Second Quarter 2000

Court Of Appeals Rejects EPA's Periodic Air Emissions Monitoring Guidance

Holland & Knight Newsletter
Amy L. Edwards

In an important decision issued in mid-April, the U.S. Court of Appeals for the D.C. Circuit rejected EPA’s use of periodic air emissions monitoring guidance that had been issued in September 1998.  The court held that state permitting authorities could not rely on the EPA guidance in order to require regulated sources to conduct periodic air emissions monitoring more frequently than the basis established under applicable state or federal law.  The court found that EPA was using the guidance as if it were a final rule without going through the appropriate administrative rulemaking procedures.  Appalachian Power Co. v. Environmental Protection Agency, Case No. 98-1512 (D.C. Cir. 2000).

The court opinion contains useful language in determining when guidance may be considered to be “binding.”  According to the court, if the agency “bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or state permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document ...”, then the agency’s document is for all practical purposes “binding” and must go through public comment and rulemaking procedures.  The court rejected EPA’s argument that the inclusion of “boilerplate” language stating that the guidance was not a final agency action relieved it of this responsibility.

Many in industry believe that this decision will be helpful in challenging EPA “rulemaking through guidance” in many other areas, such as reporting requirements under right-to-know laws and environmental justice.

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