09/24/84

Review of Application of Test Methods in Clean Air Act Enforcement Cases

                              SEPTEMBER 24, 1984


MEMORANDUM

SUBJECT:  Review of Application of Test Methods in Clean
          Air Act Enforcement


FROM:     Michael S. Alushin
          Associate Enforcement Counsel
          Air Enforcement Division


TO:       Regional Counsels
          Regions I-X


     The Air Enforcement Division requests that each new Clean Air Act
litigation report contain a discussion of the applicable test method and
whether it was correctly applied.  We have revised our direct referral
checklist to include a space to note the presence or absence of such a
discussion.  A copy of the new checklist is attached.  We will also be
checking for this information in non-direct referrals.
     Forty CFR 52.12(c) states that, for the purpose of Federal
enforcement, the test procedures which should be used are those
specified in the applicable SIP or, if the SIP does not contain a test
procedure, the appropriate test procedure as specified in 40 CFR Part
60.  Defendants in several recent stationary source enforcement actions
have raised, as a defense, the use of an improper test method in the
testing which forms the basis of the evidence against them.  In some
cases, this has jeopardized the success of our enforcement actions.
     EPA must make sure that every enforcement action we take is based
on documentation of violations which was obtained using proper test
procedures.  Therefore, please make sure that all EPA tests and
inspections use proper procedures.  In addition, EPA needs to make sure
that EPA enforcement actions using evidence obtained by State are based
on proper test methods.

Attachment cc:

     Assistant Chiefs
     Environmental Enforcement Section
     Lands & Natural Resources Division
     U.S. Department of Justice


                           AIR ENFORCEMENT DIVISION
                   CHECKLIST FOR REVIEW OF DIRECT REFERRALS


( All items should be addressed.  Discuss special features of referral
under "Comments," including strengths, innovations or deficiencies. )
Name and location of source:  ....................................
  I.  Appropriateness of direct referral
      ( Direct referral is appropriate if all "No"
       line are checked )
        A.  NESHAP case?                                  No .........
        B.  Post-1982 enforcement policy applicable?      No .........
        C.  Steel case?                                   No .........
        D.  Primary nonferrous smelter case?              No .........
 II.  Format of the cover memo -- check for following sections:
        A.  Nature of the case                            No .........
        B.  Cause of Action                               No .........
        C.  Proposed Remedy                               No .........
        D.  Issues of national or precedential
            significance                                  No .........
        E.  Description of consultation for case
            development                                   No .........
        F.  Identification of Regional contacts           No .........
III.  Substantive adequacy of referral
        A.  Cause of action                               No .........
        B.  Evidence sufficient to prove cause of action  No .........
        C.  Discussion of test method and whether it was
            correctly applied                             No ..........
        D.  Description of attempts to settle, include
            date of last contact with source              No ..........
        E.  Discussion of State involvement
        F.  Evaluation of potential defenses              No ..........
        H.  Environmental harm to be remedied or other
            reasons justify pursuing the case             No ..........
        I.  Description of the remedy to be sought or the
            specific discovery required to established a
            remedy in the case                            No ..........


                                    - 2 -


        J.  Discussion of the penalties to be sought
            if the case proceeds to trial                 No ..........
        K.  Discussion of the penalties to be sought as
            an initial settlement position                No ..........
        L.  Evaluation of potential defendants and why
            the named defendants were selected            No ..........
IV.  Comments on Referral (attached additional sheets
     as necessary)