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Assuring Compliance With Air Emissions Limits

Fortnightly Magazine - March 15 1998

The legislative history for the 1990 amendments is unclear. Supporters and opponents of CWA enforcement model inserted contradictory statements into the legislative record. Litigation of the credible evidence rule is likely to indicate the views of the federal D.C. Court of Appeals.

6 EPA's proposal to monitor actual emissions is referred to as the "enhanced monitoring" proposed rule and was published Oct. 22, 1993 at 58 Fed. Reg. 54648.

7 According to the CAM rule preamble, EPA received 2,000 comments on the enhanced monitoring proposed rule. 62 Fed. Reg. 54901.

8 EPA prepared two CAM-type proposals. The first was prepared in September 1995, but was not published in the Federal Register. After soliciting comments at stakeholder meetings, EPA published its second CAM proposal on Aug. 13, 1996 at 61 Fed. Reg. 41991.

9 The discussion of the rulemaking history in the preamble is helpful to understand the development of the CAM rule. 62 Fed. Reg. 54901-54902.

10 §§ 64.3 and 64.6.

11 § 64.2.

12 62 Fed. Reg. 54913.

13 §§ 64.4 & 64.9.

14 62 Fed. Reg. at 54929. This is an example of the level of detail for the basic monitoring approach EPA believes should be part of the source's Part 70 operating permit. As part of streamlining its requirements, EPA revised the final CAM rule to leave out of the permit the day-to-day monitoring operations maintained by the facility operator. EPA, "Fact Sheet Compliance Assurance Monitoring," Oct. 3, 1997, p. 2.

15 62 Fed. Reg. 54928.

16 § 64.1.

17 § 64.2(b).

18 62 Fed Reg at 64920.

19 § 64.9. The final rule deleted the definition and requirement to report a "deviation." A deviation is a failure to meet an emissions standard. Industry was concerned that the definition of deviation was so close to constituting a violation of the Act, that essentially, the source would have been required to self-report a violation. 62 Fed. Reg. 54908. Reporting an exceedance or excursion is different; while either may constitute evidence of a violation, neither conclusively proves a violation.

20 The requirement to certify compliance on a "continuous or intermittent" basis was part of the 1990 amendments. Section 114(a)(3); 42 U.S.C. Section 7414(a)(3). Although consistent with the CWA model, EPA's initial interpretation that the source self-report periods of noncompliance drew substantial industry criticism.

21 § 64.7(d).

22 § 64.8.

23 Id.

24 62 Fed. Reg. 54907; § 64.8(d). Subsection (e) of § 64.8 provides that implementation of a QIP does not act as a permit shield for violations of emissions limitations or standards.

25 EPA, "Fact Sheet Compliance Assurance Monitoring," Oct. 3, 1997. 62 Fed. Reg. 54907.

26 62 Fed. Reg. 54904-54905.

27 See 62 Fed. Reg. 8314 (Feb. 24, 1997).

28 See infra, note 3; see also Bureau of National Affairs, "Environmental Group Sues Over CAM Rule, Claims EPA Did Not Follow Air Act Mandate," 247 Daily Environmental Report, Dec. 24, 1997. In the CAM rule preamble, EPA notes: "[F]ailure to stay within an indicator range does not automatically indicate a failure to satisfy applicable requirements." 62 Fed. Reg. 54919.