Compliance Certification Requirements for State and Federal Operating Permits

On March 29, 2013, U.S. EPA proposed to amend the compliance certification requirements for state and federal operating permits programs that were published in the Federal Register on June 27, 2003.  Specifically, U.S. EPA proposes to restore a sentence that was inadvertently removed from the operating permit program rules found in 40 CFR Parts 70 (State Operating Permit Programs) and 71 (Federal Operating Permit Programs) due to what U.S. EPA characterizes as an editing error.  U.S. EPA proposes to restore the sentence to its original location at the end of paragraphs located at 40 CFR 70.6(c)(5)(iii)(B) and 40 CFR 71.6(c)(5)(iii)(B).  Once restored, the sentence will appear as follows: “If necessary, the owner or operator also shall identify any other material information that must be included in the certification to comply with section 113(c)(2) of the [Clean Air Act], which prohibits knowingly making a false certification or omitting material information.” 

The restoration of the sentence plays a part in the larger context of U.S. EPA’s 1997 Compliance Assurance Monitoring (CAM) and Credible Evidence rules, which pertain to how data is treated with regards to compliance certifications.  The CAM rule requires U.S. EPA to promulgate regulations pertaining to the enhanced monitoring and compliance certification of 40 CFR Parts 70 and 71 sources.  Acting in conjunction with the CAM rule, the Credible Evidence rule mandates that non-reference test data may be used in enforcement actions pertaining to compliance certifications under section 114 and Title V of the Clean Air Act (CAA). 

Therefore, with respect to both the CAM and Credible Evidence rules, the U.S. EPA proposes that the omission of the sentence from the Part 70 and 71 rules, as it relates to the final CAM Monitoring Rule, was inadvertent, and the restoration of the sentence would add clarity to the use of CAM monitoring data as a required element of meeting the annual compliance certification requirements of both the state and federal operating permit rules.  More specifically, the sentence would clarify that material information (i.e., compliance information beyond required monitoring) known by the owner or operator must be identified and addressed in compliance certifications consistent with section 113(c)(2) of CAA.

The U. S. EPA is requesting comments only on whether the language in question should or should not be restored on the sole basis that the removal of the language in question was inadvertent.  However, the EPA is not requesting comments on any other aspects of these provisions or on any other provisions of the part 70 and 71 rules.  Comments will be accepted until May 28, 2013, and if requested prior to April 19, 2013, a public hearing will be held.