00/00/86
Clean Air Act Compliance / Enforcement Guidance Manual -- Chapter
Six: Administrative Enforcement Actions: Notice of Violation and
Administrative Orders
CHAPTER SIX
Administrative Enforcement Actions:
Notice of Violation and Administrative Orders
Chapter Contents Page.
1 Introduction 6-1.
2 Administrative Enforcement Procedures 6-3.
Notices of Violation 6-3.
Immediate Compliance Orders 6-8.
Delayed Compliance Orders 6-10.
Primary Nonferrous Smelter Orders 6-11.
Orders Under Section 167 to Major Emitting Facilities 6-11.
Orders Issued Pursuant to Section 303 Emergency Powers 6-12.
CAA Compliance/Enforcement 6-i Guidance Manual 1986
Chapter Six
1 Introduction
Sections 113(a), 113(d), 119, 167, and 303 of the Clean Air Act provide EPA
with an array of administrative enforcement mechanisms for dealing with both
special situations and relatively easily corrected violations. The
administrative order is frequently the most expeditious approach to
compliance. Generally, the Agency prefers the administrative order approach
for resolving a compliance problem to avoid the resource commitments of
litigation. Violators often prefer the administrative order approach to
avoid the stigma and potential penalties associated with being a federal
district court defendant. Administrative orders, however, cannot be
employed to resolve every type of violation.
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Chapter Six
2 Administrative Enforcement Procedures
Notices of Violation
Section 113(a)(1) provides:
Whenever, on the basis of any information available to
him, the Administrator finds that any person is in violation
of any requirement of an applicable implementation
plan, the Administrator shall notify the person in
violation of the plan and the State in which the plan
applies of such findings. If such violation extends
beyond the 30th day after the date of the Administrator's
notification, the Administrator may issue an order
requiring such person to comply with the requirements of
such plan or he may bring a civil action in accordance
with ( Section 113(b) ).
Purpose of the Notice of Violation
The Notice of Violation ( NOV ) serves several practical purposes in the
compliance and enforcement program, in addition to having legal significance
in certain cases. Because sometimes the owner/operator of a facility that
is in violation of an applicable requirement does not know that a violation
is occurring, an NOV may serve to draw the owner/operator's attention to the
problem.
In some cases, a facility owner/operator may ignore a violation because of
the cost associated with correcting the violation and the belief that "no
one will notice." Receipt of an NOV may persuade such an owner/operator to
reevaluate the situation and to rectify the problem.
In other cases, an owner/operator may wish to comply with the law but does
not know what the law requires. An NOV can serve to clarify the legal
obligations imposed by the Act. The NOV also notifies the state of the
problem, which may prompt the state to commence enforcement action.
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Finally, the NOV serves a critical legal function in that it is a procedural
prerequisite to issuing a Section 113(a) compliance order for SIP violations
and to establishing federal district court jurisdiction over SIP violations.
(Note that the procedural prerequisite applies only to SIP violations). The
issuance of an NOV serves as the starting point in the determination of when
a SIP violation "has continued beyond the 30th day."
Section 113(a)(3) permits orders and civil actions to remedy violations of
Sections 111, 112, and 114 based merely on "any information available" to
the Administrator (i.e., it does not require the issuance of an NOV nor does
it require that a violation continue beyond 30 days). Section 113(b), which
lists federal district court causes of action, refers to the NOV subsection
only in connection with SIP violations. Nevertheless, it is EPA practice to
issue some form of notice in all cases absent countervailing considerations.
One example of a countervailing consideration would be the need to take
immediate action to prevent continuing emissions of hazardous air pollutants
in quantities that pose a high risk to humans in a densely populated area.
Contents of an NOV
The statute does not set forth any specific requirements for the content of
an NOV. The Agency, however, has followed the practice of including the
following elements in most NOVs:
o Specific reference to the legal standard that has been violated.
Acceptable: Indiana APC-3 prohibiting emissions in excess of 40
percent opacity at any time, codified at ( cite to
regulation ).
Unacceptable: The visible emission standard.
o Specific reference to the source in violation of the standard.
Acceptable: "The combustion stack associated with Coke Battery
No. 1."
Unacceptable: "The combustion stack."
o The factual basis for the NOV, including the date, time, and
evidence of the violation.
Acceptable: "On the basis of opacity readings taken in
accordance with EPA Reference Method 9 ( 40 C.F.R.
Part 60, Appendix A ) between the hours of 3:00 and
3:50 p.m. on December 17, 1983, EPA observed 24
exceedances of the applicable standard ranging from
a low of 50 percent opacity to a high of 100
percent opacity, and an average opacity of 60
percent.
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Unacceptable: "Our recent inspection indicates persistent opacity
problems."
o An explanation of further administrative or judicial action that can
be taken if the source does not comply.
Acceptable: "Section 113(a) of the Clean Air Act permits EPA to
issue an administrative order requiring compliance
with applicable standards. In addition, Section
113(b) authorizes EPA to initiate a civil action in
U.S. district court for injunctive relief or to
recover a $25,000 civil penalty per day of
violation, or both, if the Administrator finds that
the violation has continued beyond the 30th day
after this notification. Moreover, Section 113(c)
authorizes the initiation of criminal prosecution
of knowing violations."
Unacceptable: "If EPA finds that this violation has continued
beyond the 30th day from this notification, EPA can
order you to comply or take you to court."
o An indication that (1) the source may confer with EPA officials
concerning the violations within 30 days of the notification; (2)
the source is entitled to the presence of an attorney if he or she
so desires; and (3) a tape recording of any such conference will be
made.
o The name, address, and telephone number of the EPA official to be
contacted concerning the scheduling of a conference.
o The signature of the properly delegated EPA official.
Many Regional offices have a standardized NOV.
Issuing the NOV
NOVs are issued under the signature of the director of the Regional Office
air program division after consultation with the Office of Regional Counsel
or by the Regional Administrator depending upon Regional Office practice.
The NOV is sent by certified mail, return receipt requested, or by personal
service (although the latter method is not the Agency's practice). Usually,
an NOV is issued to a corporation, so it is important that the NOV is
addressed to the appropriate company official. Normally, that official is
the president of the company, although sometimes it may be a plant manager
or an attorney.
Section 113(a)(1) requires that the state also be notified. In some cases,
a State/EPA Memorandum of Agreement may require state notification prior to
issuing the NOV. Section 113(a)(4) requires that, whenever an NOV or an
order is issued to a corporation under Section 113(a), a copy of the notice
or order shall be issued to "the appropriate corporate officers." (See CAA
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Policy Compendium, Section 113, Tab BB, for guidance on complying with the
notification requirements of Section 113(a)).
The issuance of the NOV should be duly noted in the Region's Compliance Data
System, as well as in the case file for the facility.
Issuance of an NOV: Mandatory or Discretionary?
Federal courts have not ruled consistently on the question of whether the
Section 113(a) phrase, "the Administrator shall notify the person in
violation," commands the issuance of an NOV or whether it is a discretionary
action.
EPA's interpretation of its authority has fared relatively well in the
courts. Courts interpreting Section 113(a) of the Clean Air Act (as amended
in 1977 ) agree that, whatever the case before 1977 (see Kentucky v.
Ruckelshaus, 362 F. Supp. 360 ( D. Ky. 1973 ), aff'd, 497 F.2d 1172 ( 6th
Cir. 1974 ), aff'd, 426 U.S. 167 ( 1976 )), EPA's duty to take enforcement
action is mandatory where it has first made a finding of a violation by a
major stationary source. (See, e.g., Council of Commuter Organizations v.
M.T.A., 683 F. 2d 663 ( 2d Cir. 1983 )). They differ as to whether EPA
must, upon learning of facts potentially indicative of violation, decide
whether a violation has in fact occurred. Such a finding is a statutory
prerequisite to the mandatory duty to enforce findings of violation. Section
113(a). Most courts, however, have agreed with the court in City of Seabrook
v. Costle, 659 F.2d 1371, reh. den. 665 F.2d 347 ( 5th Cir., 1981 ), which
held that EPA's duty to make such a finding was discretionary. Therefore,
the court held that Section 304 provided no basis for action to compel agency
action and suggested that EPA's exercise of that discretion might be entirely
unreviewable. 659 F.2d at 1374. The Seabrook court's holding follows the
pre-1977 (but still precedential) decision in New Mexico Citizens v. Train, 6
ERC 2061, 2065 ( D. N.M. 1974 ) and distinguishes the pre-1977 decision in
Wisconsin's Environmental Decade Inc. v. Wisconsin Power and Light Co., 395
F. Supp. 313 ( W.D. Wisc. 1975 ) ( holding that EPA's duty to make a finding
upon receipt of information is nondiscretionary ).
Courts have interpreted the Clean Water Act's duty to find a violation
similarly. The duty to take enforcement action upon a finding of violation
is clearly mandatory. South Carolina Wildlife Federation v. Alexander, 457
F. Supp. 118 ( D.S.C. 1978 ). The South Carolina court is one of the few
that have also held that the Administrator's duty to make a finding (one way
or another) was mandatory ("(T)o hold otherwise would vitiate the
( statutory ) scheme," 457 F. Supp. at 130. In so holding, the court was
clearly influenced by the decision in Wisconsin's Environmental Decade,
supra, 457 F. Supp. at 132. Illinois v. Hoffman, 425 F. Supp. 71 ( S.D.
Ill. 1977 ); U.S. v. Phelps Dodge Corp., 391 F. Supp. 1181 ( D. Ariz.
1975 ). Several courts have held, however that the duty to find a violation
is not mandatory: e.g., Sierra Club v. Train, 557 F.2d 485 ( 5th Cir. 1977 )
(discussed by the South Carolina court) and Cladwell v. Gurley Roofing Co.,
533 F. Supp. 252 ( E.D. Ark. 1982 ).
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The decisions that found EPA's duty to make a compliance finding
discretionary ( Seabrook, Sierra Club ) rest on the Agency's need to
maintain control over limited enforcement resources in the face of the
impossibility of "full enforcement." Courts have usually considered a task's
"impossibility" a reason for withholding the equitable remedy otherwise
available for Agency failures to execute mandatory duties. See, e.g.,
Alabama Power Co. v. Costle, 636 F.2d 323 ( D.C. Cir., 1979 ); N.R.D.C. v.
Train, 510 F.2d 692 ( D.C. Cir., 1975 ); South Carolina Wildlife
Federation v. Alexander, 457 F. Supp. 118 ( D.S.C. 1978 ); Sierra Club v.
Gorsuch, 551 F. Supp. 785 ( N.D. Calif. 1982 ); New York v. Gorsuch, 55 4 F.
Supp. 1060 ( S.D. N.Y. 1983 ).
NOV: Final Agency Action?
As will be discussed in Chapter Seven, civil judicial enforcement actions
are conducted in the federal district courts.
In order to resolve civil judicial enforcement actions swiftly, it is
important for the government to avoid collateral attacks to the civil action
in a different court. In other words, an enforcement action is most
efficiently resolved if all of its elements are litigated in the district
court. To establish grounds for collateral attack, some recipients of NOVs
have sought review of the notice in the U.S. Circuit Court of Appeals on the
theory that the NOV is a "final agency action." Section 307(b)(1) provides
for appeals court review of "final agency action." EPA has consistently
maintained that the NOV is not a final agency action.
Fortunately, the weight of the authority on this issue has favored the
government's reading of the statute (i.e., that an NOV is not a final Agency
action and is only reviewable as one element of the merits of an enforcement
action in the U.S. District Court ). In Union Electric Co. v. EPA, 593 F.2d
299 ( 8th Cir. 1979 ), the court held that an NOV is a procedural
prerequisite to an abatement order and not reviewable on a motion for a
temporary stay of enforcement. Accord, Bethlehem Steel Co. v. EPA, No.
81-1855 ( 7th Cir. 1981 ). Earlier, the Third Circuit held, inter alia,
that the issuance of an NOV is not a final Agency action since it may or may
not be followed by a compliance order or a civil action. West Penn Power Co.
v. Train, 552 F.2d 302 ( 3d Cir. 1975 ).
EPA strenuously argues against the holding of one district court opinion.
In Chrysler Corporation v. EPA No. I.P. 77-371-C ( S.D. Ind. 1979 ), the
district court held that the NOV to Chrysler was reviewable as a final
Agency action on the "purely legal question" of the applicability of
regulations to the source. The court ruled that the district court has
jurisdiction under 28 U.S.C. Section 1331 (i.e., "federal question"
jurisdiction ). See also Philadelphia Electric Co. v. Costle No. 78-4170
( E.D. P. December 27, 1978 ).
Note that the Chrysler and the Philadelphia Electric courts reviewed only
legal issues but not the facts underlying the NOV. Review of the facts
underlying the NOV is appropriate only in conjunction with review of the
merits of the enforcement action.
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Follow-up to NOV
In West Penn Power Co. v. Train, 552 F. 2d 302 ( 3d Cir. 1975 ), the Third
Circuit held that the decision to enforce an NOV is discretionary and hence
not open for review under the Administrative Procedure Act, 5 USC Section
701(a)(2). Presumably, this holding would prevent a citizen suit under
Section 304 of the Act to require EPA to enforce an NOV. Citizens cannot
obtain judicial relief under Section 304 to require the Agency to perform a
discretionary duty (see Chapter Eleven).
Immediate Compliance Orders
Section 113(a) authorizes the Administrator to issue compliance orders in
the following types of situations:
SIP Violations. Section 113(a)(1) authorizes the issuance of an order "to
comply with the requirements" of the SIP. The prerequisites to the issuance
to this type of order are:
o An NOV was issued previously; and
o The violation has continued beyond the 30th day following the
issuance of the NOV.
An immediate compliance order does not become effective until the recipient
has had an opportunity to confer with the Agency concerning the violation.
( Section 113(a)(4) ). The state must also be notified.
NSPS Violations. Section 113(a)(3) authorizes the issuance of a compliance
order for violations of Section 111(e), which prohibits operation of NSPS
sources in violation of the applicable standard of performance. "Standard
of performance" is defined in Section 302(1) of the Act and includes the
requirement of continuous emission reduction, as well as operation and
maintenance requirements associated with continuous emission reduction.
Other NSPS requirements (such as performance testing, monitoring, and
recordkeeping) can be enforced by an order issued under this subsection but
the order should cite them as violations of Section 114 as well as Section
111(e).
Unlike orders issued under Section 113(a)(1), orders under this subsection
do not require the prerequisite NOV, notification of the state, or a 30-day
continuing violation. However, it does require that an opportunity for
conference be extended before the order becomes effective.
NESHAPs Violations. Section 113(a)(3) also authorizes the issuance of an
immediate compliance order to remedy violations of Section 112(c). Section
112(c) is limited to violations of emission standards and prohibits
construction of new sources and modifications to existing sources that would
violate emission standards when operated. Section 113(a)(4) expressly
exempts EPA from extending the opportunity for a conference in these cases.
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Inspections, Monitoring, and Entry Requirement Violations. Section
113(a)(3) authorizes the issuance of an immediate compliance order for
violations of "any requirement" of Section 114 of the Act. Because of the
relatively minor problems associated with Section 114 violations, Section
113(a)(3) is often employed to achieve compliance in this area. The statute
does not require that an NOV have been issued previously, that the state
have been previously informed, or that the violation have continued for 30
days. The opportunity to confer concerning the violation, however, does
apply.
Enforcement of Construction Bans in Nonattainment Areas. Section 113(a)(5)
authorizes the issuance of an immediate compliance order banning
construction or modification of a major stationary source in any
nonattainment area if the Administrator has first found that the state in
which such source is located is not acting in accordance with Sections
110(a)(2)(I) or Part D. Prior issuance of an NOV, prior notification of the
state, and a 30-day continuing violation are not prerequisites. The
opportunity for conference with EPA concerning the ban, however, is required
by Section 113(a)(4).
Contents of Immediate Compliance Orders
The statute sets forth minimum requirements for immediate compliance orders.
Section 113(a)(4) provides that any order issued under Section 113(a) shall:
o State, with reasonable specificity, the nature of the violation; and
o Specify a reasonable time for compliance that takes into account the
seriousness of the violation and any good faith efforts on the part
of the respondent to comply.
In addition to the statutory requirements, immediate compliance orders
should specify an EPA official to be contacted for scheduling a conference
and should be signed by the properly delegated official. The conference
must occur within 30 days from issuance of the order. A record of the
proceedings during the conference is always made; an attorney may be present
and the respondent may submit supplementary explanatory information.
The requirement that the conference occur within 30 days of issuance of the
immediate compliance order stems from the nature of the order, (i.e., the
orders are essentially "immediate" compliance orders). EPA has determined
that compliance no later than 30 days from the effective date of the order
is tantamount to immediate compliance. However, Section 113(a)(3) orders
for NSPS or NESHAPs violations can specify a reasonable time for achieving
compliance beyond 30 days when the need for additional time arises from
circumstances beyond the control of the source. (See, CAA Policy Compendium,
Section 113, Tab 0).
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Uses of Section 113(a) Orders
Because of their short duration, immediate compliance orders cannot be used
to resolve all violations. Air pollution control, particularly from large
industrial sources such as power plants and steel facilities, requires
substantial time to achieve. A company must draw up engineering plans,
negotiate contracts with the supplier of the control equipment, await
manufacture and delivery of the equipment, construct associated
structures,prepare the site at the source, install the equipment, and
finally fine tune the equipment prior to demonstrating compliance. Because
this process may take a year or more, violations of this type are never
resolved by Section 113(a) compliance orders. Instead, those situations are
typically addressed by civil judicial action in accordance with Section
113(b) (see Chapter Seven) or by a delayed compliance order (see below).
Many pollution problems, however, are remedied without the use of
time-consuming activities. In many of these situations, immediate
compliance orders are more attractive than civil litigation. Violations
frequently occur because the pollution control equipment in current use is
poorly maintained or improperly operated. This type of problem can be
easily remedied. (For example, the efficiency of one type of particulate
control equipment, electrostatic precipitators, is dependent upon how clean
the collection plate is kept. An appropriate use of administrative
enforcement would be to order the plant operator to clean the collection
plate).
Another example of when an immediate compliance order may be appropriate is
when a company fails to file a required report or to conduct a required
performance test.
Delayed Compliance Orders
Section 113(d) authorizes the issuance of delayed compliance orders ( DCOs )
that essentially act as a limited extension from air pollution control
deadlines. Only an extension of the legally applicable compliance date is
permitted by these orders.
Section 302(o) provides the following definition:
The term "delayed compliance order" means an order
issued by the State or by the Administrator to an
existing stationary source, postponing the date required
under an applicable implementation plan for compliance
by such source with any requirement of such plan.
Note that either a state or the EPA may issue a DCO and that only existing
sources are eligible. When a state issues a DCO, Section 113(d)(2) requires
EPA approval. A DCO for a major source becomes effective upon publication
in the Federal Register whether it is issued by the state or the federal
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government ( see 40 C.F.R. Section 65.06 ). A state-issued order to a
nonmajor source is effective unless disapproved by the Administrator in
accordance with Section 113(d)(2) ( see 40 C.F.R. Section 65.03(b) ).
There are two types of delayed compliance orders still available:
o Section 113(d)(1): The "inability to comply" order; and
o Section 113(d)(4): The "new technology/technique" order (commonly
called the "innovative technology" order).
The time limits have expired for the Section 113(d)(3) "replacement,
complete change in operation or shutdown" order and the Section 113(d)(5)
"coal conversion" order. Extensive detailed guidance on DCOs is available
in the CAA Policy Compendium, Section 113, at Tabs D, E, G, I, T, and U.
The guidance under Tab T should be referred to first as it provides an
overview of the statutory requirements and a description of EPA procedures.
Effect of DCO
An EPA-approved state-issued DCO becomes part of the SIP ( 40 C.F.R. Section
65.03(a)(1) ). Insofar as the source complies with the provisions of the
DCO, the order precludes enforcement under Section 113 or by citizens
whether the DCO is an EPA-approved state order or a federal DCO ( 40 C.F.R.
Section 65.03(a)(2) and 65.03(d) ). In addition, the recipients of
Sections 113(d)(4) and 113(d)(5) orders are insulated from the duty to
pay a Section 120 noncompliance penalty ( Section 120(a)(2)(B); Cf., 40
C.F.R. Section 65.09(a)(3)). An EPA-issued DCO precludes citizen suits
but does not preclude state action on the underlying requirement.
Primary Nonferrous Smelter Orders
Section 119 authorizes the issuance of an order to a qualifying primary
smelter that, in effect, permits delayed compliance with the applicable SO2
requirements of the SIP until no later than January 1, 1988. ( See 40
C.F.R. Part 57 ).
Orders Under Section 167 to Major Emitting Facilities
In Chapter One, we discussed the basic concepts and terminology associated
with Part C, which provides for the prevention of significant deterioration
of air quality ( PSD ). We noted that PSD regulations apply to "major
emitting facilities," a critical term defined by the statute and
interpreted in the landmark case of Alabama Power Co., et al. v. Costle,
636 F.2d 323 ( D.C. Cir. 1979 ). We also noted that the backbone of the PSD
program is
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the preconstruction review and the permitting process to ensure protection
of the PSD increments.
Section 167 provides that the "Administrator shall, and a State may" issue
an order to "prevent the construction of a major emitting facility" that:
. o Does not conform to the requirements of Part C; or
. o Is proposed to be constructed in any attainment area or
unclassifiable area and is not subject to a SIP that meets the
requirements of Part C.
Thus, a Section 167 order would be an appropriate response against a major
emitting facility if:
. o It should have obtained a PSD permit but has not done so;
. o It is constructing in violation of a valid permit;
. o It is constructing pursuant to a state-issued permit that is
invalid; or
. o It is operating in violation of a permit.
Detailed guidance on the use of Section 167 authorities is included in the
CAA Policy Compendium at Section 167, Tab A.
Orders Issued Pursuant to Section 303 Emergency Powers
Section 303 authorizes the Administrator to initiate civil action in the
U.S. District Court to immediately restrain any person "causing or
contributing to" pollution that is "presenting an imminent and substantial
endangerment" to human health. The Administrator is also authorized to
issue "such orders as may be necessary to protect the health of persons who
are, or may be, affected by such pollution source (or sources)."
Section 303 orders can be employed only if all of the following conditions,
in addition to the "imminent and substantial endangerment" provision, are
present:
. o It is not practicable to assure prompt protection of the public
health solely by commencement of a civil action;
. o The state or local authorities have not acted to abate the sources;
and
. o The state and local authorities have been consulted in order to
confirm the correctness of the information on which the order would
be based and to ascertain the actions that those authorities are, or
will be, taking.
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The term "imminent and substantial endangerment" is not defined in the Act
nor has a court interpreted the standard in the context of Section 303.
However, similar provisions in other environmental statutes have been
interpreted by the courts. A detailed discussion of these cases and their
potential application to Section 303 is one aspect of the detailed guidance
on the use of emergency powers available in the CAA Policy Compendium,
Section 303, Tab A. In addition, specific operating guidance for Section
303 is contained in the Air Pollution Emergency Response Manual issued in
July 1983.
Duration of Section 303 Orders
An order under this section is effective for only 24 hours. However, if the
Administrator also initiates an injunctive action in U.S. District Court
alleging an imminent and substantial endangerment, the order is effective
for 48 hours. In addition, the court may authorize an even longer period.
Failure To Comply With Section 303 Order
Willful and nonintentional violations of Section 303 orders are treated in
the same manner. Violations, failure to comply, and refusal to comply are
all subject to daily $5,000 fines. (Compare, Sections 113(b) and (c) with
Section 303(b) ).
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