[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Rules and Regulations]
[Pages 54900-54947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27264]
[[Page 54899]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 64, et al.
Compliance Assurance Monitoring; Final Rule
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 /
Rules and Regulations
[[Page 54900]]
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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.
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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 Secs. 64.1 to 64.11; sections
of the regulations in 40 CFR part 70 range from Secs. 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 federally-
approved, 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
[[Page 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 Sec. 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
[[Page 54902]]
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
Sec. 70.6(a)(3)).
The rule defines ``control devices'' to mean equipment that removes
pollutants or transforms pollutants to passive emissions (see
Sec. 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
[[Page 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-by-case 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 Sec. 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.
[[Page 54904]]
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
[[Page 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 Sec. 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.
[[Page 54906]]
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
[[Page 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
[[Page 54908]]
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 Sec. 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
Sec. 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''
[[Page 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 Sec. 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 Sec. 70.2. This term was used
in Sec. 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
Sec. 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 pre-
existing 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.
[[Page 54910]]
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 Sec. 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 pollutant-specific 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
Sec. 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 Sec. 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
Sec. 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
[[Page 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 Sec. 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 Sec. 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 Sec. 64.1 of the final
rule. This definition is included in the final part 64 rule because
Sec. 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 Sec. 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 Sec. 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.
[[Page 54912]]
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 pre-control 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, Sec. 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 pollutant-specific 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
[[Page 54913]]
equipment that removes or destroys air pollutants.
Certain NSPS and NESHAP regulations also have targeted definitions
of ``control device'' or ``add-on 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 Sec. 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
[[Page 54914]]
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, Sec. 64.2(a) relies on the
concept of ``potential pre-control 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 pre-control 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 pre-control 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
[[Page 54915]]
the pollutants for which a pollutant-specific 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 municipally-owned 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 Sec. 70.4(b)(12) or Sec. 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 process-wide or facility-wide basis.
The EPA received many comments on the 1993 EM proposal that opposed
applying enhanced monitoring to
[[Page 54916]]
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 Sec. 70.4(b)(12) or Sec. 71.6(a)(13)(iii) are
explicitly exempt from part 64 under Sec. 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
Sec. 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 pre-control 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, Sec. 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 pollutant-specific 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 Sec. 64.3(a). In contrast, another
example of multiple emission limitations or standards could be an
emissions unit that is subject to a short
[[Page 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
Sec. 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
[[Page 54918]]
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 Sec. 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 Sec. 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 pollutant-specific
emissions unit. A basic assumption of EPA air pollution control
rulemaking, at least under technology-based 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
Sec. 64.3(a) build on this fundamental premise of the regulatory
structure.
Thus, Sec. 64.3(a) states that units with control devices must meet
certain general monitoring design criteria in order to provide a
reasonable assurance
[[Page 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 Sec. 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
[[Page 54920]]
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 facility-wide 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 Sec. 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
Sec. 64.4(d) was intended to allow for cost-effective 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
Sec. 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 Secs. 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
[[Page 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 Sec. 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 Sec. 64.3(b)(2) is
appropriate, especially given that the submittal requirements in
Sec. 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
Sec. 60.683(c) for wet scrubber parameter monitoring at wool fiberglass
insulation manufacturing plants.
Again, the final Sec. 64.3(b) directs owners or operators to
consider manufacturer requirements or recommendations in developing
quality assurance practices, and Sec. 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).
[[Page 54922]]
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.,
Sec. 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 Sec. 64.7 that the owner or operator
shall maintain and operate the monitoring at all times the pollutant-
specific 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 Sec. 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 Sec. 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, Sec. 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,
[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 64.3. In submitting proposed indicator ranges, the owner or
[[Page 54924]]
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 Sec. 64.2(b) but that may be
applicable to the control equipment for other non-exempt 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
Sec. 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, Sec. 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 Sec. 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, Sec. 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, Sec. 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 Sec. 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
[[Page 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 Sec. 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 Sec. 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, Secs. 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, Secs. 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,
Sec. 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, Sec. 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
[[Page 54926]]
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 Sec. 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 Sec. 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 Sec. 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
[[Page 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 Sec. 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 pollutant-specific 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 Sec. 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 pollutant-specific 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
[[Page 54928]]
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 Sec. 64.5(a)
supersede the language of Sec. 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, Sec. 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 Sec. 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
Secs. 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 Sec. 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 federally-
enforceable 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, Sec. 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
Sec. 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
[[Page 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 Sec. 64.3(c) of the
1995 part 64 Draft and the comments in, for example, VID-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 Sec. 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 Sec. 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 Sec. 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, Sec. 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 Secs. 64.3
and 64.4 within no more than 180 days after disapproval. Under
Sec. 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,
[[Page 54930]]
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, Sec. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 60.13(e) and Sec. 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 Sec. 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
[[Page 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 Secs. 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
pollutant-specific 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 Sec. 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 Sec. 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 site-specific 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
[[Page 54932]]
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 Sec. 70.7 whenever a change
was made to an enhanced monitoring protocol or whenever a pollutant-
specific 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, Sec. 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
[[Page 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, Sec. 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
[[Page 54934]]
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 Sec. 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,
Sec. 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 Sec. 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
above-mentioned 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
[[Page 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
Sec. 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
Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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
[[Page 54936]]
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, Sec. 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 Sec. 64.1) and the permit application
section (then Sec. 64.7). The applicability savings provision in
proposed Sec. 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 Sec. 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 (``Sec. 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 Sec. 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 Sec. 70.6(c)(5)(iii) (and
Sec. 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
[[Page 54937]]
term and condition must be identified. These method(s) will have to
include at a minimum any testing and monitoring methods identified in
Sec. 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
Sec. 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,
Sec. 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
[[Page 54938]]
under Sec. 70.6(a)(3), which includes non-test 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.
[[Page 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
[[Page 54940]]
units. In response, the rule includes an exemption for certain
municipally-owned 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.
Sec. 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 low-polluting 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 non-instrumental 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).
[[Page 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.
Sec. 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 Sec. 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.
[[Page 54942]]
(v) An emissions cap that meets the requirements specified in
Sec. 70.4(b)(12) or Sec. 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 Sec. 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 Sec. 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.
Sec. 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 pollutant-
specific 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
Sec. 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 Sec. 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
[[Page 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 pollutant-specific 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.
Sec. 64.4 Submittal requirements.
(a) The owner or operator shall submit to the permitting authority
monitoring that satisfies the design requirements in Sec. 64.3. The
submission shall include the following information:
(1) The indicators to be monitored to satisfy Secs. 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
Sec. 64.3(b); and
(4) If applicable, the indicator ranges and performance criteria
for a CEMS, COMS or PEMS pursuant to Sec. 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
Sec. 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 pollutant-specific emissions units;
(2) Continuous emission, opacity or predictive emission monitoring
systems that satisfy applicable monitoring requirements and performance
specifications as specified in Sec. 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 Sec. 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 Secs. 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
[[Page 54944]]
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 pollutant-
specific 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 pollutant-specific
emissions unit make compliance or performance testing unnecessary to
establish indicator ranges at levels that satisfy the criteria in
Sec. 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 Sec. 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 pollutant-specific emissions
units affected and any process or associated capture device conditions
that must be maintained or monitored in accordance with Sec. 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 Sec. 64.3(a) rather than submit a separate
description of monitoring for each control device.
Sec. 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 Sec. 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 Sec. 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 Sec. 64.5(a), the owner or operator shall submit the information
required under Sec. 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 Sec. 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
Sec. 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 Sec. 70.7(f)(1)(iii) or (iv), or Sec. 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
Sec. 70.6(a)(3)(i)(B).
Sec. 64.6 Approval of monitoring.
(a) Based on an application that includes the information submitted
in accordance with Sec. 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 Sec. 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 Sec. 64.3(a)(2) and (3) and
consistent with the schedule in Sec. 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
Sec. 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
[[Page 54945]]
temperature measurement device, visual observation, or CEMS); and
(iii) The performance requirements established to satisfy
Sec. 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 Secs. 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 Secs. 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 Sec. 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 Sec. 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 Secs. 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.
Sec. 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 Sec. 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.
Sec. 64.8 Quality improvement plan (QIP) requirements.
(a) Based on the results of a determination made under
Sec. 64.7(d)(2), the Administrator or the permitting authority may
require the owner or operator to develop and implement a QIP.
Consistent with Sec. 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:
[[Page 54946]]
(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 Sec. 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.
Sec. 64.9 Reporting and recordkeeping requirements.
(a) General reporting requirements. (1) On and after the date
specified in Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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.
Sec. 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:
Sec. 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
[[Page 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:
Sec. 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
