04/11/86
Timely and Appropriate Enforcement Response Guidance
APR 11 1986
MEMORANDUM
SUBJECT: Timely and Appropriate Enforcement Response Guidance
FROM: J. Craig Potter
Assistant Administrator
for Air and Radiation ( ANR-443 )
TO: Regional Administrators
Regions I - X
Attached is revised guidance on timely and appropriate enforcement
response for significant air violators. This guidance should be used in
your negotiation of State enforcement agreements for FY 1987.
The only substantive change to the current guidance made by the
revision is to extend the coverage to include NESHAPs sources. NESHAPs
violators were not initially covered because it was felt that the 120-day
timeline for resolution of such violations was too long. However, by not
including NESHAPs violators, they were not covered by the mandatory
penalty provision or the monthly consultation provisions of the national
guidance ( although many State enforcement agreements extended such
provisions to NESHAPs violators. ) To remedy this, starting in FY 1987,
NESHAPs sources will be subject to the penalty, data transfer, and
consultation requirements of the guidance but not the timeline. The
timeline will continue to be inapplicable since, as indicated in the
guidance, action against NESHAPs sources should proceed more quickly than
the timeline would permit.
This change was accepted by STAPPA and ALAPCO at their mid-winter
meetings in Jackson, Wyoming. It should improve both the consistency and
the effectiveness of our compliance program. If you have any questions
about interpretation or implementation of the guidance, please call Ed
Reich, Director, Stationary Source Compliance Division, at 382-2807.
Attachment
GUIDANCE ON TIMELY AND APPROPRIATE STATE/EPA ENFORCEMENT
RESPONSES FOR SIGNIFICANT AIR POLLUTION VIOLATORS
I. Scope of Guidance
A.1. It is assumed that States */ will address any violations
of air pollution regulations within their jurisdictions
( except for non-delegated federal standards ).
*/ "State" as used throughout this paper also refers
to local agencies where they have enforcement
authority.
By focusing on a limited group of violators for purposes
of this guidance, it is not intended to detract from the
importance of addressing other violators and the right
and responsibilities of the States and EPA for doing so.
2. This guidance is an initial step towards clarifying mutual
expectations of the respective parties of the Federal-State
partnership in the enforcement of air pollution control
requirements for stationary sources. It is fully expected
that it will be modified and expanded in future years to
reflect experiences in its initial implementation and the
evolution of the air program itself.
3. In accordance with the Deputy Administrator's memorandum of
April 9, 1984 on Forging an Effective State/Federal Enforcement
Relationship, this national guidance will serve as the framework
for State-specific agreements reflecting the parties' mutual
expectations. As that memorandum states, "(t)he Regions will
have to accommodate differences among States, for example, where
their administrative procedures require different timelines for
enforcement action."
B.1. This guidance applies to the following classes of significant
violators:
(a) Class A SIP violators in nonattainment areas in violation
for the pollutant for which the area is nonattainment, and
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(b) NSPS violators ( where delegated ) and sources operating
in violation of Part C ( PSD ) and Part D ( nonattainment
areas ) permit requirements.
(c) NESHAPs violators ( where delegated ). However, the timeline
and NOV provisions in Sections II and III are inapplicable
to NESHAPs violations since action against such sources
must proceed more quickly than the timelines would permit.
2. This guidance does not apply to emergency episodes or sources
constructing without a valid PSD or Part D permit where required
( or in violation of such a permit ). In the case of emergency
episodes, the seriousness of the violation would normally
require expedited action. In the case of a source constructing
without a required PSD or Part D permit or in violation of a
permit, options for obtaining relief may be foreclosed by
allowing the source to continue to construct and, therefore,
expedited action may be essential.
II. Timelines for Enforcement Action
A.1. The clock starts ( i.e., day zero ) 30 days after the date of
the inspection or receipt of a source self-monitoring report
which first identifies the violation. This provides sufficient
time for an evaluation of the inspection or source report data
to determine if a violation exists. If, during this 30-day
period, the State determines that a stack test or a sample
analysis is required to determine or confirm the violation,
the clock does not start until the date of receipt of the
stack test or sample analysis report.
2. Any serious problems occurring earlier in the process would be
identified and addressed in the National Air Audit System process
rather than under these timelines.
B. By day 45, the source should be notified of the violation, and
its need to remedy it by the State in writing or in a documented
conversation ( in any form the State feels is appropriate ).
C. By day 120, the source shall either be in compliance, on a
legally-enforceable expeditious State administrative or
judicial order, be subject to a referral to the State attorney
general or for a State adjudicatory enforcement hearing, or be
subject to a proposed SIP revision which has at least been
scheduled for a State hearing and which EPA staff-level review
shows is likely to be approved. For cases where penalties are
required (see IV below), penalties must also be addressed as part
of the State action if it is to be sufficient to obviate further
EPA action.
D. If a schedule is established, the State will monitor compliance
with that schedule and report on progress in accordance with
established reporting requirements. If a referral is made, EPA
will continue to monitor the progress of the case to and after
filing. If a SIP revision is initiated, EPA will monitor the
progress of the revision through the State administrative
process. If a case or SIP revision becomes unduly delayed, EPA
will discuss this with the State and may choose to initiate a
parallel Federal action. No formal timelines are being
established for the stage of the enforcement process, however.
E. If none of the actions specified in C. have occurred by day 120,
EPA will discuss with the State the status of the State's actions
and its expectations. If discussions with the State suggest that
the State is close to resolving the violation or that further
deferral is otherwise appropriate, EPA will continue to defer to
enable the State to complete its action. If EPA determines that
further deferral is not justified, it will proceed with its own
action at this point.
F. When EPA takes the lead in a case, it will act to get the source
in compliance, on a schedule, or subject to a Section 120 action
or judicial referral within 120 days of its assumption of the
lead. The possibility of a joint action should be considered as
an alternative to a unilateral EPA action where feasible.
III. Issuance of NOVs by EPA
A. At day 90, EPA ( after consultation with the State on the progress
of the case to date ) may take one of the following actions as
circumstances dictate:
(a) Initiate case development activities through an inspection
or issuance of a Section 114 letter. ( This will be less
likely to be required if the State provides sufficient
documentation to support an NOV, as provided in II.C. )
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(b) advise the source that EPA will issue an NOV in 30 days if
the source does not reach an acceptable resolution with the
State before then. ( This should be used only where such an
action by EPA is likely to be of significant value in
prompting the source to reach an acceptable agreement with
the State ).
(c) issue the NOV, if requested by the State or if it is clear
that a resolution will not be reached by the State by day
120 and that the environmental significance of the source
warrants EPA action at this point.
B. EPA will routinely issue NOVs, if not already issued, on ( or
shortly after ) day 120 if the violations are still unresolved
at that point. This is not intended as a criticism of the
State action but only as expression of EPA concern to reinforce
State efforts and as a necessary legal prerequisite to further
EPA action. ( NSPS sources will receive letters of violation
rather than NOVs ).
C. Any NOV issued on day 120 will be issued only after consultation
with the State. If there is some particularly compelling reason
why the NOV should not be issued to a source at day 120, EPA will
defer its issuance but this is not expected to be the case in the
vast majority of cases. EPA will rely wherever possible on
information provided by the State according to mutually-agreed
upon procedures.
D. In addition, EPA may immediately issue an NOV to any source
subject to this guidance where it finds the violation rather
than the State. ( This would not apply to violations discovered
in joint inspections. ) However, prior to a decision on issuance
of the NOV, EPA will discuss with the State the circumstances of
the violation and ascertain the reason why the violation had not
been reported by the State. EPA will also resolve in
consultation with the State who will take the lead for the source
and the nature and timing of follow-up action.
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E. Any NOV issued in a case where the State still has the lead
will indicate that EPA is still looking to the State to resolve
the matter and further EPA action will be required only in the
absence of an acceptable, prompt resolution by the State.
F. EPA will transmit a copy of all NOVs it issues to the State in
whose jurisdiction the source is located. If the violation
clearly impacts upon the air quality of an adjacent State, EPA
will transmit of a copy of the NOV to the State as well.
IV. Penalties
A cash penalty of sufficient magnitude appropriate to the violation
is required as an element of the resolution of the following classes
of violations. If the penalty is not obtained by the State, an EPA
action will be brought. If the State believes it can obtain a
compliance schedule but not the penalty, a joint action could be
appropriate.
The classes of violations subject to this guidance for which an
appropriate cash penalty is required are:
(a) Class A SIP violators in nonattainment areas in violation
for the pollutant for which the area is nonattainment
unless on an EPA-approved DCO or subject to an approvable
SIP revision;
(b) Sources which violate Part D, PSD, and NSPS requirements
after the date the source was required to demonstrate
compliance. ( This would not apply during periods which
the regulations or permit specifically provide for
"debugging" prior to demonstration of compliance, such as
the 180-day start-up period for NSPS sources provided for
in 40 CFR Section 60.8 );
(c) Violators of NESHAPs requirements;
(d) Sources which violate State or Federal administrative or
judicial schedules, thus requiring an extension of the
final compliance date;
(e) Violators which the State or EPA determines are repeat
violators.
This requirement would not be applicable to de minimis violations or
violations arising from force majeure circumstances.
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V. Consultation and Data Transfer
A. EPA and States would initiate or continue at least monthly
informal consultations to discuss compliance efforts. During
these discussions, information exchange relative to obtaining
compliance and penalties would occur. This exchange would
include at least the following items.
(a) The State would identify any newly-found violators
subject to this guidance.
(b) The State would identify sources notified of noncompliance
during the month consistent with Section II.B.
(c) The State would identify violators where action had been
taken, consistent with Section II.C., including penalties
where required by Section IV.
(d) The State would discuss the status of other enforcement
actions pending or in progress if requested by EPA.
(e) EPA would identify sources for which it had completed
action and provide the status for other sources where
action is pending or in progress.
(f) EPA would identify any sources it had found in violation and
confer with the State in accordance with III.D.
B. The CDS would be updated by EPA and/or the State on a monthly
basis to reflect:
(a) Compliance status changes for newly-identified violators
which are in violation on the last day of the month prior
to the consultation and which were ( or are expected to be )
in that status for 7 days or more.
(b) Sources notified of noncompliance.
(c) Sources with completed enforcement actions, including any
schedules and incremental dates for returning to compliance.
(d) Sources found to be in compliance with final limits.
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C. Inspection results other than those affected by the above will
be provided in accordance with current practices and EPA
accountability system requirements.
D. EPA and the State will share inspection results and monitoring
reports for use in enforcement proceedings to the extent
practicable. State personnel should be encouraged to provide
evidence, including testimony, for Federal proceedings. Federal
personnel should similarly support State enforcement proceedings.
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