GENERAL REPORT
OK THE
AIR COMPLIANCE REVIEW GROUP
January 1975
Barry R. Korb, OPM, Chairperson
Francis I. Blair, OPM
David Carroll, OEGC
Robert Duprey, OEGC
Sandra Lee, OAWM
Walter W. Muelken, OPM
Jerome Ostrov, OEGC
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TABLE OF CONTENTS
I.
II.
III.
IV.
EXECUTIVE SUMMARY
Findings and Recommendations
Point Source Inventories
. Compliance Schedule Development
Compliance Monitoring Program
Enforcement Actions
Point Source Compliance
Resources
Procedural and Communication
Problems
INTRODUCTION
Methodology
PRESENT AND PROJECTED COMPLIANCE LEVELS
FOR POINT'SOURCES
Compliance Data on Point Sources
Inclusion of a Source in the MBO
System
Classification of a Source in the
MBO System
, Relationship of Point Source
Compliance to Air Quality
Page
2
3
4
5
6
7
II-2
III-l
III-2
III-4
III-5
Present Compliance Levels for Point Sources III-6
.Expected Status of Point Source Compliance
In One Year 111-10
Delayed Compliance by Major Point Sources 111-12
Delayed Compliance by Small Point Sources 111-13
Delayed Compliance by Economics 111-14
Federal Facilities 111-14
STATUS OF STATIONARY SOURCE COMPLIANCE EFFORTS
Status of Emissions Inventories IV-1
Description of Current Point Source
Inventories IV-1
Hazardous Air Pollutants Enforcement
. Management System IV-5
Completion and Updating of NEDS IV-5
Headquarters Support of Inventory
Development and Use IV-7
Summary IV-10
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TABLE OF CONTENTS (cpn't)
Page
Status of Compliance Schedule Development IV-11
Description of Current Program IV-11
Section 51.15 Schedules IV-12
Immediately Effective SIP Requirements IV-12
Major Problem Areas IV-15
Uncooperative or Inadequate State
Programs IV-15
Poor Regional Organization IV-17
Operational Problems with Federal
Register Procedures IV-18
Recalcitrant or Difficult Source
Control Problems/Delayed SIP Approvals IV-19
Legal Problems with Post-75 Compliance
Schedules IV-20
Status of Compliance Monitoring Program IV-25
Regional Field Surveillance Programs IV-26
Status of CDS and Problems in its
Implementation IV-26
Frequency of Reporting IV-31
New Source Review
Frequency of Source Inspections IV-34
Protocol for EPA Source Inspections IV-35
Utilization of S&A Division Personnel IV-36
- Status of EPA Enforcement Efforts IV-38
Enforcement Strategies . IV-39
Assessment of Prioritizatipn of
F-PA Enforcement Actions IV-39
Regional Enforcement Strategies IV-42
Strategy: One thru Seven
Enforcement Tools IV-45
Section 114 IV-45
Section 113-Notice of Violation IV-46
Section 113-Conferences IV-47
Section 113-Enforcement Orders IV-48
Section 113-Civil Action IV-49
Section 113-Criminal Action IV-50
Section 304-Citizens Suits IV-51
Public Affairs IV-51
Section 307 Challenges IV-53
Chain of Custody v IV-53
Constraints Related to SIPs IV-53
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TABLE OF CONTENTS (con't)
"^ Page
V. RESOURCES
Regional Sources V-2
Problems and Recommendations/Resources V-3
Overall Regional Needs V-3
Region-by-Region Needs V-5
Other Observations V-6
OAQPS Index of Comparative Workload V-8
§ 105 Air Pollution Control Agency V-10
Regional Use of Grants V-10
Management of Grant Funds V-12
VI. HEADQUARTERS/REGION/STATE/LOCAL INTERACTIONS
Headquarters Problems VI-1
Information Distribution VI-1
Legal and Technical Expertise VI-2
Policy Changes VI-3
Concurrence VI-4
Industry Relationships . VI-5
Management Attitudes Towards Air Data VI-5
Rumor VI-5
Regional Problems VI-6
Grants VI-6
Organizational Techniques VI-6
Working Level Meeting VI-7
Non-SIP Related Problems VI-7
State and Local Problems VI-8
Program Planning VI-8
Interaction with States on Court Cases VI-9
APPENDIX
111
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TABLE OF TABLES
Table Page
1 Regional MBO Output Commitments vs. Ill- 3
Regional Projections on Final
Number of Point Sources
2 Compliance Status Summary III- 8
3 Actionable Sources III- 9
4 Compliance Monitoring Activity III-ll
5 Some Expected Post Mid-1975 Compliance
Problems by Source Category
6 Status of National Emissions Data System IV-2 and IV-3
7 Summary of Point Source Compliance Status IV-14
8 Alternative Policies for Post Mid-75
Compliance Schedules IV-22
9 Status of Compliance Data System (CDS) IV-27
10 Status of Overdue Increments from CDS. IV-28
11 EPA Enforcement Actions IV-38
12 Division of Stationary Source Enforcement
Regional Contracts Summary V- 2
13 Recommended Increases in Regional
Stationary Source Enforcement Positions V- 4
14 Regional Workload Index V- 8
15 Regional Distribution of Air Enforcement
Positions V- 9
16 Hypothetical Example of How Grant Funds
are Being Managed in Several Regions V-13
TABLE OF FIGURES
1 Distribution of Selected EPA Stationary IV-40
Source Enforcement Actions by AQCR and
Emissions
2 . Distribution of TSP Enforcement Actions IV-41
and NEDS Facilities by AQCR Priority
IV
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I. EXECUTIVE SUMMARY
The Assistant Administrators for Planning and Management,
Enforcement and General Counsel, and Air and Waste Manage-
ment established the Air Compliance Program Review Group in
May 1974. In the course of reviewing the Air Stationary Source
Compliance program, the group visited the ten regional offices,
ten States, and seven local air pollution control agencies. In
addition, an independent assessment was made as to the status
of source compliance and the involvement of State and local
programs in obtaining source compliance. This report is one of
the products of that review.
The present Air Compliance Program must be viewed within
the context of the Clean Air Act Amendments of 1970, which set
up extremely stringent guidelines for the development and imple-
mentation of air pollution control regulations. The Review Group
assumes that EPA is going to continue to implement its many
other programs, especially the new air programs, such as air
quality maintenance. EPA's compliance program, being basically
on track, will have to proceed within the constraints of its present
resources, plus a possible limited increase. The issues addressed
in this report, therefore, aim at making the program more efficient
and more effective in view of the new demands for air resources
that iiave been and will be placed on the regional offices.
The major conclusions of the Review Group are:
Though much progress will have been made, the projected 94%
program planning commitment for point source compliance at
the end of FY 75 is unrealistically high. A more realistic, but
still optimistic estimate, is 83. 5%.
Though the approach to air compliance is reasonable, significant
improvements can be made in the implementation of the existing
stationary source air compliance program:
-- Inventories need to be expanded, updated, coordinated, and
supported.
-- Compliance schedule development must be completed and
policy on post-mid-75 schedules finalized.
-- Compliance monitoring programs must be expanded, clearly
planned, and based on the Compliance Data System.
-- Enforcement efforts must be based on a prioritized compliance
strategy.
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State and local air pollution control agencies have made 81%
of the point source compliance determinations, established
82% of the point source compliance schedules, and made 89%
of the determinations of compliance with increments of progress
under compliance schedules^ according to the results of a survey
by the Review Group. State and local agencies, however, have,
in many instances, been slow in expanding their enforcement
activities to the extent required to fully implement the SIP.
Thus, according to State reported data, over 7,000 point sources
require immediate action such as surveillance or enforcement
by EPA or State or local agencies. Since the key to a successful
national compliance program is enforcement oriented State and
local programs, much of EPA's efforts in FY 75 and 76 must be
aimed at encouraging the States to assume a larger role
in this area.
NAAQS in many AQCR's will not be achieved by the statutory
deadlines. For total suspended particularlies" high urban
background" and "fugitive dust,' will keep levels in many
urban areas above the standards. Reasonable control strategies
may not be developable in all of these AQCRS. Appropriate
legislative relief is necessary so EPA will not have to promulate
socially or economically unacceptable controls strategies.
The report includes about 90 recommendations to help solve
problems that have been uncovered during the course of the review.
Some of the major findings and recommendations are summarized
below.
FINDINGS AND RECOMMENDATIONS
The report is organized according to the basic elements of
the air compliance effort: point source inventories, compliance
schedule development, compliance monitoring, and enforcement
actions. Also included are reviews of the program's point source
compliance levels, resources, and general procedural-and-
communications problems.
Point Source Inventories
Present EPA inventories are inadequate; regions project that
over 15% of the major point sources are not yet in the program
planning and reporting system. We recommend that the regions
develop a formal program to complete the initial indentification of
point sources of air pollution and to see that all requisite source
information is entered into the Compliance Data System (CDS),
the National Emissions Data System (NEDS), and the Agency's
Management-by-Objectives (MBO) system.
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Compliance Schedule Development
The key problem in this area is the approval of compliance
schedules (enforcement orders) for sources that cannot
meet the July 1, 1975 deadline. Where air quality standards
will be violated, EPA cannot approve, anywhere in the country,
State-initiated compliance schedules that have post-mid-75
completion dates. Where the standards will not be jeopardized,
EPA can approve such schedules only in the nine states of the
9th circuit. Regions are either applying §113 orders to sources
that need more time or allowing States to issue their own orders.
These techniques may or may not stand up in court. While EPA
does not have the resources to handle the post-mid-75 compliance
schedule problems, the States (with the exception of nine western
States) presently cannot legally have a role. This problem is
now before Congress in the form of a legislative amendment.
OEGC is also preparing explanatory regulations on this subject.
We recommend its swift resolution since it is a source of major
confusion in the regions.
In addition, an enforcement order cannot take effect until the
person to whom it is issued has had an opportunity for an enforce-
ment conference with EPA concerning the alleged violalation.
Citizens should have an opportunity to testify at these enforcement
conferences if they make a request in writing beforehand.
Accordingly, we recommend that public notice be given of all
post-1975 §113 enforcement order compliance schedules and
enforcement conferences. Further, we recommend that Head-
quarters develop guidelines for §113 actions to: (a) inform the
public of how decisions are made under §113; and (b) subject
the regions to an operating standard which will enable the product
of a §113 proceeding to weather subsequent court challenge.
One of the FY 74 program goals was to establish all requisite
compliance schedules. Yet, more than 3, 500 point sources
still required compliance schedules at the start of FY 75.
Normal lead times inherent in control equipment procurement
will result in many of these sources being unable to meet the
mid-75 attainment dates, even if they are expeditiously placed
on compliance schedules. We recommend that each region
negotiate a program to complete compliance schedule develop-
ment with its States. The results of this negotiation should be
a condition on the State program grant. Should a State remain
incapable or uncooperative in submitting schedules to EPA, EPA
should initiate selective EPA enforcement actions. If problems
still remain, the region should initiate an effort to complete
these schedules using contract funds available from OEGC.
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Compliance Monitoring Program
The Review Group found that most regions could not specify
how they were going to identify or choose the sources they
were going to inspect under their ongoing compliance monitoring
program. We recommend that regions develop specific plans
for their compliance monitoring program including increasing
the amount of regional enforcement effort spent in the field
and at State/local agencies. And, to assure implementation of
the compliance monitoring program, it is recommended that
regional Surveillance and Analysis (S&A) Divisions form air
monitoring groups and assign clear responsibility to these groups
for meeting the S&A Division's air commitments.
The Compliance Data System's (CDS) master file includes 10,405
facilities, representing about 64% of the total number of point
sources for which the regions have made program planning com-
mitments. As of September 9, 1974, 38,371 (or 90%) of the
increments of progress listed in CDS have not been updated
by the regional offices to indicate whether or not the increments
have been met. In addition, most regions are not fully utilizing
CDS as an enforcement management tool. We recommend that
DSSE reacquaint the regions with the full potential of CDS and
assist them in using it as a full enforcement management system.
Regional enforcement programs have generally assigned low
priority to the review of new sources, because headquarters
has not assigned them a high priority and resources are limited.
New sources are often not included in CDS. Many regions do
not monitor the States' programs to review new sources prior
to construction. We recommend that regions (1) modify their
program to implement CDS to assure that all new point sources
of air pollution are included, (2) include new point sources in
their compliance monitoring and field surveillance programs,
and (3) review State new source review procedures.
Enforcement Actions
Most regional offices are not fully utilizing their tools of
constrained grants, selective enforcement, contractor assistance,
and technical and legal support to encourage reluctant States to
take the lead in achieving source compliance. Some regions have
not developed an adequate compliance strategy. We recommend
that all regions develop and keep updated a compliance strategy
to guide the assignment and utilization of their resources. The
strategy should effectively rank their enforcement effort to obtain
maximum air quality impact with the limited resources. Regions
must effectively utilize constrained grants to encourage States
to adopt an enforcement posture, while continuing to work closely
with States to develop a cooperative relationship.
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RegionalEnforcement Divisions do not fully understand
Federal facilities enforcement. We recommend that regions
review their compliance strategy for Federal facilities and
determine means to: (1) improve the program's focus and (2)
bring the skills and powers of EPA enforcement to bear on this
problem.
Although most regions interviewed understood the problems of
chain of custody, many States did not. We recommend that the
Office of the General Counsel, assisted by OAWM, rectify this
situation by widely distributing a guidance document written so
that an engineer or environmental specialist will understand the
necessary precautions to be taken in gathering evidence so that
it will be admissable in a court proceeding.
DSSE, in conjunction with the Office of the Air Quality Planning
and Standards (OAQPS), should actively assist the regions in dealing
with the problems of differing EPA and State interpretations of
SIP regulations. Some States are interpreting the SIP too leniently;
this could force EPA action to revise the SIP.
OEGC should make every effort in its communications with FEA
to have the difficulties arising from FEA Regulation 215 solved
so that compliance by coal-burning combustion sources will
not be hampered. FEA Regulation 215 places restrictions on the
lowering of sulfur content in fuel.
» EPA should request Congress to expand our authority
by amending Section 113(b) of the Clean Air Act to
provide for civil penalties so that, if deemed
appropriate, a source's dilatory conduct in a civil
proceeding might be penalized. At present, sources
may have a positive incentive to keep extending
negotiations on a possible consent decree.
Point Source Compliance
At the begining of FY 1975, 39% of the major point sources were
reported to be in final compliance, 38% were known to be out
of compliance or on a schedule, and 23% were of unknown status.
This data, based on a national survey conducted by the Review
Group, indicates that the initial FY 75 MBO data presented a good
estimate of source compliance information on a national basis.
The nuirber of sources with unknown status may be due, in part,
to poor communications between EPA and State and local air pollution
control agencies. The Review Group found that knowledge of a
source's compliance status was greater at the local level than
at the State, and in turn, greater at the State level than at the
Federal level.
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Certain large categories of sources are not likely to meet
emission regulations, as a group, in many areas of the country
by July 1975, because of fuel availability or a decision on the
sources part to oppose regulations. Among these are coal-fired
power plants, steel plants, smelters, refineries, and large
municipal incinerators. These sources are important; for example,
76% of all SOx emissions are estimated to be from three categories:
power plants (58%), petroleum refineries (9%), and copper smelters
(9%).
Aside from large categories, some smaller sources found only
in certain geographical areas are also likely to be out of compliance
in mid-1975. Many, of course, will be on compliance schedules.
Some examples are: waste wood boilers, veneer dryers, grain
elevators and dryers, coal-fired industrial boilers, cotton gins,
and hydrocarbon sources (which include gasoline stations, paint
sprayers and dry cleaners).
The Agency's effort to deal with pollution from Federal facilities
is generally lagging behind the program in the private sector.
At the end of FY 75, 63% of Federal stationary sources are projected
to be in compliance, as compared to 94% for private facilities.
The Federal facilities FY 75 start, levels are similarly lower (16%
vs. 39%). There are, however, only 382 major federal facilities
currently tracked, and these may differ in kind from private facilities.
EPA's effectiveness in this area is of symbolic importance.
Resources :
We recommend that 13 additional positions should be sought for
regional stationary source enforcement programs. The greatest
need is in Region V. These additional resources represent the
minimum increase thought to be necessary to maintain the basic
stationary source program. It does not provide for program
contingencies (e. g. , execessive litigation) and it assumes EPA
as a whole is tight on resources.
Regions I, III, and VI are providing State grantees
with more §105 grant money to be spent each year than
the constant level of funding that the region is
allocated. Since air pollution control agency grants
are generally forward funded, this procedure is -legal.
The consequence of this methods of grants management,
however, is that the region increasingly uses future
year funds to finance current pear programs, assuming
a constant (or decreasing) level of funding from year
to year. One region will have to cut its grants by
20% in FY 77 unless it changes its policies or its
grant funds are increased. Headquarters response to
this situation is recommended. The regions should be
encouraged to immediately initiate a prompt resofoflition
of this problem of their own.
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Procedural and Communication Problems
Most of the SIP's that do exist are not maintained in an
up-to-date, organized fashion by the regional offices, i. e.,
the current content of the implementation plan is unknown.
The regulations sections of most SIPs are generally maintained,
although problems in even this key area were found in a few
regions. We recommend that the regions put the necessary
effort into keeping an up-to-date record of all State Implementa-
tion Plans, including compliance schedules, modifications, etc.
Procedures for delegation of New Source Performance Standards
and national Emission Standards for Hazardous Air Pollutants
enforcement to States (localities) are not well understood in the
regions and States. Guidance is needed.
Too often technical assistance provided to the regions depends
entirely on whether someone knows the right person to call. DSSE
and OAQPS should jointly develop and distribute a list of experts
available as witnesses or for special expertise compliance purposes,
and provide continuing liaison.
EPA's policy mechanism has not yet resolved a number of significant
State Implementation Plan related issues, e. g., fugitive dust and
supplementary control systems. EPA has also not established
approved stationary source SIP regulations for all AQCRs in about
13 States (all of Ohio for example). No action can be taken by
EPA's enforcement program to bring the sources into compliance
if there is no SIP.
In order to expedite enforcement actions, the authority to sign
§114 letters and notices of violation should be delegated to the
regional Enforcement Division Directors.
Compliance schedules are slipping due to equipment delays.
We recommend that the Division of Stationary Source Enforcement
(DSSE) should, based on regional input, provide the regional enforce-
ment divisions with guidance on how to handle equipment delays,
and write an updated report on compliance schedule delays so that
the regions are kept informed as to what is considered a generally
"expeditious" schedule.
Headquarters concurrence requirements for compliance schedules
and enforcement orders should be reduced or eliminated.
Regional offices should bear the sole responsibility for the quality
and timeliness of their Federal Register packages for compliance
schedules. Headquarters' review should be limited to matters of
policy and major substantive issues.
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National Program Managers, particularly DSSE, must
carefully monitor requests made by their staff for reporting
beyond the Program Planning requirements. The regions
should vise their leverage with the Office of Regional Liaison
to reduce ad hoc requests for information.
OGC/DSSE should develop a legal memoranda case index on a
category by category basis, and distribute copies of all listed
memoranda and cases to the regions.
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II. INTRODUCTION
The air compliance program is the Nation's first,full-scale
effort to achieve compliance with an environmental law according to
strictly defined deadlines. These deadlines are approaching, and in
view of the critical nature of the air compliance effort, it is important
to assure that the program is proceeding successfully.
In May 1974, EPA's, Assistant Administrators for Planning and
Management, Enforcement and General Counsel, and Air and Waste
Management established an interoffice evaluation team, the Air Com-
pliance Program Review Group, to study the program. Members
of the Review Group were drawn from the Program Evaluation Division
(PED) of the Office of Planning and Evaluation, the Office of Resources
Management, the Office of General Counsel, the Division of Stationary
Source Enforcement of the Office of General Enforcement, and the Office
of Air and Waste Management. Each region assigned one liaison .person
to work with the Review Group. PED has primary responsibility for
the review. This report is the product of that review.
The objective of the air compliance review is to determine if the sta-
tionary source air compliance program is achieving its goals through
program plans based on reasonable priorities. These program goals are:
o To bring sources into compliance on schedule or as soon as there-
after as is reasonable.
o To have the States and localities assume the primary respon-
sibility for achieving source compliance.
Eventually, it will be possible to judge the success of the air com-
pliance program and EPA's air program as a whole on the basis of air
quality. The Review Group, however, felt that, at this time, it
was most appropriate to review the air compliance program from the
point of view of source compliance levels and program activity and
knowledge. Accordingly, the Review Group was interested in deter-
mining which program characteristics correlate with high levels of
point source compliance. Throughout, this report discusses those
factors identified as contributing to a successful compliance pro-
gramfor example, complete source inventories, complete regula-
tions, aggressive enforcement program based on priorities, co-
operative State and local programs, and available technology. It
was not possible, however, to identify the most important factors
because final compliance dates have not been reached for many
sources. Furthermore, each EPA regional office faces different
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sets of sources, initial levels of compliance, and different State and
local program levels of effectiveness. In addition, the Review Group
found that different regions had chosen to emphasize different aspects
of the program.
This report assumes that a successful program is a balanced
program relying heavily on State and local agencies to take the
lead with EPA pushing them to take the lead when necessary.
METHODOLOGY
The review is being conducted in two phases. Phase I focuses
on evaluating the effectiveness of the current program in achieving its
goals and making recommendations to improve the efficiency and effec-
tiveness of the present program. The Review Group also identified
and reviewed the resource requirements of the program. This report
summarizes Phase I.
Phase II will investigate further some of the issues identified but
not fully addressed or resolved in the Phase I review, and consider
a range of options to improve the program as a whole.
Information for this report was collected primarily through
visits to all EPA regional offices and certain State and local air pol-
lution control agencies. Interviews were conducted with one State
agency in each region, and seven local agencies were visited within the
selected States. By meeting with the different jurisdictions, the
Review Group was able to gain an understanding of the program at all
levels.
In its field trips, the Review Group used a number of approaches
to gain an understanding of regional programs. These included:
o Written questionnaires sent to the regions in advance of the
Review Group's visit.
o Using selected enforcement actions as case studies to give the
Review Group insights into specific details of regional programs.
o Selecting a sample of specific sources in a locality, then dis-
cussing them at the regional, State and local level. The dis-
cussions indicated variations in the awareness of problems and
knowledge of source compliance.
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o Arranging joint division meetings in the regions to help under-
stand internal communication in the region.
o Taking a representative of an adjoining region on each regional
visit to provide the Review Group with wider regional perspec-
tive.
o Selecting a random sample of sources from the National
Emissions Data System (NEDS) and asking each region to pro-
vide the information available on the compliance status of its
sources. This allowed the Review Group to independently assess
the status of source compliance vis-a-vis the Management-By-
Objective (MBO) data, and also to assess the involvement of
State and local programs in obtaining source compliance.
None of these approaches, however, would have been successful
without the full assistance of personnel in Headquarters, regions,
States, and localities. Many of the issues this report discusses were
raised by those interviewed. Finally the Review Group acknowledges
that the report does not fully reflect the significant achievements of
those working in the air compliance program.
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III. PRESENT AND PROJECTED COMPLIANCE LEVELS
FOR POINT SOURCES
The primary objective of EPA's air compliance program is to
bring point sources into compliance on schedule (generally by mid-
1975) or as soon thereafter as is reasonable, with State Implemen-
tation Plan (SIP) emission regulations A The Review Group attempted
to determine if this objective is being achieved. It found:
o At the beginning of FY 75, only 39% of the point sources were
in final compliance.
o The 94% point source compliance level projected by the regions
for the end of FY 75 is unrealistically high.
This chapter first reviews the problems with presently available
point source compliance data and then discusses the basis for the
above findings.
COMPLIANCE DATA ON POINT SOURCES
A great deal of effort is expended at the local, State, regional,
and Headquarters levels to track and report compliance data on point
sources. Air output commitments for point source compliance under
EPA's Management-by-Objectives (MBO) system serve as surrogates
for EPA's central air goal: achieving the National Ambient Air Quality
Standards (NAAQ's). Under this system both Headquarters management
and the regional offices can focus on discrete outputs as increments
toward the central goal of the Clean Air Act.
The system, however, is not perfect because of poor inventories
and problems of definition. In addition, point source compliance is
not a precise surrogate for air quality. Thus, point source compliance
data as reported in the MBO system or obtained from the Review
Group's survey are not perfect indicators of the performance of the
air compliance program. In addition, the MBO system itself has
certain problems.
1 This report will refer to the final compliance date for sources as
mid-1975 even though many sources are subject to immediately effective
regulations and some sources have regulations with final compliance
dates after mid-1975.
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Inclusion of a Source in the MBO System
The Division of Stationary Source Enforcement (DSSE) believes that
an enforcement program should keep track of sources which, if con-
trol systems were not operating, could emit over 100 tons per year (TPY),
DSSE feels that these potential 100 TPY sources should be monitored,
along with sources actually emitting 100 TPY or more. EPA adopted
this philosophy in its FY 75 Air Program Planning Guidance, which
states:
"A point source is defined to mean any facility capable
of emitting more that 100 tons per year (TPY) of any
single pollutant assuming no pollution controls. . .
Utilizing potential emissions (will) eliminate the
problem of "disappearing" sources encountered in
the past and provides consistent accounting of progress
of air enforcement. "
Inclusion of sources in the MBO system, however, is a function of
location because the different regional offices and States interpret
"potential" differently. First, while everyone understands that a
facility with an actual emission of 45 TPY, if its 95% effectiveness
control device is operating, has a potential for emitting 900 TPY,
different agencies make different assumptions regarding a facility's
emissions levels when it has reduced its emissions by a process or
fuel change, or is limited in its operation due to seasonal factors.
Secondly, DSSE has intentionally provided flexible guidance on source
inclusion, but this has allowed State and local agencies to either:
1) list as few sources as they can if they distrust.Federal "meddling",
or 2) list as many sources as they can if they are concerned that
§105 Air Pollution Control Agency Grants are, or will be, tied to the
number of 100 TPY sources. Certain regions also expressed the con-
cern that any decrease in their list of sources would lead to a decrease
in their resources allocation. Standardization of definition is critical
if the point source compliance data is to be coherent on a national
scale. The need for standardization was not satisfied by DSSE's
list of those classes of sources that were to be considered 100 TPY
sources.
3. 1 - -The Review Group recommends that the Division of
Stationary Source Enforcement ensure that all regions and States
follow the same understanding for developing their lists of "potential"
100 ton per year point sources and that the FY 76 definition be specific
enough to allow standardization*
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The Office of Air Programs and the vast majority of regions, States,
and local offices visited by the Review Group generally understood
the philosophy behind focusing on potential emitters, in the compliance
monitoring progran, but many believe it to be a second priority, given
the present program status and resource constraints. However, while
protesting the inapproprjateness of the change, States and regions are
gradually switching to "potential. "
Table 1 gives a projection of the expected number of point sources,
by region, under the potential definition. The expected addition of over
3, 000 sources (presently of unknown status) to the MBO system is one
reason why the system's projection for 94% point source compliance
at the end of FY 75 is optimistic.
TABLE I
REGIONAL MBO OUTPUT COMMITMENT vs. REGIONAL PROJECTIONS
ON FINAL NUMBER OF POINT SOURCES
Region
I
II
III
IV
V
VI
VII
VIII
IX
FY 75 Program
Planning Start
(MBO)
877
1356
2546
3097
1793
3450
764
414
1690
680
Projected
"Final" Number
1500-1700
over 1650
Total
16 ,667
3600
much greater
3750
greater
450
1800-1950
1200
19,050-19,400
Notes
Contract being completed
N.Y. will increase
from 648 to over 1000
May go up in Pa.,
Va., and W. Va.
Updated inventory
due 7/31/74
Will increase when
region converts to
potential definition
Tex. uses 50 TPY as
potential definition
Mo. and Neb. inven-
tories incomplete
Some discrepancies,
but generally complete
Ariz, uses monthly
"acihual". Calif may
increase somewhat.
Contract just completed
Plus Regions V and VII
increases
-------
Ill- 4
Classification of a Source in the MBO System
The problem with definitions goes beyond inclusion of sources in
the MBO system. There is a basic concern in the regions as to what
"Air Output la" (Number of Sources in Final Compliance) means. The
Air Guidance defines what is necessary to determine final compliance
in an acceptable manner, and the Guidance requires that this be done
at least once a year for all 100 TPY "potential" sources. But there
is not sufficient appreciation that as reported in MBO "in final com-
pliance" really means "possibly capable of being in final compliance,
and not discovered to be in violation at time of inspection".
As the air stationary source enforcement program develops a more
mature compliance monitoring effort, "in final compliance" will have
only limited value as an output because "all" sources will be in final
compliance as the term is now defined. For the moment, the program
planning data is made suspect because certain states and regions con-
sider a source out of compliance unless they have determined other-
wise, while otheF~regions and States (consider a source in) compliance
unless are told otherwise; the latter is contrary to the Regional Guidance,
A further problem. with "in final compliance" is that the Guidance
requires each source to be checked in an acceptable manner during
the fiscal year before it can be classified as in compliance. This
means, in theory, that the level of "final compliance" would start
at zero at the beginning of the fiscal year. Build up to a peak on
June 30, and then drop to zero again as of July 1. This is illogical,
and most regions have not followed the guidance on this point.
3.2- -The Review Group recommends that DSSE should initiate
a change in the regional guidance to have final compliance deter-
mined by an acceptable manner within one year on a continuius basis.
In at least one region verification of compliance status would be a
problem even with this revision in the guidance - the region does not
have a name and address for every source reported under MBO.
In addition, it was pointed out by Region IV that since many of
its sources will be coming into compliance late in FY 75 or just be-
fore the end of July 1975, it will be impossible for them to verify
them all by June 30, 1975 because of the timing and end of year crunch.
Thus, the regions will either not meet their compliance commitments
or not properly verify compliance.
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III-5
3.3--The Review Group recommends that the Office of Resource
Management provide guidance to the regions on how to report source
compliance at the end of FY 75 if there is not enough timq to veri-
fy compliance by an acceptable method.
The present guidance on criteria, for verifying compliance raised
questions in some regions.
3.4--The Review Group recommends that DSSE review with the
regions the criteria for verifying compliance so that the Guidance
can be updated for FY TIT
Relationship of Point Source Compliance to Air Quality
Point source compliance is not a precise surrogate for air quality.
Source compliance with emission regulations is related through the SIP's
to EPA's ambient air quality goals. The regulations, however, do not
exactly achieve the goals. NAAQS can be achieved without 100% source
compliance if some sources are overcontrolled. In other cases, 100%
compliance by all sources will not result in attainment of NAAQS
for certain pollutants in certain AQCR's. The situation is further com-
plicated because EPA's enforcement program is focusing only on the
larger sources. The net effect is that national or regional point source
compliance levels provide only a rough surrogate for air quality goals.
Even knowledge of noncompliance by specific sources or classes of
sources is generally inadequate, by itself, to determine that NAAQS1 s
have not been attained. It can be said, however, that the higher the
level of point source compliance the more likely it is that the NAAQS's
are being attained, particularly if the compliance program has appro-
priately prioritized its efforts.
The Review Group was told that many AQCR's will not meet the
24-hour Total Suspended Particulate (TSP) air quality standard by mid-
1975, even with 100% source compliance. This comes as no surprise,
since it is estimated that 50 to 60 Air Quality Control Regions will
not meet TSP standards. Reasons include the "high urban background"
due to such factors as re-entrained street dust or rubber tire particu-
lates, and the presence of fugitive dust in urban as well as rural areas.
The more progressive local control agencies are tackling the problem.
Detroit has ordered covering of outside storage piles and wetting down
of gravel and other similar materials. The Puget Sound has begun
a study to identify the source of particulates collected in its samplers.
It has also ordered that roads in industrial areas be paved, beginning
with those nearest the samplers.
-------
Ill- 6
EPA's air program is attempting to tackle the TSP problem. It has
sponsored studies in cities such as New York, Philadelphia, and Pitts-
burgh to determine the source of the particulates. In addition, EPA
is examining SIP's in selected AQCR's to see whether they need revi-
sions. If revisions are required, and if the causes of the poor ambient
air quality are unknown and/or maximum reasonable controls are already
being applied, EPA may not be able to propose a viable TSP control
strategy. At present, the only legal alternative that extends for more
than one year is for EPA to approve or promulgate a control strategy
requiring sources to close down. This situation would be analagous
to the situation where a Transportation Control Plan (TCP) had to in-
clude unacceptable control measures. Legislation similar to that asked
for to deal with the TCP problem-would provide a solution to this problem.
The legislation should not extend existing compliance dates which are
reasonable.
3.5--The Review Group recommends that the Office of Air Quality
Planning and Standards propose appropriate legislation to allow extension
of final attainment dates for State Implementation Plans in those Air
Quality Control Regions where National Ambient Air Quality Standards
will not be met and presently available controls strategies would be
economically or socially unacceptable.
PRESENT COMPLIANCE LEVELS FOR POINT SOURCES
As part of the program evaluation effort, the Review Group conducted
an independent survey of point source compliance. The purpose was
threefold: to independently assess the impact of the air compliance
program, to gauge the extent of State and local participation, and to
crosscheck and gain insight into the MBO reporting system. The
results of the survey, as of the beginning of FY 75 are:
o 39% of the point sources were in final compliance, 38% were
known to be out of compliance, and 23% were of unknown status.
o State and local air pollution control agencies have made 81%
of the point source compliance determinations, established
82% of the point source compliance schedules, made 89% of the
determination of compliance with increments of progress under
compliance schedules, and initiated over 43% of the reported
enforcement actions.
o Immediate enforcement or surveillance action was necessary for
42% of the point sources.
-------
Ill- 7
o Nationally, the compliance program is proceeding in accordance
with the FY 75 initial MBO projections for sources regulated
by SIP's,
Tables 2, 3 and 4 present the results of the survey and MBO data
for the start of FY 75.
Because of resource and time limitations, the total sample was
large enough to allow for significant analysis at only the national level.
The analysis was done in two parts--first on the entire sample, then on a
subsample of sources identified as being included in the MBO commitments.
A national mean with confidence intervals equal to two times the
standard deviation was calculated for various categories of compliance
and noncompliance. A source was assumed to be incompliance if the
region reported it as in compliance; for purposes of the survey, com-
pliance did not have to be verified by one of the acceptable methods
listed in the FY 75 Regional Guidance. The weighting process accounts
for the different percentages for almost equal sample classes in
Tables 2 and 3. Table 2 shows the percentages of sources in com-
pliance of the total sample (36% +_ 5. 6%) and of the MBO subsample
(39%+ 7.9%). These results compare favorably to the MBO data as
of July 1974 (39.7%).
Table 3 presents a more detailed assessment of noncomplying
sources. Again, total sample (15. 2%+_ 4. 4%) and MBO subsample
(18. 2% +_ 6. 7%) percentages of sources known to be out of compliance
and not meeting scheduled increments of progress tend to substantiate
the 16. 1% level reported by MBO data.
The most interesting result of the survey appears when sources of
unknown compliance are grouped with the noncomplying sources. The
new group (Total Actionable Sources in Table 3) consists of those sources
for which some action, either surveillance or enforcement, is necessary.
According to both the survey and MBO data, between 40% and 54% of
MBO sources fall into this "necessary action" group. A slightly larger
proportion (51% +_ 5. 6%) of the total sample of all sources requires
some action, as might be expected.
Based on the results of the survey's source-specific information it
can be concluded that the initial FY 75 MBO data presented, on a national
basis, a good estimate of source compliance information. There appeared
to be, however, region-by-region variations in consistency.
-------
Table II
COMPLIANCE STATUS SUMMARY
IDENTIFIED POINT SOURCES
)ata Source
1BO Reporting System
Sample All Sources
Sample MBO Sources
COMPLIANCE STATUS
Total
15,728
334
151
In
Final Unknown
Comp- Comp-
liance liance
6253 4629
(39.7%) (29.4%)
128 132
(36.9%+ (35.9%+
5.6%)~ 5%)
62 38
(39.0%+ (22.9%+
7.9%T 6.7%7
OUT OF COMPLIANCE
1 :
Total
4846
(30.8%)
74
(27.3%+
5.2%)
51
(38.0%+
8.8%)
With- Un-
out known
Sche- Sche-
dule dule
1004 *
18 5
9 4
On Schedules
Total
3842
51
i
38
Not
Meeting meeting
Incre- Incre-
ment ment Unknc
2306 758 778
33 6 12
21 3 9
* The MBO system does not report this category directly, but includes applicable sources under
1) out of compliance, without schedule, or 2) on schedule, unknown as to meeting increments.
H
H
I
ob
-------
Table III
ACTIONABLE SOURCES
SOURCES SUBJECT TO MONITORING OR ENFORCEMENT ACTIONS
(% of total sources)
^SOURCES SUBJECT TO IMMEDIATE ENFORCEMENT ACTION
on schedule, not meeting increments
out of compliance, not on schedule
J3UT OF COMPLIANCE ACTIONABLE SOURCES
SUBJECT TO IMMEDIATE ENFORCEMENT ACTION
on schedule, unknown as to increment
unknown as to schedule
All Sources
S.67.+3.47.
15.2%+4.4%
Sample MBO
MBO
9.5%+5.4%
18.2%+6.7%
11.2%
16.1%
TOTAL ACTIONABLE SOURCES
OUT OF COMPLIANCE ACTIONABLE
unknown compliance status
("All Sources" and "Sample MBO" from survey by Review Group. "MBO" from
1 July 74 Program Planning commitment).
45.6%
-------
III-10
Evaluation of the data on State and local participation (Table 4)
in the air compliance program shows that 80% to 90% of the effort in
determining compliance, establishing schedules, and following them up,
is being done by non-Federal agencies. The high level of State and
local participation in the air compliance progam does not mean that they
are doing an adequate job of assuming primary responsibility for achieving
source compliance. The high percentage of "actionable" sources indi-
cates the inadequacy of state and local efforts.
The size of the "actionable" class of sources may be due, in part,
to poor communications between EPA and State and local air pollution
control agencies. The Review Group discussed the compliance status
of a small group of sources at the Federal, State, and local level
in each region. The discussion indicated that knowledge of a source's
compliance status increased as the Review Group went from the Federal
to the State to the local level. Poor communications may also explain
why Table 4 implies that EPA takes approximately 57% of the enforce-
ment actions; State and local actions may not have been fully reported
to EPA.
EXPECTED STATUS OF POINT SOURCE COMPLIANCE IN ONE YEAR
The Review Group does not expect the status of point source com-
pliance at the beginning of FY 76, to be as high as the 94% projected
by the first quarter FY 75 MBO data--that is, the program will not
do as well as implied by the regions' combined commitments. A more
realistic estimate for point source compliance at the end of FY 75 is
less than 83. 5% or less than 17, 170 of an expected 20, 500 point sources.
This estimate was made by applying, reasonable assumptions as to the
percentage of sources that would move from their categories (unknown,
on schedule, etc.) at the beginning of FY 75 into the "in compliance"
category at the end of FY 75.
During its visits, the Review Group tried to discuss with the regions
the realism of their commitments on the status of source compliance
at the end of FY 75. In almost every region, the MBO number of
noncomplying sources is considered to be low. They do not adequately
allow for: identification of additional, noncomplying sources; discovery
of sources that have fallen out of compliance; inadequate State or local
efforts; litigation on SIP's; or slippage of compliance schedules
(Region IV expects 25% of their schedules to slip past mid 1975).
Some of the major reasons for source non-compliance after mid-1975
will be discussed in later chapters: incomplete source inventories, delays
in developing compliance schedules, delays in completing SIP regulations,
and uncooperative or unaggressive State or local programs. A number
-------
Table IV
COMPLIANCE MONITORING ACTIVITY
Federal vs. State & Local Actions
Determination of Compliance
Determination of Non-Compliance
Establish Schedule
Determination of Compliance
with Increments
Enforcement Actions
NO. Of
Actions
128
74
51
32
10
ALL SOURCES
%*
Federal
10.9
9.5
5.9
12.5
50.0
i
K
MBO SOURCES
State -
Local
84.4
82.4
94.1
87.5
50.0
No. of
Actions
62
51
38
26
7
Federal
19.4
7.8
7.9
11.5
57.1
State -
Local
80.6
82.4
92.1
88.5
42.9
* The sum of Federal and State-Local percentages may not equal 100% because of information gaps.
BASED ON SURVEY BY REVIEW GROUP
-------
Ill-12
of other causes, most beyond the control of compliance programs are
reviewed in this chapter, these include: large sources of air pollution
which chose to resist air pollution emission regulations, miscellaneous
small sources with assorted technical or economic problems, and non-
compliance of Federal facilities.
Delayed Compliance by Major Point Sources
The Review Group found that certain large categories of sources
are not likely to meet emission regulations, as a group, by July 1975.
Among these are coal-fired power plants, steel plants, smelters, re-
fineries, and large municipal incinerators. The importance of these
source catgories is illustrated by observing that 7. 6% of all SOx
emissions are estimated to be from three of these categories: power
plants (58% including oil-fired plants), petroleum refineries (9%), and
copper smelter (9%).
Reasons for non-compliance vary. A number of power plants that
had expected to meet emission requirements by switching to oil, sud-
denly found that oil was as difficult to obtain as was low-sulfur coal
in the East. In addition, the plants had to comply with Federal Energy
Administration Regulation No. 215, which placed constraints on con-
verting burners to low-sulfur coal or oil (see Chapter IV). In order
to continue burning high-sulfur eastern coal, they had to use Flue
Gas Desulfurization Systems (FGDS). Even if power plants were
willing to use FGDS, three years would be required to purchase and
install them, well beyond time for the mid-75 deadline. Many plants,
however, have chosen to fight the use of FGDS, preferring intermittent
control systems or tall stacks, which disperse instead of contain pollu-
tion. Therefore, many power plants will not be in compliance in
July 1975.
The Clean Air Act has been amended by the Energy Supply and
Environmental Coordination Act of 1974. This Act will affect control
requirements by extending compliance deadlines beyond mid-1975 on
some coal-burning power plants in areas where primary NAAQS are
being achieved.
The steel industry is another problem area. Many steel companies
have been recalcitrant in installing the necessary, but expensive, con-
trol equipment, with the result that few can be expected to meet the mid-
1975 deadlines. In addition, because of court suits, smelters have
generally not been subject to approved SIP regulations until recently (most
still are not), so smelters will not be in compliance by July 1975.
Refineries have presented a multitude of technological problems re-
-------
III-I3
lated to control equipment for various kinds of pollution. Most enforce-
ment programs are just beginning to work with refineries, and few re-
fineries will be in final compliance in less than one year. Strategies
for handling these problems are discussed in Chapter IV, under Status
of Enforcement Effort.
Delayed Compliance by Small Point Sources
Aside from large categories, some groups of smaller point sources
are also likely to be out of compliance in July 1975. Many, of course,
will be on compliance schedules. Some examples are : coal-fired in-
dustrial boilers, cotton gins, waste wood boilers, veneeer dryers, grain
elevators and dryers, and hydrocarbon sources (which include many
small sources such as gasoline stations, paint sprayers and dry cleaners).
Again reasons for this lack of compliance vary. Industrial boilers
may have trouble obtaining clean fuel or control equipment. Cotton
gins may not be subject to enforcement pressure because of location
and seasonal nature. Waste wood boilers may have technological
problems. Other industries have encountered delays as they experiment
to discover ways to control their emissions. Among the examples
cited by the regions were: a glass frit plant in Virginia which emits
particles so fine they pass through its baghouse; a waste wood boiler
in Washington which uses logs soaked in Puget Sound and has not found
control equipment which is not fouled by the salt; and grain dryers
in Kansas which are experimenting with control methods to capture
emissions. Many of these facilities will not have resolved their
problems by mid-1975 and therefore will not be in compliance.
»
In major Northern and Midwestern urban areas., small point sources
such as coal-burning industrial boilers and municipal incinerators have
been problem sources. Region V expects that a large number of in-
dustrial boilers, which have not been able to convert to oil, will be out
of compliance at the end of FY 75. Regions II, III, and IV expect
to find municipal incinerators not yet in compliance. This situation
exists largely because city governments act slowly, and frequently the
States and occasionally the regions encounter policital pressure not
to enforce. A similar situation occurs with burning at open dumps in small
cities. Alternative systems will not always be in operation by
July 1975.
One other problem encountered in urban areas is residential coal burning.
Frequently, coal is burned in lo^r-income areas that lack the means to
switch to another fuel. Also, residential coal suppliers are usually not
able to compete with large industries for low-sulfur coal. Accordingly,
-------
Ill- 14
residential coal is frequently high in both sulfur and ash content.
This problem deserves increased attention by EPA.
3.6--The Review Group recommends that DSSE provide the regions
with guidance as to enforcement policy for: 1) industrial commercial
boilers and 2) area sources such as residential coal burners.
Delayed Compliance by Economics
Finally, there is the delay caused by economic considerations. Many
older, smaller sources might have to spend significant fractions of the
total value of their plant on control equipment. Small old foundries
are a prime example. Forcing such plants to install control equipment
could force some to close down completely.
Under §110 of the Clean Air Act, economics can be taken into
account only in the development or revision of the SIP regulations that
are necessary to achieve the air quality standards and in setting the
final compliance date. Once these regulations have been set, in
theory, the plant must be closed down if it cannot comply wth the
regulations. In practice, however, economics does enter to some
extent into the implementation process. For example, the fastest way
of achieving emission limitations for a plant with multiple emission
points would be to completely close it down and install controls on
all emission points at the same time. In practice, a staggered in-
stallation schedule has often been agreed upon. Similarly, a source that
cannot obtain necessary control equipment is usually put on an enforce-
ment order that in effect provides more time to acquire the equipment
rather than closing it down.
Table 5 presents a regional breakdown of some expected post mid-
1975 enforcement problems by source category and region.
Federal Facilities
Many States are concerned that some Federal facilities will not
achieve compliance by mid-75. Some States object to pressure from
EPA to bring their stationary sources into compliance when the Federal
facilities are not subject to the same kind of pressure.
The Review Group has concluded that the Agency's effort to deal
with Federal point source is generally lagging behind the program to ob-
tain compliance by point sources in the private sector. This is illustrated
by MBO projections--at the end of RY 75, 63% of Federal stationary
sources are projected to be in compliance, as compared to 94% of all
-------
111-15
Table 5
Some Expected Post Mid-1975 Compliance Problems by Source Category
Region Source Category
I Waste wood boilers
Pulp mills
II Federal facilities
Area sources
Steel mills
Municipal incinerators
III Steel plants
Power plants
Petroleum refineries
Federal facilities
Glass frit plants
Foundries
Coke ovens
Quarry operations
Municipal incinerators
Area sources
IV TVA power plants
Cotton Gins
Steel mills
Quarry operations
V Power plants
Steel mills
Industrial boilers
Stationary hydrocarbon sources
Municipal incinerators
VI Smelters
Refineries
VII Grain elevators and dryers
Federal facilities
Power plants
Smelters
VIII Steel mills
Smelters
Hydrocarbon sources
IX Wood products
Waste wood boilers
Federal facilities
Smelters
X Wood products and waste wood boilers
Veneer dryers
Federal facilities
Smeltters
-------
m-16
facilities. The Federal facilities start level for sources in com-
pliance was 16%, at the end of the first quarter in compliance was
up to 35%. There are, however, only 382 major Federal facilities
currently tracked and these may differ in kind from private facilities.
Executive Order 11752, among other requirements, mandates that
Federal facilities chow leadership in achieving compliance with Federal,
State, and local regulations for the control of air pollution. In spite
of this, State agencies, and Regional office personnel cited examples
of "foot-dragging1 by Federal facilities. Some of the delays have
apparently resulted from disagreements over whether various require-
ments are substantive or procedural in nature. Executive Order 11752
mandates that Federal facilities are subject to substantive requirements
such as meeting emission regulations. The circuit courts are split
on whether a State has the authority to require that Federal facilities
obtain operating permits from State agencies, a precedural requirement.
This unwillingness on the part of Federal facilities to adhere to pro-
cedural requirements has created problems. For example, many States
use variance procedure in issuing compliance schedules to allow sources
more time to comply. The Puget Sound Agency and other agencies
gave the Review Group examples of Federal facilities not meeting re-
gulations that would not apply for variances, even though the agency
was inclined to grant them. In one case, the Puget Sound Agency attempted
to assess a civi? penalty for failure of a Federal facility to comply
with an applicable emission standard; a local court dismissed the case
because the court did not have jurisdiction in State/Federal controver-
sies. The court recommended an appeal to the U.S. Circuit Court
Appeals. Unfortunately, the Puget Sound Agency did not have the
funds to appeal the case. If in fact Federal facilities are not subject
to penalties applicable under SIP's, then Federal facility compliance
is voluntary.
3. 7--The Review Group recommends that Office of Federal Activi-
ties and Office~oTGeneral Counsel determine if there is legal means Tor
compelling Federal facilities to comply with emissions limits. If
this issue remains a problem, EPA should consider recommending
appropriate amendments to the Clean Air Act to strengthen the States'
authority in this area.
Granted the legal problems in compelling compliance by Federal
facilities, the .Review Group believes that a more credible effort
could have been mounted by more effectively using the procedures
established under OMB Circular A-78, which requires OMB approval
of air pollutior, abatement expenditures projected by Federal facilities.
Unfortunately, however, such an effort would still not have overcome
-------
Ill-17
the inadequate data base (a poor inventory of point sources) and the
lack of an agressive compliance progam designed to achieve Federal
facility compliance by mid-1975. A draft program of action was
given to the Review Group by the Office of Federal Activities but
is has not been approved.
Although organizational responsibility for the Federal facilities
program varies from region to region, this did not seem to be a
factor in the general attitude of personnel working with Federal
facilities. The attitude seems to be one of conciliation without a
"sense of urgency" in moving to obtain compliance by Federal
facilities. Regional enforcement personnel generally seem uncer-
tain about the extent of EPA's powers and responsibilities. No region
seems to have succeeded in establishing an effective relation between
the regions' Federal facility Offices and the; Enforcement Division.
The Review Group found some regions diluting their Federal facilities
efforts by tracking all facilities (e.g., very small post offices),
rather than focusing on major facilities, on the assumption that it
would be undesirable for anybody to be able to point to even one
Federal violation.
3. 8- -the Reviaw Group recommends that each Regional Office re-
view its compliance strategy for Federal facilities and determine means
to; 1) improv^the program's focus; 2)instlll a sense of urgency
about the approaching compliance deadline; and 3) bring the skilfs" and
powers of EPA enforcement to bear on this problem"!
Headquarters support is needed before the regions can implement
the above recommendation.
3«9--.The Review Group recommends that. OFA finalize its program of action
andj jointly witK OEGC, provide policy guidance to the regions on en-
forcemem against Federal facilities.
-------
IV. STATUS Of STATIONARY SOURCE COMPLIANCE EFFORTS
This chapter reviews the status of EPA's stationary source, air
compliance effort. The areas addressed are:
o Emissions Inventories
o Compliance Schedule Development
o Compliance Monitoring Programs
o Enforcement Efforts
In each section of this chapter the area under discussion is defined, its
status is reviewed, problems identified by the Review Group are discussed and
recommendations are made. Throughout this chapter the efforts and involvement
of State and local air pollution control agencies are highlighted.
STATUS OF EMISSIONS INVENTORIES
An emissions inventory--that is, knowledge of the sources of air pollution
and their characteristics--!^ a key element in development of air pollution emission
regulations and development of an enforcement strategy to implement the regula-
tions. EPAfs present omissions inventory, in the National Emissions Data System
(NEDS) is not fully adequate for these tasks, and EPAs enforcement program for
stationary sources is hampered accordingly. The inadequacies arise primarily
from incomplete source listings and missing data for listed sources. In examining
the air compliance program, the Review Group identified a number of problems
which hinder the completion of emission inventories and limit the usefulness of
current inventories.
Description of Current Point Source Inventories
NEDS was developed and is operated by the National Air Data Branch
(NADB) of the Office of Air Quality Planning and Standards (OAQPS) in the
Office of Air and Waste Management (OAWM). NEDS is the national emissions
inventory for point and area sources of criteria pollutants. A point source is
defined in terms of: (1) actual emissions of 100 tons per year in an urban area
or 25 tons in a nonurban area, or (2) inclusion in a list of sources given in 40
CFR § 51 Appendix C, regardless of size (for example, nitric acid plants).
EPA regulations (CFR § 51.7) require the States to update point source data
semi-annually.
NEDS data are presently neither complete nor up-to-date. For
example, NEDS contains no sources in New York State (see Table 6).
And where there are data, they are often incomplete. Much of the
data is several years old. As part of the general source update, NADB
has assembled a list of 11, 000 possible point sources not currently in
NEDS (a verification file). They have asked the regions to determine
-------
IV-2
TABLE 6 .
STATUS OF NATIONAL EMISSIONS DATA SYSTEM (NEDS)
(as of June 5, 1974)
REGION/STATE
# PLANTS IN NEDS
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Isla'id
Vermont
REGION II
New Jersey
New York
Puerto Rico
Virgin Islands
REGION III
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virgiria
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
1890
152*
517
659
312
96
154
608
335*
253*
20
2340
112
44
219*
1504
277*
184*
6206
323
810
512
663
1536
1382
300
680
4267
678
1041
451
496
1320
281
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IV-3
TABLE- 6
(cont.)
STATUS OF NATIONAL EMISSIONS DATA SYSTEMS (NEDS)
REGTOH/STATE
REGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
REGION VII
Iowa
Kansas
Missouri
RECTO:: vil^
Colorado
Montana
North: Dakota
South Dakota
Utah
Wyoming
REGION IX
Arizona
California
Guam
Hawaii
Neveda
REGION X
Alaska
Idaho
Or<;-«or.
Washington
NATIONAL TOTAL
'# PLANTS IN NEDS
1435
2^8
260
260
181
496
1899
372
913
260
354
2092
271
114
656
987
79
75
t
5059
171
4687
12
116
73
952
178
197
344*
233*
26748
* Indicates that CDS has more facilities
listed than NEDS for this state
-------
IV-
the status of these sources. While many sources in the verification file
may be small, no longer in business, had their name changed, etc.,
nevertheless a spot check by NADB found that about one-third of the
aluminum smeiters in the country were not in NEDS.
In order to alleviate some of these problems, OAQPS .has spent _
significant contractor money to assist the States in collecting and
updating NEDS data. In FY '73, approximately $455,000 was spent
by regions on emission data for NEDS,, including development of
hydrocarbon inventories and related software. An additional $218, 000
was spent on en.issions data for NEDS in FY '74.
NEDS was originally conceived to meet EPA's emissions inventory
needs for: (1) planning efforts such as mathematical modeling for devel-
opment and evaluation of standards and strategies, and (2) compliance
information on individual sources. As operated by OAQPS, NEDS has
focused primarily on planning and not on compliance needs because in
1972 the Office of Enforcement and General Counsel (OEGC) determined
an enforcement data system was needed to assist the regional offices in
tracking increments of progress in compliance schedules and enforcement
orders and in scheduling compliance monitoring activities.
OEGC's Division of Stationary Source Enforcement (DSSE) and NADB
discussed the possibility of expanding NEDS to fulfill enforcement needs.
DSSE decided to develop the separate Compliance Data System (CDS).
While the reasons for creating CDS may have been valid, EPA
basically has two systems because two organizations have the resources
to go their separate ways. CDS and NEDS are designed to be compatible
to the extent that CDS can use any available NEDS source identification
number. NADR has "now provided limited regional access to NEDS, and the
source file has improved since CDS was started. Thus a single system
may be more practical than it once was.
4.1- -The vteview Group recommends that Management Information
and Data Systems Division of the Office of Planning and Management
evaluate, in FY1 76. data requirements of the enforcement and air
programs and determine if a single system will be feasible and cost-
effective^
The use of and problems with CDS are discussed later in this Chapter.
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IV-5
Hazardous Air Pollutants Enforcement Management System
DSSE also developed the Hazardous Air Pollutants Enforcement
Management System (HAPEMS) for use by the regional stationary source
enforcement programs in monitoring sources under waivers and in
compliance with National Emission Standards for Hazardous Air Pollutants
(NESHAP). The Review Group found only Regions VII and IX using the
HAPEMS system, and it was tracking only 35 sources in Region VII. The
number of sources affected by the NESHAP regulations was considerably
less than anticipated; hence, the regions have not felt a need for an
automated system.
4. 2--The Review Group recommends that DSSE drop HAPEMS as a
separate data system and incorporate it into CDS.
.Completion and Updating of NEDS
In FY '75 the Agency's air efforts are focused on source compliance.
As a result, the Review Group found regional Enforcement Divisions
collecting enormous amounts of information on sources from both the
States and the sources themselves. This information is going into CDS
and into development of enforcement cases and strategies; many regions,
however, make little or no follow-up effort to expand the data collected
to the extent necessary to update NEDS.
1 2
Several regions send out an APER form with their § 114 letters.
This information would allow NEDS data to be updated. However, some
Regional Enforcement Divisions argue that it is their job to enforce, and
they do not have the time, resources, or responsibility to see that NEDS
gets updated. The Review Group believes EPA's various offices must
support each other wherever possible. Of course, any request for
information from sources is subject to tne Federal Kepbrts Act.
Information cannot be requested that is already available. Further, §114
requires the source to answer only when the information is requested for
certain specific reasons. These reasons do not include general maintenance
of an emissions inventory, but they do not prevent it.
1 Air Pollution Emission Report (APER) Form (OMB #158-R75) asks
for enough information about a source so NEDS form (OMB #158-
R0095) can be completed and data coded for input into NEDS. NADB
is currently working on a modified APER form that will be more
compatable with NEDS.
2 Requests .for information to which the source must reply (see
Status of EPA Enforcement Efforts later in this chapter).
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IV- 6
4 3--The.Review Group recommends that a §114 letter to a source
include a request to update a NEDS printout or to nil put an APER form
(if no NfeP5"aata"exist). The $114 letter should clearly state what is
requested and what is required. ~~
Before this recommendation can be implemented, NADB will have
to develop a new printout format - one that will be easily understood by
sources.
Conversely, the NEDS verification effort can also be
used to update CDS information. Yet the Review Group found
that Enforcement Divisions in the Regions knew nothing about
the NEDS verification file.
4.4The Review Group recommends that the NEDS contacts
in the regional offices notify the Enforcement Division when
they identify new sources.
The need for intra-regional cooperation is evident in other areas of
inventory development. Some regional offices are not assigning the same
identification number to the same sources in both CDS and NEDS. Factors
outside their coutrol can contribute to this problem--for example, States
can switch NEDS identification numbers. But the problem is certainly
aggravated by lack of effort in the regional offices. In one region, for
example, new CDS source numbers were going into NEDS but not vice-versa.
4. 5--The Review Group recommends that regional offices carefully and
continuously match up CDS and NEDS identification numbers. Regions should
cfevelop a formal program to see that source information they receive goes
into both data systems as well as EPA's formal planning system.
Assigning the same regional person to both CDS and NEDS might be
the most effective way of acting on this recommendation. This would
lead to the improvement of both data systems.
The intra-regional communication problems are compounded by the
fact that in several regional offices the person responsible for NEDS
(1) had no independent means for assessing either the completeness or
accuracy of the data or (2) did not expect to be putting significant effort
into assessing the data base or encouraging the States to improve the
data. Those responsible in the regional offices viewed themselves
almost solely afi conduits for information from States to EPA Headquarters.
4.6- -The Review Group recommends that NEDS contacts be required
to have an independent assessment of the completeness and accuracy 67
their data and thar"regions put the effort necessary into maintaining the
data base and encouraging the States to improve and update the data.
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IV-7
Headquarters Support of Inventory Development and Use
The Review Group has identified a number of areas in which EPA
Headquarters is inadequately supporting development or use of NEDS,
or is creating problems by its policies. For example, the NADB
contracts to develop and update State data for NEDS have, in the past
(prior to F.Y '7^), been monitored solely by NADB personnel. Several
States will now no longer have anything to do with NEDS, partly because
of the adverse impact of these and other contractors. Some problems
with contractors may not have been avoidable even with local supervision.
Nevertheless, ihe regional offices should have the lead in all interactions
with their States.
4.7--The Review Group recommends that each regional office have,
at the very leagtj co-project officer status on any Headquarters contract
in its jurisdiction!
This contractor problem is a specific example of a generic problem
discussed in Chapter VI--that is, Headquarters dealing directly with
air pollution control agencies or sources without involving the regional
offices.
EPA Headquarters has also created great confusion by changing
basic definitions in midstream. The definition of a point source in
FY '75 Regional Guidance is incompatible with the definition of a point
source used by NEDS, as specified in 40 CFR 51. 7. The difference is
that NEDS lists sources by their actual emissions, while the guidance
for Program Planning Management-by-Objectives (MBO) requires
reporting on sources with the potential for emitting more than 100 tons
per year (TPY). This meant that the regional.offices, States, localities
were made unable to readily use their computerized source inventories
to develop complete lists of point sources on which they would report
under the MBO system. There were valid arguments for defining MBO
outputs as "potential", but in making this decision, EPA did not fully
consider the implications on its data systems.
In addition to the impact within EPA, the changing definitions had
an adverse impact on State and local air pollution control agencies
because EPA by-passed the Federal Register in modifying the definition.
One State observed that if the new definition had been proposed in the
Federal Register, EPA would have had to justify the change, and the
States and others would have had an opportunity to comment. In
addition, EPA is now operating with two formal definitions, one
imposed via the Federal Register and the other via grant constraints.
DSSE has indicated that the differences on this issue have been resolved.
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IV-8
A formal proposal will be published in the Federal Register as part of
a larger package of regulatory revisions.
4.8- -The Review Group recommends that OAQPS propose a
modified definition of a point source separately in the Federal
Register if the larger package of revisions causes more delay.
This issue also brings up another area in which Headquarters
is inadequately supporting the regional offices. Region IV, in an
attempt to use NEDS to identify most potential 100 TPY point sources,
developed a computer program to determine those sources in NEDS
with actual emissions greater than 100 TPY. Other Regions ended
up making these calculations by hand. While Region IV's initiative
is commendable, it would be .wasteful for all 10 regions to develop
computer programs for the same task.
4.9- -The Review Group recommends that OAQPS aggressively
assume responsibility for developing computer program needed by
all regional offices.
Maintaining and Updating Inventory Files
Only one region maintains hard copy files for all sources in NEDS
(albeit, not daily). The Review Group received no explanation,as to
why the files were needed. These files contained NEDS forms,3
State permits, correspondence, and compliance schedules. The only
reason the Review Group knows is that the files could be useful to keep
records on the assumptions used in coding NEDS forms. Several regions
indicated they (or the States) had difficulty in validating NEDS data because
the assumptions used by contractors were not documented.
4.10--The Review Group recommends that OAQPS review the need
for individuanhard copy source files and recommend to the regional
offices whether or not they should be maintained for all sources^
In order to keep their NEDS files current, the regions require
information on new air pollution sources to aid the stationary sourc.e
enforcement program and to implement the New Source Performance
Standards (NSPS^, indirect source regulations, and new source review
3 Files should of course be kept on all correspondence and EPA
actions such as compliance schedules.
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IV-9
requirements in State Implementation Plans (SIP's). NADB has
contracted for listings of new sources from "Dodge Reports".£/ A
simple source listing, however, is inadequate for enforcement
purposes, since the regional offices require more detailed reports
on the sources including start-up dates, source size, etc. Conver-
sations between DSSE and NADB were initiated to determine if the
enforcement program's needs could be satisfied most efficiently and
economically through an expansion of the NADB contract. It was
concluded that DSSE initiate its own contract.
4.11--The Review Group recommends that DSSE and NADB
reconsider getting together on a joint contract with "Dodge Reports"
in the interest of possible efficiency.
Other Issues
A number of other issues relating to the NEDS system were
identified but have not been followed up. These included:
o NEDS source identification numbers can be changed by the
States. This can (and has) caused havoc. If it is not
possible to stabilize the numbers, it will never be possible
to match up CDS and NEDS data.
o NADB does not require States to justify deletion of sources
from NEDS. NADB notifies the regions when a source is
deleted, but the notification format does not encourage the
regions to investigate the deletions.
o The NEDS data on Federal facilities are sparse.
o NEDS does not adequately identify emission points for the
enforcment 'program's purposes.
o A few State inventory systems, designed to coincide with
State regulations, are incompatible with NEDS. Thus far,
efforts to convert these State data to the NEDS format have
been unsuccessful. In these States, as well as most others,
NEDS is not highly regarded.
The Dodge Company reports on different stages of new construction.
They are available by geographic region and industry category.
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IV-10
o Almost all good State programs have significantly better in-
ventories than "NEDS does. The result is a vicious circle:
the States do not get much information out of NEDS so they
do not spend much effort putting data into NEDS; without
local effort to update NEDS, source information is lacking or
out-of-date; with the data base so poor, no one'ever uses it.
The result is that most new NEDS information comes from
OAQPS contractors. In several States, the Review Group
was told that the NEDS printout was only used to reply to
inquiries from EPA.
Summary
Development of emissions inventories is an expensive, time-
consuming task to which EPA has devoted significant effort. How-
ever, as this section details, success requires greater intra-
regional coordination, increased efficiency and guidance from Head-
quarters, and better cooperation within Headquarters.
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IV-11
STATUS OF COMPLIANCE SCHEDULE DEVELOPMENT
In FY 74 the primary goal of the stationary source air enforcement
program was to complete the establishment of compliance schedules6
for all point sources out of compliance with regulations in State Implemen-
tation Plans (SIP's).
That goal was not achieved. Many sources not yet on compliance
schedules will not be able to meet their final SIP compliance dates
because of inherent time constraints on installation of air pollution control
equipment. In addition, even where a schedule has been negotiated,
EPA cannot enforce increments of progress until the schedule has been
promulgated in the Federal Register; the regulation, however, can be
enforced.
This section summarizes the status of compliance schedule develop-
ment, analyzes the problems inhibiting completion of schedules, and
recommends an aggressive effort to finish the task.
In addition, the significant legal problem of handling post mid 1975
compliance schedules is analyzed; recommendations are made for both
an interim and a long range policy.
Description of Current Program
The Clean Air Act require.dEPA to approve (or disapprove and later
promulgate) SIP regulations by May 31, 1972. The regulations had to
contain the final emission limitations and final compliance dates. The
SIP regulations could be immediately effective or have a final compliance
date as late as the final attainment date for the National Ambient Air
Quality Standards (NAAQS). If the final compliance date was after
Jan. 31, 1974, a compliance schedule (a Section 51. 15 schedule) speci-
fying incremental steps (contract, start construction, etc.) had to be
submitted to EPA by the states prior to Feb. 15, 1973. The increments
of progress could be contained in a schedule particularized for an
individual source, in a categorical schedule for a class of sources, or
in the emission regulation itself. Where the emission control regulation
The term compliance schedules will be used to refer to any of a variety
of legal approaches putting sources on a schedule with increments of
progress, thereby insuring final compliance with the SIP regulation.
Region IV estimated that one-half to two-thirds of all sources on
schedules need equipment..
-------
IV-12
contained acceptable increments (approximately 5, 000 sources are
involved) individual schedules did not have to be submitted. If the
final compliance date was before Jan. 31, 1974, compliance schedules
were required only if the final date was unreasonable.
Section 51. 15 Schedules
EPA determined on May 31, 1U72, in its initial review of SIP's,
that a number of States did not have adequate procedures for obtaining
legally enforceable increments of progress. In these cases, the SIP
itself was disapproved, and EPA promulgated regulations giving these
States adequate procedures for obtaining legally enforceable increments
of progress.
Of the 20 States having regulations with final compliance dates after
Jan. 31, 1974, only six officially submitted any schedules in a timely
manner. Where States failed in their responsibilities to submit
compliance schedules, EPA was required to propose and promulgate
specific schedules to substitute for those not submitted by the State
or not approvable by EPA. An estimated 5,000 facilities were placed
on a schedule by these EPA promulgations. Most of these facilities are
subject to a categorical-type schedule--that is, a schedule tailored to
a class of sources such as asphalt batch plants. In most cases sources
subject to this type of regulation were not individually notified. This
short-cut approach, enabled EPA to solve a basically legal problem
with the SIP's.
Immediately Effective SIP Requirements
If immediate compliance is reasonable, as in the case of fuels-
switching (if the fuel is available), or prohibitions on open burning,
no compliance schedule is needed since an effective enforcement program
consists simply in the initiating of enforcement actions against violators.
But, where control equipment must be installed, the requirement to
comply immediately may be wholly unreasonable. Instances of
non-compliance may be widespread, whether or not the State is effec-
tively enforcing the regulation.
At the beginning of FY 74 the regional offices estimated that some
10,000 point source facilities were subject to presently effective require-
ments in SIP's and that at least 5,000 of these facilities needed to be
placed on a reasonable compliance schedule.
For those sources still not on schedules or in compliance, one of
the following mechanisms is used to establish these schedules:
o The appropriate State or local agency submits schedules
to EPA as plan revisions if the compliance date is within
the attainment date set by the approved SIP.
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IV- 13
o The State or local agency issues enforcement orders
establishing schedules, and where deemed necessary,
submits them to EPA for joint State-EPA enforcement
action if the compliance date extends beyond the
attainment date in .the SIP. ^
o The EPA issues notices of violations and follows up
with an appropriate abatement order.
Table 7 shows the status of compliance schedule development for
point sources as of Oct. 1, 1974.
As of Oct. 1. 1974, of the 9,726 point sources estimated to be
not in compliance or of unknown compliance status with SIP require-
ments, 3,891 are on EPA approved schedules; About 1,500 are on
State-approved schedules in the process of being formally approved
by EPA. The remainig 4,335 identified point sources are either not
on a schedule or are of unknown compliance status. Although past
experience has shown that probably about 50 percent of those facilities
in the unknown compliance category are in compliance, the fact remains
that EPA failed to meet its FY 74 goal of completing compliance
schedules for all point sources not in compliance. Moreover, the
remaining point source facilities not on an approved schedule included
some of the Nation's most severe air polluters, including most power
plants, steel mills, primary smelters, and municipal incinerators.
Thus a major part of the Agency's program in FY 75 will be to com-
plete compliance schedules for these facilities.
This approach may no longer be useable. See discussion below for
impact of court decisions.
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IV- 14
TABLE 7
SUMMARY OF POINT SOURCE COMPLIANCE STATUS
BASED ON FY
74 OUTPUT REPORTING
October 1, 1974
EPA
REGIONAL
OFFICE
I
II
III
IV
V
VI
VII
VIII
IX
X
TOTAL
Total Number
of identified
Point Sources
1,064
1,630
2.318
4,923
2
1,709
2,290
958
455
1,819
2
988
18,154
Number in
Final
Compliance*
476 (45%)
804 (49%)
1,542 (67%)
2,692 (55%)
698 (41%)
1,212 (52%)
196 (20%)
240 (53%)
171 ( 9%)
387 (39%)
8,428 (46%)
Number of
EPA Approved
Schedules
130
230
351
1,658
468
64
297
140
216
337
3,891
Number with
Action
Pending* 1
492 (46%)
673 (41%)
624 (27%)
931 (19%)
607 (36%)
1,021 (45%)
551 (58%)
89 (20%)
1,609 (88%)
504 (51%)
7, 101 (39%)
* Figures in parenthesis are a percentage of the total number of
sources for that region.
SOURCE: ''National Summary Milestone Report"
Includes: 1) Sources not in compliance and not on a schedule,
2) Sources on a schedule but overdue, and
3) Sources unknown as to compliance status .
Ofe A3 tQ compliance with increments.
Point source definition based on actual 100 tons per year emitters.
-------
IV-
Major Problem Areas
The reasons for the delays in developing schedules are complex
and variable. Among the reasons the Review Group identified for
failure to complete schedules are:
o Uncooperative or inadequate State programs.
o Poor regional organization.
o Operational problems with Federal Register procedures.
o Recalcitrant or difficult source control problems. Delayed SIP
approvals.
o Legal problems with post-75 compliance schedules.
Factors contributing to success in completing schedules included:
o Assigning one individual per state the responsibility of develop-
ing compliance schedules.
o The use of high level meetings between State and regional
office personnel to discuss EPA's requirements.
o The frequent communication of procedures and legal require-
ments to States by the .regional Offices.
o The use of grant constraints, (which worked to greatest advantage
in California (Region IX) and Indiana (Region V).
o Use of EPA enforcement procedures when necessary.
Uncooperative or Inadequate State Programs
States had to bear the major burden of developing schedules with
the sourcs to meet the FY 74 goal. The fact that many States had
basic conflicts with EPA requirements in their laws and programs is
the primary reasons for the failure to complete schedules by the,end
of FY 74.
Many States, particularly the larger more industrialized States
with long-established programs (for example, California, New York,
and Pennsylvania), resent EPA's requirements for compliance schedules
that mandate increments of progress for any schedules extending for 18
months or more. EPA requirements did not always mesh with State
variance procedures, which allowed sources to apply for postponement
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IV- 16
of compliance for up to a year at a time (renewable indefinitely in
California), usually on the basis of technological or economic factors.
Thus, many States challenged EPA's requirements on compliance schedules
and refused to submit them to us for approval. Subsequently, Federal
courts have ruled many of the variance procedures used by such States
are inconsistent with the Clean Air Act and must be disapproved by EPA.
Negotiations with the States are continuing on this point.
Some regions -- Region IV, for example -- blamed some of their
difficulties on the fact that EPA modified the regulations on compliance
schedules after the region had already completed preliminary negotiations
with the States on schedules. 8 This is an example of the broader problem,
treated in Chapter VI, of late (or nonexistent) decision in Headquaters
that undercut region-State relationships.
Region IV, the region with the most schedules, is fortunate in that
it is dealing with State agencies created about the same time as EPA and
the Clean Air Act Amendments of 1970. The State law) requirements and
program development of these agencies dovetailed with those of the Clean
Air Act. Other regions with similar State programs, were not as effective
in communicating with and assisting the States. Problems arose when a
specific individual in the regional office was not assigned clear respon-
sibility for seeing that the States completed their schedules. Some
.regions with inadequate or uncooperative State programs did not sufficiently
use the power of Federal enforcement to stimulate State action. Although
some regions--for example. Region IX (California) and Region V (Indiana)
weee partially successful in using enforcement actions
and program grants to obtain schedules, the mechanisms,
available were generally not fully used in FY 74. In
other instances where Federal enforcement actions were
used, they were not always coordinated well within the
region to exert pressure on the States to submit schedules.
A number of regions (I, III, V, VII, VIII, and IX) did
state persuasively that Federal enforcement actions have
had great impact on State programs and that results are
now beginning to come in. (See Status of Enforcement
Effort later in this Chapter).
To improve the State agencies performance in establishing schedules,
several steps should be taken.
4. 12 -- The Review Group recommends that each region assign one
individual tHe"responsibility for completing compliance schedules for~a~
State and that this individual be given the responsibility to advise the
State on EPA policy on a regular basis. This same individual should
also be responsible for following the State's compliance monitoring pfo-
gram.
The modifications came out Dec. 9, 1972, for schedules due Feb. 15,
1973.
-------
- 17
4. 13 -- The Review Group recommends that each region negotiate
with each of its States a program to complete compliance schedule
development. Monthly or quarterly targets should be considered. The
results of this negotiation should be a condition on the State program
frant (see Chapter V). The State should be made aware that failure to
evelop and submit schedules in accordance with the grant constraint
would result in a decrease in the State grant and Federal enforcement
actions. (This will assure that the States develop compliance schedules
as rapidly as possible, or that the regions act to complete schedule
development snould the States be unsuccessful.)
4.14 -- The Review Group recommends that the States be required
to notify individually all sources on categorical compliance schedules
unless the source has complied with the first increment of progress --
that is, it has reported.
4. 15 -- The Review Group recommends that should a State remain
incapable or un-cpoperative in submitting schedules to EPA even after
selective EPA enforcement actions, the region initiate an effort to com-
plete these schedules using contract funds available from OEGC. (ThfsT
approach is already being laken by Region VI in Louisiana and Region
VIII in Utah, for example?! : ' "
Poor Regional Organization
The Review group found that once schedules were developed by
States and submitted to EPA, numerous operational problems resulted
in unacceptable delays in the review and approval of the schedules.
For example, no final schedules had been promulgated in Region V
at the time of the Review Group's visit.
At the beginning of FY 74, certain regions established a split
responsibility fo developing schedules, with their Air and Water
Program Division responsible for assisting States in developing
schedules and their Enforcement Divison responsible for the legal
review of schedules and appropriate enforcment actions. With few
exceptions this arrangement proved unworkable. Most Air and Water
Program Division personnel were preoccupied with other matters,
such as the development of Transportation Control Plans and the
resolution of energy problems. Consequently, review of compliance
schedules were assigned a low priority. During the past fiscal year,
most Regions--! and V, for examplehave reorganized and placed the
primary responsibility for compliance schedules in the Enforcement
Division. Most of the organizational difficulties in developing schedules
seem to have been resolved; therefore, the Review Group makes no
recommendations regarding organization.
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IV-18
Operational Problems with Federal Register Procedures
The Review group found that considerable delays occurred in the
approval process for compliance schedule published in the Federal
Register. Initially, schedules developed by the States and acceptable
to EPA could receive final approval by simply being promulgated in
the Federal Register. Recently, several courts have found that EPA
must give notice of its intention to approve and therby provide the
public an opportunity to comment. This process results in a minimum
delay of 90 days in final approvals.
Furthermore, the Court of Appeals ruled in the Fifth Circuit, that
EPA could not approve any compliance schedules, including those prior
to the SIP attainment dates, without going through a § 110(f) proceeding.
This delayed formal approval of schedules in several southern States
until the Fifth Circuit decision was stayed by the U.S. Supreme Court.
These court decisions have now been incorporated into EPA procedures,
and no longer are causing delays beyond that necessary for public notice.
The most serious and avoidable delays have occurred in the pre-
paration and concurrence procedures for Federal Register packages.
The delays result both from the lax attitude of regional office personnel
towards preparation of these documents, as well as from overly detailed
Headquarters review. The Review Group believes the more serious
problem lies with Headquarters review. First, Hedquarters failed
to provide specific guidance to regions for preparing Federal Register
packages on compliance schedules. The regions compound this problem
by overlooking the general guidance for Federal Register preparation.
Although the new procedure of allowing the Regional Administrator to
approve Federal Register packages for proposed, state-initiated rule-
making haveeased the difficulties of the past, inordinate delays are
still occurring on final Federal Register packages.
As an example, a recent Federal Register package concerning a
New Mexico State compliance schedule regulation required signatures
on the red border concurrence sheet as follows:
Regional Office -- Air and Water Division Director; Surveillance and
Analysis Division Director; Enforcement Division Director; Regional
Counsel; Regional Administrator.
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IV-19
Headquarters--Messrs. Greenstone, Aim, Strelow, Kirk, Quarles,
and Train.
A central problem with requiring all these concurrences is that it
obscures who has the responsibility for getting the job done, both within
the regions and Headquarters. Further, the above 11 concurrences
represent only the "tip of the iceberg". Within Mr. Kirk's office, for
example, the package on New Mexico was circulated to Messrs. Baum,
Wilson, Zener, and James. The package was further circulated within
Messrs. Wilson's and James1 divisions for evaluation by three more
individuals who worked with Region VI on developing this package. Thus,
this one New Mexico package was reviewed by at least 13 people after a
Regional Administrator signed off. These numerous concurrences naturally
result in delay.
Headquarters' justification for such careful review is that regions make
errors both in policy and format. In point of fact, not a single error was
found in the New Mexico package. However, since regional personnel do
make errors the Review Group believes that unless the regions are given
the clear-cut responsibility, they will never take preparation of Federal
Register packages seriously.
4.16--The Review Group recommends that the regional offices bear the
sole responsibility for the quality and timeliness of their Federal Register
packages. Headquarters review should be limited to matters of policy and
major substantive issues. Headquarters should consult the regions before
making changes. Headquarters should be allowed only a specified period
of time (for example, 5 working days) to complete its review. This could
be implemented by letting packages go after 5 days unless objections arise,
rather than holding them for concurrences. (This will minimize delays,
aid Agency decentralization, and force Headquarters to focus more on
policy as opposed to procedures.)
In order to implement the recommendation, the Headquarters program
offices should provide detailed, written guidance to regional offices on
specific format for preparation of Federal Register packages for compliance
schedules and henceforth not intervene on matters of format.
Recalcitrant or Difficult Source Control Problems/Delayed SIP Approvals
Another major reason for the failure to complete compliance schedules
is that EPA underestimated the difficulty involved in placing major air
polluters on schedules within a 1 -year period. Litigation, particularly
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'IV- 20
by the power, steel, and smelting industries, has resulted in
considerable delays in establishing their compliance schedules.
While EPA could not have prevented most of the delays by litiga-
tion, a more aggressive approach might have permitted EPA to
establish schedules for these industries at an earlier date.
Legal Problems with Post-75 Compliance Schedules
During the past year, five circuit courts of appeal have
spoken to the issue of compliance date deferrals. Four of these
have held that EPA cannot approve deferral of a State-initiated
compliance date, if the revised date extends beyond mid-1975
(the final SIP compliance date). EPA is in the process of im-
plementing the rulings of these courts on a nationwide basis.
Revised regulations reflecting this decision were published on
September 26, 1974. Clarifying regulations are being drafted.
Prior to the publication of the revisions, the Agency, on
a more or less piecemeal basis, had begun to advise States that
State-initiated compliance date postponements extending beyond
mid-1975 were not approval. The Review Group found several
State and local programs that were not aware of this problem.
Those agencies aware of the problem were unconcerned and they
were proceeding under authority granted by State legislation.
While many regional offices are aware of the problems
facing them during the post 1975 period, few have received any
firm Headquarters guidance on the subject; as a consequence,
each appears to.be striking out in its own direction. Although
some individualized tailoring is necessary, a certain degree
of consistency is also necessary.
4.17The Review Group recommends that OEGC develop a
consistent national strategy for post-1975 State compliance
schedules.
With present sources, EPA cannot, by itself, do the job
of putting all post-1975 sources on compliance schedules. An
optimistic estimate (MBO data) indicates that about 900 major
sources nationwide will not be able to meet provisions by mid-
1975; this does not take into account equipment delays. In
addition, to keep with the sprit of the Clean Air Act, maximum
participation by the States will be required to accomplish the
work remaining. EPA must develop a policy for handling post-
1975 sources that will leave the States in the lead as much
as possible.
9 In the opinion of the General Counsel's Office, under authority of § 113
»of the ('lean Air Act, the Agency itself may issue enforcement orders
with accompanying compliance schedules which extend beyond mid-1975.
Legislation to confirm this has been submitted to Congress but has not
been acted upon.
-------
IV-21
The Review Group assumes that EPA: (1) will tailor its policies
to the characteristics of the States; (2) would like to use the minimum
resources; and (3) would like to encourage public involvement.
4.18- -The Review Group recommends that before finalizing an
interim or final enforcement policy, EPA inform all the States of the
legal problems with post mid-1975 schedules and consult with them on
the alternatives"
Four alternative EPA policies to deal with this problem are reviewed
in Table 8. The four are:
o EPA assumes direct responsibilities for all point sources out of
compliance past mid-1975 and uses the authority of §113 of the
Clean Air Act to enforce SIP regulations.
o EPA, using prosecutorial discretion, allows States to handle all
sources that they can. Under this option no attempt is to be
made to approve or issue joint orders with the State.
o EPA and the State (local) agency issue joint enforcement orders.
o EPA allows States to issue post mid-1975 enforcement orders
subject to EPA approval and Federal Register promulgation.
(This requires legislation.)
There is one additional alternative, the use of §110(f) of the Clean
Air Act. Section 110(f) permits the governor of a State to request a
1-year extension in the final compliance dates if a number of stringent
conditions are met. This option is not explicitly considered because of
its 1-year limitation (according to OGC opinion) and the excessive
resources necessary to verify that its stringent conditions are met.
10 The Review Group feels this assumption is critical. EPA must not
treat all States in the manner it must treat those refusing to take
positive actions.
-------
ANALYSIS OF ALTERNATIVES POLICIES FOR COMPLIANCE SCHEDULES EXTENDING BEYOND FINAL
' SIP ATTAINMENT DATE
TABLE 8
Criteria for
Anilysis
Pv-licy
A! tcrr.-'.-.ives
i'?^ ass;r.cs Oire-.t
re- ._:.! ,-.'>! i < j.v for
'1 I _ . v>u so-.!-, v'-.-i
t.OL in i-iri.'li.ir.te
by T.id-Jv7J; using
ll 1 3 ;'itl:orlty
F.TA .-SJS prosocu-
cori.il discretion
?'. lovipj states to
lundle all sources
they can; no EPA
attentpt to approve
or issue joint orders
Joint EPA State
(local) enforce-
ment Orders
Allow States to
issue post mid- .
1975 enforce-
ment orders or
compliance
schedule vari-
ances. Subject
to EPA approval
and Federal
Rc-glster
promulgation.
L^ltcy
Lcgdl-legls-
l.itlfp h.is
bccM rcioostcd
:.o vi.i-iiy this
authority
9,,rstion:.ble
lon.i liny-being
done now for
non-;>oint
... sources
preferred by
DSSE
Questionable
legality
legislation
has been
requested
to verify
authority
Legislation
required--lt
has been
proposed; one
court said it
.., can be done*
Relative
Rts.mrces
Required
Signlfici-
c.int re-
sources
Kininal
resources
Moderate
resources
Moderate
resources
Change in
Existing Deljys in
Policy Source Compliance
Change in . Delays likely
Policy
Slight Minimal delay
variation
in policy.
Would require
Guidelines
for State
Enforcement
Proceedings
Very slight Minimal delay
variation
in policy
Continuation Minimal
of existing delay-once
policy for legislation
pre-mld 75 passed
deadlines.
State/EPA
relations
Hill harm
EPA/State
relations
.
Minimal
Impact
on State
relations
Moderate
Initial
impact.
Resources
careful
presen-
tation
to States.
Minimal-
impact
on State
relations
Public
Involvence
Minimal
public
involve-
ment (See
text)-
Depends
on State
approach
risks
citizen
Suits
(S304)
Depends
on State
Approach
Maximum
public
involvement
Additional
Issues
Appropriate
policy for
probl e:r.
sources
and problem
btatts
Sources may
be foarful
of E'.'A action
afr.cr they
cocnmit in
good faith
to a State
order.
Minimizes
adverse im-
pact of EPA
enforcement
action; may
necessitate
enforcement-
conferences
If- source
docs not
waive it.
Kay appear
to be giving
in to indus-
try; must be
accompanied
by an aggres-
sive EPA policy
where enforce-
ment states do
not take 'lead.
Assessment
Undersirabl
Policy
Possible
interim pol
Possible
Interim pol
Preferred
policy-
but requii
legislate
-------
IV-23
4.19--For sources with post-mid 1975 compliance dates, the
Review Group recommends^allowing the States to prepare compliance
schedules for EPA approval and promulgation in the Federal Register.
EPA should continue to advocate passage of the necessary legislation.
Since the recommended alternative requires legislation if it is to
be continued past the mid-1975 deadline, it is not immediately imple-
mentable (except in the States in the 9th circuit). The major disad-
vantage of this option is that it puts EPA in the position of conceding
that mid-1975 is not really a deadline. In the Review Group's opinion,
this charge can be countered by an aggressive enforcement policy
against stationary sources.
4.20--In the interim, before passage of legislation, the Review
Group recommends that IsPA adopt a policy of overseeing State
enforcement orders.
This policy is a combination of the second and third alternatives
considered above. The States needed to be told that although the
Agency could not approve post-mid 1975 compliance schedules
developed under the above procedure as plan revisions, it will
either countenance them pursuant to its prosecutorial discretion
authority or utilize them for §113 Federal enforcement orders.
Implementation of this oversight policy will require careful
coordination and communication with the States, many of whom
regard EPA actions as an intrusion of their rights. At the same
time, they should also be advised that EPA wants them to retain
the initiative in developing compliance schedules and in holding
compliance schedule hearings. And wherever appropriate, EPA
will attempt to merely approve the results of State hearings with-
out becoming overly involved in the process. The Review Group
recognizes that in discussions with theStateson this interim policy
it is very likely that improvements or refinements to the suggested
alternatives may be developed, particularly with respect to tailoring
the polit y to individual State programs.
The Review Group does not regard the interim policy as an easy
proposition. However, it will, among things, serve to mollify the
many State and local agencies that view EPA's involvement in
compliance schedules development as an enroachment on their
jurisdiction. In addition, in a State like West Virginia, which re-
gards §110(f) as the only means of obtaining post-1975 compliance
dates for sources within its jurisdiction, such contacts (which
presumably would be'on a person-to-person as well as written
basis) may serve to ward off a rash of resource-incentive §110(f)
requests.
-------
IV-24
A prablem related to post-1975 compliance schedules is how to
provide for public participation. All §113 conferences should be
open to the public after adequate notice has been given. Beyond
this, the issue of actual public participation in such conferences
is a "sticky" proposition.
4.21- -The Review Group recommends that at a minimu, OEGC
examine the question ot citizen participation in §113 conferences
and give thought to providing interested citizens an opportunity to
testify if they so request in writing beforehand. Accordingly,.
notice should be given of all compliance schedules in at least
one local newspaper.
Opening the doors to §113 enforcement conferences will remove
any aura of secretiveness about them. It is worth noting that the
Justice Department follows a procedure allowing for public involve-
ment prior to entering into any environmental consent decrees.
In addition Region IX has no apparent problems, when it provides
interested citizens an opportunity to testify at the enforcement
conference, if they request so in writing beforehand and if the
region believes their testimony would be helpful.
With the public involved, the next step should be to develop
uniform, nationwide guidelines for such rule-making. This
could be as simple as expanding the technical rules (for example,
adequate technical support documents) and substantiative rules
(for example, the "expeditiously as practicable standards")
which now apply to §110 rule-making. The Review Group under-
stands that DSSE is in the process of preparing- such guidelines
for publication in the Federal Register.
4. 22---The Review Group recommends that guidelines be
developed informing the public of how decisions are made under
§113 and that an operating standard be set which will enable
the results of a §113 proceeding to weather subsequent court
challenge.
-------
STATUS OF COMPLIANCE MONITORING PROGRAM
In FY 75 the priorities of EPA's stationary source enforce-
ment program will shift from development of compliance
schedules to enforcement of increments of progress in schedules
and development of a compliance monitoring program designed
to ensure that all sources required to be in compliance with
SIP regulations do, in fact, comply. Enforcement actions
and litigation by regional offices and States are expected
to increase as a result of the shift to compliance monitoring.
EPA's compliance monitoring program is intended to turn
the paper exercise of compliance schedule development into
actual source compliance and to keep sources in compliance
once they achieve it.
Compliance monitoring activities include both "paper sur-
veillance" (citizen complaints. State semiannual reports,
and source responses to §114 inquiries) and field surveillance
(inspections., opacity observations, and source tests). Regional
Guidance for FY 75 requires that the responsible State or
local agencies verify in an acceptable manner the compliance
status of all major point sources. The Regional Guidance
also suggests that EPA verify the compliance status of a number
of selected major facilities as part of its field surveillance
effort to provide an audit on State enforcement. According
to the FY 75 Regional Guidance, 10% is a reasonable number
of point sources to determine State effectiveness. Of course
the percentage of sources investigated by EPA in any single
State could vary greatly in accordance with the regional
office's assessment of State enforcement. Regional program
plan commitments for compliance monitoring activities were
generally consistent with the FY 75 Guidance.
For EPA's air compliance monitoring program to be suc-
cessful, the regions must focus more attention on getting
their personnel out to the sources and to State and local con-
trol agency offices and on fully utilizing CDS as an enforce-
ment management tool.
4. 23--The Review Group recommends that Regional Ad-
ministrators direct their enforcement personnel to, 1) rpri-
duct more source inspections, 2) visit State and local agency
offices more- frequently and, 3) fully utilize the Compliance
Data System as an enforcement management
-------
Regional Field Surveillance Programs
The Review Group found that regional interpretations differed
as to the requirements of the FY 75 Regional Guidance for their field
surveillance prognams. Most regions correctly understand that the
guidance to ch-jck 10% of the sources reported in compliance is a
suggestion. Regions I, IV, and X indicated that because of resource
constraints, their commitment to field surveillance actions was a
combination of inspections of sources reported by the State to be
in compliance and inspections needed to implement EPA case develop-
ment work or followup on Federal responsibilities.
In several RegionsIII and VII, for examplethe Review Group
found that the regions could not meet their commitment to field
investigations unless they improved utilization of their Surveillance
and Analysis Division personnel. Most regions could not specify how
they were going to identify or choose the sources they were going
to inspect.
4.24The^ Review Group recommends that each region, develop,
as soon as possible, a specific surveillance program to define
those sources on which field surveillance will be conducted during
the remainder of this fiscal year.
In developing this surveillance program, the regions
should give significant weight to their evaluation of their States'
compliance monitoring efforts and the relative need for EPA
involvement. This requires that enforcement personnel be
intimately familiar with State and local air pollution control
agencies in iheir regions. The Review Group believes that
regions should give priority to the aspects of the program
that would have the most beneficial impact on improving State
efforts. Thus, if a State's program is ineffective, there might
be little point in verifying data just to prove its inaccuracy,
especially if the resources available could be more effectively
used to take enforcement action designed to encourage the
State to adopt an aggressive enforcement program of its own.
Status of CDS and Problems in Its Implementation
The status of CDS in each region in the second year of operation, is listed
in Table 9. The CDS master file includes 10,405 facilities12 representing about
64% of the total number of point sources for which the regions have made program
planning commitments. Table 10 lists the status of overdue increments in schedules
from CDS as of Sept. 9, 1974; 38,371, or 90% of the increments listed in CDS,
have not been updated by the regional offices and affected States to indicate
whether or not the increments have been met.
Table 10 doe,', not give an encouraging picture of compliance with scheduled
increments of progress. This is not, however, an accurate reflection of actual
progress. The poor record is partially the result of difficulties in implementing
CDS. Based on the output commitments of the regions under the MBO system and
the results of the national survey, it would appear that approximately 55 to
60% of those sources on compliance schedules are currently meeting increments
The status with respect
12 Information was provided by DSSE.
-------
.Table 9
ST.ATUS QF. CDS.. ..
(as of Sept. 18, 197-1)
: ION
>
)
:i*
V*
it
t*
II*
III*
X
'r
OTAL
IDtt.TlFlED POINT SOWCK
FACILITIES
7/1/74 MILESTONE REPORT
669
920
1 -
2371
4664
2017
2108
523
434
1690
748 '
16,344
TOTAL SOUKCKS
ON FILE
921
779
2396
3524
549
367
1463
410
240
1500
12,149
-
COS t'L
POINT SOURCE FAClLmto
ON FILE a)
86V (100)
779 (87)'
2371 (100)
3524 (76)
549 (27)
367 (17)
523 (100)
410 (94)
2*0 (14)
748 (100)
10,405 (64)
j:
CO>SIF.NTS
ft; t ii tntrly complete; compliance stntus nnct Incr^nicntn .ire toini; vcrliii-J
hv C-MC contractor, updated by another; contracts complete by 2/i !/?>.
Ri |;l'"> nroils oilJlt tonal pcrsonn'1! to onrr.itr system.
I1.- t.-v (air Co poor; over half Is New Jersey which must be completely revised
Xi. co--T.»ctor help reqi.cjtoj; region hns rot asslKnod ?ull-tlr.o CTS r»cr-
d :>.nor.
n. t.-i i|ii.illty Is poor; compliance Info, and Incci-trt-.ilr; arc to bo ifJ.Uol bv
ci nl.r.u-.tor by 17/1/74. Rcfilon h.i-; not ntn l/.npJ full-lime C!'S c. nJir.^i «r.
Uit.i qnnl ley fnlr; contractor to updnte Increments onJ conp. gt.;t.'.s by
2/JS/TS. No full-time CDS cocrJln.itor hns bi-cn asslr.nril since cn-ly ' 7i .
D; l.i Incomplete; contractorj to complete file by 10/31/74. May in i-o ,uMtn'
.1: ;:(.- t.incc through Feb. '75. Rci-lon b.i.s n."v
1( /3I/74.
D; l.i quality ?,oo ll/l.'>/74
Iindcquutc nurahcr of personnel asslc^cd to CDS In moat rcf.lons. Without th
B/6tem cannot operate na designed for those regions. Several regions
-------
Table 10
STATUS Or OVERDUE INCREMENTS FROM CDS
September 9, 1974
REGION
I
II
III
IV
V
VI
VII
VIII
IX
x
TOTALS '
^INCREMENTS
INPUT TO CDS
1,219
5,214
9,004
26,113
2,086
1,358
2,372
3,114
3,231
2,690
52y901
INCREMENTS DUE TO BE COMPLETED
TOTAL I" UPDATED- (%)
918
4,765
7,736
23,414
3^16
889
2,028
784
719
2,349
42,818
i
117 (13%)
860 -(18%)
144 (.2%)
782 ( 4%)
6 (0%)
210 (24%)
' 3,051 (52%.)
128 (16%)
221 (31%)
928 (40-1)
#NOT UPDATED (%) 1
'801. ' (87%) ;
3,905 ' (82%)
7,592 (98%)
20,632 ' (96%)
3,210 (100%)
679 (76%)
977 . (48%)
656 . (84%)
498* (69%)
3,421 (601)
4447 (10%) 38,371 ' (90%)
Approximately 385 of these 498 are increments from approvable, but still
unappfoved California State schedules. The status of these increments is
unknown and will remain so until the State begins to submit reporting
information in Oct. Thus. the actual number of overdue increments is more
lik'j 105 or 151. This may he the case in a number of.States in other regions
0.1; v/oil.
i
to
00
I/ Prepared byt DSSH_
on Sept. 9, 1974 status.
-------
IV-29
to increments of about half of the remaining sources is un-
known. Thus, some progress is being made in this area.
However, thy Review Group believes that the regions must,
as indicated in the Regional Guidance, devote more attention
to the problem of sources in the unknown category.
Based on Tables 9 and 10 and the Review Group's obser-
vations, the following conclusions can be drawn regarding
the status of implementing CDS in the regions:
o Five regions have still not finished entering basic
source information (name, address, and I. D.
numbers) on all point source facilities.
o A nurr.ber of regions have not coded all available
compliance schedules in CDS.
o Of the schedules coded in CDS, 90% of the increments
due to be completed are listed as overdue. Only
Regions X and VII update increments in an expeditious
manner.
o Of those sources without schedules, compliance status
information is largely emission data gleaned from the
data files. This reflects EPA's lack of information on
source compliance.
Table 6 shows the number of sources in NEDS for each State
as of early spring 1974. Even at that time, the CDS system
contained more sources in some States than were listed in the
NEDS system. This situation arises partly from the fact that
CDS, in some regions, tracks all sources on schedules even
if they are smaller than 100 TPY. This problem is also caused
by a lack cf intra-regional communication between the CDS
and NEDS systems in some rfgions.
CDS, as currently implemented in the regions, is used
to track increments of progress of sources on schedules.
The regions, however, have not finished listing all sources
of interest to the enforcement program. DSSE has just
completed computer programming to allow a regional office
to use CDS as a full enforcement management system. Pro-
grams are now available to obtain, for instance, a separate
listing for all sources in a given State which are out of com-
pliance and not on a schedule. CDS can now identify those
-------
IV-30
sources that have not been inspected in more than a year. Partially
due to the previous lack of programming support, the functions of
CDS are not understood by some regions. Considering the im-
portance of compliance monitoring to the successful implementation
of the FY 75 stationary source enforcement program, CDS must be
fully understood and utilized by the regions. DSSE has already
provided the regions with guidance and held training programs on
CDS. Apparently, these efforts have not been adequate.
4. 25--The Review Group recommends that DSSE acquaint the
regions with the full potential'of CDS and assist them in using it
as a fulf enforcement management system.
It might be possible to utilize additional meetings of working
level regional enforcement personnel (as recommended in Chapter
VI) to convey this information. The enforcement newsletter and
additional guidance could also be helpful in this regard.
Neither the functions of CDS nor its relationship to NEDS
are clearly understood by all the States and localities. This
is partly understandable, as neither system is yet being fully
utilized in the regions, and the States are still responding to
the different set of reporting requirements found in the Federal
Register. The new reporting requirements will require a
period of time to be fully implemented.
4. 26--The Review Group recommends that DSSE provide
additional guidance and direction to the regions to assist them
in explaining to the States the functions of jbDS, the contributions
to the systenrexpected of the States, and the relationship of this
system to NEDST
The Review Group believes that each region requires a single
coordinator who will devote as much time (full-time in most Regions)
as necessary to CDS. A high-level technical person is not necessary
for this function and in fact may not be able to implement it effectively.
However, if the responsibility for the system is not assigned to one
individual, it will never be properly implemented. In Ithose-.regions
where the CDS coordinator is not located in the Enforcement Division,
great care will have to be exercised to see that CDS is fully responsive
to the needs of the enforcement program, that all reports are maintained
and prepared, and that data are provided in a timely fashion.
4. 27--The Review Group recommends that each region assign a
single coordinator who will devote as much time (full-time in most
regionsyas necessary to the implementation of CDS"!
-------
IV-31
Frequency of Reporting
Compliance data must be timely to be of value to an enforce-
ment oriented program office. OEGC and EPA top management
have a legitimate need to know" on a regular basis (presumably
not more than quarterly). But the more man-hours spent on
reporting, the fewer man-hours will be available for enforcing.
Most effective local agencies track compliance status on a
monthly if not a real-time basis. States should be able to learn
monthly rbout status changes from local agencies, at least in-
formally. An experienced State agency should find it useful
to review and update a CE»S monthly report. Quarterly re-
porting to Headquarters is frequent enough to enable adequate
top management overview, but appeared to the Review Group
to be not so frequent as to disrupt the regional office.
The semi-annual reports obviously do not fit with the
above pattern for reporting enforcement activity. Not one
of the regions enforcement groups expected to have any use
for the semi-annual report once the Compliance Data System
is fully operational.
Most regions questioned expressed dissatisfaction with
current requirements in the semi-annual report on compliance
information. They stated that reports were not frequent enough
to allow regions to follow States' efforts on monitoring incre-
ments in compliance schedules. In addition, the semi-annual
reports were usually incomplete, missing altogether, or
lacking any format. Region IV went so far as preparing a
standard format; only one of eight States followed it. Many
regions stated that the entire semi-annual report was completely
useless for enforcement purposes. All regions have apparently
followed "he FY 75 annual program guidance and specified more
frequent reporting (quarterly or monthly) as a condition on the
State program grant. Most States have agreed to provide compliance
information on this basis, even though it is more frequent than
specified in 40 CFR 51. 7. A few States, notably Pennsylvania
do not desire to report so frequently unless 40 CFR 51. 7 is changed.
Mr. Quarles has issued a policy statement on this matter to the
States and committed the Agency to changing the reporting require-
ments in 40 CFR 51. 7. Care should be taken, however, to assure
that the Agency will be getting data necessary to track long-term
progress.
4. 28--The Review Group recommends that 40 CFR 51. 7 be up-
date'cTb'y'OAQPS as soon as possible so that Federal Register and
Regional Guidance reporting requirements
-------
IV-32
Demands on the regions for formal reporting in FY 75 are
about the same as FY 74. The real disruptive impact is from
the extra reports that are often required from the regions.
These "one time only" requests come on top of each other to
significantly deterioriate a region's ability to carry out the
pollution abatement process.
4. 29--The Review Group recommends that National Program
Managers, particularly DSSE, carefully monitor requests made
by their staffs for reporting beyond the Program Planning re-
quirements.On a quarterly basis, each program should reassess
its formal reporting requirements to determine where they might
be reduced*! The regions' should use their leverage with the Office
of Regional LTalsonr the Program Reporting Division, and the
Administrator, if necessary, to reduce demands for "one time only"
reporting.
Equipment Delays
One of the major problems with achieving source compliance
identified by the Review Group is delays in equipment delivery.
In one State the Review Group was told that every schedule re-
quiring control equipment would slip. Region IV s Enforcement
Branch Chief estimated that 25% of those sources on schedules
would not be in compliance at the end of FY 75 because of
slippages caused by equipment delays. The hope was expressed
that most of these delays will be of short term duration, perhaps
3 to 6 months.
The question arises as to when a region should revise a
compliance schedule in response to an equipment delay. For
example, if the delay is only with one of the increments and the
final date is still expected to be met, some regions are telling
the source that the schedule will stand and that the slipped in-
crement will be ignored as long as the final date is met. If the
final dace is also expected to slip, however, when should EPA
revise the schedule - after a three-month, six-month, or a
year's delay?
An additional area of concern is the extent to which EPA
(or State and localities) should simply accept the excuse of equip-
ment delays. Most effective control agency programs require
at least some confirmation of an alleged equipment delay--for
example, a letter from the equipment supplier. However, in-
formation available to the Review Group indicates that while
there is a shortage of parts needed to build control equipment,
and that this shortage is part of a national shortage of many
fabricated steel parts, the necessary parts to complete in-
-------
IV-33
stallation of a control device are available, at a price. While it
is obvious that not all sources can obtain the necessary equip-
ment, it would seem that if they were willing to pay enough,
some could get the required equipment in a timely manner.
4. 30--The Review Group recommends that DSSE regularly
issue updated reports on compliance schedule delays so that
the Regions are kept informed as to what is considered"!?
generally "expeditious" scheduled
Engineers in Region III indicated that in order to do their
job they were continuously updating their copy of an old DSSE
compliance schedule report. This, plus additional contractor
help, could serve as a basis for DSSE's update of the report.
Region ill expressed the opinion that the report requires
continual updating due to the constantly changing nature of
the supply situtation.
4. 31--The Review Group recommends that DSSE provide
Regional Enforcement Divisions with guidance on how to handle
equipment delays. This guidance should include suggested policy
on (1) whan a schedule should be revised, (2) what requirement
a source should be compelled to meet to document an equipment
delay, \3) when a source should be singled out to be pressured
to obtain control equipment in an expeditious manner even if
this causes some increase in cost, and (4) how to assure that
all compliance schedules currently being developed include
consideration of equipment delays.
New Source Review
One area of major concern to the Review Group is the enforce-
ment pregrm's lack of focus on new sources covered by review
procedures under SIP's. In many £B§'ions,(for example Region
IV) these new sources are not being put into CDS. In addition,
sources covered under New Source Performance Standards are,
in some cases, not being put into CDS.
4. 32--The Review Group recommends that regions modify
their programs to implement CDS to assure that all new point
sources of air pollution are included.
The Review Group is also concerned that the regions do not
monitor the State programs to review the compliance of new
sources as required by the SIP's.
4.35--The Review Group recommends that the .regions'
compliance monitoring programs include a review of l^tate
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IV-34
programs to evaluate State compliance with SIP new source
review procedures. Tlie regions' field surveillance program should
include surveillance of a selected number of new sources.
In the opinion of the Review Group, the Agency must make
sure that as new facilities that are potential sources of air
pollution are constructed, they comply with applicable emission
control regulations. While this is a long-ranged program, it is
essential to the utlimate control of air pollution problems and
deserves a significant degree of priority. It is easier to con-
trol a ne\v plant than it is to retrofit controls.
Frequency of Source Inspections ,
Several problems with the Agency's definition of a source
being "in final compliance" were raised during the Review
Group's field visits. First, local air pollution control agencies
(for example, Detroit and Puget Sound) pointed out that final
compliance was a very nebulous concept. Large sources,
particularly those with variable manufacturing processess,
can .come- in or out of compliance very easily. Thus, from
the local program's point of view a source is not in final
compliance once and for all just because a one-time inspection
verifies that it is in compliance. This has several implications;
it means that in visiting a source once EPA does not necessarily
know whether or not that source is in compliance in the long run.
For example, the source may be out of compliance during the
visit merely because of a manufacturing upset, or it may be
in compliance at that moment but be out of compliance the next
day because of a process change. From the perspective of local
air pollution control agencies, this means that considerably
more frequent inspections are necessary at the major point
source facilities such as steel mills, smelters, and refineries.
For instance, the Detroit city agency indicated that it is in-
specting some portion of the Ford Motor Company's River Rouge
Plant every day.
As stated earlier, the present compliance monitoring guidance
requires States to verify source compliance yearly and regions to
audit about 10% of the States' inspections and to conduct yearly
inspections of all facilities that the State does not monitor. EPA's
requirements for State and local monitoring activity sould reflect
the situtation faced by State and local air pollution control agencies.
One set of source monitoring requirements is needed for air
programs located in areas exceeding standards (where frequent
inspections are necessary to ensure source compliance), and a
different set of source monitoring requirements for areas main-
taining air standards.
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IV- 35
4.34--The Review Group recommends that EPA's FY 76
Regional Guidance reflect the need for more than annual source
inspections, by the States or localities, for those sources requiring
it in Prir. rity I AQCTlsT:
The Review Group found that the only agencies effectively moni-
toring sources were either 1) local agencies, or 2) State agencies
which had adopted a regional approach with separate offices spread
out-over the State. EPA as a national agency (with limited resources)
cannot get involved in the necessary day-to-day monitoring of air
pollution sources.
Protocol for EPA Source Inspections
Several questions also arose concerning the protocol for EPA
inspections. It appears that normally regional offices notify the
State in advance and invite representatives to accompany regional
personnel on site visits. In some regions, however, EPA personnel
deal directly with the source in arranging for inspections. The
Review Group found that the States were less resentful toward EPA
inspections than expected. Some States desired to accompany EPA
personnel, and other simply wished to be informed so that they
could respond to any questions raised by the source. However,
one State, given advance notice of an EPA inspection, informed
the source of the impending visit, and the source promptly stopped
operations. Another State gave a source an apparently illegal 10-
day blanket variance to "protect" the source from an EPA in-
spection. While EPA should make audit inspections only after
giving the State some advance notice of our intent to inspect
facilities in the State's jurisdiction, two different policies appear
to be appropriate.
4. 35--The Review Group recommends that if the State is
uncooperative, it is appropriate to conduct whatever inspections
and investigations are necessary without giving advance notice
(other than perhaps a day before) to the State. If the State is
cooperative with EPA in these actions, it would~b"e appropriate
to extend more advance notice so that State personnel can
accompany EPA personnel if they want to".
All regions know not to tell an industrial source what day an
inspection will take place, but some regions are still giving
Federal facilities 2 weeks notice of the date of an inspection.
While certain clearances and general arrangements have to
be made with Federal facilities, they should not require an
extended period of time.
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IV- 36
4. 36~-The Review Group recommends that the regions give
no greater prior notice of inspections to Federal facilities than
they give to general industry.
Some .Regions are still unable to get official EPA credentials
for inspectors over a year after the problem was orginally raised.
The authority to sign credentials for fuel inspectors has recently
been delegated to the Regional Administrators.
4.37--The Review Group ,recommnds that authority to sign
credentials for all inspectors be delegated to the Regional
Administrators!
Utilization of S&A Division Personnel
The Review Group interviewed personnel from all 10 regional
Surveillance and Analysis (S&A) Divisions. Until this past year
many S&A Divisions had no air program to speak of. A number
of problems were discovered as to the adequacy of the Division's
equipment, resources and training. Of greatest concern to the
Reviw Group was the apparent attitude of many S&A Divisions
which gave water-related work a higher priority than air-related
work. In part, this reflects the training and orientation of S&A
personn ?1, ratherthan any particular bias against the goals of
the air program. For example, one region noted that it would
start doing some air inspections in the winter when it was in-
convenient to take water samples. It did not occur to the S&A
people diat it would also be inconvenient to take air samples
in the winter. The Review Group believes that regions will not
meet air program goals unless S&A Division directors and
personnel place a higher priority on the ^inspections and in-
vestigations to which they are committed.
It was also clear that a key problem was the lack of air
personnel in certain S&A Divisions. Frequently, air assign-
ments were given by allocating some (often a small prcentage)
of a water man's time to air program work. S&A Divisions
with a separate air investigations and inspections group (for
example, Regions V and IX) were the most responsive to air
compliance program needs.
4. 38--The Review Group recommends that all regions con-
sider forming air groups in their S&A Divisions and assign
them clear.responsibility for air outputs assigned to the S&A
Divisions.
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IV- 37
One region pointed out that inspectors could not use the
existing air inspection manual, apparently because of its bulk.
4. 39--The Review Group recommends that DSSE review the
usefulness of its source inspection manual based upon inputs from
the regions and then modify the manual accordingly.
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IV- 38
STATUS OF EPA ENFORCEMENT EFFORTS
The past year has witnessed a marked escalation in the number
of EPA enforcement actions. FY 75 promises a continuation of
this trend. (See Table 11). This increasing number of actions
is, in part, due to pressure provided by the mid-1975 attainment
date for achieving the National Ambient Air Quality Standards
(NAAQS) and the improved capability within the regions to in-
vestigate and carry forth such actions.
The development of . and the dependence on State capabi-
lities is an integral part of the Clean Air Act. Consideration
of State relations, however, must be balanced with the legal
requirements of the mid-75 attainment dates of the Act. State
or local enforcement actions should be'initiated against sources
(1) not in compliance and without a schedule, or (2) with a
schedule, but not meeting the increments of progress. Federal
enforcement of emissionregulations is necessary where the
State or local agencies are unwilling or unable to bring a source
into compliance.
This section deals with many problem areas in enforcement.
Alternative regional enforcement strategies, their weaknesses
and strengths, are discussed. Priorities of EPA enforcement
actions and the use of various enforcement tools are also treated.
Finally, such procedural obstacles as conflicting regulations
are analyzed.
Table 11
EPA ENFORCEMENT ACTIONS*
Regions Total Enforcement thru 7/15/74 Program Plan for FY'75
( ) No. thru 7/15/73
I 52 (14) 50
II 12 (0) 70
III 41 (4) 132
IV 9 (0) 100
V 99 (5) 70
VI 2 (0) 130
VII 27 (5) 15
VIII 18 (0) 70
IX 50 (0) 40
X 11 (0) 20
TOTAL 321 (28) 697
* All notices of violation, administrative orders, civil and
criminal actions.
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IV-
Enforcement Strategies
A rational, prioritized air compliance program would concentrate
its initial enforcement activities on the industries furthest out of
compliance located in areas with the worst air (attributable) to the
non-complying industry) and with the greast population-at-risk.
It would gradually expand its focus until all sources were brought
into compliance. Optimally, EPA's enforcement program would
combine this scheme of prioritization with that combination of
actions which will result in the States (or localities) taking the
lead in the air compliance program.
Assessment of Prioritization of EPA Enforcement Actions
In an effort to quantitatively determine if the .regions were
prioritizing their enforcement activity, the Reviw Group analyzed
the distribution of 82 enforcement actions 12/ according to the
priority rating of its Air Quality Control Kegion(AQCR) and
the magnitude of the actual violating emissions. The raw
distribution of the actions are presented in Figure 1. This
distribution, however, is not corrected for the distribution
of all sources by size or AQCR priority.
Figure 2 corrects for some of the bias. It tabulates 68 cases
involving violation of particulate standards according to Priority
I, II, or III, as in Figure 1. This time, the percentage of facilities
in each of the priority categories is also given. Figure 2 shows
that 75% of enforcement actions occur in Priority I areas, while
62% of sources occur in such areas. It would seem, how-
ever, that an even greater percentage of EPA's enforce-
ment actions would be in Priority I AQCR's if the "rational"
strategy described above was being followed. The distri-
bution of enforcement actions, however, may be partly due
to the combination of motives behind them as numerated be-
low.
12/ The sources included are those among EPA's 275 actions as
of last spring which were in violation of a specific critieria
pollutant (many enforcement actions were based on procedural
violations) and which were listed in the most recent NEDS
printout (Which is still incomplete).
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IV-4Q.
FIGURE I
30
DISTRIBUTION OF SELECTED EPA
STATIONARY SOURCE F.>:FORCEMKMT
ACTIONS BY ACjCR AND SIZE
PERCENT OF
ENFORCEMENT
ACTIONS
IT:,.
| \J *
5.
SOURCE
SIZE
vQCR PRIORITY
::!ASS
... .._
'"nrir-T
o- idi- loot- ovcft 1
too i£*ft i£S°° Iftpoo i
in !
. .. . _
H
O-
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lOK
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Hr-r
lOftl- OVB*
1
- . .
'
9-
l>l-
1 '
-
tnc
1001-
IA
i
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IV-41
FIGURE II
DISTRIBUTION OF TSP ENFORCEMENT ACTIONS
AND NEDS FACILITIES BY AQCR PRIORITY
KEY; f
JENFORCEMENT ACTIONS
PERCENT OF
ENFORCEMENT
ACTIONS
AGAINST
FACILITIES
(cO
40
£0
lO.
1
I
J
i
i
AQCR PRIORITY
CLASS
III
TI
I or IA
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IV-42
Regional Enforcement Strategies
In practice, EPA has (1) incomplete emissions inventories, (2)
incomplete ambient air monitoring data (available only a year and a
half after-the-fact), and (3) an imperfect understanding of air pollution
transport modeling. Thus, the optimal strategy cannot be implemented»
Different regions have worked out different strategies based on different
assumptions. The range of strategies includes:
Strategy One: (domino effect with industries) Here, effort is
put into making a tough test case in each major industry category.
The theory is to bring the industry leader into compliance and all
the rest will follow. While there are indications that this strategy
works, there are certain flaws. First, the enforcement effort is
not necessarily targeted where the air is poorest. Secondly, the
industry leader may not be the best source for a test case, or may
not even be in violation. One region applying this strategy was
actually focusing on a source that was, at worst, only marginally
in violation.
Strategy Two; Make an example for the State and local agencies
either, by pushing and embarrassing the State agency, or by helping
it with the tough cases.
Strategy Two (A); No State agency really appreciates Federal
enforcement activity within its borders. Several States not oriented
to enforcement have been pushed into action by seeing the .cegional
office take on a group of noncomplying sources. The lesson ("See,
it can be done") is combined with the threat ("If you don't enforce,
we wiH").
Strategy Two (B): In other States, .regional, State, and local
offices have developed a partnership. This sort of coordination
works well for both the State and the region, but it is obviously a
very di/fult balancing point. This balancing point can only be
sustained if lines of communication remain open. Also, the
priorities still must be considered.
Strategy Three; The region enforces against all
violators. There is at least one region that thinks
it can do everything that comes in. This apparently
results from either over optimism or naivete. Not one
of the 10 regions has the luxury of not needing to assign
priorities.
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IV-43
Strategy Four: This strategy is a structured variant of Strategy
Thread In two regions the majority of the compliance effort is
focused on a single. State, and every major source is investigated
(usually by contractors). The investigations are followed up with
enforcement actions as necessary. This saturation campaign
approaches the resource and attention demands of a "period of
Federally assumed enforcement" as described in Section 113(a)
(2) of the Act. This sort of a blitz may be the only choice in some
cases. However, it may drain all the region's resources from
the other States. One region, with a blitz in one State was unable
to fulfill its share of a partnership strategy in another State.
Strategy Five: The low-profile strategy consists basically
of leaving the State alone. This is the best strategy if the
State has a complete inventory, with all sources in compliance
or on an enforcement schedule. Too often this strategy is
applied by default to States that cannot fulfill the requirements
of the Act on their own.
Strategy Six; This is a national industry strategy DSSE's
power plant strategy is a case in point. Certain nation-wide
industries with a major impact on air quality generally have a
poor record on compliance. The theory is that by focusing on
all facilities of an industry at the same time, no one facility
would be tempted to continue to resist, and once started the
momentum of the strategy would clear up the biggest problems.
The theory also assumes consistent treatment for all firms
across the country. While the basic strategy of uniform
national action is sound, there can be certain difficulties.
The first is that a uniform national strategy may not fit
regional strategies or priorities, except for a few of the
larger source categories. Second, a region may be pushed
into enforcement actions with great resource demands from
litigation. Third, a uniform strategy may not effectively
exploitthe very real difference between facilities within an
industry.
Strategy Seven; The lawyer's best-case strategy underlies
many of the other strategies. There are two motivations be-
hind this strategy: (1) the desire to make the strongest legal
precedent for implementation of the Act, and (2) the real or
imagined pressure of the MBO enforcement actions "quota".
The problem with this strategy is that making the best case
does not necessarily mean attacking the worse polluter in
the area with the dirtiest air.
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IV- 44
All these strategies have their advantages and disadvantages,
and combinations of them are used in the different regions. The
Review Group believes,as stated in the Regional Guidance, each
region needs a coordinated enforcement strategy; that the capa-
bilities and efforts of the individual States, the number of sources
in the region, and the air quality, should be taken into consideration
before determining if any one approach is the best for a specific
region or State. EPA's enforcement efforts must be ranked to
acheive its goals, and even though the number of enforcement
actions will be limited due to resource constraints, EPA must
be aggressive to attain and maintain credibility and encourage
voluntary source compliance and state enforcement efforts.
Too many regions have a random approach that wastes re-
sources and may not attain goals as soon as possible.
4. 40--The Review Grpup recommends that each region
set aside time each quarter to evaluate, improve, and update
its specific State and regional enforcement strategies. The
strategies should be prioritized to achieve the NAAQS as soon
as possible, and to achieve source compliance with the SIP's.
States (or localities) should be kept or placed in the lead where-
ever possible.
There are two areas in which the Review Group believes that
the regions could use additional general policy guidance on strategy.
First, it was evident that many States and localities are leaving
to EPA the enforcement of air pollution regulations against State
and municipal sources. DSSE should develop options for returning!
enforcement of these types of sources back to State and local
agencies.
4. 41--The Review Group recommends that DSSE provide the
regions with guidance on encouraging State and local agencies
to enforce against State and municpal sources.
Second, based on the experience of Region III, OEGC should
provide increased guidance if other regions are faced with Section
110(f) requests. In general, OEGC should be providing the regions
with policy guidance prior to the time they have to make decisions,
rather than leaving the regions in the lead as was apparently done
with the Region III Section 110(f) hearing. The guidance of course
should be flexible enough to handle contingencies in the admittedly
new areas.
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IV- 45
Enforcement Tools
The enforcement tools available to EPA's stationary source
enforcement program include:
.. Section 114 - Letter
. Section 113 - Notice of Violation
. Section 113 - Conference
. Section 113 - Enforcement Orders
. Section 113 - Civil Action
. Section 113 - Criminal Action
. Section 304 - Citizens Suits
. Public Affairs
Section 114
§114, the data collecting section of the Act, authorizes EPA to
require any owner or operator of an emission source to supply all
relevant information necessary: (1) to determine whether a source
is in violation of any standard or requirement of a SIP, (2) to
develop or assist in the development of any SIP, standard of per-
formance, or emission standard, and (3) to carry out actions in
emergency episodes. §114 also authorizes EPA to enter and
inspect a facility (that is, perform an opacity reading), to stack
test or require the source ,to stack test, to install and use
monitoring devices and to require the maintenance of records.
Some regions are making incomplete and ineffective use of
§114. For example, after evidence of a violation is documented
in a response to a §114 letter ("paper surveillance",) a few
regions fail to inspect a plant prior to the enforcement conference.
Such failure may result in a regional office having an incomplete
and inaccurate basis for its enforcement conference.
4. 42--The Review Group recommends that a plant inspection
should be an integral part of every enforcement action.
A second problem directly impacting EPA's public image
is that EPA has in some instances failed to advise affected persons /
that is, the State, or local agency, that a §114 letter has been
mailed, by whom the letter was issued, and what response is
required. Even though there is no statutory requirement that
EPA send such a letter, it is a courtesy that should be followed
to prevent confusion and expedite compliance.
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IV- 46
4.43--The Review Group recommends that the .regional
offices should take the appropriate steps to guarantee that all
affected persons are advised'of the issuance of a §114 letter and
what is required. Use of a checklist of required steps in issuance
of a §114 letter would be appropriate.
Once a §114 reply has been received and evaluated, a source
deserves the courtesy of being informed if no further action is
intended on the basis of the information supplied. A letter to
the source is more than a courtesy, it "closes the case" for
the specific §114 inquiry. Such a letter does not prohibit EPA
from reinvestigating the sources compliance situtation at a
latter date.
4.44--The Review Group recommends that regions acknowledge
all §114 replies and inform the source if no further action is in-
tended on the basis of the information supplied.
All efforts should be made to use §114 more effectively as an
enforcement tool. A little ingenuity in its use can result in
voluntary compliance, the early submittal of compliance schedules,
or the voluntary admission of violations.
Section 113 - Notice of Violation
§113(a)(l) states that the EPA Administrator, on the basis of
any information available of a violation of any requirement of a SIP,
shall notify the person of said violation. In addition to advising the
the sovrce of specific violations, the notice advises the source of
the alternative enforcement remedies available to EPA and provides
both the source and the State a 30-day grace period to come into
compliance or take steps (that is, issue a compliance schedule)
to bring the source into compliance. Any substantive or procedural
defect in the issuance of a Notice of Violation could undermine sub-
sequent compliance efforts for a particular source.
Several Regional Administrators (RA's) have not delegated their
authority to sign §114 letters or Notices of Violation to the Enforce-
ment Division Director. By retaining this authority and by requiring
concurrence by every division and staff office, even in routine cases,
the RA can delay enforcement up to a month. The RA should, how-
ever, be routinely informed of the statusof enforcement cases in his
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IV-47
region ^.nd, in a few select, significant cases he should actively
participate and sign the Notice of Violation.
4. 45--The Review Group recommends that, to expedite the
vast majority of EPA's enforcement actions, the authority to
sign Section §114 letters and §113 Notices of Violation should
be delegated to the Enforcement Division Director.
The Enforcement Division should have the full responsibility
to assure that all intra-regional coordination was accomplished
prior to issuance of a notice.
In addition, a checklist, should be used to guarantee that all
affected parties are advised of EPA's action prior to when the
§113 notice is placed in the mail and alerted to the effect of the
issuance of the notice and the next step in the enforcement
procedure.
4. 46--The Review Group recommends that DSSE distribute
a sample checklist for §113 notices to assure full involvement"
of the States.
Section 113 - Conferences
Every notice of violation includes a reference to the §113(a)
(4) requirement that the source has a right to confer with EPA
concerning the alleged violation. This right can, of course, be
waivec', but all waivers must be in writing for the official record.
The conference affords the source the opportunity to present
information bearing on the finding of violation, the nature of the
violation, and the efforts taken to achieve compliance. Its most
important function, however, is the opportunity to discuss with
the source the means they propose to achieve compliance and
an appropriate time schedule to implement this program. The
conference should and can be a significant basis for subsequent
action.
Certain regions use the conference as an opportunity to
collect data supporting an administrative order. The Office
of General Counsel has clearly stated that the conference
is not to be used as a data collection device; this function
is to be handled only under §114.
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IV- 48
Section 113 - Enforcement Orders
If a violation extends beyond the 30th day after the date of the
EPA's notifiction, EPA may issue an administrative order requiring
a source to comply with the requirements of a SIP. A §113 order
must take into consideration the seriousness of the violation and
any good faith efforts to comply with applicable requirements.
It must also state with reasonable specificity the nature of the
violation and specify a time for compliance which the EPA determines
is reasonable. No matter what else the final version includes,
these four basic requirements must always be considered and drafted
into an order.
The actual format of a §113 order will be dictated by what the
circumstances require according to DSSE. By stating that
"Format of a §113 order will be dictated by what the circumstances
require". DSSE limits its review of orders to substantive issues.
Many regions complained that the majority of DSSE comments on
orders concerned trivial issues of style and format.
4. 47--The Review Group recommends that if DSSE is concerned
about style and format of §113 orders, it should issue a "cookbook";
if it does not wish to do so, it should limit its comments to policy
questions, or waive concurrence entirely. (Waiving of concurrence
is recommended below.)
The regions are utilizing four basic types of §113 orders, each
issued for a specific purpose. The formats are as follow:
Administrative Orders. Under §113, EPA issues the standard
administrative order without approval of the source. The funda-
mental weakness of this order is that court challenges are more
likely than with a negoitated order. The main advantage, how-
ever, is that is is expeditious, since there are no lengthy negotiations
with the source over the terms and wording of the order. This
type of order will of necessity be issued for most sources since
it saves time and resources.
Consent Order. The consent order is a §113 administative
order to which a source agrees in writing. Drafting and signing
of a consent order is generally a time-consuming procedure because
of the negotiations that are necessary before agreement is reached.
Nevertheless, a consent order significantly reduces the likelihood
of anj subsequent court challenge because the source has agreed
to the order. Regions I, III, V, IX, and X have had significant
success with consent orders, and they have been received fairly
well by the industrial community. To complete the terms of a
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IV- 49
consent order, .the region might have to include a force majeure
clause and lossen up the compliance schedule time frame a little.
This,of course,is not the situation with an administrative order.
Agreed Order. The agreed order is a §113 order that a
source receives in draft form as an attachment to a notice of
violation. The source is advised that if it agrees to the terms
of the draft order, it should waive the conference and it will be
issued this order. The agreed order expedites placing a source
on a schedule by eliminating the need for a confeence. In
addition, this procedure also brings the source to agree to
the issuance of such an order. The experience to date with
this procedure indicates, however, that the use of an agreed
order is primarily effective with smaller sources.
This method is also effective with thosesources already taking
steps towards compliance.
Matching Order. Under §113, both the State and EPA issue
approximately the same order. This order is most appropriate
where final compliance is called for after the mid-1975 attain-
ment date. Although the matching order has many of the dis-
advantages of the regular administrative order, it does not
disrupt EPA-State relations; EPA's issuance of an order is
really a symbolic gesture to ratify the State's post-mid-1975
compliance date, since EPA retains the statutory authority
to enforce such orders. Region III has some good recent
experience with matching orders. 1^
Matching orders may also be agreed to by the source (as
described under agreed order). This may complicate the
negotiations much more.
Section 113 - Civil Action
§113(b) provides that if a person continues to violate a SIP
requirement more than 30 days after notification by EPA, a civil
action may be initiated in the appropriate district court to obtain
a permanent or temporary injunction. The injunction requires a
source to achieve compliance with a SIP requirement by a specific
date. The action would be initiated instead of issuing an EPA
administrative order. In addition, a civil action can be initiated
if a source fails to comply with the terms of an administrative
order issued pursuant to §113.
T5
See the discussion of post mid-75 compliance schedules
in trie previous section.
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IV-50
At this time, the civil action is not the most
expedituous means to bring a source into compliance
with a SIP requirement, primarily because there is a
long delay in obtaining a trial date in the Federal
court system. In addition, formal rules of procedure
and evidence are applicable. Besides being very complex,
the rules allow a source to delay making a corporate
commitment to come into compliance.
A major weakness in the Act is the lack of
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IV- 51
As of September 4, 1974, EPA had referred a number of
enforcement actions to Justice for criminal action, six have now
been initiated after a 5-6 month delay.
4. 50--The Review Group recommends that until EPA can
obtain"statutory authority to provide for civil penalties, OEGC
request Justice to reconsider initiating simultaneous civil
and criminal actions against selected sources.
This strategy would both penalize a source for inaction and
still obtain a Court order requiring compliance with a SIP require-
ment. The main drawback is that the Department of Justice be-
lieves the Supreme Court has forbidden such proceedures. OEGC
should take an in-depth look into this problem to find a potential
solution.
Section 304 - Citizens Suits
A citizens suit is not EPA enforcement, but it does concern
the public's right to initiate a civil action against a source or
against EPA to bring a source into compliance with any SIP
regulation. §304 imposes procedural obstacles which
must be hurdled before a citizen can in fact file a suit --for
example, 60 days notice must be given to the Administrator.
Citizen suits are time consuming and have the same weak-
nesses as do EPA civil actions, but they do allow the citizen
to take action where they feel EPA and the source have been
delinquent.
As far as the Review Group knows, §304 has not been used
extensively to bring sources into compliance with SIP regulations.
However, it is one key argument for requiring formal EPA
approval of compliance schedules in instances where the effort
of promulgation seem unwarranted.
Public Affairs
A strong public affairs program to encourage voluntary
source compliance and aggressive State and local programs
has been underemphasized. Press coverage, of course, must
not interfere with a source's right to due. process in an
enforcement action. However, one Enforcement Division
was going all out in an uncooperative State and needed
additional leverage on the State program. Yet, the region's
Public Affairs Director was unaware that a major effort
was going on. Regions often do not use the pressure of
publicity to push State and local program's into a more
active enforcement posture.for fear of upsetting State
and local programs. When there is press coverage, it is
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IV-5 2
often confined to negative items like fines or court
cases. However, some exceptional positive stories on
Louisville Gas and Electric and on Kaiser Steel in
California have had a beneficial effect.
Accentuating the positive aspects can greatly assist
an enforcement program's momentum. Many regions get
good coverage of their programs through a newsletter
with wide distribution. Whatever a region's strategy,
there must be coordination between Public Affairs,
the Enforcement Division, and others involved'in air
compliance.
Awards. Several public affairs directors suggested that,
to give positive feedback, EPA should have a certificate
of award for sources when they come into "final compliance"
Regional Enforcement Divisions oppose this idea. They
believe that an award from EPA could cause firms to reduce
antipollution efforts and possibly to fall out of compliance.
While positive feedback should be an integral part of any
public affairs program, a standard award would place too
much emphasis on the initial achievement.
4. 51--The Review Group recommends that Headquarters
PubTIc Affairs, in conjunction with DSSE, develop alternatives
to provide positive feedback to industries, where appropriate.
4. 52--The Review Group recommends that the regional
Enforcement Division Director and Public Affairs Officer
should at least quarterly update the publicity strategy for
air compliance.
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IV- 53
Enforcement Procedural Obstacles
Section 307 Challenges
A major deterrent to enforcing SIP regulations has been
challenges to portions of the plans as allowed under §307(b)(l).
Prior to mid-1974, the Agency, assuming an expeditious re-
view by the court of appeals, took the position that enforcement
action should not be initiated pending a decision in the case.
This assumption has proven untrue in many instances. Accordingly,
the Agency has changed its position on §307 enforcement actions
to allow enforcement where challenges are pending. This position
of course, subjects the Agency to motions to stay enforcement
pending the decision. The approach, however, will more than
likely expedite a decision on the merits by the Court of Appeals.
Chain of Custody
The chain of custody procedure must be followed in gathering
evidence so that it will be admissible in a court proceeding.
Although most regions know this, many States do not.
4. 53--The Review Group recommends that the Office of
'Up
nvF
General Counsel^with OAWM'sassistance^should present all
regional offices and State/local programs with guidance on
chain of custody and standard business procedure.
The document should be written so that an engineer or
environmental specialist will understand how to go about
developing evidence. The final version should state that
this procedure is to be followed in every case and no
corners are to be cut. In addition, it should stress that
the procedure is to be followed by both EPA employees
and EPA contractors.
Constraints Related to
EPA's stationary source enforcement efforts are either
delayed or stopped completely if (1) there is no SIP regulation
for a source, (2) the regulation is in the process of being
changed, (3) the regulation is subject to different interpre-
tations or (4) the SIP is internally inconsistent or out-of-date.
Examples of all these situations currently exist.
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IV- 54
No Regulation. EPA has not yet resolved a number of significant
SIP related issues--for example, fugitive dust and supplementary
control systems. 1-5 The lack of policy on these problems means
that often there are na set regulations for sources in areas exceeding
primary standards. Consequently, EPA's enforcement program can
take no action to bring the sources into compliance in these areas.
Regulation Changes. The enforcement program is significantly
affected by changing regulations. It would like to have one set of
regulations that it could enforce without having to consider how
carefully the regulation is fitted to the impact of the source on air
quality. But the regulations keep changing. First, States can
modify their SIP regulations if the revision is consistent with
Clean Air Act requirements. Although this can be confusing to
enforcement personnel, EPA can do nothing except warn enforce-
ment programs to confirm suspected violations with the appropriate
State 'agency.
Second, and more perplexing to the enforcement program, are
those cases in which EPA is pushing to have regulations changed.
For exymple, under its Clean Fuels Policy, EPA is attempting
to get the States to modify their regulations where they are over-
stringent. This greatly complicates EPA's enforcement efforts.
Most regional enforcement programs would like to deal with
a total power system in a single group of negotiations rather than
deal with sources on a plant-by-plant basis. If the Clean Fuels
Policy were to be strictly implemented, EPA would have to deal
with each plant individually. Yet, at least one region visited by
the Review Group is dealing with power plants on a systemwide
basis. This may result from a poor understanding of what the
Clean Fuels Policy means for enforcement.
4. 54--The Review Group recommends that DSSE, QAQPS,
and "Office of Planning and Management review the implication!
of the Clean Fuels Policy for theT enforcement program and in-
form the region's Enforcement Divisions of their conclusions'
and the action the regions are expected to take.
15 / The State Air Pollution Plan Progress Report, January 1
to June 30, 1974, EPA-450/2-74-013, provides an over-
"vlew of SIP promulgation status
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IV- 55
One possible reason for regions not implementing the Clean
Fuels Policy is that OAQPS guidance for this policy goes out
to the RA's and the Air and Water Division Chiefs, but often
ioes not get to the enforcement program. This type of problem
was observed repeatedly in the regions.
Confusing .Regulations. Region V has had problems with a
States interpretation of regulations. For example one SIP
does not explicity define "process weight". This .led the States
to take the process weight of a spraying operation to be the
weight of the locomotive rather than the weight of the paint
used. Region V and other regions are also frequently unsure
of the reasoning behind many of the EPA approved SIPs
Region V is now willing to accept State interpretation of the
regulations. They leave it to the Air Program to assure
that the States interpretation will still allow NAAQS to be
achieved.
4. 55--The Review Group recommends that DSSE in con-
junction with OAQPSfprovide guidance to the regions in
dealing with problems of dual interpretation of SIP regulations
and encourage the regional air programs to seek clarification
of the SIP as rapidly as possible. Regional offices shoufd"
assure that clarification does not endanger achievement of
NAAQS.
Internal Inconsistencies. SIPs can hinder the enforcement
program because of two other types of inadequacies: plans
being internally inconsistent, or the plans/as known by the
/Region/being out-of-date. Region I had its Surveillance
and Analysis Division carefully review .its 8IPs'to check "Sot
conflicting definitions and other inconsistencies. This re-
view turned up some inconsistencies that, if unresolved:could
allow a source to challenge the SIP regulations in court.
Although no other regions have attempted this kind of review,
they have in many cases evaluated the plans legally.
4. 56--The Review Group recommends that all regions
carefully review their SIP s to assure that they are inter-
nally consistent!! '. ~~
The Review Group found that most SIP are not maintained
in an up-to-date, organized fashion. Region VII is planning to
let a contract of $10, 000 to update and prepare 50 copies of
one SIP. This contract offers an idea of the complexities
and magnitude of the task involved in maintaining a complete
and up-to-date SIP. Several regions state that it was not
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IV-.56
worth their effort to continiously maintain the SIPs. From
enforcement's point-of-view, the key aspect of a SIP is the
regulations section. Apparently there are fewer problems
in maintaining this section than in maintaining the total
package. The enforcement programs ran into a problem
where the State had revised the regulation, but EPA had
not yet officially promulgated its approval of the change.
This left the regions with a question as to which regulation
to enforce. Although this is not a major problem, it could
be resolved by speeding up EPA's regulation approval -
disapproval process, a topic addressed in Chapter VI.
One region indicated to the Review Group that in .at
last one State it was not receiving all SIP revisions.
4. 57--The Review Group recommends that the regions
put the necessary effort into keeping an up-to-date record of
all SIPs' including complaince schedules, modifications, etc.
Conflicting Regulations. In a number of cases the stationary
source enforcement program is subject to conflicting if not
contradictory regulations. Some of the conflict areas.are solid
waste disposal* waste water discharge, and energy production.
For example, the Review Group found that in New Jersey, there
is ofter a problem with solid waste disposal, particularly
hazardous materials, when an open dump is closed. In another
State, a new source was caught between conflicting State air
and -.wa^er regulations. Presently, there is no formal mechanism
within EPA for handling such problems, and a thorough review
of this issue is needed.
Federal Energy Administration Regulation 215, which restricts
the types of petroleum products that can be used by fuel-burning
sources is a specific example of a conflicting regulation. The
Review Group found that this regulation is hampering regional
and State enforcement programs (particularly in Regions I and
III) because it blocks a very important avenue of compliance,
the burning of low sulfur fuels. OEGC is exploring the possibility
of a compromise which would not place such a great burden
on the enforcement program.
4. 58--The Review Group recommends that QEGC make every
effort to persuade the Federal Energy Administration to amend
Regulation 215 or to adopt a national policy alleviate difficulties
being experienced in the jfregions in obtaining source compliance
by power stations and commercial/industrial boilers.
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V. RESOURCES.
The resources available to EPA's stationary source air enforcement
program include 298 positions in the regions and $48 million a year
in §105 Air Pollution Control Agency Grants. The adequacy of the EPA
resources is addressed in the first part of this chapter; §105 grant
usage is assessed in the second part. Two major conclusions flow
from this analysis:
o Regional stationary source enforcement programs need 13 addi-
tional positions for use in the areas studied by this review.
o There is a need for OAQPS to strongly reaffirm EPA policy
that program grants are to be used to achieve Agency goals and
that regions are expected not only to set conditions on grants
but also to withhold payment where recipients do not meet
grant conditions.
The review Group's resource recommendations were reflected along
with other inputs, in the FY 76 budget the Agency submitted to the
Office of Management and Budget.
REGIONAL RESOURCES
The functions of the Regional stationary source air enforcement
program are:
o State Implementation Plan Point Source Compliance
Compliance Schedules
Compliance Monitoring
Paper Surveillance
Field Surveillance
Case Preparation
Notices of Violations
Abatement Orders
Civil-Criminal Actions
!
o Delegations of New Source Performance Standards and
National Emission Standards for Hazardous Air Pollutants.
o Enforcement of New Source Performance Standards, including
preconstruction reviews.
o Enforcement of National Emissions Standards for Hazardous
Air Pollutants, including 2-year waivers.
o Citizens complaints.
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V-2
o Variances when in the form of compliance schedules.
o Support of States' Enforcement Programs.
o Performing or monitoring source testing.
o Monitoring of ambient air quality for enforcement.
These functions are more extensive than those covered by the Manage-
ment-by-Objective outputs.
In FY 74, 229 positions were programmed for regional air enfor-
cement activities. In FY 75, the regions were allotted 309 positions,
and chose to program 298, including for the first time about 30 po-
sitions for Mobile Source Enforcement. Headquarters (DSSE) has 46
positions. A number of contracts funded by DSSE provide the regions
the equivalent of an additional 41 man years of technical expertise
(see Table 12.%
TABLE 12
DIVISION OF STATIONARY SOURCE ENFORCEMENT
REGIONAL CONTRACTS SUMMARY
(INCLUDING PROJECTED)
REGION COST EQUIVALENT MAN-YEARS
I $213,500 4 1/4
II 327,500 6 1/2
III 181,000 3 3/4
IV 260,000 5 1/4
V . 518,250 10
VI 154,250 3
VII 82,500 11/2
VIII 193,000 3 1/4
IX 87,250 1 3/4
X 75,000 1 1/2
TOTAL $2,081,250 40 3/4
(Source - DSSE)
These contracts have been used to perform the following functions:
evaluation of source compliance, installation of State enforcement
management systems, case preparation, evaluation of compliance
schedules, technical assistance, support in Section 110(f) hearings,
beryllium monitoring, evaluation of power plant controlability, source
testing and special analysis, and expert witnesses. In addition to
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V-3
DSSE funds, OAQPS has spent about $30, 000 a year supporting com-
pliance schedule development and installation of enforcement manage-
ment systems.
Problems And Recommendations/Resources
In assessing the resources needs for each region, the Review
Group made the basic assumption that each region should have the
minimum level of resources needed to perform adequately the
functions for which they are responsible. Thus all regions should, \
for example, b3 able to undertake enforcement actions and field
surveillance. Staffing for program contingencies, however, re-
ceived limited emphasis. Several additional assumptions were
made:
o EPA will not declare a period of Federally assumed
enforcement in any State -- that is, it will not enter
into any state to a greater degree than its present
involvement in such states as Indiana, Utah, and
Louisiana.
o Headquarters contract money will continue to be
available in reasonable amounts for special problems
in the regions.
o States will legally be able to continue to lead in source
compliance activities after mid-1975.
o EPA will attempt to avoid a large number of resource-
intensive court cases.
Overall Regional Needs
Resource needs are estimated in Table 13, given the above
assumptions and generally tight resources. Additional resources
are recommended only where the Review Group believes they will
be effectively utilized. They are considered to be the minimum
necessary to retain program integrity.
5.1 The Review Group Recommends that 0PM attempt to provide at least,
13 additional positions for regional stationary source enforcement programs,
They should be allocated as specified in Table B.
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V-4
Table 13
Recommended Increases in Regional
Stationary Source Enforcement Positions
MINIMAL
REGION INCREASE
I 2
II 1
. Ill
IV 2
V 5
VI 3
VII v
VIII -
IX
X -
The Review Group agrees completely with the Regions (and States
and localities) that they cannot be expected to adequately implement ,
additional programs on their basic allocations. The regions complained
that, in the past, additional programs -- for example, indirect sources--
were imposed upon them with no consideration for the resources required to im-
plement them. Resources requirements must be a major consideration
before additional programs are put into effect by the Agency.
5. 2--The Review Group recommends that, as a first step, the
Office of Resources Management be included at an early stage in the
review of proposed standards, regulations, and SIP promulgations"
so that resource requirements can be considered, both in development
of the SIP and in implementation planning.
The recommendations made in other sections of this report will
generally rerult in only minimal increases in resources or even in
savings. The recommendations which might cause some resource
increases include:
o Acknowledging of Section 114 letter responses from sources.
o Giving greater attention to State programs for reviewing new
sources.
o Upgrading CDS and NEDS.
o Holding working level meetings and exchanges.
o Increasing contacts with the State and local agencies.
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V-5
These last three, while seeming to cause a direct increase in
effort, should, in fact, result in a more efficient program and there-
fore not actually require more resources. The recommendations that
would reduce enforcement resource requirements include:
o The reduction suggested in Headquarters requests for
information and special reports from the regions.
o Fuller and more effective utilization of the,regions'
S&A Division resources.
o More effective use of grants to encourage the States
and localities to undertake an even greater share of
the enforcement activity.
Region-by-Region Needs
Region I. Region I was in the process of completing its inventory
and reviewing the status of source compliance; hence, the additional
workload the region will face in the coming year cannot be accurately
measured. The Review Team concludes that, given the present
program level, the stationary source enforcment effort is undermanned.
The best estimate of the minimum additional resources necessary
is two or three positions. The increase is required in both the
technical and legal functions.
Region II. Region IPs major resource concern is to obtain
more State and local program resources. The Review Group's
recommendation is the addition of one lawyer. An additional lawyer,
however, would be of value, only if the region adopted a more aggressive
enforcement strategy.
Region III. No additional resources are needed, assuming allotted
Surveillance and Analysis Division personnel are fully utilized.
Region IV. At the time of the Review Group's visit, Region IV
had only one lawyer assigned to stationary source enforcement. Two
additional positions, including one lawyer , are the minimal increase
necessary to do an adequate job of enforcement. Additional resources
for air compliance are not a concern to the region, but they will be
necessary to support enforcement actions.
Region V. Region V has the most acute resource resource problem
of the lO regions. The region has found it necessary to assign five
of its allocated stationary air enforcement positions to water program
activities. The Review Group recommends that at a minimum, five
positions be added to the ^region's personnel ceiling. This increase
would be effectively utilized.
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V-6
Region VI. The minimal increase recommended for Region VI
is three positions. These, however, might be obtainable from in-
ternal reprogramming (an option that was not known to the region's
Enforcement Division Director).
Region VII. Lack of agressiveness is the primary weakness
in the present air enforcement program. Additional resources
would not be effectively utilized and were not asked by the region
itself.
Region VIII, Region IX, Region X. The Review Group believes
that no additional resources are necessary for these regions to
conduct the basic stationary source compliance program.
Inter-regional resource comparisons must take into account
more than just the air program. In FY 74 some regions (X, for
example) consciously built up their air compliance capability
by reprogramming from other areas. Other regions (such as
VI) have not made the extra effort to reprogram internally.
The former should not be penalized to help the latter.
There have, nevertheless, been misallocations from Head-
quarters.
5.3 The Review Group recommends that the Office of Resource
Management develop a model for inter-regional resource require-
ments and apply it to FY 76 budget allocations.
Other Observations
Based on interviews and other information provided by the
regions, the Review Group has formed a number of general con-
clusions on the regions's use of enforcement resources:
o Stationary source enforcement continues to suffer'from
the diversion of manpower to new air programs that
are forced on the regions without adequate funding.
These programs usually have high visibility compared
to stationary souce enforcement, causing Regional
Administrators to focus resources on them often
at the expense of stationary enforcement. Examples
include:
--In Region I, the effort to develop compliance
schedules in FY 74 was hampered by the com-
mitment of the Air Branch to do fuel variances
and TCP's.
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V-7
--In Region III, the key branch for implementing the stationary
source enforcement program, had on paper a FY 74 staff
allocation of 10; it was staffed by only one person for the
majority of the year because the region was devoting its
attention to TCP's.
--In Region V, the key section dealing with stationary source
enforcement was in effect reduced by about 20% from FY 74
in order to fulfill the needs of the mobil source enforcement
program.
Historically, many enforcement responsibilities were assigned to
the Air and Water Divisions in the regions. These functions
have been increasingly transferred to totally enforcement-related
groups, which has increased the ability to operate a coordinated
program. The increased responsibilties given to air enforce-
ment branches generally have not been matched by increased re-
sources.
The 69-position increase from FY 74 to FY 75 for regional air
enforcement often reflected a pre-existing situation. Few
people actually changed jobs or were brought on board.
Regions are beginning to modify their mix of professionals. The
use of a paraprofessionals is just beginning -- Region VII, for
example, is beginning to use a paraprofessionals for data pro-
cessing requring no professional technical skills. Further, the
key shortage observed by the Review Group in most regions is
in the area of legal skills. A number of regions had only one
or two lawyers on board. In most cases this is being corrected.
About 20% of the stationary source enforcement resources has
been going into the S&A Divisions. Yet the work that these div-
isions have been performing in support of the program has often
been minimal. Part of this is due to lack of training in air.
(Region VII enforcement personnel are training S&A personnel
to conduct inspections; Region Ill's S&A Division spent its
air time last year training its water personnel to do air work.)
The regions are not reducing staff assigned to enforcement of
National Emission Standards for Hazardous Air Pollutants
(NESHAP). The Review Group has expected that they would
because responsibility for this program is expected to be de-
legated to the States, and most hazardous sources are in com-
pliance or on waivers.
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V-8
o Some regions' ability to absorb contract help is reaching its
limit. DSSE uses contract personnel extensively to supple-
ment Government personnel on specific tasks or in handling
specific relatively short-range problems. The Review Group
endorses this approach. However, the regions must have the
personnel to monitor and manage contracts to effectively use
them.
OAQPS Index of Comparative Workload
While it is not possible to develop an accurate measure, in absolute
terms, of regional air enforcement workload (leading to determina-
tion of resource needs), a method does exist to measure the comparative
workload faced by regions. OAQPS's calculates an index of comparative
workload by States based on population, the number of priority I Air
Quality Control Regions^ capital expenditures for new manufacturing
equipment, and the number of motor vehicle registrations. Table,14
aggregates the State indices by regions.
Table 14
Regional Workload Index
Region I 6.6%
Region II 13.0%
Region III 11. 5%
Region IV 15.1%
Region V 22.4%
Region VI 9.3%
Regiov VII 5. 2%
Region VIII 2. 5%
Region IX 10.1%
Region X 3.9%
SOURCE: OAQPS's index of Comparative Workload
The numbers do not consider other factors in regional workload
--for example, the difference in effectiveness of State and local agencies
and the base level of people required to do the job. Nevertheless,
the indices do provide a rough guide to the allocation of manpower
among regions. Table 15 shows the regional air enforcement ceiling
allocations, as distributed by region in EPA's MBO FY 75 Operating
Guidance of Feb. 25, 1974. The 309 positions are also distributed
by region based on the indices. This distribution, except for in Region I,
generally corroborates the Review Group's recommendations as to where
additional resources are needed. Also, included in the table are the
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TABLE 15
REGIONAL DISTRIBUTION OF AIR ENFORCEMENT POSITIONS
Total All REGIONS
Regions I II III IV V VI VII VIII IX X
FY 1975 air enforcement positions
approved in Feb. 1974 MBO
Guidance
FY 1975 air enforcement positions
(total 309) distributed by
workload index
FY 1975 air enforcement positions
included in Regions program
plans
309
309
298
24 36 34 35 51 24 22 19 42 22
21 40 36 47 69 29 16 8 31 12
23 32 31 35 46 24 22 19 42 24
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v-io
air enforcement positions included in the regions' FY 75 program plan.
§105 AIR POLLUTION CONTROL AGENCY GRANTS
Under the authority of §105 of the Clean Air Act, EPA gives grants
to those State and local air pollution control agencies with substantial
responsibility for carrying out the provisions of the SIP's. Because
they are meant to supplement, not supplant, State and local funds,
grants are limited by law to 60% of the total costs of maintaining a
program. The thrust of control agency grants has moved from
gneral support of air pollution agencies to support of activities
leading to attainment of the SIP's. Regional offices have been in-
structed to tie grant funds to priority outputs such as achieving
source compliance.
Regional offices were also instructed to evaluate each grantee's
performance. The valuations are to be used as a basis for making
future grants, or for withholding portions if a grantee fails in his ,
commitments. Thus, grants can now be utilized as a direct tool for
EPA's air compliance program. Grants are in themselves worthwhile
in EPA's air compliance program, but their value is greatly enhanced
if they are utilized explicitly to encourage recipients to adopt an
aggressive, enforcement-oriented approach to air pollution control.
Regional Use of Grants
Regional Offices vary in the types of commitments they ask of
States, and in the portion of the total grant tied to these commitments.
For example, 6% of Region I's grant to Maine was tied to incentives,
compared to 90% of Region IX's grant to Los Angeles. The percentage
tied to commitments reflected the regions' views as to what was
necessary to elicit action by the recipient.
The theory of attaching conditions to control agency grants was
generally well accepted by regional offices this year. Most States,
of course, have a different view. In the grants studied by the Re-
view Group, conditions varied from the performance of the basic duties
required in 40 CFR to most all of the agency's annual program. One
region, however, stated that it did not want to impose strict grant
conditions because it expected that States would respond by telling
EPA to take its program and do it itself.
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v-n
Most regions at least paid lip service to the idea of actually with-
holding grant funds for nonperformance. Many grants, however, did
not have specific amounts of money tied to specific achievements.
This lack of specificity would make withholding of money for non-
performance difficult. EPA's general interim grant regulations
appear to allow EPA to withhold funds from the grantee for non-
compliance with requirements of the grant. Those regions which
had relied on the general clause indicated concern over their ability
to prove noncompliance and document costs in case they were to
attempt to withhold "proportional" money from the States.
For example, the initial condition in each Region VII grant
reads, "Federal grant funds in this award may be withdrawn from
the grantee's account in an amount proportional to any Environmental
Protection Agency activities necessary to enforce the State's Imple-
mentation Plan in the grantee's area of jurisdiction". The method
of calculating this proportional amount is not mentioned.
The Review Group tried to determine just how far each region
would go in withholding money from grantees that did not fulfill the
output commitments of their grant. While some regions indicated
that they would withhold money, the Review Group generally con-
cluded that most EPA regions would withhold money only for a vey
major grievance. Further, some Regional Administrator signed
off on grants without being explicitly aware of the conditions im-
posed by the grants. As mentioned in Chapter VI, the Regional
Administrator must be directly involved in development of grant
conditions.
5. 4--The Review Group recommends that grants to all States
and "localities be specifically conditioned by both the time by which
specific tasks are to be performed and the amount to be withheld"
for nonperformance. ~
In this way both the grantee and the grantor will jointly be able
to determine satisfactory or unsatisfactory performance. The
Regional Administrator will then have the specific option to with-
hold funds from a Stae. Recognizing the differences among State
and local programs in each region, the Review Group does not
recommend any specific policy on the extent to which grants should
be constrained.
5. 5--The Review Group recommends that OAQPS reiterate and
explicity inform the Regions that it is EPA policy to use grants to
achieve"Agency goals and that Regions are expected not only to con-
strain their grants but to withhold payment where recipients do not
meet grant conditions.
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V-12
Decisions on which conditions to put into grants are made in
various ways. The most effective method is to involve all divisions
concerned with the grant conditions. In some regions, grant con-
ditions are developed by only one division with no output from other
programs, resulting in a narrow view of that State program.
5. 6--The Review Group recommends that the Regional Adminis-
trator assure that the Surveillance and Analysis Division, the
Enforcement Division, and the Air Division all have input to the
conditioning of grants and in decisions withholding payments for
nonperformance.' '
Management of Grant Funds
The mechanism for funding EPA's air program grants is partly
based on a forward funding concept, meaning that a region uses
funds from fiscal year one to fund State or local programs in fiscal
year two. The regions are using funds from both year one and year
two to fund the State program in year two. The Review Group found
that regions I, III, and VI were providing the grantees with more
grant money to be spent each year than the constant level of funding
the region was receiving each year for grants. Each year these
regions used more of the second year money to fund the second
year's program, thus reducing the amount of money available for
year three. Table 16 illustrates the situation and its consequences.
The consequences are that the region eventually runs out of forward
funds (assuming constant grant allocations to the region).
When this happens, the region will find that is current year
funds are inadequate to cover the money the grantees are expecting
from EPA, and the region will be forced to cut the amount by which
it is supporting the grantees. In the example in Table 16, the region
would have to cut its grants by 33%.
One of EPA's regions will have to cut its grants by about 20%
in FY 77 unless its policies change or its grant funds are increased.
This type of grant funds management is not illegal; however, it
represents extremely poor management.
5. 7--The Review Group recommends that QAQPS . _
evaluate alternative policies for handling the situation arTsTngTrom
overallocation of forward funding, and provide the regions involved
with explicit guidance on how to deal with it.
There are several possible reasons why this situation has been
allowed to continue: it is very difficult to track it under EPA's
tracking system for grants; historically, when grants were con-
stantly growing, a region could get away with it; and, if properly
used, the flexibility provided by forward funding could be advantageous
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Table 16 ,
Hypothetical Example of How Grant Funds are Being Managed in Several Regions
Showing How Forward Funding is Being Dissipated and the Consequences.
ASSUMPTION: EPA received authority to give State A $4 million a year in grants using
forward funding as necessary.
$ State A
Year has to Spend
0
6 ,000 ,000
Source of Funds
6,000,000
4,000,000
4,000 ,000
4,000,000 forward-
funded from year 0
2,000,000 current
funds from year 1
2,000,000 forward
funds from year 1
4,000,000 current
funds from year 2
4,000,000 current
funds from year 3
4,000,000'current
funds from year 4
Comments
EPA received initial allocation of $4 million to
be used in grants; gives none to State for use in
year 0. EPA finishes year o with $4 million for foward funding
co year 1.
EPA finishes year 1 with $2 million for forward
funding to year 2.
EPA finishes year 2 with zero dollars to forward
fund to year 3.
STATE HAS LESS EPA GRANTS MONEY TO SPEND EACH YEAR.
I
M
10
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V-14
The problem is that given a constant funding situation, there is a
limit to which the flexibility can be used to increase the flow of funds
to grant recipients. At some point the flow must be decreased to the
level that can be maintained. The regions should be encouraged to
Immediately initiate resolution of this problem on their own.
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VI. HEADQUARTERS/REGION/STATE/LOCAL
INTERACTIONS
Achievement of the goals of the Clean Air Act is the joint respon-
sibility of the EPA Headquarters, the EPA regions, State agencies,
and local agencies. Progress towards the goals can be smooth if
the four levels work together, or torturous if they are pulling in
different directions. Problems in achieving the goals can develop
from disagreement on how to achieve the goals, lack of communi-
cation on tactics, and disagreement on the time frame for achieve-
ment. These problems are present to a greater or lesser degree
throughout the various levels of the air compliance effort.
HEADQUARTERS PROBLEMS
Information Distribution
The distribution of information by Headquarters was repeatedly
described by the regions as inadequate. The items most frequently
referred to as having distribution problems were opinions by the
Office of General Counsel (OGC), policy decisions by the Division
of Stationary Source Enforcement (DSSE), and papers by the Office
of Air Quality Planning and Standards (OAQPS).
There are two general problems with distribution. One is that
the document never gets out of Headquarters; the other is that it
gets out, but not to all the "customers" who could use it.
Effective distribution within a region is generally a function of
the skill of the Regional Administrator's correspondence control
and the degree of interchanges among divisions. Headquarters
often sends copies of documents to both the Regional Administrator
and the division or branch concerned. This solves some problems,
but may leave interested parties unaware that a decision has been
made, or that further information is available.
One of the rnost common complaints of regional attorneys inter-
viewed by the Review Group dealt with their lack of access to OGC
legal memoranda and DSSE policy decisions. They also complained
of not receiving copies of court decisions with accompanying OGC
synopses. The Review Group was also told of instances where
regional attorneys had recommended that certain actions be taken
only to find out later on that OGC had, in a written memorandum,
taken a dim view of the legal support for such actions.
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VI-2
Although it is recognized that a problem area encountered by a
regional attorney can, in most instances* be quickly resolved by a
telphone call to OGC or DSSE, in many instances, the real issue
is determining if a problem exists. To make such assessments,
the Review Group believes that regional attorneys should be
supplied with a full complement of legal tools.
6. l--The Review Group recommends OGC/DSSE develop a
legal memoranda case index on a category-by-category basis and
that this index, with copies of jill listed memoranda and cases,"
be circulated to the regions. Thereafter, this index should be
JglO
nthl
updated every two months and recirculated to the regions with
copies of newly developed memoranda and court opinions.
DSSE must ensure that once a policy decision has been reached,
it is effectively distributed to the regions. The routine, centralized
listing of what new legal material is available and what issues have
been decided would be of benefit to the regional programs.
6.2--The Review Group'recommends continuance, at least
Group' i
->f rvsQTTM
a bi-monthly basis, of DSSE's newsletter, which summarizes
policy decisions and distributes regional findings.
OAQPS effectively disseminates its guidelines series to per-
sonnel in regional air programs. Unfortunately, those in regional
Air Enforcement Divisions -- and occasionally in Surveillance and
Analysis Divisions -- often have difficulty seeing or learning about
papers they could use. Obviously, this is primarily an intra-regiona
office distribution problem, but OAQPS could provide assistance.
6.3--The Review Group recommends that OAQPS ensure that
regional Enforcement Divisions are kept informed on enforcement
related issues dealt with in OAQPS's Guideline Series.
Legal and Technical Expertise
Regional Offices in need of extra assistance on specific cases
should tap Headquarters legal and technical expertise. Most
regions indicated that assistance was generally provided when
requested, but not always of the desired quality. Regions III,
IV, and V showed the Review Group an excellent example of joint
use of expertise on the steel industry.
6. 4--The Review Group recommends that DSSE and OAQPS
jointly develop and distribute a list of experts available as witnesses
or for compliance purposes. Continuing liaisons should be pro-
vided so the regions can obtain technical experts as they are needed.
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VI-3
Experts should be identified as to their field and availability. Con-
tractors should be included where appropriate. Too often, assistance
provided to the regions depends entirely on someone knowing the right
person to call. The situtation becomes much more difficult as the
mid-75 deadline approaches.
DSSE has indicated that its attorney-advisors may be made avail-
able to the regions to work on specific cases. Every effort should be
made to fully utilize Headquarters resources to service the regions
with the most immediate problems. Headquarters personnel would
also gain experience in actual case work.
6. 5--The Review Group recommends that the regions utilize
the Tegal and technical expertise that DSSE has indicated may be
available^
The Denver National Field Investigation Center (NFIC) is inde-
pendently developing certain specialities and expertise in air
programs. This development should not be unilateral but
rather a part of a clear strategy from OEGC elaborating
the NFIC's responsibilities and duties.
6. 6--The Review Group recommends that OEGC assure itself
that~tHe development of an air capability by the Denver NFIC is a
coordinated part of a clear OEGC strategy elaborating the NFIC's
responsibilities and duties.
Policy Changes
As Headquarters continuously updates guidance on air compliance,
it must fit those policy updates into the Formal Planning and Reporting
System. New policies must be fitted into the existing program. Too
often, regions are told to implement a new policy without an explanation
of why that particular option was chosen and how it fits in with the rest
of the program priorities. The regions are then left to justify the new
policy to their States and localities without being properly able to
support it. Further, the regions are generally given no clear guidance
on what current commitments can be reduced in order to make re-
sources available for the new policy. Planning for major changes
in policy that require increased resources should consider where
resources will come from.
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VI-4
Concurrence
EPA Order 1260.41 requires that the Regional Administrator or
his delegate obtain advance Headquarters concurrences prior to issuing
notices of violation and administrative orders or refering civil and
criminal action to the United States Attorney's Office. The Order
also states that the Assistant Administrator for Enforcement and
General Counsel may waive the concurrence requirements on a
selected regional basis. The avowed purpose for the concurrence
requirement is to assure that in initiating and operating the regional
stationary source enforcement program, all major factors are
considered prior to taking an enforcement action, as well as to
maintain a uniform and consistent national enforcement program.
With region stationary source enforcement programs well on
their way, the concurrence requirement for notices of violation
has been waived for all regions. In addition, a conditional waiver
of the concurrence requirement for orders has been issued to
Regions I, III, IV, V, VII, and IX (as of November 23). This
conditional waiver, which should be extended to all regions by
the early part of 1975, requires the regions to
notify DSSE of their plans to issue orders. If the order involves
a steel mill, power plant, smelter, an interpretation of an EPA
regulation, or an issue of national significance, DSSE can either
request a copy of the draft order or an entire concurrence package.
The Regional Office can issue all other routine orders after
notifying DSSE. This policy of conditional waivers on all but
the important issues indicates insufficient guidance from DSSE.
In any case, the term "issues of national significance" is too
vague.
6. 7--The Review Group recommends that DSSE issue complete
policy" guidance on orders for steel mills, power plants, smelters,
and other areas of national significance, then issue complete
waivers of concurrence permitting the regions to issue all orders
after notifying DSSE.
Concurrence packages are still required for all civil and
criminal actions. This requirement will probably not be changed
in the foreseeable future since these actions generally involve
issues of national significance, and since the Assistant Adminis-
trator for Enforcement and General Counsel's Office acts as
liaison with the Department of Justice and will routinely play
a major role in any decisions made in a case.
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VI-5
Industry Relationships
Headquarters can undercut the regions when it speaks directly to
industry ox- to the States. Obviously there should be a balance. EPA
Headquarters generally has a very good reputation for being careful
with its contacts "outside the chain of command". Industry naturally
likes to select the most convenient alternative., and any unnecessary
leniency can quickly be used to produce leverage at other levels.
6. 8--The Review Group recommends that the Office of Enforce-
ment and General Counsel'and the Office of Air and Waste Manage-
ment use extreme caution in direct contacts with industry and make
every effort to invite, or at the minimum inform the affected regions
when any meetings take place"!
Management Attitudes Towards Air Data
All alumnae of the Vietnam era are familiar with the problems
of management by "body count". Quality versus quantity should
always be a concern. §113 orders can merely rubber stamp a
State variance running beyond mid-1975 or can represent a tough
agreement hammered out after considerable time and effort. An
inspection can be made from a passing car, or it can be a full-
fledged stack test requiring 10-15 man-days. If Headquarters
wants high numbers, it will get them.
Management attitude towards air data must continually consider
the whole picture, and not separate bits of information. Commit-
ments made or missed must be evaluated in light of all other
actions, and from an understanding of changing pressures and
special demands. Regions must understand that they will be
evaluated in this light.
Rumor
Difficulties arise in Headquarters-Regional contact while policy
is being formulated. Every person in every region seems to have
his favorite contact in Headquarters. Everybody calls someone
different and gets a somewhat different opinion. The occasional
lack of response to formal request during times of policy formu-
lation leads to more reliance on rumor and "best guess". Efforts
must be made to curtail this practice . In several instances,
rumors have resulted in erroneous information given to the States,
seriously impacting an enforcement case and EPA-State relations.
OAQPS and |)SSE must make every effort to inform the regions
early and often in the policy-making process.
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VI-6
REGIONAL PROBLEMS
G rants
A central theme of the air compliance program is getting the States
into an active "enforcement posture". In influencing the States, nothing
can substitute for having the Regional Administrator (RA) push the
program. Almost every RA is personally involved in conferences
with the States on Water §106 grants, but too many RA's leave the
Air §105 grant negotiations to lower level personnel. It is critical
for each RA to have a working knowledge and relationship with each
State air program director and his program. Time and effort in-
vested working on air program grant outputs with the States will
be more than repaid in the RA's increased ability to coordinate
the States' efforts to complement the regions"s actions. Region X
has been following up a face-to-face §105 grant meetings with
quarterly meetings between the RA and two States at a time to
discuss progress towards achievement of specific goals.
6. 9--The Review Group recommends that each Regional
Administrator should become personally involved in §105 Air
Pollution Control Agency Grant negotiations with the States and
should chair regular meetings to review compliance status and
plan EPA/State enforcement efforts.
The Compliance Data System (CDS) should be utilized as
v the vehicle to summarize the compliance information for the
major point source facilities so that this review session is mana-
geable. This procedure will also allow the region to follow-up on
overdue actions in CDS on a regular basis. The continuing con-
fusion . over reporting is one of the central stumbling blocks to
improving EPA/State relations.
Organizational Techniques
If the States are to fully be a part of the national air compliance
effort, there must be effective and timely communication between
the regions and the States. Region X is continuing its experiment
with State Operations Offices by adding one Air Operations Officer
to each State office this year. Their specific job will be to assure
the rapid update of all compliance data and in general act as a liaison
between the region with the State on the Air Compliance Program.
Region VI has gone a somewhat different route in assigning one per-
son in the Regional Administrator's office to be a state specialist.
His job is to guide the regions actions with one State through a
difficult period. Region VIII has also assigned a coordinator to one
difficult State.
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VI-7
The Region X experiment, with one air professional in each
State, looked very promising to the review group. Although this
will be a demanding task, his job can and should be done. Extra
steps will have to be taken by every region to focus on its relation-
ships with the States, and each region should find its own way.
The point is in too many regions, the relationships with the States
ranged from stagnant to terrible. Major efforts must be made to
improve them. In one region, the relations got so bad at one point
that no one. in the regional office' except the Regional Administrator
was allowed to talk to State personnel. Each region must determine
its own optimum structure for its own problems.
6.10--The Review Group recommends that every Regional
Administrator consider where special State coordinators could
improve EPA/State relations.
Working Level Meeting
The regions identified for the review group numerous tactical
approaches that they were trying or had learned from experience.
They believe, and the review group concurs, that meetings of
working level regional enforcement personnel would allow the regions
to share their experience, thereby, increasing total efficiency.
6.11--The-Review Group recommends periodic meetings of
working level regional enforcement personnel.
Non-SIP Related Problems
EPA has three non-SIP related programs that are now the
responsibility of stationary source enforcement and that we are
trying to delegate to the States (localities). These are New Source
Performance Standards (NSPS), National Emissions Standards
for Hazardous Pollution (NESHAPS), and Indirect Source Reviews.
To date none of these programs have been delegated to any State.
Some States have asked for these delegations and in other cases States
have agreed to perform the technical review leaving it up to EPA
to issue the final decision or take enforcement action. EPA's policy
is to delegate these programs wherever and whenever possible.
The review group found that there are various problems involved
in delegation. For example, in Region V, there is apparently a
resistance by States to assume delegations for two reasons: 1) the
increased resource burden it will put on the State without any in-
creased resources coming from EPA and 2) a resistance on the
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VI-8
part of the States to operating in the regulatory enforcement mode
required by the regulations. Guidance from headquarters would be
of very httte help in attempting to resolve these problems.
On the other hand, in Region IV one finds that reluctance to
accept delegaton rests on confusion as to what is involved. The
State of Georgia said their acceptance of delegation was awaiting
a memo changing the guidance for delegations. Where the problem
is similar to Georgia's, improved guidance from headquarters would
help to increase the number of delegations. There is significant
confusion in the regions in the area of delegations.
The Review Group recognizes that "delegation" is not an
end in itseli. EPA may significantly and unnecessarily
alienate many States by behaving as if it were assumed that
a State has no choice about "delegations". In fact, the
Clean Air Act does not require acceptance of a ddelegation",
It would be desirable if the acceptance was voluntary, and
the number of voluntary acceptances will increase only if
EPA demonstrates that the delegation is in the State's
best interest.
6.12--The Review Group recommends that DSSE issue a com-
posite set of up-to-date guidelines on delegation of enforcement
responsibilities" This should address legal, technical, ancT
program aspects.
6.13In addition, the Review Group recommends that the
regions concentrate their efforts on those States most likely to
accept delegations, and use them as demonstrations to the
borderline States to show them that the delegations can be'
accepted without creating problems.
In genral. States are unwilling to accept delegation of enforce-
ment of demolition regulation under NESHAPS. These regulations
are not being fully enforced.
STATE AND LOCAL PROBLEMS
Program Planning
States concerns often differ from EPA's. They are more attentive
to citizen complaints; they enforce more against odor and visible
violations; some areas have lead regulations, others are working on
arsenic standards. Most States are not as sensitive to the demand
of the Clean Air Act's deadlines as is EPA. Therefore, the States
are not necessarily interested in our priorities. We have several
ways to make them interested: legal and economic sanctions, logic
and persuasion.
All the efforts to get States "tuned-in" to EPA priorities can be
voided by eccentric Headquarters actions. Many States pointed out
their problems with following the twistings of EPA policy, especially
when they first read about our policies in the newspapers. The
Management-by-Objectives (MBO) system has been generally well
accepted in EPA's regions because of the relative stability it provides
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VI-9
the programs. In most regions the §105 grant process focuses on
specific outputs. In order to extend the MBO system fully to the
States, two things are needed: one is that the States have to see
EPA's Regional Guidance; many States have not seen the FY 75
Regional Guidance. Secondly, the States have to have an input
into the formulation of the guidance package, just as the regions
did for the first time this year. Only by involving the States
in our planning can we involve them in our outputs and goals.
6.14--The Review Group recommends that arrangements be
made to involve the States along with the regions in the MBO
planning process.
Interaction with States on Court Cases
In the State of Georgia, the review group was told that EPA's
Office of General Counsel does not involve States in legal disputes
of interest to them. The specific case under discussion was the
challenge to the tall stacks provision of the Georgia State Imple-
mentation Plan. Georgia learned of this suit only after it was too
late for the State to intervene. Georgia also objected to the fact
that the brief filed in the suit did not show, in their view, an
adequate understanding of the State Implementation Plan regula-
tions. While the suit in question involved a challenge of EPA's
approval of the State regulations, the loss of the suit required
the State to revise its regulations.
This type of problem came up in other cases. In at least
one other case the State complained that EPA's defense of a
challenge did not adequately reflect the situtation, and the State
was given no chance to comment on the brief. This, of course,
may partly be due to the fact that EPA itself does not have the
final authority in the briefs.
6. 15--The Review Group recommends that EPA, as a matter
of formal policy, notify States when a suit involving them has been
filed, even if the suit is only a challenge of EPA action.
This notification should of course be the responsibility of the
Regional Office and will require that the General Counsel's office
notify the Regional Counsel's office of all suits.
Both in the State of Pennsylvania and in Allegheny County the
review group was informed of an unwillingness on EPA's part to
get involved in helping the State defend challenges to its SIP regu-
lations, either from the legal or technical viewpoint. From the
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VI-10
legal side, the unwillingness apparently rests on a fear that if the
case is lost and EPA was involved, then EPA's attempt to challenge
or litigate the matter in another case will be hampered. The Review
Group has been told that the basis for the unwillingness of EPA to
testify is unfounded.
6.16--The Review Group^recommends that the General Counsel's
office as well as OAWM should review the issue of EPA involvement
in EPA court challenges to SIP's and recommend policy^The
Review Group also recommends that EPA assist States and locals
in these cases wherever possible, resources permitting,,
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APPENDIX I
List of Recommendations
The recommendations contained in this report are listed below. They
are grouped by organizational responsibility and ordered by approxi-
mate priority within groups.
The Review Group recommends that the Administrator should:
o Request appropriate legislation to allow extension
of final attainment dates for State Implementation
Plans in those Air Quality Control Regions where TSP
National Ambient Air Quality Standards will not be
met and presently available controls strategies
would be socially or economically unacceptable. (3.5)
o Continue to advocate passage of the necessary legislation
allowing States to prepare compliance schedules for EPA
approval and promulgation in the Federal Register for
sources with post-mid-1975 final compliance dates. (4.19)
o Continue to request an Amendment to sl!3(b) of
the Clean Air Act to provide for civil penalties
so, if deemed appropriate a source can suffer '
penalties for delaying in a civil proceeding.(4.48)
The Review Group recommends that each tegional Administrator -\
should:
o Become personally involved in i 105 Air Pollution
Control Agency Grant negotiations with the States
and should chair regular meetings to review compliance
status and plan EPA/State/local enforcement efforts.
(6.9)
o Direct his enforcement personnel to: 1) conduct more
source inspections and visit State and local agency
offices more frequently and 2) to fully utilize (CDS)
as an enforcement management tool. (4.23)
o Assure that the Surveillance and Analysis Division,
the Enforcement Division, and the Air Division have
input to the conditioning of § 105 Air Pollution
Control Agency grants and in decisions on withholding
payments for nonperformance. (5.6)
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o Delegate the authority to sign § 114 letters and
§ 113 notices of violation to the Enforcement
Division Director. (4.45)
o Request that his region have, at the very least,
co-project officer status on any EPA contract in
its jurisdiction. (4.7)
o Consider establishing a separate air group in the
Surveillance and Analysis Division, and assigning
this group clear responsibility for air outputs
assigned to the S&A Division. (4.38)
o Consider where special State coordinators could
improve EPA/State relations. (6.10)
The Review Group recommends that each Region should:
o Specifically condition § 105 air pollution control
agency grants to all states and localities by both
the time by which specific tasks are to be performed
and the amount to be withheld for nonperformance.
(5.4)
o Assign one individual the responsibility for completing
compliance schedules for a State and give this indivi-
dual the responsibility to advise the State on EPA
policy on a regular basis. This same individual should
also be responsible for following the States compliance
monitoring program. (4.12)
o Negotiate with each of its States a program to complete
compliance schedule development. Monthly or quarterly
targets should be considered. The results of the
negotiation should be a condition on the State program
grant. (4.13)
o Initiate an effort to complete compliance schedules
using contract funds available from OEGC if a State
remains incapable or un-cooperative in submitting
schedules to EPA even after selective EPA enforcement
actions. (4.15)
o Develop, as soon as possible, a specific surveillance
program to define those point sources on which field
surveillance will be conducted during the remainder of
this fiscal year. (4.24)
o Require 'their National Emission Data System contacts
to have an independent assessment of the completeness
and accuracy of the point source emissions data and
put, as a region, the effort necessary into maintaining the
data base and encouraging the States to improve and update
the data. (4.6)
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o Include in the compliance monitoring program a review of
State programs to evaluate State compliance with SIP new
source procedures. The regions' field surveillance
program should include surveillance of a selected number
of new sources. (4.33)
o Require the NEDS contacts in the region to notify the
Enforcement Division when they identify new sources.
(4.4)
o Modify their programs to implement CDS to assure that
all new point sources of air pollution are included.
(4.32)
o Utilize the legal and technical expertise that DSSE
has indicated may be made available to the regions.
(6.5)
o Include with all § 114 letters a request to update a
NEDS printout or to fill out an APER form (if no NEDS
data exist). The § 114 letter should clearly state
what is requested and what is required. (4.3)
o Put the necessary effort into keeping an up-to-date
record of all State Implementation Plans (SIP's) in-
cluding compliance schedules, modifications, etc. (4.57)
o Review their SIP's to assure that they are internally
consistent. (4.56)
o Set aside time each quarter to evaluate, improve, and
update its specific State regional enforcement strategies.
The strategies should be prioritized to achieve the
NAAQS as soon as possible, and to achieve source compliance
with the SIP's. States (or localities) should be kept
or placed in the lead wherever possible. (4.40)
o Review its compliance strategy for Federal facilities
and determine means to: 1) improve the programs focus
2) instill a ''sense of urgency" about the approaching
compliance deadlines, and 3) bring the skills and powers
of EPA.enforcement to bear on this problem. (3.8)
Continously match up CDS and NEDS identification
numbers. Regions should develop a formal program
to see that source information they receive goes
into both data systems as well as EPA's formal
planning system. This could be accomplished by
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assigning the same person to both CDS and
NEDS, (4.5)
o Acknowledge all § 114 replies and inform the source
if no further action is intended on the basis of the
information supplied. (4.44)
o Concentrate effort on those States most likely to accept
New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAPS)
delegations, and use them as demonstrations to the border-
line States to show them that the delegations can be
accepted without creating problems. (6.13)
o Have the Regional Enforcement Division Director and
Public Affairs Officer update at least quarterly the
publicity strategy for air compliance. (4.52)
o Assign a single coordinator who will devote as much
time (full-time in most regions) as necessary to the-
implementation of CDS. (4.27)
o Require States to notify individually all sources on
categorical compliance schedules unless the source
has complied with the first increment of progress
that is, it has reported. (4.14)
o Use their leverage with the Office of Regional Liaison,
the Program Reporting Division, and the Administrator,
if necessary, to reduce demands for "one time only"
reporting. (4.29)
o Take the appropriate steps to guarantee that all affected
persons are advised of the issuance of a § 114 letter
and what is required. Use of a checklist of required
steps in issuance'"6t "a §114 letter would be appropriate? (4.43)
o Give no greater prior notice of inspections to Federal
facilities than they give to private industry. (4.36)
o Conduct whatever inspections and investigations are
necessary without giving advance notice (other than
perhaps a day before) to the State if the State is
uncooperative. If the State is cooperative with EPA
in thise actions it would be appropriate to extend
more advance notice so that State personnel can
accompany EPA personnel if they want to. (4.35)
o Require that a plant inspection be an integral part
of every enforcement action. (4.42)
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The Review Group recommends that the Division of Stationary
Source Enforcement should: ° .
o Develop a consistent national strategy for post-1975
State compliance schedules. (4.17)
- Before finalizing an interim or final enforcement
policy, EPA should inform all the States of the legal
problems with post mid-1975 schedules and consult
them on the alternatives. (4.18)
- In the interim, before passage of recommended legislation,
EPA should adopt a policy of overseeing State enforce-
ment orders. (4.20)
- OEGC should examine the question of citizen participation
in § 113 conferences and give thought to providing in-
terested citizens an opportunity to testify if they so
request in writing beforehand. Accordingly, notice
should be given of all compliance schedules in at least
one local newspaper. (4.21)
- Guidelines should be developed informing the public of
how decisions are made under § 113 and an operating
standard should be set which will enable the .results
of a § 113 proceeding to weather subsequent court
challenge. (4.22)
o Ensure that all regions and States follow the same
understanding for developing their list of "potentials"
100 ton per year point sources and that the FY 76
defintion be specific enough to allow standardization.
(3.1)
o Provide the regions with guidance on equpment delays.
This guidance should include, suggested policy on il)
when a schedule should be revised, (2) what requirement
a source should be compelled to meet to document an
equipment delay, (3) when a source should be singled out
to be pressured to obtain control equipment in an ex-
peditious manner even if this causes some increase in
cost, and (4) how to assure that all compliance schedules
currently being developed include consideration of
equipment delays. (4.31)
o Jointly with OAQPS^develop and distribute a list of
experts available as witnesses for compliance
purposes. Continuing liaison should be provided
so the regions can obtain technical experts as they
are needed. (6.4)
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o Assign to .the regional offices sole responsibility for
the quality and timelines of their Federal Register
packages. Headquarters review should be limited to
matters of policy and major substantive issues. Head-
quarters should consult the regions before making changes.
Headquarters should be allowed only a specified period
of time (for example, 5 working days) to complete its
review. (4.16)
o Issue complete waivers of concurrence on all enforcement
orders, thus permitting the regions to issue orders
after notifying DSSE. This will require that DSSE issue
complete policy guidance on orders for steel mills,
power plants, smelters, etc. (6.7)
o Provide the regions with guidance on dealing with problems
of dual interpretation of SIP regulations. The guidance
should encourage the Regional air programs to seek
clarification of the SIP as rapi'dly as possible and
assure that clarification does not endanger achievement
of NAAQS. (4.55)
o Make every effort to persuade the Federal Energy Admin-
istration to amend Regulation 215 or to adopt a national
policy to alleviate difficulties being experienced in
the regions in obtaining source compliance by power
stations and commercial/industrial boilers. (4.58)
o Provide the regions with guidance on delegation of
enforcement responsibilities for New Source Performance
Standards and National emission Standards for Hazardous
Air Pollutants. An up-to-date composite set of guidelines
is necessary. They should address legal, technical
and program aspects. (6.12)
o Update its report on compliance schedule delays and
regularly inform the regions as to what is currently
considered a generally "expeditious" schedule. (4.30)
o Acquaint the regions with the full potential of CDS and
assist them in using it as a full enforcement management
system. (4.25)
o Provide additional guidance and direction to the regions
to assist them in explaining to the States the functions
of CDS, the contributions to the system expected of the
States, and the relationship of this system to NEDS. (4.26)
o Review the implication of the Clean Fuels Policy for the
enforcement program and, in conjunction with OAQPS and
0PM, inform the regions' Enforcement Divisions of their
conclusions and the action the regions' Enforcement Divisions
are expected to be taking. (4.54)
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o Provide the regions with guidance as to enforcement
policy for industrial/commercial boilers and 2) area
sources such as residential coal burners. (3.6)
o Schedule periodic meetings of working level regional
enforcement personnel. (6.11)
o Continue, at least on bi-monthly basis, DSSE's newsletter,
which summarizes policy decisions and distributes
regional findings. (6.2)
o Review the usefulness of its source inspection manual
based upon inputs from the Regions and then modify the
manual accordingly. (4.39)
o Monitor requests made by its staff for reporting beyond
the Program Planning requirements. This recommendation
also applies to OAQPS. On a quarterly basis, each program
should reassess its formal reporting requirements to
determine where they might be reduced. (14.29)
o Review with the regions the criteria for verifying compliance
so that the Guidance can be updated for FY 76. (3.4)
o Request an Amendment to § 305 of the Clean Air Act to
give EPA litigation authority. (4.49)
o Provide the regions with guidance on encouraging state
and local agencies to enforce against State and municipal
sources.(4.41)
o Provide the regions with guidance on style and format of
§ 113 orders.DSSE should limit its review to policy
questions, or waive concurrence entirely. (4.47)
o Specify in the Regional Guidance that "final compliance"
be determined by an acceptable manner within one year on
a continuous basis. (3.2)
o Reflect in the FY 76 Regional Guidance the need for more
than annual source inspections, by the States or localities,
for those sources requiring it in Priority I AQCRs. (4.34)
o Distribute a sample . checklist for S 113 notices to assure
full involvement of the States. (4.46)
o Drop HAPEMS as a separate data system and incorporate it
into CDS. (4.2)
The Review Group recommends that the Office of Air Quality
Planning and Standards should:
o Reiterate and explicitly inform the Regions that it is
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EPA policy to use grants to achieve Agency goals and
that Regions are expected not only to constrain their
grants but to withhold payment where recipients do not
meet grant conditions. (5.5)
o Evaluate alternative policies for handling the situation arising
from over use of forward funding, and provide the regions involved
with explicit guidance on how to deal with the situation. (5.7)
o Immediately propose a modified definition of a point
source in the Federal Register if the larger package of
revisions is not ready. (4.8)
o Update .40 CFR 51.7 so that Federal Register and Regional
Guidance reporting requirements coincide. (4.28)
o Ensure that regional Enforcement Divisions are kept
informed on enforcement-related issues dealt with in
OAQPS's Guideline Series. {6.3}'
0 Aggressively assume responsibility for developing NEDS
computer programs needed by all regional offices. (4.9)
o Review the need for individual hard copy source files
and recommend to the regional offices whether or not
they should be maintained for all sources. (4.10)
o Reconsider getting together with DSSE on a joint contract
with "Dodge Reports" in the interest of possible effic-
iency . (4.11)
The Review Group recommends that the Office of General Counsel
should:
o Develop with DSSE a legal memoranda case index on a
category-by-category basis. This index, with copies of
all listed memoranda and cases, should be circulated to
the regions. Thereafter, this index should be updated
every two months and recirculated to the regions with
copies of newly developed memoranda and court opinions.
(6.1)
o Present with OAWM'.s assistance all Regional Offices and
State and local programs with guidance on chain of
custody and standard business procedure. (4.53)
o Initiate a formal policy of notifying (through the regions)
the States and localities when a suit involving them has
been filed, even if the suit is only a challenge of an EPA
action.(6.15)
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o Review with OAWM, and recommend policy on the issue of
EPA involvement in court challenges to SIP's where it
is the State or local agency that is sued. The Review
Group would favor a policy of EPA assisting States and
localities in these cases wherever possible, resources
permitting. (.6.16)
o Delegate to the Regional Administrators authority to
sign credentials for all inspectors. (4.37)
The Review Group recommends that Headquarters Public Affairs
Office in conjunction with DSSE, should:
o Develop alternatives to provide positive feedbacks to
industries, where appropriate. (4.57)
The Review Group recommends that the Assistant Administrator
for Enforcement and General Counsel should:
o Use extreme caution in direct contacts with industry and
make every effort to invite, or at the minimum inform
the affected regions when any meetings take place. This
recommendation also applies to OAWM. (6.8)
t> Assure that development of an air capability by the Denver
National Field Investigation Center (NFIC) is a coor-
dinated part of a clear OEGC strategy elaborating the
NFIC's responsibilities and duties. (6.6)
o Request the Department of Justice to reconsider initiation
of simultaneous civil and criminal actions against a
selected source. (4.50)
The Review Group recommends that the Office of Federal Activi-
ties should:
©-(Determine with the Office of General Counsel if there is
legal means for compelling Federal facilities to comply
with emissions limits. If this issue remains a problem,
EPA should consider recommending appropriate amendments
to the Clean Air Act to strengthen the States' authority
in this area.(3.7)
o Finalize its program of action and jointly with OEGC,
provide policy guidance to the regional on enforcement
against Federal Facilities. (3.9)'
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The Review Group recommends that the Office of Planning and
Management should:
o attempt to provide, at least, 13 additional positions for
regional stationary source enforcement programs. They
should be allocated as specified in Table 13. (5.1)
o Evaluate in FY 76 through its Management Information and
Data Systems Division the data requirements of the
enforcement (CDS) and air programs (NEDS) and determine
if a single system will be feasible and cost effective.
(4.1)
o Provide guidance (through ORM) to the regions on how to
report source compliance at the end of FY 75 if there is
not enough time to werify compliance by an acceptable
method. (3.3)
o Make arrangements to involve the States along with the
regions in the MBO planning process. (6.14)
o Include Resources Management at an early stage in the
review of proposed standards, regulations, and SIP
promulgations so that. resource requirements can be con-
sidered both in development of the SIP and in implementa-
tion planning. (5.2)
o Develop (in ORM) a model for inter-regional resource
requirements, and apply it for FY 76 budget allocation
process. (5.3)
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