06/24/82

Significant Violators

                            JUNE 24, 1982


SUBJECT:  Significant Violators


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


     TO:  Regional Administrators, Regions I - X


     As you know, the Administrator's Accountability System requires
each Regional Office to work with its States to resolve instances of
noncompliance by significant violators of Clean Air Act requirements.
I provided guidance to you in a December 29 memorandum to assist you
in determining what we consider to be a significant violators.
     The purpose of this memorandum is to supplement our earlier
guidance.  After a review of the Regional submissions of their
respective significant violator lists, it became apparent that some
fundamental inconsistencies existed.  The Administrator asked me to
explore the reasons for these inconsistencies and provide whatever
guidance is necessary to resolve them.  This will enable the Regional
Offices to refine their lists in a manner so as to make them
automatically consistent.
     Initially, let me address one point of apparent confusion relative
to the significant violator exercise as a whole.  The significant
violator exercise is intended solely to identify the highest priority
sources for the air enforcement program and to establish a special
tracking system for resolving violations by these sources.  It is in no
way intended to limit the Regional Office in its addressing other
sources, or in its assistance to States in addressing other sources, so
long as such actions will not detract from the significant violator
exercise and will have a real environmental benefit.
     The terms of the definition of a significant violator, our earlier
guidance (copy attached) still stands.  However, in interpreting this
guidance, please keep the following points in mind:


                                     -2-


     (1)  do not list any source in compliance with its emission
          limitations or in compliance with an acceptable
          compliance schedule;
     (2)  do not list any source of unknown compliance status;
     (3)  if you propose to include a source not meeting my December 29
          guidance ( for example, an existing source in an attainment
          area ), please specifically identify such source on your list
          include a brief explanation of the environmental justification
          for including the source; and
     (4)  if you propose to not list any sources which would meet my
          December 29 guidance ( for example, a 250-ton source in a
          nonjudgment area ), please separately list such sources and
          include a brief explanation of the basis on which you have
          determined that exclusion is appropriate.
   Thus, the universe for the significant violator exercise will be
limited to sources in violation and either not on a schedule or in
violation of a schedule ( CDS SCMS code 1 and 6 ) which otherwise meets
the December 29 guidance.  Exclusion of sources meeting compliance
schedules ( SCMS 5 ) does not detract from the importance of the Region's
having an effective system to ensure that the schedules are being
followed.  Similarly, exclusion of sources with unknown compliance
status ( SCMS 0 and 7 ) does not denigrate from the importance of
resolving these unknowns as soon as possible.  ( Where flexibility
exists, highest priority for inspections should be directed at those
unknowns that would criteria are intended only to keep the significant
violator exercise to a manageable list of known violations for which
further action (State or Federal) is required.
     We intend to "flag" significant violator sources in CDS to
facilitate tracking.  Please ensure that the largest compliance data
are entered into CDS so that two data bases ( CDS and the significant
violator list ) are consistent.  This will eliminate much possible
confusion and could ultimately be used to minimize your reporting
burden.
     Please reevaluate your initial submission in light of this
additional guidance and resubmit your list to this office by no later
than July 31.  In the meanwhile, third quarter reporting should be in
accordance with the guidance sent to you on June 15 by the Office of
Management Systems and Evaluation.


                                     -3-


     If you have any questions on this memorandum or expect any
difficulties in meeting the July 31 date, please call Ed Reich,
Director, Division of Stationary Source Enforcement at (FTS) 382-2807.
Attachment


                      DEFINITION OF SIGNIFICANT VIOLATOR


     One of the objectives of the Administrator's Accountability System
for FY 1982 is that sources be used to address significant air
violators and return them to compliance.  This is designed to ensure
that resources are used in the most environmentally beneficial manner.
The purpose of this guidance is to assist Regional Offices and States in
determining what the Agency consider to be a significant violator.
     In determining whether a violation is significant, the nature of
the pollutant should be considered, as well as the magnitude and
duration of the violation and the population exposed.  While no rigid
formula need be followed, the following considerations should be kept in
mind.
     1.  A violation of hazardous air pollutant standard resulting in
emissions above the standard should normally be considered significant
unless the magnitude and duration of the violation are minimal and the
violation nonrecurring.
     2.  A source in violation of a State implementation plan should be
considered significant if the source is of sufficient size and is
located so as to impact a nonattainment area.  Sources above 250 tons
per year emission potential ( as defined in the Alabama Power case )
should be considered significant violators unless the magnitude and
duration of the violation are minimal and the violation generally
nonrecurring.  ( To the extent that available data do not permit
easy identification of sources in excess of 250 tons/year
potential, sources with more than 100 tons/year actual
emissions can be used as a reasonable surrogate. )  Other
sources in nonattainment area should also be included if the
amount of excess emission is considered jointly by the Regional Office
and State as having an important impact on the continued nonattainment
of the area.
     3.  Sources in attainment areas and not impacting nonattainment
areas would not normally be considered significant because of the
lack of direct health impact.  While States, appropriately, should take
action to resolve such violations, EPA will not give them high
priority consideration.
     4.  Sources in violation of new source requirements, including
NSPS and PSD/NSR permitting requirements, should also be considered
to be significant violators unless the magnitude and duration of the
violation are minimal.
     As provided for the Agency's new accountability system, Regional
offices should meet with each of their States to jointly prepare an
inventory of known significant violators.  States should be encouraged
to take the lead with respect to as much of the universe as possible.
Wherever possible, EPA should use its resources to supplement those of
the State rather than to take the lead on cases itself.  This technical
assistance can be either in the form of direct case assistance (if
requested) or through sponsoring of technical workshops and other
program building/supporting activities.  EPA should assume the lead
only where a State cannot or will not take the lead, despite whatever
assistance EPA can provide.