Letter to Richard A. Lillquist President, Flexible Packaging
Association, about EPA's program to assure compliance with SIP VOC
FEBRUARY 29, 1984
Richard A. Lillquist, President
Flexible Packaging Association
1090 Vermont Avenue, N.W.
Washington, D.C. 20005
Dear Mr. Lillquist:
Thank you for your letter of January 24, 1984 summarizing
our meeting of January 20th. I appreciated the chance to discuss
with you and members of your Association EPA's program to assure
source compliance with volatile organic compound emission
limitations in State implementation plans.
I would like to take this opportunity to expand upon a few
points in your letter. The policy considerations discussed below
are based upon the principles set forth in a September 20, 1982
memorandum entitled "Enforcement Action Against Stationary Air
Sources Which Will Not Be In Compliance by December 31, 1982,"
and a January 12, 1983 memorandum entitled "Guidance on
Implementation of the 1982 Deadline Enforcement Policy Issues
September 20, 1982." I have enclosed copies of these memoranda, and
a subsequent memorandum modifying the procedures used to incorporate
extended schedule in a judicial decree.
You are correct in noting that the issuance of a notice of
violation ( NOV ) by EPA is not intended to pre-empt State efforts
to resolve the violation. EPA's Regional offices have been
directed to issue NOVs to all sources which are subject to the
1982 Deadline Enforcement Policies referenced above. An NOV will
be issued even if the State is proceeding with an enforcement
action against the source so that EPA will be in a position to
pursue its own enforcement action in the event federal action
subsequently becomes necessary.
EPA will closely monitor the enforcement efforts made by a
State. Depending upon the facts of each case, EPA may pursue its
own enforcement action if a State is not adequately addressing
a violation. The adequacy of State action to correct a
violation is dependent upon its Consistency with the Clean Air Act
or Agency policy, as discussed below. Federal enforcement would
also be pursued where, as a result of consultation with the State,
EPA has been identified as the lead Agency to address a particular
The Clean Air Act sets out several potential mechanisms for
establishing an enforceable schedule to bring a violating source
into compliance with the SIP. Adequate State action may be in
the form of any of these mechanisms.
One mechanism established by the Act for extending compliance
deadlines is a federally-approved revision to the SIP under
Section 110 of the Clean Air Act. However, as we have discussed,
the requirements of Section 110 and Part D of the Clean Air Act
limits this option for most VOC sources.
A second mechanism is a Delayed Compliance Order ( DCO ) under
Section 113(d) of the Act, which can be issued to a source either
by a state or EPA. In order to be effective under the Clean Air
Act, State-issued DCOs to major sources must be approved by EPA.
EPA regulations governing the issuance, approval, and disapproved of
DCOs are located at 40 CFR Part 65. Section 113(d)(1) of the Clean
Air Act sets out the necessary elements of a DCO, including a
schedule requiring compliance as expeditiously as practicable, but
no later than three years after the date the SIP required
compliance. Most SIPs required compliance with VOC limitation by
December 1982. Thus, DCOs for VOC sources must generally require
final compliance with the SIP by no later than December 1985.
Where EPA is bringing the enforcement action ( rather than
acting on a State-issued DCO ), the issuance of a DCO is a
discretionary action. DCOs can reflect a compliance strategy
contemplating the expeditious development and use of low solvent
technology. In determining whether to issue a DCO reflecting low
solvent technology as a compliance strategy, EPA considers whether
the source has made, and is continuing to make, serious good faith
efforts to develop complying low solvent technology. because of the
length of the time that is generally required to develop this
technology, and because VOC emission limitations have been in effect
in most cases since at least 1979, DCOs are not appropriate for
sources whose research and development efforts towards reformulation
are just beginning.
Ultimately, it is the firm obligation of a source subject
to a DCO to meet the order's final compliance requirement. To
ensure that federally-issued DCOs in fact result in compliance
by the date established in the order where low solvent technology
is pursued, federal DCOs will establish a time to determine if
effective technology has been developed. If low solvent
technology for the particular source has not been developed by this
point, the order will provide that the source pursue an alternative
compliance strategy, in most cases add-on controls. the DCO will
establish this decision point so that sufficient time remains to
meet the financial compliance date through the alternative
EPA does not routinely seek penalties when it issues a DCO.
While EPA must approve a State-issued DCO if it meets the criteria
of Section 113(d) of the Clean Air Act, the Agency will pursue
an action for penalties against a resource subject to a State DCO
if the compliance history of the source warrants this future
The adequacy of other types of State action to address a
violation is determined by the Agency's Regional Offices. The
1982 Deadline Enforcement Policy referenced above is the current
national guidance establishing the principles to be applied by
the Regional Offices in determining whether the Agency should
defer to the state's effort or pursue federal enforcement action.
Under this Policy and implementing guidance, a State judicial
order or administrative order ( other than a DCO ), must, at a
minimum, include the following key elements to justify EPA
deferral: 1) the source commits to an expeditious schedule to
come into compliance with the SIP ( or RACT if no Part D plan
is in force ), 2) the compliance schedule contains enforceable
increments of progress, 3) the order includes reporting
requirements, including reporting to the State and, if it is a
judicial order, to the court, of completion of each increment,
4) the order treats limited life facilities consistent with Agency
guidance, and 5) the order provides payment of a significant cash
Thus, the Agency will defer to timely State action to
correct a violation if it is formally approved by the Agency
as a SIP revision or DCO, or if the Regional Office determines
that the State action satisfies the principles outlined above.
If a source does not comply with an adequate State action to
correct a violation, EPA will seriously consider the initiation
of its own enforcement for penalties and necessary injunctive
relief in the absence of comparable state action.
I hope these observations are useful. If you have any
questions, please call me at (202) 382-2807.
Edward E. Reich, Director
Stationary Source Compliance
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