Legal/Enforcement News

Appeals Court Vacates EPA Rule For Air Monitoring

The U.S. Court of Appeals for the D.C. Circuit criticized EPA's revisions of air pollution monitoring requirements, stating that the agency's final rule was not a "logical outgrowth" of the proposed interim rule (Environmental Integrity Project vs. EPA, No. 041083A, October 7, 2005).

The case concerns EPA's Part 70 regulations, as well as the agency's revised interpretation of its "periodic" and "umbrella" monitoring rules. Title V of the 1990 Amendments to the Clean Air Act (CAA) requires that certain air pollution sources, including every major stationary source of air pollution, each obtain a single, comprehensive operating permit to assure compliance with all emission limitations and other substantive CAA requirements that apply to the source. In addition, all sources with Title V permits must conduct monitoring of their emissions that is sufficient to assure compliance with applicable requirements under the CAA.

To implement these statutory mandates, EPA has promulgated numerous monitoring regulations, which are codified at 40 C.F.R. Parts 70 and 71.1 One of Part 70's rules, the "periodic monitoring" rule, requires that where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), each Title V permit must contain periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements.

The "umbrella" rule, requires that each Title V permit contain compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. EPA must review and approve all Title V permits, and if a specific permit requires insufficient monitoring, EPA must reject it.

In November and December 2000, EPA rejected two Title V permits (In the Matter of Pacificorp, Petition No. VIII-00-1 (November 16, 2000), and In the Matter of Fort James Camas Mill, Petition No. X-1999-1 (December 22, 2000). In both decisions, EPA held the "umbrella" rule empowers state permitting authorities to review, on a case-by-case basis, the sufficiency of each permittee's monitoring requirements, independent of any other monitoring that might be imposed under the "periodic monitoring" rule.

Thus, EPA concluded that where a permit requires no "periodic" monitoring at all, the "umbrella" rule is satisfied by meeting the more substantive requirements of the "periodic monitoring" rule. On the other hand, where there is some periodic monitoring but it is not sufficient to assure compliance, the umbrella rule's "separate regulatory standard" governs instead and requires case-by-case enhancement of existing monitoring "as necessary to be sufficient to assure compliance."

On Sept. 17, 2002, EPA published a proposed rule to clarify the monitoring required in Title V permits by "codifying" the interpretation of Part 70 that the agency embraced in Pacificorp and Fort James. In its final rule, however, EPA decided not to amend Part 70, based on EPA's "interpretation of the (CAA), the plain language and structure of (the umbrella rule) and the policy considerations discussed in this preamble."

EPA explains its abandonment of the proposed rule (and its adoption of the inverse interpretation of its Part 70 regulations) on the basis of public comments, which insisted that source-specific, case-by-case reviews by permitting authorities would have been unduly time-consuming and wasteful of valuable regulatory resources. A better approach, EPA claims, is to bar all supplemental monitoring and case-by-case sufficiency reviews for permits that already require some periodic monitoring and to address any inadequacies in the current monitoring regime through a four-part nationwide rulemaking process.

The appeals court stated that "there is nothing objectionable in the agency's refusal to adopt its proposed amendments to Part 70's text. However, EPA's final rule in this case did more -- after taking its first bite at the interpretive apple in its Pacificorp and Fort James

The court vacated the rule, concluding that EPA's final rule violated the APA's notice-and-comment requirements.

U.S. Court of Appeals for the D.C. Circuit:

Federal Government Reaches Major Clean Air Act Settlement With Lucite International

On Oct. 17, the U.S. Justice Department (DOJ) and EPA announced they reached a major Clean Air Act (CAA) settlement with Lucite International Inc. requiring the chemical manufacturer to install pollution controls on three emission sources at its Memphis, Tennessee plant, which will eliminate 6,500 tons of pollution each year. Under the terms of the settlement, Lucite will install an estimated $16 million worth of new pollution controls, in addition to paying a civil penalty of $1.8 million and performing a supplemental environmental project worth $1.3 million.

The federal government alleged that the company violated CAA provisions of the New Source Performance Standards (NSPS), the National Emission Standards for Hazardous Air Pollutants (NESHAPs) and the Protection of Stratospheric Ozone. The settlement resolves allegations that the company violated the CAA at its Memphis facility.

"The settlement announced today demonstrates our commitment to aggressively enforcing the laws that protect our environment and our citizens," said Kelly A. Johnson, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division. "This agreement will significantly improve the air quality for the people of Tennessee."

Lucite will install a $16 million dual absorption control system on its sulfuric acid regeneration unit, which will result in the elimination of approximately 2,500 tons of sulfur dioxide (SO2) emissions per year, to comply with NSPS standards.

In addition, Lucite will implement a supplemental environmental project to reroute emissions from two other plant emission sources. This will result in a 90 percent reduction of previously permitted emissions from these sources. Implementation of this project will cost Lucite approximately $1.3 million.

"The people of Tennessee and others downwind of this facility will soon benefit from this settlement," said Granta Y. Nakayama, assistant administrator of EPA's Office of Enforcement and Compliance Assurance. "Reducing harmful emissions from Lucite's Memphis facility is a major step toward achieving cleaner air."

"As a result of the settlement, Lucite will reduce emissions of pollutants that contribute to acid rain, cause severe respiratory problems and exacerbate cases of childhood asthma, which are of great concern to EPA," said Jimmy Palmer, EPA regional administrator in Atlanta.

Lucite is a subsidiary of Lucite International, Ltd. -- a chemical manufacturing company headquartered in Southampton, UK- and is the world's leading supplier of methacrylates. Lucite's Memphis plant produces methyl methacrylate and acrylic sheeting. The pollutants addressed in the settlement are sulfur dioxide, sulfuric acid mist, carbon monoxide, and volatile organic compounds.

The settlement lodged on Oct. 17 in the U.S. District Court for the Western District of Tennessee is subject to a 30-day public comment period and court approval before becoming final.

The consent decree is available on DOJ Web site at

This article originally appeared in the 10/01/2005 issue of Environmental Protection.

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