms

‘‘exceedance’’ and ‘‘excursion’’ have

been added to the final rule. These

terms are closely related. Section 64.1

defines an ‘‘exceedance’’ as a condition

detected by monitoring which provides

data in terms of an emission limitation

or standard and which indicates that

emissions or opacity are greater than

that limitation or standard, consistent

with the applicable averaging period.

An ‘‘excursion’’ is defined as a

departure from an indicator range

established as part of part 64

monitoring, also as consistent with the

applicable averaging period. As

discussed above, the 1996 part 64 Draft

would have stated that an exceedance or

excursion would be considered a

deviation in the part 70 compliance

certification. This statement has been

removed in response to comments that

such conditions should not necessarily

constitute deviations, especially since

some permitting authorities equate a

deviation with a violation. See Section

II.K.2. of this preamble for additional

discussion on the status of excursions

for a part 70 compliance certification.

The 1996 part 64 Draft also omitted

reference to the applicable averaging

period. That omission has been

corrected in the final rule.

The final definition added to the final

rule describes the meaning of a

‘‘predictive emissions monitoring

system (PEMS).’’ Several commenters to

the 1993 EM proposal suggested that a

definition for this term should be added

to part 64. The Agency agrees with this

suggestion and has included an

appropriate definition in § 64.1 of the

final rule. This definition is included in

the final part 64 rule because § 64.3(c)

sets forth special criteria for the use of

predictive monitoring systems when

employed to fulfill part 64 monitoring

requirements. The same section also

provides special criteria for the use of

continuous emission or opacity

monitoring systems. Because these latter

types of systems are well understood, no

explicit definition was considered

necessary for purposes of part 64.

B. Section 64.2—Applicability

1. Overview

The applicability provisions in § 64.2

reflect EPA’s decision to focus part 64

requirements on units that use control

devices to achieve compliance. The

types of emission exceedance problems

that can arise from poor operation and

maintenance of a control device can be

severe and represent a significant

compliance concern. Moreover,

although units with control devices

represent a smaller percentage of the

overall number of emissions units than

other units, these controlled units

represent a disproportionate share of the

overall potential emissions from all

emissions units. By concentrating the

requirements of part 64 on these units

with control devices, the Agency has

focused the rule on units that represent

a significant portion of the overall

potential emissions regulated under the

Act and that are generally most likely to

raise compliance concerns.

The Agency notes that the term

‘‘pollutant-specific emissions unit,’’

defined in § 64.1, is used in part 64 to

clarify that applicability is determined

with respect to each pollutant at an

emissions unit separately. For example,

a coal-fired boiler emitting through a

single stack could constitute several

pollutant-specific emissions units, such

as for particulate matter, SO2, NOX, and

CO. This term is used throughout the

remainder of this document where

appropriate.

2. Significant Changes in the

Applicability Threshold and Related

Definitions

Section 64.2(a) of the final rule

requires the owner or operator to apply

part 64 to significant pollutant-specific

emissions units that use control devices

to achieve compliance at major sources

subject to part 70 permit requirements.

The issues raised with respect to

applicability during the development of

the rule are described below.

a. Applicability Options Presented in

the 1993 EM Proposal. The preamble to

the 1993 EM proposal solicited

comments on five options for

determining which emissions units

would be subject to enhanced

monitoring requirements under part 64.

These options set the threshold for

applicability based on each unit’s

potential to emit the regulated air

pollutant(s) for which a stationary

source is classified as a major source.

Option 1 set no percentage threshold,

making all units with applicable

requirements for the pollutant for which

a source is major subject to part 64

monitoring. Options 2, 3, 4, and 5

would have made part 64 applicable to

all units that have the potential to emit

pollutants in an amount equal to or

greater than 10, 30, 50, and 100 percent

of the applicable major source

definition, respectively. The 1993 EM

proposal incorporated Option 3, setting

the threshold at 30 percent. Under the

proposed rule, the source of an air

pollutant which is defined as being

major at 100 tons per year would be

required to conduct enhanced

monitoring at all emissions units within

its facility that had the potential to emit

30 tons or more of the pollutant per

year.
54912 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

Applicability under the 1993 EM

proposal was based on an emission

unit’s ‘‘potential to emit.’’ The proposal

defined this term as an emission unit’s

maximum capacity to emit a regulated

air pollutant under the unit’s physical

and operational design, taking into

account such operating restrictions and

control equipment as constitute

federally-enforceable limitations. As

noted above, the 1993 EM proposal also

would have applied only to the

pollutants for which a source is major.

The 1993 EM proposal solicited

comment on the applicability approach

in the proposed rule, and specifically

noted that one other option would be to

use uncontrolled emissions rather than

potential to emit to determine part 64

applicability. The Agency noted that

such an approach arguably would better

address the units with the greatest

environmental risk. This request for

comment was accompanied by an

assertion that in a monitoring rule such

as part 64, it may be appropriate to use

a different definition of potential to emit

than EPA has used for other purposes.

b. Final Part 64 Applicability

Provisions. In response to the many

comments received on the 1993 EM

proposal, the Agency modified part 64

to bring about the CAM approach

including a somewhat different

approach to applicability. The Agency

received numerous public comments on

the applicability provisions of the 1993

EM proposal. Relatively few

commenters supported the Option 3 (30

percent) threshold. Many of the

comments critical of Option 3 argued

that the benefits of increased pollutant

monitoring obtained by covering

additional emissions units at the 30

percent threshold was far outweighed

by the additional costs and burdens of

implementation at that threshold. Most

industry and many State and local

commenters supported Option 5 or a

higher threshold. Many of the

commenters also recommended that

EPA exempt various types of units,

especially uncontrolled units that are

subject to design, work practice, or

similar operational restrictions. In

addition, a number of commenters

suggested alternative approaches to

determining the applicability threshold

of part 64. Industry commenters

generally favored the focus of the 1993

EM proposal on the pollutants for which

a source is a major, while environmental

groups opposed that approach.

The final part 64 retains the basic

concept of an applicability threshold as

contained in the 1993 EM proposal, but

also narrows the focus so that part 64

applies only to those pollutant-specific

emissions units that use a control device

to achieve compliance with an

applicable emission limitation or

standard. In addition, units using

control devices must have potential precontrol device emissions equal to or

greater than 100 percent of the

applicable major source definition to be

subject to part 64. Since part 64 applies

its size threshold only to the

proportionally small number of

emissions units that use control devices,

the number of units required to meet

part 64 monitoring requirements is

lower than would have been subject to

the 1993 EM proposal. The final RIA

estimates that part 64 will affect fewer

than 27,000 units as compared to the

over 35,000 units which EPA had

estimated would be affected under the

1993 EM proposal.

For part 64 to apply, § 64.2(a)

specifies that a pollutant-specific

emissions unit must meet the following

three criteria: (1) The unit must be

subject to an emission limitation or

standard for the applicable regulated air

pollutant (or a surrogate of that

pollutant); (2) the unit must use a

control device to achieve compliance

with an emission limitation or standard;

and (3) the unit must have ‘‘potential

pre-control device emissions’’ in the

amount, in tons per year, required to

classify the unit as a major source under

part 70.

i. Emission Limitation or Standard

Criterion. For the first criterion, the

Agency notes that part 64 applies only

if an applicable emission limitation or

standard applies because the purpose of

part 64 is to provide a reasonable

assurance of compliance with such

requirements. Numerous comments on

the 1993 EM proposal supported EPA’s

position that part 64 should apply only

if an underlying applicable emission

limitation or standard applies, but many

commenters suggested that the final rule

should contain explicit language

concerning the necessity for an

underlying standard to trigger part 64

applicability. The commenters believed

inclusion of such language was critical

because a part 70 operating permit will

be required to include units without

applicable requirements, and part 70

permits will be required for sources

without any applicable requirements

(so-called ‘‘hollow permits’’). Their

concern was that part 64 could be

interpreted as applying to units and

sources of this type and that

determining compliance with the rule

under such an interpretation would be

exceedingly difficult. The Agency agrees

that the rule should clearly state that

part 64 applies only where a federally

enforceable emission limitation or

standard applies and thus has added

this first criterion to the applicability

determination. The Agency also notes

that the applicability provisions in part

64 include a ‘‘surrogate’’ of a regulated

air pollutant to address situations in

which the emission limitation or

standard is expressed in terms of a

pollutant (or other surrogate) that is

different from the regulated air pollutant

that is being controlled. A common

example would be emission limits

expressed in terms of particulate matter

and opacity rather than PM–10. Another

example would be an emission limit

expressed as a control device operating

requirement rather than in terms of the

applicable regulated air pollutant.

ii. Control Devices Criterion. Second,

the final rule applies only to pollutantspecific emissions units that rely on a

control device to achieve compliance.

The final rule provides a definition of

‘‘control device’’ that reflects the focus

of part 64 on those types of control

devices that are usually considered as

‘‘add-on controls.’’ This definition does

not encompass all conceivable control

approaches but rather those types of

control devices that may be prone to

upset and malfunction, and that are

most likely to benefit from monitoring

of critical parameters to assure that they

continue to function properly. In

addition, a regulatory obligation to

monitor control devices is appropriate

because these devices generally are not

an inherent part of the source’s process

and may not be watched as closely as

devices that have a direct bearing on the

efficiency or productivity of the source.

The control device definition is based

on similar definitions in State

regulations (see, e.g., North Carolina

Administrative Code, title 15A, chapter

2, subchapter 2D, section .0101

(definition of ‘‘control device’’); Texas

Administrative Code, title 30, section

101.1 (definition of ‘‘control device’’).

The definition is in contrast to broader

definitions of ‘‘control device,’’ ‘‘air

cleaning equipment,’’ ‘‘control

measure,’’ or similar terms included in

some States’ regulations (see, e.g.,

Codes, Rules, and Regulations of the

State of New York, title 6, chapter III,

section 200.1 (definition of ‘‘air cleaning

device’’ or ‘‘control equipment’’)). These

broader definitions often include any

method, process or equipment which

removes, reduces or renders less

noxious air contaminants released to the

ambient air. Those types of controls

could include material substitution,

process modification, operating

restrictions and similar types of

controls. The definition in part 64 relies

on the narrow interpretation of a control

device that focuses on control
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54913

equipment that removes or destroys air

pollutants.

Certain NSPS and NESHAP

regulations also have targeted

definitions of ‘‘control device’’ or ‘‘addon control device’’ that apply to the

specific type of affected facility covered

by the applicable NSPS or NESHAP

subpart (see, e.g., 40 CFR 60.581,

60.670, 60.691, 60.731, 61.171, 61.241,

63.161, 63.561, and 63.702). The part 64

control device definition generally is

consistent with these prior Agency

definitions, but without language

targeted to a particular affected facility

type.

The Agency notes that EPA’s

Aerometric Information Retrieval

System (AIRS) contains a list of various

air pollution control equipment codes

that address a wide variety of possible

control methods, processes and

equipment; this list includes both active

control devices and other types of

controls. In conjunction with the release

of the 1996 part 64 Draft, the Agency

placed in the docket (item VI–I–3) a

document that reflects EPA’s position

on which of those equipment codes

refer to a ‘‘control device’’ as defined in

the 1996 part 64 Draft and which refer

to other types of controls. The Agency

continues to believe that this document

provides an appropriate list of the types

of equipment which may constitute

control devices.

For the final part 64 rule, the control

device definition has been revised in

response to public comments. In the

discussion document accompanying the

1996 part 64 Draft, the Agency solicited

comment on the appropriateness of the

definition of control device and

received numerous comments and

requests for additional clarifications.

Generally, commenters felt that the

control device definition in the 1996

part 64 Draft was overly broad and that

additional language was needed to

clarify that EPA does not intend the rule

to apply to inherent process equipment

such as certain types of recovery

devices.

The final rule defines a control device

as ‘‘equipment, other than inherent

process equipment, that is used to

destroy or remove air pollutant(s) prior

to discharge to the atmosphere.’’ Thus,

the Agency has specifically excluded

inherent process equipment from the

control device definition in the final

rule. The EPA suggested in the

discussion document accompanying the

1996 part 64 Draft a list of three criteria

that would be used to distinguish

inherent process equipment from

control devices:

(1) Is the primary purpose of the

equipment to control air pollution?

(2) Where the equipment is recovering

product, how do the cost savings from

the product recovery compare to the

cost of the equipment?

(3) Would the equipment be installed

if no air quality regulations are in place?

(See letter from David Solomon, EPA, to

Timothy J. Mohin, Intel Government

Affairs, dated November 27, 1995.

Included in the docket as Item VI–C–

14.)

The Agency received a number of

comments on these criteria, some of

which supported including the criteria

in the rule and others of which

suggested other approaches. Based on

the comments received, the final rule

defines ‘‘inherent process equipment’’

as ‘‘equipment that is necessary for the

proper or safe functioning of the

process, or material recovery equipment

that the owner or operator documents is

installed and operated primarily for

purposes other than compliance with air

pollution regulations.’’ If equipment

must be operated at an efficiency higher

than that achieved during normal

process operations in order to comply

with applicable requirements, that

equipment will not qualify as inherent

process equipment. In addition, the

control device definition has been

revised to include a list of several

control techniques that do not constitute

‘‘control devices’’ as defined in part 64.

Finally, the definition also makes

clear that part 64 does not override

definitions in underlying requirements

that may provide that certain equipment

is not to be considered a control device

for pollutant-specific emissions units

affected by that regulation. Although not

subject to part 64, an example of this

type of provision is § 63.111 in subpart

G to 40 CFR part 63 (NESHAP

requirements for Synthetic Organic

Chemical Manufacturing Industry for

Process Vents, Storage Vessels, Transfer

Operations, and Wastewater). The

definition in that section states that

recovery devices used in conjunction

with process vents and primary

condensers used in conjunction with a

steam stripper do not constitute

‘‘control devices.’’ Certain commenters

asserted that part 64 should not override

these types of existing rules and EPA

agrees. The Agency notes, however, that

if an emissions unit is regulated for

another pollutant, and the control

device also is used to comply with a

limit that applies to that second

pollutant, the equipment will be

considered a ‘‘control device’’ for the

second pollutant unless the standards

for the second pollutant also explicitly

establish that the equipment is not a

control device.

The final rule also includes a

definition of a ‘‘capture system’’ because

the rule requires, where applicable,

monitoring of a capture system

associated with a control device. The

monitoring requirements for control

devices extend to capture systems as

well because they are essential to

assuring that the overall emission

reduction goals associated with the

control device are achieved. See Section

II.C., below. The Agency notes that duct

work, ventilation fans and similar

equipment are not considered to be a

capture system if the equipment is used

to vent emissions from a source to the

atmosphere without being processed

through a control device. For instance,

roof vents that remove air pollutants

from inside a building but do not

transport the pollutants to a control

device to reduce or destroy emissions

would not be subject to the rule.

The Agency notes that some

commenters, especially environmental

and other public interest organizations,

opposed limiting the applicability of

part 64 to emissions units that rely on

control devices. They argued that other

significant emissions units with other

types of control measures, such as low

NOX burners or similar combustion

modification controls, should be subject

to part 64 requirements.

Low NOX burner technology and

certain other types of combustion

control measures are not included in the

definition of ‘‘control device’’ in the

final rule. For most large emissions

units that employ such measures, such

as utility boilers, separate applicable

requirements already require the use of

CEMS or similar monitoring for such

units. Under part 70, that monitoring

will have to be included in the permit

and considered in certifying compliance

with applicable requirements. Some

types of combustion units (e.g., package

boilers) that may use low NOX burner

technology do not use the same types of

technology used by utility and large

industrial boilers. The technology used

for many units with automatic

combustion control does not provide

significant operational flexibility that

could afford the owner or operator with

an opportunity or incentive to

manipulate NOX control levels. (See

docket item A–91–52–VI–A–9) For these

types of units, the recordkeeping of

regular inspection and maintenance of

the low NOX burners (e.g., annular flow

ratio adjustment settings, burner

replacement, portable instrument

readings, etc.) in combination with

periodic checks of emission levels with

appropriate test methods, as necessary,

are very likely sufficient to ensure that

the unit is being operated in a manner
54914 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

consistent with good air pollution

control practices and that the low NOX

technology continues to reduce

emissions at least to the level of the

standard. The general monitoring

requirements in part 70 are adequate to

assure that this type of appropriate

monitoring is employed.

For these reasons, EPA believes that

monitoring for this control technology is

best addressed through part 70 periodic

monitoring requirements and not

through expansion of part 64 to units

with these types of control measures. Of

course, if there are particular units

which raise a significant continuous

compliance concern, such as units with

an historically poor compliance history,

the permitting authority can require

more detailed monitoring under the

general part 70 monitoring provisions

given that the permit must include

appropriate monitoring for assuring

compliance with the permit. In those

cases, permitting authorities may want

to consider elements of part 64 as

potentially appropriate, but they would

not be bound to satisfy each element of

part 64.

iii. Potential Pre-control Device

Emissions Criterion. Finally, for the

third criterion for applicability, § 64.2(a)

relies on the concept of ‘‘potential precontrol device emissions.’’ This term

has the same meaning as ‘‘potential to

emit,’’ except that any emission

reductions achieved by the control

device are not taken into account, even

if the owner or operator generally is

allowed to do so under the regulatory

definition of ‘‘potential to emit.’’

The Agency first notes that numerous

commenters expressed objections to the

1993 EM proposal’s definition of

potential to emit, believing the

definition resulted in unrealistically

high emissions numbers. The EPA notes

that, contrary to beliefs expressed in

many of those comments, that definition

does take into account enforceable

operating hour restrictions, throughput

restrictions, control system efficiency

factors, and similar enforceable

restrictions. The Agency also points out

that the same definition has been used

in the part 70 operating permits program

as well as the part 63 NESHAP general

provisions.

The Agency also notes that the

majority of commenters did favor the

use of potential to emit over

uncontrolled emissions because the

latter approach would not take into

account any emissions reductions

achieved through any means. However,

the 1993 EM proposal noted that EPA

was considering basing applicability on

uncontrolled emissions and the

potential pre-control emissions

approach was suggested subsequently

by State and local agencies (see docket

items VI–D–42 and 49) during further

consideration of part 64 options. As

noted in the discussion document

accompanying the 1996 part 64 Draft,

the Agency agrees with this approach

and believes that excluding the assumed

efficiency of the control device from the

calculation of potential to emit for

purposes of part 64 applicability

provides an appropriate means of

distinguishing between units based on

environmental significance. It allows

the Agency to distinguish between units

based on their true size and based on

the degree of control required to achieve

compliance. The Agency notes that this

approach does take into account all

federally-enforceable emissions

reductions except for those resulting

from control devices (e.g., emission

reductions that occur as a result of

operating hour or throughput

restrictions would be taken into account

in determining potential pre-control

device emissions).

Many commenters objected to the

reliance on potential pre-control device

emissions, primarily because the use of

the potential pre-control device

emissions threshold would result in too

many units being subject to the rule.

Some commenters noted that the 1993

EM proposal similarly had requested

comment on the use of uncontrolled

emissions, and that the comments

strongly objected to that idea.

The Agency first notes that, contrary

to some commenters’ assertions, EPA

estimates that the final rule will apply

to fewer units than the 1993 EM

proposal because the final rule only

applies to the proportionally small

number of emissions units that use

equipment meeting the ‘‘control device’’

definition. The final RIA estimates that

fewer than 27,000 pollutant-specific

emissions units will be subject to part

64, whereas the 30 percent option in the

1993 EM proposal would have covered

over 35,000 such units. The EPA has

also delayed implementation for those

units subject to the rule that have the

‘‘potential to emit’’ (post-control device)

less than the major source threshold.

This delayed implementation will

reduce the burdens of part 64 on the

initial round of part 70 permitting. The

Agency feels that these changes should

alleviate the commenters’ concerns and

that further reductions in the number of

units to which the rule applies are not

appropriate.

The CAM approach is necessarily

concerned with significant, controlled

units even if the potential to emit after

the control device is low. The reason for

covering these units is two-fold. First,

part 64 monitoring will be designed to

detect long-term under-performance of

control devices that periodic

evaluations such as stack tests may be

unable to document. For example, a unit

may have the potential to emit 20 tons

per year after a control device which is

required to operate with a 99 percent

control efficiency. The pre-control

device potential to emit for that unit is

2,000 tons per year; if the required

control device efficiency is 99.9 percent,

that figure increases to 20,000 tons per

year. If the long-term actual control

performance of that device decreases to

95 percent, the actual emissions could

increase to 100 or 1000 tons per year,

respectively. Part 64 is aimed first at

addressing this type of long-term,

significant loss of control efficiency that

can occur without complete failure of a

control device. The second type of

problem is short-term complete loss of

control. As indicated in some of the

comments, for many types of control

devices this type of problem could be

detected after the fact with monitoring

less detailed than part 64. However, the

goal of air pollution control is to prevent

these types of problems before they

occur, if possible, at a reasonable cost.

The EPA believes that part 64 in many

instances can be designed to provide

early indications of control equipment

problems that could be addressed prior

to such catastrophic failures. For these

reasons, EPA believes that the use of

pre-control device potential to emit is a

rational basis on which to evaluate

whether specific units should be subject

to part 64.

Some comments on the 1996 part 64

Draft also objected to the potential precontrol device emissions threshold

based on the argument that the creation

of a new size calculation that source

owners or operators must perform to

determine applicability will cause

confusion and result in additional

burdens. The Agency disagrees since

owners will simply need to remove the

design efficiency of the control device

from the calculation of the applicable

unit’s potential to emit. Potential precontrol emissions will otherwise be

calculated in exactly the same way as

potential to emit. The two figures will

both factor in enforceable operational

restrictions, so only the effect of the

control device’s efficiency, a factor

which has to be quantified for

determining the standard meaning of

‘‘potential to emit,’’ will be treated

differently.

Commenters also noted that part 64

would expand the 1993 EM proposal by

not limiting applicability to those

pollutants for which the source is major.

The final rule does limit applicability to
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54915

the pollutants for which a pollutantspecific emissions unit would be major

except for the emissions reductions

assumed to occur as a result of a control

device. As explained above, EPA

believes that the focus of the rule on the

potential to emit of units prior to a

control device is an appropriate

screening tool to determine which units

should be monitored under part 64. For

that reason, the focus of the 1993 EM

proposal on major pollutants only

would be inappropriate. In addition, as

some commenters pointed out in

response to the proposed rule, the

Agency typically does not focus on only

the major pollutants even where

applicability of a program is focused

solely on whether a source is a major

source.

Finally, EPA believes it would be

irrational to continue to focus solely on

the pollutants for which a source is

major when the Agency is focusing on

units that have installed control devices.

For instance, a source could be ‘‘major’’

for NOX with no NOX control devices

(and even no NOX requirements in an

attainment area) but have a unit with

the potential to emit 20 tons of

particulate matter after a control device

that has a rated removal efficiency of

99.9 percent. The post-control

particulate potential to emit from this

particular emissions unit would be less

than the major source threshold of 100

tons/year; however, the precontrol

potential to emit of 20,000 tons/year of

particulate matter emissions would be

greater than the 100 tons/year major

source threshold. As noted in the

example discussed above, small

decreases in efficiency of that control

device could lead to actual emission

increases significantly above the major

source threshold. Thus, while the

source in this example may not have the

potential to emit particulate matter

(taking into account the control device)

in amounts sufficient for the source to

be classified as a major source for

particulate matter, the pollutant-specific

emissions unit for particulate matter,

not for NOX, in this example is clearly

one which the Agency believes should

be subject to part 64.

Other commenters questioned

whether the applicability provisions

were self-implementing. They argued

that unit-by-unit negative declarations

would be highly burdensome. The

Agency agrees and part 64 does not

require that owners or operators justify

in a permit application why part 64 is

not applicable, or that owners or

operators apply for exemptions.

However, the Agency notes that the

permitting authority can request further

explanation as to how a source owner or

operator determined that part 64 did or

did not apply for any pollutant-specific

emissions unit for which there may be

an issue about applicability. In addition,

an owner or operator that wishes to take

advantage of the exemption for certain

municipally-owned utility units will

have to provide the documentation

required to satisfy that exemption (see

the following discussion of this

exemption).

3. Development of the Exemption

Provisions

Part 64 exempts owners or operators

with respect to certain emission

limitations or standards for which the

underlying requirements already

establish adequate monitoring for the

emission limits being monitored, and

with respect to certain municipallyowned utility units.

a. Exemptions in the 1993 EM

proposal. The 1993 EM proposal

established exemptions for the

following types of emission limits:

—Emission limitations or standards

under the NESHAP program (pursuant

to section 112 of the Act), except for

standards established in part 61. This

exemption reflected the Agency’s intent

that the provisions of part 63, the MACT

standards, will include appropriate

enhanced monitoring provisions

pursuant to the authority in section

114(a)(3) of the Act.

—Stratospheric ozone protection

requirements under title VI of the Act.

The type of requirements that apply

under that program are significantly

different than typical emission

limitations or standards, and the

appropriate monitoring for such

requirements will be handled under

regulations implementing those

requirements. The exemption is

unchanged from the proposed rule but

for a technical correction (substituting

title VI of the Act for the original

reference to section 603).

—Acid Rain Program emission limits

under title IV of the Act. The Acid Rain

monitoring requirements under 40 CFR

part 75 already establish all appropriate

compliance assurance monitoring for

such requirements. The exemption is

unchanged from the proposed rule but

for a technical correction (to include

emission limits applicable to opt-in

units under section 410 of the Act).

—NESHAP standards for asbestos

demolition and renovation projects.

These sources are exempt under part 70

and are not required to obtain operating

permits.

—NSPS standards for residential

wood heaters. These sources are also

exempt under part 70 and are not

required to obtain operating permits.

b. Exemptions in the Final Rule.

Issues raised by comments on the 1993

EM proposal prompted EPA to include

certain additional exemption provisions

in the final part 64 rule. The exemptions

that were changed or added are:

—Emission limitations or standards

under the NSPS program that are

proposed after November 15, 1990. This

expands on the proposed rule, which

provided for only the NESHAP

exemption. Commenters suggested that

EPA exempt all NSPS, arguing that

existing NSPS contain enhanced

monitoring requirements. The EPA

disagrees that this is the case for all

NSPS. Existing monitoring of covered

units and sources under some NSPS

may be sufficient to meet part 64

requirements; however, the question of

sufficiency of any particular monitoring

requirement from a non-exempt

standard will have to be determined in

accordance with the requirements of

part 64. Future federal rulemakings,

including NSPS rulemakings, will

satisfy the monitoring requirements of

titles V and VII of the 1990

Amendments (see preamble to 40 CFR

part 70, 57 FR 32278, July 21, 1992).

The EPA intends to focus on including

methods for directly determining

continuous compliance in these new

federal rulemakings where such

methods are feasible. Only where such

approaches are not feasible would the

Agency consider using an approach

similar to the CAM approach in such

requirements. Since there will be no

gaps in their monitoring provisions,

EPA exempts future NSPS as well as

NESHAP standards. The Agency notes

that this exemption does not apply to

State emission limits or standards

developed under section 111(d) of the

Act.

—Emission limits that apply solely

under an emissions trading program

approved or promulgated by EPA and

emission cap requirements that meet the

requirements of § 70.4(b)(12) or

§ 71.6(a)(13)(iii) are exempt from part

64. This exemption was developed in

response to comments received on a

provision in the 1993 EM proposal

which made certain ‘‘group[s] of

emissions units at a major source’’

subject to enhanced monitoring

requirements. The 1993 EM proposal’s

preamble suggested that this provision

applied to emissions units involved in

some form of ‘‘bubbling’’ or trading plan

within a single facility as well as to

fugitive emission points for which

compliance is evaluated on a processwide or facility-wide basis.

The EPA received many comments on

the 1993 EM proposal that opposed

applying enhanced monitoring to
54916 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

groups of emissions units. Several

industry commenters believed that

applying part 64 to groups of emissions

units would be too inclusive and would

apply enhanced monitoring

requirements to emissions units that

otherwise would fall below the

applicability threshold. Other

commenters predicted that applying

enhanced monitoring to groups of

emissions units would discourage

source owners or operators from

participating in emissions trading,

aggregating, or similar programs. Some

industry representatives and State and

local agencies also recommended

providing an exemption in part 64 for

source owners or operators who

participate in programs such as

RECLAIM in California’s South Coast

Air Quality Management District.

The final part 64 rule addresses these

concerns in a number of ways. First,

both emission limits that apply solely

under an emissions trading program

approved or promulgated by EPA and

emission caps that meet the

requirements of § 70.4(b)(12) or

§ 71.6(a)(13)(iii) are explicitly exempt

from part 64 under § 64.2(b)(1)(iv) and

(v). By their nature, these types of

standards require methods to confirm

trades or to calculate overall compliance

with the cap, taking into account the

contribution of emissions from all

covered units. These types of emission

limits also often cover all emissions

units at a facility, including those with

extremely low amounts of emissions,

those without control devices, and those

that are not subject to other applicable

requirements. Because of the need to

consider the interrelationships among

units covered by this type of

requirement, the type of monitoring in

part 64 would not be appropriate.

Instead, the Agency believes that the

existing requirements for monitoring

compliance with such standards should

be followed.

For instance, the requirements for

statutory economic incentive programs

(40 CFR 51.490—.494) specify the

quantification methods that must be

included as part of any SIP economic

incentive program developed pursuant

to sections 182(g)(3), 182(g)(5),

187(d)(3), or 187(g) of the Act. In

addition, EPA has proposed revisions to

§ 70.4(b)(12) to clarify that emission

caps must include ‘‘replicable

procedures and permit terms that ensure

the emissions cap is enforceable and

trades pursuant to it are quantifiable

and enforceable.’’ (59 FR 44460, August

29, 1994). These provisions highlight

the need to include as part of any

emission trading or cap requirement the

appropriate methods for quantifying

emissions and assuring that the trade or

cap limitation is enforceable. The

Agency believes that the imposition of

part 64 on these types of standards

would not provide any additional

benefit.

In addition, other groups of emissions

units are generally not subject to

monitoring requirements under part 64.

Part 64 requirements apply only to

individual pollutant-specific emissions

units that use a control device to

achieve compliance and whose precontrol device emissions of an

applicable pollutant are equal to or

greater than the amount needed for a

unit to be classified as a major source.

Groups of emissions units are not

aggregated for this determination, so

such groups would not be subject to part

64. In addition, fugitive emissions are

generally not controlled through the use

of control devices, so there is no need

for special applicability or monitoring

provisions for fugitive emission sources.

—Emission limitations or standards

for which a part 70 permit already

includes monitoring that is used as a

continuous compliance determination

method. In these instances, there

generally is no need to require any

additional compliance assurance

monitoring for that emission limitation

or standard. There is one exception to

using this exemption. In some instances

a continuous compliance determination

method may be contingent upon an

assumed control device efficiency

factor. For example, a VOC coating

source that includes add-on control

equipment that destroys VOC emissions

may use an assumed control device

efficiency factor for the control

equipment together with coating records

to calculate compliance with an NSPS

requirement. In this example, a monthly

calculation generally is made using

coating records and an assumed

destruction efficiency factor that is

based on the last control system

performance test. In this example,

§ 64.2(b)(1)(vi) does not allow the

exemption from part 64 because the

owner or operator must assure proper

operation and maintenance of the

control device for the destruction

efficiency factor to remain valid. The

Agency notes that this position is

consistent with the NSPS, which

generally require monitoring of the

control equipment in addition to the

monthly compliance calculation in this

type of example. The Agency notes that

the monitoring under part 64 does not

have to be included or otherwise affect

the existing continuous compliance

determination method. In the coating

example, direct compliance will still be

calculated based on the approved

continuous compliance method. Part 64

monitoring will be used to document

that the control device continues to

operate properly and to indicate the

need to reestablish the destruction

efficiency factor through a control

device performance test.

This exemption also raises a question

about what constitutes a ‘‘continuous

compliance determination method.’’

Section 64.1 defines this type of method

as a means established in an applicable

requirement or a part 70 permit for

determining compliance on a

continuous basis, consistent with the

averaging period for the applicable

requirement. The EPA has prepared

initial guidance that includes some

example of this type of monitoring. (See

docket item A–91–52–VI–A–8 for a draft

of this guidance.)

The Agency notes that if emission

limitations or standards other than the

exempt emission limits described above

apply to the same pollutant-specific

emissions unit, the owner or operator

would still be subject to part 64 for that

pollutant-specific emissions unit and

may have to upgrade the existing

monitoring or add other types of

monitoring. The Agency believes that

for many situations in which both

exempt and non-exempt emission limits

apply to a particular pollutant-specific

emissions unit, the monitoring for the

exempt limit may be adequate to satisfy

part 64 for the other non-exempt

emission limit(s). Section 64.4(b)(4) of

the rule recognizes this possibility and

allows the owner or operator to meet the

obligation to explain the

appropriateness of its proposed

monitoring by stating that it is

proposing monitoring for non-exempt

limits that is based on the monitoring

conducted for certain types of exempt

emission limits.

Examples of situations that may

involve both exempt and non-exempt

limits for the same pollutant-specific

emissions unit include the following.

One example would be a pollutantspecific emissions unit that is subject to

both a particulate matter limit and

enforceable conditions to operate a

control device within certain

parameters. In this example, if

compliance with the parameter

conditions is determined by a

continuous compliance determination

method, that monitoring could be used

to provide a reasonable assurance of

compliance with the particulate matter

limit, provided that the monitoring

included all necessary parameters to

satisfy § 64.3(a). In contrast, another

example of multiple emission

limitations or standards could be an

emissions unit that is subject to a short
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54917

term emission rate limit and an annual

throughput limit that has a means for

determining compliance with total

annual throughput. In this example,

demonstrating compliance with the

annual throughput limit is unlikely to

assure that a control device used to

comply with the short term limit

continues to perform properly, and the

owner or operator may have to use

different or supplemental monitoring to

satisfy part 64.

As noted above, emission limits

established under the Acid Rain

Program are exempt from part 64. The

Agency expects that the part 75

monitoring required for Acid Rain

sources likely will generate the data

necessary to comply with part 64 as

applied to other standards applicable to

the same unit. However, because part 64

requires that CEMS data be reported in

terms of the applicable emission limit,

the owner or operator may face some

additional requirements in order to

generate the data in terms of the other

non-Acid Rain emission limits that

apply (such as a lb/mmBtu SO2

standard).

—Two exemptions provided for in the

1993 EM proposal have been eliminated

in part 64. The 1993 EM proposal

included exemptions for NESHAP

standards for asbestos demolition and

renovation projects and NSPS standards

for residential wood heaters. These

source categories are exempt under part

70 and are not required to obtain

operating permits. Since part 64

explicitly applies only to sources

required to obtain a part 70 permit,

separate exemptions for these source

categories are unnecessary in the final

rule.

—In addition to exempting certain

emission limitations or standards, the

1996 part 64 Draft also introduced an

exemption for small municipal utility

emissions units in response to the large

number of comments received on this

issue during the extended comment

period on the 1993 EM proposal (over

80 municipal power utilities submitted

comments on this issue). The exemption

applies to small (under 25 megawatts)

existing municipal utility emissions

units that are exempt from the Acid

Rain Program and that supply power for

sale only in peak demand or emergency

situations. As commenters pointed out,

these units have historically low usage

rates, but, because of their nature,

owners or operators cannot accept

enforceable restrictions on the operation

of these units for any particular year

without violating their contractual

obligations. Thus, these units usually

have extremely high potential to emit

values in comparison to actual

emissions. In addition, the Agency notes

that these units often are owned and

operated by small municipal authorities

and that the actual emissions from these

units are minimal in many cases. The

Agency therefore believes that a limited

exemption for these units is appropriate.

To qualify for the exemption, the

owners or operators of these units must

include in their part 70 permit

applications documentation showing

that the unit is exempt from all of the

monitoring requirements in 40 CFR part

75, and showing that the emissions unit

is operated only to provide electricity

during peaking hours or emergencies.

This documentation should consist of

historical operating data and contractual

information.

The owner or operator must also

demonstrate that the emissions unit has

low annual average emissions. The rule

requires the owner or operator to

document that average annual emissions

over the last 3 calendar years of

operation are less than 50 percent of the

amount required to classify the unit as

a major source. If less than 3 years of

historical data are available, the owner

or operator can use such shorter time

period that is available as the

appropriate look back period.

The Agency chose the 3-year period to

be consistent with the time frame used

under the Acid Rain Program to define

a peaking unit (see § 72.2). The 3-year

period used under the CAM approach

recognizes the similar circumstances

presented by these small municipal

power sources. The use of a 50 percent

threshold is consistent with EPA’s

January 1995 potential to emit transition

policy setting forth EPA guidance under

which sources that have actual

emissions well below title V

applicability thresholds may avoid title

V permitting by documenting those low

actual emissions (see docket item A–91–

52–VI–I–5 for a copy of this policy). If

actual emissions exceed that 50 percent

value, then the policy requires a source

to obtain an enforceable restriction to

reduce its potential to emit below the

title V applicability threshold. The

Agency believes that the principle

behind that policy is equally applicable

for purposes of this part 64 exemption.

Based on the information supplied in

comments submitted by the affected

municipal utility companies, EPA

believes that the vast majority of the

emissions units under 25 megawatts

operated at these sources will qualify for

this exemption.

In response to the 1996 part 64 Draft,

the Agency again received many

comments that argued for expansion of

the municipal utility exemption to other

units which have low actual emissions.

For example, the U.S. Small Business

Administration submitted for discussion

at the September 10, 1996, meeting a

proposal (SBA proposal) to exclude

entirely from part 64 any unit with

emissions between 50 percent and 90

percent of the major source threshold so

that the resources that would otherwise

be spent on implementing part 64 for

those sources could be saved; further,

the SBA comments included a

recommendation that EPA give partial

credit for emission control measures

rather than determining applicability

based on total potential pre-control

device emissions. The SBA proposal

stated that this would eliminate

possibly thousands of sources that do

not need to be covered by part 64 since

the reasonable assurance can be

obtained through the facilities’ own

records. A number of commenters

specifically expressed their support for

the SBA proposal and others stated

generally that they were in favor of such

an exemption, arguing that any unit that

can demonstrate a history of limited

usage and an expectation of continued

limited usage should be exempted.

The EPA disagrees with the concept

of using actual emissions as the overall

basis for part 64 applicability or as the

basis for expanding significantly the

municipal utility exemption. First,

actual emissions can vary with changes

in production. More importantly, for

units with control devices, calculations

of actual emissions necessarily rely on

assumptions about on-going

performance that part 64 is intended to

verify. Further, to assure that units

remain under the major source

threshold is not the goal of part 64, but,

instead, the goal of part 64 is to assure

that sources meet all applicable

requirements. Finally, because the types

of sources to which commenters

referred are unlikely to meet the control

device applicability criterion of the final

rule, the Agency feels even more

strongly that the final rule will not

subject small units to inappropriate

monitoring. The Agency notes, however,

that such units will remain subject to

the monitoring requirements in part 70,

and may have to adopt new or modified

monitoring to comply with those

requirements, even though part 64 does

not apply.

4. Hazardous Air Pollutant

Requirements

Under the 1993 EM proposal, part 64

would have applied to all emission

limitations or standards established

under 40 CFR part 61 at any source that

is required to obtain an operating permit

under part 70. The proposed rule

contained an exemption, retained in
54918 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

modified form in the final part 64 rule,

for all hazardous air pollutant emissions

standards promulgated pursuant to

section 112 of the Clean Air Act except

for those standards established in part

61 prior to the 1990 Amendments to the

Act.

After receiving substantial public

comment on the applicability of part 64

to hazardous air pollutants, the Agency

has significantly modified its approach

to HAPs under part 64. Hazardous air

pollutant sources are no longer a

separate category subject to a different

applicability test. Instead, hazardous air

pollutant emissions limitations and

standards are treated the same as those

for criteria air pollutants. Thus, a

hazardous air pollutant-specific

emissions unit is subject to part 64 only

if it meets the applicability criteria set

forth in § 64.2(a).

This approach is consistent with the

Agency’s overall goal of streamlining

part 64. The EPA believes the final part

64, in conjunction with other regulatory

provisions, provides for sufficient

monitoring of hazardous air pollutant

sources to both satisfy the statutory

enhanced monitoring mandate and to

meet the special concerns associated

with regulating pollutants of this type.

In addition, units and sources which do

not meet the part 64 applicability

threshold will still be subject to part 61

compliance monitoring and, if

applicable, part 70 monitoring. For

those units, EPA considers such

monitoring sufficient to address the

special concerns of regulating hazardous

air pollutants.

With respect to emissions units

subject to new hazardous air pollutant

standards under amended section 112 of

the Act, EPA will include appropriate

monitoring requirements as part of those

new hazardous air pollutant standards.

Since part 64 monitoring for these

standards would be needlessly

duplicative, such standards are covered

by the exemption in § 64.2(b)(1)(i). This

approach is consistent with EPA’s

statement in the July 21, 1992 preamble

to 40 CFR part 70 that all future

rulemakings will have no gap in their

monitoring provisions (see 57 FR

32278).

C. Section 64.3—Monitoring Design

Criteria

Section 64.3 contains the design

criteria for satisfying part 64. The

selection and design of monitoring have

undergone revision in the final rule.

Some of these revisions were necessary

to conform these provisions to

applicability and implementation

requirements under the final rule.

Others have been made in response to

public comments on the monitoring

design and selection requirements in the

1993 proposed EM rule and subsequent

drafts of part 64. These revisions reflect

both the objective of providing a

reasonable assurance of compliance

with applicable requirements at lower

cost than the 1993 proposed EM rule

and the Agency’s goal of developing a

more simplified structure for part 64.

The following section describes the

specific revisions to these provisions

and the Agency’s rationale for making

these changes.

1. General Criteria

a. Overview. The general purpose of

the monitoring required by part 64 is to

assure compliance with emission

standards through requiring monitoring

of the operation and maintenance of the

control equipment and, if applicable,

operating conditions of the pollutantspecific emissions unit. A basic

assumption of EPA air pollution control

rulemaking, at least under technologybased programs such as the NSPS

program, is that an emission limit

should be established at a point where

a well operated and maintained source

can achieve the limit under all expected

operating conditions using control

equipment that has been shown through

a performance test to be capable of

achieving the emission limit. This

demonstration through a performance

test is conducted under conditions

specified by the applicable rule or, if not

specified, generally under conditions

representative of maximum emission

potential under anticipated operating

conditions (generally, but not always, at

full load). Logically, therefore, once an

owner or operator has shown that the

installed control equipment can comply

with an emission limit, there will be a

reasonable assurance of ongoing

compliance with the emission limit as

long as the emissions unit is operated

under the conditions anticipated and

the control equipment is operated and

maintained properly. This logical

assumption is the basis of EPA

standard-setting under the NSPS

program and serves as the model for the

CAM approach as well.

For example, under 40 CFR part 60,

subpart NN, Phosphate Rock Plants, the

standard for particulate matter is

determined through Method 5 testing.

The final preamble noted that certain

commenters believed that the

particulate emission limits ‘‘were too

stringent to be achieved on a continuous

basis.’’ Upon review of the information,

EPA revised the standard because its

evaluation ‘‘indicated that the proposed

emission limits . . . could not be

achieved continuously under all

operating conditions which are likely to

occur.’’ 47 FR 16584 (April 16, 1982).

EPA then stated that ‘‘(a)s required by

the Clean Air Act, the

promulgated . . . emission limits are

based on the performance of the best

available control equipment on the

worst case uncontrolled emission levels.

The best control systems have been

demonstrated to be continuously

effective. Therefore, there should be no

problems achieving the standards if the

control equipment is properly

maintained and operated.’’ Id. at 16585.

This example documents the close

nexus of first demonstrating through a

performance test that the installed

control equipment is capable of

achieving the standard on a continuous

basis and then properly operating and

maintaining that equipment so as to

provide a reasonable assurance of

continuous compliance with the

standard.

In EPA’s Response to Remand in

Portland Cement Association v.

Ruckelshaus (see docket item A–91–52–

VI–I–11), EPA further emphasized, in its

discussion on opacity, the important

relationship between proper operation

and maintenance and attainment of the

standards. The Agency stated, ‘‘[T]he

opacity standards and maintenance

requirements were both promulgated,

and work in tandem to guarantee that

proper maintenance and operation of

pollution control equipment, the sine

qua non of continuous compliance with

emission limits, can in fact be required

and monitored.’’ (Response to Remand,

p. 87.) EPA discussed the fact that

opacity standards provide enforcement

agencies with a convenient indicator of

whether pollution control devices are

being properly operated and

maintained, and therefore whether the

standards are being met. (Response to

Remand, p. 27–28.)

These examples point to the

underlying assumption that there is a

reasonable assurance of compliance

with emission limits so long as the

emission unit is operated under the

conditions anticipated and the control

equipment that has been proven capable

of complying continues to be operated

and maintained properly. In most cases,

this relationship can be shown to exist

through the performance testing without

additional site-specific correlation of

operational indicators with actual

emission values. The monitoring design

criteria in § 64.3(a) build on this

fundamental premise of the regulatory

structure.

Thus, § 64.3(a) states that units with

control devices must meet certain

general monitoring design criteria in

order to provide a reasonable assurance
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54919

of compliance with emission limitations

or standards for the anticipated range of

operations at a pollutant-specific

emissions unit. These criteria mandate

the monitoring of one or more indicators

of the performance of the applicable

control device, associated capture

system, and/or any processes significant

to achieving compliance. The owner or

operator shall establish appropriate

ranges or designated conditions for the

selected indicators such that operating

within the established ranges will

provide a reasonable assurance of

compliance for the anticipated range of

operating conditions. The requirement

to establish an indicator range provides

the objective screening measure to

indicate proper operation and

maintenance of the emissions unit and

the control technology, i.e., operation

and maintenance such that there is a

reasonable assurance of compliance

with emission limitations or standards.

Monitoring based on indicator ranges

that establish expected operating

conditions and the proper functioning

of control technology should take into

account reasonably anticipated

operating conditions and the process

and pollution control device parameters

that significantly affect emission control

performance. The Agency notes that

monitoring which fails to take into

account significant process or control

device parameters is unlikely to provide

the reasonable assurance of compliance

with emissions limitations or standards.

The Agency does not expect that such

parameters would normally include

records of regular maintenance practices

(e.g., periodic inspection and

replacement of parts); these records may

or may not be addressed in separate

permit conditions relative to part 70

requirements. The Agency also

emphasizes that a failure to stay within

the indicator range does not

automatically indicate a failure to

satisfy applicable requirements. The

failure to stay within an indicator range

(over the appropriate averaging period,

as discussed below) does indicate the

need for the owner or operator to

evaluate and determine whether

corrective action is necessary to return

operations within design parameters,

and to act upon that determination as

appropriate.

The use of operational data collected

during performance testing is a key

element in establishing indicator ranges;

however, other relevant information in

establishing indicator ranges would be

engineering assessments, historical data,

and vendor data. Indicator ranges do not

need to be correlated across the whole

range of potential emissions. Criteria

developed in the design of the control

equipment for the emissions unit may

be used in establishing operating

indicator ranges. For example, the

engineering specifications for a venturi

scrubber installed to control particulate

emissions from an affected unit may

include design operational ranges for

liquid flow rate and pressure drop

across the venturi. Assume for this

simplified example that the scrubber

design conditions are intended to

achieve the desired emission reduction

for uncontrolled pollutant rates that

correspond to 120 percent of the

affected unit’s process design rate. The

results of a performance test during

which the scrubber is operated within

these design conditions and the process

is operated at conditions representative

of high load (near 100 percent of process

design rate) would be used to confirm

that operating within the design

conditions, the design ranges for the

liquid flow rate in conjunction with the

pressure drop across the venturi,

achieves the emission reduction desired

and provides a reasonable assurance of

compliance across the anticipated range

of process conditions for ongoing

operation.

Review of historical monitoring data

may also be used in defining an

indicator range that provides a

reasonable assurance of compliance

with emission limits. Consider the

example of a process dryer equipped

with a low-energy wet scrubber for

particulate matter control. The scrubber

exhaust gas temperature is indicative of

adequate water flow (as a result of the

heat exchange between the dryer

effluent stream and the scrubber water).

However, since the inlet scrubber water

temperature is affected by ambient

temperature, the resulting scrubber

outlet temperature will be affected by

ambient conditions. Since the scrubber

outlet temperature will vary somewhat

as a result of ambient temperature, it

makes sense to consider historical data

from different seasons of the year when

establishing the indicator range

(maximum allowable exhaust

temperature). In other words, if the

performance test were conducted in the

spring, one should also consider the

historical data from the summer months

(when the exhaust temperature would

be expected to be slightly higher) when

establishing the indicator range.

b. Possible Monitoring Methods.

Section 64.4(a)(2) of the 1993 proposed

EM rule stated that an enhanced

monitoring protocol could include

existing, modified, or new monitoring

systems. It also contained a list of

possible monitoring methods which

could satisfy the rule. The basic

elements of this subsection have been

moved in the final rule to the definition

of ‘‘monitoring’’ in § 64.1. The Agency

has made several technical changes to

the list of monitoring methodologies in

response to comments received. See

Section II.A. and the Response to

Comments Document for further

discussion.

c. Indicator Ranges or Designated

Conditions. Sections 64.3(a)(2) and (3)

of the final rule require the owner or

operator of an affected pollutant-specific

emissions unit to establish ranges or

designated conditions of the indicators

to be monitored. These ranges (e.g.,

minimum to maximum parameter value)

or conditions (e.g., specific fuel or raw

material type or control device

adjustment) must be established at a

level where the monitoring can assess

whether there is a reasonable assurance

of compliance with applicable

requirements.

The addition of indicator range

requirements to the general monitoring

design criteria serves the objectives of

part 64 and provides the permitting

authority and the owner or operator of

an affected source with information

about the operation and maintenance of

control measures in order to address any

problems with that operation and

maintenance before an emissions unit

fails to comply with applicable

requirements. An excursion from an

indicator range or designated condition

indicates a potential problem in the

operation and maintenance of the

control device and a possible exception

to compliance with applicable

requirements. The excursion signals, at

a minimum, that the owner or operator

should take appropriate corrective

action to return operations within the

established ranges. However, an

excursion from an indicator range does

not necessarily constitute a failure to

comply with the underlying emissions

limitation or standard. See Section II.D.

below for further discussion on the

degree of documentation required to

establish indicator ranges under the

final rule.

Sections 64.3(a)(3)(i)-(iv) state that

ranges may be set as follows: established

as a single maximum or minimum value

if appropriate or at different levels that

vary depending on alternative operating

conditions; expressed as a function of

process variables; expressed as

maintaining the applicable parameter in

a particular operational status; or

expressed as interdependent between

more than one indicator. These sections

also provide examples of how such

different forms of ranges might be

employed. The description of what type

of indicators and indicator ranges may
54920 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

be employed under part 64 is designed

to have a great deal of flexibility. This

allows owners or operators to develop

indicators and ranges that are most

appropriate for their affected emissions

units, so long as the basic design criteria

of part 64 are met. The Agency is also

developing guidance materials that will

provide more specific examples of the

various forms indicator ranges may take.

d. Control Device Bypass. Another

monitor design requirement in the final

rule addresses the possibility of control

device bypass. Section 64.3(a)(2)

requires that the monitoring be designed

to detect any bypass of a control device

or capture system, if such bypass can

occur based on the design of the

pollutant-specific emissions unit. The

Agency believes this requirement is

necessary under the CAM approach.

Only pollutant-specific emissions units

which use control devices to achieve

regulatory compliance are subject to

part 64. Part 64 monitoring generally

will consist of monitoring parameters

critical to the operation of those control

devices. The monitoring will not be able

to provide a reasonable assurance of

compliance with applicable

requirements if air pollutant emissions

are potentially circumventing the

control devices and/or capture systems

being monitored. The Agency has

therefore added this requirement to

ensure that no emissions are bypassing

the control device or capture system.

The Agency notes that certain

comments on the 1996 part 64 Draft

objected to this requirement. One

objection was that it could be read to

require monitoring of ‘‘bypass’’ that

involves routine recycling of vent

streams to a process where the control

device is used as a backup in case such

process recycling cannot occur. The

final rule adds the phrase ‘‘to the

atmosphere’’ to clarify that only

bypasses which result in discharge to

the atmosphere require monitoring.

Another concern was that whether

bypass monitoring should be required is

often negotiated as part of underlying

rulemakings and this requirement could

undo agreements reached on those

underlying rules. The Agency has added

a provision to clarify that bypass

monitoring is not required if an

underlying rule specifically provides

that it is not required for certain

operations or units. Finally, a concern

was raised that certain underlying rules

provide for design features that obviate

the need for monitoring (such as the use

of locking car seals). The final rule

requires bypass monitoring only if the

bypass can occur based on the unit’s

design. Where features such as locking

car seals are used, the design of the unit

effectively prevents bypass and thus

monitoring would not be required.

e. Process and Capture System

Monitoring. Commenters on the 1996

part 64 Draft also objected to the

requirement that the monitoring include

process monitoring if necessary to

assure proper operation and

maintenance of the control device. The

final rule retains this requirement, but

the language has been rephrased to

clarify that process monitoring must be

conducted only as necessary to

document that the control equipment is

being operated properly. The simplest

example would be throughput

monitoring to assure that the design

capacity of the control equipment is not

exceeded. The Agency believes that this

type of monitoring is essential to

assuring that the control equipment is

used in accordance with its design and

in a manner that will provide a

reasonable assurance of compliance.

Similarly, some commenters objected

to the monitoring of capture systems.

The Agency believes that this

monitoring is essential for the same

reasons as bypass and process

monitoring may be critical to assuring

proper operation and maintenance of

control equipment and providing a

reasonable assurance of compliance

with emission limits. If emissions are

not properly captured, those emissions

will be released uncontrolled. That

result likely would constitute a

significant compliance problem even if

the control equipment itself was being

operated and maintained properly. It is

essential that the emissions which a

control device is supposed to be

controlling are in fact sent to the device

for control. Thus the Agency believes

that assuring that the capture system is

properly operated and maintained is

also essential.

f. Fugitive Emissions Monitoring.

Under the 1993 EM proposal, fugitive

emission points for which compliance is

evaluated on a process-wide or facilitywide basis were potentially subject to

part 64 enhanced monitoring

requirements. Section 64.4(d) of the

proposed rule would have established

enhanced monitoring protocol

requirements for such fugitive emissions

points. Many commenters raised

objections to these provisions, arguing

that § 64.4(d) required either

burdensome monitoring of emissions

from each fugitive emissions point or

the use of costly monitoring devices to

monitor fugitive emissions. The Agency

does not necessarily agree with these

comments, noting that proposed

§ 64.4(d) was intended to allow for costeffective multi-point monitoring at

affected fugitive emissions sources. The

final rule, however, applies only to

those emissions units for which

emissions are vented to a control device.

By definition, fugitive emissions are

those emissions which cannot

reasonably be vented through a stack,

chimney, vent, or similar opening and

thus will not be subject to part 64. Since

there is no need for detailed fugitive

emissions monitoring requirements

under the final rule, the provisions in

proposed § 64.4(d) have been

eliminated.

2. Performance and Operating Criteria

The final part 64, like the 1993 EM

proposal, requires that part 64

monitoring be subject to minimum

performance specifications, quality

assurance and control requirements,

monitoring frequency requirements, and

data availability requirements. These

requirements assure that the data

generated by the monitoring under part

64 present valid and sufficient

information on the actual conditions

being monitored. The final rule includes

a series of performance and operating

design criteria in §§ 64.3(b) through (d).

The Agency received substantial public

comment on the performance and

operating criteria of the 1993 EM

proposal, which were contained in a

series of four appendices. Many

commenters raised concerns that the

organization of the appendices was

confusing. A number of commenters

suggested that the appendices required

certain monitoring options to achieve

inapplicable specifications or did not

provide adequate guidance on the

requirements for non-instrumental

monitoring options. Commenters also

raised a number of concerns specific to

individual requirements. Finally, a great

many commenters argued that the

reliance on detailed specifications in the

appendices which focused on the use of

certain monitoring methodologies, such

as CEMS, precluded the use of more

cost-effective alternative methodologies,

creating a strong bias for the use of

continuous emission monitoring

methodologies.

The Agency agrees with a number of

those comments and has substantially

revised the performance and operating

criteria in the final rule to address the

concerns they raised. Overall, these

requirements have been greatly

streamlined and simplified. There are

no appendices to the final rule

delineating more detailed performance

and operating criteria. To assure

consistency with existing monitoring

programs, the performance criteria in

the final rule also reflect other federal

monitoring requirements, such as the

NSPS general provisions in 40 CFR part
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54921

60 and the NESHAP general provisions

in 40 CFR part 63. The following

discussion addresses each of the key

performance and operating criteria in

the final rule.

a. Data Representativeness. Section

64.3(b)(1) of the final rule requires that

the monitoring proposed by the owner

or operator include location and

installation specifications (if applicable)

that allow for the obtaining of data

which are representative of the

emissions or parameters being

monitored. Although this provision

describes no specific tests for

monitoring plan acceptability, it does

establish an objective duty to insure that

the data collected are representative of

the operations being monitored. This

provision is similar to the analogous

requirements included in appendix B of

the 1993 EM proposal. It is also

analogous to the general monitoring

provisions applicable to all monitoring

under the NSPS program in § 60.13. The

Agency has added the phrase ‘‘if

applicable’’ to clarify that

noninstrumental monitoring approaches

may not require location or installation

specifications.

The 1993 EM proposal would have

required owners or operators to

‘‘[s]atisfy applicable performance,

equipment, installation and calibration

gas specifications in accordance with

the specifications and procedures

provided in appendices A and B of this

part.’’ The appendices then required all

enhanced monitoring protocols to

satisfy generally applicable performance

specifications including relative

accuracy requirements; maximum levels

of calibration error; measurement span

requirements; response time

requirements; measurement technique

procedures; and requirements for

equipment design, installation, and

location. Many commenters observed

that the high level of specificity

required in the proposed appendices

would limit the types of monitoring

protocols that could be approved, while

many other commenters argued that the

performance and operating

requirements were too subjective when

applied in the context of demonstrating

compliance with the 1993 EM proposed

rule’s general monitoring requirements.

The Agency believes that such detailed

requirements are unnecessary for the

type of monitoring that is required to

satisfy the final rule, but does believe

that the general obligation to assure that

representative data are obtained is

necessary in part 64 just as it is in other

programs such as NSPS.

b. Verification of Operational Status.

Section 64.3(b)(2) requires verification

procedures to confirm the initial

operational status of new or modified

monitoring equipment. These

requirements specify that the owner or

operator must consider manufacturer

requirements or recommendations for

installation, calibration and start-up

operation. Owners or operators must

provide documentation where the

manufacturer’s procedures are not

followed. The Agency notes that under

the NSPS program such manufacturer

requirements and recommendations

must be followed. However, because of

the breadth of part 64 applicability, the

Agency believes that the more flexible

language in § 64.3(b)(2) is appropriate,

especially given that the submittal

requirements in § 64.4 will require that

the owner or operator document the

changes it proposes.

Some comments on the 1996 part 64

Draft stated that the requirements to

verify operational status were overly

burdensome given that many units will

rely on existing monitoring to satisfy

part 64. The final rule clarifies that

verification of operational status is

required only for units with new or

modified monitoring.

c. Quality Assurance and Control.

Section 64.3(b)(3) of the final rule

requires quality assurance and control

practices which are ‘‘adequate to ensure

the continuing validity of the data.’’

This language ensures that monitoring

under part 64 will have to include

adequate procedures to document that

the monitoring remains operational and

can provide suitable readings for the

purpose of measuring changes in control

performance. Satisfying this general

design criterion should not be confused

with the detailed quality assurance

provisions required for monitors that are

used to determine direct emission limit

compliance, such as appendix F to part

60. The 1993 EM proposal generally

would have required compliance with

appendix F for CEMS or comparable

quality assurance requirements for other

monitoring approaches. Numerous

commenters expressed concerns about

the burdens of quality assurance under

the proposed EM rule. They pointed out

several instances in the proposed

appendices that appeared to establish

presumptions of daily calibrations for

all types of enhanced monitoring

protocols or appeared to require overly

frequent reverification of parametric

correlations.

In contrast, the focus of the final

rule’s quality assurance requirements is

on the minimum degree of ongoing

quality checks that are necessary to rely

on the data for purposes of indicating

whether the unit remains in compliance

and whether corrective action is

necessary. The Agency recognizes that

many types of monitoring which satisfy

the final rule will not be based on the

type of sophisticated equipment that is

prone to calibration drift and loss of

data quality over time, and the revised

quality assurance provisions of the final

rule reflect this understanding. The

required level of quality assurance

differs from certain existing quality

assurance procedures such as appendix

F of 40 CFR part 60 for a CEMS. With

respect to a CEMS, the general

requirements for assuring ongoing data

quality that are contained in 40 CFR

60.13 and the performance

specifications in appendix B of part 60

(such as zero and span checks) provide

adequate quality control checks for the

purpose of using the CEMS to indicate

control performance for providing

assurance of compliance. This approach

of requiring only limited quality

assurance is followed under the NSPS

where a CEMS is not used as the

compliance test method for direct

continuous compliance monitoring. For

types of monitoring other than CEMS,

ongoing quality control measures must

be adequate to ensure that the

monitoring remains operational and can

provide readings suitable for the

purpose of measuring changes in control

performance that indicate possible

exceptions to compliance. An example

of this type of requirement is the

quarterly recalibration requirement in

§ 60.683(c) for wet scrubber parameter

monitoring at wool fiberglass insulation

manufacturing plants.

Again, the final § 64.3(b) directs

owners or operators to consider

manufacturer requirements or

recommendations in developing quality

assurance practices, and § 64.4 requires

the owner or operator to document any

changes in recommended quality

assurance practices. The permitting

authority and others can then evaluate

the proposed procedures during the

permitting process.

d. Frequency of Monitoring. Section

64.3(b)(4) of the final rule establishes

the general criteria for monitoring

frequency, data collection procedures

(such as manual log entry, strip chart, or

computerized collection procedures),

and data averaging periods, if applicable

to the proposed monitoring. The final

rule requires that the monitoring

frequency (including associated

averaging periods) be designed to obtain

data at such intervals that are, at a

minimum, commensurate with the time

period over which an excursion from an

indicator range is likely to be observed

based on the characteristics and typical

variability of the pollutant-specific

emissions unit (including the control

device and associated capture system).
54922 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

In addition, the final rule specifies

minimum data collection frequency for

pollutant-specific emissions units in

accordance with their potential to emit.

For ‘‘large’’ pollutant-specific emissions

units (i.e., those units with the potential

to emit the applicable pollutant emitted

in an amount equivalent to or in excess

of the amount established for

classification as a major source), the

monitoring frequency generally must

satisfy a design criterion of four or more

data values equally spaced over each

hour of operation. This minimum data

collection frequency is consistent with

the frequency established by the Agency

for continuous monitoring systems.

Note that a permitting authority may

reduce this minimum data collection

frequency upon submission and

approval of a request prepared by the

owner or operator, and the rule provides

a non-exclusive list of situations in

which less frequent monitoring of

certain parameters may be warranted.

Other pollutant-specific emissions units

are subject to a less frequent data

collection requirement but some data

must be collected for every unit subject

to this rule at least once per day. The

final rule thus sets a monitoring

frequency standard appropriate to the

focus on detecting changes in control

device performance which could

indicate possible noncompliance and

for which corrective action is

appropriate.

For example, many types of control

devices are subject to rapid changes in

performance and thus the frequency

design criterion could result in frequent,

near continuous collection of parametric

data that are subsequently averaged over

an appropriate period of time. Many

NSPS subparts require continuous

parametric control device data, which

are then averaged over an appropriate

interval (often consistent with the

required minimum time for conducting

a compliance test). Recent NESHAP

have required control device parameter

monitoring for direct compliance

purposes. In these instances, a daily

average of continuous data (i.e., data

recorded at least every 15 minutes) is

often used (see, e.g., § 63.152(b)(2)). For

some control devices, the intervals

between data collection points may be

increased. The Agency is in the process

of developing guidance for part 64

implementation, including example

monitoring approaches. The guidance

will indicate how the frequency of

monitoring, data collection procedures,

and averaging of data points can vary

based on the type of emissions unit and

the control device involved.

e. Data Availability. The 1996 part 64

Draft rule included a presumptive

minimum data availability of 90 percent

for the averaging periods in a reporting

period. The final rule does not include

such a presumptive requirement opting

instead for affording the source owner

or operator and the permitting authority

flexibility in establishing appropriate

site-specific conditions. Further, the

final rule maintains the general duty

requirement in § 64.7 that the owner or

operator shall maintain and operate the

monitoring at all times the pollutantspecific emissions unit is operating

except for periods of monitoring

malfunctions, associated repairs, and

required quality assurance or control

activities (such as calibration checks

and (if applicable) required zero and

span adjustments). This section of the

final rule also requires that the owner or

operator shall use all the data collected

during all other periods in assessing the

operation of the control device and

associated control system. Under the

savings provisions of § 64.10 of the final

rule, source owners or operators must

satisfy any existing data availability

requirement established for monitoring

associated with a particular emission

limitation or standard.

The 1993 EM proposal would have

required that an enhanced monitoring

protocol satisfy any minimum data

availability requirement that is

applicable to the monitoring under a

separate applicable emission limitation

or standard pursuant to part 60 or 61 of

this chapter. Where no existing data

availability requirement would have

applied, the proposed rule would have

required the enhanced monitoring

protocol to satisfy a data availability

requirement that reflected obtaining

quality-assured data for all emissions

unit operating time periods excluding a

fixed percentage of operating time that

the owner or operator justified to the

permitting authority as necessary to

conduct quality assurance procedures.

The preamble to the proposed rule

stated that the only acceptable

downtime under this requirement

would be the time necessary to perform

quality assurance testing and routine

maintenance. The primary concern

expressed in public comments on the

data availability requirement was that

the default requirement failed to take

into account the likelihood that some

repairs of instrumental components

would be necessary even if the owner or

operator performed all routine

maintenance as appropriate. The

Agency believes that the general duty

requirement in the final rule effectively

addresses the commenters’ concerns,

while still assuring that the owner or

operator is responsible for collecting

data at all required intervals, except

where downtime is necessary to

conduct required quality assurance or to

respond to malfunctions that could not

reasonably have been prevented.

A number of comments on the 1996

part 64 Draft objected to the 90 percent

data availability presumption. Many

pointed to a number of applicable

requirements in which EPA has used 75

percent as the required minimum data

availability. Others argued that EPA

failed to present any data to document

the reasonableness of the presumption.

The Agency agrees with some of the

commenters that a presumptive

minimum data availability requirement

may not be not generally applicable;

although, the general obligations to

operate the monitoring at all times with

only specific exception periods and to

collect and use all the data for reporting

purposes are universal. The final rule

reflects this position and allows the

source owner or operator and the

permitting authority the flexibility to

specify a separate minimum data

availability if justified or required under

a separate rule.

3. Special Considerations for CEMS,

COMS and PEMS

One method of assessing control

performance is to calculate emission (or

opacity) rates directly in order to track

trends in emissions (or opacity) that

document decreased control

effectiveness. This type of monitoring

could include a continuous emission or

opacity monitoring system (CEMS or

COMS) or a predictive emission

monitoring system (PEMS) in which

various process and control parameters

are evaluated to predict emissions.

(Where this type of monitoring is

specified by the applicable standard to

be used to determine compliance with

an emission standard or limitation on a

continuous basis, the requirements of

part 64 do not apply to that emission

standard or limitation. See

§ 64.2(b)(1)(vi).)

The EPA believes that these types of

monitoring are preferable from a

technical and policy perspective as a

means of assuring compliance with

applicable requirements because they

can provide data directly in terms of the

applicable emission limitation or

standard. Therefore, where such

systems are already required,

§ 64.3(d)(1) mandates that the design of

the monitoring under part 64

incorporate such systems. This means

that source owners and or operators

whose emission units have had CEMS,

COMS, and/or PEMS imposed by

underlying regulations, emissions

trading programs, judicial settlements,
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54923

or through other circumstances must

use those CEMS, COMS, and/or PEMS

when complying with part 64 for those

emissions units. Even where the use of

such monitoring is not mandated, the

use of any of these types of systems in

accordance with general monitoring

requirements and performance

specifications (or comparable permitting

authority requirements if there are no

requirements specified for a particular

system) will be sufficient for a CEMS,

COMS or PEMS to satisfy generally the

design criteria in § 64.3(a) and (b).

One exception to this general rule is

that if a COMS is used as a control

performance indicator, and both a

particulate matter and opacity standard

apply, the monitoring will have to

include an indicator range satisfying

§ 64.3(a)(2) and (3). Comments received

in response to the 1996 part 64 Draft

included the suggestion that COMS not

be subject to the requirement to

establish indicator ranges. The Agency

has decided to retain this requirement.

A CEMS or PEMS will provide data in

terms of the applicable pollutant and

therefore the process of identifying and

reporting exceedances serves the same

purpose as an indicator range. For

assuring compliance with an opacity

standard, a COMS also achieves this

objective. However, depending on the

type of control equipment being used

and the design of an emissions unit

(especially stack diameter), opacity

standards are often established at a level

which represents a likely significant

exceedance of the particulate matter

standard. In those circumstances, an

opacity level below a required opacity

standard would be more appropriate as

a CAM indicator. Therefore, the use of

a COMS may require an appropriate

indicator range to be established that is

different than the applicable opacity

standard. The Agency notes that the

averaging period for such an indicator

range would not necessarily have to be

consistent with the typical averaging

time of an opacity standard (i.e., six

minutes).

The final special design criterion for

a CEMS, COMS or PEMS is to design the

system to allow for reporting of

exceedances. Again, in many cases, the

reporting requirements for exceedances

(or excess emissions) will already be

established in existing requirements.

However, in some cases the owner or

operator, prior to implementing part 64,

will not have continuous monitoring

associated with an applicable emission

limit, and the underlying regulation

may not specify an appropriate time

period for averaging data to report

excess emissions. For example, this

situation could arise in the example

provided above for a part 75 Acid Rain

CEMS being used to monitor

compliance with a SIP limit. In this

circumstance, the owner or operator

will have to design the system to

include an appropriate period for

defining exceedances consistent with

the emission limitation or standard. If

the underlying applicable requirement

does not require use of a specific

averaging period, the averaging period

should be designed using the same

criteria as used for other part 64

monitoring under § 64.3(b)(4).

There was a concern about a

perceived bias towards continuous

emission monitoring methodologies in

many public comments on the

monitoring design and selection

provisions of the 1993 EM proposal. In

addition, many comments supported the

notion that existing monitoring should

be used wherever possible to reduce the

burdens of part 64. Section 64.3(d)

addresses both of these comment areas.

It emphasizes the use of existing

monitoring where that monitoring on its

face is able to meet the part 64 design

criteria, but it clarifies that the rule does

not mandate the use of CEMS in

situations where such monitoring is not

already required. See also Section II.D.

below which discusses in further detail

the potential use of existing monitoring

to satisfy part 64.

Stakeholders commented that the

1996 part 64 Draft rule did not address

procedures for approving alternatives to

CEMS or COMS as per the procedures

specified in the general provisions of 40

CFR parts 60, 61, and 63. The Agency

already has procedures for

documenting, reviewing, and approving

alternatives to performance test methods

and monitoring procedures. Part 64

need not address these procedures. The

Agency recommends that source owners

or operators wishing to pursue

alternatives to CEMS or COMS follow

existing alternative methods processes.

4. Monitor Failures

Section 64.4(g) of the 1993 EM

proposal would have provided a defense

to violations of the data availability

requirement where an interruption of

the normal operation of an enhanced

monitoring protocol was the result of a

monitor failure or malfunction. This

section would have operated in

conjunction with proposed § 64.5(e) to

establish general notification and

corrective action requirements in

response to monitor failures and

malfunctions. The proposed rule would

have provided a defense to data

availability violations where the

following criteria were met: The

monitoring failure was the result of a

sudden and unforeseeable malfunction;

the monitoring systems and procedures

had been properly operated and

maintained prior to and up to the time

of the malfunction; and the owner or

operator took all reasonable steps to

minimize the period the monitoring

system was inoperative.

This section has been eliminated in

the final rule. The Agency does not

believe that there is a need for a data

availability violation defense in part 64.

The final rule does not require that the

permit establish a specific data

availability requirement. Rather, the

owner or operator is under a general

duty to operate the monitoring at all

required intervals whenever the

emissions unit is operating. The only

exception to this duty is if the

inoperation of the monitoring is caused

by a monitor malfunction, associated

repairs or required quality assurance or

control activities. Monitor malfunctions

are limited to those breakdowns which

occur as a result of a sudden, infrequent,

and not reasonably preventable failure

of the monitoring to provide valid data.

Monitoring failures that are caused in

part by poor maintenance or careless

operation are not considered

malfunctions. This approach is similar

to the malfunction defense included in

the proposed rule, but does not entail

the elaborate procedural elements of the

proposed rule. To the extent a particular

data availability requirement cannot be

achieved for reasons that are no fault of

the owner or operator, EPA believes that

the proper use of oversight discretion

can account for those situations.

D. Section 64.4—Submittal

Requirements

Section 64.4 of the final rule outlines

what information the owner or operator

must submit with a part 70 permit

application to propose the monitoring

approach selected by the owner or

operator. The required information has

two basic components: general

information necessary to justify the

appropriateness of the proposed

monitoring; and information to justify

the appropriateness of the indicator

ranges to be used for reporting

exceedances or excursions.

1. General Information on the Proposed

Monitoring

Section 64.4(a) first requires that the

owner or operator identify the basic

monitoring approach and indicator

ranges that will form the primary

elements of the monitoring, as well as

the key performance and operating

specifications needed to meet the design

criteria in § 64.3. In submitting

proposed indicator ranges, the owner or
54924 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

operator can either submit the actual

proposed ranges or the methodology

that will be followed to establish the

indicator ranges.

Section 64.4(b) then requires that the

owner or operator submit relevant

information to justify the proposed

monitoring approach. The justification

can rely on any available information,

including appropriate reference

materials and guidance documents. If an

existing requirement already establishes

monitoring for the pollutant-specific

emissions unit, the justification can rely

in part on that existing requirement. For

certain types of monitoring, no

extensive justification should be

necessary because the final rule creates

a rebuttable presumption that the

monitoring satisfies part 64. When an

owner or operator relies on one of these

monitoring approaches, all that initially

should be necessary is an explanation of

why the monitoring is applicable to the

unit in question. These types of

monitoring include CEMS, COMS, or

PEMS; excepted or alternative

monitoring approaches allowed under

part 75; and continuous compliance

determination monitoring or monitoring

for post-11/90 NSPS and NESHAP

requirements that are exempt under

§ 64.2(b) but that may be applicable to

the control equipment for other nonexempt emissions limitations at the

same emissions unit. The reason for this

presumption is similar to the reason for

excepting from part 64 units that have

such monitoring as their compliance

determination method. The rule also

notes that presumptively acceptable or

required monitoring approaches

established by rule by a State to achieve

compliance with part 64 are deemed

presumptively acceptable. This last

option is included to promote the

adoption of State programmatic rules

designed to detail presumptively

appropriate part 64 monitoring.

Finally, consistent with Panhandle

Producers & Royalty Owners Ass’n v.

Economic Regulatory Administration,

822 F.2d 1105 (D.C. Cir. 1987), the rule

includes as presumptively acceptable

monitoring, monitoring that is so

designated by EPA through guidance

documents. Such presumptively

acceptable monitoring identified by EPA

in guidance may also serve as models

for permitting authorities to consider in

programmatic rulemaking. Generally,

EPA intends to issue such guidance

only after providing notice and seeking

comment on such monitoring. After

considering comments received on the

monitoring requirements for flares in 40

CFR 60.18, EPA is designating, at this

time, that monitoring as presumptively

acceptable. This designation is being

made in recognition that some

published monitoring practices or

protocols provide sufficient design and

monitoring performance specifications

to satisfy CAM requirements while not

fully satisfying the part 64 definition for

a continuous compliance determination

method. Some presumptively

monitoring protocols may include

procedures for calculating compliance

with applicable emission limitations or

standards but have some portions

subject to CAM requirements (e.g.,

monitoring to indicate a reasonable

assurance that control device efficiency

is maintained at an assumed level) as

indicated in § 64.2(b)(1)(vi) of the rule.

Reliance on presumptively acceptable

monitoring will relieve owners and

operators of the initial burden of

justifying that the monitoring selected

satisfies part 64. However, this

presumption of acceptability is

rebuttable, and, if information or

evidence rebutting the presumption is

brought forward, the owner or operator

must bear the burden of justifying that

the proposed monitoring complies with

part 64. Final decisions as to the

acceptability of monitoring rest with the

informed discretion of the permitting

authority, subject to permit review by

EPA under 40 CFR 70.8, taking into

account any appropriate presumption

and all other relevant information and

data.

Finally, § 64.4(b) requires the owner

or operator to identify and explain any

changes in manufacturer

recommendations or requirements

applicable to installation, verification

and quality assurance of the monitoring.

As explained above, the § 64.3(b) design

criteria allow for these differences even

though EPA generally requires the

owner or operator to comply with such

provisions. This documentation

requirement is important to allow an

appropriate evaluation of the reasons for

changing these manufacturer

specifications.

These submittal requirements

streamline the similar requirements in

the 1993 EM proposal. First, § 64.7 of

the proposed rule would have required

that a permit application incorporate a

proposed enhanced monitoring protocol

for every applicable emission limitation

or standard at each emissions unit

subject to the proposed rule. This

protocol would have had to contain

information about and supporting

documentation for a number of

elements, including proposed

performance specifications, quality

assurance procedures, test plans for

conducting performance verification

tests, and a list of all technologically

feasible monitoring methodologies

which could have been employed in the

proposed protocol. Owners or operators

of affected emissions units would have

also been required to identify new

technologically feasible monitoring

methodologies when submitting a

permit renewal application. Second,

§ 64.4(e)(3) of the proposed rule also

covered permit application submittal

requirements. That section would have

required the owner or operator of an

affected emissions unit to submit as part

of a permit application all of the

descriptions, explanations,

justifications, and supporting data

necessary to justify that a proposed

enhanced monitoring protocol could

satisfy the requirements of the proposed

rule. This section explicitly placed the

burden of proof on the owner or

operator proposing an enhanced

monitoring protocol to show that the

protocol met the rule’s requirements.

A number of commenters raised

concerns about these permit application

requirements. Some argued that the

specific information requested, such as

information pertaining to a parametric

relationship, may not be available prior

to installation of control technology and

permit issuance. Others contended that

the requirements to include information

on all technologically feasible

monitoring methodologies was an

illustration of a perceived bias towards

the use of costly continuous emission

monitoring methods under the 1993 EM

proposal. In response to some of these

concerns and in furtherance of the goal

of providing a reasonable assurance of

compliance with applicable

requirements, the Agency has replaced

these detailed permit application

requirements with the provisions

described above in the final rule.

Third, many industry commenters

opposed the enhanced monitoring

protocol selection and proposal

requirements in § 64.4(f) of the 1993 EM

proposal. The proposal would have

established a procedure for the selection

of enhanced monitoring protocols that

required owners or operators to justify

the use of a proposed enhanced

monitoring protocol over other available

monitoring methodologies. Under this

proposed procedure, owners or

operators were first directed to consider

‘‘established monitoring,’’ defined as

monitoring that had been previously

demonstrated as a feasible means of

assessing compliance at a specific

emissions unit. An owner or operator

could propose to use the ‘‘best

established monitoring.’’ The

determination of which established

monitoring methodology was ‘‘best’’

was intended to be an evaluation of

what type of monitoring was most
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54925

appropriate to determine continuous

compliance at a specific emissions unit.

If no ‘‘established’’ monitoring

methodology could satisfy the

performance and operating

requirements of the proposed rule,

owners or operators could propose

additions or modifications to an

established form of monitoring. If no

established monitoring methodology

applied, or if the owner or operator

considered the established monitoring

inappropriate, then an alternative

monitoring could be proposed. In these

circumstances, the proposed rule

required the owner or operator to

identify all monitoring methodologies

that were technologically feasible for the

particular emissions unit, selecting from

that list the ‘‘best’’ methodology for that

unit based on a site-specific assessment.

Commenters argued that the

requirement to select ‘‘best monitoring’’

would impose a ‘‘top-down’’ selection

process with a bias towards selection of

a CEMS or similar monitoring system.

Several commenters contended that the

legislative history of section 114(a)(3)

did not support a requirement that the

approved enhanced monitoring protocol

be the ‘‘best’’ available. Industry

commenters also stated that requiring an

owner or operator who proposed

alternative monitoring to list all

technologically feasible monitoring

methodologies would impose

unnecessary costs and burdens. Most of

those opposing the selection provisions

suggested that the rule should allow the

owner or operator to propose any

monitoring that met the basic

requirements of the rule. In the

alternative, many commenters suggested

making cost an explicit criterion in the

monitoring selection process.

Under the CAM approach, the owner

or operator may propose any monitoring

that can meet the design criteria in

§ 64.3 of the final rule. Thus, the

comments regarding whether 1993 EM

proposal imposed a top-down selection

hierarchy are no longer relevant.

In response to the 1996 draft part 64,

some commenters objected to the need

to submit a rationale or justification for

the proposed monitoring. The Agency

disagrees. This information will be

necessary for the permitting authority,

the public, and EPA to judge the

appropriateness of the proposed

monitoring for satisfying the design

criteria in § 64.3. In addition, this

requirement builds on similar regulatory

precedents in the NSPS and NESHAP

programs. Under those programs, EPA

has routinely required the owner or

operator to submit a proposed

monitoring approach and supporting

rationale where the owner or operator

intends to use a control device for

which the underlying standard does not

contain specific monitoring procedures.

(See, e.g., 40 CFR 60.473(c), 60.544(b),

60.563(e), 60.613(e) and 60.663(e).)

Commenters on the 1996 part 64 Draft

also raised concerns that the rule did

not contain any provisions promoting

the use of existing monitoring to satisfy

part 64. Clearly, many existing

monitoring requirements include some

degree of monitoring that is used to

indicate compliance through

documenting important operating

variables. As such, these requirements

are generally consistent with the CAM

approach. Thus, §§ 64.3(b) and 64.4(b)

specifically allow for the owner or

operator to design and justify proposed

part 64 monitoring applying or building

on existing applicable requirements.

The rule uses the phrase ‘‘in part’’

because there is no assurance that the

existing monitoring necessarily satisfies

all of the part 64 design criteria. As

described above, for certain monitoring

that the Agency believes already meets

the part 64 design criteria categorically,

the owner or operator is likely to be able

to rely completely on those regulatory

precedents to justify the monitoring

proposed to satisfy part 64. The Agency

believes these provisions adequately

provide for the consideration of existing

monitoring and build upon the

‘‘established monitoring’’ concept in the

1993 EM proposal without the

cumbersome selection process hurdles

included in that proposal.

Industry commenters on the 1996 part

64 Draft proposed that the cost of

monitoring that will provide a

reasonable assurance of compliance be

considered in light of the reliability of

the pollution control technology, the

margin of compliance demonstrated for

the emissions unit, the emissions

variability, and the reliability of the

monitoring. State and local agency

commenters noted that a demonstration

of a credible relationship between

parameter monitoring and actual

emissions was primary in determining a

reasonable assurance of compliance.

These agency commenters also listed

reliability of monitoring, margin of

compliance, and potential emissions

variability as elements to consider in

such a demonstration. The Agency

agrees that part 64 should enable the

owner or operator and the permitting

authority to consider these factors in

developing and approving monitoring in

a manner that both allows flexibility in

design and provides a reasonable

assurance of compliance. As noted

above, the rule specifically allows for

the use and augmentation of existing

monitoring in lieu of developing and

installing completely new monitoring

approaches. Further, §§ 64.3(c) and

64.6(a) of the final rule reference the

evaluation factors mentioned by both

groups of commenters to apply in

developing and reviewing monitoring to

meet part 64 requirements. The Agency

believes that in this manner, the owner

or operator and the permitting authority

can agree on cost-effective monitoring

that results in the reasonable assurance

of compliance required by part 64.

2. Documentation and Justification for

Indicator Ranges

Section 64.4(c) of the final rule

requires that an owner or operator

propose indicator ranges supported by

data obtained during the conduct of the

applicable compliance or performance

testing at the pollutant-specific

emissions unit and supplemented, as

necessary, by engineering assessments

and manufacturer’s recommendations.

An owner or operator can satisfy this

requirement with existing compliance

test method data, if applicable. The use

of existing data is limited to

circumstances in which no changes

have occurred since the data were

obtained that could significantly affect

the conditions for which the indicator

ranges were established since the

performance testing was conducted.

Such significant changes include, but

are not limited to, an increase in process

capacity, a modification to the control

system operating conditions, or a

change in fuel or raw material type or

chemical content. Because of the

assurances provided through

representative performance testing in

conjunction with documentation

provided by the use of engineering and

other information, the final rule also

explicitly states that testing over the

entire indicator range or range of

potential emissions is not required.

If site-specific compliance testing

method data are unavailable, § 64.4(c)

gives an owner or operator two options.

Indicator ranges can be based on testing

to be conducted pursuant to a test plan

and schedule for obtaining the

necessary data. An owner or operator

may also choose to rely on other forms

of data to establish the proper indicator

ranges. However, if the owner or

operator proposes to rely on engineering

assessments and other data without

conducting site-specific compliance

method testing, § 64.4(c)(2) requires

submission of documentation to

demonstrate that factors applicable to

the owner or operator’s specific

circumstances make compliance method

testing unnecessary. Section 64.6(b)

gives the permitting authority the

discretion to require compliance
54926 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

method testing where necessary to

confirm the ability of the monitoring to

provide data that are sufficient to satisfy

part 64.

These provisions are similar to but are

less prescriptive than the comparable

provisions in the 1993 EM proposal as

well as less contingent upon a statistical

correlation between operational

parameters and emission levels. Section

64.4(f) of the 1993 EM proposal would

have operated with proposed

§ 64.4(b)(2) and appendix C to describe

all requirements related to performance

verification testing under the 1993 EM

proposal. Section 64.4(b)(2) of the EM

proposal established a duty under the

proposed rule’s general performance

and operating criteria to conduct

applicable performance verification test

procedures in accordance with

appendix C. Appendix C of the proposal

contained specifications on the

procedures to be used by an owner or

operator for validating the

representativeness of a monitoring

protocol and the performance

verification procedures for continuous

monitoring systems. Section 64.4(f)

would have required owners to submit

with a permit application a test

schedule and test plan that described

the procedures, reference methods, test

preparations, locations and other

pertinent information for all required

performance verification tests.

Section 64.4(b)(2) would have

required an owner or operator who

sought to include process or control

device parameter monitoring in an

enhanced monitoring protocol to

conduct verification testing in

accordance with appendix C. Section 7

of proposed appendix C described the

required procedures for testing the

correlation between the parameter(s) to

be monitored and the applicable

emission limitations or standards.

Section 64.4(f)(1) of the proposed EM

rule stated that a test plan for parameter

monitoring correlation tests must

describe any significant process or

control device parameters not included

in the proposed enhanced monitoring

protocol and must demonstrate that

excluding such parameters will not

adversely affect the validity of the

correlation. This section also would

have required the owner or operator

proposing the use of parameter

monitoring to demonstrate the validity

of the parameter correlation over the

potential range of facility operations.

Industry commenters had a number of

objections to and suggestions for

improvement of the proposed rule’s

performance verification testing

requirements and related permit

application requirements. To reduce

costs, some commenters suggested that

performance verification tests should

not need to be conducted under part 64

where adequate prior tests have been

conducted pursuant to another

applicable requirement. The Agency

agrees and has adopted this approach in

the final rule. A number of commenters

expressed concerns about the level of

detail which had to be included in the

monitoring verification test plan. The

EPA believes that the documentation

provisions of the final rule will

generally not require the same level of

detail that would have been required

under the proposed rule. Several

commenters objected to the requirement

to account in detail for all potentially

significant parameters when

documenting parameter range

correlation testing. The Agency has not

included a similar explicit requirement

in the final rule’s documentation and

testing requirements for the

establishment of indicator ranges. The

Agency does note that an indicator

range which fails to take into account

significant control device parameters is

unlikely to provide the reasonable

assurance of compliance with emission

limitations or standards required by

§ 64.3(a).

Finally, a number of commenters who

supported the availability of parameter

monitoring under the proposed rule

stated that the correlation testing

requirements would be difficult and

expensive to meet and would

discourage source owners or operators

from using parameter monitoring. In

addition, in response to the 1996 part 64

Draft, a number of commenters opposed

the requirement to establish indicator

ranges by conducting performance or

compliance testing. They asserted that

this either was an improper attempt to

revive the correlation requirements in

the 1993 EM proposal, or unnecessary to

establish the appropriate range for most

parameters.

As discussed above in Section II.C.,

the CAM approach builds on the

premise that if an emissions unit is

proven to be capable of achieving

compliance as documented by a

compliance or performance test and is

thereafter operated under the conditions

anticipated and if the control equipment

is properly operated and maintained,

then there will be a reasonable

assurance that the emissions unit will

remain in compliance. In most cases,

this relationship can be shown to exist

through results from the performance

testing without additional site-specific

correlation of operational indicators

with actual emission values. The CAM

approach builds on this fundamental

premise of the regulatory structure.

However, as raised in the Portland

Cement Response to Remand discussed

in Section II.C., one difficult element of

using ‘‘proper operation and

maintenance’’ as a regulatory tool is the

potential difficulty in determining

whether proper operation and

maintenance has in fact occurred. Thus,

a critical issue that the CAM approach

must address is establishing appropriate

objective indicators of whether a source

is ‘‘properly operated and maintained.’’

In developing the final rule, EPA looked

to past regulatory experience in

developing a balanced approach to

establishing indicator ranges and using

the monitoring to assure compliance

performance.

In proposing the operation and

maintenance requirements in 40 CFR

60.11(d), EPA required that owners or

operators maintain and operate their

facilities ‘‘in a manner consistent with

operations during the most recent

performance test indicating

compliance.’’ 38 FR 10821, May 2, 1973.

The obvious rationale behind this

original language was that if the source

was in compliance during the test, and

it continued to operate its equipment as

it was operated during the test, there

was a reasonable assurance that the

source would remain in compliance.

This language, however, was revised

when the rule was promulgated on

October 15, 1973. In the preamble to the

promulgated rule, EPA explained that

the language was changed because of

comments which questioned ‘‘whether

it would be possible or wise to require

that all of the operating conditions that

happened to exist during the most

recent performance test be continually

maintained.’’ 38 FR 28565. The EPA

therefore revised § 60.11(d) to require

that source owners or operators operate

and maintain their pollution control

devices ‘‘in a manner consistent with

good air pollution control practices for

minimizing emissions.’’ Id.

This regulatory history argues against

a strict requirement that part 64 require

indicator ranges to be related exactly to

the operating conditions that existed

during a performance test. However, in

many NSPS subparts, and more recently

in MACT standards, EPA generally has

required that operation and

maintenance indicators be established

during an initial performance test, with

some allowance for adjusting the

indicator values observed during the

test. For instance, where a thermal

incinerator is used to comply with a

VOC emission limit, the NSPS subparts

usually require the owner or operator to

establish a baseline temperature value

as an indication of whether the

incinerator is properly operated and
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54927

maintained. The baseline temperature

value is established at a value 50

degrees Fahrenheit below the average

temperature recorded during the most

recent performance test (see, e.g., 40

CFR 60.615(c)(1).) In recent MACT

examples, EPA has required the

indicator ranges to be established during

performance testing, but with an

allowance to supplement the

performance test data with engineering

assessments; in addition, the MACT

requirements often state that testing

across the full range of operating

conditions is not required where the

indicator range is subject to review and

approval. (See, e.g., 40 CFR 63.654(f)

(3)(ii)(A) and 63.1334(c).)

Based on these NSPS and MACT

examples, the presumptive approach for

establishing indicator ranges in part 64

is to establish the ranges in the context

of performance testing. To assure that

conditions represented by performance

testing are also generally representative

of anticipated operating conditions, a

performance test should be conducted

under conditions specified by the

applicable rule or, if not specified,

generally under conditions

representative of maximum emission

potential under anticipated operating

conditions. In addition, the rule allows

for adjusting the baseline values

recorded during a performance test to

account for the inappropriateness of

requiring that indicator conditions stay

exactly the same as during a test. The

use of operational data collected during

performance testing is a key element in

establishing indicator ranges; however,

other relevant information in

establishing indicator ranges would be

engineering assessments, historical data,

and vendor data. Indicator ranges do not

need to be correlated across the whole

range of potential emissions.

Finally, because the emissions units

subject to part 64 will not necessarily be

undergoing performance testing absent

part 64 (unlike the comparable units

subject to initial compliance testing

under the NSPS and MACT programs),

the rule does not require establishment

of indicator ranges during compliance

or performance testing but rather

presumes the appropriateness of doing

so. The Agency believes that this

approach makes part 64 consistent with

underlying regulations but with

appropriate alternatives that reflect the

different universe of emissions units

subject to part 64.

E. Section 64.5—Deadlines for

Submittal

The final rule establishes two

alternative schedules for implementing

part 64 depending on the size of the

pollutant-specific emissions unit

involved. Under § 64.5(a), ‘‘large’’

pollutant-specific emissions units are

subject to the shortest implementation

timetable. ‘‘Large’’ units are those that

have the potential to emit (after

controls) the applicable pollutant at or

above the major source threshold. If the

owner or operator has not submitted the

permit application for the applicable

source prior to April 20, 1998, the

owner or operator must submit

proposed part 64 monitoring in the next

part 70 permit application. If a permit

application has been submitted by the

rule’s effective date, but the permitting

authority has not yet determined by that

date that the application is complete,

the owner or operator will have to

supplement the application with the

relevant information required under

part 64. If the application has already

been found complete, then the part 64

information will generally not have to

be submitted until the next permit

renewal application. In the interim, the

monitoring requirements adopted by

permitting authorities in response to the

requirements in part 70 will continue to

apply.

There are two circumstances where

information must be submitted prior to

the next permit renewal application.

First, if the owner or operator submits

an application for a significant permit

modification after April 20, 1998, the

owner or operator must submit the

appropriate part 64 information for any

pollutant-specific emissions unit(s)

covered by the modification. This

requirement will assure that significant

permit revisions affecting particular

emissions units are not considered in a

piecemeal fashion and that part 64 is

implemented as quickly as reasonably

practicable. In response to comments on

the 1996 part 64 Draft, the Agency has

limited this provision to only significant

permit revisions so that part 64

requirements will not impede permit

revisions made under expedited permit

revision processes, such as

administrative amendments, notice only

changes, or de minimis permit revision

procedures that are under consideration

by the Agency. Second, if the permit

application has been found complete

but the permit has not issued, and the

owner or operator proposes to revise the

application to include a change of a type

that would have been subject to the

significant permit revision process, had

the permit been issued, then the owner

or operator must include part 64

required information for the pollutantspecific emissions unit(s) identified in

the application revision. This

circumstance triggers part 64

implementation because this type of

permit application revision would

require a second completeness

determination by the permitting

authority, and the implementation

provision of § 64.5(a)(1)(ii) would be

applicable.

Also in response to comments, the

final rule does not include a provision

in the 1996 part 64 Draft that would

have required implementation prior to

permit renewal for certain permit

applications being processed under a

part 70 transition plan for initial permit

issuance. The Agency believes that this

provision unnecessarily complicates the

part 64 implementation process. The

Agency also notes that the current part

70 monitoring provisions will continue

to apply in the interim if part 64 is not

implemented until permit renewal.

For the remaining smaller pollutantspecific emissions units, part 64

implementation is delayed until permit

renewal. This approach was suggested

in many comments as one way to reduce

the implementation burdens of the rule.

Such an approach will also allow

permitting authorities and owners or

operators to gain experience with

implementing part 64 for the largest

emissions units before having to address

the more numerous, but in terms of

overall site emissions, less significant,

smaller units. As noted above,

permitting authorities can use the delay

in implementation to develop

programmatic requirements that can be

relied on in proposing and approving

part 64 monitoring; this approach will

be of the most benefit for the smaller

emissions units that can use these

generic requirements to reduce the

burdens of part 64.

The phased-in implementation

approach embodied in the final part 64

rule is a departure from the

implementation schedule in the 1993

EM proposal. The effective date of the

proposed rule was to be 30 days after

publication of the final rule in the

Federal Register. The proposed rule did

not specify how operating permits

issued prior to the rule’s effective date

would be treated. The preamble to the

proposed rule suggested that these

situations would be covered by 40 CFR

70.7(f)(1)(i). Section 70.7(f)(1)(i) requires

that an operating permit be reopened to

address an applicable requirement

which becomes applicable during the

permit term if the permit has a

remaining term of three or more years.

Thus, under the proposed rule, the

owner or operator of any facility with an

operating permit that had a remaining

term of three or more years after the

effective date of part 64 would have

been required to reopen the permit and
54928 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

provide the required part 64

information.

The Agency considered relying on

this part 70 provision to set the

implementation schedule for the rule,

but chose to adopt the phased-in

approach described above. Thus, the

provisions in § 64.5(a) supersede the

language of § 70.7(f)(1)(i). The part 70

approach would have required that a

great many operating permits be

reopened as soon as the rule became

effective, while the phased-in approach

initially focuses on new permit

applications. The former is therefore

more likely to cause initial burdens and

delays in the permitting program. The

Agency believes that the extended

implementation timetable resulting from

the phased-in approach is better suited

to facilitating implementation through

the operating permits program. In the

December 1994 notice reopening the

1993 EM proposal for comment, EPA

discussed the possibility of using a

phased-in implementation approach as

well as a ‘‘hammer’’ provision, which

would have required enhanced

monitoring to be implemented by all

affected sources by January 1, 2000.

Multiple commenters expressed

concerns that an absolute deadline of

this type would cause systemic logjams

and delays in the operating permits

program because it could require

numerous permit revisions or

reopenings outside of the normal permit

renewal process.

In lieu of a ‘‘hammer’’ provision and

to clarify that the monitoring

requirements of part 70 apply

irrespective of the part 64 requirements,

the Agency has added explicit language

to the rule stating that prior to approval

and operation of part 64 monitoring,

part 70 monitoring requirements apply.

These part 70 monitoring requirements

continue to apply even after approval

and operation of part 64 monitoring;

however, because part 64 contains

applicable monitoring requirements

sufficient to demonstrate compliance

with applicable emission limitations or

standards, the part 64 monitoring

requirements can serve in the place of

part 70 monitoring requirements.

F. Section 64.6—Approval of Monitoring

Consistent with the part 64

implementation approach, § 64.6

requires the permitting authority to

approve or disapprove the monitoring

proposed by the owner or operator. The

following discussion highlights the key

elements of this section and the key

issues raised during development of the

rule.

1. Approval and Permit Incorporation

If the monitoring is approved, the

permitting authority must act in

accordance with § 70.6(a)(3) to include

appropriate permit terms that reflect the

part 64 monitoring requirements. The

requirements that must be reflected in

the permit are: the monitoring approach

(including the basic method,

appropriate performance specifications,

and required quality assurance checks),

any specific data availability

requirements, the indicator range(s), and

a general statement that the owner or

operator will conduct the monitoring,

submit reports, maintain records, and, if

applicable, identify any QIP obligations,

all as required by §§ 64.7 through 64.9.

It is important to note that the rule

provides for two different options for

incorporating indicator range(s) in the

permit. First, the actual range can be

included (such as maintaining

temperature of an incinerator at or

above a specific number). Second, the

permit can include a statement that

describes how the indicator range will

be established (such as ‘‘The incinerator

will be maintained at a temperature at

or above a temperature which is 50

degrees Fahrenheit lower than the

baseline temperature recorded during

the most recent performance test.’’).

This latter type of condition would

allow for reestablishment of the

indicator range without the need for a

permit modification. Several

commenters raised concerns that there

would be a need for changes to indicator

ranges, especially near the beginning of

the program, and that requiring permit

modifications for all such changes

would be burdensome and unwieldy.

The Agency agrees and believes this

latter option addresses the commenters’

concerns while still providing adequate

public comment and review on the

establishment of indicator ranges at

specific sources. If this type of approach

is used, the permit would also need to

specify how the permitting authority

will be notified of the currently

applicable indicator range(s).

These provisions are generally the

same as required in § 64.8 of the 1993

EM proposal, although the requirements

have been modified to reflect the

changes in the design criteria for the

monitoring required by part 64. The

1995 and 1996 part 64 Drafts included

more elaborate conditions than are

included in the final rule, including

certain enforceability components that

the Agency does not believe are

necessary for effective implementation

of part 64. These deleted components

include provisions in the 1996 part 64

Draft that would have enabled a

permitting authority to establish an

indicator range as an enforceable

condition and that would have

established a second QIP during a

permit term as a permit violation.

Whether the failure to meet an

indicator range is an enforceable

violation will be a matter of examining

the relevant underlying applicable

requirements, as well as the ability of

the permitting authority to establish that

type of requirement as a federallyenforceable element of a permit

pursuant to approved SIP authority or as

a State-only requirement pursuant to

State law. As described above, for

purposes of part 64, § 64.6 clarifies that

the indicator ranges or the means by

which they are to be established are to

be included in the permit to indicate

when an owner or operator is required

to report excursions or exceedances. In

addition, it should be noted that § 64.7

establishes the independent obligation

for the owner or operator to take

appropriate corrective action in

response to excursions or exceedances

that occur.

The Agency also decided to delete the

draft requirement that a second QIP

during a permit term constitutes a

violation. This provision was widely

criticized by both industry and State

commenters. The Agency had

specifically noted in the discussion

accompanying the 1996 part 64 Draft

that it was concerned that this approach

may not be appropriate. As discussed in

Sections II.G. and H., the final rule,

consistent with the precedent of 40 CFR

60.11(d), provides for the general use of

part 64 data and other information to

document that the owner or operator

has failed to operate and maintain an

emission unit properly and provides for

the QIP mechanism as one option for

addressing situations in which such a

failure has occurred. In that respect, any

time a QIP is required there will be an

underlying finding that the owner or

operator has failed to take appropriate

action and may be subject to

enforcement for that violation. Thus,

there is no need for the final rule to

include separate enforcement

consequences related to multiple QIPs.

The Agency notes that many

commenters on the 1996 part 64 Draft

suggested that the rule would impose

too many permit requirements and that

the permit should merely state that

compliance with part 64 is required and

that the owner or operator will take

appropriate action in response to the

data. Commenters pointed to the

requirements for startup, shutdown,

malfunction plans (SSMPs) under part

63 and section 112(r) risk management

plans (RMPs) required under part 68 as

examples of this approach to referencing
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54929

applicable requirements in a part 70

permit.

The Agency disagrees with the

approach suggested and the use of the

SSMP and RMP examples cited in the

comments. The two examples both

involve plans which an owner or

operator is required to develop in

accordance with general criteria but

which are not subject to approval,

although there are provisions which

allow EPA or the permitting authority to

require changes in the plans under

certain conditions. (See 40 CFR

63.6(e)(3) and 68.220.) The Agency

notes that it proposed this concept to

implementing part 64 in the 1995 part

64 Draft but that numerous commenters

opposed this approach because there

would be no final approval process for

the monitoring. (See § 64.3(c) of the

1995 part 64 Draft and the comments in,

for example, VI√D–38 and 45). Many

commenters then seemed to request that

EPA use the SSMP or RMP approach

after reviewing the 1996 part 64 Draft.

After evaluating all of the comments,

the Agency believes that part 64

monitoring should be incorporated into

permits in the same fashion as all other

required monitoring. The following

discussion provides a list of the various

components of the basic monitoring

approach that need to be incorporated

in the permit. To provide a practical

example of what the ‘‘basic monitoring

approach’’ entails, the following

example is based on the use of

incineration to control TRS emissions

from certain affected facilities at kraft

pulp mills (see 40 CFR 60.280 et seq.);

the example is intended to indicate the

level of detail required, and not

necessarily the appropriateness of the

example monitoring for satisfying part

64: ‘‘Company A will monitor the

combustion temperature in the

incinerator at the point of incineration

of the effluent gases. Combustion

temperature will be recorded

continuously during all periods of

incinerator operation using a strip chart

recorder. Company A will use a 5-

minute rolling average of combustion

temperatures to determine whether an

excursion from (combustion

temperature limit or range) has

occurred. The thermocouple used to

determine the temperature will be

accurate to within 1 percent of the

temperature being measured. Company

A will conduct daily operational checks

of the thermocouple, strip chart

recorder, and the temperature recording

process system. Company A will

conduct an annual accuracy check of

the temperature measurement and

recording system.’’ This example

mirrors the basic monitoring

information required under the relevant

portions of subpart BB. Another

example that might apply in other cases

could include a permit condition which:

(1) Identifies the pollutant-specific

emissions unit, (2) states that the owner

or operator will install, operate,

maintain and reduce data from a CEMS

for that pollutant in accordance with

both the general provisions in 40 CFR

60.13 and the applicable performance

specifications in appendix B to 40 CFR

part 60; and (3) specifies the appropriate

period for averaging data to determine if

an exceedance occurs. That type of

permit condition would address the

components of the basic monitoring

approach identified above.

As noted in the above examples, there

is no substantive difference for how an

owner or operator will be required to

address existing monitoring in a permit

versus part 64 monitoring. For the one

element of the monitoring (indicator

ranges) which the owner or operator is

most likely to need to adjust, especially

at the beginning of the program, the

final rule includes the option discussed

earlier that can provide the necessary

flexibility to adjust indicator ranges

without the need for a permit revision.

Thus, EPA believes that the level of

detail required in the permit is

appropriate and consistent with the

level of detail originally included in the

1993 EM proposal and required for

existing monitoring.

2. Approval Prior to Installation and/or

Verification

A number of those commenting on the

1993 EM proposal expressed concerns

about the costs of installing equipment

and performing testing for proposed

monitoring prior to approval in the

permit. The Agency understands that an

owner or operator may be unwilling to

proceed with such installation, testing,

or other monitor verification activities

until after the proposed approach to

complying with part 64 is approved.

Under the final rule, these activities

may be completed after approval of the

monitoring. The owner or operator must

propose a schedule for making the

monitoring operational as expeditiously

as practicable after approval (see

§ 64.4(e)) and then the permit must

include an enforceable schedule with

milestones that reflect the approved

schedule. The schedule must provide

for the monitoring being fully

operational as expeditiously as

practicable, but in no event more than

180 days from the date of issuance of

the final permit. The general

requirements in § 64.7 to operate the

monitoring in accordance with part 64

will not apply until the final verification

is complete.

3. Conditional Approval of the

Monitoring

Under § 64.6(b), the permitting

authority may condition the approval on

the owner or operator collecting

additional data on the indicators to be

monitored for a pollutant-specific

emissions unit, including required

compliance or performance testing, to

confirm the ability of the monitoring to

provide data that are sufficient to satisfy

the requirements of this part, and to

confirm the appropriateness of an

indicator range(s) or designated

condition(s) proposed to satisfy the

design criteria in the rule. Such

conditional approval should also be

consistent with the requirement in the

rule that monitoring be designed,

installed, and begin operation within

180 days of permit approval.

4. Disapproval of the Monitoring

If a permitting authority determines

that the monitoring proposed by an

owner or operator fails to satisfy part 64,

the permit must include monitoring that

at a minimum meets the monitoring

provisions in part 70. Moreover,

§ 64.6(e)(2) requires the permitting

authority to impose a compliance plan

requirement in the permit which directs

the owner or operator to repropose

monitoring in accordance with §§ 64.3

and 64.4 within no more than 180 days

after disapproval. Under § 64.6(e)(3), the

owner or operator will be in

noncompliance with part 64 if: (1) The

owner or operator fails to submit

monitoring within the required

compliance schedule; or (2) the

permitting authority disapproves the

monitoring submitted, subject to the

owner or operator’s right to appeal any

such disapproval. Note that the decision

to disapprove the initially proposed

monitoring would also constitute final

agency action for purposes of appeal.

This disapproval process was implied

but not explicitly addressed in the 1993

EM proposal or the subsequent drafts of

part 64. However, comments on these

earlier versions of the rule did raise

concerns about when an owner or

operator could appeal a decision as to

the monitoring and whether a

permitting authority could insert in the

permit the monitoring which the

permitting authority believes should be

used. The Agency believes that in most

cases, the permit process provides

ample opportunity for the permitting

authority and the owner or operator to

confer about the appropriate monitoring

to satisfy part 64 and agree upon an

approach, with public and EPA review,
54930 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

without having to reach the point of

disapproving the monitoring in the final

permit action. Nevertheless, the Agency

also believes that the final rule should

clarify how a monitoring disapproval

will be handled.

The Agency notes further that, unlike

the procedures for most applicable

requirements, the part 70 permit process

will be used as the process for

approving the specific monitoring that

is used to satisfy part 64. In that respect,

the part 70 process will be essential to

assuring adequate public, permitting

authority, and, as necessary, EPA input

on part 64 monitoring. The Agency

believes that the approval/disapproval

procedures in the final rule highlight

this important aspect of part 64 and will

provide for adequate public and EPA

review of the monitoring used to satisfy

part 64.

5. Permit Shield

The Agency notes that, after approval

of the part 64 monitoring in a permit,

the permit shield provisions in part 70

may extend to the part 64 monitoring

approved in the permit. A significant

area of comment on the 1993 proposed

EM rule was the effect of implementing

part 64 on these permit shield

provisions. Some commenters were

concerned that the linking of part 64

and the permitting process would

hamper the timely processing of

permits, and in some cases, result in the

loss of the permit application shield.

The Agency has addressed these

concerns in the changes to the

implementation schedule of the final

rule. Other commenters suggested that

the non-specific nature of part 64

monitoring requirements could lead to a

situation where the permit shield could

be lost even if the monitoring was

originally developed in good faith and

was approved by the permitting

authority. These commenters argued

that if such monitoring is later

determined to be inadequate by the

permitting authority or the owner or

operator, there should be a process for

correcting the monitoring without

finding the owner or operator in

violation of the general part 64

substantive requirements.

EPA believes that, if a permitting

authority extends the permit shield to

the monitoring requirements included

in an operating permit, the owner or

operator will be shielded from any

retrospective action based on a claim

that the monitoring approved in the

permit fails to satisfy part 64

requirements. This protection is only

available so long as the owner or

operator conducts the monitoring in

accordance with the permit. Also, the

shield will not prevent the permitting

authority or the EPA from reopening the

permit if, after approval, the permitting

authority or the Agency finds cause to

reopen the permit based on a deficiency

in the approved monitoring.

Where an owner or operator discovers

that the originally approved monitoring

is inadequate, the final rule does require

the owner or operator to correct the

defect in the monitoring expeditiously.

Section 64.7(e) requires an owner or

operator to promptly notify the

permitting authority and submit a

proposed modification to the source’s

part 70 permit under at least two

circumstances. First, if the owner or

operator documents that a violation of

an emission limitation or standard

occurs but the part 64 monitoring failed

to indicate an excursion or exceedance

for the same period, there will be a need

to address that type of deficiency.

Second, if the results of performance or

compliance testing document a need to

modify the approved indicator ranges,

that type of correction will also be

required. The appropriate permit

modifications may include monitoring

additional parameters, increasing

monitoring frequency, reestablishing

indicator ranges, or other changes

appropriate for the circumstances.

G. Section 64.7—Operation of Approved

Monitoring

1. General Conduct of Monitoring

As soon as the permitting authority

has approved the operating permit,

§ 64.7(a) requires the owner or operator

of an affected source to begin

conducting monitoring of the source in

accordance with the permit. If the

permit includes a scheduled date for the

completion of testing, installation, and

final verification of the approved

monitoring pursuant to § 64.6(d), then

the owner or operator is not required to

begin conducting monitoring until that

completion date. This provision does

not excuse the owner or operator from

complying with monitoring required

under separate authority if the

monitoring being used to comply with

part 64 is also required under that

separate authority.

Section 64.7(b) requires an owner or

operator to properly maintain the

approved monitoring. The provision

states that the maintenance and

operation obligations include an

obligation to maintain necessary parts

for routine repairs of the monitoring

equipment.

Under § 64.7(c), the monitoring must

be conducted continuously or shall

collect data at all required intervals

during emissions unit operating periods

unless the monitoring cannot be

conducted because of monitor

malfunctions, associated repairs or

required quality assurance or control

activities (including, as applicable,

calibration checks and zero and span

adjustments). Data collected during

such periods is not to be used for

purposes of part 64, including data

averages and calculations, or fulfilling a

data availability requirement. Data

recorded during all other periods is to

be used in assessing the operation of the

control device and associated capture

system.

The Agency notes that the

requirements in §§ 64.7(b) and (c) are

generally consistent with monitoring

requirements promulgated under the

NSPS program (see 40 CFR 60.13(e)) and

the new NESHAP program (see 40 CFR

63.8(c)(1) and (4)). The obligation to

keep parts necessary for routine repairs

is based on a similar requirement in

§ 63.8(c)(1). The requirement that part

64 monitoring be operational during

emissions unit operation except during

monitor malfunctions and similar

events is consistent with § 60.13(e) and

§ 63.8(c)(4). It is important to note that

this provision does not excuse a failure

to comply with a data availability

requirement. Even if a data availability

requirement is met, this provision

requires an owner or operator to

continue operating the monitoring

unless it is technically infeasible to do

so.

The Agency believes that these

general operating requirements were

implicit in the 1993 EM proposal,

including proposed § 64.4(b)(4) which

required the owner or operator to obtain

quality-assured data from the

monitoring sufficient to satisfy

minimum data availability

requirements. However, EPA notes that

in comments on the subsequent drafts of

part 64, certain commenters objected to

these types of provisions, and

specifically requested that the rule

exempt the source owner or operator

from having to conduct monitoring

during periods when the source is not

required to comply with the underlying

standard (such as startup and shutdown

conditions). The Agency disagrees with

these comments, and notes that existing

general monitoring requirements under

NSPS and NESHAP do not provide for

that type of exception to monitoring. In

fact, EPA has previously rejected the

idea of exempting sources from

monitoring during startup and

shutdown conditions in other

rulemakings. (See, e.g., Air Oxidation

Processes in Synthetic Organic

Chemical Manufacturing Industry—

Background Information for
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54931

Promulgated Standards, EPA–450/3–

82–001b, June 1990, pp. 2–37 and 2–38.

For a copy of this document, see EPA

Air Docket A–81–22–V–B–1.) Although

compliance with emission limitations

may be exempted in some

circumstances during conditions such

as startup and shutdown, an owner or

operator still is required to operate and

maintain a source in accordance with

good air pollution control practices for

minimizing emissions during such

periods. The monitoring under part 64

is essential to evaluate the extent to

which this duty is fulfilled. Therefore,

to clarify the intent of part 64 and assure

that it is implemented consistently with

other EPA monitoring programs, the

final rule includes these general

operating requirements in §§ 64.7(b) and

(c).

2. Corrective Action Obligations

Section 64.7(d) of the final rule

requires that, upon detecting an

excursion or exceedance, the owner or

operator will restore the pollutantspecific emissions unit to its normal or

usual manner of operation as

expeditiously as practicable in

accordance with good air pollution

control practices for minimizing

emissions. This requires minimizing

periods of startup, shutdown or

malfunction, and taking corrective

action to restore normal operation and

prevent recurrence of the problem that

led to the excursion or exceedance

except where the excursion or

exceedance was related to an excused

startup or shutdown condition.

Corrective action may include

inspection and evaluation where

operations returned to normal without

operator action, or any appropriate

follow up activities, including shutting

down a pollutant-specific emissions

unit until necessary repairs are

completed, to return the operation to

within the indicator range or below the

applicable emission limitation or

standard, as applicable. Consistent with

existing general duty provisions such as

§ 60.11(d), determination of whether the

owner or operator has used acceptable

procedures in response to an excursion

or exceedance will be based on available

information, including monitoring data.

A related provision found at § 64.8(a) of

the final rule provides that a source

owner or operator can be required to

implement a quality improvement plan

(QIP) after a determination by the

permitting authority or the

Administrator that the source owner has

failed to conduct proper operation and

maintenance as documented through

part 64 monitoring and other available

information (see Section II.H.).

Because the Agency’s emphasis for

part 64 monitoring shifted away from

the direct compliance determination

requirements of the 1993 EM proposal

to the CAM approach, the Agency

believes it is critical to underscore the

need to maintain operation within the

established indicator ranges. Therefore,

the rule includes the requirement to

take prompt and effective corrective

action when the monitored indicators of

compliance show that there may be a

problem. Requiring that owners and

operators are attentive and respond to

the data gathered by part 64 monitoring

has always been central to the CAM

approach. Certain comments received

on the 1996 part 64 Draft questioned the

appropriateness of the corrective action

provisions with some commenters

finding the requirements unnecessary

and others alleging that they were

inadequate. The Agency reiterates its

belief that part 64 monitoring can

provide a reasonable assurance of

compliance with applicable

requirements. This is consistent with

the approach suggested by many

commenters throughout the

development of part 64; however,

because the data will not necessarily

allow a direct determination of

compliance, the Agency believes that it

is essential to the CAM goal of ongoing

compliance operation that part 64

require that owners or operators

respond to the data so that any problems

indicated by the monitoring are

corrected as soon as possible. Without

this corrective action obligation, owners

or operators might tend to ignore

excursions because such excursions

may not necessarily allow a

determination of a violation. Thus, EPA

believes that the corrective action

component of part 64 is critical to

assuring that the information from the

enhanced monitoring required by part

64 is heeded by owners or operators.

As described in the discussion

accompanying the 1996 part 64 Draft,

the Agency did consider requiring

owners or operators to specify

maximum periods for conducting

various types of corrective action, but

stakeholders raised concerns that it

would be extremely difficult to establish

the appropriate time frames for every

possible contingency (see, e.g., docket

items VI–D–45, p. 12; VI–E–9, p. 5–6).

The Agency continues to agree that it

would be difficult to establish

appropriate time frames for all

corrective action scenarios and therefore

has adopted the general obligation

requirement in the final rule. The

Agency also believes, however, that as

situations develop at a particular facility

it may be possible in subsequent rounds

of permitting to provide specific

timetables for certain high priority

concerns if a permitting authority

desires to make this requirement more

specific. In addition, if an existing sitespecific plan, such as a malfunction

abatement plan, already establishes

required time frames for certain types of

excursions, the owner or operator or the

permitting authority could incorporate

those specific time frames into the

permit.

The obligation to correct excursions

as expeditiously as practicable is the

enforceable component associated with

establishing an indicator range under

part 64. Part 64 does not establish that

an excursion from an indicator range

constitutes an independent violation by

itself. The 1996 part 64 Draft did

provide that the permit may specify that

an excursion could be considered a

failure to satisfy an applicable permit

term or condition in various situations.

First, if existing requirements already

require the owner or operator to comply

with the indicator ranges, the 1996 Draft

indicated that the ranges would be

enforceable requirements. Second, the

1996 Draft indicated that an owner or

operator could propose this approach.

Finally, the 1996 Draft stated that, if

consistent with existing authority, the

permitting authority could specify in

the permit that excursions from the

indicator ranges will be considered

enforceable permit deviations. In

comments submitted during the

development of the rule, State and local

agency organizations stated their

support for including control device

performance indicator ranges as

enforceable permit requirements even if

such indicator ranges are not used

directly to determine compliance or

noncompliance with applicable

emission limitations or standards. (See,

for example, docket item VI–D–49 and

IV–D–274). However, numerous

industry commenters opposed the

provisions in the 1996 part 64 Draft

which addressed this issue.

The Agency has considered all of the

relevant comments and has determined

that part 64 need not address this issue.

First, if an underlying requirement

makes an indicator range enforceable,

then that will have to be addressed in

the permit under the existing

requirements in part 70. Second, a

source owner can always propose to

make the indicator range enforceable

and part 64 need not address this

possibility. Third, if a State agency has

independent authority to make indicator

ranges enforceable, that can be done

irrespective of the authority provided in

part 64. Finally, as discussed in Section
54932 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

I.E., the CE revisions clarify that an

excursion from an indicator range in

some circumstances may be sufficiently

probative of compliance that it could be

used to document a violation of an

underlying requirement. Based on these

considerations, the final rule simply

requires the permit to establish an

indicator range, and then imposes the

obligation to take appropriate corrective

action in response to an excursion and

to report the excursion in applicable

periodic reports and compliance

certifications.

3. Monitoring Revisions

Section 64.3(d) of the 1993 EM

proposal would have required a

significant permit modification

pursuant to § 70.7 whenever a change

was made to an enhanced monitoring

protocol or whenever a pollutantspecific emissions unit was modified in

such a way as to make an existing

protocol no longer appropriate. A great

number of industry commenters

objected to the permit modification

provisions in the proposed rule. The

vast majority objected to the scope of

this provision, under which any change

to an enhanced monitoring protocol

triggered a requirement to obtain a

significant permit modification. A

number of commenters noted that the

proposed rule would require significant

permit modifications for changes that

would not have triggered such a

requirement under part 70 itself.

The Agency agrees with those

commenters that believe the part 70

procedures generally should be relied

on for determining when and what type

of a permit change is required for

different types of monitoring

modifications. In keeping with this

approach, EPA has removed the permit

modification provisions from the final

rule. Instead, the Agency intends that

permit revisions involving part 64

requirements be made pursuant to part

70 permit revision procedures. The EPA

has proposed revisions to part 70 in

order to streamline the existing permit

modification procedures (see 59 FR

44460, August 29, 1994, and 60 FR

45530, August 23, 1995). The preamble

to those proposed revisions discusses

what types of permit revisions would be

appropriate for different types of

monitoring changes. The EPA intends to

promulgate permit revision procedures

based on the proposed part 70 revisions

that will clarify when and how a change

in monitoring will trigger the need to

modify the underlying operating permit.

As noted in the discussion of the

permit shield above, § 64.7(e) does

require an owner or operator to follow

permit modification procedures upon

discovery of deficiencies in approved

part 64 monitoring. In addition, the part

70 procedures will apply if the owner or

operator wants to change certain aspects

of its approved monitoring, or if the

owner or operator intends to make

certain types of emissions unit

modifications that could trigger the

need for a permit revision to address

part 64 requirements. For instance, if an

owner or operator switched from a

pollution prevention method of

controlling emissions to a control device

within the definition of part 64, that

change could impose the part 64

monitoring requirements for a unit

which had been subject only to part 70

monitoring before the change. In such a

case, the revised part 70 procedures

would require the owner or operator to

submit a request for a part 70 permit

modification which includes proposed

part 64 monitoring and required

supporting documentation.

H. Section 64.8—Quality Improvement

Plans (QIPs)

Requirements for responding to the

monitoring data if potential control

problems are detected have been

included in the final rule. Requiring that

owners or operators are attentive to the

data obtained by part 64 monitoring and

take corrective action when problems

are detected has always been part of the

CAM approach. The discussions

accompanying the 1995 and 1996 part

64 Drafts describe the CAM approach as

promoting compliance by making the

owner or operator pay attention and

respond to the monitoring data. Because

the approach of establishing indicator

ranges and then imposing an obligation

to respond to excursions could

potentially allow owners or operators to

comply with part 64 even though they

may be in a near constant state of

correcting excursions, the related

concept of quality improvement plans

(QIPs) was developed. This concept was

designed to avoid perpetual corrective

action which would frustrate the

compliance promotion and compliance

assurance goals of part 64.

1. QIPs in the 1995 Part 64 Draft

In the discussion accompanying the

1995 part 64 Draft, the requirements for

responding to monitoring data were

described as including: operating ranges

for monitored parameters, time periods

for corrective action in the event

discrepancies from the established

operating ranges occur, and a maximum

number of discrepancies from the

established operating ranges to occur in

a reporting period. The 1995 part 64

Draft provided that source owners could

establish this maximum number of

discrepancies as a not-to-exceed limit or

as a requirement that, initially, triggers

implementation of a QIP. The QIP

option would require evaluation of why

the maximum number of discrepancies

was exceeded. Based on that evaluation,

the QIP would require the owner or

operator to take steps to improve control

performance including improved

preventive maintenance procedures,

process operation changes, control

system improvements or similar actions.

The QIP option was described as a

means of allowing an owner or operator

to establish site-specific maximum

discrepancy numbers without facing

automatic enforcement exposure for

failure to comply with those numbers

during the early stages of part 64

applicability/implementation, while at

the same time assuring that a large

number of discrepancies would trigger

additional steps to decrease the

incidence of reduced control

performance. In addition, the 1995 part

64 Draft contained limits to guard

against the use of an ineffective QIP.

Owners or operators would be allowed

to exceed the maximum number of

corrective actions trigger twice during a

permit term. A third or subsequent

exceedance of the trigger would have

been treated as a failure to comply with

the requirements of part 64 as well as

still requiring a QIP to improve control

performance. These situations

potentially would have also required the

QIP to be revised to more adequately

serve its purpose of improved control

performance.

The discussion accompanying the

1995 part 64 Draft noted that the

provisions on the length of corrective

action periods and the maximum

number of corrective action periods per

reporting period provided significant

flexibility and solicited comment on

whether the final rule should establish

additional objective criteria such as a

maximum length for corrective actions

or a limit on the number of corrective

actions permitted.

The Agency received a number of

comments on the QIP concept after

releasing the 1995 part 64 Draft. A

number of industry commenters

supported the QIP concept but raised

concerns about the provisions limiting

the number of allowable QIPs and about

the specificity of certain requirements.

2. QIPs in the 1996 Part 64 Draft

In the 1996 part 64 Draft the owner or

operator was required to implement a

QIP if the duration of excursions

occurring in any reporting period

exceeded a set percentage of the

operating time for the pollutant-specific

emissions unit over that reporting
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54933

period, or if the number of excursions

exceeded a set percentage of the

monitored averaging periods during the

applicable reporting period. If the

approved monitoring involved the use

of a CEMS or PEMS, then the

appropriate trigger for a QIP would be

exceedances instead of excursions.

The appropriate percentage was to be

set in the context of the permitting

process. The permitting authority was to

take into account all relevant factors,

but the percentage of operating time was

not to exceed 5 percent. The Agency

solicited comment on whether that was

an appropriate percentage and

information that could support another

percentage limit. An exception was

provided in the 1996 part 64 Draft for

circumstances in which specific

applicable requirements established a

higher percentage. Finally, the draft rule

stated that the permit must include a

condition that in the event that either

percent trigger was exceeded, the owner

or operator would develop and

implement a QIP that met specific

criteria.

Like the 1995 part 64 Draft, the 1996

part 64 Draft described two basic parts

of a QIP. The first part would consist of

evaluation procedures to determine the

cause of the excessive number of

excursions (or exceedances, if

applicable). Based on that evaluation,

the owner or operator would develop

the second part of the QIP. The second

part would detail the steps the owner or

operator would take to improve the

quality of control performance, and the

schedule for taking those steps. Again,

depending on the nature of the problem,

the appropriate steps could include

improved preventive maintenance

procedures, process operation changes,

control system improvements or similar

types of steps. In conjunction with those

procedures, the QIP also might include

improved monitoring procedures.

The discussion accompanying the

1996 part 64 Draft described these

requirements as assuring that the

monitoring conducted under part 64

would result in owners or operators

taking the necessary steps to prevent

pollution through reasonable

optimization of control performance.

The Agency stated in that discussion

and the draft itself that compliance with

a QIP is not a substitute for compliance

with underlying applicable

requirements, including general duties

to operate and maintain facilities in

accordance with good air pollution

control practices, and the 1996 part 64

Draft also required the owner or

operator to report as a deviation any

period during which a QIP is being

implemented.

Again the Agency expressed concern

about owners or operators performing

repeated QIPs, and the 1996 part 64

Draft provided that the necessity to

implement a second QIP for the same

pollutant-specific emissions unit during

the same permit term would constitute

a specific permit term violation. The

Agency acknowledged that an

enforceable permit condition placing a

limit on the number of QIPs might be

perceived as an unnecessary restriction

on the operation of highly efficient and

well-operated control measures. The

EPA noted that a high level of

excursions could result from tightly set

indicator ranges that are not at all

indicative of potential excess emissions,

and that the ‘‘second QIP as a violation’’

approach could inappropriately put an

owner or operator in violation under

such circumstances.

The Agency then noted that the

second QIP as a deviation approach

might encourage source owners to set

unrepresentatively broad indicator

ranges and thereby avoid excursions.

The Agency sought comment on other

means to encourage the setting of the

indicator ranges in a manner consistent

with the best level of emissions control

that can be achieved. As one possible

alternative, EPA suggested that instead

of a permit violation associated with the

need to implement a second QIP the

final rule could instead require that the

second QIP be implemented only

through a permitting authority approval

process. Such a plan could also include

restricted process operations until

completion of the approved QIP. The

agency also suggested as a second

possible alternative that the time period

for limiting the owner or operator to one

QIP could be reduced from the 5-year

permit term to 3 years or other

appropriate period.

In addition, the 1996 part 64 Draft

contained a number of other QIP-related

requirements. First, it required the

owner or operator to notify the

permitting authority within 2 days after

determining that a QIP is necessary.

Second, the QIP would not become part

of the permit and would not require

permitting authority approval. Third,

the QIP was to be implemented as soon

as practicable, and completed within

180 days from the date notice of the QIP

was given to the permitting authority.

Exceptions to the 180-day limit were to

be granted only after the owner or

operator obtained a site-specific

resolution and affirmative approval

from the permitting authority or, if

necessary, the EPA of a plan to complete

the improvement activities. An

approved extension could include an

enforceable, site-specific schedule with

milestones and completion dates.

The 1996 part 64 Draft also required

the owner or operator to report on the

activities taken in conjunction with a

QIP. QIP activities would be

summarized in the semiannual report

covering the period in which the QIP

began, and in any subsequent

semiannual reports covering periods

during which the QIP continued. In

addition, the owner or operator was

required to maintain a copy of the QIP

and records of QIP implementation

activities for a period of five years in

accordance with part 64 recordkeeping

provisions.

Finally, a QIP could lead to changes

in previously approved monitoring or

other changes at the source that require

a permit revision. Therefore, the 1996

part 64 Draft required the owner or

operator to submit a proposed revision

to the approved monitoring in these

circumstances. Even if such changes did

not require a permit revision, a source

owner or operator who intended to

retain the previously approved

monitoring was required to reestablish

the rationale that justified the

monitoring.

3. QIPs in the Final Rule

In response to comments received on

the 1995 and 1996 part 64 Drafts, § 64.8

of the final rule reflects a number of

significant changes to the QIP

requirements.

A number of commenters challenged

the 5 percent QIP trigger in the 1996

part 64 Draft and some questioned

whether a single percentage threshold

was appropriate regardless of exactly

where the threshold was set. Section

64.8(a) of the final rule provides that a

QIP trigger may be set in the permit but

does not require it. Where such a trigger

is used, a level of 5 percent is suggested

as a potentially appropriate threshold.

The final rule also provides that a QIP

can be required after a determination by

the permitting authority or the

Administrator that an owner or operator

has failed to conduct proper operation

and maintenance as documented

through part 64 monitoring and other

available information. In this respect,

the QIP provisions are analogous to

existing corrective action remedies

available to address compliance

problems.

Commenters also argued that the 180-

day limit for completion of a QIP that

was included in the 1996 draft part 64

was not reasonable, with various

commenters arguing for more or less

time. Some commenters also noted that

QIPs that lead to the need for a permit

modification would be particularly
54934 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

problematic in terms of meeting a

specific deadline. Section 64.8(c) of the

final rule requires owners or operators

to complete any QIP as expeditiously as

practicable and to notify the permitting

authority if they determine that a QIP

will take longer than 180 days rather

than establishing a specific amount of

time within which the QIP must be

completed.

Many commenters objected to the

requirement that a second QIP within a

permit term be treated as a violation. A

number of commenters pointed out that

a subsequent QIP might be completely

unrelated to the first QIP, that more

room for error should be allowed in the

early stages of part 64 applicability/

implementation, and that the existence

of such penalties would frustrate the

goals of part 64 by discouraging source

owners from setting indicator ranges at

levels that would provide early warning

of problems. Commenters also noted

generally in other comments on part 64

that the Agency should consider the

part 63 startup, shutdown, malfunction

plan (SSMP) requirements as an

appropriate precedent for implementing

part 64. Based on EPA’s consideration of

the comments, EPA has deleted the

concept that a second QIP during a

permit term is a violation. Instead, the

final rule allows permitting authorities

to use recurring problems as an

indication that a QIP should be required

in order to bring about improvements in

control device operation and

maintenance. In addition, the final rule

provides that the permitting authority or

the Administrator may follow up on

QIPs and make changes to the plan if

the QIP has not addressed the problem

adequately. This latter requirement is

analogous to the comparable procedures

for requiring changes to SSMPs

pursuant to § 63.6(e)(3).

Other changes made in response to

comments received on the 1996 part 64

Draft include deleting the requirement

that source owners notify the permitting

authority within two days of the need to

implement a QIP, the requirement that

periods during which an owner or

operator is implementing a QIP be

reported as deviations in monitoring

reports and compliance certifications,

and the requirement to report test

method results after QIP

implementation. The Agency does not

believe that these draft requirements are

necessary, especially given that under

the final rule, QIPs generally will be

implemented only after a determination

that an owner or operator has failed to

meet a general duty to properly operate

and maintain a source.

Some commenters objected to the

requirement that owners or operators

state that a QIP has reduced the

likelihood of similar problems occurring

in the future. The Agency believes that

this type of information is appropriate,

but has changed the final rule so that

rather than a certification-style

requirement, the owner or operator is

required to submit documentation that

the QIP has been completed and

reduced the likelihood of similar levels

of excursions or exceedances occurring.

This provision will provide the

permitting authority with the

information necessary to gauge the

completion of a QIP and whether

follow-up is necessary.

Commenters on the 1996 part 64 Draft

also requested that an owner or operator

be allowed to implement a QIP that

involves only monitoring changes. The

Agency notes that the final rule, like the

1996 part 64 Draft, does not provide for

QIPs that address monitoring only. This

type of change should not be made

through a QIP. By its nature, a QIP

focuses on situations where the owner

or operator has failed to meet its

obligation to properly operate and

maintain a source. The QIP

requirements in the final rule clarify

this approach and no longer mandate

that a QIP be implemented solely

because a set duration of excursions or

exceedances occurs. A source owner

who needs to change approved part 64

monitoring can address any monitoring

problems directly through the

appropriate permit modification

process. For indicator range changes,

the final rule allows owners or operators

to avoid the need for a permit

modification by specifying in the permit

the method by which such ranges will

be established rather than the actual

ranges. See Section II.F. for further

discussion of that issue.

I. Section 64.9—Reporting and

Recordkeeping Provisions

Part 64 generally relies on the

requirements for reporting, compliance

certification, and recordkeeping already

established in part 70. Beyond general

compliance with the part 70

requirements, § 64.9(a)(2) clarifies that

part 70 reports that involve part 64

monitoring data must identify summary

data on the number, duration and cause

of: excursions from indicator ranges;

emission limit exceedances; any

corrective actions taken; and monitor

downtime incidents other than those

associated with daily calibration checks.

If applicable, the report must also

document QIP implementation and

completion activities. See Section II.H.

for further discussion of this QIP

reporting provision.

The Agency believes that the

additional information that is required

to be reported under part 64 is

consistent with streamlined reporting

requirements under other monitoring

programs (such as NSPS reporting under

40 CFR 60.7(d)). The Agency also

believes that this information is

necessary to allow permitting

authorities to use part 64 data to track

overall control performance and assure

that owners or operators are operating

part 64 monitoring appropriately and

responding appropriately to excursions

from established indicator ranges.

The recordkeeping requirements

similarly require the owner or operator

to maintain records in conformance

with part 70. The provisions clarify

what part 64 records need to be

maintained and the acceptable formats

for recordkeeping.

The Agency solicited and received

comments on several aspects of the

reporting and recordkeeping

requirements that were included in the

1993 EM proposal. Those requirements,

comments and the changes made by

EPA in response to the comments are

described below.

1. Commencement of Reporting Duty

Under the 1993 EM proposal, affected

owners or operators were required to

submit ‘‘enhanced monitoring reports.’’

These enhanced monitoring reports

would have fulfilled essentially the

same function as the part 70 reports

required by § 70.6(a)(3)(iii)(A),

providing permitting authorities with

more regular data on monitoring

compliance than is required under other

provisions. The 1993 EM proposal

required submission of these reports

‘‘[o]n and after the effective date of this

part * * * .’’ Commenters were

concerned that this language could be

interpreted to require reporting prior to

approval of a monitoring plan. They

contended that it would be difficult, if

not impossible, to fulfill the reporting

requirement without knowledge of what

monitoring would ultimately be

required. The Agency agrees with these

concerns. The final part 64 rule clarifies

that the obligation to begin reporting

does not commence until the specified

date by which the owner or operator

must begin monitoring under part 64.

2. Reporting Frequency

The 1993 EM proposal also required

quarterly submission of the abovementioned enhanced monitoring report

for each enhanced monitoring protocol.

Many commenters argued that quarterly

reporting would be too costly and/or

burdensome. The quarterly reporting

requirement is eliminated in the final
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54935

rule. By explicitly relying on part 70

reporting requirements, the Agency has

adopted a requirement that reports be

submitted at least semiannually. The

EPA believes that the minimum part 70

reporting frequency is sufficient to meet

the goals of compliance assurance

monitoring without imposing undue

costs or burdens on affected sources.

The Agency also notes that the 1993 EM

proposal justified quarterly reporting in

part on the similar provision that

existed at that time in part 60 for

quarterly reporting of direct compliance

data. The Agency has since modified

part 60 reporting provisions and no

longer requires quarterly reporting

where the source remains in

compliance. (See § 60.7(e) added at 59

FR 12417, March 16, 1994.) The Agency

also notes that part 70 authorizes

permitting authorities to require more

frequent reporting of monitoring data,

when appropriate.

A related provision in the 1993 EM

proposal required that each enhanced

monitoring report be postmarked no

later than thirty days after the last day

of the reporting period. A number of

commenters objected to this due date

provision, arguing that thirty days was

insufficient time to analyze and verify

the necessary data and to then assemble

a report reflecting that data, especially

where such data is received from

independent laboratories. Although the

Agency believes that thirty days is

generally sufficient time to compile the

reports required under the revised part

64, the due date provision has been

eliminated. Instead, by relying on the

reporting requirements of part 70, the

Agency requires ‘‘prompt’’ submission

of monitoring reports as defined by the

permitting authority.

3. Report Signature Requirement

The 1993 EM proposal required that

certification by a responsible official be

included in each enhanced monitoring

report. Under this requirement the

official had to certify by his or her

signature that he or she had personally

examined the information contained in

the report and its attachments, that the

statements and information were true to

the best of his or her knowledge and

belief, and that he or she was aware of

the penalties (including the possibility

of fine or imprisonment) that could

accrue for submitting false statements

and information or omitting required

statements and information. A number

of commenters were concerned that the

requirement that an official personally

examine all information in the report

and its attachments was impractical,

given the amount of data that would

have to be examined and the

responsible official’s probable lack of

expertise in the specific areas of the

documents. Commenters also expressed

concerns that the penalty language of

the proposed rule imposed liability on

the responsible official instead of the

persons who might be responsible for

violations, or on the company itself.

The EPA has eliminated the proposed

report signature requirement in the final

rule. Instead, part 64 reporting will be

subject to the same certification

requirements as required for all reports

submitted under § 70.5(d). The Agency

believes the use of the part 70 signature

requirements is appropriate given the

general reliance on part 70 reporting

requirements in part 64.

4. Confidentiality of Report Information

The 1993 EM proposal explicitly

provided that an owner or operator

could assert a confidentiality claim for

information reported under part 64 to

the extent such information was entitled

to protection under section 114(c) of the

Act. This provision received a generally

favorable response from industry

commenters, some of whom proposed

that the confidentiality provisions be

expanded. This provision is not

included in § 64.9 of the final rule. As

noted above, part 64 reporting is

governed by part 70. Information

submitted under part 70 reporting

requirements is already subject to

confidentiality protection pursuant to

§ 70.4(b)(3)(viii), as well as section

503(e) of the Act. Any such information

accompanied by a claim of

confidentiality will be treated in

accordance with the regulations of 40

CFR part 2. The Agency believes that

the inclusion of confidentiality

provisions in part 64 is unnecessary due

to the applicability of the protections

contained in part 70.

5. Recordkeeping Requirements

Section 64.9(b)(1) requires owners

and operators of affected sources to

comply with the recordkeeping

obligations set forth in § 70.6(a)(3)(ii).

Part 70 requires that records of the

required monitoring including the

following information be maintained for

a period of at least five years: The date,

place, and time of sampling or

measurements; the date(s) analyses were

performed; the company or entity that

performed the analyses; the analytical

techniques or methods used; the results

of such analyses; and the operating

conditions as existing at the time of

sampling or measurement. Section

64.9(b) clarifies that for purposes of part

64, the records to be maintained

include: Monitoring data, monitor

performance data, corrective actions

taken, the written quality improvement

plan and related implementation

activities, and other supporting

information required to be maintained

under part 64. The Agency notes that

the part 64 requirement to keep these

records is not a separate recordkeeping

requirement. The Agency believes all of

these records are already required to be

maintained under the general part 70

provisions, but includes these specific

types of records in the final rule to

clarify the general part 70 language.

Recordkeeping requirements under

the final rule are not significantly

different from those in the 1993 EM

proposal. Although the 1993 EM

proposal did not explicitly refer to part

70 recordkeeping provisions, its

requirements were essentially a

restatement of part 70 requirements in

an enhanced monitoring context.

Owners or operators would have been

required to maintain the same general

information required by part 70 for the

same minimum period of five years. The

preamble to the 1993 EM proposal did

state that the requirements were

‘‘consistent with the minimum

recordkeeping provisions in 40 CFR

70.6(a)(3).’’

Both the requirements of the 1993 EM

proposal and the currently applicable

part 70 provisions require the

maintenance of records for a period of

at least five years from the date of the

monitoring sample, measurement,

report or application. A number of

commenters expressed objections to the

five year data retention period, arguing

that the burden of retaining records for

such an extended period was excessive.

Among the proposed alternatives were a

3-year data retention period, consistent

with the Acid Rain Program, or a shorter

period for records covering periods for

which there were no deviations. The

EPA had included the 5-year period in

the 1993 EM proposal to be consistent

with the minimum requirements of

§ 70.6. The Agency continues to believe

that this period is appropriate, as part

70 has established the 5-year retention

period as the standard even where less

than five years is required in underlying

rules. For example, part 70 has changed

the record retention time for NSPS and

similar provisions, establishing the 5-

year period for such provisions. By

explicitly relying on part 70

recordkeeping requirements, the Agency

has further affirmed the appropriateness

of employing the 5-year period for part

64 records.

Section 64.6(b) of the 1993 EM

proposal stated that records had to be

available for inspection at the site of an

affected source or at a different site

approved by the permitting authority. In
54936 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

addition, the proposed rule required

that such records be maintained so as to

permit prompt submittal if requested by

EPA or the permitting authority. A

number of commenters on the 1993 EM

proposal and the 1996 part 64 Draft

recommended that owners or operators

should be free to decide where facility

records would be kept, arguing that

permitting authority approval should

not be required since most facilities

cannot handle the storage of the data

required by the rule. Because the final

rule relies directly on the reporting and

recordkeeping requirements of part 70,

the requirement that source owners get

permitting authority approval for off-site

storage of part 64 records has been

deleted.

The recordkeeping provisions of the

1993 EM proposal did not specifically

address the form in which records must

be maintained. Several commenters

supported the idea of storing data in a

non-paper media such as microfiche or

a form of electronic data storage. They

contended that such storage methods

would reduce the costs and burdens

associated with storing records for the

minimum 5-year period. The Agency

agrees with these comments and

encourages the use of alternative

recordkeeping, provided appropriate

safeguards are adopted to insure the

integrity and accessibility of the data

over time. Section 64.9(b)(2) of the final

rule therefore explicitly allows the

maintenance of records on alternative

media, such as microfilm, computer

files, magnetic tape disks, or microfiche,

so long as the data are readily available

for inspection and review and the

alternative format does not conflict with

other applicable recordkeeping

provisions. This approach is consistent

with recent general recordkeeping

provisions, such as the NESHAP general

provisions in 40 CFR 63.10(b).

J. Section 64.10—Savings Provisions

Because part 64 requirements may

overlap with many other applicable

requirements, § 64.10 of the final rule

clarifies that nothing in part 64 is

intended to excuse the owner or

operator from applicable requirements

under the Act (including emission

limitations or standards as well as other

monitoring requirements) or to restrict

the authority of the EPA or the

permitting authority to impose

additional monitoring under the Act or

State law, as applicable. For example, it

would be possible for a source to be in

compliance with its QIP, but out of

compliance with an applicable emission

limitation or standard. The owner of

such a source could expect enforcement

action for violation of the applicable

emission limitation or standard, even

though there may not be a violation of

part 64. Simply put, adherence to a QIP

does not insulate an owner or operator

against enforcement action for

violations of an underlying emission

limitation or standard. This section also

clarifies that the requirements may not

be used to justify the imposition of less

stringent monitoring under other

programs than would otherwise be

required under those programs. For

instance, in acting on a new source

review permit under title I of the Act,

the part 64 requirements may not be

used to judge the adequacy of the

monitoring in that permit; instead, the

general procedures and practices under

the title I permit program will be used.

The 1993 EM proposal contained

specific savings provisions in the

applicability section (then § 64.1) and

the permit application section (then

§ 64.7). The applicability savings

provision in proposed § 64.1(d) clarified

that nothing in part 64 was intended to

excuse owners or operators from other

monitoring, recordkeeping and

reporting requirements that apply

pursuant to other provisions of the Act,

or to restrict the authority of the

Administrator or permitting authority to

impose additional or more restrictive

monitoring, recordkeeping or reporting

requirements under other provisions of

the Act. The permit application

provision in proposed § 64.7(d) stated

that owners or operators must still

comply with all other permit

application requirements and

requirements established by federal

regulations or by permitting authorities

under federally-approved permit

programs. These savings provisions are

brought together in a single section of

the final rule without significant

changes from the original proposal.

Section 64.10 of the final rule also

states that nothing in part 64 will

interfere with the permitting authority’s

or EPA’s ability to enforce against

violations of applicable requirements

under the Act or the authority of a

citizen to enforce against violations

pursuant to section 304. This savings

provision was added to the final rule to

clarify the Agency’s position on the

relationship of part 64 to certain

enforcement issues. A number of

commenters requested that EPA include

a provision that would shield owners or

operators who comply with part 64 from

enforcement for violations of their

emission limits. As discussed in Section

I.E.3., the Agency disagrees with this

concept. In cases where the part 64 data

indicate noncompliance with emission

limits, including exceedances,

permitting authorities and the Agency

will be able to take enforcement action.

In other cases, where the part 64

monitoring indicates, but does not

directly establish, the compliance status

of a source, the reasonable assurance of

compliance based on part 64 data does

not prohibit the Agency from taking

appropriate investigatory or

enforcement steps when noncompliance

is shown by other means. This same

point was clarified in the discussions

accompanying both the 1995 and 1996

part 64 Drafts.

K. Revisions to 40 CFR Part 70 and Part

71

The final rule includes revisions to

parts 70 and 71 to clarify the

relationship between part 64 and the

operating permits program. These

revisions are outlined below.

1. Monitoring Requirements

The revisions to part 70 allow for

streamlining multiple monitoring

requirements if the streamlined

monitoring is able to assure compliance

at least to the same extent as the

applicable requirements not included as

a result of the streamlining. The Agency

notes that the language in these

revisions is designed to be consistent

with a discussion in section A.5. of

White Paper 2 (See docket item VI–I–2)

concerning the possibility of

streamlining applicable monitoring and

testing requirements (‘‘§ 70.6(a)(3)

appears to restrict streamlining by

requiring that all ‘‘applicable’’

monitoring . . . requirements be placed

in the permit. . . . The EPA intends to

revise part 70 to reflect this

understanding in a future rulemaking.’’).

The Agency indicated in the 1996 part

64 Draft that it intended to fulfill its

intent to modify part 70 as discussed in

White Paper 2 by including the

appropriate revisions to § 70.6(a)(3)(i) in

conjunction with the part 64

rulemaking. Because the Agency

received strong support for this

proposed action and no negative

comments, the Agency has proceeded to

add this part 70 revision (and the

corresponding revision to part 71) as

part of this rulemaking.

2. Compliance Certification

Requirements

To tailor compliance certification to

the monitoring imposed by part 64, EPA

has revised § 70.6(c)(5)(iii) (and

§ 71.6(c)(5)(iii)) so that a compliance

certification includes the following

elements.

First, the permit conditions being

certified must be identified. Second, the

method(s) and other information used to

determine compliance status of each
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54937

term and condition must be identified.

These method(s) will have to include at

a minimum any testing and monitoring

methods identified in § 70.6(a)(3) that

were conducted during the relevant

time period. In addition, if the owner or

operator knows of other material

information (i.e., information beyond

required monitoring that has been

specifically assessed in relation to how

the information potentially affects

compliance status), that information

must be identified and addressed in the

compliance certification. This

requirement merely emphasizes the

general prohibition in section 113(c)(2)

of the Act on knowingly making a false

certification or omitting material

information and the general criminal

section on submitting false information

to the government codified at 18 USC

1001. The revised part 70 provision

does not impose a duty on the owner or

operator to assess every possible piece

of information that may have some

undetermined bearing on compliance.

The description of the methods relied

on by the source owner also will have

to indicate whether the methods

provide continuous or intermittent data.

In accordance with section 114 of the

Act that specifies that the certification

include whether compliance is

continuous or intermittent, the Agency

will interpret the compliance

certification that is based on monitoring

that provides intermittent data as

compliance on an intermittent basis.

Third, the responsible official will

have to certify compliance based on the

results of the identified methods. The

certification must state the compliance

status with the part 70 permit, taking

into account any deviations and noting

as possible exceptions to compliance

any deviations or excursions/

exceedances as defined in part 64 or

other underlying applicable

requirements. Because ‘‘deviation’’ was

defined under part 71 as originally

promulgated, the revisions to part 71

incorporate the concepts of excursion

and exceedance into the § 71.6(a)(3)

definition of ‘‘deviation.’’ Therefore,

unlike the part 70 revisions, the revised

compliance certification provision in

part 71 refers only to ‘‘deviations.’’

The owner or operator may include

information in the certification to

document that compliance was

achieved during any periods in which a

possible exception is noted (such as

information that an excursion or

exceedance occurred during a period of

startup or shutdown for which

compliance with an emission limitation

or standards was excused). The

requirement to take into account

deviations, excursions, and exceedances

together with the requirement to

identify whether the method used

provides continuous or intermittent data

ensures that the compliance

certification will show whether

compliance is continuous or

intermittent. For example, a compliance

certification based on a method

providing intermittent data or that notes

any deviations or certain possible

exceptions to compliance as a result of

exceedances or excursions based on

monitoring required by this rule will be

interpreted as showing intermittent

compliance. The Agency does not

interpret a certification of intermittent

compliance to necessarily mean that the

responsible official is certifying that

there are periods of noncompliance.

Such a certification can mean that there

are periods of time in which the

source’s compliance status is unknown.

When a responsible official certifies

compliance based on a method

providing continuous data and no

deviations, excursions, or exceedances

have occurred (or all such occurrences

have been adequately addressed by

other information, as explained above),

this will be interpreted as a certification

of continuous compliance. These

provisions implement the requirements

in section 114(a)(3)(B), (C), and (D) that

the certification include the methods

used to determine the compliance status

and whether compliance is continuous

or intermittent.

The certification also will have to

include any other facts required by the

permitting authority. This requirement

is already included in parts 70 and 71

as promulgated. Finally, the Agency

notes that the rule allows the owner or

operator to cross-reference the permit or

previous reports to identify the various

information elements required in a

certification. This provision allows the

actual certification to be a short, concise

compliance statement that is not

burdened by restating detailed

information that has already been

provided.

The goal of part 64 is to provide

improved compliance data for

significant emissions units at title V

major sources. This improvement will

in turn provide additional data for the

owner or operator to rely on in

certifying compliance. As discussed in

Section I.C. above, EPA believes that the

part 64 data will provide a reliable

means for owners or operators to reach

a conclusion about their compliance

status. However, since the part 64 data

will not necessarily always provide

unequivocal proof of compliance or

noncompliance (as a performance or

compliance test method would), there

will be excursions or exceedances

identified through part 64 which raise

questions about compliance status but

may not confirm conclusively that a

source is in noncompliance. The

existence of these occurrences only

indicates the need to review the

compliance information provided in

order to determine what, if any,

compliance or enforcement actions may

be warranted.

These changes to parts 70 and 71 have

been developed based on the provisions

included in the 1993 EM proposal, as

supplemented by the December 1994

reopened comment period, as well as

based on the 1995 and 1996 part 64

Drafts. The reporting requirements of

the 1993 EM proposal would have

required that a responsible official for

an affected source use enhanced

monitoring data as the basis for the

required title V compliance

certification. The 1993 EM proposal also

required the use of any other data

collected for the purpose of determining

compliance during the monitoring

period. These provisions were the

subject of significant public comment.

Some of these comments seemed to be

based on the belief that the proposed

rule created a separate compliance

certification requirement. The EPA

always intended for these provisions to

operate within the title V compliance

certification process, establishing

additional requirements that units

subject to part 64 had to meet in order

to satisfy title V compliance certification

requirements. To clarify this approach,

the compliance certification provisions

in the final rule were removed from part

64. Instead, § 70.6(c)(5)(iii) of part 70

(and the corresponding section in part

71) has been amended to reflect the

requirements of compliance certification

for those units subject to part 64.

In addition, as discussed above in

Section I.C., EPA reopened the public

comment period on the 1993 EM

proposal and stated EPA’s intent that it

may reconsider how to interpret the

meaning of ‘‘continuous or intermittent’’

in the context of certifying compliance.

The revisions to parts 70 and 71 in

today’s rulemaking reflect the position

taken by EPA in that December 1994

notice. Finally, the revisions reflect the

position taken in the final part 64 rule

that monitoring data that do not

constitute formal performance or

compliance test method data may still

be used by the owner or operator to

determine compliance status and to note

any possible exceptions to compliance

that are indicated by the monitoring.

This interpretation is consistent with

the existing part 70 which specifically

references the fact that a certification

must consider all of the relevant data
54938 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

under § 70.6(a)(3), which includes nontest method monitoring data. Because of

the possible misinterpretations of the

existing language, EPA believes that

clarifying the compliance certification

requirements in conjunction with

promulgating part 64 is appropriate.

III. Administrative Requirements

A. Docket

The EPA is relying on the procedural

requirements of section 307(d) of the

Act for the regulations. In accordance

with those requirements, EPA has

established docket A–91–52 for the

regulations. The docket is an organized

and complete file of all the information

submitted to, or otherwise considered

by, EPA in the development of this

rulemaking. 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 notice.

B. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), EPA must

determine whether a regulatory action is

‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

EPA assumes as the baseline for its

analysis of part 64 that affected

emissions sources are currently in

compliance with their underlying

emission standards 100 percent of the

time. Thus, there are no emissions

reductions benefits (and health and

welfare benefits), nor costs for

additional control technology, operation

and maintenance, associated with part

64. EPA believes that some sources, in

response to monitoring data gathered

under part 64, may indeed have to make

investments in control equipment

technology, operation and maintenance

to reduce emissions to comply with

their underlying emissions standards;

however, EPA believes these emission

reductions benefits and costs are not

attributable to part 64—but to the

underlying emissions standards. As

such, EPA has not estimated the benefits

or costs that may result from such

actions to reduce emissions.

EPA has estimated the cost of part 64

to include the cost of development and

implementation of CAM plans, $50

million per year. ($1995). This includes

the cost of determining the monitoring

approach and implementing the

approved design, including reporting,

recordkeeping, and certification

activities.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ due to its policy implications

and was submitted to OMB for review.

Any written comments from OMB to

EPA and any written EPA response to

those comments are included in the

docket. The docket is available for

public inspection at EPA’s Air Docket

Section, which is listed in the

ADDRESSES section of this preamble. The

Regulatory Impact Analysis (RIA) for

this rulemaking is included in the

docket.

C. Unfunded Mandates Act

Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’) (signed

into law on March 22, 1995) requires

that the Agency must prepare a

budgetary impact statement before

promulgating a rule that includes a

Federal mandate that may result in

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year. The budgetary impact

statement must include: (i)

Identification of the Federal law under

which the rule is promulgated; (ii) a

qualitative and quantitative assessment

of anticipated costs and benefits of the

Federal mandate and an analysis of the

extent to which such costs to State,

local, and tribal governments may be

paid with Federal financial assistance;

(iii) if feasible, estimates of the future

compliance costs and any

disproportionate budgetary effects of the

mandate; (iv) if feasible, estimates of the

effect on the national economy; and (v)

a description of the Agency’s prior

consultation with elected

representatives of State, local, and tribal

governments and a summary and

evaluation of the comments and

concerns presented. 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 impacted by the rule.

Under section 205 of the Unfunded

Mandates Act, EPA must identify and

consider a reasonable number of

regulatory alternatives before

promulgating a rule for which a

budgetary impact statement must be

prepared. The Agency must select from

those alternatives the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule

unless the Agency explains why this

alternative is not selected or unless the

selection of this alternative is

inconsistent with law.

Because this rule is not estimated to

result in the expenditure by State, local,

and tribal governments and the private

sector, in aggregate, of over $100 million

per year, EPA is not required under

UMRA to develop a budgetary impact

statement or to undertake the analysis

under section 205. However, because

certain options considered by EPA

would have resulted in a total cost in

excess of $100 million, EPA did prepare

such statement and analysis and they

are included as part of the Regulatory

Impact Analysis, which is included in

the docket.

To the extent governmental entities

are affected by the rule as permitting

authorities, the costs of the rule are

offset or mitigated by receipt of title V

permit fees, since the rule affects only

title V sources. Part 70 requires sources

of pollution to pay permit fees sufficient

to offset the costs incurred by the

permitting authority in managing its

operating permits program. Since part

64 introduces additional requirements

for permitting authorities, these

incremental costs must be incorporated

into the operating permit fee. Because

Permitting Authority costs may be

transferred to sources of pollution

through the permit fee, the

administrative and recordkeeping cost

of this rulemaking to State, local, and

tribal governments is, for practical

purposes, zero. EPA has also concluded

that, to the extent small governments are

impacted by this regulation because

they are major stationary sources, the

impact will not be significant. See

Section III.E. As a result, UMRA

requirements do not apply to this

rulemaking.
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54939

D. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1663.02) and

a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division; U.S. Environmental Protection

Agency (2137); 401 M St., SW.;

Washington, DC 20460 or by calling

(202) 260–2740. The information

requirements are not effective until

OMB approves them.

The information is planned to be

collected to fulfill requirements in both

the title V operating permit program and

part 64 programs. The operating permit

program requires owners or operators of

units that emit air pollutants to submit

annual compliance certifications, to

submit monitoring results at least

semiannually, and to report deviations

promptly. Part 64 requires monitoring

for certain emissions units at major

sources subject to the title V operating

permits program. Therefore, the

collection of information is mandated

by the Act. Generally, emissions data

cannot be considered confidential under

the Act. However, to the extent

allowable under the Act, the collection

of information will be entitled to

confidential treatment in accordance

with EPA’s procedures established in 40

CFR part 2.

The part 64 rulemaking requires

monitoring, compliance certification,

periodic reporting, and recordkeeping

information collections by owners and

operators of title V sources with

controlled pollutant-specific emissions

units that have a pre-control potential to

emit major amounts of regulated air

pollutants. Owners or operators of

affected emissions units will use the

information as the basis for the

compliance certification required by the

operating permit program, and as the

basis for compliance assurance

monitoring reports. Sources may also

use the information to determine and

maintain the efficiency of process or

emissions control devices. Permitting

authorities will use the information to

determining acceptability of proposed

compliance assurance monitoring, to

assess compliance, to input into reports

to other agencies, and, when necessary,

in enforcement proceedings and Quality

Improvement Plans (QIPs). The

information may be used by other

entities, including federal entities and

citizens. EPA will use the information to

perform activities such as providing

oversight and guidance to State and

local agencies, and to assess requests for

alternative monitoring.

The implementation schedule for part

64 will phase-in implementation over a

number of years, so that not all sources

will have reporting and recordkeeping

impacts in the first three years of

implementation. The estimated

annualized cost of CAM on a national

level for the first three years of

implementation is $7,891,000 (in 1995

dollars). The annual average total

capital and operation and maintenance

costs are estimated at $1,230,000 (in

1995 dollars) for the first three years of

implementation. The annual average

burden hours for the first three years of

implementation are estimated at

147,560. The Agency estimated the

incremental reporting burden for this

collection to average 1 hour annually

per response, and to require between 26

and 390 hours annually for

recordkeeping per response. This

includes time for conducting activities

over and above the requirements of part

70 such as an accounting of the number,

duration and cause of monitor

downtime incidents and exceedances, a

reporting of corrective actions, and

keeping records of data used to

document the adequacy of monitoring.

Note that the average burden hours and

costs represent those estimated for the

first three years of the rule’s

implementation during which a

relatively small percentage of the

affected pollutant-specific emission

units will be subject to part 64

requirements. More units will be

affected per year in the six to eight years

following the rule’s publication and the

reporting and recordkeeping burden

will also increase. See the RIA for more

discussion of the costs associated with

years beyond the first three years.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR Ch. 15.

Send comments on the Agency’s need

for this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection

techniques to the Director, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2137), 401 M St., SW., Washington DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

NW., Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Comments are requested within

November 21, 1997. Include the ICR

number in any correspondence.

E. Regulatory Flexibility Act

The Agency has determined that it is

not necessary to prepare a regulatory

flexibility analysis in connection with

this rule. A screening analysis was

prepared to examine the potential for

significant adverse impacts on small

entities associated with specific

monitoring and certification provisions.

For small governmental entities that

may own or operate affected sources,

EPA determined that the most likely

small government and organization

sources affected by the rule are

municipal power plants and hospitals.

After analysis, EPA determined that,

given the relatively low numbers of

impacted sources(140 small government

utilities and 70 small organizations

(hospitals)), the low percentage of

impacted sources out of the total

number of similar sources (11—18

percent of small government utilities

and 3 percent of hospitals), and the low

cost impacts associated with CAM

(assumed similar to the cost impact on

small business as discussed below),

there will not be a significant impact

upon a substantial number of small

governments and organizations. See

Section V of the Regulatory Impact

Analysis included in the docket.

Nevertheless, in developing the rule,

EPA did provide numerous

opportunities for consultation with

interested parties, including State, local,

and tribal governments, at public

conferences and meetings. The EPA

evaluated the comments and concerns

expressed, and the rule reflects, to the

extent consistent with the Act, those

comments and concerns. Most

importantly, the Agency received

comments from approximately 80

representatives of municipally-owned

electric utilities that suggested

exemptions for small municipal utility
54940 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

units. In response, the rule includes an

exemption for certain municipallyowned electric utility units that could

be affected by the rule. These

procedures ensured State and local

governments an opportunity to give

meaningful and timely input and obtain

information, education and advice on

compliance.

EPA estimates 4,957 small firms

nationwide could be affected by CAM.

A total of 40 affected small firms within

this group could have a potential impact

over one percent of average annual

revenues. The ratio is 0.0087, or less

than one percent, which represents the

percent of small affected firms that may

experience greater than a 1 percent (but

less than a 3 percent) increase in costs

due to CAM. EPA believes that these

estimates of the number of firms

affected and the level of cost impact are

overstated due to several conservative

assumptions in the analysis. These

assumptions are described in Chapter 5

of the Regulatory Impact Analysis.

Given the conservativeness of this

assessment and the fact that 99 percent

of the affected small businesses are

expected to have impacts of less than 1

percent and no small business is likely

to experience costs exceeding 3 percent,

the EPA concludes that CAM will not

have a significant economic impact on

a substantial number of small

businesses. In addition, EPA also notes

that the use of general permits under

title V and assistance through the small

business assistance program provisions

of title V will assist in reducing the

impacts of the part 64 requirements on

small businesses.

Accordingly, considering all of the

above information, EPA concludes that

this rule will not have a significant

economic impact on a substantial

number of small entities.

F. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives, and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by U.S.C.

804(2).

List of Subjects

40 CFR Part 64

Environmental protection, Air

pollution control, Monitoring, Operating

permits, Reporting and recordkeeping

requirements.

40 CFR Part 70

Air pollution control, Monitoring,

Operating permits, Reporting and

recordkeeping requirements.

40 CFR Part 71

Air pollution control, Monitoring,

Operating permits, Reporting and

recordkeeping requirements.

Dated: October 3, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

1. Part 64 is added to read as follows:

PART 64—COMPLIANCE ASSURANCE

MONITORING

Sec.

64.1 Definitions.

64.2 Applicability.

64.3 Monitoring design criteria.

64.4 Submittal requirements.

64.5 Deadlines for submittals.

64.6 Approval of monitoring.

64.7 Operation of approved monitoring.

64.8 Quality improvement plan (QIP)

requirements.

64.9 Reporting and recordkeeping

requirements.

64.10 Savings provisions.

Authority: 42 U.S.C. 7414 and 7661–7661f.

§ 64.1 Definitions.

The following definitions apply to

this part. Except as specifically

provided in this section, terms used in

this part retain the meaning accorded

them under the applicable provisions of

the Act.

Act means the Clean Air Act, as

amended by Pub.L. 101–549, 42 U.S.C.

7401, et seq.

Applicable requirement shall have the

same meaning as provided under part

70 of this chapter.

Capture system means the equipment

(including but not limited to hoods,

ducts, fans, and booths) used to contain,

capture and transport a pollutant to a

control device.

Continuous compliance

determination method means a method,

specified by the applicable standard or

an applicable permit condition, which:

(1) Is used to determine compliance

with an emission limitation or standard

on a continuous basis, consistent with

the averaging period established for the

emission limitation or standard; and

(2) Provides data either in units of the

standard or correlated directly with the

compliance limit.

Control device means equipment,

other than inherent process equipment,

that is used to destroy or remove air

pollutant(s) prior to discharge to the

atmosphere. The types of equipment

that may commonly be used as control

devices include, but are not limited to,

fabric filters, mechanical collectors,

electrostatic precipitators, inertial

separators, afterburners, thermal or

catalytic incinerators, adsorption

devices (such as carbon beds),

condensers, scrubbers (such as wet

collection and gas absorption devices),

selective catalytic or non-catalytic

reduction systems, flue gas recirculation

systems, spray dryers, spray towers,

mist eliminators, acid plants, sulfur

recovery plants, injection systems (such

as water, steam, ammonia, sorbent or

limestone injection), and combustion

devices independent of the particular

process being conducted at an emissions

unit (e.g., the destruction of emissions

achieved by venting process emission

streams to flares, boilers or process

heaters). For purposes of this part, a

control device does not include passive

control measures that act to prevent

pollutants from forming, such as the use

of seals, lids, or roofs to prevent the

release of pollutants, use of lowpolluting fuel or feedstocks, or the use

of combustion or other process design

features or characteristics. If an

applicable requirement establishes that

particular equipment which otherwise

meets this definition of a control device

does not constitute a control device as

applied to a particular pollutant-specific

emissions unit, then that definition

shall be binding for purposes of this

part.

Data means the results of any type of

monitoring or method, including the

results of instrumental or noninstrumental monitoring, emission

calculations, manual sampling

procedures, recordkeeping procedures,

or any other form of information

collection procedure used in connection

with any type of monitoring or method.

Emission limitation or standard

means any applicable requirement that

constitutes an emission limitation,

emission standard, standard of

performance or means of emission

limitation as defined under the Act. An

emission limitation or standard may be

expressed in terms of the pollutant,

expressed either as a specific quantity,

rate or concentration of emissions (e.g.,

pounds of SO2 per hour, pounds of SO2

per million British thermal units of fuel

input, kilograms of VOC per liter of

applied coating solids, or parts per

million by volume of SO2) or as the

relationship of uncontrolled to

controlled emissions (e.g., percentage

capture and destruction efficiency of

VOC or percentage reduction of SO2).
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54941

An emission limitation or standard may

also be expressed either as a work

practice, process or control device

parameter, or other form of specific

design, equipment, operational, or

operation and maintenance

requirement. For purposes of this part,

an emission limitation or standard shall

not include general operation

requirements that an owner or operator

may be required to meet, such as

requirements to obtain a permit, to

operate and maintain sources in

accordance with good air pollution

control practices, to develop and

maintain a malfunction abatement plan,

to keep records, submit reports, or

conduct monitoring.

Emissions unit shall have the same

meaning as provided under part 70 of

this chapter.

Exceedance shall mean a condition

that is detected by monitoring that

provides data in terms of an emission

limitation or standard and that indicates

that emissions (or opacity) are greater

than the applicable emission limitation

or standard (or less than the applicable

standard in the case of a percent

reduction requirement) consistent with

any averaging period specified for

averaging the results of the monitoring.

Excursion shall mean a departure

from an indicator range established for

monitoring under this part, consistent

with any averaging period specified for

averaging the results of the monitoring.

Inherent process equipment means

equipment that is necessary for the

proper or safe functioning of the

process, or material recovery equipment

that the owner or operator documents is

installed and operated primarily for

purposes other than compliance with air

pollution regulations. Equipment that

must be operated at an efficiency higher

than that achieved during normal

process operations in order to comply

with the applicable emission limitation

or standard is not inherent process

equipment. For the purposes of this

part, inherent process equipment is not

considered a control device.

Major source shall have the same

meaning as provided under part 70 or

71 of this chapter.

Monitoring means any form of

collecting data on a routine basis to

determine or otherwise assess

compliance with emission limitations or

standards. Recordkeeping may be

considered monitoring where such

records are used to determine or assess

compliance with an emission limitation

or standard (such as records of raw

material content and usage, or records

documenting compliance with work

practice requirements). The conduct of

compliance method tests, such as the

procedures in appendix A to part 60 of

this chapter, on a routine periodic basis

may be considered monitoring (or as a

supplement to other monitoring),

provided that requirements to conduct

such tests on a one-time basis or at such

times as a regulatory authority may

require on a non-regular basis are not

considered monitoring requirements for

purposes of this paragraph. Monitoring

may include one or more than one of the

following data collection techniques,

where appropriate for a particular

circumstance:

(1) Continuous emission or opacity

monitoring systems.

(2) Continuous process, capture

system, control device or other relevant

parameter monitoring systems or

procedures, including a predictive

emission monitoring system.

(3) Emission estimation and

calculation procedures (e.g., mass

balance or stoichiometric calculations).

(4) Maintenance and analysis of

records of fuel or raw materials usage.

(5) Recording results of a program or

protocol to conduct specific operation

and maintenance procedures.

(6) Verification of emissions, process

parameters, capture system parameters,

or control device parameters using

portable or in situ measurement devices.

(7) Visible emission observations.

(8) Any other form of measuring,

recording, or verifying on a routine basis

emissions, process parameters, capture

system parameters, control device

parameters or other factors relevant to

assessing compliance with emission

limitations or standards.

Owner or operator means any person

who owns, leases, operates, controls or

supervises a stationary source subject to

this part.

Part 70 or 71 permit shall have the

same meaning as provided under part

70 or 71 of this chapter, provided that

it shall also refer to a permit issued,

renewed, amended, revised, or modified

under any federal permit program

promulgated under title V of the Act.

Part 70 or 71 permit application shall

mean an application (including any

supplement to a previously submitted

application) that is submitted by the

owner or operator in order to obtain a

part 70 or 71 permit.

Permitting authority shall have the

same meaning as provided under part

70 or 71 of this chapter.

Pollutant-specific emissions unit

means an emissions unit considered

separately with respect to each

regulated air pollutant.

Potential to emit shall have the same

meaning as provided under part 70 or

71 of this chapter, provided that it shall

be applied with respect to an

‘‘emissions unit’’ as defined under this

part in addition to a ‘‘stationary source’’

as provided under part 70 or 71 of this

chapter.

Predictive emission monitoring

system (PEMS) means a system that uses

process and other parameters as inputs

to a computer program or other data

reduction system to produce values in

terms of the applicable emission

limitation or standard.

Regulated air pollutant shall have the

same meaning as provided under part

70 or 71 of this chapter.

§ 64.2 Applicability.

(a) General applicability. Except for

backup utility units that are exempt

under paragraph (b)(2) of this section,

the requirements of this part shall apply

to a pollutant-specific emissions unit at

a major source that is required to obtain

a part 70 or 71 permit if the unit satisfies

all of the following criteria:

(1) The unit is subject to an emission

limitation or standard for the applicable

regulated air pollutant (or a surrogate

thereof), other than an emission

limitation or standard that is exempt

under paragraph (b)(1) of this section;

(2) The unit uses a control device to

achieve compliance with any such

emission limitation or standard; and

(3) The unit has potential pre-control

device emissions of the applicable

regulated air pollutant that are equal to

or greater than 100 percent of the

amount, in tons per year, required for a

source to be classified as a major source.

For purposes of this paragraph,

‘‘potential pre-control device

emissions’’ shall have the same meaning

as ‘‘potential to emit,’’ as defined in

§ 64.1, except that emission reductions

achieved by the applicable control

device shall not be taken into account.

(b) Exemptions—. (1) Exempt

emission limitations or standards. The

requirements of this part shall not apply

to any of the following emission

limitations or standards:

(i) Emission limitations or standards

proposed by the Administrator after

November 15, 1990 pursuant to section

111 or 112 of the Act.

(ii) Stratospheric ozone protection

requirements under title VI of the Act.

(iii) Acid Rain Program requirements

pursuant to sections 404, 405, 406,

407(a), 407(b), or 410 of the Act.

(iv) Emission limitations or standards

or other applicable requirements that

apply solely under an emissions trading

program approved or promulgated by

the Administrator under the Act that

allows for trading emissions within a

source or between sources.
54942 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

(v) An emissions cap that meets the

requirements specified in § 70.4(b)(12)

or § 71.6(a)(13)(iii) of this chapter.

(vi) Emission limitations or standards

for which a part 70 or 71 permit

specifies a continuous compliance

determination method, as defined in

§ 64.1. The exemption provided in this

paragraph (b)(1)(vi) shall not apply if

the applicable compliance method

includes an assumed control device

emission reduction factor that could be

affected by the actual operation and

maintenance of the control device (such

as a surface coating line controlled by

an incinerator for which continuous

compliance is determined by calculating

emissions on the basis of coating

records and an assumed control device

efficiency factor based on an initial

performance test; in this example, this

part would apply to the control device

and capture system, but not to the

remaining elements of the coating line,

such as raw material usage).

(2) Exemption for backup utility

power emissions units. The

requirements of this part shall not apply

to a utility unit, as defined in § 72.2 of

this chapter, that is municipally-owned

if the owner or operator provides

documentation in a part 70 or 71 permit

application that:

(i) The utility unit is exempt from all

monitoring requirements in part 75

(including the appendices thereto) of

this chapter;

(ii) The utility unit is operated for the

sole purpose of providing electricity

during periods of peak electrical

demand or emergency situations and

will be operated consistent with that

purpose throughout the part 70 or 71

permit term. The owner or operator

shall provide historical operating data

and relevant contractual obligations to

document that this criterion is satisfied;

and

(iii) The actual emissions from the

utility unit, based on the average annual

emissions over the last three calendar

years of operation (or such shorter time

period that is available for units with

fewer than three years of operation) are

less than 50 percent of the amount in

tons per year required for a source to be

classified as a major source and are

expected to remain so.

§ 64.3 Monitoring design criteria.

(a) General criteria. To provide a

reasonable assurance of compliance

with emission limitations or standards

for the anticipated range of operations at

a pollutant-specific emissions unit,

monitoring under this part shall meet

the following general criteria:

(1) The owner or operator shall design

the monitoring to obtain data for one or

more indicators of emission control

performance for the control device, any

associated capture system and, if

necessary to satisfy paragraph (a)(2) of

this section, processes at a pollutantspecific emissions unit. Indicators of

performance may include, but are not

limited to, direct or predicted emissions

(including visible emissions or opacity),

process and control device parameters

that affect control device (and capture

system) efficiency or emission rates, or

recorded findings of inspection and

maintenance activities conducted by the

owner or operator.

(2) The owner or operator shall

establish an appropriate range(s) or

designated condition(s) for the selected

indicator(s) such that operation within

the ranges provides a reasonable

assurance of ongoing compliance with

emission limitations or standards for the

anticipated range of operating

conditions. Such range(s) or

condition(s) shall reflect the proper

operation and maintenance of the

control device (and associated capture

system), in accordance with applicable

design properties, for minimizing

emissions over the anticipated range of

operating conditions at least to the level

required to achieve compliance with the

applicable requirements. The reasonable

assurance of compliance will be

assessed by maintaining performance

within the indicator range(s) or

designated condition(s). The ranges

shall be established in accordance with

the design and performance

requirements in this section and

documented in accordance with the

requirements in § 64.4. If necessary to

assure that the control device and

associated capture system can satisfy

this criterion, the owner or operator

shall monitor appropriate process

operational parameters (such as total

throughput where necessary to stay

within the rated capacity for a control

device). In addition, unless specifically

stated otherwise by an applicable

requirement, the owner or operator shall

monitor indicators to detect any bypass

of the control device (or capture system)

to the atmosphere, if such bypass can

occur based on the design of the

pollutant-specific emissions unit.

(3) The design of indicator ranges or

designated conditions may be:

(i) Based on a single maximum or

minimum value if appropriate (e.g.,

maintaining condenser temperatures a

certain number of degrees below the

condensation temperature of the

applicable compound(s) being

processed) or at multiple levels that are

relevant to distinctly different operating

conditions (e.g., high versus low load

levels).

(ii) Expressed as a function of process

variables (e.g., an indicator range

expressed as minimum to maximum

pressure drop across a venturi throat in

a particulate control scrubber).

(iii) Expressed as maintaining the

applicable parameter in a particular

operational status or designated

condition (e.g., position of a damper

controlling gas flow to the atmosphere

through a by-pass duct).

(iv) Established as interdependent

between more than one indicator.

(b) Performance criteria. The owner or

operator shall design the monitoring to

meet the following performance criteria:

(1) Specifications that provide for

obtaining data that are representative of

the emissions or parameters being

monitored (such as detector location

and installation specifications, if

applicable).

(2) For new or modified monitoring

equipment, verification procedures to

confirm the operational status of the

monitoring prior to the date by which

the owner or operator must conduct

monitoring under this part as specified

in § 64.7(a). The owner or operator shall

consider the monitoring equipment

manufacturer’s requirements or

recommendations for installation,

calibration, and start-up operation.

(3) Quality assurance and control

practices that are adequate to ensure the

continuing validity of the data. The

owner or operator shall consider

manufacturer recommendations or

requirements applicable to the

monitoring in developing appropriate

quality assurance and control practices.

(4) Specifications for the frequency of

conducting the monitoring, the data

collection procedures that will be used

(e.g., computerized data acquisition and

handling, alarm sensor, or manual log

entries based on gauge readings), and, if

applicable, the period over which

discrete data points will be averaged for

the purpose of determining whether an

excursion or exceedance has occurred.

(i) At a minimum, the owner or

operator shall design the period over

which data are obtained and, if

applicable, averaged consistent with the

characteristics and typical variability of

the pollutant-specific emissions unit

(including the control device and

associated capture system). Such

intervals shall be commensurate with

the time period over which a change in

control device performance that would

require actions by owner or operator to

return operations within normal ranges

or designated conditions is likely to be

observed.

(ii) For all pollutant-specific

emissions units with the potential to

emit, calculated including the effect of
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54943

control devices, the applicable regulated

air pollutant in an amount equal to or

greater than 100 percent of the amount,

in tons per year, required for a source

to be classified as a major source, for

each parameter monitored, the owner or

operator shall collect four or more data

values equally spaced over each hour

and average the values, as applicable,

over the applicable averaging period as

determined in accordance with

paragraph (b)(4)(i) of this section. The

permitting authority may approve a

reduced data collection frequency, if

appropriate, based on information

presented by the owner or operator

concerning the data collection

mechanisms available for a particular

parameter for the particular pollutantspecific emissions unit (e.g., integrated

raw material or fuel analysis data,

noninstrumental measurement of waste

feed rate or visible emissions, use of a

portable analyzer or an alarm sensor).

(iii) For other pollutant-specific

emissions units, the frequency of data

collection may be less than the

frequency specified in paragraph

(b)(4)(ii) of this section but the

monitoring shall include some data

collection at least once per 24-hour

period (e.g., a daily inspection of a

carbon adsorber operation in

conjunction with a weekly or monthly

check of emissions with a portable

analyzer).

(c) Evaluation factors. In designing

monitoring to meet the requirements in

paragraphs (a) and (b) of this section,

the owner or operator shall take into

account site-specific factors including

the applicability of existing monitoring

equipment and procedures, the ability

of the monitoring to account for process

and control device operational

variability, the reliability and latitude

built into the control technology, and

the level of actual emissions relative to

the compliance limitation.

(d) Special criteria for the use of

continuous emission, opacity or

predictive monitoring systems. (1) If a

continuous emission monitoring system

(CEMS), continuous opacity monitoring

system (COMS) or predictive emission

monitoring system (PEMS) is required

pursuant to other authority under the

Act or state or local law, the owner or

operator shall use such system to satisfy

the requirements of this part.

(2) The use of a CEMS, COMS, or

PEMS that satisfies any of the following

monitoring requirements shall be

deemed to satisfy the general design

criteria in paragraphs (a) and (b) of this

section, provided that a COMS may be

subject to the criteria for establishing

indicator ranges under paragraph (a) of

this section:

(i) Section 51.214 and appendix P of

part 51 of this chapter;

(ii) Section 60.13 and appendix B of

part 60 of this chapter;

(iii) Section 63.8 and any applicable

performance specifications required

pursuant to the applicable subpart of

part 63 of this chapter;

(iv) Part 75 of this chapter;

(v) Subpart H and appendix IX of part

266 of this chapter; or

(vi) If an applicable requirement does

not otherwise require compliance with

the requirements listed in the preceding

paragraphs (d)(2)(i) through (v) of this

section, comparable requirements and

specifications established by the

permitting authority.

(3) The owner or operator shall design

the monitoring system subject to this

paragraph (d) to:

(i) Allow for reporting of exceedances

(or excursions if applicable to a COMS

used to assure compliance with a

particulate matter standard), consistent

with any period for reporting of

exceedances in an underlying

requirement. If an underlying

requirement does not contain a

provision for establishing an averaging

period for the reporting of exceedances

or excursions, the criteria used to

develop an averaging period in (b)(4) of

this section shall apply; and

(ii) Provide an indicator range

consistent with paragraph (a) of this

section for a COMS used to assure

compliance with a particulate matter

standard. If an opacity standard applies

to the pollutant-specific emissions unit,

such limit may be used as the

appropriate indicator range unless the

opacity limit fails to meet the criteria in

paragraph (a) of this section after

considering the type of control device

and other site-specific factors applicable

to the pollutant-specific emissions unit.

§ 64.4 Submittal requirements.

(a) The owner or operator shall submit

to the permitting authority monitoring

that satisfies the design requirements in

§ 64.3. The submission shall include the

following information:

(1) The indicators to be monitored to

satisfy §§ 64.3(a)(1)–(2);

(2) The ranges or designated

conditions for such indicators, or the

process by which such indicator ranges

or designated conditions shall be

established;

(3) The performance criteria for the

monitoring to satisfy § 64.3(b); and

(4) If applicable, the indicator ranges

and performance criteria for a CEMS,

COMS or PEMS pursuant to § 64.3(d).

(b) As part of the information

submitted, the owner or operator shall

submit a justification for the proposed

elements of the monitoring. If the

performance specifications proposed to

satisfy § 64.3(b)(2) or (3) include

differences from manufacturer

recommendations, the owner or

operator shall explain the reasons for

the differences between the

requirements proposed by the owner or

operator and the manufacturer’s

recommendations or requirements. The

owner or operator also shall submit any

data supporting the justification, and

may refer to generally available sources

of information used to support the

justification (such as generally available

air pollution engineering manuals, or

EPA or permitting authority

publications on appropriate monitoring

for various types of control devices or

capture systems). To justify the

appropriateness of the monitoring

elements proposed, the owner or

operator may rely in part on existing

applicable requirements that establish

the monitoring for the applicable

pollutant-specific emissions unit or a

similar unit. If an owner or operator

relies on presumptively acceptable

monitoring, no further justification for

the appropriateness of that monitoring

should be necessary other than an

explanation of the applicability of such

monitoring to the unit in question,

unless data or information is brought

forward to rebut the assumption.

Presumptively acceptable monitoring

includes:

(1) Presumptively acceptable or

required monitoring approaches,

established by the permitting authority

in a rule that constitutes part of the

applicable implementation plan

required pursuant to title I of the Act,

that are designed to achieve compliance

with this part for particular pollutantspecific emissions units;

(2) Continuous emission, opacity or

predictive emission monitoring systems

that satisfy applicable monitoring

requirements and performance

specifications as specified in § 64.3(d);

(3) Excepted or alternative monitoring

methods allowed or approved pursuant

to part 75 of this chapter;

(4) Monitoring included for standards

exempt from this part pursuant to

§ 64.2(b)(1)(i) or (vi) to the extent such

monitoring is applicable to the

performance of the control device (and

associated capture system) for the

pollutant-specific emissions unit; and

(5) Presumptively acceptable

monitoring identified in guidance by

EPA. Such guidance will address the

requirements under §§ 64.4(a), (b), and

(c) to the extent practicable.

(c)(1) Except as provided in paragraph

(d) of this section, the owner or operator

shall submit control device (and process
54944 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

and capture system, if applicable)

operating parameter data obtained

during the conduct of the applicable

compliance or performance test

conducted under conditions specified

by the applicable rule. If the applicable

rule does not specify testing conditions

or only partially specifies test

conditions, the performance test

generally shall be conducted under

conditions representative of maximum

emissions potential under anticipated

operating conditions at the pollutantspecific emissions unit. Such data may

be supplemented, if desired, by

engineering assessments and

manufacturer’s recommendations to

justify the indicator ranges (or, if

applicable, the procedures for

establishing such indicator ranges).

Emission testing is not required to be

conducted over the entire indicator

range or range of potential emissions.

(2) The owner or operator must

document that no changes to the

pollutant-specific emissions unit,

including the control device and

capture system, have taken place that

could result in a significant change in

the control system performance or the

selected ranges or designated conditions

for the indicators to be monitored since

the performance or compliance tests

were conducted.

(d) If existing data from unit-specific

compliance or performance testing

specified in paragraph (c) of this section

are not available, the owner or operator:

(1) Shall submit a test plan and

schedule for obtaining such data in

accordance with paragraph (e) of this

section; or

(2) May submit indicator ranges (or

procedures for establishing indicator

ranges) that rely on engineering

assessments and other data, provided

that the owner or operator demonstrates

that factors specific to the type of

monitoring, control device, or pollutantspecific emissions unit make

compliance or performance testing

unnecessary to establish indicator

ranges at levels that satisfy the criteria

in § 64.3(a).

(e) If the monitoring submitted by the

owner or operator requires installation,

testing, or other necessary activities

prior to use of the monitoring for

purposes of this part, the owner or

operator shall include an

implementation plan and schedule for

installing, testing and performing any

other appropriate activities prior to use

of the monitoring. The implementation

plan and schedule shall provide for use

of the monitoring as expeditiously as

practicable after approval of the

monitoring in the part 70 or 71 permit

pursuant to § 64.6, but in no case shall

the schedule for completing installation

and beginning operation of the

monitoring exceed 180 days after

approval of the permit.

(f) If a control device is common to

more than one pollutant-specific

emissions unit, the owner or operator

may submit monitoring for the control

device and identify the pollutantspecific emissions units affected and

any process or associated capture device

conditions that must be maintained or

monitored in accordance with § 64.3(a)

rather than submit separate monitoring

for each pollutant-specific emissions

unit.

(g) If a single pollutant-specific

emissions unit is controlled by more

than one control device similar in

design and operation, the owner or

operator may submit monitoring that

applies to all the control devices and

identify the control devices affected and

any process or associated capture device

conditions that must be maintained or

monitored in accordance with § 64.3(a)

rather than submit a separate

description of monitoring for each

control device.

§ 64.5 Deadlines for submittals.

(a) Large pollutant-specific emissions

units. For all pollutant-specific

emissions units with the potential to

emit (taking into account control

devices to the extent appropriate under

the definition of this term in § 64.1) the

applicable regulated air pollutant in an

amount equal to or greater than 100

percent of the amount, in tons per year,

required for a source to be classified as

a major source, the owner or operator

shall submit the information required

under § 64.4 at the following times:

(1) On or after April 20, 1998, the

owner or operator shall submit

information as part of an application for

an initial part 70 or 71 permit if, by that

date, the application either:

(i) Has not been filed; or

(ii) Has not yet been determined to be

complete by the permitting authority.

(2) On or after April 20, 1998, the

owner or operator shall submit

information as part of an application for

a significant permit revision under part

70 or 71 of this chapter, but only with

respect to those pollutant-specific

emissions units for which the proposed

permit revision is applicable.

(3) The owner or operator shall

submit any information not submitted

under the deadlines set forth in

paragraphs (a)(1) and (2) of this section

as part of the application for the renewal

of a part 70 or 71 permit.

(b) Other pollutant-specific emissions

units. For all other pollutant-specific

emissions units subject to this part and

not subject to § 64.5(a), the owner or

operator shall submit the information

required under § 64.4 as part of an

application for a renewal of a part 70 or

71 permit.

(c) The effective date for the

requirement to submit information

under § 64.4 shall be as specified

pursuant to paragraphs (a)–(b) of this

section and a permit reopening to

require the submittal of information

under this section shall not be required

pursuant to § 70.7(f)(1)(i) of this chapter,

provided, however, that, if a part 70 or

71 permit is reopened for cause by EPA

or the permitting authority pursuant to

§ 70.7(f)(1)(iii) or (iv), or § 71.7(f) or (g),

the applicable agency may require the

submittal of information under this

section for those pollutant-specific

emissions units that are subject to this

part and that are affected by the permit

reopening.

(d) Prior to approval of monitoring

that satisfies this part, the owner or

operator is subject to the requirements

of § 70.6(a)(3)(i)(B).

§ 64.6 Approval of monitoring.

(a) Based on an application that

includes the information submitted in

accordance with § 64.5, the permitting

authority shall act to approve the

monitoring submitted by the owner or

operator by confirming that the

monitoring satisfies the requirements in

§ 64.3.

(b) In approving monitoring under

this section, the permitting authority

may condition the approval on the

owner or operator collecting additional

data on the indicators to be monitored

for a pollutant-specific emissions unit,

including required compliance or

performance testing, to confirm the

ability of the monitoring to provide data

that are sufficient to satisfy the

requirements of this part and to confirm

the appropriateness of an indicator

range(s) or designated condition(s)

proposed to satisfy § 64.3(a)(2) and (3)

and consistent with the schedule in

§ 64.4(e).

(c) If the permitting authority

approves the proposed monitoring, the

permitting authority shall establish one

or more permit terms or conditions that

specify the required monitoring in

accordance with § 70.6(a)(3)(i) of this

chapter. At a minimum, the permit shall

specify:

(1) The approved monitoring

approach that includes all of the

following:

(i) The indicator(s) to be monitored

(such as temperature, pressure drop,

emissions, or similar parameter);

(ii) The means or device to be used to

measure the indicator(s) (such as
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54945

temperature measurement device, visual

observation, or CEMS); and

(iii) The performance requirements

established to satisfy § 64.3(b) or (d), as

applicable.

(2) The means by which the owner or

operator will define an exceedance or

excursion for purposes of responding to

and reporting exceedances or excursions

under §§ 64.7 and 64.8 of this part. The

permit shall specify the level at which

an excursion or exceedance will be

deemed to occur, including the

appropriate averaging period associated

with such exceedance or excursion. For

defining an excursion from an indicator

range or designated condition, the

permit may either include the specific

value(s) or condition(s) at which an

excursion shall occur, or the specific

procedures that will be used to establish

that value or condition. If the latter, the

permit shall specify appropriate notice

procedures for the owner or operator to

notify the permitting authority upon any

establishment or reestablishment of the

value.

(3) The obligation to conduct the

monitoring and fulfill the other

obligations specified in §§ 64.7 through

64.9 of this part.

(4) If appropriate, a minimum data

availability requirement for valid data

collection for each averaging period,

and, if appropriate, a minimum data

availability requirement for the

averaging periods in a reporting period.

(d) If the monitoring proposed by the

owner or operator requires installation,

testing or final verification of

operational status, the part 70 or 71

permit shall include an enforceable

schedule with appropriate milestones

for completing such installation, testing,

or final verification consistent with the

requirements in § 64.4(e).

(e) If the permitting authority

disapproves the proposed monitoring,

the following applies:

(1) The draft or final permit shall

include, at a minimum, monitoring that

satisfies the requirements of

§ 70.6(a)(3)(i)(B);

(2) The permitting authority shall

include in the draft or final permit a

compliance schedule for the source

owner to submit monitoring that

satisfies §§ 64.3 and 64.4, but in no case

shall the owner or operator submit

revised monitoring more than 180 days

from the date of issuance of the draft or

final permit; and

(3) If the source owner or operator

does not submit the monitoring in

accordance with the compliance

schedule as required in paragraph (e)(2)

of this section or if the permitting

authority disapproves the monitoring

submitted, the source owner or operator

shall be deemed not in compliance with

part 64, unless the source owner or

operator successfully challenges the

disapproval.

§ 64.7 Operation of approved monitoring.

(a) Commencement of operation. The

owner or operator shall conduct the

monitoring required under this part

upon issuance of a part 70 or 71 permit

that includes such monitoring, or by

such later date specified in the permit

pursuant to § 64.6(d).

(b) Proper maintenance. At all times,

the owner or operator shall maintain the

monitoring, including but not limited

to, maintaining necessary parts for

routine repairs of the monitoring

equipment.

(c) Continued operation. Except for, as

applicable, monitoring malfunctions,

associated repairs, and required quality

assurance or control activities

(including, as applicable, calibration

checks and required zero and span

adjustments), the owner or operator

shall conduct all monitoring in

continuous operation (or shall collect

data at all required intervals) at all times

that the pollutant-specific emissions

unit is operating. Data recorded during

monitoring malfunctions, associated

repairs, and required quality assurance

or control activities shall not be used for

purposes of this part, including data

averages and calculations, or fulfilling a

minimum data availability requirement,

if applicable. The owner or operator

shall use all the data collected during all

other periods in assessing the operation

of the control device and associated

control system. A monitoring

malfunction is any sudden, infrequent,

not reasonably preventable failure of the

monitoring to provide valid data.

Monitoring failures that are caused in

part by poor maintenance or careless

operation are not malfunctions.

(d) Response to excursions or

exceedances. (1) Upon detecting an

excursion or exceedance, the owner or

operator shall restore operation of the

pollutant-specific emissions unit

(including the control device and

associated capture system) to its normal

or usual manner of operation as

expeditiously as practicable in

accordance with good air pollution

control practices for minimizing

emissions. The response shall include

minimizing the period of any startup,

shutdown or malfunction and taking

any necessary corrective actions to

restore normal operation and prevent

the likely recurrence of the cause of an

excursion or exceedance (other than

those caused by excused startup or

shutdown conditions). Such actions

may include initial inspection and

evaluation, recording that operations

returned to normal without operator

action (such as through response by a

computerized distribution control

system), or any necessary follow-up

actions to return operation to within the

indicator range, designated condition, or

below the applicable emission

limitation or standard, as applicable.

(2) Determination of whether the

owner or operator has used acceptable

procedures in response to an excursion

or exceedance will be based on

information available, which may

include but is not limited to, monitoring

results, review of operation and

maintenance procedures and records,

and inspection of the control device,

associated capture system, and the

process.

(e) Documentation of need for

improved monitoring. After approval of

monitoring under this part, if the owner

or operator identifies a failure to achieve

compliance with an emission limitation

or standard for which the approved

monitoring did not provide an

indication of an excursion or

exceedance while providing valid data,

or the results of compliance or

performance testing document a need to

modify the existing indicator ranges or

designated conditions, the owner or

operator shall promptly notify the

permitting authority and, if necessary,

submit a proposed modification to the

part 70 or 71 permit to address the

necessary monitoring changes. Such a

modification may include, but is not

limited to, reestablishing indicator

ranges or designated conditions,

modifying the frequency of conducting

monitoring and collecting data, or the

monitoring of additional parameters.

§ 64.8 Quality improvement plan (QIP)

requirements.

(a) Based on the results of a

determination made under § 64.7(d)(2),

the Administrator or the permitting

authority may require the owner or

operator to develop and implement a

QIP. Consistent with § 64.6(c)(3), the

part 70 or 71 permit may specify an

appropriate threshold, such as an

accumulation of exceedances or

excursions exceeding 5 percent duration

of a pollutant-specific emissions unit’s

operating time for a reporting period, for

requiring the implementation of a QIP.

The threshold may be set at a higher or

lower percent or may rely on other

criteria for purposes of indicating

whether a pollutant-specific emissions

unit is being maintained and operated

in a manner consistent with good air

pollution control practices.

(b) Elements of a QIP:
54946 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations

(1) The owner or operator shall

maintain a written QIP, if required, and

have it available for inspection.

(2) The plan initially shall include

procedures for evaluating the control

performance problems and, based on the

results of the evaluation procedures, the

owner or operator shall modify the plan

to include procedures for conducting

one or more of the following actions, as

appropriate:

(i) Improved preventive maintenance

practices.

(ii) Process operation changes.

(iii) Appropriate improvements to

control methods.

(iv) Other steps appropriate to correct

control performance.

(v) More frequent or improved

monitoring (only in conjunction with

one or more steps under paragraphs

(b)(2)(i) through (iv) of this section).

(c) If a QIP is required, the owner or

operator shall develop and implement a

QIP as expeditiously as practicable and

shall notify the permitting authority if

the period for completing the

improvements contained in the QIP

exceeds 180 days from the date on

which the need to implement the QIP

was determined.

(d) Following implementation of a

QIP, upon any subsequent

determination pursuant to § 64.7(d)(2)

the Administrator or the permitting

authority may require that an owner or

operator make reasonable changes to the

QIP if the QIP is found to have:

(1) Failed to address the cause of the

control device performance problems; or

(2) Failed to provide adequate

procedures for correcting control device

performance problems as expeditiously

as practicable in accordance with good

air pollution control practices for

minimizing emissions.

(e) Implementation of a QIP shall not

excuse the owner or operator of a source

from compliance with any existing

emission limitation or standard, or any

existing monitoring, testing, reporting or

recordkeeping requirement that may

apply under federal, state, or local law,

or any other applicable requirements

under the Act.

§ 64.9 Reporting and recordkeeping

requirements.

(a) General reporting requirements. (1)

On and after the date specified in

§ 64.7(a) by which the owner or operator

must use monitoring that meets the

requirements of this part, the owner or

operator shall submit monitoring reports

to the permitting authority in

accordance with § 70.6(a)(3)(iii) of this

chapter.

(2) A report for monitoring under this

part shall include, at a minimum, the

information required under

§ 70.6(a)(3)(iii) of this chapter and the

following information, as applicable:

(i) Summary information on the

number, duration and cause (including

unknown cause, if applicable) of

excursions or exceedances, as

applicable, and the corrective actions

taken;

(ii) Summary information on the

number, duration and cause (including

unknown cause, if applicable) for

monitor downtime incidents (other than

downtime associated with zero and

span or other daily calibration checks, if

applicable); and

(iii) A description of the actions taken

to implement a QIP during the reporting

period as specified in § 64.8. Upon

completion of a QIP, the owner or

operator shall include in the next

summary report documentation that the

implementation of the plan has been

completed and reduced the likelihood

of similar levels of excursions or

exceedances occurring.

(b) General recordkeeping

requirements. (1) The owner or operator

shall comply with the recordkeeping

requirements specified in § 70.6(a)(3)(ii)

of this chapter. The owner or operator

shall maintain records of monitoring

data, monitor performance data,

corrective actions taken, any written

quality improvement plan required

pursuant to § 64.8 and any activities

undertaken to implement a quality

improvement plan, and other

supporting information required to be

maintained under this part (such as data

used to document the adequacy of

monitoring, or records of monitoring

maintenance or corrective actions).

(2) Instead of paper records, the

owner or operator may maintain records

on alternative media, such as microfilm,

computer files, magnetic tape disks, or

microfiche, provided that the use of

such alternative media allows for

expeditious inspection and review, and

does not conflict with other applicable

recordkeeping requirements.

§ 64.10 Savings provisions.

(a) Nothing in this part shall:

(1) Excuse the owner or operator of a

source from compliance with any

existing emission limitation or standard,

or any existing monitoring, testing,

reporting or recordkeeping requirement

that may apply under federal, state, or

local law, or any other applicable

requirements under the Act. The

requirements of this part shall not be

used to justify the approval of

monitoring less stringent than the

monitoring which is required under

separate legal authority and are not

intended to establish minimum

requirements for the purpose of

determining the monitoring to be

imposed under separate authority under

the Act, including monitoring in

permits issued pursuant to title I of the

Act. The purpose of this part is to

require, as part of the issuance of a

permit under title V of the Act,

improved or new monitoring at those

emissions units where monitoring

requirements do not exist or are

inadequate to meet the requirements of

this part.

(2) Restrict or abrogate the authority

of the Administrator or the permitting

authority to impose additional or more

stringent monitoring, recordkeeping,

testing, or reporting requirements on

any owner or operator of a source under

any provision of the Act, including but

not limited to sections 114(a)(1) and

504(b), or state law, as applicable.

(3) Restrict or abrogate the authority

of the Administrator or permitting

authority to take any enforcement action

under the Act for any violation of an

applicable requirement or of any person

to take action under section 304 of the

Act.

PART 70—STATE OPERATING PERMIT

PROGRAMS

1. The authority citation for part 70

continues to read as follows:

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

2. Section 70.6 is amended by revising

paragraphs (a)(3)(i)(A) and (c)(5)(iii) and

(c)(5)(iv), and by removing (c)(5)(v) to

read as follows:

§ 70.6 Permit content.

* * * * *

(a) * * *

(3) * * *

(i) * * *

(A) All monitoring and analysis

procedures or test methods required

under applicable monitoring and testing

requirements, including part 64 of this

chapter and any other procedures and

methods that may be promulgated

pursuant to sections 114(a)(3) or 504(b)

of the Act. If more than one monitoring

or testing requirement applies, the

permit may specify a streamlined set of

monitoring or testing provisions

provided the specified monitoring or

testing is adequate to assure compliance

at least to the same extent as the

monitoring or testing applicable

requirements that are not included in

the permit as a result of such

streamlining;

* * * * *

(c) * * *

(5) * * *

(iii) A requirement that the

compliance certification include all of
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Rules and Regulations 54947

the following (provided that the

identification of applicable information

may cross-reference the permit or

previous reports, as applicable):

(A) The identification of each term or

condition of the permit that is the basis

of the certification;

(B) The identification of the method(s)

or other means used by the owner or

operator for determining the compliance

status with each term and condition

during the certification period, and

whether such methods or other means

provide continuous or intermittent data.

Such methods and other means shall

include, at a minimum, the methods

and means required under paragraph

(a)(3) of this section. If necessary, the

owner or operator also shall identify any

other material information that must be

included in the certification to comply

with section 113(c)(2) of the Act, which

prohibits knowingly making a false

certification or omitting material

information;

(C) The status of compliance with the

terms and conditions of the permit for

the period covered by the certification,

based on the method or means

designated in paragraph (c)(5)(iii)(B) of

this section. The certification shall

identify each deviation and take it into

account in the compliance certification.

The certification shall also identify as

possible exceptions to compliance any

periods during which compliance is

required and in which an excursion or

exceedance as defined under part 64 of

this chapter occurred; and

(D) Such other facts as the permitting

authority may require to determine the

compliance status of the source.

(iv) A requirement that all compliance

certifications be submitted to the

Administrator as well as to the

permitting authority.

* * * * *

PART 71—FEDERAL OPERATING

PERMITS PROGRAMS

1. The authority citation for part 71

continues to read as follows:

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

2. Section 71.6 is amended by revising

paragraphs (a)(3)(i)(A), (a)(3)(iii)(C),

(c)(5)(iii) and (c)(5)(iv), and by removing

(c)(5)(v) to read as follows:

§ 71.6 Permit content.

* * * * *

(a) * * *

(3) * * *

(i) * * *

(A) All monitoring and analysis

procedures or test methods required

under applicable monitoring and testing

requirements, including part 64 of this

chapter and any other procedures and

methods that may be promulgated

pursuant to sections 114(a)(3) or 504(b)

of the Act. If more than one monitoring

or testing requirement applies, the

permit may specify a streamlined set of

monitoring or testing provisions

provided the specified monitoring or

testing is adequate to assure compliance

at least to the same extent as the

monitoring or testing applicable

requirements that are not included in

the permit as a result of such

streamlining;

* * * * *

(iii) * * *

(C) For purposes of paragraph

(a)(3)(iii)(B) of this section, deviation

means any situation in which an

emissions unit fails to meet a permit

term or condition. A deviation is not

always a violation. A deviation can be

determined by observation or through

review of data obtained from any

testing, monitoring, or recordkeeping

established in accordance with

paragraphs (a)(3)(i) and (a)(3)(ii) of this

section. For a situation lasting more

than 24 hours which constitutes a

deviation, each 24 hour period is

considered a separate deviation.

Included in the meaning of deviation

are any of the following:

(1) A situation where emissions

exceed an emission limitation or

standard;

(2) A situation where process or

emissions control device parameter

values indicate that an emission

limitation or standard has not been met;

(3) A situation in which observations

or data collected demonstrates

noncompliance with an emission

limitation or standard or any work

practice or operating condition required

by the permit;

(4) A situation in which an

exceedance or an excursion, as defined

in part 64 of this chapter, occurs.

* * * * *

(c) * * *

(5) * * *

(iii) A requirement that the

compliance certification include all of

the following (provided that the

identification of applicable information

may cross-reference the permit or

previous reports, as applicable):

(A) The identification of each term or

condition of the permit that is the basis

of the certification;

(B) The identification of the method(s)

or other means used by the owner or

operator for determining the compliance

status with each term and condition

during the certification period, and

whether such methods or other means

provide continuous or intermittent data.

Such methods and other means shall

include, at a minimum, the methods

and means required under paragraph

(a)(3) of this section. If necessary, the

owner or operator also shall identify any

other material information that must be

included in the certification to comply

with section 113(c)(2) of the Act, which

prohibits knowingly making a false

certification or omitting material

information;

(C) The status of compliance with the

terms and conditions of the permit for

the period covered by the certification,

based on the method or means

designated in paragraph (c)(5)(iii)(B) of

this section. The certification shall

identify each deviation and take it into

account in the compliance certification;

and

(D) Such other facts as the permitting

authority may require to determine the

compliance status of the source.

(iv) A requirement that all compliance

certifications be submitted to the

Administrator as well as to the

permitting authority.

* * * * *

[FR Doc. 97–27264 Filed 10–21–97; 8:45 am]

BILLING CODE 6560–50–P