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DEE-5: Air Pollution Control Enforcement Policy - Appendix I

Guidance on Timely & Appropriate Enforcement Response August, 1984

Scope of Guidance

  1. This guidance applies to the following classes of significant violators:
    1. Class A SIP violators in nonattainment areas in violation for the pollutant for which the area is nonattainment, and
    2. NSPS violators and sources operating in violation of Part C (PSD) and Part D (nonattainment areas) permit requirements.
  2. This guidance does not apply to emergency episodes, sources constructing without a valid PSD or Part D permit (or in violation of such a permit), or NESHAPs violations since actions against such sources must proceed more quickly than the timelines would permit. In such cases, action should proceed as expeditiously as possible.
  3. DEC will draft guidance to apply to classes of violators other than the above. This guidance will be provided in draft to EPA by january 1, 1985. Final guidance will be added to this guidance for the other classes of violators by April 1, 1985.

Timelines for Enforcement Action

  1. The clock starts (i.e., day zero) 30 days after the Date of the inspection or receipt of a 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 or local agency 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. By day 45, the source should be notified of the violation and its need to remedy it by the state or local agency in writing or in a documented conversation (in any form the state or local agency feels appropriate).
  3. By day 120, the source shall either be in compliance, on a legally-enforceable expeditious state or local agency administrative or judicial order, be subject to a referral to the state or local agency attorney general or for a state or locaL Agency adjudicatory enforcement hearing, or be subject to a Proposed SIP revision which has at least been scheduled for a state or local agency hearing and which EPA staff-level review shows is likely to be approved. For cases where penalties are required (see penalties below), penalties must also be addressed as part of the state or local agency action if it is to be sufficient to obviate further EPA action.
  4. If a schedule is established, the state or local agency 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 or local agency and may choose to initiate a parallel Federal action. No formal timelines are being established for this stage of the enforcement process, however.
  5. If none of the actions-specified in 3 have occurred by day 120, ePA will discuss with the state or local agency the status of proposed actions and its expectations. If discussions with the state or local agency suggest that the state or local agency is close to resolving the violation or that further deferral is otherwise appropriate, EPA will continue to defer to enable the state or local agency to complete its action. If EPA determines that further deferral is not justified, it will proceed with its own action at this point.
  6. 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. EPA will encourage continued state or local agency participation Even where EPA takes the lead. The possibility of a joint action should be considered as an alternative to a unilateral EPA action where feasible.

Penalties

A cash penalty of sufficient magnitude appropriate for 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 or local agency, an EPA action will be brought. If the state or local agency 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:

  1. 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;
  2. violators of Part D, PSD, and NSPS requirements which continue to operate after failure to demonstrate initial 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);
  3. sources which violate state or local agency or FederaL Administrative or judicial schedules, thus requiring an extension of the final compliance date;
  4. violators which the state or local agencies or EPA determines are repeat violators.

This requirement would not be applicable to de minimis violations or violation arising from force majeure circumstances.

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