CHAPTER 12 EMISSIONS MONITORING AND ANY CREDIBLE EVIDENCE
| Jurisdiction | United States |
(2000)
EMISSIONS MONITORING AND ANY CREDIBLE EVIDENCE
LeBoeuf, Lamb, Greene & MacRae, L.L.C.
Denver, Colorado
Charla Beth Mobley
LeBoeuf, Lamb, Greene & MacRae, L.L.C.
Albany, New York
Patrick H. Zaepfel
LeBoeuf, Lamb, Greene & MacRae, L.L.C.
Pittsburgh, Pennsylvania
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In this paper, we hope to provide the reader with some assistance and insight into the evolving issues related to what the owners and operators of stationary sources have to do and might want to consider doing on the subject of monitoring and information gathering related to plant operations and emissions. We will first examine the fairly recent evolution of federal requirements related to emissions monitoring and recordkeeping. Then we will review the ways in which the courts and, more recently, EPA and the states have approached the issue of what type of information can be used in enforcement cases—including the required and voluntary process and emissions records being compiled. Finally, we offer a few suggestions for practitioners and their clients.
THE CAM RULE
Background
Prior to 1990, no statutory mechanism existed that required sources of air emissions to conduct enhanced compliance monitoring.1 However, with the passage of the 1990 Clean Air Act ("CAA") Amendments, Congress added provisions to the CAA to assure that stationary sources are accountable for their emissions and compliance status on a continuous basis, and that the United States Environmental Protection Agency ("EPA") has the authority to impose conditions to accomplish such.2
Under Title I of the CAA Amendments, Section 114(a)(3) requires "enhanced monitoring and submission of compliance certifications" from major stationary sources.3 Section 114(a)(1) further allows the EPA to require any source on a one-time, periodic or continuous basis to: establish and maintain records; install, use and maintain monitoring equipment; sample emissions; keep records on control equipment parameters, production variables or other indirect data when direct monitoring is impractical; and to submit compliance certifications in accordance with Section 114(a)(3).4 Moreover, Section 504 of Title V, which contains the CAA's major source permitting program, requires all permits issued thereunder to include
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"enforceable emission limitations and standards...and such other conditions as are necessary to assure compliance with applicable requirements of [the Act]," including "inspection, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and conditions."5 Regarding monitoring and analysis, Section 504 also provides that the EPA may "by rule prescribe procedures and methods for determining compliance and for monitoring and analysis of pollutants...but continuous emission monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance."6 Through these provisions, Congress empowered the EPA to impose enhanced monitoring requirements on stationary sources through the Title V operating permit process.
Accordingly, in 1993, the EPA proposed the Enhanced Monitoring ("EM") Rule, a regulatory scheme pursuant to Section 114 of the CAA that would require major sources of emissions to demonstrate continuous compliance, requiring additional recordkeeping and, in many cases, necessitate the installation of direct monitoring systems.7 In public comment, this proposal was widely criticized by both industry and governmental pollution control agencies.8 Industrial critics felt the costs of implementing the new proposal would far outweigh any incremental benefits, and expressed concern that the proposed enforcement system was inflexible and overly expensive.9 Government agencies argued that the proposal would prove overly burdensome to them because extensive resources would be needed to develop, review, and observe reference method tests.10
In response to this criticism, EPA held a series of stakeholder meetings and eventually issued a new proposal which was hoped to provide a more flexible, practical and economic approach to compliance monitoring.11 The new proposal sought to leave the controversy of the
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EM Rule behind by changing its focus and name to Compliance Assurance Monitoring ("CAM").12 EPA Administrator Browner signed the Compliance Assurance Monitoring, Final Rule on October 1, 1997 (hereinafter referred to as the "CAM Rule").13 The CAM Rule establishes enhanced monitoring requirements for each pollutant-specific emission unit at a major source that is subject to an emission limit or standard for a regulated pollutant, relies on a control device to meet that standard, and has pre-control device potential emissions at or above major source threshold levels.14 Thus, the CAM Rule does not apply unless the following criteria are satisfied: (1) the emissions unit must be located at a major source; (2) the emission unit must have potential, pre-control device, pollutant-specific emissions at or above the amount required for a source to be classified as a major source; (3) the emission unit is subject to an emission limit or standard for that pollutant; and (4) the emission unit uses a control device to achieve compliance with the emission limitation or standard.15 Moreover, certain emission units that meet these criteria may not have to fulfill CAM Rule obligations if they are specifically exempted from coverage by the rule itself.16
The CAM Rule
In order to achieve continuous assurance monitoring, the CAM Rule sets forth a program requiring subject sources to monitor the operation and maintenance of their control equipment at the covered emission units, pursuant to a monitoring plan, so that the performance of such can be evaluated as a measure of whether or not the emission units meet established emission
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standards.17 The CAM Rule requires such sources to prepare a monitoring plan based upon performance indicators that will provide a reasonable assurance of compliance with emission limitations or standards for the anticipated range of operations at a particular emissions unit.18 This must be done for each subject emission unit at the facility.19 The monitoring plan must be designed to obtain data from one or more indicators of emission control device performance, such as direct or predicted emissions, process and control device parameters that affect control device efficiency or emission rates, and/or recorded findings of inspection and maintenance activities conducted at the source.20 After selection of performance indicators, appropriate ranges for the indicators must be developed so that the ranges reflect the proper operation and maintenance of the control device for minimizing emissions over the range of reasonably expected operating conditions at least to the level required to achieve compliance with the applicable emission requirements.21 The CAM Rule contains detailed parameters that must be met in the selection of the performance indicators, and the acceptable ranges of the performance indicators.22
The CAM Rule is designed to be implemented on a case-by-case basis through the Title V operating permit process.23 Depending upon the size of the emission unit, sources with subject emission units must submit a CAM monitoring plan, along with other necessary information,24 either with their initial Title V application, with its Title V permit revision or modification application, or with its Title V renewal application.25 On or after April 20, 1998, large pollutant-specific emissions units26 must either: submit CAM plans as part of a Title V permit application if such an application has not been filed or is incomplete; or file a CAM plan as part of a Title V permit revision, but only with respect to those pollutant-specific emissions
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units affected by the revision; submit a CAM plan with its Title V renewal application, if it has not submitted a CAM plan under either of the two aforementioned scenarios.27 Other pollutant-specific emissions units28 must submit a CAM plan as part of a Title V renewal application.29 This phased compliance schedule was designed to extend the implementation period to help alleviate the burden of both preparing and reviewing CAM plans in a short period of time.30
Since each source's CAM plan is individually tailored to its covered emission units and corresponding control equipment, it must undergo review on a case-by-case basis.31 In reviewing a CAM plan, the reviewing authority may require a source to collect and submit additional information in support of the selected indicators and ranges.32 After review, the ultimate approval of a CAM plan must be accompanied by the inclusion of at least one condition in the source's Title V permit that requires the monitoring called for in the CAM plan and provides the specifics of such monitoring, all of which must be in accordance with the Title V monitoring requirements set forth in 40 CFR Section 70.6(a)(3)(i).33 These monitoring specifics must include the level and duration thereof at which an exceedance of an indicator range will be deemed to occur, for purposes of responding to and reporting to exceedances.34 In the event an exceedance occurs, operation of the unit and control equipment must be restored to "its normal or usual manner of operation as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions."35 Whether the actions taken in response to an exceedance are acceptable will be determined on available information, which may include the monitoring results, review of operations and maintenance procedures and records, and
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equipment inspections.36 If a source's response to an exceedance is not deemed to be acceptable, the...
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