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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