A Letter to the United States Environmental Protection Agency


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


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


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.


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

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