EPA Softens Stance on Clean Air Act Violations
By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP
In a memorandum issued Aug. 25, 2014, to its Regional Air Enforcement Division Directors, EPA announced that it is relaxing its long-standing approach to the identification and tracking of high priority violations (HPV) of the Clean Air Act. The revised Enforcement Response Policy for High Priority Violations of the Clean Air Act: Timely and Appropriate Enforcement Response to High Priority Violations took effect on Oct. 1, 2014.
Under the new HPV policy, the categories of violations that are designated as HPVs have been reduced from ten to the following six categories:
- Failure to obtain a New Source Review (NSR) permit, install Best Achievable Control Technology (BACT) or Lowest Achievable Emissions Reduction (LAER) or obtain offsets, which includes synthetic minor sources that violate emission limits causing actual emissions to exceed major source thresholds;
- Violations of enforceable emission limits, emission standards or operating parameters in a New Source Performance Standard (NSPS) for at least seven days;
- Violations of enforceable emission limits, emission standards or operating parameters in a National Emissions Standards for Hazardous Air Pollutants (NESHAP) for at least seven days;
- Violations of federally enforceable emission limits, emission standards or operating parameters in Title V operating permits;
- Violations of federally enforceable work practices, testing, monitoring, record keeping or reporting requirements that substantially interfere with enforcement of a requirement or a determination of a source’s compliance; or
- Other violations identified by EPA and communicated to the state agency (e.g., violations lasting less than seven days).
Gone are the former separate categories used since 1998 for failure to submit a Title V permit application; violations of the terms of a consent decree, court order or administrative order; violation of Title V certification obligations; and violations of risk management plan requirements. Also gone is the former matrix used to determine whether certain violations were extensive enough to be designated as HPVs.
Once a state agency receives information that a source has a violation in one of these six categories, the state agency is subject to a schedule for informing EPA and addressing and resolving the HPV in a timely manner. “Day Zero” is established no later than 90 days after the agency has information indicating a HPV has occurred.
Under the new HPV policy, the state agency must advise the source that violations have been identified within 45 days of Day Zero. This could be in the form of a formal notice of violation (NOV) or less formal communication. Under the former policy, state agencies were required to issue a formal NOV within 60 days.
The state agencies are required to enter information about the HPV in a new federal database, Integrated Compliance Information System (ICIS – Air), and attempt to address the HPV within 180 days of Day Zero, such as by issuing an order requiring compliance, payment of penalties and/or a compliance schedule. Cases not addressed within 180 days are required to be discussed in quarterly consultations with the EPA Regional Office. Under the former policy, failure to address a case within 150 days triggered monthly consultations.
There is no fixed timeline under the new policy for final resolution of a HPV. However, if the HPV has not been addressed within two years of Day Zero, the EPA Regional Office is to assess whether direct federal enforcement is warranted.
Another substantial change under the new policy is a new mechanism whereby EPA and the state agency may agree to remove a HPV from its list if it is determined that insufficient evidence can be developed to prevail or the HPV does not involve ongoing threats to the public and expenditures for agency oversight is not in the public interest.