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EPA Regional Offices Attempt to Circumvent Future Credible Evidence Legal Challenges (10/20/98)

In a recent conversation with a client, RMB was informed that the EPA Regional Offices were insisting that the states insert "Credible Evidence Language" in Title V permits. We did some checking and discovered that Region V was indeed requiring such language. The exact quote from a draft permit we obtained is:

"Notwithstanding the conditions of this permit specifying compliance practices for applicable requirements, any person (including the Permittee) may also use other credible evidence to establish compliance or noncompliance with applicable requirements."

Insertion of this language appears to be an attempt by EPA to eliminate future court challenges to the credible evidence rule (see D.C. Circuit Court Hands Industry a Loss on Credible Evidence Litigation). It seems to us that anyone who has such language in their permit could not adequately defend a suit brought by the Agency, or any other party, on the grounds of credible evidence. For sure, the argument that compliance test methods are the only basis for determining compliance is lost because the permit says otherwise. A source with credible evidence language in its permit may also be stuck with it forever - even if the Credible Evidence Rule is struck down by subsequent court action.

We are interested to know if similar action is being taken by the various states and other EPA Regional Offices. Drop us an E-mail at ce@rmb-consulting.com if you are seeing this type of language in the draft permits.

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Last Revised: November 23, 1998