The “Any Credible Evidence” Rules and Compliance Assurance Monitoring
Robert J. Yarbrough, Esquire
I. Importance of the “any credible evidence” and compliance assurance monitoring rules
The Any Credible Evidence (“ACE”) rules, 62 Fed. Reg. 8314 (February 27, 1997), lower the barriers to citizen or EPA enforcement of air pollution emission standards. The ACE rules will have the effect of increasing the number and chances of success of enforcement actions, particularly citizens’ enforcement actions.
The Compliance Assurance Monitoring (“CAM”) rule, 62 Fed. Reg. 54900 (October 22, 1997) had the potential to create crushing monitoring burdens and to bury industry under citizens’ enforcement actions. As finally promulgated, the adverse effects of the CAM rule are reduced.
II. Federal Air Pollution Enforcement before the Clean Air Act Amendments of 1990
Before the 1990 Amendments to the Clean Air Act, EPA developed emissions limitations applicable to a wide variety of sources. Performance tests using specific reference methods occasionally were conducted to determine whether a source was capable of meeting an applicable emissions limitation. Performance tests were (and are) expensive, time consuming, and relatively rare. After a source demonstrated that it was capable of meeting the emission limitation using a reference method performance test, it was assumed that the source would meet the emissions limitation if the source was properly operated. Monitoring and enforcement activity generally was limited to ensuring that the source was properly operated.
Although specific reference methods were in place, EPA believed that it could use evidence other than reference test methods to demonstrate violation of an emissions limitation. In United States v Kaiser Steel Corp., No. 82-2623-IH [1984 WL 186690] (C.D. Cal. Jan. 17, 1984), a district court ruled against EPA and concluded that EPA could use only the reference method to demonstrate a violation of an emissions limitation.
III. 1990 Amendments to the Clean Air Act
A. Federal Permit Method for Enforcement
Against this backdrop, Congress enacted the 1990 Amendments to the Clean Air Act. The 1990 Amendments borrowed heavily from the enforcement strategy of the highly successful Clean Water Act and represent a radical change of course.
Under the Clean Water Act model, a comprehensive federally mandated permit contains all limitations applicable to the water pollution source in one convenient document. Mandatory self-monitoring by the source demonstrates whether the limitations are met. Mandatory reporting of the monitoring results to EPA assures that the EPA or citizens’ group learns of any noncompliance and can take appropriate enforcement action.
The 1990 Amendments to the Clean Air Act largely incorporate the Clean Water Act model in the air pollution context. The 1990 Amendments created the mandatory Title V federal operating permit to include all requirements applicable to the source in one convenient document. The 1990 Amendments required the new Title V permits to include “enhanced” monitoring, along with reporting of the monitoring results and periodic certification by the source of its compliance status. The Act specified that the “duration” of a violation could be shown using “any credible evidence.” A Senate committee report indicated that the “any credible evidence” requirement was intended to overrule the Kaiser Steel Corp. decision and to allow the results of permit monitoring to be used for enforcement purposes.
In addition to easing the burden of proving a violation, Congress also made more severe the consequences of noncompliance, with increased civil and criminal penalties.
B. EPA’s “Any Credible Evidence” (“ACE”) Rules
After a false start in 1993, EPA promulgated the ACE rules effective April 25, 1997. The ACE rules modified several sections of the regulations to remove any implication that reference test methods are the only means to demonstrate compliance or noncompliance with emissions limitations. The rulemaking specifies that “any credible evidence” can be used to prove a violation of an emissions limitation for enforcement actions and that ACE must also be used for compliance certifications under the Title V program.
EPA maintains that the purpose of the ACE rules is to effectuate the permit method of enforcement as envisioned by the 1990 Amendments to the Clean Air Act. The ACE rules allow monitoring results collected by the source as a part of the Title V permit monitoring to be used to prove a violation of an emissions limitation, even if the monitoring results are not based on a reference test method.
1. Industry criticism
Industry is concerned by the increase in occasions during which a source may be determined to be out of compliance and by the relaxed evidentiary standards which a citizens’ group or EPA can use to prove a violation. The controversy centers on a basic disagreement as to the nature of emissions limitations. Industry believes that each emissions limitation is inextricably tied to its corresponding reference method and that each emissions limitation includes all of the limitations of the corresponding reference method, such as averaging time.
Industry argues that by effectively removing the conditions of the reference method from each emissions limitation, the ACE rule amends and makes more stringent each emissions limitation. Industry argues that because each of the emissions limitations is amended, EPA must repromulgate each of the emissions limitations as a separate rulemaking. Of course, such a repromulgation would require many years to accomplish, and would delay application of ACE for a considerable time.
Industry also argues that EPA is stretching the ACE rule far beyond the authority provided by Congress. The 1990 Amendments to the Clean Air Act state that ACE may be used to demonstrate the “duration” of a violation for determining the amount of a penalty. Industry points out that under the literal reading of the section, ACE can be used to demonstrate duration only after the violation is shown to exist using the reference test method.
2. EPA’s response
EPA argues that the ACE rule is only a rule of evidence, and does not change the underlying standards. EPA argues that sources are required to comply with standards at all times, and that conditions such as averaging times built into the reference method are not a part of the standard.
EPA says that the concerns of industry are overblown and that evidence of noncompliance is credible under the ACE rule only if the evidence is such that it would tend to prove whether the reference test method would have shown a violation. EPA gives the example of method 9 for opacity. Method 9 involves a trained “smoke reader” manually observing a plume of contaminants under specified lighting conditions and at specified intervals. If the day is cloudy or if the light is from the wrong direction, the smoke reader cannot make proper measurements and the test is invalid. However, if a continuous opacity monitor (COM) is installed on the source, the COM data is at least as reliable as that of the smoke reader and provides data which can be translated directly into the same terms as data that would have been produced by a method 9 test.
EPA points out that Congress specifically intended to overrule the Kaiser Steel decision and to allow non-reference method proof of a violation of a standard.
3. Industry appeal of the ACE rules
Eight industry associations challenged the ACE rule before the U.S. Court of Appeals for the District of Columbia Circuit. In Clean Air Implementation Project v EPA, 150 F.3rd 1200 (D.C. Cir. 1998), the court dismissed the petitions as unripe, holding that pre-enforcement review was not available due to the factual questions raised and lack of hardship pending review. Until the issues are fully litigated, industry is left with the choice of complying with the arguably more stringent emission standards under ACE or risking enforcement action.
4. “Any Credible Evidence” in the Courts.
Prior to the promulgation of the ACE rules, the courts applied the “any credible evidence” concept from the 1990 Amendments to the Clean Air Act on two occasions. In both cases, the courts allowed use of non-reference method evidence of a violation. The two cases give a taste of what industry can expect from citizens’ enforcement in the future.
Sierra Club V. Public Service Co. of Colorado, 894 F.Supp. 1455 (D.C. Col. 1995).
In the Public Service Co. case, the Sierra Club introduced evidence in the form of continuous emissions monitoring results showing over 19,000 violations of opacity limitations over a five-year period at a power plant. Public Service argued that the monitoring did not use the reference test method for opacity and that the results could not be used to demonstrate a violation. The court disagreed and found in favor of the Sierra Club. The case ultimately settled for penalties of over a million dollars and installation of control equipment.
Unitek Environmental Services V Hawaiian Cement, Civ. No. 95-00723, 27 ELR 20483 (1996).
In Hawaiian Cement, a neighboring business brought a citizens’ enforcement action against Hawaiian Cement under the Clean Air Act. The court applied a low evidentiary standard and found that Hawaiian Cement violated particulate matter limits based on evidence that included a notice of violation issued by EPA, monitoring conducted by Hawaiian Cement, admissions in a permit application, modeling submitted as part of a permit application, and an expert opinion.
C. Compliance Assurance Monitoring
EPA promulgated the Compliance Assurance Monitoring (CAM) regulation package effective November 21, 1997. The CAM regulations specify the additional monitoring requirements which must be included in Title V permits. EPA pared back the CAM requirements to the point that promulgation of the regulation was appealed by an environmental group (the Natural Resources Defense Counsel). No industry groups found it necessary to appeal. The appeal is on a briefing schedule and we can expect a decision by late 1999.
1. Requirements of the CAM Rule
EPA made a concerted effort to restrict the applicability of the CAM rule to only those facilities that will not be monitored adequately pursuant to existing monitoring requirements. As finally promulgated, the CAM rule applies only to a “pollutant specific emissions unit” at a source subject to Title V, and only if the following criteria are met:
a. the unit is subject to an emissions limitation for the air pollutant;
b. the unit must use a control device to meet the emission limitations; and
c. the unit must have “potential precontrol emissions” of more than the major source threshold.
For units to which the CAM rule applies, the owner or operator must submit a monitoring plan for approval as a part of its Title V permit. The plan may include the use of parametric monitoring, such as measuring the temperature of an incinerator, and may use the averaging periods of the underlying emissions limitation. For parametric monitoring, the owner or operator must specify allowable ranges of monitoring results. If excursions occur beyond the allowable range, the owner or operator must submit and implement a Quality Improvement Plan.
The owner or operator of the source must report the monitoring results to EPA and use the information in certifying compliance pursuant to Title V. Because the monitoring results may not directly determine compliance, an excursion does not conclusively demonstrate a violation. Under the Any Credible Evidence rules, the monitoring data are nonetheless additional pieces of evidence which a court can consider in determining whether a violation occurred.
2. Schedule for Implementation.
For very large emission units, the CAM requirements apply to new Title V permit applications and to applications for substantial modifications filed after April 20, 1998. For the remainder of Title V sources, the CAM requirement will be phased in as a part of the Title V permit reissuance process. Because Title V permits have a five year life and because many have yet to be issued, the CAM requirements will not apply to many sources until the year 2003 or later.
IV. Recent Developments
EPA actively has incorporated ACE provisions into federal implementation plans and hazardous air pollutant standards. See, for example, 64 Fed. Reg. 7308 at 7328 (February 19, 1999)(federal implementation plan) and 63 Fed. Reg. 50280, 50238 (September 21, 1998)(HAP restrictions for pharmaceutical manufacture), respectively. States continue to incorporate ACE into state implementation plans. See, for example, 62 Fed. Reg. 53239, 53240 (October 14, 1997)(Minnesota).
The ACE rule in combination with the CAM rule has the potential to increase substantially the frequency and success of enforcement actions under the Clean Air Act, particularly citizens’ enforcement actions.