Assuring Compliance With Air Emissions Limits
rule is the interplay between CAM and the "credible evidence rule." Given that interplay, the enforcement provisions of CAM rule still trouble industry. %n27%n
The EPA sees the package of permits, credible evidence and compliance assurance monitoring as the foundation for an enforcement-friendly permit scheme. Rather than wait for the results of a reference test, the EPA expects to use the CAM data along with any other credible evidence to prove violations of specific permit requirements. %n28%n
Already, however, the EPA has had to declare in the preamble to the credible evidence rule that the source need not search out and review all data concerning compliance in order to make the compliance certification. It had said the same thing in the preamble to the CAM rule. (That no duty is imposed on the owner or operator "to assess every possible piece of information that may have some undetermined bearing on compliance.") Industry's point is two-fold: (1) What data will now be available that is relevant to compliance, and (2) once the data is assembled, what does it mean about compliance?
In all likelihood, industry will be required to evaluate the CAM data to determine whether it shows non-compliance with enforceable emissions limitations. In that case, excursions outside the permitted range of the pollution control equipment must be evaluated before the source can certify compliance.
Moreover, that same data will be available to the EPA and to citizens groups for a similar evaluation. Indeed, in a lawsuit filed against the EPA challenging the CAM rule, an environmental group argues that the CAM rule as promulgated does not provide enough data for citizens' suits against alleged violators.
Two federal District Court decisions demonstrate the likely impact of the credible evidence rule and CAM data on enforcement proceedings: Sierra Club v. Public Service Co. of Colorado, 894 F.Supp. 1455 (D. Colo. 1995); and Unitek Environmental Services Inc. v. Hawaiian Cement, Case No. 95-00723 (D. Haw. Aug. 7, 1996). Both cases suggest that proving a violation of emissions limitations and standards in the Act will become a "battle of the experts," using any available data including CAM data. Rather than carry out enforcement in a carefully controlled reference test, enforcement could depend upon a supposition: If a reference test had been performed, would it have indicated a violation?
Under the EPA's interpretation, many more sources will be exposed to this ambiguity than necessary. EPA's formula for triggering CAM application (i.e., emissions would be a major source if uncontrolled) is unsatisfactory. There is no good rationale for applying CAM requirements to sources that apply 90 percent to 95 percent controls to emissions and are significantly below the "major-source" threshold. Short of a catastrophic failure of the pollution control equipment, fluctuations in the equipment operating performance will not lead to major source emissions levels. In view of the ongoing difficulties EPA has experienced with its potential-to-emit definition and the corresponding requirement of federally enforceable permit limitations, it is a poor test upon which to establish CAM requirements.
Finally, industry also is concerned with the cost of implementing the