04/11/86
Guidance on Federally-Reportable Violations for Stationary Air
Sources
APR 11 1986
MEMORANDUM
SUBJECT: Guidance on Federally-Reportable Violations for
Stationary Air Sources
FROM: J. Craig Potter
Assistant Administrator
for Air and Radiation ( ANR-443 )
TO: Regional Administrators
Regions I - X
Attached is guidance on what constitutes a Federal-reportable
violation for stationary air sources. This guidance is the culmination of
an extended effort initiated in FY 1985 within the Agency and with
representatives of State and local air agencies. This guidance should be
implemented in FY 1987 through your State enforcement agreements or
similar appropriate vehicle. Once implemented, it should improve
immeasurably our understanding of, and ability to deal with, the problem
of assuring continuous compliance by stationary air sources.
Traditionally, compliance status information is reported to EPA by
States on a "snapshot" basis. This means the State reports the compliance
status of the source ( based on the most recent assessment ) as of the end
of the reporting period, generally quarterly. Thus EPA would know the
source's compliance status only as of the end of the reporting period. It
would not know of any changes in compliance status which took place during
the period not reflected by the status as of the end of the period.
This was not a serious problem when the focus of the compliance
program was on obtaining initial compliance and compliance status changed
only infrequently. However, as the focus has broadened to include
maintaining continuous compliance, the current method of reporting is
inadequate. For instance, a source could go in and out of compliance
multiple times within a reporting cycle due to poor operation and
maintenance practices. Yet, if it were in compliance at the period's end,
under the snapshot approach the source would be reported in CDS as being
in compliance with no record of the continuous compliance problems having
occurred.
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This results in an understating of the true noncompliance rate and
makes it more difficult to assess and improve the effectiveness of the
program. It also tends to mask compliance problems of intermittent
violators, sometimes delaying assuring that those sources are brought into
continuous compliance.
The attached guidance addresses this problem by requiring that
information be provided on many violations which occur and are resolved
wholly within the reporting period. This will significantly improve our
understanding of the true compliance picture for those sources and what
actions are being taken to resolve the violations.
This guidance was accepted by STAPPA at its March 18 Board of
Directors meeting. It was not accepted by the ALAPCO Board of Directors.
However, given the fundamental importance of improving the current system
and the willingness of STAPPA to accept the guidance, we believe it is
important to implement the guidance in FY 1987 as planned.
I think it is particularly important that the guidance be implemented
in the spirit in which it is intended. Concerns have been expressed about
highly obtrusive Federal enforcement actions and undue reporting burdens.
To address these concerns, I would like to provide the following guidance.
Where a newly-identified violation has already been resolved at the
time of reporting to EPA, an EPA enforcement action would rarely be
warranted. ( Even under the timely and appropriate response guidance, such
violations would normally be resolved before EPA issues a Notice of
Violation. ) If the violation appears to be an isolated one, no EPA action
is warranted. If, however, the violation is part of a pattern of such
violations by the source, it is certainly appropriate to raise the matter
with the State or local agency and to assure that action is taken to
resolve the pattern of persistent violations.
Relative to the reporting of information to EPA, this guidance
necessarily requires reporting of additional data to EPA for inclusion in
the Compliance Data System ( CDS ). Such data, once received, must be
entered into CDS in a timely manner. The guidance also requires that
certain additional information about the violation be made readily
available to EPA upon request. This information should be requested only
when essential for a clearly-defined purpose and with full sensitivity to
the potential resource burdens information requests create.
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I believe implementation of this guidance constitutes an important
milestone for our air compliance program. I look forward to working with
you and our State and local agency colleagues in assuring its successful
implementation in FY 1987.
Attachment
April 1986
GUIDANCE ON FEDERALLY-REPORTABLE VIOLATIONS
FOR STATIONARY AIR SOURCES
INTRODUCTION
A basic objective of the Federal EPA's air program is to ensure
national consistency in the interpretation and implementation of the Clean
Air Act. Nowhere is consistency more critical than in the area of
enforcement. The primary enforcement responsibility of the Act clearly
lies with the States. 1/
1/ "State" as used throughout this guidance also refers to local
agencies where they have enforcement authority.
However, EPA has a well-defined and important role as well.
The Agency is charged by the Act with assuring that State programs
enforcing State Implementation Plans and, where delegated, NSPS and
NESHAPS standards, are adequately and consistently implemented and
regulations enforced. This responsibility has been met through various
State program oversight activities ( NAAS ), grant negotiations, and by
requiring the reporting of certain State compliance monitoring and
enforcement activities. The primary existing mechanism by which State
actions are reported to EPA is through the Compliance Data System ( CDS ).
A continuing problem with this oversight function is that while there is a
mechanism for tracking data on violations, EPA has never clearly defined
in national guidance what it considers to be a reportable violation.
While a State agency's legal obligation to enforce its regulations is
clear, some discretion exists on what violations should be reported, and
when and how such violations are to be reported. Such discretion
generally allows the agency to direct limited resources to areas of
greatest need and to respond more equitably to different types and
magnitudes of violations. However, it can also lead to excessively
variable practices on what to report as a violation and when to report it,
resulting in unequal treatment of sources.
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All Regions have developed approaches in working with State agencies
on reporting of violations. However, in the absence of national guidance,
inconsistencies exist from Region to Region, and State to State, regarding
what constitutes a reportable violation, when and how it is entered in
CDS, and what information is necessary to support the reported violation.
It is the intent of this guidance to address the basis of these
inconsistencies and minimize their impact. It is not the intent of this
guidance to require compliance status information for purposes of the
Agency routinely overriding basic State enforcement responsibility and
decision making.
The task of developing the above mentioned national guidance is
divided into five basic issues:
o What is a Federally-reportable violation, i.e., which
violations does EPA want reported to it by the State?
o What specific information about reportable violations
does EPA require to effectively monitor the universe of
violating sources? How will the minimum information to be
reported on violators be transmitted to EPA?
o At what frequency must minimum information on violators
be reported to EPA?
o How will the compliance status of reported violators be
tracked?
o How will EPA use the information provided to it by the
State?
These issues are addressed in the following sections. They deal only
with State reporting of fundamental data about violators of Federally-
enforceable air requirements. For the purposes of this guidance,
violators include significant violators as well as all other violators
that meet the criteria discussed below.
The scope of reporting and reporting procedures and frequency required
by this guidance do not supercede the monthly informal consultations and
monthly updating of CDS required for sources subject to the "Guidance on
'Timely and Appropriate' EPA/State Enforcement Response for Significant
Air Violators", dated June 1984.
REPORTABLE VIOLATION
The task here is not to establish what constitutes a violation, but
rather to assess whether a violation of a Federally-enforceable
requirement should be reported by the State to EPA. That is, all detected
violations are not of immediate Federal concern. However, certain
violations are. National guidance that permits the States to make this
distinction is provided below.
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For a violation to be reportable to EPA, two conditions must be met.
First, the source must either be an NSPS or NESHAPS facility or, if a SIP
source ( including those subject to NSR and PSD regulations ), be classified
A1 or A2 ( by the EPA definition of class ).
Secondly, to be Federally-reportable, a violation must also meet at
least one of the following criteria: 2/
2/ For the purpose of this guidance, specific terms used in the above
criteria are defined in the following manner:
o An emissions violation includes not only a violation of
numerical emissions limitations but also violations of
other requirements that directly impact the amount of
allowable emissions, such as equipment standards, work
practice standards, and sulfur-in-fuel limitations.
o A significant procedural violation of a State consent
decree, court order, or administrative order includes
failure by the source to accomplish or maintain interim
emission reductions and failure to achieve interim increments
of progress which jeopardizes the ability of the source to
meet the final compliance dates.
o A significant procedural NSPS violation includes such
source activities as failure to install a Continuous
Emission Monitoring System ( CEMS ) or other monitoring
equipment, failure to conduct timely performance tests,
and failure to conduct appropriate monitoring and associated
recordkeeping. It does not include a failure to report on
time such activities as start of construction or operation
and late reporting of quarterly compliance reports.
o A continuing violation ( emission or significant procedural )
shall include violations which, while not necessarily
continuous for seven days ( i.e., 168 or more hours ),
reoccur regularly or intermittently, and have not been
adequately addressed or resolved by the source. A violation
of this nature shall become reportable if it cannot be or is
not resolved within seven days after the enforcement agency
first becomes aware of the violation. Such a violation is
Federally-reportable even if a source is in compliance on
the last day of the reporting period, i.e., at the time
of the traditional static "snapshot."
o A significant procedural SIP violation includes such source
activities as failure to install CEMS, failure to obtain
required permits ( NSR and PSD ), and the like.
1. Any emissions or significant procedural violation of a
State consent decree, court order, or administrative
order, which was issued by the State to resolve a
Federally-enforceable violation.
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2. Any violation of a NESHAPS requirement, emissions or
procedural.
3. Any emissions or significant procedural violation of an
NSPS requirement continuing for, or likely to continue
for, at least seven days.
4. Any emissions or significant procedural violation of a
Federally-approved or Federally-promulgated SIP requirement
( including an NSR or PSD regulation ) continuing for, or
likely to continue for, at least seven days.
Any violation determined through a Continuous Emission Monitoring
System ( CEMS ) or any other continuous monitoring device or method, where
such device or method is the official emissions compliance test method
prescribed by a Federally-enforceable SIP, NSPS, or NESHAPS requirement,
would be covered by and reportable under one of the criteria specified
above.
REPORTABLE VIOLATION DATA
In order for EPA to carry out its national program oversight
responsibility, the State must provide adequate information about the
reported violation and their enforcement position in a timely fashion to
assure EPA that the violation is being properly addressed. Because this
places a reporting burden on the State, only essential information needed
to satisfy the EPA oversight mission will be required. A portion of these
data, as discussed later, will be tracked through CDS.
At a minimum, the following information, where applicable, must be
provided or made available to EPA for all reportable violations. The
information for items 1-3 must be reported to EPA in all instances. Items
4-6 need not be regularly reported to EPA, however, they must be made
readily available upon EPA's request.
1. Source and emission point identification data;
2. Nature of violation ( i.e., pollutant and emissions
or procedural violation ), location of violation
( i.e., point, process or unit ), and the Federally
enforceable regulation that has been violated;
3. Method and date of initial detection, e.g., stack test,
quarterly compliance report, inspection report, malfunction
report;
4. Duration and magnitude if emissions violation;
5. Known/possible causes of violation, e.g., lack of
proper O&M, emergency release; and
6. State enforcement position and timeframe of expected
action.
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Once a source has been returned to compliance, the method of
compliance verification and the date of compliance achievement must as
well be reported in all instances to EPA according to the same frequency
as reporting violations.
If the Region receives copies of State inspection reports, these may
serve in lieu of the above-listed minimum information if the State
inspection reports provide sufficiently detailed information, at the
required reporting frequency, to permit EPA to meet its mission as stated
in this guidance.
The minimum information detailed for items 1-3 above should be entered
into CDS in a timely fashion. The information required to be regularly
reported or made available to EPA from States on all reportable violations
may be transmitted either by personal communications, manual reports, or
through CDS. However, for items 4 and 5, it will be sufficient if the
information is made available to EPA during an onsite visit if the State
prefers.
FREQUENCY OF REPORTING
The information required by this guidance to be reported to EPA must
be reported on at least a quarterly basis. For newly reported violators,
the initial quarterly report should consist of the minimum information
discussed under the "Reportable Violation Data" section, to the extent it
is available at that time. Subsequent quarterly reports should at least
consist of compliance status changes that occurred during the past
quarter. All such information shall be reported to EPA not more than 45
calendar days after the close of the quarter the information became known
to the State.
METHODS OF COMPLIANCE TRACKING
The compliance status of reported violators will be tracked in CDS by
two procedures. One will be the traditional static "snapshot" based on
the most recently observed compliance assessment of the source, generally
meant to be the compliance status of record as of the end of the quarterly
reporting period. This compliance status is defined to be the most
recently confirmed assessment of source compliance of Federally-regulated
processes, emission points, or units for all Federally-regulated air
pollutants.
The second compliance indicator is intended to track the performance
record of such sources, i.e., a more continuous assessment of compliance,
insofar as that information is available to the enforcement agency. For
instance, a source could go in and out of compliance multiple times within
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a quarter's reporting cycle. Yet, if it was in compliance at quarter's
end, under the snapshot approach, the source would be reported in CDS as
being in compliance with no record of the continuous compliance problems
having occurred. A great deal of valuable information about a source's
operational characteristics, and difficulties, is lost using such
traditional static compliance reporting methods. In addition, a static
assessment of compliance does not lend itself to an evaluation of truly
representative operating conditions when a physical site visit is made,
nor does it encourage source practices that maintain compliance on a more
continuous basis.
To accommodate this second assessment procedure, a continuous
compliance status indicator code will be entered in CDS. With the
addition of such an indicator, not only will we know a source's static
compliance status, but we will as well know its compliance picture during
the reporting period even though its static compliance status may not
indicate a violation at quarter's end. The actual form, mechanics, and
schedule of CDS modifications necessary to monitor the continuous
compliance history of sources will follow in more detailed guidance at a
later date. However, the concept is to enable agencies to more
effectively monitor the continuous compliance practices of problem
sources.
EPA USE OF DATA
EPA has a bonafide mission of national program oversight. The type
and amount of information EPA is requiring the State to provide about
reportable violations through this guidance is necessary to achieve that
mission. More specifically, EPA will use these data to:
1. Maintain a nationally consistent and uniform Federal/
State compliance program;
2. Assess the State's ability to implement and enforce
compliance with the Act;
3. Identify the national air compliance program's strengths
and weaknesses, and improve the program in areas where
the data indicate a need;
4. Determine what is a "realistic" noncompliance rate; and
5. Provide EPA Regions with more detailed background data
for monthly conferences with their States.
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