Judges Say Congress Was Clear in Requiring Permit Applicants to Monitor Air Quality

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Judges on a federal appeals court Sept. 24 said Congress was clear when it decided that sources must monitor air quality before applying for a prevention of significant deterioration permit, questioning the Environmental Protection Agency's decision to create an exemption to the requirement (Sierra Club v. EPA, D.C. Cir., No. 10-1413, oral arguments 9/24/12).

In a 2010 final rule, EPA created the exemption to allow new or modified facilities that are expected to emit small amounts of fine particle pollution to avoid conducting monitoring. The Sierra Club challenged the regulation.

Judge Harry Edwards said during oral arguments in the U.S. Court of Appeals for the District of Columbia Circuit that the monitoring requirement was “a legislative call,” and EPA made a decision contrary to Congress's direction.

A separate issue in the case, which centers on EPA's decision to create another exemption based on a source's significant impact level, likely will be remanded to the agency.

The prevention of significant deterioration program requires new or modified sources in areas in attainment of national air quality standards to obtain a permit that demonstrates they will not cause or contribute to a violation of the standards or of a specified pollution increment.

EPA Sets Exemptions.

The increments are designed to limit pollution increases, and EPA in 2010 issued a rule setting the increments for fine particulate matter. The Sierra Club is not challenging the specific increments (75 Fed. Reg. 64,864; 201 DEN A-1, 10/20/10).

However, the 2010 rule at 40 C.F.R. Parts 51 and 52 contained two other provisions that the environmental group is challenging.

First, the rule set significant impact levels. If a source's projected emissions are below the significant impact level, it is exempt from conducting a cumulative source impact analysis to demonstrate it would not cause or contribute to a violation of the air quality standards or increments.

Second, the EPA rule set significant monitoring concentrations. The provision provides an exemption to the requirement that sources submit a year's worth of monitoring data when a source's emissions are not expected to have a significant impact.

EPA set the significant monitoring concentration at double the minimum level of fine particles that monitors can detect. The minimum level was doubled to account for measurement uncertainties.

Jessica O'Donnell, a Justice Department attorney representing EPA, told the D.C. Circuit that requiring monitoring for sources with low levels of emissions would be fruitless.

Sierra Club's Challenge.

The Sierra Club cited 42 U.S.C. 7475(e)(2), which says prevention of significant deterioration permit applicants must submit an analysis that includes “continuous air quality monitoring data gathered for purposes of determining whether emissions from such facility will exceed the maximum allowable increases or the maximum allowable concentration permitted under this part. Such data shall be gathered over a period of one calendar year preceding the date of application for a permit.”

Edwards said Congress was clear in wanting sources to be monitored, and Judge David Sentelle said Congress did not specify that a source's obligation could be met through substitutes, such as modeling.

O'Donnell also argued that the Sierra Club's argument is not timely because the agency first issued a rule setting its methodology for significant monitoring concentrations in 1980, and the challenge should have been brought then.

However, Edwards said the Sierra Club's case is a new issue, which would make it timely.

Remand Expected.

EPA has agreed to the vacatur and remand of the significant impact levels issues, and Sentelle indicated the court would order the remand.

In its June 26 final brief, EPA said vacatur and remand are appropriate because the rule, as promulgated, does not give permitting authorities discretion to deny the use of significant impact levels if they would violate the air quality standards or increments.

However, Andrea Bear Field, an attorney with Hunton & Williams LLP representing intervenor Utility Air Regulatory Group, asked the court not to vacate the significant impact level provisions if they are remanded. She said doing so would make it difficult for applicants to receive prevention of significant deterioration permits. The Utility Air Regulatory Group intervened on behalf of EPA in the case.

Earthjustice attorney David Baron, representing the Sierra Club, asked the court to decide the question of whether EPA has the authority to create such an exemption. If the court does not do so, it is likely the Sierra Club will litigate the issue after the agency issues a replacement rule.

By Jessica Coomes