04/30/82

Guidance on Policy for Addressing Violators Subject to State Action

                           APR 30 1982


SUBJECT:  Guidance on Policy for Addressing Violators
          Subject to State Action


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


TO:       Regional Administrators, Regions I-X


     The following guidance presents EPA policy for addressing
violators subject to State action, and focuses particularly on EPA
deferral to State action in those cases where the State action may
not be formally cognizable.
     The Clean Air Act clearly places primary responsibility on
the States for enforcing air pollution regulations.  States should
be encouraged to take the lead in resolving violations of their
SIP and delegated Federal regulations.  EPA should use its
resources to supplement those of the State rather than to take the
lead in developing cases and should assume the lead only where a
State cannot or will not take the lead, despite whatever
assistance EPA can provide.  However, problems arise when State
and local agencies use enforcement methods and procedures that do
not fully meet the legal requirements of the Clean Air Act ( Section
110 or 113(a)-(d) ) but are consistent with their own rules and
statutes.
     Even where a State action cannot be formally recognized under the
Clean Air Act, EPA is not required to blind itself to the realities of
the effect of the State action.  It is important to keep in mind that
these State actions can 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.
     Of course, where a State has proceeded to initiate an
administrative or judicial action which meets all legal and procedural
requirements of Section 110 or 113, and requires expeditious compliance,
EPA action would be unnecessary.  However, as State actions move away


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from this ideal, judgments must be made concerning the appropriateness
of the action and the need for Federal action.  In evaluating a State
action, several factors should be considered:

     (1) If the source is in compliance with the schedule
         contained in the State decree ( or order/variance ), EPA
         would examine the expeditiousness of the compliance
         schedule ( including the incremental dates in the
         schedule ).  EPA would also examine the past compliance
         history of the source and the record of State
         enforcement to determine whether the final compliance
         date in the schedule is likely to be met or if it is
         simply a "moving target", and likely to be revised.
     (2) If the source is not meeting the State schedule, EPA
         would examine both the schedule and what the State is
         doing to remedy the situation.  In doing this, EPA would
         look at the past compliance history of the source and
         the record of State enforcement actions as an indication
         of 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 would
         consider factors relating to the environmental
         significance of the source before determining whether
         EPA action was warranted.  ( See my memo of December 29,
         1981, for a definition of "significant violator".
         Factors to be considered include size, area attainment
         status, and nature and magnitude of emissions. )  This is
         not to imply that only sources which meet the definition
         of significant violator may be addressed by EPA, only
         that these violators should receive highest priority.

     Given the numerous factors which should be considered in
making a decision on deferral to State action, and the infinite
possible combinations of variables, rigid guidance probably would
be exceedingly complex and counter-productive.  Judgments on the
need for action where the State action appears to be deficient can
only be made by a reasoned analysis.  This analysis is most
appropriately done at the Regional level.
     There have been instances where either a source has requested
a commitment from EPA not to take an independent action or the
State has requested some written ratification of a non-federally
cognizable State action.  Whenever this occurs, the Region should
consider communicating with the affected source.  The advisability
of this should be determined on a case-by-case basis.  Note in
this regard the February 10, 1982 memorandum signed by Bill
Sullivan and myself entitled "Issuance of Notices of Violations
under the Clean Air Act".  If warranted, such a communication


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should take the form of a letter to the source ( with a copy going
to the relevant State agency ).  This letter should tell the source
that although its liability under Federal law has not been changed
by the State decree ( order/variance ), the primary responsibility
for enforcement of air pollution regulations lies with the State
under the Clean Air Act, and the existence of the State action
will mean that EPA will not take an enforcement action, provided
the source continues to cooperate with the State enforcement
efforts and EPA continues to view the State action as effective.
     Upon a determination that State action is adequate, all EPA
case development activity concerning that source would be deferred
and the State would have the lead on the case ( provided that the
State's handling of the case continued to be effective ).  Any
additional EPA case development activities concerning this source
would be directed towards assisting the State in its enforcement
endeavors.  Inspections, source tests, or the issuance of Section 114
letters would be the most likely form of assistance requested by
the State.
     EPA deferral could take place at any point in the case
development process, even after a case had been referred to
Headquarters.  There is no arbitrary point at which EPA would
automatically retain the lead on a case.  However, EPA would not
likely withdraw a case already filed in court unless it had great
certainty that the State action would in fact be effective in
achieving compliance.  It would normally be preferable at this
stage to merely seek a postponement of the Federal action
pending the source's coming into compliance.
     It is important to ensure that even non-federally cognizable
State actions ( and their schedules ) are tracked in CDS.  This
information is essential to have for oversight purposes, and of
course, in order to keep track of the progress being made by State
enforcement agencies in addressing all significant violators.
     If you have any questions or comments about this memorandum
or a particular application of this policy, please feel free to
call Dick Wilson at 755-2977 or Ed Reich at 382-2807.