United States Off ice of February 1981
Environmental Protection Planning and Evaluation
Agency Washington DC 20460
vvEPA Profile of Nine State
and Local Air Pollution
Agencies
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26480
PROFILE OP NINE STATE AND LOCAL AIR POLLUTION AGENCIES
February 1981
Prepared bys Environmental Protection Agency
James S. Vickery Program Evaluation Division
Lori Cohen 401 M Street, S. W.
James Cummings Washington, D. C. 20460
202-755-0340
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CONTENTS
Page
LIST OF TABLES
LIST OF FIGURES
EXECUTIVE SUMMARY ES~
CHAPTER 1 INTRODUCTION . 1
PART Is STATE AND LOCAL AGENCY FINDINGS
INTRODUCTION TO PART I » 7
CHAPTER 2 OVERVIEW OF THE STATE AND LOCAL AIR
POLLUTION CONTROL ORGANIZATIONS 8
2.1 Federal and State Air Pollution Control
Responsibilities 8
2.2 Specific State and Local Air Pollution
Control Programs... 10
2.3 Comparison of the Nine State Organizations 16
2.3.1 Delineation of Activities 16
2.3. 2 Internal Organization 18
2.3.3 Recordkeeping Practices 19
CHAPTER 3 PERMIT SYSTEMS 22
3.1 Sources Requiring a Permit 24
3. 2 Initial Permitting 24
3.3 Permit Renewal 33
3.4 Variances 35
3.5 The Effectiveness of Permit Programs 37
3.6 Problems Associated with Operation of
the Permit Systems 38
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Page
CHAPTER 4 INSPECTIONS, SURVEILLANCE AND ENFORCEMENT 42
4.1 Agency Detection of Violations 45
4.1.1 Inspections 45
4.1.2 Surveillance 55
4.1.3 Stack Test 58
4.1.4 Complaints 69
4.2 Source Self Surveillance 73
4.2.1 Continuous Monitoring 74
4.2.2 Malfunction Reporting 81
4.2. 3 Fuel Sample Analysis 89
4.3 Enforcement 93
4.3.1 Notice of Violation 94
4.3.2 Sanctions 96
4.3.2.1 Administrative Remedies 96
4.3.2.2 Judicial Remedies 97
4.3.2 Description of Nine State Enforcement
Systems 98
PART II! CONCLUSIONS AND RECOMMENDATIONS OF THE O&M TASK FORCE
INTRODUCTION TO PART II 134
CHAPTER 5 CONCLUSIONS 136
5.1 Summary of Conclusions 136
5.2 Conclusions «... 137
CHAPTER 6 RECOMMENDATIONS 145
6.1 Summary of Proposed Continuous Compliance
Strategy 145
6.2 Proposed Continuous Compliance Strategy 146
6.3 Proposed Application of Strategy -
A Case Study
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LIST OF TABLES
Page
Table 1 -1 Agencies Reviewed and Contractors Who
Conducted the Analyses .4
Table 2-1 Interagency Organization for Implementation
of Air Pollution Control Programs in
Nine States 12
Table 2-2 Texas Department of Health Record Keeping Summary..21
Table 3-1 General Characteristics of Permit Systems 23
Table 3-2 Methodologies Used to Determine Compliance
with Permits 29
Table 3-3 Source Requirements Imposed by Agencies 31
Table 3-4 Agency Budget, Costs and Fees Associated
with Permit Systems 32
Table 4-1 Inspections « 47
Table 4-2 Stack Testing 60
Table 4-3 New Jersey's Stack Test Program (1976-1978) 65
Table 4-4 Source Tests Performed by the San Diego
APCD since 1968 67
Table 4-5 Complaints 70
Table 4-6 Continuous Monitoring Requirements 75
Table 4-7 Malfunction Reporting Requirements
(of Emissions Exceeding Standards) 84
Table 4-8 Fuel Sampling 90
Table 4-9 Agency Response to V iolations 100
Table 4-10 Sanctions: Administrative and Judicial 101
Table 4-11 New Jersey Summary of Which Violation
Detection Methods Initiate Which
Types of Violation Discoveries 108
Table 4-12 New Jersey Summary of Initial Actions
Taken and Final Actions Neccessary to
Correct Types of Violations 109
Table 4-13 New Jersey Enforcement Actions (1976-1978) 110
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Table 4-14 New Jersey Summary of Actions Taken By
The Attorney General and the Percent of
Cases Resolved by the Actions Ill
Table 4-15 North Carolina Enforcement Mechanisms:
Frequency of Use FY 1975-1978 115
Table 4-16 North Carolina Final Action on Cases
Referred to Enforcement 116
Table 4-17 Summary of Enforcement Actions in Iowa .....119
Table 4-18 Houston Enforcement Actions (1975-1977) 125
Table 4-19 San Diego APCD Field Activities, Enforcement
Actions and Legal Actions 133
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LIST OF FIGURES
Page
Figure A. The Permit Process 26
Figure B. Malfunction Reporting * 83
Figure C. Connecticut Fuel Sampling Program .91
Figure D. Connecticut Enforcement Procedures 103
Figure E. Oregon Enforcement Procedures 105
Figure F. New Jersey Enforcement Procedures 107
Figure G. North Carolina Civil Penalty Process 114
Figure H. Iowa Enforcement Procedures 118
Figure I. Chicago Enforcement Procedures 121
Figure J. Houston Enforcement Procedures 124
Figure K. New York - Region VIII - Enforcement Procedures 128
Figure L. San Diego Enforcement Procedures 130
Figure M. Recommended Steps to Continuous Compliance 147
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EXECUTIVE SUMMARY
Purpose
The primary thrust of the nation's air pollution control
programs has been to compel air polluting sources to install
control equipment, and thus attain initial compliance with
air quality regulations. In 1978, the EPA Administrator set
up the Operations and Maintenance Task Force to find a way to
ensure that regulated sources of air pollution continuously
comply with emission standards over time.
To identify the magnitude and causes of emissions in
excess of the standards and to examine State and local agency
practices that address continuous compliance problems, the
Council on Environmental Quality and EPA conducted two related
studies. Each study focused on 2 basic tasks which will be
described below.
The purpose of this report is to summarize and integrate
the findings of Task I of the CEQ/EPA studies. Task II findings
are available in a separate report. The Integration of the
Analyses of the Extent of the Excess Emissions Problems Associated
with the Operation and Maintenance of Air Pollution Control
Equipment (GCA Technology Division, Bedford, Massachusettes,
July 1980).
Task I examined 6 State and 3 local air pollution control
agencies to see how they currently address the continuous
compliance problem. The agencies studied were the:
o Connecticut Department of Environmental Protection
o New York Department of Environmental Conservation
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ES-2
o New Jersey Department of Environmental Protection
o North Carolina Department of Natural Resources
ancT Community Development
o Chicago Department of Environmental Control
o Iowa Department of Environmental Quality
o Houston Department of Health
o Oregon Department of Environmental Quality
o San Diego Air Pollution Control District
These agencies were selected for study because they were
regarded by EPA and State and Territorial Air Pollution Public
Administrators (STAPPA) as having the best source emissions
data and inventories, inspection and enforcement programs,
and documentation of agency activities and costs.
In Task II, emissions data was collected through the
examination of 180 sources within the jurisdiction of the
nine control agencies studied in Task I. The purpose of the
analysis was to characterize the extent, nature and causes of
excess emissions.
Major Findings
Task I findings indicate that:
o The nine agencies studied have the basic programs
needed to attain continuous compliance. However, these
programs currently emphasize initial compliance, and
need to be modified to ensure continuous compliance.
- All of the agencies studied impose general
limitations on source emissions; yet these
standards do not lend themselves to a ready
determination of continuous compliance.
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ES-3
- Most State and local agencies notify sources
of their emissions requirements through general
public notice; but relying on general notice
does not provide an adequate means of informing
sources of complex requirements, such as those
needed to attain continuous compliance.
- Some agencies use a permit as a means of notifying
sources of their requirements; but even so, the
agencies emphasize initial compliance — failing
to take advantage of the use of permits to impose
O&M requirements.
- All agencies provide for detection of violation
through the conduct of complaint investigations,
surveillance, inspection and, in some cases, by
requiring malfunction reports. Nevertheless, many
continuous compliance violations remain undetected
due to weaknesses in these detection strategies.
- All agencies have some means of proving violations,
i.e. establishing their occurrence and their magni-
tude; however, problems of accuracy, reliability,
and expense plague these techniques.
- All agencies have some system of progressive sanc-
tions to remedy violations, but these sanctions
are inappropriate and too cumbersome to be
effective in correcting continuous compliance
violations.
o The agencies studied address the continuous compliance
problem in a piecemeal fashion. To solve the problem,
each agency needs EPA support to implement a consolidated
continuous compliance strategy.
Recommendations;
o We recommend the establishment of a continuous compliance
strategy in which each State and local air pollution
control agency will:
I. Target a few sources of concern based on size,
location, industry and control system category,
malfunction reports and compliance history.
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ES-4
II. Establish continually measurable, source-specific
operating standards for these targeted sources.
III. Employ operating permit programs or enforcement
authorities to make these requirements enforceable.
IV. Inspect sources for compliance with these specific
operating standards.
V. Enforce against violators of the emission limits
and operating standards.
o To address the design based causes of excess emissions,
we recommend that the continuous compliance strategy be
supplemented by:
VI. Orienting new source design reviews towards continuous
compliance
VII. Developing minimal industry design standards in the
private sector.
These programs will force control equipment designers to consider
the long-term reliability and maintainability of their designs.
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Chapter 1. INTRODUCTION
LEPA's goal with regard to stationary sources of air pollution
. ^v
is to achieve compliance with applicable emissions limitations.y
Until recently, (the determination of whether or not any given
source is in compliance has been made primarily on the basis of
whether that source has pollution control equipment in place
that is believed to be capable of meeting the emissions standards.
"1 f.
These determinations are supplemented^! for some sources,[with
infrequent inspections of visual emissions an37 f°r even a more
C*~ ^1
limited number of sources, with infrequent stack tests.| It is
\——-
now generally acknowledged that due to several factors, plants
with pollution controls may still not be meeting emissions
requirements on a continuous basis. In 1978, the EPA Adminstrator
set up the Operations and Maintenace Task Force to research the
problem.
As a first step in the development of a solution to this
problem, EPA and CEQ conducted two related studies. The first
study, a joint effort by CEQ and EPA, looked at 2 State and
3 local agencies and 120 industrial sources. The second study
sponsored by EPA alone examined 4 additional agencies and an
additional 60 sources. In each case, the agencies and sources
selected for study were believed to be exemplary in achieving
compliance.
The common purpose of these two studies was to identify the
magnitude and cause of the continuous compliance problem and to
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examine current State and local agency practices and needs in
addressing the problem. To accomplish this dual-purpose, the
studies, which were structured similarly, were each divided into
two basic tasks.
Task 1 evaluated the current and proposed approaches of nine
government agencies that are responsible for the implementation,
maintenance and enforcement of air pollution control regulations.
Specifically, information was collected on:
o the process by which permits, orders, or other legally
enforceable pollution control measures are prepared;
o the self-monitoring and reporting requirements placed
on dischargers;
o the agency's monitoring, inspection, sampling and data
analysis procedures;
o the availability and imposition of sanctions against
non-complying sources;
o the public administration costs of stationary source
control programs; and
o proposed and potential systems and system elements which
might be employed to effectively counter the excess
emission problem.
The agencies were selected for Task 1 analysis on the basis
of inputs from EPA Regional staff, STAPPA officers, and the EPA
Offices for General Enforcement and Air Quality Planning and
Standards. In general, these agencies were recognized as having
good source emissions data and inventories, inspections and
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enforcement programs, and documentation of agency activities and
costs. Thus, nine of the most effective and well-run agencies
were selected for study. The agencies and the contractors con-
ducting the studies are indicated in Table 1-1.
In Task II, emissions data was collected through the
examination of 180 sources of air pollution (15-30 sources within
the jurisdiction of each of the nine control agencies studied in
Task I). The purpose of this data analysis was to characterize:
— the extent of the excess emission problem; i.e., the
number, duration and frequency of typical incidents of
excess, and the magnitude and nature of those excesses;
— the nature of the excess emissions problem; i.e., a
description of the types, sizes, ages and other features
of both the control systems and the control processes
primarily associated with incidents of excess;
— the causes of the excess emission problem; i.e., an
identification and categorization of those causes leading
to excesses according to whether or not they are prevent-
able.
The 180 sources for Task II analysis were chosen based upon
Agency recommendation and the following criteria:
o The source had achieved initial compliance, i.e., certified
by the agency as having attained compliance with emissions
standards.
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Table 1-1 — AGENCIES REVIEWED AND CONTRACTORS WHO CONDUCTED THE ANALYSIS
CBQ/EPA
STUDY
AGENCY STUDIED
New Jersey Department of Environmental
Protection
Houston Department of Health
North Carolina Department of Natural
Resources and Comnunity Development
San Diego Air Pollution Control
District
Chicago Department of» Environmental
Control
CONTRACTOR
Environmental law Institute (ELI) with The
Research Corporation (TRC)
Booz, Allen and Hamilton, Ire., with PEBCO
Pacific Environmental Setvioes
EPA
O&M
STUDY
New York Department of Environmental
Conservation
Iowa Department of Environmental
Quality
Connecticut Department of Environmental
Protection
Oregon Department of Environmental
Quality
GCA Technology Division
The Research Corporation (TRC)
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o The source's emissions history over a two to six year
period contained reliable information and was available
either in the agency files or on location at the source.
o The source emitted particulates, organic compounds, or
sulfur oxides.
o The source was included in one of 15 selected major
industrial categories.
o The source had to be willing to participate in the study.
The Task II study is the first major effort to quantify and
evaluate the results of air pollution control activities over
long periods of time. Although the selected sources were coop-
erative, complete documention on emissions data was frequently
unavailable, and the contractors had to rely on anecdotal
references to past problems. Nevertheless, the Task II data is
believed to be the best available assessment of the continuous
compliance problem.
Task II findings are available in a separate report.
Characterization of Air Pollution Control Equipment Operation
and Maintenance Problems (EPA, February 1981). Major findings
are that 71% of the sources studied experienced documented
incidents of excess emissions though they were reported as
complying with standards. Analysis of the documented incidents
indicates that on the average, sources experience 13 incidents
per year, lasting an average of 64 hours per incident —
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resulting in a cumulative annual excess of 25 percent of the
allowed emissions level. The major causes for these excesses
were determined to be: 1) improper operation and maintenance
(O&M) of control systems; and 2) inadequate design of control
systems.
This report is divided into two major parts. The first
part contains Task I findings. Programs and problems common to
the nine air pollution control agencies studied are discussed,
and documentation of specific agency programs is provided. The
second part of the report contains the conclusions and recommen-
dations of the Operations and Maintenance Task Force which are
based largely on Task I findings and Task Force members' working
knowledge of emission standard setting, measurement and enforce-
ment.
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PART I: State and Local Agency Findings
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INTRODUCTION TO PART I
Part I of this report represents a summary of the
contractor's findings of the nine state and local agencies
studied. The agencies studied were the:
o Connecticut Department of Environmental Protection
o New York Department of Environmental Conservation
o New Jersey Department of Environmental Protection
o North Carolina Department of Natural Resources
and Community Development
o Chicago Department of Environmental Control
o Iowa Department of Environmental Quality
o Houston Department of Health
o Oregon Department of Environmental Quality
o San Diego Air Pollution Control District
The summary provides a general description of the purpose
served by the agencies' permit, surveillance, inspection and
enforcement systems; the basic processes through which these
programs are implemented; and agency-specific descriptions
of the programs.
The organization, similarities, differences and, where
possible, the effectiveness of the agency programs is
discussed. Note that EPA has attempted to draw only general
comparisons of the agency programs. The best use of the
agency findings is as an indicator of particular successes,
and experiences of the regulatory agencies.
-7-
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Chapter 2. OVERVIEW OF THE STATE AND LOCAL AIR POLLUTION
CONTROL ORGANIZATIONS
The State and local air pollution control agencies are
responsible for the implementation and enforcement of air pollution
regulations. These agencies coordinate their activities with the
Federal Environmental Portection Agency and various State agencies
that also impact air pollution control, such as a State's Department
of Health. The purpose of this chapter is to provide a description
of how these agencies relate to one another. First, the Federal,
State and local responsibilities will be defined. A model State
agency will be described. Then specific State programs will be
briefly discussed and agency organizations will be compared to
one another.
2.1 Federal and State Air Pollution Control Responsibilities
The air pollution control programs of the nine State and local
agencies can be most easily understood when placed within the
framework of the Clean Air Act.
The Federal government, through the Environmental Protection
Agency, is to set national standards for: ambient air quality,
new source performance, prevention of significant deterioration,
and hazardous emissions for new sources. It is. each State's
responsibility to develop a State Implementation Plan (SIP) to
implement, maintain and enforce the Act's goals and subsequent
standards.
Each SIP is to include an emissions inventory, limitations
on emissions from stationary sources, a preconstruction review
procedure for new and modified sources, compliance schedules for
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new and existing sources, and pollution monitoring procedures.
To implement these and other SIP provisions, each State has a
hierarchy of organizations that must coordinate their air pollution
control activities.
It is difficult to compare individual State programs and
organizational arrangements, for each program developed
independently. Some of the programs grew in response to the
Clean Air Act, while others developed prior to the Act. As a
result, the State agencies do not operate according to a single
plan. Although the agencies are organized and operate differently
from one another, it is useful to describe a "model agency."
The model described here incorporates the basic functions found
among most agencies.
The model State air pollution control program has an Air
Pollution Board (or Commission) that serves in a rule making and
oversight capacity. The board promulgates rules and regulations
as required by the SIP, conducts rule making and enforcement
hearings and coordinates the activities of the operating line
agencies.
A line agency, or State Air Pollution Control agency, is
responsible for the implementation and initial enforcement of
the board's regulations. This agency may be under the auspices
of a State Department of Environmental Protection, Department of
Health or Department of Natural Resources. These air pollution
agencies must have provision for:
o engineering and technical services to monitor the ambient
air quality, establish source emission inventories, develop
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meteorological data to model regional air quality and
to define suggested standards and strategies;
o a permit or equivalent system for stationary sources;
o a surveillance system to detect non-complying
facilities through field inspections and stack tests; and
o an enforcement system to provide legal support to the
entire air pollution control program.
These activities may be conducted at the central office of
the State agency, but are more often provided at a regional
or local level as a supplement to central office activities.
Regional and local offices provide the advantage of proximity
to sources. This can be an aid to surveillance activities
and enforcement negotiations. The regional or local offices
handle most of the source-related work, such as inspections and
stack testing. Ideally, assistance from State headquarters is
necessary only in handling recalcitrants, technically complex
cases, or special exemptions.
2.2 Specific State and Local Air Pollution Control Programs
To demonstrate how air pollution control programs vary from
this model program, this section focuses on the actual
organization of air pollution control programs in nine States.
As mentioned in the introduction, the information reported here
was extracted from two different studies. The first five States
that are described below were part of the CEQ contract and have
more detailed information regarding organization of State programs
than the remaining four O&M study States.1 This information should
^-Note that the agencies studied under the CEQ/EPA contracts
are underlined.
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therefore be used to provide an indication of how the various
State air pollution control programs operate, their major
similarities and differences. Table 2-1 provides a summary of
the state agencies that participate in the air pollution control
programs for the areas studied.
In this discussion it is important to recognize the interplay
and potential overlap between the types of agencies described.
In addition, coordination with other agencies, such as local
health departments, the office of the attorney general and local
citizen groups, is also necessary for the operation of a smooth
air pollution control program of the nine States studied.
California. In 1947, the State was divided into air
pollution control districts (APCDs). Each of the districts is
now functioning as a separate department under the California
Health Care Agency. While each district has primary responsibility
for stationary source control, the Calfornia Air Resources Board
has the responsibility of carrying out Federal programs,
the development of standards, general research and district
oversight. Our contractor studied the San Diego APCD and found
•
that a separate Air Pollution Hearing Board processes all variances,
appeals and abatement orders in coordination with a Citizen
Advisory Board. Legal actions are coordinated between the San
Diego City Attorney's Office and the San Diego County District
Attorney's office.
Illinois. There are three executive level agencies affecting
air pollution control. The Illinois Pollution Control Board
promulgates regulations and standards, and conducts all public
hearings. The Illinois Environmental Protection Agency plans,
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Table 2-ls INTERAGENCY ORGANIZATION FOR IMPLEMENTATION OF AIR POLLUTION CONTROL PROGRAMS IN NINE STATES
Program State California Connecticut.
Coordinators
Illinois 3bwa Ifew Jersey New York tforth Carolina Oregon Texas
Board/Comnission
w/state Over-
sight Role
Air
Resources
Baard
Obmmisoner
of Dept. of
Environ.
Protection
Pollution
Control
Board
Air dean
Quality Air
Gbnmiss. Council
State Air Quality & Environ. Texas Air
Environ. Environ. Mgmt. Quality Control
Board Cbmnission Cbnmiss. Board
(TACB)
State Line
Agency
CA Health Office of Illinois Dept. of Cept of
Care Air EPA Environ Environ.
Agency Compliance Quality Protec.
State Dept of Itot. Dept of TACB Op-
Dspt of Resources & Environ erating
Conserv. Connu. Dvlpt. Quality Divisions
Regional
Offices
local
Agencie
tfone
5 Reg.
Offices
6 Reg.
offices
4 Reg.
Air Poll
Control
Agency
(RAPCA)
9 Reg.
offices
7 Regional
offices
5 Reg.
Opera.
Adminis-
trations
12 Reg.
offices
Local agencies
County
Air
Pollution
Control
Districts
e.g.f San
Deigo APCD
City
Health
Departments
City/County County
Agencies, Health
e.g.,Chicago Dept.
Dept. of
Environ.
Control
None County County Health lane
Depart. Departments (County)
of Health, Regional
Interstate Air
Sanitation Pollution
Conmission Authority
City/
County
Health
Dept.
e.g.,
Houston
Dept. of
Health
Other Related
State agencies*
Air Poll.
Hearing
Board;
Citizen's
Advisory
Comnittee
NR
Chicago
Bldg. Insp.,
Advisory
Environ.
Control
Cdiiu.
Appeals Bd.
State
Dept of
Health
RAPCA
Liaison
w/local
Health
Dspts.
State Dept. NR
of Transporta-
tion and
Oonmerce
NR - Mat Reported
*Each air pollution control program relys on the State, County, or District Attorneys Office for legal support
Source: Nine State Agency Reports Prepared Under CEO/EPA Contract. Listed in Table 1-1.
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implements and enforces the Board's standards. A third agency,
the Illinois Institute for Environmental Quality, is responsible
for research and technological investigations.
The CEQ/EPA study focused its attention on the air pollution
control programs in the city of Chicago. The Chicago Department
of Environmental Control (CDEC) has been authorized to
carry out many of the lEPA's functions within the city limits
such as: permitting, surveillance, support engineering and enforce-
ment for faciliti-es with actual emissions of 100 tons or less.
Enforcement decisions are made by either the CDEC commissioner
or an Appeals Board, or the City Court.
New Jersey. The Department of Environmental Protection,
through its Bureau of Air Pollution Control, has the responsibility
for the development of standards, permit issuance, inspections,
surveillance, technical services (e.g., stack tests), enforcement
and special projects including toxics control/ control of hazardous
pollutants and emergency planning.
The Bureau has an interagency agreement with each of four
Regional Air Pollution Control Agencies (RAPCAs): Elizabeth,
Hudson Regional, Suburban and Central Jersey. Each RAPCA
coordinates its activities with the local health departments to
carry out local air pollution control ordinances. In addition,
the Central Jersey RAPCA operates under a Health Advisory Board
of Commissioners.
North Carolina* Rulemaking and appeals are the responsibility
of the Environmental Management Commission. This Commission
is advised by a smaller Air Quality Council. Another agency, the
Department of Natural Resources and Community Development (DNRCD),
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implements the Commission's policies. Within the DNRCD, the
Division of Environmental Management (DEM) administers the air
quality program and conducts related research. There are seven
regional offices responsible for monitoring, permitting, conducting
inspections, and investigating complaints. Enforcement actions are
initiated at the regional level and then approved by the DEM.
Texas. The Texas Air Control Board (TACB) has an independent
Board that oversees the State air pollution control program.
The divisions of the TACB are responsible for development
of regulations, SIP preparation, permit issuance, air quality
sampling, and handling appeals, enforcement and liaison with the
State Attorney's Office. In the city of Houston, the Air Pollution
Section of the city's Department of Health has been delegated
the following program elements in the city limits: permit review,
permit issuance for incinerators, annual inspections, 24-hour
surveillance, complaint response and enforcement.
Connecticut. The State of Connecticut has a much less
complex air pollution control organization. All functional
responsibilities lie within the Department of Environmental
Protection, primarily in the Office of Air Compliance. There are
no regional offices; the Office handles all planning, engineering,
monitoring and enforcement activities. Enforcement actions are
handled by the Enforcement Control Center with a few cases being
referred to the State Attorney General's Office for a court
injunction or penalty.
Iowa. The Iowa Department of Environmental Quality is
responsible for SIP and regulation development, enforcement,
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design review and permitting, continuous monitoring, and stack
testing. Six regional offices are responsible for the mal-
function reporting program and surveillance activities. The
Regional offices are assisted by the State Department of Health.
New York. The New Jfork State Department of Environmental
Conservation administers air pollution control policies through
the Division of Air Resources. The Division has seven bureaus—
Electronics, Mr Quality Surveillance, Source Control, Technical
Services, Abatement Planning, Technology Development and Program
Engineering—which provide assistance to nine regional offices.
This study examined programs in Regions VIII and IX.
The regions have permitting, surveillance, stack testing, fuel
sampling and enforcement responsibilities. Initial enforcement
actions are handled within the Regional offices. Litigation is
handled by the State Attorney General's office.
Oregon. The Department of Environmental Quality has
two major divisions that share the air pollution control re-
sponsibilities. The Air Quality Administration is responsible
for planning and development, data aquisition, and operations
management. The latter includes review of engineering designs,
permit issuance and technical assistance at the request of the
Regional Operations Administration (ROA). The ROA has five
regional offices, each responsible for multimedia inspections,
surveillance, drafting of permits and issuance of Notices of
Violations. Further enforcement actions are undertaken by the
headquarters office of the ROA.
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2.3 Comparison of the Nine State Organizations
2.3.1 Delineation of Activities
In four States—California, Illinois, North Carolina and
Texas—there are boards (councils or commissions) which oversee
the operations of the State agencies. Air pollution control regu-
lations and standards are developed by these oversight boards,
and then implemented and enforced by line agencies. In the other
five States, the regulations are developed, implemented and en-
forced under the jursidiction of the same State agency.
Although at a first glance, the delineation of activities
among the various agencies seems straightforward, overlaps and
confusion do exist. Even though the CEQ/EPA reports do not focus
on the management and organizational relationships between the
executive boards and State agencies, one problem in North Caro-
lina is well-documented and indicative of the fact that such
problems are significant. In North Carolina, the Environmental
Management Commission must approve certain enforcement actions
initiated by the Department of Environmental Management. This
often causes delays in administering important actions, such as
the issuance of consent orders.
The nine studies did focus on the State and local agencies
and the operation of their complimentary air pollution control
programs. At this level of government, it is interesting to
compare the intra-agency relationship between the central and
regional offices. For the most part, day-to-day regional opera-
tions are independent of the associated control office, although
they function under a single body of regulations.
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In Oregon* for instance, even though the Central Office of
the Air Quality Administration enters into separate agreements
with each of the regions, each of the agreements is different.
The contractor reports that this fact combined with communica-
tions problems between the central office and regions make the
agreements less effective than they could be. In both Oregon and
Iowa, inspections and surveillance are principal functions of
the regional offices.
In contrast, the regional offices of the New Jersey, New York
and North Carolina agencies are responsible for operating the
entire air pollution control program in their assigned jurisdic-
tion. It is interesting to compare the operation of these latter
three agencies. The four RAPCAs of New Jersey work closely with
the central office, while New York's and North Carolina's regional
offices function relatively independent of the central state
agency office. In North Carolina, the contractor reports that
although the comprehensive regional operation provides for agency
and source rapport, it also creates inconsistencies among regions.
The two city agencies, Houston and Chicago, and the county
agency of San Diego display similar characteristics of autonomy.
California intended for its Air Pollution Control Districts to
have full responsibility for stationary source control. The
Chicago and Houston agencies function according to interagency
-------
- 18 -
agreements with the state agencies, but actual coordination
between the city and state is minimal and causes inefficiencea
in the programs. In Houston, for instance, engineering design
reviews are conducted by both the Texas Air Control Board (State)
and the Houston Department of Health (City) for the same
installation. Overlap also occurs in Chicago, where the Chicago
Department of Environmental Control and the Illinois Environmental
Protection Agency have divided jurisdiction so that the CDEC
focus on minor sources within the city limits, and IEPA focus on
major sources. However, the CDEC also inspects and initiates
enforcement against any major source within the city where com-
plaints or surveillance turn up suspected violations. As a
result, duplication of enforcement activities has occurred in
some instances when IEPA was not aware of CDEC actions.
2.3.2 Internal Organization
State and local agencies organize themselves in one of two
schemes. The first is a functional organizational scheme in
which agency functions for numerous environmental protection
programs are grouped. This occurs in an agency that has for
example, a permit review division that considers air, water and
land pollutants prior to permit approval. The major problem that
arises with this type of system is finding personnel qualified
in all aspects of environmental pollution control. A more fre-
quently adopted organizational scheme is one that is media-based,
where air and water pollution control programs are administered
separately. Here, the industries face conflicts (and possible
delays) in having to deal with more than one division within an
agency.
-------
-19-
The Chicago and North Carolina agencies are the only two,
of the nine agencies studied, that are functionally-based.
North Carolina was just recently (1978) restructured as such.
The remaining seven agencies are organized according to media.
The Oregon staff indicated a slight diversion from the media-
based orientation with their integrated inspections. In Oregon
the field inspections are conducted for air, water and solid
waste at the same time by the same inspector. The reports do
not supply enough information to conclude which type of agency
structure is most effective.
The San Diego report stated that one particular problem
within the agency is the frequency of agency reorganization.
Three reorganizations have occurred in the last decade, making
it difficult to track agency activities and effectiveness.
2.3.3 Recordkeeping Practices
The efficiency of intra-agency operations are affected by
recordkeeping practices. The Houston Department of Health (DOH),
the agency responsible for stationary source air pollution control
in Houston/ has the only recordkeeping system reported to be
"up-to-date, complete and effective". The DOH Computerized Source
Investigation System provides information for each of the three
major air program elements: surveillance, enforcement and per-
mits. Table 2-2 displays the records that are kept for each pro-
gram element, the purpose of the records and the type of infor-
mation contained in the records.
Of the six agencies for which we have information on record-
keeping, none are reported to be efficient. The five agencies
which computerize their permits data are the New York, Connecticut,
-------
-20-
Oregon, San Diego and Houston agencies. A problem that seems
common to these systems is that the data is not used by, or
integrated with, data from other groups (e.g., enforcement)
within the agency. The North Carolina agency records enforcement,
permit, surveillance and monitoring activities, and also has a
county specific source file. Even so, the contractor reports
that the records are highly decentralized, inconsistent, incom-
plete and poorly organized.
-------
TEXAS DEPARTMENT
-21-
Table 2.2
HEALTH RECORD KEEPING SUMMARY
Procrair.
Permits
Surveillance
£.-. f or cement
Secorss Purpose ' Type of Information
Porr.it s Log
incinerator
Construction
Plan Log
Incinerator
Card File
SIS System
Complaint Loo
Upset Log
Inspection Log
SIS System
Lecal Case
Referral
Loc
Active Comuanv
File
SIS System
Tracks cor.sir-jcticn
and operating permits
Tracks incinerator
- pernits
Tracks incinerator
permit issuance and
renewal
Tracks operating and
construction permits
Tracks resolution
of citizen complaints
Tracks source upset
conditions
Tracks SIP inspection
schedule
Tracks investigations,
sampling, complaints,
and uosets
Traces case enforce-
ment- process
Provides list of
files in master
company file
Tracks compliance
status of all sources
Flint tvpe
Date permit issued
. VS1"- applicability
Location
Burn rate
v.'aste
Manufacturer
Date of permit issuance'
and renewal
Inspection date
compliance status
Sampling data
Source of complaint
Type of 'complaint
Time and date of complaint
What action taken
Nature and level of emissicns
Control device affected
Date and time of notification
. • Expected duration .
Company
Date of inspection
Engineer and supervisor assigned
to inspection •
Inspection date
Sampling date
Complaint status
Upset violations
Date of DCH case reviev
Date of referral tc city
legal cepartmcnt
Date of referral to county
District Attorney
Disposition of case
Complaints
Surveillance reports
Legal actions
Stack testing
Notices of violation
Date of investiaation
Date of notice cf violation
Compliance status
Date of next action
Source: "Preliminary Evaluation of the City of HOuston (Texas)
Department of Health's Programs to Regulate Air Pollution
from Stationary Sources", Booz-Allen, Inc. and PEDCo,
June 1979.
-------
-22-
Chapter 3. PERMIT SYSTEMS
The permit systems of the air pollution control agencies
studied are a basic step in air pollution control. The permits
systems are designed to: 1) identify and catalog sources, 2)
detemine if proposed control equipment will meet emissions
standards, 3) provide a legally enforceable document that requires
the source to install the neccessary contol equipment and, 4)
establish a means .for periodic agency review of the source through
permit renewal requirements.
The success of the permit systems has been, so far, in the
success of the first three of these objectives which consititute
initial compliance. However, permit systems have not been
optimally employed to ensure continuous compliance. Only a few
agencies have begun to add or to change operating conditions
(for control or process equipment) at the time of permit renewal.
Connecticut is the only agency studied that has begun adjusting
permit renewal periods to compliance history. Permit systems
can thus be modified to increase compliance among permitted
sources.
Each of the State and local agencies studied has a permit
system of some type for air pollution sources. This section
compares State programs for permits to operate, permits to
construct, permit renewals and variances. Table 3-1 outlines
the principal features of the nine permit programs studied. A
discussion of the effectiveness and problems related to the
permit systems studied follows a procedural comparison of these
systems.
-------
-23-
Table 3-1. GENERAL CHARRCTERISTICS OF TOE NINE PERMIT SYSTEMS
CHARACTERISTICS
Type of Permit Required:
Permit to Construct
(PTC)
Certificate to Operate
(CTO)
Sources Requiring Permit (s)
Existing
New & Modified
Sources Requiring Permit (s)
Minor
Major I/
Number of Major
Facilities £/
Chicago,
Illinois
Yes
Yes
Yes
Yes
406
3000-
Total Permits in Issuance 4000
Permits Issued Per Year
Renewal Period (Years)
2400 PTCs
4000 CTOs
(75% are
fuel-
burning
permits)
5
Hauston New New York North San Diego,
Connecticut Texas Iowa Jersey (Reg. XIII) Carolina Oregon Calif.
Yes Yes Yes Yes Yes Yes I/ Yes I/ yes
Yes Yes No Yes Yes Yes I/ Yes 3/ Yes
ND No No No Yes Yes Yes Yes
»TT OVCTHMR «..«™ m ———————— ...-——
Yes Yes Yes No Yes Yes Yes No
ALL
255 249 390 3411 1316 I/ 1033 331 121
41387
800 — 2770 PTCs 7000 2900 2000 30%
6000 25O PTCs 46 new 896 PTCs
150 129 PTCs 250 CTOs 726 125 reissued 818 CTOs
40 modified
2-5 1 Indefinite 5 1-3 3-5 1-10 1
I/ As defined by the particular State or local agency.
2/ CDS figures.
3_/ Combined construction and operation permit issued.
I/ Statewide.
-------
-24-
3.1 Sources Requiring a Permit
The definition of which sources are required to have a
permit varies among the State and local agencies. Most agencies
categorize "sources" as existing sources (those operating when
the permit system began), modifications of existing sources, and
new sources. The nine systems studied all require permits for new
sources and modified sources. However, only Chicago, North Caro-
lina, San Diego, and Oregon require permits for existing sources.
Source designation as "major", "minor" or "insignificant"
is another characteristic that agencies use to distinguish between
those sources requiring a permit and those that remain unpermitted
Again, this designation varies among the agencies; although a
"major" source is usually defined as a source capable of emitting
>100 tons of pollutants per year, "insignificant" are usually
domestic sources, and "minor" are those sources in between.
Oregon supplements this general definition by specifying minor
sources as those emitting between 25 tons and 100 tons of pollu-
tants per year and "minimal" sources such as space heating oil
boilers. In addition, Oregon issues special letter permits to
30 sources whose emissions are estimated to be near zero. All
of the nine agencies permit "major" sources. Permits for "minor"
sources are required in Connecticut, Oregon, North Carolina,
Chicago and Houston.
3.2 Initial Permitting
For new sources, the first permit a source receives is a
Permit to Construct (PTC). Following completion of construction,
the source must obtain a certificate (or permit) to operate (CTO).
-------
-25-
A flow chart of the typical permitting process followed by each
of the States studied is presented in Figure 3-A.
In Iowa, the PTC is the only permit a source receives. Lf
Oregon and North Carolina also issue single-permits/ however
they are designed as combined permits, permits to construct and
operate. In contrast, the other systems—Chicago, Houston, San
Diego, Connecticut, New Jersey, and New York—issue separate per-
mits, Permits to Construction and Permits to Operate. In these
six systems, the agency typically issues a PTC for one year.
The issuance of a PTC follows an engineering, or design
review. These reviews are office evaluations of the proposed
sources by a staff engineer who researches and calculates the
emission potential of the control equipment. The engineers
determine the conceptual soundness of the control approach, with
a focus on the source's capability of attaining compliance on
start-up, as opposed to sustained compliance throughout its use-
ful life. Design reviewers usually do not consider continuous
compliance. Typically, they do not, for instance consider mate-
rials of construction, replacement of parts, and monitoring of
emissions and operating parameters. There are, however, two
references to more comprehensive design reviews. Major sources
in Iowa are "given thorough review" and permits are negotiated
on a one-to-one basis in Oregon. Oregon also reported that the
"more complex the source, the less time is given for thorough
[design] review," since there are few qualified personnel to
£/ As part of the SIP review process, Iowa is reviewing the
potential of an operating permit program.
-------
Figure 3 -A.
-26-
The Permit Process
1 Source Application
(for PTC and/ or CTO
1
I Application may be
(returned to source
(for additional data
(73% in Tbwa ~
(90% in Connecticut
]
|Pe
l&
Iwi
rmit Review l
Negotiation j
th Source
1
IPe
1
rmit Approval
I
»
[Combined ; NC
1 PTC/CTO ' Oregon
(issued !
t
j* Permit Denial] ^JSource Appeals ( ^Permit Denied t
I H Denial _ 1 Hi i of PTCa Tn~l
il Iowa |
r (Variance Granted |
1 |
^
1 IPTC CT, Chicago, |
issued NJ , NY, IA, |
1 Houston , j
San Diego 1
{
Construction Phase I
1 Inspection of site In I
1 Houston, NJ , Chicago |
|
1 Construction Complete I
1 , 1
i,
4
[NY Regional j (Inspections, NJ , San Diego 1
Office notified | (selected stack ' CT, Chicago |
1 1 (tests-conducted ! 1
*
f
(issue Temporary I
— **t Permit I
-, 1
1 CTO App\ication IJ Permit Denial IJ Source Appeal's IJ Permit de'nied |
1 Review H H Denial f*U« «,* «*„,...!
1 Inspections, 1 I
1 selected 1 I CT
1 stack tests j j Iss
1 conducted I 1
j
1
(
1 .,,
U [^ IVarlann»|
uea (Granted I
1
1 Enter renewal phases: I
All sources inspected I
Few permit revocations I
-------
-27-
conduct the many detailed reviews in the fixed time allowed.
The New Jersey report describes three reasons for shortened
design reviews. The New Jersey experience is indicative of
situations faced by the other agencies. First, the agency lacks
the resources to review all applications in detail without making
applicants wait months for the agency decision. Second, the
evaluators have learned from experience what types of controls
are adequate for various source types. And third, the burden of
failure of proposed equipment to meet agency standards is on the
source; that is, if a permit applicant maintains that the design
of the equipment described in the application will satisfy relevant
standards and the evaluator finds no blatant errors, the agency
will give the source opportunity to construct the equipment and
prove it is adequate.
In the review of permit applications, informal negotiations
with the source are common, however, not all of the reports
commented on this aspect of permit review. New Jersey did report
that 33 percent of the PTC applicants are telephoned for additional
information regarding their permit applications and many applicants
request informal conferences for negotiation. Iowa, Connecticut,
and North Carolina report, respectively, a 73 percent, 90 percent,
and 80-90 percent return of permit applications to the source for
additional information.
Aside from design review, agencies use two other ways of
determining source compliance with emission standards as part of
the permit systems:
-------
-28-
o Three systems inspect the construction site.
o Six systems require inspections and/or stack tests for
CTO compliance, after construction is complete.
In Houston, Texas, the City Department of Health (DOH) and
the Texas Air Control Board (TACB) conduct a joint inspection of
each site prior to construction to assure that the facility will
not create a nuisance (there are no zoning laws in the city). The
New Jersey Bureau of Air Pollution Control inspects construction
sites of all sources affected by NSPS and NESHAPS. The Chicago
Department of Environmental Control (CDEC) is the third system
that inspects the construction site. The CDEC inspects during
the construction phase to ensure that all equipment contained in
the source's installation permit (equivalent to a PTC) is actually
installed.
Since the remaining six agencies often issue the PTCs, on the
basis of modelling and/or expected emissions from particular types
of equipment, the agencies require inspections and stack tests for
CTO approval or, in the some of the States, immediately after
start-up. Tables 4-1 (p.47) and 4-2 (p.60) include agency-
specific requirements regarding inspections and stack tests.
Nearly all of the permitted sources are inspected for CTO
approval, whereas only 3 agencies stack test all new majors
and 3 agencies stack test <10% of the permitted sources.
After the stack tests, inspections and public notice, the
agency makes a final decision on issuing a CTO to the source.
Table 3-2 summarizes the methodologies agencies use to determine
compliance with CTO requirements.
-------
-29-
Table 3-2. Methodologies Used to Determine Compliance with CTO Requirements
Chicago,
Illinois Connecticut
All All
Inspections sources1 sources
during
construc-
tion
Often 6% of CTO
Stack Tests required applicants
in CTO
Houston,
Texas Iowa2 New Jersey
All 75% of CTO
sources applicants
All new New major 5% of
sources sources sources
required
to stack
test after
start-up
NDrth
New York Carolina
(Regions
VIII, DC)
All All
sources sources
Cannon for 7.5% of
large new
sources sources
San Diego,
Oregon California
All All
sources sources
All new All new in-
sources cinerators .
Most new
metalurgi-
cal melting,
sweating
equipment
and aggre-
gate dryers
1"Sources" refers to permitted sources for the purpose of this table.
2tfc> CTO is issued in Iowa., requirements listed are part of PTC.
-------
-30-
Regardless of whether the source receives a PTC, or both a
PTC and CTO, the permit may contain source-specific requirements.
Table 3-3 identifies these by program. Note that many State/
city agencies have the authority to place such'requirements,
or conditions, on a source, but in fact they rarely use the
authority. Connecticut, Oregon and San Diego have begun to
place operating conditions into permits. For instance,
Connecticut is specifying the following operating parameters
in their permit renewals: % sulfur, stack heights, scrubber
flow rates, baghouse pressure drops, incineration temperatures,
fuel rates and continuous monitoring. To date, nearly 1/2
of Connecticut's permits have such conditions.
Five of the nine programs studied have permit processing
and approval fees. There is either a nominal charge; or in a
few systems, there is a base fee plus a variable fee. The fees
range from $25/source to $5000/source. This wide range of fees
reflects the fact that two agencies set the fee according to
source size, one agency sets the fee to cover the full agency
cost of the permit review, and one agency combines the two
variables in fee determination. Table 3-4 has specific,
comparative data on permit fees.
There are two final characteristics of initial permitting
that deserve recognition, and imply a questionable degree of
permit effectiveness. The nine permit systems studied have an
average of 1 percent permit denial. North Carolina denied 13
permits between 1974 and 1978, while it issued 2900 permits.
Similarly, Connecticut denies an average of 1 permit/year while
-------
-31-
Table 3-3. Source Requirements as Imposed by the Agencies
Continuous
Monitoring
Record-
keeping
Malfunction
Reporting
Operating
Parameters
Precautionary
Measures (e.g.
spare parts
inventory
O&M Reporting
Chicago,
Illinois
Authority
rarely
used
Authority
rarely
used
Imposed
thru
permit
—
—
—
Connecticut
Imposed
thru
reg.
Authority
rarely
used
Exposed
thru
reg.
Imposed
thru
permit
Ftouston,
Texas
Imposed
thru
reg.
Imposed
thru
reg.
—
—
Imposed
thru
reg.
Iowa
Authority
rarely
used
Authority
rarely
used
Imposed
thru
reg.
—
—
—
New
Jersey
Imposed
thru
reg. &
permits
Mb
reqt.
Not
req'd.
New York
(Reg. XIII)
Authority
rarely
used
Imposed
thru
reg.
Authority
rarely
used
Authority
rarely
used
Proposed
North
Carolina
Imposed
thru
permit
Imposed
thru
permit
Oregon
Imposed
thru reg.
& permits
Imposed
thru
permit
Imposed
thru
permit
Imposed
thru
permit
Imposed
thru
permit
Imposed
thru
permit
San Diego
California
Imposed
thru
reg.
Imposed
thru
reg.
Imposed
thru
permit
KEY:
Authority rarely used: Agency has authority to require activity in individual permits, but rarely uses this authority.
Imposed thru regulation (reg.): For specific industries.
Imposed thru permit: In selected cases.
: Not reported in 9 studies.
Proposed: Proposed plan in Agency.
Not req'd: Not required by Agency.
-------
-32-
Table 3-4. AGENCY BUDGET, POSTS & FEES ASSOCIATED WITH THE NINE PERMIT SYSTEMS
Chicago, Houston, New New York North San Diego
Illinois Connecticut Texas towa Jersey (Reg. VIII) Carolina Oregon California
% Agency Budget
12%
6%
14%
15%
10%
14%
19%
Agency Cost/Source/Year —
$360-480 $837 $390 $60
$90
$142
$125
Permit Fees
PTC $25/item
CTO $5-50
None 2/ None i/ None $40-450 I/ $100!/ None $50-5050 $15- 578
Determining Charac-
teristic of Fees
Source Size
Stack Di-
aroeter + Standard
Processing
Costs
Agency Source
Costs Size
Renewal Fee
Variable
$20
$10
Variable Variable
I/ TACB.
2/ Presently developing fee system.
3/ $10.00 fee for painting of storage tanks.
4/ Certain major sources only.
-------
-33-
issuing 150/year, and Iowa reports a 1 percent denial rate.
San Diego, denied 42 CTO's while issuing 675 during FY 77/78.
Finally, most systems grant permit(s) by default if and when
the administering agency does not respond to source applications
within a short designated time period, typically 30 to 90 days.
3.3 Permit Renewal
Although, as stated previously, the nine air quality control
systems have no "O&M strategy" per se, the permit renewal process
inherently provides for continuous compliance objectives. The
renewable permit could serve as a means of imposing specific and
adjustable conditions which must be met for compliance throughout
the useful life of the source. The degree to which renewals are
actually used in this manner depends on the following character-
istics of each system:
o renewal frequency time interval
o source notification of renewal requirement
o detail of review prior to reissuance
o inspection requirements prior to reissuance
o conditions (types and specificity)
The time interval between initial permitting, the first
renewal and subsequent renewals varies from 1-10 years; see Table
3-1 (p.23) for agency-specific renewal periods. The signifi-
cance of the renewal interval is indicated in the Connecticut
report which explains that the original 5 year renewal period
was recognized as being too long to ensure proper O&M of
some types of sources. Consequently, Connecticut currently
issues permits on a 2-3 year basis, depending on the source's
(and similar sources') history.
-------
-34-
It is important to have periodic permit renewal so that
agencies have an opportunity to review and, if necessary add
requirements to source CTO's. Permit renewal requirements
are typically stated in the initial permit. The New Jersey,
Texas and San Diego agencies have active source notification
programs prior tp required renewal dates; and the Connecticut
agency notifies sources after their permit has expired. The
Connecticut report gave the only indication that sources not
applying for renewals may present problems to the agencies;
Connecticut is developing a fee system in which there will
be a penalty for sources failing to renew. Other reports
implied that renewal applications are not a problem. In
New Jersey, for instance, sources fail to file for renewal
only in "very rare occurrences."
Upon application for permit renewal, and before any permit
is reissued, sources in five States must pay renewal fees; and
administering agencies must conduct permit reviews and inspect
the sources. In North Carolina, for example, the source is
inspected, and then evaluated by the permits chief, technical
services chief and air quality section chief. Even so,
89 percent of renewal requests in North Carolina are
granted without stipulations for operations or maintenance.
-------
-35-
Note that while inspections for initial permits are not
always mandatory, inspections for permit renewals are mandatory
in these nine permit systems.
Renewal application, permit review and inspection usually
lead to granting of a renewal permit. Denials are rare as dis-
cussed above. In addition, once they issue operating permits,
control agencies revoke very few of them. However, Chicago,
North Carolina, Oregon and New York claim that although no revo-
cations have yet bccured, potential revocation is a real threat
to the sources and a powerful enforcement tool.
It is also significant to recognize that although control
agencies can alter permit requirements at the time of renewal,
the permits generally remain the same unless process or regulations
have changed. The only three agencies which have, as a practice,
begun to add operating conditions during the permit renewal process
are Oregon, Connecticut, and San Diego.
Hence, most agencies have an administrative procedure
suited for O&M review. But, in general, the procedure does
not appear to be used by most agencies to actually affect
O&M, since few agencies impose O&M specifications in their
permits.
3.4 Variances
The series of events in the initial permitting processes and
the renewal systems previously described are representative of those
instances in which a source accepts the permit and permit conditions
Obviously, there are instances in which the source disagrees with
the permit conditions and seeks relief from them through variance,
exemption or appeal.
-------
-36-
Some air pollution control agencies have the authority to grant
variances (or waivers) which, in effect, authorize non-compliance
situations. In Illinois, sources may petition the Air Pollution
Control Board for a variance. If the source proves that it will face
unreasonable hardships in meeting regulatory requirements, the vari-
ance will be granted. Twenty-five to 30 variances are granted
annually by the Illinois Environmental Protection Agency. In Region
VIII of New York State, 50 variances have been issued out of 7000
operating permits. Texas DOH grants exemptions, in effect
the same as variances, on a case-by-case basis. In the year
June 1977-June 1978, 12 exemptions of this type were granted
out of the 37 operating permits processed. Texas also exempts
93 source categories which are considered to be "insignificant"
(e.g., incinerators emitting less than 100 Ibs/hr of pollutants).
Sources can also appeal to the agencies if their permits are
denied or revoked. The Chicago Agency allows a period of
grace after CTO denial. In this time period, the source
must install the necessary control equipment and is not subject to
enforcement penalties unless the equipment is not installed or
modified according to schedule.
Rather than deny a permit, two agencies (New Jersey and
North Carolina) provide temporary CTOs. New Jersey issues
temporary permits to sources who have completed construction,
allowing them enough time to "debug" their control systems prior
to inspections. The New Jersey agency then inspects the facility,
and stack tests 75 percent of the newly completed sources. If
the source is in compliance, the CTO is issued; if not in
-------
-37-
compliance, the temporary CTO is often extended. The North
Carolina system provides short-term renewals to 10 percent of all
renewal applications per year. These short-term permits are
accompanied by requirements for corrective actions.
3.5 The Effectiveness of Permit Programs
EPA asked each of the contractors to evaluate the effectiveness
of the permit program in each agency. Specific measures of effec-
tiveness do not exist, according to the contractors. Even so, the
contractors did attempt to describe how effectively the permit system
presently functions. Generally speaking, the contractors felt that
the permit systems are "effective" in getting stationary sources
to comply with regulations at the start-up of their operations.
The contractors also agreed that the systems could be even more
effective if operation and maintenance of the control equipment
was a criterion for design review and permit specifications.
GCA and TRC rated the permit programs by four criteria:
technical feasibility, legal feasibility, administrative feasibility,
and agency costs. GCA describes the ratings of program feasibility
as "a highly subjective assessment, based on conversations with
regional personnel." GCA and TRC present all of their ratings
of effectiveness with this same caution. Their final evaluations
describe the Connecticut program as "somewhat effective," (TRC);
the Oregon program as "very effective, (TRC); the Iowa program
as "moderately effective," (GCA); and the New York regional
programs as "moderately effective," (GCA).
Booz Allen generally described the North Carolina permit
system as a "well organized, well administered" program, and
then pointed out a few problems with the system (see next section
-------
-38-
for problem descriptions). Texas is seen as placing stringent
controls and requirements on new sources, but having a permit
system which is administratively inefficient due to duplicative
engineering evaluations by the TACB and DOH.
The Chicago system is described as effective, by Pacific
Environmental Services, due to 95 percent of the total pollutants
emitted being accounted for through permits. In regard to San
Diego, PES commented that the APCD "has attained and implemented
high level review criteria", but PES also points out the need
for changes in the system.
The Environmental Law Institute does not comment directly on
the effectiveness of the New Jersey process. ELI does,
however, state that the New Jersey permit program is backed
up by agressive enforcement.
3.6 Problems Associated With Operation of the Permit Systems
The nine reports mention problems specific to the permitting
procedures of each State or local agency. Yet most of the problems
are not unique to a single agency and fall into one of five major
categories:
o Source identification
o Trends in permit loads that cause fluctuating workloads
for permit reviewers
o Routine nature of the permit review processes
o Emphasis on initial compliance
o Insufficient use and coordination of source information.
-------
-39-
A first order problem with any of the permit systems is that
uncontrolled air polluting sources may be operating without a
required permit. One reason for this is that agencies have
difficulty in identifying the number of emission points and the
number of facilities that require permits. Agencies often identify
sources through Department of Labor directories (which are often
out-of-date), telephone books or by complaint follow-ups; however,
they rely most heavily on voluntary source applications. This
source identification problem is amplified by the fact that
agencies do not take stringent enforcement actions against
the sources that are "discovered" and have failed to apply for a
required permit. Source identification differs in the Chicago
system where all building permits are reviewed and tagged either
as potential or insignificant sources of air pollution. The
Chicago agency feels that this is a most effective means of
source identification.
Trends in permit loads have also affected the effectiveness
of the permit systems. Data from the first few operating years of
each system indicate heavy workloads for the permit review staffs,
particularly in the three States that require permits for existing
sources. The San Diego report mentions that many existing sources
were "grandfathered in" for this reason. Levels of permitting
are also a function of changes in regulatory requirements.
For instance, the San Diego APCD recently added authority to
require that Federal facilities obtain permits to construct and
to operate. The city estimates that the U.S. Navy alone will
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-40-
require 800 new permits. The North Carolina report indicates
similar trends-permitting loads peaked in 1973 after which most
new and existing sources had permits. A second "buldge" in 1975
reflects the statutory change extending permitting requirements
to existing sources. These "start-up" permitting loads are to
be expected; however, the loads can be eased with staggered
renewals.
The heavy workload of the permit staffs, particularly in the
peak periods described above, are a partial cause of the third
problem associated with permits—the routine and cursory nature of
the approval process. This is compounded by the lack of technical
guidelines and industrial standards for use by reviewing engineers.
The inadequacy of design reviews has been discussed in
section 3.2 (p. 24) entitled "Initial Permitting." One point
worth reiterating here is that the focus of design reviews is on
initial, rather than continuing compliance. Although most State
agencies have the authority to impose O&M permit requirements,
only three agencies have even begun to use this authority.
Continuing compliance is more typically associated with the
enforcement division(s) within the agencies, through their
inspection and reporting authorities.
Another problem with the permit systems is the insufficient
use of agency data. The permit program and the other programs of
each agency do not effectively share information about sources.
For instance, in initial permit review or the review of permits
for renewal, the compliance history of similar sources and the
source itself would be useful in the determination of permit
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-41-
requirements. Conversely, information from permit applications
(including source location, size, types of processes, pollution
controls and waste stream characterizations) should be coordinated
with the Enforcement and Surveillance Divisions' tracking of
source compliance status. To date, Connecticut, Houston, San
Diego and Oregon have begun to computerize permits data for such
purposes.
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-42-
Chapter 4. INSPECTIONS, SURVEILLANCE AND ENFORCEMENT
The inspections, surveillance and enforcement functions
of air pollution control agencies seek to ensure compliance
with laws and regulations intended to secure environmental
protection goals. While differences exist among the agencies
studied, common functions and the normalizing influence of
Federal law, Federal technical and management assistance,
and Federal grant mechanisms have resulted in similar control
operations. The general scheme is that sources are "permitted"
(with or without formal permit mechanisms) to operate a
process with pollution control equipment such that resulting
emissions meet legal standards. Agencies conduct surveillance
and inspections to monitor compliance status and undertake
enforcement actions where violations are detected. Permitting
has been discussed in the previous section. This section
presents the findings of the contractor studies regarding
organization for and performance of inspections, surveillance,
and enforcement.
Air pollution control agencies must control a large
number of sources with a limited number of personnel. This
means that agencies and sources interact on an infrequent,
short-duration basis, even for major sources. To achieve
total control, constant surveillance of every source, would
require unacceptable expenditures of public resources. For
this reason, and as with traditional enforcement systems,
agencies depend on voluntary compliance by the majority of
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-43-
sources, and substantial citizen participation in identifying
violators.
At the State level, enforcement is complicated by manpower
and resource constraints and conflicting jurisdiction with
Federal entitites and local governments. While not discussed
in this study, it is important to recognize that State
enforcement of environmental strategies roughly parallels
and "shadows" federal enforcement. In the field of air
pollution, enforcement is further complicated by the lack of
data upon which to make compliance determinations, and by
uncertainty regarding just what constitutes compliance.
These shortcomings arise from the still evolving nature of
our understanding of pollution control technology and of the
impact of source activities on ambient air quality.
Basically, there are two phases to enforcement. Initial
compliance whereby sources must install required equipment,
and continuing compliance whereby sources must meet legal
requirements over time. The focus of our study was limited
to sources which had at some time "demonstrated" initial
compliance.
In the "continuous compliance" phase, surveillance,
inspections, and enforcment become the primary agency functions
In addition to the enforcement and surveillance activities
of the State agencies, legislatures have empowered agencies
to impose requirements on sources to assist in ascertaining
compliance status. Thus sources may be required to perform
stack tests to determine initial compliance, or to stack
test annually to demonstrate continued capability to meet
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-44-
emission standards. Similarly, when appropriate, sources
may be required to monitor operating parameters and emissions
and to keep records and/or report periodically to the responsible
agency on compliance status. Most agencies studied prefer a
cooperative/negotiative approach to enforcement, rather than
the automatic impositions of sanctions when violations are
detected.
Thus ensuring compliance will depend in large part upon the
effective utilization of existing State enforcement mechanisms,
and development of enhanced violation detection and resource
management capability.
The next sections of this report describes the mechansisms
agencies use for detecting violations, source self-surveillance
requirements and agency response to violators.
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-45-
4.1 Agency Detection of Violators
4.1.1 Inspections
Inspections are formalized and often-preplanned sur-
veys of a source or facility. They fall between stack
tests and surveillance in terms of accuracy of compliance
determination and in terms of effort and expense required.
This section will first describe model procedures for
inspections. Then agency-specific inspection practices will
be discussed.
For those agencies that issue operating permits to all
of their significant sources, frequency of inspection is
often tied to permit duration. Other agencies tie frequency
of inspection to pollution potential criteria such as size,
potential emissions, and compliance history. Inspections
may be announced or unannounced but in either case they are
usually anticipated by the source to be inspected. This is
particularly the case for annual inspections at the time of
permit expiration which are highly predictable. Inspections
are also conducted in response to citizen complaints or a
source's malfunction report.
The inspectors visit the site to identify the existence of
excess emissions violations; and, if a violation exists, the
inspector must verify the existence and extent of the violation.
Inspectors are required to do far more than merely record
perceptions, however. In some instances violations may be
obvious? in others, the inspector may be required to analyze
and interpret ambiguous data on indicia of non-compliance
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-46-
and then perform calculations to determine the extent of
excess emissions. He often performs technical assistance
functions and must be familiar with a variety of administrative
duties including preparing notices of violation and documenting
inspection activities. He must procure and protect evidence
in a manner which preserves its utility for later enforcement
action. In each of these areas, there are opportunities for
error; and errors, whether occassional and inadvertant, or
chronic due to inexperience and turnover among inspectors,
decrease the credibility and effectiveness of the agency's
enforcement efforts. High turnover among inspectors was a
frequently cited problem in the agencies studied.
Agencies vary regarding staff experience levels, training
requirements and opportunities, and the responsibilities which
are imposed on field inspectors. Some agencies provide
inspectors with source compliance histories and computer
print-outs of emission points to be inspected. An inspector
may be responsible for a single media and inspect a limited
number of sources in one inspection; or he may be responsible
for all media and spend the requisite time to inspect an
entire facility as in Oregon. At least two agencies (Oregon
and Chicago) assign inspectors with special expertise to
inspect complex sources.
The following section discusses the number, types, tools
and results of inspections for the 9 agencies studied. Table 4-1
summarizes agency inspection activities.
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-47-
Table 4-1 INSPECTIONS
1
1
1 Total Number of
1 Inspections/Year
Source Inspec.
Frequency
Majors:
Minors:
Preliminary
Activities
Post Inspection
Activities
Time Required
Inspection
Results
1
HOUSTON IOWA
CHICAGO CONN. TEXAS
3000 1200 450(1978) 800-900
Annual
Annual
Report
and
Conputer
Cbmpliance
Checking
1 Annual
1 Up to 1
Iper 3
years
Pre-inspn
question-
naires
Premise
Eval.
Report
(At least
Annual (88) | once/year
Annual(25)
Bi-ann.
1(350)
1 Consul ta-
Ition
1 Follow-^
1 visit if
1 required
|4 hr/source
|15 hr/
1 facility
90% found
in
compliance
NEW
JERSEY
1900 I/
Annual "Ll^J
Hiqh risk
2x/per 5yr.
CTO lew risk
Ix/per 5 yr.
CTO
N.Y.
(RBG.VIII) N.C. ORE.
1800 1600
|400-2x
l/yr 5/
|600-lx/yr
JMinijnum of J1000-xl/
Annual once/2yrs.^|5 yrs.
'
1 Visible
(Emissions
1 Evaluation
Minor viol. I County I Report sent
conference |DOH Follow I to source
to improve (up on Ifollownjp
performance (consent (if req'd.
1 aqreement
"
38 min. per
source
5% in viol
(10% major
violations)
SAN
DIEGO
CA.
Annual
[Review of (Equipment
1 files (list
(prepared
Avg 3 hrs.
Inspec-
tion
report
I/ 300 complaint inspections, 400 reported malfunction inspections.
2/ 2x/year if NSPS/NESHAPS apply to the source. Major sources with a RAPCA are inspected by the RAPCA in addition
to the Bureau inspections listed in the table.
3_/ 4x/year if troublesome.
4/ Each R.O. develops schedule ainied at quarterly/biannual/annual inspection dependinq on site, past performance.
5_/ Source complexity determines inspection frequency.
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-48-
Connecticut. Connecticut conducts scheduled inspections
of major sources on an annual basis, and other sources at
least once every 3 years. Approximately 1200 of the 5200
sources affected by the inspection program are inspected each
year. Inspections are conducted by the Field Operations Group
and are preceded by a Pre-inspect ion Questionnaire (PIQ) which
provides the agency with detailed source data prior to the
inspection. After the inspection the inspector files a
"Premises Evaluation Report" which includes observations
and comments.
As with all agencies, the Connecticut inspector is limited
in the tools available for determining compliance status. He
may conduct a visual emission observation of the plume, detect
odors at residences or the property line, note the general
cleanliness of source facilities and where possible observe
operating parameters. The inspector may specifically request a
stack test to determine compliance. As the study noted,
"Determining compliance is frequently a complicated process
that requires judgment and knowledge of that source."
The Agency has identified infrequency of inspections as
a problem area and is intiating efforts to decrease inspection
intervals. The study noted that in order to conduct more
inspections, a greater number of personnel must be assigned
to the task and/or more effective inspection methods must be
found to reduce the time required per source.
In the past, multiple-permit facilities have been visited
several different times within a brief period to check emission
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-49-
points with nearly coincident permit renewal dates. In an effort
to simplify the inspection program and reduce such inefficiencies,
the DEP has recently changed operations so tha.t only the Field
Operations Group conducts inspections. Historically, the Permits
Group conducted inspections to ensure conformance with permit
conditions and schedules.
Oregon. Inspections are conducted by the regional operations
field offices and are viewed as a means of reminding sources of
the requirement for compliance. The inspections are scheduled,
but sources are not generally notified beforehand.
Source complexity determines frequency of inspection.
Headquarters has engineers who are experts regarding specific
industries. Based on formal written agreements with the regional
offices these experts conduct some inspections of major complex
sources.
Inspectors have multi-media responsibility (Air/Water/Solid
Waste). Prior to visiting the sources, the inspector checks the
files to get a perspective on compliance history - familiarity
with process operations facilitates inspection.
Approximately 1600 inspections are scheduled per year with
the average time for an inspection being 3 hours. Frequency of
inspection for given sources was reported as follows.
400 Major Sources - inspected at least twice per year
600 Minor Sources - inspected at least once per year
1000 Minimal Sources - inspected once per 5 years
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-50-
North Carolina. North Carolina's SIP requires inspection of
all sources at least once every two years. Due to the burden
this imposes on the agency/ only a small number of sources this
are inspected more than once per year. Each region annually
develops a schedule which is intended to result in quarterly,
biannual or annual inspections depending on size and past
performance of the source.
Formal inspections are typically preceded by a visible emis-
sion evaluation (VEE). Inspector familiarity with sources re-
portedly allows identification of changes in operation and
maintenance of control equipment. The inspector transmits a
post-inspection report containing findings and sometimes recom-
mendations, to the source operator. A follow-up inspection may
be conducted if corrective action was recommended.
Table 4.1 summarizes North Carolina's inspection activities
for 1973-1978.
New Jersey. Inspection frequency is a function of source
size and pollution potential. Major sources, of which there
are approximately 1200, are inspected annually by the Bureau's
Technical Support Group and quarterly if within a RAPCA.
Frequency of Bureau inspections was reported as follows:
NSPS/NESHAPS - Twice/yr
High Risk Minors - Twice/5yrs
Low Risk Minors - Once/5yrs (plus an ocasional
RAPCA inspection)
In addition, inspections are conducted for approximately 75%
of those sources with permits to construct before they are
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-51-
issued certificates to operate. Inspection time averages 38 min/
per point source. Bureau staff estimate that three quarters of
all inspections are unannounced.
In 5% of inspections conducted, sources are found to be in
violation; however only 10% of the violations are major. (70%
are minor and 20% are determined to be non-violations). For
minor violations the Bureau may conduct a conference to improve
source performance - the source usually cooperates.
The Minor Source Support Group supervises the inspection
for minor sources (e.g., gas stations, airports, marinas). In
the period, Jan-Aug 1978 the group conducted approximately 550
inspections, mostly of gas stations (vapor recovery).
RAPCA supplementation of Bureau activities is substantial
but appears to be weighted toward activities such as complaint
inspections. In a recent year, 200 cases were referred to the
Bureau for state action because they were too complex to handle
at the local level or only involved violations of the State
Code.
f
Iowa. The Central Office seeks to achieve and maintain
consistency in inspection activities conducted by.the 6 regional
offices. At random times in the year, regional staff conduct
annual, unannounced inspections.
Approximately 800-900 inspections are conducted annually.
Major sources (which total 390) are inspected twice per year and
minor sources in non-attainment areas are inspected once per year
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-52-
Inspections are described as reasonably thorough, and average
4 hours per source/15 hours per facility which includes prepara-
tion, travel and reporting. Approximately 98% of sources inspected
are found to be in compliance.
More time is spent in cases of known violators and those
plants that have monitoring devices or which maintain O&M records.
Inspections occupy 50% of the time of the 9 regional inspectors.
Non-compliance results in consultation between agency and sources
and may result in a follow-up visit.
New York. Region IX inspects large sources once per year and
"troublesome" sources up to four times per year. Regional staff
claim to be aware of the continual violators and the most trouble-
some and recalcitrant sources. A computer printout of scheduled
inspections facilitates administration. Approximately 1800 sched-
uled inspections are conducted per year (6 per day).
For self-reporting or complaints the inspector visits the
site to evaluate the seriousness of the emissions. He has the
power (never invoked) to order a shutdown. The offender may be
placed under an order or may sign a consent agreement. The County
is responsible for following-up.
San Diego, California. In conjunction with its annual permit
program the APCD conducts unannounced (but predictable) inspections
60 days prior to renewal a computer provides the inspector with a
list of all equipment to be inspected. Advance notice may be pro-
vided for complex sources involving preparation and time-consuming
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visits. During the annual inspection, APCD inspectors try to
observe the operation at normal load. If the source is operating
under a variance, inspectors seek to ensure compliance with vari-
ance conditions.
Houston, Texas. Prior to commencement of construction, an
engineering evaluation is performed as is a joint inspection by
the Houston Department of Health and the Texas Air Control Board
(TAGS). The inspection verifies information submitted and
determines whether the source may be a nuisance (Houston has no
zoning ordinance). Recommendations are sent to TACB Headquarters
in Austin.
Prior to issuance of an operating permit another joint inspec-
tion is conducted. This may involve opacity tests, a stack test,
taking of property line samples or recording of process parameters.
The DOH announces and conducts annual SIP inspections for
the 88 major sources within DOH's jurisdiction. 25 sources in
the 25-100 ton range located in non-attainment areas are also
inspected annually. The remaining 350 sources in the 25-100 ton
range are inspected biannually. These inspections include review
to ensure that process and control equipment are unchanged and
that permit conditions are complied with. Data from sources
which conduct self-monitoring or take their own property line
samples are also reviewed but do not form the basis for an NOV
if a violation is detected.
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-54-
Chicago, Illinois. The Illinois Environmental Protection
Agency (IEPA) and the Chicago Department of Environmental Control
(CDEC) have an interagency agreement that technically limits CDEC
to less than 100 ton per year facilities. Nevertheless, complaints
and mobile inspector reports may trigger inspections and enforce-
ment against larger sources.
Facilities are inspected at least once per year. Inspections
occur about the same month every year and may be described as
quasi-planned and unannounced (but again, anticipatable) . In-
spectors are aided by a computer list of emission points.
During the construction phase an inspection team is assigned
to the site to confirm installation of equipment required in the
permit. For industrial plants and large and complex fuel and solid
waste burning facilities such as electric utilities, inspections
are conducted by engineers from the Engineering Division. Other
inspections are conducted by the Inspectional Services Division.
Following inspections, data is forwarded to the Engineering
Services Department for review and entered in the CDEC computer to
determine compliance status. A visible emissions review is conduc-
ted when deemed necessary by the inspector. The study reported
that annual inspections are conducted for 35,000 pieces of fuel
burning equipment, 3,000 incinerators and 3,000 industrial plants.
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-55-
4.1*2 Surveillance
Surveillance encompasses the myriad of agency activities
short of formal inspections. Surveillance may be of large
geographic areas or specific sources. Activities typically
include 'drive-by1 or 'windshield' inspections, smoke readings
and odor detection. In some agencies, surveillance acti-
vities include spot inspections in response to a complaint or
after observations of a potential violation. Spot inspections
are less detailed, less formal, and less costly than the
inspections previously discussed (see Section 4.1.1). Surveil-
lance activities serve to to assist in maintaining an agency
presence, and are largely limited to observation of visible
emissions or emissions which cause odors. Surveillance
activities are conducted following source efforts to regain
compliance after malfunctions, complaints or agency detection
of violations.
Connecticut's surveillance program reportedly covers 200-
400 sources per year (out of 13,000 in the state). The sur-
veillance program consists of complaint response, drive-by's and
NOV follow-up.
Surveillance activities in Oregon are conducted by the
Regional Field Office. Of the 1000-1500 surveillance - type
inspections conducted per year, most are random - basis drive-by1s
to detect visible/odor emissions. In addition to establishing
an agency presence, such activities allow inspectors to become
familiar with the "normal" appearance of sources. Nevertheless,
detection of violations is dependent on obvious excursions.
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Other limitations noted in the Oregon program, but not unique
to that Agency, include inexperience and turnover of inspectors
and the effect of geographic location on inspection frequency —
those sources in the Eastern and Southern parts of the state
which are relatively distant from the Regional Office are
checked less frequently.
The Iowa report lists spot inspections, complaint response
drive-by's and compliance follow-up as elements of the state
surveillance program. According to our contractor's report
perhaps 10% of known violations are detected by an inspector
and a somewhat smaller percentage results from citizens'
complaints. The majority of excess emission reports are
received from the sources themselves.
New York's region VIII describes surveillance activities
as spot inspections that are the number two source of non-
compliance discovery (second to citizen complaints).. Such
inspections are concentrated on sources known or suspected
to be in non-compliance.
In Houston the city is divided into four areas. Major sources
are observed on a daily basis by auto, boat and helicopter to de-
tect gross visible/odor violations. Again such activities
are seen as providing agency presence and fostering inspector
familiarity with source appearance. Surveillance may be
focused by complaints or upset/ maintenance self-reporting.
It was noted in the Houston study that surveillance activity
in relation to SO2 and HC emissions is very limited compared
to surveillance for particulates.
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-57-
Houston's DOH may initiate Legal Surveillance to document
additional violations of known problem sources. Legal surveil-
lance may include activities such as taking of property line
samples, (a practice apparently unique to Houston), reviewing
records and photographing violations. Such surveillance may
be used:
1. to secure additional evidence for possible case
preparation;
2. before, during and after scheduled maintenance;
3. to verify abatement measures agreed to in informal
conferences;
4. to monitor sources using toxic materials.
Chicago's CDEC maintains a fleet of over 20 vehicles used
by mobile inspectors to conduct abatement patrols and respond
to complaints, and has at times resorted to aerial surveillance
It is estimated that CDEC conducts continuous surveillance
for over 3000 facilities. While CDEC ' spot -checks' major
sources, it's primary focus is on smaller facilities.
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-58-
4.1.3 Stack Tests
Stack testing is generally the most accurate method for
determining compliance status of a source at any specific
time. However, stack tests also result in increased financial
and manpower costs, thus the requirement to conduct stack
tests is imposed with some care.
Most agencies studied use stack tests to determine the
initial compliance status of new major sources and occasionally
of new minor sources. There is considerable variety regarding
the use of stack tests for continuing compliance. Stack tests
may be required by permit, regulation or substantial inspector
suspicion. They may be required annually, periodically such
as at each permit renewal, or strictly a one-time initial
compliance determination. Major sources, particularly
large power pi ant utility boilers, may be required to stack
test periodically. The requirement may arise annually or
may be a condition of permit renewal. Stack tests may be
source conducted with or without agency observers, or conducted
by special agency teams.
Stack tests are most often conducted at source expense by
consultants, sometimes with an agency observer present. All
states studied have the capability to conduct tests, but some
local agencies such as the Houston DOH must request state as-
sistance if a government conducted stack test is desired. Such
requirements may arise where sources repeatedly fail consultant
tests or submit data of questionable validity, or where the
compliance status of a source is brought into doubt in some
other manner.
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Results from stack tests may or may not be used in
enforcement action, and failure of a test may result in
sanctions or merely continued efforts by the source to achieve
compliance. Quality of data varies from agency to agency
and from test to test. Complexity of test methods and of
source operations coupled with lack of familiarity by test
conductors result in a significant percentage of inconclusive
tests, (see New Jersey discussion, p. 64).
Some critics have suggested that sources be required to
stack test at other than optimum or representative conditions to
insure that compliance is possible under all operating regimes.
State regulations .studied appear to vary regarding stack test
conditions (see Table 4.2), but even where such authority
exists/ it has not been widely used (see Oregon discussion,
p. 62).
An apparent benefit of a periodic stack test, as with a
periodic inspection program, are the maintenance steps etc.,
undertaken by the sources to ensure compliance during the test.
Unfortunately, the infrequency and cost of formal stack
testing limit the utility of such mechanisms in a continuous
compliance context.
State practices regarding stack tests are described
below.
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-60-
Table 4-2 STACK TESTING
Type of
I Sources Affected
(Number of Source
I Tests/Year
Frequency
By Whom Conducted
Test Conditions
Results
CHICAGO
ILL.
New/Major
Case-by-
case
fAs
Needed
CONN.
New/Major
50-60
! Majors
|2-8 yr.
Interval
Consultant I Source or
(Agency I consultant
observes ((State insp.
and does [Observer)
some)
Normal
conditions
"highest
anticipated
level of
operation
r
IHOUSTONI IOWA
TEXAS
,
State
Agency
1 Signif i-
Icant
76
Consul-
tant
NEW
JERSEY
New/Modified
65
Consultant
Level
(specified in
IPTC
10% rejected
25% indicate
non-
1 compliance
N.Y.
(Regions)
\
VIII-20
DC-16
50%
Consultant
50% Agency
N.C.
1 New/1% jor/
Problem
75-100
ORE.
New/Major
100-200
SAN
DIEGO
CA.
Major
Problem
lTSP-49
Kfe-62
As (Majors —
Needed (annually
|(if prac-
Iticable)
lother-
JAs Needed
Consultant 190% source/^
(Agency has (consultant
capability) I 10%-Agency
1
Agency
"Accept- lAgency may (Max. rate iNbrmal
able" I specify 1 tests for I condition
(conditions |20% of
1 Sources
1
1
l>75% found
1 acceptable
1
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-61-
Connecticut. For new sources, Connecticut prefers stack
tests over emission estimates unless DEP engineers are
supplied with or are familiar with similar applications and
effectiveness of particular process/control equipment combi-
nations. 5-6% of initial applications require stack tests,
including all major sources (greater than 100 tons/yr.) The
DEP does not require tests as part of permit renewal as long
as operations have remained constant.
Major sources are required to test at 2-8 year intervals.
The test interval depends on the type of source, control
equipment and percent emissions relative to allowed.
Approximately 75% of the tests are for process particulate
emissions for boilers; the remainder are for boiler NOX.
Fifty to sixty stack tests are conducted every year by
sources (or consultants) at source expense, and observed by
a state inspector. Tests are conducted at "Normal Conditions"
which are defined as the highest anticipated level of operation,
using standard methodologies. Subsequent operation of
equipment at higher rates than those existing during testing
may place the equipment in violation unless the increased
rates have been approved by the department. There have been
no agency requests for tests under atypical conditions, nor
do they have authority to make such requests. Prior to
testing the source completes and submits an Intent to Te,st
form containing:
o operating and control conditions
o process description
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-62-
o sampling methods
o locations
Following results of the test the agency does not provide
a formal declaration of compliance. Sources submitting
unacceptable results must repeat the test until compliance
is achieved.
Oregon. Oregon's DEQ views stack tests as serving several
purposes:
o determine need for controls
o specify extent of controls
o determine efficiency of pollution control equipment
o update emissions inventories
Approximately 750 sources in the state are affected by
stack test requirements. One hundred to two hundred are
conducted per year — of which 75 are onetime particulate
tests and the remainder are routine tests as required by
permits. All new sources and new pollution control equipment
are tested. Portable asphalt plants are generally tested
annually.
The agency can require that the source test at its own ex-
pense. In-house capability consists of 2 engineers who are
assigned to testing-the agency conducts approximately 10% of
the tests. Failure results in a requirement for a retest. Re-
peated failure results in negotiation of a compliance schedule.
Greater than 75% of the tests are found acceptable.
The agency uses a book of source test methods developed by
EPA and the state. If methods are not available, the state and
sources try to develop special test procedures.
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-63-
Maximum Rate Testing is sometimes requested for one-time
tests. About 150 of the 750 affected sources in the state have
performed tests at maximum production and steaming rates.
North Carolina. North Carolina does not rely heavily upon
stack tests for initial compliance determiniation. In the
period April 1977- April 1978 compliance determinations were
made as follows.
Engineering Evaluation - 67.5%
Visible Emissions Eval. (VEE) 25.0%
Source Test (ST) - 7.5%
In any event, an engineering evaluation usually accompanies
stack tests or visible emission evaluations.
The State has the capability to conduct tests, but
sources generally hire consulting firms to conduct tests and
prepare reports. A member of the source testing unit usually
observes.
Seventy-five to one hundred tests are conducted per year
to determine continuing compliance. Regional staff identify
troublesome sources at the first of the year and request
support from the source test group. Negotiation results in
establishment of testing schedules. The source test group
has limited ability to provide requested support. As a
result, some source tests are postponed a year.
If a source fails the test, a second consulting firm
may be hired or the agency conducts the test. If the agency
conducts the test, it is preceded by a pretest survey to
determine the equipment and technical preparation required.
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-64-
For repeated failure, the agency notifies the source by
letter which requests that the source submit a control plan
and compliance schedule within 30-60 days. Agency staff
assist the source in plan development.
Chicago. Stack tests are required as conditions in
construction permits or to obtain variances. Test requirements
are imposed on a case-by-case basis, most frequently for
borderline and questionable compliance cases. The IEPA
stack test group witnesses tests conducted by sources and in
a few instances conducts tests (none in Chicago). The CDEC
has two test teams which either observe or, on a case-by-case
basis, conduct stack tests. In case of failure, sources
generally petition for a variance.
New Jersey. New Jersey may require a stack test for new
or altered sources before issuance of a permanent (5 yr.)
CTO. For standard processes and well-established methods
for meeting standards a stack test is not required. About 5
percent of permit applicants are required to test, although
future increase are expected due to NSPS and NESHAPS.
General requirements and specific need for stack tests are
imposed by the Permits and Certificate Section.
Test results are certified by a licensed professional
engineer. When possible, the test is observed by a stack
test evaluator and a field inspector (in order to ensure
production at the level specified in the PTC and that correct
testing techniques are followed). In 75 percent of current
cases, the field inspector performs both functions.
-------
-65-
Table 4-3 NEW JERSEY'S STACK TEST PROGRAM
1976 - 1978
Year
1976
1977
1978
(through
Septerober)
TOTAL
r Source Operations
Tested
45
29
32
. 1
106
P" Finding of
Compliance
23
18
4
45
Finding of
Non-Compliance
8
9
1
3
20
Inconclusive
1
14
2
25
41
Source: "The Response to State and local Regulations on Emissions To The
Atmosphere", The Environmental Law Institute, 1978.
-------
-66-
The N.J. DEP reports that a greater than 67 percent com-
pliance rate is reported, although the study also mentioned
a high rate of inconclusiveness in current testing (see
Table 4.3). Seventy-five to eighty percent of the source
conducted tests are not performed in strict accordance with
approved testing methods although errors are generally minor
.in nature. The DEP rejects ten percent of the tests due to
improper technique.
The DEP requires three tests for determination of com-
pliance. If any test indicates more than 10 percent above
the standard, the 5 year CTO is not issued. The Technical
Service section personnel criticized the lack of quality
control standard on independent labs analyzing the sample.
San Diego, California. All major sources are source tested
annually "if practicable." Others are tested on a priority
basis determined by the magnitude and frequency of non-
compliance. The San Diego APCD requires a test if it is
economically and technically feasible or if emissions are
not readily observable (e.g. NOX, HC, small particulate) and
borderline compliance is suspected. A Visible Emissions
Observation may suffice if the source is well within limits.
Table 4-4 summarizes APCD activities conducted by the district's
two Source Test Teams.
Iowa. The Iowa DEQ usually requires source tests for
significant new and major sources shortly after the start of
operations. DEQ may also require existing sources, usually
suspected violators and marginal control equipment facilities,
-------
-67-
Table 4-4 SOURCE TESTS PERPOFMED BY THE SAN DIEGO APCD SINCE 1968
Fiscal Year*
Prior to fiscal year 1975-1976
fiscal year 1975-1976
fiscal year 1976-1977
fiscal year 1977-1978
•total
Grand Total
\
Particulate
1*
18
41
49
123
262
\ \
w>x
29
34
62
125
Obher
10
3
1
14
a Fiscal years are from July 1 to June 30
b Estimated
Source: "Description of the Regulatory Process for the
San Diego, California Case Study, "Pacific
Environmental Services, Inc., 1979.
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-68-
to demonstrate compliance by stack tests. In 1977 DEQ personnel
observed 76 source tests. DEQ may, in some instances, have
a contractor conduct a test at the State's expense.
Failure results in a retest or development of an emission
reduction program. Repeated failure results in a negotiated
agreement to modify operations or install new equipment.
New York. Region VIII devotes approximately 30% of its
available resources to conducting 20 tests per year.
Region IX devotes 12% to conducting 16/yr. and reviewing
some 20 tests conducted by sources. The Commissioner is
empowered to require sources to conduct an acceptable stack
test and submit a report. This gives the agency some
flexibility in specifying test conditions.
-------
-69-
4.1.4 Complaints
Limited agency manpower and resources, limited use of
source self-monitoring, and geographic dispersion of sources,
force all agencies studied to rely heavily on citizen complaints
to assist in detection of emissions violations. Furthermore,
many sources are reportedly sensitive to community reputation
and take measures to stay in compliance which forestall citizen
complaints.
Agencies such as the Iowa DEO characterize citizen
complaints as "extremely important" in their enforcement
framework. Further, several agencies place a premium upon
timely responses to complaints, e.g., average response time is
36.2 minutes in Chicago and 15 minutes in Houston.
Agencies respond to citizen complaints in a variety of
ways. Most provide an immediate inspection. If a violation
is established, an NOV is issued if the emissions are substantial
and continuing. In the instance of chronic malfunction
cases and for sources with repeated complaints, agencies may
escalate surveillance pressure on sources to ensure compliance.
The most severe limitation on the use of citizens as a
surveillance force is their dependence on the physical senses.
Those emissions which are not visible or which do not result
in a discernible odor will not be detected. Table 4-5
lists average yearly complaint receipt, and a percentage
breakdown of causes of complaints.
-------
-70-
Table 4-5 COMPLAINTS
Number Received/Yr.
BASIS OF C3CMPLAINT:
Smoke
•-•••• •»"• •.•.•••••^•••'-' ••••••••••••—
Noise
Odor
Dust
Response Time
to Complaints
Time Spent on
Complaint
Investigation
CHICAGO
ILL.
25001
40%
40%
20%
36.2 Min.
Complete
Inspec-
CONN.
1000
50%
>50%
1 to 2
Days
HOUSTON
TEXAS
14%
61%
19%
15 Min.
IOWA
300
NEW
JERSEY
Bureau-
2700/Yr.
CJRAPCA-
1600/Yr.
11%
--
76%
9%
N.Y.
(REG. VIII)
N.C.
500
ORE.
1000
4 Bours
SAN
DIEGO
CA.
•"• ,
I/ Projected
-------
-71-
Connecticut. Connecticut receives about 1000 complaints per
year, mostly during the warm months. 1-2 days are spent on
an average complaint, more than 50% of which are odor related,
the rest being for visible emissions. Many of the complaints
lodged in a given year involve more than 1 against a particular
source.
Oregon. In 1977 Oregon recorded about 1000 complaint
inspections. Inspectors spent about 4 hours per complaint
including time for administration, telephoning, record keeping
and follow-up surveillance.
North Carolina. "In North Carolina, Headquarters receives
complaints and sends a 'Request for Action to be Taken1 to
the appropriate Regional Air Quality Engineer. A staff
member is assigned to conduct an investigation. Visible
emission evaluations for smoke and odor are sometimes
supplemented by plant inspections and interviews. Both
complainants and sources are notified of findings and
recommendations and follow-up is provided to determine
compliance. In 1977, 538 complaints were handled and in
1978, 455.
New Jersey. New Jersey's Bureau receives approximately
2700 complaints per year. Seventy-nine % are received by
phone during regular office hours. The Regional Air Pollution
Control Association reportedly receives far more complaints
- 1 RAPCA received 1600. The CJRAPCA indicated that many
complaints were received during evenings and on weekends and
holidays.
-------
-72-
Houston. Houston reportedly lias the capability to respond
to complaints anywhere in the city within 15 minutes. Upon
verification of a violation, DOH issues a NOV and the source
is requested to take abatement action. The agency conducts
increased surveillance for several weeks thereafter. The
state tracks DOH progress in handling problems. Complaints
received for a recent year were as follows:
Odor - 61%
Dust - 19%
Smoke - 14%
Other - 6%
In 1972, 222 complaints out of 1986 received resulted in
issuance of an NOV.
Chicago. Chicago projected 2500 complaints for 1978,
including 40% for noise and 20% for odor. In 1978, the
agencies response time to a citizens complaint decreased
from 57 minutes to 36.2 minutes. Inspectors conduct a
complete source inspection upon arrival at the site.
-------
-73-
4.2 Source Self Surveillance
The technological and resource limitations on Agency
surveillance capability coupled with the substantial pollution
potential of certain sources have resulted in 'laws and regula-
tions requiring sources to assist in monitoring their own
compliance status.
Agencies may require sources to report malfunctions, to
install continuous monitors, to report periodically on performance;
or to keep records of excess emissions, routine maintenance,
operating parameters or other indicia of performance. These
requirements may add substantial cost to source operations and
may overwhelm data handling capabilities of agencies. For these
reasons as well as a perception of undeveloped technology, most
agencies have used the requirements sparingly. Nevertheless,
the need to ensure continuing compliance and to allocate
responsibilities in a cost-effective manner between sources and
agencies is revealed in a trend toward greater use of these
requirements.
Requirements such as recording of operating parameters
and self-surveillance requirements are usually contained in
general source category regulations. Nevertheless, they are
sometimes included in the initial permits and may be added in
permit renewals as requirements change or source behavior warrants.
Oregon, for instance has attempted to negotiate these types of
requirements in their operating permits. Sanctions are usually
provided for failure to monitor, failure to perform maintenance
on monitoring equipment or failure to submit required reports;
however, the results of the studies indicate that such sanctions
are rarely imposed.
-------
-74-
4.2.1 Continuous Monitoring
The most highly developed and most frequently utilized
monitors are for opacity. Continuous emission monitors (GEM),
as with any sensitive instrumentation, require calibration
and maintenance which is not always properly conducted. With
the possible exception of utilities, sources and agency have
criticized OEM's for inaccuracy, even for the relatively well-
developed opacity monitors. See, for example, Connecticut,
Iowa and Chicago discussions.
States have imposed CEM requirements on a small number of
major sources, often in response to Federal requirements.
Reporting may be required on a monthly or quarterly basis.
To date CEM data by itself has not played a major role in
enforcement actions or sanction impositions. A number of
agencies have for a limited number of cases imposed requirements
to monitor operating parameters such as pH, temperature and
pressure.
As technology improves and expected cost reductions are
achieved, CEM'a should receive wider use. Such devices both
alone and in conjunction with parameter monitoring equipment
«will play an important role in successful implementation of
regulatory reform efforts such as the bubble and controlled
trading, and in achievement of continuous compliance objectives.
These efforts will be successful only if agencies have the
means to quickly and accurately determine sources' compliance
status.
Table 4.6 summarizes the agencies continuous monitoring
requirements of the nine agencies studies. The remainder of
this section describes the agency-specific requirements.
-------
-75-
Table 4.6
(XINTINUOUS MONITORING REQUIBMEMTS
CHICAGO
ILL.
iNtnber of Sources
1 Required to have
1 Monitors
1 Characteristics of
Sources Affected
(Type and Size)
(Types of Monitors
(Required
(Reporting Requirement.
NSPS
Source
Category1
CONN.
2050
Fuel
Burning
Sources
> 5 nrn
BTU/HR
Opacity
1 Quarterly
((By 50
(Major
(Facilit-
lies)
HOUSTON IOWA NEW
TEXAS JERSEY
50 41
Coal-Fired
Boilers ;
Troublesome
Sources Ce-
ment Plants
>250mn
BTU/HR;
selected NOx
and S02
sources
Opacity
Quarterly
Fuel
Burning
Kilns,
Sulfur
Recovery,
NSPS
Sources
N.Y. N.C. ORE. SAN
(REG.VIII) DIEGO
CA.
23 20-25 100
Fuel Burning
Cements
Acid Plants
(Opacity
JS02, NDx
Fuel (Specific (Major
Burning 1 Industr . 1 Power-
Sources (Category (Plant
>25Chm (Boiler
BTU/HR (Stacks
Opacity (Specia- (Opacity
Ilized |& NOx
(Some
(Special-
lized
Cwarterly Monthly
for
Excesses
1 Jjrposed ty State Agency - IEPA
-------
-76-
Connecticut. Connecticut's continuous monitoring
regulation requires opacity detectors on fuel burning sources
larger than 5 million BTU/Hr. heat input and sources burning
using #4-6 oil or coal. A quarterly reporting requirement
is also imposed for sources larger than 250 million BTU/Hr.
This affects some 50 major utilities. Sources greater than
5 million BTU/Hr. are required to maintain records for inspection.
HC and S02 sources are not included.
Field Operations Group personnel check the monitor during
scheduled and spot inspections to:
o verify monitor location
o review strip chart data
o check chart readings against visible emissions
observations
NOW' a may be initiated for violations. Accuracy of data is a
problem for Connecticut as it is for most of the agencies studied.
The study reported poor quality of data except for the utilities.
Oregon. Continuous monitoring requirements are imposed on
specific industrial categories such as Kraft pulp and sulfite mills,
primary aluminum, and wigwam waste burners. Out of 1000 sources
affected by these requirements, approximately 100 sources are
selected to monitor emissions and at least one process parameter
continuously. Control devices such as afterburners and scrubbers
are continuously monitored and temperature and pressure parameters
are recorded. Raw data must be available for review, and summary
reports are submitted monthly to designated agency personnel.
-------
-77-
For many of the selected sources GEM requirements are included
in their permits, while the other sources' monitoring require-
ments are contained in NSPS standards. For some sources in
the state, CEM's have reportedly helped to reduce the number
of upsets and reduced the detection and correction time for
malfunctions.
Oregon also utilizes "continual monitoring" - a hybrid
between stack testing and continuous monitoring. Modified
stack tests are performed periodically and monthly reports
are furnished to the agency. Agency personnel are not present
during these more frequent "continual monitoring" tests. The
agency has found it feasible to enforce only against chronic
violators reporting under the continual monitoring provisions.
Nevertheless, our contractor deemed continual monitoring to
be an effective continuous compliance/O&M evaluation tool.
North Carolina. North Carolina requires 20-25 sources to
have continuous emission monitors.
Included in the group of sources are Wood/fossil fuel
combination units greater than 250 million BTU/Hr heat input
which are required to install visible emission detectors and
recorders. Excess emissions must be reported quarterly
with an explanation of nature and cause.
Sources emitting SO2 have the options of installing a
continuous monitor, conducting fuel analysis, or undertaking
other procedures approved by the Agency Director. If fuel
analysis is selected, sources must report quantity, type,
-------
-78-
BTU content, % S, and total calculated emissions (if in
excess of standards). CM reporting must include emission
rate and total SO2 emissions (if in excess of standards).
New Jersey. Continuous monitoring in New Jersey is
characterized as playing a relatively minor role in violation
detection. CM requirements have been imposed on the following
type of sources:
o sulfur recovery plants
o non-commercial fuel burning sources
o sulfuric acid plants
o certain NSPS sources
o rotary kilns (opacity)
o utility boilers (opacity)
Iowa. Iowa requires opacity monitors for all coal-fired
boilers greater than 250 (106) BTU/Hr. Forty-one plants
in the state are affected by the requirement; however,
only 12 utility plants were reporting data at the time of
the study. The Agency Director may require monitors on any
coal-fired unit if warranted by compliance history, operation
history and ambient air quality. Due to past performance,
the Agency required two cement plants to install recording
ammeters on their electrostatic precipitators. Recordkeeping
and reporting are also required.
The State agency has the authority to require S02 monitoring
sulfuric acid plants, although there are no such sources in
the state. SOX monitoring is required for some coal-fired
boilers.
-------
-79-
The technical feasibility of stack opacity monitors has
been questioned by some Agency personnel due to a poor correlation
between monitor readings and visual opacity determinations in
certain cases.
San Diego. San Diego's continuous monitoring requirements
are partially adapted from federal NSPS/NESHAPS requirements.
They include specially designed requirements, such as pH monitoring,
promulgated by the APCD to apply to specific sources. CM
requirements are sometimes included as a permit condition.
After 6 October 1978 major powerplant boiler stacks must
operate NOX monitors and reflected light beam opacity meters with
continuous strip chart recorders. These devices must be elec-
tronically checked daily and must be routinely maintained. CM
results are admissible in judicial proceedings.
New York. Region IX has 20 source with continuous opacity
monitors and 3 sources with S02 monitors. Continuous stack
self monitoring is required for smoke and NOX for fuel
burning sources greater than 250 (106) BTU/Hr. According
to the contractor, the Agency presently has much greater
authority than it exercises. A Portland Cement plant has a
CM for particulates (and record-keeping) and a mineral acid
plant has a CM and sampling requirement.
Houston. Approximately 20% of major sources are required to
perform in-stack monitoring. Approximately 30% take property
line samples for their own use.
-------
-80-
Data is reviewed but the Houston Department of Health
(DOH) usually does not issue an NOV based on source supplied
data. DOH instead performs an opacity test or requests the
TACB to perform a stack test.
Chicago. Illinois Environmental Protection Agency
(IEPA) has the authority to require self-monitoring by
stationary sources, but except for cases where Federal
NSPS regulations require CM's for specific source categories,
this authority is not applied. IEPA reports that its experience
has been that these types of records do not support a violation
in court and are of little enforcement value. Nevertheless
the contractor reports that IEPA intends to require these
devices as technology in the CM field improves.
-------
-81-
4.2.2 Malfunction Reporting
Sources must take the necessary preventive and corrective
actions to minimize the possibility of malfunctions and to
minimize excess emissions and environmental harm when unavoidable
malfunctions occur. Malfunction reporting serves an important
function in furthering these goals.
Sources may be required to keep records of malfunctions
and/or provide timely reports of malfunctions to appropriate
agency personnel. Such reports are important to regulatory
agencies in determining actual emission levels, source
performance, and effectiveness of various process/pollution
control equipment combinations. Collecting and analyzing
malfunction reports can reveal trends and facilitate technical
assistance.
Malfunction reporting requirements typically require
information on the incidents — cause, duration, and the
remedial action taken or planned. Reports of control equipment
maintenance may also be required. Sources with repeated
malfunction reports can be subjected to increased scrutiny
and possibly sanctions, as repeated malfunctions reduce the
credibility of claims of unavoidability. Meaningful sanctions
are needed for failure to report malfunctions and failure to
complete timely repairs.
The states studied vary in malfunction reporting requirements
and agency response to such reports, as described in detail below.
Generally speaking, variations occur in type of malfunctions
-------
-82-
which trigger reporting, time within which reports must be
provided, and contents of required reports. By and large,
agencies ensure the receipt of timely malfunction reports
maintaining that excesses do not constitute a violation if
reported within applicable time limits.
Figure B, taken from the Oregon report, provides a flow
chart of a representative malfunction reporting system, and
Table 4.7 summarizes the malfunction reporting requirements
of the agencies studied.
-------
-83-
Figure B. MALFUNCTION REPORTING
I SOURCE EXPERIENCES)
MALFUNCTION I
I I
I SOURCE REPORTS .TO DEQ I
I O REGIONAL INSPECTOR ORI
I O CENTRAL HQ I
SHORT-TERM
DEQ ACKNOWLEDGES UPSET I
CONDITION: ENCOURAGES
QUICK REMEDY 1
i
(SOURCE DOES NOT REPORT!
I MALFUNCTION I
LONG-TERM
'I I
DEQ BECOMES AWARE OFJ
MALFUNCTION VIA I I
SURVEILANCE I I
OR COMPLAINT I
DEQ REMAINS UNAWARE OF j
MALFUNCTION
I
I
DEQ FOLLOW-UP
BY SURVEILLANCE 1
TO CONFIRM COMPLIANCE I
1
SOURCE REQUESTS I
EXTENSION TO OPERATE I
UNDER UPSET CONDITIONS!
FOR A LIMITED DURATION!
I
=P
IDEQ APPROVES!
I. EXTENSION I
I I
I 1
I SOURCE RETURNS TO I
ICONTROLLED CONDITONSl
I I
I SOURCE FAILS TO RETURN
I TO CONTROLLED OPERATIONS
I WITHIN APPROVED TIME FRAME
I I'
H
I I
COMPLIANCE
NOTICE OF VIOLATION!
(NV) SENT I
NON-COMPLIANCE
I
(FURTHER ENFORCEMENT!
I I
4ALFUNCTION REPORTING REQUIREMENT:
SOURCE MUST REPORT UPSET WITHIN 1 HOUR OF OCCURRENCE
Source: "Excess Emission Program - Final Task C Report for Oregon Department of
Environmental Quality, TRC, 1979.
-------
-84-
Table 4-7
MALFUNCTION REPORTING REOUIRJ-MENTS (for Emissions Exceeding Standards)
f
NUMBER OP REPORTS
Received/Year
Reporting
Required for
Content
Timing: Sources Must
Report
[ CHICAGO
ILL.
CONN.
[ [Excess
1 emissions
|>72 hr.
(expected
(duration
[ cause,
(Duration,
(Remedial
(Action,
j Pertinent
(Info
Notify Agency r'Pratptly"
immediately
by
telegram
Agency Response (Source req'd.
Ito: comply
w/instruc-
jtions?
1 Maintain
(records
Sanction for
failure to report?
BKXJSTON
TEXAS
(TACB)
IOWA
500
Upset (if Upsets
excess
emission
results) &
Maint.
(Cause,
(Remedy,
(Schedule
1
(
10 days
prior to
maint. &
ASAP for
upset
iNbv, State TACB may
1 Order, or (inspect
cease and (exemption
desist (request
1 order
Next
working
day
NEW
JERSEY
* (RAPCA)
1287
Upsets
(RAPCA)1
1 1
•
"Promptly"
(24 hrs.)
(RAPCA)
N. Y.
(REG.VIII)
700
Upsets
[Con- (Excused (Submis-
ference (if RAPCA (sion of
(infor- I conditions 1 maint.
mal) (met (log sheets
No
N.C. ORE.
250-300
Upsets lUpsets &
|& Sched.
1 Maint.
Nature
Cause
SMI \
DIEGO 1
(CA)
-
1 Quarter- 1 Sched. (24 hrs
ly Inaint. (prior
1(24 hrs. Ito
(prior) to jtnaint.
(Malf. (1 hr
(after
(upset
| (Excused
(if timely
(report;
I follow-up
1 surveil-
1 lance;
(extension
1 request
(if >48 hr.
"Little
or no
(enf.
(action..."
N.J. Department of Environmsntal Protection has no raalfuction reporting requirments.
-------
-85-
Connecticut. In Connecticut, a source which experiences,
or is expected to experience, excess emissions for more than
72 hours must report the situation to the Commissioner
"promptly." The source must report cause, duration, remedial
action (taken or planned), and other pertinent information.
An NOV documenting the malfunction is issued in all cases.
If the malfunction is prolonged a State Order is issued and
a schedule is established. The Commissioner has authority
to issue a Cease and Desist Order if the excess emissions
threaten imminent and substantial damage to the environment.
A hearing on such orders must be held within 10 days.
Oregon. In Oregon, scheduled maintenance must be reported
to the DEQ within 24 hours prior to planned shutdown.
Malfunction of control or related facility equipment resulting
in a violation of standards must be reported within one hour
of occurrence. If duration greater than 48 hours is expected,
an extension must be requested from the DEQ director. There
is no record of extension request denial.
Excess emissions do not constitute a violation if reported
within specified time limits. Follow-up surveillance may be
conducted if the malfunction is deemed "important", that is
large scale or long duration emissions, proximity to population
centers, and political sensitivity. Approximately 10 permits
require spare parts and back up controls aimed at reducing
occurrence of malfunctions.
-------
-86-
The DEQ receives 250-300 reports per year, requiring
5-6 hours of agency time for source contact, documentation
and follow-up inspection. DEQ regulations assign malfunction
reporting to specific industry categories and are imposed based
on source size and location. The study noted "little to no
enforcement action if source does not report an upset."
New Jersey. Upset/malfunction reporting is not required
by the New Jersey Bureau of Air Pollution Control. The Bureau
recognizes allowances for start-up/shutdown, clean-up periods,
break-downs and accidential releases as specified in the
regulations. Thus most violations are not excused and the
Bureau receives few voluntary reports.
Many RAPCA's, on the other hand, officially forgive O&M
violations that are promptly reported. The Central Jersey
(CJ) RAPCA received 1287 reports of possible upsets in 1977.
For the CJRAPCA excess emissions are forgiven if:
o reported within 24 hours
o prompt repairs initiated
o no threat to public health
o infrequent occurence if a mechanical breakdown
In cases of State/local conflict, the CJRAPCA applies local
law and the Bureau acquiesces.
Iowa. Sources are required to report excess emissions and
if a trend of non-compliance is indicated penalties can be re-
covered. Excess emissions due to process/control equipment
malfunctions are to be reported to DEQ within the next working
day. There is apparently no penalty for failure to report.
-------
-87-
Sources are required, with "all practical speed" to
correct the problem, reduce the frequency of occurrence, and
minimize the time and amount of excess emissions. Approxi-
mately 500 reports are submitted per year, 10% of which
reportedly originate with DEQ visible emission observations.
The study noted that in the period 1974-1977 two cement plants
submitted 744 and 824 malfunction reports respectively.
Following the malfunction, the DEQ may conduct a very
informal consultation and require a report of causes and
actions and schedules to alleviate the problem.
New York. New York Regions VIII and IX have no formal
reporting system as such but nevertheless receive approximately
700 reports of equipment malfunction per year. Sources with
recurring equipment maintenance problems are requested to
submit maintenance log sheets on a regular basis. This
practice has reportedly been effective in several cases in
reducing the frequency and duration of excess emissions.
Houston. Sources in Texas are required to notify the
TACB as soon as possible after a "major upset" (defined as a
period of excess emissions contravening TACB regulations).
Sources must also report at least 10 days prior to planned
maintenance. The TACB may inspect the source to verify that
steps are taken to limit emissions during maintenance.
Sources may apply for an exemption from violation if the
cause was outside the source's control.
-------
-88-
Chicago. Chicago's malfunction reporting requirement
is contained in "Standard Operating Condition #12 for Operating
Permits". If a source operates in excess of t:he standard
during malfunction, it must immediately notify the agency by
telegram and comply with instructions of the Field Operations
Section office. A requirement to maintain records may also
be imposed.
Regulations provide that sources experiencing malfunctions
"not continue to operate beyond such time as is necessary to
prevent injury to persons or severe damage to equipment or to
provide essential service." The study did not address whether
shutdowns have occured as a result of this requirement.
A single engineer in the field office reviews malfunction
report submissions for a specific source; thus repeated mal-
functions result in source-agency interaction regarding causes
and remedial action.
-------
-89-
4.2.3 Fuel Sample Analysis
The use of low-sulfur fuels is an accepted control strategy
reducing SOX emissions. In achieving these reductions,
many agencies have found that fuel sampling for BTU content
and percent sulfur can serve as an indicator of compliance
status.
Most of the agencies studied have their own fuel sampling
programs. Several, such as New York, depend on the source to
conduct sampling and testing, and furnish reports of results
to the agency. A requirement is generally imposed to keep
records of BTU and percent sulfur content of fuel used through-
out the year. An interesting reported result of the low sulfur
fuel and sampling programs is source policing suppliers by
sampling and suppliers policing themselves. Table 4.8
summarizes study data regarding agency fuel sampling.
In Connecticut some 2500 sources are covered by the
fuel sampling program administered by the Field Operations
Group. Approximately 100 samples, collected in areas of high
S02 or suspected problems, are spot checked annually. The
Connecticut standard is 0.5% sulfur content (dry weight).
About 95% of the sources sampled are found to be in compliance.
Violations result in NOV's in response to which sources/sup-
pliers submit shipment and delivery records for 6 months to
verify fuel delivery. Chronic violations result in referral
for formal enforcement action. Connecticut's fuel sampling
program is outlined in Figure C.
-------
-90-
Table 4-8
KIEL SAMPLING
Nuntoer of Sources
Sampled Per Year
By Whom Sanples
Tbken
Results
(Oornpliance Rate)
cmCflGD
ILL,
OMW.
100
Agency
95%
HUSTON
TEXAS
IOWA
MEW
JERSEY
350
Agency
90%
N.Y.
(RBQ.VIII)
IX
100
Sources and
Suppliers
N.C.
200
CUE.
SAN
EttEOD
CA.
Agency
-------
-91-
Figure C
CONNECTICUT FUEL SAMPLING PROGRAM
'I
I SOURCE OPERATING IN
I HIGH S02 LEVEL AREA)
I
SAMPLE COLLECTED I
BY FIELD INSPECTOR!
! I
I 1
I SAMPLE ANALYZED FOR %s|
|BY STATE HEALTH LABS I
I SAMPLE IN COMPLIANCE!
JW/O + 0.05%s I
JL
I
I
(VARIANCE I
I REQUESTED I
I BY USER |
~l
IVARIANCE |
1 ENDS I
I I
I ' 1
I SAMPLE NOT I
I IN COMPLIANCE I
I
1
I USER & SUPPLIER |
I REFERRED TO I
IECC FOR NOV issuANCEl
I I
1
I NOV ISSUED TO ECC, I
(TIME LIMIT ESTABLISHED!
I I
I
|RECORDS CHECKED |
^OR COMPLAINT %s
IFOR 6 MONTHS |
|FURTHER |
ENFORCEMENT|
ACTION I
I
Source: Excess Emissions Program Final Task C Report for Connecticut
Department of Environmental Protection Compliance Analysis
Study, The Research Corporation of New England (TRC), 1979.
-------
-92-
The New Jersey internal labs tested about 350 oil samples
in 1977. About 10 percent were found to be in violation.
More sources are sampled in regions where RAPCA's conduct
inspections. For violations, administrative orders are
issued specifying compliance dates and sources are generally
reinspected. There are also 4 sources using coal for which
samples are tested at least once per year.
In New York most sampling is done by fuel vendors and
users rather than by the Regional offices. Region IX with 8-
10 sources receives reports on a monthly basis. Approximately
100 samples per year are analyzed. Regional officials feel
that low sulfur fuel enforced by sampling is the most effective
control.
San Diego samples and analyzes incoming oil shipments.
Frequency of sampling is determined by sulfur content (0.5
percent — all shipments tested; 0.2 or less — randomly
tested) .
-------
-93-
4.3 ENFORCEMENT
The following section contains a general discussion of
enforcement mechanisms, based upon the positive, often common
program elements discerned in the State and local agency
reports, as well as an agency-specific description of enforce-
ment procedures. Tables 4-9 (p. 101) and 4-10 (p. 102)
summarize (p. 102) the Agency response to violations and the
sanctions/penalties imposed by the agencies.
Enforcement action is triggered by detection of a violation
of a legal requirement. Such violations may come to the
attention of agency personnel in a number of ways, as discussed
in the previous two sections and listed below:
1 . Agency Activities
o Inspections
o Surveillance
o Stack Tests
2. Complaints
3. Source Self-Monitoring
o Continuous Monitoring
o Malfunction Reporting
o Fuel Sample Analysis
The Inspector is generally the vital initial link in
agency-source interaction. Even with continuous monitoring
and reporting, and malfunction reporting by sources, an
-------
-94-
inspector usually visits the site to confirm a violation
before a citation is issued.
4.3.1 Notice of Violation
The agencies studied employ one of two approaches to
issuing Notices of Violations (NOVs). The inspector may
issue a NOV on the spot, or he may initiate the process by
submitting paperwork to Headquarters where supervisory person-
nel will decide whether an NOV is warranted. In either
event the inspector has considerable discretion, thus for
'minor1 violations the inspector may issue an informal warning
and make no record of the transaction — this is common in
most States. Therefore, inspectors need sufficient expertise
to independently determine severity of violations, and to
protect against being intimidated by claims made by source
personnel.
In the interest of consistency and fair application of
requirements it is important that inspector discretion be
kept within reasonable bounds. Where Inspector discretion is
a recognized practice agencies need criteria for determination
of 'minor' violations and initiation of formal enforcement
actions. None of the agencies studied have set such criteria;
although New Jersey has established criteria to guide exercises
of prosecutional discretion for handling cases after they
are reported by inspectors.
-------
-95-
Potentially important trend information is lost when
inspectors are not requested to keep records of informal
warnings. Furthermore, keeping of records facilitates the
follow-up which should (but does not always) accompany all
enforcement actions including informal warnings.
The NOV serves several functions beyond merely notifying
the source of detection of a violation. Where appropriate,
the NOV specifies a time frame for completion of corrective
action and requires the source to report the cause of the
violation and corrective action to be taken. Where a mal-
function was involved, the NOV usually specifies measures
taken to minimize excess emissions.
A penalty may accompany the NOV, but is usually reserved
for the next step which results when sources fail to comply
with the NOV (these NOV related penalties are generally small,
similar in nature to tickets).
The 'Order1 which follows the NOV is a formal, legally
enforceable document which specifies requirements such as
compliance schedules and progress reports. In the relatively
small number of these more formal actions initiated, the NOV/Order
sequence is reported to be generally sufficient to restore
compliance.
Agencies vary in the use of NOV's. As would be expected,
frequency of use determines the seriousness with which such
mechanisms are viewed. Thus in Connecticut and New Jersey
-------
-96-
the NOV is a routine occurrence while Oregon and Iowa reserve
the NOV for major, chronic, recalcitrant or unresponsive
violators.
Treat of shutdown and permit non-renewal have been used
infrequently as alternatives to NOVs, but are nevertheless
reported as credible tools. Chicago reports effective use of
'sealing1 powers (see p. 120 for discussion).
4.3.2 Sanctions
Agencies also have administrative and judicial mechanisms
for imposition of sanctions if the need arises. These mechanisms
are necessary even if the agency has an explicit policy of
voluntary, cooperative compliance.
4.3.2.1 Administrative Remedies
Limited legal resources, crowded court dockets, and the
potential for protracted and often inconclusive litigation,
have induced most states to rely upon administrative or
quasi-administrative enforcement mechanisms.
In most states the issuance of the NOV, and the first
stages of interaction with the source in which corrective
action plans and activities are elicited, are handled
administratively. Due process protection for sources and
traditional concepts of separation of powers are preserved
through administrative procedures and through judicial appeal
mechanisms after exhaustion of administrative remedies.
-------
-97-
4.3.2.2 Judicial Remedies
Environmental litigation is often complex, depending upon
accurate determination and validation of the nature and extent
of violations. In the enforcement of air pollution control
regulations, the use of judicial remedies follow traditional
law enforcement pathways. In theory, the system works as
follows. An inspector gathers evidence, the evidence is
presented to the appropriate legal branch (city or county
attorney, or state attorney general) which prepares a case
and initiates litigation if negotiations are unsuccessful.
Enforcement supervisory personnel must insure that
inspectors are familiar with the substantive and procedural
elements of obtaining legally sufficient evidence. Legal
personnnel can assist in this process initially by outlining
required case preparation elements and activities; and
subsequently, by providing timely, informative feedback
regarding the adequacy of case preparation efforts. Case
preparation manuals can serve as a permanent repository of
information to assist both enforcement and legal personnel
in performance of their respective functions.
Although certainly necessary, the mere existence of judicial
mechanism is not sufficient to ensure effective law enforcement.
Uncertainty surrounding the nature and extent of violations,
and other factors require that environmental law enforcement
-------
-98-
efforts achieve substantial coordination and integration
between legal and technical functions. A vital element of
integration is timely availability of legal resources. This
involves authority for the agency to contact the legal branch
directly as well as sufficient interest, expertise, and
allocation of resources. For a time San Diego was hampered
in its effort to enforce air pollution laws by the necessity
of obtaining a resolution from the County Board of Supervisors
before initiating a civil action.
Periodic strategy sessions may be used to develop and revise
enforcement policies and priorities. New Jersey's monthly meetings
between legal staff and inspection personnel to discuss future
referrals are a good example.
4.3.3 Description of Nine State Enforcement Systems
Virtually without exception the agencies studied have
adopted a cooperative approach to bringing sources into
compliance. In many agencies "voluntary compliance," or a
"cooperative approach" is an explicit policy. The N.C.
study states that every avenue of cooperation will be pursued
before formal action will be taken or sanctions imposed.
Even the N.J . agency, which purports to have a rigorous
enforcement program, exercises discretion prior to taking
action for minor violations.
One of the more troubling observations is the one made by
several agencies—that detection of violations is a greater
-------
-99-
problem than returning a source to compliance once violation
is detected. These Agencies have pointed out the need for
improved detection technology and strategies.
Table 4.9 summarizes activities undertaken by Agencies
to return violating sources to compliance. Table 4.10 summarizes
the agency actions relating to sanctions. Following the
tables is a brief description of recent actions undertaken
by each State or local agency to enforce compliance.
-------
-100-
Table 4-9
AGENCY REPONSE TO VIOLATIONS
INITIAL VIOLATIONS
1 Informal or Formal
Reponse
Type of Response*
Exceptions to Policy
CONTINUED OR REPEATED
VIOLATIONS
1 Action*
Number of Actions
CHICAGO
ILL.
Informal
1
Office
Hearing
Occassional
Ticketing
Sealing
Order
12 Since
1972
CONN.
Formal
NOV
(800/
1978)
I 1
1 1
State
Order
HOUSTON IOWA
TEXAS
Formal Informal
NCV IWarning
(1824/yr)|and
1 Resolution
1 1
Order
8 (1977)
NOV
for
known
recalci-
trants
only
Order
28
(10/77
to
6/78)
NEW
JERSEY
Formal
AO
(800/yr)
Informal
for
Nuisance
Cases
(Con-
ference)
AO
and/or
CD
AO-800/yr
CO-50/yr
N.Y. N.C. IORE. ISAN
(REG. VIII) (DIEGO
JCALIFDFNIA
Formal Informal
Informal
NOV (65/yr) (Warning (Verbal
land Res- (Warning
lolution (and/or
(Letter
Order
10% of
Violators
NDV
(65/yr)
soc
5 (1978)
24 a 977)
NDV
(204/
1978)
NDI or
Civil
Penal-
ties
19 NDI/yr
24 pen-
alties/
yr.
Formal
NDV
Citation
Infrequently
used
NOV: Notice of Violation
AO : Abatement Order
CD : Consent Order
SOC: Special Order By Consent
NOI: Notice of Intent to Assess Civil Penalties
-------
-101-
Table 4-10
SANCTIONS; ADMINISTRATIVE AND JUDICIAL
1 ADMINSTRA-
| TIVE
1 SANCTIONS
1
1 TYPE
I
1
1 tIMPOSED
I
1
1 AMOUNT
I
1 JUDICIAL
1 SANCTIONS
1 Referrals
l(f)
1
1 Cases/Yr
1 Filed
1 Convictions
Amount of
Fines
CHICAGO
ILLINOIS
Ticket
1st 100-300
2nd 300-500
3rd - 500
r
CONNBCTICOT
Non-
Compliance
Penalty
Few
Infrequent
1
HOUSTON
TEXAS
Civil
Penalty
Typically
$250-$500
12 (1977)
12 (1977)
5
Settled
(1977)
IOWA
Infre-
quent
NEW
JERSEY
NOP/
OPS£
250 NOPS/
yr
Escalation
Scale 3
33 (1978)
4 (1977)
28 (1978)
ICJRAPCA
I 135 Court
leases
1 $15, 000 in
I fines
1(1977)
NEW TORK
(RBS.VIII)
Ticket
NORTH
CAROLINA
Civil
Penalty
Pilot 120 (1975-
Ticketing I 1978)
System |4 (1978)
Infrequent
Average
$250-
$500 4
Infre-
quent '
OREGON
Civil
Penalty
95 (1977)5
24 (1978)
Nat to exceed^
$10,000/day
SAN
DIEGO
CALIFORNIA
Citation
(Rare
$500/Day
6/
31
6/
17
6/
16
6/
$4165
1. No Fines Over $500 Have Been Levied
2. Notice of Prosecution/Offer of Penalty Settlement (Quasi-Administrative)
3. Depending on Frequency and Type of Violation
4. Occassional penalty as high as $1500-$2000.
5. Nearly all penalties for open burning violations.
6. January - October 1978.
-------
-102-
Connecticut. Violations are detected by inspectors of the
Field Operation Group, by the Permits Group, the Enforcement
Control Center (ECC) or by the Monitoring Group. A notice
of violation is initiated with referral to the ECC for
enforcement follow-up. ECC issued about 800 NOV's in 1978.
The NOV includes a short grace period for completion of
remedial action. Failure to comply results in a State Order
(S.O.) which includes a compliance schedule and a progress
report requirement.
The NOV/S.O. approach is generally sufficient to restore
compliance. (An estimated 5-10 S.O.'s per year are for O&M
related activities.) In the small number of cases where a
S.O. does not suffice, the agency takes one of three actions —
if the problem was beyond the control of the source (e.g.,
delayed delivery of equipment) an Amended Order is issued;
the ECC can also impose a civil penalty or refer to the
Attorney General's office.
Connecticut prefers not to refer cases to the Attorney
General, citing as reasons the time and effort involved and
the few injunctions which result from referrals. Development
of the administratively imposed non-compliance penalty was a
partial response to these problems.
An excellent summary of Connecticut1 s program is provided
in Figure D, taken from the Connecticut study.
-------
-103-
Figure D
CONNECTICUT ENFORCEMENT PROCEDURES
(VIOLATIONS DETtX-'rED BY
| FIELD OPERATIONS
1
|o SCHEDULED INSPECTIONS
|o SURVEILLANCE, COMPLAINTS
|o CONTINUDUS MONITORING
jo FUEL SAMPLING
4-5 WEEKS (VARIES
FUEL SAMPLING
WITH NATURE OF
4-6 WEEKS
(NOV INITIATED I
(VIOLATIONS DETECTED BY |
1 PERMITS GROUP |
1 1
|o FAILURE TO COMPLY |
1 WITH PERMIT PROVISIONS 1
|o FAILURE TO APPLY/REAPPLYl
I FOR PERMIT I
INSPECTION)
i
(VIOLATIONS LETECTED BY |
1 ECC GROUP |
1 1
|o MALFUNCTION REPORTING |
|o SPECIAL PROGRAMS/STUDIES I
|o RECORCKEEPING |
1 WEEK TO YEARS
INDV INITIATED I
INOV IN
i ^
-------
-104-
Oregon. Minor violations observed by field staff
result in an informal verbal warning and/or letter with
follow-up surveillance to ensure corrective action. Major,
chronic, or O&M problems result in initiation of an NOV by
the field office.
In 1978, 37 major sources and 167 minor sources received
NOV's requiring them to contact the agency regarding intended
corrective action and time frames. Failure to contact the
agency within the time specified results in a 5-day Warning
Letter or Notice of Intent to Assess Civil Penalties (NOI);
this indicates DEQ intent to assess civil penalties (not to
exceed $10,000 per day) if the source does not establish
contact within 5 days. In 1978, 13 major and 6 minor sources
received NOI's.
A special DEO committee assesses civil penalties.
In 1977, 95 penalties (75 for open burning) were assessed.
In 1978, 10 major and 14 minor (all open burning) sources
received penalties in amounts totaling $8,675 and $3,175
respectively.
Continued recalcitrance results in threats of permit
revocation (no cases have gone beyond the threat stage) or
bringing of a civil suit (none filed to date). A Summary of
Oregon Enforcement activities is contained in Figure E.
-------
-105-
Figure E. OREGON ENFORCEMENT PROCEDURES
SOURCE RESPONSE
I
I VIOLATIONS DETECTED BY
REGIONAL INSPECTOR
o SCHEDULED INSPECTIONS
O SURVEILLANCE COMPLAINTS
I
I
I VERBAL WARNING AND
I FOLLOW-UP SURVEILLANCE|
I I
1 I
COMPLIANCE|
I I
I
NON-COMPLIANCE
I
I NOTICE OF VIOLATION|
I ISSUED f
I . I
T
I
NON-COMPLIANCE
5-DAY- WARNING LETTER |
ISSUED BY REGIONAL I
OPERATIONS I
I
NON-COMPLIANCE
I
I COMPLIANCE SCHEDULE
INEGOTIATED WITH SOURCE
I FOLLOW-UP INSPECTIONS|
I I
95 in 1977
I
1
NO SOURCE RESPONSE
I
ASSESSMENT OF CIVIL I
PENALTIES BY DIRECTOR!
OF DEQ I
I
POTENTIAL REVOCATION OF|
PERMIT OR CIVIL SUITS I
I
I COMPLIANCE I
Source: "Excess Emission Program Final Task C Report for Oregon
Department of Environmental Quality, TRC, 1979.
-------
-106-
New Jeraey. New Jersey's enforcement activities are
described below and summarized in Figure F and Tables 4-11
through 4-13. Approximately 1600 violations per year are
reported by inspectors to the Investigation and Inspection
Section which reviews the documentation to determine whether
a violation has occurred. As a result of this process,
about 200 cases are discarded. Prosecutorial discretion
in handling the remaining cases is reportedly limited by
informal procedures restricting discretion to cases which
meet established criteria.
About 250 Notices of Prosecution (NOP) are issued per year,
accompanied by an Offer of Penalty Settlement (the Bureau has
been authorized to settle claims). An escalating scale of
relatively small penalties is followed, with eventual referral
to the Attorney General. Negotiations are ocassionally con-
ducted to set the amount of the penalty. Smaller penalties are
for such violations as exceeding allowed sulfur contact of fuels
or operating without a valid permit. The largest penalties are
for violations of concentration or mass emission rates, and the
Bureau has reportedly sought larger penalties for cases involving
threats to health or other considerations. The penalty regulations
contain rebate provisions for subsequent exemplarly performance;
however, only about 15% of the penalized sources have applied
for the rebate.
Regulations also contain criteria for determining whether
to issue Administrative Orders or NOP's. About 4% of the
administrative orders and penalty assessments are rescinded,
usually for minor violations or presence of extenuating
circumstances.
-------
-107-
Flgure F
NEK JERSEY ENFORCEMENT PROCEDURES
£",
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jranm inner, m nrj—>
IKMRCC I
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reim itrrrcr. to •nrj
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"I —>|im:isi(*i |_
I I lomnujunr
IwSSmiJ
I TO I
Iranwi. I
. I I |BB-'ISH1M|_
->IAimHisn«Tiw! I I — >lunnp I
lirMUfc ncoja>Lt\ I
— | .
I I
'I -»|SBS^I
I I IcarMEsI
—>|sutmcR irirs FINK |
JAW TBirS TO SIAYJ
I IN COfUmCE I-
I
"''
|TO COTLT I I
is issini UK
IS HfXJWMI I
I— > |ir> w- rwrwmw; IIHJ
I VKHATIOM I JSCI IIIIDn.lNrM I
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|T> I
IAT. I
—>r
MWVLl
nntxr
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Source; "The response to State and Local
Regulations on Emissions to the
Atmosphere", Environmental Law
Institute, Washington, D.C., 1978.
-------
-108-
Table 4-11
NEW JERSEY SUMMARY OF WHICH VIOLATION DETECTION METHODS
INITIATE WHICH TYPES OF VIOLATION DISCOVERIES
TYPE OF
VIOLATION
DISCOVERED
Input
Standard
Opacity
Emissions
Standard
SC5 (Odor)
Open Burning
PTC/CTO
Application1
PTC/CTO
Condition2
Reporting
Requirements
"Pre-Printed"
Admin. Orders ^
Administrative
or Court Orders5
METHOD WHICH INTIATED VIOLATION DETECTION
COMPLAINT
15%
5
80
20
5
5
30%
INSPECTION
WITH
NOTICE
10%
20
20
20
15
10%
WITHOUT
NOTICE
90%
80
70
20
80
65
70
15
95
50%
SELF
REPORT
5%
5
5
5
10%
FILE
CHECK
10%
70%
SOURCE:
NOTES:
"The Response to State and Local Regulations on Emissions
to the Atmosphere," ELI, 1979.
1 . A violation of the requirement to obtain a PTC or CTO when constructing
or operating a new or altered source, pursant to Subchapter 8.
2. A violation of a condition embodied in the PTC and CTOj e.g., operating
the process with the control equipment turned off.
3. A violation of a requirement imposed on a source by the Bureau to submit
a report of its progress in construction, emissions or other such items.
4. A violation of an administrative order issued on a pre-printed form
after an initial violation is detected
5. A violation of a consent court or departmental order.
-------
-iuy-
Table 4-12
NEW JERSEY SUMMARY OF INITIAL ACTIONS TAKEN AND FINAL ACTIONS
NECESSARY TO CORRECT TYPES OF VIOLATIONS
TYPE OF
VIOLATION
DETERMINED
Input
Standard
Opacity
Emissions
Standard
PTC/CTO
APPLICATION3
PTC/CTO
Condition4
Reporting
Requirement5
"Pre-Printed"
Admin. Orders ^
Administrative
of Court Orders'
SC5 (Odor)
Open Burning
TYPE OF INITIAL AND FINAL ENFORCEMENT ACTION TAKEN
INFORMAL ACTION
initial^ |
1 Final!
10%
80%
8 "
100%
10% 1
-
80%
8
90%
ISSUANCE OF NOTICE
OF PROSECUTION
Initial
Final
5%
14%
19%
19%
90%
10%
ISSUANCE OF
ADMINISTRATIVE
ORDER
Initial
1
100%
90%
100%
100%
100%
20%
100%
Final
95%
75%
90%
1
80%
I 1
80%
18%
8%
90%
REFERRAL TO
A/G
Initial I
1
I
100%
Final
Rare
Rare
10%
1%
1
1%
2%
10%
100%
2%
Rare
SOURCE: "The Response to State and Local Regulations on Emissions to the
Atmosphere," ELI, 1979.
*O •
An "initial enforcement action" is what action the Bureau takes first
after detecting a violation; however, such an action is not always
sufficient to compel compliance.
2. A "final enforcement action" is what action the Bureau usually has
to taXe to actually compel compliance. Note that in may cases the
"intial action" is also the "final action," since it compels compliance
with no further action being necessary.
3. A violation of the requirement to obtain a PTC or CTO when constructing
or operating a new or altered source, pusuanct to Subchapter 8.
4. A violation of a condition embodied in the PTC and CTO; e.g., operating
the nrocess with the control equipment turned off.
5. A violation of a requirement imposed on a source by the Bureau to submit
a report of its progress in construction, emissions or other such items.
6. A violation of an order issued on a pre-printed form after an initial
7 I'violaJion^f ^consent court or departmental order.
8*. Rell?y a ™rmal conference - unique to SCS violation processing.
-------
-110-
Table 4-13
NEW JERSEY ENFORCEMENT ACTIONS
(1976-1978)
Enforcement Action
By the DEP*
Administrative Order
Court Order
Notice of Prosecution
Administrative Hearing
Referral to Attorney General
Court Action
1976
679
31
258
2
5
5
Calendar Year
1977
791
15
271
3
39
4
1978
901
26
258
2
33
28
SOURCE: "The Response to State and Local Regulations on
Emissions to the Atmosphere," ELI, 1979.
* The Regional Air Pollution Control Agencies also take enforcement
actions. In 1977 the Central Jersey RAPCA issued 385 notices of
violation, held 46 conferences, and took 135 cases to court,
which resulted in $15,500 in fines. The RAPCAs also refer certain
types of cases to the Bureau for prosecution.
-------
-Ill-
Table 4.14
NEW JERSEY SUMMARY OF ACTIONS TAKEN BY THE ATTORNEY GENERAL
AND THE PERCENT OF CASES RESOLVED BY THOSE ACTIONS
ACTION TAKEN BY
ATTORNEY GENERAL
PERCENT OF TOTAL CASES RESOLVED I
Penalty Cases
Order Cases
Warning Letter
Conference/
Administrative
Hearing
Complaint Issued;
Discovery Proceedings
Trial Conducted
90%
Rare
5%
5%
20%
60
15%
5%
SOURCE: "The Response to State and Local Regulations on Emissions
to the Atmosphere," ELI, 1979.
-------
-112-
About 50 times per year informal conferences are held.
These are cooperative undertakings to improve performance of
sources not in violation but which are not operating optimally.
For harder to prove nuisance type violations approximately
300 "Conference and Conciliation" actions take place, and result in
compliance schedules and enforceable orders. About 50
consent orders for such violations are issued per year.
Early diligence in verifying and prosecuting such violation's
strengthened the Bureau's credibility.
Direct referral to the Attorney General occurs fewer than
5 times per year. These are cases involving threats to public
health or frequent, flagrant violations.
New Jersey's Regional Air Pollution Control Associations
also have a fairly active enforcement program with primary
focus on the nuisance type violations. The CJRAPCA issued
385 NOV's, held 46 conferences, took 135 cases to court and
imposed $15,000 in fines. Process violations are generally
referred to the Bureau for state action.
New Jersey conducts monthly meetings between attorneys
for the AG's office and personnel from the inspection/
investigation section to discuss possible future referrals.
This activity has reportedly reduced case rejections and file
returns.
Prior to filing suit, the Attorney Generals's office
sends a warning letter notifying the source of impending
litigation unless the matter is settled. Where only a penalty
-------
-113-
is involved, 90% of the cases are settled. In case of injunction
or compliance order/ only 20% are settled; however, subsequent
conferences and administrative hearings resolve about 60% of
these cases. Approximately 5% of cases brought eventually
go to trial. See Table 4-14 for a summary of actions
taken by the Attorney General and the percent of cases
resolved by those actins.
N. J.'s RAPCA reported that courts were reluctant to impose
fines for minor violations. As a result the RAPCA does not got
to court until 10-15 summons have been issued.
North Carolina. As previously discussed. North Carolina
favors a cooperative approach. For this reason, inspectors
and source operators frequently resolve violations without
maintaining a record of the incident.
On occasions when the agency initiates "formal" agency
action, a NOV is issued in which the source is generally
requested to submit a proposed control plan within 60-90
days. A more serious action, but one infrequently used,
is issuance of an Abatement Order (A.O.). The A.O. requires
the source to cease emissions by installing equipment, im-
proving operations or by shutting down.
The NOV and request for control plan sometimes initiate
a process which culminates in a Special Order by Consent (SOC).
The SOC embodies, in legally enforceable order form, the
compliance schedule agreed upon by the source and the state.
Schedules for sulfur oxide and particulate must be submitted
to EPA Region IV for approval. Refusal of the source to
enter into a SOC results in unilateral State imposition of a
-------
414-
Figure G
NORTH CAROLINA CIVIL PENALTY PBDCESS
OR REGION
(DETECTS VIOLATIONl
I
I REGIONAL ENdNbiiR I
(RECOMMENDS PENALTY!-*
i
FIELD OPERATION
CHIEF MAKES
REXI*MENDATION
1
S| | TECHNICAL SERVICES |
l-*J CHEIF MAKES ^
1 1 RECOMMENDATION I
i
| AIR QUALITY I
»t SECTION CHEIF 1
(MAKES RECOMMENDATION I
JU
1
ENFOREMN
(LEGAL REVIEW
IPREPARES FINDINQSl
DESION MEMO I
I
I PENALTY I
IEEKEED I |RBO>MEKEED|
IEIRECTOR OF|
ISSUES
I DECISION I
. IREDUCEDI
jPBBg/TYJ j PENALTY I I PENALTY I
lEOTORCEMEOTl
NOTIFIES
SOURCE
ERT LETTER
1
I SOURCE 1
( RESPONDS |
(TO PENALTY|
~T
PAYS
PENALTY
I REQUESTSI (CHALLENGES!
| PENALTY I I FACTS I
I REDUCTION I (OF CASE I
SOURCEt "Pr«lindnary Evaluation of North Carolina's Program to Regulate Air Pollution From
Stationary Sources, "Boov-Allen and PEDCO, 1979.
-------
-115-
Table 4-15
NORTH CAROLINA ENFORCEMENT MECHANISMS:
Frequency of Use FY 1975-1978
MECHANISM
NOVS
ABATEMENT ORDERS
SOCs
SPECIAL ORDERS
WITHOUT CONSENT
CIVIL PENALTY1
CRIMINAL PROCEEDING
1975
243
N/A
0
0
4
0
1976
135
N/A
150
0
10
0
1977
N/A
N/A
24
0
2
0
1978
65
5
7
0
4
0
SOURCE: "Preliminary Evaluation of North Carolina's
Program to Regulate Air Pollution From
Stationary Sources," Booz-Allen and
PEDCO, 1979.
1 Civil penalty data is by calendar year; other data is by
fiscal year.
-------
-116-
Table 4-16
NORTH CAROLINA: FINAL ACTION ON CASES REFERRED TO ENFORCEMENT
FINAL ACTION
Civil penalty
issued
"
Warning letter
sent
SOC signed
Action deferred
No action talcen
Source out of
business
Case open
TOTAL
1975
4 .
0
3
0
4
2
0
13
1976
10
1
0
0
4
0
1
16
1977
r
2
r
i
r
0
r
3
4
0
1
11
1978
4
1
0
1
0
3
9
TOTAL
20
3
3
3
13
2
5
49
SOURCE: "Preliminary Evaluation of North Carolina's
Program to Regulate Air Pollution From
Stationary," Booz-Allen and PEDCO, 1979.
-------
-117-
compliance schedule in a Special Order Without Consent. No such
Orders Without Consent were issued in the years 1975-1978.
Approximately 20% of cases referred to enforcement have re-
sulted in civil penalties. Penalties average $250-$500.
Figure G describes North Carolina's civil penalty process.
Tables 4.15 and 4.16 provide data regarding freguency of
enforcement activity for the years 1975-197B.
Iowa. As previously discussed, the Iowa DEQ relies heavily
on negotiation and voluntary compliance. An NOV is sent only to
those sources who are recalcitrant or unresponsive. Three NOV's
have been issued for O&M related emissions. Since 1975 there
have been 23 formal enforcement actions, and 136 consent orders.
The state approach is reported by the contractor to work well in
achieving and maintaining compliance, due in substantial part
to the technical quality of the state personnel.
Figure H illustrates the operation of DEQ's enforcement
program and Table 4-17 summarizes enforcement actions for Oct.
1977 - June 1979.
Illinois. At one time the Illinois EPA attitude in Chicago
and throughout the State was apparently one of "sue first,
talk later." This approach often proved counterproductive as
sources, faced with the prospect of litigation, applied for and
and received variances from the Pollution Control Board,
thus negating most of the case preparation effort. Another
-------
-118-
Figure H
IOWA ENFORCEMENT PROCEDURES
NONCOMPLIANCE DETECTED BY STATE
o STACK SAMPLING
O SCHEDULED INSPECTIONS
o SURVEILLANCE
O COMPLAINTS
O CONTINUOUS MONITORING
o FAILURE TO COMPLY WITH
PERMIT PROVISIONS OR
REGULATIONS
INONCOMPLIANCE
REPORTED BY
COMPANY
o MALFUNCTION
REPORTING
I
I
I COMPANY NOTIFIED|
IOF NONCOMPLIANCEI
I I
I COMPANY I
JNONRESPONSIVEl
I I
I 1
I COMPANY RESPONSE |
({NEXT WORKING DAY)
I FOR O&M EMISSION |
1
IDEQ REVIEWS STATUS AND!
ATTEMPTS TO NEGOTIATE I
I CORRECTIVE ACTION |
r
r
i
1 NOTICE OF
1 VIOLATION,
I USUALLY SITE VISIT
1
1 1 1
4 i
i i
1 CORRECTIVE ACTION I
I NEGOTIATED |
1 1
1
i
i i
IFOLLOWUP VISITS & —
1 1
1
J
4
i
INO AGREEMENT
1 REACHED
1
j
1
lUSE OF LEGAL
H AUTHORITY TO
1 ACHIEVE
I
I STATE FILES|
I I
SOURCES: "Excess Emissions Program Task C Report on the Iowa State
Department of Environmental Quality - Compliance Analysis
Study," GCA, 1979.
-------
-119-
Table 4.17
SUMMARY OF ENFORCEMENT ACTIONS IN IOWA
FACILITY TYPE
NUMBER OF ORDERS ISSUED
OCTOBER 1977 to June 1979*
Steam Generators
Grain Handling
Ready Mix Concrete
Asphalt Plants
Cement Plants
Chemical Plants
Foundries
Carbide Plant
Alfalfa Dehydrating
5
5
5
4
2
2
2
2
1
*A11 of these orders have resulted in a demonstration of
compliance or have been continued. There have been no
court suits filed as a result^of a failure of the above
source categories to demonstrate compliance.
SOURCE: "Excess Emission Program Task C Report on the Iowa
State Department of Environmental Quality. - Compliance
Analysis Study," GCA, 1979.
-------
-120-
reported problem with this approach was the fact that sources
won more than 90% of suits commenced. lEPA's Enforcement
Division has modified its approach, employing enforcement
conferences before resorting to other mechanisms.
A single field engineer is responsible for a given source.
Actions to be taken as a result of frequent malfunction reports,
etc., are handled on a case-by-case basis. The engineer contacts
the source to discuss the problem, and if necessary, recommends
further action to the Pollution Control Board. A simultaneous
enforcement action may be commenced.
Chicago, Illinois. CDEC performs enforcement function
essentially independent of the IEPA. The IEPA - CDEC interagency
agreement technically limits the CDEC to facilities less
than 100 tons per year; however, complaints and mobile inspector
reports do trigger CDEC enforcement actions against larger
sources. The CDEC enforcement process is summarized in
Figure I.
CDEC activities include assignment of field inspection
teams to construction sites and transmission of information
to the Engineering Service Department for review. The city
has a co-ordinated program whereby an applicant receives all
required permits in one trip. A side benefit is that all
other city inspectors (electrical, plumbing etc.,) help to
-------
-121-
Flgure I
CHICAGO ENFORCEMENT PROCEDURES
IANNUAL |
I INSPECTION I
IMR OONTROLf*-
IPROGRAMS I
REVIEWED I
JBY ENGINEER j
I HEARING I
JOFFICERI-
I dSKi'JLFICATE BY (
(OPERATION ISSUED I
\
(APPROVAL BY
|CC**CSSIpNER
(VIOLATION CITED I
Isy INSPECTOR |
(TICKET ISSUED!
ICERTIFICATE OF I
(OPERATION DENIED!
(OR DELAYED |
I
I
(SOURCE COMPLIES I
"I WITH REGULATION I
APPEAL BOARD!
APPROVAL
if 90 days
or more
(CITIZEN I
(COMPLAINT I
(CALL LOGGED AT |
ICDEC BY DISPATCHERI
(MOBILE INSPECTOR I
(SIGHTS POSSIBLE I
(VIOLATION WHILE I
ION PATROL I
(ROVING INSPECTOR!
(SENT TO SOURCE I
(INSPECTOR CON- I
I FIRMS VIOLATION |
ISOURCE |
I INSPECTED I
(TICKET ISSUED
I BY INSPECTOR
(SOURCE FOUND TO I ISOURCE OUT OF COMPLIANCE| ISOURCE I
I DC* TKf ^V"*»*rw f wk-r^nn I """ ' "" ~~ " ~ • ••••_.. ( __
1
(APPEAL TO COMES-
(lONER FOR PERIOD
I OF GRACE
IAPPEAL DENIED|
~~sr
JSOURCE APPEALS I
|TO APPEAL BOARDI
I
(INSPECTOR ISSUES I
ITICKET |
i
(SOURCE RESPONSE
ITO TICKET
(TICKET IN I
ISOURCE I
IPAYS I
IFINE I
(APPEAL DENIED I
SOURCE: "Description of the Regulatory Process for the Chicago, Illinois Case Study," PES, 1979.
-------
-122-
locate unauthorized construction. The end result of the
permitting process for an air pollution source is a Certificate
of Operation.
Violation of visible emission or process weight
emission standards sometimes results in issuance of a ticket
by the inspector. As part of the annual inspection a review
is made of malfunction reports. If excessive frequency of
malfunction is noted, the Engineering Service Department can
disapprove the Certificate of Operation or request a "proof
of maintenance" (reportedly used infrequently).
Sources whose requests for initial or renewal certificates
are denied are afforded a variety of administrative avenues
and time extensions in which to achieve compliance. Permit
revocation cases result in hearings before the Appeals
Board and the issuance of an order embodying negotiated
solutions. Cases in which sources cannot initially comply
begin with source submission of compliance plans after an
office hearing. If a period greater than 90 days is involved
a variance may be issued by the Appeal Board. Lack of equipment
cases result in "grace periods" approved by Commissioner or
Board. Pines and penalties are waived during this period,
but willful failure to comply results in retroactive imposition,
thus discouraging frivolous applications. In summary, negotiation
of solutions is the primary mechanism, with agreed upon
remedies incorporated in Board orders.
-------
-123-
An installation permit inspection confirms installation
of required equipment, discrepancies can result in permit
revocation. An administrative hearing is held for ' failure
to produce the permit1 or 'failure to conform to specifications',
to determine the basis for non-compliance. After the hearing
the Commissioner may order cessation of work and "seal" the
facility. In such cases an inspector visits the source
daily until the order is lifted. The CDEC used its sealing
powers 12 times since 1971.
Inspectors may issue tickets for violations according
to the following schedule:
First offense $100-300
Second offense $300-500
Third offense $500
No fines over $500 have been imposed. More than 3 offenses
within 180 days is punishable as a misdemeanor with a 6 month
jail term;* however preference for negotiation to achieve
compliance has precluded use of such sanctions. Sources
with 3 or more offenses within 12 months can be called upon
to appear and show cause why the equipment should not be sealed.
Houston, Texas. The Texas Air Control Board has delegated
surveillance and enforcement responsibilities to the DOH.
This delegation reduces but does not eliminate duplication
of effort and sources' confusion. DOH also enforces a municipal
incinerator ordinance. Figure J and Table 4.18 summarize Houston's
Enforcement activities.
-------
-124-
Figure J
HOUSTON ENFORCEMENT PROCEDURES
(INCLUDES NUMBER OF ENFORCEMENT CASES PROCESSED IN 1977)
1 REFERRAL OR 1
j ADDENDUMS 1
llN PREVIOUS YEAR 1 16 I
NOTICE OF VIOLATION
ISSUED 11824*
*
SOURCE MUST
RESPOND IN
10 DAYS
SOURCE RESPONSE
INADEQUATE
*
DISTRICT SUPERVISOR
WORKS WITH SOURCE
TO DEVELOP COMPLIANCE
PLAN
SOURCE RESPONSE
IS INADEQUATE
t
ADMINISTRATIVE
CONFERENCE HELD
WITH DEPARTMENT
OF HEALTH 18
*
INSPECTION TO DETERMINE
COMPANY RESPONSE
TO CONFERENCE |8
*• 1
I SOURCE RESPONSE!
llS ADEQUATE 1
1 SOURCE RESPONSE!
(IS ADEQUATE 1
SOURCE RESPONSE 1 1 SOURCE RESPONSE!
INADEQUATE (8| llS ADEQUATE 10 1
t
LEGAL SURVEILLANCE 1
BEGINS 1 8 1
4
REFERRAL TO CITY 1
ATTORNEY OFFICE |8|
i III
1 CASES REFERRED I I SOURCE TAKES I I NO 1 1 CIVIL 1
1 TO COUNTY D.A. j I ABATEMENT 1 I DISPOSITION) | ACTION I
IFOR CRIMINAL 1 (MEASURES |3 1 1 OF CASE ITI (FILED |2 1
I PROSECUTION Tl2 1 J
4 — i i 4
ICASE SETTLED! ICASE DI SMI SSED 1 1 CASE SETTLED I I NO 1
IFOR $200-500! 1 17 II FOR $2000 111 (DISPOSITION 1
1 FINE |5l 1 OF CASE 111
SOURCE: "Preliminary Evaluation of City of Houston (Texas) Department
of Health's Programs to Regulate Air Pollution from
Stationary Sources, Booz-Allen and PEDCO 1979.
* Of 1824 NOVs issued in 1977, 87 NOVs were for particulate or sulfur
oxide violations with measureable evidence.
-------
-125-
Table 4-18
HOUSTON ENFORCEMENT ACTIONS
(1975 - 1977)
NOTICES OF
VIOLATIONS ISSUED
1975 1976 1977
GENERAL RULES
NUI S ANCES ( RULES )
TRAFFIC HAZARD (RULE 6)
UPSET NOTIFICATION (RULE 7)
MAINTENANCE NOTIFICATION (RULE 8)
OUTDOOR BURNING (RULE 101 .1 )
VISIBLE EMISSION
OPACITY (RULE 103.1)
FLARE (RULE 103.2)
FUGITIVE (RULE 103.3)
TRUCKS, CARS, TRAINS, SHIPS
(RULE 103.4 & 103.5)
PARTI CULATE MATTER (MATERIALS HANDLING,
CONSTRUCTION, ROADS) (RULE 104)
PARTI CULATES (PROPERTY SAMPLES) (RULE 105)
GASES (S02) (PROPERTY SAMPLES) (RULE 201.07)
VOLATILE CARBON COMPOUNDS (REG.V)
FAILURE TO OBTAIN CONSTRUCTION OR
OPERATING PERMIT (RULE 601 )
LOCAL ORDINANCES (72-1915)
OTHER VIOLATIONS (4477-58-4.01)
TOTAL NUMBER OF NOTICES
CITATIONS ISSUED
160
1
13
351
23
12
127
314
124
38
6
224
16
1 ,429
9
143
3
25
206
3
3
108
223
101
33
3
159
119
1 ,129
2
222
7
51
7
43
48
163
381
213
39
5
1
23
144
232
1 ,824
1
SOURCES: "Preliminary Evaluation of the City of Houston, (Texas) Department
of Health1s Programs to Regulate Air Pollution from Stationary
Sources, Booz-Allen and PEDCO, 1979.
-------
-126-
Houston's enforcement program is heavily oriented toward
administrative processing of local complaints. Most NOV's
are issued for nuisance, outdoor burning and fugitive emissions.
NOV's for opacity, stack tests and property line samples which
can be documented account for about 2.5% of the total. Most
problems are corrected after initial contact and NOV issuance,
with no further administrative action by DOH after the source
submits a control plan. In some instances the district supervisor
works with the source to develop an acceptable plan. Increased
surveillance may occur for several weeks after corrective
action is completed.
More severe problems result in administrative conferences.
Eight such conferences were held in 1977 involving management
and higher level DOH officials. Source activities receive
greater scrutiny and a written summary of source abatement
commitments is prepared. 'Legal Surveillance' results when
deemed appropriate (see Surveillance discussion).
The City Legal Department represent DOH in civil cases
filed pursuant to the Texas Clean Air Act. Where necessary,
the legal department refers cases to the County DA for criminal
prosecution pursuant to the Texas criminal misdemeanor statute.
-------
-127-
New York (Region IX). New York's regional offices become
aware of violations by the normal mechanisms: complaints,
surveillance, and inspections. Region IX also receives
about 400 source self-reports per year.
Upon verification of the violation, Region IX places the
source under an order and may require the signing of a consent
agreement. These activities are reported as generally informal
in nature, a phone call being sufficient to resolve the problem.
Figure K provides a flow chart of enforcement procedures for
Region IX. Roughly 10% of the non-compliance situations in
Region IX result in an order.
Theoretically, sources which have been cited undergo
inspection to ensure continual compliance; however, a case-
by-case judgment is frequently made due to the time-consuming
nature of such activities. The threat not to renew permits
is cited as highly effective and frequently used - to the
point that hearing officer orders and court actions are
rarely necessary. No case has even gone to jury trial in
either region VIII or IX.
A pilot ticketing system is currently undergoing evaluation
in Region VIII. An element of the program is matching fines
with the seriousness of the violation and the cost savings of
non-compliance.
-------
-128-
Figure K
NEW YORK - REGION VIII - ENFORCEMENT PROCEDURES
| EXCESS EMISSION I
I COMPLAINT BY, THIRD PARTY I
SAME DAY AS THE COMPLAINT
OR THE FOLLOWING DAY
|COUNTY OFFICE CHECKS TO I
jSEE IF SOURCE ALSO RE- I
jPORTED EXCESS EMISSION I
(INCIDENT
1-3 DAYS
ISOURCE CONTACTED!
ION
IF EMISSION RESULTED I SOURCE INSPECTED
FROM TEMPORARY POWER
OUTAGE OR SOME OTHER
SUCH EXCUSABLE AND IM- „
MEDIATELY CORRECTABLE I INSPECTION REPORT I UPON INSPECTION
EXIGENCY - NO FURTHER jj
ACTION > l
I
i *
IN COMPLIANCE NONCOMPLIANCE
2 WEEKS
1 NOTICE OF VIOLATION I
I REQUEST FOR AN ABATEMENT|
ACTION PLAN I
I
I REVIEW OF ABATEMENT I
I ACTION PLAN AND FOLLOWUPI AS NEEDED
I INSPECTION I
IN COMPLIANCES ' NONCOMPLI ANCE
I REFER TO REGIONAL OFFICE I
FOR. ENFORCEMENT I
Source: "Excess Emission Program, Task C Report on the
New York State Department of Environmental
Conservation", GCA/Technology Division, July 1977.
-------
-129-
San Diego, California. The San Diego Air Pollution
Control District uses a multiple NOV system with an infrequently
used citation authority, as shown in Figure L. The field
activities, enforcement actions, and legal activities of the
San Diego APCD are summarized in Table 4-19 (p. 133).
Originally the APCD used a warning letter/consultation/
conference/referral approach. The warning letter specified
details of the offense(s) and recommended remedies. Referral
for judicial action was a last resort.
Now, after a violation is detected, an NOV is immediately
issued notifying the source that a misdemeanor has occurred
and that potential legal liability exists. Results are
forwarded to the Chief of the Source Enforcement Division
who determines whether immediate referral is appropriate.
Prosecution is not pursued for 1st violations if within 10
days of the NOV the source returns to compliance or applies
for a variance. Variances are obtained from the Air Pollution
Control Hearing Board. Prosecution of cases is delayed
pending the Board's decision. Theoretically the $500/day per
offense fine continues while the Board deliberates, again
discouraging frivolous applications. An emergency variance
may be obtained for vital breakdown conditions and a interim
variance is available for up to 90 days but requires that
the source and APCD develop a compliance schedule.
The trend in the APCD following lack of response to an
NOV is to issue a letter of prosecution and begin a mutual
settlement procedure. The preference is for abatement
-------
-130-
Figure L
SAN DIEGO ENFORCEMENT PROCEDURE
- ORIGINAL PROCEDURE -
IVIQL ATI ON OBSERVED 1
|WARNING LETTER SENT I (DELETED IN 1973)
ITO SOURCE IN VIOLATION I
COMES 1 I
I "SOURCE COMES 1 I DSE ARRANGES AN I
I INTO COMPLIANCE! j OFFICE CONFERENCE W/SOURCE!
RCE COMES I I INITI
I SOURCE COMES I I INITIATE COURT
I INTO COMPLIANCE I IACTION AGAINST SOURCE
- CURRENT PROCEDURE -
[VIOLATION OBSERVED! >M CHIEF OF DSE NOTIFIED!
~ ~~~ | OF VIOLATION I
1
INOTICE OF VIOLATION ISSUEDL
I TO SOURCE IN VIOLATION I
I SOURCE COMES I I SOURCE APPLIES I I INTIATE COURT
JINTO COMPLIANCE I I FOR VARIANCE I I ACTION AGAINST SOURCE
I WITHIN 10 DAYS \
SOURCE* "Description of the Regulatory Process for the
San Diego, California Case Study," PES, 1979.
-------
-131-
programs through the Hearing Board in which a variance is
granted subject to Board imposed conditions.
For sources with ongoing controllable problems the APCD
had petitioned the Board for 5 Abatement Orders, as of January
1979. The order, in the form of an injunction, directs the
source to come into compliance or cease operations. A
mutually agreed compliance schedule must be developed or the
agency unilaterally imposes a schedule.
The basis for issuing NOV ' s in 1978 was reported as
follows:
Visual observation (surveillance) 32%
Source Test 2%
Equipment Observation during Inspection 65%
Complaints ^*
Note in Table 4-19 that until very recently, few violation
cases were referred to counsel and even fewer convictions
resulted. Although litigation is still rare, several ma-jor
changes have occurred. The first was a marXed improvement
in the availabililty of legal resources. Prior to July 1978
the APCD was forced to submit a formal request to the County
Board of Supervisors to use the services of County Counsel to
institute a civil action (only the County Counsel can bring
such actions). This left the APCD with 2 choices, going
through the time-consuming process of submitting a request or
instituting a criminal action. Neither of the choices was
desirable, the former due to reasons of delay and the latter
due to more stringent burdens of proof and judicial reluctance
-------
-132-
to stigmatize businessmen with criminal convictions. Now,
due to a County Board resolution, the APCD can refer cases
directly to the County Attorney.
In addition, about a year and a half ago the District
Attorney's office assigned one attorney to receive all requests
for air pollution case improved operations with prosecution
of 38 of 40 cases referred.
-------
-133-
TABLE 4-19
SAN DIEGO APCD FIELD ACTIVITIES ENFORCEMENT ACTIONS AND LEGAL ACTIONS
CATEGORY
FIELD ACTIVITIES
ENFORCEMENT
INVESTIGATIONS
COMPLIANCE
INSPECTIONS
ANNUAL FORMAL
INSPECTIONS
PERMIT ASSISTANCE
SURVEILLANCE
INVESTIGATION
COMPLAINTS RECEIVED
COMPLAINT
INVESTIGATION
ENFORCEMENT "1
NOTICE TO APPLY
(A/C-PO WARNING)
FIRST NOTICE OF
VIOLATION
SECOND (OR MORE
VIOLATIONS
CITATIONS*
OFFICE CONFERENCES
LEGAL ACTIVITIES
CASES REFERRED TO
COUNSEL
COURT CASES FILED
CONVICTIONS
FINES
FINES SUSPENDED
PRIOR TO
1973
—
—
—
10,655
33,171
1,863
6,257
233
230
45
__
0
5
3
2
$150
—
1973
—
—
—
3,619
15,580
487
0
78
36
__
52
10
6
5
§1 , 450
$400
1974
—
—
—
4,174
18,983
407
1 ,724
r
0
175
69
— —
77
12
13
13
$3,875
$2 , 500
1975
—
87
1,976
2,320
15,654
347
1,439
147
71
— —
26
12
7
2
$50
—
1976
3,053
849
1 ,876
121
9,026
399
1 ,337
«•••
213
151
1
26
24
10
6
$375
$100
1977
2,508
1,078
1,418
295
6,795
415
1,731
1
210
192
5
24
34
10
12
$2,690
$100
CALENDAR
YEAR
1978 (TO OCT)
2,992
910
1,427
37
4,373
358
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PART II:
CONCLUSIONS AND RECOMMENDATIONS
OP THE
OPERATIONS AND MAINTENANCE TASK FORCE
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INTRODUCTION TO PART II
The goal of the Operations and Maintenance Task Force
was to propose an Agency strategy for ensuring the proper
operations and maintenance of air pollution control systems.
In meeting this goal, the Task Force felt that it was important
to understand State and local agency needs, recognizing that
it would be these agencies who will have the primary responsi-
bility for ensuring continuous compliance. Thus, the model
programs and strategy contained in the recommendations section
are based largely on the study of nine agencies and their
programs.
The body of this report describes the programs employed
by nine of the Nations's most effective and well-managed air
pollution control agencies in their efforts to gain compliance
with emission standards. Specifically, the Task Force conducted
this study to:
- identify exemplary air pollution control programs
and practices j and
identify common problems and program needs.
The Task Force is well aware that the sections of this
report describing the agencies' particular programs are not
exhaustive. It is likely that an exclusive study of any
single agency program would yield more information and insight.
Although the agency findings reflect 1978 information, we
understand that the agencies have not drastically changed
their programs or policies since then. We believe that we
have captured the essence of these programs and have fulfilled
the intended purpose of conducting the studies.
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What follows is a comparison of actual agency programs
and practices to those proposed by the Task Force. The
commentary is based on documentation of agency programs
contained in this report, meetings between members of the
Task Force and agency staffs, and the working knowledge of
the Task Force members in the areas of emission standard
setting, measurement and enforcement. This commentary is
meant to highlight exemplary programs, and identify problem
areas common to State and local agencies which could be
addressed by EPA.
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Chapter 5. CONCLUSIONS
5.1 Summary of Conclusions
o The nine agencies studied have the basic programs
needed to attain continuous compliance. However, these
programs currently emphasize initial compliance, and
need to be modified to ensure continuous compliance.
- All of the agencies studied impose general
limitations on source emissions ; yet these
standards do not lend themselves to a ready
determination of continuous compliance.
- Most State and local agencies notify sources
of their emissions requirements through general
public notice; but relying on general notice
does not provide an adequate means of informing
sources of complex requirements, such as those
needed to attain continuous compliance.
- Some agencies use a permit as a means of notifying
sources of their requirements; but even so, the
agencies emphasize initial compliance — failing
to take advantage of the use of permits to impose
O&M requirements.
- All agencies provide for detection of violation
through complaint investigations, surveillance,
inspection and, in some cases, by requiring
malfunction reports. Nevertheless, many continuous
compliance violations remain undetected due to
weaknesses in these detection strategies.
- All agencies have some means of proving violations,
i.e. establishing their occurrence and their
magnitude; however, problems of accuracy, reliability,
and expense plague these techniques.
- All agencies have some system of progressive sanctions
to remedy continuous compliance violations, but these
sanctions are ineffective in preventing and correcting
continuous compliance violations.
o The agencies studied address the continuous compliance
problem in a piecemeal fashion. To solve the problem
each agency needs EPA support to implement a consolidated
continuous compliance strategy.
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5.2 Conclusions
THE NINE AIR POLLUTION CONTROL AGENCIES STUDIED OPERATE THE BASIC
PROGRAMS NEEDED TO ATTAIN CONTINUOUS COMPLIANCE. HOWEVER, THESE
PROGRAMS EMPHASIZE INITIAL COMPLIANCE, AND NEED TO BE MODIFIED
TO ENSURE CONTINUOUS COMPLIANCE.
1. All of the agencies studied impose general limitations
on source emissions; however these standards do not lend
themselves to a ready determination of continuous compliance.
These limitations take the form of emissions standards
contained in regulations, or, less frequently, they take the
form of permit conditions. These complex standards are not
source specific, and it is therefore difficult for the sources
to interpret and compare them to measurable emissions.
For example, an emissions regulation for TSP may state
that an iron melting furnace (of a specified size) may
not emit more than X tons pollutant Per Y tons steel
produced. As the production rate changes so does the
allowable emission rate. Further, as there are no gauges
which continually read in units of tons of pollutant
emitted, neither the source operator nor the agency
inspector can determine if the emissions are in violation
at any point in time.
To ease the problem of non-specific standards, the
Oregon, San Diego and Connecticut agencies are attempting
to make their emission standards more directly measurable
through specifying detailed, source-specific conditions
in their operation permits.
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2. Most state and local agencies notify sources of their
emissions requirements through general public notice; however
relying on general notice does not provide an adequate means
of informing sources of complex requirements such as those
needed to attain continous compliance. For example, most
air pollution control standards contain a general statement
requiring sources to properly operate and maintain control
equipment. O&M standards would be more effective if they
were individually set and negotiated with sources, to account
for the uniqueness of each source-control match.
Some agencies use a Permit to Construct and Permit to
Operate as a means of notifying sources of their requirements;
but even so/ they emphasize initial compliance, overlooking
provisions for continuous compliance. Permits to construct
are issued with little consideration of features such as
materials of construction to ensure continued performance,
or measures to allow ready determination of level of
performance. Permits to Operate are often issued with
overlong renewal periods (often exceeding four years), thus
hampering the ability of agencies to adjust requirements.
Connecticut provides an instructive exception by
adjusting its permit renewal periods based upon criteria
related to the reliability of the control system and its
potential impact should it fail. Further, San Diego,
Oregon, and Connecticut are now writing permit conditions
specifically aimed at improving continuous compliance.
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3. All agencies provide for detection of a violation of
emission standards through complaint investigations,
surveillance, inspections and, in some cases, by requiring
malfunction reporting. Nevertheless, many continuous
compliance violations remain undetected .due to weaknesses
in these detection strategies. In fact, a few of the
agencies studied reported that the detection of violations
is a larger problem than enforcement against violators.
We found, for instance, that Chicago and Houston are
the only two agencies that rountinely provide timely
investigations in response to complaints. Other agencies
allow a day or more to pass before the source is investi-
gated. By that time the violation is usually corrected
and forgotten before documentation can be established
for use in future enforcement cases.
Surveillance programs are also weak components of
detection strategies — for two basic reasons. First,
frequency of surveillance is a direct function of geographic
proximity to the agency; and second, surveillance activities
(like complaints) are generally limited to the detection
of visible or odorous emissions.
Exceptions include Houston, where legal surveillance
activities may include taking property line samples;
Chicago, where the agency has employed the use of surveil-
lance cameras atop buildings across the city to give
total surveillance coverage of the city; and New York,
where the agency targets surveillance against those
sources suspected of non-compliance.
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The effectiveness of inspection programs to detect
violations is also limited by a few factors. Seven of
the agencies studied give advanced notice of up-coming
inspections, or schedule inspections on such a regular
basis they are easily anticipated by sources and violations
are easily corrected. Further/ agencies typically
inspect major sources only once per year, and therefore
it is likely that continuous compliance violations
(which occur an average of 12 times/ year and last 24
hours) will go unnoticed by inspectors. Iowa, on the
other hand, successfully uses unnannounced, irregularly
scheduled inspections.
In regard to malfunction reporting programs, we found
that many agencies either have no such program, or they
rarely employ their authority to require malfunction reports.
The agencies that do have such programs fail to routinely
apply sanctions against sources in violation of the reporting
requirements. As a result, most sources do not report break-
downs in their control equipment and most of the agencies
know little of incidents of excess emissions.
4. All of the agencies studied have some means of proving
violations, i.e. establishing their occurrence and their
magnitude; however, problems of accuracy, reliability,^
and expense plague these techniques. Agencies use engineering
evaluations, stack tests, and continuous monitors to determine
the amount of pollution emitted from the sources they regulate.
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Engineering evaluations, the most commonly used
technique for compliance determination, are dependent
upon the skills of the inspector or engineer; the effec-
tiveness of the evaluations is severely threatened by
high turnover rates, low pay, lack of training and
guidance manuals, and the nonexistence of instack and
portable monitors to determine compliance. North Carolina
has begun to remedy the situation by holding regular
inspector training programs to equip new inspectors and
refresh those on board.
Stack tests, for the most part, are inappropriate for
continuous compliance evaluations because they require
notice to the source well in advance of the test, they only
determine emissions levels over the period during which
the test is conducted, and they are very expensive. In
addition, conditions under which stack tests are conducted
do not provide a test for reasonable worst case operations
to assure compliance over the source's full operating range.
Note that Oregon, in an attempt to overcome some of these
problems, has employed the technique of intermittent
sampling through abbreviated less expensive stack tests.
Continuous monitoring of emissions and of their surro-
gates is limited by the availability of technology, and
is contingent upon quality control and quality assurance
measures designed into these techniques. Few agencies
have* made it a practice to require sources to install the
emissions monitors that are available because the monitors
are expensive and, until recently, unreliable. As a
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result, continuous emission monitoring plays a very
minor role in enforcement activities. By far the largest
percentage of continuous monitors currently in use
measure opacity, and S02 for large utility boilers.
Connecticut has taken the lead in this area by requiring
all of its large fuel burners (>5mm BTU/Hr.) to install
opacity monitors.
Parameter monitors, which monitor surrogates of
emissions (e.g.pressure drop and temperature of control
equipment), are less expensive and more reliable than
continuous emissions monitors. However, their use is
currently limited by the lack of conversion factors to
translate their readings into emissions levels.
5. All agencies have a system of progressive sanctions,
but these sanctions are ineffective in preventing and
correcting continuous compliance violations. Most
agencies use informal warnings, Notices of Violation, or
Abatement Orders as their principal response to violations.
The less formal of these actions result in limited source
responsiveness. In addition, the problems of appropriate-
ness, tracking and documentation that agencies experience
in applying these sanctions for initial compliance
violations are compounded in cases of continuous compliance
violations. Therefore, these sanctions provide little
deterrent and remedial effect for continuous compliance
>
violations.
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More formal sanctions, such as civil actions and
financial penalties, often involve judicial action where
procedures are cumbersome. For the few cases that are
referred for legal action, the result is frequently
lengthy delays and postponements of 2-3 years before
settlement. Further, penalties finally imposed by the
courts have all too often been much smaller than the
cost savings through delaying or avoiding compliance.
Penalties, on the average, range between $200 and $500.
Therefore, these sanctions provide little deterent
effect for continuous compliance violations.
Agencies attempting to address these problems include
New Jersey and Oregon with their systems of small admini-
stratively imposed fines—Connecticut with its system of
administrative penalties set equal to the cost avoided by
the source, and Chicago with its regularly scheduled Air
Pollution Court.
NONE OF THE AGENCIES STUDIED BIAS A CONSOLIDATED STRATEGY
FOR ENSURING CONTINUOUS COMPLIANCE.
Although control of continuous compliance violations
is the responsibility of the State and local air pollution
control agencies, none of the agencies studied has defined
a comprehensive strategy aimed specifically at keeping
sources in continuous compliance. Instead, the agencies
focus on the initial compliance problem and address the
continuous compliance problem in a piecemeal fashion.
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There is a need to integrate activities such as stack
sampling, inspections, malfunction reporting, and permits
to ensure a comprehensive agency approach in requiring
sources to properly operate and maintain their control
systems. For example, inspection schedulers should
have the benefit of source malfunction reporting histories,
inspectors should have the benefit of previous stack test
data, and permit reviewers should have the benefit of
inspectors' reports.
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Chapter 6 - RECOMMENDATIONS
6.1 Summary of Proposed Continuous Compliance Strategy
o We recommend the establishment of a continuous compliance
strategy in which each State and local air pollution control
agency will:
- Target a few sources of concern based on size, location,
industry and control system category, malfunction reports
and compliance history.
- Establish continually measurable, source-specific operating
standards for these targeted sources.
- Employ operating permit programs or enforcement authorities
to make these requirements enforceable.
- Inspect sources for compliance with these specific operating
standards.
- Enforce against violators of the emission limits and
operating standards.
o To address the design based causes of excess emissions,
we recommend that the continuous compliance strategy be
supplemented by:
Orienting new source design reviews towards continuous
compliance
- Developing minimal industry design standards in the
private sector.
o We recommend EPA support the State and local activities
by developing:
- Criteria for targeting
- performance measures for O&M
- Operating permit and NOE programs
- Malfunction programs
- Administrative Fines program
- Design Review Guidance
- Industry Design Standards
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6.2 Proposed Continuous Compliance Strategy
This section describes each element of the proposed
continuous compliance strategy. It is important at this point
^
to recognize that State and local control agencies must
implement proposed strategy. They have the lead responsi-
bility for program implementation under the Clean Air Act,
are physically closer to and have more interactions with
sources, and have the vast majority of available resources.
But, as we saw in the problem assessment, their capabilities
are limited and their programs need improvement and reorienta-
tion towards continuous compliance. In addition, we feel
that it is unrealistic to expect 257 State and local agencies
to each individually undertake the technology and program
development and applied research efforts needed to improve
and expand the focus of their programs.
Therefore we recommend that EPA's continuous compliance
program focus on developing, supporting, and improving those
program components and tools needed by States and localities
to implement the continuous compliance strategy. Since many
of these program components already exist at the State and
local levels, we will be building on existing programs.
The first six program elements we recommend, and
discuss below, are aimed at supporting the continuous compliance
strategy for existing sources. These program elements are
steps to continuous compliance and are shown below in
Figure M. The last two program elements described are aimed
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at the design based problems that result in excess emissions,
Each program element will be discussed in terms of its role
in the recommended strategy, State implementation and EPA
actions needed to support State efforts.
Figure M — STEPS TO CONTINUOUS COMPLIANCE
II. Apply Standards
to Targeted
Sources by a
Permit or Notice
of Expectation
I. Establish Source
Specific Operating
Standards (Measurable
and Enforceable)
V. Follow Through on
Recalcitrant Sources
III. Monitor and Inspect
for Emissions or
Operating Standards
Violations
IV. Apply Quick
Administrative
Sanctions
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STEP I OF RECOMMENDED STRATEGY -
ESTABLISH SOURCE SPECIFIC OPERATING STANDARDS;
Control agencies must adopt source specific operating
standards that they can easily monitor for continuous compliance
to supplement the existing general emissions limits. These
standards will complement the existing SIP emissions limits;
they will not change or replace them. Where the technology
is available the operating standard could simply be an upper
limit emission rate as measured by a continuous emission
monitor. In cases where actual emissions cannot be easily
measured, these standards would consist of:
o control equipment parameter limits (e.g., minimum
pressure drops on a scrubber to ensure adequate
collection efficiency),
o process parameter limits (e.g., maximum process weight
limits to prevent overloading of control equipment),
o operating procedures for control equipment (e.g.,
turn preheaters on 1 hour prior to equipment start-up),
and
o maintenance procedures for control equipment (e.g.,
replace bags once a year).
Limits on specific parameters will have to be tailored on a
source-by-source basis for the targeted sources. This is
likely to be true even for two sources with the same process
and type of control equipment, because their sizing and
individual design would probably be different. Other require-
ments may be applicable across whole classes, e.g., requirements
for preheating control equipment or requirements for certain
parameters to be monitored.
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PROPOSED EPA ACTION TO SUPPORT STEP I; EPA should provide
States with guidance for developing these operating standards
on an industry-by-industry basis. The guidance would include:
o specification of process/ emissions, and control
parameters to be monitored by the sources;
o operational procedures and routine and preventive
maintenance activities;
o quality assurance, instrumentation, siting, record-
keeping, and reporting options to assure the
availability and usefulness of the data needed to
judge compliance with the standards;
o methods to determine reasonable ranges for these
operation and maintenance variables at individual
sources, and;
o data on the relationships between different sets of
operating standards and the emission standards they
approximate.
STEP II OF RECOMMENDED STRATEGY, PART I -
APPLY STANDARDS TO TARGETED SOURCESt
We recommend that operating standards be applied on a
targeted basis. We realize that immediate application of
operating standards to all sources would overwhelm existing
State and local programs. Furthermore, our findings show
that 18% of the sources account for 82% of the documented
emissions excesses.
Sources to be targeted would be identified based on
selection criteria that reflect the agencies' environmental
priorities. The number of sources to be covered and the
detail of requirements to be applied would be chosen in a
manner which anticipates the expected level of agency
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aurveillance and enforcement. The number of sources with
conditions would increase as resources allow. The detail
of individual requirements would be modified as needed to
assure individual source compliance.
PROPOSED EPA ACTION TO SUPPORT STEP lit EPA should provide
the States with guidance on how to plan and target their
programs. This will be particularly important at the outset
of the continuous compliance initiative, for resource con-
straints will limit the number of sources each agency can
focus on. Targeting will provide a mechanism so that agencies
will be able to achieve the maximum benefit of enforcement
programs at minimum cost.
States need guidance on how to determine which sources
should be targeted for application of operating standards and
how many sources should be targeted each year. EPA can
provide this type of guidance by preparation of methodologies
for the States to use in targeting sources. These could be
based on: general environmental concerns (size, location,
pollutant), individual source compliance histories, past
performance of different industrial and control equipment
categories (as determined by our problem assessment), and
anticipated agency resources for continuous compliance.
STEP II OF RECOMMENDED STRATEGY, PART 2 -
APPLY STANDARDS THROUGH PERMIT OR NOE PROGRAMS
The operation and maintenance standards discussed above
have no value unless they can be applied as enforceable
requirements on targeted sources. We feel that a State
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operatlng permit program is the most desirable long-term
approach to imposing these requirements and specifying acceptable
limits of performance on those sources identified in the
targeting process. Alternatively, given the limitations on,
or unavailability of, existing operating permit programs in
some States, we recognize that some agencies may choose to
start implementing the strategy using their enforcement
authorities to apply requirements.
PROPOSED EPA ACTION TO SUPPORT STEP lit EPA should develop
and support programs to apply operation and maintenance
standards. For States that have an operating permit program
this effort would include:
o preparing model authorizing legislation and implementing
regulations,
o designing sample application and permit forms
and suggesting procedures for their use,
o preparing guidelines for permit modificiation, amendment
and renewal,
o suggesting administratively efficient appeal
procedures,
o suggesting staffing patterns, and
o developing computerized permit handling and
management systems.
For those agencies that do not have a functioning permit
program, we recommend the use of a Notice of Expectation (NOB).
An NOE would be a precursor to the current Notice of Violation
(NOV) process. We found that the unappealing aspect of the NOV
process is its reactive nature. The agency must wait for a
violation to occur and detect it before it can move on to
the first enforcement step, the NOV. Tne NOV defines and
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interprets the standard violated and may provide a minimal
grace period to achieve compliance. In contrast, the NOE
will inform the targeted sources of their compliance require-
ments prior to a violation. The NOE will:
o be issued to targeted sources after opportunity for
source input,
o set down directly measurable or documented requirements
which ensure compliance with emission standards, and
o make clear that failure to comply with the conditions
specified would lead to future sanctions.
For States that choose to use their enforcement program
to apply O&M standards, EPA should develop a model Notice of
Expectation program to assist them. This model would include:
o interpretations of existing authorities providing
for such a program,
o processes by which source input could be sought,
o suggested formats for requirements,
o use of Notices of Expectation in enforcement actions,
and
o processes for modifying or amending a source's
conditions.
STEP III OF RECOMMENDED STRATEGY, PART I -
MONITOR AND INSPECT FOR VIOLATIONS:
We recommend that monitoring and inspection programs be
planned to focus on targeted sources. This is necessary if
we want these sources to conscientiously follow applicable
operating standards. Monitoring of targeted sources will be
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easier when monitors and continuous records of performance
are available to agency inspectors. We recommend that these
be supplemented by inspection guides and audit procedures
designed to overcome technical limitations of available
personnel.
PROPOSED EPA ACTION TO SUPPORT STEP III; We recommend that
EPA develop surveillance and audit instruments and techniques
to verify source compliance with operating standards. These
would include:
o portable instruments to measure emissions or
emission surrogates,
o guidelines on how to take advantage of all the
information available at the source and the
agency to assess continuing compliance,
o procedures to allow stack testing for compliance
to be conducted at the extremes of the allowed
operating standards, and
o inspector checklists with associated compliance
criteria to be prepared for industry and control
equipment categories.
STEP III OF RECOMMENDED STRATEGY, PART 2 -
IMPROVED MALFUNCTION REPORTING PROGRAMS
We recommend that improved malfunction reporting programs
be developed. These programs would include industry-by-industry
analyses of source performance. Using this data, control
agencies could judge the acceptability of a given source's
performance.
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PROPOSED EPA ACTION TO SUPPORT STEP III; We recommend that
EPA initiate efforts to develop a model malfunction program.
By doing this, we could use the model program to help make
i
State and local malfunction programs effective elements of a
continuous compliance initiative.
The Model Malfunction Program would have to:
o define what is to be reported, by whom, and when,
o include methods to detect malfunctions,
o penalize failures to report or keep records, and
o provide packaged data handling and analysis systems.
EPA should further support this program by aggregating
industry-wide data which could be fed back to State and local
programs.
STEP IV OF RECOMMENDED STRATEGY -
APPLY QUICK ADMINISTRATIVE SANCTIONS
We recommend that states adopt administrative fine
programs. Administrative fine cases can be quickly initiated.
These fines are particularly applicable for the minor or
procedural violations likely to occur in a continuous com-
pliance program. Administrative fines can be backed by the
more powerful enforcement tools now available — court
injunctions and non-compliance penalties. The effectiveness
of these tools will be enhanced through improvements in
administrative procedures, inspection procedures, and source
performance data that will result in better documentation
of violations and reduced enforcement delays.
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PROPOSED EPA ACTION TO SUPPORT STEP IV; We recommend that
EPA develop an Administrative Fine Program for control agency
use at the Federal, State and local level. As States and
local agencies focus on continuous compliance they are
increasingly going to find themselves dealing with small or
procedural violations (e.g., failure to keep records) which
may be indicative of larger emissions violations but which
current enforcement tools cannot readily attack. Given that
agencies have problems in court even when sources fail to
install control equipment, control agencies may be hesitant
to act against sources that fail to comply with minor or
procedural requirements.
An Administrative Fine Program would be analogous to
a parking ticket program, or EPA's unleaded fuels enforcement
program. The program would consist of two basic elements:
o Source Notification — This would cite the require-
ment violated, specify the applicable fine ($25 to
$1,000), and notify the source of its right to appeal
o An Administrative Appeals Process — This would
be a formal mechanism established within the control
agency structure using hearing examiners.
Model program development by EPA would include:
o authorizing legislation (with supporting arguments),
o procedures for an administrative appeals process;
o sample fine schedules and rationales, and
o legal defenses to be presented in the first test
cases.
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STEP V OF RECOMMENDED STRATEGY -
FOLLOW THROUGH ON RECALCITRANT SOURCES:
We recommend that States adopt the policy of concentrating
on recalcitrant sources to prevent the deteriorating effect
these sources have on levels of general compliance. With the
adoption of the standard setting, compliance monitoring, and
enforcement strategies recommended above, the job of detection,
proof, and remedy of emission violations will become much
easier. However, if State agencies are to have effective
enforcement against recalcitrants they will have to follow
through on their enforcement related activities. They will
have to:
o continue applying escalating sanctions until the
recalcitrant complies,
o conduct more frequent and thorough inspections of
recalcitrants,
o give priority to administrative hearings involving
recalcitrants, and
o amend permits or notices to adjust performance
measures, and possibly amend regulations to close
loopholes found in the course of an enforcement
action.
EPA ACTION TO SUPPORT STEP Vt As this step in the strategy
is primarily one of States adopting a policy, the .action EPA
intends to take is to support State efforts. EPA wills
o continue to develop monitoring technology and to
improve its reliability,
o supply experts to give testimony in particularly
troublesome cases, and
o back State enforcement actions with Federal
enforcement actions, in cases of persistant
recalcitrance.
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TWO RECOMMENDATIONS TO SUPPLEMENT THE STRATEGY
1. IMPROVE DESIGN REVIEW OF CONTROL EQUIPMENT; States must
fully utilize the leverage they have over new sources to
require that maintainability, operability and reliability
be designed into control equipment. Our contractors'
studies have shown that although all States conduct
design reviews, they do so only for the purpose of initial
compliance. As a result, there is no effort to encourage
sources to build in needed access for maintenance, provide
for monitoring capabilities, or prepare for malfunctions.
PROPOSED EPA ACTION: EPA should provide guidance on how to
review control equipment design for continuous compliance
capabilities. The guidance could include suggested criteria for:
o design (e.g. limits on undersizing and bypasses, and
inclusion of access ports for inspection and maintenance),
o fabrication (e.g., specifications on materials of
construction),
o installation (e.g., requirements to locate the
equipment so it can be serviced), and
o monitoring (e.g. requirements for certain types of
monitoring and record keeping for selected control
systems).
2. DEVELOP MINIMAL INDUSTRY STANDARDS: We recommend the
development of minimal industry standards for the design,
fabrication, and maintenance of pollution control equipment
to assist in alleviating problems commonly identified
with ineffective equipment design. Currently, a source
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which purchases control equipment is unable to identify
specifications for the acceptable design of the control
equipment. Thus, for example, the source has no basis
for specifying adequate materials, instrumentation, com-
ponent life times, or acceptance tests. Vendors, in
addition, find that competition forces them to concentrate
design efforts on meeting initial compliance requirements;
those items needed only for continuing compliance take
on a lower priority. Minimal industry standards for control
equipment can be developed to fill many of these gaps.
These standards could eventually minimize the need for the
separate EPA design review guidance discussed above.
PROPOSED EPA ACTION: We recommend that EPA actively pursue
the development of Industry Design Standards. Mechanisms
exist in the private sector to develop these standards. For
example, by working through the American Society for Testing
(ASTM), EPA would be utilizing the private sector to provide
sorely needed standards. ASTM's standard-setting process
rests on its authority to convene a meeting of all parties
interested in control equipment standards — EPA, vendors,
sources, and consultants. The parties then negotiate out
the standards following established ASTM procedures.
To date, a panel of experts including equipment vendors,
users and regulators has convened to discuss the proposal
of minimal industry standards for design and maintenance of
control equipment. The panel agreed that the proposal is
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desirable, and has recommended several areas where there is
potential for the development of such standards in the immediate
future. Initial research in this area was provided in the
report "Feasibility of Establishing Voluntary Standards for the
Air Pollution Control Equipment Industry" (PEDCO Environmental,
Inc.; June 1980) .
6.3 Proposed Application of the Strategy
- A Case Study
Under the continuous compliance strategy, a large source
such as a 100 ton per year steel furnace with a baghouse
would be targeted for attention. This source would be issued
a Permit to Operate or a Notice of Expectation which would
include tailored operating and maintenance standards as
developed by EPA. For example, O&M standards for a baghouse
might include pressure drop and temperature ranges for the
baghouse, and frequency of bag inspection and replacement.
To inspect the source to determine compliance status,
the control agency would send out inspectors unannounced
at staggered intervals. The inspectors would be equipped
with information on the source compliance history and
guidelines on how to use the information (e.g., the number
of acceptance malfunction incidents for that industry).
Checklists with associated compliance criteria for the control
equipment and portable instruments to measure emissions
surrogates would be available to the inspector. Detection of
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violations would be increased as each agency requires sources
to report any malfunctions of its control equipment.
In the case where the inspector uncovered a violation,
the agency would initiate an enforcement action by applying
the appropriate sanction based on the severity of violation,
e.g., small administrative fines for the first few minor
violations, escalating to civil suits and noncompliance
penalties if the violations are not permanently corrected.
If the source is determined to be a recalcitrant the
agency can seek recourse through escalation of penalties,
and increasing surveillance of the source to uncover transient
violations. Finally, the agency would amend its regulations
and the source's permit (or NOE) to close any loopholes.
•US. GOVERNMENT PRINTING OFFICE: 1981 341-082/239 1-3
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