federal register · federal register/vol. 62, no. 204/wednesday, october 22, 1997/rules and...

fede

ral r

egiste

r

54899

WednesdayOctober 22, 1997

Part II

EnvironmentalProtection Agency40 CFR Part 64, et al.Compliance Assurance Monitoring; FinalRule

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

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 64, 70, and 71

[IL–64–2–5807; FRL–5908–6]

RIN 2060–AD18

Compliance Assurance Monitoring

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule; Final rule revisions.

SUMMARY: Pursuant to requirementsconcerning enhanced monitoring andcompliance certification under theClean Air Act (the Act), EPA ispromulgating new regulations andrevised regulations to implementcompliance assurance monitoring(CAM) for major stationary sources ofair pollution that are required to obtainoperating permits under title V of theAct. Subject to certain exemptions, thenew regulations require owners oroperators of such sources to conductmonitoring that satisfies particularcriteria established in the rule toprovide a reasonable assurance ofcompliance with applicablerequirements under the Act. Monitoringwill focus on emissions units that relyon pollution control device equipmentto achieve compliance with applicablestandards. The regulations also provideprocedures for coordinating these newrequirements with EPA’s operatingpermits program regulations. Revisionsto the operating permits programregulations clarify the relationshipbetween the 64 requirements andperiodic monitoring and compliancecertification requirements. Therulemaking is estimated to improvecompliance with existing regulationswhich will potentially reduce the needfor further regulation to achieve cleanair goals at a cost significantly less thanthat of the 1993 proposed rule.DATES: The effective date of this rule isNovember 21, 1997.ADDRESSES: Docket. Supportinginformation used in developing theregulations is contained in Docket No.A–91–52. This docket is available forpublic inspection and copying between8:00 a.m. and 5:30 p.m. Monday throughFriday, excluding government holidays,and is located at: EPA Air Docket (LE–131), Room M–1500, Waterside Mall,401 M Street SW, Washington, DC20460. A reasonable fee may be chargedfor copying.FOR FURTHER INFORMATION CONTACT:Peter Westlin, U.S. EnvironmentalProtection Agency, Office of Air QualityPlanning and Standards, at (919) 541–1058.

SUPPLEMENTARY INFORMATION: Thecontents of the preamble are listed inthe following outline:I. Background and Summary of theRulemaking

A. Statutory AuthorityB. Rulemaking HistoryC. Overview of the CAM ApproachD. Benefits of a CAM Approach and Potential

Control CostsE. The Relationship of Part 64 to Credible

Evidence and Enforcement Issues

II. Detailed Discussion of RegulatoryProvisions

A. Section 64.1—DefinitionsB. Section 64.2—ApplicabilityC. Section 64.3—Monitoring Design CriteriaD. Section 64.4—Submittal RequirementsE. Section 64.5—Deadlines for SubmittalsF. Section 64.6—Approval of MonitoringG. Section 64.7—Operation of Approved

MonitoringH. Section 64.8—Quality Improvement Plans

(QIPs)I. Section 64.9—Reporting and

Recordkeeping ProvisionsJ. Section 64.10—Savings ProvisionsK. Revisions to 40 CFR Part 70 and Part 71

III. Administrative Requirements

A. DocketB. Executive Order 12866C. Unfunded Mandates ActD. Paperwork Reduction ActE. Regulatory Flexibility ActF. Submission to Congress and the General

Accounting Office

The first section of this preambleprovides an introduction to theprinciples underlying EPA’s CAMapproach, the benefits of the part 64rulemaking, and background on thestatutory provisions and key issuesinvolved with developing the rule. Thissection also summarizes the public’sparticipation in the development of therulemaking. The second section of thepreamble presents a more detailedsummary of the regulations. Thissection includes a description of theprovisions and the basic purpose ofeach provision. This section alsodescribes the Agency’s response to thecomments received on the originalproposal, as supplemented byadditional comments during subsequentperiods in which public input wasrequested and obtained. The preambledescribes how the final rule has beenchanged from the proposal in responseto the input received. The final sectionof the preamble addressesadministrative requirements for Federalregulatory actions.

The preamble includes many citationswhich refer the reader to more detaileddiscussions of a topic or to the origin ofcertain requirements. These citationsections generally will not be followedby their source, such as ‘‘of thispreamble’’ or ‘‘of the Act.’’ Rather, the

reader can recognize the origins of thesections by their nature: sections of thepreamble begin with a Roman numeral;sections of the regulations in 40 CFRpart 64 range from §§ 64.1 to 64.11;sections of the regulations in 40 CFRpart 70 range from §§ 70.1 to 70.11;sections of other existing EPAregulations are preceded by 40 CFR; andsections of the Act are referenced by athree-digit number, such as 114 or 504.

This preamble often refers to ‘‘State’’or ‘‘permitting authority.’’ The readershould assume that where the preamblerefers to a ‘‘State’’, such term alsoincludes local air pollution agencies,Indian tribes, and territories of theUnited States to the extent they are orwill be the permitting authority for theirarea, or have been or will be delegatedpermitting responsibilities under theAct. In addition, the term ‘‘permittingauthority’’ would also include EPA tothe extent EPA is the permittingauthority of record.

Finally, this preamble often refers to40 CFR part 70, the regulationspromulgated July 21, 1992,implementing the operating permitsprogram under title V of the Act (57 FR32250). The EPA has proposed revisionsto those regulations on August 29, 1994(59 FR 44460), and August 31, 1995 (60FR 45530). Those regulations, includingthe proposed revisions, providerequirements applicable to federally-approved, State-administered operatingpermits programs. Where a State fails tosubmit an approvable program or toadequately administer and enforce anapproved program, EPA will have topromulgate, administer and enforce aFederal program for title V permits inthat State. The reader should assumethat where the preamble refers to 40CFR part 70, such term may also referto an EPA-administered (Federal)operating permits program, which EPAhas promulgated under 40 CFR part 71(see July 1, 1996, 61 FR 34202).

I. Background and Summary of theRulemaking

A. Statutory Authority

The part 64 regulations respond to thestatutory mandate in the Clean Air ActAmendments of 1990. The 1990Amendments contain several provisionsdirecting the Agency to require ownersor operators to conduct monitoring andto make compliance certifications.These provisions are set forth in bothtitle V (operating permits provisions)and title VII (enforcement provisions) ofthe 1990 Amendments.

Title V directs the Agency toimplement monitoring and compliancecertification requirements through the

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

operating permits program. Section503(b)(2) requires at least annualcertifications of compliance with permitrequirements and prompt reporting ofdeviations from permit requirements.Section 504(a) mandates that owners oroperators submit to the permittingauthority the results of any requiredmonitoring at least every six months.This section also requires permits toinclude ‘‘such other conditions as arenecessary to assure compliance withapplicable requirements’’ of the Act.Section 504(b) of the Act also allows theAgency to prescribe, by rule, methodsand procedures for determiningcompliance, and states that continuousemission monitoring systems need notbe required if other methods orprocedures provide sufficiently reliableand timely information for determiningcompliance. Under section 504(c), eachoperating permit must ‘‘set forthinspection, entry, monitoring,compliance certification, and reportingrequirements to assure compliance withthe permit terms and conditions.’’

Title VII of the 1990 Amendmentsadded a new section 114(a)(3) thatrequires EPA to promulgate rules onenhanced monitoring and compliancecertifications. This paragraph provides,in part:

The Administrator shall in the case of anyperson which is the owner or operator of amajor stationary source, and may, in the caseof any other person, require enhancedmonitoring and submission of compliancecertifications. Compliance certifications shallinclude (A) identification of the applicablerequirement that is the basis of thecertification, (B) the method used fordetermining the compliance status of thesource, (C) the compliance status, (D)whether compliance is continuous orintermittent, (E) such other facts as theAdministrator may require.

The 1990 Amendments also revisedsection 114(a)(1) of the Act to provideadditional authority concerningmonitoring, reporting, andrecordkeeping requirements. Asamended, that section provides theAdministrator with the authority torequire any owner or operator of asource:

On a one-time, periodic or continuousbasis 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 suchlocations, at such intervals, during suchperiods and in such manner as theAdministrator shall prescribe);

(E) Keep records on control equipmentparameters, production variables, or otherindirect data when direct monitoring ofemissions is impractical;

(F) Submit compliance certifications inaccordance with section 114(a)(3); and

(G) Provide such other information as theAdministrator may reasonably require.

B. Rulemaking History

The EPA has acted to implement thestatutory provisions discussed above intwo separate ways. First, the part 70operating permits program includesbasic monitoring and compliancecertification requirements. Section70.6(a)(3)(i) requires that permitsinclude all existing monitoring andtesting requirements set forth inapplicable requirements. In many cases,the monitoring requirements in theunderlying regulations will suffice forassessing compliance. However, ifparticular applicable requirements donot include periodic testing ormonitoring, then § 70.6(a)(3)(i)(B)requires the permit to include ‘‘periodicmonitoring’’ to fill that gap. Section70.6(c)(5)(iii) requires the submittal ofcompliance certifications no lessfrequently than annually, and generallyincorporates the language oncompliance certifications included insection 114(a)(3) of the Act.

To implement the statutoryrequirement for enhanced monitoring,EPA has developed through thisrulemaking a general monitoring rule in40 CFR part 64 to be implementedthrough the part 70 operating permitsprogram. The Agency first providednotice in the Federal Register of anopportunity for public review andcomment on this concept in August1991 (see 56 FR 37700). A publicinformation document was madeavailable, a public meeting was held,and written comments were receivedafter the meeting. A subsequent publicmeeting was held in August 1993, anda proposed rule was published onOctober 22, 1993 (58 FR 54648). Thisproposed rule is referred to as the ‘‘1993EM proposal’’ throughout the remainderof this preamble.

The Agency received approximately2000 comment letters during the publiccomment period. These letterscontained several thousand individualcomments on more than 500 major andminor issue topics. Because of some ofthe complex and difficult issues raised,the Agency held a series of stakeholdermeetings in the fall of 1994, releaseddraft sections of a possible final rule,and then officially reopened the publiccomment period on specific issues onDecember 28, 1994 (59 FR 66844). Anadditional stakeholder meeting was heldnear the close of that reopened commentperiod, and more than 200 additionalcomment letters were received.

In April 1995, EPA decided to shiftthe emphasis of part 64. The Agencyissued a press release in early April1995 that indicated EPA’s intent to holda public meeting to discuss the potentialchanges to the proposed enhancedmonitoring rule, and then contactedvarious stakeholder groups so that theywould have the opportunity toparticipate. A formal notice of themeeting was also published in theFederal Register on May 26, 1995 (60FR 27943). Approximately 200 peopleattended the meeting on May 31, 1995,and many additional people attendedthe follow-up meetings held in June1995 in Washington, DC, Cincinnati,Austin, and Portland, Oregon. TheAgency then drafted a preamble andrule for public discussion and comment,and held another public meeting inSeptember 1995. (See 60 FR 48679,September 20, 1995, for the formalFederal Register notice of that meetingand request for comment.)Approximately 150 people attended thatmeeting, and EPA received more than60 written comment letters on the draftrule package. The Agency subsequentlyissued a draft final part 64 anddiscussion document in August 1996(see 61 FR 41991, August 13, 1996) andheld another public meeting inSeptember 1996. The 1995 and 1996draft rules are referred to as the ‘‘1995part 64 Draft’’ and ‘‘1996 part 64 Draft,’’respectively, throughout the remainderof this preamble. Approximately 200people attended and 120 writtencomment letters were submitted duringthe comment period. The Agency alsohas held numerous informal stakeholderdiscussions with interested parties todiscuss the CAM approach, andreceived additional written commentsduring the period since April 1995. (Seethe items in sections II–D, II–E, IV–D,IV–E, IV–F, VI–D, VI–E, and VI–F ofDocket A–91–52 for a complete recordof written comments submitted bystakeholders, and discussions betweenEPA and interested parties concerningthe rulemaking.)

This preamble addresses the changesto part 64 that have been made inresponse to the significant publiccomment received during the course ofthe rulemaking. The focus is ondocumenting the changes made inresponse to the comments received onthe formal 1993 proposed rule, as wellas specific changes made in response tocomments received on the draft rulematerials made available in 1995 and1996. The Agency has also prepared adetailed, three–part Response toComments Document which includes aresponse to all material comments on


the rule. See Docket Items A–91–52–VII–C–1 through VII–C–3.

C. Overview of the CAM Approach

1. General ApproachThe CAM approach as defined in part

64 is intended to address therequirement in title VII of the 1990Amendments that EPA promulgateenhanced monitoring and compliancecertification requirements for majorsources, and the related requirement intitle V that operating permits includemonitoring, compliance certification,reporting and recordkeeping provisionsto assure compliance. The EPA has longrecognized that obtaining ongoingcompliance is a two-step process. First,the Agency must determine whetherproperly designed control measures—including, as applicable, controldevices, process modifications,operating limitations or other controlmeasures—are installed or otherwiseemployed, and that those controlmeasures are proven to be capable ofachieving applicable requirements. Inthe past, this step has been addressedthrough new source review permitting,initial stack testing, complianceinspections and similar mechanisms.The title V permit application andreview process, including theapplicant’s initial compliancecertification and compliance planobligations, will add another tool forassuring that source owners or operatorshave adopted the proper controlmeasures for achieving compliance. Thesecond step is to monitor to determinethat the source continues to meetapplicable requirements. An importantaspect of this second step is to assurethat the control measures, once installedor otherwise employed, are properlyoperated and maintained so that they donot deteriorate to the point where theowner or operator fails to remain incompliance with applicablerequirements. The Agency believes thatmonitoring, reporting, recordkeepingand ongoing or recurring compliancecertification requirements under title VIIshould be designed so that owners oroperators carry out this second step inassuring ongoing compliance.

There are two basic approaches toassuring that control measures taken bythe owner or operator to achievecompliance are properly operated andmaintained so that the owner oroperator continues to achievecompliance with applicablerequirements. One method is toestablish monitoring as a method fordirectly determining continuouscompliance with applicablerequirements. The Agency has adopted

this approach in some rulemakings and,as discussed below, is committed tofollowing this approach wheneverappropriate in future rulemakings.Another approach is to establishmonitoring for the purpose of: (1)Documenting continued operation of thecontrol measures within ranges ofspecified indicators of performance(such as emissions, control deviceparameters and process parameters) thatare designed to provide a reasonableassurance of compliance withapplicable requirements; (2) indicatingany excursions from these ranges; and(3) responding to the data so thatexcursions are corrected. The part 64published today adopts this secondapproach as an appropriate approach toenhancing monitoring in the context oftitle V permitting for significantemission units that use control devicesto achieve compliance with emissionlimits. For units not covered by part 64,a similar but less detailed approach isprovided for in the monitoring andrelated recordkeeping and reportingprovisions of part 70 (see § 70.6(a)(3)).

The rule defines ‘‘control devices’’ tomean equipment that removespollutants or transforms pollutants topassive emissions (see § 64.1), asopposed to other control measures, suchas process modifications, materialsubstitution, and other control options.For significant units that use controldevices to achieve compliance, theowner or operator will have to developand propose, through the part 70 permitprocess, monitoring that meets specifiedcriteria for selecting appropriateindicators of control performance,establishing ranges for those indicators,and for responding to any excursionsfrom those ranges. The final rule alsoincludes performance and operatingcriteria that must be achieved, as wellas documentation requirements for themonitoring proposed by the owner oroperator.

The final element of part 64 is theconcept of a quality improvement plan(QIP). Under the final rule, a QIP maybe required where the owner or operatorhas failed to satisfy the general duty toproperly operate and maintain anemissions unit (including the applicablecontrol device) or the owner or operatorhas evidence of a failure to comply withan applicable requirement, asdetermined through part 64 monitoringdata and/or other appropriateinformation (such as inspections). Therule allows for the permit to establish a‘‘bright line’’ test for implementing aQIP, 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 thatpermitting authorities have a specificregulatory tool to address situations inwhich an owner or operator operates ina manner that involves excursionsfollowed by ineffective actions to bringthe monitored indicators back into theacceptable ranges established in thepermit. Thus, the QIP will help assurethat the owner or operator paysattention to the data and, if necessary,improves performance to the pointwhere ongoing compliance withapplicable requirements is reasonablyassured. See Section II.H. for furtherdiscussion of QIP issues.

2. Implementation through Permitsa. Burdens to the Permitting Process.

Many commenters, including State andlocal agencies, industry, andenvironmental groups raised concernsin their comments that the part 64process of selecting the appropriatemonitoring for a particular sourcewould overburden the permittingprocess and lead to poorimplementation. The Agency is verysensitive to these concerns; however,the Agency continues to believe that,consistent with the preamble to the1993 EM proposal, the permitimplementation approach provides thegreatest amount of flexibility to theregulated community and States whileat the same time ensuring that enhancedmonitoring will be implemented for allmajor sources in a reasonablyexpeditious time frame. In addition, theAgency has taken several significantsteps in the final rule to reduce thepotential burden to the permittingprocess, including the actions discussedbelow.

i. Applicability. The focus ofapplicability on those pollutant-specificemissions units that rely on controldevices to achieve compliance hasreduced the estimated number of unitsthat will be subject to part 64 and alsohas reduced the variety of emissionsunit types that will be affected by part64. This reduction in the volume andbreadth of units covered by part 64 willreduce the overall burdens on thepermit process.

ii. Extended Implementation Period.As discussed in Section II.E., the finalrule provides for a new extendedimplementation schedule. Only thoseunits which are major units based ontheir potential to emit will be subject topart 64 requirements prior to therenewal of an initial part 64 permit. Inaddition, in many cases,implementation will not be required forthese large units until permit renewal.For the smaller units covered by part 64,implementation will not occur until


permit renewal. This extendedimplementation schedule will relievemuch of the burden on source ownersor operators to develop and prepareproposed monitoring during the initialpart 70 permitting process and willsimilarly relieve the burdens of theapproval process on permittingauthorities.

iii. Guidance Development Process.The Agency is committed to developingnon-prescriptive examples of the typesof monitoring that can be used to satisfypart 64 for various types of controldevices and emissions units. Theguidance development process willprovide an opportunity for sourceowners or operators and other interestedparties to submit suggestions, reviewdrafts and generally clarify the part 64requirements. The Agency emphasizesthat the development of examplemonitoring approaches is intended toassist both regulated industry andpermitting authorities to streamlinepermit review in those instances wherea source owner or operator proposesmonitoring based on one of theexamples. These examples should notbe considered as an implied limitationon the owner or operator’s ability topropose a different approach that theowner or operator can demonstratesatisfies the part 64 requirements or onthe permitting authority’s authority torequire additional monitoring.

iv. General Clarifications. Finally, thepotential implementation burdens havebeen reduced by adopting many generalclarifications in the final rule. Forinstance, the final rule clearly states thatemissions units that are not subject toapplicable requirements are notrequired to conduct part 64 monitoring.A second example is the streamlinedperformance and operating designcriteria in the final rule, which aresubstantially less complex andburdensome than the comparablerequirements in the appendices to the1993 EM proposal.

b. Creation of New SubstantiveStandards. Many commenters arguedthat the requirements in part 64 wereinconsistent with EPA’s stated positionthat the part 70 operating permitsprogram was intended solely to collectexisting requirements in one document,without creating new substantiveobligations for source owners oroperators. The Agency disagrees withthese arguments. As mentioned insection I.A., the part 64 regulationsrespond to the statutory mandate in theClean Air Act Amendments of 1990 andthe part 70 regulations implement titleV of the Clean Air Act Amendments of1990, which directs the Agency toimplement monitoring and compliance

certification requirements through theoperating permits program. The part 64requirements are independentlyapplicable, substantive requirementsthat an owner or operator must achieve.The fundamental requirements of part64 are to: (a) Monitor compliance in amanner that is sufficient to yield datathat provide a reasonable assurance ofcompliance and allow an owner oroperator to make an informedcertification of compliance; (b) takenecessary corrective actions in responseto the monitoring data; (c) report on theresults of such monitoring; and (d)maintain records of such monitoring.None of these fundamental obligationsunder part 64 will be added as part ofa part 70 permit independently of part64. What will be added as part of thepermit process are the particulars as tohow a specific source owner or operatorwill satisfy these general part 64requirements. This type of regulatorystructure is entirely consistent with thepurpose of a permit process which is tospecify how general obligations will beachieved in particular circumstances.

c. Consistency of Implementation.Implementation of part 64 through thepart 70 permits program means that part64 will be implemented on a case-by-case basis. Many industry and State andlocal agencies supported EPA’s proposalto allow for a flexible implementationapproach that allows for adoptingmonitoring that is most appropriate to aparticular emission unit’scircumstances. However, manyindustry, environmental and State andlocal agency commenters also raisedconcerns that the case-by-caseimplementation process in part 64 maynot be implemented in a reasonablyconsistent manner by differentpermitting authorities.

The EPA acknowledges the potentialsignificance of these concerns; however,EPA believes that they have beenoverstated by the commenters. Asdiscussed in Section II. below, EPA hastaken steps to minimize potentialinconsistencies by simplifying andclarifying the final rule. Also, EPA mustweigh these concerns against thesignificant policy concerns that wouldexist if the Agency attempted to developspecific enhanced monitoringrequirements for each NSPS andNESHAP standard, as well as theburdens on States to revisit each SIPregulation, as well as individual Statepreconstruction and operating permits.The administrative burdens associatedwith that approach would severelyhinder the effective and timelyimplementation of enhanced monitoringfor most sources for many years. Inaddition, such an approach fails to

acknowledge the new benefits of theoperating permits program to tailorgeneral requirements in a manner that ismost appropriate to the circumstances ata particular source. For these reasons,EPA believes that the benefits of thepermit implementation approach faroutweigh the concerns over consistencyin implementation.

d. Programmatic Options. Somestakeholders have suggested alternativemeans of implementing part 64requirements. One alternative suggestedwas to allow a State the option ofimplementing part 64 monitoringrequirements through programmaticrule changes instead of implementingCAM through source-specific part 64requirements. One potential method forallowing this option is to exempt frompart 64 monitoring any emissions unitsfor which a State has developedrequirements specifically designed tosatisfy part 64 in a rule that has beensubmitted and approved as part of theSIP. Another would be to delayimplementation of part 64 to provide anopportunity for a State to devise acompetitive monitoring program forsubmittal to and approval by EPA.

The final rule will allow states toimplement CAM through rulemakingpertaining to categories of sources. TheEPA encourages States to consideradding monitoring requirements toexisting and new rules that areconsistent with part 64 requirements. Inthis manner, the burdens associatedwith source-specific monitoringdevelopment could be reduced. Toprovide an incentive for this type ofrule, the final rule includes a provision(see § 64.4(b)) that allows the owner oroperator to rely upon this type ofprogrammatic rule as the primarydocumentation of the appropriateness ofits monitoring. This approach wouldreduce the number of case-by-casereviews necessary to implement part 64.

On the other hand, EPA does notagree with commenters who suggest thatstates that choose to use programmaticrulemaking should be allowed to applydifferent criteria in determiningmonitoring and to have additional timeto implement such an approach. TheEPA believes monitoring decisionsshould be made on the same basiswhether done on a programmatic orcase-by-case basis. Second, EPAquestions both the need for a substantialdelay for programmatic rulemaking andwhether the purported advantages of aprogrammatic approach justify anysubstantial delay. The final part 64 doesnot include an option for permittingauthorities to delay implementation ofpart 64 through use of a programmaticapproach.


Because of the implementationschedule for part 64 (see Section II.E.),owners or operators will not have toimplement part 64 for many emissionsunits until renewal of initial part 70permits. These include both large unitsthat are at sources which have alreadyreceived or are in the process ofreceiving part 70 permits, and smallerunits for which the rule explicitlydelays implementation until permitrenewal. This schedule providessubstantial time for States to adopt SIPregulations, as discussed above, that areconsistent with part 64, especially forsmaller units that could most benefitfrom generic monitoring requirementsthat could be developed throughprogrammatic SIP rule changes.

3. Limited Purpose of Part 64Part 64 is intended to provide a

reasonable means of supplementingexisting regulatory provisions that arenot consistent with the statutoryrequirements of titles V and VII of the1990 Amendments to the Act. The EPAbelieves that the CAM approach is areasonable approach commensuratewith this role. The Agency does notbelieve that existing monitoringrequirements that are more rigorousthan part 64 should be reduced or thatmonitoring imposed in future regulatoryactions necessarily should be guided bypart 64.

If existing requirements are morerigorous than part 64, thoserequirements should continue to existunaffected by part 64. This point ismade explicitly in several instances inthe final rule. In addition, EPA iscommitted to developing new emissionstandards subsequent to the 1990Amendments with methods specifiedfor directly determining continuouscompliance whenever possible, takinginto account technical and economicfeasibility, and other pertinent factors.In recognition of this EPA commitment,the rule exempts New SourcePerformance Standards (NSPS) andNational Emission Standards forHazardous Air Pollutants (NESHAP)rules that are proposed after the 1990Amendments to the Act from part 64requirements. The Agency believes thatStates should approach their regulatoryactions from the same perspective andthus the Agency does not believe thatpart 64 will have a significant impact onrequirements imposed subsequent to the1990 Amendments.

Comments on the 1996 part 64 Draftreceived from environmental, publichealth and labor organizationsemphasized the public’s right toinformation about air pollution frommajor stationary sources. These

commenters argued that the CAMapproach provides insufficientinformation about actual emissions andthus will frustrate the public’s right toknow about actual emissions from asource. Their comments also assertedthat source owners should not beallowed to use information gatheredunder the CAM approach, includinginformation on pollution controloperations and practices, to certifycompliance with applicable standards.

The Agency responded to thosecomments (see letter from Mary Nicholsto various environmental and otherorganizations dated December 19, 1996,docket item A–91–52–VI–C–18) andsummarizes its response here. TheAgency agrees with incorporating directemissions and compliance monitoringwhere the technology is available andfeasible, and promoting publicdisclosure of air pollution emissionsinformation. On the other hand, theAgency does not believe that such abroad, expensive, and technicallycomplex objective can be accomplishedthrough a single rulemaking at this time.Not only would trying to impose suchmonitoring requirements across theboard in the short term be technicallyunrealistic, doing so would put injeopardy the possibility of advancingmonitoring of existing emissionssources through part 70 operatingpermits program already in progress.

The Agency notes that currentrequirements for submission of emissionstatements prepared by owners ofindustrial air pollution sourcescontinues independent of part 64 (suchas statements required under section182(a)(3) of the Act) and suchstatements will be based on the mostcurrently available information,including new monitoring dataproduced under part 64.

As described above, the Agencyfirmly believes that continued properoperation and maintenance of processoperations and air pollution controlsdemonstrated capable of achievingapplicable standards is vital to ongoingcompliance. By providing the necessarydata and requiring appropriatecorrective action, part 64 will result inowners and operators being moreconscientious in the attention paid tothe operation and maintenance of airpollution control equipment andpractices than has been the case in thepast. This approach has proven effectivein reducing air pollution emissions andimproving compliance performance inthe implementation of many existingregulations with similar requirements.See further discussion on the use of part64 data for purposes of part 70

compliance certifications in SectionI.C.5., below.

4. Relationship to Part 70 MonitoringPart 70 currently requires all title V

operating permits to include monitoringto assure compliance with the permit.This includes all existing monitoringrequirements as well as additionalmonitoring (generally referred to as‘‘periodic monitoring’’) if currentrequirements fail to specify appropriatemonitoring. As noted in the 1993 EMproposal, because part 64 containsapplicable monitoring requirementssufficient to demonstrate compliancewith applicable emission limitations orstandards, the part 70 periodicmonitoring requirements will not applyto the emissions units and applicablerequirements covered by part 64. Thisconclusion is equally applicable underthe final part 64 rule. However, duringthe course of the rulemaking, two otherissues have been raised that concern therelationship of the final part 64 rule tothe existing part 70 periodic monitoringrequirements: (1) The extent to whichperiodic monitoring should be relied onas ‘‘enhanced monitoring’’ and (2)timing concerns where periodicmonitoring may be required prior toimplementation of part 64.

With respect to relying on part 70periodic monitoring as ‘‘enhancedmonitoring’’ for at least some units, EPAsuggested this option in both the 1993EM proposal and the December 1994notice reopening the comment periodon that proposal (see 58 FR 54648,54653 and 59 FR 66844, 66849).Industry commenters generallysupported this option; although, manysuggested that EPA rely completely onperiodic monitoring as ‘‘enhancedmonitoring.’’ Some environmentalgroups, however, argued against thisoption. They asserted further that EPA’spart 64 applicability provisions wouldnot meet the statutory requirement thatall major stationary sources conductenhanced monitoring. The EPAconsidered including in part 64requirements analogous to the existingpart 70 provisions (see subpart C of part64 in the 1996 part 64 Draft). Thisapproach would clearly indicate EPA’sposition that the part 70 monitoringrequirements including periodicmonitoring if necessary, constitute theappropriate ‘‘enhanced monitoring’’ forunits not covered by part 64. However,in the final rule, EPA has determined torely on the position originally discussedin the 1993 EM proposal that existingmonitoring when supplemented asnecessary by periodic monitoring issufficiently enhanced for emissionsunits not subject to part 64. The Agency


decided not to pursue the Subpart Coption included in the 1996 part 64Draft based on the comments received(see Section II.B., below) and alsobecause of concerns about disruptingthe ongoing implementation of part 70.

Because of the delays in finalizingpart 64 and the delayed implementationschedule included in the final rule (seeSection II.E., below), many part 70permits will address periodicmonitoring issues prior toimplementation of part 64. To addressconcerns about the potential duplicationand disruption that this situation couldcause, EPA has taken certain steps.First, the ‘‘Subpart C’’ option has beenrejected and the existing part 70monitoring, including periodicmonitoring, requirements will continueto apply. Because the majority ofemissions units do not use controldevices, this decision will result in part64 creating no duplication or disruptionfor the majority of emissions units. Asdiscussed in the Regulatory ImpactAnalysis (RIA) for this rulemaking, EPAestimates that the final part 64 rule willaffect less than 27,000 emissions units,while an additional 54,000 units thatcould have been affected by subpart Cwill remain affected by part 70monitoring requirements.

Second, for units with controldevices, EPA has adopted a phasedimplementation schedule under whichpart 64 will apply only to the largestunits prior to the first renewal of a part70 permit. To the extent part 64 andperiodic monitoring may have someoverlap for these largest units, anyoverlap should be minimal becausethese units are most likely to haveexisting monitoring that would makethe periodic monitoring provisions inpart 70 unnecessary. For the smallerunits that will not be required toimplement part 64 until part 70 permitrenewal, the periodic monitoringprovisions of part 70 may apply. Whilethere may be some concern that this willresult in installation of monitoring thatcould later be found inappropriate forpart 64, EPA does not believe thiswould generally be the case. In manyinstances, such periodic monitoringwould likely serve as the basis, in wholeor in part, for compliance with part 64.For instance, a source owner or operatormay conduct intermittent monitoring ofvisible emissions or certain parametersto satisfy part 70 periodic monitoring.To the extent successful, the experiencewith that monitoring could be used tojustify its use under part 64. At the least,the experience gained under periodicmonitoring could be used to developdata to support proposed part 64monitoring at permit renewal. Such data

could be used, for example, to justifyappropriate indicator ranges, qualityassurance procedures, monitoringfrequency and similar part 64requirements. Just as importantly, thecontinued presence of part 70monitoring requirements during theinitial permit term is essential toprovide the minimum level of assurancethat a source remains in compliancewith a part 70 permit as required undertitle V of the Act. Thus, EPA rejects theposition suggested by some commentersthat it should immediately suspend thepart 70 periodic monitoringrequirements pending implementationof part 64.

5. Relationship to part 70 ComplianceCertifications

In developing an implementationapproach in the 1993 EM proposal, EPAindicated that owners or operators mustrely on methods for determiningcontinuous compliance to submit acertification of whether compliance iscontinuous or intermittent. Manyindustry representatives and State andlocal agencies objected to the burdensassociated with the 1993 proposal. Alarge part of those burdens would haveoccurred as a result of having to developmonitoring that could produce data ofsufficient reliability to makedeterminations of continuouscompliance with a degree ofrepresentativeness, accuracy, precision,and reliability equivalent to thatprovided by conducting the test methodestablished for a particular requirement.In response to those concerns, theAgency opted to pursue the CAMapproach which provides a reasonableassurance of compliance throughmonitoring of control operations. TheEPA believes that the CAM approachdoes enhance existing monitoringrequirements and provides sufficientinformation for an owner or operator toreach a conclusion about thecompliance status of the owner oroperator’s source that is adequate tosatisfy the compliance certificationobligations in the Act. Such monitoringalso provides data sufficient for EPA,permitting authorities, and the public toevaluate a source’s compliance and totake appropriate action where potentialcompliance problems are discovered.

The part 64 rulemaking also clarifiesthe Agency’s interpretation of thephrase ‘‘continuous or intermittent’’ asused in section 114(a)(3) of the Act. The1993 EM proposal interpreted therequirement that source owners oroperators certify ‘‘whether complianceis continuous or intermittent’’ to requiremonitoring sufficient to determine ifcompliance was continuous. (58 FR

54654, 54658) Thus the term‘‘continuous’’ was read as meaning thatcompliance was achieved during allaveraging periods for a standard and‘‘intermittent’’ was read generally asmeaning that one or more deviationsoccurred during the certification period.(58 FR 54665). This proposedinterpretation was consistent with theAgency’s position in the preamble toproposed part 70 as well (see 56 FR21737, May 10, 1991 (‘‘The compliancecertification mustdocument * * * whether compliancewas continuous or intermittent (i.e.,whether there were periods ofnoncompliance).’’).

The Agency reconsidered thisinterpretation in reopening the publiccomment period on the 1993 EMproposal and noted that ‘‘intermittent’’could mean either that noncompliancehad occurred or that the owner oroperator has data sufficient to certifycompliance only on an intermittentbasis. (See 59 FR 66848, col. 2 (‘‘nothingin section 114(a)(3) dictates that allsource owners or operators must certifyto being in either continuouscompliance or else be considered innoncompliance; source owners oroperators may also certify to being incompliance as demonstrated on anintermittent basis.’’)). The EPA believesthat the statutory interpretationdiscussed in the preamble to the 1993EM proposal and this alternativeinterpretation are both reasonable, andthat EPA has discretion to clarify themeaning of this statutory provisiongiven the ambiguity in the legislation.As outlined below, today’s rulemaking(see the revisions to § 70.6(c)(5)) isderived from the interpretationcontained in the December 1994 noticereopening the comment period on the1993 EM proposal.

6. Consistency with RegulatoryReinvention Efforts

The approach in this rule lays outbroad principles and performancecriteria for appropriate monitoring, butdoes not mandate the use of a particulartechnology. The proposal is intended toreflect the principles articulated inPresident Clinton’s and Vice PresidentGore’s March 16, 1995 report,‘‘Reinventing EnvironmentalRegulation.’’ That report established asgoals for environmental regulationbuilding partnerships between EPA andState and local agencies, minimizingcosts, providing flexibility inimplementing programs, tailoringsolutions to the problem, and shiftingresponsibilities to State and localagencies. The Agency believes that part64 meets the goals of the report.


This approach also is consistent withPresident Clinton’s regulatory reforminitiatives and EPA’s Common SenseInitiative in that it focuses on steps toprevent pollution rather than to imposeunnecessary command and controlregulations on regulated sources. Theapproach is based on the assumptionthat pollution control is an integral partof doing business and that owners oroperators should pay attention to theirpollution control operations with thesame care they do their productoperations. The CAM approachemphasizes the role of the owner oroperator in developing a plan to achievethis goal for specific circumstances.

D. Benefits of a CAM Approach andPotential Control Costs

The EPA believes that monitoringunder part 64 can in some situations,reduce operating costs. For example,monitoring data can be used to increasecombustion efficiency in an industrialboiler or to increase capture and reuseof solvents at a coating plant. A 1990study by the General Accounting Officeentitled ‘‘Air Pollution: ImprovementsNeeded in Detecting and PreventingViolations’’ (see docket item A–91–52–VI–I–12) noted several instances inwhich companies have achieved suchoperating cost reductions. The CAMapproach also alerts owners or operatorsthat potential control device problemsmay exist. The owner or operator canuse this information to target controldevices for routine maintenance andrepair, and reduce the potential forcostly breakdowns. While benefits mayoccur to some facilities as the result ofbetter awareness of equipmentoperation, changes in equipmentoperation are not required by part 64.

Part 64 does not itself have emissionsreductions benefits, EPA does expect,however, that some sources may have toreduce emissions in order to complywith their underlying emissionsstandards in response to monitoringunder part 64. EPA expects that someemissions reductions may result fromsources having to reduce emissionsoverall, and/or to respond to periods ofexcess emissions more quickly, thusreducing their frequency and duration.EPA has not estimated the emissionsreductions that may result from this;EPA believes these reductions and anyassociated health and welfare benefitsare not attributable to part 64—but tothe underlying emissions standards.

The Agency believes that there isadequate evidence that monitoringcontrol performance will assurecontinuing compliance with applicablerequirements. Studies conducted by theAgency have shown that control device

operation and maintenance problemsare a significant factor in creating excessemissions (see docket items II–A–22 andVI–A–2). In addition, these studies havedocumented that assumptions aboutcompliance status are often inaccuratewhen detailed inspections of controldevices are conducted (see, for example,docket item VI–A–2). Moreover,information included in the RegulatoryImpact Analyses (RIA) documents that,based on data sheets compiled for allmajor sources by State agencyinspectors in fifteen States,approximately 20 percent of all majorsources have significant complianceproblems and there is a significantcorollary between the adequacy of asource’s operation and maintenanceprocedures and compliance risk.

There will be real costs associatedwith measures sources may take toreduce emissions in order to complywith their underlying emissionsstandards in response to monitoringunder part 64. Costs as well asemissions reductions benefits will resultfrom sources having to reduce emissionsoverall, and/or to respond to periods ofexcess emissions more quickly, thusreducing their frequency and duration.Such costs would be due to increaseexpenditures for operation andmaintenance and capital equipment.The EPA has not estimated the costassociated with emissions reductionsthat may result; EPA believes such costsare not attributable to part 64—but tothe underlying emissions standard.

E. The Relationship of Part 64 toCredible Evidence and EnforcementIssues

1. General CAM Enforcement Policy

As a general matter, the Agencyexpects that source owners or operatorswill be in compliance with allapplicable emission requirements ifthey conform to the requirements of part64. Further, the Agency expects thatthere will be relatively limitedinformation available to override theinformation provided by the owner oroperator on an emissions unit’scompliance status beyond that providedthrough monitoring that satisfies part 64or part 70. However, neither theseexpectations nor complete compliancewith part 64 will prohibit the Agencyfrom undertaking enforcementinvestigations when appropriate underthe circumstances, such as wheninformation indicates there areconditions that may threaten or result inharm to public health or theenvironment, indicates a pattern ofnoncompliance, indicates serious

misconduct, or presents othercircumstances warranting enforcement.

2. The Credible Evidence Revisions to40 CFR parts 51, 52, 60, and 61 (‘‘TheCE Revisions’’)

See the CE Revisions as published inthe Federal Register on February 24,1997 (62 FR 8314) for discussion of thatrulemaking history. During the manypublic comment periods for the CERevisions and the CAM proposal, theAgency received numerous commentsstating that the two rules areinextricably connected, impact eachother, and should be proposed togetherin order for meaningful public commentfrom interested stakeholders. TheAgency reviewed these comments butdecided to proceed with the CErulemaking separately from thisrulemaking for several reasons. First, theAgency believes that there wassufficient opportunity for all interestedparties to comment on any perceivedrelationship or any substantive issuesregarding the proposed credibleevidence revisions and the CAMproposal before the promulgation of theCE Revisions in February, 1997. TheAgency released a public draft of theCAM approach in September, 1995, andthen conducted a public meeting inApril, 1996, on the credible evidencerevisions. The Agency also acceptedpublic comments on the credibleevidence rulemaking and the CAMproposals between September, 1995,and the promulgation of the CERevisions. Thus, all interested partieshad the opportunity to comment on thetwo rulemakings and the Agencyreceived numerous comments on thistopic before the CE Revisions werepromulgated. In addition, there was alsoample opportunity for public commenton any perceived relationship afterpromulgation of the CE Revisions andbefore the finalization of part 64. TheAgency released a public draft of theCAM approach in August, 1996, andheld a public meeting regarding the1996 part 64 Draft. The Agency alsoreopened the comment period on part64 on April 25, 1997, ( 62 FR 20147) toallow for comments on the relationshipbetween part 64 and the CE Revisions.See the Response to CommentsDocument (Part III) at section 14 for theAgency’s response to these comments.Thus, all interested parties had theopportunity to comment on therelationship between part 64 and the CERevisions before each of theserulemakings was promulgated.

Second, the Agency decided topromulgate the CE Revisions separatefrom part 64 because the two programsare different in scope. The CE Revisions


are not limited to part 64 data orinformation collected pursuant to a part70 permit generally. Other types of CEcould include information frommonitoring that is not required byregulation (such as monitoringconducted pursuant to a consentagreement or a specific section 114request) or information from inspectionsby the permitting authority. In addition,the CE Revisions affect all sourcesregulated by 40 CFR parts 51, 52, 60,and 61, not just sources who will becovered by part 64. Thus, althoughsources covered by this rulemaking areregulated under the provisions amendedby the CE Revisions, both the sourcescovered by this rulemaking and the datagenerated by this rulemaking are subsetsof the sources and potential credibleevidence addressed in the CE Revisions.Therefore, it was appropriate for theAgency to promulgate these tworulemakings separately. See 63 FR 8314for a discussion of the scope of the CERevisions.

Even though the CE Revisions andpart 64 rulemakings are distinctregulatory actions, there arecomplementary aspects to the two rules.As noted above, consistent with theexisting provisions of part 70, the CErevisions reiterate that data other thancompliance test data can be used as abasis for title V compliancecertifications. Most importantly, the CErulemaking affects the potentialconsequences of identifying deviations,exceedances or excursions in acompliance certification based on data,such as part 64 data, that are fromsources other than the compliance orreference test method. The CE revisionsclarify the authority to rely on thesedata to prove that a source is incompliance or that a violation hasoccurred.

Finally, the CE Revisions and thisrulemaking did not need to bepromulgated together because theseregulations have different statutorybases. The Agency promulgated the CERevisions based primarily on section113(a) of the Act, which authorizes theAgency to bring an administrative, civilor criminal action ‘‘on the basis of anyinformation available to theAdministrator.’’ See 62 FR at 8320–23.The part 64 regulations, however,respond to the statutory mandates of theCAA Amendments of 1990, includingbut not limited to section 114(a)(3).

3. Potential Enforcement ConsequencesRelated to CAM and CE

As a general matter, the Agency notesthat it intends to apply its currentenforcement policies in instances wherethe Agency believes, based on a review

of CAM data, that a source has violatedunderlying emission limits. During thepublic comment period, commentersraised several issues about therelationship between the proposed part64 monitoring information, the CERevisions, and enforcement ofviolations of the Act. The followingdiscussion generally addresses thoseconcerns. See section 14.2 (Part III) ofthe Response to Comments Document(A–91–53–VII–C–3) for responses tospecific issues raised.

First, these commenters suggestedthat compliance with indicator rangesunder part 64 should act as a shield toenforcement actions. The Agencydisagrees. Complete compliance with anapproved part 64 monitoring plan doesnot shield a source from enforcementactions for violations of applicablerequirements of the Act if other credibleevidence proves violations of applicableemission limitations or standards. TheAgency expects that a unit that isoperating within appropriatelyestablished indicator ranges as part ofapproved monitoring will, in fact, be incompliance with its applicable limits.Part 64 does not prohibit the Agency,however, from undertaking enforcementwhere appropriate (such as cases wherethe part 64 indicator ranges may havebeen set improperly and other data suchas information collected during aninspection provides clear evidence thatenforcement is warranted).

Similarly, several commenters statedthat if a source owner or operatoridentified excursions or exceedances ofthe applicable indicator ranges andconducted a prompt correction, with orwithout a QIP, then there should be ashield from enforcement for anypotential violation of an underlyingemissions limitation. This is alsoincorrect. If a source owner or operatoridentifies one or more excursions orexceedances of its indicator rangesestablished under part 64, promptcorrection of the condition does notestablish a shield. At the same time, theCAM excursions do not necessarily giverise to liability under part 64 or the Act(unless an excursion is specificallymade an enforceable permit term). TheAgency understands that many sourcesoperate well within permitted limitsover a range of process and pollutioncontrol device operating parameters.Depending on the nature of pollutioncontrol devices installed and thespecific compliance strategy adopted bythe source or the permitting authority,part 64 indicator ranges may beestablished that generally representemission levels significantly below theapplicable underlying emission limit.For this reason, and because the Agency

anticipates a wide variance in CAMindicator range setting practices, theAgency intends to draw no firminferences as to whether excursionsfrom CAM parameter levels warrantenforcement of underlying emissionlevels without further investigation intothe particular circumstances at thesource. Thus, although staying withinappropriately established indicatorranges gives a reasonable assurance ofcompliance, excursions from indicatorranges do not necessarily indicatenoncompliance. The Agency mayinvestigate such excursions for possibleviolations based on the generalenforcement criteria identified above. Aproper and prompt correction of theproblem causing the excursion orexceedance, with or without a QIP, willfactor into the Agency’s decision onwhether to investigate a source forpotential violations but does not shieldthe source from an enforcement actionby the Agency.

Second, several comments have statedthat the use of CAM monitoring data ascredible evidence to demonstrate theexistence of a violation would increasethe stringency of many standards.Although it is correct that the Agency,as well as states, public citizens, andsources, could potentially use CAMmonitoring data as credible evidence ofeither compliance or noncompliancewith an emission standard, the evidencecould only be used if, as stated in theCE Revisions, the information isrelevant to whether the source wouldhave been in compliance withapplicable requirements if theappropriate performance or compliancetest had been performed. The CERevisions and the use of CAM data aspotential credible evidence do notchange the stringency of any emissionstandard for the reasons set forth in thepreamble to the CE Revisions. See 63 FR8314.

Finally, it has been suggested duringthe part 64 and credible evidencerulemakings that a Title V permit maybe written to limit the types of evidenceused to prove violations of emissionsstandards. As mentioned in the CERevisions, even if a Title V permitspecifies that certain monitoring, CAMor other monitoring, be performed andthat this monitoring is the sole orexclusive means of establishingcompliance or non-compliance, EPAviews such provisions as null and void.Such an attempt to eliminate thepossible use of credible evidence otherthan the monitoring specified in a TitleV permit is antithetical to the credibleevidence rule and to section 113(e)(1). Ifsuch a provision is nonethelessincluded in a permit, the permit should


be vetoed to avoid any ambiguity. If theprovision is not vetoed, the provision iswithout meaning, as it is ultra vires, thatis, beyond the authority of the permitwriter to limit what evidence may beused to prove violations, just as if apermit writer were to attempt to writein a provision that a source may not beassessed a penalty of $25,000 per day ofviolation for each violation. Evidencethat is permitted by statute to be usedfor enforcement purposes, fines thatmay be levied, and any other statutoryprovisions, may not be altered by apermit.

II. Detailed Discussion of RegulatoryProvisions

A. Section 64.1—Definitions

Section 64.1 defines most of the keyterms and phrases used in part 64.Certain definitions which werecontained in § 64.2 of the 1993 EMproposal have been deleted from thefinal rule, while other definitions fromthe proposed rule have beenconsiderably revised. In addition, anumber of new definitions have beenadded to the final rule. The Agencybelieves these deletions, revisions, andadditions accomplish the followinggoals: They reflect changes to theobjectives and substantive provisions ofpart 64; they respond to concerns andcomments made about the definitions inthe 1993 EM proposal; and they bringpart 64 more closely into accord withthe regulatory language of part 70. Thefinal definitions also reflect changesmade in response to comments receivedon the 1995 and 1996 part 64 Drafts.These are discussed below.

1. Definitions Deleted from the FinalRule

The revisions to the substantiveprovisions of part 64 in the final rulehave necessitated the deletion of certaindefinitions set forth in § 64.2 of the 1993EM proposal. In some instances, thesedefinitions have been superseded bynew terminology relating to the same orsimilar concepts. In other cases, thedeleted definitions related to matterswhich are inapplicable to the final rule.The eliminated definitions are asfollows:

a. Continuous Compliance andIntermittent Compliance. The 1993 EMproposal would have required the use ofdata from an enhanced monitoringprotocol to determine and certifywhether an affected source or emissionsunit complied with applicable emissionlimitations or standards and whethersuch compliance was ‘‘continuous’’ or‘‘intermittent.’’ Section 64.2 of the 1993EM proposal defined the term

‘‘continuous compliance’’ as requiringthe attainment of quality-assured datafrom an enhanced monitoring protocolfor all required periods, thedemonstration by such data that anowner or operator has complied withthe applicable emission limitation orstandard during all monitored periods,and a demonstration of compliance byany other data collected for the purposeof determining compliance during themonitored periods if such other datawere collected. The 1993 EM proposalstated that a source or emissions unitwas in ‘‘intermittent compliance’’ if,during the reporting period, either thedata availability requirement was notsatisfied because insufficient data wasobtained from the enhanced monitoringprotocol, or the owner or operatorviolated the applicable emissionlimitation or standard because adeviation occurred during a period forwhich no federally-approved orfederally-promulgated excused periodapplied.

Many commenters objected to thesedefinitions for various reasons,including a contention that EPA hadmerged the concept of achievingcontinuous compliance with theconcept of demonstrating compliance.The definitions of continuouscompliance and intermittentcompliance in the proposed rule werealso closely tied to the Agency’sinterpretation of section 114(a)(3) of theAct under the 1993 EM proposal.Section 114(a)(3) directs theAdministrator to require certification of‘‘whether compliance is continuous orintermittent.’’ Under the 1993 EMproposal, this language was interpretedas requiring a certification thatcompliance was achieved during allaveraging periods for a standard, and‘‘intermittent’’ meant that one or moreunexcused deviations occurred duringthe certification period. Thisinterpretation was also the subject ofmuch public comment. As described ingreater detail above, the Agency hasresponded to these comments byadopting an alternative interpretation ofsection 114(a)(3). The Agency hastherefore deleted the EM proposeddefinitions of continuous andintermittent compliance from the finalrule. (See Section II.K.2. for additionaldiscussion of the interpretation ofcompliance certifications.)

b. Deviation. The proposed rule statedthat a ‘‘deviation’’ included anycondition determined by enhancedmonitoring or other collected datawhich identifies that an emissions unithas failed to meet an applicableemission limitation or standard. Thisdefinition included any conditions that

either violated an applicable emissionlimitation or standard or would haveviolated such limitation or standard butfor a federally-promulgated exemption.

A number of commenters raisedconcerns about the proposed definitionof deviation. Some argued that theproposed definition was too closely tiedto the violation of an emissionlimitation or standard. Thesecommenters requested clarification thata deviation is not necessarily a violationof an emission limitation or standard.Other commenters objected to portionsof the definition which would haveallowed a deviation to be based on ‘‘datacollected that can be used to certifycompliance,’’ such as the data obtainedthrough a voluntary audit. Thesecommenters argued that such adefinition created a disincentive forowners and operators to engage incertain types of self-monitoring.

The final rule does not refer to‘‘deviations’’ in part 64 and thus doesnot include a definition of ‘‘deviation.’’The 1996 part 64 Draft did contain arevised definition of ‘‘deviation’’ to beincluded in the part 71 provisionscovering the federal operating permitsprogram. This definition would haveclarified that a deviation is not alwaysa violation and that types of events thatwere to be considered deviationsincluded ‘‘exceedances’’ and‘‘excursions’’ as defined under part 64.The state operating permit programsauthorized by part 70 of this chapterallow permitting authorities to definethe term ‘‘deviation’’ in the context oftheir individual programs. The 1996part 64 Draft did not include adefinition of ‘‘deviation’’ to be includedin part 70 because the Agency did notwant to restrict the power of permittingauthorities to define this term.

Public comments on the 1996 part 64Draft pointed out that there arepermitting authorities which define a‘‘deviation’’ as a violation of theunderlying emission limitation orstandard. The provisions in the 1996part 64 Draft which stated thatexceedances and excursions are to beconsidered deviations withoutnecessarily being violations arguablyconflict with those definitions of‘‘deviation.’’ In response to theseconcerns, the Agency has eliminated allreferences to ‘‘deviations’’ from part 64.

c. Other Deleted Definitions. Theproposed rule contained a definition for‘‘established monitoring.’’ Thisdefinition applied to certain types ofmonitoring methodologies which hadbeen demonstrated to be a feasiblemeans of assessing compliance withemissions limitations or standards. Theconcept of ‘‘established monitoring’’


was used in the monitoring selectionprocess under the 1993 EM proposal. Asdiscussed below in Section II.D., theseprovisions have been eliminated in part64. Because the concept of ‘‘establishedmonitoring’’ serves no function in thefinal rule, this definition has beendeleted.

The proposed rule defined ‘‘fugitiveemissions’’ as those emissions whichcould not reasonably pass through astack, chimney, vent, or otherfunctionally-equivalent opening. Thisdefinition was necessary because§ 64.4(d) of the proposed rule wouldhave established separate monitoringprotocol requirements for fugitiveemissions monitoring. As discussedbelow in Section II.B., fugitiveemissions are not subject to any specificpart 64 monitoring requirements. TheAgency has therefore deleted thisdefinition from the final rule.

Section 64.4(c) of the 1993 EMproposal established certainrequirements for owners or operatorswho sought to use the monitoring ofprocess or control device parameters aspart of an enhanced monitoringprotocol. In certain instances, theproposed rule required theestablishment of a ‘‘demonstratedcompliance parameter level’’ (DCPL) todetermine which levels of the parameterbeing monitored correlated with ademonstration of compliance with theapplicable emission limitation orstandard. Under the requirements in thefinal rule, the Agency has modified itsapproach to parameter monitoring (seeSection II.C. for a more detaileddiscussion). Accordingly, the definitionof ‘‘demonstrated compliance parameterlevel’’ or DCPL has been deleted fromthe final rule.

Both the terms ‘‘enhancedmonitoring’’ and ‘‘enhanced monitoringprotocol’’ have been eliminated in thefinal rule. The 1993 EM proposaldefined ‘‘enhanced monitoring’’ as themethodology used by an owner oroperator to detect deviations withsufficient representativeness, accuracy,precision, reliability, frequency, andtimeliness in order to determine ifcompliance is continuous during areporting period. An ‘‘enhancedmonitoring protocol’’ was defined as themonitoring methodology and allinstallation, equipment, performance,operation, and quality assurancerequirements applicable to thatmethodology. The final part 64establishes monitoring performancecriteria in the body of the rule ratherthan in a definition; thus, thedefinitions 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 distinguishedmonitoring for units with controldevices subject to subpart B of that draftrule and monitoring for other unitsunder subpart C of that draft rule.Because the final rule does not includesubpart C, this term is not used in thefinal rule.

‘‘Responsible official’’ was definedunder the 1993 EM proposal as havingthe same meaning as provided under§ 70.2. This term was used in § 64.5(c)of the 1993 EM proposal, whichrequired that the personal certificationof a responsible official be included ineach enhanced monitoring report. Inresponse to a number of objections tothis requirement, the Agency has notincluded a part 64 report signaturerequirement in the final part 64 rule butgenerally relies on part 70 reportingprocedures. Thus, there is no need todefine ‘‘responsible official’’ in part 64.It should be noted that § 70.5(d) outlinesthe responsible official’s duties withrespect to submitting reports, includingpart 64 reports.

2. Revised DefinitionsThere are a number of definitions that

were in the 1993 EM proposal that havebeen revised in the final rule. Some ofthese revisions are relatively minor,such as technical revisions designed toreflect changes to the substantiveprovisions of part 64 or to more closelyparallel the definitions found in part 70.Other revisions are intended to addressmore significant concerns with theproposed definitions. The reviseddefinitions are as follows:

a. Emission Limitation or Standardand Applicable Requirement. The 1993EM proposal defined an ‘‘emissionlimitation or standard’’ as any federallyenforceable emission limitation,emission standard, standard ofperformance or means of emissionlimitation as defined under the Act.This term is actually a hybrid of severalterms used under the Act. The proposeddefinition stated that an emissionlimitation or standard may be expressedas a specific quantity, rate orconcentration of emissions; as therelationship of controlled touncontrolled emissions (e.g., controlefficiency); as a work practice; as aprocess or control device parameter; oras another form of design, equipment,operational, or operation andmaintenance requirement.

Section 64.2 of the 1993 EM proposalalso defined an ‘‘applicable emissionlimitation or standard’’ as any emissionlimitation or standard subject to therequirements of part 64 including: (1)

An emission limitation or standardapplicable to a regulated hazardous airpollutant under 40 CFR part 61; or (2)an emission limitation or standardapplicable to a regulated air pollutantother than a hazardous air pollutantunder section 112 of the Act, for whichthe source is classified as a majorsource.

The definition of ‘‘applicableemission limitation or standard’’ wasclosely tied to the applicabilityprovisions of the 1993 EM proposal. Forexample, the separate treatment ofhazardous air pollutant emissionslimitations or standards in thedefinition followed the proposed rule’sseparate applicability provisions forhazardous air pollutants. Thoseapplicability provisions have beensignificantly revised in part 64.Commenters raised concerns that themeaning of the term ‘‘applicableemission limitation or standard’’ wasunclear. The Agency agrees that theproposed definitions of ‘‘applicableemission limitation or standard’’ and‘‘emission limitation or standard’’ couldbe confusing, especially wheninterpreted in conjunction with the pre-existing definition of ‘‘applicablerequirement’’ in part 70. The final rulereplaces the term ‘‘applicable emissionlimitation or standard’’ with the term‘‘applicable requirement.’’ Part 64 statesthat ‘‘applicable requirement’’ shallhave the same meaning as providedunder part 70. The Agency made thischange in the final rule to avoid anypotential confusion and to bring part 64into closer agreement with thedefinitions of part 70.

Part 64 retains the basic definition of‘‘emission limitation or standard’’ withseveral revisions. Several commentersrequested clarification on the meaningof ‘‘federally enforceable’’ in thisdefinition. The final rule eliminates thephrase ‘‘federally enforceable’’ in thedefinition and defines an emissionlimitation or standard as ‘‘anyapplicable requirement that constitutesan emission limitation, emissionstandard, standard of performance ormeans of emission limitation * * *’’This adjustment reflects the addition ofthe term ‘‘applicable requirement’’ inthe final rule. The term ‘‘applicablerequirement’’ is used in part 70permitting to refer to the standards,requirements, terms, and conditions thatare contained in the part 70 permit asfederally-enforceable requirements.Thus, the reference to ‘‘federallyenforceable’’ was eliminated because,through the permitting process, all‘‘applicable requirements’’ becomefederally enforceable.


Additional language in the part 64definition of ‘‘emission limitation orstandard’’ clarifies that, for purposes ofpart 64, the definition of ‘‘emissionlimitation or standard’’ does not includegeneral operation requirements that anowner or operator may be required tomeet, such as requirements to obtain apermit, to operate and maintain sourcesin accordance with good air pollutioncontrol practices, to develop andmaintain a malfunction abatement plan,or to conduct monitoring, submitreports or keep records. As noted below(see detailed discussion of § 64.2),requirements of this type generallyapply to an entire facility. The Agencyhas specifically excluded suchrequirements so that otherwiseunregulated emissions units are notinappropriately subject to part 64monitoring requirements.

A number of commenters requestedthat EPA further narrow the definitionof emission limitation or standard sothat it would not apply to work practice,design or similar types of requirements.The commenters argued that part 64monitoring for these types of standardsdid not make sense and would beredundant. The Agency disagrees to theextent that a control device is used toachieve compliance with these types ofstandards. As discussed in Section II.B.,the final rule applies only to pollutant-specific emissions units which achievecompliance by using a control device.The monitoring is designed to documentthat the control device is properlyoperated and maintained. Many workpractice, design or similar standardswill not apply to these types of units(i.e., with control devices), whichaddresses many of the commenters’concerns. For units that are subject tosuch requirements and that do use acontrol device (see, e.g., 40 CFR 60.692–5, which imposes a ‘‘design’’ standardthat certain emissions be controlled bya control device with 95 percent designefficiency), the nature of the standard isimmaterial to the assessment of whetherthe control device is properly operatedand maintained. The Agency notes thatin the example, the NSPS requires theowner or operator to monitor the controldevice to assure proper operation andmaintenance (see § 60.695). Part 64 willact in a similar manner.

b. Part 70/Part 71 Permit. The term‘‘permit’’ as defined in the 1993 EMproposal meant any applicable permitissued, renewed, amended, revised, ormodified under part C or D of title I ofthe Act, or title V of the Act. Under the1993 EM proposal, part 64 would havebeen implemented through both the part70 operating permits program and thepreconstruction permits programs

developed under parts C and D of titleI of the Act. Public commenters raiseda variety of objections and concerns tothis proposed implementation structure.The Agency has responded to thesecomments in part by limiting part 64implementation under part 64 topermits covered by title V of the Act.

To reflect this change in theimplementation approach, the Agencyhas replaced the proposed definition of‘‘permit’’ with a definition for a ‘‘part 70or 71 permit.’’ Section 64.1 of the finalrule states that ‘‘part 70 or 71 permit’’shall have the same meaning asprovided under part 70 (or part 71) ofthis chapter. The Agency believes thisdefinition is consistent with the goal ofbringing part 64 definitions into closeragreement with their part 70 (or part 71)counterparts.

The Agency has also added a relateddefinition in part 64. The definition ofa ‘‘part 70 or 71 permit application’’includes any application that issubmitted by an owner or operator inorder to obtain a part 70 or 71 permit,including any supplement to apreviously submitted application. TheAgency believes the addition of thisdefinition is necessary because theimplementation provisions set forth in§ 64.3 of part 64 are connected to thesubmission of a part 70 or 71 permitapplication.

c. Major Source. The 1993 EMproposal defined the term ‘‘majorsource’’ as including any major sourcemeeting the definition in § 70.2,excluding any hazardous air pollutant(HAP) source included in paragraph (1)of that definition. One commenterrequested clarification of why thisdefinition excluded major HAP sourcesincluded in the major source definitionof part 70. The form of the proposeddefinition was necessary because the1993 EM proposal treated HAPrequirements separately from otherrequirements. For HAP requirements,the 1993 EM proposal would haveapplied to any source required to obtaina part 70 operating permit or apreconstruction permit under part C orD of title I of the Act and not just to‘‘major sources.’’ As discussed below,the applicability provisions of part 64have been substantially modified in thefinal rule such that there are no separateapplicability provisions for HAPrequirements (see Section II.B.). In thefinal rule, the definition of ‘‘majorsource’’ has been revised to reflect thesechanges. Part 64 simply states that‘‘major source’’ shall have the samemeaning as provided in part 70.

The U.S. Small BusinessAdministration (SBA) submitted fordiscussion at the September 10, 1996

meeting a proposal to retain, in part 64,EPA’s current practice of excludingfrom major source status those sourceswhose actual emissions are less than 50percent of the major source threshold.SBA apparently was referring to EPA’spolicy issued in January 1995 toestablish a two-year (extended until July31, 1998) transition policy that guidesEPA in applying the definition of‘‘major source’’ in part 70. Because part64 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 determiningapplicability under part 64. See alsoNational 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 rulecontained a definition for ‘‘potential toemit’’ which tracked the language of thepart 70 definition of ‘‘potential to emit’’with technical edits to reflect the 1993EM proposal’s focus on emissions unitsas opposed to the focus on majorsources in part 70. The text of theproposed rule did not make it clear,however, that part 70 was the source forthe proposed definition. Under part 64,‘‘potential to emit’’ is explicitly definedas having ‘‘the same meaning asprovided under part 70 of this chapter,provided that it shall be applied withrespect to an ‘emissions unit’ as definedunder this part in addition to a‘stationary source’ as provided underpart 70 of this chapter.’’ Although thetext of the definition has been changed,the meaning of ‘‘potential to emit’’ inthe final rule is effectively the same asin the proposed rule. The Agency madethese revisions to clarify the connectionof this term with the definitions of part70.

The 1993 EM proposal defined‘‘emissions unit’’ as any part or activityof a source that emits or has thepotential to emit any regulated airpollutant for which an emissionlimitation or standard had beenestablished. This definition was amodification of the definition of‘‘emissions unit’’ set forth in part 70.The Agency received a variety of publiccomments on this definition. Onecommenter recommended using the part70 definition of ‘‘emissions unit’’ in part64. Several other commenters expressedconcern over the use of the phrase ‘‘anypart or activity’’ in the definition,stating that the definition was not clearas to whether an emissions unit is asingle piece of equipment or a group ofmultiple units located together within asource. In response to these comments,the definition of ‘‘emissions unit’’ hasbeen revised in the final rule to have thesame meaning as provided under part


70. This approach clarifies potentialambiguity in the definition by relyingon the established part 70 definition ofthe term and brings part 64 into closeragreement with the provisions of theoperating permits program thoroughwhich part 64 will be implemented.

The 1993 EM proposal contained adefinition of ‘‘permitting authority’’which tracked the language of the part70 definition of ‘‘permitting authority’’with technical edits to reflect theproposed EM rule’s implementationthrough both title V permittingprograms and title I preconstructionpermit programs. The text of theproposed rule did not make it clear,however, that part 70 was the source forthe proposed definition. In addition, thefinal rule is not implemented throughtitle I preconstruction permits. TheAgency has therefore revised thedefinition of ‘‘permitting authority’’ tohave expressly the same meaning asprovided under part 70.

3. Definitions Added in the Final RuleMany of the definitions in § 64.1 of

the final rule have been added to reflectchanges in the substantive requirementsof part 64 monitoring under part 64.These definitions are generallyaddressed in the detailed discussion ofthe appropriate substantive sections ofthe final rule. The following discussionprovides a brief overview of some keyterms added to the definitions section ofthe final rule.

The Agency has added definitions forthe terms ‘‘monitoring’’ and ‘‘data’’ tothe final rule. The rule defines‘‘monitoring’’ as any form of collectingdata on a routine basis to determine orotherwise assess compliance withemission limitations or standards. Therule also includes a non-exclusive list ofdata collection techniques which maybe considered appropriate monitoringunder part 64. This list is similar to thelist included in § 64.6 of the 1993 EMproposal with minor changes inresponse to comments on that section.‘‘Data’’ is defined as the results of anytype of monitoring or compliancedetermination method. Somecommenters had raised concerns thatthe use of the term ‘‘data’’ in thesubstantive provisions of proposed part64 reflected a bias toward instrumentalmonitoring methods. The Agencybelieves that by adding these twodefinitions, the final rule reflects theAgency’s intent that a wide variety ofinformation and means of collectinginformation potentially can be used tosatisfy the requirements of part 64.

Definitions for the terms‘‘exceedance’’ and ‘‘excursion’’ havebeen added to the final rule. These

terms are closely related. Section 64.1defines an ‘‘exceedance’’ as a conditiondetected by monitoring which providesdata in terms of an emission limitationor standard and which indicates thatemissions or opacity are greater thanthat limitation or standard, consistentwith the applicable averaging period.An ‘‘excursion’’ is defined as adeparture from an indicator rangeestablished as part of part 64monitoring, also as consistent with theapplicable averaging period. Asdiscussed above, the 1996 part 64 Draftwould have stated that an exceedance orexcursion would be considered adeviation in the part 70 compliancecertification. This statement has beenremoved in response to comments thatsuch conditions should not necessarilyconstitute deviations, especially sincesome permitting authorities equate adeviation with a violation. See SectionII.K.2. of this preamble for additionaldiscussion on the status of excursionsfor a part 70 compliance certification.The 1996 part 64 Draft also omittedreference to the applicable averagingperiod. That omission has beencorrected in the final rule.

The final definition added to the finalrule describes the meaning of a‘‘predictive emissions monitoringsystem (PEMS).’’ Several commenters tothe 1993 EM proposal suggested that adefinition for this term should be addedto part 64. The Agency agrees with thissuggestion and has included anappropriate definition in § 64.1 of thefinal rule. This definition is included inthe final part 64 rule because § 64.3(c)sets forth special criteria for the use ofpredictive monitoring systems whenemployed to fulfill part 64 monitoringrequirements. The same section alsoprovides special criteria for the use ofcontinuous emission or opacitymonitoring systems. Because these lattertypes of systems are well understood, noexplicit definition was considerednecessary for purposes of part 64.

B. Section 64.2—Applicability

1. OverviewThe applicability provisions in § 64.2

reflect EPA’s decision to focus part 64requirements on units that use controldevices to achieve compliance. Thetypes of emission exceedance problemsthat can arise from poor operation andmaintenance of a control device can besevere and represent a significantcompliance concern. Moreover,although units with control devicesrepresent a smaller percentage of theoverall number of emissions units thanother units, these controlled unitsrepresent a disproportionate share of the

overall potential emissions from allemissions units. By concentrating therequirements of part 64 on these unitswith control devices, the Agency hasfocused the rule on units that representa significant portion of the overallpotential emissions regulated under theAct and that are generally most likely toraise compliance concerns.

The Agency notes that the term‘‘pollutant-specific emissions unit,’’defined in § 64.1, is used in part 64 toclarify that applicability is determinedwith respect to each pollutant at anemissions unit separately. For example,a coal-fired boiler emitting through asingle stack could constitute severalpollutant-specific emissions units, suchas for particulate matter, SO2, NOX, andCO. This term is used throughout theremainder of this document whereappropriate.

2. Significant Changes in theApplicability Threshold and RelatedDefinitions

Section 64.2(a) of the final rulerequires the owner or operator to applypart 64 to significant pollutant-specificemissions units that use control devicesto achieve compliance at major sourcessubject to part 70 permit requirements.The issues raised with respect toapplicability during the development ofthe rule are described below.

a. Applicability Options Presented inthe 1993 EM Proposal. The preamble tothe 1993 EM proposal solicitedcomments on five options fordetermining which emissions unitswould be subject to enhancedmonitoring requirements under part 64.These options set the threshold forapplicability based on each unit’spotential to emit the regulated airpollutant(s) for which a stationarysource is classified as a major source.Option 1 set no percentage threshold,making all units with applicablerequirements for the pollutant for whicha source is major subject to part 64monitoring. Options 2, 3, 4, and 5would have made part 64 applicable toall units that have the potential to emitpollutants in an amount equal to orgreater than 10, 30, 50, and 100 percentof the applicable major sourcedefinition, respectively. The 1993 EMproposal incorporated Option 3, settingthe threshold at 30 percent. Under theproposed rule, the source of an airpollutant which is defined as beingmajor at 100 tons per year would berequired to conduct enhancedmonitoring at all emissions units withinits facility that had the potential to emit30 tons or more of the pollutant peryear.


Applicability under the 1993 EMproposal was based on an emissionunit’s ‘‘potential to emit.’’ The proposaldefined this term as an emission unit’smaximum capacity to emit a regulatedair pollutant under the unit’s physicaland operational design, taking intoaccount such operating restrictions andcontrol equipment as constitutefederally-enforceable limitations. Asnoted above, the 1993 EM proposal alsowould have applied only to thepollutants for which a source is major.The 1993 EM proposal solicitedcomment on the applicability approachin the proposed rule, and specificallynoted that one other option would be touse uncontrolled emissions rather thanpotential to emit to determine part 64applicability. The Agency noted thatsuch an approach arguably would betteraddress the units with the greatestenvironmental risk. This request forcomment was accompanied by anassertion that in a monitoring rule suchas part 64, it may be appropriate to usea different definition of potential to emitthan EPA has used for other purposes.

b. Final Part 64 ApplicabilityProvisions. In response to the manycomments received on the 1993 EMproposal, the Agency modified part 64to bring about the CAM approachincluding a somewhat differentapproach to applicability. The Agencyreceived numerous public comments onthe applicability provisions of the 1993EM proposal. Relatively fewcommenters supported the Option 3 (30percent) threshold. Many of thecomments critical of Option 3 arguedthat the benefits of increased pollutantmonitoring obtained by coveringadditional emissions units at the 30percent threshold was far outweighedby the additional costs and burdens ofimplementation at that threshold. Mostindustry and many State and localcommenters supported Option 5 or ahigher threshold. Many of thecommenters also recommended thatEPA exempt various types of units,especially uncontrolled units that aresubject to design, work practice, orsimilar operational restrictions. Inaddition, a number of commenterssuggested alternative approaches todetermining the applicability thresholdof part 64. Industry commentersgenerally favored the focus of the 1993EM proposal on the pollutants for whicha source is a major, while environmentalgroups opposed that approach.

The final part 64 retains the basicconcept of an applicability threshold ascontained in the 1993 EM proposal, butalso narrows the focus so that part 64applies only to those pollutant-specificemissions units that use a control device

to achieve compliance with anapplicable emission limitation orstandard. In addition, units usingcontrol devices must have potential pre-control device emissions equal to orgreater than 100 percent of theapplicable major source definition to besubject to part 64. Since part 64 appliesits size threshold only to theproportionally small number ofemissions units that use control devices,the number of units required to meetpart 64 monitoring requirements islower than would have been subject tothe 1993 EM proposal. The final RIAestimates that part 64 will affect fewerthan 27,000 units as compared to theover 35,000 units which EPA hadestimated would be affected under the1993 EM proposal.

For part 64 to apply, § 64.2(a)specifies that a pollutant-specificemissions unit must meet the followingthree criteria: (1) The unit must besubject to an emission limitation orstandard for the applicable regulated airpollutant (or a surrogate of thatpollutant); (2) the unit must use acontrol device to achieve compliancewith an emission limitation or standard;and (3) the unit must have ‘‘potentialpre-control device emissions’’ in theamount, in tons per year, required toclassify the unit as a major source underpart 70.

i. Emission Limitation or StandardCriterion. For the first criterion, theAgency notes that part 64 applies onlyif an applicable emission limitation orstandard applies because the purpose ofpart 64 is to provide a reasonableassurance of compliance with suchrequirements. Numerous comments onthe 1993 EM proposal supported EPA’sposition that part 64 should apply onlyif an underlying applicable emissionlimitation or standard applies, but manycommenters suggested that the final ruleshould contain explicit languageconcerning the necessity for anunderlying standard to trigger part 64applicability. The commenters believedinclusion of such language was criticalbecause a part 70 operating permit willbe required to include units withoutapplicable requirements, and part 70permits will be required for sourceswithout any applicable requirements(so-called ‘‘hollow permits’’). Theirconcern was that part 64 could beinterpreted as applying to units andsources of this type and thatdetermining compliance with the ruleunder such an interpretation would beexceedingly difficult. The Agency agreesthat the rule should clearly state thatpart 64 applies only where a federallyenforceable emission limitation orstandard applies and thus has added

this first criterion to the applicabilitydetermination. The Agency also notesthat the applicability provisions in part64 include a ‘‘surrogate’’ of a regulatedair pollutant to address situations inwhich the emission limitation orstandard is expressed in terms of apollutant (or other surrogate) that isdifferent from the regulated air pollutantthat is being controlled. A commonexample would be emission limitsexpressed in terms of particulate matterand opacity rather than PM–10. Anotherexample would be an emission limitexpressed as a control device operatingrequirement rather than in terms of theapplicable regulated air pollutant.

ii. Control Devices Criterion. Second,the final rule applies only to pollutant-specific emissions units that rely on acontrol device to achieve compliance.The final rule provides a definition of‘‘control device’’ that reflects the focusof part 64 on those types of controldevices that are usually considered as‘‘add-on controls.’’ This definition doesnot encompass all conceivable controlapproaches but rather those types ofcontrol devices that may be prone toupset and malfunction, and that aremost likely to benefit from monitoringof critical parameters to assure that theycontinue to function properly. Inaddition, a regulatory obligation tomonitor control devices is appropriatebecause these devices generally are notan inherent part of the source’s processand may not be watched as closely asdevices that have a direct bearing on theefficiency or productivity of the source.

The control device definition is basedon similar definitions in Stateregulations (see, e.g., North CarolinaAdministrative Code, title 15A, chapter2, subchapter 2D, section .0101(definition of ‘‘control device’’); TexasAdministrative Code, title 30, section101.1 (definition of ‘‘control device’’).The definition is in contrast to broaderdefinitions of ‘‘control device,’’ ‘‘aircleaning equipment,’’ ‘‘controlmeasure,’’ or similar terms included insome States’ regulations (see, e.g.,Codes, Rules, and Regulations of theState of New York, title 6, chapter III,section 200.1 (definition of ‘‘air cleaningdevice’’ or ‘‘control equipment’’)). Thesebroader definitions often include anymethod, process or equipment whichremoves, reduces or renders lessnoxious air contaminants released to theambient air. Those types of controlscould include material substitution,process modification, operatingrestrictions and similar types ofcontrols. The definition in part 64 relieson the narrow interpretation of a controldevice that focuses on control


equipment that removes or destroys airpollutants.

Certain NSPS and NESHAPregulations also have targeteddefinitions of ‘‘control device’’ or ‘‘add-on control device’’ that apply to thespecific type of affected facility coveredby the applicable NSPS or NESHAPsubpart (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 64control device definition generally isconsistent with these prior Agencydefinitions, but without languagetargeted to a particular affected facilitytype.

The Agency notes that EPA’sAerometric Information RetrievalSystem (AIRS) contains a list of variousair pollution control equipment codesthat address a wide variety of possiblecontrol methods, processes andequipment; this list includes both activecontrol devices and other types ofcontrols. In conjunction with the releaseof the 1996 part 64 Draft, the Agencyplaced in the docket (item VI–I–3) adocument that reflects EPA’s positionon which of those equipment codesrefer to a ‘‘control device’’ as defined inthe 1996 part 64 Draft and which referto other types of controls. The Agencycontinues to believe that this documentprovides an appropriate list of the typesof equipment which may constitutecontrol devices.

For the final part 64 rule, the controldevice definition has been revised inresponse to public comments. In thediscussion document accompanying the1996 part 64 Draft, the Agency solicitedcomment on the appropriateness of thedefinition of control device andreceived numerous comments andrequests for additional clarifications.Generally, commenters felt that thecontrol device definition in the 1996part 64 Draft was overly broad and thatadditional language was needed toclarify that EPA does not intend the ruleto apply to inherent process equipmentsuch as certain types of recoverydevices.

The final rule defines a control deviceas ‘‘equipment, other than inherentprocess equipment, that is used todestroy or remove air pollutant(s) priorto discharge to the atmosphere.’’ Thus,the Agency has specifically excludedinherent process equipment from thecontrol device definition in the finalrule. The EPA suggested in thediscussion document accompanying the1996 part 64 Draft a list of three criteriathat would be used to distinguishinherent process equipment fromcontrol devices:

(1) Is the primary purpose of theequipment to control air pollution?

(2) Where the equipment is recoveringproduct, how do the cost savings fromthe product recovery compare to thecost of the equipment?

(3) Would the equipment be installedif no air quality regulations are in place?(See letter from David Solomon, EPA, toTimothy J. Mohin, Intel GovernmentAffairs, dated November 27, 1995.Included in the docket as Item VI–C–14.)

The Agency received a number ofcomments on these criteria, some ofwhich supported including the criteriain the rule and others of whichsuggested other approaches. Based onthe comments received, the final ruledefines ‘‘inherent process equipment’’as ‘‘equipment that is necessary for theproper or safe functioning of theprocess, or material recovery equipmentthat the owner or operator documents isinstalled and operated primarily forpurposes other than compliance with airpollution regulations.’’ If equipmentmust be operated at an efficiency higherthan that achieved during normalprocess operations in order to complywith applicable requirements, thatequipment will not qualify as inherentprocess equipment. In addition, thecontrol device definition has beenrevised to include a list of severalcontrol techniques that do not constitute‘‘control devices’’ as defined in part 64.

Finally, the definition also makesclear that part 64 does not overridedefinitions in underlying requirementsthat may provide that certain equipmentis not to be considered a control devicefor pollutant-specific emissions unitsaffected by that regulation. Although notsubject to part 64, an example of thistype of provision is § 63.111 in subpartG to 40 CFR part 63 (NESHAPrequirements for Synthetic OrganicChemical Manufacturing Industry forProcess Vents, Storage Vessels, TransferOperations, and Wastewater). Thedefinition in that section states thatrecovery devices used in conjunctionwith process vents and primarycondensers used in conjunction with asteam stripper do not constitute‘‘control devices.’’ Certain commentersasserted that part 64 should not overridethese types of existing rules and EPAagrees. The Agency notes, however, thatif an emissions unit is regulated foranother pollutant, and the controldevice also is used to comply with alimit that applies to that secondpollutant, the equipment will beconsidered a ‘‘control device’’ for thesecond pollutant unless the standardsfor the second pollutant also explicitlyestablish that the equipment is not acontrol device.

The final rule also includes adefinition of a ‘‘capture system’’ becausethe rule requires, where applicable,monitoring of a capture systemassociated with a control device. Themonitoring requirements for controldevices extend to capture systems aswell because they are essential toassuring that the overall emissionreduction goals associated with thecontrol device are achieved. See SectionII.C., below. The Agency notes that ductwork, ventilation fans and similarequipment are not considered to be acapture system if the equipment is usedto vent emissions from a source to theatmosphere without being processedthrough a control device. For instance,roof vents that remove air pollutantsfrom inside a building but do nottransport the pollutants to a controldevice to reduce or destroy emissionswould not be subject to the rule.

The Agency notes that somecommenters, especially environmentaland other public interest organizations,opposed limiting the applicability ofpart 64 to emissions units that rely oncontrol devices. They argued that othersignificant emissions units with othertypes of control measures, such as lowNOX burners or similar combustionmodification controls, should be subjectto part 64 requirements.

Low NOX burner technology andcertain other types of combustioncontrol measures are not included in thedefinition of ‘‘control device’’ in thefinal rule. For most large emissionsunits that employ such measures, suchas utility boilers, separate applicablerequirements already require the use ofCEMS or similar monitoring for suchunits. Under part 70, that monitoringwill have to be included in the permitand considered in certifying compliancewith applicable requirements. Sometypes of combustion units (e.g., packageboilers) that may use low NOX burnertechnology do not use the same types oftechnology used by utility and largeindustrial boilers. The technology usedfor many units with automaticcombustion control does not providesignificant operational flexibility thatcould afford the owner or operator withan opportunity or incentive tomanipulate NOX control levels. (Seedocket item A–91–52–VI–A–9) For thesetypes of units, the recordkeeping ofregular inspection and maintenance ofthe low NOX burners (e.g., annular flowratio adjustment settings, burnerreplacement, portable instrumentreadings, etc.) in combination withperiodic checks of emission levels withappropriate test methods, as necessary,are very likely sufficient to ensure thatthe unit is being operated in a manner


consistent with good air pollutioncontrol practices and that the low NOX

technology continues to reduceemissions at least to the level of thestandard. The general monitoringrequirements in part 70 are adequate toassure that this type of appropriatemonitoring is employed.

For these reasons, EPA believes thatmonitoring for this control technology isbest addressed through part 70 periodicmonitoring requirements and notthrough expansion of part 64 to unitswith these types of control measures. Ofcourse, if there are particular unitswhich raise a significant continuouscompliance concern, such as units withan historically poor compliance history,the permitting authority can requiremore detailed monitoring under thegeneral part 70 monitoring provisionsgiven that the permit must includeappropriate monitoring for assuringcompliance with the permit. In thosecases, permitting authorities may wantto consider elements of part 64 aspotentially appropriate, but they wouldnot be bound to satisfy each element ofpart 64.

iii. Potential Pre-control DeviceEmissions Criterion. Finally, for thethird criterion for applicability, § 64.2(a)relies on the concept of ‘‘potential pre-control device emissions.’’ This termhas the same meaning as ‘‘potential toemit,’’ except that any emissionreductions achieved by the controldevice are not taken into account, evenif the owner or operator generally isallowed to do so under the regulatorydefinition of ‘‘potential to emit.’’

The Agency first notes that numerouscommenters expressed objections to the1993 EM proposal’s definition ofpotential to emit, believing thedefinition resulted in unrealisticallyhigh emissions numbers. The EPA notesthat, contrary to beliefs expressed inmany of those comments, that definitiondoes take into account enforceableoperating hour restrictions, throughputrestrictions, control system efficiencyfactors, and similar enforceablerestrictions. The Agency also points outthat the same definition has been usedin the part 70 operating permits programas well as the part 63 NESHAP generalprovisions.

The Agency also notes that themajority of commenters did favor theuse of potential to emit overuncontrolled emissions because thelatter approach would not take intoaccount any emissions reductionsachieved through any means. However,the 1993 EM proposal noted that EPAwas considering basing applicability onuncontrolled emissions and thepotential pre-control emissions

approach was suggested subsequentlyby State and local agencies (see docketitems VI–D–42 and 49) during furtherconsideration of part 64 options. Asnoted in the discussion documentaccompanying the 1996 part 64 Draft,the Agency agrees with this approachand believes that excluding the assumedefficiency of the control device from thecalculation of potential to emit forpurposes of part 64 applicabilityprovides an appropriate means ofdistinguishing between units based onenvironmental significance. It allowsthe Agency to distinguish between unitsbased on their true size and based onthe degree of control required to achievecompliance. The Agency notes that thisapproach does take into account allfederally-enforceable emissionsreductions except for those resultingfrom control devices (e.g., emissionreductions that occur as a result ofoperating hour or throughputrestrictions would be taken into accountin determining potential pre-controldevice emissions).

Many commenters objected to thereliance on potential pre-control deviceemissions, primarily because the use ofthe potential pre-control deviceemissions threshold would result in toomany units being subject to the rule.Some commenters noted that the 1993EM proposal similarly had requestedcomment on the use of uncontrolledemissions, and that the commentsstrongly objected to that idea.

The Agency first notes that, contraryto some commenters’ assertions, EPAestimates that the final rule will applyto fewer units than the 1993 EMproposal because the final rule onlyapplies to the proportionally smallnumber of emissions units that useequipment meeting the ‘‘control device’’definition. The final RIA estimates thatfewer than 27,000 pollutant-specificemissions units will be subject to part64, whereas the 30 percent option in the1993 EM proposal would have coveredover 35,000 such units. The EPA hasalso delayed implementation for thoseunits subject to the rule that have the‘‘potential to emit’’ (post-control device)less than the major source threshold.This delayed implementation willreduce the burdens of part 64 on theinitial round of part 70 permitting. TheAgency feels that these changes shouldalleviate the commenters’ concerns andthat further reductions in the number ofunits to which the rule applies are notappropriate.

The CAM approach is necessarilyconcerned with significant, controlledunits even if the potential to emit afterthe control device is low. The reason forcovering these units is two-fold. First,

part 64 monitoring will be designed todetect long-term under-performance ofcontrol devices that periodicevaluations such as stack tests may beunable to document. For example, a unitmay have the potential to emit 20 tonsper year after a control device which isrequired to operate with a 99 percentcontrol efficiency. The pre-controldevice potential to emit for that unit is2,000 tons per year; if the requiredcontrol device efficiency is 99.9 percent,that figure increases to 20,000 tons peryear. If the long-term actual controlperformance of that device decreases to95 percent, the actual emissions couldincrease to 100 or 1000 tons per year,respectively. Part 64 is aimed first ataddressing this type of long-term,significant loss of control efficiency thatcan occur without complete failure of acontrol device. The second type ofproblem is short-term complete loss ofcontrol. As indicated in some of thecomments, for many types of controldevices this type of problem could bedetected after the fact with monitoringless detailed than part 64. However, thegoal of air pollution control is to preventthese types of problems before theyoccur, if possible, at a reasonable cost.The EPA believes that part 64 in manyinstances can be designed to provideearly indications of control equipmentproblems that could be addressed priorto such catastrophic failures. For thesereasons, EPA believes that the use ofpre-control device potential to emit is arational basis on which to evaluatewhether specific units should be subjectto part 64.

Some comments on the 1996 part 64Draft also objected to the potential pre-control device emissions thresholdbased on the argument that the creationof a new size calculation that sourceowners or operators must perform todetermine applicability will causeconfusion and result in additionalburdens. The Agency disagrees sinceowners will simply need to remove thedesign efficiency of the control devicefrom the calculation of the applicableunit’s potential to emit. Potential pre-control emissions will otherwise becalculated in exactly the same way aspotential to emit. The two figures willboth factor in enforceable operationalrestrictions, so only the effect of thecontrol device’s efficiency, a factorwhich has to be quantified fordetermining the standard meaning of‘‘potential to emit,’’ will be treateddifferently.

Commenters also noted that part 64would expand the 1993 EM proposal bynot limiting applicability to thosepollutants for which the source is major.The final rule does limit applicability to


the pollutants for which a pollutant-specific emissions unit would be majorexcept for the emissions reductionsassumed to occur as a result of a controldevice. As explained above, EPAbelieves that the focus of the rule on thepotential to emit of units prior to acontrol device is an appropriatescreening tool to determine which unitsshould be monitored under part 64. Forthat reason, the focus of the 1993 EMproposal on major pollutants onlywould be inappropriate. In addition, assome commenters pointed out inresponse to the proposed rule, theAgency typically does not focus on onlythe major pollutants even whereapplicability of a program is focusedsolely on whether a source is a majorsource.

Finally, EPA believes it would beirrational to continue to focus solely onthe pollutants for which a source ismajor when the Agency is focusing onunits 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 anattainment area) but have a unit withthe potential to emit 20 tons ofparticulate matter after a control devicethat has a rated removal efficiency of99.9 percent. The post-controlparticulate potential to emit from thisparticular emissions unit would be lessthan the major source threshold of 100tons/year; however, the precontrolpotential to emit of 20,000 tons/year ofparticulate matter emissions would begreater than the 100 tons/year majorsource threshold. As noted in theexample discussed above, smalldecreases in efficiency of that controldevice could lead to actual emissionincreases significantly above the majorsource threshold. Thus, while thesource in this example may not have thepotential to emit particulate matter(taking into account the control device)in amounts sufficient for the source tobe classified as a major source forparticulate matter, the pollutant-specificemissions unit for particulate matter,not for NOX, in this example is clearlyone which the Agency believes shouldbe subject to part 64.

Other commenters questionedwhether the applicability provisionswere self-implementing. They arguedthat unit-by-unit negative declarationswould be highly burdensome. TheAgency agrees and part 64 does notrequire that owners or operators justifyin a permit application why part 64 isnot applicable, or that owners oroperators apply for exemptions.However, the Agency notes that thepermitting authority can request furtherexplanation as to how a source owner or

operator determined that part 64 did ordid not apply for any pollutant-specificemissions unit for which there may bean issue about applicability. In addition,an owner or operator that wishes to takeadvantage of the exemption for certainmunicipally-owned utility units willhave to provide the documentationrequired to satisfy that exemption (seethe following discussion of thisexemption).

3. Development of the ExemptionProvisions

Part 64 exempts owners or operatorswith respect to certain emissionlimitations or standards for which theunderlying requirements alreadyestablish adequate monitoring for theemission limits being monitored, andwith respect to certain municipally-owned utility units.

a. Exemptions in the 1993 EMproposal. The 1993 EM proposalestablished exemptions for thefollowing types of emission limits:

—Emission limitations or standardsunder the NESHAP program (pursuantto section 112 of the Act), except forstandards established in part 61. Thisexemption reflected the Agency’s intentthat the provisions of part 63, the MACTstandards, will include appropriateenhanced monitoring provisionspursuant to the authority in section114(a)(3) of the Act.

—Stratospheric ozone protectionrequirements under title VI of the Act.The type of requirements that applyunder that program are significantlydifferent than typical emissionlimitations or standards, and theappropriate monitoring for suchrequirements will be handled underregulations implementing thoserequirements. The exemption isunchanged from the proposed rule butfor a technical correction (substitutingtitle VI of the Act for the originalreference to section 603).

—Acid Rain Program emission limitsunder title IV of the Act. The Acid Rainmonitoring requirements under 40 CFRpart 75 already establish all appropriatecompliance assurance monitoring forsuch requirements. The exemption isunchanged from the proposed rule butfor a technical correction (to includeemission limits applicable to opt-inunits under section 410 of the Act).

—NESHAP standards for asbestosdemolition and renovation projects.These sources are exempt under part 70and are not required to obtain operatingpermits.

—NSPS standards for residentialwood heaters. These sources are alsoexempt under part 70 and are notrequired to obtain operating permits.

b. Exemptions in the Final Rule.Issues raised by comments on the 1993EM proposal prompted EPA to includecertain additional exemption provisionsin the final part 64 rule. The exemptionsthat were changed or added are:

—Emission limitations or standardsunder the NSPS program that areproposed after November 15, 1990. Thisexpands on the proposed rule, whichprovided for only the NESHAPexemption. Commenters suggested thatEPA exempt all NSPS, arguing thatexisting NSPS contain enhancedmonitoring requirements. The EPAdisagrees that this is the case for allNSPS. Existing monitoring of coveredunits and sources under some NSPSmay be sufficient to meet part 64requirements; however, the question ofsufficiency of any particular monitoringrequirement from a non-exemptstandard will have to be determined inaccordance with the requirements ofpart 64. Future federal rulemakings,including NSPS rulemakings, willsatisfy the monitoring requirements oftitles V and VII of the 1990Amendments (see preamble to 40 CFRpart 70, 57 FR 32278, July 21, 1992).The EPA intends to focus on includingmethods for directly determiningcontinuous compliance in these newfederal rulemakings where suchmethods are feasible. Only where suchapproaches are not feasible would theAgency consider using an approachsimilar to the CAM approach in suchrequirements. Since there will be nogaps in their monitoring provisions,EPA exempts future NSPS as well asNESHAP standards. The Agency notesthat this exemption does not apply toState emission limits or standardsdeveloped under section 111(d) of theAct.

—Emission limits that apply solelyunder an emissions trading programapproved or promulgated by EPA andemission cap requirements that meet therequirements of § 70.4(b)(12) or§ 71.6(a)(13)(iii) are exempt from part64. This exemption was developed inresponse to comments received on aprovision in the 1993 EM proposalwhich made certain ‘‘group[s] ofemissions units at a major source’’subject to enhanced monitoringrequirements. The 1993 EM proposal’spreamble suggested that this provisionapplied to emissions units involved insome form of ‘‘bubbling’’ or trading planwithin a single facility as well as tofugitive emission points for whichcompliance is evaluated on a process-wide or facility-wide basis.

The EPA received many comments onthe 1993 EM proposal that opposedapplying enhanced monitoring to


groups of emissions units. Severalindustry commenters believed thatapplying part 64 to groups of emissionsunits would be too inclusive and wouldapply enhanced monitoringrequirements to emissions units thatotherwise would fall below theapplicability threshold. Othercommenters predicted that applyingenhanced monitoring to groups ofemissions units would discouragesource owners or operators fromparticipating in emissions trading,aggregating, or similar programs. Someindustry representatives and State andlocal agencies also recommendedproviding an exemption in part 64 forsource owners or operators whoparticipate in programs such asRECLAIM in California’s South CoastAir Quality Management District.

The final part 64 rule addresses theseconcerns in a number of ways. First,both emission limits that apply solelyunder an emissions trading programapproved or promulgated by EPA andemission caps that meet therequirements of § 70.4(b)(12) or§ 71.6(a)(13)(iii) are explicitly exemptfrom part 64 under § 64.2(b)(1)(iv) and(v). By their nature, these types ofstandards require methods to confirmtrades or to calculate overall compliancewith the cap, taking into account thecontribution of emissions from allcovered units. These types of emissionlimits also often cover all emissionsunits at a facility, including those withextremely low amounts of emissions,those without control devices, and thosethat are not subject to other applicablerequirements. Because of the need toconsider the interrelationships amongunits covered by this type ofrequirement, the type of monitoring inpart 64 would not be appropriate.Instead, the Agency believes that theexisting requirements for monitoringcompliance with such standards shouldbe followed.

For instance, the requirements forstatutory economic incentive programs(40 CFR 51.490—.494) specify thequantification methods that must beincluded as part of any SIP economicincentive program developed pursuantto sections 182(g)(3), 182(g)(5),187(d)(3), or 187(g) of the Act. Inaddition, EPA has proposed revisions to§ 70.4(b)(12) to clarify that emissioncaps must include ‘‘replicableprocedures and permit terms that ensurethe emissions cap is enforceable andtrades pursuant to it are quantifiableand enforceable.’’ (59 FR 44460, August29, 1994). These provisions highlightthe need to include as part of anyemission trading or cap requirement theappropriate methods for quantifying

emissions and assuring that the trade orcap limitation is enforceable. TheAgency believes that the imposition ofpart 64 on these types of standardswould not provide any additionalbenefit.

In addition, other groups of emissionsunits are generally not subject tomonitoring requirements under part 64.Part 64 requirements apply only toindividual pollutant-specific emissionsunits that use a control device toachieve compliance and whose pre-control device emissions of anapplicable pollutant are equal to orgreater than the amount needed for aunit to be classified as a major source.Groups of emissions units are notaggregated for this determination, sosuch groups would not be subject to part64. In addition, fugitive emissions aregenerally not controlled through the useof control devices, so there is no needfor special applicability or monitoringprovisions for fugitive emission sources.

—Emission limitations or standardsfor which a part 70 permit alreadyincludes monitoring that is used as acontinuous compliance determinationmethod. In these instances, theregenerally is no need to require anyadditional compliance assurancemonitoring for that emission limitationor standard. There is one exception tousing this exemption. In some instancesa continuous compliance determinationmethod may be contingent upon anassumed control device efficiencyfactor. For example, a VOC coatingsource that includes add-on controlequipment that destroys VOC emissionsmay use an assumed control deviceefficiency factor for the controlequipment together with coating recordsto calculate compliance with an NSPSrequirement. In this example, a monthlycalculation generally is made usingcoating records and an assumeddestruction efficiency factor that isbased on the last control systemperformance test. In this example,§ 64.2(b)(1)(vi) does not allow theexemption from part 64 because theowner or operator must assure properoperation and maintenance of thecontrol device for the destructionefficiency factor to remain valid. TheAgency notes that this position isconsistent with the NSPS, whichgenerally require monitoring of thecontrol equipment in addition to themonthly compliance calculation in thistype of example. The Agency notes thatthe monitoring under part 64 does nothave to be included or otherwise affectthe existing continuous compliancedetermination method. In the coatingexample, direct compliance will still becalculated based on the approved

continuous compliance method. Part 64monitoring will be used to documentthat the control device continues tooperate properly and to indicate theneed to reestablish the destructionefficiency factor through a controldevice performance test.

This exemption also raises a questionabout what constitutes a ‘‘continuouscompliance determination method.’’Section 64.1 defines this type of methodas a means established in an applicablerequirement or a part 70 permit fordetermining compliance on acontinuous basis, consistent with theaveraging period for the applicablerequirement. The EPA has preparedinitial guidance that includes someexample of this type of monitoring. (Seedocket item A–91–52–VI–A–8 for a draftof this guidance.)

The Agency notes that if emissionlimitations or standards other than theexempt emission limits described aboveapply to the same pollutant-specificemissions unit, the owner or operatorwould still be subject to part 64 for thatpollutant-specific emissions unit andmay have to upgrade the existingmonitoring or add other types ofmonitoring. The Agency believes thatfor many situations in which bothexempt and non-exempt emission limitsapply to a particular pollutant-specificemissions unit, the monitoring for theexempt limit may be adequate to satisfypart 64 for the other non-exemptemission limit(s). Section 64.4(b)(4) ofthe rule recognizes this possibility andallows the owner or operator to meet theobligation to explain theappropriateness of its proposedmonitoring by stating that it isproposing monitoring for non-exemptlimits that is based on the monitoringconducted for certain types of exemptemission limits.

Examples of situations that mayinvolve both exempt and non-exemptlimits for the same pollutant-specificemissions unit include the following.One example would be a pollutant-specific emissions unit that is subject toboth a particulate matter limit andenforceable conditions to operate acontrol device within certainparameters. In this example, ifcompliance with the parameterconditions is determined by acontinuous compliance determinationmethod, that monitoring could be usedto provide a reasonable assurance ofcompliance with the particulate matterlimit, provided that the monitoringincluded all necessary parameters tosatisfy § 64.3(a). In contrast, anotherexample of multiple emissionlimitations or standards could be anemissions unit that is subject to a short


term emission rate limit and an annualthroughput limit that has a means fordetermining compliance with totalannual throughput. In this example,demonstrating compliance with theannual throughput limit is unlikely toassure that a control device used tocomply with the short term limitcontinues to perform properly, and theowner or operator may have to usedifferent or supplemental monitoring tosatisfy part 64.

As noted above, emission limitsestablished under the Acid RainProgram are exempt from part 64. TheAgency expects that the part 75monitoring required for Acid Rainsources likely will generate the datanecessary to comply with part 64 asapplied to other standards applicable tothe same unit. However, because part 64requires that CEMS data be reported interms of the applicable emission limit,the owner or operator may face someadditional requirements in order togenerate the data in terms of the othernon-Acid Rain emission limits thatapply (such as a lb/mmBtu SO2

standard).—Two exemptions provided for in the

1993 EM proposal have been eliminatedin part 64. The 1993 EM proposalincluded exemptions for NESHAPstandards for asbestos demolition andrenovation projects and NSPS standardsfor residential wood heaters. Thesesource categories are exempt under part70 and are not required to obtainoperating permits. Since part 64explicitly applies only to sourcesrequired to obtain a part 70 permit,separate exemptions for these sourcecategories are unnecessary in the finalrule.

—In addition to exempting certainemission limitations or standards, the1996 part 64 Draft also introduced anexemption for small municipal utilityemissions units in response to the largenumber of comments received on thisissue during the extended commentperiod on the 1993 EM proposal (over80 municipal power utilities submittedcomments on this issue). The exemptionapplies to small (under 25 megawatts)existing municipal utility emissionsunits that are exempt from the AcidRain Program and that supply power forsale only in peak demand or emergencysituations. As commenters pointed out,these units have historically low usagerates, but, because of their nature,owners or operators cannot acceptenforceable restrictions on the operationof these units for any particular yearwithout violating their contractualobligations. Thus, these units usuallyhave extremely high potential to emitvalues in comparison to actual

emissions. In addition, the Agency notesthat these units often are owned andoperated by small municipal authoritiesand that the actual emissions from theseunits are minimal in many cases. TheAgency therefore believes that a limitedexemption for these units is appropriate.

To qualify for the exemption, theowners or operators of these units mustinclude in their part 70 permitapplications documentation showingthat the unit is exempt from all of themonitoring requirements in 40 CFR part75, and showing that the emissions unitis operated only to provide electricityduring peaking hours or emergencies.This documentation should consist ofhistorical operating data and contractualinformation.

The owner or operator must alsodemonstrate that the emissions unit haslow annual average emissions. The rulerequires the owner or operator todocument that average annual emissionsover the last 3 calendar years ofoperation are less than 50 percent of theamount required to classify the unit asa major source. If less than 3 years ofhistorical data are available, the owneror operator can use such shorter timeperiod that is available as theappropriate look back period.

The Agency chose the 3-year period tobe consistent with the time frame usedunder the Acid Rain Program to definea peaking unit (see § 72.2). The 3-yearperiod used under the CAM approachrecognizes the similar circumstancespresented by these small municipalpower sources. The use of a 50 percentthreshold is consistent with EPA’sJanuary 1995 potential to emit transitionpolicy setting forth EPA guidance underwhich sources that have actualemissions well below title Vapplicability thresholds may avoid titleV permitting by documenting those lowactual emissions (see docket item A–91–52–VI–I–5 for a copy of this policy). Ifactual emissions exceed that 50 percentvalue, then the policy requires a sourceto obtain an enforceable restriction toreduce its potential to emit below thetitle V applicability threshold. TheAgency believes that the principlebehind that policy is equally applicablefor purposes of this part 64 exemption.Based on the information supplied incomments submitted by the affectedmunicipal utility companies, EPAbelieves that the vast majority of theemissions units under 25 megawattsoperated at these sources will qualify forthis exemption.

In response to the 1996 part 64 Draft,the Agency again received manycomments that argued for expansion ofthe municipal utility exemption to otherunits which have low actual emissions.

For example, the U.S. Small BusinessAdministration submitted for discussionat the September 10, 1996, meeting aproposal (SBA proposal) to excludeentirely from part 64 any unit withemissions between 50 percent and 90percent of the major source threshold sothat the resources that would otherwisebe spent on implementing part 64 forthose sources could be saved; further,the SBA comments included arecommendation that EPA give partialcredit for emission control measuresrather than determining applicabilitybased on total potential pre-controldevice emissions. The SBA proposalstated that this would eliminatepossibly thousands of sources that donot need to be covered by part 64 sincethe reasonable assurance can beobtained through the facilities’ ownrecords. A number of commentersspecifically expressed their support forthe SBA proposal and others statedgenerally that they were in favor of suchan exemption, arguing that any unit thatcan demonstrate a history of limitedusage and an expectation of continuedlimited usage should be exempted.

The EPA disagrees with the conceptof using actual emissions as the overallbasis for part 64 applicability or as thebasis for expanding significantly themunicipal utility exemption. First,actual emissions can vary with changesin production. More importantly, forunits with control devices, calculationsof actual emissions necessarily rely onassumptions about on-goingperformance that part 64 is intended toverify. Further, to assure that unitsremain under the major sourcethreshold is not the goal of part 64, but,instead, the goal of part 64 is to assurethat sources meet all applicablerequirements. Finally, because the typesof sources to which commentersreferred are unlikely to meet the controldevice applicability criterion of the finalrule, the Agency feels even morestrongly that the final rule will notsubject small units to inappropriatemonitoring. The Agency notes, however,that such units will remain subject tothe monitoring requirements in part 70,and may have to adopt new or modifiedmonitoring to comply with thoserequirements, even though part 64 doesnot apply.

4. Hazardous Air PollutantRequirements

Under the 1993 EM proposal, part 64would have applied to all emissionlimitations or standards establishedunder 40 CFR part 61 at any source thatis required to obtain an operating permitunder part 70. The proposed rulecontained an exemption, retained in


modified form in the final part 64 rule,for all hazardous air pollutant emissionsstandards promulgated pursuant tosection 112 of the Clean Air Act exceptfor those standards established in part61 prior to the 1990 Amendments to theAct.

After receiving substantial publiccomment on the applicability of part 64to hazardous air pollutants, the Agencyhas significantly modified its approachto HAPs under part 64. Hazardous airpollutant sources are no longer aseparate category subject to a differentapplicability test. Instead, hazardous airpollutant emissions limitations andstandards are treated the same as thosefor criteria air pollutants. Thus, ahazardous air pollutant-specificemissions unit is subject to part 64 onlyif it meets the applicability criteria setforth in § 64.2(a).

This approach is consistent with theAgency’s overall goal of streamliningpart 64. The EPA believes the final part64, in conjunction with other regulatoryprovisions, provides for sufficientmonitoring of hazardous air pollutantsources to both satisfy the statutoryenhanced monitoring mandate and tomeet the special concerns associatedwith regulating pollutants of this type.In addition, units and sources which donot meet the part 64 applicabilitythreshold will still be subject to part 61compliance monitoring and, ifapplicable, part 70 monitoring. Forthose units, EPA considers suchmonitoring sufficient to address thespecial concerns of regulating hazardousair pollutants.

With respect to emissions unitssubject to new hazardous air pollutantstandards under amended section 112 ofthe Act, EPA will include appropriatemonitoring requirements as part of thosenew hazardous air pollutant standards.Since part 64 monitoring for thesestandards would be needlesslyduplicative, such standards are coveredby the exemption in § 64.2(b)(1)(i). Thisapproach is consistent with EPA’sstatement in the July 21, 1992 preambleto 40 CFR part 70 that all futurerulemakings will have no gap in theirmonitoring provisions (see 57 FR32278).

C. Section 64.3—Monitoring DesignCriteria

Section 64.3 contains the designcriteria for satisfying part 64. Theselection and design of monitoring haveundergone revision in the final rule.Some of these revisions were necessaryto conform these provisions toapplicability and implementationrequirements under the final rule.Others have been made in response to

public comments on the monitoringdesign and selection requirements in the1993 proposed EM rule and subsequentdrafts of part 64. These revisions reflectboth the objective of providing areasonable assurance of compliancewith applicable requirements at lowercost than the 1993 proposed EM ruleand the Agency’s goal of developing amore simplified structure for part 64.The following section describes thespecific revisions to these provisionsand the Agency’s rationale for makingthese changes.

1. General Criteriaa. Overview. The general purpose of

the monitoring required by part 64 is toassure compliance with emissionstandards through requiring monitoringof the operation and maintenance of thecontrol equipment and, if applicable,operating conditions of the pollutant-specific emissions unit. A basicassumption of EPA air pollution controlrulemaking, at least under technology-based programs such as the NSPSprogram, is that an emission limitshould be established at a point wherea well operated and maintained sourcecan achieve the limit under all expectedoperating conditions using controlequipment that has been shown througha performance test to be capable ofachieving the emission limit. Thisdemonstration through a performancetest is conducted under conditionsspecified by the applicable rule or, if notspecified, generally under conditionsrepresentative of maximum emissionpotential under anticipated operatingconditions (generally, but not always, atfull load). Logically, therefore, once anowner or operator has shown that theinstalled control equipment can complywith an emission limit, there will be areasonable assurance of ongoingcompliance with the emission limit aslong as the emissions unit is operatedunder the conditions anticipated andthe control equipment is operated andmaintained properly. This logicalassumption is the basis of EPAstandard-setting under the NSPSprogram and serves as the model for theCAM approach as well.

For example, under 40 CFR part 60,subpart NN, Phosphate Rock Plants, thestandard for particulate matter isdetermined through Method 5 testing.The final preamble noted that certaincommenters believed that theparticulate emission limits ‘‘were toostringent to be achieved on a continuousbasis.’’ Upon review of the information,EPA revised the standard because itsevaluation ‘‘indicated that the proposedemission limits . . . could not beachieved continuously under all

operating conditions which are likely tooccur.’’ 47 FR 16584 (April 16, 1982).EPA then stated that ‘‘(a)s required bythe Clean Air Act, thepromulgated . . . emission limits arebased on the performance of the bestavailable control equipment on theworst case uncontrolled emission levels.The best control systems have beendemonstrated to be continuouslyeffective. Therefore, there should be noproblems achieving the standards if thecontrol equipment is properlymaintained and operated.’’ Id. at 16585.This example documents the closenexus of first demonstrating through aperformance test that the installedcontrol equipment is capable ofachieving the standard on a continuousbasis and then properly operating andmaintaining that equipment so as toprovide a reasonable assurance ofcontinuous compliance with thestandard.

In EPA’s Response to Remand inPortland Cement Association v.Ruckelshaus (see docket item A–91–52–VI–I–11), EPA further emphasized, in itsdiscussion on opacity, the importantrelationship between proper operationand maintenance and attainment of thestandards. The Agency stated, ‘‘[T]heopacity standards and maintenancerequirements were both promulgated,and work in tandem to guarantee thatproper maintenance and operation ofpollution control equipment, the sinequa non of continuous compliance withemission limits, can in fact be requiredand monitored.’’ (Response to Remand,p. 87.) EPA discussed the fact thatopacity standards provide enforcementagencies with a convenient indicator ofwhether pollution control devices arebeing properly operated andmaintained, and therefore whether thestandards are being met. (Response toRemand, p. 27–28.)

These examples point to theunderlying assumption that there is areasonable assurance of compliancewith emission limits so long as theemission unit is operated under theconditions anticipated and the controlequipment that has been proven capableof complying continues to be operatedand maintained properly. In most cases,this relationship can be shown to existthrough the performance testing withoutadditional site-specific correlation ofoperational indicators with actualemission values. The monitoring designcriteria in § 64.3(a) build on thisfundamental premise of the regulatorystructure.

Thus, § 64.3(a) states that units withcontrol devices must meet certaingeneral monitoring design criteria inorder to provide a reasonable assurance


of compliance with emission limitationsor standards for the anticipated range ofoperations at a pollutant-specificemissions unit. These criteria mandatethe monitoring of one or more indicatorsof the performance of the applicablecontrol device, associated capturesystem, and/or any processes significantto achieving compliance. The owner oroperator shall establish appropriateranges or designated conditions for theselected indicators such that operatingwithin the established ranges willprovide a reasonable assurance ofcompliance for the anticipated range ofoperating conditions. The requirementto establish an indicator range providesthe objective screening measure toindicate proper operation andmaintenance of the emissions unit andthe control technology, i.e., operationand maintenance such that there is areasonable assurance of compliancewith emission limitations or standards.Monitoring based on indicator rangesthat establish expected operatingconditions and the proper functioningof control technology should take intoaccount reasonably anticipatedoperating conditions and the processand pollution control device parametersthat significantly affect emission controlperformance. The Agency notes thatmonitoring which fails to take intoaccount significant process or controldevice parameters is unlikely to providethe reasonable assurance of compliancewith emissions limitations or standards.The Agency does not expect that suchparameters would normally includerecords of regular maintenance practices(e.g., periodic inspection andreplacement of parts); these records mayor may not be addressed in separatepermit conditions relative to part 70requirements. The Agency alsoemphasizes that a failure to stay withinthe indicator range does notautomatically indicate a failure tosatisfy applicable requirements. Thefailure to stay within an indicator range(over the appropriate averaging period,as discussed below) does indicate theneed for the owner or operator toevaluate and determine whethercorrective action is necessary to returnoperations within design parameters,and to act upon that determination asappropriate.

The use of operational data collectedduring performance testing is a keyelement in establishing indicator ranges;however, other relevant information inestablishing indicator ranges would beengineering assessments, historical data,and vendor data. Indicator ranges do notneed to be correlated across the wholerange of potential emissions. Criteria

developed in the design of the controlequipment for the emissions unit maybe used in establishing operatingindicator ranges. For example, theengineering specifications for a venturiscrubber installed to control particulateemissions from an affected unit mayinclude design operational ranges forliquid flow rate and pressure dropacross the venturi. Assume for thissimplified example that the scrubberdesign conditions are intended toachieve the desired emission reductionfor uncontrolled pollutant rates thatcorrespond to 120 percent of theaffected unit’s process design rate. Theresults of a performance test duringwhich the scrubber is operated withinthese design conditions and the processis operated at conditions representativeof high load (near 100 percent of processdesign rate) would be used to confirmthat operating within the designconditions, the design ranges for theliquid flow rate in conjunction with thepressure drop across the venturi,achieves the emission reduction desiredand provides a reasonable assurance ofcompliance across the anticipated rangeof process conditions for ongoingoperation.

Review of historical monitoring datamay also be used in defining anindicator range that provides areasonable assurance of compliancewith emission limits. Consider theexample of a process dryer equippedwith a low-energy wet scrubber forparticulate matter control. The scrubberexhaust gas temperature is indicative ofadequate water flow (as a result of theheat exchange between the dryereffluent stream and the scrubber water).However, since the inlet scrubber watertemperature is affected by ambienttemperature, the resulting scrubberoutlet temperature will be affected byambient conditions. Since the scrubberoutlet temperature will vary somewhatas a result of ambient temperature, itmakes sense to consider historical datafrom different seasons of the year whenestablishing the indicator range(maximum allowable exhausttemperature). In other words, if theperformance test were conducted in thespring, one should also consider thehistorical data from the summer months(when the exhaust temperature wouldbe expected to be slightly higher) whenestablishing the indicator range.

b. Possible Monitoring Methods.Section 64.4(a)(2) of the 1993 proposedEM rule stated that an enhancedmonitoring protocol could includeexisting, modified, or new monitoringsystems. It also contained a list ofpossible monitoring methods whichcould satisfy the rule. The basic

elements of this subsection have beenmoved in the final rule to the definitionof ‘‘monitoring’’ in § 64.1. The Agencyhas made several technical changes tothe list of monitoring methodologies inresponse to comments received. SeeSection II.A. and the Response toComments Document for furtherdiscussion.

c. Indicator Ranges or DesignatedConditions. Sections 64.3(a)(2) and (3)of the final rule require the owner oroperator of an affected pollutant-specificemissions unit to establish ranges ordesignated conditions of the indicatorsto be monitored. These ranges (e.g.,minimum to maximum parameter value)or conditions (e.g., specific fuel or rawmaterial type or control deviceadjustment) must be established at alevel where the monitoring can assesswhether there is a reasonable assuranceof compliance with applicablerequirements.

The addition of indicator rangerequirements to the general monitoringdesign criteria serves the objectives ofpart 64 and provides the permittingauthority and the owner or operator ofan affected source with informationabout the operation and maintenance ofcontrol measures in order to address anyproblems with that operation andmaintenance before an emissions unitfails to comply with applicablerequirements. An excursion from anindicator range or designated conditionindicates a potential problem in theoperation and maintenance of thecontrol device and a possible exceptionto compliance with applicablerequirements. The excursion signals, ata minimum, that the owner or operatorshould take appropriate correctiveaction to return operations within theestablished ranges. However, anexcursion from an indicator range doesnot necessarily constitute a failure tocomply with the underlying emissionslimitation or standard. See Section II.D.below for further discussion on thedegree of documentation required toestablish indicator ranges under thefinal rule.

Sections 64.3(a)(3)(i)-(iv) state thatranges may be set as follows: establishedas a single maximum or minimum valueif appropriate or at different levels thatvary depending on alternative operatingconditions; expressed as a function ofprocess variables; expressed asmaintaining the applicable parameter ina particular operational status; orexpressed as interdependent betweenmore than one indicator. These sectionsalso provide examples of how suchdifferent forms of ranges might beemployed. The description of what typeof indicators and indicator ranges may


be employed under part 64 is designedto have a great deal of flexibility. Thisallows owners or operators to developindicators and ranges that are mostappropriate for their affected emissionsunits, so long as the basic design criteriaof part 64 are met. The Agency is alsodeveloping guidance materials that willprovide more specific examples of thevarious forms indicator ranges may take.

d. Control Device Bypass. Anothermonitor design requirement in the finalrule addresses the possibility of controldevice bypass. Section 64.3(a)(2)requires that the monitoring be designedto detect any bypass of a control deviceor capture system, if such bypass canoccur based on the design of thepollutant-specific emissions unit. TheAgency believes this requirement isnecessary under the CAM approach.Only pollutant-specific emissions unitswhich use control devices to achieveregulatory compliance are subject topart 64. Part 64 monitoring generallywill consist of monitoring parameterscritical to the operation of those controldevices. The monitoring will not be ableto provide a reasonable assurance ofcompliance with applicablerequirements if air pollutant emissionsare potentially circumventing thecontrol devices and/or capture systemsbeing monitored. The Agency hastherefore added this requirement toensure that no emissions are bypassingthe control device or capture system.

The Agency notes that certaincomments on the 1996 part 64 Draftobjected to this requirement. Oneobjection was that it could be read torequire monitoring of ‘‘bypass’’ thatinvolves routine recycling of ventstreams to a process where the controldevice is used as a backup in case suchprocess recycling cannot occur. Thefinal rule adds the phrase ‘‘to theatmosphere’’ to clarify that onlybypasses which result in discharge tothe atmosphere require monitoring.Another concern was that whetherbypass monitoring should be required isoften negotiated as part of underlyingrulemakings and this requirement couldundo agreements reached on thoseunderlying rules. The Agency has addeda provision to clarify that bypassmonitoring is not required if anunderlying rule specifically providesthat it is not required for certainoperations or units. Finally, a concernwas raised that certain underlying rulesprovide for design features that obviatethe need for monitoring (such as the useof locking car seals). The final rulerequires bypass monitoring only if thebypass can occur based on the unit’sdesign. Where features such as lockingcar seals are used, the design of the unit

effectively prevents bypass and thusmonitoring would not be required.

e. Process and Capture SystemMonitoring. Commenters on the 1996part 64 Draft also objected to therequirement that the monitoring includeprocess monitoring if necessary toassure proper operation andmaintenance of the control device. Thefinal rule retains this requirement, butthe language has been rephrased toclarify that process monitoring must beconducted only as necessary todocument that the control equipment isbeing operated properly. The simplestexample would be throughputmonitoring to assure that the designcapacity of the control equipment is notexceeded. The Agency believes that thistype of monitoring is essential toassuring that the control equipment isused in accordance with its design andin a manner that will provide areasonable assurance of compliance.

Similarly, some commenters objectedto the monitoring of capture systems.The Agency believes that thismonitoring is essential for the samereasons as bypass and processmonitoring may be critical to assuringproper operation and maintenance ofcontrol equipment and providing areasonable assurance of compliancewith emission limits. If emissions arenot properly captured, those emissionswill be released uncontrolled. Thatresult likely would constitute asignificant compliance problem even ifthe control equipment itself was beingoperated and maintained properly. It isessential that the emissions which acontrol device is supposed to becontrolling are in fact sent to the devicefor control. Thus the Agency believesthat assuring that the capture system isproperly operated and maintained isalso essential.

f. Fugitive Emissions Monitoring.Under the 1993 EM proposal, fugitiveemission points for which compliance isevaluated on a process-wide or facility-wide basis were potentially subject topart 64 enhanced monitoringrequirements. Section 64.4(d) of theproposed rule would have establishedenhanced monitoring protocolrequirements for such fugitive emissionspoints. Many commenters raisedobjections to these provisions, arguingthat § 64.4(d) required eitherburdensome monitoring of emissionsfrom each fugitive emissions point orthe use of costly monitoring devices tomonitor fugitive emissions. The Agencydoes not necessarily agree with thesecomments, noting that proposed§ 64.4(d) was intended to allow for cost-effective multi-point monitoring ataffected fugitive emissions sources. The

final rule, however, applies only tothose emissions units for whichemissions are vented to a control device.By definition, fugitive emissions arethose emissions which cannotreasonably be vented through a stack,chimney, vent, or similar opening andthus will not be subject to part 64. Sincethere is no need for detailed fugitiveemissions monitoring requirementsunder the final rule, the provisions inproposed § 64.4(d) have beeneliminated.

2. Performance and Operating CriteriaThe final part 64, like the 1993 EM

proposal, requires that part 64monitoring be subject to minimumperformance specifications, qualityassurance and control requirements,monitoring frequency requirements, anddata availability requirements. Theserequirements assure that the datagenerated by the monitoring under part64 present valid and sufficientinformation on the actual conditionsbeing monitored. The final rule includesa series of performance and operatingdesign criteria in §§ 64.3(b) through (d).The Agency received substantial publiccomment on the performance andoperating criteria of the 1993 EMproposal, which were contained in aseries of four appendices. Manycommenters raised concerns that theorganization of the appendices wasconfusing. A number of commenterssuggested that the appendices requiredcertain monitoring options to achieveinapplicable specifications or did notprovide adequate guidance on therequirements for non-instrumentalmonitoring options. Commenters alsoraised a number of concerns specific toindividual requirements. Finally, a greatmany commenters argued that thereliance on detailed specifications in theappendices which focused on the use ofcertain monitoring methodologies, suchas CEMS, precluded the use of morecost-effective alternative methodologies,creating a strong bias for the use ofcontinuous emission monitoringmethodologies.

The Agency agrees with a number ofthose comments and has substantiallyrevised the performance and operatingcriteria in the final rule to address theconcerns they raised. Overall, theserequirements have been greatlystreamlined and simplified. There areno appendices to the final ruledelineating more detailed performanceand operating criteria. To assureconsistency with existing monitoringprograms, the performance criteria inthe final rule also reflect other federalmonitoring requirements, such as theNSPS general provisions in 40 CFR part


60 and the NESHAP general provisionsin 40 CFR part 63. The followingdiscussion addresses each of the keyperformance and operating criteria inthe final rule.

a. Data Representativeness. Section64.3(b)(1) of the final rule requires thatthe monitoring proposed by the owneror operator include location andinstallation specifications (if applicable)that allow for the obtaining of datawhich are representative of theemissions or parameters beingmonitored. Although this provisiondescribes no specific tests formonitoring plan acceptability, it doesestablish an objective duty to insure thatthe data collected are representative ofthe operations being monitored. Thisprovision is similar to the analogousrequirements included in appendix B ofthe 1993 EM proposal. It is alsoanalogous to the general monitoringprovisions applicable to all monitoringunder the NSPS program in § 60.13. TheAgency has added the phrase ‘‘ifapplicable’’ to clarify thatnoninstrumental monitoring approachesmay not require location or installationspecifications.

The 1993 EM proposal would haverequired owners or operators to‘‘[s]atisfy applicable performance,equipment, installation and calibrationgas specifications in accordance withthe specifications and proceduresprovided in appendices A and B of thispart.’’ The appendices then required allenhanced monitoring protocols tosatisfy generally applicable performancespecifications including relativeaccuracy requirements; maximum levelsof calibration error; measurement spanrequirements; response timerequirements; measurement techniqueprocedures; and requirements forequipment design, installation, andlocation. Many commenters observedthat the high level of specificityrequired in the proposed appendiceswould limit the types of monitoringprotocols that could be approved, whilemany other commenters argued that theperformance and operatingrequirements were too subjective whenapplied in the context of demonstratingcompliance with the 1993 EM proposedrule’s general monitoring requirements.The Agency believes that such detailedrequirements are unnecessary for thetype of monitoring that is required tosatisfy the final rule, but does believethat the general obligation to assure thatrepresentative data are obtained isnecessary in part 64 just as it is in otherprograms such as NSPS.

b. Verification of Operational Status.Section 64.3(b)(2) requires verificationprocedures to confirm the initial

operational status of new or modifiedmonitoring equipment. Theserequirements specify that the owner oroperator must consider manufacturerrequirements or recommendations forinstallation, calibration and start-upoperation. Owners or operators mustprovide documentation where themanufacturer’s procedures are notfollowed. The Agency notes that underthe NSPS program such manufacturerrequirements and recommendationsmust be followed. However, because ofthe breadth of part 64 applicability, theAgency believes that the more flexiblelanguage in § 64.3(b)(2) is appropriate,especially given that the submittalrequirements in § 64.4 will require thatthe owner or operator document thechanges it proposes.

Some comments on the 1996 part 64Draft stated that the requirements toverify operational status were overlyburdensome given that many units willrely on existing monitoring to satisfypart 64. The final rule clarifies thatverification of operational status isrequired only for units with new ormodified monitoring.

c. Quality Assurance and Control.Section 64.3(b)(3) of the final rulerequires quality assurance and controlpractices which are ‘‘adequate to ensurethe continuing validity of the data.’’This language ensures that monitoringunder part 64 will have to includeadequate procedures to document thatthe monitoring remains operational andcan provide suitable readings for thepurpose of measuring changes in controlperformance. Satisfying this generaldesign criterion should not be confusedwith the detailed quality assuranceprovisions required for monitors that areused to determine direct emission limitcompliance, such as appendix F to part60. The 1993 EM proposal generallywould have required compliance withappendix F for CEMS or comparablequality assurance requirements for othermonitoring approaches. Numerouscommenters expressed concerns aboutthe burdens of quality assurance underthe proposed EM rule. They pointed outseveral instances in the proposedappendices that appeared to establishpresumptions of daily calibrations forall types of enhanced monitoringprotocols or appeared to require overlyfrequent reverification of parametriccorrelations.

In contrast, the focus of the finalrule’s quality assurance requirements ison the minimum degree of ongoingquality checks that are necessary to relyon the data for purposes of indicatingwhether the unit remains in complianceand whether corrective action isnecessary. The Agency recognizes that

many types of monitoring which satisfythe final rule will not be based on thetype of sophisticated equipment that isprone to calibration drift and loss ofdata quality over time, and the revisedquality assurance provisions of the finalrule reflect this understanding. Therequired level of quality assurancediffers from certain existing qualityassurance procedures such as appendixF of 40 CFR part 60 for a CEMS. Withrespect to a CEMS, the generalrequirements for assuring ongoing dataquality that are contained in 40 CFR60.13 and the performancespecifications in appendix B of part 60(such as zero and span checks) provideadequate quality control checks for thepurpose of using the CEMS to indicatecontrol performance for providingassurance of compliance. This approachof requiring only limited qualityassurance is followed under the NSPSwhere a CEMS is not used as thecompliance test method for directcontinuous compliance monitoring. Fortypes of monitoring other than CEMS,ongoing quality control measures mustbe adequate to ensure that themonitoring remains operational and canprovide readings suitable for thepurpose of measuring changes in controlperformance that indicate possibleexceptions to compliance. An exampleof this type of requirement is thequarterly recalibration requirement in§ 60.683(c) for wet scrubber parametermonitoring at wool fiberglass insulationmanufacturing plants.

Again, the final § 64.3(b) directsowners or operators to considermanufacturer requirements orrecommendations in developing qualityassurance practices, and § 64.4 requiresthe owner or operator to document anychanges in recommended qualityassurance practices. The permittingauthority and others can then evaluatethe proposed procedures during thepermitting process.

d. Frequency of Monitoring. Section64.3(b)(4) of the final rule establishesthe general criteria for monitoringfrequency, data collection procedures(such as manual log entry, strip chart, orcomputerized collection procedures),and data averaging periods, if applicableto the proposed monitoring. The finalrule requires that the monitoringfrequency (including associatedaveraging periods) be designed to obtaindata at such intervals that are, at aminimum, commensurate with the timeperiod over which an excursion from anindicator range is likely to be observedbased on the characteristics and typicalvariability of the pollutant-specificemissions unit (including the controldevice and associated capture system).


In addition, the final rule specifiesminimum data collection frequency forpollutant-specific emissions units inaccordance with their potential to emit.For ‘‘large’’ pollutant-specific emissionsunits (i.e., those units with the potentialto emit the applicable pollutant emittedin an amount equivalent to or in excessof the amount established forclassification as a major source), themonitoring frequency generally mustsatisfy a design criterion of four or moredata values equally spaced over eachhour of operation. This minimum datacollection frequency is consistent withthe frequency established by the Agencyfor continuous monitoring systems.Note that a permitting authority mayreduce this minimum data collectionfrequency upon submission andapproval of a request prepared by theowner or operator, and the rule providesa non-exclusive list of situations inwhich less frequent monitoring ofcertain parameters may be warranted.Other pollutant-specific emissions unitsare subject to a less frequent datacollection requirement but some datamust be collected for every unit subjectto this rule at least once per day. Thefinal rule thus sets a monitoringfrequency standard appropriate to thefocus on detecting changes in controldevice performance which couldindicate possible noncompliance andfor which corrective action isappropriate.

For example, many types of controldevices are subject to rapid changes inperformance and thus the frequencydesign criterion could result in frequent,near continuous collection of parametricdata that are subsequently averaged overan appropriate period of time. ManyNSPS subparts require continuousparametric control device data, whichare then averaged over an appropriateinterval (often consistent with therequired minimum time for conductinga compliance test). Recent NESHAPhave required control device parametermonitoring for direct compliancepurposes. In these instances, a dailyaverage of continuous data (i.e., datarecorded at least every 15 minutes) isoften used (see, e.g., § 63.152(b)(2)). Forsome control devices, the intervalsbetween data collection points may beincreased. The Agency is in the processof developing guidance for part 64implementation, including examplemonitoring approaches. The guidancewill indicate how the frequency ofmonitoring, data collection procedures,and averaging of data points can varybased on the type of emissions unit andthe control device involved.

e. Data Availability. The 1996 part 64Draft rule included a presumptive

minimum data availability of 90 percentfor the averaging periods in a reportingperiod. The final rule does not includesuch a presumptive requirement optinginstead for affording the source owneror operator and the permitting authorityflexibility in establishing appropriatesite-specific conditions. Further, thefinal rule maintains the general dutyrequirement in § 64.7 that the owner oroperator shall maintain and operate themonitoring at all times the pollutant-specific emissions unit is operatingexcept for periods of monitoringmalfunctions, associated repairs, andrequired quality assurance or controlactivities (such as calibration checksand (if applicable) required zero andspan adjustments). This section of thefinal rule also requires that the owner oroperator shall use all the data collectedduring all other periods in assessing theoperation of the control device andassociated control system. Under thesavings provisions of § 64.10 of the finalrule, source owners or operators mustsatisfy any existing data availabilityrequirement established for monitoringassociated with a particular emissionlimitation or standard.

The 1993 EM proposal would haverequired that an enhanced monitoringprotocol satisfy any minimum dataavailability requirement that isapplicable to the monitoring under aseparate applicable emission limitationor standard pursuant to part 60 or 61 ofthis chapter. Where no existing dataavailability requirement would haveapplied, the proposed rule would haverequired the enhanced monitoringprotocol to satisfy a data availabilityrequirement that reflected obtainingquality-assured data for all emissionsunit operating time periods excluding afixed percentage of operating time thatthe owner or operator justified to thepermitting authority as necessary toconduct quality assurance procedures.The preamble to the proposed rulestated that the only acceptabledowntime under this requirementwould be the time necessary to performquality assurance testing and routinemaintenance. The primary concernexpressed in public comments on thedata availability requirement was thatthe default requirement failed to takeinto account the likelihood that somerepairs of instrumental componentswould be necessary even if the owner oroperator performed all routinemaintenance as appropriate. TheAgency believes that the general dutyrequirement in the final rule effectivelyaddresses the commenters’ concerns,while still assuring that the owner oroperator is responsible for collecting

data at all required intervals, exceptwhere downtime is necessary toconduct required quality assurance or torespond to malfunctions that could notreasonably have been prevented.

A number of comments on the 1996part 64 Draft objected to the 90 percentdata availability presumption. Manypointed to a number of applicablerequirements in which EPA has used 75percent as the required minimum dataavailability. Others argued that EPAfailed to present any data to documentthe reasonableness of the presumption.The Agency agrees with some of thecommenters that a presumptiveminimum data availability requirementmay not be not generally applicable;although, the general obligations tooperate the monitoring at all times withonly specific exception periods and tocollect and use all the data for reportingpurposes are universal. The final rulereflects this position and allows thesource owner or operator and thepermitting authority the flexibility tospecify a separate minimum dataavailability if justified or required undera separate rule.

3. Special Considerations for CEMS,COMS and PEMS

One method of assessing controlperformance is to calculate emission (oropacity) rates directly in order to tracktrends in emissions (or opacity) thatdocument decreased controleffectiveness. This type of monitoringcould include a continuous emission oropacity monitoring system (CEMS orCOMS) or a predictive emissionmonitoring system (PEMS) in whichvarious process and control parametersare evaluated to predict emissions.(Where this type of monitoring isspecified by the applicable standard tobe used to determine compliance withan emission standard or limitation on acontinuous basis, the requirements ofpart 64 do not apply to that emissionstandard or limitation. See§ 64.2(b)(1)(vi).)

The EPA believes that these types ofmonitoring are preferable from atechnical and policy perspective as ameans of assuring compliance withapplicable requirements because theycan provide data directly in terms of theapplicable emission limitation orstandard. Therefore, where suchsystems are already required,§ 64.3(d)(1) mandates that the design ofthe monitoring under part 64incorporate such systems. This meansthat source owners and or operatorswhose emission units have had CEMS,COMS, and/or PEMS imposed byunderlying regulations, emissionstrading programs, judicial settlements,


or through other circumstances mustuse those CEMS, COMS, and/or PEMSwhen complying with part 64 for thoseemissions units. Even where the use ofsuch monitoring is not mandated, theuse of any of these types of systems inaccordance with general monitoringrequirements and performancespecifications (or comparable permittingauthority requirements if there are norequirements specified for a particularsystem) will be sufficient for a CEMS,COMS or PEMS to satisfy generally thedesign criteria in § 64.3(a) and (b).

One exception to this general rule isthat if a COMS is used as a controlperformance indicator, and both aparticulate matter and opacity standardapply, the monitoring will have toinclude an indicator range satisfying§ 64.3(a)(2) and (3). Comments receivedin response to the 1996 part 64 Draftincluded the suggestion that COMS notbe subject to the requirement toestablish indicator ranges. The Agencyhas decided to retain this requirement.A CEMS or PEMS will provide data interms of the applicable pollutant andtherefore the process of identifying andreporting exceedances serves the samepurpose as an indicator range. Forassuring compliance with an opacitystandard, a COMS also achieves thisobjective. However, depending on thetype of control equipment being usedand the design of an emissions unit(especially stack diameter), opacitystandards are often established at a levelwhich represents a likely significantexceedance of the particulate matterstandard. In those circumstances, anopacity level below a required opacitystandard would be more appropriate asa CAM indicator. Therefore, the use ofa COMS may require an appropriateindicator range to be established that isdifferent than the applicable opacitystandard. The Agency notes that theaveraging period for such an indicatorrange would not necessarily have to beconsistent with the typical averagingtime of an opacity standard (i.e., sixminutes).

The final special design criterion fora CEMS, COMS or PEMS is to design thesystem to allow for reporting ofexceedances. Again, in many cases, thereporting requirements for exceedances(or excess emissions) will already beestablished in existing requirements.However, in some cases the owner oroperator, prior to implementing part 64,will not have continuous monitoringassociated with an applicable emissionlimit, and the underlying regulationmay not specify an appropriate timeperiod for averaging data to reportexcess emissions. For example, thissituation could arise in the example

provided above for a part 75 Acid RainCEMS being used to monitorcompliance with a SIP limit. In thiscircumstance, the owner or operatorwill have to design the system toinclude an appropriate period fordefining exceedances consistent withthe emission limitation or standard. Ifthe underlying applicable requirementdoes not require use of a specificaveraging period, the averaging periodshould be designed using the samecriteria as used for other part 64monitoring under § 64.3(b)(4).

There was a concern about aperceived bias towards continuousemission monitoring methodologies inmany public comments on themonitoring design and selectionprovisions of the 1993 EM proposal. Inaddition, many comments supported thenotion that existing monitoring shouldbe used wherever possible to reduce theburdens of part 64. Section 64.3(d)addresses both of these comment areas.It emphasizes the use of existingmonitoring where that monitoring on itsface is able to meet the part 64 designcriteria, but it clarifies that the rule doesnot mandate the use of CEMS insituations where such monitoring is notalready required. See also Section II.D.below which discusses in further detailthe potential use of existing monitoringto satisfy part 64.

Stakeholders commented that the1996 part 64 Draft rule did not addressprocedures for approving alternatives toCEMS or COMS as per the proceduresspecified in the general provisions of 40CFR parts 60, 61, and 63. The Agencyalready has procedures fordocumenting, reviewing, and approvingalternatives to performance test methodsand monitoring procedures. Part 64need not address these procedures. TheAgency recommends that source ownersor operators wishing to pursuealternatives to CEMS or COMS followexisting alternative methods processes.

4. Monitor FailuresSection 64.4(g) of the 1993 EM

proposal would have provided a defenseto violations of the data availabilityrequirement where an interruption ofthe normal operation of an enhancedmonitoring protocol was the result of amonitor failure or malfunction. Thissection would have operated inconjunction with proposed § 64.5(e) toestablish general notification andcorrective action requirements inresponse to monitor failures andmalfunctions. The proposed rule wouldhave provided a defense to dataavailability violations where thefollowing criteria were met: Themonitoring failure was the result of a

sudden and unforeseeable malfunction;the monitoring systems and procedureshad been properly operated andmaintained prior to and up to the timeof the malfunction; and the owner oroperator took all reasonable steps tominimize the period the monitoringsystem was inoperative.

This section has been eliminated inthe final rule. The Agency does notbelieve that there is a need for a dataavailability violation defense in part 64.The final rule does not require that thepermit establish a specific dataavailability requirement. Rather, theowner or operator is under a generalduty to operate the monitoring at allrequired intervals whenever theemissions unit is operating. The onlyexception to this duty is if theinoperation of the monitoring is causedby a monitor malfunction, associatedrepairs or required quality assurance orcontrol activities. Monitor malfunctionsare limited to those breakdowns whichoccur as a result of a sudden, infrequent,and not reasonably preventable failureof the monitoring to provide valid data.Monitoring failures that are caused inpart by poor maintenance or carelessoperation are not consideredmalfunctions. This approach is similarto the malfunction defense included inthe proposed rule, but does not entailthe elaborate procedural elements of theproposed rule. To the extent a particulardata availability requirement cannot beachieved for reasons that are no fault ofthe owner or operator, EPA believes thatthe proper use of oversight discretioncan account for those situations.

D. Section 64.4—SubmittalRequirements

Section 64.4 of the final rule outlineswhat information the owner or operatormust submit with a part 70 permitapplication to propose the monitoringapproach selected by the owner oroperator. The required information hastwo basic components: generalinformation necessary to justify theappropriateness of the proposedmonitoring; and information to justifythe appropriateness of the indicatorranges to be used for reportingexceedances or excursions.

1. General Information on the ProposedMonitoring

Section 64.4(a) first requires that theowner or operator identify the basicmonitoring approach and indicatorranges that will form the primaryelements of the monitoring, as well asthe key performance and operatingspecifications needed to meet the designcriteria in § 64.3. In submittingproposed indicator ranges, the owner or


operator can either submit the actualproposed ranges or the methodologythat will be followed to establish theindicator ranges.

Section 64.4(b) then requires that theowner or operator submit relevantinformation to justify the proposedmonitoring approach. The justificationcan rely on any available information,including appropriate referencematerials and guidance documents. If anexisting requirement already establishesmonitoring for the pollutant-specificemissions unit, the justification can relyin part on that existing requirement. Forcertain types of monitoring, noextensive justification should benecessary because the final rule createsa rebuttable presumption that themonitoring satisfies part 64. When anowner or operator relies on one of thesemonitoring approaches, all that initiallyshould be necessary is an explanation ofwhy the monitoring is applicable to theunit in question. These types ofmonitoring include CEMS, COMS, orPEMS; excepted or alternativemonitoring approaches allowed underpart 75; and continuous compliancedetermination monitoring or monitoringfor post-11/90 NSPS and NESHAPrequirements that are exempt under§ 64.2(b) but that may be applicable tothe control equipment for other non-exempt emissions limitations at thesame emissions unit. The reason for thispresumption is similar to the reason forexcepting from part 64 units that havesuch monitoring as their compliancedetermination method. The rule alsonotes that presumptively acceptable orrequired monitoring approachesestablished by rule by a State to achievecompliance with part 64 are deemedpresumptively acceptable. This lastoption is included to promote theadoption of State programmatic rulesdesigned to detail presumptivelyappropriate part 64 monitoring.

Finally, consistent with PanhandleProducers & Royalty Owners Ass’n v.Economic Regulatory Administration,822 F.2d 1105 (D.C. Cir. 1987), the ruleincludes as presumptively acceptablemonitoring, monitoring that is sodesignated by EPA through guidancedocuments. Such presumptivelyacceptable monitoring identified by EPAin guidance may also serve as modelsfor permitting authorities to consider inprogrammatic rulemaking. Generally,EPA intends to issue such guidanceonly after providing notice and seekingcomment on such monitoring. Afterconsidering comments received on themonitoring requirements for flares in 40CFR 60.18, EPA is designating, at thistime, that monitoring as presumptivelyacceptable. This designation is being

made in recognition that somepublished monitoring practices orprotocols provide sufficient design andmonitoring performance specificationsto satisfy CAM requirements while notfully satisfying the part 64 definition fora continuous compliance determinationmethod. Some presumptivelymonitoring protocols may includeprocedures for calculating compliancewith applicable emission limitations orstandards but have some portionssubject to CAM requirements (e.g.,monitoring to indicate a reasonableassurance that control device efficiencyis maintained at an assumed level) asindicated in § 64.2(b)(1)(vi) of the rule.

Reliance on presumptively acceptablemonitoring will relieve owners andoperators of the initial burden ofjustifying that the monitoring selectedsatisfies part 64. However, thispresumption of acceptability isrebuttable, and, if information orevidence rebutting the presumption isbrought forward, the owner or operatormust bear the burden of justifying thatthe proposed monitoring complies withpart 64. Final decisions as to theacceptability of monitoring rest with theinformed discretion of the permittingauthority, subject to permit review byEPA under 40 CFR 70.8, taking intoaccount any appropriate presumptionand all other relevant information anddata.

Finally, § 64.4(b) requires the owneror operator to identify and explain anychanges in manufacturerrecommendations or requirementsapplicable to installation, verificationand quality assurance of the monitoring.As explained above, the § 64.3(b) designcriteria allow for these differences eventhough EPA generally requires theowner or operator to comply with suchprovisions. This documentationrequirement is important to allow anappropriate evaluation of the reasons forchanging these manufacturerspecifications.

These submittal requirementsstreamline the similar requirements inthe 1993 EM proposal. First, § 64.7 ofthe proposed rule would have requiredthat a permit application incorporate aproposed enhanced monitoring protocolfor every applicable emission limitationor standard at each emissions unitsubject to the proposed rule. Thisprotocol would have had to containinformation about and supportingdocumentation for a number ofelements, including proposedperformance specifications, qualityassurance procedures, test plans forconducting performance verificationtests, and a list of all technologicallyfeasible monitoring methodologies

which could have been employed in theproposed protocol. Owners or operatorsof affected emissions units would havealso been required to identify newtechnologically feasible monitoringmethodologies when submitting apermit renewal application. Second,§ 64.4(e)(3) of the proposed rule alsocovered permit application submittalrequirements. That section would haverequired the owner or operator of anaffected emissions unit to submit as partof a permit application all of thedescriptions, explanations,justifications, and supporting datanecessary to justify that a proposedenhanced monitoring protocol couldsatisfy the requirements of the proposedrule. This section explicitly placed theburden of proof on the owner oroperator proposing an enhancedmonitoring protocol to show that theprotocol met the rule’s requirements.

A number of commenters raisedconcerns about these permit applicationrequirements. Some argued that thespecific information requested, such asinformation pertaining to a parametricrelationship, may not be available priorto installation of control technology andpermit issuance. Others contended thatthe requirements to include informationon all technologically feasiblemonitoring methodologies was anillustration of a perceived bias towardsthe use of costly continuous emissionmonitoring methods under the 1993 EMproposal. In response to some of theseconcerns and in furtherance of the goalof providing a reasonable assurance ofcompliance with applicablerequirements, the Agency has replacedthese detailed permit applicationrequirements with the provisionsdescribed above in the final rule.

Third, many industry commentersopposed the enhanced monitoringprotocol selection and proposalrequirements in § 64.4(f) of the 1993 EMproposal. The proposal would haveestablished a procedure for the selectionof enhanced monitoring protocols thatrequired owners or operators to justifythe use of a proposed enhancedmonitoring protocol over other availablemonitoring methodologies. Under thisproposed procedure, owners oroperators were first directed to consider‘‘established monitoring,’’ defined asmonitoring that had been previouslydemonstrated as a feasible means ofassessing compliance at a specificemissions unit. An owner or operatorcould propose to use the ‘‘bestestablished monitoring.’’ Thedetermination of which establishedmonitoring methodology was ‘‘best’’was intended to be an evaluation ofwhat type of monitoring was most


appropriate to determine continuouscompliance at a specific emissions unit.If no ‘‘established’’ monitoringmethodology could satisfy theperformance and operatingrequirements of the proposed rule,owners or operators could proposeadditions or modifications to anestablished form of monitoring. If noestablished monitoring methodologyapplied, or if the owner or operatorconsidered the established monitoringinappropriate, then an alternativemonitoring could be proposed. In thesecircumstances, the proposed rulerequired the owner or operator toidentify all monitoring methodologiesthat were technologically feasible for theparticular emissions unit, selecting fromthat list the ‘‘best’’ methodology for thatunit based on a site-specific assessment.

Commenters argued that therequirement to select ‘‘best monitoring’’would impose a ‘‘top-down’’ selectionprocess with a bias towards selection ofa CEMS or similar monitoring system.Several commenters contended that thelegislative history of section 114(a)(3)did not support a requirement that theapproved enhanced monitoring protocolbe the ‘‘best’’ available. Industrycommenters also stated that requiring anowner or operator who proposedalternative monitoring to list alltechnologically feasible monitoringmethodologies would imposeunnecessary costs and burdens. Most ofthose opposing the selection provisionssuggested that the rule should allow theowner or operator to propose anymonitoring that met the basicrequirements of the rule. In thealternative, many commenters suggestedmaking cost an explicit criterion in themonitoring selection process.

Under the CAM approach, the owneror operator may propose any monitoringthat can meet the design criteria in§ 64.3 of the final rule. Thus, thecomments regarding whether 1993 EMproposal imposed a top-down selectionhierarchy are no longer relevant.

In response to the 1996 draft part 64,some commenters objected to the needto submit a rationale or justification forthe proposed monitoring. The Agencydisagrees. This information will benecessary for the permitting authority,the public, and EPA to judge theappropriateness of the proposedmonitoring for satisfying the designcriteria in § 64.3. In addition, thisrequirement builds on similar regulatoryprecedents in the NSPS and NESHAPprograms. Under those programs, EPAhas routinely required the owner oroperator to submit a proposedmonitoring approach and supportingrationale where the owner or operator

intends to use a control device forwhich the underlying standard does notcontain 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 Draftalso raised concerns that the rule didnot contain any provisions promotingthe use of existing monitoring to satisfypart 64. Clearly, many existingmonitoring requirements include somedegree of monitoring that is used toindicate compliance throughdocumenting important operatingvariables. As such, these requirementsare generally consistent with the CAMapproach. Thus, §§ 64.3(b) and 64.4(b)specifically allow for the owner oroperator to design and justify proposedpart 64 monitoring applying or buildingon existing applicable requirements.The rule uses the phrase ‘‘in part’’because there is no assurance that theexisting monitoring necessarily satisfiesall of the part 64 design criteria. Asdescribed above, for certain monitoringthat the Agency believes already meetsthe part 64 design criteria categorically,the owner or operator is likely to be ableto rely completely on those regulatoryprecedents to justify the monitoringproposed to satisfy part 64. The Agencybelieves these provisions adequatelyprovide for the consideration of existingmonitoring and build upon the‘‘established monitoring’’ concept in the1993 EM proposal without thecumbersome selection process hurdlesincluded in that proposal.

Industry commenters on the 1996 part64 Draft proposed that the cost ofmonitoring that will provide areasonable assurance of compliance beconsidered in light of the reliability ofthe pollution control technology, themargin of compliance demonstrated forthe emissions unit, the emissionsvariability, and the reliability of themonitoring. State and local agencycommenters noted that a demonstrationof a credible relationship betweenparameter monitoring and actualemissions was primary in determining areasonable assurance of compliance.These agency commenters also listedreliability of monitoring, margin ofcompliance, and potential emissionsvariability as elements to consider insuch a demonstration. The Agencyagrees that part 64 should enable theowner or operator and the permittingauthority to consider these factors indeveloping and approving monitoring ina manner that both allows flexibility indesign and provides a reasonableassurance of compliance. As notedabove, the rule specifically allows forthe use and augmentation of existingmonitoring in lieu of developing and

installing completely new monitoringapproaches. Further, §§ 64.3(c) and64.6(a) of the final rule reference theevaluation factors mentioned by bothgroups of commenters to apply indeveloping and reviewing monitoring tomeet part 64 requirements. The Agencybelieves that in this manner, the owneror operator and the permitting authoritycan agree on cost-effective monitoringthat results in the reasonable assuranceof compliance required by part 64.

2. Documentation and Justification forIndicator Ranges

Section 64.4(c) of the final rulerequires that an owner or operatorpropose indicator ranges supported bydata obtained during the conduct of theapplicable compliance or performancetesting at the pollutant-specificemissions unit and supplemented, asnecessary, by engineering assessmentsand manufacturer’s recommendations.An owner or operator can satisfy thisrequirement with existing compliancetest method data, if applicable. The useof existing data is limited tocircumstances in which no changeshave occurred since the data wereobtained that could significantly affectthe conditions for which the indicatorranges were established since theperformance testing was conducted.Such significant changes include, butare not limited to, an increase in processcapacity, a modification to the controlsystem operating conditions, or achange in fuel or raw material type orchemical content. Because of theassurances provided throughrepresentative performance testing inconjunction with documentationprovided by the use of engineering andother information, the final rule alsoexplicitly states that testing over theentire indicator range or range ofpotential emissions is not required.

If site-specific compliance testingmethod data are unavailable, § 64.4(c)gives an owner or operator two options.Indicator ranges can be based on testingto be conducted pursuant to a test planand schedule for obtaining thenecessary data. An owner or operatormay also choose to rely on other formsof data to establish the proper indicatorranges. However, if the owner oroperator proposes to rely on engineeringassessments and other data withoutconducting site-specific compliancemethod testing, § 64.4(c)(2) requiressubmission of documentation todemonstrate that factors applicable tothe owner or operator’s specificcircumstances make compliance methodtesting unnecessary. Section 64.6(b)gives the permitting authority thediscretion to require compliance


method testing where necessary toconfirm the ability of the monitoring toprovide data that are sufficient to satisfypart 64.

These provisions are similar to but areless prescriptive than the comparableprovisions in the 1993 EM proposal aswell as less contingent upon a statisticalcorrelation between operationalparameters and emission levels. Section64.4(f) of the 1993 EM proposal wouldhave operated with proposed§ 64.4(b)(2) and appendix C to describeall requirements related to performanceverification testing under the 1993 EMproposal. Section 64.4(b)(2) of the EMproposal established a duty under theproposed rule’s general performanceand operating criteria to conductapplicable performance verification testprocedures in accordance withappendix C. Appendix C of the proposalcontained specifications on theprocedures to be used by an owner oroperator for validating therepresentativeness of a monitoringprotocol and the performanceverification procedures for continuousmonitoring systems. Section 64.4(f)would have required owners to submitwith a permit application a testschedule and test plan that describedthe procedures, reference methods, testpreparations, locations and otherpertinent information for all requiredperformance verification tests.

Section 64.4(b)(2) would haverequired an owner or operator whosought to include process or controldevice parameter monitoring in anenhanced monitoring protocol toconduct verification testing inaccordance with appendix C. Section 7of proposed appendix C described therequired procedures for testing thecorrelation between the parameter(s) tobe monitored and the applicableemission limitations or standards.Section 64.4(f)(1) of the proposed EMrule stated that a test plan for parametermonitoring correlation tests mustdescribe any significant process orcontrol device parameters not includedin the proposed enhanced monitoringprotocol and must demonstrate thatexcluding such parameters will notadversely affect the validity of thecorrelation. This section also wouldhave required the owner or operatorproposing the use of parametermonitoring to demonstrate the validityof the parameter correlation over thepotential range of facility operations.

Industry commenters had a number ofobjections to and suggestions forimprovement of the proposed rule’sperformance verification testingrequirements and related permitapplication requirements. To reduce

costs, some commenters suggested thatperformance verification tests shouldnot need to be conducted under part 64where adequate prior tests have beenconducted pursuant to anotherapplicable requirement. The Agencyagrees and has adopted this approach inthe final rule. A number of commentersexpressed concerns about the level ofdetail which had to be included in themonitoring verification test plan. TheEPA believes that the documentationprovisions of the final rule willgenerally not require the same level ofdetail that would have been requiredunder the proposed rule. Severalcommenters objected to the requirementto account in detail for all potentiallysignificant parameters whendocumenting parameter rangecorrelation testing. The Agency has notincluded a similar explicit requirementin the final rule’s documentation andtesting requirements for theestablishment of indicator ranges. TheAgency does note that an indicatorrange which fails to take into accountsignificant control device parameters isunlikely to provide the reasonableassurance of compliance with emissionlimitations or standards required by§ 64.3(a).

Finally, a number of commenters whosupported the availability of parametermonitoring under the proposed rulestated that the correlation testingrequirements would be difficult andexpensive to meet and woulddiscourage source owners or operatorsfrom using parameter monitoring. Inaddition, in response to the 1996 part 64Draft, a number of commenters opposedthe requirement to establish indicatorranges by conducting performance orcompliance testing. They asserted thatthis either was an improper attempt torevive the correlation requirements inthe 1993 EM proposal, or unnecessary toestablish the appropriate range for mostparameters.

As discussed above in Section II.C.,the CAM approach builds on thepremise that if an emissions unit isproven to be capable of achievingcompliance as documented by acompliance or performance test and isthereafter operated under the conditionsanticipated and if the control equipmentis properly operated and maintained,then there will be a reasonableassurance that the emissions unit willremain in compliance. In most cases,this relationship can be shown to existthrough results from the performancetesting without additional site-specificcorrelation of operational indicatorswith actual emission values. The CAMapproach builds on this fundamentalpremise of the regulatory structure.

However, as raised in the PortlandCement Response to Remand discussedin Section II.C., one difficult element ofusing ‘‘proper operation andmaintenance’’ as a regulatory tool is thepotential difficulty in determiningwhether proper operation andmaintenance has in fact occurred. Thus,a critical issue that the CAM approachmust address is establishing appropriateobjective indicators of whether a sourceis ‘‘properly operated and maintained.’’In developing the final rule, EPA lookedto past regulatory experience indeveloping a balanced approach toestablishing indicator ranges and usingthe monitoring to assure complianceperformance.

In proposing the operation andmaintenance requirements in 40 CFR60.11(d), EPA required that owners oroperators maintain and operate theirfacilities ‘‘in a manner consistent withoperations during the most recentperformance test indicatingcompliance.’’ 38 FR 10821, May 2, 1973.The obvious rationale behind thisoriginal language was that if the sourcewas in compliance during the test, andit continued to operate its equipment asit was operated during the test, therewas a reasonable assurance that thesource would remain in compliance.This language, however, was revisedwhen the rule was promulgated onOctober 15, 1973. In the preamble to thepromulgated rule, EPA explained thatthe language was changed because ofcomments which questioned ‘‘whetherit would be possible or wise to requirethat all of the operating conditions thathappened to exist during the mostrecent performance test be continuallymaintained.’’ 38 FR 28565. The EPAtherefore revised § 60.11(d) to requirethat source owners or operators operateand maintain their pollution controldevices ‘‘in a manner consistent withgood air pollution control practices forminimizing emissions.’’ Id.

This regulatory history argues againsta strict requirement that part 64 requireindicator ranges to be related exactly tothe operating conditions that existedduring a performance test. However, inmany NSPS subparts, and more recentlyin MACT standards, EPA generally hasrequired that operation andmaintenance indicators be establishedduring an initial performance test, withsome allowance for adjusting theindicator values observed during thetest. For instance, where a thermalincinerator is used to comply with aVOC emission limit, the NSPS subpartsusually require the owner or operator toestablish a baseline temperature valueas an indication of whether theincinerator is properly operated and


maintained. The baseline temperaturevalue is established at a value 50degrees Fahrenheit below the averagetemperature recorded during the mostrecent performance test (see, e.g., 40CFR 60.615(c)(1).) In recent MACTexamples, EPA has required theindicator ranges to be established duringperformance testing, but with anallowance to supplement theperformance test data with engineeringassessments; in addition, the MACTrequirements often state that testingacross the full range of operatingconditions is not required where theindicator range is subject to review andapproval. (See, e.g., 40 CFR 63.654(f)(3)(ii)(A) and 63.1334(c).)

Based on these NSPS and MACTexamples, the presumptive approach forestablishing indicator ranges in part 64is to establish the ranges in the contextof performance testing. To assure thatconditions represented by performancetesting are also generally representativeof anticipated operating conditions, aperformance test should be conductedunder conditions specified by theapplicable rule or, if not specified,generally under conditionsrepresentative of maximum emissionpotential under anticipated operatingconditions. In addition, the rule allowsfor adjusting the baseline valuesrecorded during a performance test toaccount for the inappropriateness ofrequiring that indicator conditions stayexactly the same as during a test. Theuse of operational data collected duringperformance testing is a key element inestablishing indicator ranges; however,other relevant information inestablishing indicator ranges would beengineering assessments, historical data,and vendor data. Indicator ranges do notneed to be correlated across the wholerange of potential emissions.

Finally, because the emissions unitssubject to part 64 will not necessarily beundergoing performance testing absentpart 64 (unlike the comparable unitssubject to initial compliance testingunder the NSPS and MACT programs),the rule does not require establishmentof indicator ranges during complianceor performance testing but ratherpresumes the appropriateness of doingso. The Agency believes that thisapproach makes part 64 consistent withunderlying regulations but withappropriate alternatives that reflect thedifferent universe of emissions unitssubject to part 64.

E. Section 64.5—Deadlines forSubmittal

The final rule establishes twoalternative schedules for implementingpart 64 depending on the size of the

pollutant-specific emissions unitinvolved. Under § 64.5(a), ‘‘large’’pollutant-specific emissions units aresubject to the shortest implementationtimetable. ‘‘Large’’ units are those thathave the potential to emit (aftercontrols) the applicable pollutant at orabove the major source threshold. If theowner or operator has not submitted thepermit application for the applicablesource prior to April 20, 1998, theowner or operator must submitproposed part 64 monitoring in the nextpart 70 permit application. If a permitapplication has been submitted by therule’s effective date, but the permittingauthority has not yet determined by thatdate that the application is complete,the owner or operator will have tosupplement the application with therelevant information required underpart 64. If the application has alreadybeen found complete, then the part 64information will generally not have tobe submitted until the next permitrenewal application. In the interim, themonitoring requirements adopted bypermitting authorities in response to therequirements in part 70 will continue toapply.

There are two circumstances whereinformation must be submitted prior tothe next permit renewal application.First, if the owner or operator submitsan application for a significant permitmodification after April 20, 1998, theowner or operator must submit theappropriate part 64 information for anypollutant-specific emissions unit(s)covered by the modification. Thisrequirement will assure that significantpermit revisions affecting particularemissions units are not considered in apiecemeal fashion and that part 64 isimplemented as quickly as reasonablypracticable. In response to comments onthe 1996 part 64 Draft, the Agency haslimited this provision to only significantpermit revisions so that part 64requirements will not impede permitrevisions made under expedited permitrevision processes, such asadministrative amendments, notice onlychanges, or de minimis permit revisionprocedures that are under considerationby the Agency. Second, if the permitapplication has been found completebut the permit has not issued, and theowner or operator proposes to revise theapplication to include a change of a typethat would have been subject to thesignificant permit revision process, hadthe permit been issued, then the owneror operator must include part 64required information for the pollutant-specific emissions unit(s) identified inthe application revision. Thiscircumstance triggers part 64

implementation because this type ofpermit application revision wouldrequire a second completenessdetermination by the permittingauthority, and the implementationprovision of § 64.5(a)(1)(ii) would beapplicable.

Also in response to comments, thefinal rule does not include a provisionin the 1996 part 64 Draft that wouldhave required implementation prior topermit renewal for certain permitapplications being processed under apart 70 transition plan for initial permitissuance. The Agency believes that thisprovision unnecessarily complicates thepart 64 implementation process. TheAgency also notes that the current part70 monitoring provisions will continueto apply in the interim if part 64 is notimplemented until permit renewal.

For the remaining smaller pollutant-specific emissions units, part 64implementation is delayed until permitrenewal. This approach was suggestedin many comments as one way to reducethe implementation burdens of the rule.Such an approach will also allowpermitting authorities and owners oroperators to gain experience withimplementing part 64 for the largestemissions units before having to addressthe more numerous, but in terms ofoverall site emissions, less significant,smaller units. As noted above,permitting authorities can use the delayin implementation to developprogrammatic requirements that can berelied on in proposing and approvingpart 64 monitoring; this approach willbe of the most benefit for the smalleremissions units that can use thesegeneric requirements to reduce theburdens of part 64.

The phased-in implementationapproach embodied in the final part 64rule is a departure from theimplementation schedule in the 1993EM proposal. The effective date of theproposed rule was to be 30 days afterpublication of the final rule in theFederal Register. The proposed rule didnot specify how operating permitsissued prior to the rule’s effective datewould be treated. The preamble to theproposed rule suggested that thesesituations would be covered by 40 CFR70.7(f)(1)(i). Section 70.7(f)(1)(i) requiresthat an operating permit be reopened toaddress an applicable requirementwhich becomes applicable during thepermit term if the permit has aremaining term of three or more years.Thus, under the proposed rule, theowner or operator of any facility with anoperating permit that had a remainingterm of three or more years after theeffective date of part 64 would havebeen required to reopen the permit and


provide the required part 64information.

The Agency considered relying onthis part 70 provision to set theimplementation schedule for the rule,but chose to adopt the phased-inapproach described above. Thus, theprovisions in § 64.5(a) supersede thelanguage of § 70.7(f)(1)(i). The part 70approach would have required that agreat many operating permits bereopened as soon as the rule becameeffective, while the phased-in approachinitially focuses on new permitapplications. The former is thereforemore likely to cause initial burdens anddelays in the permitting program. TheAgency believes that the extendedimplementation timetable resulting fromthe phased-in approach is better suitedto facilitating implementation throughthe operating permits program. In theDecember 1994 notice reopening the1993 EM proposal for comment, EPAdiscussed the possibility of using aphased-in implementation approach aswell as a ‘‘hammer’’ provision, whichwould have required enhancedmonitoring to be implemented by allaffected sources by January 1, 2000.Multiple commenters expressedconcerns that an absolute deadline ofthis type would cause systemic logjamsand delays in the operating permitsprogram because it could requirenumerous permit revisions orreopenings outside of the normal permitrenewal process.

In lieu of a ‘‘hammer’’ provision andto clarify that the monitoringrequirements of part 70 applyirrespective of the part 64 requirements,the Agency has added explicit languageto the rule stating that prior to approvaland operation of part 64 monitoring,part 70 monitoring requirements apply.These part 70 monitoring requirementscontinue to apply even after approvaland operation of part 64 monitoring;however, because part 64 containsapplicable monitoring requirementssufficient to demonstrate compliancewith applicable emission limitations orstandards, the part 64 monitoringrequirements can serve in the place ofpart 70 monitoring requirements.

F. Section 64.6—Approval of Monitoring

Consistent with the part 64implementation approach, § 64.6requires the permitting authority toapprove or disapprove the monitoringproposed by the owner or operator. Thefollowing discussion highlights the keyelements of this section and the keyissues raised during development of therule.

1. Approval and Permit Incorporation

If the monitoring is approved, thepermitting authority must act inaccordance with § 70.6(a)(3) to includeappropriate permit terms that reflect thepart 64 monitoring requirements. Therequirements that must be reflected inthe permit are: the monitoring approach(including the basic method,appropriate performance specifications,and required quality assurance checks),any specific data availabilityrequirements, the indicator range(s), anda general statement that the owner oroperator will conduct the monitoring,submit reports, maintain records, and, ifapplicable, identify any QIP obligations,all as required by §§ 64.7 through 64.9.

It is important to note that the ruleprovides for two different options forincorporating indicator range(s) in thepermit. First, the actual range can beincluded (such as maintainingtemperature of an incinerator at orabove a specific number). Second, thepermit can include a statement thatdescribes how the indicator range willbe established (such as ‘‘The incineratorwill be maintained at a temperature ator above a temperature which is 50degrees Fahrenheit lower than thebaseline temperature recorded duringthe most recent performance test.’’).This latter type of condition wouldallow for reestablishment of theindicator range without the need for apermit modification. Severalcommenters raised concerns that therewould be a need for changes to indicatorranges, especially near the beginning ofthe program, and that requiring permitmodifications for all such changeswould be burdensome and unwieldy.The Agency agrees and believes thislatter option addresses the commenters’concerns while still providing adequatepublic comment and review on theestablishment of indicator ranges atspecific sources. If this type of approachis used, the permit would also need tospecify how the permitting authoritywill be notified of the currentlyapplicable indicator range(s).

These provisions are generally thesame as required in § 64.8 of the 1993EM proposal, although the requirementshave been modified to reflect thechanges in the design criteria for themonitoring required by part 64. The1995 and 1996 part 64 Drafts includedmore elaborate conditions than areincluded in the final rule, includingcertain enforceability components thatthe Agency does not believe arenecessary for effective implementationof part 64. These deleted componentsinclude provisions in the 1996 part 64Draft that would have enabled apermitting authority to establish anindicator range as an enforceable

condition and that would haveestablished a second QIP during apermit term as a permit violation.

Whether the failure to meet anindicator range is an enforceableviolation will be a matter of examiningthe relevant underlying applicablerequirements, as well as the ability ofthe permitting authority to establish thattype of requirement as a federally-enforceable element of a permitpursuant to approved SIP authority or asa State-only requirement pursuant toState law. As described above, forpurposes of part 64, § 64.6 clarifies thatthe indicator ranges or the means bywhich they are to be established are tobe included in the permit to indicatewhen an owner or operator is requiredto report excursions or exceedances. Inaddition, it should be noted that § 64.7establishes the independent obligationfor the owner or operator to takeappropriate corrective action inresponse to excursions or exceedancesthat occur.

The Agency also decided to delete thedraft requirement that a second QIPduring a permit term constitutes aviolation. This provision was widelycriticized by both industry and Statecommenters. The Agency hadspecifically noted in the discussionaccompanying the 1996 part 64 Draftthat it was concerned that this approachmay not be appropriate. As discussed inSections II.G. and H., the final rule,consistent with the precedent of 40 CFR60.11(d), provides for the general use ofpart 64 data and other information todocument that the owner or operatorhas failed to operate and maintain anemission unit properly and provides forthe QIP mechanism as one option foraddressing situations in which such afailure has occurred. In that respect, anytime a QIP is required there will be anunderlying finding that the owner oroperator has failed to take appropriateaction and may be subject toenforcement for that violation. Thus,there is no need for the final rule toinclude separate enforcementconsequences related to multiple QIPs.

The Agency notes that manycommenters on the 1996 part 64 Draftsuggested that the rule would imposetoo many permit requirements and thatthe permit should merely state thatcompliance with part 64 is required andthat the owner or operator will takeappropriate action in response to thedata. Commenters pointed to therequirements for startup, shutdown,malfunction plans (SSMPs) under part63 and section 112(r) risk managementplans (RMPs) required under part 68 asexamples of this approach to referencing


applicable requirements in a part 70permit.

The Agency disagrees with theapproach suggested and the use of theSSMP and RMP examples cited in thecomments. The two examples bothinvolve plans which an owner oroperator is required to develop inaccordance with general criteria butwhich are not subject to approval,although there are provisions whichallow EPA or the permitting authority torequire changes in the plans undercertain conditions. (See 40 CFR63.6(e)(3) and 68.220.) The Agencynotes that it proposed this concept toimplementing part 64 in the 1995 part64 Draft but that numerous commentersopposed this approach because therewould be no final approval process forthe monitoring. (See § 64.3(c) of the1995 part 64 Draft and the comments in,for example, VI√D–38 and 45). Manycommenters then seemed to request thatEPA use the SSMP or RMP approachafter reviewing the 1996 part 64 Draft.

After evaluating all of the comments,the Agency believes that part 64monitoring should be incorporated intopermits in the same fashion as all otherrequired monitoring. The followingdiscussion provides a list of the variouscomponents of the basic monitoringapproach that need to be incorporatedin the permit. To provide a practicalexample of what the ‘‘basic monitoringapproach’’ entails, the followingexample is based on the use ofincineration to control TRS emissionsfrom certain affected facilities at kraftpulp mills (see 40 CFR 60.280 et seq.);the example is intended to indicate thelevel of detail required, and notnecessarily the appropriateness of theexample monitoring for satisfying part64: ‘‘Company A will monitor thecombustion temperature in theincinerator at the point of incinerationof the effluent gases. Combustiontemperature will be recordedcontinuously during all periods ofincinerator operation using a strip chartrecorder. Company A will use a 5-minute rolling average of combustiontemperatures to determine whether anexcursion from (combustiontemperature limit or range) hasoccurred. The thermocouple used todetermine the temperature will beaccurate to within 1 percent of thetemperature being measured. CompanyA will conduct daily operational checksof the thermocouple, strip chartrecorder, and the temperature recordingprocess system. Company A willconduct an annual accuracy check ofthe temperature measurement andrecording system.’’ This examplemirrors the basic monitoring

information required under the relevantportions of subpart BB. Anotherexample that might apply in other casescould include a permit condition which:(1) Identifies the pollutant-specificemissions unit, (2) states that the owneror operator will install, operate,maintain and reduce data from a CEMSfor that pollutant in accordance withboth the general provisions in 40 CFR60.13 and the applicable performancespecifications in appendix B to 40 CFRpart 60; and (3) specifies the appropriateperiod for averaging data to determine ifan exceedance occurs. That type ofpermit condition would address thecomponents of the basic monitoringapproach identified above.

As noted in the above examples, thereis no substantive difference for how anowner or operator will be required toaddress existing monitoring in a permitversus part 64 monitoring. For the oneelement of the monitoring (indicatorranges) which the owner or operator ismost likely to need to adjust, especiallyat the beginning of the program, thefinal rule includes the option discussedearlier that can provide the necessaryflexibility to adjust indicator rangeswithout the need for a permit revision.Thus, EPA believes that the level ofdetail required in the permit isappropriate and consistent with thelevel of detail originally included in the1993 EM proposal and required forexisting monitoring.

2. Approval Prior to Installation and/orVerification

A number of those commenting on the1993 EM proposal expressed concernsabout the costs of installing equipmentand performing testing for proposedmonitoring prior to approval in thepermit. The Agency understands that anowner or operator may be unwilling toproceed with such installation, testing,or other monitor verification activitiesuntil after the proposed approach tocomplying with part 64 is approved.Under the final rule, these activitiesmay be completed after approval of themonitoring. The owner or operator mustpropose a schedule for making themonitoring operational as expeditiouslyas practicable after approval (see§ 64.4(e)) and then the permit mustinclude an enforceable schedule withmilestones that reflect the approvedschedule. The schedule must providefor the monitoring being fullyoperational as expeditiously aspracticable, but in no event more than180 days from the date of issuance ofthe final permit. The generalrequirements in § 64.7 to operate themonitoring in accordance with part 64

will not apply until the final verificationis complete.

3. Conditional Approval of theMonitoring

Under § 64.6(b), the permittingauthority may condition the approval onthe owner or operator collectingadditional data on the indicators to bemonitored for a pollutant-specificemissions unit, including requiredcompliance or performance testing, toconfirm the ability of the monitoring toprovide data that are sufficient to satisfythe requirements of this part, and toconfirm the appropriateness of anindicator range(s) or designatedcondition(s) proposed to satisfy thedesign criteria in the rule. Suchconditional approval should also beconsistent with the requirement in therule that monitoring be designed,installed, and begin operation within180 days of permit approval.

4. Disapproval of the MonitoringIf a permitting authority determines

that the monitoring proposed by anowner or operator fails to satisfy part 64,the permit must include monitoring thatat a minimum meets the monitoringprovisions in part 70. Moreover,§ 64.6(e)(2) requires the permittingauthority to impose a compliance planrequirement in the permit which directsthe owner or operator to reproposemonitoring in accordance with §§ 64.3and 64.4 within no more than 180 daysafter disapproval. Under § 64.6(e)(3), theowner or operator will be innoncompliance with part 64 if: (1) Theowner or operator fails to submitmonitoring within the requiredcompliance schedule; or (2) thepermitting authority disapproves themonitoring submitted, subject to theowner or operator’s right to appeal anysuch disapproval. Note that the decisionto disapprove the initially proposedmonitoring would also constitute finalagency action for purposes of appeal.

This disapproval process was impliedbut not explicitly addressed in the 1993EM proposal or the subsequent drafts ofpart 64. However, comments on theseearlier versions of the rule did raiseconcerns about when an owner oroperator could appeal a decision as tothe monitoring and whether apermitting authority could insert in thepermit the monitoring which thepermitting authority believes should beused. The Agency believes that in mostcases, the permit process providesample opportunity for the permittingauthority and the owner or operator toconfer about the appropriate monitoringto satisfy part 64 and agree upon anapproach, with public and EPA review,


without having to reach the point ofdisapproving the monitoring in the finalpermit action. Nevertheless, the Agencyalso believes that the final rule shouldclarify how a monitoring disapprovalwill be handled.

The Agency notes further that, unlikethe procedures for most applicablerequirements, the part 70 permit processwill be used as the process forapproving the specific monitoring thatis used to satisfy part 64. In that respect,the part 70 process will be essential toassuring adequate public, permittingauthority, and, as necessary, EPA inputon part 64 monitoring. The Agencybelieves that the approval/disapprovalprocedures in the final rule highlightthis important aspect of part 64 and willprovide for adequate public and EPAreview of the monitoring used to satisfypart 64.

5. Permit ShieldThe Agency notes that, after approval

of the part 64 monitoring in a permit,the permit shield provisions in part 70may extend to the part 64 monitoringapproved in the permit. A significantarea of comment on the 1993 proposedEM rule was the effect of implementingpart 64 on these permit shieldprovisions. Some commenters wereconcerned that the linking of part 64and the permitting process wouldhamper the timely processing ofpermits, and in some cases, result in theloss of the permit application shield.The Agency has addressed theseconcerns in the changes to theimplementation schedule of the finalrule. Other commenters suggested thatthe non-specific nature of part 64monitoring requirements could lead to asituation where the permit shield couldbe lost even if the monitoring wasoriginally developed in good faith andwas approved by the permittingauthority. These commenters arguedthat if such monitoring is laterdetermined to be inadequate by thepermitting authority or the owner oroperator, there should be a process forcorrecting the monitoring withoutfinding the owner or operator inviolation of the general part 64substantive requirements.

EPA believes that, if a permittingauthority extends the permit shield tothe monitoring requirements includedin an operating permit, the owner oroperator will be shielded from anyretrospective action based on a claimthat the monitoring approved in thepermit fails to satisfy part 64requirements. This protection is onlyavailable so long as the owner oroperator conducts the monitoring inaccordance with the permit. Also, the

shield will not prevent the permittingauthority or the EPA from reopening thepermit if, after approval, the permittingauthority or the Agency finds cause toreopen the permit based on a deficiencyin the approved monitoring.

Where an owner or operator discoversthat the originally approved monitoringis inadequate, the final rule does requirethe owner or operator to correct thedefect in the monitoring expeditiously.Section 64.7(e) requires an owner oroperator to promptly notify thepermitting authority and submit aproposed modification to the source’spart 70 permit under at least twocircumstances. First, if the owner oroperator documents that a violation ofan emission limitation or standardoccurs but the part 64 monitoring failedto indicate an excursion or exceedancefor the same period, there will be a needto address that type of deficiency.Second, if the results of performance orcompliance testing document a need tomodify the approved indicator ranges,that type of correction will also berequired. The appropriate permitmodifications may include monitoringadditional parameters, increasingmonitoring frequency, reestablishingindicator ranges, or other changesappropriate for the circumstances.

G. Section 64.7—Operation of ApprovedMonitoring

1. General Conduct of Monitoring

As soon as the permitting authorityhas approved the operating permit,§ 64.7(a) requires the owner or operatorof an affected source to beginconducting monitoring of the source inaccordance with the permit. If thepermit includes a scheduled date for thecompletion of testing, installation, andfinal verification of the approvedmonitoring pursuant to § 64.6(d), thenthe owner or operator is not required tobegin conducting monitoring until thatcompletion date. This provision doesnot excuse the owner or operator fromcomplying with monitoring requiredunder separate authority if themonitoring being used to comply withpart 64 is also required under thatseparate authority.

Section 64.7(b) requires an owner oroperator to properly maintain theapproved monitoring. The provisionstates that the maintenance andoperation obligations include anobligation to maintain necessary partsfor routine repairs of the monitoringequipment.

Under § 64.7(c), the monitoring mustbe conducted continuously or shallcollect data at all required intervalsduring emissions unit operating periods

unless the monitoring cannot beconducted because of monitormalfunctions, associated repairs orrequired quality assurance or controlactivities (including, as applicable,calibration checks and zero and spanadjustments). Data collected duringsuch periods is not to be used forpurposes of part 64, including dataaverages and calculations, or fulfilling adata availability requirement. Datarecorded during all other periods is tobe used in assessing the operation of thecontrol device and associated capturesystem.

The Agency notes that therequirements in §§ 64.7(b) and (c) aregenerally consistent with monitoringrequirements promulgated under theNSPS program (see 40 CFR 60.13(e)) andthe new NESHAP program (see 40 CFR63.8(c)(1) and (4)). The obligation tokeep parts necessary for routine repairsis based on a similar requirement in§ 63.8(c)(1). The requirement that part64 monitoring be operational duringemissions unit operation except duringmonitor malfunctions and similarevents is consistent with § 60.13(e) and§ 63.8(c)(4). It is important to note thatthis provision does not excuse a failureto comply with a data availabilityrequirement. Even if a data availabilityrequirement is met, this provisionrequires an owner or operator tocontinue operating the monitoringunless it is technically infeasible to doso.

The Agency believes that thesegeneral operating requirements wereimplicit in the 1993 EM proposal,including proposed § 64.4(b)(4) whichrequired the owner or operator to obtainquality-assured data from themonitoring sufficient to satisfyminimum data availabilityrequirements. However, EPA notes thatin comments on the subsequent drafts ofpart 64, certain commenters objected tothese types of provisions, andspecifically requested that the ruleexempt the source owner or operatorfrom having to conduct monitoringduring periods when the source is notrequired to comply with the underlyingstandard (such as startup and shutdownconditions). The Agency disagrees withthese comments, and notes that existinggeneral monitoring requirements underNSPS and NESHAP do not provide forthat type of exception to monitoring. Infact, EPA has previously rejected theidea of exempting sources frommonitoring during startup andshutdown conditions in otherrulemakings. (See, e.g., Air OxidationProcesses in Synthetic OrganicChemical Manufacturing Industry—Background Information for


Promulgated Standards, EPA–450/3–82–001b, June 1990, pp. 2–37 and 2–38.For a copy of this document, see EPAAir Docket A–81–22–V–B–1.) Althoughcompliance with emission limitationsmay be exempted in somecircumstances during conditions suchas startup and shutdown, an owner oroperator still is required to operate andmaintain a source in accordance withgood air pollution control practices forminimizing emissions during suchperiods. The monitoring under part 64is essential to evaluate the extent towhich this duty is fulfilled. Therefore,to clarify the intent of part 64 and assurethat it is implemented consistently withother EPA monitoring programs, thefinal rule includes these generaloperating requirements in §§ 64.7(b) and(c).

2. Corrective Action ObligationsSection 64.7(d) of the final rule

requires that, upon detecting anexcursion or exceedance, the owner oroperator will restore the pollutant-specific emissions unit to its normal orusual manner of operation asexpeditiously as practicable inaccordance with good air pollutioncontrol practices for minimizingemissions. This requires minimizingperiods of startup, shutdown ormalfunction, and taking correctiveaction to restore normal operation andprevent recurrence of the problem thatled to the excursion or exceedanceexcept where the excursion orexceedance was related to an excusedstartup or shutdown condition.Corrective action may includeinspection and evaluation whereoperations returned to normal withoutoperator action, or any appropriatefollow up activities, including shuttingdown a pollutant-specific emissionsunit until necessary repairs arecompleted, to return the operation towithin the indicator range or below theapplicable emission limitation orstandard, as applicable. Consistent withexisting general duty provisions such as§ 60.11(d), determination of whether theowner or operator has used acceptableprocedures in response to an excursionor exceedance will be based on availableinformation, including monitoring data.A related provision found at § 64.8(a) ofthe final rule provides that a sourceowner or operator can be required toimplement a quality improvement plan(QIP) after a determination by thepermitting authority or theAdministrator that the source owner hasfailed to conduct proper operation andmaintenance as documented throughpart 64 monitoring and other availableinformation (see Section II.H.).

Because the Agency’s emphasis forpart 64 monitoring shifted away fromthe direct compliance determinationrequirements of the 1993 EM proposalto the CAM approach, the Agencybelieves it is critical to underscore theneed to maintain operation within theestablished indicator ranges. Therefore,the rule includes the requirement totake prompt and effective correctiveaction when the monitored indicators ofcompliance show that there may be aproblem. Requiring that owners andoperators are attentive and respond tothe data gathered by part 64 monitoringhas always been central to the CAMapproach. Certain comments receivedon the 1996 part 64 Draft questioned theappropriateness of the corrective actionprovisions with some commentersfinding the requirements unnecessaryand others alleging that they wereinadequate. The Agency reiterates itsbelief that part 64 monitoring canprovide a reasonable assurance ofcompliance with applicablerequirements. This is consistent withthe approach suggested by manycommenters throughout thedevelopment of part 64; however,because the data will not necessarilyallow a direct determination ofcompliance, the Agency believes that itis essential to the CAM goal of ongoingcompliance operation that part 64require that owners or operatorsrespond to the data so that any problemsindicated by the monitoring arecorrected as soon as possible. Withoutthis corrective action obligation, ownersor operators might tend to ignoreexcursions because such excursionsmay not necessarily allow adetermination of a violation. Thus, EPAbelieves that the corrective actioncomponent of part 64 is critical toassuring that the information from theenhanced monitoring required by part64 is heeded by owners or operators.

As described in the discussionaccompanying the 1996 part 64 Draft,the Agency did consider requiringowners or operators to specifymaximum periods for conductingvarious types of corrective action, butstakeholders raised concerns that itwould be extremely difficult to establishthe appropriate time frames for everypossible contingency (see, e.g., docketitems VI–D–45, p. 12; VI–E–9, p. 5–6).The Agency continues to agree that itwould be difficult to establishappropriate time frames for allcorrective action scenarios and thereforehas adopted the general obligationrequirement in the final rule. TheAgency also believes, however, that assituations develop at a particular facility

it may be possible in subsequent roundsof permitting to provide specifictimetables for certain high priorityconcerns if a permitting authoritydesires to make this requirement morespecific. In addition, if an existing site-specific plan, such as a malfunctionabatement plan, already establishesrequired time frames for certain types ofexcursions, the owner or operator or thepermitting authority could incorporatethose specific time frames into thepermit.

The obligation to correct excursionsas expeditiously as practicable is theenforceable component associated withestablishing an indicator range underpart 64. Part 64 does not establish thatan excursion from an indicator rangeconstitutes an independent violation byitself. The 1996 part 64 Draft didprovide that the permit may specify thatan excursion could be considered afailure to satisfy an applicable permitterm or condition in various situations.First, if existing requirements alreadyrequire the owner or operator to complywith the indicator ranges, the 1996 Draftindicated that the ranges would beenforceable requirements. Second, the1996 Draft indicated that an owner oroperator could propose this approach.Finally, the 1996 Draft stated that, ifconsistent with existing authority, thepermitting authority could specify inthe permit that excursions from theindicator ranges will be consideredenforceable permit deviations. Incomments submitted during thedevelopment of the rule, State and localagency organizations stated theirsupport for including control deviceperformance indicator ranges asenforceable permit requirements even ifsuch indicator ranges are not useddirectly to determine compliance ornoncompliance with applicableemission limitations or standards. (See,for example, docket item VI–D–49 andIV–D–274). However, numerousindustry commenters opposed theprovisions in the 1996 part 64 Draftwhich addressed this issue.

The Agency has considered all of therelevant comments and has determinedthat part 64 need not address this issue.First, if an underlying requirementmakes an indicator range enforceable,then that will have to be addressed inthe permit under the existingrequirements in part 70. Second, asource owner can always propose tomake the indicator range enforceableand part 64 need not address thispossibility. Third, if a State agency hasindependent authority to make indicatorranges enforceable, that can be doneirrespective of the authority provided inpart 64. Finally, as discussed in Section


I.E., the CE revisions clarify that anexcursion from an indicator range insome circumstances may be sufficientlyprobative of compliance that it could beused to document a violation of anunderlying requirement. Based on theseconsiderations, the final rule simplyrequires the permit to establish anindicator range, and then imposes theobligation to take appropriate correctiveaction in response to an excursion andto report the excursion in applicableperiodic reports and compliancecertifications.

3. Monitoring RevisionsSection 64.3(d) of the 1993 EM

proposal would have required asignificant permit modificationpursuant to § 70.7 whenever a changewas made to an enhanced monitoringprotocol or whenever a pollutant-specific emissions unit was modified insuch a way as to make an existingprotocol no longer appropriate. A greatnumber of industry commentersobjected to the permit modificationprovisions in the proposed rule. Thevast majority objected to the scope ofthis provision, under which any changeto an enhanced monitoring protocoltriggered a requirement to obtain asignificant permit modification. Anumber of commenters noted that theproposed rule would require significantpermit modifications for changes thatwould not have triggered such arequirement under part 70 itself.

The Agency agrees with thosecommenters that believe the part 70procedures generally should be reliedon for determining when and what typeof a permit change is required fordifferent types of monitoringmodifications. In keeping with thisapproach, EPA has removed the permitmodification provisions from the finalrule. Instead, the Agency intends thatpermit revisions involving part 64requirements be made pursuant to part70 permit revision procedures. The EPAhas proposed revisions to part 70 inorder to streamline the existing permitmodification procedures (see 59 FR44460, August 29, 1994, and 60 FR45530, August 23, 1995). The preambleto those proposed revisions discusseswhat types of permit revisions would beappropriate for different types ofmonitoring changes. The EPA intends topromulgate permit revision proceduresbased on the proposed part 70 revisionsthat will clarify when and how a changein monitoring will trigger the need tomodify the underlying operating permit.

As noted in the discussion of thepermit shield above, § 64.7(e) doesrequire an owner or operator to followpermit modification procedures upon

discovery of deficiencies in approvedpart 64 monitoring. In addition, the part70 procedures will apply if the owner oroperator wants to change certain aspectsof its approved monitoring, or if theowner or operator intends to makecertain types of emissions unitmodifications that could trigger theneed for a permit revision to addresspart 64 requirements. For instance, if anowner or operator switched from apollution prevention method ofcontrolling emissions to a control devicewithin the definition of part 64, thatchange could impose the part 64monitoring requirements for a unitwhich had been subject only to part 70monitoring before the change. In such acase, the revised part 70 procedureswould require the owner or operator tosubmit a request for a part 70 permitmodification which includes proposedpart 64 monitoring and requiredsupporting documentation.

H. Section 64.8—Quality ImprovementPlans (QIPs)

Requirements for responding to themonitoring data if potential controlproblems are detected have beenincluded in the final rule. Requiring thatowners or operators are attentive to thedata obtained by part 64 monitoring andtake corrective action when problemsare detected has always been part of theCAM approach. The discussionsaccompanying the 1995 and 1996 part64 Drafts describe the CAM approach aspromoting compliance by making theowner or operator pay attention andrespond to the monitoring data. Becausethe approach of establishing indicatorranges and then imposing an obligationto respond to excursions couldpotentially allow owners or operators tocomply with part 64 even though theymay be in a near constant state ofcorrecting excursions, the relatedconcept of quality improvement plans(QIPs) was developed. This concept wasdesigned to avoid perpetual correctiveaction which would frustrate thecompliance promotion and complianceassurance goals of part 64.

1. QIPs in the 1995 Part 64 DraftIn the discussion accompanying the

1995 part 64 Draft, the requirements forresponding to monitoring data weredescribed as including: operating rangesfor monitored parameters, time periodsfor corrective action in the eventdiscrepancies from the establishedoperating ranges occur, and a maximumnumber of discrepancies from theestablished operating ranges to occur ina reporting period. The 1995 part 64Draft provided that source owners couldestablish this maximum number of

discrepancies as a not-to-exceed limit oras a requirement that, initially, triggersimplementation of a QIP. The QIPoption would require evaluation of whythe maximum number of discrepancieswas exceeded. Based on that evaluation,the QIP would require the owner oroperator to take steps to improve controlperformance including improvedpreventive maintenance procedures,process operation changes, controlsystem improvements or similar actions.

The QIP option was described as ameans of allowing an owner or operatorto establish site-specific maximumdiscrepancy numbers without facingautomatic enforcement exposure forfailure to comply with those numbersduring the early stages of part 64applicability/implementation, while atthe same time assuring that a largenumber of discrepancies would triggeradditional steps to decrease theincidence of reduced controlperformance. In addition, the 1995 part64 Draft contained limits to guardagainst the use of an ineffective QIP.Owners or operators would be allowedto exceed the maximum number ofcorrective actions trigger twice during apermit term. A third or subsequentexceedance of the trigger would havebeen treated as a failure to comply withthe requirements of part 64 as well asstill requiring a QIP to improve controlperformance. These situationspotentially would have also required theQIP to be revised to more adequatelyserve its purpose of improved controlperformance.

The discussion accompanying the1995 part 64 Draft noted that theprovisions on the length of correctiveaction periods and the maximumnumber of corrective action periods perreporting period provided significantflexibility and solicited comment onwhether the final rule should establishadditional objective criteria such as amaximum length for corrective actionsor a limit on the number of correctiveactions permitted.

The Agency received a number ofcomments on the QIP concept afterreleasing the 1995 part 64 Draft. Anumber of industry commenterssupported the QIP concept but raisedconcerns about the provisions limitingthe number of allowable QIPs and aboutthe specificity of certain requirements.

2. QIPs in the 1996 Part 64 DraftIn the 1996 part 64 Draft the owner or

operator was required to implement aQIP if the duration of excursionsoccurring in any reporting periodexceeded a set percentage of theoperating time for the pollutant-specificemissions unit over that reporting


period, or if the number of excursionsexceeded a set percentage of themonitored averaging periods during theapplicable reporting period. If theapproved monitoring involved the useof a CEMS or PEMS, then theappropriate trigger for a QIP would beexceedances instead of excursions.

The appropriate percentage was to beset in the context of the permittingprocess. The permitting authority was totake into account all relevant factors,but the percentage of operating time wasnot to exceed 5 percent. The Agencysolicited comment on whether that wasan appropriate percentage andinformation that could support anotherpercentage limit. An exception wasprovided in the 1996 part 64 Draft forcircumstances in which specificapplicable requirements established ahigher percentage. Finally, the draft rulestated that the permit must include acondition that in the event that eitherpercent trigger was exceeded, the owneror operator would develop andimplement a QIP that met specificcriteria.

Like the 1995 part 64 Draft, the 1996part 64 Draft described two basic partsof a QIP. The first part would consist ofevaluation procedures to determine thecause of the excessive number ofexcursions (or exceedances, ifapplicable). Based on that evaluation,the owner or operator would developthe second part of the QIP. The secondpart would detail the steps the owner oroperator would take to improve thequality of control performance, and theschedule for taking those steps. Again,depending on the nature of the problem,the appropriate steps could includeimproved preventive maintenanceprocedures, process operation changes,control system improvements or similartypes of steps. In conjunction with thoseprocedures, the QIP also might includeimproved monitoring procedures.

The discussion accompanying the1996 part 64 Draft described theserequirements as assuring that themonitoring conducted under part 64would result in owners or operatorstaking the necessary steps to preventpollution through reasonableoptimization of control performance.The Agency stated in that discussionand the draft itself that compliance witha QIP is not a substitute for compliancewith underlying applicablerequirements, including general dutiesto operate and maintain facilities inaccordance with good air pollutioncontrol practices, and the 1996 part 64Draft also required the owner oroperator to report as a deviation anyperiod during which a QIP is beingimplemented.

Again the Agency expressed concernabout owners or operators performingrepeated QIPs, and the 1996 part 64Draft provided that the necessity toimplement a second QIP for the samepollutant-specific emissions unit duringthe same permit term would constitutea specific permit term violation. TheAgency acknowledged that anenforceable permit condition placing alimit on the number of QIPs might beperceived as an unnecessary restrictionon the operation of highly efficient andwell-operated control measures. TheEPA noted that a high level ofexcursions could result from tightly setindicator ranges that are not at allindicative of potential excess emissions,and that the ‘‘second QIP as a violation’’approach could inappropriately put anowner or operator in violation undersuch circumstances.

The Agency then noted that thesecond QIP as a deviation approachmight encourage source owners to setunrepresentatively broad indicatorranges and thereby avoid excursions.The Agency sought comment on othermeans to encourage the setting of theindicator ranges in a manner consistentwith the best level of emissions controlthat can be achieved. As one possiblealternative, EPA suggested that insteadof a permit violation associated with theneed to implement a second QIP thefinal rule could instead require that thesecond QIP be implemented onlythrough a permitting authority approvalprocess. Such a plan could also includerestricted process operations untilcompletion of the approved QIP. Theagency also suggested as a secondpossible alternative that the time periodfor limiting the owner or operator to oneQIP could be reduced from the 5-yearpermit term to 3 years or otherappropriate period.

In addition, the 1996 part 64 Draftcontained a number of other QIP-relatedrequirements. First, it required theowner or operator to notify thepermitting authority within 2 days afterdetermining that a QIP is necessary.Second, the QIP would not become partof the permit and would not requirepermitting authority approval. Third,the QIP was to be implemented as soonas practicable, and completed within180 days from the date notice of the QIPwas given to the permitting authority.Exceptions to the 180-day limit were tobe granted only after the owner oroperator obtained a site-specificresolution and affirmative approvalfrom the permitting authority or, ifnecessary, the EPA of a plan to completethe improvement activities. Anapproved extension could include an

enforceable, site-specific schedule withmilestones and completion dates.

The 1996 part 64 Draft also requiredthe owner or operator to report on theactivities taken in conjunction with aQIP. QIP activities would besummarized in the semiannual reportcovering the period in which the QIPbegan, and in any subsequentsemiannual reports covering periodsduring which the QIP continued. Inaddition, the owner or operator wasrequired to maintain a copy of the QIPand records of QIP implementationactivities for a period of five years inaccordance with part 64 recordkeepingprovisions.

Finally, a QIP could lead to changesin previously approved monitoring orother changes at the source that requirea permit revision. Therefore, the 1996part 64 Draft required the owner oroperator to submit a proposed revisionto the approved monitoring in thesecircumstances. Even if such changes didnot require a permit revision, a sourceowner or operator who intended toretain the previously approvedmonitoring was required to reestablishthe rationale that justified themonitoring.

3. QIPs in the Final RuleIn response to comments received on

the 1995 and 1996 part 64 Drafts, § 64.8of the final rule reflects a number ofsignificant changes to the QIPrequirements.

A number of commenters challengedthe 5 percent QIP trigger in the 1996part 64 Draft and some questionedwhether a single percentage thresholdwas appropriate regardless of exactlywhere the threshold was set. Section64.8(a) of the final rule provides that aQIP trigger may be set in the permit butdoes not require it. Where such a triggeris used, a level of 5 percent is suggestedas a potentially appropriate threshold.The final rule also provides that a QIPcan be required after a determination bythe permitting authority or theAdministrator that an owner or operatorhas failed to conduct proper operationand maintenance as documentedthrough part 64 monitoring and otheravailable information. In this respect,the QIP provisions are analogous toexisting corrective action remediesavailable to address complianceproblems.

Commenters also argued that the 180-day limit for completion of a QIP thatwas included in the 1996 draft part 64was not reasonable, with variouscommenters arguing for more or lesstime. Some commenters also noted thatQIPs that lead to the need for a permitmodification would be particularly


problematic in terms of meeting aspecific deadline. Section 64.8(c) of thefinal rule requires owners or operatorsto complete any QIP as expeditiously aspracticable and to notify the permittingauthority if they determine that a QIPwill take longer than 180 days ratherthan establishing a specific amount oftime within which the QIP must becompleted.

Many commenters objected to therequirement that a second QIP within apermit term be treated as a violation. Anumber of commenters pointed out thata subsequent QIP might be completelyunrelated to the first QIP, that moreroom for error should be allowed in theearly stages of part 64 applicability/implementation, and that the existenceof such penalties would frustrate thegoals of part 64 by discouraging sourceowners from setting indicator ranges atlevels that would provide early warningof problems. Commenters also notedgenerally in other comments on part 64that the Agency should consider thepart 63 startup, shutdown, malfunctionplan (SSMP) requirements as anappropriate precedent for implementingpart 64. Based on EPA’s consideration ofthe comments, EPA has deleted theconcept that a second QIP during apermit term is a violation. Instead, thefinal rule allows permitting authoritiesto use recurring problems as anindication that a QIP should be requiredin order to bring about improvements incontrol device operation andmaintenance. In addition, the final ruleprovides that the permitting authority orthe Administrator may follow up onQIPs and make changes to the plan ifthe QIP has not addressed the problemadequately. This latter requirement isanalogous to the comparable proceduresfor requiring changes to SSMPspursuant to § 63.6(e)(3).

Other changes made in response tocomments received on the 1996 part 64Draft include deleting the requirementthat source owners notify the permittingauthority within two days of the need toimplement a QIP, the requirement thatperiods during which an owner oroperator is implementing a QIP bereported as deviations in monitoringreports and compliance certifications,and the requirement to report testmethod results after QIPimplementation. The Agency does notbelieve that these draft requirements arenecessary, especially given that underthe final rule, QIPs generally will beimplemented only after a determinationthat an owner or operator has failed tomeet a general duty to properly operateand maintain a source.

Some commenters objected to therequirement that owners or operators

state that a QIP has reduced thelikelihood of similar problems occurringin the future. The Agency believes thatthis type of information is appropriate,but has changed the final rule so thatrather than a certification-stylerequirement, the owner or operator isrequired to submit documentation thatthe QIP has been completed andreduced the likelihood of similar levelsof excursions or exceedances occurring.This provision will provide thepermitting authority with theinformation necessary to gauge thecompletion of a QIP and whetherfollow-up is necessary.

Commenters on the 1996 part 64 Draftalso requested that an owner or operatorbe allowed to implement a QIP thatinvolves only monitoring changes. TheAgency notes that the final rule, like the1996 part 64 Draft, does not provide forQIPs that address monitoring only. Thistype of change should not be madethrough a QIP. By its nature, a QIPfocuses on situations where the owneror operator has failed to meet itsobligation to properly operate andmaintain a source. The QIPrequirements in the final rule clarifythis approach and no longer mandatethat a QIP be implemented solelybecause a set duration of excursions orexceedances occurs. A source ownerwho needs to change approved part 64monitoring can address any monitoringproblems directly through theappropriate permit modificationprocess. For indicator range changes,the final rule allows owners or operatorsto avoid the need for a permitmodification by specifying in the permitthe method by which such ranges willbe established rather than the actualranges. See Section II.F. for furtherdiscussion of that issue.

I. Section 64.9—Reporting andRecordkeeping Provisions

Part 64 generally relies on therequirements for reporting, compliancecertification, and recordkeeping alreadyestablished in part 70. Beyond generalcompliance with the part 70requirements, § 64.9(a)(2) clarifies thatpart 70 reports that involve part 64monitoring data must identify summarydata on the number, duration and causeof: excursions from indicator ranges;emission limit exceedances; anycorrective actions taken; and monitordowntime incidents other than thoseassociated with daily calibration checks.If applicable, the report must alsodocument QIP implementation andcompletion activities. See Section II.H.for further discussion of this QIPreporting provision.

The Agency believes that theadditional information that is requiredto be reported under part 64 isconsistent with streamlined reportingrequirements under other monitoringprograms (such as NSPS reporting under40 CFR 60.7(d)). The Agency alsobelieves that this information isnecessary to allow permittingauthorities to use part 64 data to trackoverall control performance and assurethat owners or operators are operatingpart 64 monitoring appropriately andresponding appropriately to excursionsfrom established indicator ranges.

The recordkeeping requirementssimilarly require the owner or operatorto maintain records in conformancewith part 70. The provisions clarifywhat part 64 records need to bemaintained and the acceptable formatsfor recordkeeping.

The Agency solicited and receivedcomments on several aspects of thereporting and recordkeepingrequirements that were included in the1993 EM proposal. Those requirements,comments and the changes made byEPA in response to the comments aredescribed below.

1. Commencement of Reporting DutyUnder the 1993 EM proposal, affected

owners or operators were required tosubmit ‘‘enhanced monitoring reports.’’These enhanced monitoring reportswould have fulfilled essentially thesame function as the part 70 reportsrequired by § 70.6(a)(3)(iii)(A),providing permitting authorities withmore regular data on monitoringcompliance than is required under otherprovisions. The 1993 EM proposalrequired submission of these reports‘‘[o]n and after the effective date of thispart * * * .’’ Commenters wereconcerned that this language could beinterpreted to require reporting prior toapproval of a monitoring plan. Theycontended that it would be difficult, ifnot impossible, to fulfill the reportingrequirement without knowledge of whatmonitoring would ultimately berequired. The Agency agrees with theseconcerns. The final part 64 rule clarifiesthat the obligation to begin reportingdoes not commence until the specifieddate by which the owner or operatormust begin monitoring under part 64.

2. Reporting FrequencyThe 1993 EM proposal also required

quarterly submission of the above-mentioned enhanced monitoring reportfor each enhanced monitoring protocol.Many commenters argued that quarterlyreporting would be too costly and/orburdensome. The quarterly reportingrequirement is eliminated in the final


rule. By explicitly relying on part 70reporting requirements, the Agency hasadopted a requirement that reports besubmitted at least semiannually. TheEPA believes that the minimum part 70reporting frequency is sufficient to meetthe goals of compliance assurancemonitoring without imposing unduecosts or burdens on affected sources.The Agency also notes that the 1993 EMproposal justified quarterly reporting inpart on the similar provision thatexisted at that time in part 60 forquarterly reporting of direct compliancedata. The Agency has since modifiedpart 60 reporting provisions and nolonger requires quarterly reportingwhere the source remains incompliance. (See § 60.7(e) added at 59FR 12417, March 16, 1994.) The Agencyalso notes that part 70 authorizespermitting authorities to require morefrequent reporting of monitoring data,when appropriate.

A related provision in the 1993 EMproposal required that each enhancedmonitoring report be postmarked nolater than thirty days after the last dayof the reporting period. A number ofcommenters objected to this due dateprovision, arguing that thirty days wasinsufficient time to analyze and verifythe necessary data and to then assemblea report reflecting that data, especiallywhere such data is received fromindependent laboratories. Although theAgency believes that thirty days isgenerally sufficient time to compile thereports required under the revised part64, the due date provision has beeneliminated. Instead, by relying on thereporting requirements of part 70, theAgency requires ‘‘prompt’’ submissionof monitoring reports as defined by thepermitting authority.

3. Report Signature RequirementThe 1993 EM proposal required that

certification by a responsible official beincluded in each enhanced monitoringreport. Under this requirement theofficial had to certify by his or hersignature that he or she had personallyexamined the information contained inthe report and its attachments, that thestatements and information were true tothe best of his or her knowledge andbelief, and that he or she was aware ofthe penalties (including the possibilityof fine or imprisonment) that couldaccrue for submitting false statementsand information or omitting requiredstatements and information. A numberof commenters were concerned that therequirement that an official personallyexamine all information in the reportand its attachments was impractical,given the amount of data that wouldhave to be examined and the

responsible official’s probable lack ofexpertise in the specific areas of thedocuments. Commenters also expressedconcerns that the penalty language ofthe proposed rule imposed liability onthe responsible official instead of thepersons who might be responsible forviolations, or on the company itself.

The EPA has eliminated the proposedreport signature requirement in the finalrule. Instead, part 64 reporting will besubject to the same certificationrequirements as required for all reportssubmitted under § 70.5(d). The Agencybelieves the use of the part 70 signaturerequirements is appropriate given thegeneral reliance on part 70 reportingrequirements in part 64.

4. Confidentiality of Report InformationThe 1993 EM proposal explicitly

provided that an owner or operatorcould assert a confidentiality claim forinformation reported under part 64 tothe extent such information was entitledto protection under section 114(c) of theAct. This provision received a generallyfavorable response from industrycommenters, some of whom proposedthat the confidentiality provisions beexpanded. This provision is notincluded in § 64.9 of the final rule. Asnoted above, part 64 reporting isgoverned by part 70. Informationsubmitted under part 70 reportingrequirements is already subject toconfidentiality protection pursuant to§ 70.4(b)(3)(viii), as well as section503(e) of the Act. Any such informationaccompanied by a claim ofconfidentiality will be treated inaccordance with the regulations of 40CFR part 2. The Agency believes thatthe inclusion of confidentialityprovisions in part 64 is unnecessary dueto the applicability of the protectionscontained in part 70.

5. Recordkeeping RequirementsSection 64.9(b)(1) requires owners

and operators of affected sources tocomply with the recordkeepingobligations set forth in § 70.6(a)(3)(ii).Part 70 requires that records of therequired monitoring including thefollowing information be maintained fora period of at least five years: The date,place, and time of sampling ormeasurements; the date(s) analyses wereperformed; the company or entity thatperformed the analyses; the analyticaltechniques or methods used; the resultsof such analyses; and the operatingconditions as existing at the time ofsampling or measurement. Section64.9(b) clarifies that for purposes of part64, the records to be maintainedinclude: Monitoring data, monitorperformance data, corrective actions

taken, the written quality improvementplan and related implementationactivities, and other supportinginformation required to be maintainedunder part 64. The Agency notes thatthe part 64 requirement to keep theserecords is not a separate recordkeepingrequirement. The Agency believes all ofthese records are already required to bemaintained under the general part 70provisions, but includes these specifictypes of records in the final rule toclarify the general part 70 language.

Recordkeeping requirements underthe final rule are not significantlydifferent from those in the 1993 EMproposal. Although the 1993 EMproposal did not explicitly refer to part70 recordkeeping provisions, itsrequirements were essentially arestatement of part 70 requirements inan enhanced monitoring context.Owners or operators would have beenrequired to maintain the same generalinformation required by part 70 for thesame minimum period of five years. Thepreamble to the 1993 EM proposal didstate that the requirements were‘‘consistent with the minimumrecordkeeping provisions in 40 CFR70.6(a)(3).’’

Both the requirements of the 1993 EMproposal and the currently applicablepart 70 provisions require themaintenance of records for a period ofat least five years from the date of themonitoring sample, measurement,report or application. A number ofcommenters expressed objections to thefive year data retention period, arguingthat the burden of retaining records forsuch an extended period was excessive.Among the proposed alternatives were a3-year data retention period, consistentwith the Acid Rain Program, or a shorterperiod for records covering periods forwhich there were no deviations. TheEPA had included the 5-year period inthe 1993 EM proposal to be consistentwith the minimum requirements of§ 70.6. The Agency continues to believethat this period is appropriate, as part70 has established the 5-year retentionperiod as the standard even where lessthan five years is required in underlyingrules. For example, part 70 has changedthe record retention time for NSPS andsimilar provisions, establishing the 5-year period for such provisions. Byexplicitly relying on part 70recordkeeping requirements, the Agencyhas further affirmed the appropriatenessof employing the 5-year period for part64 records.

Section 64.6(b) of the 1993 EMproposal stated that records had to beavailable for inspection at the site of anaffected source or at a different siteapproved by the permitting authority. In


addition, the proposed rule requiredthat such records be maintained so as topermit prompt submittal if requested byEPA or the permitting authority. Anumber of commenters on the 1993 EMproposal and the 1996 part 64 Draftrecommended that owners or operatorsshould be free to decide where facilityrecords would be kept, arguing thatpermitting authority approval shouldnot be required since most facilitiescannot handle the storage of the datarequired by the rule. Because the finalrule relies directly on the reporting andrecordkeeping requirements of part 70,the requirement that source owners getpermitting authority approval for off-sitestorage of part 64 records has beendeleted.

The recordkeeping provisions of the1993 EM proposal did not specificallyaddress the form in which records mustbe maintained. Several commenterssupported the idea of storing data in anon-paper media such as microfiche ora form of electronic data storage. Theycontended that such storage methodswould reduce the costs and burdensassociated with storing records for theminimum 5-year period. The Agencyagrees with these comments andencourages the use of alternativerecordkeeping, provided appropriatesafeguards are adopted to insure theintegrity and accessibility of the dataover time. Section 64.9(b)(2) of the finalrule therefore explicitly allows themaintenance of records on alternativemedia, such as microfilm, computerfiles, magnetic tape disks, or microfiche,so long as the data are readily availablefor inspection and review and thealternative format does not conflict withother applicable recordkeepingprovisions. This approach is consistentwith recent general recordkeepingprovisions, such as the NESHAP generalprovisions in 40 CFR 63.10(b).

J. Section 64.10—Savings ProvisionsBecause part 64 requirements may

overlap with many other applicablerequirements, § 64.10 of the final ruleclarifies that nothing in part 64 isintended to excuse the owner oroperator from applicable requirementsunder the Act (including emissionlimitations or standards as well as othermonitoring requirements) or to restrictthe authority of the EPA or thepermitting authority to imposeadditional monitoring under the Act orState law, as applicable. For example, itwould be possible for a source to be incompliance with its QIP, but out ofcompliance with an applicable emissionlimitation or standard. The owner ofsuch a source could expect enforcementaction for violation of the applicable

emission limitation or standard, eventhough there may not be a violation ofpart 64. Simply put, adherence to a QIPdoes not insulate an owner or operatoragainst enforcement action forviolations of an underlying emissionlimitation or standard. This section alsoclarifies that the requirements may notbe used to justify the imposition of lessstringent monitoring under otherprograms than would otherwise berequired under those programs. Forinstance, in acting on a new sourcereview permit under title I of the Act,the part 64 requirements may not beused to judge the adequacy of themonitoring in that permit; instead, thegeneral procedures and practices underthe title I permit program will be used.

The 1993 EM proposal containedspecific savings provisions in theapplicability section (then § 64.1) andthe permit application section (then§ 64.7). The applicability savingsprovision in proposed § 64.1(d) clarifiedthat nothing in part 64 was intended toexcuse owners or operators from othermonitoring, recordkeeping andreporting requirements that applypursuant to other provisions of the Act,or to restrict the authority of theAdministrator or permitting authority toimpose additional or more restrictivemonitoring, recordkeeping or reportingrequirements under other provisions ofthe Act. The permit applicationprovision in proposed § 64.7(d) statedthat owners or operators must stillcomply with all other permitapplication requirements andrequirements established by federalregulations or by permitting authoritiesunder federally-approved permitprograms. These savings provisions arebrought together in a single section ofthe final rule without significantchanges from the original proposal.

Section 64.10 of the final rule alsostates that nothing in part 64 willinterfere with the permitting authority’sor EPA’s ability to enforce againstviolations of applicable requirementsunder the Act or the authority of acitizen to enforce against violationspursuant to section 304. This savingsprovision was added to the final rule toclarify the Agency’s position on therelationship of part 64 to certainenforcement issues. A number ofcommenters requested that EPA includea provision that would shield owners oroperators who comply with part 64 fromenforcement for violations of theiremission limits. As discussed in SectionI.E.3., the Agency disagrees with thisconcept. In cases where the part 64 dataindicate noncompliance with emissionlimits, including exceedances,permitting authorities and the Agency

will be able to take enforcement action.In other cases, where the part 64monitoring indicates, but does notdirectly establish, the compliance statusof a source, the reasonable assurance ofcompliance based on part 64 data doesnot prohibit the Agency from takingappropriate investigatory orenforcement steps when noncomplianceis shown by other means. This samepoint was clarified in the discussionsaccompanying both the 1995 and 1996part 64 Drafts.

K. Revisions to 40 CFR Part 70 and Part71

The final rule includes revisions toparts 70 and 71 to clarify therelationship between part 64 and theoperating permits program. Theserevisions are outlined below.

1. Monitoring RequirementsThe revisions to part 70 allow for

streamlining multiple monitoringrequirements if the streamlinedmonitoring is able to assure complianceat least to the same extent as theapplicable requirements not included asa result of the streamlining. The Agencynotes that the language in theserevisions is designed to be consistentwith a discussion in section A.5. ofWhite Paper 2 (See docket item VI–I–2)concerning the possibility ofstreamlining applicable monitoring andtesting requirements (‘‘§ 70.6(a)(3)appears to restrict streamlining byrequiring that all ‘‘applicable’’monitoring . . . requirements be placedin the permit. . . . The EPA intends torevise part 70 to reflect thisunderstanding in a future rulemaking.’’).The Agency indicated in the 1996 part64 Draft that it intended to fulfill itsintent to modify part 70 as discussed inWhite Paper 2 by including theappropriate revisions to § 70.6(a)(3)(i) inconjunction with the part 64rulemaking. Because the Agencyreceived strong support for thisproposed action and no negativecomments, the Agency has proceeded toadd this part 70 revision (and thecorresponding revision to part 71) aspart of this rulemaking.

2. Compliance CertificationRequirements

To tailor compliance certification tothe monitoring imposed by part 64, EPAhas revised § 70.6(c)(5)(iii) (and§ 71.6(c)(5)(iii)) so that a compliancecertification includes the followingelements.

First, the permit conditions beingcertified must be identified. Second, themethod(s) and other information used todetermine compliance status of each


term and condition must be identified.These method(s) will have to include ata minimum any testing and monitoringmethods identified in § 70.6(a)(3) thatwere conducted during the relevanttime period. In addition, if the owner oroperator knows of other materialinformation (i.e., information beyondrequired monitoring that has beenspecifically assessed in relation to howthe information potentially affectscompliance status), that informationmust be identified and addressed in thecompliance certification. Thisrequirement merely emphasizes thegeneral prohibition in section 113(c)(2)of the Act on knowingly making a falsecertification or omitting materialinformation and the general criminalsection on submitting false informationto the government codified at 18 USC1001. The revised part 70 provisiondoes not impose a duty on the owner oroperator to assess every possible pieceof information that may have someundetermined bearing on compliance.The description of the methods reliedon by the source owner also will haveto indicate whether the methodsprovide continuous or intermittent data.In accordance with section 114 of theAct that specifies that the certificationinclude whether compliance iscontinuous or intermittent, the Agencywill interpret the compliancecertification that is based on monitoringthat provides intermittent data ascompliance on an intermittent basis.

Third, the responsible official willhave to certify compliance based on theresults of the identified methods. Thecertification must state the compliancestatus with the part 70 permit, takinginto account any deviations and notingas possible exceptions to complianceany deviations or excursions/exceedances as defined in part 64 orother underlying applicablerequirements. Because ‘‘deviation’’ wasdefined under part 71 as originallypromulgated, the revisions to part 71incorporate the concepts of excursionand exceedance into the § 71.6(a)(3)definition of ‘‘deviation.’’ Therefore,unlike the part 70 revisions, the revisedcompliance certification provision inpart 71 refers only to ‘‘deviations.’’

The owner or operator may includeinformation in the certification todocument that compliance wasachieved during any periods in which apossible exception is noted (such asinformation that an excursion orexceedance occurred during a period ofstartup or shutdown for whichcompliance with an emission limitationor standards was excused). Therequirement to take into accountdeviations, excursions, and exceedances

together with the requirement toidentify whether the method usedprovides continuous or intermittent dataensures that the compliancecertification will show whethercompliance is continuous orintermittent. For example, a compliancecertification based on a methodproviding intermittent data or that notesany deviations or certain possibleexceptions to compliance as a result ofexceedances or excursions based onmonitoring required by this rule will beinterpreted as showing intermittentcompliance. The Agency does notinterpret a certification of intermittentcompliance to necessarily mean that theresponsible official is certifying thatthere are periods of noncompliance.Such a certification can mean that thereare periods of time in which thesource’s compliance status is unknown.When a responsible official certifiescompliance based on a methodproviding continuous data and nodeviations, excursions, or exceedanceshave occurred (or all such occurrenceshave been adequately addressed byother information, as explained above),this will be interpreted as a certificationof continuous compliance. Theseprovisions implement the requirementsin section 114(a)(3)(B), (C), and (D) thatthe certification include the methodsused to determine the compliance statusand whether compliance is continuousor intermittent.

The certification also will have toinclude any other facts required by thepermitting authority. This requirementis already included in parts 70 and 71as promulgated. Finally, the Agencynotes that the rule allows the owner oroperator to cross-reference the permit orprevious reports to identify the variousinformation elements required in acertification. This provision allows theactual certification to be a short, concisecompliance statement that is notburdened by restating detailedinformation that has already beenprovided.

The goal of part 64 is to provideimproved compliance data forsignificant emissions units at title Vmajor sources. This improvement willin turn provide additional data for theowner or operator to rely on incertifying compliance. As discussed inSection I.C. above, EPA believes that thepart 64 data will provide a reliablemeans for owners or operators to reacha conclusion about their compliancestatus. However, since the part 64 datawill not necessarily always provideunequivocal proof of compliance ornoncompliance (as a performance orcompliance test method would), therewill be excursions or exceedances

identified through part 64 which raisequestions about compliance status butmay not confirm conclusively that asource is in noncompliance. Theexistence of these occurrences onlyindicates the need to review thecompliance information provided inorder to determine what, if any,compliance or enforcement actions maybe warranted.

These changes to parts 70 and 71 havebeen developed based on the provisionsincluded in the 1993 EM proposal, assupplemented by the December 1994reopened comment period, as well asbased on the 1995 and 1996 part 64Drafts. The reporting requirements ofthe 1993 EM proposal would haverequired that a responsible official foran affected source use enhancedmonitoring data as the basis for therequired title V compliancecertification. The 1993 EM proposal alsorequired the use of any other datacollected for the purpose of determiningcompliance during the monitoringperiod. These provisions were thesubject of significant public comment.Some of these comments seemed to bebased on the belief that the proposedrule created a separate compliancecertification requirement. The EPAalways intended for these provisions tooperate within the title V compliancecertification process, establishingadditional requirements that unitssubject to part 64 had to meet in orderto satisfy title V compliance certificationrequirements. To clarify this approach,the compliance certification provisionsin the final rule were removed from part64. Instead, § 70.6(c)(5)(iii) of part 70(and the corresponding section in part71) has been amended to reflect therequirements of compliance certificationfor those units subject to part 64.

In addition, as discussed above inSection I.C., EPA reopened the publiccomment period on the 1993 EMproposal and stated EPA’s intent that itmay reconsider how to interpret themeaning of ‘‘continuous or intermittent’’in the context of certifying compliance.The revisions to parts 70 and 71 intoday’s rulemaking reflect the positiontaken by EPA in that December 1994notice. Finally, the revisions reflect theposition taken in the final part 64 rulethat monitoring data that do notconstitute formal performance orcompliance test method data may stillbe used by the owner or operator todetermine compliance status and to noteany possible exceptions to compliancethat are indicated by the monitoring.This interpretation is consistent withthe existing part 70 which specificallyreferences the fact that a certificationmust consider all of the relevant data


under § 70.6(a)(3), which includes non-test method monitoring data. Because ofthe possible misinterpretations of theexisting language, EPA believes thatclarifying the compliance certificationrequirements in conjunction withpromulgating part 64 is appropriate.

III. Administrative Requirements

A. Docket

The EPA is relying on the proceduralrequirements of section 307(d) of theAct for the regulations. In accordancewith those requirements, EPA hasestablished docket A–91–52 for theregulations. The docket is an organizedand complete file of all the informationsubmitted to, or otherwise consideredby, EPA in the development of thisrulemaking. The principal purposes ofthe docket are: (1) To allow interestedparties a means to identify and locatedocuments so that they can effectivelyparticipate in the rulemaking process,and (2) to serve as the record in case ofjudicial review. The docket is availablefor public inspection at EPA’s AirDocket, which is listed under theADDRESSES section of this notice.

B. Executive Order 12866

Under Executive Order 12866 (58 FR51735, October 4, 1993), EPA mustdetermine whether a regulatory action is‘‘significant’’ and therefore subject toOffice of Management and Budget(OMB) review and the requirements ofthe Executive Order. The order defines‘‘significant regulatory action’’ as onethat is likely to result in a rule that may:

(1) have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;

(2) create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or

(4) raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

EPA assumes as the baseline for itsanalysis of part 64 that affectedemissions sources are currently incompliance with their underlyingemission standards 100 percent of thetime. Thus, there are no emissionsreductions benefits (and health andwelfare benefits), nor costs foradditional control technology, operation

and maintenance, associated with part64. EPA believes that some sources, inresponse to monitoring data gatheredunder part 64, may indeed have to makeinvestments in control equipmenttechnology, operation and maintenanceto reduce emissions to comply withtheir underlying emissions standards;however, EPA believes these emissionreductions benefits and costs are notattributable to part 64—but to theunderlying emissions standards. Assuch, EPA has not estimated the benefitsor costs that may result from suchactions to reduce emissions.

EPA has estimated the cost of part 64to include the cost of development andimplementation of CAM plans, $50million per year. ($1995). This includesthe cost of determining the monitoringapproach and implementing theapproved design, including reporting,recordkeeping, and certificationactivities.

Pursuant to the terms of ExecutiveOrder 12866, it has been determinedthat this rule is a ‘‘significant regulatoryaction’’ due to its policy implicationsand was submitted to OMB for review.Any written comments from OMB toEPA and any written EPA response tothose comments are included in thedocket. The docket is available forpublic inspection at EPA’s Air DocketSection, which is listed in theADDRESSES section of this preamble. TheRegulatory Impact Analysis (RIA) forthis rulemaking is included in thedocket.

C. Unfunded Mandates ActSection 202 of the Unfunded

Mandates Reform Act of 1995(‘‘Unfunded Mandates Act’’) (signedinto law on March 22, 1995) requiresthat the Agency must prepare abudgetary impact statement beforepromulgating a rule that includes aFederal mandate that may result inexpenditure by State, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year. The budgetary impactstatement must include: (i)Identification of the Federal law underwhich the rule is promulgated; (ii) aqualitative and quantitative assessmentof anticipated costs and benefits of theFederal mandate and an analysis of theextent to which such costs to State,local, and tribal governments may bepaid with Federal financial assistance;(iii) if feasible, estimates of the futurecompliance costs and anydisproportionate budgetary effects of themandate; (iv) if feasible, estimates of theeffect on the national economy; and (v)a description of the Agency’s priorconsultation with elected

representatives of State, local, and tribalgovernments and a summary andevaluation of the comments andconcerns presented. Section 203requires the Agency to establish a planfor obtaining input from and informing,educating, and advising any smallgovernments that may be significantlyor uniquely impacted by the rule.

Under section 205 of the UnfundedMandates Act, EPA must identify andconsider a reasonable number ofregulatory alternatives beforepromulgating a rule for which abudgetary impact statement must beprepared. The Agency must select fromthose alternatives the most cost-effectiveand least burdensome alternative thatachieves the objectives of the ruleunless the Agency explains why thisalternative is not selected or unless theselection of this alternative isinconsistent with law.

Because this rule is not estimated toresult in the expenditure by State, local,and tribal governments and the privatesector, in aggregate, of over $100 millionper year, EPA is not required underUMRA to develop a budgetary impactstatement or to undertake the analysisunder section 205. However, becausecertain options considered by EPAwould have resulted in a total cost inexcess of $100 million, EPA did preparesuch statement and analysis and theyare included as part of the RegulatoryImpact Analysis, which is included inthe docket.

To the extent governmental entitiesare affected by the rule as permittingauthorities, the costs of the rule areoffset or mitigated by receipt of title Vpermit fees, since the rule affects onlytitle V sources. Part 70 requires sourcesof pollution to pay permit fees sufficientto offset the costs incurred by thepermitting authority in managing itsoperating permits program. Since part64 introduces additional requirementsfor permitting authorities, theseincremental costs must be incorporatedinto the operating permit fee. BecausePermitting Authority costs may betransferred to sources of pollutionthrough the permit fee, theadministrative and recordkeeping costof this rulemaking to State, local, andtribal governments is, for practicalpurposes, zero. EPA has also concludedthat, to the extent small governments areimpacted by this regulation becausethey are major stationary sources, theimpact will not be significant. SeeSection III.E. As a result, UMRArequirements do not apply to thisrulemaking.


D. Paperwork Reduction Act

The information collectionrequirements in this rule have beensubmitted for approval to the Office ofManagement and Budget (OMB) underthe Paperwork Reduction Act, 44 U.S.C.3501 et seq. An Information CollectionRequest (ICR) document has beenprepared by EPA (ICR No. 1663.02) anda copy may be obtained from SandyFarmer, OPPE Regulatory InformationDivision; U.S. Environmental ProtectionAgency (2137); 401 M St., SW.;Washington, DC 20460 or by calling(202) 260–2740. The informationrequirements are not effective untilOMB approves them.

The information is planned to becollected to fulfill requirements in boththe title V operating permit program andpart 64 programs. The operating permitprogram requires owners or operators ofunits that emit air pollutants to submitannual compliance certifications, tosubmit monitoring results at leastsemiannually, and to report deviationspromptly. Part 64 requires monitoringfor certain emissions units at majorsources subject to the title V operatingpermits program. Therefore, thecollection of information is mandatedby the Act. Generally, emissions datacannot be considered confidential underthe Act. However, to the extentallowable under the Act, the collectionof information will be entitled toconfidential treatment in accordancewith EPA’s procedures established in 40CFR part 2.

The part 64 rulemaking requiresmonitoring, compliance certification,periodic reporting, and recordkeepinginformation collections by owners andoperators of title V sources withcontrolled pollutant-specific emissionsunits that have a pre-control potential toemit major amounts of regulated airpollutants. Owners or operators ofaffected emissions units will use theinformation as the basis for thecompliance certification required by theoperating permit program, and as thebasis for compliance assurancemonitoring reports. Sources may alsouse the information to determine andmaintain the efficiency of process oremissions control devices. Permittingauthorities will use the information todetermining acceptability of proposedcompliance assurance monitoring, toassess compliance, to input into reportsto other agencies, and, when necessary,in enforcement proceedings and QualityImprovement Plans (QIPs). Theinformation may be used by otherentities, including federal entities andcitizens. EPA will use the information toperform activities such as providing

oversight and guidance to State andlocal agencies, and to assess requests foralternative monitoring.

The implementation schedule for part64 will phase-in implementation over anumber of years, so that not all sourceswill have reporting and recordkeepingimpacts in the first three years ofimplementation. The estimatedannualized cost of CAM on a nationallevel for the first three years ofimplementation is $7,891,000 (in 1995dollars). The annual average totalcapital and operation and maintenancecosts are estimated at $1,230,000 (in1995 dollars) for the first three years ofimplementation. The annual averageburden hours for the first three years ofimplementation are estimated at147,560. The Agency estimated theincremental reporting burden for thiscollection to average 1 hour annuallyper response, and to require between 26and 390 hours annually forrecordkeeping per response. Thisincludes time for conducting activitiesover and above the requirements of part70 such as an accounting of the number,duration and cause of monitordowntime incidents and exceedances, areporting of corrective actions, andkeeping records of data used todocument the adequacy of monitoring.Note that the average burden hours andcosts represent those estimated for thefirst three years of the rule’simplementation during which arelatively small percentage of theaffected pollutant-specific emissionunits will be subject to part 64requirements. More units will beaffected per year in the six to eight yearsfollowing the rule’s publication and thereporting and recordkeeping burdenwill also increase. See the RIA for morediscussion of the costs associated withyears beyond the first three years.

Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, or discloseor provide information to or for aFederal agency. This includes the timeneeded to review instructions; develop,acquire, install, and utilize technologyand systems for the purposes ofcollecting, validating, and verifyinginformation, processing andmaintaining information, and disclosingand providing information; adjust theexisting ways to comply with anypreviously applicable instructions andrequirements; train personnel to be ableto respond to a collection ofinformation; and transmit or otherwisedisclose the information.

An Agency may not conduct orsponsor, and a person is not required torespond to a collection of informationunless it displays a currently valid OMB

control number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR part 9 and 48 CFR Ch. 15.

Send comments on the Agency’s needfor this information, the accuracy of theprovided burden estimates, and anysuggested methods for minimizingrespondent burden, including throughthe use of automated collectiontechniques to the Director, OPPERegulatory Information Division; U.S.Environmental Protection Agency(2137), 401 M St., SW., Washington DC20460; and to the Office of Informationand Regulatory Affairs, Office ofManagement and Budget, 725 17th St.,NW., Washington, DC 20503, marked‘‘Attention: Desk Officer for EPA.’’Comments are requested withinNovember 21, 1997. Include the ICRnumber in any correspondence.

E. Regulatory Flexibility ActThe Agency has determined that it is

not necessary to prepare a regulatoryflexibility analysis in connection withthis rule. A screening analysis wasprepared to examine the potential forsignificant adverse impacts on smallentities associated with specificmonitoring and certification provisions.For small governmental entities thatmay own or operate affected sources,EPA determined that the most likelysmall government and organizationsources affected by the rule aremunicipal power plants and hospitals.After analysis, EPA determined that,given the relatively low numbers ofimpacted sources(140 small governmentutilities and 70 small organizations(hospitals)), the low percentage ofimpacted sources out of the totalnumber of similar sources (11—18percent of small government utilitiesand 3 percent of hospitals), and the lowcost impacts associated with CAM(assumed similar to the cost impact onsmall business as discussed below),there will not be a significant impactupon a substantial number of smallgovernments and organizations. SeeSection V of the Regulatory ImpactAnalysis included in the docket.Nevertheless, in developing the rule,EPA did provide numerousopportunities for consultation withinterested parties, including State, local,and tribal governments, at publicconferences and meetings. The EPAevaluated the comments and concernsexpressed, and the rule reflects, to theextent consistent with the Act, thosecomments and concerns. Mostimportantly, the Agency receivedcomments from approximately 80representatives of municipally-ownedelectric utilities that suggestedexemptions for small municipal utility


units. In response, the rule includes anexemption for certain municipally-owned electric utility units that couldbe affected by the rule. Theseprocedures ensured State and localgovernments an opportunity to givemeaningful and timely input and obtaininformation, education and advice oncompliance.

EPA estimates 4,957 small firmsnationwide could be affected by CAM.A total of 40 affected small firms withinthis group could have a potential impactover one percent of average annualrevenues. The ratio is 0.0087, or lessthan one percent, which represents thepercent of small affected firms that mayexperience greater than a 1 percent (butless than a 3 percent) increase in costsdue to CAM. EPA believes that theseestimates of the number of firmsaffected and the level of cost impact areoverstated due to several conservativeassumptions in the analysis. Theseassumptions are described in Chapter 5of the Regulatory Impact Analysis.Given the conservativeness of thisassessment and the fact that 99 percentof the affected small businesses areexpected to have impacts of less than 1percent and no small business is likelyto experience costs exceeding 3 percent,the EPA concludes that CAM will nothave a significant economic impact ona substantial number of smallbusinesses. In addition, EPA also notesthat the use of general permits undertitle V and assistance through the smallbusiness assistance program provisionsof title V will assist in reducing theimpacts of the part 64 requirements onsmall businesses.

Accordingly, considering all of theabove information, EPA concludes thatthis rule will not have a significanteconomic impact on a substantialnumber of small entities.

F. Submission to Congress and theGeneral Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this ruleand other required information to theU.S. Senate, the U.S. House ofRepresentatives, and the ComptrollerGeneral of the General AccountingOffice prior to publication of the rule intoday’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by U.S.C.804(2).

List of Subjects

40 CFR Part 64

Environmental protection, Airpollution control, Monitoring, Operating

permits, Reporting and recordkeepingrequirements.

40 CFR Part 70Air pollution control, Monitoring,

Operating permits, Reporting andrecordkeeping requirements.

40 CFR Part 71Air pollution control, Monitoring,

Operating permits, Reporting andrecordkeeping requirements.

Dated: October 3, 1997.Carol M. Browner,Administrator.

For the reasons set out in thepreamble, title 40, chapter I of the Codeof Federal Regulations is amended asfollows:

1. Part 64 is added to read as follows:

PART 64—COMPLIANCE ASSURANCEMONITORING

Sec.64.1 Definitions.64.2 Applicability.64.3 Monitoring design criteria.64.4 Submittal requirements.64.5 Deadlines for submittals.64.6 Approval of monitoring.64.7 Operation of approved monitoring.64.8 Quality improvement plan (QIP)

requirements.64.9 Reporting and recordkeeping

requirements.64.10 Savings provisions.

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

§ 64.1 Definitions.The following definitions apply to

this part. Except as specificallyprovided in this section, terms used inthis part retain the meaning accordedthem under the applicable provisions ofthe Act.

Act means the Clean Air Act, asamended by Pub.L. 101–549, 42 U.S.C.7401, et seq.

Applicable requirement shall have thesame meaning as provided under part70 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 acontrol device.

Continuous compliancedetermination method means a method,specified by the applicable standard oran applicable permit condition, which:

(1) Is used to determine compliancewith an emission limitation or standardon a continuous basis, consistent withthe averaging period established for theemission limitation or standard; and

(2) Provides data either in units of thestandard or correlated directly with thecompliance limit.

Control device means equipment,other than inherent process equipment,

that is used to destroy or remove airpollutant(s) prior to discharge to theatmosphere. The types of equipmentthat may commonly be used as controldevices include, but are not limited to,fabric filters, mechanical collectors,electrostatic precipitators, inertialseparators, afterburners, thermal orcatalytic incinerators, adsorptiondevices (such as carbon beds),condensers, scrubbers (such as wetcollection and gas absorption devices),selective catalytic or non-catalyticreduction systems, flue gas recirculationsystems, spray dryers, spray towers,mist eliminators, acid plants, sulfurrecovery plants, injection systems (suchas water, steam, ammonia, sorbent orlimestone injection), and combustiondevices independent of the particularprocess being conducted at an emissionsunit (e.g., the destruction of emissionsachieved by venting process emissionstreams to flares, boilers or processheaters). For purposes of this part, acontrol device does not include passivecontrol measures that act to preventpollutants from forming, such as the useof seals, lids, or roofs to prevent therelease of pollutants, use of low-polluting fuel or feedstocks, or the useof combustion or other process designfeatures or characteristics. If anapplicable requirement establishes thatparticular equipment which otherwisemeets this definition of a control devicedoes not constitute a control device asapplied to a particular pollutant-specificemissions unit, then that definitionshall be binding for purposes of thispart.

Data means the results of any type ofmonitoring or method, including theresults of instrumental or non-instrumental monitoring, emissioncalculations, manual samplingprocedures, recordkeeping procedures,or any other form of informationcollection procedure used in connectionwith any type of monitoring or method.

Emission limitation or standardmeans any applicable requirement thatconstitutes an emission limitation,emission standard, standard ofperformance or means of emissionlimitation as defined under the Act. Anemission limitation or standard may beexpressed 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 fuelinput, kilograms of VOC per liter ofapplied coating solids, or parts permillion by volume of SO2) or as therelationship of uncontrolled tocontrolled emissions (e.g., percentagecapture and destruction efficiency ofVOC or percentage reduction of SO2).


An emission limitation or standard mayalso be expressed either as a workpractice, process or control deviceparameter, or other form of specificdesign, equipment, operational, oroperation and maintenancerequirement. For purposes of this part,an emission limitation or standard shallnot include general operationrequirements that an owner or operatormay be required to meet, such asrequirements to obtain a permit, tooperate and maintain sources inaccordance with good air pollutioncontrol practices, to develop andmaintain a malfunction abatement plan,to keep records, submit reports, orconduct monitoring.

Emissions unit shall have the samemeaning as provided under part 70 ofthis chapter.

Exceedance shall mean a conditionthat is detected by monitoring thatprovides data in terms of an emissionlimitation or standard and that indicatesthat emissions (or opacity) are greaterthan the applicable emission limitationor standard (or less than the applicablestandard in the case of a percentreduction requirement) consistent withany averaging period specified foraveraging the results of the monitoring.

Excursion shall mean a departurefrom an indicator range established formonitoring under this part, consistentwith any averaging period specified foraveraging the results of the monitoring.

Inherent process equipment meansequipment that is necessary for theproper or safe functioning of theprocess, or material recovery equipmentthat the owner or operator documents isinstalled and operated primarily forpurposes other than compliance with airpollution regulations. Equipment thatmust be operated at an efficiency higherthan that achieved during normalprocess operations in order to complywith the applicable emission limitationor standard is not inherent processequipment. For the purposes of thispart, inherent process equipment is notconsidered a control device.

Major source shall have the samemeaning as provided under part 70 or71 of this chapter.

Monitoring means any form ofcollecting data on a routine basis todetermine or otherwise assesscompliance with emission limitations orstandards. Recordkeeping may beconsidered monitoring where suchrecords are used to determine or assesscompliance with an emission limitationor standard (such as records of rawmaterial content and usage, or recordsdocumenting compliance with workpractice requirements). The conduct ofcompliance method tests, such as the

procedures in appendix A to part 60 ofthis chapter, on a routine periodic basismay be considered monitoring (or as asupplement to other monitoring),provided that requirements to conductsuch tests on a one-time basis or at suchtimes as a regulatory authority mayrequire on a non-regular basis are notconsidered monitoring requirements forpurposes of this paragraph. Monitoringmay include one or more than one of thefollowing data collection techniques,where appropriate for a particularcircumstance:

(1) Continuous emission or opacitymonitoring systems.

(2) Continuous process, capturesystem, control device or other relevantparameter monitoring systems orprocedures, including a predictiveemission monitoring system.

(3) Emission estimation andcalculation procedures (e.g., massbalance or stoichiometric calculations).

(4) Maintenance and analysis ofrecords of fuel or raw materials usage.

(5) Recording results of a program orprotocol to conduct specific operationand maintenance procedures.

(6) Verification of emissions, processparameters, capture system parameters,or control device parameters usingportable or in situ measurement devices.

(7) Visible emission observations.(8) Any other form of measuring,

recording, or verifying on a routine basisemissions, process parameters, capturesystem parameters, control deviceparameters or other factors relevant toassessing compliance with emissionlimitations or standards.

Owner or operator means any personwho owns, leases, operates, controls orsupervises a stationary source subject tothis part.

Part 70 or 71 permit shall have thesame meaning as provided under part70 or 71 of this chapter, provided thatit shall also refer to a permit issued,renewed, amended, revised, or modifiedunder any federal permit programpromulgated under title V of the Act.

Part 70 or 71 permit application shallmean an application (including anysupplement to a previously submittedapplication) that is submitted by theowner or operator in order to obtain apart 70 or 71 permit.

Permitting authority shall have thesame meaning as provided under part70 or 71 of this chapter.

Pollutant-specific emissions unitmeans an emissions unit consideredseparately with respect to eachregulated air pollutant.

Potential to emit shall have the samemeaning as provided under part 70 or71 of this chapter, provided that it shallbe applied with respect to an

‘‘emissions unit’’ as defined under thispart in addition to a ‘‘stationary source’’as provided under part 70 or 71 of thischapter.

Predictive emission monitoringsystem (PEMS) means a system that usesprocess and other parameters as inputsto a computer program or other datareduction system to produce values interms of the applicable emissionlimitation or standard.

Regulated air pollutant shall have thesame meaning as provided under part70 or 71 of this chapter.

§ 64.2 Applicability.

(a) General applicability. Except forbackup utility units that are exemptunder paragraph (b)(2) of this section,the requirements of this part shall applyto a pollutant-specific emissions unit ata major source that is required to obtaina part 70 or 71 permit if the unit satisfiesall of the following criteria:

(1) The unit is subject to an emissionlimitation or standard for the applicableregulated air pollutant (or a surrogatethereof), other than an emissionlimitation or standard that is exemptunder paragraph (b)(1) of this section;

(2) The unit uses a control device toachieve compliance with any suchemission limitation or standard; and

(3) The unit has potential pre-controldevice emissions of the applicableregulated air pollutant that are equal toor greater than 100 percent of theamount, in tons per year, required for asource to be classified as a major source.For purposes of this paragraph,‘‘potential pre-control deviceemissions’’ shall have the same meaningas ‘‘potential to emit,’’ as defined in§ 64.1, except that emission reductionsachieved by the applicable controldevice shall not be taken into account.

(b) Exemptions—. (1) Exemptemission limitations or standards. Therequirements of this part shall not applyto any of the following emissionlimitations or standards:

(i) Emission limitations or standardsproposed by the Administrator afterNovember 15, 1990 pursuant to section111 or 112 of the Act.

(ii) Stratospheric ozone protectionrequirements under title VI of the Act.

(iii) Acid Rain Program requirementspursuant to sections 404, 405, 406,407(a), 407(b), or 410 of the Act.

(iv) Emission limitations or standardsor other applicable requirements thatapply solely under an emissions tradingprogram approved or promulgated bythe Administrator under the Act thatallows for trading emissions within asource or between sources.


(v) An emissions cap that meets therequirements specified in § 70.4(b)(12)or § 71.6(a)(13)(iii) of this chapter.

(vi) Emission limitations or standardsfor which a part 70 or 71 permitspecifies a continuous compliancedetermination method, as defined in§ 64.1. The exemption provided in thisparagraph (b)(1)(vi) shall not apply ifthe applicable compliance methodincludes an assumed control deviceemission reduction factor that could beaffected by the actual operation andmaintenance of the control device (suchas a surface coating line controlled byan incinerator for which continuouscompliance is determined by calculatingemissions on the basis of coatingrecords and an assumed control deviceefficiency factor based on an initialperformance test; in this example, thispart would apply to the control deviceand capture system, but not to theremaining elements of the coating line,such as raw material usage).

(2) Exemption for backup utilitypower emissions units. Therequirements of this part shall not applyto a utility unit, as defined in § 72.2 ofthis chapter, that is municipally-ownedif the owner or operator providesdocumentation in a part 70 or 71 permitapplication that:

(i) The utility unit is exempt from allmonitoring requirements in part 75(including the appendices thereto) ofthis chapter;

(ii) The utility unit is operated for thesole purpose of providing electricityduring periods of peak electricaldemand or emergency situations andwill be operated consistent with thatpurpose throughout the part 70 or 71permit term. The owner or operatorshall provide historical operating dataand relevant contractual obligations todocument that this criterion is satisfied;and

(iii) The actual emissions from theutility unit, based on the average annualemissions over the last three calendaryears of operation (or such shorter timeperiod that is available for units withfewer than three years of operation) areless than 50 percent of the amount intons per year required for a source to beclassified as a major source and areexpected to remain so.

§ 64.3 Monitoring design criteria.(a) General criteria. To provide a

reasonable assurance of compliancewith emission limitations or standardsfor the anticipated range of operations ata pollutant-specific emissions unit,monitoring under this part shall meetthe following general criteria:

(1) The owner or operator shall designthe monitoring to obtain data for one or

more indicators of emission controlperformance for the control device, anyassociated capture system and, ifnecessary to satisfy paragraph (a)(2) ofthis section, processes at a pollutant-specific emissions unit. Indicators ofperformance may include, but are notlimited to, direct or predicted emissions(including visible emissions or opacity),process and control device parametersthat affect control device (and capturesystem) efficiency or emission rates, orrecorded findings of inspection andmaintenance activities conducted by theowner or operator.

(2) The owner or operator shallestablish an appropriate range(s) ordesignated condition(s) for the selectedindicator(s) such that operation withinthe ranges provides a reasonableassurance of ongoing compliance withemission limitations or standards for theanticipated range of operatingconditions. Such range(s) orcondition(s) shall reflect the properoperation and maintenance of thecontrol device (and associated capturesystem), in accordance with applicabledesign properties, for minimizingemissions over the anticipated range ofoperating conditions at least to the levelrequired to achieve compliance with theapplicable requirements. The reasonableassurance of compliance will beassessed by maintaining performancewithin the indicator range(s) ordesignated condition(s). The rangesshall be established in accordance withthe design and performancerequirements in this section anddocumented in accordance with therequirements in § 64.4. If necessary toassure that the control device andassociated capture system can satisfythis criterion, the owner or operatorshall monitor appropriate processoperational parameters (such as totalthroughput where necessary to staywithin the rated capacity for a controldevice). In addition, unless specificallystated otherwise by an applicablerequirement, the owner or operator shallmonitor indicators to detect any bypassof the control device (or capture system)to the atmosphere, if such bypass canoccur based on the design of thepollutant-specific emissions unit.

(3) The design of indicator ranges ordesignated conditions may be:

(i) Based on a single maximum orminimum value if appropriate (e.g.,maintaining condenser temperatures acertain number of degrees below thecondensation temperature of theapplicable compound(s) beingprocessed) or at multiple levels that arerelevant to distinctly different operatingconditions (e.g., high versus low loadlevels).

(ii) Expressed as a function of processvariables (e.g., an indicator rangeexpressed as minimum to maximumpressure drop across a venturi throat ina particulate control scrubber).

(iii) Expressed as maintaining theapplicable parameter in a particularoperational status or designatedcondition (e.g., position of a dampercontrolling gas flow to the atmospherethrough a by-pass duct).

(iv) Established as interdependentbetween more than one indicator.

(b) Performance criteria. The owner oroperator shall design the monitoring tomeet the following performance criteria:

(1) Specifications that provide forobtaining data that are representative ofthe emissions or parameters beingmonitored (such as detector locationand installation specifications, ifapplicable).

(2) For new or modified monitoringequipment, verification procedures toconfirm the operational status of themonitoring prior to the date by whichthe owner or operator must conductmonitoring under this part as specifiedin § 64.7(a). The owner or operator shallconsider the monitoring equipmentmanufacturer’s requirements orrecommendations for installation,calibration, and start-up operation.

(3) Quality assurance and controlpractices that are adequate to ensure thecontinuing validity of the data. Theowner or operator shall considermanufacturer recommendations orrequirements applicable to themonitoring in developing appropriatequality assurance and control practices.

(4) Specifications for the frequency ofconducting the monitoring, the datacollection procedures that will be used(e.g., computerized data acquisition andhandling, alarm sensor, or manual logentries based on gauge readings), and, ifapplicable, the period over whichdiscrete data points will be averaged forthe purpose of determining whether anexcursion or exceedance has occurred.

(i) At a minimum, the owner oroperator shall design the period overwhich data are obtained and, ifapplicable, averaged consistent with thecharacteristics and typical variability ofthe pollutant-specific emissions unit(including the control device andassociated capture system). Suchintervals shall be commensurate withthe time period over which a change incontrol device performance that wouldrequire actions by owner or operator toreturn operations within normal rangesor designated conditions is likely to beobserved.

(ii) For all pollutant-specificemissions units with the potential toemit, calculated including the effect of


control devices, the applicable regulatedair pollutant in an amount equal to orgreater than 100 percent of the amount,in tons per year, required for a sourceto be classified as a major source, foreach parameter monitored, the owner oroperator shall collect four or more datavalues equally spaced over each hourand average the values, as applicable,over the applicable averaging period asdetermined in accordance withparagraph (b)(4)(i) of this section. Thepermitting authority may approve areduced data collection frequency, ifappropriate, based on informationpresented by the owner or operatorconcerning the data collectionmechanisms available for a particularparameter for the particular pollutant-specific emissions unit (e.g., integratedraw material or fuel analysis data,noninstrumental measurement of wastefeed rate or visible emissions, use of aportable analyzer or an alarm sensor).

(iii) For other pollutant-specificemissions units, the frequency of datacollection may be less than thefrequency specified in paragraph(b)(4)(ii) of this section but themonitoring shall include some datacollection at least once per 24-hourperiod (e.g., a daily inspection of acarbon adsorber operation inconjunction with a weekly or monthlycheck of emissions with a portableanalyzer).

(c) Evaluation factors. In designingmonitoring to meet the requirements inparagraphs (a) and (b) of this section,the owner or operator shall take intoaccount site-specific factors includingthe applicability of existing monitoringequipment and procedures, the abilityof the monitoring to account for processand control device operationalvariability, the reliability and latitudebuilt into the control technology, andthe level of actual emissions relative tothe compliance limitation.

(d) Special criteria for the use ofcontinuous emission, opacity orpredictive monitoring systems. (1) If acontinuous emission monitoring system(CEMS), continuous opacity monitoringsystem (COMS) or predictive emissionmonitoring system (PEMS) is requiredpursuant to other authority under theAct or state or local law, the owner oroperator shall use such system to satisfythe requirements of this part.

(2) The use of a CEMS, COMS, orPEMS that satisfies any of the followingmonitoring requirements shall bedeemed to satisfy the general designcriteria in paragraphs (a) and (b) of thissection, provided that a COMS may besubject to the criteria for establishingindicator ranges under paragraph (a) ofthis section:

(i) Section 51.214 and appendix P ofpart 51 of this chapter;

(ii) Section 60.13 and appendix B ofpart 60 of this chapter;

(iii) Section 63.8 and any applicableperformance specifications requiredpursuant to the applicable subpart ofpart 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 withthe requirements listed in the precedingparagraphs (d)(2)(i) through (v) of thissection, comparable requirements andspecifications established by thepermitting authority.

(3) The owner or operator shall designthe monitoring system subject to thisparagraph (d) to:

(i) Allow for reporting of exceedances(or excursions if applicable to a COMSused to assure compliance with aparticulate matter standard), consistentwith any period for reporting ofexceedances in an underlyingrequirement. If an underlyingrequirement does not contain aprovision for establishing an averagingperiod for the reporting of exceedancesor excursions, the criteria used todevelop an averaging period in (b)(4) ofthis section shall apply; and

(ii) Provide an indicator rangeconsistent with paragraph (a) of thissection for a COMS used to assurecompliance with a particulate matterstandard. If an opacity standard appliesto the pollutant-specific emissions unit,such limit may be used as theappropriate indicator range unless theopacity limit fails to meet the criteria inparagraph (a) of this section afterconsidering the type of control deviceand other site-specific factors applicableto the pollutant-specific emissions unit.

§ 64.4 Submittal requirements.(a) The owner or operator shall submit

to the permitting authority monitoringthat satisfies the design requirements in§ 64.3. The submission shall include thefollowing information:

(1) The indicators to be monitored tosatisfy §§ 64.3(a)(1)–(2);

(2) The ranges or designatedconditions for such indicators, or theprocess by which such indicator rangesor designated conditions shall beestablished;

(3) The performance criteria for themonitoring to satisfy § 64.3(b); and

(4) If applicable, the indicator rangesand performance criteria for a CEMS,COMS or PEMS pursuant to § 64.3(d).

(b) As part of the informationsubmitted, the owner or operator shallsubmit a justification for the proposed

elements of the monitoring. If theperformance specifications proposed tosatisfy § 64.3(b)(2) or (3) includedifferences from manufacturerrecommendations, the owner oroperator shall explain the reasons forthe differences between therequirements proposed by the owner oroperator and the manufacturer’srecommendations or requirements. Theowner or operator also shall submit anydata supporting the justification, andmay refer to generally available sourcesof information used to support thejustification (such as generally availableair pollution engineering manuals, orEPA or permitting authoritypublications on appropriate monitoringfor various types of control devices orcapture systems). To justify theappropriateness of the monitoringelements proposed, the owner oroperator may rely in part on existingapplicable requirements that establishthe monitoring for the applicablepollutant-specific emissions unit or asimilar unit. If an owner or operatorrelies on presumptively acceptablemonitoring, no further justification forthe appropriateness of that monitoringshould be necessary other than anexplanation of the applicability of suchmonitoring to the unit in question,unless data or information is broughtforward to rebut the assumption.Presumptively acceptable monitoringincludes:

(1) Presumptively acceptable orrequired monitoring approaches,established by the permitting authorityin a rule that constitutes part of theapplicable implementation planrequired pursuant to title I of the Act,that are designed to achieve compliancewith this part for particular pollutant-specific emissions units;

(2) Continuous emission, opacity orpredictive emission monitoring systemsthat satisfy applicable monitoringrequirements and performancespecifications as specified in § 64.3(d);

(3) Excepted or alternative monitoringmethods allowed or approved pursuantto part 75 of this chapter;

(4) Monitoring included for standardsexempt from this part pursuant to§ 64.2(b)(1)(i) or (vi) to the extent suchmonitoring is applicable to theperformance of the control device (andassociated capture system) for thepollutant-specific emissions unit; and

(5) Presumptively acceptablemonitoring identified in guidance byEPA. Such guidance will address therequirements under §§ 64.4(a), (b), and(c) to the extent practicable.

(c)(1) Except as provided in paragraph(d) of this section, the owner or operatorshall submit control device (and process


and capture system, if applicable)operating parameter data obtainedduring the conduct of the applicablecompliance or performance testconducted under conditions specifiedby the applicable rule. If the applicablerule does not specify testing conditionsor only partially specifies testconditions, the performance testgenerally shall be conducted underconditions representative of maximumemissions potential under anticipatedoperating conditions at the pollutant-specific emissions unit. Such data maybe supplemented, if desired, byengineering assessments andmanufacturer’s recommendations tojustify the indicator ranges (or, ifapplicable, the procedures forestablishing such indicator ranges).Emission testing is not required to beconducted over the entire indicatorrange or range of potential emissions.

(2) The owner or operator mustdocument that no changes to thepollutant-specific emissions unit,including the control device andcapture system, have taken place thatcould result in a significant change inthe control system performance or theselected ranges or designated conditionsfor the indicators to be monitored sincethe performance or compliance testswere conducted.

(d) If existing data from unit-specificcompliance or performance testingspecified in paragraph (c) of this sectionare not available, the owner or operator:

(1) Shall submit a test plan andschedule for obtaining such data inaccordance with paragraph (e) of thissection; or

(2) May submit indicator ranges (orprocedures for establishing indicatorranges) that rely on engineeringassessments and other data, providedthat the owner or operator demonstratesthat factors specific to the type ofmonitoring, control device, or pollutant-specific emissions unit makecompliance or performance testingunnecessary to establish indicatorranges at levels that satisfy the criteriain § 64.3(a).

(e) If the monitoring submitted by theowner or operator requires installation,testing, or other necessary activitiesprior to use of the monitoring forpurposes of this part, the owner oroperator shall include animplementation plan and schedule forinstalling, testing and performing anyother appropriate activities prior to useof the monitoring. The implementationplan and schedule shall provide for useof the monitoring as expeditiously aspracticable after approval of themonitoring in the part 70 or 71 permitpursuant to § 64.6, but in no case shall

the schedule for completing installationand beginning operation of themonitoring exceed 180 days afterapproval of the permit.

(f) If a control device is common tomore than one pollutant-specificemissions unit, the owner or operatormay submit monitoring for the controldevice and identify the pollutant-specific emissions units affected andany process or associated capture deviceconditions that must be maintained ormonitored in accordance with § 64.3(a)rather than submit separate monitoringfor each pollutant-specific emissionsunit.

(g) If a single pollutant-specificemissions unit is controlled by morethan one control device similar indesign and operation, the owner oroperator may submit monitoring thatapplies to all the control devices andidentify the control devices affected andany process or associated capture deviceconditions that must be maintained ormonitored in accordance with § 64.3(a)rather than submit a separatedescription of monitoring for eachcontrol device.

§ 64.5 Deadlines for submittals.(a) Large pollutant-specific emissions

units. For all pollutant-specificemissions units with the potential toemit (taking into account controldevices to the extent appropriate underthe definition of this term in § 64.1) theapplicable regulated air pollutant in anamount equal to or greater than 100percent of the amount, in tons per year,required for a source to be classified asa major source, the owner or operatorshall submit the information requiredunder § 64.4 at the following times:

(1) On or after April 20, 1998, theowner or operator shall submitinformation as part of an application foran initial part 70 or 71 permit if, by thatdate, 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 submitinformation as part of an application fora significant permit revision under part70 or 71 of this chapter, but only withrespect to those pollutant-specificemissions units for which the proposedpermit revision is applicable.

(3) The owner or operator shallsubmit any information not submittedunder the deadlines set forth inparagraphs (a)(1) and (2) of this sectionas part of the application for the renewalof a part 70 or 71 permit.

(b) Other pollutant-specific emissionsunits. For all other pollutant-specificemissions units subject to this part and

not subject to § 64.5(a), the owner oroperator shall submit the informationrequired under § 64.4 as part of anapplication for a renewal of a part 70 or71 permit.

(c) The effective date for therequirement to submit informationunder § 64.4 shall be as specifiedpursuant to paragraphs (a)–(b) of thissection and a permit reopening torequire the submittal of informationunder this section shall not be requiredpursuant to § 70.7(f)(1)(i) of this chapter,provided, however, that, if a part 70 or71 permit is reopened for cause by EPAor the permitting authority pursuant to§ 70.7(f)(1)(iii) or (iv), or § 71.7(f) or (g),the applicable agency may require thesubmittal of information under thissection for those pollutant-specificemissions units that are subject to thispart and that are affected by the permitreopening.

(d) Prior to approval of monitoringthat satisfies this part, the owner oroperator is subject to the requirementsof § 70.6(a)(3)(i)(B).

§ 64.6 Approval of monitoring.(a) Based on an application that

includes the information submitted inaccordance with § 64.5, the permittingauthority shall act to approve themonitoring submitted by the owner oroperator by confirming that themonitoring satisfies the requirements in§ 64.3.

(b) In approving monitoring underthis section, the permitting authoritymay condition the approval on theowner or operator collecting additionaldata on the indicators to be monitoredfor a pollutant-specific emissions unit,including required compliance orperformance testing, to confirm theability of the monitoring to provide datathat are sufficient to satisfy therequirements of this part and to confirmthe appropriateness of an indicatorrange(s) or designated condition(s)proposed to satisfy § 64.3(a)(2) and (3)and consistent with the schedule in§ 64.4(e).

(c) If the permitting authorityapproves the proposed monitoring, thepermitting authority shall establish oneor more permit terms or conditions thatspecify the required monitoring inaccordance with § 70.6(a)(3)(i) of thischapter. At a minimum, the permit shallspecify:

(1) The approved monitoringapproach that includes all of thefollowing:

(i) The indicator(s) to be monitored(such as temperature, pressure drop,emissions, or similar parameter);

(ii) The means or device to be used tomeasure the indicator(s) (such as


temperature measurement device, visualobservation, or CEMS); and

(iii) The performance requirementsestablished to satisfy § 64.3(b) or (d), asapplicable.

(2) The means by which the owner oroperator will define an exceedance orexcursion for purposes of responding toand reporting exceedances or excursionsunder §§ 64.7 and 64.8 of this part. Thepermit shall specify the level at whichan excursion or exceedance will bedeemed to occur, including theappropriate averaging period associatedwith such exceedance or excursion. Fordefining an excursion from an indicatorrange or designated condition, thepermit may either include the specificvalue(s) or condition(s) at which anexcursion shall occur, or the specificprocedures that will be used to establishthat value or condition. If the latter, thepermit shall specify appropriate noticeprocedures for the owner or operator tonotify the permitting authority upon anyestablishment or reestablishment of thevalue.

(3) The obligation to conduct themonitoring and fulfill the otherobligations specified in §§ 64.7 through64.9 of this part.

(4) If appropriate, a minimum dataavailability requirement for valid datacollection for each averaging period,and, if appropriate, a minimum dataavailability requirement for theaveraging periods in a reporting period.

(d) If the monitoring proposed by theowner or operator requires installation,testing or final verification ofoperational status, the part 70 or 71permit shall include an enforceableschedule with appropriate milestonesfor completing such installation, testing,or final verification consistent with therequirements in § 64.4(e).

(e) If the permitting authoritydisapproves the proposed monitoring,the following applies:

(1) The draft or final permit shallinclude, at a minimum, monitoring thatsatisfies the requirements of§ 70.6(a)(3)(i)(B);

(2) The permitting authority shallinclude in the draft or final permit acompliance schedule for the sourceowner to submit monitoring thatsatisfies §§ 64.3 and 64.4, but in no caseshall the owner or operator submitrevised monitoring more than 180 daysfrom the date of issuance of the draft orfinal permit; and

(3) If the source owner or operatordoes not submit the monitoring inaccordance with the complianceschedule as required in paragraph (e)(2)of this section or if the permittingauthority disapproves the monitoringsubmitted, the source owner or operator

shall be deemed not in compliance withpart 64, unless the source owner oroperator successfully challenges thedisapproval.

§ 64.7 Operation of approved monitoring.(a) Commencement of operation. The

owner or operator shall conduct themonitoring required under this partupon issuance of a part 70 or 71 permitthat includes such monitoring, or bysuch later date specified in the permitpursuant to § 64.6(d).

(b) Proper maintenance. At all times,the owner or operator shall maintain themonitoring, including but not limitedto, maintaining necessary parts forroutine repairs of the monitoringequipment.

(c) Continued operation. Except for, asapplicable, monitoring malfunctions,associated repairs, and required qualityassurance or control activities(including, as applicable, calibrationchecks and required zero and spanadjustments), the owner or operatorshall conduct all monitoring incontinuous operation (or shall collectdata at all required intervals) at all timesthat the pollutant-specific emissionsunit is operating. Data recorded duringmonitoring malfunctions, associatedrepairs, and required quality assuranceor control activities shall not be used forpurposes of this part, including dataaverages and calculations, or fulfilling aminimum data availability requirement,if applicable. The owner or operatorshall use all the data collected during allother periods in assessing the operationof the control device and associatedcontrol system. A monitoringmalfunction is any sudden, infrequent,not reasonably preventable failure of themonitoring to provide valid data.Monitoring failures that are caused inpart by poor maintenance or carelessoperation are not malfunctions.

(d) Response to excursions orexceedances. (1) Upon detecting anexcursion or exceedance, the owner oroperator shall restore operation of thepollutant-specific emissions unit(including the control device andassociated capture system) to its normalor usual manner of operation asexpeditiously as practicable inaccordance with good air pollutioncontrol practices for minimizingemissions. The response shall includeminimizing the period of any startup,shutdown or malfunction and takingany necessary corrective actions torestore normal operation and preventthe likely recurrence of the cause of anexcursion or exceedance (other thanthose caused by excused startup orshutdown conditions). Such actionsmay include initial inspection and

evaluation, recording that operationsreturned to normal without operatoraction (such as through response by acomputerized distribution controlsystem), or any necessary follow-upactions to return operation to within theindicator range, designated condition, orbelow the applicable emissionlimitation or standard, as applicable.

(2) Determination of whether theowner or operator has used acceptableprocedures in response to an excursionor exceedance will be based oninformation available, which mayinclude but is not limited to, monitoringresults, review of operation andmaintenance procedures and records,and inspection of the control device,associated capture system, and theprocess.

(e) Documentation of need forimproved monitoring. After approval ofmonitoring under this part, if the owneror operator identifies a failure to achievecompliance with an emission limitationor standard for which the approvedmonitoring did not provide anindication of an excursion orexceedance while providing valid data,or the results of compliance orperformance testing document a need tomodify the existing indicator ranges ordesignated conditions, the owner oroperator shall promptly notify thepermitting authority and, if necessary,submit a proposed modification to thepart 70 or 71 permit to address thenecessary monitoring changes. Such amodification may include, but is notlimited to, reestablishing indicatorranges or designated conditions,modifying the frequency of conductingmonitoring and collecting data, or themonitoring of additional parameters.

§ 64.8 Quality improvement plan (QIP)requirements.

(a) Based on the results of adetermination made under § 64.7(d)(2),the Administrator or the permittingauthority may require the owner oroperator to develop and implement aQIP. Consistent with § 64.6(c)(3), thepart 70 or 71 permit may specify anappropriate threshold, such as anaccumulation of exceedances orexcursions exceeding 5 percent durationof a pollutant-specific emissions unit’soperating time for a reporting period, forrequiring the implementation of a QIP.The threshold may be set at a higher orlower percent or may rely on othercriteria for purposes of indicatingwhether a pollutant-specific emissionsunit is being maintained and operatedin a manner consistent with good airpollution control practices.

(b) Elements of a QIP:


(1) The owner or operator shallmaintain a written QIP, if required, andhave it available for inspection.

(2) The plan initially shall includeprocedures for evaluating the controlperformance problems and, based on theresults of the evaluation procedures, theowner or operator shall modify the planto include procedures for conductingone or more of the following actions, asappropriate:

(i) Improved preventive maintenancepractices.

(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 withone or more steps under paragraphs(b)(2)(i) through (iv) of this section).

(c) If a QIP is required, the owner oroperator shall develop and implement aQIP as expeditiously as practicable andshall notify the permitting authority ifthe period for completing theimprovements contained in the QIPexceeds 180 days from the date onwhich the need to implement the QIPwas determined.

(d) Following implementation of aQIP, upon any subsequentdetermination pursuant to § 64.7(d)(2)the Administrator or the permittingauthority may require that an owner oroperator make reasonable changes to theQIP if the QIP is found to have:

(1) Failed to address the cause of thecontrol device performance problems; or

(2) Failed to provide adequateprocedures for correcting control deviceperformance problems as expeditiouslyas practicable in accordance with goodair pollution control practices forminimizing emissions.

(e) Implementation of a QIP shall notexcuse the owner or operator of a sourcefrom compliance with any existingemission limitation or standard, or anyexisting monitoring, testing, reporting orrecordkeeping requirement that mayapply under federal, state, or local law,or any other applicable requirementsunder the Act.

§ 64.9 Reporting and recordkeepingrequirements.

(a) General reporting requirements. (1)On and after the date specified in§ 64.7(a) by which the owner or operatormust use monitoring that meets therequirements of this part, the owner oroperator shall submit monitoring reportsto the permitting authority inaccordance with § 70.6(a)(3)(iii) of thischapter.

(2) A report for monitoring under thispart shall include, at a minimum, the

information required under§ 70.6(a)(3)(iii) of this chapter and thefollowing information, as applicable:

(i) Summary information on thenumber, duration and cause (includingunknown cause, if applicable) ofexcursions or exceedances, asapplicable, and the corrective actionstaken;

(ii) Summary information on thenumber, duration and cause (includingunknown cause, if applicable) formonitor downtime incidents (other thandowntime associated with zero andspan or other daily calibration checks, ifapplicable); and

(iii) A description of the actions takento implement a QIP during the reportingperiod as specified in § 64.8. Uponcompletion of a QIP, the owner oroperator shall include in the nextsummary report documentation that theimplementation of the plan has beencompleted and reduced the likelihoodof similar levels of excursions orexceedances occurring.

(b) General recordkeepingrequirements. (1) The owner or operatorshall comply with the recordkeepingrequirements specified in § 70.6(a)(3)(ii)of this chapter. The owner or operatorshall maintain records of monitoringdata, monitor performance data,corrective actions taken, any writtenquality improvement plan requiredpursuant to § 64.8 and any activitiesundertaken to implement a qualityimprovement plan, and othersupporting information required to bemaintained under this part (such as dataused to document the adequacy ofmonitoring, or records of monitoringmaintenance or corrective actions).

(2) Instead of paper records, theowner or operator may maintain recordson alternative media, such as microfilm,computer files, magnetic tape disks, ormicrofiche, provided that the use ofsuch alternative media allows forexpeditious inspection and review, anddoes not conflict with other applicablerecordkeeping requirements.

§ 64.10 Savings provisions.(a) Nothing in this part shall:(1) Excuse the owner or operator of a

source from compliance with anyexisting emission limitation or standard,or any existing monitoring, testing,reporting or recordkeeping requirementthat may apply under federal, state, orlocal law, or any other applicablerequirements under the Act. Therequirements of this part shall not beused to justify the approval ofmonitoring less stringent than themonitoring which is required underseparate legal authority and are notintended to establish minimum

requirements for the purpose ofdetermining the monitoring to beimposed under separate authority underthe Act, including monitoring inpermits issued pursuant to title I of theAct. The purpose of this part is torequire, as part of the issuance of apermit under title V of the Act,improved or new monitoring at thoseemissions units where monitoringrequirements do not exist or areinadequate to meet the requirements ofthis part.

(2) Restrict or abrogate the authorityof the Administrator or the permittingauthority to impose additional or morestringent monitoring, recordkeeping,testing, or reporting requirements onany owner or operator of a source underany provision of the Act, including butnot limited to sections 114(a)(1) and504(b), or state law, as applicable.

(3) Restrict or abrogate the authorityof the Administrator or permittingauthority to take any enforcement actionunder the Act for any violation of anapplicable requirement or of any personto take action under section 304 of theAct.

PART 70—STATE OPERATING PERMITPROGRAMS

1. The authority citation for part 70continues to read as follows:

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

2. Section 70.6 is amended by revisingparagraphs (a)(3)(i)(A) and (c)(5)(iii) and(c)(5)(iv), and by removing (c)(5)(v) toread as follows:

§ 70.6 Permit content.

* * * * *(a) * * *(3) * * *(i) * * *(A) All monitoring and analysis

procedures or test methods requiredunder applicable monitoring and testingrequirements, including part 64 of thischapter and any other procedures andmethods that may be promulgatedpursuant to sections 114(a)(3) or 504(b)of the Act. If more than one monitoringor testing requirement applies, thepermit may specify a streamlined set ofmonitoring or testing provisionsprovided the specified monitoring ortesting is adequate to assure complianceat least to the same extent as themonitoring or testing applicablerequirements that are not included inthe permit as a result of suchstreamlining;* * * * *

(c) * * *(5) * * *(iii) A requirement that the

compliance certification include all of


the following (provided that theidentification of applicable informationmay cross-reference the permit orprevious reports, as applicable):

(A) The identification of each term orcondition of the permit that is the basisof the certification;

(B) The identification of the method(s)or other means used by the owner oroperator for determining the compliancestatus with each term and conditionduring the certification period, andwhether such methods or other meansprovide continuous or intermittent data.Such methods and other means shallinclude, at a minimum, the methodsand means required under paragraph(a)(3) of this section. If necessary, theowner or operator also shall identify anyother material information that must beincluded in the certification to complywith section 113(c)(2) of the Act, whichprohibits knowingly making a falsecertification or omitting materialinformation;

(C) The status of compliance with theterms and conditions of the permit forthe period covered by the certification,based on the method or meansdesignated in paragraph (c)(5)(iii)(B) ofthis section. The certification shallidentify each deviation and take it intoaccount in the compliance certification.The certification shall also identify aspossible exceptions to compliance anyperiods during which compliance isrequired and in which an excursion orexceedance as defined under part 64 ofthis chapter occurred; and

(D) Such other facts as the permittingauthority may require to determine thecompliance status of the source.

(iv) A requirement that all compliancecertifications be submitted to theAdministrator as well as to thepermitting authority.* * * * *

PART 71—FEDERAL OPERATINGPERMITS PROGRAMS

1. The authority citation for part 71continues to read as follows:

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

2. Section 71.6 is amended by revisingparagraphs (a)(3)(i)(A), (a)(3)(iii)(C),

(c)(5)(iii) and (c)(5)(iv), and by removing(c)(5)(v) to read as follows:

§ 71.6 Permit content.

* * * * *(a) * * *(3) * * *(i) * * *(A) All monitoring and analysis

procedures or test methods requiredunder applicable monitoring and testingrequirements, including part 64 of thischapter and any other procedures andmethods that may be promulgatedpursuant to sections 114(a)(3) or 504(b)of the Act. If more than one monitoringor testing requirement applies, thepermit may specify a streamlined set ofmonitoring or testing provisionsprovided the specified monitoring ortesting is adequate to assure complianceat least to the same extent as themonitoring or testing applicablerequirements that are not included inthe permit as a result of suchstreamlining;* * * * *

(iii) * * *(C) For purposes of paragraph

(a)(3)(iii)(B) of this section, deviationmeans any situation in which anemissions unit fails to meet a permitterm or condition. A deviation is notalways a violation. A deviation can bedetermined by observation or throughreview of data obtained from anytesting, monitoring, or recordkeepingestablished in accordance withparagraphs (a)(3)(i) and (a)(3)(ii) of thissection. For a situation lasting morethan 24 hours which constitutes adeviation, each 24 hour period isconsidered a separate deviation.Included in the meaning of deviationare any of the following:

(1) A situation where emissionsexceed an emission limitation orstandard;

(2) A situation where process oremissions control device parametervalues indicate that an emissionlimitation or standard has not been met;

(3) A situation in which observationsor data collected demonstratesnoncompliance with an emissionlimitation or standard or any work

practice or operating condition requiredby the permit;

(4) A situation in which anexceedance or an excursion, as definedin part 64 of this chapter, occurs.* * * * *

(c) * * *(5) * * *(iii) A requirement that the

compliance certification include all ofthe following (provided that theidentification of applicable informationmay cross-reference the permit orprevious reports, as applicable):

(A) The identification of each term orcondition of the permit that is the basisof the certification;

(B) The identification of the method(s)or other means used by the owner oroperator for determining the compliancestatus with each term and conditionduring the certification period, andwhether such methods or other meansprovide continuous or intermittent data.Such methods and other means shallinclude, at a minimum, the methodsand means required under paragraph(a)(3) of this section. If necessary, theowner or operator also shall identify anyother material information that must beincluded in the certification to complywith section 113(c)(2) of the Act, whichprohibits knowingly making a falsecertification or omitting materialinformation;

(C) The status of compliance with theterms and conditions of the permit forthe period covered by the certification,based on the method or meansdesignated in paragraph (c)(5)(iii)(B) ofthis section. The certification shallidentify each deviation and take it intoaccount in the compliance certification;and

(D) Such other facts as the permittingauthority may require to determine thecompliance status of the source.

(iv) A requirement that all compliancecertifications be submitted to theAdministrator as well as to thepermitting authority.* * * * *[FR Doc. 97–27264 Filed 10–21–97; 8:45 am]BILLING CODE 6560–50–P

federal register · federal register/vol. 62, no. 204/wednesday, october 22, 1997/rules and...

Documents