Compliance Assurance Monitoring Upheld

In the case of Natural Resources Defense Council v. EPA, No. 97-1727, (Oct. 29, 1999), the United States Court of Appeals for the District of Columbia Circuit upheld the enhanced emission source monitoring rule promulgated by EPA, known as Compliance Assurance Monitoring. The Natural Resources Defense Council claimed that the rule violated the Clean Air Act Amendments of 1990 because it exempted too many major sources and the length of the phase in period for the rule created an unreasonable delay. The court upheld the rule as a reasonable exercise of the EPA's authority to interpret the statute because EPA considered the relevant factors and articulated a rational connection between the facts and the choices it made in the regulation.

The Chemical Manufactures Association and others intervened in the lawsuit and challenged the rule as an impermissible increase in the stringency of emissions standards. Industry challenged the part of the rule that requires permittees to submit compliance certifications based on "any other material information" including "credible evidence." The court found this issue not to be ripe for consideration until there is before it an enforcement action actually brought by EPA using "credible evidence." The court included an interesting paragraph recognizing the right of permittees to qualify their certifications. The paragraphs reads as follows:

At oral argument, EPA counsel agreed with the court's supposition that nothing precludes an owner from adding a caveat to his certification to the effect that, while it is providing other evidence which EPA might find material, the submitter disputes its materiality and reserves the right to challenge the use of the evidence in court.

There was one part of the law that the court remanded to EPA. That part was the provision that required a source to certify that the methods it used for determining compliance provided continuous or intermittent data. The court found this to be an insufficient implementation of the statute that requires a source to certify whether its compliance is continuous or intermittent. "Here, Congress expressly and unambiguously required that the certification include 'whether compliance is continuous or intermittent.' EPA's regulations do not effectuate that expressed mandate of the statute and must be remanded."