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D.C. Circuit Court Hands Industry a Loss on Credible Evidence Litigation (08/17/98)

On Friday, August 14, the D.C. Circuit Court of Appeals ruled that the issues raised by industry on the EPA Credible Evidence (CE) regulation "are unripe and cannot be decided at this time." A wide variety of industry including utilities, car manufacturers, lumber companies, steel producers, petroleum companies and mining companies had litigated for review of the CE rule citing EPA’s lack of statutory authority and unlawful revision of emission standards. Quoting the court decision, "Petitioners argue that EPA promulgated the rule without statutory authority, that the revisions are unlawful because EPA failed to comply with proper rulemaking procedures, and that EPA violated the Clean Air Act by forcing states to rewrite their implementation plans. The heart of the argument is that the credible evidence rule, by altering the means for determining compliance for the new source performance standards and the hazardous air pollutant standards, increases the stringency of the underlying standards."

The essence of the CE rule states, "…..various kinds of information other than reference test data, much of which is already available and utilized for other purposes, may be used to determine compliance or noncompliance with emission standards." (Using an opacity monitor rather than Method 9 for compliance determinations on a SIP source is a prime example.) In this case, industry argued that the compliance measurement method is an integral part of the emission standard because that measurement method had been used to set the standard. Industry also argued that the CE rule would convert "periodic" standards to "continuous" standards thereby increasing the stringency of the standards. (It can be shown mathematically that this is true.)

On these issues the court ruled that a purely legal decision could not be made in the abstract – an actual CE enforcement case was needed to evaluate the specific situation. To quote the court, "As matters now stand, there are too many imponderables. …… Given the universe of all possible evidence that might be considered "credible," it is impossible for us to decide now what impact the rule might have. ….. An enforcement action brought on the basis of credible evidence would, we believe, provide the factual development necessary to determine whether the new rule has effected whatever existing standard is involved. Until then, we have the classic institutional reason to postpone review; we need to wait for the rule to be applied to see what its effect will be."

The complete court ruling is only a few pages and makes for some interesting reading. This document is available from our FTP library in Wordperfect 5.1 format.

The bottom line is that the CE rule survives and, as a practical matter, that means utilities and other industries will have to pay strict technical attention to the contents of their periodic monitoring and compliance assurance monitoring protocols and procedures.

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Last Revised: August 18, 1998