United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1999 Decided October 29, 1999
No. 97-1727
Natural Resources Defense Council, Inc.,
Petitioner
v.
Environmental Protection Agency and
Carol M. Browner, Administrator,
Respondents
Chemical Manufacturers Association, et al.,
Intervenors
--------
Consolidated with
97-1732
On Petitions for Review of an Order of the
Environmental Protection Agency
Andrew P. Caputo argued the cause for petitioner Natural
Resources Defense Council, Inc. With him on the briefs was
David G. Hawkins.
Lauren E. Freeman argued the cause for petitioners Appa-
lachian Power Co., et al. With her on the briefs was Henry V.
Nickel.
Scott J. Jordan, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the briefs
were Lois J. Schiffer, Assistant Attorney General, and Cecilia
E. Kim, Attorney.
Leslie Sue Ritts, Ellen Siegler, Henry V. Nickel, Lauren E.
Freeman, Jerome H. Heckman, Peter L. de la Cruz, William
H. Lewis, Michael A. McCord, Charles H. Lockwood, II,
John Reese, G. William Frick, David F. Zoll and Alexandra
Dunn were on the brief of Industry Intervenors in support of
respondent. K. D. Grant entered an appearance.
Before: Ginsburg, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Natural Resources Defense
Council, Inc. ("NRDC") challenges the Environmental Protec-
tion Agency's enhanced emission source monitoring rule,
known as Compliance Assurance Monitoring, promulgated
pursuant to the 1990 Clean Air Act Amendments. Various
industry groups challenge EPA's "any other material infor-
mation" certification requirement which pertains to collecting
evidence to prove or disprove Clean Air Act compliance.
After considering the parties' arguments and reviewing the
record, we hold that EPA's enhanced monitoring system
complies with the Clean Air Act Amendments except for the
portion pertaining to "continuous or intermittent" compliance
certification. We also hold that the issue raised by the
industry groups is unripe for review.
I. Background
A. Enhanced Monitoring
Section 114(a) of the Clean Air Act vests EPA with the
authority to require emissions data collection in order to
enable the agency to develop emissions standards and deter-
mine compliance with those standards. See 42 U.S.C.
s 7414(a) (1994). The Clean Air Act also provides EPA with
the authority to enforce those standards. See 42 U.S.C.
s 7413. Prior to 1990, most air pollution sources' emissions
were tested at start-up or another single point in time. See
Enhanced Monitoring Program, 58 Fed. Reg. 54,648, 54,658
(1993) (proposed Oct. 22, 1993). At that time, there was no
statutory mechanism outside of EPA, state regulators, and
citizen surveillance to ensure the requisite compliance moni-
toring. See id. In 1990, Congress enacted amendments to
the Clean Air Act intended to enhance emissions source
monitoring and compliance and to impose new monitoring and
reporting requirements on emissions sources. Specifically,
the new amendments sought to identify and clarify the kinds
of data to be collected and to require major sources to
monitor their emissions and report their results to EPA.
As amended, s 114 of the Clean Air Act provides in part:
[T]he [EPA] Administrator may require any person who
owns or operates any emission source, who manufactures
emission control equipment or process equipment, who
the Administrator believes may have information neces-
sary for the purposes set forth in this subsection, or who
is subject to any requirement of this chapter ... on a
one-time, periodic or continuous basis to ... (D) sample
such emissions (in accordance with such procedures or
methods, at such locations, at such intervals, during such
periods and in such a manner as the Administrator shall
prescribe) [and] (E) keep records on control equipment
parameters, production variables or other indirect data
when direct monitoring of emissions is impractical....
42 U.S.C. s 7414(a)(1)(D)-(E) (emphasis added). This provi-
sion gives EPA the authority to require a source to keep
relevant emissions data when direct sampling is impractical
and to require a source to conduct emission sampling. Con-
gress added a new subsection in 1990 pertaining to major
source monitoring, stating that EPA
shall in the case of any person which is the owner or
operator of a major stationary source, and may, in the
case of any other person, require enhanced monitoring
and submission of compliance certifications. Compliance
certification shall include ...
(C) the [source's] compliance status,
(D) whether compliance is continuous or intermittent,
[and]
(E) such other facts as the Administrator may require.
Id. s 7414(a)(3) (emphasis added). Thus, Congress expressed
an intention to obligate major sources to a more stringent
reporting standard.
Section 504 of the Clean Air Act establishes the major
source permitting program's requirements and contains pro-
visions related to monitoring and compliance certification.
Section 504(a) requires that each permit "shall include en-
forceable emission limitations and standards ... and such
other conditions as are necessary to assure compliance with
applicable requirements." 42 U.S.C. s 7661c(a). Subsection
(b) elaborates that "[t]he Administrator may by rule prescribe
procedures and methods for determining compliance and for
monitoring and analysis of pollutants regulated under this
chapter, but continuous emissions monitoring need not be
required if alternative methods are available that provide
sufficiently reliable and timely information for determining
compliance." Id. s 7661c(b). Thus, s 504 establishes that
EPA may promulgate rules that require implementing a
compliance and monitoring method which provides "sufficient-
ly reliable" information for determining compliance.
In 1993, EPA proposed a broad regulatory scheme that
would have required a major source to provide an emissions
compliance statement and proof of continuous compliance.
The proposal would have resulted in direct emissions monitor-
ing in most instances. However, following public comment
sessions, EPA decided to adopt an alternative approach in
1997. EPA abandoned the more rigorous 1993 proposal in
response to industry and state and local pollution control
agencies' comments that the proposal was too costly given the
benefits involved, too burdensome on local permitting authori-
ties, inconsistent with congressional intent regarding costs,
and likely to stifle innovation due to high costs. See Compli-
ance Assurance Monitoring Rulemaking (40 C.F.R. Parts 64,
70, and 71), Responses to Public Comments (Part I) (October
2, 1997).
EPA ultimately adopted a new approach, Compliance As-
surance Monitoring ("CAM"), which requires major sources
using pollution control devices to employ parametric monitor-
ing. See 40 C.F.R. ss 64.2, 64.3(a) (1998). The CAM pro-
gram allows major sources to comply with monitoring re-
quirements by identifying specific operational parameters and
providing data that enforcement entities can use to determine
whether the source falls within the appropriate operating
range.
Under CAM, EPA requires that major source owners
"establish ... appropriate range(s) ... for the selected indi-
cator(s) such that operation within the ranges provides a
reasonable assurance of ongoing compliance with emission
limitations or standards." 40 C.F.R. s 64.3(a)(2). CAM also
imposes an affirmative requirement on each major source to
bring its emissions within the acceptable range when the
source falls outside the acceptable range. See 40 C.F.R.
s 64.7(d). Specifically, the source must "restore operation of
the pollutant-specific emissions unit (including the control
device and associated capture system) to its normal or ususal
manner of operation as expeditiously as practicable...." Id.
CAM expands upon prior emissions monitoring by providing
major sources with a mechanism to implement self-
monitoring and self-checks on compliance. For reasons set
forth more fully below, NRDC challenges the adequacy of
EPA's attempt to comply with the Clean Air Act Amend-
ments.
B. Other Material Information and Credible Evidence
To comport with the CAM approach, EPA amended its
Part 70/71 major source permit compliance requirements.
Under the revision, each major source must identify its
compliance methodology and identify whether that methodol-
ogy provides continuous or intermittent data. See 40 C.F.R.
ss 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B). The revision also re-
quires major sources "if necessary, ... [to] identify any other
material information that must be included in the certification
to comply with section 113(c)(2) of the Act, which prohibits
knowingly making a false certification or omitting material
information." Id. ss 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B). Sec-
tion 113(c)(2) creates criminal liability for "[a]ny person who
knowingly ... makes any false material statement, represen-
tation, or certification in, or omits material information from,
or knowingly alters, conceals, or fails to file or maintain any
notice, application, record, report, plan, or other document
required pursuant to this chapter." 42 U.S.C. s 7413(c)(2).
During the rulemaking period in issue, EPA separately
promulgated another rule, the Credible Evidence Rule
("CER"), which provides that nothing shall preclude the use
of any credible evidence or information in demonstrating
compliance or noncompliance with national emission stan-
dards. See 40 C.F.R. ss 52.12(c); 60.11(g); 61.12(e). The
preamble to the CER reconfirmed that credible evidence may
be used in permit enforcement actions and compliance certifi-
cations. See Credible Evidence Revisions, 62 Fed. Reg. 8314,
8316-17 (1997). However, EPA further stated that the "revi-
sions do not call for the creation or submission of any new
emissions or parametric data, but rather address the role of
existing data in enforcement actions and compliance certifica-
tions" and that the agency "in no way intends to alter the
underlying emission standards." Id. at 8316; see also 62
Fed. Reg. at 8314-15.
Industry groups, led by Appalachian Power Company ("Ap-
palachian"), challenge the "any other material information"
requirement as beyond EPA's authority and as a violation of
their due process rights.
II. NRDC Challenge
Both NRDC and the industrial challengers petitioned this
court for a review of EPA's actions pursuant to 42 U.S.C.
s 7607(b)(1), which provides that all challenges to nationally
applicable regulations under the Clean Air Act must be
brought in the United States Court of Appeals for the District
of Columbia Circuit. After exercising this jurisdiction under
applicable legal standards, we conclude that with one excep-
tion the challenges either are not justiciable or do not war-
rant judicial relief.
A. Enhanced Monitoring
NRDC challenges the adequacy of EPA's CAM program to
meet the enhanced monitoring requirements of the Clean Air
Act Amendments on multiple grounds. NRDC first asserts
that CAM does not substantively comply with s 114(a)(3)'s
enhanced monitoring mandate. Specifically, NRDC contends
that CAM exempts so many major sources from its coverage
that its lack of coverage should invalidate the rule. Further,
NRDC argues that CAM's "reasonable assurance of compli-
ance" standard does not assure compliance as required by the
Clean Air Act or assure compliance as a factual matter. In
addition, NRDC claims that the length of CAM's phase-in
period creates an unreasonable delay. Finally, NRDC as-
serts that EPA's requirement that a major source certify only
whether its report is based on "continuous or intermittent
data," 40 C.F.R. s 70.6(c)(5)(iii)(B) (emphasis added), does
not meet the Clean Air Act's explicit requirement that "[c]om-
pliance certifications shall include ... whether compliance is
continuous or intermittent," 42 U.S.C. s 7414(a)(3) (emphasis
added). We conclude that only the last challenge merits
relief.
NRDC's challenge to EPA's adoption of CAM in further-
ance of the "enhanced monitoring" requirement of s 114(a)(3)
questions the interpretation of a statute by the agency en-
trusted with the administration of that statute. Therefore,
we apply the classic two-step test of Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), which provides that in such review we first look to the
statute's language and give effect to any "unambiguously
expressed intent of Congress," but if the statute is ambigu-
ous or silent with regard to the matter at issue, we accept
the agency's interpretation, provided that interpretation is
merely reasonable. Id. at 842-43, 845. The phrase "en-
hanced monitoring" as used in s 114(a)(3) is sufficiently am-
biguous to invoke the second step of the Chevron analysis.
As EPA pointed out, section 114(a)(3) does not specify any
particular type of enhanced monitoring. Nothing in the
phrase "enhanced monitoring" supports NRDC's view that
only continuous or direct emissions monitoring can be re-
garded as "enhanced" or that CAM cannot be deemed "en-
hanced." Nonetheless, NRDC argues that CAM cannot con-
stitute "enhanced monitoring" since it exempts numerous
sources from its coverage, does not assure "sufficiently reli-
able" compliance as required by s 504(b), and does not in
fact provide even a "reasonable assurance of compliance."
We reject these arguments for several reasons.
First, CAM is not invalid on the basis that it does not cover
certain major sources (e.g., those that do not utilize emission
control devices and those that fail the 100-tons-per-emission-
point test). True, s 114(a)(3) plainly subjects all major
sources to enhanced monitoring and, as NRDC points out,
EPA exempts many major sources from CAM's coverage.
However, the 1990 Clean Air Act Amendments did not man-
date that EPA fit all enhanced monitoring under one rule and
EPA has reasonably illustrated how its enhanced monitoring
program, when considered in its entirety, complies with
s 114(a)(3). Cf. NRDC v. EPA, 22 F.3d 1125, 1141-42 (D.C.
Cir. 1994) (finding EPA's explanation for excepting certain
areas from coverage under a particular rule reasonable given
statute's broad mandate and EPA's overall regulatory plan).
Specifically, EPA demonstrated that many of the major sta-
tionary sources exempt from CAM are subject to other
specific rules, and if they are not, they are subject to the
following two residual rules: (1) "[The permit shall contain]
periodic monitoring sufficient to yield reliable data ... that
are representative of the source's compliance with the per-
mit...." 40 C.F.R. s 70.6(a)(3)(i)(B); (2) "All part 70 per-
mits shall contain the following elements with respect to
compliance: (1) Consistent with paragraph (a)(3) of this sec-
tion, compliance certification, testing, [and] monitoring ...
requirements sufficient to assure compliance with the terms
and conditions of the permit." Id. s 70.6(c)(1).
While the Part 70 rules are not as specific as CAM, they
have the same bottom line--a major source must undertake
"monitoring ... sufficient to assure compliance." Like CAM,
the monitoring protocols will be developed on a unit-by-unit
basis. Such monitoring is sufficiently "enhanced" over the
pre-1990 situation to satisfy the statutory requirement. See
Compliance Assurance Monitoring, 62 Fed. Reg. 54,900,
54,904 (1997).
Second, EPA provides a reasonable basis for its conclusion
that CAM will be effective in assuring emissions limit compli-
ance. NRDC contends that there is no across-the-board
evidence that monitoring control parameters will assure com-
pliance and that EPA does not require control parameters to
be statistically correlated with actual emissions standards.
We will not set aside a final rule under the Clean Air Act
unless the underlying agency action was "arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law" or "in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right." 42 U.S.C.
s 7607(d)(9)(A) & (C). The "arbitrary and capricious" stan-
dard deems the agency action presumptively valid provided
the action meets a minimum rationality standard. See, e.g.,
Small Refiner Lead Phase-Down Task Force v. EPA, 705
F.2d 506, 520-21 (D.C. Cir. 1983). In applying this standard
we determine whether the agency has considered the relevant
factors and articulated a rational connection between the facts
and its choices. See Motor Vehicle Mfrs. Ass'n of the United
States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). While we carefully review the factual record, we will
give due deference to the agency especially when the agency
action involves evaluating complex scientific or statistical data
within the agency's expertise. See Ethyl Corp. v. EPA, 541
F.2d 1, 34-36 (D.C. Cir. 1976) (en banc).
Applying that standard of review to the rule before us, we
conclude that EPA's adoption of CAM survives NRDC's
challenge. As EPA argues, across-the-board evidence is un-
necessary since CAM requires major source owners, on a
unit-by-unit basis, to "establish ... appropriate range(s) ...
for the selected indicator(s) such that operation within the
ranges provides a reasonable assurance of ongoing compli-
ance with emission limitations." 40 C.F.R. s 64.3(a)(2).
Thus, CAM enhances monitoring by requiring each major
source owner to design a site-specific monitoring system
sufficient to provide a reasonable assurance of compliance
with emissions standards. See id. s 64.3(a), (a)(2). More-
over, as EPA made clear at oral argument, this standard does
require a major source owner to establish a correlation
between the control parameters and emission limits. We
cannot therefore conclude that the EPA has failed to consider
relevant factors or articulate a rational connection between
the facts and its choices. For the same reasons, we conclude
CAM satisfies the "sufficiently reliable" compliance require-
ment of s 504(b). We therefore apply the statutorily mandat-
ed deference to the agency's judgment and deny the NRDC's
challenge.
Third, NRDC misconstrues s 114(a)(1)(D)-(E) as requiring
EPA to mandate direct enhanced monitoring of major sources
unless EPA finds such monitoring "impractical." We agree
with EPA that CAM was promulgated under subsection (a)(3)
of s 114 rather than under subsection (a)(1). Section
114(a)(1) gives EPA the option to require ("the Administrator
may require") certain kinds of monitoring whereas
s 114(a)(3) squarely requires enhanced monitoring ("the Ad-
ministrator shall ... require enhanced monitoring"). Since
CAM falls into the required enhanced monitoring category
and s 114(a)(3) does not contain language requiring an im-
practicality finding, EPA did not have to make an impractical-
ity finding before choosing to monitor major source control
parameters rather than to monitor emissions directly.
Finally, NRDC erroneously believes that CAM does not
effectuate the congressional intent behind the 1990 Clean Air
Act Amendments because CAM fails to "facilitate" enforce-
ment. See S. Rep. No. 101-228, at 368 (1989). NRDC argues
that since CAM monitoring data do not establish source
compliance or noncompliance, the data lack the value neces-
sary to be used as probative evidence in enforcement pro-
ceedings. However, as we stated before, EPA reasonably
concluded that CAM will provide a reasonable assurance of
compliance with emissions limitations. Thus, EPA "facili-
tates" enforcement under any reasonable definition of the
term since CAM monitoring provides evidence that will be
relevant in any enforcement action.
In sum, we hold that EPA's adoption of CAM as "enhanced
monitoring" meets the requirements of the Clean Air Act.
B. CAM Phase-In
EPA's decision to phase in the CAM requirements as major
source permits are renewed is reasonable. EPA acknowl-
edges that some major sources applying for permits will come
under CAM's coverage over the next two to three years while
some sources will not be phased-in for approximately five to
eight years because CAM requirements will not apply to
them until their next permit renewal. See 40 C.F.R.
s 70.4(b)(3)(iii), (iv) (stating that permits are renewed or
reviewed every five years). However, EPA reasonably decid-
ed to phase-in CAM requirements based on the already-
existing licensing structure in order to lessen the burden on
sources and state licensing authorities and to create a
learning-curve for implementation. See 62 Fed. Reg. 54,902-
03, 54,927-28 (1997). Nor does NRDC point to a compulsory
implementation deadline or offer a basis for second-guessing
the agency at this point in time. See NRDC, 22 F.3d at 1137-
40 (implying deference to the agency regarding implementa-
tion when statute silent regarding implementation deadline).
Given the circumstances, EPA offers a reasonable explanation
for the extended phase-in plan.
C. Continuous or Intermittent Compliance
Despite CAM's validity, we hold that EPA's certification
regulations are inconsistent in one particular with
s 114(a)(3)(D)'s statutory mandate. While s 114(a)(3) clearly
states that a major source's "compliance certification shall
include ... whether compliance is continuous or intermit-
tent[,]" EPA only requires that a major source's compliance
certification include "[t]he identification of the method(s) ...
used by the owner ... for determining the compliance status
... and whether such methods ... provide continuous or
intermittent data." 40 C.F.R. ss 70.6(c)(5)(iii)(B),
71.6(c)(5)(iii)(B). The statute requires that certification in-
clude whether "compliance"--not just "data"--is continuous
or intermittent.
Although EPA may permit owners to certify compliance
within the degree of certainty that CAM provides, it may not
eliminate the "check off" requirement altogether. We do not
reach the second step of the Chevron analysis on this ques-
tion. Where Congress has expressed its unmistakable intent
in the plain words of the statute, our review ends with step
one. See Nuclear Information Resource Service v. Nuclear
Regulatory Commission, 969 F.2d 1169, 1173 (D.C. Cir.
1992) (en banc). It will not save EPA's failure to meet the
statutory requirement that there is ambiguity in other sec-
tions of the statute. It is only where "the statute ... is
'silent or ambiguous with respect to the specific issue' before
us" that "we 'defer to the agency's interpretation of the
statute.' " Id. (quoting Chemical Manufacturers Ass'n v.
EPA, 919 F.2d 158, 162-63 (D.C. Cir. 1990)). Here, Congress
expressly and unambiguously required that the certification
include "whether compliance is continuous or intermittent."
EPA's regulations do not effectuate that expressed mandate
of the statute and must be remanded.
III. Industry Groups' Challenge
Industry groups challenge EPA's requirement that compli-
ance certifications be based on "any other material informa-
tion," including "credible evidence," as impermissibly increas-
ing the stringency of emissions standards. We, as we have
before, conclude that the industry groups' challenge is unripe
for review.
In Clean Air Implementation Project v. EPA, 150 F.3d
1200 (D.C. Cir. 1998) ("CAIP"), various industry groups chal-
lenged EPA's "credible evidence" rule revisions by alleging
that the changes effectively increased the stringency of the
underlying emissions standards contrary to proper rulemak-
ing procedures. See id. at 1201, 1203. We held that, absent
any demonstrable "great hardship," the industry groups'
stringency challenge would be unripe for review until EPA
actually brought a "credible evidence" enforcement proceed-
ing against a source. Id. at 1205.
The industry groups here, led by Appalachian, contend that
CAIP's ripeness analysis is not applicable to the present
challenge because, unlike in that case, delaying a decision
here will cause hardship to source owners. They argue that a
hardship will occur because in being required to use "other
material information" in their certifications, source owners
will be required to "abandon any rights they might have to
defend against the use of that evidence in enforcement pro-
ceedings." Appalachian Br. at 15. Whatever the merits of
that argument might otherwise be, it does not appear that its
factual underpinnings are sound in the present controversy.
That is, it is not apparent that source owners will be required
to abandon any such right.
At oral argument, EPA counsel agreed with the court's
supposition that nothing precludes an owner from adding a
caveat to its certification to the effect that, while it is provid-
ing other evidence which EPA might find material, the sub-
mitter disputes its materiality and reserves the right to
challenge the use of the evidence in court. Counsel for
Appalachian then agreed that the ability to use such disclaim-
er language "solves our problem." We agree. In other
words, Appalachian's challenge on this ground is still not ripe.
In attacking the information requirement, Appalachian also
argues that "any other information" and "credible evidence"
as employed by EPA are such facially vague terms as to
violate the due process rights of the regulated entities. Ap-
palachian's void-for-vagueness attack also fails due to ripe-
ness considerations. Specifically, since Appalachian does not
contend that the "any other material information" rule is
vague in every circumstance, its facial challenge collapses and
it must wait until there is an actual enforcement proceeding
to make a specific challenge that will be ripe. Cf. CAIP, 150
F.3d at 1205-06.
Conclusion
To recap, we hold that CAM complies with the Clean Air
Act's "enhanced monitoring" requirement, EPA supplied a
reasonable basis for the CAM phase-in schedule, and the
industry groups' challenge to EPA's "credible evidence" and
"other material information" requirements is unripe for re-
view.
Each major source must, however, certify whether its
compliance is "continuous or intermittent." We therefore
remand the portion of CAM pertaining to "continuous or
intermittent" compliance certification to EPA for it to revise
its regulation to accord with our decision, but affirm EPA in
all other respects.
So ordered.