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April 22, 2020

COVID-19: EPA Relaxes Provisions for Quality Assurance Testing

Following its prior guidance on enforcement and compliance assurance during the COVID-19 pandemic, the US Environmental Protection Agency (EPA) published an interim final rule on April 17 temporarily relaxing requirements for sources that perform certain quality assurance tests required under 40 CFR 75 during the pandemic.

Part 75 governs the emissions-reporting regulations applicable to sources that monitor emissions using continuous emissions monitoring systems (CEMS) to report emissions for compliance with Clean Air Act programs, including the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and the NOX SIP Call. Quality assurance tests of CEMS have to be conducted on a regular basis, are often performed by outside contractors, and require logistical coordination with employees, state regulators, and laboratories to meet the regulatory deadlines for conducting and reporting tests—all of which have been impacted by the restrictions from COVID-19. Under Part 75, when a plant misses a deadline, they must report substitute data that is intentionally higher than what the source typically emits.

Under the interim final rule, if an affected unit fails to complete a required quality-assurance, certification or recertification, fuel analysis, or emission rate test by the applicable deadline due to COVID-19 and “if the unit’s actual monitored data would be considered valid if not for the delayed test,” actual monitored data may be reported as opposed to substitute data. Sources taking advantage of the rule’s relaxed requirements must maintain documentation, notify the EPA when a test is delayed and later completed, and certify to the EPA that they meet the criteria for using the amended reporting procedures. If any of these requirements cannot be met or if monitored data are missing or invalid for any non-COVID-19 related reason, substitute data must be reported. In addition, delayed tests must be completed as soon as practicable after relevant COVID-19-related restrictions are lifted.

Importantly, the interim final rule does not suspend emissions-monitoring or reporting requirements or alter emissions standards under any program. The EPA, therefore, does not expect that the temporary amendments will cause any change in emissions levels, impact air quality, or result in any harm to public health or the environment that might occur from increased emissions. To this end, the rule is expected to have a positive impact on public health by assisting efforts to slow the spread of COVID-19 by facilitating plant operators’ efforts to comply with travel and plant access restrictions imposed to protect public health during the COVID-19 emergency.

The interim final rule is effective immediately and applies to quality assurance tests due, including any applicable grace periods, after the declaration of the national emergency on March 13. The extensions expire the earlier of: (1) when it is practicable for the power plant operator to complete the delayed test(s); (2) the end of the national emergency plus a 60-day grace period, or (3) 180 days after the rule is published in the Federal Register.

We have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at or another member of the Environmental Practice Area.


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