Environmental and public health groups ask court to block EPA’s change to air pollution monitoring rules

WASHINGTON, D.C., March 18, 2004 — Seven environmental and public health groups on Thursday filed a lawsuit in the D.C. Circuit Court of Appeals to block implementation of controversial, industry-backed rules from the U.S. Environmental Protection Agency (EPA) that they say would weaken pollution monitoring standards and lead to increased emissions of mercury, sulfur dioxide and other pollutants.

EPA’s rules would allow polluters to monitor themselves and to do so as infrequently as twice every five years, according to the lawsuit filed by the Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Physicians for Social Responsibility, Clean Air Council, Our Children’s Earth Foundation and the Northwest Environmental Defense Center.

Eric Schaeffer, director of the Environmental Integrity Project, said: “The problem is simple: Inadequate monitoring results in higher emissions. The Clean Air Act requires monitoring sufficient to assure compliance; EPA is replacing that with a ‘don’t ask, don’t tell’ policy for air pollution.”

EPA’s new rule, announced on January 22, 2004, allows air permits for large air emission sources to require less frequent monitoring. Opponents of this change say that the previous, more stringent monitoring requirement was needed to allow the public and regulators to determine whether or not the sources are complying with the law.

Rep. Henry A. Waxman (D-CA) hailed the lawsuit. “I applaud the efforts of the Environmental Integrity Projects and their allies for bringing this suit to hold the Administration and EPA accountable,” said Rep. Waxman.

“The Administration is illegally eliminating pollution monitoring requirements that EPA and states need to enforce the law and protect the public. We can’t control pollution unless we know it’s occurring. EPA’s rule allows industry sources to avoid measuring their pollution levels, so no one will ever know when they are illegally polluting. The result will be more air pollution, and more damage to Americans’ health. This is one more Bush Administration give-away to industry at the public’s expense.”

The complaint stated that EPA will allow sources of pollution to use outdated monitoring EPA has repeatedly acknowledged is inadequate to determine compliance.

The EPA decision to allow this inadequate monitoring was made despite the fact that numerous scientific studies over the past year have confirmed the links between air pollution and deaths, asthma and other lung diseases, strokes and heart attacks.

Physicians for Social Responsibility President and CEO Robert K. Musil, Ph.D M.P.H., said: “There is no doubt that air pollution adversely affects people’s health. We’re facing an epidemic of childhood asthma. EPA’s decision to hide its head in the sand and pretend that industry will just comply with the law voluntarily will only make the problem worse.”

The new rule requiring less monitoring will mean there is less information on which to base health and environmental decisions and less likelihood of identifying illegal polluters. EPA’s rulemaking proceeded without the opportunity for public notice and comment, which are required by law, and reflects yet another closed door deal with industry.

“This rule is a complete reversal of longstanding EPA policy recognizing the importance of monitoring and requiring that air permits include adequate monitoring,” said Joseph Otis Minott, executive director of the Clean Air Council. “The fact that EPA did this as a backroom deal with industry and evaded the normal public participation process is appalling.”

Pat Gallagher, Sierra Club director of environmental law, said: “The EPA has taken a position that is completely at odds with the longstanding advice of its own experts. This is yet another example of the Bush Administration ignoring sound science and doing favors for its industry friends at the expense of public health.”

EPA agreed to adopt its new rule weakening monitoring requirements in order to settle a lawsuit brought by power plant and auto manufacturing associations challenging EPA’s monitoring rules. An almost identical suit by many of these same industry associations was thrown out of the D.C. Circuit Court of Appeals last year. Yet instead of fighting this suit, EPA simply agreed to change its interpretation of the rules as desired by industry, gutting the monitoring requirements.

Over 50 health and environmental groups and six states – New York, Illinois, Vermont, Massachusetts, New Jersey and Pennsylvania – went on record in opposition to the EPA “settlement.” The states noted that EPA’s interpretation “would make oversight and enforcement by states, the EPA, and citizens extremely difficult, if not virtually impossible.”

Tiffany Schauer, executive director of Our Children’s Earth in San Francisco, CA., said: “We’ve used the citizen participation provisions of Title V to improve requirements, including monitoring, in numerous Title V permits. EPA is now caving to industry and eliminating our ability to insist on adequate monitoring in federal air permits in order to protect our communities.”

The monitoring requirements at issue in the lawsuit over the EPA rule are included in Title V of the federal Clean Air Act. Title V requires permits that include monitoring “sufficient to assure compliance with the permit terms and conditions.” Title V permits list all of the air pollution limits that apply to a particular large industrial source and add monitoring and reporting as necessary to allow the public and regulators to track the source’s compliance with those requirements. The permits are intended to supplement any preexisting monitoring so that, for each air pollution limit or standard, there is monitoring that is sufficient to assure compliance. Traditionally, EPA has interpreted this requirement to mean monitoring must be frequent enough and reliable enough to detect any noncompliance.

The full text of the lawsuit filed by the seven groups and related background documents are available online at http://www.environmentalintegrity.org.


The Environmental Integrity Project is a nonpartisan, nonprofit corporation established to advocate for more effective enforcement of environmental laws. EIP was founded by Eric Schaeffer, who was director of the U.S. Environmental Protection Agency’s Office of Regulatory Enforcement until 2002, when he resigned after publicly expressing his frustration with efforts of the Bush Administration to weaken enforcement of the Clean Air Act and other laws.

The Natural Resources Defense Council is a national nonprofit environmental organization with more than 500,000 members. Since 1970, NRDC’s lawyers, scientists, and other environmental specialists have been working to protect the world’s natural resources and improve the quality of the human environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, and San Francisco.

Founded in 1892, the Sierra Club is America’s oldest, largest and most influential grassroots environmental organization. Inspired by nature, the Sierra Club works to protect communities and the planet and boasts more than 700,000 members and chapters in all 50 states.

Physicians for Social Responsibility is a leading public policy organization with 24,000 members representing the medical and public health professions and concerned citizens, working together for nuclear and global security, a healthy environment, and an end to the epidemic of gun violence.

Our Children’s Earth Foundation is a non-profit organization dedicated to protecting the public from the harmful effects of air pollution. Through a combined strategy of litigation, education and advocacy, it empowers individuals, families and local communities to participate in decisions that impact air quality.

The Northwest Environmental Defense Center is an independent, non-profit organization working to protect the environment and natural resources of the Pacific Northwest. NEDC provides legal support to individuals and grassroots organizations with environmental concerns, and engages in litigation independently or in conjunction with other environmental groups. NEDC also provides valuable hands-on experience for students seeking to enhance their education in environmental law.

Clean Air Council is a member-supported, non-profit environmental organization founded in 1967 and dedicated to protecting everyone’s right to breathe clean air. From its offices in Pennsylvania and Delaware, the Council works through public education, community advocacy, and government oversight to ensure enforcement of environmental laws.

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