04/27/82

Policy for Addressing Violations Subject to Non-Promulgated Regulations

                          APR 27 1982


SUBJECT:  Policy for Addressing Violations Subject to
          Non-Promulgated Regulations


FROM:     Kathleen M. Bennett
          Assistant Administrator for Air, Noise and Radiation


TO:       Regional Administrator, Region IX


     This memorandum is in response to an issue which was raised
in the attached memorandum from Carl Kohnert, Jr., concerning
Federal enforcement of violations of regulations which:

     (a)  have been adopted by the State but not yet
          approved by the Administrator, or
     (b)  are in the existing SIP but which have been
          superceded by the regulation(s) in (a).

     As we understand it, the regulations in question consist
mainly of State and local agency variances, most of which are
short-term and source-specific.  These variances are viewed by
the State as a more effective route to obtaining final
compliance than civil litigation.  Since the State has primary
enforcement responsibility, EPA's position is to defer to the
State as long as the Region determines that the State action
demonstrates progress toward final compliance within a
reasonable time.  It is important to keep in mind that these
State actions can, if properly used, provide for the achievement
of our national clean air goals by obtaining compliance in an
efficient and effective manner.  If EPA is satisfied that a
particular State action is an appropriate mechanism for assuring
compliance with air pollution regulations, then a Federal
enforcement action would be duplicative and a non-productive use
of limited resources.
     In evaluating whether a State action is appropriate,
several factors should be considered:


                             - 2 -


     (1)  If the source is in compliance with the schedule
          contained in the State decree ( or order/variance ),
          EPA should examine the expeditiousness of the
          compliance schedule ( including the incremental
          dates in the schedule ), and the past compliance
          history of the source.
     (2)  If the source is not meeting the State schedule,
          EPA should examine both the schedule and what the
          State is doing to remedy the situation.  In doing
          this, EPA should look at the past compliance
          history of the source and the record of State
          enforcement actions to determine whether the State
          is likely to resolve the problem effectively.
     (3)  In cases where EPA does not have confidence, that
          the State will be able to effect compliance, EPA
          should consider factors relating to the
          environmental significance of the source ( major
          source, attainment statute, nature and magnitude of
          emissions - see my memo of December 29, 1981 which
          contains a section on the definition of significant
          violators ) before determining whether EPA action is
          warranted.

     I want to make it clear the EPA should not let the
issuance of "compliance schedules" which are really no more than
consecutive variances to a source which do not resolve the
source's compliance problem deter it from taking Federal action.
We understand that this generally is not the case here.
     If after evaluating the above factors the determination is
made that Federal action is warranted, then EPA should enforce
the federally-approved SIP irrespective of non-federally
approved State activities.

cc: Air and Waste Management Division Directors Regions I-IV,
      VI-VIII, X
    Air Management Division Directors Regions V and IX