02/23/81

Issuance of Section 113(a) Orders to NSPS Sources for Failure to Conduct Performance Tests

                              FEB 23 1981


SUBJECT:  Issuance of Section 113(a) Orders to NSPS Sources for
          Failure to Conduct Performance Tests


FROM:     Director
          Division of Stationary Source Enforcement


TO:       Louise D. Jacobs
          Director, Enforcement Division
          Region VII


     This office has received copies of the administrative orders
issued by your office pursuant to Section 113(a) of the Clean Air
Act ( the Act ) to the A. G. Sherwood Construction Co. of Independence,
Kansas (Dec. 22, 1980), and the Beachner Construction Co.,
Inc. of St. Paul, Kansas (Nov. 26, 1980).  Those orders required
the companies to conduct performance tests within 30 days of the
effective dates of the orders and to demonstrate compliance with
the applicable New Source performance Standard ( NSPS ), or to cease
operation.
     While the use of Section 113(a) orders to require performance
tests is an effective enforcement tool, we believe that requiring
shutdown as a sanction for failure to conduct the test should be
judiciously applied.  We believe that shutdowns should be required
only in compelling circumstances because the burden of shutdown
falls, in part, on the employees of the company, who are not
culpable in causing the violation.  We recommend that the Regional
Office take a hard look at the facts and equities in each case
before ordering shutdown.
     In determining whether requiring shutdown is appropriate
the Regional Office should be sensitive to potentially mitigating
circumstances.  In addition to recognizing that the burden of
shutdown falls in part on innocent employees, the Regional Office
should consider the environmental impact of emissions from the
source, both in terms of their nature and amount.  In connection
with this consideration, it may be appropriate to make a
preliminary determination of the probable compliance status of the
source with the applicable emission limitation.  For example, it
would be appropriate to compare the control equipment to be
utilized ( albeit, not tested ) by the subject source with control
equipment and strategies at similar sources which have ( or,
perhaps, have not ) demonstrated compliance with the emission
limitation.


                                 - 2 -


     We believe that it is also important to analyze the reasons
for the source owner's failure to perform the required test.
Although the NSPS regulations do not provide for an extension of
the 180 day from startup limit for performance testing, some
flexibility may be appropriate in certain circumstances, e.g.,
force majeure situations.  Indeed, the Regional Office in the past
has recognized the need to provide additional time in which to
conduct the performance test.  Thus, in Prairie States
Construction Co. and Shilling and Aubel, Inc., the Region agreed
to consent decrees rather than issue shutdown orders.
     In sum, because shutdown is the strongest civil sanction
available under the Act, EPA must be able to defend its use by
reference to the factual and equitable circumstances in each case.
Engaging in this analysis enables the Agency to defend more
effectively its actions when charged with discriminatory
applications of policy.
     If you have any questions with respect to this issue, please
do not hesitate to contact me at (FTS) 755-2550, or Edmund Gorman
of my staff at (FTS) 755-2570.


                               Edward E. Reich