May 9, 2000
Carol Browner, Administrator
United States Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Re: EPA’s Response to the DC Circuit Court Decision Striking Down the Title V
Periodic Monitoring Guidance
Dear Ms. Browner:
We are writing to urge you to take quick action to ensure that permits issued pursuant to
the Clean Air Act Title V permit program require permitted facilities to perform adequate
pollution control monitoring.
On April 14, 2000, the United States Court of Appeals for the District of Columbia
Circuit ruled in favor of industry petitioners in Appalachian Power Company v. EPA, setting
Periodic Monitoring Letter, page 2 of 2
aside EPA’s 1998 Title V “Periodic Monitoring Guidance.” The Periodic Monitoring Guidance
gave state and local permitting authorities specific direction on the type and frequency of
pollution control monitoring that must be included in a Clean Air Act Title V air pollution
permit. The loss of this guidance makes it far less likely that our nation’s largest polluters—
including power plants, incinerators, petroleum refineries and large factories—will be held
accountable for compliance with the Clean Air Act through effective Title V permits.
EPA must revise 40 CFR Part 70, the federal regulation governing state Title V
programs, to include language that clearly supports the periodic monitoring principles contained
in the Periodic Monitoring Guidance. Moreover, EPA must take all actions necessary to prevent
the issuance of inadequate permits pending the elimination of any gaps in periodic monitoring
requirements.
In the Periodic Monitoring Guidance, EPA interpreted 40 CFR Part 70 as requiring state
permitting authorities to include additional monitoring in a facility’s Title V permit “for each
applicable requirement for which the present monitoring is nonexistent or otherwise inadequate.”
Periodic Monitoring Guidance, p. 7 (emphasis added). In Appalachian Power Company,
industry petitioners challenged the Periodic Monitoring Guidance on the basis that 40 CFR Part
70 does not give states the authority to require additional pollution monitoring when monitoring
provided in an underlying requirement is “inadequate.” Rather, industry argued that when an
applicable requirement specifies some form of monitoring that must take place from time to
time, no matter how infrequently, 40 CFR Part 70 does not require additional monitoring. In
ruling against EPA, the Court did not find that EPA lacks the authority under the Clean Air Act
to require by regulation that a Title V permit include additional monitoring when existing
monitoring is inadequate. Instead, the Court held that EPA improperly expanded 40 CFR Part 70
by issuing the Periodic Monitoring Guidance without following mandatory rulemaking
procedures.
The Appalachian Power Company decision threatens to undermine the effectiveness of
the Title V program by making it so that Title V facilities are not required to perform monitoring
that is sufficient to assure compliance with Clean Air Act-based requirements. In addition, the
decision is likely to result in a stampede by facilities that already possess final Title V permits to
get the periodic monitoring conditions included in those permits relaxed. Permitting authorities,
already overwhelmed by the task of processing initial permit applications, could be swamped by
this push for permit modifications.
EPA must revise 40 CFR Part 70 as soon as possible to clarify that a Title V permit must
require the permitted facility to perform additional pollution monitoring when monitoring
provided in an underlying requirement is inadequate. At the very least, this revision must be
included in the Part 70 revision package that is scheduled to be released for public comment in
late summer or early fall of 2000.
Pending the revision of 40 CFR Part 70, EPA must take all actions necessary to prevent
the issuance of inadequate Title V permits and to discourage facilities from asking for
modifications in permits that have already been issued. While a variety of actions may be
necessary, we specifically ask that EPA immediately publish a Federal Register notice
Periodic Monitoring Letter, page 3 of 3
announcing the agency’s intention to propose revisions to Part 70 that will reinstate the periodic
monitoring principles included in the Periodic Monitoring Guidance. The Federal Register
notice must also clarify that EPA and permitting authorities are still under an obligation to ensure
the adequacy of the periodic monitoring required in Title V permits. As the Court made clear in
Appalachian Power Company, existing regulations allow for increased monitoring in cases
where an applicable emissions standard lacks monitoring, where there is only a one-time
monitoring requirement, or where an underlying requirement fails to specify how frequently
monitoring must be performed. Moreover, Clean Air Act § 505(b) requires EPA to object to any
Title V permit that does not comply with the Clean Air Act, including the Clean Air Act
§ 505(a)(1)(A) requirement that every Title V permit include “conditions as are necessary to
assure compliance with applicable requirements [of the Clean Air Act], including the
requirements of the applicable implementation plan.” Clearly, a Title V permit cannot assure the
public and government regulators that a facility is operating in compliance with the law if the
facility is not required to perform adequate periodic monitoring.
The Court’s decision in Appalachian Power Company poses a serious threat to the
success of the Title V program. We urge you to avert this threat by implementing the
recommendations discussed above without delay.
Sincerely,
Kids Against Pollution
U.S. Public Interest Research Group
Environmental Quality Strategy Team - Air Committee
Sierra Club
Environmental Working Group
National Environmental Trust
Clean Air Task Force
Clear the Air
Public Citizen’s Critical Mass Energy and Environment Program
Atlantic States Legal Foundation
Conservation Law Foundation
New England Clean Water Action
Consumer Policy Institute/Consumers Union
Sierra Club Great Lakes Program
Citizens Awareness Network
Alabama Environmental Council
Greenaction for Health And Environmental Justice
California Communities Against Toxics
Coalition for Clean Air
Land and Water Fund of the Rockies
Toxics Action Center
Legal Environmental Assistance Foundation
Florida Public Interest Research Group
Ozone Action
Campaign for a Prosperous Georgia
Georgia Public Interest Research Group
American Lung Association of Metropolitan Chicago
Illinois Environmental Council
Center for Neighborhood Technology
Illinois Public Interest Research Group
Valley Watch, Inc.
Hoosier Environmental Council
Citizens for Clean Air and Water
It's Our Home, Inc.
Natural Resources Council of Maine
Toxics Action Center
Massachusetts Public Interest Research Group
Ozark Chapter of the Sierra Club
American Lung Association of Michigan
Ecology Center of Ann Arbor
HEAT - Hamtramck Environmental Action Team
Michigan Environmental Council
Public Interest Research Group in Michigan
Pyramid Lake Paiute Tribe
Rural Alliance for Military Accountability (RAMA)
American Lung Association of New Jersey
NJ/NY Environmental Watch
New Jersey Environmental Lobby
American Lung Association of New York State
New York Public Interest Research Group (NYPIRG)
Citizens’ Environmental Coalition
Environmental Advocates
Scenic Hudson, Inc.
Poughkeepsie, NY
Chenango North Energy Awareness Group
Temple Beth El Social Action Committee
Central New York--Citizens Awareness Network
Great Lakes United
Appalachian Voices
North Carolina Public Interest Research Group
Earth Day Coalition
Ohio Environmental Council
The Environmental Community Organization
Ohio Citizen Action
Northeast Ohio Group, Sierra Club
Ohio Public Interest Research Group
Oregon Environmental Council
Swan Island Airshed Committee
Clean Air Council
Group Against Smog & Pollution (GASP)
Citizens for Pennsylvania's Future (PennFuture)
People United for a Responsible Environment (PURE)
Southern Alliance for Clean Energy
Tennessee Citizens for Wilderness Planning
Tennessee Environmental Council
Sierra Club, Lone Star Chapter
Galveston-Houston Association for Smog Prevention
Public Citizen of Texas
Texas Sustainable Energy and Economic Development (SEED) Coalition
Wasatch Clean Air Coalition
American Lung Association of Washington
Washington Public Interest Research Group
Washington Regional Network for Livable Communities
Concerned Citizens' Coalition
Wisconsin Public Interest Research Group