The National Resources Defense Council (NRDC) litigated the Compliance Assurance Monitoring (CAM) Rule claiming that the rule did not effect enough large sources and that the continuous versus intermittent certification procedure in the rule was not sufficient to satisfy the requirements of the Clean Air Act. In the same action, industry (including the utility industry) litigated the requirement to provide "other material information" including "credible evidence" with the compliance certification. Industry claimed that by including such information it would be required to "abandon any rights they might have to defend against the use of that evidence in enforcement proceedings."
With respect to NRDC's claims, the court rejected the applicability claim but agreed with the continuous versus intermittent claim. The court remanded the rule back to EPA to fix the language so that a source has to certify whether compliance is continuous or intermittent not just whether the data are continuous or intermittent. This is a significant loss for the industry because where intermittent data are being used some judgement must be made concerning compliance status.
With respect to the industry claims, the court ruled that the case is not ripe because an actual enforcement case has not been brought. It was interesting to note that the court suggested that industry could add a caveat to its certification to the effect that, "while it is providing other evidence which EPA might find material, the submitter disputes its materiality and reserves the right to challenge the use of the evidence in court."
We have added the complete court ruling to our FTP library for your download. The ruling is fairly short and is reasonably well written. The file is a text file and we apologize for its appearance. The WordPerfect version should be available in a week and we will replace the text file.
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