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OnePoint Alert

April 22, 2020

EPA Provides Temporary Amendments for CEMs Quality Assurance Requirements During COVID-19 For Specified Part 75 Sources

By Bernard F. Hawkins, Jr.

In the April 22, 2020 Federal Register, EPA posted an Interim Final Rule and requested comments on the Agency amending the emissions reporting regulations under 40 CFR Part 75 that apply to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule, and/or the NOX SIP Call. See 85 Fed. Reg. 22,362-22,374 (April 22, 2020). The amendments provide that if an affected unit fails to complete a required quality-assurance, certification or recertification, fuel analysis, or emission rate test by the applicable deadline because of travel restrictions, lack of plant access, or other safety restrictions implemented to address the COVID-19 crisis, and if the unit’s actual monitored data would be considered valid if not for the delayed test, the unit may temporarily continue to report actual monitored data instead of substitute data. See 85 Fed. Reg. at 22,362. 

Impacted sources are required to maintain documentation, notify EPA when a test is delayed and subsequently completed, and certify to EPA that they satisfy the criteria for using the amended reporting procedures. Otherwise, substitute data must be reported if these criteria are not met or if monitored data are missing or are invalid for any reason not related to the COVID-19 emergency. See 85 Fed. Reg. 22,362-22,363. Sources are required to complete any required testing, delayed because of COVID-19, as soon as practicable after emergency restrictions no longer apply. The period under which a unit can report valid data under the amendments is limited to the duration of the COVID-19 national emergency in addition to a grace period of 60 days to complete delayed tests, but not to extend beyond the date of expiration of the amendments. See 85 Fed. Reg. at 22,363.

EPA justifies the Interim Final Rule as follows:

This action is necessary during the COVID–19 national emergency to protect on-site power plant operators and other essential personnel from unnecessary risk of exposure to the coronavirus. The amendments do not suspend emissions monitoring or reporting requirements or alter emissions standards under any program, and EPA expects the amendments not to cause any change in emissions levels. The rule therefore will not result in any harm to public health or the environment that might occur from increased emissions, and to the extent that the amendments facilitate plant operators’ efforts to comply with travel and plant access restrictions imposed to protect public health during the COVID–19 emergency, the amendments will have a positive impact on public health by assisting efforts to slow the spread of the disease. EPA finds good cause to promulgate this rule without prior notice or opportunity for public comment and to make the rule effective immediately upon publication in the Federal Register.

58 Fed. Reg. at 22,363. Note that the above-language provides that the amendments do not “suspend emissions monitoring or reporting requirements or alter emissions standards under any program ….” Id.

The amendments are set to expire in 180 days, and EPA is also requesting comments on the rule which must be received on or before May 22, 2020. The rule is effective April 22, 2020.