01/17/86
Issues #3(e) and #5 of the VOC Issue Resolution Process:
Establishing Proof of VOC Emissions Violations, and Bubbles in
Consent Decrees Resolving Civil Actions Under Section 113(b) of the
Clean Air Act
JAN 17 1986
MEMORANDUM
SUBJECT: Issues #3(e) and #5 of the VOC Issue Resolution
Process: Establishing Proof of VOC Emissions
Violations, and Bubbles in Consent Decrees
Resolving Civil Actions Under Section 113(b)
of the Clean Air Act
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Counsels
Regions I-X
Air Management Division Directors
Region I, III, V and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxic Management Division
Directors,
Region IV and VI
Air and Toxics Division Directors
Regions VI, VIII and X
In the attached memoranda, I am answering two questions that the
identified as important issues in our Clean Air Act enforcement effort to
reduce emissions of volatile organic compounds ("VOC"). Specifically,
this guidance responds to issues #3(e), and #5 of the nineteen issues
listed in a May 20, 1985 memorandum titled "Results of May 3 VOC meeting."
The issues addressed by this guidance concern how to establish proof
of VOC emission violations ( issue#3(e) ) and the relationship between
pending or potential bubble applications and consent decrees (issue 5).
The main theme of the guidance on issue #3(e) is to encourage the use of
Section 114 of the Clean Air Act to obtain information where data is not
otherwise available to prove violations under the applicable test method.
The principle point of the guidance on issue #5 is to emphasize that the
current SIP governs until any amendments are federally effective.
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This guidance is part of an Agency-wide effort to address VOC
enforcement issues and should be considered in conjunction with the
responses to the other VOC issues, which will be distributed by the
responsible EPA offices as they are developed.
One major comment regarding issue 3(e) was repeated by several
commentors during the second round of review and is worth mentioning
briefly here. The comments suggested that rather than attempting to fix
recordkeeping problems through Section 114 requests, EPA should work
towards incorporating better recordkeeping requirements in the state
implementation plans. For example, EPA could issue SIP deficiency notices
where the SIP does not provide for recordkeeping requirements adequate to
determine if the source is in compliance with the SIP.
Our response to issue 3(e) is designed to deal with those interim
problems concerning recordkeeping which arise prior to the resolution of
the more fundamental concern of poorly drafted SIP recordkeeping
requirements. The issue of how to improve the SIP's is being addressed by
the Control Programs Development Division. The attached guidance is
intended to advise you of the tools available to obtain better evidence of
violations, and my office's policy concerning the use of those tools,
until such time as they may become unnecessary because of corrective SIP
revisions.
I appreciate the efforts of the Regions in commenting on the various
drafts of the two following documents and hope that you find them helpful
in resolving some of the issues concerning VOC enforcement.
Attachments
ISSUE NUMBER 3(e): How are VOC emissions to be calculated over a chosen
averaging time when a company is not required to, or does not, maintain
records directly pertinent to that unit of time?
RESPONSE: This issue is presented when the period for assessing
compliance under the SIP with the VOC emission limitation ( e.g., a source
must meet a percent VOC limitation over a 24 hour period or
instantaneously ) does not correspond to the records maintained by the
source ( e.g., records of VOC usage are kept by the source only on a
monthly basis ). The issue is also presented in other contexts. For
example, a SIP may require line-by-line compliance while the source
records are maintained only on a plant wide basis. The issue is important
because compliance determinations for many types of VOC sources rely upon
the records of VOC usage kept by the individual company.
Where the SIP itself requires records to be maintained that correspond
to the SIP emission limitations, corrective action can be taken under
Section 113 of the Clean Air Act to require the source to keep the proper
records. This action can consist of the issuance of an administrative
order under Section 113(a), or the initiation of a judicial action under
113(b). The remainder of this memorandum addresses the situation where
the SIP does not contain such a record keeping requirement.
There are four recommended techniques available to determine source
compliance with VOC SIP emission limitations in the absence of a SIP
record keeping requirement for source records which correspond to the SIP
emission limitations. These four different techniques are primarily
useful in four different contexts.
The first technique consists of the use of mathematical algorithms. A
description of two different types of available algorithms is attached
( attachment 1 ). Both apply various mathematical computations to monthly
or yearly data to produce a figure representing the minimum number of days
that a source had to be out of compliance with the SIP emission limit.
This calculation is statistically based and does not identify the
particular days that a source was in violation. Use of the algorithms may
be helpful in settlement discussions with the source and in determining a
settlement penalty.
Use of the results of the algorithms in a different context, to prove
violations at a trial or hearing, presents several issues. Defendants can
be expected to argue that the Government may prove violations only through
the use of the appropriate test method, which would be the method
specified
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in the federally-approved SIP, or if there is none, the appropriate EPA
test method in 40 CFR Part 60 (see 40 CFR Section 52.12(c)). To overcome
this point, the Government would have to argue that violations can also be
proven through expert opinion testimony under the Federal Rules of
Evidence, Rule 702 ( Testimony by Experts ), 703 (Basis of Opinion Testimony
by Experts), and 704 ( Opinion on Ultimate Issue ). In order to use the
results of the algorithms as evidence of violations at a trial, the
Government should be prepared to prove the statistical validity of the
algorithms through expert testimony, and to show through the opinion of an
expert, based upon the results of the algorithms, that the source had to
be in violation for a given number of days. The Government would not be
able to prove precisely which days a company was out of compliance nor
which lines (or how many lines) were out of compliance. The Government
would be able to show, based on the source's total VOC output and the
restrictions provided in SIP, that at least one of the lines at the source
was out of compliance for a certain minimum period of time. Sole reliance
on algorithms has the negative effect of calculating violations on an
averaging basis in what may be the absence of any SIP provision
authorizing averaging.
Because of these potential issues of proof and the effect of averaging
out some violations by using algorithms, steps should be taken to obtain
the data necessary to calculate emissions under the applicable test
method. Thus, the second recommended technique to determine source VOC
compliance is to use Section 114 of the Clean Air Act to request currently
existing source records which can be used to develop the data necessary to
make compliance determinations under the applicable test method. Items
such as sales slips, invoices, production records, solvent orders, etc.,
may be available and useful in developing the necessary data for the test
method calculations. Once a case has been filed discovery can also be
used to supplement the information obtained under Section 114.
The third recommended technique to determine source VOC current and
future compliance is the issuance of a request under Section 114 requiring
the source to prospectively keep the necessary records. This technique is
the most straightforward of the three and the one that should generally be
pursued. It may be the only option in the case where sources have not
kept records in a form which can be used, directly or indirectly, to
determine compliance under the applicable test method. It may also be the
only realistic option where the use of existing records to develop the
necessary data for the test method calculations would be unduly time-
consuming and burdensome for the Agency.
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Under the authority of Section 114, EPA may require a source to
establish and maintain records reasonably required to determine compliance
with the SIP ( Section 114(a)(1)(A) and (B) ). By issuing such a request,
EPA would impose an obligation on a source to keep and maintain those
records which are necessary to calculate compliance determinations under
the applicable test method. The requested record keeping should be in a
format consistent with the SIP emission requirements. Thus, if the SIP
requires compliance on a line-by-line basis and on a 24 hour average, the
records should be kept on the basis of individual lines using no more than
24 hour averaging. Also, the required measurements as to VOC content
should be consistent with applicable EPA test methods. For example, EPA
should require in the Section 114 request that data on the VOC content of
a particular coating or ink is produced through a measuring process
identical to EPA's method 24 or 24 A in 40 C.F.R Section 60 App. A.
As a fourth technique, Section 114 may also be used to require a
source to sample emissions in accordance with the methods prescribed by
EPA ( Section 114(a)(1)(D) ). Thus, Section 114 may be used to require a
source to conduct an emissions test in accordance with the applicable test
methods. This type of Section 114 request would probably be the most
appropriate where compliance determinations are made on the basis of
emissions testing as opposed to an analysis of the VOC content of the
individual coatings used. In certain situations where it is unclear
whether the coating or ink supplier is using proper test methods, EPA may
want to require the user of those coatings to run tests for VOC content
using EPA's approved test methods.
In conclusion, algorithms exist and are available to estimate the
minimum number of days a company was out of compliance with SIP VOC
emission limitations in the absence of company records which are necessary
to make compliance determinations under the applicable test method. The
results of the algorithms are primarily useful for purposes of settlement
discussions or for identifying sources which should be required to submit
information under Section 114. While this guidance does not preclude
using algorithms and expert opinion testimony to prove violations at a
trial, the Government should be prepared to prove at least some days of
violation through the applicable test method in the event that expert
opinion evidence is rejected by the judge. The records necessary to
develop this proof under the applicable test method can be sought through
a Section 114 request for information where the company has data which can
be used to develop the necessary records. Such records can also be
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developed on a prospective basis through a requirement imposed under the
authority of Section 114 requiring the source to maintain the necessary
records. Finally, Section 114 can also be used to require source testing
of emissions.
Future litigation reports based upon VOC SIP emission limitation
violations should, if at all possible, either contain proof of violations
using the applicable test method covering at least part of the period of
time the source is alleged to be in violation of the emission limitation
or should contain a cause of action based upon a source's failure to
comply with a previous request issued under Section 114 for source records
or testing. Prior to the referral of a report, the authority granted EPA
under Section 114 should be used, where necessary, to obtain the data
needed to establish some days of violation under the applicable test
method. Through the use of Section 114, the Government should either have
the evidence needed to prove specific violations, or, if a source fails to
comply with the Section 114 request, a basis to proceed under Section
113(b)(4) for violation of Section 114. Litigation reports relying solely
upon algorithms to evidence violations are appropriate only if, after
diligent effort to obtain more detailed data, statistical proof through
the use of algorithms remains the only available technique.
If you have any questions concerning this guidance, please contact
Burton Gray at FTS 382-2868.
__________________________
Courtney M. Price
Assistant Administrator
JAN 17 1986
ISSUE NUMBER 5: How Can EPA Include A Bubble In The Context Of A Consent
Decree?
RESPONSE: EPA cannot endorse a consent decree which contains a schedule
for compliance with a bubble until EPA has promulgated final approval of
the particular bubble as a SIP revision ( or until the bubble has been
approved by the State if the bubble is granted under a generic bubble
provision ). This position is supported by existing Agency policy
( "Guidance for Drafting Judicial Consent Decrees" issued on October 19,
1983 ), Section 113 of the Clean Air Act and case law.
A consent decree must require final compliance with the currently
applicable SIP. The Agency's "Guidance For Drafting Judicial Consent
Decrees," states that consent decrees must require final compliance with
applicable statutes or regulations. Other than interim standards, a
decree should not set a standard less stringent than that required by
applicable law or regulation, because a decree is not a substitute for
regulatory or statutory change. ( See page 11 of the Guidance. )
Section 113(b)(2) of the Act, 42 U.S.C. 7413(b)(2), provides EPA with
the authority to initiate civil actions to obtain injunctive relief to
correct source violations of the SIP. A settlement of such an action must
include a requirement to comply with the SIP provisions that formed the
basis of the request for injunctive relief. The settlement cannot require
final compliance with a provision not yet a part of the federally approved
SIP.
Case law also supports the proposition that the SIP may only be
changed through certain specific procedures and that absent those
procedures, no change can be effected to the original SIP emission levels.
Train v. Natural Resources Defense Council, 421 U.S. 60 ( 1975 ). The SIP,
as approved through a formal mechanism by EPA, sets the official emission
limits and remains the federally enforceable limit until changed. Ohio
Environmental Council v. U.S. District Court, Southern District of Ohio,
Eastern Division, 565 F.2d 393 ( 6th Cir. 1977 ).
A decree may contain a general provision recognizing that either party
may petition the court to modify the decree if the relevant regulation is
modified, as would be the case with a bubble. The following language is
an example of such a reopener clause where EPA approval of the individual
bubble is required.
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If EPA promulgates final approval of a revision to the
applicable regulations under the State Implementation
Plan, either party may, after the effective date of the
revision, petition the Court for a modification of this
decree.
If a federally approved generic procedure is applicable, the reopener
clause should be modified to reflect the particular generic procedures.
If a SIP revision that affects a decree's compliance schedule is
finally approved, decree language, as indicated above, may permit the
source to petition the court for a modification of the schedule. A source
is relieved from its obligation to meet the existing schedule only upon
final approval by EPA, or by the state if under a federally approved
generic bubble regulation, of the SIP revision and only upon a
modification of the decree. The consent decree may not contain a clause
which would automatically incorporate any future bubble.
It is important to note in the above context that consent decree
compliance schedules must be as expeditious as practicable in terms of
implementing a control strategy to achieve compliance with the existing
SIP and may not add in extra time to provide for final EPA action on a
request for a SIP revision. The "Guidance for Drafting Judicial Consent
Decrees" states on page 12 that, "The decree should specify timetables or
schedules for achieving compliance requiring the greatest degree of
remedial action as quickly as possible." The concept of expeditiousness
was taken from Section 113(d)(1) (applicable to compliance schedules in
delayed Compliance Orders) which was added to the Clean Air Act by the
Amendments of 1977. The principle was incorporated into Agency guidance
issued shortly after the 1977 amendments pertaining to compliance
schedules in judicial consent decrees, e.g., "Enforcement Against Major
Source Violators of Air and Water Acts" - April 11, 1978 ( see pg. 4 ), and
"Section 113(d) (12) of the Clean Air Act" - August 9, 1978 ( see pg. 2 ).
If you have any questions concerning this guidance please contact
Burton Gray of AED at FTS 382-2868.
_________________________
Courtney M. Price
Assistant Administrator
JAN 17 1986
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