ELR Citation: ELR 20560
No(s). 98-1512 (D.C. Cir. Apr 14, 2000)

The court holds that a U.S. Environmental Protection Agency (EPA) guidance document that set forth periodic monitoring requirements for stationary sources subject to Title V permitting under the Clean Air Act (CAA) impermissibly broadened a 1992 rule and, therefore, set the guidance document aside. The court first holds that the guidance document is reviewable as final agency action. The guidance document marks the consummation of the Agency's decisionmaking process. The fact that it may be altered in the future has nothing to do with whether it is subject to judicial review at the moment. Further, the guidance document creates obligations on the part of the state regulators and those they regulate. Ultimately, the guidance document reflects a settled Agency position that has legal consequences both for states administering their permit programs and for companies who must obtain CAA Title V permits in order to continue operating. The court next holds that the guidance document amended the periodic monitoring rule set forth at 40 C.F.R. §70.6(a)(3)(i)(B). EPA directed state permitting authorities to conduct wide-ranging sufficiency reviews and to enhance the monitoring required in individual permits beyond that contained in state or federal emission standards even when those standards demand some sort of periodic testing. Because these changes should have been made in compliance with notice-and-comment rulemaking, the court set aside the guidance document in its entirety.

Counsel for Petitioners
Lauren E. Freeman
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondent
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams and Henderson, JJ.