08/07/86

Policy on the Availability of Low-Solvent Technology Schedules in Clean Air Act Enforcement Actions

                              AUG - 7 1986

MEMORANDUM

SUBJECT: Policy on the Availability of Low-Solvent Technology
         Schedules in Clean Air Act Enforcement Actions

FROM:    J. Craig Potter
         Assistant Administrator
           for Air and Radiation ( ANR-443 )

         Acting Assistant Administrator
           for Enforcement and Compliance Monitoring

TO:      Regional Administrators
         Regions I-X

    Your staffs have requested resolution of the issue of when low-solvent
technology ( LST ) schedules can be considered as an available method of
compliance in cases brought to abate emissions of volatile organic
compounds ( VOC ).  They also asked for guidance on what period of time
should be given in a compliance schedule.  In response, we have determined
the following Agency policy.

Background

    In earlier guidance addressing options for VOC control, EPA encouraged
the low solvent ( reformulation ) approach.  Though compliance dates in the
SIPs were generally December 31, 1982, EPA recognized when the earlier
guidance was issued that it could take longer than December 31, 1982 for
sources to develop and implement complying coatings.  Through surveillance
and enforcement activities by the States and EPA in recent years, it
became evident that many sources had not made serious efforts to find
complying coatings or, in some instances, efforts directed toward
complying coatings failed to yield desirable results.  Often, sources were
not vigorously pursuing the alternative of installing add-on controls.  As
a result we now face extended non-compliance, increased VOC enforcement
activity, and a need to issue specific guidance on what is an

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acceptable schedule for VOC violators where pursuit of LST is being
considered.  It must be emphasized that more than five years have passed
since the VOC regulations were first adopted by the States.  With the
ozone attainment dates already past in many areas and less than two years
away in extension areas, it is critically important to assure compliance
in an expeditious manner.

Policy

    LST schedules may be used in EPA enforcement actions as long as the
following five conditions are met:

    1.   The schedule must be expeditious.  It can provide no more than
         three-months from the date of filing of the complaint ( or
         equivalent State action in cases where the State is pursuing
         the enforcement action ) for a source to demonstrate compliance
         using complying coatings.

    2.   Add-on controls must be part of the schedule with a commitment to
         implementation should the LST program fail.  The add-on control
         program can extend up to an additional twelve months.  It must
         begin at the end of the three-month (or shorter) LST schedule and
         have increments of progress encompassing:  commencing engineering
         studies, ordering control equipment, commencing installation of
         control equipment, completing installation, and demonstrating
         compliance.

    3.   Final compliance cannot extend beyond December 1987.

    4.   Stipulated penalties must be part of the schedule for failure to
         meet incremental dates of the add-on control program.

    5.   Civil penalties must be obtained.  ( This requirement is
         established by previous policies such as the September 20,
         1982 Post-1982 Enforcement Policy and the June 28, 1984
         "timely and appropriate" guidance for the air program.
         These policies are located at Sections V.R. and I.I.
         respectively in the Clean Air Act Policy Compendium. )
         Penalties assessed by EPA must be consistent with the
         September 12, 1984 CAA Stationary Source Civil Penalty Policy,
         as amended, and penalties assessed by States must be consistent
         with the June 26, 1984 guidance by the Deputy Administrator
         entitled "Implementing the State/Federal Partnership in
         Enforcement:  State/Federal Enforcement Agreements."  These
         policies are located at Sections V.Y. of the Clean Air Act
         Policy Compendium and Tab GM-41 of the General Enforcement
         Policy Compendium, respectively.

    Schedules resolving State enforcement actions will be evaluated in
light of this policy to determine the appropriateness of EPA deferring to
the State resolution.  A State enforcement resolution should include at
least conditions (1), (2), (3) and (5) of those required in EPA actions.

    This policy is effective on the date of this memorandum, except for
the following limited situation.  To allow for a smooth transition,
ongoing State settlement negotiations where greater than three-month LST
Schedules are being considered will be accepted as long as the other
elements of this policy for a State enforcement resolution are satisfied.
This limited exception will terminate ninety days from the date of this
guidance.

    This policy is not applicable to schedules issued pursuant to Section
113(d).  Approvability of those schedules is dependent upon meeting the
requirements of Section 113(d).  However, in making a determination of
expeditiousness for a DCO, the concepts outlined in conditions (1) and (2)
of this guidance should be followed.

    If you have any questions on this policy, please call your Regional
liaison contact in OAQPS's Stationary Source Compliance Division or OECM's
Air Enforcement Division.

cc:  Air Division Director, Regions I-X
     Regional Counsel, Regions I-X