In the interim more accurate emission monitoring devices have been developed. In addition,the EPA, the states and the regulated community have gained a better understanding of thespecific facility and pollution control device operating parameters that control emissions. Today,as a practical matter many sources determine compliance with permitted limits either through theuse of continuous emission monitors or by monitoring key parameters of their productionprocesses and pollution control devices.
Section 113(a) of the Act provides that the Agency may bring an enforcement action "on thebasis of any information available." However, in United States v. Kaiser Steel Corp, the DistrictCourt ruled that, because of what it perceived to be limitations in EPA's regulations, onlyreference methodstack testing could be used to establish violations of permit limits, notwithstanding irrefutablescientific evidence that otherwise demonstrated thousands of violations. In the 1990 amendments to the Clean Air Act Congress overrode the Kaiser decision, providing that theduration of the violationcould be established by "any credible evidence (including evidence other than the applicable testmethod)." [1]
EPA is now considering proceeding to final promulgation of previously proposed revisions to40 C.F.R. Parts 51, 52, 60 and 61 to revise regulatory provisions that have been read as requiringexclusive reliance on reference test methods as the means of determining compliance withemissions limits. EPA believes that these revisions are consistent with the CAA as well as thelanguage and intent of the 1990 CAA amendments. The revisions would provide sources withcheaper and more flexible means for certifying compliance in permit compliance certifications,and for asserting compliance in enforcement actions. For similar reasons, the revisions wouldbenefit state environmental agencies, EPA and the public. EPA and states would use credibleevidence to more easily and effectively assess a source's compliance status and respond tononcompliance, thus more effectively protecting our nation's health and environment.
This balanced proposal reflects the Agency's basic approach to "common sense"environmental protection, which encourages smarter, cheaper and more flexible means ofachieving environmental goals without compromising the fundamental health and environmentalprotections provided by federal environmental laws. The credible evidence proposal removescost barriers to regular determinations of compliance by the regulated community and regulatoryauthorities alike. Allowing the use of emission data other than reference test results is critical toother EPA proposals to streamline CAA regulations, including EPA's draft proposed CAM ruleand Open Market Trading rule ("OMTR"). Under the draft proposed CAM rule sources would beallowed to certify compliance with applicable permit limits based on monitoring key operatingparameters. Similarly, in order to provide sufficient flexibility for a broad pollutant tradingscheme to function, at least some sources would have to be allowed under the OMTR to usemeans other than reference test methods to quantify the emission reductions being traded.
Members of the regulated community have expressed concerns regarding the proposal,particularly regarding its effects on emission standards and enforcement. Some regulated sourceshave argued that allowing the use of credible evidence to determine whether or not a source is incompliance with anemissions standard increases the stringency of the standard; others have argued that states, EPAand citizens will use credible evidence to bring enforcement actions for minor violations. Asexplained below, EPA does not intend to affect the stringency of the underlying standards. However, the Agencyrecognizes, and indeed intends, that the use of "credible evidence" will require some sources totake steps to improve the degree to which they comply with the Act. The Agency intends topublish an enforcement policy at the time of any final Agency action on credible evidencerevisions to assist EPARegional Offices and the states in distinguishing between minor and insignificant violations thatneed not be pursued in the first instance by judicial action and significant violations for whichprompt and aggressive enforcement is appropriate.
By clearly providing that the reference test methods are not exclusive methods, EPA does notintend to alter the underlying standards. Rather, the Agency would still use the referencemethods for exactly what they are: test methods of reference against which other data will bemeasured. That is, thereference methods will be used as the standard for determining the credibility and precision ofother emissions data and measurements [2]. For example, EPA Reference Method 9 provides foropacity measurements to be taken over a period of 6 minutes. A continuous opacity monitormay record opacity as often as once every 15 seconds. The Agency does not propose to providethat a singleopacity reading, spanning only 15 seconds, is sufficient evidence to establish a violation. In thisexample a violation could only be established by the continuous monitor data where a series ofsuch measurements over a six minute period demonstrated a noncompliance.
Incorporating credible evidence into compliance certifications and compliance determinationsin general is fully consistent with the language and intent of the CAA and the 1990 CAAamendments, and with EPA's goals regarding burden reduction, the use of common sense, andeffective environmental law enforcement. Unlike the 1993 enhanced monitoring proposal, thecredibleevidence revisions would require no additional information gathering or recordkeeping bysources. Instead, the revisions would allow sources to rely on accurate information, much ofwhich is already available and utilized, in order to assert compliance with emission standards. The proposal also allows EPA and states to use this same credible information for complianceand enforcement purposes.
Both EPA and industry now routinely rely on many types of information, includingengineering calculations, indirect estimates of emissions, and direct measurement of emissionsby a variety of means, in order to assess compliance with CAA requirements.
Where available, CEM data and parametric monitoring data (such as the operatingtemperature and air flow rate of a regenerative thermal oxidizer) generally provide reasonablyaccurate data regarding a source's compliance with emission limits and standards. These dataalso generally cover a greater percentage of a source's time in operation and are morerepresentative of a source's ongoing compliance status than sporadic performance testing. UnderEPA's credible evidence proposal, sources would generally be able to use this accurate, alreadyexisting monitoring data to certify compliance with their operating permits. This flexible,common sense approach compares favorably to the "exclusivity" approach, which limitscompliance data to infrequent performance tests conducted under conditions that may not reflectthe source's actual in-operation emissions. The exclusivity approach can also be expensive andburdensome: reference method tests can cost up to $100,000 for a series oftests and can take a week or more to set up and complete.
2. Reduces Potential Industry Burdens in Enforcement Actions
By providing industry with flexible, cheap and accurate means of determining compliance,this proposal significantly aids sources in certifying compliance with emission limits. Moreover, the proposal assists industry in more general compliance and enforcement contexts. Forexample, the 1990 CAA amendments provided in certain circumstances that if a source isnotified of a violation of an emission limit or other standard, the violation can be presumed tocontinue until the source demonstrates its return to compliance. CAA 113(e)(2). Under anexclusivity approach, a source might be deemed to remain in violation after a non-complyingreference test until it could conduct (and pay for) a second set of reference tests, even if itidentified and fixed the problem immediately. Today's proposal would eliminate this inflexible,expensive result by allowing sources to demonstrate a return to compliance through othercredible evidence.
3. Reduces Burdens on EPA and States
Not only is this proposal less burdensome for industry; it also allows EPA and states toperform essential functions with fewer resources. Periodic development, review and observationof reference method tests are resource intensive. EPA and state compliance assessment activitiesfrequently involve an inspection where direct emissions data may not be readily available, aninformation request, a performance test, and an assessment of the test. In contrast, the use ofcredible information in permit compliance certifications, and in compliance activities generally,allows states, EPA and sources to more readily and rapidly assess whether a source is incompliance with its emissions limits. This will enable states and EPA to take appropriatecompliance and enforcement action to protect public health and the environment.
Some industry representatives have expressed concern that the use of credible evidence incompliance determinations will reveal multiple minor violations for which EPA, the states orcitizens will bring lawsuits. This is not EPA's intent, and EPA does not expect that it wouldoccur. EPA focuses its compliance and enforcement resources on violations that (1) maythreaten or result in harm to public health or the environment, (2) are of significant duration ormagnitude, (3) represent a pattern of noncompliance, (4) involve a refusal to provide specificallyrequested compliance information, (5) involve criminal conduct, or (6) allow a source to reap anunfair and illegal economicwindfall. As discussed, EPA's experience is that citizen enforcers generally focus on similarviolations.
An examination of EPA's judicial enforcement cases over the past few years reveals that EPAhas focussed its judicial enforcement resources on large, significant cases rather than a largenumber of relatively minor matters. Two recent cases illustrate the point. The first is EPA'snationwide enforcement action to address a wood product company's failure to obtainpreconstruction permits and install required pollution controls at numerous wood panelmanufacturing plants. Each of the plants involved in the action had emitted or had the potentialto emit hundreds of tons of ozone-forming organic chemicals, which cause smog. In addition,these illegally constructed plants allowed the company to obtain an unfair economic advantageover its competitors. The violations persisted for as long as 10 years. EPA and the Departmentof Justice (DOJ) negotiated a judicial settlement under which the company would install state ofthe art pollution control systems at 14 plants, at an estimated cost of $70 million, that wouldreduce emissions from these facilities by more than 90%. The company also agreed to pay a civilpenalty of over $11 million.
In the second example, EPA and DOJ brought a judicial action against a hazardous wasteincinerator that modified its facility to substantially increase its air emissions without obtainingrequired preconstruction permits or installing required pollution control devices. At trial,evidence was presented that the company had exceeded its limits for authorized emissions by asmuch as a factor of 100, and emitted substantial amounts of noxious and toxic chemicals(including toxic metals as lead, cadmium and chromium) where no emissions were authorized. The evidence established that the source had violated its permitted limits and operatedunpermitted sources each and every day for over eight years and had ignored state administrativeorders and even a judgment from the state supreme court. The Federal District Court entered aninjunction (which is currently stayed pending an appeal) that halted further operation without apermit and imposed a multimillion dollar fine on theoperator.
In contrast, EPA's approach to minor unexcused violations generally has been to exerciseprosecutorial discretion and use compliance mechanisms such as notices of violation andadministrative compliance and penalty orders to ensurea return to compliance. Whereappropriate, EPA has also exercised its discretion to take no enforcement action at all. EPA doesnot intend to usecredible evidence to change this general approach.
EPA considers enforcement against minor CAA violations to bea very low enforcementpriority and believes that it has sufficient enforcement and compliance assistance tools to respondto such violations without the need to file an action in Federal District Court. EPA has abalanced enforcement program that seeks to assure compliance using the mix of the complianceandenforcement tools available to it. Accordingly, absent extraordinary circumstances, such as wherea company's negligence occasioned a significant risk to the public, EPA does not favor filingjudicial enforcement actions against sources that have had exceedances of short duration thatwere caused bya problem that the source quickly fixed. Although such exceedances would technically beviolations (unless they fell within a compliance exclusion), they generally would not be treated asan Agency enforcement concern because they did not have a significant environmental impactand were not a continuing problem.
Likewise, if a source had occasional exceedances of the emission standard that were slightlyin excess of the standard and solved the problem, EPA would not generally recommend filing acivil enforcement action because the environmental impact was minimal and the source returnedto continuous compliance. Also, if a source was installing a new unit subject to the New SourcePerformance Standards (NSPS) and had difficulties getting the control equipment to operateproperly after the "shakedown" period permitted before the initial performance test (40 C.F.R.60.8(a)), but solved the problems promptly after the performance test, this would also be a lowenforcement priority - - particularly where innovative control equipment was being employed forthe first time.
Finally, we note that the NSPS already generally excuse sources from compliance with someemissions limits during periods of startup, shutdown or malfunction. See 40 C.F.R. 60.11(c). Some NSPS additionally excuse sources from compliance during certain specified periods. Emissions exceedances monitored during any of these periods are not considered violations (although sources are under a separate duty to minimize emissions at these times). Moreover,some NSPS specify averaging periods for determining compliance and noncompliance. As aresult, many minor emissions values above the standard, when averaged with other values in therelevant averaging period, do not emergeas violations. The credible evidence proposal does not change these averaging periods or theirresults.
Our evaluation confirmed that CWA citizen suits generally do not involve sporadic,inconsequential violations. The National Environmental Law Center (NELC) in Massachusettsprovided information showing that their concluded cases involved an average penalty of$714,134, and a median penalty of $250,000. Each case also included injunctive relief. For thosecases where duration of violation information was available, the average was almost 575 days of violation per case. The New Jersey Public Interest Research Group (NJ PIRG) reported similarresults, with an average per case penalty of $702,800.
To date, there have far fewer CAA citizen suits than CWA suits. However, among the fewCAA suits filed to date, there have been at least two notable cases involving serious violations. In NWF v. Copper Range Co., a citizen suit filed by the National Wildlife Federation in whichthe United States the states of Wisconsin and Michigan intervened, the facility at issue was oneof the largest sources of particulate matter in the Upper Peninsula of Michigan, emittingparticulate at a rate of 230 lbs/hour -- over five times its permitted limit. The emissionscontained many toxic air pollutants, including mercury, arsenic, cadmium and lead. The suit wassettled in 1995 for civil penalties of $4.8 million and injunctive relief valued at over $200million. In Sierra Club v. Public Service Company, 894 F.Supp. 1455 (D.C. Col. 1995), thedistrict court held that a power company generating station had committed over 19,000 violationsof opacity emission standards over a period of years; the court hasnot yet ruled on an appropriate penalty. In January 1996 EPA issued a notice of violation to thisfacility for thousands of subsequent violations.
In addition, EPA examined its docket of concluded federal judicial actions that involvedNSPS violations, to illustrate its own approach towards these cases. Not all of these NSPS casesinvolved emissions violations. Nonetheless, the results support EPA's general argument thatfederal cases aretypically brought to address substantial environmental problems. Over the last five years, theDepartment of Justice reports that the average NSPS case was concluded for a penalty of$181,249 (median penalty, $89,600). No compilation of the value of injunctive relief was readilyavailable.
EPA does not believe that the credible evidence proposal will increase the stringency of thestandards. As detailed in the October 1993 Federal Register notice, EPA's position is thatemission standards generally must be complied with at all times, except for periods wherenoncompliance is specifically excused. As discussed above, both the general NSPS provisionsand various specific NSPS subparts excuse noncompliance during certain specified periods.Apart from these periods, sources are required to continually comply with their emission limits. Accordingly, increased compliance monitoring does not increase emission standard stringency. In Sierra Club v. Public Service Co., the only federal judicial decision to address this issue sincethe passage of the 1990 CAA amendments, the court rejected the defendant's argument that acitizen group's use of CEM data and reports as evidence of violations effectively changed theunderlying standard.
EPA agrees that one effect of the proposed rule would be to increase the probability that anoncomplying facility will be detected. This increased detection of noncompliers benefits themajority of sources that do routinely comply by ensuring a level playing field so that others donot obtain acompetitive advantage through noncompliance. To use a simple analogy, the Agency is notproposing to change the speed limit for vehicles on Federal highways; rather, it is proposing toallow the use of radar guns to more readily detect speeders.
In the context of compliance certifications, some commentators have argued that to requirethe use of credible evidence would be to require a source to scour all records throughout the plant-- "go through every file cabinet" -- and create an enormous recordkeeping burden. The CAMrule as presently envisioned would address this concern by providing a mechanism, the CAMPlan, where the permitting authority and the source would negotiate and agree on a limitedamount of data that would have to be reviewed in order to certify compliance. To prevent fraud,a source could not ignore other information that it became aware of that showed noncompliance,but would be under no affirmativeobligation to gen erate or search out such information.
[2] The National Bureau of Standards maintains a number of standards against which othermeasuring devices, used in scientific or commercial applications, are calibrated. Similarly, wherea New Source Performance Standard or permit requirement specifies EPA Method 25A, forexample, for determining the amount of volatile organic compounds ("VOCs") that are emitted,the "other evidence" that could establish compliance would have to relate to the likelymeasurement of VOCs that would have been obtained by a Method 25A measurement at thatpoint in time. This could include consideration of key operating parameters for the facility ascorrelated with emissions during a Method 25A test.