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 the
2

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 straightforward
3

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 or
4

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 compliance
5

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 the
6

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 or
7

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 term
8

“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 agree
9

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 monitoring
10

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 out
11

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.