Three industry representatives, one environmental representative, and one local permitting authority commented on the proposal. These comments are reviewed below separated in two sections. Section 1 discusses comments on the proposed rule language or preamble intended to revise the rule in conformance to the Court’s direction that the compliance certification must address whether the affected facility or source has been in “continuous” or “intermittent” compliance, and section 2 discuses

all other comments.

Section 1: Continuous Versus Intermittent Compliance
Certification

Section 1.1: Interpretation of Continuous Versus Intermittent Compliance in the Proposal

Commenters found that EPA’s interpretation of continuous versus intermittent compliance certification in the preamble to the proposal (adopted by reference from the preamble to the 1997 final compliance assurance monitoring (CAM) rule and State and Federal operating program rule revisions) did not amount to a clear explanation of the meaning of continuous versus intermittent compliance. Commenters noted issues with the manner by which EPA provided this information as well as the content of the discussion in the referenced CAM, et al. preamble. These
comments are discussed in more detail below.

Section 1.1.1: Inadequate Notice

Comment: One industry representative stated that the proposal’s incorporation of a partly invalidated preamble discussion does not provide adequate notice of the impacts of the revised requirements. The commenter explained that in the preamble to the proposed revisions, EPA inappropriately referenced the preamble discussion from another rule which contained valid and invalid portions as a result of
the Court decision in Natural Resources Defense
Council v. EPA. , 194 F.3d 130 (D.C. Cir. 1999). The commenter additionally explained that since the invalidated portions were not distinguished from the valid portions, it was not clear what aspects of the referenced preamble page apply to this action. This

commenter further asserted that EPA should state clearly in its final action when the Agency expects a source to certify continuous compliance and when it expects a source to certify intermittent compliance.

Response: The Agency agrees that the preamble to the proposal does not adequately explain the effects of the2

proposed revisions. As noted in the comment, the
Court’s decision in NRDC v. EPA invalidated core portions of the discussion incorporated by reference to explain the Agency’s interpretation of a
certification of continuous or intermittent compliance. To address all comments pointing out the lack of validity or clarity of the proposal’s preamble explanation, the Agency is withdrawing section III. B of the March 1, 2001, proposal’s preamble. Also, see response to comment 1.1.5.

Section 1.1.2: The Revisions are Ambiguous

Comment: Three industry representatives and one environmental representative observed that the proposal adds a requirement for sources to indicate in the compliance certification whether compliance was continuous or intermittent, but the proposal does not directly explain the meaning of a continuous or intermittent compliance certification, and instead this information is provided by reference. Further, these commenters disagreed with EPA’s interpretation of a
certification of continuous or intermittent compliance as contained in the 1997 final CAM, et al. preamble and requested that EPA clarify in the final rule that the responsible official of a complying source (a source in compliance according to the monitoring in the permit and having no knowledge of noncompliance by other means) can certify to continuous compliance without regard to a
classification of methods. These commenters noted that according to the discussion in the 1997 final CAM, et al. preamble a source in compliance based on the monitoring required by the permit and absent evidence to the contrary would have to certify to intermittent compliance if the monitoring method is periodic. One industry commenter added that the same discussion explains that the compliance status of a source in this situation is “questionable” and “in
serious doubt.” All four commenters asserted that monitoring which is sufficient to provide a reasonable assurance of compliance with an applicable requirement should also be considered sufficiently continuous for a certification of continuous compliance. An environmental commenter further noted that concluding otherwise would be inconsistent with the permit shield concept. This commenter additionally stated that in proposing the part 70 rules, EPA took a more straightforward3

position that compliance certifications must be based on the sources’ full knowledge of their compliance status and not based on whether the monitoring method was continuous or intermittent. This commenter urged EPA to go back to its original position or, at a minimum, clarify that a source may conclude, for compliance certification purposes, that the monitoring methods required under CAM, 70.6(a)(3) and 70.6(c)(1) are continuous. Two industry commenters expressed concern that the public would perceive intermittent compliance certifications as certifications of noncompliance since the public expects that sources in compliance with their permits would certify continuous compliance. One industry commenter suggested that EPA should take the opportunity to clarify the requirement by instituting a simple rule such that “[i]f the source’s title V monitoring (including CAM) indicates compliance, the source may certify continuous compliance. If a source did not collect sufficient monitoring data, (i.e., has not met the data availability requirements of the title V permit and/or underlying regulations) or the monitoring showed a deviation from the permit requirements, the source should certify intermittent compliance for those periods.”

Response: The Agency agrees that it is not clear in the proposal whether a responsible official may certify continuous compliance according to the results of the monitoring in the permit. In addition, the Agency acknowledges that requiring responsible officials of complying sources to certify intermittent compliance when the compliance method in the permit yields intermittent data casts doubt on the sufficiency of the monitoring in the permit; it also suggests that the Agency views compliance differently depending on whether it is verified with a method yielding periodic or continuous data. As noted in the response to the previous comment, we are withdrawing the proposal’s explanation that contains the interpretation of continuous and intermittent compliance which is the subject of these comments since we agree with commenters that the Court did not agree that identifying, in the certification, whether the data was continuous or intermittent responds to the question of whether compliance was continuous or intermittent. In addition, the Agency explains in the preamble to the final rule when the Agency expects a source to certify continuous compliance or4

intermittent compliance. Accordingly, the Agency
believes the commenters’ concerns are addressed in the final rule. Also, see response to comment 1.1.5.

Section 1.1.3: Dual Meaning of Intermittent Compliance
Certifications

Comment: Three commenters found issues with the uncertain meaning of a certification of intermittent compliance in the proposal as inferred from reading the referenced discussion in the 1997 preamble to the final CAM rule. One permitting authority noted that according to the proposal, intermittent compliance could mean both that noncompliance had occurred during the certification period or it could mean that the method used to verify compliance required periodic (intermittent) data collection. Further, this commenter requested that EPA allow for two levels of intermittent compliance certifications which would distinguish between intermittent compliance based on periods of noncompliance and intermittent compliance based on intermittent data. An industry commenter stated that, at a minimum, the rule was unclear regarding what requirements apply to
sources in this situation since it would be
inconsistent that two sources with similar emissions units and monitoring requirements would each be required to certify intermittent compliance when one had deviated from its emissions limits during a reporting period while the other had maintained compliance based on the monitoring required in the title V permit. An environmental representative argued that it will be nearly impossible for the permitting authority, EPA, or the public to determine when a certification of intermittent compliance is an indication of a possible violation and that this will result in meaningless compliance certifications in conflict with the clear intent of Congress and even of EPA. This commenter additionally pointed out that in the preamble to the proposed part 70 rules, EPA clearly indicated a different intent stating that sources were required to certify “whether compliance was continuous or intermittent (i.e., whether there were periods of noncompliance)” [56 FR 21737, May 10, 1991].

Response: Although the approach in the 1997 part 70 and part 71 revisions envisioned that permitting authorities would sort out reports of intermittent compliance5

that indicate noncompliance from those that indicate compliance verified with periodic data, the Agency agrees that the meaning of a certification of intermittent compliance would not be apparent to a reviewer. The Agency continues to want permitting authorities and the public to be able to recognize any periods during which sources deviated from permit compliance, as reported in the annual compliance certification, and to avoid meaningless certifications by responsible officials. In the final rule preamble, the Agency withdraws the proposal’s explanation that contains the interpretation of continuous and intermittent compliance to address adverse comments. See also response to comment 1.1.5

Section 1.1.4: What Constitutes a Continuous Monitoring

Method ?

Comment: An environmental representative stated that the proposal would require sources to indicate in their compliance certification whether the monitoring methods used are continuous or intermittent, but neither the current proposal nor the 1997 revisions to parts 70 and 71 provide a definition of “continuous monitoring method.” This commenter further argued that the definition of “continuous compliance determination method” found in the 1997 final CAM rule would not be useful for compliance certification purposes within the context of part 70 and part 71 because most monitoring methods, including continuous emissions monitors, are not used for compliance determination and because of its
location in a different rule. This commenter asserted that in the absence of clear guidance of what constitutes a continuous monitoring method, responsible officials could arrive at two different conclusions regarding their monitoring methods depending on whether they rely on a common sense notion of continuous [involving the use of continuous monitoring devices such as a continuous emissions monitoring system (CEMS), a continuous opacity monitoring system (COMS), or a predictive emissions monitoring system (PEMS)] or whether they interpret that the monitoring in their permit is sufficiently continuous to certify compliance. This commenter further argued that, in the absence of guidance from EPA supporting the latter interpretation of continuous, most responsible officials will use the6

common sense notion, and since most monitoring is not done with CEMS, COMS, or PEMS, most compliance certifications will state that compliance was intermittent. An industry commenter stated that in view of the lack of clarity regarding how to classify the methods, most responsible officials will certify continuous compliance if they were in compliance according to the methods in the permit without regard
for whether the methods are continuous or intermittent. Two industry commenters expressed a concern that the lack of clarity regarding what
constitutes an intermittent or continuous method will generate a series of guidance documents to interpret these concepts and that these interpretations in turn may create further confusion.

Response: The requirement to identify whether the methods used for determining compliance provide continuous or
intermittent data was removed in the final rule; however, the Agency agrees that the proposal does not
contain sufficient information to evaluate the methods as required in the proposal. Such
identification of the methods was intended to
address the substance of continuous or intermittent compliance in substitution of an explicit statement by use of the terms continuous or intermittent. See 62 FR 54937, column 2. As noted by commenters, the Court disagreed with the Agency that identifying
whether the data was continuous or intermittent addresses the requirement of whether compliance was continuous or intermittent. Also see response to

comment 1.1.5

Section 1.1.5: The Revised Rule is not Consistent With the

Court Remand

Comment: Three commenters noted that EPA retained the requirement for sources to indicate in the compliance certification whether their monitoring methods are continuous or intermittent. Two industry commenters stated that the requirement to classify the methods was originally in the rule due to the approach invalidated by the Court in NRDC v. EPA, and they added that since the rule is being changed to require
a certification of “continuous” or “intermittent” compliance, the requirement to classify the data should be removed. One of these commenters argued that section 114(a)(3) does not require sources to characterize the compliance methods as continuous or7

intermittent, a requirement that threatens to impose substantial burdens to make case-by-case evaluations and then certify to that classification subject to civil and criminal penalties. This commenter requested that EPA also amend any statements made in the preamble to the proposal to clarify that classification of methods is not required.

Response: The Agency concurs with these comments. The requirement to identify whether the methods are continuous or intermittent derives from our previous interpretation of continuous versus intermittent compliance. The Agency retained this requirement from the previous revisions and the corresponding preamble explanation in the March 1, 2001, proposal because the Agency sought to address the direction of the Court in a manner that was simple and direct. Also, the Agency did not believe at that time that this requirement would impose additional burden on sources; therefore, the Agency simply added, to the language already in the rule, regulatory language directing responsible officials to identify, in the certification, whether compliance was continuous or intermittent. Upon considering these comments, the Agency removed the requirement in the final rule. Also see final rule preamble.

Section 2: Other

Section 2.1: Annual Compliance Certification is Limited to
Permit Terms and Conditions Which Do Not Include Monitoring and Recordkeeping

Comment: An industry commenter asserted that permit terms and
conditions that are the basis of the certification are only those substantive elements of the permit, such as emissions limitations, and work practice standards, which exclude the monitoring, recordkeeping, and reporting terms associated with them. The commenter added that compliance certification deals only with compliance with “permit terms and conditions [that are the basis of the certification],” and deviations from monitoring, recordkeeping, and reporting requirements are to be reported along with other monitoring results in the semiannual reports of monitoring. Citing an excerpt from a paragraph of Section 5.3.7, Response to Comments on the 40 CFR Part 70 Rulemaking, the
commenter further asserted that EPA viewed the term8

“permit terms and conditions” as narrower than the term “applicable requirements.” On the basis of the previous argument, the commenter objected to EPA’s statement contained in section III.B. of the preamble for the March 1, 2001, proposal that explains that permit terms or conditions that are the basis of the certification include monitoring, reporting, and recordkeeping, as well as emissions limitations, work practice elements, etc. The commenter added that compliance certifications should be completed in a manner other than as suggested by EPA in the previously mentioned preamble discussion. The commenter explained that including monitoring, recordkeeping, and reporting requirements in the compliance certification makes implementation of the requirement (to identify the different elements of the certification) confusing. Since monitoring, recordkeeping, and reporting requirements would need to be identified first as permit terms that are the basis of the certification and then again as compliance determination methods, it would be unclear what the methods are to verify compliance with monitoring, recordkeeping, and reporting requirements. The commenter asked that the discussion of the compliance certification obligations should be revised according to these

comments.

Response: The Agency withdrew the section of the proposal’s preamble that prompted these comments, but for clarification while agreeing with some of the arguments made by the commenter, the Agency disagrees with the commenter’s assertion that the compliance certification deals only with permit terms and
conditions that are the basis of the certification and that monitoring, recordkeeping, and reporting
deviations are to be addressed in semiannual monitoring reports. For clarification, we provide the following explanation. Regarding the proposal’s preamble discussion of the elements of the certification, the Agency agrees that although this discussion was not meant to explain how compliance certifications must be completed, but rather what the components of each of the three element of the certification are, it could be misread as noted in the comment. Also, in this discussion, the Agency interprets the “basis of the certification” as all permit terms and conditions that are applicable to the facility during the covered period. We agree9

with the commenter that the rules do not explain what permit terms and conditions constitute “the basis of the certification;” however, these terms or conditions derive their meaning from section 114 (a)(3). The statute describes each of these terms as “the ‘applicable requirement’ that is the basis of the certification.” In other words, the basis of the certification is comprised of the substantive regulatory requirements of the Clean Air Act (Act), referred in the statute as “applicable requirements” or “conditions” (See section 504 (a)), such as standards, emission limits, or work practices. This conclusion, however, does not in any way alter the sources’ compliance certification obligations, given that the Act provides that responsible officials demonstrate compliance with each permit term that is the basis of the certification by complying with the corresponding practically enforceable monitoring, recordkeeping, and reporting permit terms or conditions, provided there is no evidence to the contrary. First, the rules clearly require that both the permit terms that are the basis of the certification and permit terms that are methods be identified in the certification. Second, in order to establish whether the compliance status, for any permit term that is the basis of the certification, was continuous or intermittent, responsible officials
must first determine whether there were instances of deviations for each of the corresponding monitoring, recordkeeping, and reporting permit terms during periods when compliance was required. The Agency also notes that the commenter incorrectly concluded that the Agency was presenting a certain view in the excerpt of Section 5.3.7, Response to Comments on the 40 CFR Part 70 Rulemaking, cited in the comment. For clarification, the response to comments and the preamble to the 1992 rule explain, instead, that the status of compliance for initial certifications is based on the methods in the applicable requirement whereas the compliance status in annual compliance
certification must be based on the methods in the permit.

Section 2.2: Sources Certifying Compliance Are Specifically Directed to Consider Only Some of the Monitoring Included in Their Title V Permits

Comment: An environmental representative commented that since the rule revisions do not cite the monitoring10

required under the authority of 70.6(c)(1), responsible officials certifying compliance are specifically directed to consider only some of the monitoring included in their title V permits. The commenter stated that EPA must revise 70.6(c)(5)(ii) and (iii)(B) to also cite to 70.6(c)(1) because such an omission implied that either the authority for this monitoring is not separate from the authority under 70.6(a)(3) or that such monitoring is meaningless.

Response: The changes to the rule language requested by this commenter are not within the scope of this rulemaking. However, for clarification, the Agency disagrees with the commenter’s interpretation that by omitting 70.6(c)(1), 70.6(c)(5)(iii)(B) limits the monitoring that must be considered in compliance certifications. In fact, monitoring that must be identified in annual compliance certifications per 70.6(c)(5)(iii)(B) encompasses not only all monitoring in the permit, but includes “other methods or means” such as monitoring that is implemented voluntarily by the source.

Section 2.3: Other Material Information

Comment: Two commenters noted issues with the role of other material information as portrayed in the proposal. In particular, these commenters referred to the section in the preamble which explains that responsible officials should base their compliance
status “on the results of identified methods and other material information” (66 FR 12918, March 1, 2001). An environmental representative stated that although the preamble discussion and section 70.5(d) can be read to address the requirement that responsible officials must certify based on any credible evidence [other material information] and after reasonable inquiry, this reading would not be unambiguous; therefore, 70.6(c)(5) should be revised to clarify this requirement. This commenter further argued that because the proposed rule explicitly addresses the prohibition on knowingly making a false certification or omitting material information but is silent regarding the requirement that a responsible official proactively inquire into his compliance status by way of credible evidence [other material information], industry and permitting authorities may reasonably conclude that such language was left out11

of 70.6(c)(5) on purpose to limit credible evidence [other material information] and reasonable inquiry. An industry commenter disagreed with the rule and preamble interpretations that certifications should
be based on material information. This commenter further stated that if EPA kept this interpretation, then EPA must also clarify in the final rule that responsible officials may add a caveat disputing its materiality and reserving the right to challenge the
use of the evidence in court.

Response: The Agency withdrew the section of the proposal’s preamble that prompted these comments. For clarification, the preamble to the proposal simply paraphrases the rule language in 70.6(c)(5)(iii)(C) which requires the status of compliance in the
certification to be based “. . . on the methods or means designated in paragraph (c)(5)(iii)(B) of this section.” According to 70.6(c)(5)(iii)(B), the methods and other means for determining the compliance status with permit terms and conditions are not limited to the monitoring, and related recordkeeping and reporting requirements listed in the permit [e.g., required under section 70.6(a)(3)]; in addition, responsible officials must identify in
the certification other material information where
failure to do so would constitute a false certification of compliance. Additionally, responsible officials are not precluded from providing any written information that helps clarify the results of their conclusion regarding the compliance status.12

Section 2.4: Identifying CAM Excursions or Exceedances in
the Certification

Comment: An industry representative interpreted that the rule language providing for sources to identify, in the certification, as possible exceptions to compliance any occurrences of nonexcusable “excursions” or “exceedances,” essentially requires sources to comply with CAM certification requirements immediately, even before CAM monitoring requirements are triggered for a particular source. This commenter requested that this requirement be removed from the rule or that the Agency clarify that CAM certification requirements apply after CAM is triggered.

Response: This comment is outside the scope of the current rule revisions, but for clarification, the commenter’s concern derives from reading the rule out of context. In the annual compliance certification, a responsible official certifies the status of compliance with requirements applicable to the source during the covered period; thus CAM certification requirements would only be triggered if CAM monitoring requirements applied to the source at any time during the annual period preceding the certification.