•  
  •  
 

Abstract

In Sierra Club v. Public Service Company of Colorado, the United States District Court for the district of Colorado granted plaintiffs summary judgment motion, in part, finding emissions violations in excess of 19,000 times within a five year period. The court held that in a citizen action under the Clean Air Act (CAA), violations of opacity standards may be established through data and reports from a facility's Continuous Emissions Monitoring Systems (CEMS). This holds true despite the fact that it is neither the applicable test method under the Environmental Protection Agency's (EPA) regulations nor is it provided for in the CAA State Implementation Plan (SIP) provisions. Prior to 1990, emission violations could only be demonstrated through the applicable standards set forth in the EPA's regulations or SIPs. However, with the recently enacted 1990 Amendments, the Colorado court reasoned that the CAA allows any evidence of a violation or compliance to be considered under the Federal Rules of Evidence (FRE), including, but not limited to, bypass and control equipment malfunctions and expert testimony, regardless of whether it is an applicable test method under the EPA's regulations. This case note discusses whether the court's ruling constituted a judicial amendment or a rational analysis of the applicable statutory and regulatory scheme. Part II provides a background of the CAA, air pollution standards, and state compliance. Part ill analyzes whether the defendants are likely to succeed on appeal to the United States Court of Appeals, the impact of its decision upon industry, and how citizen groups are likely to gain power from this decision. Part IV concludes that the EPA should adopt the proposed rules requiring CEMS or similar systems to be installed in all utility plants to measure emissions violations on a continuous basis. These proposed rules clarify the requirements necessary to meet Congressional intent in passing the 1990 amendments. The rule will provide citizen groups with easy access to information for monitoring purposes and will ensure greater compliance with emission standards.

Download

Share

COinS