Sierra Club v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2008 Decided August 19, 2008

No. 04-1243

SIERRA CLUB, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

AMERICAN PETROLEUM INSTITUTE, ET AL.,
INTERVENORS

Consolidated with
07-1039

On Petitions for Review of an Order of the
Environmental Protection Agency

Keri N. Powell argued the cause for petitioners. With her
on the briefs was David S. Baron. John D. Walke entered an
appearance.

Cynthia J. Morris, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief was
John C. Cruden, Deputy Assistant Attorney General.
 2
Christopher S. Vaden, David J. Kaplan, Jon M. Lipshultz,
Attorneys, U.S. Department of Justice, and Nancy A.
Ketcham-Colwill and Kerry E. Rodgers, Counsel, U.S.
Environmental Protection Agency, entered appearances.

Lauren E. Freeman argued the cause for intervenors.
With her on the brief were Charles H. Knauss, Leslie S. Ritts,
Susan Conti, Richard S. Wasserstrom, William H. Lewis, and
M. Elizabeth Cox. Ralph J. Colleli, Jr. entered an appearance.

Before: SENTELLE, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

GRIFFITH, Circuit Judge: The 1990 Amendments to the
Clean Air Act compel certain stationary sources of air
pollution to obtain permits from state and local authorities
that identify all emission limits for the source and also include
“monitoring . . . requirements to assure compliance with the
permit terms and conditions.” 42 U.S.C. § 7661c(c).
Sometimes, existing monitoring requirements do not “assure
compliance.” The Environmental Protection Agency (“EPA”)
promulgated a rule preventing state and local authorities from
supplementing these inadequate monitoring requirements. We
vacate this rule because it is contrary to the statutory directive
that each permit must include adequate monitoring
requirements.
 3
I.

A.

Under the regulatory regime established by the Clean Air
Act (“Act”), emission limits for pollutants and monitoring
requirements that measure compliance applicable to any given
stationary source of air pollution are scattered throughout
rules promulgated by states or EPA, such as state
implementation plans, id. § 7410, new source performance
standards, id. § 7411, and national emission standards for
hazardous air pollutants, id. § 7412. Before 1990, regulators
and industry were left to wander through this regulatory maze
in search of the emission limits and monitoring requirements
that might apply to a particular source. Congress addressed
this confusion in the 1990 Amendments by adding Title V of
the Act, which created a national permit program that requires
many stationary sources of air pollution to obtain permits that
include relevant emission limits and monitoring requirements.
Id. §§ 7661–7661f. Congress intended that EPA and state and
local permitting authorities administer the permit program
together.1 Title V gives EPA a supervisory role over the
program, which includes the duty to identify its “minimum
elements,” id. § 7661a(b), the power to establish new
compliance procedures, id. § 7661c(b), and the opportunity to
object to permits that do not comply with the Act, id.
§ 7661d(b). State and local authorities are assigned the task of
issuing permits in their jurisdictions but can do so only if EPA
has approved their proposals for how to implement the permit
program. Id. § 7661a(d)(1). If a permitting authority fails to
propose an acceptable program, responsibility for issuing

1
A “permitting authority” is “the air pollution control agency
authorized by [EPA] to carry out a permit program” in a state or
local jurisdiction. 42 U.S.C. § 7661(4).
 4
permits falls to EPA. Id. § 7661a(d)(3). To date, EPA has
issued final approvals to permit programs proposed by more
than 100 state and local authorities.

But Title V did more than require the compilation in a
single document of existing applicable emission limits, id.
§ 7661c(a), and monitoring requirements, id. § 7661c(c). It
also mandated that “[e]ach permit issued under [Title V] shall
set forth . . . monitoring . . . requirements to assure
compliance with the permit terms and conditions.” Id. As we
explain below, there has been much back and forth among
EPA, industry, and environmental groups about how “[e]ach
permit” must “assure compliance.”

B.

In 1992, EPA identified the “minimum elements” of the
national permit program as the 1990 Amendments required,
see id. § 7661a(b), by issuing its “Part 70 Rules,” see 40
C.F.R. pt. 70.2 Three provisions of the Part 70 Rules are
relevant to this matter. Subsection 70.6(a)(3)(i)(A) requires
that “[e]ach permit” identify “[a]ll monitoring . . . required
under applicable monitoring and testing requirements.” But
“[w]here the applicable requirement does not require periodic
testing,” subsection 70.6(a)(3)(i)(B) obliges the permitting
authority to add to the permit “periodic monitoring sufficient
to yield reliable data from the relevant time period that are
representative of the source’s compliance with the permit.”3

2
EPA promulgated materially similar rules to govern instances
where the agency, rather than state and local authorities, assumes
responsibility for issuing permits. See 40 C.F.R. pt. 71. Petitioners
also challenge these “Part 71 Rules.” Our discussion of the Part 70
Rules applies equally to the Part 71 Rules.
3
The Part 70 Rules do not define “periodic,” but we have indicated
that it means “testing from time to time — that is yearly, monthly,
 5
Finally, subsection 70.6(c)(1) — which closely tracks the
language of the statute, see 42 U.S.C. § 7661c(c) — provides
that “[a]ll . . . permits shall contain . . . monitoring . . .
requirements sufficient to assure compliance with the terms
and conditions of the permit.”

For each permit issued, a permitting authority must
gather the various emission limits and determine which
monitoring requirements accompany them. The Part 70 Rules
guide the way. Where an emission standard already specifies
a monitoring requirement that is both “periodic” and
sufficient to assure compliance, the permitting authority
simply includes that requirement in the permit. 40 C.F.R.
§ 70.6(a)(3)(i)(A). Where the emission standard lacks a
periodic monitoring requirement altogether, the permitting
authority must create one that assures compliance and include
it in the permit. Id. § 70.6(a)(3)(i)(B). There is no controversy
over what the permitting authority should do in either of these
scenarios.

But how should a permitting authority respond to an
emission standard that has a periodic monitoring requirement
inadequate to the task of assuring compliance? For example,
suppose there is a standard that limits emission from a given
stationary source to X units of pollutant per day. Suppose also
that the standard requires annual monitoring. Where annual
testing cannot assure compliance with a daily emission limit,
may the permitting authority supplement the monitoring
requirement “to assure compliance with the permit terms and
conditions,” as the Act commands? 42 U.S.C. § 7661c(c).

weekly, daily, hourly.” Appalachian Power Co. v. EPA, 208 F.3d
1015, 1024 (D.C. Cir. 2000). An annual monitoring test would be
periodic, but a one-time test would not.
 6
EPA’s answer to this question, what we shall call the “third
scenario,” has shifted over time.

EPA first engaged with this issue in 1997, when the
agency took the position that state and local permitting
authorities could supplement periodic monitoring
requirements that failed to assure compliance. See Letter from
Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt.
Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt.
Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997) (rejecting
permits interpreting Part 70 Rules to forbid supplementation).
EPA memorialized this interpretation in a 1998 Guidance that
construed 40 C.F.R. § 70.6(a)(3)(i)(B) to allow
supplementation by state and local permitting authorities. See
PERIODIC MONITORING GUIDANCE. Subsection
70.6(a)(3)(i)(B), which on its face appeared only to cover the
circumstance where no periodic monitoring had been
required, was now read to include the third scenario where
periodic monitoring was required but was inadequate.
Industry groups petitioned this court for review of the
Guidance. Their principal argument was that the Guidance
unlawfully expanded § 70.6(a)(3)(i)(B) without following
notice-and-comment procedures. In the alternative, they
argued that § 70.6(a)(3)(i)(B) conflicted with the Act. We
vacated the Guidance because it unlawfully broadened
§ 70.6(a)(3)(i)(B) without following proper procedures.
Appalachian Power v. EPA, 208 F.3d 1015, 1028 (D.C. Cir.
2000). We did not, however, speak to whether
§ 70.6(a)(3)(i)(B) or any other provisions in the Part 70 Rules
violate the Act.

Undeterred, the agency turned from 40 C.F.R.
§ 70.6(a)(3)(i)(B) to § 70.6(c)(1). In two decisions objecting
to permits, EPA found in § 70.6(c)(1) authority for state and
local permitting authorities to supplement inadequate
 7
monitoring requirements. See Order Denying in Part and
Granting in Part Petition for Objection to Permit, In re Fort
James Camas Mill, Petition No. X-1999-1 (Dec. 22, 2000);
Order Partially Granting and Partially Denying Petition for
Objection to Permits, In re PacifiCorp’s Jim Bridger and
Naughton Electric Utility Steam Generating Plants, Petition
No. VIII-00-1 (Nov. 16, 2000). An industry group petitioned
for review of EPA’s interpretation of § 70.6(c)(1), but we
dismissed the challenge on jurisdictional grounds. Util. Air
Regulatory Group v. EPA, 320 F.3d 272 (D.C. Cir. 2003)
(dismissing petition for review on standing and ripeness
grounds).

In 2002, EPA proposed a regulation codifying this view
of § 70.6(c)(1). The agency issued an advance notice of the
rule, 67 Fed. Reg. 58,561, 58,564 (Sept. 17, 2002), and a
sixty-day interim rule during the notice-and-comment period,
67 Fed. Reg. 58,529 (Sept. 17, 2002). But after an industry
group challenged the sixty-day rule, see Util. Air Regulatory
Group v. EPA, No. 02-1290 (D.C. Cir. filed Sept. 18, 2002),
EPA had a change of view. Rather than defend the proposed
rule, the agency settled the litigation by agreeing to adopt a
final rule that would interpret § 70.6(c)(1) to prohibit state
and local permitting authorities from supplementing
inadequate monitoring requirements. See 68 Fed. Reg. 65,700,
65,701 (Nov. 21, 2003). This new rule would revise EPA’s
answer for the problem of the third scenario.

In 2004, EPA issued a rule to this effect, which provided
that nothing in the Part 70 Rules authorized permitting
authorities to supplement inadequate monitoring
requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA
resolved that it alone would remedy inadequate monitoring
requirements by undertaking a “programmatic” strategy. See
id. Pursuant to this strategy, EPA would identify inadequate
 8
periodic monitoring requirements and, rather than address
their deficiencies in each permit, would issue rulemakings
enhancing them to “assure compliance.” We vacated this
2004 rule because EPA had not allowed for notice and
comment. Envtl. Integrity Project v. EPA, 425 F.3d 992, 998
(D.C. Cir. 2005). In response, EPA issued notice and sought
comment on a proposed rule that was identical. 71 Fed. Reg.
32,006 (June 2, 2006). In December 2006, EPA adopted the
rule. 71 Fed. Reg. 75,422 (Dec. 15, 2006) (“2006 rule”).

Several environmental groups challenge the 2006 rule
and the monitoring provisions of the 1992 Part 70 Rules, see
40 C.F.R. §§ 70.6(a)(3)(i)(A), (a)(3)(i)(B), (c)(1), arguing that
they violate the Clean Air Act and are arbitrary and
capricious. Several industry groups have intervened on behalf
of EPA. We have jurisdiction to consider these petitions for
review. 42 U.S.C. § 7607(b)(1).

II.

We first consider whether EPA’s 2006 rule violates the
Clean Air Act. Because Congress has charged EPA with
administering Title V, see 42 U.S.C. § 7661a(b), our inquiry
is governed by Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). If the Act
unambiguously authorizes or forecloses EPA’s 2006 rule, step
one of the Chevron analysis requires that we follow
Congress’s express policy choice. If the Act is unclear on the
matter, step two of Chevron requires that we defer to EPA’s
reasonable interpretation. Id. at 842–43. We hold, under step
one of Chevron, that Title V of the Act unambiguously
 9
precludes EPA’s interpretation in the 2006 rule. Accordingly,
we vacate the 2006 rule.4

Title V is a complex statute with a clear objective: it
enlists EPA and state and local environmental authorities in a
common effort to create a permit program for most stationary
sources of air pollution. Fundamental to this scheme is the
mandate that “[e]ach permit . . . shall set forth . . . monitoring
. . . requirements to assure compliance with the permit terms
and conditions.” 42 U.S.C. § 7661c(c). By its terms, this
mandate means that a monitoring requirement insufficient “to
assure compliance” with emission limits has no place in a
permit unless and until it is supplemented by more rigorous
standards. Cf. EPA Br. at 29 (“EPA recognizes that the
monitoring required by some rules . . . — particularly, those
that pre-date the 1990 . . . Amendments — may not be
adequate to assure compliance and should be improved.”).

Title V gave EPA two ways to comply with this
requirement. First, EPA could have fixed all inadequate
monitoring requirements through the rulemaking process
before any permits issued under the new national permit
program. 42 U.S.C. § 7661c(b). EPA declined such an
undertaking. Second, EPA could have authorized permitting
authorities to supplement inadequate monitoring requirements
on a case-by-case basis in each permit issued. EPA has been
of two minds on this option. As we have already described,
for many years the agency chose this as the best way to
comply with the Act. In the 2006 rule and the litigation that
preceded it, however, EPA reversed course and prohibited

4
Because we strike the 2006 rule on this ground, we do not
consider petitioners’ argument that the rule is also arbitrary and
capricious.
 10
state and local permitting authorities from exercising this
power.

EPA’s about-face means that some permit programs
currently in place do not comply with Title V because the
agency failed to fix inadequate monitoring requirements
before new permits issued, and prohibited state and local
authorities from doing so. State and local authorities have
issued more than 16,000 permits since the 1990 Amendments,
and because stationary sources must renew their permits at
least every five years, id. § 7661a(b)(5)(B), thousands more
will issue while EPA completes its programmatic strategy.
Many of those permits will fail to comply with the Act
because their monitoring requirements are inadequate. If
Congress meant that potentially thousands of permits could be
issued without adequate monitoring requirements, then it
would not have said “[e]ach permit . . . shall set forth . . .
monitoring . . . requirements to assure compliance with the
permit terms and conditions.” Id. § 7661c(c) (emphasis
added). There can be no doubt about the plain meaning of this
phrase. “Each” means “[e]very one of a group considered
individually.” AMERICAN HERITAGE DICTIONARY 269 (4th ed.
2001). Title V requires that “[e]very one” of the permits
issued by permitting authorities include adequate monitoring
requirements. Any other conclusion would run counter to
Justice Frankfurter’s timeless advice on statutory
interpretation: “ ‘(1) Read the statute; (2) read the statute; (3)
read the statute!’ ” In re England, 375 F.3d 1169, 1182 (D.C.
Cir. 2004) (Roberts, J.) (quoting HENRY J. FRIENDLY,
BENCHMARKS 202 (1967)).

EPA and the industry intervenors marshal several
arguments in support of the 2006 rule. First, they argue that
the Act’s “[e]ach permit” mandate is not as sweeping as it
seems, and in fact bars permitting authorities from adding
 11
monitoring requirements, because the Act’s next sentence
says: “Such monitoring . . . requirements shall conform to any
applicable regulation under [§ 7661c(b)].” 42 U.S.C.
§ 7661c(c). Section 7661c(b) allows EPA to promulgate
monitoring requirements. Taken together, the argument goes,
these provisions limit the creation of new monitoring
requirements to EPA alone. We disagree. Had EPA used its
§ 7661c(b) power to fix inadequate monitoring requirements
prior to the issuance of any permits, those newly-adequate
requirements would bind state and local authorities under
§ 7661c(c). But EPA did no such thing. Similarly, where EPA
fixes inadequate monitoring requirements pursuant to
§ 7661c(b) after permits began to issue, permits will have to
“conform to” those updated requirements. Id. § 7661c(c).5 At
least for some inadequate monitoring requirements, however,
EPA has offered nothing more than vague promises to act in
the future. Under the “[e]ach permit” mandate, state and local
authorities must be allowed to cure these monitoring
requirements before including them in permits.

Along these lines, our dissenting colleague argues that
EPA has already stamped all pre-existing monitoring
requirements as adequate “to assure compliance,” and that
permitting authorities may not supplement those
requirements. Were that true, this would be a harder case,
presenting the question of “Who Decides?” Dissenting
Opinion at 2. But EPA has not decided that all pre-existing
monitoring requirements “assure compliance.” Quite the
opposite, the agency concedes that some monitoring
requirements “may not be adequate to assure compliance and
should be improved,” EPA Br. at 29, and promises to fix them

5
EPA has already done this with respect to some inadequate
monitoring requirements. See EPA Br. at 52 (describing recent
enhancements to pre-1990 inadequate monitoring requirements).
 12
in the future. The question in this case is whether permitting
authorities may supplement inadequate monitoring
requirements when EPA has taken no action. We read Title V
to mean that somebody must fix these inadequate monitoring
requirements. We leave for another day the question of who
wins when EPA and state and local permitting authorities
conflict over whether a given requirement is sufficient “to
assure compliance,” because the question is not presented in
this case.

Second, EPA and the intervenors contend generally that it
would be imprudent to allow state and local authorities to
supplement inadequate requirements. Their contentions can
be grouped into two lines of argument. On the one hand, they
argue that allowing supplementation by state and local
authorities would contradict the Act’s design. They suggest
that allowing such supplementation would create new
emission standards not authorized by the Act, and would
undermine the Act’s judicial-review provision, id.
§ 7607(b)(1), by giving two bites at the apple to parties who
want more stringent environmental regulations. On the other
hand, they argue that allowing supplementation by state and
local authorities would be bad policy. There is no need for
permitting authorities to supplement inadequate requirements,
they say, because those authorities can pass more stringent
requirements through state and local legislation. In any case,
they maintain, EPA’s programmatic approach would be more
consistent, more efficient, more publicly accountable, and less
burdensome than allowing permitting authorities to
supplement inadequate requirements on a case-by-case basis.
But neither of these lines of attack is persuasive because both
share the same flaw — they attempt to sidestep the
unambiguous “[e]ach permit” mandate of the Act. Appeals to
the design and policy of a statute are unavailing in the face of
clear statutory text. As Chief Justice Roberts wrote while a
 13
member of this court, “when the statute’s language is plain,
the sole function of the courts — at least where the
disposition required by the text is not absurd — is to enforce
it according to its terms.” In re England, 375 F.3d at 1177
(quotation marks omitted).

Finally, EPA and the intervenors argue that we must
uphold the 2006 rule because Appalachian Power suggested
that the Act does not authorize state and local authorities to
supplement inadequate monitoring requirements. That is
simply incorrect. In that case we set aside an EPA Guidance
interpreting the Part 70 Rules, holding that the agency’s broad
interpretation of 40 C.F.R. § 70.6(a)(3)(i)(B) effectively
amended that subsection without adhering to required
rulemaking procedures. 208 F.3d at 1028; cf. EPA Br. at 46
(admitting that Appalachian Power “was ultimately decided
on procedural grounds”). We had no occasion in Appalachian
Power to determine, as we must here, whether the Act allows
supplementation by permitting authorities of inadequate
monitoring requirements.

III.

Independent of their challenge to the 2006 rule,
petitioners also seek review of the monitoring requirements of
the Part 70 Rules, arguing that if those provisions forbid
permitting authorities from supplementing inadequate
monitoring requirements, they too must be vacated. As we
explained in our earlier Chevron analysis, the Clean Air Act
requires such supplementation. Accordingly, the Part 70
Rules may be upheld only if they can be read consistent with
that mandate. Because the Part 70 Rules can be so read, we
uphold them.
 14
“[A]n agency’s interpretation of its own regulations is
controlling unless plainly erroneous or inconsistent with the
regulations being interpreted.” Long Island Care at Home,
Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007) (quotation marks
omitted). Because we have set aside the 2006 rule as
conflicting with the Act, EPA’s interpretation of the Part 70
Rules does not control. See Hazardous Waste Treatment
Council v. Reilly, 938 F.2d 1390, 1395 (D.C. Cir. 1991)
(explaining that an agency’s interpretation of its own
regulations must “meet the test of consistency with the
underlying statute”). Turning to the Part 70 Rules themselves,
we conclude that their monitoring provisions are consistent
with the Act because they can be easily and reasonably read
to allow state and local permitting authorities to supplement
inadequate monitoring requirements in each permit issued.

Neither § 70.6(a)(3)(i)(A) nor § 70.6(a)(3)(i)(B) allows
state and local authorities to supplement inadequate
monitoring requirements, so the question is whether
§ 70.6(c)(1) does. That provision states that “[c]onsistent with
[§ 70.6(a)(3)],” all permits “shall” contain “monitoring . . .
requirements sufficient to assure compliance with the terms
and conditions of the permit.” The meaning of this subsection
is not immediately evident. One option is that § 70.6(c)(1)
does nothing more than repeat the requirements of
§ 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B). This reading finds
support in the phrase “[c]onsistent with [§ 70.6(a)(3)].” But
we are reluctant to adopt this interpretation because it would
run afoul of a basic canon of construction. As the Supreme
Court has instructed, “It is [a court’s] duty to give effect, if
possible, to every clause and word of a statute . . . .” United
States v. Menasche, 348 U.S. 528, 538–39 (1955) (quotations
and citations omitted). The same is true for regulations. See
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S.
 15
Ct. 2518, 2535–36 (2007) (“[W]e have cautioned against
reading a text in a way that makes part of it redundant.”).

To save § 70.6(c)(1) from becoming surplusage, we must
interpret the provision to require something beyond what is
already required by § 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B).
The most reasonable reading is that it serves as a gap-filler to
those provisions. In other words, § 70.6(c)(1) ensures that all
Title V permits include monitoring requirements “sufficient to
assure compliance with the terms and conditions of the
permit,” even when § 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B)
are not applicable. This reading provides precisely what we
have concluded the Act requires: a permitting authority may
supplement an inadequate monitoring requirement so that the
requirement will “assure compliance with the permit terms
and conditions.” Because § 70.6(c)(1) can be reasonably read
this way, we uphold the monitoring provisions of the Part 70
Rules as consistent with the Act.6

IV.

We grant the petition for review with respect to the 2006
rule, which we vacate. We deny the petition for review with
respect to the monitoring provisions of the Part 70 Rules.

So ordered.

6
And because we read the Part 70 Rules to allow supplementation
of inadequate monitoring requirements, we need not consider
petitioners’ argument that those rules would be arbitrary and
capricious if they prohibited supplementation.
 KAVANAUGH, Circuit Judge, dissenting: I agree
completely with the majority opinion about bedrock
principles of statutory interpretation. The plain meaning of
the text controls; courts should not strain to find ambiguity in
clarity; courts must ensure that agencies comply with the
plain statutory text and not bypass Chevron step 1. And I
strongly align myself with the majority’s quotation from
Justice Frankfurter about the best tool of statutory
interpretation: “Read the statute; (2) read the statute; (3) read
the statute!” Maj. Op. at 10.

In this case, however, I respectfully part ways with the
majority opinion because the relevant statutory language
supports EPA’s 2006 rule.

Under the Clean Air Act, state and local authorities issue
permits for certain sources that emit air pollution. The
permits must list the pre-existing emission limits and the pre-
existing “monitoring . . . requirements to assure compliance”
with the emission limits. 42 U.S.C. § 7661c(c); see also
§ 7661c(a). Importantly, by regulation, those emission limits
and monitoring requirements are not created by state and local
permitting authorities at the time they issue the permits.
Rather, the permit is simply a device that lists in one “source-
specific bible for Clean Air Act compliance” pre-existing
emission limits and monitoring requirements, including those
set forth by pre-existing EPA-approved state implementation
plans (SIP), EPA-dictated New Source Performance
Standards (NSPS), EPA-generated National Emission
Standards for Hazardous Air Pollutants (NESHAP), and other
applicable requirements. Virginia v. Browner, 80 F.3d 869,
873 (4th Cir. 1996); see also Appalachian Power Co. v. EPA,
208 F.3d 1015, 1026-27 (D.C. Cir. 2000).

The dispute in this case boils down to the following:
When issuing permits, can state and local permitting
authorities independently determine whether, in their view,
 2
those pre-existing monitoring requirements are sufficient “to
assure compliance” with emission limits – and if they think
not, impose additional monitoring requirements? The legal
question here is: Who Decides? According to petitioners, the
statute says that state and local permitting authorities can
decide on their own to impose additional monitoring
requirements as they see fit. EPA responds that it possesses
the statutory authority and discretion to decide whether state
and local permitting authorities can impose additional
monitoring requirements.

The statutory text resolves that question; the statute
grants EPA the authority to determine whether state and local
permitting authorities can impose additional monitoring
requirements. The text says that the monitoring requirements
listed in the permit “shall conform to any applicable
regulation under subsection (b) of this section.” § 7661c(c).
In turn, subsection (b) says EPA “may by rule prescribe
procedures and methods for determining compliance and for
monitoring and analysis of pollutants regulated under this
chapter . . . .” § 7661c(b) (emphasis added).

Exercising its authority under this rather straightforward
statutory scheme, EPA has decided that pre-existing periodic
monitoring requirements (for example, in the SIP, NSPS, and
NESHAP) are to “assure compliance” with emission limits
and that state and local permitting authorities may not add
new periodic monitoring requirements when issuing permits.
EPA has allowed one exception: If there are no periodic
monitoring requirements set forth in the pre-existing
applicable requirements, state and local permitting authorities
not only can but must add periodic monitoring requirements
to permits. 40 C.F.R. § 70.6(a)(3)(i)(B).
 3
To be sure, EPA and the state and local permitting
authorities (and outside interest groups) might disagree about
whether the pre-existing monitoring requirements listed in the
permit will “assure compliance” with the relevant emission
limits. But pursuant to its statutory authority, EPA has
determined that the permitting process is not the time and
place for state and local permitting authorities to add new
periodic monitoring requirements. Rather, if changes are to
be made to the underlying monitoring requirements, they
should occur during the process for formulating and revising
SIP, NSPS, NESHAP, and other applicable requirements.

I therefore would reject petitioners’ primary statutory
argument.∗

For its part, the majority opinion says it need not resolve
the broad question raised by petitioners whether EPA must
allow state and local permitting authorities to add new
periodic monitoring requirements when issuing permits. Maj.
Op. at 11-12. The majority instead resolves this case on more
limited grounds, based on a factual wrinkle in this case.
According to EPA, there is a narrow group of pre-existing
applicable monitoring requirements (primarily from before
1990) that may not assure compliance with emission limits.
EPA has determined that any such shortcomings should be
resolved by rule or through revisions to the underlying SIPs,
for example, not by state and local permitting authorities

∗
Taking a different position from petitioners or EPA, the
industry intervenors argue that the statutory text actually prohibits
EPA from allowing state and local permitting authorities to impose
additional monitoring requirements when issuing permits. I
disagree with industry intervenors for the same reason that I
disagree with petitioners. The statute gives EPA the discretion to
decide this question; the statutory text does not mandate a particular
answer.
 4
during the permitting process. EPA’s approach to this
problem is consistent with the overall statutory and regulatory
scheme, which indicates that the permitting process is
generally not the vehicle for making substantive monitoring
decisions; again, the permit simply lists the pre-existing
monitoring requirements and emission limits in one place. I
thus find nothing in the statute that prohibits EPA’s approach
to fixing any inadequate pre-existing monitoring
requirements.

The majority’s contrary decision is narrow and appears to
allow state and local permitting authorities to add periodic
monitoring requirements only in those cases where EPA itself
concludes that the pre-existing applicable monitoring
requirements are not adequate and EPA has taken no action.
That is likely to be a small percentage of overall permit
decisions. But because I conclude that the challenged EPA
rule is entirely consistent with the statutory text and is
otherwise reasonable, and because petitioners’ other
challenges are not persuasive, I would deny the petition in
whole. I respectfully dissent.