Beveridge & Diamond
Related Practices
Related Practices

D.C. Circuit Court Vacates EPA Rule Prohibiting Supplemental Title V Monitoring Requirements

Beveridge & Diamond, P.C., August 25, 2008

On August 19, 2008, the U.S. Court of Appeals for the District of Columbia Circuit vacated a Clean Air Act rule promulgated by the United States Environmental Protection Agency (EPA) that prevented state and local permitting authorities from supplementing monitoring requirements in Title V permits.  Sierra Club v. EPA, No. 04-1243 (D.C. Cir. Aug. 19, 2008). 

The Sierra Club and other environmental interest groups filed the lawsuit in response to EPA’s 2006 rulemaking prohibiting state and local permitting authorities from imposing additional monitoring requirements in Title V permits, including when existing standards were deemed inadequate for assuring compliance.  71 Fed. Reg. 75,422 (Dec. 15, 2006).  In reviewing Sierra Club’s challenge to the rule, the Court focused on Section 7661c(c) of the Act, which provides that “[e]ach permit . . . shall set forth . . . monitoring . . . requirements to assure compliance with the permit terms and conditions.”  42 U.S.C. § 7661c(c).  The court determined that this provision requires that all permits include adequate monitoring requirements.  The court dismissed arguments by EPA and industry intervenors that the Act’s “[e]ach permit” mandate limits the imposition of new monitoring requirements to EPA alone.  Because EPA failed to fix inadequate monitoring requirements prior to the issuance of the permits (and option available to EPA under the Clean Air Act), the court found that state and local authorities must be allowed to cure those monitoring requirements before including them in the Title V permits.  The Court concluded that the 2006 rule violated the Clean Air Act and vacated the rule.   

Having rejected the 2006 rule, the court turned to the environmental groups’ challenge to the Part 70 rules themselves.  The environmental groups argued that if the Part 70 rules forbid permitting authorities from supplementing inadequate monitoring requirements, those rules must also be vacated.  The Court determined that the monitoring provisions of Part 70 could be easily and reasonably read to allow state and local permitting authorities to supplement monitoring requirements in each permit issued under the Title V program.   Relying on Section 70.6(c)(1), which states that “[c]onsistent with [§ 70.6(a)(3)],” all permits “shall” contain “monitoring . . . requirements sufficient to assure compliance with the terms and conditions of the permit,” the Court held that all Title V permits must include monitoring requirements “sufficient to assure compliance with the terms and conditions of the permit, even when other provisions of the Act are not applicable.”  The Court then denied the petition for review with respect to the monitoring provisions of the Part 70 Rules.             

The ruling is the culmination of a state and federal policy debate that began in 1997, when the EPA initially took the contrary position that state and local permitting authorities could supplement periodic monitoring requirements that failed to assure compliance.