United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2008 Decided August 19, 2008 

No. 04-1243 

SIERRA CLUB, ET AL., 

PETITIONERS

v. 

ENVIRONMENTAL PROTECTION AGENCY, 

RESPONDENT

AMERICAN PETROLEUM INSTITUTE, ET AL., 

INTERVENORS

Consolidated with 

07-1039 

On Petitions for Review of an Order of the 

Environmental Protection Agency 

Keri N. Powell argued the cause for petitioners. With her 

on the briefs was David S. Baron. John D. Walke entered an 

appearance. 

Cynthia J. Morris, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With her on the brief was 

John C. Cruden, Deputy Assistant Attorney General. 
2 

Christopher S. Vaden, David J. Kaplan, Jon M. Lipshultz, 

Attorneys, U.S. Department of Justice, and Nancy A. 

Ketcham-Colwill and Kerry E. Rodgers, Counsel, U.S. 

Environmental Protection Agency, entered appearances. 

Lauren E. Freeman argued the cause for intervenors. 

With her on the brief were Charles H. Knauss, Leslie S. Ritts, 

Susan Conti, Richard S. Wasserstrom, William H. Lewis, and 

M. Elizabeth Cox. Ralph J. Colleli, Jr. entered an appearance. 

Before: SENTELLE, Chief Judge, and GRIFFITH and 

KAVANAUGH, Circuit Judges. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

Dissenting opinion filed by Circuit Judge KAVANAUGH. 

GRIFFITH, Circuit Judge: The 1990 Amendments to the 

Clean Air Act compel certain stationary sources of air 

pollution to obtain permits from state and local authorities 

that identify all emission limits for the source and also include 

“monitoring . . . requirements to assure compliance with the 

permit terms and conditions.” 42 U.S.C. § 7661c(c). 

Sometimes, existing monitoring requirements do not “assure 

compliance.” The Environmental Protection Agency (“EPA”) 

promulgated a rule preventing state and local authorities from 

supplementing these inadequate monitoring requirements. We 

vacate this rule because it is contrary to the statutory directive 

that each permit must include adequate monitoring 

requirements. 
3 

I. 

A. 

Under the regulatory regime established by the Clean Air 

Act (“Act”), emission limits for pollutants and monitoring 

requirements that measure compliance applicable to any given 

stationary source of air pollution are scattered throughout 

rules promulgated by states or EPA, such as state 

implementation plans, id. § 7410, new source performance 

standards, id. § 7411, and national emission standards for 

hazardous air pollutants, id. § 7412. Before 1990, regulators 

and industry were left to wander through this regulatory maze 

in search of the emission limits and monitoring requirements 

that might apply to a particular source. Congress addressed 

this confusion in the 1990 Amendments by adding Title V of 

the Act, which created a national permit program that requires 

many stationary sources of air pollution to obtain permits that 

include relevant emission limits and monitoring requirements. 

Id. §§ 7661–7661f. Congress intended that EPA and state and 

local permitting authorities administer the permit program 

together.1

 Title V gives EPA a supervisory role over the 

program, which includes the duty to identify its “minimum 

elements,” id. § 7661a(b), the power to establish new 

compliance procedures, id. § 7661c(b), and the opportunity to 

object to permits that do not comply with the Act, id.

§ 7661d(b). State and local authorities are assigned the task of 

issuing permits in their jurisdictions but can do so only if EPA 

has approved their proposals for how to implement the permit 

program. Id. § 7661a(d)(1). If a permitting authority fails to 

propose an acceptable program, responsibility for issuing 

 

1

 A “permitting authority” is “the air pollution control agency 

authorized by [EPA] to carry out a permit program” in a state or 

local jurisdiction. 42 U.S.C. § 7661(4). 
4 

permits falls to EPA. Id. § 7661a(d)(3). To date, EPA has 

issued final approvals to permit programs proposed by more 

than 100 state and local authorities. 

But Title V did more than require the compilation in a 

single document of existing applicable emission limits, id.

§ 7661c(a), and monitoring requirements, id. § 7661c(c). It 

also mandated that “[e]ach permit issued under [Title V] shall 

set forth . . . monitoring . . . requirements to assure 

compliance with the permit terms and conditions.” Id. As we 

explain below, there has been much back and forth among 

EPA, industry, and environmental groups about how “[e]ach 

permit” must “assure compliance.” 

B. 

In 1992, EPA identified the “minimum elements” of the 

national permit program as the 1990 Amendments required, 

see id. § 7661a(b), by issuing its “Part 70 Rules,” see 40 

C.F.R. pt. 70.2

 Three provisions of the Part 70 Rules are 

relevant to this matter. Subsection 70.6(a)(3)(i)(A) requires 

that “[e]ach permit” identify “[a]ll monitoring . . . required 

under applicable monitoring and testing requirements.” But 

“[w]here the applicable requirement does not require periodic 

testing,” subsection 70.6(a)(3)(i)(B) obliges the permitting 

authority to add to the permit “periodic monitoring sufficient 

to yield reliable data from the relevant time period that are 

representative of the source’s compliance with the permit.”3

 

2

 EPA promulgated materially similar rules to govern instances 

where the agency, rather than state and local authorities, assumes 

responsibility for issuing permits. See 40 C.F.R. pt. 71. Petitioners 

also challenge these “Part 71 Rules.” Our discussion of the Part 70 

Rules applies equally to the Part 71 Rules. 

3

 The Part 70 Rules do not define “periodic,” but we have indicated 

that it means “testing from time to time — that is yearly, monthly, 
5 

Finally, subsection 70.6(c)(1) — which closely tracks the 

language of the statute, see 42 U.S.C. § 7661c(c) — provides 

that “[a]ll . . . permits shall contain . . . monitoring . . . 

requirements sufficient to assure compliance with the terms 

and conditions of the permit.” 

 For each permit issued, a permitting authority must 

gather the various emission limits and determine which 

monitoring requirements accompany them. The Part 70 Rules 

guide the way. Where an emission standard already specifies 

a monitoring requirement that is both “periodic” and 

sufficient to assure compliance, the permitting authority 

simply includes that requirement in the permit. 40 C.F.R. 

§ 70.6(a)(3)(i)(A). Where the emission standard lacks a 

periodic monitoring requirement altogether, the permitting 

authority must create one that assures compliance and include 

it in the permit. Id. § 70.6(a)(3)(i)(B). There is no controversy 

over what the permitting authority should do in either of these 

scenarios. 

But how should a permitting authority respond to an 

emission standard that has a periodic monitoring requirement 

inadequate to the task of assuring compliance? For example, 

suppose there is a standard that limits emission from a given 

stationary source to X units of pollutant per day. Suppose also 

that the standard requires annual monitoring. Where annual

testing cannot assure compliance with a daily emission limit, 

may the permitting authority supplement the monitoring 

requirement “to assure compliance with the permit terms and 

conditions,” as the Act commands? 42 U.S.C. § 7661c(c). 

 

weekly, daily, hourly.” Appalachian Power Co. v. EPA, 208 F.3d 

1015, 1024 (D.C. Cir. 2000). An annual monitoring test would be 

periodic, but a one-time test would not. 
6 

EPA’s answer to this question, what we shall call the “third 

scenario,” has shifted over time. 

EPA first engaged with this issue in 1997, when the 

agency took the position that state and local permitting 

authorities could supplement periodic monitoring 

requirements that failed to assure compliance. See Letter from 

Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt. 

Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt. 

Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997) (rejecting 

permits interpreting Part 70 Rules to forbid supplementation). 

EPA memorialized this interpretation in a 1998 Guidance that 

construed 40 C.F.R. § 70.6(a)(3)(i)(B) to allow 

supplementation by state and local permitting authorities. See

PERIODIC MONITORING GUIDANCE. Subsection 

70.6(a)(3)(i)(B), which on its face appeared only to cover the 

circumstance where no periodic monitoring had been 

required, was now read to include the third scenario where 

periodic monitoring was required but was inadequate. 

Industry groups petitioned this court for review of the 

Guidance. Their principal argument was that the Guidance 

unlawfully expanded § 70.6(a)(3)(i)(B) without following 

notice-and-comment procedures. In the alternative, they 

argued that § 70.6(a)(3)(i)(B) conflicted with the Act. We 

vacated the Guidance because it unlawfully broadened 

§ 70.6(a)(3)(i)(B) without following proper procedures. 

Appalachian Power v. EPA, 208 F.3d 1015, 1028 (D.C. Cir. 

2000). We did not, however, speak to whether 

§ 70.6(a)(3)(i)(B) or any other provisions in the Part 70 Rules 

violate the Act. 

 Undeterred, the agency turned from 40 C.F.R. 

§ 70.6(a)(3)(i)(B) to § 70.6(c)(1). In two decisions objecting 

to permits, EPA found in § 70.6(c)(1) authority for state and 

local permitting authorities to supplement inadequate 
7 

monitoring requirements. See Order Denying in Part and 

Granting in Part Petition for Objection to Permit, In re Fort 

James Camas Mill, Petition No. X-1999-1 (Dec. 22, 2000); 

Order Partially Granting and Partially Denying Petition for 

Objection to Permits, In re PacifiCorp’s Jim Bridger and 

Naughton Electric Utility Steam Generating Plants, Petition 

No. VIII-00-1 (Nov. 16, 2000). An industry group petitioned 

for review of EPA’s interpretation of § 70.6(c)(1), but we 

dismissed the challenge on jurisdictional grounds. Util. Air 

Regulatory Group v. EPA, 320 F.3d 272 (D.C. Cir. 2003) 

(dismissing petition for review on standing and ripeness 

grounds). 

In 2002, EPA proposed a regulation codifying this view 

of § 70.6(c)(1). The agency issued an advance notice of the 

rule, 67 Fed. Reg. 58,561, 58,564 (Sept. 17, 2002), and a 

sixty-day interim rule during the notice-and-comment period, 

67 Fed. Reg. 58,529 (Sept. 17, 2002). But after an industry 

group challenged the sixty-day rule, see Util. Air Regulatory 

Group v. EPA, No. 02-1290 (D.C. Cir. filed Sept. 18, 2002), 

EPA had a change of view. Rather than defend the proposed 

rule, the agency settled the litigation by agreeing to adopt a 

final rule that would interpret § 70.6(c)(1) to prohibit state 

and local permitting authorities from supplementing 

inadequate monitoring requirements. See 68 Fed. Reg. 65,700, 

65,701 (Nov. 21, 2003). This new rule would revise EPA’s 

answer for the problem of the third scenario. 

In 2004, EPA issued a rule to this effect, which provided 

that nothing in the Part 70 Rules authorized permitting 

authorities to supplement inadequate monitoring 

requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA 

resolved that it alone would remedy inadequate monitoring 

requirements by undertaking a “programmatic” strategy. See 

id. Pursuant to this strategy, EPA would identify inadequate 
8 

periodic monitoring requirements and, rather than address 

their deficiencies in each permit, would issue rulemakings 

enhancing them to “assure compliance.” We vacated this 

2004 rule because EPA had not allowed for notice and 

comment. Envtl. Integrity Project v. EPA, 425 F.3d 992, 998 

(D.C. Cir. 2005). In response, EPA issued notice and sought 

comment on a proposed rule that was identical. 71 Fed. Reg. 

32,006 (June 2, 2006). In December 2006, EPA adopted the 

rule. 71 Fed. Reg. 75,422 (Dec. 15, 2006) (“2006 rule”). 

Several environmental groups challenge the 2006 rule 

and the monitoring provisions of the 1992 Part 70 Rules, see

40 C.F.R. §§ 70.6(a)(3)(i)(A), (a)(3)(i)(B), (c)(1), arguing that 

they violate the Clean Air Act and are arbitrary and 

capricious. Several industry groups have intervened on behalf 

of EPA. We have jurisdiction to consider these petitions for 

review. 42 U.S.C. § 7607(b)(1). 

II. 

We first consider whether EPA’s 2006 rule violates the 

Clean Air Act. Because Congress has charged EPA with 

administering Title V, see 42 U.S.C. § 7661a(b), our inquiry 

is governed by Chevron U.S.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984). If the Act 

unambiguously authorizes or forecloses EPA’s 2006 rule, step 

one of the Chevron analysis requires that we follow 

Congress’s express policy choice. If the Act is unclear on the 

matter, step two of Chevron requires that we defer to EPA’s 

reasonable interpretation. Id. at 842–43. We hold, under step 

one of Chevron, that Title V of the Act unambiguously 
9 

precludes EPA’s interpretation in the 2006 rule. Accordingly, 

we vacate the 2006 rule.4

Title V is a complex statute with a clear objective: it 

enlists EPA and state and local environmental authorities in a 

common effort to create a permit program for most stationary 

sources of air pollution. Fundamental to this scheme is the 

mandate that “[e]ach permit . . . shall set forth . . . monitoring 

. . . requirements to assure compliance with the permit terms 

and conditions.” 42 U.S.C. § 7661c(c). By its terms, this 

mandate means that a monitoring requirement insufficient “to 

assure compliance” with emission limits has no place in a 

permit unless and until it is supplemented by more rigorous 

standards. Cf. EPA Br. at 29 (“EPA recognizes that the 

monitoring required by some rules . . . — particularly, those 

that pre-date the 1990 . . . Amendments — may not be 

adequate to assure compliance and should be improved.”). 

Title V gave EPA two ways to comply with this 

requirement. First, EPA could have fixed all inadequate 

monitoring requirements through the rulemaking process 

before any permits issued under the new national permit 

program. 42 U.S.C. § 7661c(b). EPA declined such an 

undertaking. Second, EPA could have authorized permitting 

authorities to supplement inadequate monitoring requirements 

on a case-by-case basis in each permit issued. EPA has been 

of two minds on this option. As we have already described, 

for many years the agency chose this as the best way to 

comply with the Act. In the 2006 rule and the litigation that 

preceded it, however, EPA reversed course and prohibited 

 

4

 Because we strike the 2006 rule on this ground, we do not 

consider petitioners’ argument that the rule is also arbitrary and 

capricious. 
10 

state and local permitting authorities from exercising this 

power. 

EPA’s about-face means that some permit programs 

currently in place do not comply with Title V because the 

agency failed to fix inadequate monitoring requirements 

before new permits issued, and prohibited state and local 

authorities from doing so. State and local authorities have 

issued more than 16,000 permits since the 1990 Amendments, 

and because stationary sources must renew their permits at 

least every five years, id. § 7661a(b)(5)(B), thousands more 

will issue while EPA completes its programmatic strategy. 

Many of those permits will fail to comply with the Act 

because their monitoring requirements are inadequate. If 

Congress meant that potentially thousands of permits could be 

issued without adequate monitoring requirements, then it 

would not have said “[e]ach permit . . . shall set forth . . . 

monitoring . . . requirements to assure compliance with the 

permit terms and conditions.” Id. § 7661c(c) (emphasis 

added). There can be no doubt about the plain meaning of this 

phrase. “Each” means “[e]very one of a group considered 

individually.” AMERICAN HERITAGE DICTIONARY 269 (4th ed. 

2001). Title V requires that “[e]very one” of the permits 

issued by permitting authorities include adequate monitoring 

requirements. Any other conclusion would run counter to 

Justice Frankfurter’s timeless advice on statutory 

interpretation: “ ‘(1) Read the statute; (2) read the statute; (3) 

read the statute!’ ” In re England, 375 F.3d 1169, 1182 (D.C. 

Cir. 2004) (Roberts, J.) (quoting HENRY J. FRIENDLY,

BENCHMARKS 202 (1967)). 

EPA and the industry intervenors marshal several 

arguments in support of the 2006 rule. First, they argue that 

the Act’s “[e]ach permit” mandate is not as sweeping as it 

seems, and in fact bars permitting authorities from adding 
11 

monitoring requirements, because the Act’s next sentence 

says: “Such monitoring . . . requirements shall conform to any 

applicable regulation under [§ 7661c(b)].” 42 U.S.C. 

§ 7661c(c). Section 7661c(b) allows EPA to promulgate 

monitoring requirements. Taken together, the argument goes, 

these provisions limit the creation of new monitoring 

requirements to EPA alone. We disagree. Had EPA used its 

§ 7661c(b) power to fix inadequate monitoring requirements 

prior to the issuance of any permits, those newly-adequate 

requirements would bind state and local authorities under 

§ 7661c(c). But EPA did no such thing. Similarly, where EPA 

fixes inadequate monitoring requirements pursuant to 

§ 7661c(b) after permits began to issue, permits will have to 

“conform to” those updated requirements. Id. § 7661c(c).5

 At 

least for some inadequate monitoring requirements, however, 

EPA has offered nothing more than vague promises to act in 

the future. Under the “[e]ach permit” mandate, state and local 

authorities must be allowed to cure these monitoring 

requirements before including them in permits. 

Along these lines, our dissenting colleague argues that 

EPA has already stamped all pre-existing monitoring 

requirements as adequate “to assure compliance,” and that 

permitting authorities may not supplement those 

requirements. Were that true, this would be a harder case, 

presenting the question of “Who Decides?” Dissenting 

Opinion at 2. But EPA has not decided that all pre-existing 

monitoring requirements “assure compliance.” Quite the 

opposite, the agency concedes that some monitoring 

requirements “may not be adequate to assure compliance and 

should be improved,” EPA Br. at 29, and promises to fix them 

 

5

 EPA has already done this with respect to some inadequate 

monitoring requirements. See EPA Br. at 52 (describing recent 

enhancements to pre-1990 inadequate monitoring requirements). 
12 

in the future. The question in this case is whether permitting 

authorities may supplement inadequate monitoring 

requirements when EPA has taken no action. We read Title V 

to mean that somebody must fix these inadequate monitoring 

requirements. We leave for another day the question of who 

wins when EPA and state and local permitting authorities 

conflict over whether a given requirement is sufficient “to 

assure compliance,” because the question is not presented in 

this case. 

Second, EPA and the intervenors contend generally that it 

would be imprudent to allow state and local authorities to 

supplement inadequate requirements. Their contentions can 

be grouped into two lines of argument. On the one hand, they 

argue that allowing supplementation by state and local 

authorities would contradict the Act’s design. They suggest 

that allowing such supplementation would create new 

emission standards not authorized by the Act, and would 

undermine the Act’s judicial-review provision, id.

§ 7607(b)(1), by giving two bites at the apple to parties who 

want more stringent environmental regulations. On the other 

hand, they argue that allowing supplementation by state and 

local authorities would be bad policy. There is no need for 

permitting authorities to supplement inadequate requirements, 

they say, because those authorities can pass more stringent 

requirements through state and local legislation. In any case, 

they maintain, EPA’s programmatic approach would be more 

consistent, more efficient, more publicly accountable, and less 

burdensome than allowing permitting authorities to 

supplement inadequate requirements on a case-by-case basis. 

But neither of these lines of attack is persuasive because both 

share the same flaw — they attempt to sidestep the 

unambiguous “[e]ach permit” mandate of the Act. Appeals to 

the design and policy of a statute are unavailing in the face of 

clear statutory text. As Chief Justice Roberts wrote while a 
13 

member of this court, “when the statute’s language is plain, 

the sole function of the courts — at least where the 

disposition required by the text is not absurd — is to enforce 

it according to its terms.” In re England, 375 F.3d at 1177 

(quotation marks omitted). 

Finally, EPA and the intervenors argue that we must 

uphold the 2006 rule because Appalachian Power suggested 

that the Act does not authorize state and local authorities to 

supplement inadequate monitoring requirements. That is 

simply incorrect. In that case we set aside an EPA Guidance 

interpreting the Part 70 Rules, holding that the agency’s broad 

interpretation of 40 C.F.R. § 70.6(a)(3)(i)(B) effectively 

amended that subsection without adhering to required 

rulemaking procedures. 208 F.3d at 1028; cf. EPA Br. at 46 

(admitting that Appalachian Power “was ultimately decided 

on procedural grounds”). We had no occasion in Appalachian 

Power to determine, as we must here, whether the Act allows 

supplementation by permitting authorities of inadequate 

monitoring requirements. 

III. 

 Independent of their challenge to the 2006 rule, 

petitioners also seek review of the monitoring requirements of 

the Part 70 Rules, arguing that if those provisions forbid 

permitting authorities from supplementing inadequate 

monitoring requirements, they too must be vacated. As we 

explained in our earlier Chevron analysis, the Clean Air Act 

requires such supplementation. Accordingly, the Part 70 

Rules may be upheld only if they can be read consistent with 

that mandate. Because the Part 70 Rules can be so read, we 

uphold them. 
14 

“[A]n agency’s interpretation of its own regulations is 

controlling unless plainly erroneous or inconsistent with the 

regulations being interpreted.” Long Island Care at Home, 

Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007) (quotation marks 

omitted). Because we have set aside the 2006 rule as 

conflicting with the Act, EPA’s interpretation of the Part 70 

Rules does not control. See Hazardous Waste Treatment 

Council v. Reilly, 938 F.2d 1390, 1395 (D.C. Cir. 1991) 

(explaining that an agency’s interpretation of its own 

regulations must “meet the test of consistency with the 

underlying statute”). Turning to the Part 70 Rules themselves, 

we conclude that their monitoring provisions are consistent 

with the Act because they can be easily and reasonably read 

to allow state and local permitting authorities to supplement 

inadequate monitoring requirements in each permit issued. 

Neither § 70.6(a)(3)(i)(A) nor § 70.6(a)(3)(i)(B) allows 

state and local authorities to supplement inadequate 

monitoring requirements, so the question is whether 

§ 70.6(c)(1) does. That provision states that “[c]onsistent with 

[§ 70.6(a)(3)],” all permits “shall” contain “monitoring . . . 

requirements sufficient to assure compliance with the terms 

and conditions of the permit.” The meaning of this subsection 

is not immediately evident. One option is that § 70.6(c)(1) 

does nothing more than repeat the requirements of 

§ 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B). This reading finds 

support in the phrase “[c]onsistent with [§ 70.6(a)(3)].” But 

we are reluctant to adopt this interpretation because it would 

run afoul of a basic canon of construction. As the Supreme 

Court has instructed, “It is [a court’s] duty to give effect, if 

possible, to every clause and word of a statute . . . .” United 

States v. Menasche, 348 U.S. 528, 538–39 (1955) (quotations 

and citations omitted). The same is true for regulations. See 

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. 
15 

Ct. 2518, 2535–36 (2007) (“[W]e have cautioned against 

reading a text in a way that makes part of it redundant.”). 

 To save § 70.6(c)(1) from becoming surplusage, we must 

interpret the provision to require something beyond what is 

already required by § 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B). 

The most reasonable reading is that it serves as a gap-filler to 

those provisions. In other words, § 70.6(c)(1) ensures that all 

Title V permits include monitoring requirements “sufficient to 

assure compliance with the terms and conditions of the 

permit,” even when § 70.6(a)(3)(i)(A) and § 70.6(a)(3)(i)(B) 

are not applicable. This reading provides precisely what we 

have concluded the Act requires: a permitting authority may 

supplement an inadequate monitoring requirement so that the 

requirement will “assure compliance with the permit terms 

and conditions.” Because § 70.6(c)(1) can be reasonably read 

this way, we uphold the monitoring provisions of the Part 70 

Rules as consistent with the Act.6

IV. 

 We grant the petition for review with respect to the 2006 

rule, which we vacate. We deny the petition for review with 

respect to the monitoring provisions of the Part 70 Rules. 

So ordered. 

 

6

 And because we read the Part 70 Rules to allow supplementation 

of inadequate monitoring requirements, we need not consider 

petitioners’ argument that those rules would be arbitrary and 

capricious if they prohibited supplementation. 
 KAVANAUGH, Circuit Judge, dissenting: I agree 

completely with the majority opinion about bedrock 

principles of statutory interpretation. The plain meaning of 

the text controls; courts should not strain to find ambiguity in 

clarity; courts must ensure that agencies comply with the 

plain statutory text and not bypass Chevron step 1. And I 

strongly align myself with the majority’s quotation from 

Justice Frankfurter about the best tool of statutory 

interpretation: “Read the statute; (2) read the statute; (3) read 

the statute!” Maj. Op. at 10. 

 In this case, however, I respectfully part ways with the 

majority opinion because the relevant statutory language 

supports EPA’s 2006 rule. 

 Under the Clean Air Act, state and local authorities issue 

permits for certain sources that emit air pollution. The 

permits must list the pre-existing emission limits and the preexisting “monitoring . . . requirements to assure compliance” 

with the emission limits. 42 U.S.C. § 7661c(c); see also

§ 7661c(a). Importantly, by regulation, those emission limits 

and monitoring requirements are not created by state and local 

permitting authorities at the time they issue the permits. 

Rather, the permit is simply a device that lists in one “sourcespecific bible for Clean Air Act compliance” pre-existing 

emission limits and monitoring requirements, including those 

set forth by pre-existing EPA-approved state implementation 

plans (SIP), EPA-dictated New Source Performance 

Standards (NSPS), EPA-generated National Emission 

Standards for Hazardous Air Pollutants (NESHAP), and other 

applicable requirements. Virginia v. Browner, 80 F.3d 869, 

873 (4th Cir. 1996); see also Appalachian Power Co. v. EPA, 

208 F.3d 1015, 1026-27 (D.C. Cir. 2000). 

The dispute in this case boils down to the following: 

When issuing permits, can state and local permitting 

authorities independently determine whether, in their view, 
2 

those pre-existing monitoring requirements are sufficient “to 

assure compliance” with emission limits – and if they think 

not, impose additional monitoring requirements? The legal 

question here is: Who Decides? According to petitioners, the 

statute says that state and local permitting authorities can 

decide on their own to impose additional monitoring 

requirements as they see fit. EPA responds that it possesses 

the statutory authority and discretion to decide whether state 

and local permitting authorities can impose additional 

monitoring requirements. 

The statutory text resolves that question; the statute 

grants EPA the authority to determine whether state and local 

permitting authorities can impose additional monitoring 

requirements. The text says that the monitoring requirements 

listed in the permit “shall conform to any applicable 

regulation under subsection (b) of this section.” § 7661c(c). 

In turn, subsection (b) says EPA “may by rule prescribe 

procedures and methods for determining compliance and for 

monitoring and analysis of pollutants regulated under this 

chapter . . . .” § 7661c(b) (emphasis added). 

Exercising its authority under this rather straightforward 

statutory scheme, EPA has decided that pre-existing periodic 

monitoring requirements (for example, in the SIP, NSPS, and 

NESHAP) are to “assure compliance” with emission limits 

and that state and local permitting authorities may not add 

new periodic monitoring requirements when issuing permits. 

EPA has allowed one exception: If there are no periodic 

monitoring requirements set forth in the pre-existing 

applicable requirements, state and local permitting authorities 

not only can but must add periodic monitoring requirements 

to permits. 40 C.F.R. § 70.6(a)(3)(i)(B). 
3 

To be sure, EPA and the state and local permitting 

authorities (and outside interest groups) might disagree about 

whether the pre-existing monitoring requirements listed in the 

permit will “assure compliance” with the relevant emission 

limits. But pursuant to its statutory authority, EPA has 

determined that the permitting process is not the time and 

place for state and local permitting authorities to add new 

periodic monitoring requirements. Rather, if changes are to 

be made to the underlying monitoring requirements, they 

should occur during the process for formulating and revising 

SIP, NSPS, NESHAP, and other applicable requirements. 

I therefore would reject petitioners’ primary statutory 

argument.∗

 

For its part, the majority opinion says it need not resolve 

the broad question raised by petitioners whether EPA must 

allow state and local permitting authorities to add new 

periodic monitoring requirements when issuing permits. Maj. 

Op. at 11-12. The majority instead resolves this case on more 

limited grounds, based on a factual wrinkle in this case. 

According to EPA, there is a narrow group of pre-existing 

applicable monitoring requirements (primarily from before 

1990) that may not assure compliance with emission limits. 

EPA has determined that any such shortcomings should be 

resolved by rule or through revisions to the underlying SIPs, 

for example, not by state and local permitting authorities 

 ∗

 Taking a different position from petitioners or EPA, the 

industry intervenors argue that the statutory text actually prohibits

EPA from allowing state and local permitting authorities to impose 

additional monitoring requirements when issuing permits. I 

disagree with industry intervenors for the same reason that I 

disagree with petitioners. The statute gives EPA the discretion to 

decide this question; the statutory text does not mandate a particular 

answer. 
4 

during the permitting process. EPA’s approach to this 

problem is consistent with the overall statutory and regulatory 

scheme, which indicates that the permitting process is 

generally not the vehicle for making substantive monitoring 

decisions; again, the permit simply lists the pre-existing 

monitoring requirements and emission limits in one place. I 

thus find nothing in the statute that prohibits EPA’s approach 

to fixing any inadequate pre-existing monitoring 

requirements. 

The majority’s contrary decision is narrow and appears to 

allow state and local permitting authorities to add periodic 

monitoring requirements only in those cases where EPA itself 

concludes that the pre-existing applicable monitoring 

requirements are not adequate and EPA has taken no action. 

That is likely to be a small percentage of overall permit 

decisions. But because I conclude that the challenged EPA 

rule is entirely consistent with the statutory text and is 

otherwise reasonable, and because petitioners’ other 

challenges are not persuasive, I would deny the petition in 

whole. I respectfully dissent.