Volume 4


Guidance on NESHAP Asbestos Standards

FEB 25 1962. /‘ q
SUBJECT: Guidance on the NESHAP Asbestos
FROM: Kathleen M. Bennett
Assistant Adxninistra 1 ’ir, Noise and Radiation
TO: Directors, Air & Waste Manageutent Divisions
Regions I—IV, VI—VIXI, X
Directors, Air Management Divisions
Regions V andjx
The purpose of this memorandum is to offer guidance on two
aspects of the NESHAP asbestos standard for which clarification
has been requested. The fi.rst aspect_ç ncern& , .the .. app1icabi1ity_
of the standard with regard t s Iã ’ing operations as specified in
40 CFR 61.22(e). The second aspect of_the 4fl ar&Js.s.
1 rtfT âtion of what constitute ’s ’àThituinirtous or, ,resinous binder
forertcapsulation of asbestos fibers during spraying operatiort .
Since this guidance is in response to two general questions, I
would like to emphasize that specific questions concerning
spraying operations may still need to be addressed on a
case—by—case basis.
As this standard requires in 40 CFR S61.22(e):
There shall be no visible emissions to the outside
air from the spray—on application of materials
containing more than 1 percent asbestos, on a dry
weight basis, used on equipment and machinery,
except Lvhere an air—cleaning procedure (561.23) is
to be used]. -
The g. ncy .amended_S61.22(e) on .lunel9,..1978 ._(43 FR 26372)
to clarify which spraying operations re subject to the standard.
Because the Agency originally did not anticipate that any
application other than asbestos—containing insulation and
fireproof ing wo 9 ld be major sources of asbestos emissions, this
revision of th.stBndard was necessary to extend the coverage of
the asbestos spraying provisions. T eaaendmentB require, that
spraying of all materials which contain more than 1 percent
asbestos be subject to the provisions unless the asbestos fibers
are encapsulated in a bituminous or resinous binder and are not
friable after drying. In responding to comment, the Agency cited
exampIes of the bituminous or resinous asbestos—containing
coatings; examples are roofing compounds, waterproofing or

insulation exposed to weather, automobile undercoatings and
industrial maintenance coatings. Except for this exemption of
spraying operations using a bituminous or resinous binder, all
spraying operations with wore than 1 percent asbestos rnu t comply
with 561.22(e).
The second aspect of the asbestos standard to be c] erified is
what constitutes a bituminous or resinous binder. The r’equest for
guidance on this item asked about a list of different
encapsulation compounds examined for friability by
Dr. Robert Sayers. This list of, compounds is the result of work
contracted by the: Office of Toxic Substances for its school study.
The compounds were examined fot the purpose of coating walls and
ceilings which contain asbestos; this coating would be applied to
structural members already in place. They are not used for
encapsulation within the meaning of our regulations.
The compounds do not contain the asbestos, but instead act as
a sealant to cover asbestos where it is already present. If there
is question as to whether a product used for encapsulation in the
spraying operation is bituminous or resinous the question should
be referred to headquarter8 for review.
If you have additional questions on the spraying provisions
of the asbestos standard, please contact Ann Eastham of my staff
at 382—2876.

Guidance on Determination of Asbestos
Content of Friable Materials

t: 1 7
SUBJECT: Guidance on Determination of Asbestos
Content of Friab1 Materials
Kathleen H. Bennett, Assistant Administrator’
for Air, Noise and Radiation
Directors, Air and Waste tianagement Divisions
Regions 1—IV, Yl—Vill, X
Directors, Air Management Divisions,
Regions V and IX
The National Emission Standard for Hazardous Air Pollutants
(NESHAPS) for asbestos covers the operations of spraying, and
demolition and renovation with associated waste disposal, If a
friable (easily crumbled) material cont.ainlng more than one percent
asbestos is processed. The lack of a promulgated method to
evaluate the asbestos content of a friable material against this
‘one percent asbestos content test has been Identified as en
Impediment to enforcement of the NESHAPS for asbestos.
- It Is noted that the Standard Is presently the subject of a
complete reevaluation aiming at approxImately October 1984 pro-
Mulgation (for additional information contact )ohn Copeland In
OAQPS at FTS 629—5595). Although this reevaluation Is incomplete,
there Is a likelihood that the revised NESHAPS will Include an
explicit methodology for the determination of asbestos content In
Until the analytical methodology Is designated by regulation,
the asbestos content of materials subject to the ‘one percent
asbestos content test’ should be determined by use of the
methodology described In the EPA publication, Bulk Sample Analysis
for Asbestos Content: Evaluation of the Tentative Method , released
by the Environmental Monitoring Systems Laboratory and Office of
Pesticides and Toxic Substances In 1982, as EPA Publication, EPA —
600/4—82-021. The basic analytical technique described therein Is
a variation 0 f polarized light microscopy which allows for a
quantitative .stlmate of the weight percentage of asbestos In a
sample. X—Ray diffraction Is suggested but only as a supportlve’
method. While this general approach to asbestos quantification has
been recommended for years to EPA enforcement personnel, the
referenced document provides an explicit standardization of sample
r.parat1on and asbestos quantification. This document, and others
r lst ng to asbestos sampling, analysl; and sources of aeasuremeflt
v rf bl11ty, are available from the regional asbeste$SoordlnatOt s
i’ sóc1ated with the Office of Toxic Substances’ •ffq t O.1dtflt1f1
asbestos In school buildings.

— _ —
Although the Tnethodology to quantify the asbestos content of
saq les is directly transferrable from the school asbestos program
to the LSHAPS proçjrain, it should be emphasized that the strategies
to locate and sarçle asbestos may be distinct between the prograrig.
The school prograr as described in EPA guidance, shesto.
Contcining Materials in School Cuildinga, Part 1 , is oriented to
ider 4 tiiy asbestos material which is presently friable , whereas
co plianc. with the ! ESliAPS requires that sawjiling incl id.
materials which are not presently friable but which maybe degraded
to.releaee asbestos fibers during the process of renovation or
de ôlftion. A thorou jh bacicground documentation of r ethods to
locate and sample asbesto. in structures scheduled for demolition
or renovation, not. now available, will likely be developed during
the co rehenaivc Standard revision,

Injunctive Relief in Asbestos Demolition
and Renovation Cases
0711 0185

ØtP4i -
_____ WASHINGTON, D.C. 20460
J(JI 0 O 5
SUB3ECT: Injunctive Relief in Asbestos Demolition and
Renovation Cases
FROM: Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division
Edward E. Reich, Director
Stationary Source Compliance Division
TO: Addressees
This memorandum sets forth a policy regarding injunctions
to enforce the National Emission Standard for Asbestos against
demolition and renovation sources. This policy will apply to
all pending and future civil actions for violations of these
The asbestos standards, 40 C.F.R. 561.140 et seq. ,
apply to both the party performing a demolition3r renovation
(usually a contractor) and the owner of the subject facility.
See the preamble to the repromulgation of the regulations, 49
Fed. Req. 13658, 13659 (April 5, 1984). The asbestos strategy
document issued on April 6, 1984 sets forth guidance for
determining when to include the facility owner as a defendant
in a civil action to enforce these standards. Facility owners
should generally be included as members of the regulated
community to ensure that they hire qualified contractors to
remove asbestos properly. Only where the owner has acted
responsibly, for example, by hiring a reputable contractor
and attempting to monitor or supervise the contractor’s
performance, hou] .d the Agency exercise discretion not to sue
the owner.

In almost all civil actions to enforce asbestos regulatLon
against demolition and renovation Sources, the action is
filed after the violations have occurred.* Injunctions are
therefore dir.ctsd at future demolition and renovation activLty.
Injunctive relief should be sought against contractors, since
they are likely to be handling asbestos again in the ordinary
course of business, An in3unction against future violations
in a court order or consent decree vests the court with con-
tinuing jurisdiction until the termination data of the decree
to enforce the NESHAP requirements. The prospect of a contempt
action for future violations may serve as a more effective
deterrent than would otherwis, exist.
Facility owners are situated differently, since they are
not ordinarily in the business of asbestos removal. In
determining whether to seek an injunction, th. Agency should
consider th. potential for future violations during the life
of the decree. Injunctions should b. sought against facility
owners if the demolition-or renovation which was the subject
of the lawsuit is part of an ongoing series of demolition or
renovation projects, e.g., a program of asbestos removal from
buildings within a school district, or if th. facility owner
plans further projects involving triable asbestos. If these
factors are not present, an injunction is not necessary.
Injunctive relief need not be limited to merely a coxmnand
to comply with the regulations. Equitabl, relief should be
fashioned to try to prevent, at a minimum, recurrence of the
violations alleged in the complaint. If, for example, a
defendant gave incomplete notification of a demolition project,
the Agency could seek to enjoin that party to use a specific
form in sub nitting asbestos notifications. If the facility
owner hired as the lowest bidder a contractor unqualified to
do asbestos work, we may wish to enjoin the owner to address
NESKAP complianc, in all bid specifications for jobs involving
asbestos removal. It is not possible to provide comprehensive
guidance on the form of injunctive relief to be sought in all
cases, but the specifics of an injunction can be worked out
among th. litigation team as the case develops.
Questions regarding this policy should be directed to
Elliott Gilberg of the Air Enforcement Division at FTS 382—2864.
t lf a civil action is filed for an ongoing violation,
injunctive relief should be sought against all defendants, to
afford the greatest chance of effectuating immediate compliance.

Regional Counsils
Regions I—x
Air Management Division Dir.ctors
Regions I, III, V, and IX
Air and Waste Management Division Directors
Regions II and Vt
Air and Toxics Division Directors
Regions VII, VIII, and X
Air, Pesticides, and Toxics Management Division Director
Region IV
Regional Enforcement Contacts
Regions I—X
cc: David Buente, Acting Chief
Environmental Enforcement Section
Department of Justice

Procedures for Pre -Referral Settlement of Asbestos
Demolition and RenocatiOn Cases
NOTE: May still utilize model complaint and consent
decree; remainder has been partially superseded by
04113188 memorandum entitled “Process for Conducting
Pre -Referral Settlements Negotiations on Civil Judicial
Enforcement Cases.”

45 4 11 01
S 2 8 I T
SUBJECT: Procedures for Pre-Referra]. Settlement of Asbestos
Demolition and Renovation Cases
FROM; Thomas L. Adams, Jr. \-...
Assistant Administrator for Enforcement
and Compliance Monitoring
J. Craig Potter -J G4 )
Assistant Administrator
for Air and Radiation
TO: See Below
We appreciate your active development of asbestos de o1itior
and renovation cases for litigation. To reinforce the litigacio- .
program, we are establishing procedures designed to expand your
options for addressing the large ntber of violating asbestos
demolition and renovation Sources. These procedures should enable
you, in many instances, to resolve a violation quickly and to
obtain a civil penalty without a major commitment of resources.
Sources which violate the National ission Standard for
Asbestos require enforcement action by EPA or a delegated State
agenry. A large ni ber of federal court actions have been filed
against asbestos sources, particularly since the issuance of the
asbestos enforcement strategy on April 6, 1984. Nearly one-third
of all new Clean Air Act cases referred to the Department of
Justice in the last two fiscal years have involved the asbestos
regulations. These cases deal almost exclusively with demolitions
and renovations, the most prevalent sources of asbestos emissions.
Notwithstanding this effort, the vast majority of asbestos
demolition and renovation violations inevitably are addressed
without judicial enforcement. EPA and delegated State agencies
typically find violations at over 1000 sites a year, of whtch

about 5% become the subject of judicial. enforcement. The rest
are handled through issuance of a finding or notice of violation
or an administrative order. Although some State agencies have
administrative penalty authority, nearly all of these actions are
taken without assessment of any penalties.
To help you maintain or increase the high level of judicial.
enforcement without placing an undue strain on resources, we hope
to facilitate negotiation of a judicial consent decree prior to
referral of a matter for filing in court. By adhering to these
procedures, you may enter into pre-referra]. negotiations with a
high degree of confidence that settlements will be approved by
the Assistant Administrator for OECM and the Assistant Attorney
General for Land and Natural Resources. tf negotiations are
successful, you will be able to refer a “pre-settled” case to the
Depar nent of Justice (DOJ) for the simultaneous filing of a
complaint and lodging of a consent decree in the appropriate
district court.
After selecting a particular matter to try to resolve prior
to case referral, you should take the following steps prior to
initiating negotiations:
1) Develop a Regional position on a bottom-line civil pene.L:y
settlement amount in accordance with the asbestos demolition an
renovation civil penalty policy, issued on February 8, 1985.
2) Obtain concurrence in the bottom-line penalty and othe:
settlement terms from OECM and DOJ. The Region should forward
its recommendation to the Associate Enforcement Counsel in the
Air Enforcement Division (AED), as well as to the appropriate
Assistant Chief of the Envirot nental Enforcement Section at DOJ.
AED will forward a copy of the recommendation to the Stationary
Source Compliance Division in accordance with established proce-
dures for consultation. The recommendation should include a
brief description of the matter, including a discussion of any
prior violations and enforcement history, and should be accompanied
by a copy of the inspection report and any other doc entation of
violations, and a work sheet showing the calculation of the penalty
settlement figure. The basis for adjusents of the preliminary
deterrence owit (e of benefit and gravity components) must be
explained, financial information supporting a penalty
reduction biii on ability to pay.
AED and the Assistant Chief at DOJ will indicate their
concurrence or non-concurrence with the proposed action within 15
working days of receipt of the materials. Once a consensus has
been reached, the Region may begin negotiations with the prospec-
tive defendants. The Region may fully negotiate a settlement,

- —3—
subject to final approval, without further consultation with AED
and DOJ so long as the negotiated penalty is at least as much as
the bottom line which has been established. Reductions in the
minimt settlement ount can only be made with the concurrence
of AED• and DOJ.
If negotiations are successful, please have the prospective
defendants execute a consent decree. A model consent decree is
attached and may be used as a basis for settlement without con-
sultation with OECM or DOJ. Compromises of substantive provisions
in the model decree made during the course of negotiations must
be cleared with OECN and DOJ.
The Region must forward the original decree, once signed
by the company, to EPA Headquarters for the signature of the
Assistant Administrator for Enforcement and Compliance Monitoring.
The Region sho 4d also refer direccty to the Department of Juat ce,
with a copy to OECM, an abbreviated litigation report, including
a draft complaint, and should indicate that the complaint can be
filed upon receipt of the signed consent decree from EPA. A
model complaint and an outline of an abbreviated litigation
report are attached. The model litigation report is consistent
with the “Model Litigation Report Outline and Guidance” (GM-48)
January 30, 1986.
If a settlement in principle is not reached within 60 days
after you initiate negotiations, the Region should develop a
referral to DOJ for litigation. In such instance, the Region
snould prepare a full litigation report, including a descript .c:.
of the contacts between EPA and the prospective defendants.
In cases in which some but not all prospective defendants
are willing to settle, you should follow the guidance in the
asbestos civil penalty policy regarding apportionment of the
penalty among multiple defendants. If you successfully negotiate
with some parties, a consent decree with those parties should be
handled as described above and the matter should be referred to
DOJ for litigation against the remaining parties.
The success of this effort will depend to a great ext nt on
adherence to the civil penalty policy and to the model consent
decree. Although the model decree provisions are intended as
guidance and not as requirements, the Region should consult with
OECM and DOJ about any significant departures from the model
provisions before making commitments regarding them. The Region
may generally negotiate indeperident]. y of AED and DOJ if it stays
within the bounds of the model and the bottom line penalty figure.
All consent decrees must still be signed by the AA for OEcN and
the Assistant Attorney General, who retain approval authority.
Therefore, the Region should continue to make appropriate caveats
in their settlement discussions.

- -4-
We are instituting these procedures on a trial basis. We
will reevaluate the progrem in approximately one year and determine
if any modifications are needed.
Questions regarding this matter should be directed to Elliott
Gilberg of the Air Enforcement Division at FTS 382-2817.
Attacl ents
Regional Admtn-istrators
Regions I-X
Regional Counsels
Regions I-X
Air and Waste Management Division Director
Region. II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Managen ent Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
CC: John S. Seitz, Director
Stationary Source Compliance Division
David Buenre, Chief
Envirornnental Enforcement Section
Deparent of Justice
Sco:t Fulton, Assistant Chief
Enviroi ental Enforcement Section
Depar .nt of Justice

Model Abbreviated Litigation Report
Asbestos Demolition/Renovation Cases
I. Cover Page
A. Region, statute involved (Clean Air Act) , judicial.
B. Name and address of defendants
C. Name and address of facility demolished or renovated
D. Regional contacts (program/legal)
E. Stamp date Region refers ‘eporc
It. Table of, Contents
III. Description of Case
A. Indication chat case has been pre-settled and that
complaint should be filed concurrently with Lodging of
consent decree
B. Brief description of d olished or renovated fac:lit--
and of each defendant, including state of Lncorpor&t c-
and principal place of business, agent for service of
process, legal counsel (if any), and identity of defen-
dants by role, e.g. , owner of facility, primary denol-
tion contractor, subcontractor for asbestos removal,
C. Identity of other potential defendants who are not parties
to consent decree
D. Brief description of alleged violations, with citations to
inspection report if useful, including dates and durac on
of violation
E. Reason violations cited in inspection report are not
included (if applicable)

IV. Statutory Bases of Referral
A. Applicable statutes and cross-media coordination (e. ,
if asbestos waste material, requires cleanup)
B. Enforce enc authority; jurisdiction and venue
V. Enforcement History of Defendant and Pre-referra].
A. Chronology of contacts with defendants regarding
violations which are subject of consent decree, including
administrative orders and findings of violations
B. S mary of pre-referral negotiations
C. Contacts with defendant by State or local agencies and
actions taken; indication of whether program is delegated
t o State and, if so, why EPA is taking enforcement
action, e.g. , State request, inadequate State penalty
D. Prior Enforcement History of Defendants
Discussion of any pr-ior enforcement against any defendant
by EPA or delegated State or local agency, if known
Indication of sources consulted for information - e.g .
CDS, national contractor registry, internal Regional.
tracking system
VI. Injunctive Relief
Summary of injunctive relief provisions in consent decree
VII. Civil Penalties
Indication of civil penalty provision in consent decree
(penalty worksheet should be an attact ent to litigation
Basis for adjus ents in preliminary deterrence amount
(or refer to worksheet if discussed there)
VIII. Major Issues
Discussion of issues of national or precedential significance

IX. Significance of Referral
Justification for referral, e.g. , Agency priority, Regional
initiative, previous violations by defendant
X. Attachments
A. Index to attachments
B. Draft complaint
C. Signed consent decree
D. Doc entation of violations - inspection report, etc.
E. Settlement penalty worksheet
F. Financial information if penalty reduced based on
ability to pay

v. )
and )
The United States of America, by and through its undersigned
attorneys, by authority of the Attorney Genera]. of the United
States and at the request of the Administrator of the United
States Environmental Protection Agency (“EPA”) , alleges as folLc .-:
1. This is a civil action against Defendants Amalgamacea
Property Owners, Inc., and XYZ Demolition Contractors, Inc. for
injunctive relief and civil penalties pursuant to Section 113(b)
of the Clean Air Act (the “Act”) , 42 U.S.C. S7413(b) , for violatio- s
by defendants of the National issions Standards for Hazardous
A .r Pollutants (“NESHAP”) for asbestos, promulgated under Sections
112 and 114 of the Act, 42 U.S.C. §57412 and 7414, codified at 40
C.F.R Part 61, Subpart M.
2. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. §5 1331, 1345, and 1355, and
Section 113(b) of the Act, 42 U.S.C. §7413(b).

3. Venue is proper in this judicial district under Section
113(b) of the Act, 42 U.S.C. §7413(b), because the violations
occurred in this district [ and Defendants have their principal
places of business in this district.]
4. Notice,of the commencement of this action has been given
to the State of Louisiana Department of Enviro enta1 Quality as
required by 42 U.S.C.57413(b).
5. Defendant Amalgamated Pro erty Owners, Inc., (APO) is a
corporation organized under the laws of the State of Delaware.
APO is authorized to do business in the State of Louisiana. APO
owns the facility where the violations took place.
6. Defendant XYZ Demolition Contractors,• Inc. (XYZ) is a
corporation organized under the laws of the State of Louisiana.
Its principal place of business is Shreveport, Louisiana. XYZ is
engaged in the business of demolition and renovation of build ngs
and demolished the facility where the violations took place.
7. Defendants each were, at all times relevant hereto, an
“owner or operator” of a demolition operation as that term is
defined in Sections 111(a)(5) and 112(a)(3) of the Act, 42 U.S.C.
§ 7411(a)(5) and 7412(a)(3), and 40 C.F.R. §61.02 and 61 .141.
8. Each of the Defendants is a “person” within the meaning
of Section 302 of the Clean Air Act, 42 U.S.C. §7602(e).

9. Section 112(b) of the Act / 2 U.S.C. i7412(b), requires
the Administrator of EPA (the “Administrator”) to publish a list
of air pollutants that he determines are hazardous (“hazardous
air pollutants”) and Co prescribe an ission standard for each
such poLli tanC. The .e eni.sion standards are known a. the National
issions Standards for Hazardous Air Pollutants (“NESHAP”).
10. Section 114(a) of the Act 42 U.S.C. 17416(a), authorizes
the Administrator CO require any person who owns or operates any
emission source or who is subject to any provision of the Act to
provide thformation to the Administrator for the purpose of
determining whether any person Li in violation of the Act or to
carry out any provision of the Act. (Appropriate if alleging a
notice violation.1
11. Pursuantto Section 112(b) of the Act, 42 U.S.C. 17412(b)’
the AdministratOr designated asbestos as a hazardous air pollutant
and promulgated the asbestos NESHAP. The asbestos NESHAP includes
regulations governing the issLon, handling and disposal of
asbestos during d olitton and renovation of a bsstos .contathiflg
12. Pursuant to Sections 112 and 114, the Administrator has
promulgated requtrasents that the owner or operator of subject
dasolition or renovation operations provide written notice prior
to commencing the rk.
13. 40 C.Y.R. 161.141 defines “dssol .itton” as “the wrecking
or taking out of any load-supporting structural nasber of a
facility together with any related handling operations.”

14. 40 C.F.R §61.145(a) states that 40 C.F.R. §S61.146 and
61.147, apply, with exceptions not relevant to this action, Co
each owner or operator of a demolition operation if the ainour t of
friable asbestos materials in a facility being demolished is at
least 80 linear meters (260 linear feet) on pipes or at least 15
square meters (160 square feet) on othe’r facility components.
15. 40 C.F.R §61.146 requires each owner or operator of a
demolition operation where there is the regulated amount of
asbestos to provide the Administrator of EPA with written noti-
fication of intention to demolish or renovate, setting forth
specified information, at least 10 days prior to the commencement
of the operation. Timely, complete, and accurate notices of
demolition operations permit EPA to conduct efficient, unannounced
inspections to ensure that work practice standards to prevent
emissions of asbestos are being met. Such notices are particularly
important due to the short duration of most demolition operatj -.s.
[ Lf EPA has delegated NESHAPS program to State, and if that
delegation indicates chat notice is to be given to the State
than EPA, add explanatory ij.
16. 40 C.F.R §61.147, in relevant part, requires each owner
or operator to comply with certain work practices to prevent
emission of particulate asbestos material to the outside air.
17. 40 C.F ,R. §61.152(b) requires each owner or operator to
“discharge no visible emissions to the Outside air during the
collection, processing (including incineration), packaging,
transporting or deposition of any asbestos-containing waste
material generated by the source . • .“
18. Section 112(c) of the Clean Air Act, 42 U.S.C. §7412(c)
prohibits the emission of any air pollutant to which a NESHAP
applies, from any stationary source, in violation of such NESHAP.
Noncompliance with a NESHAP is a violation of Section 112(c) of
the Act.

19. At some time prior to March 17, 1987, Defendant APO
hired Defendant XYZ to demolish a scotch tape store located at
1000 Main Street, Plain Dealing, Louisiana (“the facility”).
20. On or about March 17, 1987, Defendants engaged in
demolition activities at the facility. Said activities involved
the demolition of a building containing friable asbestos material
as defined in 40 C.F.R. §61.141.
21. The b xilding being demolished contained a quantity of
friable asbestos material in excess of 80 linear meters on pipes
or 15 square meters on other facility components, and therefore
the operation was subject to the asbestos NESHAP, 40 C.FeR.
§61.140 et q.
22. Paragraphs 1 through 21 are realleged and incorporated
herein by reference.
23. Defendants failed to provide prior written notice of
intention to . emolLsh the facility, in violation of 40 CF.R.
§61.146 and Sections 112(c) and 114(a)(1)(B) of the Clean Air
Act, 42 U.S.C. §7412(c) and S7414(a)(1)(3).
- 24. Paragraphs 1 through 21 are real].eged and incorporated
herein by reference.

25. On or about March 17, 1987, Defendants failed to remove
friable aabeito materials from the facility before dismantling
or wrecking activities began, in violation of 40 C.F,R 161 . 1 47(a)
and Section 112(c) and Ce) of the Clean Air Act, 42 U.S.C. 5 7412(c)
and (e).
26. Paragraphs 1 through 21 are real].eged arid incorporated
herein by reference.
27. Defendant, did not ensure that the friable asbestos
material remained wet until collected for disposal, in violation
of 40 C.F.R. 561.147(e) and Section 112(c) and Ce) of the Clean
Air Act, 42 U.S.C. 57412(c) and (e).
28. Paragraphs 1 through 21 are incorporated herein by
29. Defendant. discharged visible smissions to the outside
air during the collection, processing, packaging, transporting,
or deposition of asbestos.containing waste material generated at
the facility. The defendants failed to use one of the disposal
methods specified in 40 C.F.R 5152(b) (1), (2), or (3), thereby
violating 40 C.F.R. 1152(b) and Section 112(c) and (e) of the
Act, 42 U.S.C. 57412(c) and (e).
30. Section 113(b) of the Clean Air Act, 42 U.S.C. 57413(b)
authorizes the Administrator of EPA to co encs a civil action
for injunctive relief, or for the assessment of a civil penalty

of not more than $25,000 per day of violation, or for both,
whenever any person violates Section 112(c), (e), and 114(a)(1)(B)
of the Clean Air Act, 42 U.S.C. 57412(c), (e), and 57414(a)(1)(3).
31. Unless restrained by an Order of this Court, Defendants
may continue to violate the Clean Air Act, 42 U.S.C. 57401 ec
and the asbestos NESMA.P, 40 C.F.R. Part 61, subpart M.
WHEREFORE, plaintiff, United States of America, respectfully
prays that this Court:
a. join each of the de t fendantg from further violations of
the Clean Air Act and the aabestos NESHAP, 40 C.F.R. Part 61;
b. Assess civil penalties of $25,000 for each day of each
violation by each defendant for violations of EPA’s regulations
and the Clean Air Act;
c. Award plaintiff its costs and disbura ents in this
action; and
d. Grant such other and further relief as this Court may
de just and proper.
Respectfully submitted,
Assistant Attorney General
Land and Natural Resources Division
U.S. D.parent of Justice
Washington, D.C. 20530

Plaintiff, )
v. )
INC , and )
INC., )
Defendants )
Plaintiff, United States of America, on behalf of the United
States Envirorentat Protection Agency (“EPA”), having filed a
Complaint alleging violations of the National. ! isston Standard
for Hazardous Air Pollutants (“NESMAP”) for asbestos, codified at
40 C.F.R. 561 .140 et ! • ‘ and the Clean Air Act, 42 U.S.C. 57401
at , and requesting permanent injunctive relief and civil
And Defendants having duly filed an Answer denying the claims
of the plaintiff; (if appropriate]
And Plaintiff and Defendants having agreed that settL ent of
this action is in the public interest and that entry of this
Consent Decree without further litigation is the most appropriate
means of resolving this action, avoiding protracted litigation
costs and expenses;

And Plaintiff and Defendants having moved this Court Co enter
thie ConsencDecr.s, subject to the provisions of 28 C.F.R. S50 ,7;
NOW THEREFORE, before the taking of any testimony, upon the
pleadings, vithout adjudication of any issue of fact or law, and
with no finding or admission of liability against or by Defendants,
and upon consent of th. parties to this Consent Decree, it is
hereby Ordered, Adjudged, and Decreed as follows:
This Court has jurisdiction over th. subject matter of this
act ion under 28 U.S.C. 1S1331, 1345, and 1355, and 42 U.S.C.
S7413(b) and over the parties consenting to this Consent Decree.
Venue is proper in this Court. The Complaint states a claim upon
which relief may be granted against Defendants.
A. “Defendants” shall mean Amalgamated Property Owners,
Inc., and XYZ D olirion Contractors, Inc.
B. “Plaintiff” shall mean the United States of America and
the United States Enviror.ntal Protection Agency.
C. Terms used in this Consent Decree which are defined in
42 U.S.C. 57412(a), 42 U.S.C. 17602, 40 C.F.R. 161.02, and 40
C.F.R. 161.141 shall have the meanings contained therein.

A. The undersigned representatives of each party o this
Consent Decree certifies that he or she is fully authorized by
each party whom he or she represent, to enter into the terms arid
conditions of this Decree, and to execute and legally bind that
party to it.
B. The provisions of this Consent Decree shall apply to and
be binding upon the Defendants, as well, as their officers,,
directors, agents, servants, employ..., successors, and assigns,
and all persons, firm. and corporations having notice of this
Consent Decree and who are, or will be, acting pursuant to this
Consent Decree, or on behalf of, in concert with or in participa-
tion with the Defendant to this action in furtherance of this
C. The provisions of this Consent Decree shall apply to all
of Defendant APO’s facilities in all states, territories, and
possessions of the United States of America.
D. The provisions of this Consent Decree shall apply to all.
of Defendant XyZ ’s d o1jtjons or renovation, in all states,
territories,and possessions of the United States of America.
E. Defendants shall condition any and all contracts for
demolition. or renovations subject to this Decree during its
effectiv, period on compliance with th. terms of this Decree.

A. Defendants shall hereafter comply with the requirements
of the National issio Standards for Hazardous Air Pollutants
(NESHAP) for asbestos in 40 C.F.R 161.140 et j . Defendant.
shall submit written notification for demolition or renovation
operations to be postmarked or delivered at least ten (10) days
before each demolition or renovation begins if the emount of
asbestos is as stated in 40 C.F.R 161.145(a), or at least twenty
(20) days before each demolition or renovation begins if the
amount of asbestos is as stated in 40 C.F..R. 161.145(b).
B. In the case of an emergency renovation as defined in 40
C.F.R. 161.141, Defendants shall provide written notice to the
appropriate EPA regional offic. and the appropriate delegated
state or local air pollution control agency as early as possible
prior to the commencement of any renovation operation involving
asbestos. (Optional]
C. Defendant XYZ shall, on and after the date of entry of
the Consent Decree, implement the office procedures set forth in
Attachment 1 to this Consent Decree to ensure compliance with the
notice requirements for demolition and renovation operations
subject to the asbesto, regulations, and shall use the notificacLon
format set forth as Attachments 2 arid 3 to comply with this
Consent Decree. (Optional, but suggested if there have been
notice violations, See Attachments 1-3 of PC&J decree, attached
as Exhibit 3, as aodified,J
D. All notifications required by this Consent Decree shall
be sent by certified mail or hand delivery to the appropriate EPA
Regional office and the appropriate delegated state or local air
pollution control agency. Defendants shall maintain records of
said notifications together with proof of mailing by certified
mail for the duration of this Decree.

—5— -
E. This Consent Decree in no way affects 1) the Defendant’s
responsibility to comply with any State, Federal or local laws or
regulation, or any Order by the Court, including Compliance with
all applicable NESMAPS requirements; and 2) enforcement of any
such NESMAP requirements made applicable by reason of any revision
of the Clean Air Act and its implementj regulations.
(Optional provision,. Sections i-ut, “Notification”
“Asbestos Control Progr ”, and “Asbestos Training Progrem”,
attached, are recommended as targets for settlement with concrac..
core where appropriate, such a. multipl. violations or situations
in which the contractor has a larg n ber of work. crews and
inadequate centralized management of them.]
Defendant, shall pay a total civil penalty of $ ( p _ enalcy in
accord with penalty policy) . Said payment shall be in full
satisfaction of Plaintiff’s claims against defendants for the
violation alleged in the Complaint in this action. Payment shall
be made by cashier’, or certified check payable to “Treasurer of
the United States of America” and tendered within 30 days after
final entry of this Decree to the United States Attorney for the
Middle District of Louisiana, (Address]. Defendants shall send a
copy of the check to the Office of Regional Counsel (Address),
and to the Land and Natural Resources Division, U.S. Deparent
of Justice [ Address]. Civil penalty payments under this decree
are not tax deductible.
(Optional provisions. Section. tV-Vt attached are
recommended if it La necessary to provid. for an installment
schedule for payment of civil, penalties. An installment approach
is appropriate only if defendants demonstrate chat a l p si.
payment is financially infeasible.]

-6 ’ .
[ Optional provision. Section vi i attached, way be a useful
negotiating tool against contractor. which do busines, with the
Federal goverr ent. However, the Off ice of Inspector General,
Suspension and Debarment Branch (FTS 475-3960) should be consulted
prior to making any. coients regarding suspension or debarment
[ At a should apply to violations of specific injunctive
relief, such as training progr or asbestos control progr .)
A. Defendant XYZ shall pay stipulatsd penalties of $______
per day per violation of any provision of Sections ____ of this
Consent Decree.
B. All payments of stipulated penalties shall be made
within thirty (30) days of the date of noncompliance by cashiers’s
or certified check wade payable to the “Treasurer of the United
States” and wailed to the United States Attorney [ Address] District
of Louisiana. A copy of the letter forwarding such check, together
with a brief description of the noncompliance, shall be mailed to
the Office of Regional Coims.l, [ Address] and to the Land and
Natural Resources Division, U.S. Department of Justic..

C. Nothing contained herein shall be construed to prevent
or li jt the right. of the plaintiff to obtain any other remedy,
sanction, or relief wttich may be available to it by virtue of
Defendant’s failure to comply with this Consent Decree, the Clean
Air Act, or the asbestos NE$RAp.
[ Optional - may be inserted if demanded by Defendants. Sectior
VU! attached is recommended.]
This Consent Decree shall, terminate 3 years from the date of
its entry, provided the Defendant ha. complied wit’h its terms,
including the payment of any accrued stipulated penalties. The
United States shall have the right to seek extension of this
period in the event of any violation of the Decree. The Court
will retain jurisdiction over this matter to enforce the provi-
sions of this Decree.
Each party consents to entry of this Consent Decree, subject
to the public notice and comment requirements of 28 C.F.R. 150.7.
Each party shall bear its own costs.

For Plaintiff United States of America:
Assistant Attorney General
Land and Natural Resource. Division
United States Department of Justice
Assistant Administrator for
Enforcement and Compliance Monitoring
United States Enviror enta]. Protection
____________________________ Dated:
Assistant United States Attorney
Middle DLst’rict of Louisiana
Trial Attorney
Land and Natural Resources Division
Environmental Enforcement Section
United States Department of Justice
___________________________ Dated:
For Defendant XYZ Demolition
Contractors, Inc.
____________________________ Dated:
For Defendant Amalgamated Property
Owners, Inc.

Judgment entered in accordance with the foregoing Consent
Decree this — day of ____________ , 1987.
United States District

Model Consent Decree
- Optional Provision,
The notification provisions of this paragraph are in additLon
to, and are not a substitute for, the notification provisions of
40 C.F.R. 161.146.
A. Until the termination of this decree, XYZ Demolition
agrees to do the following regarding any demolition and/or
renovation project it undertakes, regardless of whether asbestos
material is involved, where the dollar emount of XYZ’s inicial
contract exceeds $75,000.00 in either cash or service, rendered.
1. XYZ Demolition will notify the Enviror enra1
Protection Agency (hereinafter called “EPA”) and
the corresponding or relevant State/local
envtro ental agency of the demolition/renovation
activity by XYZ.
2. Notifications made pursuant to Paragraph I(A)(1)
shall include the information specified in 40
C.F.R. 161.146(c) and shall be submitted at least
twenty (20) days prior to the commencement of
the renovation and/or demolition work by XYZ or
contractors hired by it to perform renovation
and/or demolition work. The notification to the
EPA shall be sent via certified mail to the
United States Enviror .ntal Protection Agency,
3. In addition to the information required by 40
C.F.R. 161.146(c), each notification shall
(1) The nem. and position of the person
responsible for supervising all work
involving asbestos-containing material
(2) The n e, address, telephone nt ber
and contact person of th. firm(s)
which will transport any asbestos-
containing waste from the site.

(3)A description of the procedures and
equi ent to be used to prevent
visible ii io g of _
taming material, and to decont jnate
(4) A description of the location and
amount of ACM in the facility to undergo
renovation or demolition.
(5) The n e of the person who determined
whether asbestos_containing material
(ACM) Was located at the site and the
basis on which such determination was made.
B. XYZ shall also include the information specified in
Paragraph I(A)(3) in notifications submitted pursuant to 40
C.F.R. 561 .146 concerning renovatlon/demoljejon projects involving
asbestos where the value of the initial contract La less than
$75,000.00 in cash or services rendered.
C. The notice provisions of this Consent Decree do not
eliminate or modify any obligation of XYZ to give notice to any
state or local agency.
A. Within sixty (60) days after final entry of this Decree
by the Court, XYZ shall develop or have developed an asbestos
control program (ACP). This plan will detail XYZ’s procedures
for complying with the Asbestos NESMAP, 40 C.F.R., Part 61,
Subpart M. tt also shall include procedures governing submittal
of notifications required by this Decree.
B. Aa pert of the ACP, XYZ shall designate an Asbestos
Program Manager (AIM) and an alternative APM. The APM will have
the following duties and responsibilities:
1. Managing all asbestos control program
activities, including the asbestos
training program for XYZ.

2. Acting as the primary liaison between
XYZ and EPA and/or any state/local, air
-pollution control agency. The APM shall
be responsible for ensuring that EPA
and the appropriate state/local air
pollution agency receives the proper
riotif Lest ion.
3. Ensuring that each site is inspected
prior to submittal, of the notification
discused above to determine whether
ACM is present.
4. Ensuring that decontamination facilities
are available, equipped, and used at
each job site involving r oval of ACM.
5. Maintaining any records of any landfill
receipts and reports of analyses perform ’ed
on samples taken to derermine th. presence
of ACM.
C. The president of XYZ will be responsible at all times
for the APH’s performance of his duties.
D. At each d olition and renovation project involving ACM,
XYZ shall designate sire-asbestos-supervisors who shall either be
or who shall. report to the ACM. XYZ shall have the right to
designate different individuals as asbestos supervisor at a
particular site on a day-to-day basis.
1. Each site-asbestos-supervisor shall have
the primary responsibility for managing
all asbestos activities at the work site.
2. The site-asbestos-supervisor will be the
primary contact through which any ployee
at the site involved with asbestos r oval
shall receive guidance and inecn ctions.
3. Tb. site-asbestos-supervisor shall be the
primary liaison between EPA and/or stat./
local inspectors and on-site ployees.

4. The site-asbestos-supervisor shall
immediately correct any violations of the
Asbestos NESHAP he discovers. If an
immediate remedy is not possible, the
supervisor shall stop all asbestos removal
activities until the violations are corrected.
5. The site-asbestos-supervisor shall have a
copy of the written notification for that
site in his possession while on-site.
E. ciz shall take all reasonable steps to see that the
employees engaged in removal, handling, and transporting activ1 tLes
follow all practices and procedures learned during the Asbestos
Training Progr (discussed in Section IV) and any written andlor
oral instructions provided by the.APM and,/or the job site asbestos
F. XYZ shall develop written Asbestos Policies and Procedures.
The procedures shall address all of the requirements listed in
this doci.ent and responsibilities of the APMI supervisors and
employees. The policy shall provide that workers are encouraged
to report any violations of the progr or any Asbestos NESHAP
(40 C.F.R. Part 61 , Subpart M) to the Asbestos Progr Manager or
the site-asbestos—supervisor. The procedures shall detail how
ACM is to be removed at a site facility and how ACM is to be
disposed of.
1. These procedures shall be given to each
employee and supervisor involved with
asbestos activites.
2. These proc.dures shall be periodically
reviewed by the APM and XYZ company
officers and revised if necessary, based
upon changes in the regulations, develop-
ment of new removal techniques or any
other reason necessary to ensure that
all, requirements are addressed.

G. XYZ shall submit its ACP to EPA for review and approval
within seventy-five (75) days of the date this Decree is approved
and entered as an order of the Court. If EPA requires changes in
the ACP, EPA’s comments shall thereafter be incorporated.
A. XYZ shall develop and LmpL enc an Asbestos Training
Program (ATP) for all company ployeee engaged in actual asbestos
re oval, handling, transportation and disposal activities, all
for en/aupervisors of asbestos activities and an Asbestos Program
Manager (APM) atd an alternate as of the effective date of this
B. XYZ has chosen and will hire (trainer acceptable to EPA]
to provide the ATP for the persons identified in Paragraph 1 1 1(A).
The ATP offered by [ trainer] will consist of its regular “Worker
Training” course plus all requir ents of the Asbestos Control
Program described in Paragraph II of this Decree. This course
will cover, at a minim , information concerning the background
of asbestos; federal, state and city regulations; medical
surveillance, health effects of asbestos, worker protection, air
sampling and general and special work practices. XYZ will ensure
that the course devotes at least three hours to actual asbestos
r oval techniques required by the Asbestos NESHAP, 40 C.F.R.
Part 61, Subpart M.
C. XYZ will impl ene the ATP within 45 days of the entry
of çhis Decree by the Court.

D. One year from the effective date of this Decree, XYZ
will provid. the training progr identified in Section 111(B) of
this Decree to employees engaged in actual, asbestos removal,
handling, transportation and disposal activities who were hired
by XYZ after completion of the initial training program. XYZ
must complete this training progr within 15 months of the
effective date of this Decree.
E. Within 15 days of the training program’s completion, x z
must submit satisfactory evidence from the person who conducts
the training program that each employee required above to be
trained has successfully completed the AT?. The submissions
shall be sent by certified emil to the United States Enviror ental
Protection Agency, (Address].
A. Defendant shall pay a total civil penalty payment of S___
_____ in ______ installments together with interest ‘by cashier’ s
or cert .f ,ed check payable to “Treasurer, United States of America”
and sent by registered mail to the United States Attorney (Address]
according to the following schedule.
1) $__________ shall be paid within — days
of final, entry of this consent decree.
2) $_________ shall be paid within ____ days
ot ftnai. entry of this consent decree,
together with accrued interest at the
specified rate.
3) Etc.

B. Interest shall accrue upon the unpaid balance at a race
equal to the coupon issue yield equivale (as determined by the
Secretary of the Treasury) of the average accepted auction price
for the last auction of 52-week U.S. Treasury bills settled
immediately prior to the time of the preceeding payment and shall
be included in each subsequent payment under the schedule of
payments set forth in sub-paragraphs A(2) and (3), above. Interest
shall be computed from (time of first paymentj. Thirty (30) days
prior to the payments described in A(2) and (3), above, the U.S.
Attorney’s Office shall send a statement of interest due and
owing for the upcoming payment.
C. The civil penalty payments made under this Consent Decree
are not tax deductible. Upon entry of this Consent Decree,
the United States shall be deemed a judgment creditor for purposes
of enforcement of this Decree.
A. If the Defendant: (1) fails to make any payment in the
time specified under this Consent Decree, or (2) files a voluntary
petition in bankruptcy under the Bankruptcy Code of the United
States, or (3) is adjudicated as bankrupt under such Code, or (4)
is the subject of a petition filed in federal or state court for
che appoin ent of a trustee or receiver in bankruptcy or
insolvency, or (5) aak.s a general assig ent for the benefit of
creditors, then on the occurrence of any such conditions, at the
option of the United States, the entire balance of the principal
amount of civil penalty, together with all, accrued interest at
the rate specified above in paragraph B of Section IV of this
Consent Decree, shall become immediately due and payable.
Defendant shall also be liable for attorneys’ fees and costs
incurred by the United States as a result of the implementation
of this acceleration provision.

B. Within five (5) business days after Defendant becomes
aware of an occurrence of any of the events or conditions described
in subparagraph V(A)(2) -(5) above, the Defendant shall give
immediate written notice to the U.S. Environmental Protection
Agency, [ Address] and to the United States Attorney [ Address] by
certified first class mail, postage prepaid.
See Exhibit A attached hereto.
It is the policy of the Envirox encal Protection Agency
(EPA) to do business only with responsible contractors. EPA
contends it has the authority to debar or suspend irresponsible
contractors from EPA-assisted, indirect procurement under 40
C.F.R. 932.100, et seq . and from direct Federal procurement under
48 C.F.R. 99.400, et of the Federal Acquisition Regulation.
EPA agrees that it will not institute debarment or susperisLon
proceedings against the Defendant based on th . e violations that
underlie this Consent Decree as Long as the Defendant complies
with the terms and conditions of this Consent Decree, If EPA
determines, after appropriate notice and an opportunity for a
hearing pursuant to 40 C.F.R. 932.100, et q . and 48 C.F.R.
99.400 et , ,, chat Defendant has breached the terms and conditions
of this Consent Decree, then Defendant agrees that such breach
may constitute a causi for debarment and suspension. In such
case, if EPA initiat. a debarment or suspension action, it may
cite the violations which gave rise to this Consent Decree as
causes for debarment or suspension, in addition to the violations
of the Consent Decree,

If any event occurs that causes or may cause delays in the
completion of the activities described herein, XYZ shall within
five days of its learning of such event notify the United States
in writing of the delay or anticipated delay, describing in detail
the precise cause or causes of the delay, the anticipated length
of the delay, the measures taken and to be taken by xyZ to prevent
or minimize the delay and the time-table by which these measures
will be impl enced. XYZ will adopt all reasonable measures to
avoid or minimize any such delay. If the United States and XY
agree that the delay, or anticipated delay, has been or will be
caused by circ stances entirely beyond the control of XYZ and
agree on the length of the delay, the time for performance
hereunder will, with Court approval, be extended for a period
equal to the delay resulting from such circ stances, If the
United States and XYZ do not agree that the delay, or anticipated
delay, has been or will be caused by circtstances entirely beyond
the control of XYZ, and/or do not agree on the length of the
delay, XYZ may submit the matter to the Court for resolution. Ir
any such proceeding, XYZ shall bear the burden of d onstrating
chat the delay or anticipated delay, has been or will be caused
by circ scances entirely beyond its control and of the necessity
of the proposed length of the delay. Increased costs or expenses
associated with thpl encatiori of the activities required by this
Consent Decree and changes in economic circ stances of the
defendants shall not be considered circ stances beyond the
control of th. defendants. XYZ shall be entitled to the benefits
of this paragraph only if XYZ has given the notice of the delay
or anticipated delay as set forth above in this paragraph.

C.. l1’Q I
Ouarantj of Paymey by Indorsm
1. In Consideration of the payment schedule set forth in
S .CtLO,I VI, Part A, of the consent decree tiled in United
Stat.. v. P.C.& J. Contracting Co. 1 Inc. , Civil Acti No.
C84 .1el (Northern District of Zowi) (Thereinafter the Decree”)
the undersigned indorsers ointly an4 severally UflCOfldittonally
guaranty the payment of a 1105,000 c lvi i penalty, together
with Interest at the rat. Specified in Section VI, Part B
of the Decree and all cost., expense., and attorney’, fees
incurred In the COllictt n of said civil penalty.
2. As payments are made puriuant to the payment schedule set ror
in Sectjo VI, Part A, of the Decree, the United States agrees
to reduce indorsers’ oblig&tj and guarantee accordingly.
3. Indorsers’ liability is independent of any other guara tje
between Indorser . and any Other parties’ guaranties ,
. This guarantee Is binding upon the Indorsers, their heirs,
personal representatives, and assigns,
5. Indorseps waive any presentment, demand,, and notice or
dishonor associated tth this guarantee.
R eso P. Bezrnalinovjc ,
lfldjyjdu*liy and as Vice President
of PC&J Contracting Co., Inc.
Bonic, wit, of Xreso
P. Beamalinovic, individually,
and * 5 President of PC&J Contracting
Co., Inc.
Sworn to and Subscribed to, after presentation of
photographic identification of abov . undersjgned indorsers,
A ‘
before me this ’
5. I’:
tt.m .. ‘..

I, Qs C.”
day of.. . . , 1986.
Exhibit A

%Ni8IT 8
In order to meet strict compliance with E.P.A. notification re-
quirements, the following procedure is now in effect and is to be
followed for all demolition and renovation jobs . Note that one of
the two notification forms (se. attached) must be completed prior
to beginning demolition or renovation activity. The choice of
the appropriate form will depend on the quantity or asbestos preser.
1) On a demolition or renovation job involving the stripping or
removal of less than 260 linear feet of asbestos material on pipes
and less than ibO square te.t of asbestos material on ducts, boiler
tanks, reactors, turbines, furnaces, or structural members, the
TVENT DAY NOTICE term will be used. It must be postmarked or
delivered at least twenty (20) days before demolition or renovatior
or any associated stri ing or removal of asbestos material begins .
2) On a demolition or renovation job involving the removal of t
least 260 linear feet of asbestos material on pipes or at leas
square feet of asbestos material on ‘other facility components
TEN DAY NOTICE form will be used. It must be postmarked or
delivered at least ten (10) days before demolition or renovation or
any associated stripping or removal of asbestos material begins .
3) The original of the appropriat. notification document shall be
sent to the proper state agency or local air polution control agenc
A copy of the same notice shall be sent to the appropriate U.S. EPA
regional offjce ,si d 1 ‘— rnut— , -L LL Preteelten Able,,
Stafl., ar- L,-, jvL ,j ,, , !U—3fl , ft lbw.tsU5flS ‘ 1ii.yi L
a.htngt.en, L. A copy of each document sent shall be
kept in the job tile.
Page i of

(To the appropriate EPA regional office and the state or de1egate
local agency)
PURSUANT TO 110 C.P.R. S 61.11 6
Pursuant to the requirement, of 110 CPR
fic&tio of impending asbestos removal
Contracting Co., Inc., located at ____
61.1116, the
is provided
following noti—
by P C & J
Name of facility:
Address: ________
City: __________
Name of owner:
Address: _____
City: _______
Sta t&i
Size of facility: —
Age of facility: ____________________
Prior usase: _______________________
Demolition or renovation methodology:
Removal dates: Start
Quantity on pipes (linear feet)
Quantity on other components (square
Description of asbesto, material:
Pinj h
Method of asbestos measurement:
Sincerely yours,
Zi p:
Pig. 1 1

(To the appropriate U. S. EPA regional office, and the state or
delegated local agency)
PURSUANT TO 4 Q C.P.R. S 6l.i 6
Dear ___________________
Pursuant to the requirements of 1 O CPR section 61.146, the followthg
notification of impending asbestos removal is provided by P C & J
Contracting Co., Inc., located at ____________________________
Name of facility: ________________________________________________
Address: ________
City: ____________________ State: _____________ Zip: _______
Telephone: ________________________
Name of owner: ____________________
Address: ____________________________
City: _____________________ State:
Telephone: ________________________
Size of facility: __________________
Age of facility: ___________________
Prior usage: _______________________
Demolition or renovation methodology:
Removal dates: Start •
Quantity on pipes (linear feet)
Quantity on other components (square
Description of asbestos material:
Removal emission control procedures:
Page 1 of 2

Waste handling e isston control procedures:
Disposal site nsas:
Add rese: __________
City: _____________
Telephone: ________
Sincerely yours,
Page 2
of 2

Revised Asbestos NESHAP Strategy

‘ s ..
HL\GTO\, DC 20460
ft / 4
M 3i 88
SUBJECT: Revised Asbestos r ESHAp Strategy
FROM: John S. Seitz, Director
Stationary Source Compli ivis
Office of Air Quality P1 ning and Standard
Michael S. Alushjr ( Z .,a41J J4,.-
Associate Enforcement Courc.eel for 4r
TO: Air Management Division Directors
Regions I, III and IX
Air and Waste Management Djvjsio Director
Region ii
Air, Pesticides, and Taxies Management Djvj j
Regions iv and VI
Air and Radiation Division Director
Region V
Air and Toxjcg Division Directors
Regions vii, VIII and X
Regional Counsels, Regions i—x
Attached is the revised strategy for the implementation
and enforce nt of the asbestos demolition and renovation
reguireme 3 • The April 6, 1984 Asbestos Strategy Document
was issued concurrently with the repromuigation of the asbestos
NESHAP. The goal of the 1984 strategy was to attain 100%
compliance through the implementation of an inspection plan.
According to the 1984 strategy an inspection plan could
consist of Inspecting a11 sources, all contractors, or any
other program consistent with the Agency goal of 100%
compliance. ’ Because the annual notification rate has risen
dramatically and is expected to be well above 50,000 for FY 88,
NOTE: For the referenced
attachments, contact OECM-AED

it is no longer feasible for most agencies to inspect all sites.
Inspecting all contractors may be the best alternative for an
effective inspection plan, however, the 1984 strategj did not
fully describe how such a plan would be implemented. After
auditing three Regional asbestos ESHAP enforcement programs,
the Inspector General’s office remarked that the 1984 strategy
“does not provide additional criteria for developing an
effective inspection strategy.” The revised strategy provides
the criteria for targeting inspections among a field of an
estimated 5,000 contractors as opposed to selecting inspection
sites from over 50,000 notifications. Inspection efforts
focused on contractors should result in a more resource—
effective enforcement program.
Major changes have been made to the original computer
tracking system described in the draft revised strategy. In
response to regional comments the national tracking system
will be in DBASE UI format rather than CDS. This will allow
tracking of the number of notifications and associated compli-
ance activity in each state, as opposed to workeite location
for each notification. tegions will be expected to send
quarterly reports of the data elements contained in APP DIX A
of the revised strategy to Headquarters . preferably through
electronic transmission. The aggregated nationwide database
information will be used to target inspections and promote
enforcement options as described in the strategy.
A new section on outreach has been added to the strategy
describing methods of communication with the regulated com-
munity. Other additions include new appendices on identifying
non—notifiers, EPA technical assistance, generic 113(a) and
temporary restraining orders, and finalized guidance on
contractor listing. Each originally drafted section of the
revised strategy has been modified to accommodate comments
from the Regions 1 OTS, and ALAPCO.
Since the asbestos NESHAP program is primarily delegated
to the States, the success of this strategy depends on
implementation and cooperation from the States. It is
important that the States understand that the tracking system

w 1l contain a nationwide database of contractor coln3liarlce
histories, and that the States will utilize this tracking
system extensively. Any questions or comments should be
addressed to Jim Engel of my staff at 382—2877.
At tachment
cc: Air Compliance Branch Chiefs
Asbestos NESMAP Contacts
William Becker
Gerald Emison
John Neylan
David Kling
Sims Roy

Asbestos Strategy . pp 1 —
Introduction . . . pp 1 — 3
Strategy Components . pp 4 - 19
1. Outreach . p 4
2. Contractor Training ......... pp 4 — 5
3. Inspector Training p 5
4. Inspections ........ •1• . pp 5 — 8
5. Inspection Targetting pp 8 — 10
6. Program Alternatives .................... . . . . PP 10 12
7. Federal Enforcement Options .. - pp 12 — 15
R.ChoosingEnforcementOPtiOfl .........pp iS—16
.AssessingPefla1t1eS........... .. . p17
10. Reporting p 17
•Reg onalOverS1ght.....................””PP 1718
12. Cross—Program Coordination ..... pp 18 — 19
TrackingAsbestosSoUrCes. . Al—AS
Asbestos Demo1itiOfl!Rer OVat1Ofl Penalty Policy ............ Bi
UniformHazardousWaSteMaflife9t...,...s. .. _Cl
113 Compliance Order/114 Information Request ....... Dl — Dli
Pre—Referral Settlement Procedures El — E36
IdentifyingNOfl—NOti.fier s
SPMS Reporting Format .. . ..ssøe•••e s••••••••• Cl
Standardized InspectionChecklist •............. Hi H3
List ortat. Certification Requirements •........... 11 — 13
States Covered by Worker Protection Rule ................ Ji
r ractorListingAppliCatiOfl •...... .............. 1—K13
EPA Technical Assistance for Asbestos Control ...... Li - Ll2
Generic 113(a) order and TRO ......... ....... •.. Ml M20

Asbestos Demolition and Renovation Enforcement Strategy
Asbestos is recognized as a human and animal carcinogen
and, combined with cigarette smoking, a powerful co—carcinogen.
Malignant diseases caused by asbestos exposure include
bronchial carcinoma, lung adenocarcinoma, pleural and peritoneal
mesothelioma, alimentary tract carcinoma, and tumors of other
sites. Asbestosis, a fibrotic lung disease caused by asbestos
fibers, is also associated with long—term exposure.
These diseases are linked to ambient environmental
exposures as well as to occupational exposures. To reduce
ambient exposures and the accompanying health risk, EPA
regulated asbestos under the National Emission Standards for
Hazardous Air Pollutants (NESHAPS). This enforcement strategy
document has been prepared in order to ensure compliance with
the NESHAP standard. By specifying actions to be taken and a
procedure to follow, this strategy will provide effective and
uniform enforcement of the standard by Regions and delegated
States. This strategy document Is also intended to provide
emphasis and assurances to Regional Offices and States that
asbestos occupies a high priority and that EPA is totally
committed to a strong enforcemertt posture.
EPA first promulgated the asbestos NESHAP on April 6, 1973.
Parts of the standard were in the form of work practice
(nonnurnerical) requirements. The Supreme Court held, in
Adamo Wrecking Company v. United States , 434 U.S. 275 (1978)
that these were not emissions standards within the meaning of
the 1970 Clean Air Act. Since EPA, at the time the asbestos
regulations were promulgated, had authority to promulgate and
enforce only emissions standards, the Court upheld dismissal
of the criminal enforcement action brought against Adamo for
violations of S112(c)(1)(B} of the 1970 Act.
On August 7, 1977, 5112(e) was added to the Act td
specifically authorize design, equipment, work practice,
and operational standards. Although regulations promulgated
since that time could contain work practice standards, there
was doubt as to the way of dealing with regulations promul-
gated prior to that time. EPA repromulgated many of the
asbestos work practice standards on 3une 19, 1978. However,
some work practices were not repromulgated, and were not

consid red enforoeable by EPA. This led to confu i and
greatly hindered litigation efforts. In an attempt to end
this confusion and ensure all aspects of the asbestos NES Ap
are enforceable, EPA repromulgated the entire asbestos standard
in April of 1984.
The strategy document presented here addresses training,
inspection techniques, judicial and administrative enforcement
mechanisms, and other aspects essential for a successful
program of compliance with the repromulgated regulation
Flexibility is provided so that the enforcing authority, be
it the EPA Regional Office or the delegated State or local
agency, may select other options, provided a high level of
compliance is achieved. The strategy also is designed to
ensure coordination between EPA Regions and their delegated
States. Since 38 States presently have asbestos enforcement
delegation, it is essential these States feel a part of the
process and have the capability and desire to Successfully
enforce the standard.
An EPA Compliance Data System analysis showed that the
number of demolition and renovation sources is greater than
that of all other asbestos source categories combined, and
the compliance status much worse. The strategy is thus
limited to the renovation and demolition category. An
additional reason for this limitation is that since renovatior
and dernolitions are transitory operations, they are more
difficult to inspect and require specific enforcement guidance.
This limitation does not mean other asbestos sources should
be ignored, but means rather that EPA believes the States
have sufficient knowledge of these other sources to do a
satisfactory job without additional guidance.
Summary of Regulations
Before discussing the components of an effective strategy,
it is necessary to briefly outline the requirements of the
demolition and renovation provisions. These provisions are
found at 40 CFR Part 61 Subpart M. The owner/operator of a
demolition or renovation is exempt, pursuant to S61.145(b) and
(d), from emission reduction requirements if less than 80 linear
meters (260 linear feet of fria 1e asbestos materials covering
pipes or less than 15 m (160 ft’) of friable asbestos material
covering other facility components is involved, and notification
provisions of S61.l46(a),(b), and (c)(1)—(5) are met for
demo ljt ions.

Section 61.147 concerns the wetting, stripping and removal
of friable asbestos. it provides that friable asbestos
materials used on any pipe, duct, boiler, tank, reactor,
turbine, furnace or structural member shall be adequately
wetted during stripping, and then removed from the building.
When prior authorization is obtained from EPA upon the
appropriate demonstration made pursuant to 5 6 l.147(c)(1)
and (2) of unavoidable equipment damage, a local exhaust
ventilation and collection system may be used to prevent
emissions to the outside air, Section 6 l.147(e) requires
that ‘tripped or removed asbestos materials be wet during all
stages of demolition or renovation and related handling
operations, and S61.l47(f) allows alternatives to wetting
during Ereezing temperatures. Section 61 .145(c) exempts
demolition operations, pursuant to a State or local Order, on
structurally unsound buildings from all requirements except
those enumerated in the subsection.
in addition, S61.152 prohibits any visible emission from
the collection, packaging, transporting, or depositing of
asbestos from any demolition or renovation, and requires that
asbestos waste be deposited at acceptable waste disposal
sites. S61.156 prohibits visible emissions from an active
waste disposal site except under Specified and limited
conditions. Because of regulatory limitations this strategy
concentrates on asbestos removal operations as opposed to
asbestos waste transportation and disposal. When the asbestos
NESMAP is revised to allow for more attention to asbestos
waste disposal requirements, Regions and states should increase
their oversight of those requirementg In the interim
the strategy should include a program of inspecting each
disposal site to determine what are the usual practices with
respect to waste handling. After these initial Inspections,
perform random multi—day inspections to observe the actual
disposal of waste at each site, and determine who put waste
into the landfill during the period of surveillance so that
responsibility could be assigned to contractors if improper
disposal practices are noted at the landfill.

Strategy Components
1. Outreach — PA and the delegated agencies could
approach enforcement of the asbestos NESHAP by devoting
resources entirely to catching owners/operators in the act
of violating NESHAP requirements and taking appropriate
enforcement measures. However, enforcement of the NESE-LAP
could be easier and nore effective if it is directed towards
a regulated community aware of EPA requirements rather than
a regulated community unsure of those requirements. By now
owners/operators should be familiar with the NESHAP, but
sometimes they could benefit from PA guidance such as
past EPA applicacility determinations.
There are many methods of developing a compliance
assistance component to an enforcement program. A pamphlet
containing easy—to—understand explanations of the regula-
tions and phone numbers of appropriate agency personnel
who can provide further assistance can be distributed to
removal contractors and anyone else concerned with the
hazards involved with asbestos removal. Another way for
EPA and delegated agencies to provide compliance assistance
is to meet the regulated community in person. Seminars
and demonstration workshops presented to contractbrs and
owners and managers of commercial buildings can be greatly
effective. In addition, discussion forums with school
district administrators, architects, lenders, real estate
groups, and insurance agency representatives can create
a general public awareness of asbestos hazards and EPA
regulatory requirements. Radio talk shows concerning
asbestos hazards will produce the same effect. EPA’S
Hazard Abatement Assistance Branch (MAAB), formerly Asbestos
Action Program, of the Office of Toxic Substances (OTS)
offers technical assistance to the public through training
seminars, telephone contact with the public, guidance
documents, and other means which are all described
in APPENDIX L. EPA and the delegated agencies should make
a significant commitment to public education and outreach
to create increased awareness and understanding of the
regulations among the regulated community and an atmosphere
of agency—contractor cooperation.
2. Contractor Training — Most states have established
some type of contractor certification or training program for
asbestos removal. Further, the Model Accreditation Plan under
the Asbestos Hazard Emergency Response Act (AHERA) requires
that all states establish accreditation programs for persons
who inspect, develop management plans, or design or conduct
response actions in schools. APP DIX I lists the status of
the state certification requirements for all states. States
which have not yet adopted certification requirements for
asbestos removal workers may have to make greater use of the

outreach methods described in Section 1 to educate contractors
as to what inspectors expect to find at a removal site in
order to verify compliance with the NESHAP. HAAB asbestos
removal training is provided by the Office of Toxic Substances
(OTS) in response to legislation enacted for the Asbestos in
Schools program. The HAAB training centers and the training
they provide are discussed on pages 4 — 6 of Appendix L. In
addition to providing training on campus, some of these
institutions schedule training sessions at other locations
nat ionwide.
Regions should encourage states to adopt contractor
certification requirements for NESHAP removal activity.
Considering that contractors already need to be certified for
removal work under the Asbestos Mazard Emergency Response Act-
(AHEPA), a logical way for states to require certification
under the NESHAP is by expanding the AHERA certification
requirement to all demolition/renovation contractors.
3. Inspector Training — Inspector effectiveness at
finding violations and documenting evidence at subject
demolition and renovation sources is the basis for EPA’s
asbestos NESHAP enforcement program. The only way to
ensure this effectiveness is to provide inspectors with
training on inspection procedures and safety, and to
familiarize them with the NESHAP and other pertinent
regulations. To help accomplish this, SSCD has established
the Asbestos NESHAP Inspection Workshop — a classroom
training program available to the Regions and states.
In light of the many changes in EPA asbestos enforcement
since the Inspection Workshop began, SSCD is currently
revising the Workshop Manual and will periodically review
and update the revised manual in the future. This manual
should ze published in April 1988 for distribution to the
Regions and delegated agencies.
Agencies should also consider sending their asbestos
inspectors to one of the RAAB training centers identified
in APPENDIX t. so that their inspectors will be aware of what
certified removal contractors are being taught about complying
with the asbestos NESHAP. Because most asbestos NESHAP
inspections are conducted by state and local inspectors, it
is important to encourage the delegated agencies to send
their inspectors to both the SSCD and HAAB training, as well
as any contractor certification training provided at the
state level.
4. Inspections — Inspections provide the foundation for
all asbestos NESHAP enforcement actions for substantive vio-
lations, and are therefore of primary Importance in enforcing
the NESHAP. In most cases, it is necessary for the inspector
to enter active removal areas both to determine compliance
and to collect evidence of any non—compliance.

The following is a list of positive inspection
o Bring copies of the ESHAP regulations to the inspection
site to leave with owner/operators and for the inspector’s
own reference;
o To the extent possible assess the site to be inspected,
in compliance with Section 114 and 4th Amendment require-
ments, prior to making your presence known;
O Along with presenting credentials, provide a calling
card for future reference by the facility owner/contractor;
O Clearly identify the line of authority between all parties
involved, i.e., subcontractor, oversight contractor,
general contractor, owner, etc.;
o Use a standard checklist and complete as much information
as possible before tering a contaminated area in order
to minimize the time in the contaminated area;
o In addition to asking the appropriate representative if
he or she is aware of the regulations, ask them to verbe.
describe their understanding of the regulation;
o Carry only essential items into the contaminated area,
items such as a clipboard can be Left outside;
O Samples should be taken at every site inspected.
When samples are taken, label immediately and log number
onto the inspection checklist and log onto a chain—of-
custody form;
o Photograph with waterproof automatic cameras;
o Estimate the amount of asbestos in linear or square feet
by pacing off or using a tape measure;
Always conduct a quick to—the—point wrap—up meeting and
inform the owner/operator of findings, but do not interpret
the regulation or make compliance determinations;
o To the extent possible reference all discussions to
specific requirements in the regulation being enforced;
O Always wear appropriate safety gear.

The inspection techniques referred to three items
which are especially important equipment for asbestos NESHAP
inspectors — checklist, camera, and safety gear. This
equipment, described below, is considered standard
LnspectLon gear.
a) Checklist - In order to reliably document evidence
of compliance status at each subject worksite, the
inspector must enter all pertinent information onto
a reasonably detailed checklist while the findings
of the inspection are fresh in memory. The inspector
should complete as much of the checklist as possible
prior to entering the workaite. So as not to make
the checklist an item requiring decontamination, the
inspector should not bring the checklist inside the
removal area, but instead complete the rest of the
checklist entries immediately after conducting the
inspection. A good checklist such as the example
shown in ppendix H will provide the inspector an
outline of what to look for during the inspection.
In order to complete the checklist the inspector
must enter the removal area. This reflects EPA’s
policy that inspectors should, whenever possible,
observe asbestos work practices in progress in order
to assess compliance. When the barrier to a contain-
ment area is transparent or when asbestos fibers are
released outside the containment area, it may not be
necessary to enter the removal area to observe work
practices. However, because samples are to be taken
during each inspection, it may still be necessary to
enter such a site to collect samples.
If an inspection reveals NESHAP violations, the
inspector should write a report summarizing the
inspection and specifying the conditions unique to
the work site which could not be entered onto the
standardized checklist.
b) Camera — Photographing removal activity can provide
some of the strongest evidence of non—compliance.
Supplying inspectors with reliable cameras is necessary
to ensure that photographic evidence will contribute
to the agency’s cause should a civil action become
necessary. Waterproof automatic cameras are especially
useful in the wet environment found at many removal
sites, and will endure decontamination showers.
c) Safety Gear — EPA ’s most recent guidance concerning
safety gear for asbestos inspectors is contained n the
May 1987 Interim Health and Safety Guidelines for EPA
Asbestos Inspectors.N These guidelines should be
referenced to ensure inspector protection.

I-nspections reported in the computer tracking system
outlined in APPENDIX A and subsequently reported into SPt’ .S
must consist of sample collection and observation of work
practices whenever possible. Regional and delegated agency
inspectors should be attentive to the positive inspection
techniques and implement them whenever possible as well.
Of course, if an insoector arrives at an unfinished
removal Site when no removal activity is occurring, the
inspector will be unable to present credentials and questions
to the appropriate representative, observe work practices,
and conduct a “wrap—up” meeting to inform the owner/operator
of specific violations found, but will still be able to
take samples and photographs and complete a standardized
checklist as much as possible. it may still be possible
to make a compliance determination based on the evidence
5. Inspection Targeting — The number of notifications
received by EPA and the delegated agencies hasrisen from
20,537 in 1985 to 29,087 in 1986, and in 1987 this figure
rose to 43,496. Because of this tremendous increase, Regions
and their delegated agencies must make more efficient use of
inspectors’ time by implementing a targeting system which
strategically identifies which notifications or contractors
to follow up with inspections.
The computer tracking system described in Appendix A
is designed to assist agencies in targeting their inspections.
The instructions contained in Appendix A establishes conventions
for the input and retrieval of contractor records, and because
the entire inspector targeting method which follows is based
on the use of the computer tracking program, these instruc-
tions should be reviewed carefully. it will be required of
all delegated enforcement agencies to use the tracking program
for inspection targeting. Prioritizing inspections by
identifying removal sites where violations are most likely
to occur will enable Regions arid their delegated agencies
to make more efficient use of resources. Inspection priority
should be based on a simple evaluation of computer tracking
data involving the assessment of contractor compliance history.
Table! I and 2 illustrate this sort of evaluation. Table 1
lists criteria discerned from the computer system, and
criteria found on individual notifications to be prioritized,
and gives numerical ratings for each criteria. By assigning
numerical ratings to the tracking and notification criteria
identified in Table 1, the inspection priority pertaining to
each notification received can be determined by comparing the
summation of the ratings to the rankings listed in Table 2.
This evaluation, or a comparable method of evaluation, should
be done for each removal activity to determine the need for
inspecting each work site.

TABLE I Tracking Criteria Rating
Contractor is Listed as Descrtbed
in Section 7 of this Document 10
Contractor Violated at Least Once
During 3 Most Recent Inspections .... 10
Contractor has Not Been
Inspected for Two Years ..... 10
Contractor has Not
Been Inspected in past year 7
Contractor is Not Certified
by an Approved Accredited Program ... 3
Contractor has a Recent
Trend of Notification Violations .... 7
Notification Criteria
NoNotificationRecejved 8
LateNoticeReceived 6
Notice Missing Location,
Dates and/or Amount of Asbestos 6
Notice Missing Other Items ...... 4
Worksite in Occupied Building or
Area of High Population Density 5
TABLE 2 Priority Ranking
TOP Priority 10 or above
HIGH Priority 5 — 9
LOW Priority 0 — 4
An inspection targeting evaluation establishes inspection
priority based on computer tracking data. It does not limit
inspections to the criteria listed in Table 1. Citizen
complaints cannot be recorded in the computer tracking system,
but they should be followed up with inspections based on agency
In addition to the criteria listed in Table 1, special
attention should be given to removal jobs for which no
notification was received. As documented in the Inspector
General’s asbestos NESMAP audit report, efforts to identify
non—notifiers should include:
o Checking building permits or public works files;
Reviewing waste disposal site records;
o Discussing consistent underbidders with national
demolition contractors;
o Coordinating with state, county, and city departments
of building and health, and with Federal offices such
as OSHA and Department of Education:
o Reviewing publications such as National Wrecking and
Salvage Journal, newspapers 1 and magazines.

— 10 —
Region 3 has researched the problem of identifying
non—notifiers and has documented their findings in a
report which has been incorporated as APPENDIx F. Seven
licensing and permitting agencies and several landfills
in Philadelphia, PA and Richmond, VA were visited and
record/file reviews were conducted. In these two cities
Region 3 found that reviewing records (e.g., manifests,
contracts) at the landfills was the most productive method
of identifying non—notifiers.
Because of differing levels of asbestos NESHAP enforce-
ment funding among delegated agencies, some agencies will be
capable of inspecting HIGH and TOP priority work sites as
well as some LOW priority sites, while other agencies may
be limited to inspecting mostly TOP priority sites. When
delegated agencies are finding it increasingly difficult to
maintain a high level of asbestos NESHAP inspections due to
funding limitations, they should adopt cost effective altern-
ative enforcement mechanisms which when combined with modest
inspection levels, will allow these agencies to maintain or
enhance their present enforcement posture. Such alternatives
are discussed in the following section.
6. Program Alternatives — Some states have remarked
that maintaining their established inspection levels is
difficult because of many changing demands being placed on
the program. In order to accomodate these states while
maintaining or enhancing their established enforcement posture,
Regions should seek an agreement which includes the incorpora-
tion of either of the following optional requirements into
their state enforcement program coupled with the inspection
targeting program outlined previously. When combined with a
penalty policy of sufficient stringency for each violation
type, the adoption of such requirements would be an acceptable
state asbestos NESHAP enforcement program modification.
I. Certification
This alternative entails the adoption of a state—wide
contractor certification program, where the following
tniniwum requirements would apply:
At least one supervisor certified in asbestos removal
shall be present at each affected NESHAP removal site when
removal work is ongoing. Certification shall be attained
only by satisfactory completion of training at a state—
approved training program, one of the EPA—approved courses
identified in APPENDIX L, or any equivalent course. Any
state employing this enforcement alternative shall exercise

— 11 —
the authority to revoke the certification of any removal
contractor found to be in violation of NESHAP
requirements. When a contractor becomes listed as described
in Section 6 of this document, certification should be revoked
automatically. Certification requirements developed under
AHERA, arid expanded for all demolition and renovation
activities, would meet this requirement. Each certification
training course must include the following:
a) Education about the hazards of asbestos exposure,
b) Clarification of NESHAP requirements,
C) Training in removal procedures,
d) Training in transportation and disposal procedures,
e) Safety training.
II. Asbestos Manifest
Delegated agencies can implement this alternative by requir-
ing waste shipment manifests for all asbestos waste shipments
from affected sources. The manifest should be similar in
detail and implementation as the Uniform Hazardous Waste
Shipment Manifest (Appendix C), but specifically designated
for asbestos containing waste. An asbestos manifest is a
waste tracking form used to verify that asbestos waste is
deposited at an approved waste site. Each removal operator
enters information onto the manifest 4 pertaining to the
amount of asbestos waste, and the designated disposal
site, for each waste shipment from a removal site. The
transporter of the waste then acknowledges on the manifest
that he has received the indicated amount of asbestos
waste for shipment to the designated disposal site.
Before the transporter hauls the waste, the removal operator
keeps a copy of the manifest indicating that the transporter
has received the waste for shipment to a NESHAP approved
disposal site. When the transporter arrives at the disposal
site, the disposal site operator acknowledges on the
manifest that the asbestos as described by the generator
was disposed of at the designated disposal site. At this
point the manifest form is complete. Now, the original
is sent to the delegated agency informing enforcement
personnel that the waste was properly disposed, one copy
is sent to the removal operator indicating regulatory
compliance, and the other two copies are maintained by
the transporter and the disposal site operator.
III. Notification Fees
This alternative would require the owner/operator of a
removal site to submit notification with a notification
fee in an amount determined by the amount of asbestos
containing material involved in the removal operation.
For instance, if removal entails over 1000 linear feet
or 5000 square feet of asbestos containing material, a
$500 notification fee may be required. For removals

— 12 —
involving less than 1000 linear feet or 5000 square feet
but greater than 260 linear feet or 160 square feet a
notification fee of $250 may be required. If the delegated
agency’s asbestos removal regulation covers removal acti-
vities that involve levels of asbestos containing material
less than that of EPA’s threshhold (260 linear feet or 160
square feet), a different fee would be required. By
implementing this alternative delegated agencies can fund
a significant level of their enforcement program depending
on the level of fees required.
While these alternatives are not required as a mandatory
part of an acceptable asbestos demolition and renovation
enforcement program, they do represent examples of how state
and local agencies can improve their knowledge of the regulated
community. Although these options may have their own resource
demands, implementation of these kinds of activities should
ultimately allow state and local agencies to improve their
‘ compliance rates while maintaining a reasonable resource
Concurrent with the implementation of one of the above
requirements, states must employ a penalty policy with fines
of sufficient stringency for each violation type in order to
achieve an acceptable enforcement alternative for maintaining
enforcement posture when inspection levels suffer from budget
restrictions. • Enforcement alternatives are to be aggressive).
implemented by states seeking cost effective enforcement
methods, and should not have the effect of diminishing the
state enforcement posture. A penalty policy change without
implementation is not acceptable. EPA and states must agree
on a minimum acceptable level of state inspections and vigorous
pursuance of violators.
7. Federal Enforcement Options — EPA has the authority
to use administrative and/or )udicial enforcement against
asbestos NESHAP violators. Administrative actions may be
taken when EPA has the opportunity to stop noncompliance and
establish NESEAP practices. EPA cannot collect penalties
administratively, although several states have that authority.
Regions should encourage states which are able to collect
administrative penalties to do so liberally.
The only way EPA can collect penalties is through judicial
action. Considering that EPA and the delegated states are
uncovering increasingly high numbers of violations, judicial
actions taken against violators should be expected to increase
also. However, nationwide, this has not been the case. The
rate of asbestos NESHAP referrals has been relatively stagnant
as the rate of violations uncovered continues to rise substan-
tially. An intended effect of this strategy is to induce an
increased rate of referrals from the Regions and delegated

— 13 —
Figure .1 on page 14 ilLustrates tne various enforcement
options.- Choosing th appropriate Option for each demoLitio /
renovation source in violation, for which EPA. takes the
enforcement prerogative, means using administrative and/or
judicial enforcement action, unless the matter can be resolved
informally or should be referred to OSHA or another EPA
program office.
I. Administrative Actions
EPA can pursue administrative actions through Section
113(a)(3) orders or Section 303 orders, although Section 303
of the Act is seldom used in asbestos ESHAP enforcement.
otices of Violation ( I0V)l are often issued by PA to
t ESHAP violators, although NOVs issued by EPA have legal
significance only when issued to violators of State Imple—
rnentatjon Plans (SIP). Because the CAA does not require the
use of NOVs for I ESHAP sources, an J0V issued to a NESHAP
source is nothing more than an informal warning.
Section 1l3(a)(3) orders may be issued to violators
when they are found out of compliance with substantive
requirements while removal work is ongoing. In order to
assist the Regions in this procedure, a generic ‘1l3(a)(3)
order which can be issued in one day is presented in APP 4DIX
M. Also included in APP JDIx tl is a generic temporary
restraining order which can be used if the situation is
considered serious enough. Section l13(a)(3) orders can
require immediate compliance, and although EPA cannot collect
penalties with the order, the issuance of a §113(a)(3) order
subjects the source to penalty liability in a judicial action
under §113(b). Section 113(a)(3) orders should also be
issued to sources which continuously submit deficient
notifications. Such an order prohibits further submittal of
deficient notifications, and makes the contractor liable for
penalties pursuant to the order as well as the NESMAP itself.
Issuing an NOV in this Situation does comparatively little.
An example of a combined Section 113(a)(3) order/Section 114
Information Request is shown in Appendix D.
II. Judicial Actions
Judicial action under the asbestos NESHAP can take
the fore of a civil action as provided for in Section 113(b),
or a crj j j action as provided for in Section 113(c).
EPA can also pursue a civi l, action under Section 303, however,
no Region has done this to date. The September 28, 1987
memorandum entitled “Procedures for Pre—Referral Settlement
of Asbestos Demolition and Renovation Cases” (Appendix E)
outlines procedures for negotiated settlement through judicial
consent decree. These procedures are designed to facilitate
NOV is used here as a generic term to include letter of
violation, finding of violation, notice of deficiency, etc.

EPA or ____
Inepec Lion
with Source
1 -30’
Forual — Judicial - 1 13(b)
_________ — 113(c)
— 113.
Adelniatrat lye
__________________- 303
EPA Lead EPA Chooses Appropriate
Response to NESHAPs —
State lead
EPA Monitors
State Action
Cross Prograu - 17003 of RCRA
I!04 106(.) 107 of CERCLAI

- — 15 —
the settlement process and enable Regions to increase
judicial enforcement without straining resources.
EPA may bring a §113(b) civil action for fljunctjve
r lief requiring compliance with the regulations. EPA may
also seek civil penalties of up to $25,000 per day of
violation. EPA ’s present asbestos NESHAP penalty policy
is shown in Appendix B. Although civil actions under
113(b) do not ordinarily seek immediate injunctive relief,
the broad grant of authority to “commence a civil action
for a permanent or temporary injunctjo ” encompasses
temporary restraining orders and Preliminary injunctions.
In other words, the Government could proceed under 113(b)
to seek immediate compliance with the asbestos standards,
as well as civil penalties, provided it can satisfy the
legal standard for immediate injunctive relief.
EPA can initiate a Section ll3(c) criminal enforcement
Proceeding when there is evidence that a person knowingly
violated the asbestos demolition and renovation requjremen
A conviction under the criminal provision of the Clean Air
Act can result in imprisonment of up to one year and/or a
penalty of up to $25,000 per day of violation, and greater
sanctions are faced for a subsequent Conviction. The effective
use of the criminal provisions can provide a strong message
to the regulated community that EPA does not tolerate blatant
disregard for the asbestos NESHAP.
III. Contractor Listing
Another useful enforcement option is contractor listing
as degcjbed in 40 CFR S15.10 — 16. When EPA llstg a Contractor
that contractor cannot be awarded any contract to perform work
where edera1 funds are involved: Also, a listed contractor
cannot be Subcontracted to remove asbestos by another contractor
under contract with the federal government to perform asbestos
removal. Contractors convicted of criminal NESHAP violations
under CAA Section l13(c) are automatically listed as provided
in 515.10 (Mandatory Listing). Under S15.11 (Discretionary
Listing) EPA can list contractors which have violated a
S113(a) administrative order, received any form of civil
ruling from any court, or are the subject of a civil enforcement
action from EPA. Additionally, if any person who owns or
supervises a contractor firm is convicted of a criminal offense
by any court, that contractor firm can be listed. Appendix K
is intended to clarify the application of contractor listing.
State certification requiremen should require that state
certification will be revoked if a contractor becomes listed.
8. Choosing Enforcement Option — When detected, each
violation should be entered into the computer tracking system
described in Appendix A so as to provide a record of viola-
tions listed by contractor. In order to assist in deciding
when these records indicate that a particular enforcement
action is appropriate, the following tables were constructed.

Notification Violation Respon
No notification 113(a) order
Submittal of late notification 113(a) order
which is not received in time
to schedule inspection
Submittal of notification which 113(a) order
is missing dates, location and/or
amounts of asbestos
Submittal of an incomplete notice *Enter deficiency
of removal (Minor violations) on tracking system
Continued submittal of incomplete ll 3 (a)-order
notifications (Minor violations)
Violation of Order Civil Action
* As stated previously, this is done for every violation type.
Substantive Violatjons*
Detected during early stages 113(a) Order
of removal
i) Violation subsequently Consider Civil Action
ii) Violation Civil Action
lii) Unsure whether or not Issue 114 Information
violation corrected Request and Consider
Civil Action
Detected after removal or during Issue 113(a) Order
final stages of removal while writing civil
referral package
* Substantive violation is a work practice violation
detected during inspection or from a S114 information
request response.

9. Assessing Penalties — The Asbestos Demolition/Renovation
Penalty Policy (Appendix B) provides the framework for
assessing penalties for settlement purposes under the asbestos
.rESHAP. Consistent with the comprehensive penalty policy,
the Region should determine a “preliminary deterence amount”
by assessing an economic benefit component and a gravity
component. This amount may then be adjusted upward or downward
by consideration of other factors, such as degree of willfulness
and/or negligence, history of noncompliance, and ability to pay.
As stated by the Inspector General’s office, when resolving
litigated cases contractors should be required whenever
appropriate to provide a list of asbestos removal jobs for
which the contractor did not get the bid, and the names of
the successful contractors. Also, delegated agencies should
be required to document any mitigating factors that result in
penalty waivers or reductions.
10. Reporting — The format for SPMS reporting has been
revised. The SPMS form shown in Appendix G provides the
format which will now be required for SPMS reporting.
Violations will be reported in terms of substantive violations
(work practice violations dicovered during inspection or from a
S114 information request response) and notification violations
(late notices, notices lacking dates, location and/or amount
of asbestos in proper units). Also, the number of sources
inspected will be reported. When reporting the number of
referrals, include only those civil and criminal litigation
actions initiated in the same Quarter as the SPMS report
indicates. Collection referrals are not to be included.
Regions must ensure that there is no double—counting
of notifications. The practice of reporting two notifications
(one reported by the Region, and the other by the delegated
agency) for one removal activity makes it impossible to correctly
assess the number of removal jobs for which notification
was submitted. The number of inspections reported from the
delegated agencies should consist of only those inspections
meeting the criteria for a reportable compliance inspection
as described in Section 4 of this document.
11. Regional Oversight — Regional Offices should
implement an oversight program to ensure that the delegated
agenclis are performing acceptable compliance inspections,
and resolving violations appropriately. Performing joint
EPA—state inspections is the best method to review delegated
agency inspections and establish the criteria which constitute
an acceptable compliance inspection. Each delegated state’s
program should be evaluated to assess inspector training and
safety as well. For Regions with both delegated and undele-
gated states, Regional inspections should be concentrated
In the undelegated states. Regions should construct written
reviewable inspection programs which incorporate the inspection

criteria documented in Section 4 of this document as well as
the targeting system established in Section 5 of this docume
Regions should also ensure that delegated states do likewise.
A written assessment of each delegated agency’s compliance
with grant conditions including the verification of program
results should be made se m i—an nual ] . y by the Regions.
12. Cross—Program Coordination — In addition to being
regulated under the N!S AP program, asbestos is regulated
under OSHA provisions, the EPA Toxic Substances Control
Act (TSCA) Title I, and TSCA Title II. Under TSCA Title I,
the TSCA Worker Protection Rule regulates any asbestos
abatement work (removal, encapsulation, or enclosure)
performed by persons employed by state, county, or local
government in those states without an OSHA delegated program
or an EPA approved exempt program. These states are listed
in Appendix 3. The Office of Toxic Substances expects to
extend coverage of its Worker Protection Rule to service
personnel who, in the course of operations and maintenance
activities, receive exposures comparable to those experienced
by private sector service workers performing work subject
to OSHA.
The OSHA provisions require an 8—hour time—weighted
average airborne employee exposure of not greater than 0.2
fibers per cubic centimeter of air. Engineering controls,
wet methods, respirators and special clothing are required.
The Worker Protection Rule imposes the same major require-
ments of the OSHA provisions, but differs in that the Worker
Protection Rule applies solely to activities involved in
asbestos abatement, in contrast to the OSHA standard which
applies generally to any construction activity involving
exposure to asbestos. NESHAP inspectors can help OSHA’s
enforcement efforts by reporting the absence of required OSHA
safety measures at inspected NESHAP removal sites. To help
implement such an effort the standardized NESHAP inspection
checklist (Appendix H) has a section for recording the
presence or absence of required OSHA measures. When the
negligence of OSHA requirements are noted by NESHAP inspectors,
OSHA should be notified as soon as possible. When the negli-
gence of OSHA requirements are observed at a NESHAP site
where removal work is being done by state or local government
employees at one of the states listed in Appendix J, in
addition to notifying OSHA, the inspector should ensure that
the TSCA Regional Asbestos Coordinator (RAC) is notified as
well for possible violations of the Worker Protection Rule.
Under TSCA Title II, the Asbestos Hazard Emergency Response
Act (AHERA) requires local educational agencies (LEAs) to
inspect school buildings for asbestos containing material,
and develop and implement managerial plans. Persons designing
and conducting response actions (i.e., removal, encapsulation
enclosure, or repair) in a school building must be accredited
under AHERA for that activity.

— 19—
EPA NESHAP and TSCA programs in the Regions should be
coordinated to maximize information collection and sharing.
consolidate compliance assistance efforts, and unify enforce-
ment activities among all the Agency ’s asbestos programs.
Pilot programs should be initiated to formally or informally
coordinate NESHAP and TSCA activities in the field. In Region
VII, a full—time technical assistant under the Senior Environ-
mental Employment program of the American Association of
Retired Persons (AARP) acts as lIason between NESHAP and
TSCA efforts. In Region X, the NESEAP coordinator and the
TSCA RAC voluntarily coordinate program activities to
maximize resources and provide a more unified presence to
the affected public.
When a NESHAP inspector inspects a renovation taking
place at a school, the inspector should ascertain whether or
not site supervisors and removal workers are accredited under
the EPA Model Plan required by AHERA. If AHERA aceredidation
requirements have not been met, this should be reported to
the TSCA RAC. Considering that most TSCA inspections are
performed by AARP personnel who are restricted from entering
removal sites when work is ongoing, TSCA can benefit greatly
from any pertinent information obtained by the observations
of NESHAP inspectors inside the removal area. If the TSCA
program develops a pamphlet describing AHERA record—keeping
and clearing response action requirements, NESHAP inspectors
can hand these out at schools they inspect. NESHAP inspectors
can also verify if transportation and disposal of asbestos
wastes from these schools is in accordance with NESHAP/DOT
requirements. Also, NESHAP personnel should inform the TSCA
section when a notification is received from a school.
EPA TSCA inspectors should notify the NESHAP Regior al
Asbestos Coordinator CRAC) whenever apparent violations of
wetting, bagging, no visible emissions, and/or disposal
requirements at NESHAP removal sites are observed by their
inspectors. TSCA inspectors can also provide the NESHAP
RAC with a list of known removals based on records inspec-
tions. OSRA inspectors should also notify the NESHAP RAC
when potential NESHAP violations are observed.
As members of the Federal Asbestos Task Force established
in June 1983, EPA and OSEA are mandated to develop a unified
federal approach for the regulation of asbestos. The preceed-
ing coordination recommendations are examples of objectives
which should be agreed to in writing by the EPA offices and
OSHA to memorialize that this type of cooperation will take

Interim Asbestos NESHAP Enforcement Guidance-
“Friable asbestos” 1% by Area or Volume vs. 1% by
NOTE: Confidential memorandum portion of this
guidance is included in Section I below.

Interim Asbestos NESHAP Enforcement Guidance -
“Friable asbestos” 1% by Area or Volume vs. 1% by Weight
The memorandum portion of this document, signed by Terrell E.
Hunt, Associate Enforcement Counsel for Air Enforcement and John
S. Seitz, Director of the Stationary Source Compliance Division,
is confidential and cannot be re1ea ed to the public. The
attachment to the memorandum is releasable and is attached

Agency .X :c.a6c
T oxic Suos a ces
Asbestos Content In Bulb
Insulation Samples:
Visual Estimates and
Weight Composition

EPA 560/5.88.011
September, 1988
Visual Estimates and Weight Composition
Ian M. Stewart
RJ Lee Group
Monroeville, PA L5146
Prepared for
Midwest Research Insitute
Kantas City, MO 64110
EPA Contract No. 68-02.4252
Work Assignment 43
MRI Project 886 1.A43
Field Studies Brancb
Exposure Evaluation Division
omce of Toxic Substances
U.S. Environmental Protection Agency
Washington, DC 20460

This report was prepared under contract to an agency of the United States Goven ment.
Neither the United States Government nor any of their employees mak any warranty,
expressed or implied, or assumes any legal liability for any third party’s use of or the
results of such use of any information, apparatus, product, or process disclosed in this
report, or represents that its use by such third party would not infringe on pnvately owned
rights. Mention of trade names or commertial products docs not constitute endorsement
for u .

In April 1973, the U.S. Envm,uumntal Protection Agency (EPA) issued the National
Ernissia Standards for Hazardous Air Pollutanu (NESHAP) for asbestos (38 FR 8820).
The NESHAP regulation governs the removal, demolition, and disposal of asbestos-
containing bulk wastes. An sbestcs-cootaining product, as stared by the regulation, was
defined for the first tinte to be a product with rearer than 1% asbestos, by weight The
intent of d 1% lint was: ban the use of materials which contain significant
quantities of asbestos, but to allow the use of materials
which would: (I) contain iracc amounts of asbestos which
occur in nu rous natural substances, and (2) include very
small quantities of asbestos (less than 1 patent) added so
enhance the material’s effectiveness (38 FR 8821)
ft must be clearly uakrsrood that the EPA NESHAP definition of 1% by weight was not
establish l so be a health-based standard.
In May 1982, EPA issued a regulation which required schools to inspect and sample
suspect friable sunfacing materials for their asbestos content. EPA maintained consistency
in its definitain of an ube os-conraini sg material (ACM) by defining it as 1% by weight.
At that tin , the Agency investigated the available nzthodologies for measw u cnt of
asbestos fibers. The regulation included an int m nzthodology entitled *Int ri1fl Mcth
for the Det mftInon of Mbestos in Bulk Insulation Sample? (47 FR 23376). The
polarized light m uos pe (PLM) protocol issued by she Agency was prepared by expert
mineralogista and has been generally accepted by the analytical coannunity as the
appcri iate 1y l m n nir’t of asbestos ‘ nt in bulk &n les.
The inL —.ikt4 iacl ’ a description of iii quanthatios proccdsat. This procedure
employs aa point cotmtãng to provide a noa 1 she area percent
of ub in nj4c. Bard on a n remcnt c le by point counstog. she 1982 nile
stases efiabic onnvu of area percent so y wàgbz is not w átly feulbie unless
the eci& çavi s ar relative voluw of she n ia1 e n. EPA nded this
in a iecthm so tite segulanix in Se 19$2 (47 PR 3*535). EPA altered
psragr b of Appeedia A of the rule by aüg. Parsçap of Appendix A
of she rUle wan intended so provide for a point counrmg procedwe or an equivalent
esrrn on thod for &wmi’ ”g the a unt of asbe s in bulk nirpks. This

correction, acknowledged the practical and economic limitations of the point counting
method and permitted the use of the visual estimation methodology. Visual estimation
methodology is employed by most PLM laboratories and gives results which are very
Simil2r to a vol ‘centege.
In the following discussion, the validity of the assumptions that are made in exuapolating
an area/volume percentage estimation to a weight percentage estimation of the asbestos
content of insulation and other building materials will be examined. The reader should note
that this discussion considers only the expected variation from the ue weight percentage as
is found when applying the visual estimate technique to determine the asbestos content in a
bulk sample. 1 questions of labaratorj/analyst variability of such visual estimations are
not considered in this discussion.
The principles of stereology are well documented (see, for example, “Quantitative
Stereology,” Underwood) 1 and will not be reiterated here other than to state that in
classical s(ereology, with the assumption of a homogeneous disthbution of phases within a
solid, there is a direct relationship between the volume fraction of a phase present in the
solid and the area fraction of that phase observed in a section taken through the solid.
That is to say,
where V , refers to the volume of the phase p present in the total volume V. and Ap
represents the area projection of that phase in a planar section of that solid of total area A.
It should be noted that, for the classical rules of stereology to apply in a nansmission
sample, the section through the sample should be no thicker than the thickness or diameter
of the smallest inpooenz .
The point counting method has been cn ci 4 as a technique for observing ACM because it
does not take into consideration the fact that the ubestos fibers present may be
comparatively thin in the Z dhecdon relative to the ocher components present . Thus, if the
volume percentage of asbestos present is ex apolated from the projected area obtained by
the point counting technique, the volume percent of asbestos present will generally be
Underwood, ,LE., Q w swae Ssere ogy, Addison-Wesley Publishing Compsiy. (1970)

& swi, c majority c i Iaborax es analyzing ACM have adopted a
visual esmviai 4ijch allows a iain amount at 1añnx on the p t of the mictoscopist
compens for this thickness f tcr when ex n innig t 9 les on the mia oaco slide . In
most instances , the visual estimation of asbestos content is an a s ooiiaoscope
with which the rnicroscopist may mote ftMily estimate the third dinrns&on. fl refore,
these estimates may be wore readily extrapolated to a volume p #ntage than those from
the point count method. This technique is essentially thai which is proposed in the bn rim
American Society for Testing and Materials (ASTh() Methot Cunendy. this method is
being considered for adoption by the National Instinate of Standards and Technology
(formerly the National Bureau of Standards) as part of i rs National Voluntary Laboratory
Accreditation Program for the determination of bulk asbestos in stnrpka. This procedure
will provide a measurement of the asbestos in the san le which may be easily extrapolated
to a volun measweme’ t .
The currently accepted and most generally used methodology for the identification of
asbestos in building matenab is compatible with both the EPA interim method and the
proposed ASTM method. Identification of the asbestos type present using polaxited light
microscopy follows accepted uuneralogical practices. The quantification of the asbestos
content by visual estimation which is used is acceptable w r the amendment to the 1982
Regulation published in the Federal Reeister arid is substantially the same as that
recommended in the ASTM method. It can be seen that there is continuity of appronch and
direct correlation between existing data and that which may be produced m the ASTM
While the visual stiw o11 proccd ne is geserally csll d d polarised light microscopy
method, the microscopist, in fact uses a combination of a low m gnificarioit stereo-
mi ro. x b’pielhein y t, ’ithtafl aid i 1w&Ii v of the per ge o( fiber type,
followed s ailsd mination , using the polariad light mi’oa ope , of individual
fibers re 1kr m the bulk materiaL The prtxedwe has been ondiried in a draft to
ASTM C D22.O5 dated January 14. 198 Sta,wI ,d Mabod of Testing far
Asbestos- .c iñg Materials by Polar ‘ g os y.

The method calls for bulk samples of building materials ib be fIrst examined with a Low
power binocular microscope. By use of such a microscope, the following observations can
ben12 .
(1) Thefib ,canbec recmd.
(2) The homogeneity of the material can be determined.
(3) A preliminary ideniiflcation of the fibers present can be made.
(4) An esumaze of fiber content by volume can be vtwI.
(5) Fibers may be separated from the marnx for more detailed
analysis of subsamples with the polarized light microscope.
The method has been used, essentially in its present form, by the majority of the
participants in the EPA Bulk Sample Analysis Round Robin progani. These results
indicate generally good reproducibility and good accuracy in assessing the volume
percentage of an asbestos mineral present in an insulating m2terial. The accuracy of such
an analysis does not differ very greatly from the expected inhomogeneity (or homogeneity)
of the material being analyzed (manufacturers’ specifications generally show a range of
composition for any one product which frequently was additionally modified a x the point of
application). In the ASTM technique, quantification of asbestos content is discussed in the
following terms: “A quantitative estimate of the amount of asbestos present is most readily
obtained by visual comparison of the bulk sample in slide preparations to other slide
preparations and bulk samples with known amounts of asbestos present in them.” The
document goes on to stare that estimates of the quantity of asbestos obtained by the method
are neither volume nor weight percent estimates, but are based on cstunañng the projected
area, from observation, of the disn’ibution of particles over the two di nsional surface of
the glass slide, and on an observation of bulk materiaL and that a basis for correcting to a
weight or volume percent has not been established. It is this latter aspect which will be
discussed more fully in this document. The ASTM method, however, provides for the
percentage to be first assessed from the bulk material as observed on the ssereonñcroscope;
it would seem, therefore, that this percentage is a closer approximation to a volume
percentage rather than a projected area one. In addition the ASTM document states.
“However, the error inn’oduced by assuming that the estimates are equivalent to weight
percent is probably within the precision of the visual estimate technique.”

To correlate the weight fiction of the phase to its area or volume fraction, it is necessary,
as is pointed out in the 1 EPA Test Method , that the specific gravies and relative volunr
fractions of all the phases present in the rnareriai aze
In any inulticomponent system consisting of 11 components, the weight percent of
cc ponent I is given by d following forznulL
P xV 1 x 100
i i ()
. Pi x V 1
i 1
where P 1 is the specific gravity of the ith component and V 1 is the volume of the ith
component Fww this (annuls, it is clear that if the volume percent and the density of each
individual element in a bulk insulation sample is known, it would be possible to obtain a
weight percentage for any particular component and specifically for those components
which are classed as asbestos. To determine this information experimentally would,
however, be extremely time consuming, requiring the separate identification of each
component in the mathx, determining its specific gravity fzu u reference tables, and
applying these factors in dte formula.
An alternative conversion is therefore suggested in which an average t nsity is assumed for
the nonasbesu manu. In this model, the weight percentage, Wa, of a particular asbestos
type present a volume percentage of V 1 and having a density of P 1 present in a matrix of
density Pm cnbyd fcNniula
P.xV 1 x lOO (2)
(lOOVii)XPm+(Va Pi)
The densit, aluc ascribed to the nonasbestos menu should be selected taking into
consideratioa major constituents of the matrix but, for a large range of commonly
ev oun1ered inorpnic methoss, a value of 2.5 g#cm 3 may be aw 1 L
L .... M --d 1 D*.—ir io , of A e s ui B “-‘ - —
A dOM(A42 , .c — , l9S2.

These formulas will be applied to a range of samples. In applying formula 1 to determine
actual weight percentages, published values for the several components were used. To
determine the weight percentages using the mode! described by formula 2, a ma ix density
of 2.5 g/crn 3 was assumed.
Sample 1 Acoustical Material
Sample 1 is a sample of an acoustical material taken from an actual ceiling beam nt
Cornoonent Vol% Wt% ( Actual) Wt% ( Model’ )
Chrysotile 15.0 15.12 15.51
Glass Fiber 60.0 60.47
C bonate 10.0 10.85
Cement 3.0 3.26
Clay 10.0 8.53
Gypsum 2.0 1.78
(Appendix 1 shows in detail how these weight percentages e calculated. )
Sample 2 Round Robin Sample from Independent QC Ring
Sample 2 is from an independent round robin sample series in which four laboratories
participated. Reported values for amosite content were 30%, 30-40%, 45%, and 15-20%.
The results from the second laboratory were taken using the midpoint of the reported
compositional range (the midpoint of the reported range for sample two was selected as
most probably representing the actual composition, lying between the reported values of
one and three, wuh low regarded as an outher).
Comoonent VoI% Wt% ( Actual) Wt% ( Model )
Amosite 35.0 38.82 41.55
Carbonate 35.0 32.94
Cement 30.0 28.24
Sample 3 Sample A EPA Bulk Sample Analysis Round Robin No. 16
Sample 3 is sample A from the EPA Bulk Sample Analysis Round Robin series, Round
number 16.
Coniponent Vol%1 Wr% ( Actual) Wt% ( Model )
Amosiz 3.0 4.04 3.92
Glass 87.0 92.29
CellUlOse 10.0 3.67
Volume p centage data for samples 3,4,5 and 6 ate averages i cn from EPA Round Robin
tepom and would not nosmally be reported to this level of signifi xe.

Sample 4 Sample D EPA Bulk Sample Anal,si, Round Robin No. 16
Sample 41s S npIe D from the EPA Bulk Sample Analysis Round Robin series, Round
Number 16.
Vol% Wt% ( Acniafl W Modcfl
Chry otile 3.0 3.53 3.12
aay 97.0 96.47
Sample 5 Sample D EPA Bulk Sample Analysle Round Robl No. 17
Sample S is Sample D from the EPA Bulk Sample Analysis Round Robin series, Round
Number 17.
C nem Vol% Wt% ( Ac mfl Wt% ( ModeJ )
Chrysotile 2.9 2.56 3.01
Ar 30.7 34.40 36.90
66.3 63.04
Sample 6 Sample A EPA Bulk Sample Analyth Round Robin No. 17
Sample 6 is Sample A from the EPA Bulk Sample Analysis Round Robin sertes, Round
Number 17.
1.1 1
Vo l%
Wt% ( Mnial )
Wt% ( Mcdel
oci 1ite
It is clear fi ,m these data that, for most samples, the weight pcr cn ge of the asbestos
con nt is not substarnially diffuent fmm the volun perv n which is r l1y reported
and is within the expected variation both of the analytical procedure and the sample
homogeneity. A close CViT of the weight petc nte can be derived from a simple
model which assun s an avera mamx density of 2.5 gkm 3 .
Plots of 1k ffesence between observed voluix percentage and ca1culat d weight
pcrvcntas yiixik, ‘ nsity 2.6 f/cm 3 . (Figwe 1) aM aocideli , density 3.4 glcm 3 .
(Figure 2) s n osJcuIa d using this model . 7k naFimmn deviation between the
numerical vali of weight and volu percmage O u sear the 50% wait and, in the
case (crocidelise), is less than 10%.
Exceptions will be fonnd in samples whose matrices have sig,tif in*ly higber or lower
densities than 1k asbes ,s observed . Figwe 3 puenls the eAuea c of crocidolite
(density 3.4 gkm 3 ) in a watra o(cdllulose with an wi- .- 4 a uage deniiiy c i 0.9 g/cm 3 .

The magnitude of the discrepancy in the critical region near 1% is shown in figw 4. If
only the volume percentage estimate is used, mass percentages as high as 3% would be
reported as below the definition of ACM. In this case, a conversion to weight percentage is
necessaiy if the weight percentage is not to be gossly underestima ed.
Some samples, for example floor tiles, roofIng felts, and sortie cementitious products, may
require special ueatment (ashing, solvent or acid extiaction) to separate the asbestos from
other materials in order to facilitate analysis. In such cases, the resulting weight loss of the
sample due to ueaai nt must be recorded and any volume to weight perccntage correction
applied to the remaining material must be further corrected to take this weight loss into
considerauon. For example, if 30% asbestos is detected in a sample after processing which
resulted in a 25% weight loss, then the corrected asbestos content is 0.75 x 30 z22.5%
An assessment has been made of the validity of extiapolaring to a weight percentage the
area or volume percentage of asbestos present in a sample as determined by polarized light
microscopy. A model has been presented which can be applied to area or volume
percentage data to give a more accurate estimation of the weight percentage. With the
&cepnon of asbestos-containing materials having a subs ra,uial dertsity differe,uial between
matrix and asbestos, generally low dertsity cellulosic or per! inc matrices, the magnitude of
this correction is smaller thai, the expected variability imposed by both the analytical
variatson and the inhomogeneijy of the sample. As a result, the weight percentage of
asbestos prese,u can generally be equnred with the obser’ed area or volume percentage.
The following recommendations e made :
1) For samp s whose approximate average rna ix density is close to that of the
asbestos species observed (within 0.5 glcrn 3 ), assume equivalence of weight
and ea or volume p ventege.
2) For samples whose approximate average marnx density differs from that of
the asbestos species present by more than 0.5 g ,/cm 3 , convert the observed
area or volume percentage to weight percentage using formula 2, using a
marnx density consistent with the principal mauix components.

Calctilirt d r 1a onship between weight pettentage and volume peitentage of chiysotjle
(density 2.6 glcm 3 ) in marnx of average density of 23 g/cm 3 .
0 0.00 0.00
5 5.17 0.19
10 10.36 0.36
15 15.51 0.51
20.63 0.63
25 25.74 0.74
30 30.83 0.83
35 35.90 0.90
40.94 0.94
45 45.97 0.97
50 50.98 0.98
55 55.97 0.97
60 60.94 0.94
65 65.89 0.89
70 70.82 0.82
75 75.73 0.73
80 80.62 0.62
85 85.49 0.49
90 90.35 0.35
95 95.18 0.1$
100 100.00 00.00
vI1 1u — 1.

Calculated r 1atioiuhip betw n weight pen entage and volume percentage of crocidolite
(density 3.4 g(cth 3 ) in a matrix of average density 2.5 g/cm 3 .
0 0.00 0.00
5 6.6 1.68
10 13.13 3.13
15 19.35 4.35
20 25.37 5.37
25 31.19 6.19
30 36.82 6.82
35 42.27 7.27
40 47.55 7.55
45 - 52.67 7.67
50 57.63 7.63
55 62.44 7.44
60 67.11 7.11
65 71.64 6.64
70 76.04 6.04
75 80.31 5.31
80 84.47 4.47
85 88.51 3.51
90 22.45 2.40,
95 96.27 1.27
100 100.00 0.00
1 se values pløtied to puvduce die cw ci Pigwe 2.

Calculated re1a onship between weight percentage and volume percentage of croci olite
(density 3.4 gk&) in a mairix of average density 0.9 g/cm 3 .
0 0.00 0.00
5 16.59 11.59
10 29.57 19.57
15 40.00 25.00
20 48.57 28.57
25 55.74 30.74
61.82 31.82
35 67.04 32.04
40 71.58 31.58
45 75.56 30.56
50 79.07 29.07
55 82.20 27.20
60 85.00 25.00
65 87.52 22.52
70 89.81 19.81
75 91.89 16.89
80 93.79 13.79
85 95.54 10.54
97.14 7.14
95 98.63 3.63
— 100.00 0.00
e p d cww Rgc 3.

Calculated relaüonship between weight percentage and volume percentage of crccidolite
(density 3.4 g/cm 3 ) in a mathx of average density 0.9 glcm 3 over the range 0 to 2
00 0.00 0.00
0.1 0.38 0.28
0.2 0.75 0.55
0.3 1.12 0.82
0.4 1.49 1.09
0.5 1.86 1.36
0.6 2.23 1.63
0.7 2.59 1.89
0.8 2.96 2.16
0.9 3.32 2.42
1.0 3.68 2.68
1.1 4.03 2.93
1.2 4.39 3.19
1.3 4.74 3.44
1.4 5.09 3.69
1.5 5 .44 3.94
1.6 5.79 4.19
1.7 6.13 4.43
1.8 6.48 4.68
1.9 6.82 4.92
2.0 7.16 5.16
Theic ak s wue plostad m Foth ie cave d Flg 4.

Mass - Volume Percent Dtfferential
Chrysotile In Matrix Of S.G. 2.5
Observed Volume Percentage
0 10 20 30 40 50 60 70 80 90 100
Figure 1.

Mass . V ume Percent Differential
Crocidolile In Matrix Of S.G. = 2.5
Obsirvid Volume Percentage
Flguts 2.
0 10 20 30 40 50 60 70 80 90 100

Mass. Volume Percentage D fferentiaI
Crocidolite In Matrix Of S.G. 0.9
0 10 20 30 40 50 60 70 80 90 100
Observed Volume PerCentage

Crocidolite In Cellulose Matix
0.2 0.4 0.6 0.8 1.0 1.2
Observed Volume Percentage
FLguis 4.
1.4 1.6 1.8 2.0

Examples of Calculations
) Actual Weight Percentages
Sample #1
WE. %
Density Ret. Wt. x 100
Compound Vol. % (g/cm 3 ) Relative Weighs Total Ret. Wt.
(Thrvcorile 15.0 2.5 :5 x 2.6 = 39.0 15.12
Glass Fiber 60.0 2.6 óO x 2.6 = 156.0 60.47
‘ rbonate O.0 2.C 10 x 2.8 = 28.0 10.85
C. .ment 2.8 3.0 x 2.8 = 8.4 .26
Olav 10.0 2.2 10.0 x 2.2 = 2Z0 3.53
Gypsum 2.0 2.3 2.0 x 2.3 4.6 !.78
TOTALS h)O.0 258 Y)01
b) Approxunaze weight percentages based on a model with assun 23 g/cTn 3 dez sity.
Sample #1
Vol. % Ret. WI Approx. Wt. %
Chrysotire 15.0 15 x 2.6 — 39.0 15.51
Non.asl stoscnan’ix 85.0 85x2.5 -212J
TOTAL& 100.0 251.S
Sai,pfr 0 ,
Sample 5 conmins both ctirysotüe and amosit . The ap wimare- weight j centage is
ca1cnJ 1 pera*1y fireach asbesw type as follows:
Vol. % Ret. Wt. Approx. Wt. %
Cbry le (density 2.6 Wcm 3 ) 2.9 2.9 x 2.6 7.54 3.01
Non-chrysotile marnx 97.1 94.1 x 2.5 242.75
Chrvsotfle totals 100.0 / 250.29
-m ite (density 3.3 gicm 3 ) 0 7 101.31 36.cO
on-chrvsotile,matrzx .. p3.25
rrosite tr,tals 74.56

I - PAGE EPA 560/5-88-011 I - — . S
Lnnu,..uu..imtiri .
‘Asbestos Cont in Bulk Insulation Sanples: Visual Estimates Sept pber 1988
and Weight r ,osition
a. -i- _ i —
Ian M. Stewart
L P.dss.u. 4 ssd
I L /T I t t I .
a. RJ Lee Group, f’bnroeville, PA 15146
b. Mid west Research Institute, Kansas City, ‘O 64110 _____ ___
Proj t No. 8861-A43
I l. Se’ so.4t Nivii A ____ _____
13. Tp W t & •iuj
U.S. Envirornental Prot tion Agency
Office of Toxic Substances/Exposure Evaluation Division
401 M Street, SW
Washington, DC 20460
I L . -, *ary N
IL M n 1 (Ut -
This doct ent discusses the validity of the assunptions that are made in extrapolating
and area/volune percentage estimation to a weight percentage estimation of the asbestos
content of insulation arid other building materials. The docuiient provides recaunendations
for determining the asbestos content in bulk insulation sanpies.
17. Doo A I 1s a. 0..1J.... .
Polarizad Light Microscopy
Asbestos Analysis
Bulk Insulation Saiple Analysis
b. Id uao.s/O nL T
II. Avs Iey Ila . IL L . . _ . (T U ... ib 1 . d P ss
I Ilrr1 Q 4Fi,w 4 I 1 ri
Avaij i.i :o ?ubiic
!Unc1assiCi d _________
(S.. AD S1-Z39 211 3_ I. n.u .A *. _ , OPV t L Y0N
0I C

Clarification of EPA NESHAP Policy -
Nonfriable Asbestos

1 ” 4 b1
FEB 2 3 1990
SUBJECT: Clarification of EPA NESMAP Policy — Nonfriable
FROM: Michael S. Alushin’ 4/
Associate Enforcement Counsel
for Air
John S. Seitz, Director
Stationary Source Comp nce Division
Office of Air Quality Planning and Standards
TO: Addressees
Attached please find a discussion of our current
interpretation of how nonfriable asbestos containing materials
should be handled pursuant to the asbestos NESHAP, 40 C.F.R. Part
61, Subpart N (Section 61.140 . g. Please file the attached
document in Part D (Section 112) of your Policy Compendium as
Document 11.
Addressees: Gerald Emison
Office of Air Quality Planning and Standards
James Strock
Assistant Administrator
for Enforcement
Alan W. Eckert
Associate General Counsel
Air and Radiation Division
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions 111 and IX
Air and Radiation Division Director
Region V

O S ? 4 .
.t’ ‘ j’

Office of Air Quality Planning and Standards
Research Tnangle Park, North Carolina 27711
FEB 2 3 1990
SUBJECT: Clarification of EPA NESHAP
Jack R. Fanner, Director
Emission Standards Division
John S. Seitz, Director
Stationary Source Compi lance
Michael S. Alushin
Associate Enforcement Counsel for Air
See Below
This memorandum clarifies the requirements of the Asbestos NESHAP
regarding nonfriable asbestos containing material (ACM), such as floor tile, -
roof ing material, packing, and gaskets.
The issue of friability and the intent of the original standards for
demolition and renovation activities have been the source of many questions
and coninents. In recent months, we have spent considerable time discussing
this issue and reviewing subsequent interpretations of the standards. The
rulemaking proposed on January 10, 1989 only addresses administrative changes
or clarifications to the original standards. Thus, the final rulemaking can
not result in a change that would affect the stringency of the original
In the original rule, published in 1973, a distinction was made between
building materials that would release a significant amount of asbestos fibers
and materials that would not. Floor tile, roofing material, packings, and
gaskets were identified as materials that would not release significant
amounts of fiber when disturbed. The term friable M was used to make this
distinction. In December 1985, we issued a determination which stated that if
nonfriable ACM could be damaged to the extent that it would be crumbled,
pulverized, or reduced to powder, it should be removed prior to demolition.
The 1985 determination was intended to affect only practices and ACM that
could result in the release of significant quantities of asbestos. While it
was unclear whether this determination was intended to affect ACM such as
floor tile, roofing material, packings and gaskets that are not friable, some
delegated enforcement agencies were inferring this material must be removed
prior to demolition to ensure compliance with the NESHAP.
Enforcement (LE-134A)

Air, Pesticides arid Toxics Management Division
Regions I, IV, and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Regional Counsels
Regions I - X
Air Branch Chiefs/Team Leaders
Office of Regional Counsel
Regions I - X
Air Division Branch Chiefs
Regions I - X
David Buente, Chief
Environmental Enforcement Section
U.S. Department of Justice

Although no research has been conducted on the conditions which will
cause nonfriable materials to become friable, it is considered probable that
some conditions (e.g. severe weathering, prolonged exposure to harsh
chemicals) will cause this effect. Furthermore, certain practices such as
burning, sanding, or grinding could crumble, pulverize, or reduce to powder
nonfriable ACM.
Therefore, we recomend the following approach:
Floor tile, roofing material, packing, and gaskets (normally
nonfriable ACM) must be inspected before demolition to determine if the ACM is
in poor condition, indicated by peeling, cracking, or crumbling of the
material. If normally nonfriable ACM Is in poor condition, then the material
must be tested for friability. If the ACM is friable, it must be handled in
accordance with the NESHAP. The above four nonfriable ACM should be removed
before demolition only if they are in poor condition and are friable.
- If the nonfriable ACM is subjected to sanding, grinding, or abrading
as part of demolition or renovation, then the nonfriable ACM must be handled
in accordance with the NESHAP. If a building is demolished by burning, all
ACM must be removed prior to the demolition.
We believe that this approach is consistent with the original rule and the
1985 interpretatIon.
After passage of Title III of the new Clean Air Act amendments we
intend to review the asbestos NESHAP. This will allow us to further consider
appropriate changes to this NESHAP.
Kent Anderson, OSW (WH-565E)
Mike Beard, CR0 (MD-li)
Jim Crowder, ESO (MD-13)
Fred D1n 1ck, ESD (MD-13)
Stan Ourkee, ORD (EH•340F)
Pat Embry OGC, (LE-132A)
Robert Fegley, OPPE (PM-221)
Charlie Garlow, 0 (0 1 (LE-134A)
Charles Gregg, OW (WH-556)
Bob Jordan OTS (TS-788A)
Asbestos NESHAP Coordinator, Regions I-X
cc: Bob Ajax (MD-13)
Robert Bronstrup, EPA-DIG - Chicago
Regional Counsels, gions I -
Kathy Kaufman, OPAR (ANR-443)
Bob Kellam, (SD (NO.13)
Dennis Kotchmar, ECAO (MD-52)
Gary McAlister, ESD (MO-19)
Bruce Moore, ESO (MD-13)
Brenda Riddle, (SD (NO.13)
Sims Roy, ESD (MD-13)
Ron Shafer, SSCD (EN-341)
Al Vervaert, (SD (MD-13)
Dave Wagner, 015 (15-794)
Roger Wilmoth, AEERL, Cincinnati
Gil Wood, EMS (NO.14)
Ron Campbell (NO.10)
giona.l. Cot s’3l ir Branth C efs

Inclusion of CERCLA Section 103(a) Counts
in Asbestos NESHAP Cases

/ASHiNGTON DC. 20460
/41 ’. - 5 990
SUBJECT: Inclusion of CERCLA Section 103(a) Counts in Asbestos
FROM: Michael S. Alushin 41
Associate Enforcement Counsel
for Air
Glenn L. Unterberger
Associate Enforcement Counsel
for Superfund
TO: Regional Counsels
Regions I-X
The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) requires notification to the National
Response Center immediately following the release of a hazardous
substance in an amount that exceeds its reportable quantity.
42 U.S.C. § 9603. Asbestos is a CERCLA hazardous substance.
42 U.S.C. § 9601(14); 40 C.F.R. § 302.4. Accordingly, we
encourage regions to review asbestos NESHAP referrals for
determination of whether CERCLA causes of action also exist. The
purpose of this memorandum is to assist that effort by
identifying the elements necessary to establish a CERCLA Section
103(a) claim and providing a legal analysis of relevant statutes
and regulations. In addition, this memorandum discusses criteria
for selecting cases to add CERCLA counts and suggests a $15,000
minimum settlement penalty amount for each violation.’
‘A draft CERCLA Section 103 penalty policy currently exists.
Regions should apply that policy when it becomes final (to be
issued as OSWER Dir. No. 9841.2).
Prwitid on Re;, Paer

We recommend that CERCLA Section 103(a) violations be alleged
when prima facie evidence exists. 2
Pursuant to Section 103(a) of CERCLA, a person in charge of
a facility is required to notify the National Response Center as
soon as he or she has knowledge of a release of a hazardous
substance from such facility in an amount equal to or greater
than the reportable quantity for that substance. The failure to
report the release subjects the non-reporting party to judicial
or administrative proceedings and penalties of up to $25,000 per
day of the violation. 42 U.S.C. § 9609(a),(b) and (C).
Penalties of up to $75,000 per day may be imposed in the case of
a second violation.
Thus, in order to prevail on a CERCLA Section 103(a) count
the United States must establish that a) the defendant is a
person; b) the defendant was in charge of a facility from which
there was a release of a hazardous substance; C) the quantity of
the substance released was equal to or exceeded the reportable
quantity for that substance; and d) the defendant did not notify
the National Response Center as soon as it had knowledge of the
2 The Emergency Planning and Community Right-to-Know Act of
1986 (EPCPA) similarly demands that a release of a reportable
quantity of an “extremely hazardous substance” or CERCLA
“hazardous substance” be reported to the local Emergency Planning
Committee and the State Emergency Response Commission for the
area likely to be affected by the release. 42 U.S.C. § 11004.
In contrast to the CERCLA Section 103(a) reporting requirements,
which apply to any facility, the EPCRA Section 304 conditions
apply solely to a facility that “produces,” “uses” or “stores”
hazardous substances or chemicals. Thus, asbestos demolition or
renovation operations are not universally subject to Section 304
reporting requirements. Cases may exist, however, where it is
appropriate to allege both EPCRA and CERCLA counts.
CERCLA also authorizes criminal sanctions for the failure
to report the release of hazardous substances. 42 U.S.C.
§9603(b). While the elements of a Section 103(b) claim are
substantially the same as a Section 103(a) claim, the United
States’ burden of proof would be higher in a Section 103(b)
criminal prosecution. Because the Air Enforcement Division
docket consists of civil referrals, this memorandum discusses
exclusively Section 103(a) (civil) liability. Regions are
nevertheless reminded of the availability of including Section.
103(b) counts in criminal asbestos NESHAP cases filed under
Section 113(c) of the Clean Air Act.

The CERCLA definitions of key terms follow next.
A. Defined Terms .
1. Person -- the term includes individuals, firms, corporations,
associations and other entities, such as federal, state and local
government units. 42 U.S.C. § 9601(21).
2. Facility -- the term includes any building, structure,
installation, impoundment, landfill or site where a hazardous
substance is located. 42 U.S.C. § 9601(9).
3. Release -— the term covers virtually any contact with the
environment, including any spilling, leaking, pumping, pouring,
emitting, discharging, injecting, escaping, leaching, dumping or
disposing into the environment. The term also includes the
abandonment or discarding of barrels or other closed receptacles
that contain hazardous substances. Expressly excluded from the
definition of release is any release which results in exposure to
persons solely within a workplace. 42 U.S.C. § 9601(22).
4. Environment -- the term includes navigable waters, ocean
waters, surface waters, the drinking water supply, groundwater,
land surface or subst rf ace strata, or ambient air. 42 U.S.C.
§9601(8). The preamble to the reportable quantity regulations
makes clear that the notification requirements do not apply to
releases within wholly enclosed structures. 50 . g. 13456,
13462 (April 4, 1985). Several court rulings further indicate
that a building interior is not the “environment” for CERCLA
purposes. Covalt v. Carey Canada. Inc. , 860 F.2d 1434 (7th Cir.
1988); First United Methodist Church of Hyattsville v. United
States Gypsum Co. , No. JH—88—2030, slip op. at 11 (D.Md. Oct. 13,
1988). However, a release “into the environment” occurs if the
discharge remains on grounds controlled by the facility owner or
operator. 50 . Rig . at 13462.
5. Hazardous Substance -— the term is defined to incorporate
substances and chemicals regulated under environmental statutes
other than CERCLA, including the Clean Air Act. 42 U.S.C. §
9601(14). As noted before, asbestos is a CERCLA hazardous
substance. ; 40 C.F.R. § 302.4
6. Reportable Quantity —— the reportable quantity f or asbestos
is one pound. 40 C.F.R. § 302.4. Importantly, the reportable
quantity is limited to the friable form of the mineral. .
Even though CERCLA regulations do not define the term “friable
asbestos,” the reportable quantity should not be interpreted to
include one pound of “any material containing more than 1. percent
asbestos by weight that hand pressure can crumble....” 40 C.F.R.
§ 61.141 (definition of friable asbestos under Clean Ai.r Act).
Because the reportable quantity is restricted to the hazardous

substance component of a solution or mixture, 40 C.F.R. § 302.6,
one or more pounds of pure friable asbestos must be released for
Section 103(a) to apply. Liability is further conditioned on the
release of the reportable quan ity within one twenty-four hour
period. 40 C.F.R. § 302.6.
B. Undefined Terms .
As indicated, CERCLA provides definitions for most of the
pertinent Section 103(a) terms. Neither the statute nor the
regulations, however, give meaning to the phrase “in charge.. .of
[ a] facility.” For the purpose of alleging CERCLA violations in
asbestos NESHAP cases, it may be assumed generally that the
“owners” and “operators” liable for asbestos NESHAP violations
are similarly liable for violations of Section 103(a). A person
“in charge” of the facility could fairly be construed as the one
who “owns, leases, operates, controls, or supervises” the
demolition operation. 40 C.F.R. § 61.02 (NESMAP definition for
owner or operator). Moreover, one court has ruled that the
reporting requirements extend to any person able to discover,
prevent and abate the release of a hazardous substance. United
States v. Carr , 880 F.2d 1550 (2nd. Cir. 1989).
Although Section 103(a) liability requires that a person
have “knowledge of any release...of any hazardous substance,”
CERCLA does not define the knowledge requirement. Case law
interpreting provisions of other environmental statutes may
provide guidance.
In United States v. Hayes Intern Corp. , 786 F.2d 1499 (11th
Cir. 1986), the Eleventh Circuit Court of Appeals considered the
meaning of “knowingly” in Section 3008(d) of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6928(d) (RCRA), which
authorizes criminal sanctions for “(a]ny person who knowingly
transports... any hazardous waste.., to a facility that does not
have a permit....” The Hayes Court rejected the defendant’s
defenses that it was ignorant of the permit requirement and the
RCRA hazardous waste status of the material transported. I . at
1503. The court concluded that the United States met its burden
of proof by demonstrating that a) the defendant knew what the
waste was (in that case, a mixture of paint and solvent) and b)
the defendant knew that the disposal facility was not permitted.
The preamble to the CERCLA reportable quantity regulations
only states that the term “person in charge” is defined on a case
specific basis, depending on the specific operation involved and
other considerations. 50 . Reg . at 13460.

. at 1505. The court further noted that the United States may
prove knowledge with circumstantial evidence. .
To the extent an analogy can be drawn between the RCRA
definition of “knowingly” and the CERCLA definition of
“knowledge,” application of Hayes suggests the following
conclusions: First, liablitty attaches notwithstanding the
defendant’s failure to know of the reporting requirements or
failure to know that asbestos is a CERCLA hazardous substance.
Second, the United States must establish that the defendant knew
or should have known of the release and that the material was
asbestos. Third, the United States’ burden of proving “knowledge
of any release” should be less than the burden imposed in the
Hayes case. As a general proposition, the burden of proof in a
civil case is less than the burden of proof in a criminal case.
Because the Haves Court interpreted RCRA Section 3008(d) (a
criminal provision), the United States’ burden of proof under
CERCLA Section 103(a) (a civil provision) should therefore entail
a lower ‘standard than required in Hayes .
C. Exempted Releases .
It is important to note that discharges in accordance with
federal permits are exempt from the CERCLA reporting
requirements. 42 U.S.C. § 9601(10) and 9603(a). Also exempt
are continuous releases which are stable in size and quantity.
42 U.S.C. § 9603(f). Neither of these two exemptions or any
other CERCLA Section 103 exemptions apply to asbestos NESHAP
renovation and demolition cases. This memorandum thus addresses
criteria for including CERCLA counts.
As stated previously, the CERCLA definition of release
includes any “dumping, or disposing into the environment” and
“the abandonment or discarding of barrels...or other closed
receptacles containing hazardous substances. ...“ 42 U.S.C. §
9601(22). Consequently, particular attention should be paid to
cases that allege violations of the asbestos disposal
requirements. 40 C.F.R. § 61.151(a) and 61.156.
A Section 103(a) claim may be particularly appropriate if
the evidence indicates that a) asbestos waste material remained
on site after the completion of the demolition in violation of 40
C.F.R. § 61.152(a) and 61.156 or b) asbestos waste was
transported to or deposited at a location not qualified as an
“active waste disposal site” within the meaning of 40 C.F.R. §
61.156. Assuming, for example, that the waste material weighed
at least ten pounds, the reportable quantity is satisfied
provided the waste consisted of ten percent friable asbestos.

Moreover, if a large quantity of asbestos was present, there is
circumstantial evidence that the release occurred within one
twenty-four hour period. Liability may arise even if the
asbestos was stored in sealed containers; the definition of
release covers the abandonment of receptacles.
CERCLA claims should not be limited to cases that involve
conduct prohibited by the asbestos NESHAP disposal provisions.
Because of the unique circumstances of each referral, the
question whether to allege a Section 103(a) violation must be
decided on a case-by—case basis. Given the prospect of obtaining
significant penalties and further deterring violations, we
encourage adding CERCLA counts when prima facie Section 103(a)
evidence exists. Also, we presently recommend a bottom-line
settlement figure of $15,000 for each Section 103(a) violation.
The proposed figure is consistent with the Clean Air Act Civil
Penalty Policy provision that sets the minimum penalty amount for
reporting violations at $15,000. When the CERCLA Section 103
penalty policy becomes effective, regions should calculate
settlement penalties in accordance with that guidance.
Finally, we note that a number of criminal indictments have
charged violations of the CERCLA reporting requirements. United
States v. Charles A. Donohoo. Jr. , Cr. 89-00057, W.D.Ky.; United
States v. Cuyahoga Wrecking Co. , Cr. 88-497, C.D. Ca.; United
States v. DAR Construction. Inc. , Cr. 88-65, S.D.N.Y.; United
States v. Fineman. Boone and D’Avocato , Cr. 88-543, E.D.Pa. In
each of these asbestos NESHAP cases, violations of 40 C.F.R. §
61.152(a) gave rise to the CERCLA Section 103 counts. In all
cases litigated to judgment, the defendants pled guilty or were
acquitted on the CERCLA charges. Attached for your information
is a copy of an indictment.
If you have any questions about this membrandum, please call
Karen Schapiro of the Air Enforcement Division (F’rS 382—6240).
cc: Regional Counsel Air and Superfund Branch Chiefs
Regions I-X
Air Compliance Branch Chiefs
Regions I—X
NESHAP Regional Counsel Contacts
Regions I-X
NESHAP Regional Coordinators
Regions I-X
AED Attorneys

John Seitz, Director
Stationary Source Compliance Division
Omayra Salgado
Stationary Source Compliance Division
Bruce Diamond, Director
Office of Waste Programs Enforcement
Scott Fulton, Director
Office of Civil Enforcement
Paul Thomson, Director
Office of Criminal Enforcement
David Buente
Chief, Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice

JESSE W. G ir .
JUN 1989
U.S. DlST ;CT 3’:
NO. C ‘9- CC 57- C/- L (17
(18 U.S.C. § 1001; 42 U.S.C.
§ 7412(c) & (e), 7413(c)
and 9603(b))
c :;i:
El. S. Dtstri t Court
Louiev lle 1 .
/ ,4 i,-,
Datez - -
‘ . . eputy Clerk
At all times relevant to this Indictment:
was engaged in the business of wrecking and demolition in Jefferson
County, Kentucky.
contracted with Tuscarora Plastics, 816 South Eleventh Street, to
demolish and wreck a building on Tuscarora Plastics property, 831
South Twelfth Street, Louisville, Kentucky. The building, or
facility, to be demolished contained at least 260 linear feet of
friable asbestos materials on pipes or 160 square feet on other
facility components. Friable asbestos materials means any material
containing more than one percent asbestos by weight that hand
pressure can crumble, pulverize or reduce to powder when dry. The
materials are adequately wetted when sufficiently mixed or united
with water or an aqueous solution to prevent dust emissions. Title
42, United States Code, Section 7412. 40 C.F.R. Section 61.141.
The Grand Jury charges:

Asbestos was formerly used as insulation material for pipes, tanks,
ducts, c ialls, arid other structural components of buildings.
3. The Clean Air Act authorizes the United States
Environmental Protection Agency (hereinafter EPA) to establish
emission standards for hazardous air pollutants. An air pollutant
is hazardous if, in the judgment of the Administrator of EPA, it
causes or contributes to air pollution which may reasonably be
anticipated to result in an increase in mortality, or an increase
in serious irreversible or incapacitating reversible illness.
Title 42, United States Code, Section 7412(a) (1).
4. The Clean Air Act banned the emission of any hazardous air
pollutant in violation of any emission standard set by EPA. Title
42, United States Code, Section 7412(c)(l)(B), (e).
5. Asbestos is a hazardous air pollutant. 40 C.F.R. Section
61.01(a). Title 42, United States Code, Section 7412(a) (1).
5. Where the Administrator determines it is not feasible to
prescribe or enforce an emission standard for control of a
hazardous air pollutant, the Administrator may promulgate a design,
equipment, work.practice or operational standard, or a combination
thereof, which in the Administrator’s judgment is adequate to
protect the public health with an ample margin of safety. Any such
design, equipment, work practice or operational standard shall be
treated as an emission standard. Title 42, United States Code,
Section 7412(e) (5). In conformity with the Clean Air Act, the EPA
established emission standards for asbestos in the form of work

practice standards. 40 C.F.R. Section 61.140 through 61.156.
7. The emission of asbestos, a hazardous air pollutant, from
any stationary source is prohibited. A stationary source is any
building or structure which emits or may emit a hazardous air
pollutant such as asbestos. 40 C.F.R. Section 61.02.
8. The demolition operation conducted by defendant CHARLES
A. DONAHOO, JR., D/B/A CHARLIE WRECKING, is a stationary source
under the Clean Air Act and CHARLES A. DONAHOO, JR., 0/B/A CHARLIE
WRECKING, is an operator of that stationary source. Title 42,
United States Code, Section 74].l(a)(3) and (a)(5), 40 C.F.R.
Section 61.02.
9. The work practice or operational standards applicable to
each owner or operator of a demolition operation involving t ’-
requisite amount of friable asbestos material require notificati
as follows:
(a) Each owner or operator shall provide the
Administrator with written notice of intention
to demolish or renovate;
(b) Provide such notice at least ten days
before the demolition operation is began:
(C) Identify the name and address of the owner
or operator:
(d) List the scheduled starting and completion
dates of demolition;
(e) State the nature of the planned demolition
and the methods to be used:
(f) State the procedures to be used to comply
with the safety requirements and work practice
requirements of the regulations;
(g) Estimate the approximate amount of friable
asbestos material present in the facility in

terms of linear feet of pipe and the surface
area on other facility components of friable
asbestos material; and
(h) List the waste disposal site where the
friable asbestos waste material will be
deposited. 40 C.F.R. Section 61.146.
10. Additional work practice requirements for the prevention
of emissions of asbestos—containing materials to the outside air
(a) That friable asbestos materials be removed
from the facility being demolished before any
wrecking or dismantling that would break up the
asbestos materials or preclude access to the
asbestos materials for subsequent removal; or
(b) That any friable asbestos materials are
adequately wetted when they are being stripped
from the facility;
(c) That friable asbestos materials that have
been removed or stripped from the building are
adequately wetted in order to ensure that they
remain wet until collected for proper disposal;
(d) Make certain that friable asbestos
materials that have been removed or stripped
be carefully lowered to the ground and not
dropped or thrown to the ground or a lower
floor; and
(e) That all asbestos-containing waste
material is properly deposited at waste
disposal sites operated in accordance with EPA
Title 42, United States Code, Section 7412. 40 C.F.R. Section
11. Each state may develop and submit to the EPA Administrator
the procedure for implementing and enforcing emission standards for
hazardous air pollutants for stationary sources located in the
state. If the Administrator finds the state procedure is adequate,

he shall delegate to such state any authority he has under this
chapter to implement and enforce such standards. Title 42, United
States Code, Section 7412(d)(l). Nothing in this subsection shall
prohibit the EPA Administrator from enforcing any applicable
emission standard under this section. Title 42, United States
Code, Section 7412(d)(2). Kentucky has been delegated such
authority and the Jefferson County Air Pollution Control District
has concurrent authority with Kentucky under K.R.S. 77. The
Jefferson County Air Pollution Control District (hereinafter APCD)
has promulgated regulations identical to 40 C.F.R. Section 140
through 156 under Regulation 5.04, Emission standard for asbestos.
12. The Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”), also known as “Super und” addresses the
release and threatened releases of hazardous substances. Title 42,
United States Code, Section 9601, et. seq . Asbestos is a hazardous
substance under CERCLA. Title 42, United States Code, Section
9601(14). 40 C.F.R. Part 302.
13. Under CERCLA, any person in charge of a facility from
which more than one pound of asbestos is released into the
environment, without federal permit, must immediately report, and
cause the report of this release to the appropriate agency of the
United States Government, as soon as he has knowledge of said
release. Title 42, United States Code, Section 9603(a) and (b).
Title 42, United States Code, Section 9602. 40 C.F.R. Section 302.

14. A facility includes any building. Title 42, United States
Code, Section 9601(9). 40 C.F.R. Section 302.
15. A release into the environment includes any emitting-,
escaping or disposing into the environment including dumping,
discarding and abandoning. Title 42, rJnited States Code, Section
9601(22), (29). Title 42, United States Code, Section 9603. Title
42, United States Code, Section 9602. 40 C.F.R. Section 302.
16. On or about Novem ber 26, 1986, the defendant, CHARLES A.
DONAHOO, JR., D/B/A CHARLIE WRECKING, did enter into a contract to
wreck the building “call Reynolds at corner of 12th & Garlad.”
17. On or about January 7, 1987, Robert S. Sterritt, owner of
Tuscarora Plastics, did authorize CHARLES A. DONAHOO, JR., CHARLIE
WRECKING, to secure a wrecking permit to wreck the structure on the
property located at 831 South Twelfth. The applicant’s signature
18. On January 22, 1987, Jack Baldwin, Inspector, Jefferson
County Air Pollution Control District, inspected the demolition
site at 831 South Twelfth Street. Portions of the upper floors had
been demolished and had fallen, causing insulation to be knocked
from pipes in the building. Insulation had fallen and was lying
under pipes. There was exposure to the outside air of asbestos and
deterioration of the building from the wrecking. Samples were
taken of materials that scientifically tested to be asbestos
containing materials.

19. Inspector Baldwin advised defendant CHARLES DONAHOO, JR.,
0/B/A CHARLIE WRECKING that asbestos was believed to be present in
the building and that defendant CHARLES A. DONAH00, JR., DIR/A
CHARLIE WRECKING, must stop work. Baldwin advised defendant
notification and work practice requirements of APCD Regulation 5.04
- Emission Standard For Asbestos.
20. on January 22, 1987, the City of Louisville, Department
of Building Inspection, at APCD Inspector Baldwin’s request, posted
a stop work order on the premises at 831 South Twelfth for “failure
to comply with air pollution standards.” The notice stated “You
are hereby ordered to immediately stop all wrecking work at the
above-named property until these violations have been corrected.”
21. As of January 22, 1987, defendant CHARLES A. DONAHOO, JR.,
0/B/A CHARLIE WRECKING had failed to provide any written
notification of intention to demolish or renovate to APCD.
failed to provide notice of such demolition at least ten days
before it was begun. CHARLES A. DONAHOO, JR., 0/B/A CHARLIE
WRECKING, further failed to list the scheduled starting and
completion date of the demolition, to state the nature of the
planned demolition and the methods to be used. Further, DONAHOO
did fail to estimate the approximate amount of friable asbestos-
containing material present in the facility in terms of linear feet
on pipes and square footage of friable asbestos-containing material
on other facility components. Further, DONAHOC had failed to state

the name and location of the waste disposal site where the friable
asbestos-containing waste material would be deposited.
22. On January 26, 1987, defendant CHARLES A. DONAHOO, JR.,
DIE/A CHARLIE WRECKING, Visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, requested asbestos removal
requirements, asked about potential contractors certified to remove
asbestos and received a copy of the EPA publication “Guidelines for
Controlling Asbestos-containing Materials in Buildings.”
23. On February 11, 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING, again visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, and received a form entitled
Asbestos Removal Notification. CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, also received a listing of current approved
asbestos removal contractors.
24. On February 17, 1987, APCD sent, by certified mail, to
Violation Notice No. 87-0012 for violations observed January 22,
1987. The notice read, in pertinent part, “any removal site shall
be sealed in a manner to prevent asbestos ambient air
contamination. Load supporting structures were being demolished
in a building at 831. South Twelfth Street without required prior
notification and without required use of procedures for asbestos
emission control.”
25. On February 19, 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING, ‘visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, and presented an Asbestos Removal

Notification form dated February 17, 1987. The notification form
submitted by defendant CHARLES A. DONAHOO, JR.,, D/B/A CHARLIE
WREC1 ING, listed the scheduled starting date for asbestos removal
of February 22, 1987, and a scheduled completion date for asbestos
removal of February 23, 1987. The defendant, CHARLES A. DONAHOO,
JR., D/B/A CHARLIE WRECKING, estimated the amount of friable
asbestos material to be removed at “370 feet on a pipe and a tank.”
advised APCD personnel that he would prepare a plan for removal and
bring it to the APCD office on February 20, 1987.
26. On the morning of February 20, 1987, APCD Inspector Jack
Baldwin visited the demoli€ion site at 831 South Twelfth Street and
discovered that the previously identified asbestos—containing
material had been removed from pipes and other plastic su ces.

bàgs. There was no indication of adequate wetting or other
containi. es re ired by law. Samples were
a en of materials that scientifically tested as asbestos-
containing materials.
27. On the afternoon of February 20, 1987, defendant CHARLES
A. DONAHOO, JR., D/B/A CHARLIE WRECKING, arrived at the offices of
the APCD at 914 East Broadway, Louisville, Kentucky. Mr. DONAHOO
at that time presented his removal plan by letter dated
February 20, 1987.
28. On February 27, 1987, the APCD sent Violation Notices
No. 87-0015 and 87—0016 to CHARLES A. DONAHOO, JR., D/B/A CHARLIE

WRECKING, for violations observed February 20, 1987. Violatior
Notice No. 87—0015 stated, in pertinent part, “friable asbestos
material had been removed from a building under demolition at 831
South Twelfth Street without required prior notification and
without required use of procedures for asbestos emission control.
Violation Notice No. 87-0016, in pertinent part “wrecking of load
bearing structural members and stripping of friable asbestos
material had taken place at 83]. South Twelfth Street without the
required permit having been issued by the district.”
The Grand Jury charges:
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. On or about and between January 9, 1987 and January 22,
‘1987, the exact dates being unknown to members of the Grand Jury,
in the Western District of Kentucky at Louisville, Jefferson
County, Kentucky, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, operator of a stationary source in Louisville, Kentucky,
containing at least 260 linear feet of friable asbestos material
on pipes or 160 square feet on other facility components, did
knowingly demolish and cause to be demolished this stationary
source in violation of any of the emission, design, equipment, work
practice or operational standards for asbestos and knowingly caused

asbestos to be emitted from this stationary source in violation of
these standards.
In violation of Title 42, United States Code, Section 7412(c
and (e), and Title 42, United States Code, Section 7413(c).
The Grand Jury further charges:
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. From on or about and between January 7, 1987 and January
22, 1987, the exact dates being unknown to members of the Grand
did, being a person in charge of a facility from which a reportable
quantity of a hazardous substance, asbestos, is released without
a permit did fail to iininediate].y notify the appropriate agency of
the United States Government of the release of the hazardous
substance as soon as he had knowledge of such release at 831 South
Twelfth Street, Louisville, Kentucky.
In violation of Title 42, United States Code, Section 9603(b).
The Grand Jury further charges:
1. Each of the allegations contained in paragraphs 1. through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.

2. On •or about and between February 17, 1987 through
February 20, 1987, defendant CHARLES A. DONAHOO, JR., 0/B/A CHARLIE
WRECKING, did, in the Western District of Kentucky at Louisville,
Jefferson County, Kentucky, on a matter within the jurisdiction of
an agency of the United States, knowingly and Willfully make or use
any false Writing or document, knowing the same to contain a false,
fictitious or fraudulent statement, as he did submit Asbestos
Removal Notification Form to APCD, 914 East Broadway, Louisville,
Kentucky, stating the scheduled starting date for asbestos removal
notification to be February 22, 1987, and a scheduled completion
date for asbestos removal to be February 23, 1987, when the
that asbestos removal work had been started again on a date between
January 22, 1987 and February 20., 1987.
In violation of Title 18, United States Code, Section iooi.
The Grand Jury further charges:
1. Each of the allegations contained in paragraphs i through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. On or about and between January 22, 1987 and February 20,
1987, the exact dates being unknown to members of the Grand Jury,
in the Western District of Kentucky at Louisville, Jefferson
County, Kentucky, defendant CHARLES A. DONAHOC, JR., 0/B/A CHARLIE
WRECKING, operator of a stationary source in Louisville, Kentucky,

containing at least 260 linear feet of friable asbestos material
on pipes or 160 square feet on other facility components, did
knowingly demolish and cause to be demolished this stationary
source in violation of any of the emission, design, equipment, work
practice or operational standards for asbestos and knowingly caused
asbestos to be emitted from this stationary source in violation of
these standards.
In violation of Title 42, United States Code, Section 7412(c)
and (e), and Title 42, United States Code, Section 7413(c).
The Grand Jury further charges:
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. From on or about and between January 22, 1987 and
February 20, 1987, the exact dates being unknown to members of the
Grand Jury, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, did, being a person in charge of a facility from which
a reportable quantity of a hazardous substance, asbestos, is
released without a permit did fail to immediately notify the
appropriate agency of the United States Government of the release

of the hazardous substance as soon as he had knowledge of such
release at 831 South Twelfth Street, Louisville, Kentucky.
In violation of Title 42, United States Code, Section 9603(b).
JMW: RAD: kfs:89060j.

Suing Owners in Asbestos Demolition and
Renovation Cases
08/ 2 ) 3/91

/1 , 0

1 AUG 20 1991
SUBJECT: Suing Owners in Asbestos Demolition and Renovation
FROM: Michael S. Alushin #1 .
Enforcement Counsel for Air
TO: Regional Counsel
Regions I—X
This is a request for your assistance in achieving
consistency in the treatment of owners of asbestos NESHAP
demolition and renovation sites. Your cooperation in this effort
will help to ensure that referrals are filed in court in a timely
On June 3, 1991, this office received a letter concerning
asbestos NESHAP demolition and renovation cases from John C.
Cruden, Chief of the Environmental Enforcement Section at the
Department of Justice (DOJ). The letter raised the question of
whether EPA has been consistent in determining whether to sue
owners in those cases. DOJ provided several examples of
referrals in the letter to illustrate this issue.
EPA’s policy is to sue both the owner of the site or
facility and the party performing the demolition or renovation,
unless there is a good reason not to do so. This policy is
contained in the memorandum entitled Injunctive Relief in
Asbestos Demolition and Renovation Cases , 1 Clean Air Act
Compliance/Enforcement Policy Compendium, § D.6. (July 10, 1985),
and in Policy on Suing ItuniciDal Owners in Asbestos
Demplition/Renovption Cases , Letter from Michael S. Alushin to
David T. Buente (April 30, 1990). The rationale for including the
owner, whether a private party or a municipality, is to ensure
that qualified contractors are hired to perform these operations,
and that owners exercise adequate oversight of the contractor’s
work. Examples of circumstances in which it may be appropriate
to exclude the owner from the case are discussed in our response
to the DOJ letter (attached).
To ensure national consistency and to thereby expedite the
processing of our referrals, I am asking that you include a
separate section in your referral packages that justifies any
a R.cycLed Papsr

recommendation not to sue the owner in asbestos cases. After
reviewing the referral, this office will specifically either
concur or not concur with the Regional determination not to sue
the owner. If you have any questions concerning this issue,
please contact Lynn Holloway of my staff at FTS 382—2859.
cc: Air Branch Chiefs
Office of Regional Counsel
Regions I-X
Air Management Division Directors
Regions I-X
John Rasnic, Chief
Stationary Source Compliance Division
cc (without attachment):
John C. Cruden, Chief
Environmental Enforcement Section
Department of Justice

MJ- —15-1*b 1b:,S1 EPP REG 3 ORC
215 59? 3235 P. 8’12.
WASHINGTON. D.C. 20460 C, 1 9 j
SUBIEC’r: tnjurtctive Relief in Asbestos Demolition and
Renovation cages
FROM; Michael S. AlusPtiIt
Associate Enforcement Counsel
Air Enforcement Division
Edward E. Reich, Dir.ector
Stationary Source Cotnpliartce Division
TO: Addressees
Thjs memorandum sets forth a policy regarding injunctions
to enforce the National mission Standard for Asbestos against
demolition and renovation sources. This policy will apply to
all pending and future civil actions for violations of these
The asbestos standards, 40 C.F.R. 561.140 et seq. ,
apply to both the party performing a demolition r renovation
(usually a contractor and the owner of the subject facility.
See the preamble to the repromulgatiorl of the regulations, 49
Fed. Reg. 136S8, 136S9 (April 5. i9R4). The asbestos strategy
document issued on April 6 1984 sets forth guidance for
determining when to. include the facilityOWfle as a defendant
in a civil action to enforce these standards. Facility owners
should be- included as members of the regulated
community to ensure that they hire qualified contractors to
remove asbestos properly. Only where the owner has acted
responsibly, for example, by hiring a reputable contractor
and attempting to monitor or supervise the contractor’s
performance, hàul the Agency exercise discretion not to sue
the owner.

M R-15-j995 eG:31 EPi’R REG 3 OR
C 21.5 59? 3235 P.e9’12.
In almost all civil actions to enforce asbestos regulations
against demolition and renovation sources, the action is
filed after the violations have occurr.d* Injunctions are
therefore directed at future demolition and renovation activity.
rinjunctive relief should be sought against coñtractørs, since
/ they ari likely tQ be ftari 1titg asbestos again In the oro2r&ar ’
L course of business. M in inctiori against future violations
in çg.urt order or consent decree vests the courE
ti Tha iurisdictiài Th i1 tha _ term atjon date of the decree
toejiforce the NESHAP requirements . The prospect of a contempt
action ? utur violati n rnm ’ erve as a more effective
deterrent than would otherwise exist.
Facility owners are situated differently, since they are
not ordinarily:Ln the business of asbestos removal. !n
determining whether to seek an injunction, the Agency should
consider the potential for future violations during t te life
of the decree. Injunctions should be sought against facility
owners if the demolition or renovation which was the subject
of the lawsuit is part of an ongoing series of demolition or
renovation projects, e.g., a program of asbestos removal from
buildings within a school district, or if the facility owner
p1an further projects involving friable asbestos. If these
factors are not present, an injunction is not necessary.
Injunctive relief need not be limited to merely a co nand
to comply with the regulations. E 4itab1e relief should be
fashioned to ry to prevent, at a minimum, recurrence of the
vioj.ation alle eiI in the complaint . If, roreiampte, a
defendant gave incomplete notification of a demolition project,
the Agency could seek to enjoin that party to use a specific
form in sub itting asbestos notifications. If the facility
owner hired as the lowest bidder a contractor unqualified to
do- asbestos work, we may wish to enjoin the owner to address
NESMAP c pliance in all bid specifications for jobs involving
asbestos removal.- It is not possible to provide comprehenstve
guidance on the form of injunctive relief to be sought in all
cases, but the specifics of an injunction can be worked out
aaong the litigation team as the case develops.
Questions regarding this policy should be directed to
Elliott Gilb.rq of the Air Enforcement Division at FTS 382—2864..
/ a civil action is filed for an ongoing violation.
/ injunctive relief should be sought against all, defendants, to
afford the greatest chance of effectuating immediate compliance.

tIRR-15-19 95 06:31 EPA REG 3 ORC
215 59? 3235 P. 10’12
Regional Counsels
Regions I.-x
Air Management Division Directors
Regions I, III, V. and IX
Air and Waste Management Division Directors
Regions II and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Air, Pesticides, and Toxics Management Division Director
Reqiøn XV
Regional Enforcement Contacts
Regions I—X
cc: David Buente, Acting Chief
Environmental Enforcement Section
Department of Justice -

r1 R-15—1995 Ø ,:32
EPfl RE6 3 DRC
215 59? 3235 P. 11’12.
WASH NGT0N, D.C. 2046C
A 3O
David T. Bueftte, Chief CFF1 ECF
Environmental Zn crcement Section
La.rid and Natural Resources Division C aM
U.S. Departhent of Justice
P .O. 5ox7611
Sen Franklin Post Office
Waslungton, DC. 20044
Re: Policy on Suing MunicipaL owners in Asbestos
Demolition/Renovation Cases
Dear 1 r. Buente:
Thank you for your letter of February 2l 1990 regarding
ZPA’s policy on su(r i it, 1 - owners in asbestos NES AP cases.
I appreciate the effort your
enforcement and. hope this letter will help to clarify EPA current
policy in this area.
The. preamble to the April 5, 1984 repromulgátion of the
asbestos - E5HAP expressed the Agency’s legal interpretation that
the asbestos reg .ilations apply to the ovrters of demolition and
renovation sites. contemporaneous with.. that repromulgation , EPA
issued an Asbestos Strategy Ofl April 6, 1984. That strategy
said, on page 15: .
“The asbestos regulations apply to eacb ‘owner or
operator’ of a demolition or renovation operation. EPA has
construed this language to include both the owner- of the
site arid - the party performing the demolition or renovation,
usually a contractor. This position is reiterated in, the
preamble to the reprbaulgatlofl of the standard. . .As a
genera L rule, -the Re iorL.shOUl& 8.lso.proceed against
the site owner-.- Rowe,ver, the Region aay eXeZC .sa
discretion. where an ovnEr can show ,-that the contract or
bid specifications required. that
contractor comply with the asbestos regulations.
O’ July 3.0, 1985 policy, which we previously sent you,
referenced. the April 6.,. 1984 Asbestos Strategy Document. The
July 10, 3.985 document’said
“Facility owners should generall .b 1mnCl as-”
members of the regulated community to ensure that they
hire qualified contractors to remove asbestos properly.
Only where the owner has acted respons thly, for
Piwad n Racvdld P’pd’

MAR—15—1995 06:32
215 597 3235 P.12 /12.
example, by iriflg a reputable contractor and
attempting to monitor or supervise the contractor’s
performance, should the Agency exercise discretion not
to SUS the owner.”
Neither the Aprtl 984 strategY nor the July 1985 policy
distinguished betweefl’W t1fl1C P art other defendants. Although
your February 21, 1990 letter suggests that the EPA policies
apply only to actions see3 ing jn unctY e relief, as we indicated
in the April 1984 StrateT!, we intended our policy to apply to
claims or injunctive relief and penalties.
We have been pursuing ownerS for years. You mentioned that
we had not always sued owners, especially where it concerns local
government entities. As our analysis of the past two years of
asbestos referrals indicates, ye always 5UQ owners, even local
governments unless there is a good reason not to do so. I am
not aware of any case in which the omission of owners was
unjustif Led. If you are aware of any examples, please let me
kno”. We do not distifl iiSh municipal owners from private owners
when deciding whether to refer an owner as a potent a1 defendant.
well In conclusion, , lWaS cti f r penalties as
mUfl1C .Pa ies or ment entities, unless there
iS n .a1 reasofl to exercise our en orcemefl 3.scre LO
As prev .ous1y ment.or1e , sc me of th0S reathons are if th c jw
ontrac or, or if the case involves one operator with violations
at so many different facilities that adding all the different
owners would unnecessarily complicate the case.
Please contact me at. 382—2820 or Charles Garlo’ at 475-1088
if you wish. to further discuss this issue.
• Sincerely,,
Michae1 S.
Associate Enforcemextt CcW15e]
• forAir. -
cc: John seitr
Robert Van Eeu Velefl -
EES Assistant- chiefs
Joseph Block
Bert Frey
David Xee

Consent Decree Provisions Requiring Information on
Unsuccessful Demolotion/RenOVation Bids in Asbestos
NESHAP Civil Actions

3r 4 ,
pp 1 ;ØP
i iLi 1 2 —,
r ( jvç-’
SUBJECT: Consent Decree Provisions Requiring Information on
Unsuccessful Demolition/Renovation Bids in Asbestos
NESHAP Civil Actions
FROM: Michael S. Alushin 4* ct,L _
Enforcement Counsel for Ai
John B. Rasnic, Director
Stationary Source Compli nce Divis on
TO: Addressees
The purpose of this memorandu m is to request that the
Regional offices refrain from including provisions in consent
decrees that require demolition or renovation contractors to
report all unsuccessful bids for asbestos renovation or
demolition work to EPA during the pendency of the decrees. These
unsuccessful bid submission provisions have been included in
consent decrees negotiated in settlement of civil actions under
the Clean Air Act for violations of the asbestos NESHAP. The
Department of Justice (DOJ) has objected to the practice of
including this provision in consent decrees. After evaluating
DOJ’s rationale and after consultation with the Regional Counsel
Air Branch Chiefs and the Regional program offices, we have
decided not to pursue this issue further with DOJ.
Under the provision in question, the defendant contractor
agrees to provide reports, at specified intervals, that list all
unsuccessful bids, offers, quotations or estimates, written or
verbal, that the contractor gives for any and all asbestos work.
The reports are typically required to include the name, address,
and telephone number of the entity requesting the bid offer,
quotation or estimate of asbestos removal, as well as the
property name, address, project manager and quantity of asbestos
to be removed. The reports are also required to include the
name, address and telephone number of the successful bidder-
contractor, if known. Under the unsuccessful bid submission
provision, the contractor was required to certify the accuracy of
this information. The underlying rationale for this provision
was to assist the Agency in identifying potential underbidding by
demolition contractors, whose low bids might signify an intent to
circumvent the asbestos NESHAP.
Printed on Recycled Rape’

The DOJ objects to the inclusion of unsuccessful bid
submission provisions in consent decrees for two reasons. First,
these provisions do not seek to ensure compliance by the violator
subject to the consent decree, but by contractors with rio
connection to the current enforcement action. Second, the relief
obtained through these provisions exceeds the relief afforded to
the Agency under the NESHAP. In DOJ’s opinion, the relief
af forded by consent decrees should be tailored to a good faith
reading of the scope of injunctive relief available under the
applicable statute and regulation.
Some demolition contractors are sensitive to the fact that
their competitors might underbid a job with the expectation of
circumventing compliance with the notice or work practice
requirements of the asbestos NESHAP. If contractors are
interested in reporting suspected underbidding to the Agency, we
encourage them to do so. Such information should only be
submitted on a voluntary basis, however, and not as part of a
written, enforceable obligation. Any questions concerning the
policy established by this memorandum may be directed to Lynn
Holloway of the Air Enforcement Division at FTS 260-3878.
Addressees: Regional Administrators, Regions I—X
Regional Counsel, Regions I—X
Air Management Division Director
Region I
Air and Waste Management Division Director
Region II
Air, Toxics and Radiation Management Division
Region III
Air, Pesticides and Toxics Management Division
Region IV
Air and Radiation Division Director
Region V
Air, Pesticides and Toxics Division Director
Region VI
Air and Toxics Division Directors
Regions VII, VIII, IX and X

cc: John C. Cruden, Chief
Envjromnental Enforcement Section
U.S. Department of Justice
Scott C. Fulton
Deputy Assistant Administrator
Office of Enforcement
Robert Van Heuvelen
Acting Director of Civil Enforcement
John Seitz, Director
Office of Air Quality, Planning and Standards

Guidance S-26: Enforcement of the Arsenic
NESHAP for Glass Manufacturing Plants
10/01/86 11

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SUSJELT: Guideline 5—26 — E.ntorcement ot the Arsenic NESHAP
ror (.ilass Manutacturing Plants (40 C R Part 60 subpart N)
FROM: Director
Stationary Source Compliance Division
Ottice ot Air Quality Pianniny and Standaras
To; Air ana Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, ‘v and IX
Air, Pesticides, ano Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division birectors
Regions VII
The attached guideline is being torwaraea to you to assist
i in the implementation and entorcement or the arsenic National
ssion tanaards ror Hazardous Air Pollutants (N HAPS) tor
iss manutacturing ilants (Subpart N).
If you have any ciuestions or comments on this yuideline,
please contact reen Cantor in the Stationary Source C.orn liance
Division at FTS 382— 87 .
\‘ .) I
L #
.dward E. Reich
cc: Michael Alushin Stan Cutfe
Bob Ajax Ion Myers
George halsn Jan Myers
Jim ngel

In almost all civil actions to enforce asbestos regulations
against demolition and renovation sources, the action is
filed after the violations have occurred.* Injunctions are
therefore directed at future demolition and renovation activity.
Injunctive relief should be sought against contractors, since
they are likely to be handling asbestos again in the ordinary
course of business. An injunction against future violations
in a court order or consent decree vests the court with con-
tinuing jurisdiction until the termination date of the decree
to enforce the NESHAP requirements. The prospect of a contempt
action for future violations may serve as a more effective
deterrent than would otherwise exist.
Facility owners are situated differently, since they are
not ordinarily in the business of asbestos removal. In
determining whether to seek an injunction, the Agency should
consider the potential for future violations during the life
of the decree. Injunctions should be sought against facility
owners if the demolition or renovation which was the subject
of the lawsuit is part of an Qngoing series of demolition or
renovation projects, e.g., a program of asbestos removal from
buildings within a school district, or if the facility owner
plans further projects involving friable asbestos. If these
factors are not present, an injunction Is not necessary.
Injunctive relief need not be limited to merely a coimnand
to comply with the regulations. Equitable relief should be
fashioned to try to prevent, at a minimum, recurrence of the
violations alleged in the complaint. If, for example, a
defendant gave incomplete notification of a demolition project,
the Agency could seek to enjoin that party to use a specific
form in submitting asbestos notifications. If the facility
owner hired as the lowest bidder a contractor unqualified to
do asbestos work, we may wish to enjoin the owner to address
NESHAP compliance in all bid specifications for jobs involving
asbestos removal. It is not possible to provide comprehensive
guidance on the form of injunctive relief to be sought in all
cases, but the specifics of art injunction can be worked out
among the litigation team as the case develops.
Questions regarding this policy should be directed to
Elliott Gilberg of the Air Enforcement Division at FTS 382—2864.
*If a civil action is filed for an ongoing violation,
injunctive relief should be sought against all defendants, to
afford the greatest chance of effectuating immediate compliance.

Add res sees:
Regional Counsels
Regions I—X
Air Management Division Directors
Regions I, III , V 1 and IX
Air and Waste Management Division Directors
Regions II and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Air, pesticides, and Toxics Management Division Director
Region IV
Regional Enforcement Contacts
Regions I—X
cc: David Buente, Acting Chief
Environmental Enforcement Section
Depart neflt of Justici

•This guideline is being issued to assist the Regional
Offices in the entorcement of one of the NESHAP regulations tor
the control of arsenic emissions. Three types of tacililities
are required to be controlled by these regulations: (1) glass
manufacturing plants, (2) primary copper smelters, and (3) arsenic
trioxide and metallic arsenic production racilities. This
guideline addresses glass manufacturing plants only.
Arsenic was declared a hazardous air pollutant on June 5,
1980. Regulations were proposed for the control of arsenic
under Section 112 of the Clean Air Act, National Emission
Standards for Hazardous Air Pollutants (NESHAPS) 40 ER 59532,
on August 22, 1983. These regulations were promulgated on
August 4, 1986. Since this regulatory tramework has been
previously utilized for the contrQl of asbestos, beryllium,
mercury, vinyl chloride, and benzene, additional helptul
information is available in Guidelines 5—17 thru S—20, which
otter some general guidance relative to the procedural
requirements of the NESHAP program.
Summary of Requirements
The standard covers each glass melting turnace that uses
commercial arsenic as a raw material, except that pot furnaces
(retractory vessels in which glass is melted by indirect heating
and where the openings are covered with refractory stoppers
during melting) are exempted. Each owner or operator must either
1) vent all inorganic arsenic emissions from each glass melting
rurnace to a control device and reduce emissions b at least
85%, the level ot reduction achievable by an electrostatic
precipitator or tabric tilter (S6l.162(a)(2) and (b)(2)), or
2) maintain .r controlled (i.e. preceedirty an add—on control
aevice) arsenic emissions at 2.5 Mg/year (2.75 TPY) or less Eor
existing plants (S61.162(a)(1)), c.r at 0.4 Mg/year (0.44 IPY)
or less for new plants (S61.l62(b ) (1 )).
If the owner or operator intends to meet the standard by
using a control devic , s/he is required to continuously monitor
opacity and temperature, and to submit semiannual reports of
excess opacity. An owner or operator may bypass the control
device for a limited period of time for designated purposes such
as maintenance ot the control device, upon prior approval from
the Regional Oftice.

If the owner or operator intends to meet the standard b .
limiting uncontrolled arsenic emissions, s/he is required to
calculate the uncontrolled arsenic emissions semiannually, ano
to report if the emission rate is above the applicable limit.

A. Source Notification
The Regional Oft ices should notify all. potentially affected
sources immediately rollowing the promulgation of the arsenic
NESHAP regulations, or immediately upon identification of
attected sources anytime after promulgation (see guideline S—17
for example notification). A list of all known glass manufac-
turing plants using arsenic as a raw material is attached
(Table 1). This list includes 75 furnaces at 27 plants, and
includes both controlled and uncontrolled furnaces, and rurnaces
emitting arsenic at levels both above and below the threshold of
2.5 Mg/yr. This regulation would require two of these furnaces
to install additional controls or reduce arsenic usage, and would
require at least six turnaces to maintain their present controls.
However, this list may not be exhaustive, and it includes many
emission estimates. Since new plants may have been constructed,
additional plants may have begun using arsenic as a raw material,
and some plants may be unidenttfie as of yet, additional. inves-
tigation should be made to complete the list. Also, a number of
companies are investigating the possibility of reducing or elimi-
nating arsenic in soda—lime batch formulations, which may reduce
the number ot affected facilities. Preterably, all glass plants
should be notified of the regulations, because they will become
sub3ect if they begin using arsenic as a raw material in the
future. All affected sources shouLd be coded into CDS.

B. Determination of Compliance (40 CFR 61.164)
1. Initial Report (40 C R 61.10)
The owner or operator of each existing source is required
to submit an initial report to the Administrator by November 2,
1986. This initial report should include:
—name and address of the owner or operator,
—source location,
—brief description of the nature, size, design, and method of
operation (including capacity and emission points),
—the average weight ot arsenic processed per month over the
previous 12 months as determined by direct measure or
materials balance,
—a description of the existing control equipment (including
efficiency), and
—a statement of the teasibility ot complying with the
standard by November 2, 1986.
It the owner or operator is unable to comply with the stanuard
within the 90—day period, s/he may apply tor a waiver of
compliance (See Guideline S—19). Sources which need to
install control equipment may be granted a waiver tor up to
two years ir the time is needed for purchase and installation.
Reasonable compliance schedules tor installing fabric
tilters ana ESP’s are attached (Table 2).
t’or any source ror which a performance test is required,
the owner or operator must riotiry EPA at least 30 days betore
the test and must submit the results to EPA within 60 days or
the test, as indicated in the next section.
For any source wnicti can demonstrate compliance by
means of an emission calculation alone, the owner or operator
must submit to PA by September 18, 1986 (or within 45 days ot
start—up or moditication) a written report of the calculatea
estimates of arsenic emissions. (NOTE: In the proposal,
this report was required to be submitted within 90, rather
than 45, days. Sources may be unprepared for this change
and may require more time.)

For new and modified sources (for which construction or
modification commenced after Ju1 20, 1983, inc1udin any
existing furnace which begins to use arsenic — see following
discussion), t e owner or operator must apply for approval
to construct or modify (required by S61.07) and provide
process and emission data so that EPA may determine if the
source will be able to comply with the standard. After
approval, the owner or operator is required to notitj EPA of
the anticipated and actual start—up dates as indicated in

Determination of Whether a Source is “Modified TM based on
Arsenic Usage
Background Information
“Moditication’ is defined in the General Provisions,
40 CFR S61.02 as “any physical change or change in the method
of operation . . . which increases the amount of any hazardous
air pollutant . . . or which results in the emission ot any
hazardous air pollutant not previously emitted, except that
• . . art increase ot the production rate, it such increase
does not exceed the operating design capacity . . . (or) an
increase in hours of operation . . . (shall not be considered
a change in the method of operation)”.
uNew source” is defined as “any stationary source, the
construction or modification ot which is commenced after
The preamble to the promulgated standards (Federal
Register Vol. 51, No. 149, August 4, 1996, p. 27997) states
“(s)ince proposal, the use ot arsenic in some glass melting
rurnaces has been eliminated and the Agency believes that this
trend is likelj to continue. lhe companies that operate these
furnaces have indicated that they do not plan to resume using
arsenic. The cutoff applied to new or moditied glass melting
furnaces is based on consideration of cost and economic tactors
and has been retained in the promulgated standard to discourage
reintroduction of arsenic in turnaces that have recently elimi-
nated its use and to discourage future use. The Agency believes
that this is appropriate to prevent risks from increasing near
those furnaces that have recently eliminated arsenic use and
because reasonabie alternatives to exceeding this cutoff level
are available at these tacilities. These include the use of
low—arsenic iass recipes and the use or controlled turnaces
tor production ot tnose glass types which gould result in
uncontrolled emissions or arsenic of more than 0.4 Mg (0.44
ton) per jear..

Many furnaces subject •to the arsenic NESHAP will typically
melt a variety of glasses with different arsenic Contents and
emission factors. It is necessary to determine whether furnaces
will become modifiec sources, and thus sub ect to the more
stringent emission limit, on the basis of these changes in the
method of operation.
The above information indicates that if a furnace has
never used arsenic and starts arsenic use any time after pro-
posal, that rurnace should be considered a moditied source.
If a furnace has used arsenic in the past, but has ceased
its use, it becomes a modified source at any point after pro-
posal that it resumes the use of arsenic. Because arsenic
usage is to be calculated as a rolling 12—month average every
6 months, if a furnace does not us e arsenic during any such
12—month period, (starting from the 12—month period immediately
preceeding proposal) that furnace should be considered a non—
arsenic furnace, and any addition of arsenic in the future will
cause this furnace to become subject to the more stringent
standard for new ana modified furnaces.
If a furnace has continuousl used arsenic since the
12—month period before proposal, it would be a modified source
if arsenic emissions increase above previous levels. Operating
records should be reviewed to determine if there has been any
12—month rolling average where arsenic emissions were higher
than a previous 12—month period. If so, the source should be
consicered modified. It not, the semiannual rolling averages
calculated by the source Should routinely be monitored to see
that emissions do not increase in the future. If emissions
do increase, the source is modified and is required to either
install controls or change operation in some way so that
Uncontrolled emissions will be lmited to 0.4 Mg/yr arsenic.
There are several exceptions to this:
(1) A source may argue that this period of lowest arsenic
emissions is not representative of the typical operation of
that furnace. These claims should be evaluated on a case—by—
case basis. However, if the reason for the low arsenic emis-
sions was that the furnace was successfully using a substitute
for arsenic, then the lower emission rate should be considered
representative operation.

(2) It the increase in arsenic emissions is due solely
to an increase in production, then the furnace should not be
considered modified. However, this refers to the production
rate and hours of operation ot the furnace, not tor the indivi-
dual, glass types; Theretore, if a turnace has increased produc-
tion ot a high—arsenic glass but at the same time has decreased
production of a low—arsenic or non—arsenic glass such that
overall arsenic emissions increase but total production remains
constant, then the furnace should be consiaered modified.
In summary, for all furnaces which choose to demonstrate
compliance with the 2.5 Mg/yr uncontrolled arsenic emission
standard for existing sources, their operat ing records for the
period rrom August 22, 1982 (12 months before proposal) to the
present, as well as all future semiannual calculations of uncon-
trolled arsenic emissions, should be reviewed to determine
whether the furnace has been modified because of these changes
in operation.

2. Emission rest (40 CFR 61.164)
By November 2, 1986 (or within 90 days ot startup ror a
new source), the owner or operator must test emissions from
the source unless a waiver of emission testing is obtained
under S61.13 (See Guideline S—20).
The owner or operator must provide the Regional Otfice
at least 30 uays prior notice of the emission test and
demonstration of the opacity monitoring system•, it applicable.
Emission tests are to be conducted while the source
is operating unoer conditions that .are representative of
those from which the maximum arsenic emissions will result,
as may be specitied by the kegional Office. Usually, this
will be under conditions representative of the expected
maximum (allowable) procuction rate. However, for sources
melting more than one t 1 pe ot glass, or tar sources with
multiple rurnaces emitting to a single control device, the
emission test should be conducted while the source is operating
at the expectea ma*imurn production rates for the glass types
generating the greatest amounts ot arsenLc. urnaces producing
non—arsenic glass should also oe operating during the emission
test, as would be representative ot a source’s usual operation.
Another test may be required later if source operation changes
so that the original testing operating conditions are no
longer representative Ct “worst case” operation.
The owner or operator must furnish the kegional Uftice
with a written report of the emission test results and
associated calculations within 60 days of the test, and must
retain records of emission test results and other data needea
to determine emissions tor two years.

Furnaces with Uncontrolled Arsenic Emissions Above
2.5 Mg/yr (existing) or 0.4 Mg/yr (new or moditi d )
(S6 1. 164(e)
Unless an alternative test method is approved (reter
to Guideline S—lB tor procedure), the owner or operator of
each furnace must demonstrate compliance with the 85% arsenic
reduction requirement in S61.162(a)(2) or (b)(2) by using
Method 108 to determine the concentratjonof arsenic in the
inlet and outlet gas streams to the control device. Each
emission test is to consist of three 60—minute test runs, each
Consisting of simultaneous testing of the inlet and outlet gas
streams. The gas streams must contain all ot the gas exhausted
trom the gas melting furnace.
The percent reduction for each run will be computed as follows:
( Cb — Cp) X 100
D = percent emission reduction
Cb = arsenic concentration in stack gas entering the
control device, as measured by Method 108
Ca = arsenic concentration in stach gas exiting the
control device, as measured by Method 108
The average percent reduction is equal to the arithmetic mean
of the results tor the three runs, and must be equal to or
greater than 85% for the source to be in compliance.

Furnaces With Uncontrolled Arsenic Emissions Under
2.5 Mg/yr (existing) or 0.4 Mg/yr (new or modified )
(S 61 .164(c) ana (d))
If less than 8.0 Mg arsenic/year (8.8 TPY) iS added to an
existing furnace,or less than 1.0 Mg arsenic/year (1.1 TPY)
is added to a-new or moditied furnace, the owner or operator
will usually be able to demonstrate compliance with the
uncontrolled emission 1in its by an emission calculation only.
A theoretical arsenic emission tactor should be calculated tor
each type of glass produced during the 12—month period, as
Ti = (Abi X Wbl) + (Aci X Wci,) Ag 1
= theoretical uncontrolled arsenic emission factor
(g/kg) for each glass type (1)
Abi = traction by weight of arsenic in fresh batch for
eacn glass type (i)
Wbi = weight (g) of fresh batch melted per kg of glass
k. roducea for each glass type (i)
Ac 1 = fraction by weight of arsenic in cullet for each
glass type (i)
= weight (g) ot cullet melted per kg or glass producea
for eacri glass type (i)
A 91 = weight (g) of arsenic per kg glass produced for
each glass type (i)
The tneoretjcal uncontrolled arsenic emissions for tne 12—month
period is estimated as follows:
= ( T x G 1 )
= theoretical uncontrolled arsenic emission estimate
for the 12-month period for each glass type (Mg/yr)
Ti theoretical uncontrolled arsenic emission factor
for each type of glass produced during the 12—month
period ( s calculated above)
G 1 = kg of each arsenic—containing glass type (i)
produced during the 12—month period

The total theoretical Uncontrolled arsenic emissions for each
12 —month period is equal to the sum of these emission estimates
(Y 1 ) for each glass type produced. If this is equal to or less
than 2.5 Mg for existing plants, or 0.4 Mg for new plants, the
Source is in- comp1iance and no emission testing is required.
If the total is above these limits, then the source is requlreo
to test as described below,
The following procedure is required for existing sources
using more than 8.0 Mg arsenic/year, new sources using more
than 1.0 Mg arsenic/year, and for sources using less than these
amounts but which are unable to demonstrate compliance solely
by the calculation procedure above. The theoretical uncontrolled
arsenic emission factors CT 1 ) and estimates (Y 1 ) should again be
calculated tor each glass type produced during the 12—month
period as described above. .mission testing, using Method 108,
must then be conducted during production of the glass type with
the highest theoretical uncontrolled arsenic emissions. The
actual uncontrolled arsenic emission factor should be computed
as follows:
Ra = a.
Ra = actual uncontrolled arsenic emission factor (g/kg)
= actual uncontrolled arsenic emission rate, from
Methoc 108 (g/h)
P = rate of glass production (kg/h), determined by
dividing the weight ot glass pulled from the furnace
during the emission test b i the number of hours taken
to perform the test
A furnace correction factor (F) to relate the theoretical and
actual uncontrolled arsenic emission factors should be calculated
as follows (Ra and Ti should be the same glass type):

The totaL uncontrolled arsenic emission rate for the
12—month period should be computed by applying this furnace
correction factor to all of the theoretical emission factors,
as follows: -
U = ( T 1 x F x G 1 )
i=1 106
U = total uncontrolled arsenic emission rate (Mg/year)
n = number of arsenic—containing glass types produced
during the 12—month period
If the total uncontrolled arsenic emission rate is less than 2.5
Mg/yr for an existing furnace, or 0.4 Mg/yr for a new furnace, the
source is in compliance. It the total is above these values, then
the source is in violation and must install controls. However,
the source may opt to conduct Method 108 tests on the remaining
glass types compute ty e—specific correction factors, and
attempt to demonstrate compliance in that way.
£xampie 1:
It the glass type produced during the Method 108 test is
the only glass type to be produced for the initial 12—month
period, then the actual arsenic emission factor can simply
be multiplied by the amount of glass produced to calculate
total yearly arsenic eniissions. (If less than 8.0 Mg (or
1.0 Mg) arsenic/year were added to the furnace, a Method
108 test would be unnecessary.)
Ea = .045 lb/hr (from Method 108)
P = 900 lb/hr
Ra = Ea = . 045 = .1 lb As/ton glass
Total yearly arsenic emissions = (1(a) (annual
production) = (.1 lb/ton)(4000 ton/yr)= .2 As

F.xam .,le 2:
If two or more glass types are produced, a theoretical arseni c
emission fac€or, based on a materials balance, shou1 be
calculated tor every type of glass that will be produced.
This should be multiplied by the correction tactor to calculate
an actual arsenic emission factor tor each type of glass.
Each actual arsenic emission factor should then be multiplied
by the amount of that glass that will be produced to calculate
yearly arsenic emissions for each glass type, and the
results summed to calculate total yearly arsenic emissions.
Assume 3 types of glass.(A,B,C) are produced in one
For Glass A, from above, Ra(A) lb As/ton glass
Annual production of Glass A 3000 TPY
Theoretical arsenic emission factor (TA)
.08 lb As/ton 9lass
Correction factor = .1 = 1.25
For Glass B,TB = .075 lb/ton
a(B)= (.07 )(1 25) = .09 lb/ton
Annual production of Glass B = 500 TP
.ror Glass C, T = .4 lb/ton
Ra(C) = (.4)(l.25) = .5 lb/ton
Annual production of Glass C = 750 TP
Total ear1y arsenic emissions
annual production) + (Rab))(B’s
annual production) + (Ra(C))(C’S annual
= (.1 lb/ton)(3000 TPY) + (.09 lb/ton)(500 TPY)
+ (. lb/ton)(750 TPY)
= .15 TPY + .021 TPY + .19 TP = .36 TPY

The Test- Methods in Appendix S of Part 61 are to be used
unless an alternative method has been approved by the Director
ot the t mLss1on Standards and Engineering Division. If tne
results ootained by an alternative method are thought to be
inaccurate, the Regional Office may require the use of a refer-
ence method.-- ir the results obtained b ’ the rererence method
do not agree with those of the aLternative method, the results
obtained by the reference method will prevail.

C. Emission Monitoring (40 CFR 61.163)
An owner or operator complying with S61.162(a)(2) or (b)(2)
must iristall calibrate, maintain, and operate
1) a continuous monitoring system for measuring opacity of
the e hau t gas and
2) a monitoring device for trie ontinuous measurement of
the temperature of the gas entering the control device.
These should be installed, and their operational Status yen—
tied, prior to the emissions test. A report of the C .M eval-
uation should be furnished to the Regional Ottice within 60
days of the evaluation. The purpose of the transmissometer
will be to indicate when the control device may not be operating
properly and emissions may be exceeding the applicable limit.
The rerarence method useo to demonstrate compliance with the
emission limitation remains Method 108. As describea in the
following discussion, a sourcespeciric opacity limit is to
be derived for each individual facility, which will be based
on the opacity during an emissions test demonstrating compliance.
This level would be viewed as .lndlcative of a properly operated
and maintained control device.
Opacity shoula be monitored auring each of the three
runs. of the emission test. During tne emission test, process
and control equipment should be operated so that opacity is
minimized, as may be specified by the Regional Ottice.
Monitoring results should be reduced to 6—minute averages,
ana a source—specific opacity limit corresponding to the
97.5% upper confxaence level of a normal or lognorinal (which-
ever is more representative) distribution ot the average
opacity values shoula be aetermined. Temperature of the gas
entering the control cevice should also be monitored during
each test run, and lb—minute temperature averages should be
determined. An owner or operator may redetermine both these
values it th ,s procedure is repeated during each test run
ot an emission test demonstratir g com liance.
All continuous monitoring syscerns should be in con-
tinuous operation as described in S61.163(f). All opacity
data should be reduced to 6—minute averages, not including
data from periods ot breakdowns, repairs, calibration checKs,
and zero and span aajustxnents. Fifteen—minute averages of
temperature should also be calculated.
The Regional Ott ice may approve, atter receipt and con—
siderationot written a 1 p1ication, an alternative continuous
monitoring system (parameter-based, etc.) to replace the C .M.

D. Recordkeepin (40 CFR 61.165)
AU. owners or operators of glass melting furnaces using
arsenic as a raw material are subject to recorakeeping and
reporting reqt(irements. Each owner or operator must retain tor
a minimum of two years the following lntormatioh:
1) all measurements, including continuous monitoring for
opacity and temperature,
2) all calculations used tor emission estimates and all
records of emission test data,
3) all monitoring System performance evaluations, including
calibration checks and adjustments,
4) occurrence ano duration of all startups, shutdowns or
malfunctions of turnace,
5) all maltunctions ot air pollution control system,
6) all periods when any continuous monitoring system or
aevice is inoperative,
7) all maintenance and repairs made to each air pollution
control system, continuous monitoring System, or
monitoring device, and
8) it permission to b ’pass the control device is obtained,
the dates tne control device is bypassed an steps taken
to minimize arsenic emissions during that perioc.
Adaitionally, each owner or operator ot a glass plant
complying with S6l.l62(a)(l) or (b)(1) must determine and record
every six months:
1) the uncontrollea arsenic emission rate for the preceeding
12—month period (or 6—month period, for the tirst deter-
mination) using measured or calculated arsenic emission
factors (as applicable) multiplied by each respective
glass productior 1 rate, and

2) an estimate of the uncontrolled arsenic emission rate
tor the torthcoming 12—month period, taking into
consideration anticipated changes in production rates,
glass.. ty pes, and other factors.
or these semiannual determinations, it would not be necessary
to conduct a Method 108 test again. The initial correction
ractor could be applied again to calculate the measured arsenic
emission tactor for each glass type.

E.. Reporting (40 CFR 61.165)
Each owner or operator complying with S61.l62a 2) or
(b)(2) must submit written reports to the Aamlnistrator semiannually
it excess op-atity occurred during the preceeding six—month period.
An occurrence of excess opacity is any 6—minute period where the
average opacity exceeded the source—specitic opacity level.
Excess opacity reports would not be used to cite a source in
violation, but would alert enforcement personnel that the
control device may not be operated and maintained j.roperly and
to indicate that an inspection and/or emission test may be
appro riate. All semiannual reports should include:
1) magnitude of excess opacity, conversion factors usec,
dates and times of each occurrence,
2) specitic identification of excess opacity occurring
during start—ups, shutdowns, and malfunctions, and
3) dates and times or each period when the continuous
monitoring system was inoperative (except for zero and
span checks) and the nature of repairs or aojustments.
These reports must be postmarked by the 30 th day tollowirtg the
end or the six—month period.
An owner or operator may apply to the Regional Administrator
tar approval to bypass the control device for limited periods,
as described previously. This application must be submittea at
ieast 60 days berore the bypass period is to begin, and should
.1) name and address ot owner or operator,
2) location ot source,
3) description of nature, size, design, and operation or source,
4) the reason it is necessary to bypass the control device,
5) the length or time needed to bypass the control aevice,

6) steps that Will be taken to minimize arsenic emissions
during the bypass,
7) the quantrty of emissions that would be released it no
stews were taken to reduce emissions,
8) the expected reduction in emissions due to steps taken
during the bypass to minimize emissions, and
9) the type of glass to be produced ouring the bypass and an
explanation or why non—arsenic or lower—arsenic glass
could not be melted during the bypass period.
If an owner or operator of a source complying with the 85%
arsenic reduction requirement wishes to reduce arsenic usage and
comply with the uncontrolled arsenic emission limitation instead,
s/he should notify the Regional Office of this change and include
the necessary calculations and emission test data to demonstrate
tnat uncontrolled emissions will remain below 2.5 (or 0.4) Mg/year.
Each owner or operator complying with S61.l62 (a)(l) or
(b)(1) must report the uncontrolled arsenic emission rate i.t
unáontrolled arsenic emissions exceeo 2.5 Mg/yr for existing
plants, or 0.4 My/yr for new plants. If estimates show that
arsenic emissions have exceeded 2.5 (or 0.4) Mg/yr for the
preceediny 12—month period (or 6—month period, in a tirst
report following the compliance demonstration), this is a violation
and must be reported within 10 days ot the end ot the 6—month
reporting period. If estimates snow that arsenic emissions will
exceea 2.5 (or 0.4) Mg/yr, the owner or operator must comply with
§61.162 (a)(2) or (b)(2) anu, within 10 days, notify the
Regional Office of the anticipateo aate or the emission test.

Table 1: Emission Control for Arsenic Using Glass Plants
- Number of Compliance
Plant No. - - Name/Location Furnaces Methoda ,
I Corning, Martinsburg, WV I PRC
2 Corning, Charleroi, PA 1 PR
Corning, Charleroi, PA 1 CU
3 Corning, Fall Brook, NY 2 PR
Corning, frail Brook, NY 3 tiLL
4 Corning, State College, PA 1 PR
5 GTE—S lvania, Central Pa-us, RI 1 PR
6 North American Phillips, Danvi].le, KY 1 PR
7 blenko Glass, Milton, WV 1 tiLL
8 Brooke Glass Co., Wellsburg, WV 2 UEL
9 Corn Ing, Corning, NY 2 UEL
10 Davis—Lynch Glass, Start City, WV I UEL
Li ienton Art Glass, Williamston, WV 4 ULL
12 Fostoria Glass, Moundsvillé, WV 1 U L
13 GTE, Versailles, KY I UEL.
14 Indiana Glass, Dunkirk, IN 9 tiLL
15 Jeanette Shade & Novelt ., Jeanette, WV 3 UEL
16 Nourot Glass, Benica, CA 2 UEL
17 Owens—Illinois, Shreveport, LA 3 UEL
18 Owens—Illinois, Mt. Pleasant, PA 1 UEL
19 Owens—Illinois, pittston, PA 2 UEL
2U Owens—Illinois, ‘Ioleao, OH 9 U .L
21 Paul Wissnach Galss, Paden City, WV 5 UEL
22 Peltier Glass Co., Ottawa, IL 6 UEL
23 i CA, Circieville, UK 2 UE.L.
24 Scartdia Glass Works, Kenava, WV 2 UEL
25 Shott Optical, Duryea, PA 3 UEL
Vanderxnark Merritt Glass, Piem ngton, NJ I UEL
27 Westrnorelana Glass Co., Pittsburgh, PA 4 UEL
a UEL = Uncontrollea Lmission Limt (2.5 Mg/yr)
PR = Percent Reduction (8 %)
CU = Cease Arsenic Use
b some of the turnaces emitting under 2.5 Mg arsenic/year also
have control devices, and may comply using either method
C Needs to install controls

Plants that are believed to have removed arsenic atter proposal
and which Would be subject to 0.4 Mg arsenic/year emission
limit if arsenic is re—introduced into glass:
1. Americai Stemware Corp.
2. Anchor—Hocking, Lancaster, OH
3. Anchor—riocking, Clarksburg, OH
4. Anchor—Hocking, baltimore, MD
5. Corning, Charlerot, PA (Soda—Lime furnace only)
6. Harvey Industries, Clarksbur g, WV
7. Wheaton Industries, Millsville, NJ
Plants known to have usea arsenic, but which were closed at
last re ort:
1. Seneca Glass Company, Morgantown, WV
. Sloan Glass, Inc., Culloden, W’v

TABLE 2: Compliance Schedules
Fabric FLlter ES?
Time (days )
Contracts awarded or purchase
orders issued 60
Fabrication 27(J 360
Shx p irtg 30 30
installation 240 150
Start—up 40 40
Samplinç, analysis, report 90 90
Total. 730 730

Benzene NESHAPS Guidance

JVN I gp
SUBJECT: enzene NESHAPs Guidance
FROM: Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Air & Waste Management Division Directors
Regions II, IV, \ I—VIII, and X
Air Management Division Directors
Regions I, III, V, and IX
Attached are enforcement guidelines for the benzene NESHAPS,
which is scheduled to be promulgated on June 4, 1984 and which
will regulate benzene equipment leaks from fugitive emission
sources. The guidelines summarize the regulations and address
potential enforcement problems. All Regions should work with
delegated States in identifying affected sources and ensuring
those sources are in compliance with the benzene regulations.
The Stationary Source Compliance Division and the Emission
Standards and Engineering Division have jointly agreed to present
e one day session discussing the benzene NESHAPs, if there is
sufficient interest among Regional personnel. The session is
tentatively scheduled for Washington during the week of June 18.
Please notify Robert Myers at (FTS) 382—2875 if representatives
from your Region would be interested in attending such a meeting.
C< (#€A .
Edward E. Reich
At t a c hnie n t
CC: Jack Farmer
Fred Diinnijck
Earl Salo
NESHAPS Contacts

NESHAPS Enforcement Guideline S—28 — Benzene Equipment Leaks
(Fugitive Emission Sources)
Benzene standards are being promulgated under the
National Emission Standards for Hazardous Air Pollutants,
Section 112 of the Clean Air Act. Standards under this
- section have already been promulgated for asbestos, beryllium,
mercury, and vinyl chloride, and have been proposed for
arsenic and radionuclides in addition to benzene. OAQPS has
prepared this document to aid in enforcement and implementation
of the benzene NESHAPs. This summarizes the benzene equipment
being regulated and the standards to which this equipment is
subject, and provides guidance on several issues of enforce-
ment concern.
On June 8, 1977 the Administrator declared benzene a
hazardous air pollutant and a carcinogenic risk to human
health. Standards were later proposed for four sources of
benzene emissions. These sources were benzene equipment
leaks (fugitive emission sources), proposed 1/5/81, 46 FR
1165, maleic anhydride plants, ethylbenzene/styrene plants,
and benzene storage vessels. Further analysis has led EPA
to conclude that both the berizene health risks (annual leu-
kemia incidence and maximum lifetime risk) to the public
from the latter three source categories and the potential
reduction in health risks achievable with available control
techniques are too small to warrant action under Section 112
for these three categories. As a result, EPA proposed on
March 6, 1984, 49 FR 8386, to withdraw the proposed standards
for these three categories. Because of the magnitude of
benzene fugitive emissions, the projected increase in emis-
sions as a result of new sources, and the estimated decrease
in risks and emissions achievable through controls, EPA
found fugitive benzene emissions posed a significant risk
and should be regulated.
Valves, pumps, flanges and other pieces of equipment
are used extensively in the refining and organic chemical
industries to move streams of organic compounds to and from

various process vessels. Since this type of equipment can
develop leaks, each individual piece is a potential source
of organic compound emissions whenever it handles a process
stream containing such compounds. Benzene fugitive emissions
sources are pieces of equipment handling streams that could
potentially contain benzene. These include sources that
develop leaks after some period of operation due to seal
failure as well as Other sources that can emit benzene when
used in specific conditions in the production unit. The
sources that develop leaks due to seal failure are those using
a sealing mechanism to limit the escape of organic compounds
to atmosphere. These include pumps, valves, flanges, relief
valves and compressors. Other types of equipment are potential
benzene fugitive emissions sources for reasons other than
leaking seals. These types of equipment might have the poten-
tial for intermittent benzene emissions because they vent
organic materials that contain benzene to atmosphere, and
include sampling connections, open—ended valves, and product
accumulator vessels.
Scope and Applicability
The standard covers new and existing valves, pumps,
compressors, pressure relief devices, sampling connection
systems, open—ended valves or lines, pipeline flanges,
product accumulator vessels, and closed vent systems and
control devices used to comply with the standard. This
equipment is used in the production of benzene and other
chemicals and products, such as maleic anhydride, ethanol,
and pharmaceuticals.
To be covered the equipment must be in berizene service,
i.e., it must contain material with a benzene concentration
of 10 percent or more by weight. See the compliance issues
topic for a discussion of in benzene service”.
Exempted from this standard is equipment located in
process units that produce benzene or benzene mixtures at coke
by—product plants. These will be covered by other regulations.
Additionally, plant sites designed to produce or use benzene in
quantities of 1000 Mg/yr or less are exempt from the standard.
The source owner or operator has the responsibility of demon-
strating to EPA’S satisfaction that the site is below the 1000
Mg/yr threshold level. Such a demonstration can be accomplished.
by engineering analysis as well as by proof of physical limitation
of plant capacity.

Controls for new and existing sources are the same.
In the case of an existing source or a new source which has ..-
an initial startup date preceding the effective date, the
standard applies within 90 days of the effective date, unless)
a waiver is granted pursuant to S61.ll. _ /
EPA estimates the standard will affect equipment located
in approximately 240 existing process units and an expected
70 new process units by 1985. Attachment 1 lists 131 plant
sites EPA has identified as having the potential to emit
benzene fugitive emissions. This list is not exhaustive and
Regions and States should seek to identify other affected
sites and confirm the accuracy of those listed.
Generic standards for equipment leaks are presented under
Subpart V of 40 CFR 61. Subpart J, standards for benzene
equipment leaks, requires that affected sources must meet the
requirements of Subpart V. Two basic control techniques are
employed by the standard to reduce benzene fugitive emissions.
These are leak detection and repair programs in which fugitive
source leaks are located and repaired at regular intervals, and
preventive programs in which potential fugitive sources are
eliminated by either retrofitting with specified controls or
replacement with leakiess equipment. A discussion of the
specific standards for each affected piece of equipment follows.
1. Valves . This is one of the most common pieces of
equipment in a refinery or organic chemical production unit.
It ordinarily is activated by a valve stem requiring a seal
to isolate the process fluid from atmosphere. Since the
potential for leaks exists, valves are subject to regulation.
A monthly leak detection and repair program is required
for valves in gas or liquid service. Gas and liquid service
are defined under S6l.191. Quarterly monitoring will be
allowed for valves that have been found not to leak for two
successive months. Leak detection is to be performed with a
portable organic vapor analyzer, according to Reference Method
21 of 40 CFR 60, Appendix A. A leak is described as a reading
of 10,000 ppm or greater of organic material. Whenever a
leak is detected the valve must be tagged until repaired and,
at a minimum, must be monitored monthly until a leak is not
detected for two successive months.

Initial repair of the leak must be attempted within 5
days, and the repair must be completed within 15 days.
Initial repair includes, but is not limited to, the following
best practices where practicable:
(1) tightening of bonnet bolts;
(2) replacement of bonnet bolts;
(3) tightening of packing gland nuts; and
(4) injection of lubricant into lubricated packing.
See S61.l92—7(e).
An annual leak detection and repair program is required
to be developed and followed if the valves are difficult to
monitor. The description of this program must be kept in a
readily accessible location. Difficult to monitor valves
are those that would require elevating the monitoring personnel
more than two meters above any permanent available support
surface. Valves that cannot be safely monitored by the use
of step ladders could be classified as difficult to monitor.
For valves which are unsafe to monitor, an owner or
operator is required to develop and follow a plan that defines
a leak detection and repair program conforming with the
routine monitoring requirements of the standard as much as
possible, with the understanding that monitoring hou1d not
occur during unsafe conditions. Unsafe to monitor valves
are defined as those that could, as demonstrated by the
owner or operator, expose monitoring personnel to imminent
hazards from temperature, pressure, or explosive process
conditions. There should be very few valves in benzene
service that are unsafe to monitor.
Two alternative standards are available for valves in
gas/vapor and liquid service. The first alternative speci-
fies a two percent limitation as the maximum percent of
valves leaking within a process unit, determined by an initial
performance test and a minimum of one performance test
annually thereafter. Process unit is defined at S61.191.
This alternative could be met by implementing any type of
program and engineering controls chosen at the discretion of

the owner or operator. If the percentage of valves leaking
is higher than two percent, the process unit is in violation.
If owners or operators decide they no longer wish to comply
with this alternative, they must submit written notice to
EPA accepting compliance with the monthly/quarterly leak
detection and repair program.
The second alternative standard specifies two skip—period
leak detection and repair programs. Under this option an
owner or operator upon notifying EPA can skip from monthly!
quarterly monitoring to something less frequent after corn—
pleting a specified number of consecutive monitoring intervals
with the percentage of valves leaking equal to or less than
2.0. Under the first program, after two consecutive quarterly
periods with fewer than two percent of valves leaking, n
owner or operator may skip to semiannual monitoring. Under
the second program after 5 consecutive quarterly periods
with fewer than two percent of valves leaking, annual moni-
toring may be adopted. Mi owner or operator cannot adopt
semiannual monitoring and then proceed directly to annual
monitoring by claiming one period of semiannual, monitoring
substitutes for two quarterly periods. If the owner or
operator finds the two percent level is exceeded, he or she
must revert to monthly/quarterly leak detection and repair.
If EPA finds the two percent level is exceeded, an evaluation
of compliance should occur. This alternative differs from the
first alternative because the type of compliance program chosen
must be leak detection and repair, rather than a program at
the discretion of the owner or operator.
An owner or operator electing to comply with the provisions
of either of these options must notify the Administrator 90 days
before implementing the option.
Delay of repair for equipment for urhich leaks have been
detected is allowed under certain circumstances. See §61.192—
10. There are two general circumstances where repair delays
for pumps, compressors and closed—vent systems, as well as for
valves, are allowable. The first is where repair is technically
o physically infeasible without a process unit shutdown,
defined as a work practice or operational procedure stopping
production. The use of spare equipment and technically
feasible bypassing of equipment without stopping production
are not process unit shutdowns. Repair must occur before
the end of the next process unit shutdown; hence, only one

shutdown may be passed before repair is always required.
Repair is required during scheduled shutdowns of any duration
and during unscheduled shutdowns of over 24 hours.
The second general circumstance where repair delay is
allowed is if the equipment is isolated from the process and
no longer contains benzene in concentrations greater than
ten percent.
Delay of repair specifically for valves is allowed
beyond a process unit shutdown when unforeseeable circumstances
deplete valves used for repair. The valve assembly supplies
must have been sufficiently stocked before the supplies were
depleted. In this case delay of repair beyond the next
process unit shutdown will not be allowed unless the next
process unit shutdown occurs sooner than six months after
the first shutdown. Delay of repair for valves is also
allowed if the owner or operator can show that leakage of
purged material resulting from immediate repair would be
greater than the fugitive equipment leaks likely to result
from delay of repair, and that when repairs are effected,
the purged material is destroyed or recovered in a control
2. Pumps — A pump normally has a shaft that requires
a seal to isolate the process fluid from atmosphere. Packed
and mechanical shaft seals are most common. If the seal
becomes imperfect due to wear, compounds being pumped leak.
Requirements for pumps are similar to those for valves.
A monthly leak detection and repair program is required, with
detection determined by Reference Method 21. Alternatively,
dual mechanical seals may be used under conditions specified
at S61.l92—2(d). Each pump must be visually inspected weekly
for indications of liquid dripping frdm the pump seal. A
reading of at least 10,000 ppm or indication of liquids
dripping is a leak.
Initial pump leak repair must be attempted within five
days and completed within 15. Delay of repair is allowed
for pumps that cannot be repaired without a process unit
shutdown and a delay of up to six months after leak detection
is allowed when the owner or operator determines that repair
requires use of a dual mechanical seal system with barrier
fluid system. Any pump equipped with a closed—vent system
capable of capturing and transporting any leakage from the
seal to a control device is exempt from the requirements.

3. Compressors — Compressors have a shaft that requires
a seal to isolate the process gas from atmosphere. The
potential for a leak through this seal makes it a potential
Source of benzene emissions. The standard requires the use
of seals with barrier fluid systems that prevent leakage.
The barrier fluid system must be equipped with a sensor that
will detect failure of the seal or barrier fluid system.
Sensors must be checked daily or have an alarm. If the
sensor detects a failure, a leak is detected. Leaks must be
repaired within 15 days. A compressor is exempt from the
above if it is equipped with a closed—vent system transporting
leaks to a control device, or it satisfies the no detectable
emissions provision at S61.192—3(j).
4. Pressure relief devices in gas/vapor service .
The standard requires no detectable emissions, which is a
reading of less than 500 ppmv_above background based on
Reference Method 21. A i]. As
an alternative, compliance may be achieved by use of a rup-
ture disk system or closed—vent system capable of capturing
and transporting leakage from the pressure relief device to
a control device, such as a flare. This standard does not
apply to discharges during overpressure relief, but the relief
device must be returned to a no detectable emissions status
within five days of such a discharge. Additionally, relief
valve simmering (wherein the system pressure is close to
valve set pressure) is not allowed.
S. Sampling Connection Systems — Product quality and
process unit operation is checked periodically by analysis
of feedstocks, intermediates, and products. To obtain repre-
sentative samples for these analyses, sampling lines generally
are purged first. If this flushing liquid purge is not
returned to the process, it cpuld be drained onto the ground
or into a process drain, where it would evaporate and release
benzene to atmosphere.
The Standard provides for closed—purge sampling to
eliminate emissions due to purging by either returning the
purge material directly to the process or by collecting the
purge in a collection system generally closed to the atmos-
phere and disposing of it in an appropriately designed control
device. Closed—vent vacuum systems connected to a control
device and in—situ sampling systems are also allowed.

6. Open—Ended Valves or Lines — Some valves are installed in
a system so that they function with the downstream line open
to atmosphere. A faulty valve seat or incompletely closed
valve would cause leakage through the valve. The use of caps,
plugs, or any other equipment that will effect enclosure of
the open end is required. If a second valve is used, the
standard requires the upstream valve to be closed first. This
prevents the trapping of process fluid between the two valves.
7. Product Accumulator Vessels, Flanges, Pressure Relief
Devices in Liquid Service — Product accumulator vessels
are utilized with fractionation columns, and may be vented
directly or indirectly to atmosphere. Flanges are gasket—
sealed junctions which may develop seal leaks. Pressure relief
devices are designed to release a product material from distil-
lation columns and other pressurized systems during emergency
or upset conditions.
The standard for product accumulator vessels effectively
requires venting accumulator emissions to a control device,
or use a closed—vent system. Flanges and pressure relief
devices in liquid service are excluded from routine leak
detection and repair requirements, but if leaks are detected
by visual, audible or olfactory techniques, they are subject
to the same allowable repair interval as applies to valves
and pumps.
8. Closed—Vent Systems and Control Devices — Control devices
will be used to reduce benzene equipment leaks captured and
transported through closed—vent systems. Reference Method 21
will be used to verify that a closed—vent system has been
designed and installed properly. Method 21 requires that
closed vent systems be checked visually to ensure there are no
leaks where they would not be expected (e.g., in pipes) and
also requires the monitoring of connections that are expected
to leak occasionally.
Enclosed combustion devices, such as incinerators,
catalytic incinerators, boilers, or process heaters must be
designed to reduce emissions vented to them with an efficiency
of 95% or greater or provide a minimum residence time of
0.50 seconds at a minimum temperature of 760° C. Vapor
recovery systems such as carbon adsorbers or condensation
units must be designed and operated to recover the organic
vapors vented to them with an efficiency of 95% or greater.
As an alternative the use of smokeless flares designed

for and operated with no visible emissions is allowed. Spec’ f c
flare conditions established at c61.192—j1(d) and SGl.l95(e)
must be met and destruction efficiency must be over 95%.
Equipment purges from valves, pump seals, compressor seals,
pressure relief devices, sampling connection systems, and
product accumulator vessels must be vented to a system complying
with the requirements of the control device portion of the
Closed—vent systems must be designed and operated with no
detectable emissions, as indicated by an instrument reading of
below 500 ppm above background and by visual inspections. See
6 l.l95(c). They shall be monitored initially, annually, and
at other times requested by the Administrator. Leaks must be
repaired as soon as practicable, but not later than 15 days
after detection, with a first attempt no later than five days
after detection.
Equivalent Means of Emission Limitation
Each nwner or operator may apply to the Administrator
for deter:- ..natjon of equivalence for any means of emission
limitation that achieves a reduction at least equivalent to
the reduction achieved by the required controls. GuideLines
for the deterp jnatjon of equivalence are provided at 561.194(b)
and (c). Acceptance of such an equivalent method must be
approved by the Administrator and published in the Federal
Register . Such a request applies to pumps, compressors,
sampliri connection systems, open—ended valves or lines,
valves, pressure relief devices, product accumulator vessels
and closed—vent systems and control devices. Such requests
should be forwarded to the Emission Standards and Engineering
Division (ESED) for review and approval.
No Detectable Emissions
Pumps pursuant to 561 ,192—2(e), compressors pursuant to
S61.192—3(j) and valves pursuant to 561.192—7(f) may be desig-
nated for no detectable emissions, indicated by a Method 21
instrument reading of less than 500 ppm above background.
These piece, of equipment would be exempt from other require—
ruents, as specified. Pressure relief devices in gas/vapor
service and closed—vent systems must be designed for and
operated with no visible emissions, with compliance determined
by Method 21. Compliance of flares with the no visible
emissions standard, as provided at 561.192—11(d, shall be
determined by Reference Method 22.

- 10
Peformance tests shall be conducted a minimum of once per
year, except for pressure relief devices and flares. Pressure
relief devices shall be tested no later than five calendar days
after each pressure release. Flares shall be monitored with an
appropriate heat sensor, such as a thermocouple, to ensure the
presence of a flame. Also, flares must be a Smokeless operation,
as evidenced by visible emissions for a maximum of 5 minutes
in any 2—hour period.
Reporting Requirements
Reporting requirements described under 561.197, are of
two types. The first is an initial report, and the second a
series of semiannual reports. An initial report must be
submitted within 90 days of the affective date for existing
sources or new sources having an initial startup date preced-
ing the effective date. For new sources with a startup date
after the effective date, the initial report must be submitted.
with the application for approval of construction, as described
in 561.07.
Receipt of the initial report is essential for ensuring
compliance with this standard. The report must specify equipmeri
identification number and process unit identification, type of
equipment, percent by weight bertzene in the equipment fluid,
process fluid state (gas/vapor or liquid), and method of
compliance with the standard (monthly leak detection, no
detectable emissions, etc.).
Semiannual reports of leak detection and repair efforts
within a process unit are required. The reports must include
the number of leaks occurring within the process unit during
the reporting period, the number of leaks that could not be
repaired within 15 days, and the general. reasons for unsuccess-
ful or delayed repair past 15 days. Reports may be photocopies
of reports under other regulations, provided the informational
requirements of 561.197 are satisfied.
Recordke•pinp R uirements
These are specified at 561.196. Each leak shall be
identified and tagged, and this must be retained until the
leak is repaired. When each leak is detected, records should
be kept of the equipment and operator identification numbers,

dates for detection and repair, method of repair, and any reascr
for delay of repair. These must be kept for two years.
Recordkeeping pertaining to the design requirements for closed—
vent systems and control devices must be recorded in a log and
kept in a readily accessible location. This recordkeeping
includes detailed schematics, design specifications, a descrip-
tion of the parameters monitored to ensure proper control device
operation and maintenance, periods when the closed—vent sytems
and control devices were not operated as designed, periods when
a flame pilot light did not have a flame, and dates of startups
and shutdowns of the systems. Additionally, records must be
kept explaining why valves have been classified as unsafe or
difficult to monitor and providing plans for monitoring such
valves. Records must be kept showing analyses demonstrating
that equipment is not in benzene service.
Compliance Issues
Compliance is determined by review of records required by
S61.196, review of performance test results, and inspections
(EPA/State leak detections) using the methods and procedures
specified in 561.195. There are, however, several potential
compliance issues for which guidance is provided here.
1. For purposes of determining the percent benzene content,
S61.195(d) provides that ASTM Method D—2267 shall be used or an
owner or operator may use engineering judgment to demonstrate
that the percent benzene content does not exceed 10 percent by
weight. In case of a dispute the ASTM method takes precedence.
It should be noted that each piece of equipment within a process
unit that can conceivably contain equipment in benzene service
is presumed to be in benzene service unless an owner or operator
demonstrates otherwise. For a piece of equipment to be considered
not in service, it must be determined that the percent bertzerte
content can be reasonably expected never to exceed ten percent
by weight. The burden is on the owner or operator to show
equipment is not in benzene service.
2. Several benzene equipment standards require that the owner
or operator develop, based on design considerations and
operating experience, a criterion indicating system failure.
See 561.192—2(d) (5) for pumps and 561.192—3(e)(2) for compressors.
The valve standard requires at 5 6 l.l 92 — 7 (g) that the owner or
operator have written plans for monitoring unsafe—to—monitor—
valves during safe periods and at S61.192—7(h) that the owner

or operator have written plans for monitoring difficult—to—
monitor valves at least once per year. Although none of these
plans requires EPA approval, all must be accessible to inspection
personnel. Should the plan appear inadequate, inspectors may
request development of a new plan or a performance test when
applicable to ensure compliance is being achieved. If the
plan is obviously inadequate (intentionally inadequate), a
violation should be pursued.
3. The standard for closed—vent systems and control devices
at S61.192—ll(e) requires that owners and operators of control
devices used to comply with the standard monitor their control
devices to ensure they are operated and maintained in confor-
mance with their designs. No monitoring parameters are
suggested; however, the owner or operator must achieve 95%
control and the parameter selected must indicate this.
The Synthetic Organic Chemical Manufacturing Industry
Promulgation Background Document (EPA 450/3—30—033b, 3une 1982,
Appendix B) provides acceptable monitoring parameters and
equipment. These include operating temperature or flowrate
of fugitive emission vent streams for incinerators, flow
recorders to verify steam flow for boilers, thermocouples or
ultraviolet beam sensors for flares, temperature and specific
gravity of the absorbing liquid for absorbers, offgas exit
temperature for condensers, and carbon bed temperature and
steam flow recorders for carbon adsorbers. See Attachment II.
Whatever parameter is chosen, the owner or operator should
be aware that EPA can require an engineering evaluation at
any time to ensure the parameter is appropriate and monitors
the operation of the control device in accordance with the
4. The general provisions at 561.10 and 61.11 allow EPA to
grant a waiver from a benzene standard for a period of up to
two years, if the owner or operator of an existing source
subject to that standard Is unable to operate in compliance
with the standard. Most benzene requirements are in the form
of work practic. standards, and waivers from these standards
would not be appropriat.. However, certain provisions may
require retrofitting of controls. These include standards
for compressors (mechanical seals with barrier fluid systems)
pressure relief devices (rupture disk systems or closed—vent
systems to flares), and product accumulator vessels (must vent

emissions to a control device or use a closed—vent System).
In cases where retrofit controls are necessary, requests for
waivers Should be examined on a case—by—case basis. Althou;
ESED believes installatLon of controls should typically take
no more than one year, individual situations may require ad i-
tional time.

Attachment I
1. AllIed Chevn cal
2. AllIed Chemical
3. AmerIcan Cyanamid
4. American Cyanamid
S. Mierada Hess
6. AmerIcan Hoechst
7. American Hoechst
Ashland 311
Ashland Oil
Atlantic Richfield
16. Atlantic Richfield
Ci ty/Sta
Geismar, LA
Moundsville, WV
Bound Brook, NJ
Wil1 Island, WV
St. Croix, VI
Baton Rouge, LA
Bayport, TX
Port Arthur, TX
Big Spring, TX
Neal, WY
North Tonawanda, MY
Beaver Valley, PA
(Kobu ta)
channelview, TX
Et 9
M D 9
Bz° 107
Et (2 units) 1179
P ant
Benzerte—Rel ated
Product Capaci tyb
At Site ( Gg/yr )
Ni Bz
Ni Bz
Bz 67
8. American Petroflna
(of Texas)
9. AmerIcan Petrofina
(Cosden Oil)
10. American Petrofina
(Cosden 011 /Petrogas)
11. ,nerican Petrofina/
Union 011 of CA
12. Ashland Oil
Groves, TX
Beaumont, TX
Ashland, Y

Benzene—Rel ated
Pro uct Capaci t b
Plant City/State At Site ( Gg/yr )
17. Atlantic Richfield Wilmington, CA Bz 40
Et 45
18. Atlantic Richfield Houston, TX BzC 140
(ARCO/Polyrners) Et 227
EtBz 61
St 54
19. AtlantIc Richfield Port Arthur, TX EtBz 114
(ARCO/Poly,i ers)
20. Charter Houston, TX Bz 17
International EtBz 16
21. Chenetics International Geismar, LA N1Bz 173
22. Cherplex Clinton, 10 Et 227
23. CIties Service Lake Charles, LA Bz 83
Et (2 units) 400
24. Clark Oil Blue Island, IL Cu 50
25. Coastal States Gas Corpus Christi, TX Bz 234
26. Comonwealth Oil Penuelas, PR Bz 618
Cyx 117
EtBzC 73
27. ContInental Oil Baltimore, MD LAB 122
28. Continental Oil Uke Charles, LA Et 302
29. Core—Lube Danville, IL BSA ND 9
30. Corpus Chrlstl Corpus Chrtstl, IX 82 d 100
Petrochlcals Etd 544
31. Cos—Mar, Inc. Carrvllle. LA EtBz 690
St 590
32. Crown Central Pasadena. TX Bz 77
33. Denka (Petrotex) Houston. TX MAN 23
34. Dow Chenical Bay C1t , MI Bz 100
Et 86

Benzene — R?l a ted
Products Càpaci tyb
Plant City/State At Site ( Gg/yrj
35. Dow Chemical Freeport, TX Bz 167
Et (5 unIts) 1136
EtBz 794
St 658
36. Dow Chemical Midland, MI C13z 129
E BZe 249
St 181
37. Dow Chemical Orange, TX Et 375
38. Dow Chemical Plaquemine, LA 200
Et (2 wilts) 545
39. Dupont Beaumont, TX NiBz 159
40. Dupont - Gibbstown, NJ NIBz 113
41. Dupont Orange, TX Et 374
42. Eastman Kodak Longview, TX Et 58C
43. El Paso Natural Gas Odessa, TX Et ND 9
EtBz 125
St 68
44. El Paso Pr ducts/ Odessa, TX Et 236
Rexene Polyolefins Stc 47
45. Exxon Baton Rouge, LA Bz 234
Et 816
St MD 9
46. Exxon Baytown, TX Bz 200
Cyx 147
Etc 36
47. First Chemical Pascagoula, MS NIB: 152
48. Georgla.Paclflc Houston, TX Cu 340
49. Getty Oil Delaware City, DE B: 37

50. Getty Oil
56. Gulf Oil
El Dorado, K.A
Calvert City, KY
Bayport, TX
Taft, LA
Alliance, LA
Donaidsonville, LA
Philadelphia, PA
Cedar Bayou, TX
Port Arthur, TX
McGregor, TX
San Antonio, TX
Niagara Falls, NY
Winnie, TX
Birmingham, At.
Corpus Christi, TX
Bridgevllle, PA
Cicero, IL
Petrolla, PA
Texas City, TX
New Martlnsville, WY
Ben zene—Rel ated
At Site
Et (2 units)
Et (2 units)
Cl Bz
Ml Bz
Capaci tyb
4 9
B.F. Goodrich
Goodyear Tire & Rubber
Gulf Coast Olefins
Gulf Oil
Gulf Oil
57. Gulf Oil Chemicals
58. Gulf Oil Chemicals
ICC Industries
Independent Refining
Jim Walter Resources
Kerr-McGee Corp.
Marathon 011
69. Mobay Chemical
9 —5

72. Monsanto
73. Monsanto
74. Monsanto
75. Montrose Chemical
76. NatIonal Distillers
77. Nease Chemical
78. Northern Petrochemical
79. OlIn Corporation
80. Oxirane
81. Pennzoil (Atlas)
82. PhillIps Petroleum
83. PhIllips Petrolete
84. PhIllips Petroleum
Beaumont, TX
Alvin, TX
(Chocolate Bayou)
Sauget, IL
St. Louis, MO
Texas City, TX
Henderson, NV
Tuscola, IL
State College, PA
Morris, IL
Brandenburg, KY
Channelylew, TX
Shreveport, LA
Borger, TX
Pasadena, TX
Sweeny, TX
70. Mobil Oil
71. Monsanto
At Site
Cl Bz
Cl Bz
Et Bz
Et (3 unIts)
Ca p a

85. Phillips Puerto Rico
Puerto Rico Olefins
Reichhold Chemicals
Reichhold Chemicals
Reichhold Chemicals
abi con
Shell Chemical
Shell Oil
96. Shell Chemical
97. Shell Oil
98. Shell 011
99. SpecIalty Organics
100. Standard Chlorine
10].. Standard Chlorine
102. Standard Oil (CA)/
Chevron Chemical
103. Standard 011 (CA)
104. Standard 011 (CA)
105. Standard 011 (IN)!
Benzene—ReIa ted
P roduc t
City/State At Site
Guayama, PR Bz
Penuelas, PR
Natrium, WV
New MartInsville, WV
Corpus .Christi, TX
Elizabeth, NJ
Morris, IL
Tuscaloosa, AL
Geismar, LA
Houston, TX
Deer Park, TX
Norco, LA
Odessa, TX
Wood River, IL
Irwindale, CA
Delaware City, DE
Kearny, NJ
El Segundo, CA
Pascagoula, MS
Richmond, CA Bz
Alvin, TX Et (2 units)
Capaci tyb
NO g
ND 9 ,
ND 9
P 4 0 9
C I Bz
Cl Bz
NI 82
C I Bz
Cl Bz

Benzene—Re la ted
______ Pr duct Capac, tyb
Plant City/State At Site ( G /y
106. Standard 011 (IN)/ Texas City, TX Bz 234
Amoco Cu 14
EtBz 386
- St 381
107. Standard Oil (OH)/ Marcus Hook, PA Bz 27
BP Oil
108. Stauffer Chenical Henderson, NY BSA 4
109. Sun Oil Corpus Christi, TX Bz 127
Cu 1 13
Et 9
EtBz 61
St 54
110. Sun Oil Marcus Hook, PA Si 97
111. Sun Oil Toledo, OH Sic 164
11.2. Sun Oil Tulsa, OK Si 80
CyxC 83
11.3. Sun—Olin Clay nt, DE Et 109
114. Tenneco Chalmette, LA Bz 33
EtBz 16
115. Tenneco Fords, N J MAN 12
116. Texaco Port Arthur, TX Si 150
CyxC 117
Et 454
117. Texaco Westvllle, NJ Si 117
Cu 64
118. Texaco/q].ff.rscm Bellaire, TX Et 240
119. Texaco/Jefferson Port Niches, TX Et 238
Che 1 cat

Union Carbide
Union Carbide
Union Oil of CA
Union Paclflc/
Champi in
U.S. Steel
USS Chemicals
Witco Chemical
Penuelas, PR
Seadrift, TX
Taft, LA
Texas City, TX
Torrance, CA
Le nt, IL
Corpus Christi, TX
Nevifle Island, PA
Houston, TX
Jacksonvifle, AR
Carson, CA
Benzene—Rela ted
At Site
c d
Cl Bz
N 0 g
ND 9
ND 9
Cl Bz
BenzsnesulfonlC kid
$ Banzsns
a ChIorobenzene
a Cyclohexane
- Ethylbenzene
a Hydroqulnone
a Linear Alkylbenzene
a Maleic Anhydride
a Mt trobenzene
a Resorcir ol
$ Styrene
Institute, WV
120. Union Carbide
121. Union Carbide
122. Union Carbide
123. Union Carbide

bAnnUal capacities for each product were obtained fr an the following
sources (effective date of capacity In parentheses):
BSA — Ref. 3 (January 1977)
Bz — Refs. 3 (January 1977), 14
C18z — Refs. 4 (January 1977), 13, 14
Cu • Ref. 9 (January 1979), 13, 14
Cyx — Ref. 2 (November 1976), 3 (January 1977)
— Refs. 5 (1977 year—end), 15 (June 1979), 11, 13, 14, 33
EtBz — Ref. 10 (January 1979)
Hqn — Capacity estiaiate from Industry (1979)
LAB — Ref. 8 (June 1978)
MAN - Ref. 3 (January 1977)
NiBz — Refs. 7, 32
Rcnol — Ref. 6
St — Refs. 1 (1977 year—end), 14
Cprodt unit under expansion
dprdt unit under construction
unit on standby or not currently in use
Product unit in engineering phase
data available

Attachment II
The standards require that some fugitive emission vent streams be
vented through a c4osed vent System to a Control device (that is designed
and operated for greater than 95 percent control), such as an incinerator,
flare, boiler, or process heater. The standards also requj that the
control device be monitored to ensure that it is Properly operated and
maintained. This appendix presents methods for monitoring control devices:
incinerators, boilers and process heaters, flares, or product recovery
equipfnent, such as condensers or Carbon adsorbers.
Incinerators must be maintained and operated properly if the standard
is to be achieved on a continuous basis. The operating parameters that
affect performance are temperature, type of compound being incinerated,
residence time, inlet concentration, and flow regime. Of these variables,
the last two have the smallest effect on the performance of an incinerator.
Residence time Is a design criterion and Is not easily altered after the
Incinerator is constructed, unless, of course, the vent stream flowrate is
changed. At temperatures above 760’C, the type of compound being burned has
lIttle effect on the efficiency of Combustion.
COfltin monitoring of the incinerator inlet and outlet would be
preferred because It would provide a COfltifl , direct measurement of
actual emissions and destruction efficiency. However, EPA Is aware of no
Continuous monitor being used to measure total VOC at Incinerators which
control fugitive vent streams, probably because each of the many different
compounds would have to be Identified separately and their concentrations
determined. Such a monitoring system would be extremely complex for the
determjnat1 of ind1vidu 1 component concentration and mass flow rates.
Moreover, it would be relatively expensive since both Inlet and outlet
monitors are required to verify that a certain destruction efficiency is

a reliable
measure of the efficiency of the incinerator in destroying organic
compounds. Both theoretical calculations and results of monitoring or
performance tests show that lower incinerator operating temperatures can
cause a significant decrease in VOC destructior efficiency. Temperature
recorders are relatively inexpensive, costing less than S5,000 installed.
They are easily and cheaply operated. Given the large effect of temperature
on efficiency and the reasonable cost of temperature monitors, EPA believes
that temperature is clearly easy to monitor and would provide some measure
of the uniformity of the operation of the incinerator.
- Where a co itustion device is used to incinerate only waste VOC streams
(and not n* ltiple waste streams from the process unit), flowrate can also be
an Indirect Indication of changes in destruction_efficiency since It relates
directly to residence time in the comuindevice. Flowrates of fugitive
emission vent streams are typically small and thus would probably be ducted
with other larger streams to the same incinerator. Under these circum-
stances, the vent stream flowrate (for fugitive emissions) may not always
give a reliable indication of the residence time of the fugitive emission
vent stream in the incinerator. Simple indication of fugitive emission vent
stream flowrate to the Incinerator does, however, provide verification that
VOC Is being routed to the incinerator. Flow recorders, at an estimated
installed cost of less than S2,000, are inexpensive and require little
maintenance. Therefore, since flow recorders provide verification that
organics—laden streams are being routed to the incinerator for destruction
and they are Inexpensive, flawrate Is also a reasonable p raeeter to monitor
the constancy of perforuince of an incinerator. Flow recorders should be
installed, cdibrated, maintained, and operated according to the
manufacturer’s specifications.
If a fugitive emissions vent is piped to the flame zone of a boiler (or
process heater), it is only necessary to know that the boiler (or heater) is
operating and that the waste gas is flawing to the boiler (or heater).
Records presently maintained for plant operation. such as steam produ ti n .
_ -

recors,wou1djfldi teOpe,.at Flow recorder 5 could be installed to
verify flow of the vent stream to the boiler (or heater). For smaller heat
Producing units (less than 44 MW (150 million Btu/hr heat input)),
Combustion temperature should also be recorded to enable verificat,cr of
Optimum operation. Boilers (or heaters) with heat ir ut design capacities
greater than 44 MW would not be required to install temperature recorders
These larger units always operate at high temperatures (‘1100°c) and stable
.flowrates to avoid upsets and to maximize steam generation rates. Records
that indicate onstream time would be sufficient for these larger boilers (or
- Because flares are not enclosed COf uStjon devices, it is not
Practically feasible to measure combustion parameters Continuously.
Temperatures and residence times are more variable throughout the combustion
Zone for flares than for enclosed devices and, therefore, such measurements
would not necessarily provide a good indicator of flare performance even if
measurable. Monitoring of flow rate to the flare is generally unacceptable
from a safety point of view since the flow measurement would present an
obstruction in an emergency vent line. As a result, flare operation is
usually verified by examination of more prominent characteristics.
The typical method of verifying COfltinu operation of a flare is
- -
visual inspection . However, If a flare is operating smokelessly, it can be
difficult to determine if a flame Is present, and it may take several hours
to discover. The presence of a flame can be determined through the use of a
at sensing device, such as a thermocouple or ultra -violet (U—v) beam
sensor ona flare’s pilot flame . e ass orj nce of a flame would be
Indicated by a low temperature asurement The cost of available
thermocouple sensors ranges in price from $800 to $3,000 per pilot. (The
more expensive sensors In this price range have elabqrate automatic relight
and alarm systems.) Thermocouples used on flares may, however, burn out if
not installed properly. The cost of a U—v sensor Is approximately $2,000.
A u-v system is not as accurate as a thermocouple in indicating the presence
of a flame. The U—V beam is Influenced by ambient Infrared radiation that

could affect the. accuracy. furthermore, interference between different U-V
beams makes it difficult to monitor flares with multiple pilots. By des g ,
U—V sensors are primarily used to verify the existence of flames within
enclosed combustion devices. Therefore, based on cost and applicability,
EPA believes thermocouples provide adequate verification of flare operation.
Product Recovery Equipment
Three types of product recovery equipment which might be used in
controlling fugitive emissions vents are absorbers, condensers, and carbon
3wn operatin,q parameters are the primary_determir42.Lr2. I4 .t
recovery device operation for an absorber: the temperature and specific
he a bs orb ing q . a c i ies installed an
absorber to recover product which otherwise would be lost will generally
monitor a parameter which indicates the degree of saturation of the
absorbing liquid with respect to the product. Specific gravity is conInOfll)
used for this purpose. Devices for measuring the temperature and specific
gravity are available at reasonable cost. The estimated one—time combined
capital investment for such equipment is SBIOOG. It is considered
reasonable for an operator of a process unit to install, calibrate,
maintain, and operate according to manufacturer’s specifications the
requisite devices to monitoring continuously temperature and specific
gravity or such alternate parameters which would indicate the degree of
saturation of the absorbing liquid.
In constrast, the exit temperature of the offgas is the primary
determinant of the efficiency of a condenser. Again, suitable temperature
recorders are available at a reasonable cost. The estimated one .’time
capital investment Is $3,000. A record of the outlet temperature would
verify that the condenser Is properly operated and ma 2 tained. EPA believes
an operator can install, operate, calibrate and maintain according to the
manufacturer’s specifications a temperature recorder to verify proper
operation of a condenser.
The operation of a carbon edsorber can be monitored by the carbon bed
— — --
temperature and the amount of steam used to regenerate the bed. Steam flow
B -4

meters and temperature recorders are available at reasonable cost. The
estimated one—time capital investment for Such eguipment is S1O,000. These
parameters could be monitored to reflect whether the carbon adsorption unit
has been consistently operated and properly maintained. Therefore, EPA
believes that an operator of a carbon adsorber used as a pollution control
or product recovery device could install, calibrate, maintain, and operate
according to manufacturer’s specifications an fnte _ 9ratir g steam flow
recorder and a carbon bed temperature recorder . Some operators may in t fl
vent stream analyzers to aid in maximizing the recovery of organic cc i ii-
pounds. No widely accepted performance specifications have been developed
for such analyzers. If an analyzer is Installed without a recorder, the
-vent stream should be sampled at the end of the adsorption cycle (at least
once during every 4 hours of operation) and the concentration recorded as a
means of verifying that operational modes remain consistent with the
Conditions under which the performance test was conducted.

NSPS, NESHAP and HON Applicability

06 u995 FRI ]3:55 F X 202 564 0053
\ Iilf / WASHINGTON 1 D.C. 20460
4 L
JUN 9 1995
StJBJECT: NSPS, NESHAP and HON Applicability Determination
FROM: • _ Air Enforcement
TO: Ann Pontius, chief
Air Compliance and Permitting Section
While you contacted our office regarding a confidential
enforcement matter, I would like to respond to you in a non—
confidential manner so that this interpretation may be shared
ith as wide an audience as is appropriate.
1ou have inquired whether the Hazardous Organic NESHAP (EON)
overrides requirements affecting similar equipment under 40
C.F.R. Parts 60 and 61, the NSPS and NESHAPs standards, and if
so, when. You pointed out that the HON provision at 40 C.F.R. §
63.160(b), Si.thpart H for equipment leaks states that:
“While the provisions of this subpart are effective,
equipment to which this subpart applies that are also
subject to the provisions of:
•(1) 40 C.F;R. Part 60 of this chapter will be required
to comply only with the provisions of this subpart.
(2) 40 C.F.1 . Part 61 of this chapter will be required
to comply only with the provisions of this subpart.”
The effective date of the HON is the date of final
promulgation in the Federal Register .(April 22, 1994); the
compliance dates for the Subpart H equipment leaks previsions
range from October 1994 to October 1995, depending on the group
designation. One interpretation of the HON language quoted above
might be that the HON supersedes Parts 60 and 61 as of the
effective date. However, those same sources would not be
required to comply with the HON, under the HON compliance
schedule, for six to 18 months. In essence, under this
interpretation, there would be a period of up to a year and a
ialf when such sources would not be required to comply with
ither the HON or the NSPS/NESHA.P standards. We reject this
XY c ocyc!fld/RecycI b o

U U9 Xxii J b r.-ti 4U 5b4 UU J OECA URE D JUO3
We consulted with occ and the principal drafters of the rule
in the Office of Air Quality Planning and Standards, OAQPS. They
agree with our assessment that no such anomalous situation was
intended. It is EPA’s interpretation that Section 63.160(b) of
the HON quoted above means that when compliance with the
provisions of the HON is required, compliance with duplicative
requirements of the NSPS or NESHAP is riot required. We do not
want to allow a source to npt be subject to either standard for
any period. Penalties for Violations of the applicable standard
may be assessed.
Your second inquiry concerns the definition of closed-purge
systems. You have asked whether a sampling plan satisfies the
requirements of NSPS Subpart VV, NESHAP Subpart V and the HON if
it consists of an open valve which will be purged into a standard
two gallon open top bucket. The purged material is collected in
the open top bucket and then returned to the process. The
definition of “closed purge system” is one of the issues raised
in the legal challenge to the NON, and is one that we intend to
resolve by clarifying this definition. EPA will shortly publish
a Federal Register notice on this and other issues related to the
challenge to the HON which will codify our interpretation of the
meaning of closed purge systems, It was the intention of the
rule to ensure that the unacceptable practice of purging to the
ground or open ditch be prohibited. Where a closed-vent or
closed—loop system is impractical, we intend to approve a system
which purges into a container that is kept closed or covered when
not being fiU.ed or emptied, such as the system you have
Please feel free to contact Charles Garlow of my staff at
202—564-1088 with any further questions on these issues.
cc: Regional HON Contacts
Dr. Jan Meyer, OAQPS, OAR
Pat Embrey, OGC -
- Linda Lay, ORE-Air, OECA

Enforcement of National Emissions Standard for Vinyl
Chloride NOTE: Attachment I is confidential and is
included in Section I below

NOTE: Attachment 1 of this
document is CONFIDENTIAL
JJN 2 8 and should not be made
MEMORANDUM available to the public
SUBJECT: Enforcement of National Emissions Standard for
Vinyl Chloride ,
FROM: Michael S. A1ushinflI
Acting Associate Enforcement Counsel for Air
Edward E. Reich, Director
Stationary Source Compliance Division
TO: Regional Counsels, Regions 1-VI & IX
Directors, Air and Waste Management Divisions
Regions II-IV, VI
Directors, Air Management Divisions
Regions I, V, and IX
In order to encourage consistency in enforcing the standards
governing emissions of vinyl chloride, 40 CFR Section 61.60 et
seq., this memorandum summarizes our enforcement activity to
date and sets out some general guidelines for determining when
enforcement action may be necessary.
History of Vinyl Chloride Enforcement
So far, most of the actions initiated by EPA have been to
enforce the relief valve discharge standard, Section 61 .65(a).
Eleven cases have been referred to EPA HQ citing violations of
this standard, nine of which have been solely for relief valve
discharges. Of these, two have been filed and concluded by
consent decree, three are ongoing filed actions, five have been
referred to th Department of Justice or U.S. Attorney, and one
is under review in EPA Headquarters.
Enforcement of other portions of the vinyl chloride
regulations has been limited. Two civil actions were filed in
1979 for failure to comply with the 10 ppm exhaust gas limitation
by the end of the two-year waiver period authorized in Section
112 of the Act. These actions were concluded by consent decree.

Four other case referrals were never filed and are no longer
active. Two of these were to enforce the 10 ppm standard, and
the other two cited various parts of the regulation, including
the stripp .ng and reactor opening loss standards.
Guidelines for Vinyl Chloride Enforcement
We do not wish to establish a rigid standa;d for what degree
of violations rises to the level of an actionable claim. However,
the following factors should be considered to determine whether
action to enforce the relief valve discharge staridard is warranted:
1) The frequency and size of the discharges . We encourage
you to develop and refer enforcement actions where either or
both of these factors is significant. For example, one filed
action involved a total release of only 1,100 pounds of vinyl
chloride but a large number (21) of violations. Another case
was referred for only two discharges where one of them was for
25,000 pounds.
2) Length of time elapsed since most recent discharge . This
may be an indication of whether the source has solved the problems
which were causing the discharges. We have referred in the past,
and we will continue to refer, cases seeking penalties only for
past violations. However, you should place a higher priority on
enforcement against sources which are continuing to experience
3) Violations of the reporting requirement . Section 61 .65(a)
requires a company to report the occurrence of any relief valve
discharge within 10 days. This requirement applies even if the
company claims that the discharge was not preventable and thus
not a violation. A few of the cases have involved failures to
report, and in many instances EPA only learned of the discharges
through issuance of a Section 114 letter. We consider reporting
violations to be very serious, because our ability to enforce
the standard hinges directly on self-reporting. The existence
of reporting violations should weigh very heavily in the direction
of initiating enforcement action.
4) Need or remedial measures . Even where the frequency and
size of discharges is relatively small, enforcement action should
be carefully considered if measures can be identified which EPA
believes will prevent future discharges due to the same causes.
5) State enforcement activity . Authority to enforce the
vinyl chloride standards has been delegated to many states. This
authority is concurrent with, and does not displace, EPA enforce-
ment authority. If a plant is located in a state where the

program has been delegated, an initial contact with the state
should be helpful in determining whether EPA needs to initiate
enforcement. EPA should be prepared to take action, however, in
any situation in which the state indicates it will not enforce
or fails to do so adequately and in a timely manner.
We interpret the standard to establish a pres ption that
any relief valve discharge is a violation, with the company having
the burden to show that It was preventable. Nonetheless, to be
in a strong positior to litigate a case, the Agency should be
prepared to show that specific measures are available which
could have prevented the discharge, and that such measures were
not taken by the source.
A litigation report forwarded to Headquarters should include,
at a minim :
1) The date and size of each relief valve discharge, including
those determined to be emergencies.
2) The Region’s determination as to whether each discharge
is preventable, i.e., a violation.
3) An analysis of the cause of each discharge. Attachment 1
is an example of the technical evaluation of a company’s discharges
which was included as an exhibit to a litigation report referred
to HQ.
4) A description of remedial measures designed to prevent
the types of discharges which have occurred at the plant. As you
can see from Attachment 1, this is a logical complement to the
analysis of the cause of each discharge. -
5) A proposal for a minimt settlement penalty figure.
Attachment 2 contains the informal guideline which EPA HQ has
been using to derive a settlement penalty figure to assign to
relief valve discharges and to reporting violations. We would
appreciate your comments and suggestions, if any, of ways in
which these schemes can be improved.
Depending on the level of detail contained in the 10-day
report submitre3 by the company, the Region may have to seek more
information using a Section 114 letter to properly prepare the
litigation report. Examples of records which may be useful are
logs, written maintenance procedures, inspection manuals, incident
reports, employee records (to show possible disciplinary action
or failure to take auch action), strip charts, etc. This is
potentially potent evidence, because it may reveal answers to such
questions as:

1) Was the company following its own standard operating
2) Did the company allow a discharge to occur in order to
preserve the integrity of the product and thereby save money?
(E.g., low grade resin is less profitable than high grade resin,
and this may affect operating decisions.)
3) Did the operator fail to recognize upset conditions?
4) Did the company fail to replace defective equipment
despite a prior history of problems?
5) Did the company fail to analyze a recurring problem?
6) Did the company perform an engineering study (or retain a
consultant to do so) and fail to adhere to the study’s
Attachment 3 is a sample Section 114 letter which was used
•to develop the litigation report in one of the cases referred to
This discussion has focused so far on enforcement of the
relief valve discharge standard. We are also concerned that the
Regions be consistent in enforcing other major provisions of the
vinyl chloride standard, such as the stripping and reactor opening
loss standards. As a legal matter, a single excursion of the
stripping or reactor opening loss requirement can form the basis
of an enforcement action. Because a single plant can process
thousands of batches each year, however, it becomes a policy
determination as to whether Borne level of violation will be viewed
as not warranting enforcement action. At this point, EPA HQ is
not prepared to give guidance on the appropriate threshold for
initiation of enforcement of these portions of the standard,
primarily because we have very little information on the level
of compliance throughout the industry and no history of enforce-
ment. One general observation applicable to these standards is
that, as with the relief valve discharge standard, the Agency
should strongly consider enforcement action if specific remedial
measures can be identified which will reduce or eliminate the
noncompliance.’ Also, the threshold for initiating the enforce-
ment process, e.g., issuing a Section 114 letter, should probably
be less than for referring a civil action. -
We request your help in developing guidelines for enforcement
of portions of the vinyl chloride standard other than the relief
valve discharge standard. Specifically, we would appreciate
suggestions as to factors which should be used to determine when
enforcement action should be initiated. We request, from each
Region, a s mary for each source of the percentage and magnitude

f violations of the stripping and reactor ‘opening loss standards
J own in the two most recent semiannual reports. In addition 1
Region I has indicated a need for the information listed in
Attachment 4. We feel that such information can be valuable to
the extent that it can be gathered from existing Agency records
without conducting plant inspections or issuing Section 114
letters. This information should be submitted to Richard Biondi
of the Stationary Source Compli’ance Division byJuly 29, 1983.
If you have any questions about this memorandum, please
contact Elliott Gilberg of the Office of Enforcement Counsel (FTS
382-2864) or Mr. Biondi (FTS 382-2845).
cc v/attachments:
NESHAP Contacts, Regions 1-VI, IX

Penalty Assessed for Each Discharge
Pounds of Vinyl Chloride Released Penalty
0 - 1000 $ 1000
1 - 2000 2000
2 - 3000 3000
3 - 4000 4000
4 - 5000 5000
5 - 7500 10,000
7500 - 10,000 15,000
10 - 12,500 20,000
over 12,500 25,000
Other statutory bases for mitigation may apply —
e.g., economic impact of the penalty on the business

1) Failure to report 4ischarges of 10 pounds or less:
2) Failure to report discharges greater than 10 pounds:
$2 000/discharge
Discounts for reporting voluntarily (i.e., not in
response to 114 letter):
Within 6 months 80
6-12 months 65%
12-24 months 50%
24 months 25%
Over 24 months 0%
Other statutory bases for mitigation may apply - e.g., the
economic impact of the penalty on the business

— i
gI ‘
• REG Op fi
M Y 20 1930 NEw YORK NEW ‘YORK 10007
fr. William Wetze].
slant Manager
Hooker Chemical Cccpany
Rieo Division
P. 0. ,x 1156
.ver Road
lthgton, }ew Jersey 08016
Re: Hooker Chemical Coirp y
Ruco Division
Btzriin ton, New Jersey Plant
Dear Wetzel:
Section llli of the Clean Air Act, as amended, 142 U.S.C. §711114 (“the Act”),
authorizes the EPA Adrniri.istrator (or his duly authorized dele te) to
require the submittal of certain infor ation by emission so ces to enable
EPA to deter x e their status of co p]iance with an applicable standard
prorrn . 1 ted pursuant to Sections 111 or 112 of the Act and with any require-
rient of an irplerrentation plan pursuant to Section 110 of the Act.
Pursuant to Section 112 of the Act, regulations were prorrul ted at 4o CFR
§61.60 et . for the control of vinyl chloride emissions • These regulations,
the National Emission Standard far Vinyl Chloride, establish certain requite-
nts which apply to plants which produce polyvinyl chloride. M r’e specific—
ally, these regulations set standards for relief valve discharges (140
§61.65(a)), Tranual vent valve discharges (110 §61.6 1 4(a)(3)), rr2nual venting
of (ilO CFR §61.65(b)(5)), and equ.ipn nt openin (140 §6L65(b)(6)).
As the owner and/or operator of a polyvinyl chloride ll2nufactux’ing f ci1ity
which is subject to the regulator r requirerrents of Section 112 of the Act,
the Hooker Chemical Cczrpany, Ruco Division (“Hooker”) is hereby requited,
pursuant to the authority of Section 1114 of the Act and subject to the
sanctions set cot n Section 113 of the Act, to submit the inforsiation called
for in Attac r nt I concerning relief valve discharges, ir2nual vent valve
• discharges, and other releases of vinyl chloride at its facility at River
Road, rlthgton, New Jersey.
This is to inform y i that Hooker rr y, if it so desires, assert a business
confidentiality claim covering all or part of the infornation being xeqt sted.
The claim nay be asserted by placing on (or attaching to) the infornation,
at the time it• is. submitted to EPA, a cover sheet, atarrped or typed legend
or other suitable farm of notice enploying language such as “trade secret,”
Sfl• culthrop/tt : x119 6 : 11/30/80 -
U’ 2AB -AF 2A1R-AF 2F —CE 2D —CE 2E?ZF-DD 2E 4F

“proprietary,” or “ccrr any confidential.” Allegedly confidential portions
‘ otherwise non-confidential. docu i nts should be clearly identified by
business, and xray be submitted separately to facilitate identification
and1ing by EPA. If } oo desires conf1dent5. .l treatment or y Until a
certain date or until the occurr ce of a certain event, the notice should
so sta e. Inforuation covered by such claim will be disclosed by :E! A only
to f2 e ’extent 1 end by v ans of the procedures, set forth in Subpart B, Part 2,
O tet I of T tle 140 of the Code of Pedera). Begulations (140 CF? 2.201
If no ‘sucii claim accorrpanies the infon7atjon when it is received by EPA, it may
be made available to, the public by EPA ,wit ut further notice to you.
This infcz,i ation m. st be submitted within 20 days trun the receipt of this
letter to Kenneth E g, Chief, Air & E v .ro er ta1 Applications Section,
Pla.’riir g & Manag nt Division, at this address. In addition, any change
in the infonmtion tist be reported no later than 5 days after such change
occurs. This continuing r uir bent to provide notification of changes in
the infon ation covered by this letter will renath in effect witil expressly
ter dnated in writing by this office.
You may address any questions concerning this matter to Saniel P. Ibulthrop,
Esq., fl- forc nent Division, telephone n m ber (212) 2614-1196.
Sirz erely yours,
tuijo ?‘brales—Sanchez
forcement Division
Attac nt
cc: Bruce L. Harrison w/attathn t
Capehard & Scatchard
Edward 3. Londres w/attathnent
Assistant Director
Bureau of Air Pollution Control
New Jersey pa.r ent of flwir’orrnental
Protecti i
Mr. Raymond Abrarcwitz w/attachn nt
Director of Pegizlatory Affairs
Hooker Chemical Ccxiçany
3. ?lenczel, 2 ATh—AP
74. Kantz, 2 A -AP
K. g, 2 PM-PA

Reauest for Inforn’at ion Pursuant to Section 1111 of the Clean Air Act
1. Please list the dates of all relief valve discharges of vipyl chloride
z r r ( “VCM”) subsequent to tober 21, 1978 at the Hooker ez .cal
ICokar (“Hooker”) po1yvi y1 chloride rranufacturlng facility at ? v 1ington,
Ne Jersey (hereinafter “the plant”) caused (solely or in part) by preiratw
failure of rupture di ks, and for each such incident provide the following
a. The length of tii the rupture disk was in service prior to its
b. The nanu.facturer of the disk.
c. The type of disk (the rraterial out of which the disk was nade)
d. corrective action taken iniiediately after the discharge in order
to prevent subsequent rupture disk failures.
2. By letter of August 1979 from Bayñond Abrazrowitz of Hooker to ?4arcus
Xantz of EPA Booker reported that on the weekend of August 11 and 12, 1979
all rupture disks irade of nickel at the plant were replaced with rupture
disks ra e of nickel and teflon. Prior to August 11, 1979 how frequently
and on what basis were rupture disks replaced at the plant?
3. Subsequent to August 12, 1979 how frequently and on what basis are
(or will) ruptt ’e disks (be) replaced at the plant?
. On what date did the Hooker CherrLtcal Conpany order the teflon and nickel
ipttn’e disks which were substituted for the nickel rupture disks on the
weekend of August 11 and 12, 1979?

5. Please state the nazres and positions of:
a.. The Hooker officials or errployees who Trade the decision to replace
the rupture dis on August 11 and 12, 1979.
b. The Hooker officials or errployees se reconr ndations or opinions
were relied upon to irake the’ decision to replace the rupture disks.
6. a. Please set forth the reasons why the nickel rupttnle d.isks were
replaced by the teflon and nickel rupture disks.
b Th a what source did Hooker learn of these reasons?
c. i what date did the Hooker Chemical Coripany first learn of these
7. a. Are the teflon and nickel rupture disks now being used at the plant
, cre expensive than the nickel rupture disks previously used?
b. If so, w ich rrr re expensive are the teflon and nickel rupture
disks than the nickel rupture disks?
5. y did Hooker not install the teflon and nickel rupture disks at the
plant prior to August 11, 1979?
9. Has Hooker used teflon and nickel rupture disks at any other plant which
it o s and which is subject to the requirements of 1 0 CFR §61.60 et .?
10. If the answei’t . Question f9 is yes, please state the na , type, and
]ocation of each plant Which has used such disks and indicate the date on
which teflon and nickel rupture disks were first used at each such plant.
11. At the 3.irlington plant does Hooker use de ss1ng tec1 iques to control
pressure surges in the prepolyrrcrizers (“prepos”) and po tpolym rizerS (“popos’,
during reaction?

12. If’ the answer to Qiesti.on 11 is yes, please provide the following
irii ’ornation
a. Is the de ssirzg. a part of the xronorrer recovery process7
b. If so, describe the de ss .ng procedures and zr thodZ includirzg
the types of equirxr nt used.
c. Is pressure released to surge tar as part. of the procedure?
d. If so, what js the cap city of eachaurgetank?
e. Is dege.ssing autoiratic or
f. i which poly erizers is de .ssing used?
13. In re rd to the techniques Hooker e ploys to control or prevent rie ected
teirperature and pressure rises in the pr’epos and popos:
a. Describe the general equiir nt and procedures used, including the
norrral order of use.
b. Are chemical shortstops used?
c. If chemical shortstops are used, list them and briefly describe why
they are effective and the basis of their effectiveness.
c i. If chemical shortstopS are not used,
i. Describe the reasons, if ary, why Hooker is prevent . from doing
ii. Describe the reasons, if any, why Hooker chooses not to use
short stcçs.
1M. Please describe the steps which were taken 1ji diate y prior to the
following discharges of 17CM in an effort to prevent them:

a. The discharge fran popo 33 on February 1 i, 1979?
b. The discharge fran pcpo IiA on I arch 111, 1979?
c. The discharge fran popo 3A on Jur 211, 1979?
1. In regard to the February 111, 1979 discharge from popo 33:
a. W y did Hooker charge an excess of initiator to the popo?
b. What steps re taken to insure that the proper amount of initiator
as used?
i6. In regard to the March 111, 1979 discharge from popo 1 1A, what steps were
taken to insure that the exper sn ta1 resin batch would not in wicon-
trollable pressure rises in the popo?
17. When experimental resins are to be produced at the plant, that steps does
jooker now take to insure that the proper amount of is itiator is used?
18. By letter of February 26, 1979 fran Rayircnd Abramowitz of Hooker to
Marcus Kantz of ‘A Hooker reported that on Febi,iary 19, 1979 500 gallons of
vinyl chloride were released upai the opening of the outdoor gas - surge tank
which feeds the incinerator. In regard to this release:
a. What is the capacity of the surge tank?
b. Describe in detail the purpose and use of the tank.
c. When liquid i onral1y collects in the tank:
1. t is its approximate conpositi ?
i L Is it normally r noved fran the tank?
iii. If so, d y is it r oved from the tank?
iv. How is it normally re ved? Is it removed to cqulpment,
process, etc., or is it normally released to the ground?

d. Prior to the tii r of the , had Hooker issued any written, or
verbal nstructioris to appropriate personnel corx erning these pro—
e. If so, ilease des:ribe the instructions arx provide c ies of any
written Instructions.
j• Had the personnel who released the V received the instructions
described above?
g.. If so, please state when ar in what form (written or verbal).
h. Please state the naiie ar position of the personnel who released
the VCM.
1. Did these persons follow their instructions In opening the tank?
j. If they did not follow instructions, why did they not do so?
k. Why did they open the tank, releasing the V ’l?
1. at steps has Hooker taken to Insure that such discharges do not
occur In the future?
in. Please state the nan s ard positions of:
i. The Hooker e ployees who opened the outdoor ges surge tank.
ii. The Hooker elTployees who supervised those doing 50.
19. By letter of February 26, 1979 Hooker also reported that on February 21,
1979 100 gellons of viny], chloride werereleased from two caustic scrubbers.
In re rd to these releases:
a. The February 26, 1979 states that the scrubbers were vented to
allow then to be used to receIve VCM flushes fran the day tank.
I. Was this done to clear the blockage in the feed lines fran
the norx r recovery system aM the day tank?

11. Bow TnaI y flUSheS were required to clear the blockage?
ill. supply ascherratic die azshowir g the fic’w hues,
valves, arx directicris of flow involved in this flushing
process and in normal use of the equip ent (1 cl ing the
- day tank, the scrubbers, the rn orrer recover r syste , etc.)
and explain the procetliue.
b. ‘va-at were the contents of the scrubbers at the tii of the release?
c. ‘What steps, if arty, were taken to reduce the quantity of ‘ 7CM in
the scrubbers before they were opened?
d. at steps has Hooker taken to prevent recurrence of a siji ilar
e. Please state the names and positions of:
1. The Hooker ei ployees who vented the two scrubber’s.
ii. The Hooker enployees who supervised those doing so.
20. By letter of May 7, 1979 fran Harold ubec of Hooker to Marcus Kantz
of A Hooker reported that on May 1, 1979 500 pour is of V were released
iranuahly fr r a vent valve on popo 1C. In regard to this release:
a. Had the vent filter been cleaned on that day? If not, why not?
b. Had the degassing filter which precedes the vent filter been cleaned
and 1nspe ted after the previous batch? If not, why not?
c. If anything unusual resulted fran the inspections •and cleanings
described in a or b, above, please describe what occurred or what
was observed.
d. )hat steps had Hooker taken prior to this release in order to
prevent plugging of the vent filter?

e. at steps has Hooker taken subsequent to this release to prevent
future releases due to plugging of the vent filters at the plant?
f. Please state the iiames and positions of
i. The Hooker personnel who manually vented the 11CM.
ii. The Hooker persorr el who Ei.pervised those doing so.
21. In the Na i 7, 1979 letter referred to in Question 20, Hooker stated
that written instructions had been given to all production supe ivision at
the plant that “manual vent valves are only to be used in condi.t Ions of
emergency then rupture disk operation has failed to control reaction
a. Please provide a copy of these written instructions.
b. Do the instructions mean that marrual vent valves aie to be used
only after the n ture disk set pressure has been surpassed ar
the disk has ruptured or failed to rupture? Please explain.
22. •By letter of August iZI, 1979 fran Raymor Ahramowitz of Hooker to
? arcus Kantz of EPA Booker reported that it had taken certain steps to
prevent relief valve diseha es. In paragraph #2 on page 2 of the
August 111, 1979 letter (Attathnent 1(A)) Hooker asserted that it had
increased Its efforts “In the areas of inspection and maintenance.” Please
describe in detail those measures to which this paragraph refers.
23. By letter of January 30, 1980 fran Harold D.ibec, Jr. of Booker to
Marcus Karjtz of EPA Hooker reported that on January 27, 1980 3)0 pourxis
of ‘1CM had been released j nua11y fran a vent valve on popo IID. In
regard to this release:

a. Did the supervisory arx operating persoi el follow the procedures
irz 1uded in their instructions cited in Hooker’s ? ‘ 7, 1979 letter
to PA described in Question #21?
b. Subsequent to the discharge what steps has Booker taken to prevent
subsequent simi].az’ disciErges?
21 1. By letter of February 7, 1980 from Harold Dubec, Jr. of Booker to
Marcus 1 aritz of A Hooker reported that on February 1, 1980 119 0 poui s
of V werexeleased frvin the north rupt’..u”e disks on popo 1A. In e r
to this discharge:
a. at steps did Hooker take to insure that the proper ant .c t of
initiator was used in the affected batch prior to char .ng the
b. at steps has Hooker taken to prevent clog g of the press e
• transmission lines at the plant?
c. Please state the nazi s az positions of Hooker persml who were
operating popo 1A at the tine of the discharge.
25. Bow frequently does Hooker plan to clean all pressure transmission
lines at the plant?
26. By letter of March 5, 1980 from Harold Dubec, Jr. of Hooker to
Marcus Kantz of ‘A,Booker reported t at on January 21, 1980 3000 pour s of
V 1 were irsnua].ly released from popo 1D. In re .rd to this release:
a. Din the Hooker enployees who were present when the popo was charged
follow prescribed procedures for charging the popo?

b. If the Hooker eriployees did not follow prescribed procedures, which
procedures re not followed ar which person(s) failed to follow
the procedures? Please state each person’s naive an positicz .
c. If the Booker ployees did follow prescribed procedures, have the
procedures been changed to prevent a future discharge for the
sane or similar reasons?
d. If such procedures have been changed, describe how they have been
27. In regard to the Jariiary 21, 1980 discharge from popo ID:
a. Please state the riaire of the foren n who instructed the control
room operator to open the nanual vent valves.
b. Please state the nane of the control room operator opened the
rr2rllal vent valves. -
c. Why was this discharge not recorded in the log book kept in the
Control Room of the resin facility at the plant?
d. 1’ en did the control roc n operator first infonz his supervisors,
other than the fdre n, of the discharge?
. Please state the narie(s) and position(s) of the supervisor(s)
other than the for n who the control room operator first
ii fo d.
f. en dLd the foreman first infoi n his supervisors of the
g. Please state the nane(s) and position(s) of the supervisor(s) who
the foreman first infurnel.

h. Wjen did the January 21, 1980 discharge first caie to the attenti i
of Harold P. Dubec, nager — Pnvirorlrer3tal Conp1iar e Hooker
!t1Ca1 Ccrpany? a
1. ‘ Thy did the control room operator ar foren n delay in reporting
the discharge to their supervisors?
3. Prior to the January 21, 1980 discharge had Hooker instructed all
foren n ar operators to report discharges inTrediate2 ’?
that date Cs) were these I structions given?
k. at steps has Hooker taken to insure that all future discharges are
pn pt].y reported?

Survey of Relief Valve and Manaul Vent Valve Discharges
from PVC Plants
For each plant :
A. Equipment information
1. Number and size of reactors used (for each type
of resin, if known)
2. Number of batches per year (for each type of resin,
if known)
3. Age of plant
B. Discharge information
1. Number of discharges by year (1981 - 1983)
2. Size of each discharge
3. Frequency of three most common causes of discharges
for each plant (for each type of resin, if known) -
e.g., operator error, maintenance error, batch
thickening, overcharging the reactor, water or
VCM meter failure, power failure, premature rupture
disc failure



201. 2002
-4’. 7 _&as.L _LT -
‘V ? 7’,,.
A Mission Statement
Potential Health Problems
From Asbestos
Exposure to released asbestos fibers, wherever they are
found, can cause serious health problems. If inhaled,
asbestos can cause diseases such as asbestosis, lung cancer,
and mesothehoma which disrupt the normal functioning of
the lungs, although such diseases may take 20 years or
more to develop. While exposure to asbestos may result in
serious health effects, its risk to human health depends on
the degree of exposure, hence EPA’s continuing effort to
limit that exposure.
It is estimated that there are friable asbestos-containing
materials (ACM) in one-fifth of our nation’s 733,000 public and
commercial buildings - offices and apartments, museums,
s, hospitals, stores, industrial facilities, and others.
r, nonfnable ACM is likely to be in an even much
ercentage of all buildings. This represents a
potential source of health problems far larger than the
35,000 primary and secondary schools which have been the
principal focus of EPA’s asbestos activities to date.
EPA Develops
Exposure-Reducing Regulations
Over the last two decades, EPA has striven to protect
public health by reducing exposure to asbestos from a
variety of sources. The Agency has developed regulations
under the Clean Air Act: National Emission Standards for
Hazardous Air Pollutants (NESHAP, 40 CFR Part 61
Subpart M) and the Toxic Substances Control Act (Tittle II,
Asbestos Hazardous Emergency Response Act (AHERA);
Asbestos Containing Matenals in Schools, 40 CFR Part 763,
Subpart E; Asbestos Abatement, Worker Protection; Final
Rule 40 CFR Part 763, Subpart C, and, Asbestos:
Manufacture, Importation, Processing, and Distribution in
Commerce Prohibitions; Final Rule, 40 CFR Part 763,
Subpart I.
Broadening EPA’s Approach
Until now, the emphasis of the EPA asbestos program has
n schools and demolitionlrenovation activities. In the
vill be broader and more comprehensive, addressing
y a much wider spectrum of buildings but also the
f u vvLng areas:
• Eliminating unreasonable risk (i.e., by providing worker
training and accreditation, by conducting an aggressive
enforcement effort, and by furthering the science to
support a more risk-based regulatory approach)
• Reducing unnecessary exposure (e g., through
disciplined implementation of the asbestos-in-schools
program, strong compliance enforcement and public
education, and effective hazard abatement/management)
• Enhancing productivity (e.g., by promoting increase
private-sector initiatives, more extensive state programs,
and greater coordination/integration with other regulatory
and management programs).
Balancing Programs
And Resources
The focus of EPA’s efforts will be on balancing these
programs and resources at the federal, state, and local level
to assure public health and safety.
As the public becomes more aware of the presence of
asbestos in its living environments, caution must be
exercised, however, to prevent unnecessary asbestos
removal actions, and to assure that a universe of trained,
accredited asbestos inspectors, abatement professionals,
and governmental enforcement personnel are available to
handle asbestos safely when it must be removed
Asbestos removal, while necessary to protect public
health during renovation or demolition, is not otherwise
required by EPA and is often not the building owner’s best
abatement choice Rather, the Agency recommends a
proactive, in-place management program whenever there is
asbestos present in a building until circumstances require
its removal for renovation or demolition
Banning and Managing—
Both Are Needed
The prohibition on manufacture, processing and
importation of most asbestos products is part of EPA’s
overall strategy to prevent environmental pollution and will
reduce long-term asbestos contamination by phasing out
those products which account for major releases of asbestos
into surrounding air spaces. At the same time, increased
concern about the potential hazards of improper
management of existing asbestos and/or removal practices
Environmental Protection
Integrating EPA’s Asbestos
Prog rams

blic and commercial buildings does require proactive
iing to prepare for new asbestos responsibilities It will
re a comprehensive and community wide approach to
the problem and broader responsibility and the full
enlistment of affected groups, particularly states, to
adequately address all levels of the environmental and
health risks
Leadership And Guidance—
The EPA Role
EPA’s asbestos program role in the coming decade will
continue to be one of leadership and guidance, with a
primary objective of enabling states to manage and enforce
their own asbestos programs. At the federal level, EPA will
continue to integrate Agency asbestos programs, coordinate
with other federal agencies, assess the underlying scientific
values and data on which asbestos regulations are based,
and listen to and learn from the expenences in the field so
that national strategies and guidance can be updated
In addition, EPA will provide outreach, training and
cooperative agreement funds to states to assist them in
developing and enforcing strong state programs; will
continue to provide outreach and technical assistance to the
regulated community, and will maintain its effort to ensure
compliance with Agency asbestos regulations through
innovative, targeted, enforcement efforts.

40 CFR 61
4OCFR 763

[ L1P t
U i


2 c m r
Guidance for Section 114(d) of the Clean
Air Act

crc 2 77
SUBJECT: Guidance for Section 114(d) of the CAA
FROM: Director, Division of Stationary Source Enforcement
TO: Enforcement Division Directors, Regions I—X
Surveillance and Analysis Division Directors,
Regions I—X
Air and Hazardous Materials Division Directors,
Regions I, III—X
Facilities Technology Division Director, Region II
Attached is the final guidance package on Section 114(d)
of the CAA. This guidance incorporates comments solicited.
by DSSE in my September 9 memorandum. it should be remembered
that this guideline only covers the provision for nbtifying
the States pursuant to the requirement. Even though most
regions are currently practicing some form of this guideline,
it should be implemented immediately.
Guidance Ofl Suspension of such notification should EPA
believe that the State agency is informing the sub]ect
facilities is forthcoming. Any occurrences of this nature
should be brought to the attention of the DSSE technical
advisor for your region.
Attached under separate cover are the regional comments
on the interim guidance and DSSESS response. I would like
to thank all those participating for their comments.
Edward E. Reich
cc: Richard Wilson
Walt Barber
Richard Rhoads
Donald Goodwin

Guidance on the Use of Section 114(d):
Notice to the State in Case of Certain Inspections.
The purpose of this guideline is to provide general
policy on implementing the requirements of Sec. 114(d) for-
enforcement purposes. This guideline only covers the pro-
visions of notification to the State agency of an EPA entry,
inspection or monitoring. Future guidance will be provided
for suspension of this notice should EPA believe that the
State agency is informing subject facilities.
This guideline should be used in conjunction with S.12
‘General Policy on the Use of Section 114 Authority for
Enforcement Purposes’.
Requirements of Sl14(d )
New subsection 114(d) adds an additional requirement to
the process of carrying out Section 114(a)(2) of the CAA.
Section 114(a)(2) establishes right of entry for certain
purposes and the right of the Administrator to sample emissions. -
Section 114(d) provides that the Administrator (or his
representatives*) shall provide the State air pollution
control agency with ‘reasonable prior notice’ before carrying
out Section 114(a)(2). It also requires EPA to indicate
the purpose of the activity.
The Regional office should first establish contact with
the directors of State agencies to formulate a mutually
agreed upon procedure for implementation of this new
requirement. This procedure should include:
Name of person(s) to be notified
Means of notification (telephone or written)
Lead time prior to any EPA field investigation
(reasonable prior notice)
Policy of notifying the state of unscheduled inspections
Extent of the stated purpose of the visit
*The term ‘representatives’ includes specific regional office
and headquarters personnel and contractors with credentials
under EPA contract.

In establishing these procedures with the State agencies
it is suggested that the following guidance be implemented.
Reasonable prior notice is interpreted as an official
notification to the State agency that EPA is planning to
conduct a surveillance action at a source and the purpose of
that activity. it is recommended that all notifications be
made within the 30 day period prior to the field activity(
with 48 hours being the minimum notification period under
normal circumstances. This is to provide sufficient travel
time for EPA personnel and State personnel should the state
choose to attend. An exception to the 48 hour notice would
be a Section 303 situation where an emergency requires
immediate attention. In such cases, the State agency should
immediately be informed by phone that an action is needed.
In cases where the region practices the policy of notifying
states of inspections 2—3 months in advance with a request that
they be contacted if state personnel wish to accompany them, a
confirmation of only those state accompanied inspections should
be made. A phone call a few days before the inspection is
sufficient. An effort should also be made to minimize
changes in this advanced notification schedule.
The means of notifying the States can be in the form of
written or oral communication. A record of all written or
oral notifications should be kept. This should include.a
record of unscheduled inspections and Section 303 actions.
The record of the written or oral notification should consist
(1) name and location of subject facility
(2) date and approximate time of the activity
(3) Regional office contact (phone number, etc.)
(4) reason for the visit
(5) name of State person contacted
(6) date and time of notification
Each office should have a central file containing records
of all notifications should a request for a list of all
notifications be made, It is not necessary for the State
to approve the inspection before EPA proceeds.
As stated in the amendments, all sources covered by an
approved SIP or those under a State 113(d) order are subject
to these requirements. Surveillance of those sources that
are subject to EPA promulgated regulations do not require
advance notice by EPA. In reality, few sources will fall
into this latter category. If the region adheres to EPA
policy, all emission points at a source should be inspected.
In doing so it is likely that certain points will be subject
to SIP regulations; therefore, subject to the notification
requirements. it is recommended that States be notified of
all EPA field actions, including those concerning non—state

regulations unless good cause exists not to do so. Written
inquiries to sources under Section 114(a)(1) do not require
advance notice to the State.- -
Enforcement Procedures
It is the intent of this additional section to increase
State/EPA cooperation and, as such, it must be fully Complied
with. However, as stated in Sec. 114(d) (2), failure by EPA
to notify the State of any entry, inspection or monitoring
will not prejudice any case involving information obtained
during such an activity and will not constitute grounds for
objection by the Source.

Regional Office Criteria for Neutral Inspections
of Stationary Sources

_____ WAS INGT0N D C 2O4&
MAY 13198j
orrlcr or e rop: ,-
SUBJECT: Regional Office Criteria for Neutral Inspectjor s of
Stationary Guidance
FROM: Director
Divisjo of Stationary Source Enforcement
TO: Enforcement Division Directors
Regions I—X
Surveillance & Analysis Division Directors
Regions z—x
Air & Hazardous Materials Division Director
Region II
We have reviewed the neutral inspection schemes voluntarily
submitted to us by several Regional Offices in response to the
general guidance we issued on October 29, 1980. While the Regional
criteria we have examined so far seem to track that general
guidance, there are some problems remaining in these Regional
schemes. This memorand is intended to isolate and clarify these
problems, as veil as to make some amendments to the general
guidance as suggested by some of the Regional drafts.
The purpose of having a neutral inspection scheme on file in
each Regional Office is to enable the Agency to justify to a court.
a request for a warrant to conduct a compliance inspection in the
absence of evidence that a particular source is violating the Clean
Air Act. This type of inspection is usually conducted as part of
each Region’s annual Overview Inspection Program, but might also be
applicable to routine inspections of NESHAPS sources, NSPS sources,
and any other sources for which the Agency has primary enforcen’ent
responsibility (e.g., PSD sources or sources subject to New Source
Review, where such programs have not been delegated to the States)
and which must be inspected annually.
One of the questions raised by our general guidance was the
characterization of the criteria for selection of sources to be
inspected. Several factors were listed as Optional criteria. By
this description, we did not mean to infer that these factors could
be ignored in the selection process. Rather, we intended that a
source to be inspected must feet not only the criteria labeled
Mandatory, but also at least one of those termed Optional. To take
the selection process through only the Mandatory Criteria would
leave too much latitude in source selection in violation of
principles enunciated by the Suprer c Court In the 1q78 Parlo” !
Decision . We are therefore amending the general quidance to

relabel the selection criteria as Primary and Secondary, with both
sets of criteria to be applied to each source chosen for
inspection. Every source inspected must meet the Primary Cfiterja
and at least one of the Secondary Criteria. Authorization for
inspection of NESHAPS sources, which had been set forth separately,
is now subs ed in this characterization. At the suggestion of
Regional staff, we have also expanded the list of Secondary
Criteria. Additionally, in order to account for the presence of
fugitive emissions, we have amended Secondary Criteria *7 to
include sources with process ec!uipment reoulrinq particularly good
operation and maintenance procedures in order to maintain
It should be remembered that the purpose of a written neutral
inspection scheme is to provide authorization for routine
compliance inspections. Any source not covered in the schere
cannot be inspected, absent suspicion of a violation of the Clean
Air Act. Therefore, an additional problem in some of the Regional
drafts is the utilization of source categories to select sources
for inspection. The drawback in this syster is that a Region might
wish to inspect a source long overdue for a routine inspection but
be unable to do so because the source is in a cateqory not covered
by the neutral inspection scheme. There is also the possibility
that categorization will exclude various significant lead, NSPS, 0.
NESHAPS sources.
Please review your neutral inspection sche es once again to
see if they fit within the attached amended general guidance. Feel
free to call Mark Silvermintz of my staff at FTS 755—2570 if you
have any questions.
c7J rA ’
Eiward E. Reich
cc: Richard 0. Wilson
Acting Assistant Administrator
for Enforcement
David E. Pienotti
Associate General Counsel
for Air, Noise, and Radiation

I. Sources subject to State Implementation Plans (including
provisions approved or promulgated under 40 CFR §51.18 and
Parts C and D of Title I of the Clean Air Act), or Sill of
•the Act (NSPS) or §112 of the Act (NESHAPS).
A. Primacy Criteria
1. In selecting a stationary source for a compliance
inspection, the source should be one which:
a. Emits an air pollutant subject to the Clean Air Act
and the regulations promulgated thereunder, and
for which:
1. The actual emissions or potential emissions
while operating at design capacity with
pollution controls are equal to or exceed
100 tons per year of the regulated air
pollutant (Class Al. sources), or
2. The uncontrolled emissions while operating
at design capacity ace equal to or exceed
lOfl tons per year of the regulated air
pollutant (Class A2 sources); or
b. Emits less than 100 tons per year of a
regulated air pollutant In the absence
of pollution controls (Class B sources)
and whic! may contribute to nonattainment
of an ambient air quality standard for that
pollutant; or
c. Emits lead; or
d. Is subject to a NSPS or NESHAPS.
2. The source should also be one which:
a. Was reported within the preceding
year by a State or local agency
as being in compliance with
applicable emission limits; or
b. Was either not inspected by a State
or local agency or by EPA during the
preceding year, or was subject to an
inconclusive inspection during the
preceding year.

B. Secondary Criteria
The following criteria (at least one)
should be used in selecting facilities
for inspection from among those which meet
the Primary Criteria (and may be used by
each Regional Office in any order it chooses
and in a manner best suited to its resources,
workload, manpower, and area of geographic
1. So r emits a criteria pollutant and is located in
a nonattajnment area for that pollutant, or in an
area unclassified for such pollutant;
2. Source has a significa impact upon local ambient
air quality or emits a hazardous air pollutant;
3. Source is located in an urban area where there is
greatest exposure of Population;
4. Source has a history of violations and now is
reported as in compliance;
5. Source has had frequent changes in
compliance status;
6. Source has undergone process changes subsequent to
its most recent inspection or has commenced
initial operation;
7. Source requires Particularly good operation and
maintenance of pollution control or process
equipment in order to maintain compliance;
8. Source is located near other Sources which have
been scheduled for inspection at approximately
the same time in accordance with this Criteria
for Selection of Stationary Sources for Routine
Compliance Inspections or under probable cause
to believe the source is in violation of the
Clean Air Act;
9. Source was subject to a prior compliance test,
inspection or information request which produced
inconclusive data concerning its compliance

G imJina
Liability Agreement Between EPA Contractors
and Stationary Air Pollution Sources

f iQ
tur4, I
iifl. t i
SUBJECT: Liability Agreements Between EPA Contractors
and Stationary Air Pollution Sources
FROM: Ger ldj J j 1 ing Associate General Counsel
Gra/ Co ra s and General Administration Division
(A 34)
TO Ed’ward Reich, irector
Division of Stationary Source Enforcement (EN—341)
Your memorandum of September 23, 1980, raises several, issues
for our consideration concerning liability agreements between EPA
contractors and stationary air pollution sources (hereinafter
sources). You ask what the legal and practical effects are on
EPA of a ‘hold harmless’ agreement between a contractor engaged
in compliance inspections as art EPA representative under section
114 of the Clean Air Act and a source. Such an agreement would
indemnify the source for payments it makes for injuries to employ-
ees of the contractor. Additionally, you inquire whether amounts
paid under such agreements could exhaust contract funds allocated
to the inspection task itself. EPA has determined previously
that EPA officers and employees conducting inspections may not
enter into such agreements since they are not equivalent to
private visitors. (See the November 8, 1972 memorandum captioned
‘Visitors’ Releases and Hold Harmless Agreements as a Condition
to Entry of EPA Employees on Industrial Facilities.’)
Di scussio’t
A ‘hold harmless’ agreement is a contract of indemnification.
As used in the context you describe, it obligates a contractor to
reimburse a source for the source’s payments of contractor employee
injury claims where the employee’s injury is caused by the negli-
gence or breach of a duty of care by the source • The practical
effect of such an agreement is to shift financial liability to
the contractor for a source’s negligence or breach of duty. The
costs associated with such an assumption of liability, if allowed
as costs under the contract, raise both legal and policy concerns.

A. Costs Generated From ‘Hold Harmless’ Agreements Could Expand
Governmental Financial Liability
Costs that are or may be incurred by a contractor when it
ent ?s into a ‘hold harmless agreement can take the form of
either increased contractor insurance costs, or the additional
costs of the contractor’s indemnification of the source’s expendi-
tures where there is an absence of insurance coverage. If a
contractor entering into such agreements does so with EPA approval
(by determining these costs to be allowable under the contract),
EPA will ultimately bear the financial burder of the shift of
liability since EPA will pay the costs of the increased premium
or will reimburse the contractor under the contract for its
indemnification payment. EPA will also have to bear legal costs
associated with any litigation. In this context there is no
reason for EPA to treat its contractor representatives any differ-
ently than EPA officers and employees regarding their entering
into ‘hold harmless’ agreements. (See November 8, 1972, memorandum
referenced above.)
1. ‘ Hold Harmless’ Agreements Could Increase Contractor Opera-
tional Costs
The assumption by a contractor of financial liability under
a ‘hold harmless’ agreement is contrary to EPA’s interest in
minimizing operational costs. The typical government contract
requires the contractor to secure workmen’s compensation and
occupational disease insurance for the protection of its employees
from job related injuries. This insurance requirment effectively
limits the amount of the Government’s contractual liability for
such injuries. Where the contractor is enrolled in a workmen’s
compensation plan the employee is generally precluded from seeking
recovery from the contractor outside the workmen’s compensation
plan. The amounts received by the injured employee from the
contractor is limited to rates of .awards established by the
workmen’s compensation plan. The amount of the workmen’s compen-
sation award is not recoverable under the contract. The EPA is
obligated by its contract only to pay for the contractor’s costs
in maintaining the workmen’s compensation plan. Thus, by requiring
a contractor to maintain a workmen’s compensation plan the Govern-
ment has accomplished two things. First, it has ensured that
adequate financial protection is provided to cover injuries to
contractor employees. Second, it has limited contractor opera-
tional costs, as regards payments for injuries to its employees,
to levels either conforming to maximum workmen’s compensation
payments or applicable insurance or enrollment costs for the
workmen’s compensation plan. This second factor is of significance
to EPA contract consideratins. ‘lb the extent that a contractors’
operational costs are kept to a minimum, government costs are
also reduced. A ‘hold harmless’ agreement has the dual effect
of expanding the potential operational costs of the contractor
to include these additional costs and increasing the total costs
chargeable under the contract.

2. Indemnification Payments Under a ‘Hold Harmless’ Agreement
Would Subject EPA to Reimbursements In Excess of the Amounts
of Its Normal Liabilities
An injured employee may elect to proceed directly against a
nonemployer for damages under various state law theories of negli-
gence or breach of duty. Such actions are not resricted by work-
men’s compensation’s monetary limits on the amounts of possible
awards. In fact, such awards are usually substantially higher
because of the escalation in awards caused when such factors as
pain and suffering, emotional distress, loss pf consortium, etc.
are considered. Since a source is liable and will make payment
for injuries to a contractor’s employee only where the employee
can show negligence or wrongful breach of duty by the source, a
contractor’s reimbursement of a source under the ‘hold harmless’
ageement would, in most instances, be for sums well in excess of
workmen’s compensation limits. To the extent these contractor
costs are determined to be allowable costs under the contract,
EPA’S contract costs could substantially exceed cost projectioüs
based only on the contractor’s potential liability under its
workmen’s compensation plan. (Note also that, to the extent the
contractor is found to be an agent or employee of the EPA in
carrying out the inspection function, EPA’S reimbursement of a
contractor’s indemnification for employee personal injuries could
be argued to be an improper attempt to circumvent the Federal
Tort Claims Act’s limitation on tort suits against the United
3. ‘ Hold Harmless’ Agreements Adversely Affect Subrogation
Act ions
A contractor employee injured because of the negligence of a
source could elect to receive compensation for his injuries under
the employee’s workmen’s compensation plan. Payment by the plan
would create a right of subrogation in the psyor. Thus, to the
extent the contractor or the insurer makes payments to the employee
it can proceed against a negligent third—party for recovery of
the amounts of is payments. However, an indemnification agreement
would severly hamper, if not preclude, recovery of the contractor’s
or the insurer’s costs through a subrogation action. A contractor
seeking to recover, from a negligent source, its expenditures for
an employee’s injuries ii likely to find that the ‘hold harmless’
agreement effecively bare such recovery. This result is possible
since recovery by the contractor from the source leads to recovery
by the source from the contractor (using the ‘hold harmless’ agree-
ment), thereby nullifying the subrogation action. Additionally,
even where payment is made by the contractor’s workmen’s compensa-
tion insurance carrier, the exercise by the insurer of it. subroga-
tion right also leads to the contractor liability under the ‘hold
harmless’ agreement. Thus the net effect of a ‘hold harmless’
agreement is to create higher contractor and higher EPA contract
coats by hampering recovery action against potentially liable

B. Public Policy Does Not Appear to Favor These Types of flold
Harmless u Agreements
Two principles allow an injured party to recover damages from
one whose actions caused the injury. First, it is in the public
interest that a party is held responsible for the consequences of
its ctions. Second, in the allocation of risks between partIes
the’individual whose negligence causes an injury is in a better
pos tionto be aware of the potential for harm and is better able
to protect a third party from the risk of the harm. The ‘hold
harmless’ agreement tends to reduce the duty of care usually
associated with a source as an ongoing business concern. The
agreement protects the source from the financial consequences of
its negligence which causes injury to contractor employees.
However, the source clearly possesses the best knowledge o
the potential hazards of its operations. Additionally, it is in
the best position to mitigate, to the extent possible, the risks
of harm to individuals -such as contractor employees. Yet, since
the agreement holds the source harmless, the incentives (i.e.,
potential financial liability) for its active participation in an
effort to protect these types of individuals is substantially
reduced. To the extent EPA concurs in its contractor’s execution
of ‘hold harmless’ agreements, it appears to sanction the implemen-
tation of a standard of care for a source which is less stringent
for contractor employees than that imposed for EPA officers or
employees. Since the contractor is acting as a representative or
agent of the EPA, such a distinction appears to be unwarranted.
C. Hold Harmless’ Agreements Could Exhaust Contract Funds
Allocated To The Inspection Task
If costs created by the ‘hold harmless’ agreement are allow-
able costs under the contract, they can be satisfied from all
available contract funds. The ‘Limitation of Costa’ clause
genearily inserted into these types of EPA contracts would most
likely limit EPA’S liability for such costs to sums specifically
set out itt the contracts schedule. The scheduled amount would
establish a dollar ceiling for costs claimed under a particular
contract. Thus, the point in time at which the contractor incurs
the particular coat (early in the contract period or late in the
period) viii be determinative of whether contract monies will be
exhausted in order to satisfy these coats.
A contractor’s execution of a ‘hold harmless’ agreement
could have a direct effect on EPA operations and could create an
unwarranted distinction between EPA employees and contractor
employees acting as EPA representatives in inspections under
section 114 of the Clean Air Act. However, execution of a ‘bold
armlesa ’ agreement by an EPA contractor would not, in our opinion.
be a violation of any law r regulation.

dh ll®
Execution of Confidentiality Agreements
Under Section 114 of the Clean Air Act 4

DEC15 1983
SUBJECT: Execution of Confidentiality Agreements under
Section 114 of th Clean Air Act
F Rc ’i: s trator
for Air and Radiation (ANR—443)
TO: Office Directors
Regional Administrators
The purpose of this memorandum is to review aspects of existing
regulations and procedures with respect to agreements relating to confidential
trea nent of information claimed to be trade secret.
Obtaining the information needed for rulemaking and other activities
of this office is essential to carrying out the responsibilities which
have been assigned to it. Section 114 provides EPA with authority to
obtain the needed information. In the past, we have generally sought to
obtain the necessary information by requesting it in a Section 114
letter or by entering appropriate facilities. We have sought, wherever
possible, to obtain responses to such letters and to arrange such entry on
a consensual basis, i.e., to avoid the necessity to use the enforcement
mechanisms provided by Congress.
For that reason we have generally sought, and will continue to try,
to respond favorably to reasonable company requests for clarification or
explanation of information requests, for additional time, or for use of
some more convenient and equally useful form or manner of response. We
have also established, by regulation and by contract provision, reason-
able safeguards, deterrents and sanctions against the improper disclosure
of information claimed to be trade secret, including the debarment of
contractors (whether or not such contractors have been designated EPA
representatives) and the constituting of sources as third party beneficiaries
of the terms of EPA contract provisions relating to handling of such
information, 40 CFR Part 2, 41 CFR 15-1.3504, 15-1.350—2. These protections
and remedies are additional to the protections and remedies afforded by
other provisions of law, e.g., common law and State criminal law.

Use of Contractors to Conduct Clean Air Act Inspections
After the Supreme Court’s Decision in United States v.
Stauffer Chemical Co., 464 U.S. 165 (1984)

X\I . .
4 O’’
FEB 22 i
SUBJECT: Use of Contractors to Conduct Clean Air Act
Inspections after the Supreme Court’s Decision
in United States v. Stauffer Chemical Co. , No.
82-1448 (decided January 10, 98 )
FROM: Michael S. Alushin
Associate Enforcement Counsel for Air
Edward E. Reich, Director
Stationary Source Compliance Division
TO: Regional Counsels
Regions I-X
Directors, Air and Hazardous Management Divisions
Regions It, IV, Vl-VIII, and X
Directors, Air Management Divisions
Regions I., III, V 1 and IX
Many of you are aware that EPA’s authority to designate
contractors as “authorized representatives” of the Administrator
to conduct inspections under §114 of the Clean Air Act was
one of the issues presented to the Supreme Court in United
States v. Stauffer Chemical Co. , No. 82-1448. The case was
heard by the Court on November 2, 1983, and decided on January 10,
1984. The purpose of this memoranduni is to inform you of
the decision’s effect on EPA’s authority to use contractors,
and to advise you of EPA’s present policy regarding the use
of contractors to conduct inspections. A copy of the Supreme
Court’s decision is attached.
Supreme Court’s Decision
This case came before the Court on a petition for
certioriari from the United States Court of Appeals for the
Sixth Circuit. Two questions were presented to the Supreme
Court: (1) Whether EPA may designate a private contractor to
conduct inspections as its “authorized representative” under
§114 of the Clean Air Act, and (2) whether the government
should be collaterally estopped from relitigating against
Stauffer Chemical Company the question of whether private
contractors can be “authorized representatives” because it
had already litigated that question in a proceeding involving
a different plant against Stauffer in the Tenth Circuit and

The Supreme Court unanimously held that “the doctrine of
mutual defensive collateral estoppel is applicable against
the government to preclude relitigation of the same issue
already litigated against the same party in another case
involving virtually identical facts.” (Slip opinion at 4.)
Therefore, the government was collaterally estopped from
relitigacing the statutory question against Stauffer, at
least in those circuits in which the issue was one of first
impression. The Court did not address the quest-ion of EPA’s
authority to use contractoriTor inspections under the Clean
Air Act.
This case arose out of Stauffer Chemical Company’s
refusal to allow private contractor employees, who had been
designated by EPA as “authorized representatives” under
§114(a)(2), to enter one of Stauffer’s plants in Tennessee.
When Stauffer refused to allow the contractor’s employees to
enter its plant, EPA obtained a warrant authorizing the
contractor’s employees to enter the plant for the purpose of
conducting an inspection. Stauffer refused to honor the
warrant. Wher EPA brought a civil contempt action in District
Court, Stauffer moved to quash the warrant. The District
Court denied Stauffer’s motion, accepting EPA’s argument that
the inspection authority conferred upon “authorized represen-
tatives” by §114(a)(2) extends to private contractors retained
by EPA. United States v. Stauffer Chemical Co. , 511 F.
Supp. 744 (M.D. Term. 1981). Scauffer appealed this decision
to the Sixth Circuit.
In the Sixth Circuit Stauffer argued that (1) private
contractors are not -“authorized representatives” as that term
is used in §114(a)(2) of the Clean Air Act, and (2) that the
government should be collaterally estopped from relitigating
the statutory question against Stauffer because it had already
litigated that question against Stauffer and lost in the
Tenth Circuit, in Stauffer Chemical Co. v. EPA , 647 F.2d 1075
(1981) (hereinafter Stauffer 1) . The Sixth Circuit’s decision,
United States v. Stauffer Chemical Company , 684 F.2d 1174 (1982)
( hereiriatter Stauffer II) , reversed the Tennessee District
Court, but the three judges did not agree on the basis for
the decision. Two judges agreed with the Tenth Circuit that
private contractors are not authorized to conduct inspections
*inder §114(a)(2). One of those two also held that the government
was collaterally estopped from relitigating this statutory
question against Stauffer. The third judge held that the
goverflmen was collaterally estopped from relitigating the
question against Stauffer, and therefore expressed his opinion
that the court should not have reached the merits of the

statutory question. Both the collateral estoppel issue and
the question of statutory authority were presented to the
Supreme Court. The Supreme Court affirmed the holding of
the Court of Appeals that the government is estopped from
relitigating the statutory question against Stauffer. The
Supreme Court did not reach the merits of the statutory
The Effect of this Decision
Because the Supreme Court did not reach the issue of
statutory construction, its decision leaves unresolved the
pre-existing split in court decisions on the question of
EPA’s authority to use contractors for inspections. The
Tenth Circuit, in Stauffer I , and the Sixth Circuit, in
Stauffer II , have held that only EPA officers and employees
may be “authorized representatives” of the Administrator
under §114(a)(2). The Ninth Circuit in Bunker Hill Co. v .
EPA, 658 F.2d 1280 (1981), and one District Court (in the
Fourth Circuit) in Aluminum Co. of America v. EPA , No. M-80-13
(M.D.N.c. Aug. 5, 1980), have held that EPA may designate
contractors as authorized representatives under §114(a)(2).
It had been hoped that the Supreme Court would rule on
the statutory question and resolve the issue of whether
contractors and their employees could be designated by EPA as
“authorized representatives” of the Administrator under
§114(a)(2). It did not do so. Final resolution of the
statutory question could be reached by a clarifying amendment
to the Act or by one or more additional test cases in circuits
which have not ruled on the question (assuming the Supreme
Court would grant certioriari in such a case).
EPA’s Present Policy on Use of Contractors to Conduct
It continues to be EPA’s position that both the language
and the legislaeii,e history of §114 support the use of
contractors as designated “authorized representatives” of the
Administrator under §114(a)(2). The Supreme Court clearly
decided that EPA may not relitigate this issue with Stauffer
in any of the circuits which have not yet ruled on the
question. The Supreme Court did not decide whether Stauffer
is also immune from relitigation of this issue in the Ninth
Circuit or in other jurisdictions where either Federal courts
or state courts have ruled in EPA’s favor. Therefore, EPA
will not designate contractors as representatives of EPA to
conduct inspections at Stauffer facilities, except perhaps
in the Fourth and Ninth Circuits.
Contractors should not,.absent express permission from
Headquarters, be designated as representatives of EPA to
conduct inspections pursuant to §114(a) in the Sixth or
Tenth Circuits. The following states are located in

the Sixth and Tenth Circuits: Kentucky and Tennessee in
Region IV, Michigan and Ohio in Region V, New Mexico and
Oklahoma in Region VI, Kansas in Region VII, and Colorado,
Utah and Wyoming in Region VIII.
Contractors may definitely be designated as representatives
of EPA in the Ninth Circuit. States located in the Ninth
Circuit are: Montana in Region VIII; Arizona, California,
Nevada, Guam and Hawaii in Region IX; Alaska, Idaho, Oregon,
and Washington in Region X. Therefore, EPA may continue to
use contractors to conduct inspections of facilities in the
Ninth Circuit.
The First, Second, Third, Fourth, Fifth, Seventh, Eighth
and Eleventh Circuits have not ruled on the question of
whether contractors may be designated as authorized represen-
tatives of EPA. 1 In the absence of any ruling prohibiting
their use, EPA may continue to use contractors to conduct
inspections of facilities owned by anyone other than Stauffer
in these circuits.
It is important that the Air Enforcement Division be
kept informed of any potential new litigation on this issue
so that the agency’s litigation efforts can be focused and
coordinated. Toward this end, we are asking the Regions to
notify and consult with Tracy Stewart, an attorney in the
Office of Enforcement and Compliance Monitoring (at vrs
382-2824) whenever the Regional Office wishes to seek a
warrant to gain entry for a contractor. A warrant may be
sought after a source has refused entry to a contractor or
prior to seeking entry if the Region has reason to expect
that the source will challenge the contractor’s right of
entry under §114. We hope that Regions will not be deterred
from using contractors, where it would otherwise be appro-
priate, by the mere possibility of a court challenge.
1 The Middle District of North Carolina, located in the
Fourth Circuit, has affirmed EPA’s authority to designate
contractors as representatives of the Administrator.
Aluminum Co. of America v. EPA, supra .

Q m I®
Final Guidance on Use of Unannounced

i I !. 1\\ 1RO\\u.\ I \I I ’I()I I.( I 1 \ \t,I \c.
ç — V \‘III\;14\, I)
SEP -6 1984
SUBJECT: Final Guidance on Use of Unannounced Inspections
FROM: Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Air and Waste Management Division Directors
Regions II, IV, VI—Vill and X
Air Management Division Dir’ectors
Regions I, III, V, and IX
This memorandum presents final guidance on the use of
unannounced inspections by EPA as a component of Regional
inspection programs. Comments in response to the draft guid-
ance issued on July 17, 1984 were received from six Regions
and one State agency. Because all respondants generally
supported the proposed guidance, changes to It were minimal.
Those changes and comments are discussed below.
One Region felt that the tone of the guidance was too
strong in encouraging the use of unannounced inspections,
that under the policy EPA is somehow required not to announce
most of its inspections,• and that the policy might create
unnecessary concern over what fraction of each Region’s
inspections is unannounced. Our strong support for use of
unannounced inspections as a component of an overall inspec-
tion program, which comes through in this guidance, is based
on the belief that they are more representative of normal
operating conditions. While we recognize the concerns asso-
ciated with use of such inspections, several Regions perform
a high percentage of unannounced inspections without adverse
impact on resources or EPA/State relations. However, although
this guidance does encourage the use of unannounced inspections,
no fractional or percentage requirements were established or
implied; this judgment should be made by the Region in light
of the nature of the inspections to be performed and the
sources in the Region. We would expect to see some program
in all Regions, however.

Another Region expressed a concern for program imple—
mentation: We would like to emphasize the need for maximum
flexibility and control to be retained by the Regional Office
staff in setting up and conducting unannounced or announced
inspections. We believe this guidance offers a great deal of
Regional discretion in implementation of a nationally—consistent
inspection program using unannounced and announced inspections.
While the guidance offers direction and options, it also defers
to Regional experience: As the guidance specifically notes
Regional Offices are free to vary the procedures used if they
believe an alternative approach would be preferable.
One Region expressed concern that an inspection policy
utilizing unannounced inspections could •damage the working
relationships of inspectors and the company officials, and
that some companies will shut down or refuse entry in light
of what they perceive is a change in agency attitude.
While these concerns are real, Regional experience has
shown that they can be minimized such that they are not an
impediment to performing unannounced inspections. Most sources
accept unannounced inspections and consider them little more
than an inconvenience once they realize that EPA has the legal
right to perform them, and will do so when appropriate.
Experience indicates that companies which refuse entry to EPA
inspectors are few, and that entry is usually just delayed
until the company discusses the matter with Regional Counsel.
Finally, one Region requested clarification on whether the
definition of an announced inspection included such activities
as stack tests, CEM audits, and PSTs. We believe the definition
of an announced inspection would include these types of site
visits, however, Regions are free to assess these activities
for announcement purposes on a case—by—case basis if that has
been their previous practice.
c ,
Edward E. Reich
cc: Air Program Branch Chiefs, Region I—X
Air Compliance Branch Chiefs, Regions II, III, V , VII, IX

Guidance On EPA Use of Unannounced Inspections For
Stationary Sources of Air Pollution
The inspection is the primary compliance assurance method
presently available in the air program for validatin source
performance. As such, the issue has been raised concerning
whether or not inspections should be announced- to the source
in advance of the actual visit. To assist in responding to
this issue, the Stationary Source Compliance Division (SSCD)
surveyed (through correspondence dated January 18, 1984) EPA
Regional Office practices and experience in performing both
announced and unannounced inspections. Based on the information
compiled through this survey, SSCD recommends that all Regional
inspection programs incorporate unannounced inspections as part
of their overall inspection approach. The use of this inspec-
tion type has value in obtaining data which are more represen-
tative of normal source operating conditions and can encourage
continuous source compliance. Possible obstacles to the use of
this type of inspection identified by some Regions have been
successfully addressed by the Regional Offices which effectively
carry out an unannounced inspection program and are therefore
no overall bar to its use.
The SSCD survey conducted earlier this year received nine
Regional responses. From these responses several observations
were made. Usage of unannounced inspections is highly variable
among Regions; several Regions perform them in the majority of
Situations while others only perform them under very limited
circumstances or not at all. The most commonly cited positive
aspect of performing unannounced inspection is the opportunity
to observe the source under normal operating conditions, since
the source does not have time to prepare for the inspection.
Other positive aspects mentioned are:
o Detection of surreptitious violations;
• Detection of visible emissions and O&M type
problems and violation;
o Creation of an increased level of attention by
a source to its compliance status, and
o Projection of a more serious attitude toward
surveillance by the Agency.
One Region found the in violationu rate in one State in 1982
to be three times higher at sources where inspections were
unannounced versus announced.

Some of the potential negative aspects of performing
unannounced inspections were reiterated by several Regions:
o The source may not be operating, or key plant
personnel are not available; and
o There may be an adverse impact on Regional
resources or EPA/State relations.
However, as previously noted, these concerns have been addressed
and were successfully resolved by Regions which make fuller use
of unannounced inspections. Therefore, it was felt the cited
drawbacks were more anticipated than real and could be overcome.
The Conclusion drawn from this survey is that all Regions
can and should perform unannounced inspections when appropriate
as a component of their inspection programs. The following
guidance addresses the issue of wl?en announced or unannounced
inspections are more appropriate, and provides procedures based
on Regional experience which facilitate the incorporation of
unannounced inspections into Regional inspection programs.
Regional Offices are, however, free to vary the procedures used
if they believe an alternative approach would be preferable.
Definition Of An Announced And An Unannounced Inspection
For the purpose of this guidance, an announced inspection
shall mean an onsite visit where the source to be inspected is
given advanced notification by the control agency of the specific
date of the inspection such that enough time would elapse to
permit significant source operating modifications prior to the
site visit.
An unannounced inspection shall mean an onsite visit where
the control agency provides no prior notification of the actual
date of the inspection to the Source, or where notice is given
shortly before the inspection such that the representativeness of
the source operation is not likely to be affected.
Advanced notification of both announced and unannounced
inspection dates shall be provided to the State or local control
agency. In this regard, please note the requirements of
Section 114(d) of the Clean Air Act relative to notice to States.

Announced Inspections
EPA is not required by federal regulation to announce the
date of an impending inspection to the source. Therefore,
announced inspections should be performed by EPA and its’
representatives when some specific purpose is served by
providing such notice. Situations where announced inspections
would be appropriate are:
o When specific information is being sought which must
be prepared by the source, or where the source must
make significant accommodations for the inspector to
gather the information;
o When the assistance of specific plant personnel is
necessary for the successful performance of the
inspection, i.e., the information they provide can not
be obtained from other on—duty plant personnel or by a
follow—up information request;
o When inspecting government facilities or sources
operating under government contract where entry is
restricted due to classified operations; and
• When inspecting un—manned or extremely remote
Questionable operating status of a source or process
generally does not preclude utilizing an unannounced inspection.
When daily operating status is questionable, the inspector may
confirm it with the source just prior to leaving for the inspec-
tion. The inspector may also wish to consult with the State or
local agency to obtain any current information they may have
about the source’s operational status.
Unannounced Inspections
Unannounced inspections will provide the most representative
picture of normal source operation and practices. They should
be performed whenever there is no reason for announcing the
inspection to the source as described previously.
As an alternative to arriving at the source totally
unannounced, if in the inspector’s judgment the representative—
ness of the source operation would not be altered and the
success of the inspection would be improved by contacting the

source shortly before the scheduled inspection time, this may
also be considered unannounced. If this latter method is
used, the amount of advanced notice given the source should be
noted in the inspection report.
Inspection Announcement Responsibility
When EPA accompanies a State or local agency in conducting
an inspection, or where EPA is requested by a State to assist
in compliance monitoring and enforcement at a source, the
decision regarding inspection announcement should defer to the
preference of the State or local agency. When the State or
local agency accompanies EPA on an EPA—initiated inspection,
inspection announcement shall be the responsibility of EPA and
the State or local agency should be so informed.
Inspection Announcement Protocol
The decision on inspection announcement to the source
and the name of the responsible individual should be noted in
the inspection report. The State or local agency should be
given a minimum of five working days notice in advance of an
inspection, whether it is announced to the source or not. An
exception to this minimum time period would be when the inspec-
tion is scheduled in response to an emergency situation which
does not allow such advanced notice. In cases where EPA has a
reasonable basis for believing the State or local agency will
notify the source of the inspection, no notification is required.
If the source is to be given advance notice of an inspection
date, it should be afforded a minimum of five working days notice,
but no greater than that given the State or local agency. This
latter point will assure that the State or local agency is always
notified before notice is given to the source.
When announcing an inspection to the source, advanced notice
may be given by telephone or in writing. Instances where
written notification (instead of oral) is appropriate are:
o When requested by the State/local agency or by
the source;
o When extensive or specific .records are being sought,
o When the inspection is to be performed solely by an
EPA contractor;
o When inspecting government facilities with classified
operations or otherwise restricted entry; and
Special—purpose inspections, e.g., to establish
conditions for a source—specific si revision.

If noticejs given orally, the date of the telephone
call and the person contacted should be noted in the inspection
report. A copy of any written notification should be attached
to the inspection report.
Unannounced Inspection Ithplementation
State and local agencies should be notified by EPA that
unannounced inspections are a component of EPA source inspection
programs, and that they will be performed.
A pre—inspection review of all pertinent sources of infor-
mation on the source should be made (or intensified) to avoid
any preventable inconvenience to the source as a result of the
inspection. This should include contact with the State or local
agency to obtain any additional information which they may have.
Sources may be contacted as necessary, and notified that
an unannounced inspection will be performed during a specified
time period (e.g., quarter or fiscal year) and that they should
notify EPA if key plant personnel or processes will be unavailable
for known extended periods. Portable sources, such as asphalt
concrete plants, may be required, pursuant to Section 114 to
report their scheduled location(s) on a monthly or quarterly
basis, if questionable source location is an impediment to
performing unannounced inspections.

Transmittal of Reissued OAQPS CMS Policy

‘4 C .7
MAR 31 1988
SUBJECT: Compliance Monitoring Strategy for FY 89
FROM: John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Air Management Division Directors..
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
I am transmitting to you the attached Compliance Monitoring
Strategy (CMS) for implementation in FY 89. This strategy is
the culmination of a multi—year effort that focused on addressing
some very important issues of the Air compliance program. I
feel the CMS makes major strides in guiding our surveillance
activities in a direction that will dramatically improve the
As yo now, the Compliance Monitoring Strategy will
replace th. Inspection Frequency Guidance (IFG) in F! 89.
The CMS emphasizes flexibility with accountability. This
strategy recommends developing a comprehensive inspection
plan that identifies all sources or source categories
committed to be inspected by the State agency (means State
or local agency throughout) during their fiscal year.

The State inspection plan must address national priorities
and may also include inspections not normally of EPA concern.
The plan, to fully utilize the flexibility offered, will be
organized around four groups of sources.
Group I: Traditional stationary sources such as Class A
and known Class B SIP, NSPS, and operating
NESHAPs sources.
Group II Asbestos D&R Strategy contractors.
Group III: Small VOC Compliance Strategy sources.
Group IV: Sources of State concern.
High Points of the New Strategy
New features of the Compliance Monitoring Strategy are
the following.
(1) Ability to address local air pollution concerns.
The CMS provides State agencies with the discretion to
address significant local air pollution concerns such as
citizen complaints, odor problems, and other localized toxic,
hazardous, and nuisance issues. These types of concerns may
not be national priorities, but are legitimate resource
expenditures under this strategy. Group IV is where local
issues and new State—specific initiatives may be addressed.
(2) Use of inspection targeting.
The concept of Inspection targeting provides an approach
to systemically direct resources toward the most significant
problems. The approach employed is a PC—based model using
multiple targeting criteria to determine inspection frequency.
The targeting model accepts source specific targeting data
supplied by the State inspector in such areas as plant emis-
sions, c liance information, and air quality factors. The
model a e values to these data, and mathematically combines
the val tO produce a ranking of sources to be inspected
along vi the estimated resource costs.

(3) Account for the total inspection activity.
This strategy will credit a program for its total inspec-
tion activity. The total State inspection resource budget
must be provided to EPA for this key aspect to be accomplished
(4) Maintain minimum resource expenditure levels in the
inspection program.
Minimum resource expenditure levels for Group I sources
are defined to be the average inspection effort over the last
three years. The levels for Group II asbestos D&R contractors
are those reported in the SPMS for the latest fiscal year.
Group III resource levels are the minimum number of inspections
required by the Small VOC Source Compliance Strategy or
supplied by the State, whichever is larger. Group IV levels
are generally supplied by the State.
5) Focus on national priorities.
Each year the Compliance Monitoring Strategy will reflect
the Air program’s stated national priorities as identified in
EPA’S Operating Year Guidance. These national priorities are
encompassed by Groups I, II, and III.
The responses I reviewed from both State and EPA personnel
were universally supportive of the general approach in the
CMS. I thank you for your time. The kinds of concerns expressed
typically revolved around the following issues.
1. Targeting model input data may not be known by the
Since the model’s input is often qualitative and is so
critical to effective source compliance understanding, the
lack of i h data is a key finding. In addition, experience
has shov at such a structured model helps guide an inspector
toward t neded data to carry out effective source inspections
and provtds supervisors with valuable management
control inforsation.

2. More resources (Regional and State) will be needed to
implement the CMS with targeting.
Our experience has shown that initially more time is
required to establish the source inventory, to develop
a working database, and to negotiate a plan. However, the
initial resource commitment is very dependent upon the current
condition of an agency’s database. Thereafter, the resource
burden is greatly reduced.
Given a principal aim of targeting is to be a more focused
use of scarce resources, targeting over time, is expected to
realize a resource savings. A program using targeting
should find and correct more problems than a program that
does not. Therefore, resources may actually go further
because of more effective use.
3. The Inspection Frequency Guidance (IFG) should remain an
We recognize in some cases, as mentioned in the CMS, the
current IFG will be a more viable means for States to meet
their inspection commitments. Therefore, the IFG is the
alternate approach. However, we strongly encourage the use
of the CMS with targeting whenever possible. To further
promote the CMS, we intend to monitor, in which States and for
what reasons, the CMS is not used.
One final observation, after reviewing the comments I
found a more comprehensive reading of the strategy should
answer any remaining questions. It became apparent that
inadequate attention was given to reviewing the strategy
because so many questions and comments were already answered
in the draft CMS. I will be happy to discuss with anyone
issues associated with implementing and interpreting the CMS,
but please read it carefully first.
Next Steps
SSCD I s arranged to conduct Regional training (States
may be in t.d as well) in the use of the inspection targeting
model and provide on—call technical support. Please contact
Howard Wright at FTS 475—7034 to schedule training. To
effectively coordinate ten Regions training, Mr. Wright would
like to know what Regional dates are suitable for this one
day training session. Please notify him of your preferred
dates by April 22, 1988.

The diskette containing the model along with the
D. cription and Explanation document will be distributed at
the training sessions. For technical support in the model’s
operation, please contact Perrin Quarles Associates, Inc. at
cc: Air Compliance Branch Chiefs
Regions II, III, IV, V, VI and IX
Air Program Branch Chiefs
Regions I, VII, VIII and X


Guidance on Enforcement of Prevention of Significant
Deterioration Requirements Under the Clean Air Act

_____ WASHINGTON, D.C. 20460
4LpcIO tG OEcI4 3
SUBJECT: Guidance On Enforcement of Prevention of Significant
Deterioration Requirements Under the Clean Air Act
-FROM: Michael S. Alushin
Associate Enforcement Counsel for Air
Edward E. Reich, Director -c .E ç
Stationary Source Compliance Division
TO: Regional Counsels
Regions I-X
Directors, Air Management Divisions
Regions I, V and IX
Directors, Air and Waste Management Divisions
Regions II-IV, VI-VIII, and X
This guidance discusses enforcement of Part C of Title I of
the Clean Air Act, dealing with the prevention of significant
deterioration (PSD) of the ambient air quality. The guidance
explains the use of Section 167 of the Clean Air Act as an
enforcement tool and provides assistance in choosing between
§167 and the alternatives available for enforcing against PSD
violations. Violations of Part C include construction or
operation of a PSD source (as defined under the Act and the PSD
regulations) without a permit, construction or operation with an
invalid permit, and construction or operation in a manner not
consistent with a validly issued permit.
We believe that §167 of the Act provides EPA with a
significant enforcement mechanism in addition to §113,’the
Agency’s main enforcement tool, but it does not preclude resort
to any remedies available under § l13 or 120. Section 167 should
be used in situations where a source is constructing or operating
without a valid permit or in violation of a valid permit and
EPA’s main interest is a quick imposition of injunctive relief to
stop the violation. Where time is not of the essence and/or the
Agency wishes to collect penalties in addition to exacting injunc
tive relief, § 113 or 120 provide more appropriate remedies.

Thus, depending upon the circumstances of a particular case, EPA
may commence one or more of the following actions against a
source that is in violation of PSD requirements:
(a) Issue an order or seek injunctive relief under
§ 167 to prevent the source from constructing or
operating in violation of the PSD requirements;
(b) Issue an order to comply under §113(a);
(c) Seek civil remedies under §113(b);
Cd) Seek criminal penalties under §113(c);
(e) Assess and collect noncompliance penalties under
I. Analysis of Section 167
Section 167 of the Clean Air Act provides:
The Administrator shall, and a State may, take such
measures, including issuance of an order, or seeking
injunctive relief, as necessary to prevent the
construction of a major emitting facility which does
not conform to the requirements of this part, or which
is proposed to be constructed in any area included in
the list promulgated pursuant to paragraph (1)(D) or
(E) of subsection Cd) of Section 107 of this Act and
which is not subject to an implementation plan which
meets the requirements of this part.
42 U.S.C. §7477(1978)
Depending upon whether or not EPA has approved a State’s
Part C (PSD) State Implementation Plan (SIP) provisions under
Section 110(a)(2) of the Clean Air Act or delegated the PSD
program to the State, Section 167 creates two separate and
distinct enforcement obligations for EPA. This is consistent
with EPA’s policy of allowing the States primacy where they have
the pain responsibility for a program. In those States that
have not been delegated the PSD program or do not have approved
SIP PSD provisions as required by §161 (PSD requirements for
SIPs), EPA has the authority to regulate the construction of
all major emitting sources that are subject to PSD review under
the Act. Any person wishing to construct such a source in one
of those States will be required by §165 (preconstruction require-
ments) to obtain a PSD permit from EPA. If the proposed source
would violate the provisions of the PSD regulations, EPA must
deny the permit. If EPA issues a permit, the Agency will be

responsible for initiating appropriate proceedings should the
source subsequently violate any permit provisions. Likewise, the
Agency is responsible for taking enforcement action against a
source which commences construction without first obtaining a PSD
Once its PSD SIP provisions have been approved or delegated,
pursuant to §110(a) (2) and 40 CFR 51.24, the State, rather than
EPA, assumes primary responsibility for administering the PSD
program. The Agency does not completely relinquish its obli-
gations, however. Rather, it assumes an oversight function.
PSD permits issued by the State remain federally enforceable.
40 CFR § 52.02(d), 52.21(r), and 52.23. If the State takes
appropriate enforcement action, it is unnecessary for EPA to
initiate enforcement proceedings. If the State fails to take
appropriate action, however, Section 167 provides that EPA must
take measures adequate to prevent the construction of the noncom-
plying source. EPA can take such action at any time the Agency
deems it necessary. The Agency is not forestalled by any action
initiated by the State from simultaneously or subsequently taking
action against a source that already had commenced construction
or operation. Thus, EPA retains PSD enforcement authority and,
where appropriate, is expected to initiate PSD enforcement pro-
ceedings bqth before and after the PSD SIP revisions have been
approved 11
Additionally, §167 requires. EPA to take action directly
against a source found being constructed or operating pursuant
to a PSD permit that conflicts with the requirements of the
Clean Air Act, implementing regulations, or approved SIP require-
ments. This provision gives the Administrator authority similar
to that possessed under §113(a)(5) and (b)(5) to prevent illegal
construction or operation of new sources in nonattainment areas.
1/ Senator Muskie noted this continuing Federal enforcement
obligation. He stated: “toince the State adopts a permit
process in compliance with this provision, the Environmental
Protection Agency role is to seek injunctive or other judicial
relief to assure compliance with the law.” 123 Cong. Rec. S
9169 (daily ed. June 8, 1977) (remarks of Senator Muakie).
Senator )fuskie’s reference to “injunctive or other judicial
relief” should not be construed as precluding resort to an
administrative order mechanism. Such an interpretation would
conflict with the clear wording of §167. Rather, we believe
that Senator Muskie’s reference to “other judicial relief”
provides clear support for the propoaitipn that EPA may resort
to the civil and criminal penalties provisions of §113(b) and

Under Delegation Number 7-38, the Administrator has
delegated authority to issue §167 administrative orders to the
Regional Administrators and to the Assistant Administrator for
Air and Radiation. The Regional Administrators will, in most
instances, be the parties to issue §167 orders and, pursuant fo
Delegation No 7-38, must consult with the Associate Enforcement
Counsel for Air and the Director of the Stationary Source
Compliance Division before issuing such orders. The Assistant
Administrator for Air and Radiation may issue §167 orders in
multi-Regional cases or cases of national significance. In
addition, the Assistant Administrator for Air and Radiation must
consult with the Associate Enforcement Counsel for Air and must
notify any affected Regional Administrators or their designees
before issuing such orders.
II. Enforcement Actions Under §167 and §113(b)
A. Construction Without a PSD Permit
Construction Not Consistent with a Validly Issued Permit
1. Pre-Operation Remedies
Section 167 will provide a particularly effective enforcement
tool against an owner or operator that has commenced construction
without having obtained a PSD permit or is constructing in a
manner not consistent with a validly issued permit. In this
situation, EPA should take action to halt construction of the
source immediately. This may be accomplished most quickly under
§167 by means of an adminstrative order or by obtaining judicially-
imposed injuctive relief.
When using §167, EPA should normally first issue an
administrative order. The Agency should then file a civil
action if a violating source does not immediately comply with
the order. In cases where EPA has good reason to believe that
the order would not be obeyed, however, we should file a civil
action for injunctive relief immediately, without first issuing
an order.
In appropriate instances, EPA may issue an order or file a
complaint under §167 while proceeding concurrently, through § 113
or 120 actions, to collect civil and/or noncompliance penalties.
Section 167 gives the Administrator the authority to take
Tm èdiat action without being constricted by the procediiral
1imftationi et forth in §113. In all cases where possible,
however, EPA should issue the source aüotice of violation (NOV),
with a copy being sent to the appropriate State agency. The NOV
does not have to be issued concurrentT with a §Lb! order , but

the §167 order should be followed up as soon as practical with
the NOV. This notice should explain the full range of possible
EPA enforcement actions. Even if circumstances require a §167
court filing before meeting NOV procedural requirements, prompt
issuance of the NOV will allow EPA to take action under §u3 at
ã1 äter date if—the Agencydecide to d so. -
In many instances, EPA learns that a source is constructing
without a PSD permit or in violation of a validly issued permit
early enough in the source’s construction schedule to allow the
agency time to act solely under §113. In these cases, the Agency
may choose to commence a civil action under §113 for injunctive
relief and/or monetary penalties instead of acting under §167
where remedies are limited to injunctive relief.
Civil penalties are available against a source for violations
even prior to the time it has commenced operation. One type of
case occurs when a source is being constructed in violation of
the terms of its PSD permit. For example, if the owner delays
in meeting a schd uThto install control equipment or seeks to
install equipment that will not meet the emission limits in the
PSD permit, the Agency should take action to require the necessary
injunctive relief and to recover monetary penalties. Penalties
are appropriate even if no pollutants actually have been emitted
because the PSD permit is issued pursuant to the SIP, and thus a
requirement of the SIP has been violated. EPA should seek
penalties for each day that the source is in violation of PSD
permit requirements, commencing on the date on which the source
began to install the non-conforming equipment, or August 7,
1977, whichever is later, and continuing until the source satisfies
the com iance schedule specified in a judgment or in a consent
Another type of case arises when a source is bei & onstructed
without a permit . Here, also, injunctive relief and penalties
are appropriate. The penalty period begins with the date that
construction began. “Construction” for the purpose of this
2/ Even if the source has derived no economic benefit by
installing the nonconforming equipment, EPA still should
seek penalties under §113(b). The Penalty Policy provides
for other factors which guide the choice of penalty figures.
In addition, EPA has promulgated a specific guideline for
permit violation penalty settlements. That gui4eline is
contained in Appendix I to this guidance. The guideline was
issued on February 1, 1981, by Jeffrey Miller, then Assistant
Administrator for Enforcement. Appendix I updates the 1981
guideline to reflect organizational changes, and to elaborate
upon some of the examples.

determination is defined as activity beyond that permitted under
the policy enunciated in the December 18, 1978 memorandum from
Ed Reich to the Regional Offices entitled, “Interpretation of
‘Constructed’ as it Applies to Activities Undertaken Prior to
Issuance of a PSD Permit.” (Copy attached as Appendix II.) Th
penalty period ends when the permit is granted or is scheduled
by EPA to be granted. Even if the source is put on a compliance
schedule in a consent decree before then it should not be allowed
to enjoy the economic advantage of its violation of PSD requirements.
It is important to note that even if construction is halted,
the violation continues. Naturally, though, priority should be
given to cases where injunctive action is required. Equally
important, the Agency should not delay issuance of PSD permits
for sources of which illegal construction has begun. In such a
case, the penalty period is dependent on the speed of EPA’s own
action. For this reason, the Permit Penalty Policy states that
the_Agency may consider mitigation of the calculated civilpenalty
a soü e ceases a re é i a1ile time after
being notified of the violation and does not resume construction
until a valid perrnit is issued. - - -
2. Post-Operation Remedies
Civil actions under §l13(b 1 constitute the primary
enforcement d ah1 äiñst sources t a ave a rea y commenced
operation witTóiTh”óbtiining a PSD permit or in violation of a PS
Lermit. Hóweve r,
orders Issued pursuant to §167 are available to achieve immediate
cessation of operation. They should only be used for operating
sources which have failed to get a permit or are committing a
violation so egregious that they must be shut down immediately
(e.g., failure to install the control equipment or start-up
prior to installation of control equipment or where operation
causes an increment to be exceeded). Even in these instances,
the action under §167 should be accompanied by a §113 action to
collect penalties.
When using §167, EPA should normally first issue an
administrative order. The Agency should then file a civil action
if a violating source does not immediately comply with the order.
In cases where EPA has good reason to believe that the order would
not be obeyed, however, we should file a civil action for injunctive
relief immediately, without first issuing an order.
We believe that a PSD source which is not known to be in
violation can be granted up to iSO days after start-up in which
to dem6n tratècompltance wtttl all appL able emission limitations .
This provid oi5 ortuntty for the owner or operator to make
necessary modifications or correct minor equipment defects that
are not apparent prior to start-up. The expectation is that the

source will be in compliance as soon as possible, and the decision
as to how much time is necessary for fine tuning is to be made on
a case by case basis. (The period of 180 days is analogous to
the time allowed a source to demonstrate compliance after start-
up under the New Source Performance Standard regulations, 40
C.F.R. §60.8.) During the 180-day period, a source should be
required, to the extent practicable, to maintain and operate the
source incltding the associated air pollution control equipment
in a manner consistent with good air pollution control practice.
B. Construction With an Invalid Permit
EPA will also be able to utilize the provisions of §167 to
prevent a source from constructing with a State-issued permit
that EPA feels is invalid. There are basically two types of
situations involving construction with an invalid permit. In the
most common situation, the source can be expected to obtain a
valid permit quickly. In other circumstances, however, it cannot
be expected that a valid permit can issue soon. Before deciding
on a course of action to be taken with a source constructing
pursuant to an invalid permit, an EPA Regional Office needs to
make a probability assessment as to the likelihood that a source
will be able to obtain a valid permit quickly. For the purposes
of allowing construction pursuant to an invalid permit, the
period of thirty (30) days (the period analogous to that allowed
under a Section 113(a) order) should be considered to be “quickly.”
In the situation yhere EPA believes a valid permit will
issue quickly, the procedures to be followed should be similar
tothôse used under §1.i3(a)( ) to prevent the construction of
ne eàur sI ônattainment areas. Sources should be issued
an order, a ec n rec se e natu ct in the
permit, an g yen days in which to o tam a valid permit
while they proceed with cons ruct1 ti . Issuan of an immediate
cease construction order, while available, usually would be an
unnecessary sanction. A source that has obtained a PSD permit,
even though invalid, has presumably undergone some preconstruction
review. Moreover, si ce it is the State rather than the source
itself, that is primarily at au , immediate sanctions might b
inappro riate .
In some situations, however, such as those where EPA
believes that a source cannot be operated without violating an
increment or where construction wiLl foreclose k’A’s option! _ 1n -
s_ f what BACT_reguireme j [ appi! to a source, an
immediate cease construction order under 167 should be ri ued
and construction should not be allowed —commence or continue’
until a valid permit is issued.

In cases against sources constructing pursJl.anrt to an invalid
permit, the error is p? umed to hay b inTh e State’s. Therefór ,
even th u h construction may be halted, no pe rfatty is appropriate
unless the source is somehow at fault or the ác urce does not -
cooperate after the discovery of the violation. -For no-penalty
actions, §167 is an effective enforcement tool.
C. Consent Decrees
In civil actions filed under both §167 and §113, against pre-
operational as well as post-operational sources, a likely outcome
of the actions will be consent decrees. Allowing a violating
source to continue construction or commence operation under the
provisions of a consent decree lies within the discretion of the
court, though the court’s decision can be affected, of course,
by the recommendation of EPA and the Department of Justice. The
terms EPA should seek in actions under both §167 and §113 will
vary according to the nature of the violation and the time that
will be required to correct it.
There are two types of situations in which consent decrees -
would be appropriate. The first occurs when the source’s viola-
tion causes or contributes to levels of pollution that exceed
those allowed under §163 of the Act (which establishes the PSD
increments). The other situation arises when the source’s vio-
lation does not cause or contribute to increased levels of
pollution beyond those allowed by §163.
Wh n _ the pollution increments established by §163 would be
or are being exceeded , EPA should immediately seek injunctive
relief tóprevent the source from starting up or continuing in
violation of its emission limitations. EPA should determine
the nature of the violation and the amount of time that will be
needed to correct it. A source should not be permitted to
commence or continue operation until it is in compliance through
enforceable em [ ssion_limitatloñs. To allow commeiicëment or
continuation of operation out of compliance would defeat the
intent of the Act by sanctioning levels of pollution in the PSD
area greater than those established by Congress as the maximum
allowable limits.
If the source is exceeding or will exceed its own emission
limitation but the increment set forth in §163 is not being or
will not be exceeded, EPA has more flexibility in devising a
consent decree. While it need not adhere to a strict rule of no
start-up until a source is in compliance, the Agency still must
take all necessary action to ensure that corrections are made as
quickly as possible and must not allow a source to commence
operation unless start-up is pursuant to a consent decree.

The actual terms of a consent decree will vary from case to
case. The only provisions that must be contained in every decree
are a schedule that requires compliance as expeditiously as
practicable, monitoring and reporting procedures, and a stipulated
contempt fine provision. These fines should be established a a
level sufficiently high to ensure compliance with the terms of
the decree. (More detailed guidance on provisions to be included
in consent decrees is contained in the October 19, 1983 memorandum
from Courtney Price, GM-16.)
III. Additional Enforcement Remedies
A. Criminal Penalties Under 113(c )
Section 113(c) is available, where appropriate, against all
types of PSD violations, both pre- and post-operation.
Section 113(c) authorizes the Administrator to commence a
criminal action to seek monetary penalties and/or imprisonment
for knowing violations of applicable regulations and EPA orders.
The key requirement is that the Administrator must be able to
demonstrate that the violation was “knowing.”
A distinction should be drawn between a source that refuses
to comply with applicable requirements and one that merely has
failed to comply. Refusal to meet any increments of progress of
the final compliance date of an administrative order or to meet
consent decree or permit requirements should be considered for
criminal referral to D0J. If the source merely is late in com-
plying, however, criminal penalties would not generally be
appropriate. Additionally, it is our belief that resort to
criminal penalties does not preclude the initiation of concurrent
or subsequent civil proceedings for monetary penalties and/or
injunctive relief. Questions concerning the possibility of
criminal action should be referred to Peter Beeson, Associate
Enforcement Counsel for Criminal Enforcement (FTS 382-4543).
B. Noncompliance Penalties Under §120
By the terms of §120, noncompliance penalties can be
assessed whenever a source is in violation of an emission limi-
tation, emission standard, or compliance schedule under an
applicable SIP. These penalties are based upon the economic
benefit the source has derived from noncompliance. Section 120
penalties can be assessed regardless of whether civil and/or
criminal sanctions available under §113 are also sought. More
discussion of the use of noncompliance penalties appears in
regulations published July 28, 1980 (45 FR 50086).
If you have a question about this guidance, please call Judy
Katz of the Air Enforcement Division (382-2843) if it is a legal
question or Rich Biondi of the Stationary Source Compliance
Division (382-2831) if it is a technical question.

Penalty Policy for Violations of Certain Clean Air Act
Permit Requirements for the Construction and/or
Modification of Major Stationary Sources of Air Pollution
I. Introduction
EPA’s existing Civil Penalty Policy, dated July 8, 1980,
applies inter alia , to stationary sources of air pollution which
violate requirements enforceable under Section 113 of the Clean
Air Act when such violations are the result of a failure to make
capital expenditures and/or failure to employ operation and
maintenance procedures which are necssary to achieve initial
compliance. The Civil Penalty Policy does not, however, speci-
fically address violations of_permit requirements_related to the
construction or th3 itication at ma ó stAt ion ãry soü±ces under -
the preve Ei Of significant deterioration (PSD) program and
the nonattálnment area new source review program (including the
Offset In f tatrve Kuhn iñdSe tion 173) .
This document outlines a penalty policy which applies to
certain permit-related violations of the Clean Air Act and is
intended to establish a method of calculating a minimum settle-
ment amount for such violations. The “Permit Penalty Policy”
does not replace or limit the present Civil Penalty Policy in
any way, but has been developed to deal with a subject area not
covered by the existing policy. As illustrated by the following
examples, the failure of a source to satisfy a new source requir-
ement may result in one violation subject to this Permit Penalty
Policy, and a second violation subject to the Civil Penalty
It is important to note that this Permit Penalty Policy is
intended to provide guidance on determining a minumum civil
penalty settlement figure, as opposed to penalty requests in
complaints. As a general rule, civil complaints alleging Clean
Air Act violations, including permit-related violations, should
always request the statutory maximum penalty of $25,000 per day
of violation. In addition, the policy is not intended to suggest
that civil penalties are the only, or even the primary, remedy
where a source is in violation of Clean Air Act requirements. In
such cases, a claim for civil penalties is an adjunct to seeking
appropriate injunctive relief. A claim for costs should also be
It is also important to note that the policy outlined in
this document, like the Civil Penalty Policy, is used to set a
minimum settlement figure. Therefore, the penalty actually
negotiated for can always be higher than the figure derived
through use of this Permit Penalty Policy.

II. The Permit Penalty Policy
The Permit Penalty Policy covers cases involving sources
which begin construction or operation without first obtaining
the required PSD permit, as well as those which construct or
operate in violation of such valid permits. Construction pro-
ceeding in compliance with an invalid permit is considered to
be, in the context of this penalty policy, construction without
a permit. A primary motivation behind the Permit Penalty Policy
has been the recognition that economic savings can be difficult
to quantify when the violation involves permit requirements.
The Permit Penalty Policy has been designed to provide a method
for determining a penalty amount which will be sufficient to
deter illegal construction or other permit violations, and yet
not be so high as to be unreasonable or unrealistic.
The policy is built around use of a matrix for calculation
of the minimum settlement amount. Construction in the absence of
a permit or in violation of a permit has been assigned a scale of
dollar values. The matrix also provides for the assessment of an
additional penalty for certain specified violations of substantive
permit pre-conditions or requirements. The appropriate dollar
value for a violation is dependent on an estimate of the t al
d ófarr o1lution control at tl3ose facilities of the source
for which the permit is requirecl) / 1r is value is then mulflpfled
b3IEFiëThurnber of môiith Of vtolatThn.h / When there are multiple
t-re1atèdVto1ati ns, a penalty !igure is calculated for
each violation and the individual penalty figures are added
together to produce one minimum settlement figure. In those cases
where a source subject to a valid permit violates only the require-
ments of Section 173(1) and/or Section 173(3) (requirements for
1/ “Total cost of air pollution control” should include, where
relevant, pollution control equipment costs, design costs,
operation and maintenance costs, differential cost of complying
fuel v. noncomplying fuel, and other costs pertaining to adequate
control of the new source. Total cost is to be determined by
examination of what would have been required as BACT (for a PSD
violation) or LAER (in the case of an Offset Policy or Part D
violation). When construction is done in phases, the operative
amount is the total cost of air pqllution controls for the entire
2/ Month-by-month accrual of penalties was selected for purposes
f convenience and for consistency with the Civil Penalty Policy.
Any fraction of a month in violation is counted as a full month
of violation unless circumstances present a case for mitigation
of this rule.

construction permits in nonattainment areas) or the corresponding
requirements under the Offset Policy, the appropriate penalty
amount is determined by reference only to the matrix column(s)
citing the violation(s).
The sum produced through use of the matrix represents the
minimum amount for which a case normally can be settled. However,
it is recognized that equitable considerations, includ g but not
limited to recalcitrance, degree of environmental harm’ I and
likelihood of success should the case be filed, may make an
increase or decrease in the matrix figure appropriate. Similarly,
a source owner who agrees to make approved expenditures for
pollution control above and beyond expenditures made to comply
with all existing legal requirements may reduce the amount of
the penalty owed. Any such additional expenditures designed as
credits to satisfy or offset civil penalties will be evaluated
in accordance with the provisions of the Civil Penalty Policy.
Regional Offices wishing to modify the figure indicated by the
matrix in consideration of the total equities presented by a
case or to reduce the penalty because of a credit should do so
in accordance with the procedures discussed in Section III of
this Policy.
It is recognized that there may also be cases where the
economic value of a violation covered by this policy is reasonably
quantifiable. Where the quantifiable economic savings figure
exceeds the penalty amount established by the attached matrix,
the Regional Office should negotiate for the higher calculated
econcomic savings figure rather than the matrix figure.
The period of civil penalty liability will, of course, depend
upon the nature and circumstances of the violation. For example,
if a source has begun actual construction without a required
permit or under an invalid permit, the penalty period begins on
the date the source began construction and continues either until
the source obtains a valid permit or notifies the State or EPA
that it has perm4nently ceased construction and the projects has
been abandoned. 4 / A temporary cessation in construction does not
3/ E.g., significant consumption of a PSD increment by a source
that has not received a permit, violation of a Class I increment
or serious aggravation of a nonattainment problem.
4/ The period of liability is not to be confused with the period
of continuing violation for Section 113 notice of violation (NOV)
purposes. A source which constructs without a valid permit is in
continuing violation of the Clean Air Act for NOV purposes until
it receives a valid permit or it dismantles the new construction.

toll the running of the penalty period. The Agency may, however,
consider mitigation of the calculated civil penalty if a source
ceases construction within a reasonable time after being notified
of the violation and does not resume construction until a valid
permit is issued. If a source violates a permit condition, the
period of penalty liability for purposes of calculating a settle-
ment figure begins on the first date the violation can be docu-
mented and will cease when the violation is corrected.
III. Procedure
Authori y to approve minimum settlement figures calculated
for cases covered by this P mit—Pena1ty Policy rests TEff the
As i r fAaininLitrator forEnf ëment and Compliance_Monitoring.
(Delegation 7-22-C) - in Viã tt e,
called upon the Associate Enforcement Counsel for Air to review
settlement figures. Therefore, an indication of the minimum
settlement figure, including an explanation of the derivation
of €H fig áIñédfiJom the matrix and any modification of
that figure based upon subjective factors, should either be
included in the litigation report_covering ehefa 1lttyö hou1d
be forwarded by methdrindum to the Associate Enforcement Counsel
for Afx
If a case involves violations that are within the existing
Civil Penalty Policy’s coverage, as well as a permit-related
violation, the Permit Penalty Policy should be used to find the
minimum settlement figure for the permit violation(s) and the
Civil Penalty Policy should be used to establish a penalty amount
for the other violation(s). These two figures should be added
together to produce an appropriate overall settlement amount.

(per month of violation)
less than 50
500-1, 500
over 50,000
$ 2,000
$ 7,000
§173(1) OR
SECTION 173(3)
less than 50
over 50,000
$ 2,000
$ 9,000
$ 5,000
( Add numbers when multiple categories apply )

The following hypothetical cases illustrate how the matrix is
used to continue to calculate a minimum settlement figue.
PSD Source
On July 1, 1980, an existing major source began actual
construction of a modification to its plywood manufacturing plant.
The modification will result in a significant net emission
increase of particulate mater. The source had not obtained or
filed for a PSD permit as of the date actual construction began.
On July 2, 1980, EPA investigators discovered the construction
during a routine inspection of the plywood plant. The EPA Regional
Office determined that the modification was subject to PSD review
and issued a Notice of Violation on August 1, 1980. The NOV
cited the PSD regulations and outlined possible enforcement
The source received the NOV on August 5, 1980, and contacted
the Regional Office on August 10, 1980. On August 30, 1980, the
Region and the source held a conference at which the source stated
that it had not been aware of the need for PSD review and permitting
prior to construction. The source also stated that it would file
an application for review but that it would not cease construction
during the review process.
On October 1, 1980, the source filed a PSD application.
During the review process the Region discovered that the source
had no plans to install pollution control devices. The Region
also determined that without BACT, the modification’s particulate
emissions would result in an exceedance of the particulate matter
increment in the source’s area of impact. The source, when
informed of the BACT problem, indicated it would install the
necessary controls.
However, throughout the review process the source continued
construction of the modification. On December 1, 1980, the source
began operation of the modified source without the required permit
and without controls.
On January 15, 1981, the source was issued a PSD permit. On
February 28, 1981, the source ceased operation of the plywood
plant to install the pollution control equipment called for in
the PSD permit. The source resumed operation on March 15, 1981,
in a manner consistent with the PSD permit conditions.

The penalty calculation for this example begins with an
assessment of the total cost of air pollution control equipment at
the modification. For purposes of this example, assume BACT
costs $140,000.
Next, the type and number of matrix categories must be
determined. In this example the source (1) began actual con-
struction without a permit, (2) operated the plant without a PSD
permit and (3) exceeded the growth increment for particulate
matter. Therefore, this source is subject to both of the columns
of dollar values under the heading “PSD Sources.”
In addition to the permit violations described above,
commencement of operation prior to the installation of BACT
constitutes a separate violation subject to the Civil Penalty
Policy. (The Civil Penalty Policy should be used to determine an
additional appropriate minimum settlement amount for the period
of time the source operated without BACT.)
Once the type, number and dollar values of the penalty are
determined, these figures are multiplied by the number of montha
in violation. The sums are then added together to produce the
matrix penalty amount.
In this example, the source’s period of construction without
a permit runs from July 1, 1980, until the valid permit was issued
in January of 1981 (7 months). The period of operation at variance
with the BACT permit condition runs from the time the permit was
issued in January 1981, to the date the source ceased operation
on February 28, 1981 (2 months). The source also exceeded the
area growth increment for particulate matter during the period of
operation from December 1, 1980, to February 28, 1981 (3 months).1/
1/ It is important to note that some of the considerations
etailed in the matrix do not necessarily track the statutory
provisions regarding violations. For example, there is no Clean
Air Act provision which makes increment exceedance, in and of
itself, a violation by an individual source. (The SIP must
protect the increment. The method used is PSD review with permit
conditions such as BACT, fuel use limitations, etc.) However, as
a consideration of environmental harm, and in considering the
seriousness of the violation if a source operates and thereby
violates a State’s increment due to failure to go through PSD
review as or when required, an added penalty is appropriate.

The matrix penalty figure for this source’s PSD related
violations, based on a $140,000 total cost of control estimate, is:
- for the 7 month period of construction without a permit,—
7 x $4,000 — $28,000 -
- for the 2 month period of operation without a permit,
2 x $4,000 = $8,000
- for the 3 month period of operation during which the -
increment was exceeded,
3 x $11,000 — $33,000
- matrix penalty figure —
$28,000 + $8,000 + $33,000 — $69,000
As noted in this policy, this figure represents a minimum
settlement figure. EPA may, at any time, negotiate for a higher
settlement figure. A lower minimum settlement figure may also be
available depending on the circumstances of the particular case.
See the policy for procedures regarding possible reductions.
In addition to the permit violations described above,
commencement of operation prior to the installation of BACT
constitutes a separate violation subject to the Civil Penalty
Policy. (The Civil Penalty Policy should be used to determine an
additional appropriate minimum settlement amount for the period
of time the source operated without BACT).
Section 173 or Offset Policy Sources
On December 1, 1980, a plywood manufacturing company began
operation of a modification at its plant which is located in a
nonattainment area for particu1a e matter. The modification is
subject to Section 173 review permitting and, in fact, the source
has obtained a valid Section 173 permit from the State. The
permit specifies 1) that the applicant has demonstrated that all
other major stationary sources owned or operated by the applicant
in the State are in compliance with the Act, 2) what constitutes
required LAER, and 3) what offsets (internal) would be required
to be obtained prior to start-up or commencement of operation.

In March of 1981, the Regional Office learned that the source
did not install controls on a certain ?iece of process equipment
and therefore did not actually “obti’ the offsets as specified
in the State permit. On April 1, 1981, the Region issued an NOV
for failure to comply with the terms of the permit by not
obtaining offsets prior to start-up. At an April 15, 1981,
conference between EPA and the source, the source agreed to meet
the terms of its permit and to certify compliance. On May 15,
1981, the offsets were finally obtained.
In this example, the violation covered by the matrix is the
source’s failure to obtain the required offsets (because the
source had obtained the requisite permit and its only violation
of the permit consisted of a failure to obtain the offsets by
start-up). The failure to obtain offsets, however, is covered by
both the Permit Penalty Policy (for the failure of the new source
to obtain offsets prior to start-up) and the Civil Penalty Policy
(for the failure of the existing source to comply with the offset
The calculation of the minimum settlement figure in this -
case under the Permit Penalty Policy begins with an assessment of
the total cost of air pollution control equipment at the modification.
For purposes of this example, assume LAER costs $110,000. Since
the source operated from start-up on December 1, 1980, until
May 15, 1981, without the necessary offsets, the period of
violation was six months. Under these circumstances the matrix
yields a penalty figure of $84,000. (6 x $14,000 84,OO0).
As in the PSD example above, this matrix figure is a minimum
settlement number. EPA is free to negotiate for a higher amount.
There is also the opportunity for a reduction of this figure
based upon the surrounding circumstances in accordance with the
procedures outlined in the policy.
The calculation of a minimum settlement figure under the
Civil Penalty Policy is dependent upon the economic benefit to
the source of delaying the capital costs necessary to satisfy the
offset requirement for a period of six months, and upon the other
factors set out in the policy. Because the offsets were obtained
from a facility owned by the new source, a total minimum civil
penalty settlement figure is calculated by adding the amounts
obtained under the Permit Penalty Policy and the Civil Penalty
Policy. (If the offsets were obtained from a facility not owned
by the new source, once the offset is established and made part
of the SIP, the existing source is subject to the amount calcu-
lated under the Civil Penalty Policy added to the amount calcu-
lated under the Permit Penalty Policy).

‘ / WASHINGTON. D.C. 20460
DEC 1 8 1978
SUBJECT: Int.erpretation of *ConstructedN as it Applies to
Activities Undertaken Prior to Issuance of a PSD
FRO’l: Director
Division of Stationary Source Enforcement
TO: Enforcement Division Directors
Regions I—X
Air and Razardous Materials Division Directors
Regions I—X
The issue addressed in this memorandum is where on the
continuum from planning to operation of a major emitting
facility does a coi pany or other entity violate the PSD
regulations if it has not yet received a PSD permit. (It is
assui ed here that such a permit is required by the PSD
regulations.) This question has arisen several times in
particular cases and general guidance now appears necessary.
The statute and regulations do not answer this
question. The Clean Air Act states simply that, (n]o majo’
emitting facility... may be constructed... unless—(l)
a permit has been issued... (and various other conditions
have been. satisfied). Section 165(a). Similarly, the PSD
regulations state that, U( ] 0 major stationary source or
major modification shall be constructed unless the (various
PSD re uire. ents are met).u 40 CFR 52.21(i) (1), 43 FR
26406. uConstruction is defined in the regulations as
fabrication, erection, installation, or modification of a
source. 40 CFR 52.21(b) (7), 43 FR 26404. This accords
with Section 169(2) (C) of the Act, but it does not explicitly
answer the question posed ab3ve. To our knowledge, the
legislative history of the Act does not treat this issue.
Thus the ter n ‘constructed seems to be open to further
interpretation by EPA.

Cor iencement of construction is quite specifically
defines in both Section 169(2) (A) of the Cleafl Air Act and
40 CFR 52.21(b) (8) , 43 FR 26404. }fot,ever, that definition
is for the purpose of deciding the threshold question of the
applicability of the PSO re u1ations , Therefore, we are not
bound by it in deciding what activities may be conducted
prior to receiving a necessary PSD permit.
DSSE’s response to date has been that the permitting
authority should nake the deteri ination on a case—by—case
basis, after considering all the facts of the individual
situation. For example, we said that site clearing might be
inappropriate for a source proposed to be constructed in a
heavily forested Class I area, but permissible for a source
proposed to be constructed on a junk—strewn lot in a heavily
industrialized Class III area.
After consulting with the Office of General Counsel, we
are now ai ending this policy in order to miniwize the
administrative burden on the permitting authority and to
adopt what we believe now to be the better legal interpreta-
tion. The new policy is that certain limited activities will
be allowed in all cases, These allowable activities are
planning, ordering of equipment and materials, site—clearing,
grading, and on—site storage of equipment and materials,
ny activities undertaken prior to issuance of a P30 permit
would, of course, be solely at the owner’s or operator’s
risk. That is, even if considerable expense were incurred
in site—clearing and purchasing equipt ent, for example,
there would be no guarantee that a PSD permit would be
All on—site_activities of a permanent nature aimed at
completing a PSD SourcefTór hichap jltThii yet to bé
tained are prohibited uiidetaU cTrcun stances.The é—
roh i ited activities include installation of--building
supports and foundations, paving, laying of underground pipe
work, construction of permanent storage structures, and
activities of a similar nature.
T e new policy has several advantages. First, it will
be easy to administer, since case—by—case determinations
will not be required. Horeover, it assures national consis-
tency and permits no abuse of discretion. Finally, it
appears to be the most legally correct position. The policy
has the undeniable disadvantage of allowing a good deal of

activity at. sites which nay be highly susceptible to envi—
ronmental impact. ‘ie feel that on balance, however, the
advantages of the policy outweigh the disadvantage.
If you have any questions, please feel free to contact
David Rochlin of my staff, at 755—2542.
Edward E. Reich
cc: Peter Wyckoff, OGC
Richard Rhoad.s, OAQPS
Linda Murphy, Region I
Ken Eng, Region II
3in Sydnor, Region III
Winston Smith, Region IV
Steve Rothblatt, Region V
Don Harvey, Region VI
Bob Chanslor, Region VII
Dave Joseph, Region VIII
Bill Wick, Region IX
‘1ike Johnston, Region X

?R 28 l9 Z
Federal Enforceability under PSD
FflOt h }Zathleen i. &enne /
A sjstant Administrator for A4tz ’/uoise and Radiation
Directors, Air & Waste t anagernent rivisions
Regions I—1V, VI—Vii , X
Directors. Air Management D1Vj5j 5
Regions V and IX
This. exuorand i8 prompted by a request for clarification of
the status cf the require e that to be cocnizable under P D fot
offset and applicability purposes, e iis8jofl lin1t&tj 0 z st be
federally enforceable.
On August 7, 19R0 , EPA published anendnents to the P5) and
2on—attaj ent regujatjor 5 which included a provision that
mjssjon limitations 1nust be federally enforceable in order to be
taken into account for offsets or applicability purposes. The
aliendinents went on to define federally enforceable as:
all limitations and conditjo 5 which are
enforcea e by the Adr iinictrator, including
those requireme developed pursuant to
40 CFR parts 60 and 61, requirements within
any applicable State Irrtplementatjon Plan, and
any permit requirements established pursuant
to 40 FR 52.21 or under regulations approved
purcuant to 40 crr 51.1c and 40 CFR 51.24.
(40 c 52.21(b) (17))
Under a petition for reconsideration of the Aucu t 7 rules,
which was submitted by several parties, this concept of fedcraliy
enforceable limitations was challenged, The petitioners
maintained that the requireLten of federally enforceable
limitations was unnecessary.
t : :::::: ::: : :
,. _ ki 2’ I-f/t(fO) 4,/p

T e ?cency decided to reconsider the re uire ent of fedcrally
cr.forccable eitissiOfl limitations. In a& ition to reconsidering
the issue, EPA temporarily stayed the federally enforceable
recuire c-ntS (see Fcdcral T cc ister July 15, 19E1). The stay
xFirCd on Cctobór , 1 E1 ar.c thc ?.dministrator declined
tension of the stay, thus once again requiring federally
..nforceablc crissiOfl lirritations.
At the present time, the amendments, as pub1ish d on
August 7, 19CC , are in effect and binding. The definition of -
federally €nforceablc still, stands: emission limitations must be
federally cnforceable in order to he taken into account for
offsets or PSD applicability. As to the definitien of federally
enforceable, the 7 gcncy continues to maintain the position that
operating permits not incorporated into a SIP under an approved
general bubble rule are not federafly enforceable.
During the past six months the gency has been in the process
of negotiating a settlement of the industry challenges to the
August 7, 19CC amendn ents, including the issue of Federal
The Agency has offered a settlement proposal, s’hich has been
accepted by the industry petitioners, that would change the
federally enforceable concept. EPA has agreed to propose
accepting emission limitations as creditable to the extent that
they are enforceable by either Federal, State or local
jurisdictions. The word ‘federally’ would be dropped from the
term ‘federally enforceable’ as usE d in the regulations. At the
same time the term ‘enforceable’ viii be defined as ‘enforceable
nder Federal, State, or local law and discoverable by the
dministratOr and any other person.’ This change will most likely
have the result of making operating permits acceptable for offsets
and applicability.
Changes in Federal enforceability, as well as other changes
that result from the settlement agreement, must go through general
rulemaking procedures. Rulemaking procedure will follow the
outline in the February 22, 1982 settlement agreement. Tt e
rulemaking ay also include some type of grandfatheriflg provisions
for the period of the temporary stay. The grandfathering
provisions may focus on the cai mencement of construction during
the period of the stay.
Please note that until the rulemaking processes are completed
the existing rules are still in effect. If any specific problems
concerning Federal enforceability and applicability arise,
questions should be referred to Ed Reich at 3S2—2807.

c i®
Procedures for EPA to Address Deficient New Source
Permits Under the Clean Air Act

_____ WASHINGTON D.C. 20460
SUBJECT: Procedures for EPA to Address Deficient New Source
Pernits Under the Clean Air Act
FROM: Mi: ael S. Alushin
Associate Enforcement Counsel for Air
Oft ice of Enforcement and ompliance Monitoring
Joh S. Seitz,
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
This memorandum transmits the final guidance for your use
in addressing deficient new source permits. After we distributed
the draft guidance for coram n’t on December 16, 1987, several
Reg on-. i Offices €ook áctio n on deficient new source permits.
The events surr’ unding those permit actions, as well-as your
thoLgh ul comments on the draft guidance, have shaped the final
We have inco poraeed most of your comments into the final
guidance e you requested, we have included examples of forms
showing’a request for- permit review under 40 C.F.R. Sl24.19, a
S167 order, and a StL3(a)(5) finding of violation.

Some commenters suggested that we include a section on
actions that- can be taken, not against the source, but against
the state issuing the deficient permit. We agree that this topic
Should be ncluded in the guidance because it surfaces repeatedly
in individual cases. Therefore, we have added a section on
possible actions against states for issuing deficient permits.
We have also clarified the guidance to indicate that EPA should
send a state written comments at both the draft and final permit
stage when a state is issuing what EPA considers a deficient
Some reviewers requested further elaboration of when to use
alternative enforcement responses. We have indicated relevant
considerations in determining which action to take. One commenter
pointed out that the guidance did not defiie what was meant by a
“deficient permit.” This involves a determination that requires
the exercise of judgment. However, we have tried to list most of
the criteria that will support a finding of deficiency. We
realize, however, that we may not have anticipated every deficiency
that may present itself to every Regional Office in the future.
Concern was expressed over the requirement to respond to a
deficient permit within thirty days. We realize that this is an
ambitious objective, but it is a legal requirement for permit
review under 40 C.F.R 5124, and greatly enhances EPA’S equitable.
position in challenges under 5167 and Sl13(a)(5). It will be
easier to meet this deadline if Regional Offices have routine
procedures in place for prompt receipt of all permits from their
states and for thorough review of permits as they are received.
A few commenters wanted the guidance expanded to apply to
“netting” actions and “synthetic minor” sources. We agree that
guidance in this area would be useful, but the topic is too broad
to be folded into the same document as the guidance on deficient
permits. We have begun work to address appropriate enforcement
action for improper “synthetic minors” in the context of the
Federal Register notice announcing the program for federally
enforceable state operating permits. If you think that separate
enforcement guidance is needed on this subject, please let us
Finally, a few reviewers questioned the guidance regarding
EPA directly iesued permits. We agree that, in all cases where
we find a deficiency, it is preferable to change the permit by
modifying its terms. If the source is amenable, we should do so.
However, if EPA cannot get the source to accept new permit condi-
tions, our only options are review under 5124.19(b), revocation
of the permit, and/or enforcement action. A S124.19(b) review
must be taken within 30 days after the permit was issued. The

regulations-are unclear on EPA’s authority to revoke permits.
In an enforceient action to force a source, involuntarily, to
accept a perait change when the source has not requested the change
or made any Iodifjcation to its facility or operations, EPA must
always keep in mind the litigation practicalitjes and equities.
These make enforcing against a permit we have issued when we are
not basing our action on any new information a difficult
We hope that this guidance will help EPA Regions act to
challenge deficient new Source permits. Many of the practices
advocated in this document may be litigated in pending or future
cases. We will amend the guidance as necessary in light of
judicial developments. If you have any qL estions, please contact
attorney Judith Katz at FTS 382—2843.
At tachmen
Regional Counsels
Regions i-x
Regional Counsel Air Branch Chiefs
Regionx I-X
Air and Waste Management Division Director
Region it
Air Management Division Directors
Regions i, iii, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions vu, VIII, and X
PSD Contacts
Regions r—x

Alan Eckert
Associate General Counsel
Greg Poote, 0CC
Gary MCCutchen
Ron McCallum
Chief Judicial Officer
David Buente, Chief
Environmental Enforcement Section

ii. I5
SUBJECT: Procedures for EPA to Address Deficient New
Source Permits Under the Clean Air Act
FROM: Michael S. Alushin
Associate Enforcement Counsel for Air
Office of Enforcement and Compliance Monitoring
John S. Seitz,
Stationary Source Compliance D sion
Office of Air Quality Planning and Standards
TO: Addressees
I. Introduction
This guidance applies to permits issued for major new
sources and major modifications under both the prevention of
significant deterioration (PSD) program and the nonattainment
new source review (NSR) program. it contains three sets of
procedures —— one for permits issued pursuant to EPA—approved
state programs (NSR permits and PSD permits in more than half
the states) one for permits issued by states pursuant to dele-
gations of authority from EPA, and one for instances where EPA
issues the permit directly. An appendix of model forms
appears at the end.
The need for this guidance has become increasingly evident
in the last two years. Before then, EPA had attempted only once,
in 1981, to enforce against sources constructing or operating
wiith new source permits the Agency determined to be deficient.
In 1986, EPA litigated Greater Detroit Recovery Facility v.
Adamkus et al . No. 86—CU—72910—DT (October 21, 1986). In that
case, EPA wanted to enforce against a major stationary source
constructing with a PSD permit issued by Michigan under a dele-
gation agreement with EPA. The Agency had first determined that
the best available control technology (BACT) determination for
SO 2 in the permit was inadequate. Before EPA started formal
enforcement action, the source filed suit against the Agency,

arguing that.. EPA had no authority to “second guess” the BACT
determination and that, in any event, we should be equitably
foreclosed froi challenging the permit because we had remained
silent during the two years since we had failed to comment on the
permit. The. Court agreed and granted the source’s motion for
summary judgment.
The Detroit case was an example of the need for prompt and
thorough EPA review of and written comments on new source permits.
Our ability to influence the terms of a permit, both informally
and through legal procedures, diminishes markedly the longer EPA
waits after a permit is issued before objecting to a specific
term. This is due both to legal constraints, that is, tight time
limits for comments provided in the regulations, and to equitable
considerations that make courts less likely to require new sources
to accept more stringent permit conditions the farther planning
and construction have progressed. Accordingly, as a prerequisLte
to successful enforcement action, it is imperative that EPA
review all major source permit packages on a timely basis and
provide detailed comments on deficiencies. If EPA does not
obtain adequate consideration of those comments, it is also
important for EPA to protect air quality by prompt and consistent
enforcement action against sources whose permits are found lacking.
Because PSD permits are issued on a case—by—case basis,
taking into consideration individual source factors, permitting
decisions involve the exercise of judgment. However, although
not an exhaustive list, any one of the following factors will
normally be sufficient for EPA to find a permit “deficient”
and consider enforcement action:
1. 3ACT determination not using the “top—down” approach.
2. BACT determination not based on a reasoned analysis.
3. No consideration of unregulated toxic pollutants in
SACT determination.
4. Public notice problems — no public notice & comment
period or deficiencies in the public notice.
5. Inad.guate air quality modeling demonstrations.
6. Inad.quate air quality analysis or impact analysis.
7. Unenforceable permit conditions.
8. For sources that impact Class I areas, inadequate
notification of Federal. Land Manager or inadequate
consideration of impacts on air quality related
values of Class I areas.

In NSR permitting, each of the following factors, while riot
necessarily an exhaustive list, are grounds for a deficient
1. Incorrect LAER determination, i.e., failure to be at
least as stringent as the most stringent level achieved
in practice or required under any SIP or federally
enforceable permit. -
2. No finding of state—wide compliance.
3. No emissions offsets or incorrect offsets.
4. Public notice problems — no public notice and comment
or deficiencies in public notice.
5. Unenforceable permit conditions.
II. Timing of EPA Response
A. Comment
Although EPA should know about every permit, at least by the
time it is published as a proposal, the Agency sometimes does not
learn about a permit during its development prior to the time the
final permit is issued. If we do become aware of the permit and
have objections to any of its terms, we should comment during the
developmental stage before the permit becomes final.
State agencies should send copies of all draft permit public
notice packages and all final permits to EPA immediately upon
issuance. (The requirements for contents of public notice packages
are set forth at 40 C.F.R. S5l.l66(q)(2)(iii).) The Regional Office
should review all draft permit public notice packages and final
permits during the 30 day comment periods provided for in the
federal regulations. it should write detailed comments whenever
Agency staff does not agree with the terms of a draft or final
permit. To make sure they get permits in time for review, Regional
Offices should consider requiring states with approved new source
programs, through Section 105 Grant Conditions, to notify them of
the receipt of all major new source permit applications. They
should also require states to send them copies of their draft
permits at the beginning of the public comment period.
Final permits should be required to be sent to EPA immediately
upon issuance. (Note that the requirement for Regions to review
draft and final permits is contained in guidance issued by Craig
Potter on December 1, 1987.) Regions should carefully check
their agreements with delegated states. These agreements require

states to send draft permits to EPA during the comment period.
In addition, 40 C..P.R. S52.2l(u)(2)(ii) requires delegated agencies
to send a copy of any public comment notice to the appropriate
regional office. Pursuant to 40 C.F.R. S124.15, a final permit
does notbecoae effective until 30 days after issuance, unless
there are no comments received during the comment period, in
which case it becomes effective immediately. Regions should make
sure that delegated states know about permit appeal proceduresat
40 C.F.R. S124 and, if necessary, issue advisory memoranda
notifying them that EPA will use these procedures if the Agency
determines a permit is deficient.
B. Formal Enforcement Action
If the permit was issued under a delegated program, it is
important to initiate formal review or appeal within 30 days after
the final permit is issued. (This response is set forth in
Section IV below. The 30 day period is required by the regula-
tions at 40 C.F.R. 5124.19). When enforcing against permits
issued under state programs, the same legal requiremer t to initiate
enforcement within 30 days does not exist, but it is still
extremely important to act expeditiously.
III. Enforcement Against the Source v. Enforcement Against
the State
If a state has demonstrated a pattern of repeatedly issuing
deficient permits, EPA may consider revoking the delegation for a
delegated state or acting under Section 113(a)(2) of the Act to
assume federal enforcement for an approved state. It is not
appropriate to issue a 5167 order to a state. Revocations of
delegated authority as to individual permits and revocations of
actual permits are theoretically possible, but they are unneces-
sary where EPA can act under Part 124 (i.e. within 30 days of
issuance). Revocation may be appropriate where Part 124 appeals
are unavailable, but likely will be subject to legal challenge.
IV. Procedures tO Follow When Enforcing Against
Deficient Permits in Delegated Programs
A. If possible, the following actions before construction
co ences:
1. Take action under 40 C.F.R. 5124.19(a) or (b) within
30 days of the date the final permit was issued to
review deficient provisions of the permit.
a. S124.19(a) is an appeal, which may be taken by
any person who commented during the public comment

- b. S124.19(b) is a review of the terms of the permLt
by the Administrator under his own initiative.
Regional Offices informally request the Admini-
strator to take this action. They need not have
commented during the public comment period. The
Administrator has demonstrated a preference for
using S124.19(b) over S124.19(a). In the four
instances thus far when he was given the choiee
of acting under (a) or (b), he chose (b). However,
the Administrator may not have sufficient time to
act within 30 days in every situation in the
2. In the majority of situations, it is more appropriate
for the Agency to act as one body to initiate review
under 5124.19(b). In some instances, however, the
third party role for a Regional Office, through 40
C.F.R. Sl24.19(a) may be preferable. Regions should
pick (a) or (b). However, if both provisions are
legally available, they should request, in the
alternative, that the Administrator act under the
provision other than the one chosen by the Region
should he deem it more appropriate. In particular,
if a Region requests the Administrator to act under
5124.19(b), it should ask that its memorandum be
considered as a petition for review under Sl24.19(a)
should review under S124.19(b) not be granted within
30 days. This is to protect the Regions’ right to
appeal a permit if the Administrator does not have
sufficient time to act. Therefore, all memoranda
requesting review should be written to withstand
public scrutiny if considered as petitions under
3. If the 30 day period for appeal has run and strong
equities in favor of enforcement exist, issue a S167
order ‘and be prepared to file a civil action to
prohibit commencement of construction until the
source secures a valid permit. (See Section IV B(2))
B. For eources where construction has already commenced:
1. If the permit was issued less than 30 days previously
take action under 40 CPR S124.19.
2. If the permit was issued more than 30 days previously,
issue a 5167 order requiring immediate cessation of
construction until a valid permit is obtained. This

- step should only be taken if extremely strong equities
in favor of enforcement exist. Regions should be
keeping 8tate and source informed of all informal
efforts to change permit terms before the S167 order
is issued. S167 orders may be used both for sources
- which have and have not commenced construction.
However, because the Sl24.19 administrative appeal
and review process is available in delegated programs,
it is greatly preferred for challenging deficient
permits in states where it can be used.
3. If EPA determines that penalties are appropriate,
issue a NOV under Section l13(a)(l) of the Act for
commencement of construction of a major source or
major modification without a valid permit. This is
necessary because S].67 contains no penalty authority.
Note that strong equities for enforcement must exist
before taking this step. EPA can issue both a S167
order requiring immediate injunctive relief and a
NOV if we decide that both are appropriate.
4. Follow Up with judicial action under S167 and S113(b)(2)
if construction continues without a new permit.
C. Note that the appeal provisions of 40 C.F.R. S124.19 -
apply to all delegated PSD programs even if S124.19
is not specifically referenced in the delegation.
V. Procedures to Follow When Enforcing Against Permits in
EPA—Approved State Programs (All NSR and More Than
Half of the PSD Programs )
A. Issue 5l13(a)(5) order (for NSR) or 167 order (for
PSD) as expeditiously as possible, preferably within
30 days after the permit is issued, requiring the
source not to commence construction, or if already
started, to cease construction (on the basis that it
would be constructing with an invalid permit), and to
apply for a new permit. Note that EPA should issue
a S167 order if it has determined that there is a
reasonable chance the source will comply. Otherwise,
the Region should move directly to section V.D below.
8. ?roa the outset of EPA’S involvement, keep the
source informed of all EPA’S attempts to convince
the permitting agency to change the permit.
C. Issue an NOV (113(a)) as soon as construction commences
if EPA determines penalties are appropriate.

D. If source does not comply with order, follow up with
judicial action under S167, S113(b)(5), or, if NOV
issued, S113(b)(2). If penalties are appropriate,
issue ov and later amend complaint to add a S113
count when 30 day statutory waiting period has run
- after initial action is filed under S167.
v i. For EPA—issued Permits (Non—delegated )
A. If source submitted inadequate information
(e.g., misleading, not identifying all options)
and EPA recently found out about it,
1. If within 30 days of permit issuance, request
review by the Administrator under 40 C.F.R.
S124. 19(b).
2. If permit has been issued for more than 30 days,
issue S167 or Sl13(a)(5) order preventing start-
up or, if appropriate, immediate cessation of
3. Issue NOV if construction has commenced and EPA
determines penalties to be appropriate.
4. If necessary, request additional information from
source; if source cooperates, issue new permit.
5. Consider taking judicial action if appropriate.
EPA recognizes the distinction between permits based on
faulty and correct information only for EPA directly—issued
permits. This distinction is necessary for EPA permits due
to ecuitable considerations.
B. If source submitted adequate information and EPA
issued faulty permit, we should attempt to get source
to agree to necessary changes and accept modification
of its permit. However, if source will not agree,
only available options are revoking the permit and
enforcing. Consolidated permit regulations are
unclear about EPA’S authority to revoke PSD permits.
Because of this and the equitable problems associated
with enforcing against our own permits, unless new
information about health effects or other significant
findings is available, we may choose to accept the
permit. If faulty permit produces unacceptable
environmental risk, act under 40 C.P.R. S124.19, i.f
possible. If action under 40 C.F.R. S124.l9 not
possible, first revoke permit and then act as set
forth in Section IV.

Addressees: -
Regional Counsels
Regions I—X
Regional Counsel Air Contacts
Regions I—X
Air arid Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions Iv and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
PSD Contacts
Regions I—X
Alan Eckert
Associate General Counsel
Greg Foote, OGC
Gary McCutchen
Ron McCallum
Chief Judicial Officer
Bob Van Heuvelen
Environmental Enforcement Section
Department of Justice
David Buente, Chief
Environaental Enforcement Section
Department of Justice

1. Request for Review under 40 C.F..R.S124.19
2. 5167 Order
3. S113(a ( ) finding of violation and accompanying S113(a)(1)
Notice of violation

DATE: W W • £ I I
Request for Administrator to initiate Review of -
SUS CT PSD Permit for Cam en County Resource Recovery Facility.
FROM: Region a Ad Le 7 -
TO: Lee 14. Thomas
Ad m in Is t rat or
I am requesting that, pursuant to 40 C.F.R. 124.19, you
review the PST) portion of the air pollution permit issued
to Camden County Energy Recovery Associates for construction
of the Camden County Resource Recovery Facility in Camden,
New Jersey (CCRRF). The failure of the New Jersey State
Department of Environmental Protection (DEP) to include an
emission limit for PM 10 in the permit, to address BACT
adequately for PM 10 and to provide for public comment on PM 10
as a PSD affected pollutant are grounds for reviewing the DEP’s
actions in issuing the permit and for staying the effect ,tve —
ness of the permit until all PSD requirements have been
met. As explained below, if you agree that review of this
permit is appropriate, you will have to notify the permittee
by January 11, 1988, that you are initiating review of the
PSD portion of the permit.
This permit was issued under various authorities including
EPA’s PS ) permit authority, 40 C.F.R. 52.21, which is dele-
gated to DEPS Due to the promulgation of the new NAAOS for
PM 10 on July 1, 1987, the emissions of particulate matter
from the CCRRF became subject to the PSD rules. Particulate
matter was not previously subject to PSD because the area
was classified as nonattainment for the now withdrawn NAAOS
for total suspended particulate (TSP). My staff has
concluded that the permit and the permit review procedures
do not adequately address PM 10 under the applicable PSD
DEP was aware several months before it issued the permit
that the new PM 10 NAAQS for particulate matter would require
PSD review. Nevertheless, the permit does not include an
emission limitation for particulate matter expressed as
PM 10 emissions ir the facility. Also, the analysis of the
control technology fails to demonstrate that the system
selected would provide the best degree of emission control
currently available for PM 10 particulates. Finally, there is
a procedural problem with the permit as well. DEP did not
provide notice and an opportunity for the public to comment
on the PM 10 aspect of the permit, contrary to the regulatory
requirements and the express advice of Region II.
PM 1320-1

The Delegation of PSD Authority to DEP
EPA Region II delegated PSD new source review authority to
DEP pursu&nt to 40 C.PIR. 52 .21(u). The PSD permitting
authority delegated to the DEP is not restricted in any
way. The delegation is general in nature and includes all
PSD requirements as they are from time to time revised by
Applicability of PMi Requirements to CCRRF Permit
The application for the CCRRF air pollution control permit
was submitted on April 30, 1986. The DEP required the
application to be augmented until the application was
considered complete and the DEP noticed the permits for
public comment on April 28, 1987. A publi’ hearing was
held on May 28, 1987, in Camden, New Jersey, and the public
comment period ended on June 12, 1987.
PSD requirements are applicable to this permit for particulate
matter because it is not in the class of permits and permit
applications that are covered by the grandfatherjng exemptions.
of the PM 10 promulgation. No PSD application addressing partic-
ulate matter was submitted for the CCRRP before July 31, 1987T.
At the time of the notice period, the facility was required
to undergo preconstruction review under the SIP for TSP
because the area was nonattainment (secondary) for TSP but
Federal and State permits were not issued until December 7,
1987. Only Sources with PSD applications for particulate
matter or with all Federal and State preconstruct ion approvals
or permits before July 31, 1987, are exempt from PSD review
for PM 10 . See , 40 C.F.R 52.21(c)(4)(ix) and (x) (52 Fed .
.f.Z.• 24714, July 1, 1987).
We reminded the DEP, both orally and in writing, of the need
to satisfy the PSD requirements at 40 C.F.R. 52.21 for
sources of particulate matter as a result of the PM 10 pro-.
mulgation. The DEP was informed that the CCRRF was not
grandfathered and required additional PSD review to account
for PM 10 .
BAC’I’ Emission Limit Necessary for PMi
The permit has no emission limitation for PM 10 . BAC’T is, by
definition, an emissions limitation rather than merely specified
types of equipment. 40 C.F.R. 52.2](b)(12). (The only exception
is when there are technological or economic limitations on the
application of measurement methodology.) Clearly the grand—
fathering provisions were meant to limit the class of major new
sources for which the particulate emission limit is expressed

as TSP under the Clean Air Act. Without an express limit
on PM 10 as a permit condition, we are concerned that there
will be no sufficiently stringent, enforceable limit on
particulate matter for this facility.
Even if the difference between the actual rate of particulate
matter emissions smaller than 10 microns in size occuring as -
a result of the TSP limit now in the permit and the PM 10
limit that should be in the permit proves to be small or
nonexistent, failing to correct this permit will leave a
muddled and uncertain basis for future enforcement. EPA
regulations clearly require that particulate matter emissions
be addressed under the PSD regulations for this permit and
that an emission limit be expressed in terms of PM 10 .
Region 11 is concerned that a TSP emission limit in an instance
where PM 10 was the PSD regulated pollutant may be unenforceable
especially in light of EPA’s conclusion that the NAAQS which
triggers PSD for particulate matter in the case of CCRRF’s
permit is the new PM 10 NAAQS. See , 52 Fed. Reg. 24694.
The State BACT Analysis
The DEP’S Rearing Officer found that there is no predictable
difference between a baghouse and an electrostatic precipitator
(ESP) with respect to PM 10 collection efficiency and, there—
f ore, concluded that the ESP determined adequate for TSP is
also adequate as BACT for PM 10 . Region II considers the
BACT analysis by which the DEP reached its conclusion to be
unacceptably thin in its review of available data. The
only analysis which appears to be available is in a report
submitted by letter from the permittee dated November 16,
1987, responding to a November 2, 1987, request from DEP.
Our review of the BACT analysis shows that it is incomplete
and an inadequate basis for making necessary technical
judgments. Some questions are so fundamental that we
cannot make meaningful technical comments. For example:
1. What are the sources of the engineering
and economic data?
2. Why is there no comparison of the particulate
size and garbage characteristics at the
cited facilities and what is anticipated
3. What were the test methods employed in
obtaining the emissions data from the
cited failities?
4. Why were three United States facilities
referenced but not considered in the
analysis? I

5. Was the removal efficiency data based
a system comparable to CCRRP’s which
includes a dry scrubber before the
electrostatic precipitator or baghouse?
These are just some of the questions that we have and which
we would normally review with a PSD permit applicant before
public comments are solicited. itb the date of the submission
being November 16, 1987, and the permit issuance date being
December 7, 1987, we do not believe that any meaningful
questioning of the permittee’s analysis was done by the
DEP. The mere three weeks between the submission of the
report and permit issuance did not allow the Region a
meaningful opportunity to resolve EPA concerns.
Public Comment on PMin PSD Review
In early November. 1987, DEP informed Region II that it had
completed the necessary PSO analysis for PM 10 but needed to
issue the permit with little or no time for a. public comment
period with respect to PM 10 because of an impending financing
deadline. On the basis of DEP assurances that PM 10 bad
been adequately addressed, Region II staff suggested to DEP
staff that DEP might be able to justify a shortened public
comment period, but emphasized that an opportunity for
public comment to review the PM 10 analysis was necessary.
(EPA’S OGC and OAQPS orally concurred with Region II ’s pos-
ition.) DEP acknowledged the need for public comment and
agreed to follow appropriate, but shortened, procedures.
Region II received a copy of and began to review the
permittee’s November 16, 1987, submission. pith no notice
for public comment and no further notice to EPA, DEP issued
the air permits to CCRRF along with SPDES and solid waste
permits on December 7, 1987.
Region II’s advice with respect to the comment period
assumed adequate treatment of PM 10 under PSD requirements.
Having subsequently reviewed the BACT analysis and the
permit itself, we now believe that these do not meet the
require nt$ of PSD and any reason to allow less than 30
days for public comment on the PM 10 analysis would be
I am asking that you initiate review of the CCRRF permit
with respect to compliance with PSD review procedures
applicable to PM 10 . Specifically, the review should address.
1. The fail9re to include BAC’T expressed as a PM 10
emission limit in the permit.

2. The adequacy of the review of available technology
in establishing BAC’r.
3. The failure to provide for public comment regarding
the PM limitations.
A Decanber 1, 1987, memorandum from Craig Potter, Assist&nt
Administrator for Air and Radiation, calls for regional offices
to monitor state compliance with preconstruction reviews to
prevent instances such as this. We have done so in this case
but were not consulted by the DEP when it decided to reject
EPA’s direction and issue the permit. We expect that the DEP
and the permittee will correct this action rather than go
through the entire review process but the issuance of the
permit leaves us with no choice but to seek to commence review
to prevent the action taken by DEP from becoming final action.
We are prepared to continue working with the DEP to act on the
permit expeditiously should the DEP and the permittee agree to
remedy the deficiencies discussed above. We have also explained
to the DEP that, if appropriate, Region II could request a stay
of EPA’s permit review proceedings in the interim. In this
regard, the DEP has contacted Region It and is exploring ways
to take valid legal action on their own which would eliminate
the need for you to act on this request for review b January ii.
If the DEP should take such action, we will notify you immediat -
I request that you alert me before you issue an order under
S124. 19(c).
Procedures and Time Limitations
We are concerned that review procedures be initiated within
the time period allowed by the regulations, 40 C.F.R. Part 124,
so that we are not foreclosed from raising these important
issues. Under S124.19(a) if this is construed as a petition
for review, the petition must be filed within 30 days of service
of the notice by the DEP of its final permit decision and the
Administrator must issue an order granting the review within a
reasonable time. S124.19(c). If for any reason you determine
that S124.19(a) is not the proper procedure, we would request
you to initiate review on your own initiative under S124.19(b),
which appears to require you to act within the initial 30 days.
Based on the issuance of the permit on December 7, 1987, we
calculate that the 30 day period from the issuance of the
permit will end on January 11, 1988. Pursuant to S124.20(a),
the time began to run on the day after permit issuance. Since
service of the DEP notice was by mail, we have added three days
to the prescribed time in accordance with S124.20(d). The
thirty—third day after December 7, 1987, is January 9, 1988,
which is a Saturday, and S124.20(c) provides that the time
period is extended to the next working day which is Monday,
January 11, 1988k If this is construed as a review on your

own initt tjve, notice must be given by this date and we reco nend
that nctice granting review in either case be provided by
January 11, 1988.
The regional Office filed comments on the draft permit
within the DEP’g public comment period. See , Hearing
Officer’s Report, December 7, 1987, Appendiji B. e construe
the definition of person in S124.41 to include an EPA
regional office. Therefore the Region, as a person who filed
comments, is a proper party to file a petition for review under
S124. 19(a).
By whichever means review is initiated, the review procedure
is intended to prevent raising facts or issues on appeal that
were not raised in the public comment period. See , 45 Fed .
3341]., Col. 3 (May 19, 1980). Section 124.19(a) r ires
a statement that the issues being raised for review were raised
during the comment period to the extent required by Part 124.
A person’s obligation is to “raise all reasonably ascertain-
able issues and submit all reasonably available arguments
by the close of the public comment period.” S124.13.
The issues raised herein were not required to be raised earlier
since these issues could not have been known at the time the
comment period closed on June 12, 1987. Indeed, we had advised
the DEP that a public comment period should be provided so that
public comments could be received on the PM 10 permit decision.
Notice of the initiation of the review procedures should be
sent to:
Mr. Robert Donahue
Pre s ide n t
Camden County Energy Recovery Associates
110 South Orange Avenue
Livingston, New Jersey 07039
Mr. Richard T. Dewling
Commi ssioner
New Jersey State Department of
Environmental Protection
401 East State Street
Trenton, New Jersey 08625
Mr. Gary Pierce
Bureau of Engineering and
Regulatory Development
Division of Environmental Quality
New Sersey State Department of
Environmental Protection
401 East State Street
CN- 027
Trenton, New, Jersey 08625

Enclosed are copies of the following documents upon which this
request is based:
December 7, 1987 -
December 7, 1987 -
3. Letter from Robert F. Donahue, President, Camden
County Energy Recovery Associates to Jorge H.
Berkowitz, New Jersey State Department of Environmental
Protection, Subject: Camden County Resource Recovery
Facility PM 10 BACT Analysis, with enclosure
November 16, 1987
Enclosures (3)
cc: Thomas L. Adams, LE—l33.’ ’
Francis S. Blake, LE—130
J. Craig Potter, ANR—443
Ronald L. M Callum, A-lO1

In the matter oF
AIR ACT, AS AMEHflED, 42 U.S.C. 57477
This Administrative Order is issued this date by the
Re jona1 Administrator, Ret ion IV, United States Environmental
Protection Anency (EPA), pursuant to Section 167 of the Clean
Air Act (the Act), 42 U.S.C. 57471.
1. The NRC/Recovery Oroup, Inc., proooses to construct and
onerate a Lake County Wacte to rnerqy Facility (Lake County)
in Okahumpka, Lake County, Florida. The Lake County facility
will consist of two mass hurr incinerators which will each
incinerate approximately 2 () tons per day of municipal solid
waste. ThWse incinerators will be fueled with a combination
of municipal solid waste and wood chips. These incinerators
will emit particulate matter, sulfur dioxide (502), nitroneri
oxides, carbon monoxide, volatile organic compounds, lead,
ery 1iu- , fluoride, sulfuric acid mist, mercury, dioxins,

dibenzofurans, and hycrogen chloride. All o t.
mentioned pollutants are regulated by the Act toxu ,,
dibenzoturans, and hydrogen chloride.
2. The area of construction of the Laki? niy Waste to
Energy Facility is located in an attainment- are i or all
pollutants regulated by the Act. [ 40 Code ot Federal Regulations
(C.F.R.) §81.310] The facility is considered a major stationary
source Decause its potential emissions (which are subject
to regulations under the Act) ar above the Prevention ot
SigniLicant Deterioration (PSD) of Air Quality threshold
level. Consegutntly, this facility is regulated under the
PSD rules and regulations.
3. On March 11, 1986, the NRC/Recovery Group applied to
the ‘loriua Department ot Environmental Regulation (DER) ror
a PSU permit to construct anu operate two 250 tons per aay
municipal solid waste energy recovery units at its Lake County
racility located on Jim Ro’ ers Road in Okahumpka, Florida,
pursuant to the Florioa State implementation Plan (SIP)
[ Florida Administrative Code (F.A.C.) Rule 17—2.500 et seq.]
4. On May 20, 1986, in response to said PSD application,
the Florida DER issued a Preliminary Determination which
contained, in the State’s judgment, the Best Available
Control Technology (BACT) for the proposed incinerators.
The BACT Determination contained emission limits for all
applicable pollutants regulated by the Act and contemplated
that a oaghouse (to control particulates) in combination

with a scrubber (to control acid gases) constituted BAC .
5. On 3uly 2, 1986, EPA notified the Florida DER that
the SO 2 emission limit contained in the Florida DER B. CT
Determination may not adequately reflect BACT (i.e., pro 1 od
SO 2 emission limit not sufficiently stringent) and that the BACT
Determination should also consider the effect of controlling
SO 2 on unregulated pollutants such as hydrogen chloride and
dioxin. Furthermore, EPA informed DER that it was EPA policy
that the control of nonregulatecl air pollutants may be
considered in imposing a more stringent BAd limit on regulated
pollutants, if there is a reduction in the nortregulated air
pollutants which can be directly attributed to the control
device selected for the abatement of the regulated pollutants.
6. On August 15, 1986. DER issued a second PSD Prelir’ ary
Determination with a modified BACT fletermination. The modified
BACT Determination no longer contained the requirement for ac:d
gas controls, but only required that the applicant leave
space for the acid gas control equipment in he event there
would be a future state rule change for resource recovery
facilities. Removal of the requirement to employ acid gas
control meant the modified BACT Determination could not
adequately address EPA’s concern about a more stringent SO 2
emission limit.
7. on September 19, 1986, EPA notified DCR that EPAI wac
not persuaded by Lake County’s contention that municipal
solid waste incineration with acid qas control is not

economically feasible.
8. On September 24, 1986, the Florida DER issued its
Final Determination and PSD permit to the NRC/Recovery Group
for the proposed Lake County facility. The Final Determination
and State PSD permit did not require the installation of acid
gas control.
9. On October 23, 1986, EPA notified the Florida DER
that EPA did not concur with DER’s Final Determination
regarding the issue of BACT. EPA recommended that the Final
Deterr’ ination and the Florida DER nermit be reissued with a
BACT Determination which reflects state—of—the—art technology
(•acid gas control and more stringent emission limitations
for particulate matter and SC) 2 ).
10. On January 30, 1987, EPA—Region IV prepared an
indepenc1er t BACT analysis, which varied from DER’s Final
Deternination, in that it contained “tore stringent emission
limitations for particulate ,..matter and SO 2 (achieved through
the use of hiQh efficiency particulate emission and acid
gas controls).
11. On February 11, 1987, EPA notified Florida DEP. that
the DER PSD permit issued to the NRC/Recovery Group for the
Lake County facility on September 24, 1986, was deficient and
that EPA may initiate appropriate enforcement action against
the Lake County facility to prevent or delay the construction
of the facility.
12. On February 11, 1987, EPA notified the NRC/Recovery

— —
Group that the Florida DCR PSD permit was ceticient and that
unless the DER PSD permit was modified to reflect what CPA
considers BACT, EPA may initiate appropriate enforcettent
action to prevent or delay the construction of he tacility.
1. The Administrator of the EPA pursuant to his authority
un er Secticn 109 ot the Act, 42 U.S.C. §7409, promulgated
National Primary and Secondary Ambient Air Quality Stancarcis
(NkAQS) for certain criteria pollutants, including total suspenaei
particulate matter, sul ur oxides ($02), nitrogen oxides,
carbon monoxiue, ozone, and lead. (40 C.F.R. SS5U.4 — 50.12)
2. Pursuant to Section 110 of the Act, 42 U.S.C. 7410,
tne Aaministrator of EPA, in 45 Federal R 2ister 52b76
(. uçust 7, 1980), prornu1gat d amended regulations for PSD
in areas where the existing air quality is better than
saici ambient stanaarcjs and ncorporated said regulations
into trie various implementation plans ot each state. The
relevant regulations are coditieø at 40 C.F.R. §51.24.
3. The Florida SIP contains federally approved PSD
regulations, based on the above—reterenced PSD regulations,
for such attainement or 1 clean airN areas. (F.A.C. Rule
17—2. 500)
4. The area ot construction for the Lake County Waste to
Energy facility is an attainment area tor NAAQS for all
pollutants. (40 C.F.R. §81.310)

5. 4RG/Recovery Group is the owner and operator or the
major emitting resource recovery facility in Lake County,
Florida, and proposes to construct at that site pursuant
to the PSD permit issued to the Lake County Waste to
Energy facility by Florida DER on September 24,. 1986.
6. EPA finds the Florida DER PSD permit issued to
the Lake County Waste to Energy facility to be deficient
in that it rails to require the installation of acid
gas control. The Florida DE< PSD permit also fails to
require more stringent emission limitations for particu-
late matter and SO 2 . lhese deficiencies invalidate the
State—issued PSD permit.
7. The construction of the Lake County Waste to
Eiergy tacility pursuant to an invalid permit will violate
Section l 5(a) or the Act, 42 U.S.C. §7475(a), and 40 C.F..R.
§51.24. Consequently, the issuance of this order, pursuant
to Section 167 of the Act, ¶2 u.s.c. 57477, is requlreJ
to prevent such construction.
8. ihe authority of the Administrator ot EPA pursuant
to 5113(a) of the Act, 42 U.S.C. 57413(a), to make findings
of violation of the Florida SIP, to issue notices ot violation
and to conter with the alleged violator has been delegated,
first, to the Regional Administrator (earlier delegation
consolidatco to Delegations Manual, No. 7—6 (July 2S, 1964)]
and second, to the Dir&ctor, Air, Pesticides, and Toxics
Mar ager ent Division, Region IV [ earlier delegation consolicatec

in Region IV Delegation Manual, No. 4—2 (March ib, 1985)].
9. The authority of the Administrator ot EPA to issue
orders pursuant to Section 167 of the Act, 42 u.s.c. §7477, -
was delegated to the Regional Administrator [ earlier delegation
consolidated to Delegations Manual, No. 7—38 (July 25, 1984)).
The Regional Administrator, Region IV, has also consulted
with the Associate Enforcement Counsel for Air and the Director
of the Stationary Source Con pliance Division pursuant to
deleaation requirement.
Consequently, based upon investigation and analysis of
all relevant tacts, including any good taith ettorts to
comply, and pursuant to Section 167 of the Clean Air Act,
42 U.S.C. §7477, the NRG/Recovery Group, Inc. (Lake County
haste to Energy facility), is hereby ORDERED:
1. etfective immediately upon receipt ot this Order,
not to Coramence any on—site construction activity ot a
permanent nature on its two 250 tons per day unic1pai solia
waste energy recovery units, including, but not limited to,
installation of building supports and foundations, paving,
laying of underground pipe, construction of permanent storage
structures and activities ot a similar nature.
2. not to commence any on—site construction activity
until it has received a Prevention of Significant Deterioration
(PSD) permit and Final Determination that incorporates all

ti requirements for PSD pursuant to aria in accorcance with
tht provisxons Ot Part C, Subpart 1 ot the Clean Air Act, as
amended, 42 V.S.C. S7470 et. the regulations promulgated
thereunder at 40 C.F.R. S51.24 and/or the regulations of the -
federally enforceable Florida State Implementation Plan, Rule
17—2.500 of the Florida Administrative Code, and Chapter 403
at the Florida Statutes including EPA’s Best Available Control
Technology analysis, dated January 30, 1987 (which addresses
acia gas control aria more stringent emission limitations tar
sulrur dioxide and particulate matter), and;
. to submit, no later than ten (10) days atter receipt
ot this Order, certirication that the prohibition in paragraph
one (1) at this Order has been observed ana will continue to
be observed until thc permit referenced in paragraph two
(2) ot this Orcer has b n issuea. ‘Such certi 1cation
snail De suDmitted to;
Winston A. Smith, Director
Air, Pesticides, aria Toxics
Management Division
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347—3043
JUN 3 1987 ( 7 L1
Date Jack E. Ravan
Regional Administrator

Indiana Depertment of Environmental ) FINDING OF VIOLATION
Management ) EPA-5—86—A-So
St. Joseph County Health )
Department )
Air Pollution, Permit to Operate )
Dated February 6. 1986, to )
A.M. General Coporation )
SECTION 113(a)(5).OF THE )
( 42 U.S.C. Section 7413 (a))
On February 6, 1986, the St. Joseph County Health Uepartment, as
duly authorized delegate of the State of Indiana, Issued a permit to
operate several air pollution sources operated by AM General Corporation-
located at 13200 McKinley, Mishawaka, Indiana.
For reasons set forth below, the Administrator finds that the permit
to operate, issued by the St. Joseph County Health Department on February 6,
1986, to AM General Corporation, (AMG) failed to comply with the requirements
of Indiana Air Pollution Control Regulation APC-19 Section 4 and 8 that the
St. Joseph County Health Department, as duly authorized delegate of the
State 0 f Indiana, did not act In compliance with those requirements.
The permit to operate issued by St. Joseph County Health Department on
February 6, 1986, to AM General Corporation increased the Volatile Organic
Compounds (VOC) emissions from 197.3 tons per year to 377.0 tons per year.
This VOC emission increase of 179.7 tons pe’r year allowed to *11G. subjects
the facility to Regulat:on APC—19.

regulation APC.19Sectfon 4 b(4) requires any person proposing the
construction, modification or reconstruction of a major facility which will
impact on the air quality of a nonattainment area or which will be located
in a nonattainment area, shall comply with the requirement of Section 8 of
this regulation, as applicable.
Regulation APC—19 Section 8 requires the same person to demonstrate
along with other requirements:
(1) Increased emissions of the pollutant are to be offset and
are equal to 90 percent or less of the offsetting emissions.
(2) Application of emissions limitation devices or techniques
such that the Lowest Achievable Emission Rate (LAER) for
the pollutant will be achieved.
This document serves as notification that the Administrator, by duly
delegated authority, has made a finding under Section 113(a)(5) of the Clean
Air Act, as amended, 42 U.S.C 7413(a)(5), and is served on both the State
of Indiana and Its delegate, the St. Joseph County Health Department, as
well as AM General Corporation to provIde an opportunity to confer with
the Administrator prior to initiation of a civil action pursuant to Section
113(b)(5). By offering the opportunity for such a conference or participating
in one, the Administrator does not waive his right to coninence a civil action
imediately under Section 113(b).
Date:__ 19
David Kee, flirector
Air Management flivislon

In the Matter of:
Proceedings Pursuant to )
Section 113(a)(1) of the )
Clean Air Act, as amended )
[ 42 U.S.C. Section 7413(a)(1)] )
This Notice of Violation Is Issued pursuant to Section 113(a)(1) of the
Clean Air Act, as amended, [ 42 U.S.C. Section 7 413(a)(1)]; lereafter
referred to as the Act .
The Administrator of the United States Environmental Protection Agency
(U.S. EPA), by authority duly delegated to the undersigned, finds:
1. Indiana Air Pollution Control Board (IAPC B) Regulation
APC—19 dealing with °ermits, P50, Emission Offsets, Is
part of the applicable implementat1 n plan for the State
of Indiana approved by U.S. EPA on February 16, 19R2,
at 47 Federal Register 6621 and establish operating and
construction permit requirements pertaining to AM General
Corporation’s facility located at 13200 MckInley Highway,
Mishawaka, IndIana.
2. As indicated more specifically below:
AM General Corporation (AMG) operates a miscellaneous metal part
coating facility In Mishawaka, Indiana which Is In violation
of IAPCB regulation APC-19 as given below:
(a) On February 6, 1986 AM General Corporation was Issued a
permit to operate, by St. Joseph County Health Department.
This permit to operate allows ANG, to Increase Its volatile
organic compounds (VOC) enisslons from 197.3 tons per year
to 377 tons per year. This VOC emission increase of 179.7
tons per year allowed to ANG subject the facility to IAPCR
regulaton APC—19.
(b.) This perl:t to operate Issued to AMG, faIled to comply
with t e. j rements of IAPCR regulation APC.19, SectIon
4 and

(1) the applicant did not apply emission limitation
devices or’ technIques Such that the Lowest
Achievable Emission Rate (LAER) for VOC was
not achieved.
(ii) the increased VOC emissions were not offset by
a reduction In VOC emission by existIng facilities—.
The Administrator of the U.S. EPA, by authority duly delegated to the under-
signed, notifies the State of Indiana and the AM General Corporation, that
the facility described above is in violation of the applicable implementatIon
plan as set forth In the Finding of Violation.
David Kee, flirector
Air Management Division

c m I®
Guidance on Limiting Potentia’ to Emit in New
Source Permitting

SUBJECT: Guidance on Limiting Potential to Emit in Ne Source
FROM: dL 7’
Associate Enforcement Counsel
Air Enforcement Division
Office of Enforcement and Compliance onitoring
John S. Seitz, Director
Stationary Source Compli e Division
Office of Air Quality Planning and Standards
TO: Addressees
This memorandum transmits the final guidance on conditions
in construction permits which can legally limit a source’s
potential to emit to minor or de minimis levels. We received
many helpful commeflts on the January 24, 1989 draft of this
guidance, and have incorporated the comments into the final
document wherever possible. A summary of the major changes which
have been made to the guidance in response to these comments is
provided below.
Several commenters noted that the draft guidance used the
term “federally enforceable” to mean both federally enforceable
as defined in the new source regulations (40 C.F.R. §S
52.21(b) (17), 51.165(a) (1)(xiv), 51.166(b) (17)), and enforceable
as a practical matter. We have tried to distinguish the places
where each term should be used, explained the relationship
between the two term., and indicated that in order to properly
restrict potential to emit, limitations must be both federally
enforceable as defined in the regulations and practically

S co requested that the section on averaging
times for Production limits be more Specific as to when it is
appropriate to use limitations which •xceed a one month time
basis. We have tried to explain why it is not possible to
develop generic criteria for making this distinction, and to
indicate situations where exceptions to the policy that
production and operation limitations not excsed one month may be
There were some requests for a section on enforcement. We
have included a new Section V I which addresses this topic. We
also received many good suggestions on the example permit
limitations. The section on examples has been substantially
reworked to reflect your comments.
Finally, we learned through the comments that in two
specific circumstances, short term emission limits are th. most
useful and rsasonab]. way to restrict and verify limits on
potential to emit. These circumstances are: 1) when control
equipment is installed but control equipment operating parameters
are difficult to measure during enforcement inspections; and 2)
in surface coating operations with numerous and unpredictable use
of coatings containing varying Voc content, where add-on control
equipment is not employed. Therefore, we have made a narrow
exception to the flat prohibition on use of emission limits to
restrict potential to emit for these specific circumstances, and
only when certain additional conditions have been met.
Again, we appreciate the thoughtful comments we have
received on this guidance. Please insert this document into your
Clean Air Act Compliance/Enforcement Policy Compendium as Item
Number H. . If you have any questions, please contact Judith
Katz in the Air Enforcement Division at rrs 382-2843, or Sally
Farrell in the Stationary Source Compliance Division at rrs 382-
R.gional Counsels
Regions I X
Regional Counsel Air Branch chiefs
Regions I X
Air Management Division Directors
Regions I, III, and IX
Air and Wait. Management Division Director
Region II

JUNE 13, 1989

Limiting Potential, to Emit in Hey Source Permitting
I. Introduction
Whether a new source or modification is major and subject to
new source review under Parts C and D of the Clean Air Act is
dependent on whether that source or modification has or will have
the potential to emit major or significant amounts of a regulated
pollutant. Therefore, the definition of “potential to emit”
under the new source regulations is extremely important in
determining the applicability of new source review to a
particular source. The federal regulations define “potential to
emit” as:
the maximum capacity of a stationary source to emit a
pollutant under its physical and operational design. Any
physical or operational limitation on the capacity of the
source to emit a pollutant, including air pollution control
equipment and restrictions on hours of operation or on the
type or amount of fuel combusted, stored or processed, shall
be treated as part of it. design if the limitation or the
effect it would have on emissions is federally enforceable.
40 C.?.L$ 52.21(b)(4), 51.165(a) (1) (iii), 51.166(b) (4).
Permit limitations are very significant in determining
whether a source is subject to major new source review. This is
because they ar. the easiest and most common way for a source to
obtain restrictions on its potential to emit. A permit does not

have to be a aa or source permit to legally restrict potential
amissions. A minor source construction permit issued pursuant
a state program approved by EPA as meeting the requirament. of 4
C.F.R. 4 Sl.160 is federally enforceable. In fact, any permit
limitation can l.gally restrict potential toamit if it meets two
criteria: 1) it is federally enforceabl, as defined by 40 C.F.R.
H 52.21(b)(17), 51.165(a)(1)(xiv), 51.166(b)(17), jj..,
contained in a permit issued pursuant to an EPA-approved
permitting program or a permit directly issued by EPA, or has
been submitted to EPA as a revision to a Stat. Implementation
Plan and approved as such by EPA; and 2) it i. enforceable as a
practical matter. The second criterion is an implied requirement
of the first criterion. A permit requirement may purport to be
federally enforceable, but, in reality cannot be federally
enforceable if it cannot be enforced as a practical matter.
Non-permit limitations can also legally restrict potential
to emit. These limitations include New Source Performance
Standards codified at 40 C.F.R. Part 60 and National Emission
Standards for Hazardous Air Pollutants codified at 40 C.F.R.
Part 61.
The appropriate means of restricting potential to emit
through permit conditions has been an issue in recent enforcement
cases. Through these cases and through guidance issued by EPA,
the Agency has addressed three questions: what types of permit

limitatio can legally limit potential. to emit; whether long
averaging ti*ss for production limitations ar. enforceable as a
practical matter; and whether sources may limit potential to emit
to amer source levels as a means of circumventing the
preconstructjon review requirements of ia or source review.
II. The Louisiana-pacific Case
In United States v. Louisiana—pacific CorDoratign , 682 F.
Supp. 1122 CD. Cob. Oct. 30, 1987) and 682 F. Supp. 1141 (0.
Cob. March 22, 1988), Judge Alfred Aftaj discussed the type of
permit restrictions which can be used to limit a source’s
potential to emit. The Judge concluded that:
...not all federally enforceable restrictions are properly
considered in the calculation of a source’s potential to
emit. While restrictions on hours of operation and on the
amount of materials combusted or produced are properly
included, blanket restrictions on actual emissions are not.
682 F. Supp. at 1133.
The Court held that Louisiana-Pacific’. permit conditions
which limited carbon monoxide emission.. to 78 tons per year and
volatile organic compounds to 101.5 tons p.r year should not be
considered in determining “potential to emit” because these
blanket emission limits did not reflect the typ. of permit
conditions which restricted operations or production such as
limits on hours of operation, fuel consumption, or final product.

rh. Louisian —Paciflc court was guided in its reasoning by
the DC. Circuit’s holding in Alabama Power v Costle , 636
323 (D.C. Circuit 1979). Before Alabama Power , EPA regii1at. . . ....
required potential to emit to be calculated according to a
source’s maximum uncontrolled emissions. In Alabama Power , the
D. C. Circuit remanded those regulations to EPA with instructic
that the Agency includ, the effect of in—plac, control squipee
in defining potential to emit. EPA went beyond the minimum
dictates of the D.C. Circuit in promulgating revised r.gulati
in 1980 to include, in addition to control equipment, any
federally enforceable physical or operational limitation. T’
Louisiana-Pacific court found that blanket limits on emissic
did not fit within the concept of proper restrictions on
potential to emit as set forth by Alabama Power .
Moreover, Judge Arra) found that: -
a fundamental distinction can be drawn between th
federally enforceable limitations which are expressi
included in the definition of potential to emit and
(emission) limitations.... Restrictions on hour’
operation or on the amount of material which may be
coabusted or produced ... are, relatively speaking,
•asier to ‘federally enforce.’ Compliance with suc
conditions could be easily verified through the te
officers, all manner of int•rnal. correspondence an
accounting, purchasing, and production records.
contrast, compliance with blanket restrictions en
emissions would be virtually impossible to verify
Id. Thus, Judge Arraj found that blanket emission 1
not enforceable as a practical matter.

?ix ally, the Court reasoned that allowing blanket .mission
limitations to restrict potential to emit would violat, the
intent of Congress in establishing the Prevention of Significant
D.t.rioration (PSD) program.
III. Types of Limitations that will Restrict Potential to Emit
As an initial matter in this discussion, a few important
terms should be defin.d. Emission limits ar. restrictions ov.r a
given period of time on the amount of a pollutant which say be
emitted from a source into the outside air. Production limits
are restrictions on the amount of final product which can be
manufactured or otherwise produced at a source. Operational
limits are al]. other restrictionS on the manner in which a source
is run, including hours of operation, amount of raw material
consumed, fuel combusted, or conditions which specify that the
source must install and maintain add-on controls that operate at
a specified emission rate or efficiency. All production and
operational limits except for hours of operation are limits on a
sources capacity utilization. Potential emissions are defined
as the product of a source’s emission rate at maximum operating
capacity, capacity utilization, and hours of operation.
To appropriately limit potential to emit consistent with the
opinion in Louisiana—Pacific , all permits issued pursuant to 40
C.FR. S15l.160, 51.166, 52.21 and 51.165 must contain a

6 -
production or operational limitation in addition to the emission
limitatj.m in cases where th. emission limitation does not
ref lect the maximum emissions of the source operating at full
design capacity without pollution control equipment.
Restrictions on production or operation that will limit potential
to emit include limitations on quantities of raw materials
consumed, fuel combusted, hours of operation, or conditions which
specify that the sourcs must install and maintain controls that
reduce emissions to a specified emission rate or to a specified
efficiency level. Production and operational limits must be
stated as conditions that can be enforced independently of one
another. For example, restrictions on fuel which relates to
both typ. and amount of fuel coabusted should stat. each as an
independent condition in the permit. This is necessary for
purposes of practical enforcement so that, if one of the
conditions is found to be difficult to monitor for any reason,
the other may still be enforced.
When permits contain production or operational limits, they
should also have requirements that allow a
permitting agency to ver y a source’s compliance with its
limits. For example, permits with limits on hours of operation
or amount of final product should require an operating log to be
kept in which the hours of operation and the amount of final
product produced are recorded. These logs should be available

for inspection should staff of a permitting agency wish to check
a •ource complianc. with the terms of it. permit.
When Permits require add-on control. oPerated at a specified
efficiency level., permit writer, should include, so that the
operating efficiency condition is enforceabl, as a practccaj.
matter, those operating parameters and assumptions which the
permitting agency depended upon to determin, that th. control
equipment would have a given efficiency.
An emission limitation alone would limit potential to emit
only when it reflects the absolute maximum that the source could
emit without controls or other operational restrictions. When a
permit contains no limits on capacity utilization or hours, of
operation, the potential, to emit calculation should assume
operation at maximum design or’ achievable capacity (whichever is
higher) and continuous operation (8760 hours p .r year).
The particular circumstances of som. individual sources make
it difficult to state operating parameters for control equipment
limits in a manner that is easily enforceable as a practical
matter. Therefore, there ar. two exceptions to the absolute
prohibition on using blanket emission limits to restrict
pot.ntia . to emit. If the permitting agency determines that
setting Operating parameters for control eg 4pment is infeasible
in a particular situation, a federally enforceable permit

contsjnji short term emissj limits lbs per hour) would
be sufficient to limit potential to emit, provided that such
1 iaits reflect the operation of the control equipment, g the
permit includes requirements to install, maintain, and operate a
continuous emission monitoring- (C () system and to retain cac
data, and specifies that CaI data may be used to determine
compliance with the emission limit.
Likewise for volatile organic compound (VOC) surface
coating operations where no add-on control is employed but
emissions are restricted through limiting VOC contents and
quantities of coatings used emission limits may be used to
restrict potential to emit under the following limited
circumstances. If the permitting agency determines for a -
particular surface coating operation that operating and
production parameters gallons of coati ng, quantities
produced) are not readily limited due to thi- wide variety of
coatings and products and due to the unpredictable nature of the
opsxat4on, emission limits coupled with a requirement to
calculate daily emissions may be used to restrict, potential to
emit. The source must be required to keep the “records n4cessary
for this calculation, including dail quantities and the VOC
contsnt of .ach coating us.d. Emission limits may be used in
this limited circumstance to restrict potential to emit since, in
this case, emission limits are more easily enforceable than
operating or production limits.

iv. Time Period. For Limiting Production and Operation
As discussed above, a limitation specifically r.cogniz.d by
the regulations as reducing potential to emit is a limitation on
production or operation. However, for these limitations to be
enforceable as a practical matter, the tim. over which they
extend should be as short term as possible and should generally
not exceed one month. This policy was explained in a March 13,
1987 memorandum from John Seitz to Bruce Miller, Region IV. The
requirement for a monthly limit prevents the enforcing agency
from having to wait for long periods of time to establish a
continuing violation before initiating an enforcement actiOn.
EPA recognizes that in some rare situations, it is not
reasonable to hold a source to a onthjjI these
cases, a limit spanning a longer eTisapproprae it it is a
rolling limit. However, the limit should not exceed an annual
‘limit rolled on a monthly basis. EPA cannot now set out all-
inclusive aategori.s of sources where a production limit longer
than a month viii be acceptable because every situation that may
arise in the future cannot now be anticipated. However, permits
where longer rolling limits are used to restrict production
should b issued only to sources with substantial and
unpr.dictable annual variation in produ t4 n, such as emergency

boilers. : Olling limit. Could b. used as well for sources which
shut dawu or curtail operation during part of a on a regular
s.asonsl Cycle, but the permitting authority should first expic
the possibility of imposing a month-by-month limit. Por example,
if a pulp drier ii periodically shut down from December to April,
the permit could contain a zero hours of operation limit for each
of those months, and then th. appropriat. hourly operation limit
for each of the remaining months. Under no circumstances would a
production or operation limit • on a calendar year annual
basis be considered capabl. of legally restricting potential to
V. Sham Operational Limits
In the past year, several sourc.s have obtained purportedi
federally enforceabis permits with operating restrictions
limiting their potential to emit to minor or de minimis levels
for the purpose of allowing them to conence construction prior
to receipt of a major sourc. permit. In such cases where EPA can
demonstrate an intent to operat. the sourcs at major source
levels, EPA considers the minor source construction permit void
ab initio and will take appropriate enforcement action to prevent
the source from constructing or operating without a major source

The buoying sxanple illustrates the kind of situation
addre.s.( in this section: An existing sajor stationary source
proposes to add a 12.5 a.qawatt electric utility steti generating
unit, and applies for a federally enforceable ninor source permit
which restricts opsratio at th. unit to 240 hours per year.
Because the project is designed as a baseload facility, EPA do..
not believe that the source intend, to operate th. facility for
only 240 hours a year. Further investigation would probably
uncover docu .ntatjon of the source’s intent to operate at higher
levels than those for which it i 5 permitted.
This situation raises the question of whether a source can
lawfully bypass the preconstructj n or presodjfjcatjon review
requirenenta of Prevention of Significant Deterioration (PSD) and
nonattajn ent New Source Review by committing to permit
conditions which restrict production to a level at which the
source does net intend to operate for any extensive tine.
If, after constructing and commencing operation, the source
obtains a relaxation of its original permit conditions prior to
exceeding them, doss this constitute a violation of the
preconat m tjon review requirements? This section discusses why
it is i. roper to Construct a sourca with a miner source permit
when there is intent to operate as a major source, and provides
guidelines for identifying these ‘sham 1 permits.

A. Permits with Conditions that do not reflect a source’s
planned e of operation are void initic and cannot act to
shield the source from the requirement to undergo preconstr-uct 4
1. Sham permits az. not a llov.d by 40 CFR 52.21(r) (4)
Section 52.21(r) (4) states:
At such time that a particular source or modification
becomes a major stationary source or major modification
solely by virtue of a relaxation in any enforceable
limitation which was established after August 7, 1980 on the
capacity of the source or modification other’vise to emit a
pollutant, such as a restriction on hours of operation, then
(PSD) shall apply to the source or modification as though
construction had not yet commenced en th. source or
When a source that is minor because of operating
restrictions in a construction permit later applies for a
relaxation of that construction permit which would make the
source major, Section 52.21(r) (4) prescribes the methodology f’
determining best available control technology (BACT). However;
it does not foreclose EPA’s ability, in addition to the
retroactive application of BACT and other requirements of the PSD
program, to pursue enforcement where the Agency believes that the
initial minor source permit was a sham. EPA will limit its
activity to requiring application of 40 CFR 52.21(r) (4) only for
the eases vh re a source legitimately changes a project after
finding that the operating restrictions which vere taken in good
faith cannot be complied with. Whether a source has acted in
good faith is a factual question which is answered by available
idence in the particular case.

2. Sham permits are not allowed by the definition of
potential to emit: 40 C.F.R. H52.2l(b)(4),
• 51.165(a) (1) (iii), 5].166(b)(4 ).
The definition of potential to emit enables sources to
obtain federally enforceable permits with operational
restrictions as a means of limiting emissions to minor source
levels. However, implicit in the application of these
limitations is the understanding that they comport with the true
design and intended operation of the project.
3. Sham permits are not allowed by the Clean Air Act
Parts C and D of the Clean Air Act exhibit Congress’s clear
intent that new major sources of air pollution be subject to
Dreconstructjpn review. The purposes for these programs cannot
be served without this essential element. Therefore, attempts to
expedite constr i jon by securing minor source status through the
receipt of operational restrictions from which the source intends
to free itself shortly after operation are to be treated as
circumvention of the preconstruction review requirements.

$. Ouid.lines for determining whan minor source constrtactjon
permits are shams.
EPA’. determination that a purportedly federally enforc.ab__
construction permit is a sham is mads based on an evaluation of
specific facts and evidence in each individual case. The
following are criteria which should be scrutinized when making
such a determination:
1. Piling a PSD or nonattainmant P4SR permit application
If a major source or major modification permit application
is filed simultaneously with or at approximately the same time as
the minor source construction permit, thi. is strong evidence of
an intent to circumvent the requirements of preconstruction
review. Even a major source application filed after the minoi
source application, but either before op.ration has commenced or
after less than a year of operation should be looked at closely.
2. Applications for funding
Applications for commercial loans or, for public utilities,
bond issues, should be scrutinized to see if the source has
guaranteed a certain level of operation which is higher than that
in its construction permit. If the project would not be funded
or if it would not be economically viable if operated on an

extended basis (at least a year) at the psr itted evel of
producti this should be considered as evidence of
3. Reports on coneuzsr demand and projected production
Stockholder reports, reports to the Securities and Exchange
Co mLssion, utility board reports, or business permit
applications should be reviewed for projected operation or
production levels. If reported levels are necessary to meet
projsct.d consumer demand but are higher than permitted levels,
this is additional evidence of circu v*ntiOfl.
4. Statements of authorized representatives of the source
regarding plans for operation.
Statements by representatives of the source to EPA or to
state or local permitting agencies about the source’s plans for
operation can be to shov intent to circumvent
pr.constr CtiOfl review requirements.
Hots that if a determination is made that a permit is a
“sham ’ for on. pollutant and, therefore, the source is a major
source or major modification, the permit may possibly still
contain valid limits on potential to emit for other pollutants.

In such S1s , the entire source lust still go through new source
revisw, rinq which, fpr PSD review, all pollutants for which
ther. is a net hg ificintjncrsa,. must be analyzed for BACT.
In nonattainmant new source review, new sources must have IAER
determination, only for pollutants for which they are major.
Major modifications, however, must have LAER determinations for
all nonattainaent pollutants emitted in significant alounts. If
the valid limits in a iaii a 1 jnor source construction
permit keep certain pollutants below significanc. levels, then
those pollutants would not hay, to be analyzed for MC? or LA!R.
However, if a source or modification is determined to be major
for PSD or NSR because part of its miner permit is d.ea .d veid,
it would have to undergo BACT or L ER analysis for all
significant pollutants.
VI. Enforcement Procedures
This guidance has discussed permit conditions which will
legally restrict potential to emit, shielding a source from the
requirement to comply with major new source permitting
regulatioms. Failure by a permitting agency to adhere to these
guidelines may result in a permit that does not]ly restrict
potential to emit, thereby subjecting a source to major new
source review. If that source has not gone through
preconstructjon review, it is a significant violator of the Clean
Air Act and is subject to enforcement for constructing or

modifying vithout a major new source permit.
Ths enforcement options available to EPA in these .ituatiens
include administrative action under fl67 or 113(a) (5) of the Act
or t.d.ral judicial action under 55 113(b) (2), 113(b) (5), 113(c),
or 167. Which enforcement option is ..l.ct*d depends on the
facts of the particular situation. (See u1y 15, 1988 guidance
on EPA Procedures for Addressing Deficient 11ev source Prsits.)
V I I. Example.
m. following examples are provided to illustrate the type
of permit restrictions which would and would not legally limit
potential to eait to less than major source thresholds. These
examples are provided for purposes of clarifying the potential to
emit and averaging time guidance only. They are not intended to
reflect all the permit conditions necessary for a valid permit.
Specific test methods, compliance monitoring and r.cordkespiflg
and reporting r.quir.*.nts are necessary to sake permit
1isitatioi enforceable as a practical matter. The use of
examples averaging times ar. the longest times allowed
under EPA policies is not intended to necessarily condone the
selection of the longest averaging times; averaging times should
in practice be a. short as possible.

3 • S minor source construction permit for a boiler
contains the following restrictions: 250,000 gal fuel/month; S fuel: 8000 hours/year.
These conditions are f.d.rally enforceable production and
operation limits, but do net limit potential to emit because one
of them does not mast EPA policies on enforceability as a
practical matter. The averaging tim. for hours of operation, on.
of the operational limits necessary to restrict emissions to less
than 250 tpy, exceeds a monthly or rolling yearly limit. If,
instead of 8000 hours/year, the hourly restriction were stated as
666 hoi s/month, the permit would serve to keep the source a
minor source, assuming the permit contains appropriate
recordkeeping provisions.
2. A waferboard plant which has the physical capacity to
emit over 300 tpy of carbon monoxide in the absence of using
specific combustion techniques has the following permit
restriction as the sole emission limitation: 249 tpy.
This does not limit potential to emit since an operational
or production restriction is necessary for the source to be
restricted to 249 tpy. The permit must contain a restriction on
hours of operation or capacity utilization which, when multiplied
by the maximum emission rate for the CO sources at the plant,
results in emissions of 249 tpy. Additionally, while the

emissiom Uait alone cannot restrict potential to emit, the
emission limit is unenforceable as a practical matter since it is
limited on an annual basis. The permit should contain a short
term emission limit (in addition to the annual emission limit),
consistent with the complianc, period or pareaster in the
applicable test method for determining compliance.
3. A small scale rock crushing plant that cannot emit more
than 240 tpy under maximum operation without controls (including
plant-wide particulate emissions from transf.r and storage
operations) has the following permit restriction as the sols
emission limitation: 240 tpy particulate matter.
Since no operational limitations are necessary for th.
source to emit below 250 tpy, no operational restrictions need be
in the permit to limit potential to emit. However, although this
is not a major source, the state agency should express the
emission limit in this permit as a lb/hour measure or gr/dicf so
that it viii be enforceable as a practical matter.
4. A plant consisting solely of a small rock crusher has
the feii inq permit restrictions: 0.05 lb gr P /dscf; fabric
filter must be employed and maintained at 99% efficiency.
Assuming that maintaining the fabric filter at 99%
efficiency vii ], result in emissions of less than 250 tpy, this

permit ld limit potential to emit if it also Contained • thsr
1) param srs that allowed the permitting agency to verify the
fabric filter’s operzi ting efficiency or 2) a requirement to
install and operate cor tinuou& opacity monitors (Coils) and a
specification thai CC 1 data may be used to verify compliance with
emission limits. Nctotñat if this second alternative were
adopted, it would ñàt be necessary to require that the fabric
filter b maintained at S1 % •ftiâieiiicy.
To determin, potential to emit, the efficiency rat, of the
fabric filter would be multiplied by the maximum uncontrolled
emission rate, the maximum numb.r of operating hours and maximum
throughput capacity since there are no other operating or
production limits. However, the efficiency rate of the fabric
filter would not be enforceable as a practical. matter unless
there were an enforceable means to monitor ESP performance on a
short term basis. The two alternatives mentioned above veuld
satisfy this requirement.
5. A surface coating operation has the capability of
utilizizq 15,000 gal coating/month, with the following permit
restrictiouis: 3.0 lb VOC/gal coating minu, water; 20.5 tons
VOC/month; monthly voc emissions to be determined from records
of the daily volumes of coatings used times the manufacturers
specified VOC content.

This does . not limit potential to emit since the source has
the phy.* l capacity to eXceed 250 tpy of VOC, and the permit
do... not contain a production or an operational 1 imitation • A
monthly limit on gallons of coating used which when multiplied by
3.0 lb/gal equates to less, than th 2’5o tpy threshold ( g
13,500 gallons/month), with appropriate recàrdke.pthg, would
generally be necessary to..liait potential to emit. If, however,
the permitting agency detsrmi es, due to the wide variety of
coatings employed and products produced, that restrictions on
operation or production are not practically enforceable, then the
above emission limits could restrict potential to emit if there
ar. requirements that the source calculate emissions daily, and
keep the appropriate records.
If the sourcewas alternatively to meet the 20.5 ton/month
limit by employing add-on controls, the permit would need to
contain an operational limit, such as the requirement to install
and operate an incinerator at 99% efficiency. A requirement to
monitor incinerator efficiency (either directly or indirectly via
temperature monitoring for example), and appropriate
recordkeapjnq requirements to verify compliance with each of the
permit oomditions would also be necessary to mak, th. permit
conditions enforceable as a practical matter. Note, however,
that in th. case where add-on controls are employed, the source
may be able to meat a shorter term emission limit than the ton
p.r month figure.

V II !. Cqmc1usi
Is hops th qu4.danc. vii], help E k’R.gions idsntify sou
vhich hay. .t e, p R stia], s* t a or aaounts of an air
pollutant vh eh W, ,i i) t:tho .. sources to the requir.a.nt of
prso1,nstructjon .v; aourc ravi.v v ry Source which ii
•uI to tIwsP4oqujs but has not Obtain.d a *ajor new
source permit .bo 4 be isrioiiiy consider.d for enforcement