The“AnyCredibleEvidence”Regulation.ppt

The Credible Evidence Ruleand Compliance Certifications Peter Westlin OAQPS, EMAD Overview Statutory and Historic Background Regulatory Changes Relation to Title V Monitoring Relation to Compliance Certification Background 1970 Clean Air Act: Test Methods used to demonstrate compliance with regulations General provisions of parts 60 and 61: Compliance determined in accordance with performance tests Source owners required to operate and maintain facility consistent with good air pollution control practices at all times Administrator may use monitoring results, opacity observations, procedure reviews, and inspections and other means to determine compliance Background Past court interpretations of CAAA: Portland Cement Assoc. v. Ruckelshaus (1973) Method used for compliance must be same as method used to set standard Donner Hanna Coke v. Costle (1979) The use of a non-reference method was “arbitrary and capricious” in conducting enforcement actions U.S. v. Kaiser Steel (1984) The use of the applicable test method was the exclusive method available to determine compliance with a regulation More Background Other Court Cases related to use of CE for enforcement National Lime Assoc. v. EPA (1980) PPG Industries v. Costle (1980) US v. Zimmer Paper products (1989) Changes by the 1990 Clean Air Act Amendments Section 103(a) An enforcement action may be based on “any information available” Section 113(e)(1) (Penalty calculation) the duration of a violation is established by “any credible evidence”, including evidence other than that in the applicable test method. Applications of CE in Enforcement Sierra Club filed a CAAA citizen suit - 1995 SC alleged: PSC’s Hayden power plant violated the 20% opacity limit 19,000+ times in 5 years. PSC argued: only Method 9 observations can establish ongoing violations, not COMS data. Court finding: SIP does not limit citizens to a specific method in proving a violation, and that COMS data/reports were undisputed evidence of ongoing opa