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Any Credible Evidence Will Do

Posted on - 08/29/2007
by JHP

You own and operate Ace Plating and Painting, Inc. Your company specializes in coating materials for the secondary automotive parts market. You rechrome bumpers and grills, and strip and paint body parts for antique cars. You have been operating the business for over twenty years and have become one of the Midwest's largest secondary automotive refinishing suppliers. Business is good, and your reputation for being a quality supplier keeps it that way.


Your facility has an air permit for the emission of particulates and volatile organic chemicals. Your company has tried to comply with its permit. Occasionally, your company has problems with its air pollution control equipment and there will be times when the facility is not in compliance. However, because you are not required to monitor your results continuously, you take the position that there is no evidence to show that you have violated your air permit. When you are required to monitor, you make certain that all of your pollution control equipment is working before you collect the necessary test date required by your air permit. While the ethical issues raised by this approach could be troubling if you really stopped to ponder, legally, you feel like you are on solid ground. You have operated this way uninterrupted for several years without a problem, until yesterday.


Yesterday, your company, Ace Plating and Painting, Inc. received a Notice of Intent to Sue pursuant to the Citizen Suit provision of the Clean Air Act. You are outraged. "They've got no proof that I ever violated the Clean Air Act," you say to yourself. "There's no definitive evidence that I violated my air permit. A good strong letter from my lawyer should shut these people up," you say, and off you go furiously to your lawyer's office.


Your attorney reviews the notice of intent to sue letter, and asks you to explain the allegations in the letter that your facility emits "obnoxious and hazardous odors," and "particulates that settle on automobiles, sticking thereto and ruining the automotive finish." Your attorney further asks you to explain the photographs that your neighbors were kind enough to enclose with their Notice of Intent to Sue showing your air emission stack belching black smoke. Your response is quick and definitive. "They can't prove a thing. All of my monitoring results show that I am in complete compliance with my air permit," you say. "There is no definitive evidence proving that I have violated any of EPA's laws," you remind your lawyer.


Your lawyer tells you that if he is too defend you, you must be honest with him. You proceed to tell him confidentially that your pollution control equipment does not work all of the time, but that it always works on days when you perform tests to demonstrate compliance with the terms and conditions of your air permit. You admit that occasionally your factory does belch black smoke, but this is just the type of business you own. To install equipment that would capture every such release would be cost prohibitive. Similarly, you explain that the cost of installing new VOC capturing equipment that would work continuously as needed would also be cost prohibitive. Your philosophy has been that if the other side cannot prove the violation, which your data shows they cannot, then you intend to keep operating as you have for the last ten years. When you finish, your attorney sighs and says that you used to be correct. Until February of 1997, the citizens probably could not have pursued a citizen suit without test data showing that Ace Plating and Painting, Inc. violated the terms of its permit. However, in February 1997, EPA changed the law and made it a lot easier for citizens to sue and win in court based on information regarding violations obtained from sources other than your monitoring data.


Your attorney explains that EPA promulgated another regulation in 1997 that will aid citizen suits. On February 24, 1997, EPA promulgated a final version of the "any credible evidence" rule, 62 Fed. Reg. 8314. The any credible evidence rule specifically amends four different parts of the Code of Federal Regulations, 40 C.F.R. Parts 51, 52, 60, and 61, and allows the use of any credible evidence in enforcement actions brought under the Clean Air Act by EPA, state enforcement agencies, or citizens. The key language added by the rule states that nothing in those regulations "preclude[s] the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test procedures or methods had been performed." Previously courts applying this rule would only find reference test data admissible as evidence in enforcement suits. The any credible evidence rule establishes that nonreference test data may also be admitted as evidence in an enforcement action, including a citizen suit action.


Your attorney explains that even beyond the basic impact of the rule in changing what constitutes compliance under many standards, certain portions of EPA's preamble to the new rule raises additional concerns about how the new rule may be used in enforcement actions. In particular, Agency officials had previously stated that credible evidence could properly be used to prove a violation only if the plaintiff could demonstrate "a strong correlation between reference test results and the credible evidence in question." In otherwords, the credible evidence had to correlate with test results. However, nowhere in the preamble to the any credible evidence rule is there a statement that the role of credible evidence is limited in this manner. Instead, the preamble refers to the specified reference test method as merely constituting a "benchmark" against which other data or methods may be compared when they are used to establish that a violation has occurred. The preamble emphasizes that "by law the Agency is limited only by general evidentiary rules in what it can use to prove a violation alleged in an enforcement action." 62 Fed. Reg. 8320. Also troubling is the portion of the preamble that states if credible evidence indicates the existence of possible "deviations" from a limit, a source may "be out of compliance with an applicable requirement even though the unit's permit-identified data indicates compliance." 62 Fed. Reg. 8320. In other words, your attorney explains that even if your data indicates that you are in compliance, the evidence to be produced by the citizens indicating that you are not in compliance can be used to prove violations if it is credible. As your attorney looks at the photographs sent by the plaintiffs, he sighs and mumbles to himself, "This could be tough to discredit." Furious, you tell your attorney that you are willing to upgrade your equipment if that will make the lawsuit go away. Unfortunately for you, your attorney explains that the Supreme Court decided this issue in the case of Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49 (1987). The issue in Gwaltney was whether the citizen suit provisions of the Clean Water Act, permitting private citizens to bring suit against any person alleged to be in violation of the Act, required that a defendant be violating the Act at the time of suit. The Court concluded that the CWA did not permit citizen suits for wholly past violations. However, the Court stated that the provisions required that a citizen plaintiff allege a state of either continuous or intermittent violation. In other words, there must be a reasonable likelihood that a past polluter will continue to pollute in the future. In your case, the attorney explains, simply upgrading the equipment will not be enough unless you can upgrade within sixty days from the Notice of Intent to Sue, and the upgrades guarantee that there is no possible way that the plant could operate in violation of the limits set by your air permit.


You look at your attorney and state, "No system can guarantee that." Your attorney in response simply states, "And that is why you are likely to lose. There is credible evidence of past violations, and no way to insure that future violations will not occur."


Be advised that EPA has lowered the standard to bring citizen suits and win. Under the new "Any Credible Evidence" rule, enforcement actions, including citizen suits, are a lot easier to win. Further, unless it can be demonstrated that the violation will never reoccur, they are even more difficult to stop. The new rule is referred to as the "Any Credible Evidence" rule or ACE rule. The "ACE" rule will undoubtedly become the ace in the hole for citizens pursuing enforcement actions against companies like the one in this article, Ace Plating and Painting, Inc.


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