CHAPTER 2 LEGAL IMPACTS OF INCREASED PUBLIC AVAILABILITY OF AIR QUALITY DATA

• Jurisdiction: United States

Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (Feb 2018)
CHAPTER 2
LEGAL IMPACTS OF INCREASED PUBLIC AVAILABILITY OF AIR QUALITY DATA
Adam Babich
Professor of Law
Tulane Univeristy School of Law
New Orleans, LA

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ADAM BABICH teaches environmental law, administrative law, and civil procedure at Tulane Law School, in New Orleans. From 2000-2017, he directed the Tulane Environmental Law Clinic. Before joining Tulane, Adam practiced with private law firms, as a government enforcement lawyer, and as adjunct attorney for the Environmental Defense Fund. He was a trial lawyer on the nation's first remedy trial under the Superfund law and has litigated high profile cases that resulted in, inter alia, shut-down of a plutonium-contaminated incinerator at the Rocky Flats nuclear weapons plant near Denver, an injunction to abate Clean Air Act violations at an ExxonMobil-operated oil refinery near New Orleans, cleanup of mercury contamination in Louisiana's Monroe Gas Field, and relocation of residents exposed to unsanitary conditions near a Baton Rouge sewage treatment plant. Adam has taught at Georgetown University Law Center, American University, and the University of Denver. He has also served as a judicial law clerk for the Colorado Supreme Court and as the Environmental Law Reporter's editor-in-chief. More than 325 publications and five court opinions cite his articles. Under his leadership, the Tulane Environmental Law Clinic raised more than $3.8 million in foundation grants, contributions, and attorney-fee awards. In 2010, the Clinic received the Federal Bar Association's (New Orleans Chapter) Camille F. Gravel, Jr. Pro Bono Award.

Introduction

Before the 1990 Amendments kicked in, the Clean Air Act was notoriously difficult for citizens to enforce.¹ Emission monitoring was sporadic and--at least from an ordinary person's perspective--expensive.² Monitoring technology is advancing, however, providing opportunities for more extensive and accurate self-monitoring and self-reporting, and also for monitoring by individuals and non-governmental organizations.³ Thus, for example, a focus on monitoring and publicly accessible

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electronic reporting is part of EPA's "Next Generation Compliance" initiative.⁴ EPA initiatives are subject to change, of course. But regardless of whether the agency sticks with the "Next Gen" approach, it is safe to predict that environmental quality monitoring data will continue to become less expensive to generate and, on balance, easier to obtain.⁵ Over the long term, the result will be an increased need for

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consistent compliance to avoid government and citizen enforcement.⁶ Advances in technology will also present an opportunity to strengthen relationships with community members by backing up assertions of compliance with verifiable data.

Historically, Clean Air Act implementation has rested in part on the (often unspoken) assumption that extensive, direct monitoring of industrial emissions is too expensive to be practical. Thus, when responding to Congress' 1990 mandate for "enhanced monitoring,"⁷ EPA explained that--although it "agree[d] with incorporating direct emissions and compliance monitoring where the technology is available and feasible, and promoting public disclosure of air pollution emissions information"--EPA believed it to be "technically unrealistic" to "impose such monitoring requirements across the board in the short term."⁸ The agency did not think "such a broad, expensive, and technically complex objective" could "be accomplished through a single rulemaking at this time."⁹ Thus, for example, EPA backed away from establishing "enhanced monitoring protocol requirements" for fugitive emissions,¹⁰ and adopted an approach that "cost significantly less than" an earlier proposal.¹¹ Accordingly, emission data is still often based on estimates, or a combination of estimating methodology and parametric monitoring.¹²

To illustrate: In St. Bernard Citizens for Environmental Quality v. Chalmette Refining, L.L.C., the permitting authority had based the defendant's permit limits for tank emissions on "a mathematical formula, known as the AP42 factors."¹³ When

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EPA modified its AP-42 guidance to include consideration of the "temperature of the liquid in [those] tanks," the calculations showed exceedance of the permit limits.¹⁴ Ultimately, a permit was issued, compliance documentation was submitted, and a court held a defendant liable for violations--all based on shifting estimates, without consideration of any direct measurements of emissions from the tanks at issue.¹⁵ In this example, the use of estimates cut against the refinery's operator.¹⁶ More broadly, however, the example illustrates the circular logic involved when permit limits are calculated based on emission estimates, and compliance is determined based on the same estimating methodology. Too often, estimated emissions fail to explain ambient concentrations.¹⁷ As technology for direct measurement of emissions and ambient

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concentrations of pollutants advances, such circular reasoning should become harder to maintain.

This paper reviews legal impacts of the increase in publicly available data about environmental quality. It focuses on (I) citizen enforcement authority, (II) the principle that any credible evidence may support enforcement, (III) citizen monitoring, (IV) aerial surveillance options available to citizen enforcers, (V) the requirement for monitoring sufficient to assure compliance, (VI) reporting obligations, (VII) monitoring pursuant to facility specific orders or agreements, and (VIII) emerging fenceline and ambient monitoring obligations. The bottom line? Be careful out there!

I. Congress granted ordinary citizens broad Clean Air Act enforcement authority.

Beginning with the Clean Air Act Amendments of 1970,¹⁸ the Clean Air Act has provided for citizen enforcement.¹⁹ The Act authorizes "any person" to file suit in federal court "against any person" who is violating or has repeatedly violated the

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Act.²⁰ This provision essentially allows ordinary citizens to step into the shoes of government enforcers--acting as "private attorneys general."²¹ The Act's citizen suit provision reflects a congressional concern that governmental "initiative in seeking enforcement under the Clean Air Act has been restrained."²² Congress thus offered citizens an opportunity "to participate in the effort to prevent and abate air pollution."²³ The D.C. Circuit held that the Act's legislative history reveals "a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced."²⁴ The federal appellate court for the Second Circuit held, "In enacting [the Clean Air Act's citizen enforcement provision], Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests."²⁵

Potentially available remedies include mandatory court orders,²⁶ civil penalties of up to $95,284 per day per violation,²⁷ and an award of attorney and expert

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witness fees.²⁸ Violators must pay civil penalties to the U.S. Treasury,²⁹ except that the court has discretion apply up to $100,000 in civil penalties to "beneficial mitigation projects which ... enhance the public health or the environment."³⁰

There are, of course, limitations. Citizen enforcers must prove their "standing to sue."³¹ Diligent state or federal prosecution in court precludes citizen enforcement suits.³² Government settlements may moot such suits.³³ The Clean Air Act provides for a "permit shield" which allows states to issue permits that, under appropriate circumstances, "provide that compliance with the permit shall be deemed compliance with other applicable provisions of [the Act] that relate to the permittee."³⁴ Citizen enforcement, however, remains a powerful tool.³⁵

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II. Publicly available air quality data may be "credible evidence" of permit or regulatory violations.

Before the 1990 Clean Air Act Amendments, defendants in Clean Air Act citizen suits had a fighting chance to limit evidence of violations to data from "reference test methods" that their permits or state regulations specified.³⁶ State-issued Clean Air Act regulations and permits often specified a particular method of determining compliance.³⁷ And, for example, in United States v. Kaiser Steel Corp., the district court limited evidence for proving an opacity violation to such a method.³⁸ Rejecting this approach, U.S. District Court Judge Lewis T. Babcock explained:

I am concerned that the owner or operator of the stationary source has no duty to permit the representative of the citizen group onto its premises. If I accept defendants' argument that only Method 9 observations may be used to prove violations of the Clean Air Act, it follows that the alleged violator is afforded a large measure of control over enforcement of the Act by citizens groups. The alleged violator can either deny access to the citizen group or it can permit the Method 9 inspection at a time when it can meet the emission standard. Such a result would be contrary to the Act's purpose and undermine congressional intent. ³⁹

In the 1990 Clean Air Act Amendments, Congress specified that a violation's duration could be "established by any credible evidence (including evidence other than the applicable test method)."⁴⁰ In 1997, EPA followed up with the "credible evidence rule" to remove "what some have construed to be a regulatory bar to the admission of non-reference test data to prove a violation of an emission standard."⁴¹

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EPA has explained, "a title V permit⁴² may not preclude any entity, including the EPA, citizens or the state, from using any credible evidence to enforce emissions...