00/00/86
Clean Air Act Compliance / Enforcement Guidance Manual -- Chapter
Five: Responding to Noncompliance
CHAPTER FIVE
Responding to Noncompliance
Chapter Contents Page.
Objectives 5-1.
Priority Target Areas 5-2.
Responses to Noncompliance 5-6.
Considerations in Selecting an Appropriate Response 5-11.
Ensuring Compliance with Response's Requirements 5-15.
Exhibit 5-1: Stationary Source Compliance Process 5-16.
CAA Compliance/Enforcement 5-i Guidance Manual 1986
Chapter Five
Responding to Noncompliance
Objectives
The objectives of responding to noncompliance problems are to ensure that
the problem is corrected quickly, to deter similar problems from arising, to
see that the law is applied equitably, and to punish misconduct by source
owners and operators.
The state (and local) air pollution control agencies have the primary
responsibility for monitoring and enforcing compliance with the State
Implementation Plans ( SIPs ). In those states where EPA has delegated its
authority to enforce the New Source Performance Standard ( NSPS ) and
National Emission Standard for Hazardous Air Pollutants ( NESHAP )
regulations, the states have primary responsibility for monitoring and
enforcing compliance with these federal standards. State and local agencies
conduct regular inspections of stationary sources of air pollution within the
state which emit, or have the potential to emit, 100 tons per year of any
regulated pollutant. EPA refers to these major sources of air pollution as
"Class A" sources. The compliance status of these sources is reported to EPA
and is entered into a national computer data system, the Compliance Data
System ( CDS ). The EPA regional office is responsible for monitoring
compliance with NSPS and NESHAP regulations if that function has not been
delegated to a state. The EPA regional air program office is responsible for
tracking the compliance status of all sources in the region and determining
which sources to target for an EPA enforcement action, based on national and
regional enforcement priorities.
NOTE: This chapter is excerpted from the EPA Compliance Strategy for
Stationary Sources of Air Pollution ( November 1983 ). The complete
document is contained in the CAA Policy Compendium, General, at Tab H.
The excerpt has been updated to reflect developments since then and
has been adapted to the format of this manual.
CAA Compliance/Enforcement 5-1 Guidance Manual 1986
Priority Target Areas
The current system of priorities for responding to noncompliance problems is
primarily delineated by two memoranda. The first is the December 29, 1981,
memorandum from Kathleen Bennett to the Regional Administrators, entitled
"EPA Accountability System-OANR Policy Guidance" (see CAA Policy Compendium,
General, at Tab B).
In an appendix to that memorandum, the term "significant violator" is
defined, and the statement is made that these significant violators should
be addressed. This policy was elaborated upon in a memorandum of June 24,
1982, to the Regional Offices, entitled "Significant Violators" (see, CAA
Policy Compendium, General, at Tab E). Subsequently, the definition of a
significant violator was changed in a memorandum to the Regions (dated July
12, 1984) (see, CAA Policy Compendium, General, at Tab J). Roughly
speaking, the following are sources to be given a high priority as
significant violators:
. o Violators of NESHAPs other than the asbestos standards; (note)
. o A Class A source in violation of a SIP if the source impacts a
nonattainment area and is in violation for the pollutant for which
the area is nonattainment.
. o Violators of new source requirements (NSPS and requirements of Parts
C and D of the Act);
. o Sources in violation of a federal consent decree or administrative
order; and
. o Class A federal facility violators.
The purpose of establishing the significant violator program was to define
the Agency's highest priority sources for enforcement action, other than
emergency actions. In light of the special importance attached to these
sources, Regional Offices are required to report on a quarterly basis on the
status of efforts made by themselves and their states to resolve these
violations.
NOTE: Because of the transitory nature of asbestos demolition/renovation
activities, they are not easily susceptible to tracking under the
significant violator program. However, because of their environmental
significance, they are tracked in a separate system and enforcement of
violations is given high priority.
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The list of significant violators is obviously dynamic, with sources being
added and deleted as violations are discovered and resolved. The initial
list established in March 1982 contained 482 sources. Since then more than
1,000 sources have been added and many have been resolved. As of December
31, 1986, the number of significant violators was 647. As EPA continues to
improve its information on the identity and compliance status of sources of
volatile organic compounds ( VOCs ), the list will continue to grow before
enforcement efforts begin to turn this around.
It is generally accepted within the Agency that the significant violator
program forms a sound base for the Clean Air Act enforcement program. It is
expected that this concept will continue into the forseeable future, with no
changes anticipated.
The second major priority-setting memorandum is the Agency's Post-1982
Enforcement Policy, dated September 20, 1982 (see, CAA Policy Compendium,
Section 113, Tab R). This policy provides more detail for addressing SIP
violators in primary nonattainment areas after December 31, 1982. (The
policy does not apply when the attainment deadline is after 1982, such as in
areas with Section 172(a)(2) extensions).
In particular, the policy maintains that EPA or the states should seek
shutdown of sources subject to the policy unless:
o The public interest in continued operation of the source outweighs
the environmental cost of the additional period of noncompliance;
and
o The source has sufficient funds to comply expeditiously.
Further guidance on the Post-1982 Enforcement Policy was issued on January
12, 1983, in a memorandum from Kathleen Bennett and Robert Perry to the
Regional Administrators and Regional Counsels (see, CAA Policy Compendium,
Section 113, Tab S). This guidance clarified the policy in a number of
ways, most importantly in providing further detail on criteria to be applied
when reviewing state actions for possible overfiling. This supplemental
guidance also directed the Regional Offices to issue Notices of Violation to
all sources to which the policy applied, including state-lead cases, so that
EPA would be in a position to act quickly if state action should ultimately
prove inadequate. Finally, guidance issued January 11, 1984 by the Deputy
Administrator eliminated the requirement for stipulations contained in the
original Post-82 Enforcement Policy and permitted the use of consent decrees
for the purpose of settling these cases.
EPA may defer to a state judicial order or administrative order (other than
a delayed compliance order) if the order contains, at a minimum, the
following key elements:
o The source commits to an expeditious schedule to come into
compliance with the applicable SIP (or RACT, if no Part D plan is in
force);
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. o The compliance schedule contains enforceable increments of progress;
. o The order includes reporting requirements, including reporting to
the state and, if a judicial order, to the court, of completion of
each increment;
. o The order treats limited-life facilities in a manner that is
consistent with EPA guidance; and
. o The order requires payment of a significant cash penalty.
When EPA brings an enforcement action against a source that is subject to
the Post-1982 Enforcement Policy, it will usually take the form of a civil
action under Section 113(b) because this is the only enforcement tool that
permits EPA to obtain civil penalties and a court-ordered compliance
schedule. If the Agency decides to seek shutdown of the source, the consent
decree or court order should be consistent with the Enforcement Policy
Respecting Sources Complying by Shutdown, issued on November 27, 1985 (see,
CAA Policy Compendium, General, at Tab L). If the Agency decides to permit
the source to continue to operate while coming into compliance, EPA will
seek a consent decree or court order that, at a minimum, incorporates the
following requirements:
. o An expeditious schedule with increments of progress to comply with
the SIP, or RACT if no Part D plan is in force where one is
required;
. o Interim emission limitations and controls to the extent practicable;
. o Monitoring and reporting requirements;
. o Stipulated penalties, at least for violations of the compliance
schedule, and interim controls;
. o Provisions preventing increases of emissions;
. o Payment of a significant cash penalty, with total civil penalties
reflecting the criteria of the Clean Air Act Stationary Source Civil
Penalty Policy; and
. o An express reservation of the right to seek injunctive relief,
including shutdown, if the source does not comply with the order.
Since the policy was established, EPA has been working closely with the
states to ensure its successful implementation. A high proportion of the
sources that were determined to be subject to the policy either have come
into compliance, have been put on a compliance schedule, or have an
enforcement action pending against them. Of course, as with the significant
violator program, new violators are continually being identified so
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that the overall number of identified violators is not necessarily
decreasing. In fact, it is increasing as VOC compliance inventories and
data become more complete.
Because of the importance of the significant violator and Post-1982
Enforcement Policy concepts in the enforcement program and because they are
different yet partially overlapping, it would be worthwhile to summarize the
main points of each for comparison purposes.
Significant Violators
. o A priority-setting mechanism to assist the Regions and states in
targeting their resources to achieve the greatest environmental
benefit;
. o A defined universe used for tracking regional program performance in
the Strategic Planning Management System;
. o Sources are not subject to any particular substantive Agency
policies based solely on their status as significant violators.
Sources on the list may be subject to any of a number of substantive
Agency policies;
. o Includes NSPS, NESHAP, and PSD ( Prevention of Significant
Deterioration requirements ) violators, and violators of Part D
nonattainment permitting requirements;
. o Includes SIP sources in secondary nonattainment areas as well as
primary nonattainment areas; and
. o Generally includes only Class A SIP violators that impact
nonattainment areas.
Post-1982 Enforcement Policy
o The sources subject to the Post-1982 Enforcement Policy are all
Class A SIP sources located in areas that are designated primary
nonattainment for one or more pollutants for which the emission
limitations are being violated (unless subject to an attainment date
later than December 31, 1982 ).
Thus, some degree of overlap exists between sources that meet the
significant violator definition and sources subject to the requirements of
the Agency's Post-1982 Enforcement Policy. However, they are distinct
universes that have been established to serve different purposes.
VOC sources are of concern because of their contribution to ozone
nonattainment areas, many of which will not be attained by the end of 1987.
For the next few years, efforts will be substantially increased to enforce
VOC control requirements due to the millions of people exposed to the health
effects of urban smog.
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In addition to the priorities set by the documents cited above, several
other aspects are important to note. The highest priority should be given
to any emergency episode that may arise as defined in Section 303 of the
Act. Expanded guidance for response under Section 303 was sent to Regional
Offices on September 15, 1983, and is included in the CAA Policy Compendium
at Section 303, Tab A. The essential point to note about this guidance is
that it urges a broader consideration of the use of Section 303 authority.
In the 1970s, emergency episodes ( and thus use of Section 303 ) were viewed
almost entirely in the context of high levels of criteria pollutants under
adverse meteorological conditions. This occurs only infrequently these
days, at least for pollutants associated primarily with stationary sources.
However, the public is increasingly aware of the serious threats presented
to public health by various toxic substances emitted to the air. EPA should
foster a broader awareness of the possible use of Section 303 as a mechanism
to address, in proper circumstances, the dangers presented by such
emissions.
Similarly, special note should be made of enforcement against violators of
hazardous air pollutant standards. This will consist primarily of continued
enforcement of vinyl chloride standards, asbestos demolition and renovation
standards, standards for volatile hazardous air pollutants ( benzene and
vinyl chloride ), and initial implementation of newly promulgated NESHAPs.
Finally, priority should be given to addressing violations of Section 114,
which sets out the Agency's information-gathering authority, because that
authority is so basic to EPA's ability to set and enforce the substantive
requirements called for by the Act.
Note that these priorities reflect considerations at the national level.
Obviously, conditions at the state and local levels vary widely. The
listing of these national priorities should in no way be interpreted as
condoning a failure to address other important air quality problems, such as
violating sources in attainment areas, to the extent consistent with other
priorities and available resources.
Responses to Noncompliance
When EPA or a state learns of a noncompliance problem with a source that
meets the "significant violator" definition, in most cases the source
immediately becomes subject to the enforcement time lines established in the
annual state-EPA agreements. These agreements establish time lines for when
action should be taken and define what is an acceptable action. If a state
takes the lead, EPA should understand what action the state is contemplating
and the timetable for the action so it can make a reasoned judgment on
deferral to the state. Monitoring of the state action is required under the
state-EPA agreements and should be done monthly. The state is allowed 120
days to bring a source into compliance or to take
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appropriate state action. The following are examples of acceptable actions:
. o Obtaining a legally enforceable state administrative or judicial
order that includes an expeditious compliance schedule and
appropriate civil penalties;
. o Referring a case to the state Attorney General's Office; or
. o Developing and scheduling for public hearing a proposed SIP revision
that has already been reviewed and found likely to be approved by
EPA regional staff.
If the state has not taken an acceptable enforcement action within 120 days,
EPA will issue a Notice of Violation ( NOV ) to position itself for
enforcement action. Should EPA take over the lead (or have the lead from
the onset), EPA must similarly take appropriate action within 120 days.
Appropriate action would mean (1) bringing the source into compliance; (2)
putting the source on a Section 113(a) order, a DCO, or a Notice of
Noncompliance under Section 120; or (3) referring a case to the Department
of Justice. Penalties must also be part of any action, where appropriate.
See the Guidance on Timely and Appropriate EPA/State Enforcement Response
for Significant Air Violators, issued June 28, 1984 and revised April 11,
1986 (located in the CAA Policy Compendium, General, Tab I and Tab Q).
Exhibit 5-1 provides a simplified flow diagram of the formal enforcement
process.
Section 114 Information Gathering
When a Regional Office decides to initiate an administrative or civil action
against a violating source, the Region frequently must initially obtain
information from the source that will support the enforcement action. EPA
may use its information-gathering authority under Section 114 of the Act to
require the source to provide the Agency with information concerning its
compliance status. Section 114 of the Act authorizes EPA to require sources
to establish and maintain records, install and use monitoring equipment,
perform emission tests, admit inspectors, and, in general, provide the
information EPA needs to determine whether the source is in compliance.
Once the response to the Section 114 letter is analyzed, an inspection of
the source to document the violation more thoroughly is often required.
Notice of Violation
To begin an administrative or civil enforcement action relating to a SIP
violation, EPA must issue a Notice of Violation ( NOV ) under Section 113(a)
of the Act. Once EPA has issued an NOV, the violator has 30 days to remedy
the violation. No prosecution can occur if the violating source comes into
compliance within the 30 days following the issuance of an NOV. Chapter Six
discusses NOVs in greater detail.
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EPA may use its information-gathering authority under Section 114 of the Act
to determine whether a violation continues to exist 30 days after the
issuance of an NOV. A follow-up inspection can be performed to document the
continuing violation where required. In addition, if the Section 113
conference with the source to discuss the NOV is held more than 30 days
after the issuance of the NOV, an admission from the source might be sought
at the conference. If a SIP violation persists beyond 30 days, EPA may
issue an administrative order under either Section 113(a) or Section 113(d)
or initiate a civil judicial action under Section 113(b).
An NOV is not required in cases of NSPS or NESHAP violations. EPA may issue
an administrative order or initiate a civil judicial action as soon as the
violation is discovered. In addition, for certain new source violations as
discussed below, an administrative order may be issued or judicial action
initiated under Section 167.
Immediate Compliance Orders Under Section 113(a)
A Section 113(a) order is an administrative enforcement mechanism that is
often effective in bringing a source into compliance quickly. It is most
effective where operation and maintenance problems exist. Reading Section
113(a) in conjunction with Section 110(i) and Section 113(d), it appears
that there are strict limits on the extent to which Section 113(a) orders
can be used for SIP violators. Thus, EPA has concluded that such orders
must require immediate compliance, defined as within 30 days of the
effective date of the order. This limit does not apply to NSPS and NESHAP
violators. For these sources, a longer period may be granted in a Section
113(a) order, but only when the need for additional time arises from
circumstances beyond the control of the source (i.e., force majeure
situations). These concepts are discussed in more detail in an April 30,
1982, memorandum from Kathleen Bennett to the Regional Administrators
entitled "Duration of Section 113(a) Orders" (see, CAA Policy Compendium,
Section 113, Tab O).
Section 167 and 113(a)(5) Orders
Another type of administrative enforcement mechanism is that used to halt
illegal construction of a new or modified source in violation of Part C
or Part D of the Act. For violations of the Prevention of Significant
Deterioration ( PSD ) requirements in Part C, the appropriate order to be
issued is one under Section 167. Such an order can be issued against:
. o A major emitting facility if it should have obtained a PSD permit
but has not;
. o A source being constructed or operated pursuant to a state-issued
PSD permit that conflicts with the requirements of the Clean Air
Act, implementing regulations, or approved SIP requirements; and
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. o A state, if EPA has delegated the PSD program to the state and the
state is about to issue a PSD permit EPA believes is inconsistent
with Part C or its implementing regulations.
Detailed guidance concerning the use of Section 167 was issued December 14,
1983, and is included in the CAA Policy Compendium at Section 167, Tab A.
For violations of the new source review requirements of Part D, an available
administrative enforcement mechanism is a Section 113(a)(5) order. This
section requires the Administrator to make a finding that a state is not
acting in compliance with the regulations referred to in Section 129(a)(1)
of the Clean Air Act Amendments of 1977 (the offset ruling) or any plan
provisions required by Section 110(a)(2)(I) and Part D. Once this finding
is made, EPA may issue an order under Section 113(a)(5) to a major source,
requiring it to refrain from or cease construction unless a valid permit is
obtained from the state.
Authority to issue Section 113(a) and Section 167 orders has been delegated
to Regional Administrators. Issuance of a Section 113(a)(5) or Section 167
order requires consultation with the Director, Stationary Source Compliance
Division, and the Associate Enforcement Counsel for Air Enforcement at EPA
Headquarters. Issuance of a Section 113(a) order other than under Section
113(a)(5) requires no consultation with Headquarters.
If a source does not obey a Section 113(a) or Section 167 order or if EPA
decides that a civil action is needed, the Agency may proceed in the courts
under either Section 167 or Section 113(b). EPA may ask for any necessary
injunctive relief under either section and, under Section 113(b), may seek
civil penalties of up to $25,000 per day of the violation. A Section 167
action, unlike one under Section 113(b), does not require a Notice of
Violation and documentation of a 30-day continuing violation.
Delayed Compliance Orders
Section 113(d) of the Act provides EPA and the states with another
administrative remedy, known as a Delayed Compliance Order ( DCO ). Under a
DCO, EPA or a state may establish a schedule that requires compliance no
later than three years after the source's SIP compliance date.
( State-issued DCOs to major sources require EPA approval to be effective as
a DCO ). A source that has been granted a DCO and that is in complian
ce with the terms of that order is not subject to further enforcement action
under Section 113 for violations during the period of the DCO. However,
major stationary sources can be required to pay a noncompliance penalty under
Section 120 (see below), notwithstanding the DCO.
Because of the three-year limit for a DCO previously noted, there are
relatively few sources eligible for DCOs for particulate matter or sulfur
dioxide emission limit violations. Most of those limits were accompanied by
SIP compliance deadlines more than three years past. Similarly, SIP
compliance deadlines passed more than three years ago for most sources
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subject to VOC regulations. However, in limited circumstances, some VOC
sources are eligible for DCOs due to SIP compliance deadlines in 1984 or
beyond.
Section 113(d)(4) and Section 113(d)(5) provide for two special types of
DCOs. Under Section 113(d)(4), a DCO may be issued to a source to foster
the development of innovative technology. Section 113(d)(5) allowed sources
burning oil or natural gas to convert to burning coal and delay compliance
with applicable SIP requirements until December 31, 1985.
Nonferrous smelter orders under Section 119 of the Clean Air Act are another
type of delayed compliance order. See Chapter Six for further discussion of
DCOs.
Before EPA issues a DCO, the source must meet the eligibility requirements
in Section 113(d) of the Act. States may also issue DCOs but, as previously
noted, any DCO issued to a major source requires EPA approval before it is
effective.
Guidance regarding DCOs appears in various Agency memoranda, the most
significant of which were compiled in an April 26, 1983, memorandum from
Kathleen Bennett and Courtney Price to the Regional Administrators and
Regional Counsels (see, CAA Policy Compendium, at Section 113, Tab T).
Regulations regarding the promulgation of DCOs and lists of all DCOs issued,
approved or disapproved by EPA are codified at 40 C.F.R. Part 65.
It should be clear from the description of the Agency's administrative order
authority that such orders are limited and cannot be used to address many of
the violations EPA faces. Therefore, many of the EPA enforcement actions
will come in the form of Section 120 proceedings (described next) or civil
actions filed in federal district courts.
Section 120 Penalties
In cases where a source is not in compliance with emission requirements, EPA
may also seek noncompliance penalties under Section 120 of the Act. (See
Chapter Eight). EPA may seek these penalties in addition to any relief
under Section 113 of the Act. Section 120 is designed to recapture, in an
administrative proceeding, the economic savings realized by sources in
violation of applicable emission limits. While Section 120 is, by its
terms, a penalty provision only, the prospect of a Section 120 penalty can
often serve as a useful stimulant to prompt a source to come into
compliance.
EPA initiates an action under Section 120 by issuing to the source a Notice
of Noncompliance ( NON ). Although adjudicatory hearings may occur before a
source must pay a penalty, the penalty starts to accrue from the date EPA
issued the Notice of Noncompliance. Consequently, it is often in the
source's best interest to achieve compliance expeditiously and not
frivolously use the administrative hearing process as a mechanism for
delaying achieving compliance.
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Section 306 List of Violating Facilities
One other possible sanction is the listing program under Section 306. It
enables EPA to prevent a violating source from receiving any federal
contracts, grants, or loans by placing it on the List of Violating
Facilities. This program is coordinated by the Legal Enforcement Policy
Division of the Office of Compliance Analysis and Program Operations in OECM
at EPA Headquarters. It is important to note that listing under Section 306
is mandatory for facilities that are the subjects of criminal convictions
where the underlying violations have not been corrected.
Section 306(c), as implemented by Executive Order 11738, authorizes EPA to
place a facility on the list of violating facilities when the Agency has
made a determination in an administrative proceeding called a "listing
proceeding" that there is a record of continuing or recurring noncompliance
with clean air standards at the facility. EPA regulations governing listing
proceedings are codified in 40 C.F.R. Part 15. Guidance on implementing the
mandatory listing program was issued on August 8, 1984. (See General
Enforcement Policy Compendium, No. GM-23. See also CAA Policy Compendium,
Section 306). Final guidance on implementing the discretionary listing
program was issued on November 26, 1986. The facilities listing program can
be an effective administrative tool to obtain compliance where other
administrative or judicial enforcement actions have failed.
Federal Facility Compliance
It should be noted that Section 118 of the CAA requires that federal
facilities shall be subject to and comply with all applicable federal and
state air pollution control requirements. As noted earlier, Class A federal
facilities that violate a SIP meet the definition of a significant violator.
EPA should respond promptly and vigorously to any violations under the same
priorities established in the state-EPA agreements for other sources, making
full use of the mechanisms of Executive Order 12088 and implementing
procedures established by the Agency's Office of Federal Activities. (See
General Enforcement Policy Compendium, No. GM-25 ). State and local
agencies are also encouraged to participate in the program to the maximum
extent possible.
Considerations in Selecting an Appropriate Response
This section discusses considerations in selecting the appropriate vehicle
for a federal enforcement response once the decision has been made that a
federal response is appropriate. It is not intended to be prescriptive in
nature, given that selection of a response must be based on a reasoned
evaluation of all the circumstances of the case.
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Criminal Actions Under Section 113(c)
As previously noted, the first judgment to be made is whether to pursue a
criminal action. While simultaneous civil and criminal actions are not
prohibited, they should generally be avoided.
Priorities for criminal enforcement should include the following:
. o Knowing violations of SIPs that result in, or threaten, significant
environmental contamination or human health hazard;
. o Knowing violations of NESHAP requirements; and
. o Falsification of records or tampering with monitoring devices that
have, or could be expected to have, a significant impact on EPA's
regulatory process or decisionmaking.
These priorities were set forth in an October 12, 1982, memorandum from
Robert Perry to Regional Counsels entitled "Criminal Enforcement Priorities
for the Environmental Protection Agency." (See General Enforcement Policy
Compendium, No. GM-14 ).
Two other areas also deserve serious consideration for criminal
investigation--criminal contempt for willful violations of civil consent
decrees (punishable under 18 U.S.C. Section 401(3)) and violations of
reporting requirements imposed by Section 114 letters.
Chapter Nine describes criminal actions in greater detail.
For the large majority of cases, a criminal action would not be an
appropriate response. Therefore, the other options detailed in the
preceding section should be considered.
In deciding between administrative orders and civil actions, judgments
should reflect a consideration of the likely effectiveness of each option
rather than artificial notions of "toughness." In the proper circumstances,
an administrative response can be as effective as a judicial one.
Use of Section 113(a) Orders
In considering the use of a Section 113(a) order, the major factor is
whether compliance can reasonably be required within 30 days. (Note that in
the case of an NSPS or NESHAP violation, this limitation does not apply if
the violation arises from a force majeure event).
In cases where compliance can be required within that period, a Section
113(a) order is often the best response since it can be issued simply and
quickly. However, a Section 113(a) order should normally be used only where
compliance with such order is expected.
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If it is felt that the source will not comply with the order, it probably
would be better to select another option. This is especially true if the
Regional Office believes that the source may attempt to challenge the order
in a Court of Appeals under Section 307(b)(1) as a final Agency action.
While EPA does not believe such a challenge can be made successfully,
actions that invite collateral lawsuits at the Court of Appeals level should
be avoided whenever possible.
Where a Section 113(a) order is not appropriate, the election generally will
be from among a DCO, a Section 120 action, and a civil action. (This, of
course, presumes that a DCO is available).
Use of Delayed Compliance Orders
If a DCO is available, its use by EPA is the most appropriate in cases where
a source requires additional time to comply due to an unforeseen inability
to comply and is acting in good faith to meet its emission requirements.
This is because EPA has not routinely sought to file a civil action for
penalties against a source being issued a DCO for the period before the DCO
is issued, although this is legally permissible. As noted in the July 27,
1978 guidance on use of Section 113 orders (included as part of the CAA
Policy Compendium, Section 113, Tab T):
The issuance of delayed compliance orders by either the States or
EPA is discretionary. In exercising its discretion, EPA will
consider any past compliance efforts and any prior State or
Federal enforcement actions involving the source. If, based on
these and other relevant factors, EPA determines that the source
is one with an egregious history of noncompliance, recalcitrance,
or environmental harm and/or that court supervision is likely to
be required in order to assure expeditious compliance, the source
will be considered an appropriate candidate for civil or criminal
action and no Federal delayed compliance order will be issued.
Consequently, there will be no category of cases involving a
federally issued delayed compliance order and a Federal court
action relating to the predelayed compliance order period. EPA
will continue to urge the State to adopt a similar approach in
exercising their discretion. However, EPA approval or disapproval
of a State delayed compliance order will be based on the statutory
criteria of Section 113(d). (pg. 5)
Another major factor in deciding whether to use a DCO is the policy that EPA
will not issue a DCO unless the source formally consents to its issuance.
The previously referenced July 27, 1978 guidance states:
A delayed compliance order will not be issued unless the source
indicates in writing (by signature of appropriate persons authorized
to agree for the source) that it will agree to comply with
the delayed compliance order. Source consent will be required for
all Federal delayed compliance orders and is recommended for
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State delayed compliance orders as well. However, a source's
agreement to comply is not precondition to EPA approval of a State
delayed compliance order. (pg. 7)
The purpose of this consent provision is to give greater assurance that the
source will comply and to minimize the possibility of a successful
collateral challenge under Section 307(b)(1).
Use of Section 120 Orders
As an alternative to or in conjunction with a DCO, a Section 120 action
should be considered. Because the amount of the Section 120 penalty is
directly related to the length of the period of noncompliance following the
issuance of a Notice of Noncompliance, it can serve as a powerful tool for
prompting source compliance. However, this requires a judgment on the part
of the Regional Office of how the source is likely to respond. Where the
source is not likely to respond positively, and injunctive relief will still
be required, it is preferable to avoid the use of Section 120 and go
directly to a Section 113(b) civil action for both injunctive relief and
civil penalties. In addition, because issuance of a Notice of Noncompliance
can lead very quickly to an adjudicatory hearing, a notice should not be
issued unless the Regional Office is prepared to proceed with such a
hearing.
One circumstance in which a Section 120 order can be particularly useful is
where the state has put the source on an acceptable schedule but has not
collected penalties where penalties would be appropriate. EPA could defer
to the state schedule in obtaining compliance and use the administrative
mechanism of Section 120 to address the penalty issue in lieu of bringing a
court action. In deciding between a Section 120 action and a court action,
practical considerations such as how crowded the court docket is, the
receptivity of the district court judges to environmental litigation, and
the readiness of the Regional Office to handle an almost immediate
adjudicatory hearing should be carefully weighed.
Chapter Eight describes the Section 120 authorities in greater detail.
Use of Section 113(b)
Civil actions under Section 113(b) are most advantageous in the following
situations:
. o A compliance schedule or other injunctive relief is necessary and an
administrative order is unavailable or inappropriate;
. o The compliance history of the source suggests that the schedule
should be subject to court supervision and contempt remedies; and
. o Substantial civil penalties for past violations are appropriate.
(Note that in most cases, maximum penalties under Section 113(b)
will be substantially greater than those under Section 120 because
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of the large per-day amount and because Section 120 penalties run
only from the date of the Notice of Noncompliance while Section
113(b) penalties are calculated back to the earliest date of
provable violation).
Chapter Seven describes the Section 113(b) authority in greater detail.
Ensuring Compliance with Response's Requirements
After federal enforcement actions are resolved, EPA Regional Offices have
the responsibility of monitoring the source's activities to ensure
compliance with the terms of any administrative or court order. The
Agency's Compliance Data System ( CDS ) has the capability of serving as a
tickler file for keeping track of interim and final compliance dates in
schedules. It is used by Regional Offices for this purpose. In addition, a
computerized system has been developed by the Agency's National Enforcement
Investigations Center ( NEIC ) for tracking court-ordered schedules.
Regional Offices must conduct monitoring activities for their schedules
sufficient to detect any failure to keep to the terms of the order. No
detailed guidance is being provided here for this given that Regional
Offices have extensive experience with schedule-tracking and because the
monitoring effort reflects a case-by-case evaluation of the schedule itself
and all the associated circumstances. When serious failures are detected,
taking remedial action should be a very high priority, second only to
emergency actions under Section 303. This is because such flouting of
environmental requirements tends to undermine the entire regulatory
framework, particularly if the violator is repeatedly unresponsive.
In order to enhance the enforceability of EPA's consent decrees, the Agency
has developed model consent decree provisions (see, General Enforcement
Policy Compendium GM-17 and GM-27 ). Some of the most important features to
be included are:
. o Various increments in compliance schedules, so that source progress
can be monitored. This avoids the situation of sudden discovery
that the source is far behind its schedule. These milestones should
be incorporated into CDS for easier tracking;
. o Reporting requirements, again to monitor source progress; and
. o Stipulated penalties, to provide an economic incentive for sources
to meet incremental dates, as well as the final compliance date in
the decree.
Post-settlement monitoring and enforcement is the topic of Chapter Ten.
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