02/07/92
Issuance of Guidance on the "Timely and Appropriate Enforcement
Response to Significant Air Pollution Violators"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
SUBJECT: Issuance of Guidance on the "Timely and Appropriate Enforcement
Response to Significant Air Pollution Violators"
FROM: /s/ Illegible, for
John S. Seitz, Director
Office of Air Quality Planning & Standards
/s/ Robert Van Huevelen
Acting Director of Civil Enforcement
TO: Air, Pesticides and Toxics Management Division Directors
Regions I and IV
Air and Waste Management Division Director
Region II
Air, Radiation and Toxics Division Director
Region III
Air and Radiation Division Director
Region V
Air, Pesticides and Toxics Division Director
Region VI
Air and Toxics Division Directors
Regions VII, VIII, IX and X
Regional Counsels
Regions I - X
In June of 1989, the Agency recognized the need for making a
substantial revision to the Agency's Significant Violator and Timely and
Appropriate Guidances. A workgroup was formed consisting of Branch Chiefs
from Regions II, III, V, VII, and IX and representatives from SSCD and AED
to develop a revised guidance document ( Attachment I ). The Penalties
Section, which establishes a new standard for Federal overfiling, was
developed by the State / Federal Penalties Workgroup chaired by the Air
Enforcement Division ( AED ) with representatives from STAPPA / ALAPCO and
EPA Regions and Headquarters. This document has been
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thoroughly reviewed and commented upon by representatives of other
Regional Offices, STAPPA and ALAPCO. A summary of these comments and
responses is presented in Attachment II.
The subject guidance supersedes and consolidates previous Clean
Air Act guidance related to Significant Violators ( SVs ), Timely and
Appropriate ( T&A ), and Federally Reportable Violations ( FRV ).
Specifically, this document supersedes all previous guidances on the three
subjects.
This guidance applies to all "major" ( as defined by the CAAA )
stationary sources of air pollution which are in violation of a Federally
-enforceable regulation. Note that a revision of the definition of SV
was necessitated by the new emphasis placed by the CAAA upon continuous
compliance by all major sources. Thus the new SV universe includes all of
the present significant violators and other environmentally significant
violators of concern to the EPA or State agencies. 1/
1/ "State" as used throughout this paper also refers to local agencies
where they have enforcement authority.
We recognize that this may represent a substantial increase in the
number of SVs over the number that would have resulted from the previous
definition of Significant Violator, but this revision was necessary to
address significant air quality concerns of the new Act.
This guidance is being revised largely to encourage a greater degree
of team-building and cooperative resolution of Significant Violators by
all responsible agencies, to encourage agencies to give priority attention
to those violators which they believe are most environmentally important,
and to permit an increased degree of agency flexibility in identifying and
resolving SVs.
This guidance is designed to foster the development of a more complete
and accurate compliance picture, regardless of the short-term resource
implications. It is EPA's position that by portraying a more complete and
accurate compliance picture, agencies will be more likely to address the
most environmentally important violators first, and will have a better
opportunity to receive appropriate resources to complete the task.
Further, this guidance has been revised to more accurately reflect
the time and resources necessary to bring major sources into a state of
continuous compliance. To that end, the timeline for addressing a SV has
been lengthened by 30 days ( to 150 days ), and an optional prioritization
procedure has been added to help agencies focus their resources upon the
most environmentally
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significant SVs. A prioritization procedure must be used in all instances
where an agency is unable to address all of its SVs in a "timely and
appropriate" manner, and at any other times when it so chooses. The
Agency recognizes that some of the highest priority SVs may require
substantially more time and resources to resolve than a routine SV.
Situations where this guidance will not be met should be noted
qualitatively in the routine quarterly reports to EPA Headquarters.
This guidance, by agreement of the parties, will be implemented
starting at the beginning of the third quarter of FY 1992. During the
remainder of the first and second quarters, each agency should compare all
of the currently outstanding SVs ( not including any SVs for which the
agency has already initiated action ) with this revised guidance. On the
basis of this review, each agency should report a "revised SV list" to
SSCD, and revise its AFS database accordingly.
Please feel free to contact John Rasnic of the Stationary Source
Compliance Division or Michael Alushin of the Air Enforcement Division if
you have any questions or comments on this document. John may be reached
at (703) 308-8600 commercial or FTS 678-8600. Mike may be reached at FTS
260-2820.
Attachments
ATTACHMENT I
GUIDANCE ON THE TIMELY AND APPROPRIATE ( T&A ) ENFORCEMENT RESPONSE
TO SIGNIFICANT AIR POLLUTION VIOLATORS ( SVs )
I. SCOPE AND SUMMARY OF GUIDANCE
A. Applicability
This guidance supersedes and consolidates previous guidance documents
related to Significant Violators ( SV ), Timely and Appropriate ( T&A ),
and Federally Reportable Violations ( FRV ). Specifically, this document
supersedes the following guidance documents: (1) Definition of SV
Contained in "EPA Accountability System -- OANR Policy Guidance", dated
December 29, 1981; (2) "Significant Violators", dated June 24, 1982; (3)
"Definition of Significant Violator for PM10", dated September 23, 1988;
(4) "Timely and Appropriate Enforcement Response Guidance", dated April
11, 1986; and (5) "Guidance on Federally-Reportable Violations for
Stationary Air Sources", dated April 11, 1986.
B. Summary of Guidance
This guidance applies to all "major" ( as defined by the Clean Air Act
Amendments of 1990 ( CAAA ) ) stationary sources of air pollution which
are in violation of a Federally-enforceable regulation. Note that the
guidance also applies to emergency episodes or sources which construct
without a valid permit. However, the timelines for resolution of such
violations are substantially shorter than specified in this document.
Similarly, this guidance applies to violators of asbestos demolition and
renovation ( D&R ) regulations. However, the specific definition of SV,
prioritization criteria and timelines for resolution of such violations
will be found in a future Attachment to be incorporated into this
document.
Once a violator is detected, the agencies shall take the following
five actions:
1. The "finding" agency shall determine whether or not the
source is a Significant Violator.
2. A NOV / FOV shall be issued ( preferably by the State ) to
each SV within 45 days of such determination. 1/
1/ "State" as used throughout this paper also refers to local agencies
where they have enforcement authority.
3. The EPA and State shall jointly determine which has the
initial lead in addressing the SV.
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4. The lead agency shall routinely address each SV as it is
identified. However, if the agency is unable or unwilling to do
so in a manner consistent with the timelines section of this
guidance, the lead agency shall use the following optional
approach. It shall first prioritize all of the SVs as outlined
in Appendix A prior to initiating action against the highest
priority SV. ( However, to the extent the available timeframe
for using Administrative Penalty authority is running out for a
particular SV, the EPA may move against that SV in order to
avail itself of the advantages of an administrative action. )
5. EPA shall add the newly designated SV to the SV list.
This guidance recognizes the importance of addressing the significance
of penalties when resolving SV cases. Consistent with the recommendations
from the "State / Federal Penalties Workgroup", EPA expects that agencies
will obtain an "appropriate" penalty ( including one to offset the
source's economic gain ) whenever it resolves a SV.
C. General Information about the Guidance
1. While EPA expects that States will address violations of air
pollution regulations within their jurisdictions, except for non
-delegated Federal standards, by focusing on a limited group
of violators ( e.g., those targeted by this guidance ), this
guidance is not intended to detract from the importance of
addressing other violators and the right and responsibilities of
the States and EPA for doing so.
2. This guidance articulates the mutual expectations of the
respective parties of the Federal - State partnership in the
enforcement of air pollution control requirements for stationary
sources. It is fully expected that this guidance will be
modified and expanded in future years to reflect experiences in
its implementation and the evolution of the air program itself.
3. In accordance with the Deputy Administrator's memorandum
of April 9, 1984 on Forging an Effective State / Federal
Enforcement Relationship, this national guidance will serve as
the framework for State specific agreements reflecting the
parties' mutual expectations. As that memorandum states, "the
Regions will have to accommodate differences among States, for
example, where their administrative procedures require different
timelines of enforcement action."
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II. PHILOSOPHY OF GUIDANCE - DEFINITION OF SV
Agency Significant Violator activities shall be designed to identify
and to expeditiously return to compliance those violating sources which
the agency believes are environmentally most important, namely the SVs.
Although this guidance requires agencies to address all Significant
Violators, EPA recognizes that agencies may be unable to address all of
them immediately. Each agency shall return all SVs to compliance in
accordance with the Timely and Appropriate section of this guidance.
Optionally the agency may utilize a quantitative targeting and
prioritization procedure ( similar to the one shown in Appendix A )
whenever there are more SVs than there are resources available to address
them consistent with the T&A section of this guidance.
A. Definition of a Significant Violator ( SV )
Agencies shall deem a source to be a Significant Violator if it is:
1. A "Major" source ( as defined by the CAAA, except for
asbestos D&R NESHAP ), and it violates any one or more of the
following:
a. SIP emission, monitoring or substantial procedural
requirements, regardless of pollutant designation status.
b. NSPS emission, monitoring or substantial procedural
requirements.
c. NESHAP emission, monitoring or substantial procedural
requirements for existing NESHAP standards and promulgated
MACT requirements.
d. SIP, NSPS or NESHAP emission, procedural or monitoring
requirements violated repeatedly or chronically ( e.g.,
exceeds emission limit or gets no continuous monitoring
data for 5% or more of the time in a calendar quarter ).
e. Any provision of a Federal Consent Decree or Federal
Administrative Order.
f. Any substantive provision of a State Judicial Order or
a State Administrative Order which was issued for an
underlying SIP violation.
g. Any requirement of Part C or Part D of Title I of the
CAAA ( e.g., new construction of a major source, major
modification of a major source ).
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2. Any synthetic minor source, and it is in violation of any
one or more of the following:
a. Avoiding PSD while violating an emission limit or
permit condition which affects the PSD status.
b. Exceeding its permitted emission standard above the
amount that would classify the source as a nonattainment
area major source.
With respect to emergency episodes or sources which construct without
a valid PSD or Part D permit ( where one is required ), the timelines
delineated below do not pertain. In the case of emergency episodes, the
seriousness of the violation would normally require expedited action. In
the case of a source constructed without a required PSD or Part D permit,
options for obtaining relief may be foreclosed by allowing the source to
continue to construct and, therefore, expedited action may be essential.
III. PROCESSING OF SIGNIFICANT VIOLATORS
A. Agency Communications Concerning SVs
As soon as possible ( at least within one month ) after an agency
initially detects a violation at a potential significant violator, that
agency shall communicate the compliance status of that source to all other
agencies which are responsible for bringing and maintaining that source
into continuous compliance ( e.g., State to EPA, or EPA to State ). Such
communications shall be performed to:
1. Develop and maintain a common, agreed upon list of SVs;
2. Determine, on a case by case basis, which agency is best
suited to take the initial lead in addressing this SV; 2/
2/ Determining which agency will "take the initial lead" should be
through mutual agreement between the agencies, on a case-by-case
basis. Examples of the criteria which may be used in making the
determination include, but are not limited to: agency authority and
policies, particularly with respect to penalties; agency expertise
with the specific process, controls, or monitors; whether or not
the violator's characteristics meet those highlighted by a national
/ State "initiative"; and availability of resources. Normally the
State agency will be given the initial lead.
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3. Ensure that the SVs are returned to compliance, consistent
with the T&A section of this guidance; and
4. Foster a cooperative "team-building" spirit among all of the
involved agencies.
B. Processing of Significant Violators
Once a violation is detected, the agencies shall take the following
five actions:
1. The "finding" agency shall compare the source's
characteristics with the definition of SV contained in this
guidance. To the extent that the violator fits one or more of
the elements of the definition, it shall be designated as a
"Significant Violator" and is subject to the Timely and
Appropriate section of this guidance.
2. Within forty five (45) days after designation of the
violator as a SV, a NOV or FOV shall be issued ( by the State
preferably ) to each SV, regardless of which agency has the
lead.
3. The State agency and the EPA Regional Office shall jointly
decide which agency will take the lead in resolving the SV.
4. As resources become available, the lead agency shall
routinely address each SV as its is identified. However, if it
is unable or unwilling to do so in a manner consistent with the
T&A section of this guidance, the lead agency shall use the
following optional approach. It shall first prioritize all of
the SVs prior to initiating action against the highest priority
SV. The agency shall use a prioritization procedure similar to
the "Table of Criteria and Environmental Weighting Factors"
( Appendix A ) to determine its priority relative to other
outstanding SVs. As resources become available, the highest
priority ( at that time ) SV shall be addressed. Once the
agency initiates any type of enforcement activity related to a
SV, it shall not interrupt this activity, even if a higher
ranked SV is subsequently identified. Note that the
prioritization step is not related to EPA assumption of
responsibility for a State's SV; it is simply a means of
ensuring that the most environmentally important SVs are
addressed in a timely and appropriate manner.
5. EPA shall add the source to its SV list for agency tracking
and reporting.
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C. EPA Maintains Enforcement Authority
The Clean Air Act vests responsibility for enforcement of the law in
EPA. Therefore, EPA may move independently with respect to designation of
a violator as a "Significant Violator", and EPA shall assume the lead in
cases when it becomes apparent that the State is unable or unwilling to
act in accordance with this guidance to resolve a violation in a timely
and appropriate manner.
IV. T&A TIMELINES FOR ENFORCEMENT ACTION
All SVs, except emergency episodes and sources which construct without
a valid PSD or Part D permit ( where one is required ), are subject to the
following timelines and penalty requirements ( see section V below ). The
timeline for enforcement actions is generally the same for significant
violators discovered by EPA as for those discovered by a State, regardless
of which agency takes the initial lead. The only exception is for the
unusual situation in which EPA assumes the lead from a State. If EPA does
take over the lead, it receives up to an additional 100 days to address
the SV. 3/
3/ This guidance provides EPA Regional Offices up to 100 additional days
to address a SV after it assumes the lead from a State. It should not
need 150 days like it would in a normal situation. This is based upon
the assumptions that EPA has closely tracked the State enforcement
activity and data gathering, and will be able to rely upon the fact
that the State's NOV started the penalty clock. ( As stipulated in
the CAAA of 1990, taking formal action, e.g., issuing an NOV / FOV,
shifts the burden of proof of continuous compliance to the source, and
"starts the penalty clock". )
A separate ( new ) timeline will be established for any additional
violations discovered at an existing SV before it has been fully resolved.
A. Day Zero
The clock starts ( i.e., day zero ) 30 days after the discovering
agency first receives information concerning a Federally enforceable
violation ( e.g., date of inspection, stack test or continuous emission
monitoring system report ). If, during this 30-day period, the
enforcement agency decides that additional monitoring or analysis is
required to determine or confirm the violation, the clock does not start
until the earlier of the date of receipt of such additional data or on the
90th day after the
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violation was initially discovered. This additional period ( up to 60
days ) provides sufficient time for agency evaluation of the data to
determine if a Federally enforceable violation occurred.
B. Day 45 - Routine Issuance of NOV / FOV and EPA Tracking
Unless the State agency requests that EPA issue the notice, by Day
45 the State agency shall routinely issue a NOV ( if required for SIP
sources ), or a FOV ( for non SIP sources ) to the source. 4/
4/ "Routine issuance of a NOV / FOV" is required here because this
starts the penalty clock against the violator, and shifts the burden
of proof, to demonstrate continuous compliance, to the source, ( 42
USC Section 7413(e)(2) ).
If the State has not taken such action, EPA shall immediately issue an
appropriate notice. 5/
5/ "Routine EPA issuance of a NOV / FOV" is specified here, not as an
indication, in any way, that State agencies are incapable of getting
the job done. This requirement is placed upon EPA Regional Offices
because it has been noted that many sources do not seriously work to
resolve their violations until after EPA puts them on formal notice
and starts the penalty clock.
Any EPA-issued NOV or FOV, in a case where the State has the lead,
will indicate that EPA is still looking to the State to resolve the
matter, and further EPA action will be required only in the absence of an
acceptable, prompt resolution by the State.
The issuing office will transmit a copy of any NOVs or FOVs it issues
to other agencies in whose jurisdiction the source is located. If the
violation clearly impacts upon the air quality of an adjacent State, EPA
will also transmit a copy of the NOV or FOV to that State as well.
Also, EPA should add this source to its list of SVs for Agency
tracking and reporting purposes.
C. Day 90 - Possible EPA Case Action
If the State has the initial lead, and none of the actions specified
in E (below) have occurred by Day 90, EPA will discuss with the State the
status of the State's actions and its expectations. If discussions with
the State suggest that the State is close to addressing or resolving the
violation or that further deferral is otherwise appropriate, EPA will
continue to defer to enable the State to complete its action. If EPA
determines that further deferral is not justified, it will proceed with
its own action at this point.
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D. EPA Responsibilities After It Assumes the Lead
After EPA assumes the lead in a case, it will have up to an additional
100 days to get the source into compliance, onto a schedule, issue a
Section 113(a) administrative order ( including administrative remedies ),
a Section 113(d) administrative enforcement action, or subject the source
to a Section 120 action or judicial referral. EPA will encourage
continued State participation even in situations where EPA takes over the
lead. The possibility of a joint action should be considered as an
alternative to a unilateral EPA action where feasible.
E. Day 150 ( no lead change ), or Day 190 ( lead change )
By Day 150 ( or 190 with lead change ), the source shall either be in
compliance ( RESOLVED ), or ADDRESSED i.e., on a legally-enforceable and
expeditious administrative or judicial order, or be subject to a referral
to the ( State ) attorney general or ( Federal ) Department of Justice for
an adjudicatory enforcement hearing or judicial action.
F. Resolved versus Addressed
As indicated above, the term RESOLVED shall mean that the source is
returned to COMPLIANCE. Thus after the case has been addressed as per
Part E (above), EPA and the State will continue to track the source. Note
that the source remains on the SV list ( but not carried in STARS ) until
it is returned to compliance ( RESOLVED ). Follow-up may be required in
one of the following outcomes once the case has been addressed: if a
schedule is established, the State will monitor compliance with that
schedule and report on progress in accordance with established reporting
requirements; if a referral is made, EPA will continue to monitor the
progress of the case to and after filing; and if a case becomes unduly
delayed, EPA will discuss this with the State and may choose to initiate a
parallel Federal action. No formal timelines are being established for
this stage of the enforcement process, however.
V. PENALTIES
EPA's national goal is to have all federal, State and local
enforcement actions for Clean Air Act violations assess a penalty
sufficient to achieve effective deterrence for the source subject to
enforcement and for the regulated community as a whole. EPA assesses
penalties in federal Clean Air Act actions pursuant to the Clean Air Act
Stationary Source Civil Penalty Policy. Under the EPA penalty policy,
both the economic benefit of noncompliance and a gravity component
reflecting the seriousness of the violation are calculated. This
calculated penalty may then be adjusted where appropriate for several
factors including the
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risks involved in litigating the enforcement action and the violator's
ability to pay a penalty.
All State and local agency enforcement actions should also assess
civil penalties of sufficient magnitude to maintain a credible deterrent
effect. To accomplish this goal, State and local enforcement agencies
should calculate ( where possible ) and assess the economic benefit of
noncompliance. In some cases, the risks involved in litigating the case
or the violator's inability to pay a penalty may justify not assessing a
penalty which recaptures the full economic benefit. Legitimate litigation
risks include adverse legal precedent and evidentiary problems. The
inability of a violator to pay a penalty must be demonstrated by the
violator through financial information analyzed by State or local
environmental enforcement personnel.
An additional amount reflecting the seriousness of the violation
should also be assessed. This is especially important for violations
which may not have a readily calculated economic benefit but which
are critical to program integrity, such as monitoring, reporting,
recordkeeping and testing violations. In some cases, this additional
amount may be adjusted to reflect the violator's history of compliance
with air pollution laws and regulations, and the source's good faith
efforts to comply. All penalty calculations in State and local
enforcement actions must be documented in the appropriate case file.
EPA will consider overfiling when State or local penalties fail to
meet these criteria, taking into account available federal resources and
enforcement priorities.
State and local enforcement agencies are strongly encouraged to
increase the statutory maximum civil penalty authorized by State or local
law to at least $10,000 per day per violation as required by Title V of
the Clean Air Act, as amended, for an approved operating permits program.
States and municipalities with penalty authority of less than $10,000 per
day per violation will be subject to more intensive EPA oversight and
potential overfiling.
State and local enforcement agencies are also strongly encouraged to
develop a penalty policy implementing these general penalty criteria. EPA
will then review and evaluate, but not formally approve, these penalty
policies for consistency with the general penalty criteria. A State or
local enforcement agency which adopts a sound penalty policy implementing
these penalty criteria and demonstrates a pattern of adherence to it will
receive less case-specific EPA oversight. A State or local enforcement
agency which chooses not to develop a penalty policy or which has a
penalty policy that is not consistent with these penalty criteria will
continue to be subject to significantly more
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intensive case-specific EPA review of State and local penalties and to
potential overfiling.
State and local enforcement agencies are also encouraged to use the
BEN computer model developed by EPA to calculate the economic benefit or
noncompliance. State and local enforcement agencies which use the BEN
computer model or a similar model to calculate economic benefit will
receive less intensive EPA case-specific oversight.
VI. CONSULTATION AND DATA TRANSFER
A. Informal Consultation
EPA and States should conduct frequent ( at least monthly ) informal
consultations to discuss compliance efforts. During these discussions,
information exchange relative to obtaining compliance and penalties should
occur. This exchange should include at least the following items:
1. The State and EPA would each identify any newly-found
violators subject to this guidance.
2. The State and EPA would each identify sources notified of
noncompliance during the month.
3. The State and EPA would each identify violators where action
had been taken.
4. The State would discuss the status of other enforcement
actions pending or in progress, if requested by EPA.
5. EPA would identify sources for which it had completed action
and provide the status for other sources where action is pending
or in progress.
6. EPA would identify any sources it had found in violation and
confer with the State as required above.
B. Updating EPA's Compliance Databases
The AIRS Facility ( and/or NARS, as appropriate ) databases will be
updated by EPA and/or the State on a monthly basis to reflect:
1. Compliance status changes for newly-identified violators
which are in violation on the last day of the month prior to the
consultation, and which were ( or are expected to be ) in that
status for 7 days or more.
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2. Sources notified of noncompliance.
3. Sources with completed enforcement actions, including any
schedules and incremental dates for returning to compliance.
4. Sources found to be in compliance with final limits.
C. Provide Inspection Results
Inspection results other than those affected by the above will be
provided in accordance with current practices and EPA accountability
system requirements.
D. Sharing of Data
EPA and the State will share inspection results and other monitoring
reports ( e.g., stack tests, CEMS ) for use in enforcement proceedings to
the extent practicable. State personnel should be encouraged to provide
evidence, including testimony, for Federal proceedings. Federal personnel
should similarly support State enforcement proceedings.
APPENDIX A
TABLE OF CRITERIA AND ENVIRONMENTAL WEIGHTING FACTORS *
*/ Regardless of a SV's relative priority, if the agency desires to use
a preferred remedy ( e.g., Federal Administrative Penalty authority
with its one year "look-back" provision ), and the time to do so is
running out, the agency may move it up to the "head of the line".
Criteria Environmental Weight
Factor / Vio.
1) At least one unit at a source is ( or has 10 per unit
been ) in violation of a SIP, NSPS, or
NESHAPS emission, monitoring, or procedural
requirement, except for asbestos D&R NESHAP
2) Violation of permitting requirements ( PSD, 10
Part D, or synthetic minor )
3) Violation of a Federal Consent Decree or 10
Administrative Order, or of State Order w/emission
viol.
4) Emission violation ( 1 time based on reference 10
method; or (GT)5% of quarter based on
"indicator" CEMS; or (GT)5% no data; except
for opacity, use weight of 5 ) 5
Add: a) Amount of excess emission ( known ):
o over 250 TPY 10
o 100 - 250 TPY 6
o 25 - 100 TPY 4
o 10 - 25 TPY 2
b) If excess emissions are not known, use
size of emission point:
o over 250 TPY 10
o 100 - 250 TPY 6
o 25 - 100 TPY 4
o 10 - 25 TPY 2
c) Source is in a non-attainment area 5
d) Source is a repeat violator:
o same emission unit or cause 7
o unrelated repeat violator 3
e) Hazardous emissions under title III 10
f) Multi-media violator 10
g) Source is part of national initiative 5
5) Source is in violation of minor procedural requirement. (-)5
6) ** Problem source ( as determined by State / EPA ) 1 to 10 **
**/ A "problem source" may include such actions as a source which fails
to test, report, or install a monitoring system at all, or one which
is totally uncooperative.
7) Emiss. viol'ts which occur on a 1-time or infrequent (-)50%
basis, and (LT)10 lbs/day or (LT)2% of allowable emiss's of total
Examples based on Table ( key parameters are underlined ):
1) A major SIP source, which has 300 TPY excess emissions, is a
repeat emission SO(2) and monitoring violator, has been in violation
for 5 months, and is violating a Federal Consent Decree. Its total
environmental weighting factor is calculated as follows:
( ( #1=10 ) + ( #3=10 ) + ( #4=10+10 ) + ( #4a=10 )=50 total
2) A NSPS source, 100 TPY in potential emissions, fails to test
within the timeline ( 1 month late ) established by NSPS, weighting
factor is calculated as follows:
( ( #1=10 ) - ( #5=5 )=5 total
3) An asbestos manufacturing source repeatedly fails to notify an
agency about its plans to conduct compliance tests, its latest test
report is totally unacceptable, and the agency considers the source to
be uncooperative. Its total environmental weighting factor is
calculated as follows:
( #1=10 ) + ( #4=10 ) + ( #4d=7 ) + ( #6=7 )=34 total
Clearly, the first and third violators are the worst SVs, and the
first one should be ranked the highest SV, and the second one should be
ranked lowest. Thus, assuming that these were the only three SVs for
which no follow-up action had been started, the SIP source ( in the first
example ) should be the next SV which the agency should initiate action
against.
ATTACHMENT II
SUMMARY AND RESPONSE TO COMMENTS
COMPLEXITY & BURDEN ISSUES:
o Cost / benefit of the ranking procedure is not favorable; e.g., too
complex, subject to duplication and subject to confusion among the
different agencies using it ( STAPPA / ALAPCO ).
Response:
- It is important to have "joint" decisions throughout the process
( e.g., promotion of dialogue and team-building, and case-by
-case determination of which agency takes the lead makes the
most effective use of agency resources, expertise and national
priorities ).
- Prioritization and ranking activity was simplified ( e.g.,
agencies which are able to address all SVs consistent with the
T&A requirements, can opt out of using any prioritization
procedure ).
o Virtually all violations will be rated as "major" and thus subject to
the guidance ( STAPPA / ALAPCO ).
Response:
- The question suggests a little confusion about the language
contained in the document. Whether a source is "major" or not
is established by the CAAA of 1990. Therefore, by definition,
all SVs must first be a "major" source. Subjecting all "major"
sources with violations to this guidance is consistent with the
mandate expressed in the CAAA of 1990. All other violators will
be addressed, as they have in the past, in the most expeditious
manner possible.
- SSCD, with assistance from the Regional Offices and STAPPA
/ ALAPCO, has taken the impact of this revision upon agencies
into account as we revised it. It was our goal to establish
criteria in a manner which fosters agency reporting of the
complete and accurate picture of the compliance status of major
stationary sources, and which forms a quantitative basis for
agency resource consideration.
o Development of mutually agreeable definitions of SVs obviates the need
for the weighting scheme; retain the present T&A Guidance with minor
adjustments ( STAPPA / ALAPCO ).
- 2 -
Response:
- The use of a "fixed", nationally consistent definition for SVs
although expanded to include a larger number of sources and
additional emphasis on continuous compliance ( both consistent
with the CAAA of 1990 ), has been retained to a large degree in
this revision.
TABLE, EXAMPLES & SV THRESHOLD VALUE ISSUES:
o Clarify that agencies may use either the attached "Table" ( or a
"comparable" one ) to prioritized and rank their SVs ( Regional
Offices ).
Response:
- SSCD, after much consideration, agreed to permit this level of
flexibility. However, it is incumbent upon all agencies to take
steps to ensure that all environmentally significant SVs are
addressed in a timely and appropriate manner.
o Making miscellaneous "adjustments" ( e.g., additional categories,
different weights, changing actual excess emissions to estimated
emission rates, possibly providing factors for violators in non
-attainment areas )to the Table of Criteria and the SV designation
threshold are necessary ( Regional Offices ).
Response:
- The revised text addresses the flexibility of using a comparable
table.
o Clarify and expand the "Examples" in the Attachment ( Regional
Offices ).
Response:
- SSCD revised the text.
ENFORCEMENT ISSUES:
O Specify what a "Violation" is, e.g., similar to that on pages 3 and 4
of the earlier "Federally Reportable" document ( Regional Offices ).
Response:
- SSCD considered this possibility and decided the text was
sufficiently clear.
- 3 -
o Insufficient emphasis was placed upon penalties required by agencies to
try to offset economic gain resulting from delayed compliance ( Air
Enforcement Division of EPA ).
Response:
- This revision incorporated the specific recommendations made by
the "State / Federal Penalties Workgroup".
o Insufficient emphasis was placed upon the advisability and
desirability of issuing a NOV / FOV at the earliest possible date
( Regional Offices ).
Response:
- SSCD revised the text to reflect the relevant provisions
contained in the CAAA of 1990, specifically the shifting of the
burden of proof from an agency to the violating source.
o Emphasize the importance of properly protecting case-related and other
confidential information ( Regional Offices ).
Response:
- This is an important point. However, it is not germane to the
subject of this document.
o Clarify how one should address sources which drift into and out of
violation during the month. ( Regional Offices ).
Response:
- In addition to the line item in the Table ( #5 - "chronic
violator" ), the text was revised to use language similar to
that contained in the old "Federally Reportable Guidance."
o Clarify that once an agency initiative any action on a SV, it should
complete it regardless if a higher ranked SV is subsequently
identified before the first one is resolved ( Regional Offices ).
Response:
- SSCD revised the text accordingly.
o Emphasis upon "consultation" implies that EPA does not retain the
ultimate responsibility and authority to make decisions relevant to
federal enforcement ( Regional Offices ).
- 4 -
Response:
- SSCD revised the text to reflect the fact that EPA retains the
ultimate responsibility to insure compliance with federally
enforceable requirements ( e.g., determining that a violator is
a SV ).
o Clarify the difference between "addressed" and "resolved" as it
pertains to sources which come into compliance before they are
addressed ( Regional Offices ).
Response:
- SSCD revised the text.
o Clarify which violations require a penalty as part of its resolution,
e.g., PSVs versus SVs only ( Regional Offices ).
Response:
- SSCD revised the text. ( Note, the PSV concept ( potentially
significant violators ) was dropped. )
COMPATIBILITY WITH OTHER GUIDANCE ISSUES:
o The "ranking factors" listed in this document should be totally
comparable with those delineated in the CMS ( Regional Offices ).
Response:
- Conceptually perhaps they should be, and over time the two sets
of factors will likely converge. The final "example" table
contains the consensus of all commenters.
o Clarify the relationship between this guidance and field citations
( Regional Offices ).
Response:
- Other than being one form of administrative penalties, there is
no direct relationship. However, as such it could be one of the
ways SVs are resolved in the future.
GENERAL CLARIFICATION ISSUES:
o Clarify how many days EPA has to address an SV after it takes it over
from a State ( Regional Offices ).
- 5 -
Response:
- SSCD revised the text as necessary.
o Delineate which source categories are designated "major" in this
guidance. How this relates to: (1) "affected facilities" in Title
IV; and (2) Title III area sources? ( Regional Offices )
Response:
- All sources affected by title IV and "major" sources under Title
III are considered "major" for purposes of this guidance. "Area
sources" under Title III are not major sources by definition in
the CAAA.
o Adequately support this guidance's implementation, including: (1)
scheduling Regional workshops performed by SSCD; (2) designation of
Regional and HQ "SV / T&A Coordination"; and (3) scheduling periodic
teleconferences ( Regional Offices ).
Response:
- SSCD recognizes the importance of providing sufficient and
timely support when we "launch" this revised guidance. We are
contemplating how to most effectively do this. During the last
workgroup discussion, many good suggestions were made. SSCD
intends to implement many of these.
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