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For Immediate Release
Contact: Melinda M. Bascone
Director of Marketing
Carter Ledyard & Milburn LLP

CL&M Won Appeal Challenging EPA’s Monitoring Rules for the Environmental Integrity Project

In Environmental Integrity Project et al. v. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia Circuit upheld the petition of Carter Ledyard & Milburn LLP’s client the Environmental Integrity Project challenging the EPA’s revised interpretation of its “periodic” and “umbrella” monitoring rules. The Court vacated the final rule and remanded the matter to the EPA, finding the rule was adopted in violation of the Administrative Procedure Act and was not a “logical outgrowth” of the proposed interim rule.

Title V of the 1990 Amendments to the Clean Air Act requires that certain air pollution sources, including every major stationary source of air pollution, each obtain a single, comprehensive operating permit to assure compliance with all emission limitations and other substantive CAA requirements that apply to the source. In addition, all sources with Title V permits must conduct monitoring of their emissions sufficient to assure compliance with applicable requirements under the CAA. To implement these statutory mandates, EPA promulgated numerous monitoring regulations, including the so-called “periodic” and “umbrella” monitoring rules codified at 40 C.F.R. Part 70.

On September 17, 2002, EPA published a proposed rule to clarify the monitoring required in Title V permits by codifying the interpretation of Part 70 EPA previously embraced. EPA’s proposed rule was intended to clarify the fact that its Part 70 regulations--often referred to as the “periodic” and “umbrella” monitoring rules--operate independently of one another. Thus, the “umbrella” monitoring rule was construed by EPA to require case-by-case supplementation of permits with insufficient monitoring, regardless of whether the permit also requires periodic monitoring under the “periodic” monitoring rule.

In its final rule, however, EPA adopted the opposite position. According to the Court, “[t]he upshot of EPA’s final interpretation of its Part 70 rules is that state permitting authorities are now prohibited from adding new monitoring requirements under the ‘umbrella’ rule if the Title V permit already contains some (albeit insufficient) monitoring under the ‘periodic monitoring’ rule.”

Noting that it would not permit agencies to “use the rulemaking process to pull a surprise switcheroo,” the Court held that the final rule constituted a regulatory “flip-flop” which must be “preceded by adequate notice and opportunity for public comment.” Thus, the Court held EPA’s final rule violated the APA’s notice-and-comment requirements.

CL&M’s attorneys working on this matter include Michael Davis, Christine Fazio, Mark Sullivan, and Bradley Farrell.

You can read the opinion here.

Carter Ledyard & Milburn LLP (, established in 1854, has approximately 90 attorneys and has been headquartered on Wall Street since its founding. Carter Ledyard's general practice includes corporate, securities, mergers and acquisitions, broker-dealer, on-shore and off-shore hedge and other alternative investment funds, private equity, litigation, intellectual property, environmental, employment, media and technology, immigration, investment regulation, antitrust, art law, trusts and estates, maritime, ERISA, tax-exempt organizations, real estate, tax and bankruptcy. A significant part of the firm's practice involves representing overseas-based clients and their U.S. affiliates, financial institutions and other financial services providers, governmental entities and media and technology clients.

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