12/31/87
Guidance on Evaluating Clean Air Act Enforcement of State
Implementation Plan Violations Involving Proposed State Revisions
December 31 1987
MEMORANDUM
SUBJECT: Guidance on Evaluating Clean Air Act Enforcement of State
Implementation Plan Violations Involving Proposed State Revisions
FROM: Michael S. Alushin
Associate Enforcement Counsel for Air
Office of Enforcement and Compliance Monitoring
John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: See Below
In light of the Fifth Circuit's decision in American Cyanamid which
interpreted State Implementation Plan ( "SIP" ) revision processing
requirements, we are providing some criteria for you to consider when
deciding on appropriate enforcement responses where SIP revisions are
pending. This guidance also suggests how the Regions should apply the
criteria in developing enforcement cases. Some of the criteria involve a
straightforward application of facts; other criteria involve the application
of variable equitable considerations to the unique circumstances of each
case. We have attached a case evaluation form for your assessment of each
case. The format is designed to allow us to assess national trends in SIP
revisions. Please evaluate the facts of individual cases based on the
criteria, then complete and include the form with all litigation reports in
SIP enforcement cases.
Background
Section 110 of the Clean Air Act requires each state to prepare a SIP
for the attainment and maintenance of National Ambient Air Quality
Standards, and to submit the SIP to EPA for approval. The Administrator is
required by Section 110(a)(2) to act on initial submissions within four
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months. Section 110(a)(3) provides the procedure for EPA action on SIP
revisions, but has no similar explicit deadline for EPA action. As
discussed more fully below, three federal circuit courts have concluded that
the four-month deadline applicable to initial SIP submissions impliedly
applies to SIP revisions. The Sixth Circuit has suggested that this time
limitation does not apply to SIP revisions.
The Act also authorizes the Administrator to initiate enforcement
proceedings against any person in violation of any requirement of an
applicable SIP, i.e., the implementation plan, or the most recent revision
thereto, which has been approved by EPA. Two federal circuit courts have
limited Section 120 enforcement when final EPA action on a SIP revision has
been pending for more than four months. However, the Northern District of
California held that it lacked subject matter jurisdiction and refused to
rescind notices of violation although SIP revision had been pending at EPA
for more than four months.
EPA currently reviews approximately 150 to 200 SIP revisions each
calendar year. The review of each of these revisions routinely requires
more than four months to complete. Under EPA's current workload model, a
final SIP revision decision is scheduled to be published within 14 months of
submission. In fact, however, less than 50% of these revisions are
processed within fourteen months, and some revisions have taken four to five
years to process. Although delays have often resulted from the submission
by states of incomplete SIP revision packages, internal delays at EPA also
effect the timing. Additionally, OMB review of proposals to disapprove
submitted revisions may cause further delays in the process.
We recently evaluated the extent to which pending SIP revisions are
affecting enforcement. In a preliminary July, 1987 survey of active civil
judicial SIP actions ( i.e., cases which had been referred and filed other
than those where a consent decree had been entered by a court ), 44 of the
81 cases were found to be affected by SIP revisions pending at EPA or
revisions promulgated by states pursuant to alleged generic SIP revision
authority and not submitted for EPA review. The numbers may change with
further investigation of the circumstances pertaining to each revision, but
it seems that a substantial proportion of the cases are affected.
Even if EPA takes administrative steps to streamline and further
standardize the SIP review process, or if Congress passes legislation
extending the current statutory time period, cases will continue to be
affected by pending SIP revisions. The Agency's workload can be expected to
increase as a result of contemplated SIP calls for ozone nonattainment
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areas, new SIPs resulting form NAAQS revisions ( e.g., PM 10 ), and SIP
revisions contemplated by proposed legislation. In addition, SIP revisions
can be expected to increase as a defensive strategy to side-track
enforcement in light of recent adverse judicial interpretation. Therefore,
addressing proposed SIP revisions and the SIP revision process will become
important considerations in pending and future air enforcement cases.
Judicial Interpretation of the SIP Revisions Procedure
Some courts have considered the SIP revision procedures and, in some
instances, also have considered whether SIP revision timing affects
enforcement. These judicial determinations should be considered by a Region
during an evaluation of a case prior to its referral. The following
judicial decisions have addressed the issue of the SIP revision procedure.
In Duquesne Light Co. v. EPA, 698 F.2d 456 ( D.C. Cir. 1983 ), the D.C.
Circuit held that SIP revisions must be acted upon by the Administrator
within four months and that Section 120 administrative penalties may be
assessed but collection would be "held in abeyance" for the period beyond
the four month deadline. If EPA disapproves the proposed revision, it may
collect the penalty from the date of the deadline, with interest.
The Fifth Circuit refused to adopt the D.C. Circuit Court rule regarding
the effect of delay past four months in a Section 120 proceeding. In
American Cyanamid Co. v. EPA, 810 F.2d 493, 500 ( 5th Cir. 1987 ), the Fifth
Circuit Court of Appeals held that EPA may not collect Section 120
administrative penalties for violations of an applicable SIP during the
period "between 1) four months after a state submits and 2) the date EPA
rejects the revision." The court also held that EPA may not "commence" a
Section 120 proceeding to collect the economic benefit of noncompliance with
the applicable SIP, other than to issue a notice of noncompliance, once four
months have passed without EPA action on a pending revision. After EPA
ultimately rejects a proposed revision, it may commence a Section 120
proceeding. The court stated that it had not prohibited EPA from collecting
noncompliance penalties from the date of a notice of noncompliance until
four months after the state submitted a proposed SIP revision and then
resuming noncompliance penalties for the period after EPA rejected the
State's proposed revision. Neither Duquesne Light Co. v. EPA, supra nor
American Cyanamid Co. v. EPA, supra pertained to an injunctive action.
In Council of Commuter Organizations v. Gorsuch, 683 F.2d 648 ( 2nd Cir.
1982 ) and Council of Commuter Organizations v. Thomas, 799 F.2d 879 ( 2nd
Cir. 1986 ) the Second Circuit Court of Appeals used the four-month
requirement for review of initial SIPs as an analogy and stated that EPA was
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required to approve or disapprove SIP revisions within four months. The
Second Circuit did not, however, discuss whether the pendency of a SIP
revision for more than four months impinges on EPA's authority to enforce a
provision of the applicable SIP. Instead the court stated that the
appropriate remedy for requiring an EPA decision within four months was a
citizen's suit.
In United States v. National Steel Corp., 767 F.2d 1176 ( 6th Cir. 1985
), the Sixth Circuit accepted EPA's interpretation that the four month rule
in the Act applies only to EPA review of general state plans and not to
revisions.
In Dunn-Edwards v. Thomas, C.A. No. C-87-3157 MHP ( N.D. Cal. August 4,
1987 ), the Northern District of California noted in dictum that there was
no express statutory deadline for EPA action on SIP revisions. The Court
did not decide whether EPA delays impinged on Section 113 enforcement. It
distinguished American Cyanamid and Duquesne Light as involving penalty
assessments pursuant to Section 120 rather than Section 113. The court
dismissed an action by paint manufactures to enjoin EPA from taking initial
steps pursuant to Section 113 to enforce a SIP where a proposed revision had
been pending at EPA for more than four months. Although the court did not
decide whether the pendency of the SIP revision for more than four months
would bar issuance of a Section 113(a) administrative order or initiation of
a Section 113(b) judicial enforcement action, the Court refused to "rescind"
the Notices of violation which EPA issued to the companies.
Many courts which have not directly addressed the deadline issue have
held or stated in dicta that revisions to SIPs are ineffective without EPA
approval. See Train v. NRDC, 421 U.S. 60, 92 (1975) ( "This litigation,
however, is carried out on the polluter's time not the public's, for during
( the pendency of a SIP revision ) the original regulations remain in
effect, and the polluter's failure to comply may subject him to a variety of
enforcement procedures." ); NRDC v. EPA, 507 F.2d 905, 915 ( 9th Cir. 1974 )
( "...until any variance is sanctioned by the EPA, any source operating in
contravention of a state implementation plan that has been approved by that
Agency is subject to forced compliance at the instance of the EPA." );
Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511
F.2d 809, 813 ( D.C. Cir. 1985 ) ( "A requirement of EPA approval prior to
effectuation of any proposed revision is thus essential to prevent critical
irreparable delays which the Administrator is not empowered to authorize
under the less rigorous revision provision or which do not meet the
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standards for revision." ); Getty Oil Co. ( Eastern Operations ) v.
Ruckelshaus, 342 F. Supp. 1006 ( D. Del. 1972 ), rem'd on other grounds 467
F.2d 349 ( 3d Cir. 1972 ); United States v. Wheeling-Pittsburgh Steel, 818
F.2d 1077 ( 3d Cir. 1987 ) ( pending bubble application at a state agency is
not effective until approved by the state agency and EPA and cannot be a
basis for extending compliance schedule in consent decree ); United States
v. Ford Motor Co., 814 F.2d 1099, 1103 ( 6th Cir. 1987 ) ( "the original
emission limit remains fully enforceable until a revision or variance is
approved by both the State and EPA" ); Ohio Environmental Council v. U.S.
District Court., 565 F.2d 393, 398 ( 6th Cir. 1977 ) ( "If a plan became
unenforceable every time such a revision became a possibility, the entire
enforcement procedure of the Clean Air Act would be crippled." ) United
States v. West Penn Power Co., 460 F. Supp. 1305 ( W.D. Pa. 1978 ).
Analysis of Cases Affected by SIP Revisions
We have outlined some factors for you to consider in your evaluation of
a case involving a SIP revision. Some of these factors allow an easy
decision by you; others require a balancing of equitable considerations
applicable to the specific case. These factors should be considered as you
determine whether or not to refer a civil action.
1. SIP revision approval is likely.
If a Region expects to approve a pending SIP revision which would
authorize the source's existing operations, there is very little likelihood
that a court would either order compliance with more stringent existing
limits or assess substantial penalties for emissions unless the defendant
exceeds the limits allowed in the revised SIP. Therefore, it is unlikely
that a complaint would be filed as a result of a referral seeking either
injunctive relief or penalties in this situation. Enforcement resources
would be better directed to other cases.
2. Fifth Circuit cases.
The Court of Appeals decision in American Cyanamid was not appealed.
Therefore, enforcement actions against sources located within the Fifth
Circuit's jurisdiction should be pursued only in factually different
circumstances. The Region should not seek Section 120 penalties in
administrative or judicial proceedings until EPA has published at least one
final disapproval of a SIP revision in the Federal Register. However, if
Section 120 enforcement is being delayed by successive proposed revisions,
it can proceed after denying the first revision. The successive submittals
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would be a new problem not addressed by the court. A Region might also
refer cases based upon other factors not adversely decided in American
Cyanamid; and it might refer cases for Section 113 proceedings, which,
unlike Section 120, allow consideration of equitable factors in the
assessment of penalties. We urge you to consult with the Air Enforcement
Division and Department of Justice attorneys as Fifth Circuit cases are
considered for referral.
3. No Compliance with Proposed SIP Revision.
If the source has not materially complied with the proposed SIP
revision, the case is a reasonable candidate for referral even before the
Region acts on a pending SIP revision. A court may be persuaded that
penalties are appropriate. The appropriate injunctive relief should be
analyzed in the litigation report with modifications to be determined at the
time of settlement or judicial decision.
4. No Proposed Revision Submitted to EPA.
Where federal approval of a SIP revision is required and the state has
not submitted a proposed SIP revision, e.g., a non-generic bubble, than
there is no reason to delay enforcement. 1/
1/ EPA ought to inform both the State and the affected source for source-
specific revisions that EPA believes the SIP revision requires formal
Federal approval, where there is a defensible legal basis for EPA's
position.
Conversely, if the source complies with a generic bubble which has been
approved by the State, and EPA agrees that the state's bubble approval
authority is generic, no enforcement action should be undertaken. If EPA
has not received a formal SIP revision submittal because the State is still
processing the proposal or an incomplete submittal was returned to the
State, the case may be referred for enforcement. 2/
2/ Where EPA has received only an informational package, the Region ought
to notify immediately the state and the affected source ( in the case of
a source specific proposal ) that the package is not a formal submittal,
and that enforcement action may be commenced against the source.
The litigation report should discuss any known pending state action on a SIP
revision if the matter otherwise merits such action.
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5. SIP Revision Disapproval by Region.
As we discussed in earlier sections, several courts have indicated that
EPA should act on pending SIP changes before enforcing SIP standard. Other
courts have recognized that proposed changes should not thwart enforcement
of existing regulations. In order to present a reasonable position on this
issue, recommend that the Region conduct a thorough analysis of any SIP
revision pending at EPA. The Regional Administrator should formally act on
a submittal by signing the proposed decision before referring a case for
enforcement. Regions should take steps to ensure that a SIP revision is
reviewed on its merits and independent of potential enforcement
considerations.
If the Region decides to recommend disapproval of the package, the
analysis supporting that position could increase the prospects for a
successful enforcement action. Thus, a referral should not be made until
after the Regional Administrator acts on the package proposing disapproval.
We recommend that the Regional SIP staff coordinate with the appropriate
Headquarters offices to make sure all issues are properly analyzed before
taking action on a denial package subject to Headquarters approval. The
referral can be made after the Regional decision if there is no required
Headquarters review, or after an informal approval if Headquarters review is
necessary.
6. Equitable Considerations.
Equitable considerations bear on the decision to refer an enforcement
action when a SIP revision is pending with the Region. Since no court has
held that EPA should be barred from seeking injunctive relief when a SIP
revision is pending, it may, in appropriate circumstances, be desirable to
refer an action for injunctive relief. For example, if imminent and
substantial endangerment to health exists in any jurisdiction, including the
Fifth Circuit, enforcement should be undertaken regardless of the status of
the SIP revision.
Additional equitable factors which bear on the decision to refer a case
include the actual SIP revision review period, the timing of the SIP
revision submittal in relation to any preliminary enforcement procedures (
i.e., whether the submittal appears to be a dilatory tactic ), the source's
ability to comply with the applicable SIP without great expense and
difficulty, and the cooperation of the source in providing accurate
information and endeavoring to comply with air requirements. Many of the
above factors may pertain to a case. You should evaluate all of these
factors and the source's willingness to negotiate in assessing the
appropriate enforcement action. We also recommend that you consult with the
Air Enforcement Division and Department of Justice before referring a case
based only on these equitable factors.
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Other Considerations
In order to assess a case for referral, the Regional attorneys will have
to consult with the Region's SIP analysts. We recommend that your contacts
be undertaken with an awareness of the Seventh Circuit decision in Bethlehem
Steel Corp. v. EPA, 638 F.2d 994 ( 7th Cir. 1980 ).
The Case Evaluation Sheet with definitions of its data points has been
provided to assist you in ensuring that the relevant information has been
obtained for your evaluation. This data will be used for national
evaluation of all SIP enforcement cases. We therefore ask that you complete
the evaluation form for all SIP enforcement actions regardless of whether a
revision is pending at the time of referral.
Summary
In summary, we recommend that enforcement be initiated when 1) the
source is not in compliance with the pending SIP revision, 2) no SIP
revision has been submitted to EPA, 3) the Region has recommended
disapproval of the SIP revision proposal ( except for equitable
considerations mandate action. We recommend that a Region concentrate on
these cases rather than cases where a SIP revision approval is likely, or
where the merits of the SIP revision have not been addressed by the Region.
Our staff will be available to discuss specific cases with you. We
appreciate your assistance in considering these additional factors in your
case evaluation. Please conduct us, or Elizabeth A. Edmonds, Air
Enforcement Division, FTS 382-4577, if you have any questions regarding this
policy.
Attachment
Addressees:
Regional Counsels
Regions I-X
Regional Counsel Air Contacts
Regions I-X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
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Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Alan Eckert
Office of General Counsel
David Buente, Chief
Environmental Enforcement Section
Department of Justice
Robert Van Heuvelen, Assistant Chief
Environmental Enforcement Section
U.S. Department of Justice
CASE EVALUATION FORM FOR STATE IMPLEMENTATION PLAN (SIP) CASES
1. SOURCE NAME: ___________________________________________________
2. SOURCE LOCATION: _______________________________________________
3. REGION: _____________________________
4. FEDERAL COURT: CIRCUIT ________________ DISTRICT ____________
SIP REVISION
5. HAS A PROPOSED SIP REVISION BEEN SUBMITTED TO EPA? ____________
6. IF NOT, A) DOES THE REGION BELIEVE THAT THE STATE HAS GENERIC AUTHORITY
TO APPROVE THE TYPE OF REVISION AT ISSUE */ __________________
*/ If the answer is yes, no further questions should be answered. If the
answer is no, no further questions should be answered after 6B.
B) DOES THE STATE BELIEVE THAT IT HAS GENERIC AUTHORITY TO APPROVE THE
TYPE OF REVISION AT ISSUE?
7. IF A SIP REVISION HAS BEEN RECEIVED BY EPA, IS IT A FORMAL
SUBMITTAL? _____________ OR IS IT INFORMATIONAL? _____________
8. IF IT IS A FORMAL SUBMITTAL, HAS THE DETERMINATION OF COMPLETENESS BEEN
MADE? _____________
9. IF COMPLETE, PROVIDE DATE RECEIVED. ______________
10. IF INCOMPLETE, A) WAS IT RETURNED TO THE STATE? ____________
DATE RETURNED: ___________ B) WAS A NOTICE OF DISAPPROVAL, BASED ON
INCOMPLETE SUBMITTAL, PUBLISHED IN THE FEDERAL REGISTER? _______
DATE PUBLISHED: ______________
11. IS SIP REVISION APPROVAL LIKELY?
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12. DOES THE SOURCE COMPLY WITH THE PROPOSED SIP REVISION? __________
13. STATUS OF SIP REVISION SUBMITTED TO EPA:
STATUS OUTCOME DATE
______ _______ ____
( Approval/Disapproval)
PROPOSAL TO HQ ________________ _________________
PROPOSAL TO OMB ________________ _________________
PROPOSAL PUBLISHED ________________ _________________
FINAL TO REGION ________________ _________________
FINAL TO HQ ________________ _________________
FINAL TO OMB ________________ _________________
FINAL PUBLISHED _______________ _________________
ENFORCEMENT
14. DATE (S) RECEIVED VIOLATION INFORMATION: ______________________
AND TYPES OF INFORMATION RECEIVED: _____________________________
15. DATE(S) OF NOTICE(S) OF VIOLATION: _____________________________
DATE(S) OF NOTICE(S) OF NONCOMPLIANCE: _________________________
EQUITABLE CONSIDERATIONS
16. WHAT RELIEF DOES EPA SEEK? _____________________________________
PENALTY: ________________ INJUNCTIVE RELIEF: _______________
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17. IS THERE AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO PUBLIC
HEALTH? _______________________
DESCRIBE: ______________________________________________________
18. POLLUTION INFORMATION:
(a) MAJOR SOURCE: ____________________________________
(b) VOLUME OF EMISSIONS: (i) ACTUAL EMISSIONS: ______________ TPY
(ii) EMISSIONS LIMITATION: ___________ TPY
(c) TYPE OF POLLUTANT: _______________________________________
(d) EXTENT OF VIOLATION: (i) ACTUAL EMISSIONS: ______________
(ii) EMISSION LIMITATION: ___________
(e) NONATTAINMENT AREA: _________________________
(f) EXTENSION AREA: _____________________________
19. ESTIMATE COST OF COMPLIANCE OPTIONS: __________________________
20. COOPERATION BY THE SOURCE
(a) IS SOURCE IN COMPLIANCE WITH EXISTING SIP? ________________
(b) IS SOURCE SEEKING ALTERNATIVE MEANS OF RESOLVING THE
NONCOMPLIANCE? _________________________________
21. OTHER RELEVANT FACTORS: ________________________________________
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DEFINITIONS FOR CASE EVALUATION FORM FOR SIP CASES
1. Name of company/entity violating the Clean Air Act.
2. City, County and State where source is located.
3. EPA Region
4. ( See attached list of Circuit Courts )
SIP REVISION
5-12. Self-explanatory
13. Indicate whether the revision has been formally recommended for
approval or disapproval and the date of the decision or
publication.
ENFORCEMENT
14. List dates EPA received information of violation(s) and indicate
whether information was provided by the source or an air pollution
control agency, or as a result of an inspection by EPA.
15. Self-explanatory.
EQUITABLE CONSIDERATIONS
16-17. Self-explanatory.
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POLLUTION INFORMATION
18(a) A class A Source; including Class A1: Any stationary source
whose actual or potential emissions while operating at design
capacity equal at least 100 tons per year, and Class A2: Any
stationary source whose uncontrolled emissions while operating
at design capacity are at least 100 tons per year of any
regulated pollutant.
(b)(i). Annual tons per year of a regulated pollutant actually emitted
by the source
(ii). Annual tons per year of a regulated pollutant, permitted by
applicable SIP
(c). Self-explanatory
(d)(i). Actual measurement of emission level of regulated pollutant.
eg. ________ pounds per gallon excluding water, of VOCs
(ii). SIP authorized limit of emission level of regulated pollutant.
(e). An area which as calculated by air quality modeling exceeds
any national ambient air quality standard for an air
pollutant.
(f). Is the source located in a nonattainment area which has an
extension until December 31, 1987, to attain the national
primary standard for photochemical oxidants and/or carbon
monoxide?
19-21. Self-explanatory.
28 U.S.C.
Section 41. Number and composition of circuits
The thirteen judicial circuits of the United States are constituted
as follows:
Circuits Composition
District of Columbia ..................District of Columbia.
First .................................Maine, Massachusetts, New Hampshire,
Puerto Rico, Rhode Island.
Second ................................Connecticut, New York, Vermont.
Third .................................Delaware, New Jersey, Pennsylvania,
Virgin Islands.
Fourth ................................Maryland, North Carolina, South
Carolina, Virginia, West Virginia.
Fifth .................................District of the Canal Zone,
Louisiana, Mississippi, Texas.
Sixth .................................Kentucky, Michigan, Ohio, Tennessee.
Seventh ...............................Illinois, Indiana, Wisconsin.
Eighth ................................Arkansas, Iowa, Minnesota, Missouri,
Nebraska, North Dakota, South Dakota.
Ninth .................................Alaska, Arizona, California, Idaho,
Montana, Nevada, Oregon, Washington,
Guam, Hawaii.
Tenth .................................Colorado, Kansas, New Mexico,
Oklahoma, Utah, Wyoming.
Eleventh ..............................Alabama, Florida, Georgia
Federal ...............................All Federal judicial districts.
( As amended Oct, 31, 1951, c. 655, Section 34, 65 Stat. 728; Oct. 14, 1980,
Pub.L. 96-452, section 2, 94 Stat. 1994; Apr. 2, 1982, Pub.L. 97-164, Title
I, Section 101, 96 Stat. 25. )
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