Despite diminishing enforcement budgets for state and federal agencies, a combination of technological and regulatory developments could significantly increase risk of enforcement activity in coming months and years. In particular, EPA is actively pursuing three key enforcement initiatives that will boost the likelihood that companies will face enforcement actions under the Clean Air Act. We believe that those in the regulated community should become familiar with these initiatives and consider taking steps to ameliorate and address their impacts.
These initiatives, discussed in more detail below, are: (1) advances in monitoring technologies (heavily driven by EPA); (2) adoption or modification of standards to allow for greater use of more widely available and less expensive monitoring technologies for enforcement purposes; and (3) elimination of defenses based on increased emissions that result from often uncontrollable events.
Advancement of Inexpensive, Portable Monitoring Technologies
Through a series of initiatives, EPA is actively promoting and encouraging the development of smaller, more portable, and less expensive air pollutant monitoring technologies. The agency is unabashed about its intent: to develop an army of air quality monitors – including private citizens, state and local officials, environmental groups and others – capable of generating vast amounts of data for enforcement purposes.
EPA’s draft “Next Generation Air Monitoring” (NGAM) strategy,1 for instance, sets three goals for the agency’s NGAM efforts that demonstrate the agency’s intent to make private monitoring efforts a greater part of its enforcement approach:
- “Promote development of affordable, near source fenceline monitoring technologies and sensor network-based leak detection systems for selected hazardous air pollutants and black carbon, to support new regulatory strategies and [for] enforcement and compliance purposes.”
- “Supplement air quality monitoring networks through development of low cost, reliable air quality monitoring technology for measuring criteria air pollutants, such as nitrogen dioxide, carbon monoxide, ozone and particulate matter (PM).”
- “Support environmental justice communities and citizen efforts to measure air pollution in local areas.”
Likewise, EPA has developed an “Air Sensor Guidebook” designed to provide the public with information on low-cost air pollution sensors. The guidebook notes that its “[p]otential users include individuals such as sensor developers, citizen alliances, teachers and students; community organizations such as neighborhood alliances and environmental justice groups; and federal, tribal, state and local air quality agencies.”2 Additionally, the Agency’s Air Sensors 2014 Workshop – the fourth workshop of its kind and sponsored in June by EPA’s RTP office – included the objectives of enhancing collaboration among citizen groups, sensor developers, and government, and developing approaches to integrate low-cost sensor use in citizen science air quality projects.
These developments and others like them, combined with numerous statements from EPA’s Office of Enforcement and Compliance Assurance about the potential for increasing air quality monitoring at all levels, indicate that a new era of increased surveillance and data generation is on the horizon. This development alone is something for which we recommend companies and other regulated entities begin to prepare.
Development of New Standards to Allow for Greater Use of Monitoring Data in Enforcement
Although regulated entities are likely to see increased scrutiny of their operations through greatly increased monitoring activity, monitoring ambient air (as most portable monitors would do) does not readily translate into proof of a violation of emissions standards or limits at a source. Monitoring conducted at the fenceline, for instance, may show overall concentration of a particular pollutant, but cannot be easily used to trace the concentrations to emissions from particular sources, especially at large complex facilities. Accordingly, EPA is investigating approaches – including new standards – that would establish enforceable limits based on ambient air concentrations of pollutants.
As part of its Petroleum MACT RTR proposal, for instance, EPA has proposed a fenceline monitoring standard that, if exceeded, would trigger corrective action requirements.3 The highlights of the proposal are as follows:
- Refinery operators would be required to set up passive monitors at intervals around the refinery fenceline.
- Refiners would be required to collect 2-week, time-integrated monitoring samples and both submit data to EPA and make it public via the Internet.
- EPA proposes to set a fenceline monitoring standard for benzene (considered by EPA as a viable surrogate for most refinery emissions) at 9 ug/m3.
- Exceedances of the benzene fenceline limit would trigger investigation and corrective action requirements on the part of the refinery.
- Significantly, the rule would: (1) create an ambient air standard that can now be measured and violated, notwithstanding any direct connection to actual emissions from regulated sources or activities; and (2) shift the burden to the refiner to demonstrate that pollutant concentrations in ambient air are not the result of its activities.
Moreover, the fenceline monitoring requirements of the Petroleum MACT RTR proposal, if promulgated and not successfully challenged, likely will become a standard EPA approach for other sources. It could be adopted piecemeal (i.e., in other MACT standards as they are developed under CAA § 112(d), or reviewed and revised under CAA § 112(d)(6) or (f)). Or EPA could attempt to adopt broader standards, such as through the general provisions adopted to implement CAA §§ 111 and 112 (i.e., 40 CFR Part 60, and § 60.7(c) in particular, Part 63 and § 63.8 in particular).
Other Developments/Factors that Could Lead to Broader Enforcement
Even in the absence of standards specifically designed to account for greater monitoring capability, technical advances and increases in the use of air quality monitoring could spell greater risk in light of other legal and regulatory developments.
The availability of new monitoring data when combined with EPA’s “any credible evidence” rule, for instance, could substantially broaden the number and types of violations that agencies and private litigants can prove. The ACE rule specifically allows for the use of any credible evidence (beyond specified performance tests or other compliance parameters set through individual regulations) to prove a violation of a CAA standard or emission limit. As a result, EPA, state and local agencies, and potentially even private litigants, could have an easier time making a case in court. Furthermore, as the ACE rule became a state SIP requirement in 1997, state regulations may provide further opportunities for enforcement cases to be brought. 64 Fed. Reg. 8314. While there is case law providing that the federal ACE rule applies only to enforcement actions brought by EPA, depending on how state regulations are worded, this limitation may not apply to state SIPs. See Sierra Club v. TVA, 430 F.3d 1337, 1352-54 (11th Cir. 2005).
In addition, the elimination of affirmative defenses based on often uncontrollable events, when combined with increased monitoring, will increase the chances of facilities facing heightened enforcement scrutiny. Most recently, in April 2014, the D.C. Circuit vacated provisions of EPA’s MACT standard for Portland cement manufacturing that provided an affirmative defense for exceedances of emissions limits resulting from unavoidable malfunctions.4 EPA has since proposed elimination of any affirmative defense contained in SIPs based on excess emissions occurring during the start-up, shutdown or malfunction of sources or of emission controls. 79 Fed. Reg. 55920 (Sept. 17, 2014). As a result of these developments:
- Unavoidable excess emissions that occur during SSM events will become violations of the CAA, without exception.
- More frequent monitoring, whether by EPA, states, tribes or citizens, could lead to greater enforcement against SSM events.
- Facility owners/operators will be limited to making arguments for reduced or no penalties under the penalty assessment criteria contained in the CAA. See CAA § 113(e). Under today’s SIPs, affirmative defenses prevent many such enforcement cases from being brought.
While little can be done to shape the development of inexpensive, handheld monitoring technologies, opportunities remain to influence the other two developments – which are now in the rulemaking stage. The window is closing, however, as the comment periods for the relevant rules end soon. Equally important are measures companies can and should consider in preparing for this new and different enforcement era.
With considerable experience in litigating and settling enforcement matters, working with EPA and states (particularly TCEQ) to resolve compliance issues, and representing clients both in the rulemaking process and post-rule judicial challenges, Haynes and Boone is well positioned to assist members of the regulated community develop strategies for maneuvering the new enforcement landscape.