STAPPA and ALAPCO Briefing Paper on EPA's Rulemakings to Implement Enhanced Monitoring, Compliance Certification, and Credible Evidence Requirements (March 19, 1997) STAPPA and ALAPCO Briefing Paper on EPA s Rulemakings to Implement Enhanced Monitoring, Compliance Certification, and Credible Evidence Requirements March 19, 1997 The following brief is intended to provide a summary of EPA s efforts to develop and promulgate regulations mandated under the Clean Air Act relating to enhanced monitoring, compliance certification, and credible evidence. Section 114(a)(3) requires EPA to implement enhanced monitoring and compliance certification requirements for major stationary source owners or operators, which are subject to the Title V operating permits program. Section 113(a) authorizes the use of other credible evidence in addition to data obtained using reference test methodologies. In 1990, Congress passed, and the President signed, comprehensive amendments to the Clean Air Act, including new requirements for enhanced monitoring and compliance certifications by major sources of regulated air pollutants (Section 114(a)(3)). That section provides that: The Administrator shall in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, require enhanced monitoring and submission of compliance certifications. The 1990 Amendments also added new authority for EPA (and its delegatees) to use expanded forms of air quality information when determining sources violations of applicable emission standards (Section 113(a)). That section provides that: Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator [may issue compliance orders, administrative penalties, or bring civil actions] (emphasis added). The 1990 Amendments also revised Section 113(e)(1) to nullify a federal court decision (United States v. Kaiser Steel Corp., No. CV-82-2623 IH (C.D. Cal., Jan. 17, 1984)) that
had held that only specified reference test data could be used to prove violations of applicable emissions limits. In October 1993, EPA published in the Federal Register (58 FR 54648) a proposed rule to implement the Section 114(a)(3) enhanced monitoring and compliance certification requirements, which was coined the Enhanced Monitoring (EM) rulemaking. In the same Federal Register notice, EPA solicited comment on its proposal to amend 40 CFR Parts 51, 52, 60, and 61 to implement the requirements in Section 113(a) by eliminating language in those Parts that provided for exclusive reliance on reference test methods as the means of demonstrating compliance with various emission limits under the Act. This proposal is referred to as the Credible Evidence rulemaking. The STAPPA and ALAPCO Enforcement Committee developed a set of principles for developing comments on EPA s EM proposal, based on state and local concerns. The Committee has used these principles in developing comments under both the original EM rulemaking and the current (CAM) proposal (described below). These principles are included as an attachment to this summary. EPA s proposed Enhanced Monitoring rulemaking would have provided for the direct enforceability of underlying emission standards based on violations detected using enhanced monitoring methodologies selected by each source (the flexible approach ), which could be based on either direct emissions data or operating parameters. Although STAPPA and ALAPCO supported the proposed direct-enforcement aspects of the proposal, state and local air agencies strongly opposed the proposal s resource-intensive flexible approach for selecting enhanced monitoring methodologies, which would require state and local permitting authorities to review, on a case-by-case basis, each source s proposed monitoring methodology. Industry stakeholders also expressed concern with the proposal, particularly that it would increase the stringency of applicable emission standards via the provisions that would allow the use of other credible evidence. Environmental stakeholders favored both the direct enforceability aspects of the proposal, as well as the ability to use other credible evidence to establish violations of sources emission limits. Ultimately in May 1995, EPA announced its plan to shelve the original EM rulemaking in order to identify a more viable approach. This delay also placed the Credible Evidence rulemaking on hold. After internal EPA deliberations, the agency transferred responsibility for development of an alternative enhanced monitoring rule from the Office of Enforcement and Compliance Assurance (OECA) to the Office of Air Quality Planning and Standards. Responsibility for promulgating the Credible Evidence rulemaking, however, was retained by OECA. In September 1995, EPA released a public draft of its new Compliance Assurance Monitoring (CAM) approach to replace the failed EM rulemaking. In that same announcement, EPA stated that it would hold further discussions with stakeholders before it finalized its Credible Evidence rulemaking.
Under the CAM proposal, affected sources would be required to submit CAM plans containing surrogate (parametric) monitoring or other operations and maintenance practices that would reasonably ensure compliance with the applicable emission standards. The preamble to the rule provided that the proposed CAM rule was based on an approach to establish monitoring for the purpose of: (1) documenting continued operation of the control measures within ranges of specified indicators of performance (such as emissions, control device parameters and process parameters) that are designed to provide a reasonable assurance of compliance with applicable requirements; (2) indicating any excursions from these ranges; and (3) responding to the data so that excursions are corrected. The proposal, however, would not allow agencies to use the monitoring data and operating parameters to directly enforce violations of affected sources applicable emission limits; rather, if a source s monitoring data revealed operations outside the applicable parametric range, the source only would be required to undertake corrective action to return its operations to within the approved range. Moreover, the CAM proposal would impose on state and local permitting authorities the significant burden of having to review each source s CAM plans. STAPPA and ALAPCO participated in several EPA stakeholder meetings late in 1995 and into 1996, which were used to obtain input on the CAM proposal. On April 2, 1996, EPA held a public hearing on its proposed Credible Evidence rulemaking, at which STAPPA and ALAPCO testified in support of state and local air agencies having the authority to use credible evidence as an enforcement tool in determining compliance. Subsequently on October 15, 1996, in written comments to EPA on the agency s formal CAM proposal, STAPPA and ALAPCO objected to both (1) the proposed rule s failure to provide any enforcement nexus between the monitoring data collected and sources applicable emission limits and (2) the burden to state and local air agencies from the CAM proposal s requirement that permitting authorities conduct case-by-case reviews of all CAM plans. In its formal CAM proposal, EPA solicited comment on the use of other credible evidence, to which STAPPA and ALAPCO reiterated that the associations believe that using data other than compliance reference test method data as the basis for Title V compliance certifications and in enforcement actions for determining violations of applicable emissions limits or standards is appropriate. STAPPA and ALAPCO have begun developing a set of recommendations to address the enforceability and resource problems associated with EPA s CAM proposal. These recommendations are expected to be forwarded to EPA within the next few weeks. On February 13, 1997, EPA Administrator Carol Browner signed the agency s final Credible Evidence Rule. The rule was published in the Federal Register on February 24 (62 FR 8313) and will become effective on April 25. The rule s preamble provides that it does not amend existing emission standards, is not intended to affect the stringency of
applicable emission standards, and does not alter sources compliance obligations; rather, it removes any regulatory bar to the admission of non-reference test data to prove a violation of an emission standard, leaving to the courts how credible and probative those data are that a violation has occurred. According to EPA, sources, citizens, and regulators will be able to use other credible evidence to support claims of both noncompliance and compliance. The original 1993 Credible Evidence proposal had announced a SIP call for agencies to revise their plans to ensure the ability to use other credible evidence. Through September 1996, 16 agencies had submitted SIP amendments, with six having received approval. The final credible evidence rule continues this SIP call. EPA has indicated that deadlines for responding will be forthcoming shortly. The final rule is available on EPA s Federal Register web site (www.epa.gov/docs/fedrgstr/epa-air/1997/february/day-24/). Industry, which has long challenged EPA s plan to propose regulations allowing the use of other credible evidence for determining compliance and in civil actions, recently sued EPA in federal court over the agency s final credible evidence rule. Further developments in EPA s promulgation of its CAM rule will be reported in Air Web Alerts and in future Washington Updates. Please contact Dave Wallenberg of the Secretariat if you have questions. STATE/LOCAL PRINCIPLES FOR ENHANCED MONITORING State and local air agencies believe that any rule that EPA promulgates to carry out the provision in the Clean Air Act Amendments of 1990 regarding enhanced monitoring and compliance assurance should address the following: 1 The rule should facilitate more/better compliance data; 2 EPA should promulgate a quality rule as quickly as possible; 3 To be most effective, the rule should: a) provide for adequate emissions monitoring at each source; b) provide for adequate tracking of compliance; c) provide for adequate reporting of exceedances; and d) provide for the annual certification of compliance status; 4 The rule should avoid a resource-intensive case-by-case application review; 5 Monitoring methods, such as those in Parts 60 & 61, represent good monitoring and the rule should build on them; 6 The rule should (possibly through a de minimis threshold) apply to only the significant emissions units at facilities subject to the rule; 7 The rule should acknowledge existing enforcement requirements as sufficient and directly enforceable, and where existing requirements do not provide for direct
enforcement, state and local agencies must be able to enforce where permit violations occur; 8 The rule should be flexible enough to accommodate situations where state-only (SIP) rules exist, and 9 The rule should not require the reopening of permits (prior to permit renewals) to incorporate changes in monitoring methods.