ELR Citation: ELR 20204
No(s). 04-1083 (D.C. Cir. Oct 7, 2005)

The court holds that the U.S. Environmental Protection Agency (EPA) violated the Administrative Procedure Act (APA) in revising its "periodic" and "umbrella" monitoring regulations, 40 C.F.R. §§70.6(a)(3) and 70.6(c)(1), respectively. In rejecting two Title V permits, EPA determined that the umbrella rule empowers state permitting authorities to review, on a case-by-case basis, the sufficiency of each permittee's monitoring requirements, independent of any other monitoring that might be imposed under the periodic monitoring rule. Where a permit requires no periodic monitoring, the umbrella rule is satisfied by meeting the more substantive requirements of the periodic monitoring rule. Where there is some periodic monitoring but it is not sufficient to assure compliance, the umbrella rule's "separate regulatory standard" requires a case-by-case enhancement of existing monitoring. EPA then proposed to codify its interpretation. The final rule, however, adopted the opposite position, holding that the periodic and umbrella rules are not separate regulatory standards, and permits that satisfy the periodic rule cannot be supplemented with additional monitoring requirements under the umbrella rule. Thus, under the final rule, state permitting authorities are 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. Because the final regulations are not a logical outgrowth of the proposed interim rule, they do not comport with the APA's notice-and-comment requirements.