Natural Defense Council v. Envtl. Protection Agency, 97-1727

• Decision Date: 29 October 1999
• Docket Number: No. 97-1727,97-1727
• Citation: 194 F.3d 130
• Parties: (D.C. Cir. 1999) Natural Resources Defense Council, Inc.,Petitioner v. Environmental Protection Agency and Carol M. Browner, Administrator, Respondents Chemical Manufacturers Association, et al., Intervenors Consolidated with 97-1732
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 130

194 F.3d 130 (D.C. Cir. 1999)

Natural Resources Defense Council, Inc.,Petitioner v. Environmental Protection Agency and Carol M. Browner, Administrator, Respondents

Chemical Manufacturers Association, et al., Intervenors

No. 97-1727 Consolidated with 97-1732

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 1999

Decided October 29, 1999

[Copyrighted Material Omitted]

On Petitions for Review of an Order of the Environmental Protection Agency

Andrew P. Caputo argued the cause for petitioner Natural Resources Defense Council, Inc. With him on the briefs was David G. Hawkins.

Lauren E. Freeman argued the cause for petitioners Appalachian Power Co., et al. With her on the briefs was Henry V. Nickel.

Scott J. Jordan, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the briefs were Lois J. Schiffer, Assistant Attorney General, and Cecilia E. Kim, Attorney.

Leslie Sue Ritts, Ellen Siegler, Henry V. Nickel, Lauren E. Freeman, Jerome H. Heckman, Peter L. de la Cruz, William H. Lewis, Michael A. McCord, Charles H. Lockwood, II, John Reese, G. William Frick, David F. Zoll and Alexandra Dunn were on the brief of Industry Intervenors in support of respondent. K. D. Grant entered an appearance.

Before: Ginsburg, Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Natural Resources Defense Council, Inc. ("NRDC") challenges the Environmental Protection Agency's enhanced emission source monitoring rule, known as Compliance Assurance Monitoring, promulgated pursuant to the 1990 Clean Air Act Amendments. Various industry groups challenge EPA's "any other material information" certification requirement which pertains to collecting evidence to prove or disprove Clean Air Act compliance. After considering the parties' arguments and reviewing the record, we hold that EPA's enhanced monitoring system complies with the Clean Air Act Amendments except for the portion pertaining to "continuous or intermittent" compliance certification. We also hold that the issue raised by the industry groups is unripe for review.

I. Background

A. Enhanced Monitoring

Section 114(a) of the Clean Air Act vests EPA with the authority to require emissions data collection in order to enable the agency to develop emissions standards and determine compliance with those standards. See 42 U.S.C. § 7414(a) (1994). The Clean Air Act also provides EPA with the authority to enforce those standards. See 42 U.S.C. § 7413. Prior to 1990, most air pollution sources' emissions were tested at start-up or another single point in time. See Enhanced Monitoring Program, 58 Fed. Reg. 54,648, 54,658 (1993) (proposed Oct. 22, 1993). At that time, there was no statutory mechanism outside of EPA, state regulators, and citizen surveillance to ensure the requisite compliance monitoring. See id. In 1990, Congress enacted amendments to the Clean Air Act intended to enhance emissions source monitoring and compliance and to impose new monitoring and reporting requirements on emissions sources. Specifically, the new amendments sought to identify and clarify the kinds of data to be collected and to require major sources to monitor their emissions and report their results to EPA.

As amended, § 114 of the Clean Air Act provides in part:

[T]he [EPA] Administrator may require any person who owns or operates any emission source, who manufactures emission control equipment or process equipment, who the Administrator believes may have information necessary for the purposes set forth in this subsection, or who is subject to any requirement of this chapter ... on a one-time, periodic or continuous basis to ... (D) sample such emissions (in accordance with such procedures or methods, at such locations, at such intervals, during such periods and in such a manner as the Administrator shall prescribe) [and] (E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical....

42 U.S.C. § 7414(a)(1)(D)-(E) (emphasis added). This provision gives EPA the authority to require a source to keep relevant emissions data when direct sampling is impractical and to require a source to conduct emission sampling. Congress added a new subsection in 1990 pertaining to major source monitoring, stating that EPA

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. Compliance certification shall include ...

(C) the [source's] compliance status,

(D) whether compliance is continuous or intermittent,[and]

(E) such other facts as the Administrator may require.

Id. § 7414(a)(3) (emphasis added). Thus, Congress expressed an intention to obligate major sources to a more stringent reporting standard.

Section 504 of the Clean Air Act establishes the major source permitting program's requirements and contains provisions related to monitoring and compliance certification. Section 504(a) requires that each permit "shall include enforceable emission limitations and standards ... and such other conditions as are necessary to assure compliance with applicable requirements." 42 U.S.C. § 7661c(a). Subsection (b) elaborates that "[t]he Administrator may by rule prescribe procedures and methods for determining compliance and for monitoring and analysis of pollutants regulated under this chapter, but continuous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance." Id. § 7661c(b). Thus, § 504 establishes that EPA may promulgate rules that require implementing a compliance and monitoring method which provides "sufficiently reliable" information for determining compliance.

In 1993, EPA proposed a broad regulatory scheme that would have required a major source to provide an emissions compliance statement and proof of continuous compliance. The proposal would have resulted in direct emissions monitoring in most instances. However, following public comment sessions, EPA decided to adopt an alternative approach in 1997. EPA abandoned the more rigorous 1993 proposal in response to industry and state and local pollution control agencies' comments that the proposal was too costly given the benefits involved, too burdensome on local permitting authorities, inconsistent with congressional intent regarding costs, and likely to stifle innovation due to high costs. See Compliance Assurance Monitoring Rule making (40 C.F.R. Parts 64, 70, and 71), Responses to Public Comments (Part I) (October 2, 1997).

EPA ultimately adopted a new approach, Compliance Assurance Monitoring ("CAM"), which requires major sources using pollution control devices to employ parametric monitoring. See 40 C.F.R. §§ 64.2, 64.3(a) (1998). The CAM program allows major sources to comply with monitoring requirements by identifying specific operational parameters and providing data that enforcement entities can use to determine whether the source falls within the appropriate operating range.

Under CAM, EPA requires that major source owners "establish ... appropriate range(s) ... for the selected indicator(s) such that operation within the ranges provides a reasonable assurance of ongoing compliance with emission limitations or standards." 40 C.F.R. § 64.3(a)(2). CAM also imposes an affirmative requirement on each major source to bring its emissions within the acceptable range when the source falls outside the acceptable range. See 40 C.F.R. § 64.7(d). Specifically, the source must "restore operation of the pollutant-specific emissions unit (including the control device and associated capture system) to its normal or ususal manner of operation as expeditiously as practicable...." Id. CAM expands upon prior emissions monitoring by providing major sources with a mechanism to implement self monitoring and self-checks on compliance. For reasons set forth more fully below, NRDC challenges the adequacy of EPA's attempt to comply with the Clean Air Act Amendments.

B. Other Material Information and Credible Evidence

To comport with the CAM approach, EPA amended its Part 70/71 major source permit compliance requirements.Under the revision, each major source must identify its compliance methodology and identify whether that methodology provides continuous or intermittent data. See 40 C.F.R. §§ 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B). The revision also requires major sources "if necessary, ... [to] identify any other material information that must be included in the certification to comply with section 113(c)(2) of the Act, which prohibits knowingly making a false certification or omitting material information." Id. §§ 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B). Section 113(c)(2) creates criminal liability for "[a]ny person who knowingly ... makes any false material statement, representation, or certification in, or omits material information from, or knowingly alters, conceals, or fails to file or maintain any notice, application, record, report, plan, or other document required pursuant to this chapter." 42 U.S.C. § 7413(c)(2).

During the rule making period in issue, EPA separately promulgated another rule, the Credible Evidence Rule ("CER"), which provides that nothing shall preclude the use of any credible evidence or information in demonstrating compliance or noncompliance with national emission standards. See 40 C.F.R. §§ 52.12(c); 60.11(g); 61.12(e). The preamble to the CER reconfirmed that credible evidence may be used in permit enforcement actions and compliance certifications. See Credible Evidence Revisions, 62 Fed. Reg. 8314, 8316-17 (1997). However, EPA further stated that the "revisions do not call for the creation or submission of any new emissions or parametric data,...