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Natural Resources Defense Council v. EPA

Citation: 30 ELR 20128
No. Nos. 97-1727, -1732, 194 F.3d 130/49 ERC 1385/(D.C. Cir., 10/29/1999)

The court holds that the U.S. Environmental Protection Agency's (EPA's) adoption of a rule requiring compliance assurance monitoring (CAM) of major emission sources complies with the Clean Air Act (CAA) § 114(a)(3)'s enhanced monitoring requirements. The court first holds that EPA's adoption of CAM as "enhanced monitoring" complies with the CAA. CAM is not invalid on the basis that it exempts numerous sources from its coverage because the CAA does not require all enhanced monitoring to fit under one rule. In addition, many major stationary sources exempt from CAM are subject to other monitoring rules. Further, EPA reasonably explained how CAM will effectively assure emissions-limit compliance and, thus, satisfied CAA § 504's "sufficiently reliable" compliance requirement. Moreover, EPA did not have to make an impracticality finding under CAA § 114(a)(1)(D)-(E) before mandating direct enhanced monitoring of major sources because CAM was promulgated under § 114(a)(3), which does not require an impracticality finding. The court next holds that EPA's decision to phase in the CAM requirements as major source permits are renewed is reasonable. The extended phase-in plan will lessen the burden on sources and state licensing authorities and will create a learning curve for implementation.

The court, however, then holds that despite CAM's validity, EPA's certification regulations are inconsistent with CAA § 114(a)(3)(D). The statute requires that certification include whether compliance, not just data, is continuous or intermittent. Although EPA may permit owners to certify compliance within the degree of certainty that CAM provides, it may not eliminate the "check off" requirement altogether.

Last, the court holds that industry groups' challenge to the "any other material information" and "credible evidence" requirements of compliance certification is unripe for review because no actual EPA enforcement proceeding has been brought under the requirements.

Counsel for Petitioner
Andrew P. Caputo
Natural Resources Defense Council, Inc.
1200 New York Ave. NW, Ste. 400, Washington DC 20005
(202) 289-6868

Counsel for Respondents
Scott J. Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Ginsburg and Garland, JJ.