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Clean Air Act Compliance / Enforcement Guidance Manual -- Chapter
Three
CHAPTER THREE
Compliance Monitoring Procedures.
Chapter Contents Page.
1 Introduction 3-1.
2 CAA Section 114 Requests for Information 3-3.
Purpose 3-3.
Exhibit 3-1: Model Section 114 Letter 3-4.
Exhibit 3-2: Model Section 114 Letter 3-5.
3 Inspections 3-7.
Authority 3-7.
Notice to State 3-8.
Levels of Inspection 3-8.
Elements of an Inspection for Levels 3 and 4 3-11.
4 Warrants 3-15.
Policy 3-15.
Securing and Serving an Administrative Warrant 3-17.
Exhibit 3-3: Model Application for Administrative
Warrant 3-19.
Exhibit 3-4: Model Affidavit in Support of
Application for an Administrative Warrant 3-20.
Exhibit 3-5: Model Administrative Warrant 3-22.
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CHAPTER THREE
1 Introduction.
Compliance monitoring is a term used to describe the means by which EPA
verifies conformance with statutory and regulatory requirements. In the
context of the Clean Air Act, Section 114 authorizes the Administrator or
authorized representatives to require any person who owns or operates any
emission source or who is subject to any requirement of the Act to:
o Establish and maintain records;
o Make reports;
o Install, use, and maintain monitoring equipment or methods;
o Sample emissions in accordance with EPA-prescribed locations,
intervals, and methods; and
o Provide such other information as may be required.
EPA's compliance monitoring activities vary widely from a letter requesting
information to a full-scale investigation, including onsite inspection and
sampling.
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CHAPTER THREE
2 CAA Section 114 Requests for Information
Purpose
A Section 114 request for information is one of EPA's chief sources of
information.
Section 114 letters serve the following purposes:
o To provide advance notification of an inspection;
o To obtain information when a full-scale, on-site inspection is not
cost effective;
o To facilitate the effectiveness of an inspection; and
o To eliminate the need for an inspection in some cases.
Section 114 letters typically request the following types of information:
o Raw materials, products, byproducts, production levels;
o Facility layout maps that identify process areas and emission
points;
o Flow diagrams for processes and emissions control;
o Description and design of pollution control equipment and normal
operating parameters;
o Recent self-monitoring reports;
o Description of self-monitoring equipment in use, normal operating
levels, and types of data produced by the equipment; and
o Copies of records that are required to be kept under an applicable
regulation.
Exhibit 3-1 is a model Section 114 letter aimed at facilitating an upcoming
scheduled inspection. Exhibit 3-2 is a model letter aimed at obtaining
compliance information.
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Model Section 114 Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Dear Mr./Ms. ______________________ :
The Environmental Protection Agency ( EPA ) will conduct an inspection of
your facility's premises/conveyance under the authority of Section 114
of the Clean Air Act ( 42 U.S.C. Section 7414 ) on _______________ . The
purpose of the inspection is to determine compliance with the requirements
of this Act applicable to the emissions within your facility's
premises/conveyance. The inspectors will review records, files, and
papers that are either required to be maintained by this Act or are
applicable to the emissions within your facility's premises/conveyance;
observe process operations; evaluate monitoring practices, equipment,
and sites; and collect environmental samples. In addition, the inspectors
may wish to take photographs of selected subjects.
Prior to arrival, the inspector(s) will require certain information; we
recognize that some of this material may have been submitted to EPA in
the past. If such is the case and that material is the most current
information, please simply refer to the title, date, and specific
recipient of such documents in your response to this request.
Please provide copies of the following information to EPA within twenty
days of receipt of this letter:
( List information requested ).
Pursuant to regulations appearing at 40 C.F.R. Part 2, Subpart B and
specifically Section 2.301, you are entitled to claim any or all the
information provided to EPA or collected by EPA during the inspection
as confidential business information. Such information can be disclosed by
EPA only in accordance with the procedures set forth in the regulations
( cited above ). Any such claim for confidentiality must conform to
the requirements set forth in 40 C.F.R. Section 2.203(b).
If you have any questions, please contact ___________________________ .
Thank you for your assistance in this matter.
Sincerely,
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Model Section 114 Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C. 20460
Mr. John R. Smith
Sulfur Power and Light Company
600 Main Street
Glen Dale, Delaware 19901
Dear Mr. Smith:
Under the provisions of the Clean Air Act, as amended, 42 U.S.C. Section
1957 et seq., the Administrator of the Environmental Protection Agency
approved portions of an implementation plan submitted by the State of
Delaware to attain national ambient air quality standards for sulfur
oxides within the Metropolitan Philadelphia Air Quality Control Region
( 40 C.F.R. Part 52, 37 Fed. Reg. 2581 ). Among the provisions so
approved is Delaware Regulation VIII for control of sulfur content of
fuels.
Pursuant to Section 114(a)(ii) of the Act ( 42 U.S.C. Section
1857c-9(a)(ii) ), to determine whether Sulfur Power and Light Company is in
violation of such provisions of the implementation plan, you are hereby
required, under authority of Section 114(a), to report the following
information with respect to the Sulfur Power and Light Company Plant in Glen
Dale, Delaware:
(1) Sulfur content of fuel used ( percent by weight )
(2) Sampling and analytical procedure used to determine sulfur
content of fuel
(3) Number of fuel-burning units
(4) Rated heat input capacity per unit
Under Section 113(a) of the Act ( 42 U.S.C. Section 1857c-8(a) ), failure to
provide the information required by this letter may result in an order
requiring compliance or in a civil action for appropriate relief. In
addition, Section 113(c)(1) of the Act ( 42 U.S.C. Section 1857c-8(c)(1) ),
any such order shall be punished by a fine of not more than $25,000 per day
of violation, or by imprisonment for not more than one year, or by both.
Finally, Section 113(c)(2) of the Act ( 42 U.S.C. Section 1857c-8(c)(2) )
provides that any person who knowingly makes any false statement in any
report required under the Act shall be punished upon conviction, by a
fine of not more than $10,000, or by imprisonment for not more than six
months, or by both.
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The information required by this letter shall be submitted no later
than 5 days after the date of its receipt. In addition, any change in
the information must be reported no later than 5 days after such change
occurs. This continuing requirement to provide notification of changes
in the information covered by this letter shall remain in effect until
expressly terminated in writing by this office.
If you have any questions concerning this matter, please contact _________
____________________ , at ( phone number ).
Regional Administrator
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CHAPTER THREE
3 Inspections
Authority
Section 114 of the Clean Air Act, authorizes the Administrator or authorized
representatives, upon presentation of credentials, to:
o Enter any premises where any required records are maintained;
o Have access to and copy records;
o Inspect any monitoring equipment or methods; and
o Sample any emissions.
Off-Site Inspections
EPA has authority to conduct unannounced, off-the-premises Clean Air Act
visible emission observations Air Pollution Variance Board v. Western
Alfalfa, 416 U.S. 861 ( 1974 ).
Authorized Representatives
EPA does not have the manpower resources to conduct all of the compliance
monitoring functions on its own. In order to carry out these functions, EPA
frequently hires private contractors to conduct on-site inspections and
sampling, among other things. EPA maintains that such contractors are
"authorized representatives" of the Administrator within the meaning of
Section 114. However, the courts have not unanimously upheld EPA's
position.
The U.S. Court of Appeals for the Ninth Circuit held, in Bunker Hill Co.
v. EPA, 658 F.2d 1280 ( 9th Cir. 1981 ), that EPA may designate contractors
as
authorized representatives of the Administrator under Section 114(a)(2).
Accord, In re Aluminum Co. of America, No. M-80-13 ( M.D.N.C. August 5,
1980 ). However, the U.S. Courts of Appeals for the Sixth Circuit in United
States v. Stauffer Chemical Co., 684 F.2d 1174 ( 6th Cir. 1982 ) and for the
Tenth Circuit in Stauffer Chemical Co. v. EPA, 647 F.2d 1075
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( 10th cir. 1981 ) have held that only EPA officers and employees are
authorized representatives.
Due to the split in the decisions, EPA developed the following policy:
o First, Second, Third, Fifth, Seventh, Eighth, Eleventh, and
District of Columbia Circuits. Contractors may be designated to
conduct inspections of facilities owned by anyone other than
Stauffer.
o Ninth Circuit. Contractors may be designated to conduct any
inspections.
o Sixth and Tenth Circuits. Absent express permission from
Headquarters, contractors should not be designated to conduct any
inspections.
When EPA conducts a compliance inspection to enforce any emission standard
or limitation that a state adopted as part of the state's implementation
plan or to enforce an emission standard or limitation contained in a delayed
compliance order issued by the state under Section 113(d), EPA must give the
state or local air pollution control agency reasonable prior notice of the
inspection. ( See Section 114(d)(1) ). State/EPA Memorandums of Agreement
should outline notification procedures. Additional guidance on Section
114(d) is available in the Policy Compendium at Section 114, Tab A.
There are five levels of EPA inspections.
Level 0
Level 0 consists of a determination of the continued operation of the source
and may not involve an on-site visit. It technically is not an inspection
and the Agency does not consider a Level 0 inspection to be an acceptable
compliance assurance method. A Level 0 inspection typically has been
characterized as a "drive-by" or "windshield" inspection.
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Level 1
Neither does the Agency consider a Level 1 inspection, in most cases, to be
a bonafide compliance inspection. A Level 1 inspection is an on-site
inspection that is usually limited to the evaluation of visible emissions
from process vents, fuel combustion sources, incinerators, and fugitive
emission sources. This type of inspection should only be used to enforce
opacity standards or particulate standards when a correlation between
opacity and mass emission rates has been established.
This inspection requires a minimum of time and manpower and places limited
regulatory pressure or involvement on the source. A level 1 inspection
should be restricted to sources where there is a minimum potential for
malfunction or excess emissions under nonrepresentative, operating
conditions.
Level 2
Level 2 is considered a compliance determining inspection in which current
control device and process operating conditions may be recorded as part of
the source evaluation in addition to visible emission observations. This
level of inspection, however, does not include the measurement of operating
conditions by the inspector or the completion of a detailed engineering
analysis. It does include a review of existing records and log books on
source operations, particularly for the intervening period following the
last inspection.
In a typical application, the inspector may record such process items as
feed rates, temperatures, raw material compositions, process rates, and such
control equipment performance parameters as water flow rates, water
pressure, static pressure drop, and electrostatic precipitator ( ESP ) power
levels. The inspector could then use these values to determine any
significant change since the last inspection or any process operations
outside normal or permitted conditions, particularly when coupled with the
aforementioned records check.
A significant change in operating conditions could require that the
inspector upgrade the inspection to a Level 3 or that a stack test be
conducted to verify compliance.
Level 3
Level 3, a thorough and time-consuming inspection, is designed to provide a
detailed engineering analysis of source compliance using measured operating
parameters such as pressure drop, fan static pressure and current, gas
stream temperature, ESP power levels, flue gas conditions, oxygen level, and
water flow rates. The measured data are reduced and used to calculate flue
gas volume, superficial velocity, specific collection area, inlet velocity,
air-to-cloth ratio, hood inlet volume and velocity, liquid-to-gas ratio,
throat velocity, etc. Because many of these are control device and
source specific, they must be adjusted to the individual source being
inspected.
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There are three major purposes for this type of inspection:
o To establish baseline operating conditions;
o To support case development activity; and
o To verify whether the source is experiencing O&M problems that
result in less than continuing compliance with the emission
standards.
The inspection may also include an internal inspection of the control
device. For fabric filters, an internal inspection is required to determine
bag condition or integrity of the baghouse. For scrubbers, an inspection of
the condition of the nozzles is required if the water flow rate or pressure
data indicate the possibility of pluggage. An internal inspection of ESPs
may be required if power data indicate a problem with ash buildup or plate
alignment. A periodic internal inspection of mechanical collectors is
required where the collection of abrasive dust is likely to cause abrasion-
induced failure.
Because this level of inspection requires the monitoring of equipment
conditions and, in some cases, an internal inspection, the inspector must be
sure that all safety requirements are met prior to entry. In all cases,
lockout procedures should be used and applicable safety equipment employed.
Level 4
The Level 4 inspection prepares an actual emissions baseline for the source
through the use of a stack test. This inspection requires that the
inspector monitor all process and control device operating parameters during
a stack test for use during future inspections. The Level 4 inspection is
typically applied to sources with ESPs or high-energy wet scrubbers. The
inspection may require documentation of control equipment conditions through
the use of an internal inspection before the stack test or a chemical
analysis of process material or fuel that is being burned ( e.g., percent
sulfur, percent ash, heat content, or percent moisture ).
The purpose of the increasing level of inspection is to concentrate the
resources on those sources that have the greatest potential to exceed the
emission limits. For instance, initial results of the Level 3 inspection
may indicate that specific sources are not experiencing deficiencies in
performance and, therefore, do not warrant a higher level of inspection. In
these cases, the frequency or level of inspection may be adjusted downward
consistent with the results of the Level 3 inspection.
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Generally, the elements of Level 3 or Level 4 inspections are: (1) pre-
inspection preparation, (2) entry, (3) opening conference, (4) sampling and
documentation, (5) closing conference, and (6) report preparation. Most of
these elements are common to all inspections, but the emphasis given to any
element will vary with the needs of the individual inspection.
Pre-Inspection Preparation
To ensure effective use of the inspector's time, the following procedures
are typically undertaken before beginning the inspection of a selected
facility:
o Establish inspection objectives;
o Establish the scope of the inspection;
o Prepare an inspection plan;
o Conduct a review of Agency records;
o Contact state/local agency for more recent source information;
o Prepare necessary documents; and
o Prepare sampling equipment and safety equipment.
Entry
In order to obtain actual physical entry to the premises, EPA employs the
following procedures for Clean Air Act purposes:
o Introduction;
o Presentation of official credentials;
o Management of denial of entry when necessary ( for entry/denial
procedures, see Warrants Section 2 of this chapter ).
Opening Conference
After entry, the inspector usually conducts an opening conference with the
facility management. During the opening conference, the inspector is
responsible for the following activities:
o Discussing the objectives and scope of the inspection ( for
announced inspections, this should be done before arrival );
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o Advising the plant manager of the right to request confidential
treatment of trade secret information pursuant to 40 C.F.R. Part 2;
o Providing information on the requirements of the CAA;
o Planning meetings with personnel and scheduling inspections of
various plant areas;
o Discussing plant safety requirements and emergency procedures; and
o Advising company officials of their right to sample emissions or to
conduct visible emission observations at the same time EPA does.
Sampling and Documentation
Reviewing facility records, taking samples, and preparing documentation are
the basic inspection activities. These activities provide the evidentiary
support the Agency uses in enforcement actions. The inspector's
responsibilities include:
o Identifying, locating, and inspecting records that are relevant to
the control of emissions;
o Preparing documentation of all inspection activities;
o Inspecting operating conditions associated with production
facilities, control equipment, and monitoring equipment;
o Taking photographs, if necessary;
o Taking necessary samples, sealing samples, and establishing chain-
of-custody;
o Taking visible emission samples; and
o Operating in a safe and efficient manner.
Closing Conference
The closing conference with facility officials enables the inspector to
prepare receipts and answer questions about the Act. At the closing
conference, the inspector "wraps up" the inspection by:
o Writing necessary receipts;
o Accepting the Declaration of Confidential Business Information ( 40
C.F.R. Section 2.203 );
o Advising that results of any analysis of samples will be furnished
to the facility; and
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o Discussing specific inspection findings ( i.e., factual observations
and measurements ). Conclusions should not be drawn until all
pertinent findings, data, and information are evaluated. At no
time should enforcement considerations be discussed.
Report Preparation
Inspection results are organized in a comprehensive, relevant, and accurate
report including:
o Inspection report forms;
o Narrative report; and
o Other documentary support.
In preparing the inspection report, CBI material preferably should be
referenced in a nonconfidential manner. ( As an alternative, the report
could include the confidential information; however, the entire inspection
report must then be treated as a confidential document ).
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